complaint as true and view them in the light most favorable to
the plaintiff. See Jenkins v. McKeithen, 395 U.S. 411, 421, 89
S.Ct. 1843, 23 L.Ed.2d 404 (1969). A motion to dismiss should
only be granted if "it is clear that no relief could be granted
under any set of facts that could be proved consistent with the
allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104
S.Ct. 2229, 81 L.Ed.2d 59 (1984); see also Leatherman v.
Tarrant County Narcotics Intelligence and Coordination Unit,
507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993) (section
1983 claims are to be evaluated in accordance with the liberal
standard enunciated in Rule 8(a)).
Defendants have moved to dismiss: (1) Counts III and IV (the
Section 1983 claims) against the individual defendants in their
official capacities; (2) Count IV (retaliation under Section
1983) for failure to state a claim; (3) Count V (intentional
infliction of emotional distress) for failure to state a claim
and as barred by the Pennsylvania's Political Subdivision Tort
Claims Act ("Tort Claims Act") as against the Township and the
individual defendants in their official capacities; (4) Count
VI (negligent infliction of emotional distress) for failure to
state a claim and as barred by the Tort Claims Act; and (5) the
claim for punitive damages under Section 1983 and Title VII.
For purposes of this motion, Regan concedes that the
following claims are subject to dismissal: (1) Count III and IV
against the individual defendants in their official capacity;
(2) Count V and VI against the Township and the individual
defendants in their official capacity; and (3) the claim for
punitive damages against the Township in Counts I-IV. The
remaining claims will be discussed in order.
A. Retaliation Under Section 1983
Regan concedes that her Section 1983 claim for retaliation
against the individual defendants in their official capacity is
subject to dismissal. Accordingly, those claims will be
dismissed and I will consider her claim for retaliation against
the Township and McGrath and Daly in their individual
capacities. Defendants argue first that there is no cognizable
claim for retaliation under Section 1983 and, therefore, the
Count IV should be dismissed for failure to state a claim.
Defendants also argue that Regan's claim for retaliation under
Section 1983 is subsumed by her claim under Title VII. Regan
simply asserts that a claim for retaliation under Section 1983
It has oft been recited that Section 1983 does not create any
substantive rights, but rather is remedial in nature, providing
a method for vindicating federal rights elsewhere conferred.
See, e.g., Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct.
807, 127 L.Ed.2d 114 (1994); Sameric Corp. of Del., Inc. v.
City of Philadelphia, 142 F.3d 582, 590 (3d Cir. 1998). Care
must be exercised when analyzing claims both under Section 1983
and a comprehensive statutory scheme which creates substantive
rights and provides its own, exclusive remedial scheme. See
Middlesex County Sewerage Authority v. Nat'l Sea Clammers
Ass'n, 453 U.S. 1, 20, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981);
Great American Federal S & L Ass'n v. Novotny, 442 U.S. 366, 99
S.Ct. 2345, 60 L.Ed.2d 957 (1979) (depravation of a right
created by Title VII cannot be the basis for a cause of action
under § 1985(3)); McLaughlin v. Rose Tree Media Sch. Dist.,
1 F. Supp.2d 476, 479-80 (E.D.Pa. 1998). In Sea Clammers, the
Supreme Court held that when a federal statute has its own
comprehensive enforcement and remedial scheme, that scheme is
the exclusive remedy for violations of the statue. 453 U.S. at
20, 101 S.Ct. 2615. Thus, plaintiffs may not vindicate rights
created under Title VII under Section 1983. See McLaughlin, 1
F. Supp.2d at 480; see also, Day v. Wayne County Bd. of
Auditors, 749 F.2d 1199, 1204 (6th Cir. 1984).
A plaintiff may, however, pursue a remedy under Section 1983
as well as under Title VII when the defendant's conduct
violates both Title VII and a separate constitutional right.
McLaughlin, 1 F. Supp.2d at 479-80; see also Andrews v. City of
Philadelphia, 895 F.2d 1469 (3d Cir. 1990). Thus, even if a
plaintiff brings a claim under Title VII for retaliation, he or
she may have a viable claim under Section 1983 for retaliatory
discharge based upon the exercise of his or her First Amendment
rights. Anderson v. Davila, 125 F.3d 148, 160 (3d Cir. 1997)
("The Supreme Court has explicitly held that an individual has
a viable claim against the government when he is able to prove
that the government took action against him in retaliation for
his exercise of First Amendment rights.") (citing Mt. Healthy
City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct.
568, 50 L.Ed.2d 471 (1977); Azzaro v. County of Allegheny,
110 F.3d 968, 975 (3d Cir. 1997) (en banc)). In her complaint,
Regan alleges that the defendants retaliated against her
because she "complained" about being sexually harassed.
(Complaint at ¶ 40). Consequently, it is possible to infer that
the complaint contains an allegation that the defendants
retaliated against Regan based upon her exercise of her rights
under the First Amendment.
Employees may bring a claim under Section 1983 to enforce the
protection provided by the First Amendment against retaliation
if: (1) they spoke on a matter of public concern; (2) their
interest in that field outweighs the government's concern with
the effective and efficient fulfillment of its responsibilities
to the public; (3) the speech caused the retaliation; and (4)
the adverse employment decision would not have occurred but for
the speech. Fogarty v. Boles, 121 F.3d 886, 888 (3d Cir. 1997);
see also Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75
L.Ed.2d 708 (1983).
The Supreme Court has indicated that a public employee's
speech is protected when it relates "to any matter of
political, social, or other concern to the community."
Connick, 461 U.S. at 146, 103 S.Ct. 1684. In a recent en banc
decision, the Court of Appeals for the Third Circuit set forth
the analysis courts should use to determine if a matter is of
public concern. Azzaro, 110 F.3d at 975-80. (First Amendment
protected employee from retaliation where plaintiff reported a
single incident of sexual harassment by an assistant to the
County Commissioner). Looking at all the surrounding
circumstances including the context and form of the speech,
courts must ask "whether expression of the kind at issue is of
value to the process of self governance." Id. 110 F.3d at 977.
In its public concern analysis, the Court of Appeals also
addressed the relevance of the speaker's motive, stating that
"the speaker's motive, while often a relevant part of the
context of the speech, is not dispositive in determining
whether a particular statement relates to a matter of public
concern." Id. at 978. The court also rejected the idea that a
grievance about sexual harassment is only a matter of public
concern if it includes indications that there is a systemic
problem interfering with the public agency's performance of its
governmental functions, and not if the complaints relate solely
to the employee's own situation. Id. at 980.
Under the liberal rules of notice pleading, Regan's
allegations are sufficient state a prima facie case for
retaliatory discharge in violation of her First Amendment
rights. (Complaint at ¶¶ 31, 33, 37, 39, 42, 44, 46). It is,
therefore, inappropriate at this juncture to dismiss Count IV
for failure to state a claim.
B. Intentional Infliction of Emotional Distress*fn2
Regan concedes that her claim for intentional infliction of
emotional distress against
the Township and the individual defendants in their official
capacity is subject to dismissal. Accordingly, I will consider
her claim for intentional infliction of emotional distress
against McGrath and Daly in their individual capacities.
To state a claim for intentional infliction of emotional
distress, a plaintiff must plead that the defendant's conduct:
(1) was intentional or reckless; (2) was extreme and
outrageous; (3) actually caused the distress; and (4) caused
distress that was severe. Cox, 861 F.2d at 395; Mulgrew v.
Sears Roebuck & Co., 868 F. Supp. 98, 103 (E.D.Pa. 1994); Hoy,
720 A.2d at 753; Kazatsky, 527 A.2d at 991. In order to state a
cognizable claim, the conduct must be "so extreme in nature as
to go beyond all possible bounds of decency such that it would
be regarded as utterly intolerable to civilized society."
Mulgrew, 868 F. Supp. at 103.
As the Supreme Court of Pennsylvania recently reiterated,
"`it is extremely rare to find conduct in the employment
context that will rise to the level of outrageousness necessary
to provide a basis for recovery for the tort of intentional
infliction of emotional distress.'" Hoy, 720 A.2d at 754
(quoting Cox v. Keystone Carbon, 861 F.2d 390, 395 (3d Cir.
1988)). In the employment context, sexual harassment alone does
not rise to the level of outrageousness necessary to make out a
cause of action. Id. "The only instances in which courts
applying Pennsylvania law have found conduct outrageous in the
employment context is where an employer engaged in both sexual
harassment and other retaliatory behavior against an employee."
Id. at (quoting Andrews, 895 F.2d at 1487); see also Solomon v.
City of Philadelphia, 1996 WL 20651, at *3-4 (E.D.Pa. Jan.16,
1996) (retaliatory conduct not limited to turning down direct
Regan has alleged a pattern of sexual harassment and has
alleged that Lieut. McGrath and Superintendent Daly retaliated
against her for complaining about sexual harassment. Thus,
Regan has sufficiently pled a cause of action of intentional
infliction of emotional distress to withstand a 12(b)(6)
motion. McLaughlin v. Rose Tree Media Sch. Dist., 1 F. Supp.2d 476,
483 (E.D.Pa. 1998) (female janitor stated a cause of
action against assistant principal who retaliated against her
for complaining that her supervisor subjected her to continuing
C. Negligent Infliction of Emotional Distress
Regan concedes that her claim for negligent infliction of
emotional distress is subject to dismissal as to the Township
and the individual defendants in their official capacities.
Accordingly, those claims will be dismissed. I turn now to the
claims against Superintendent Daly and Lieut. McGrath in their
The negligent infliction of emotional distress is a
cognizable tort in Pennsylvania. See Sinn v. Burd, 486 Pa. 146,
404 A.2d 672 (1979); Neiderman v. Brodsky, 436 A.2d 84 (Pa.
1970); Green v. Bryant, 887 F. Supp. 798, 801-02 (E.D.Pa. 1995).
However, there is confusion regarding the bases upon which
relief can be sought. Brown v. Philadelphia College of
Osteopathic Medicine, 449 Pa. Super. 667, 674 A.2d 1130, 1135
(1996). The tort has evolved largely in the context of those
who observe injury to close family members and are distressed
as a consequence of the shock. Armstrong v. Paoli Memorial
Hosp., 430 Pa. Super. 36, 633 A.2d 605, 609 (1992), allocatur
denied, 538 Pa. 663, 649 A.2d 666 (1994). Courts have routinely
required that a physical injury must be averred to sustain a
cause of action for negligent infliction of emotional distress.
Id.; Hunger v. Grand Central Sanitation, 447 Pa. Super. 575,
670 A.2d 173, 178 (1995). In Hunger, the Superior Court stated
[a] cause of action for negligent infliction of
emotional distress exists in only two
circumstances: 1) where a close family member
experiences a contemporaneous sensory observance
of physical injuries being inflicted on another
family member or
2) where the plaintiff nearly experiences a
physical impact in that he was in the zone of
danger of the defendant's tortious conduct.
Id. at 178 (internal citations omitted). Nevertheless, other
courts have held that in the absence of physical impact, a
plaintiff can recover for negligent infliction of emotional
distress, not only if he or she witnessed an accident in which
a close relative was injured, but also if he or she suffered
"distress as a result of a breach by a defendant of a distinct
pre-existing duty of care, that is in essence an independent
tort." Herbert v. Greyhound Lines, Inc., 1994 WL 493732 at *4
(E.D.Pa. Sept.8, 1994); see also Green v. Bryant, 887 F. Supp.
at 802; Hunger, 670 A.2d at 174-75 (Beck, J., concurring)
(agreeing that plaintiff did not state a claim for negligent
infliction of emotional distress but recognizing that tort of
negligent infliction of emotional distress can be based upon a
violation of a pre-existing duty grounded in a contractual or
implied contractual relationship); Armstrong, 633 A.2d at 615
("Pennsylvania also recognizes recovery in situations in which
there is a contractual or fiduciary duty."); Crivellaro v.
Pennsylvania Power & Light Co., 341 Pa. Super. 173,
491 A.2d 207, 208 (1985) (implicitly finding tort of negligent
infliction of emotional distress can be grounded in a duty of
care arising in an employee-employer context in reversing trial
court's order sustaining preliminary objections to a
plaintiff's allegations of negligent infliction of emotional