The opinion of the court was delivered by: Jan E. Dubois, Judge.
This matter is before the Court on Defendant Pennsylvania Department of
Military and Veterans Affairs' Motion to Dismiss Plaintiff's Complaint.
For the reasons which follow, the Court will grant the Motion.
Plaintiff's Title VII claim against both defendants will be dismissed
without prejudice to plaintiff's right to file an amended complaint in
conformity with this Memorandum if warranted by the facts;*fn1
plaintiff's claim under the Pennsylvania Human Relations Act against the
moving defendant will be dismissed with prejudice. I. BACKGROUND
The case arises out of plaintiff's application for part-time employment
in the Pennsylvania Army National Guard. On September 28, 1999, Sergeant
Andrew Funk, a recruiter for the Pennsylvania Army National Guard,
interviewed plaintiff for such a position. Complaint, ¶ 13. Sergeant
Funk, dressed in full uniform, began the interview at a public
restaurant, and "explained to plaintiff the military entrance
procedures, compensation, benefits, tuition reimbursement, and description
of service assignments. Id., ¶ 14. He continued the interview at a
tavern, where he allegedly purchased alcoholic beverages for plaintiff,
who was younger than the legal drinking age. Id., ¶ 15-16. According
to the Complaint, plaintiff left the tavern at midnight. Id., ¶ 17.
Sergeant Funk followed her out of the tavern and then sexually assaulted
her in the parking lot of the tavern. Id. ¶ 18. Sergeant Funk pled
guilty to furnishing alcohol to a minor, and the National Guard
discharged him from service. Id. ¶ 20-21.
Plaintiff brought suit against moving defendant, Pennsylvania
Department of Military and Veterans Affairs ("PDMVA"), and the
Pennsylvania Army National Guard. The Pennsylvania Army National Guard
has not responded to the Complaint. In the Complaint, plaintiff asserts
claims under Title VII, 42 U.S.C. § 2000e et seq., and the
Pennsylvania Human Relations Act, 43 P.S. 951 et seq.
Defendant PDMVA moves to dismiss plaintiff's Title VII claim on
the following grounds:
1. Plaintiff failed to plead an agency relationship
between moving defendant and Sergeant Funk;
2. Plaintiff failed to allege that Sergeant Funk made
sex a condition of employment; and,
3. Title VII does not afford protection to uniformed
personnel of the armed forces.
The motion to dismiss plaintiff's claim under the Pennsylvania Human
Relations Act is based on sovereign immunity under the Eleventh
Amendment. The Court will address these arguments in turn.
1. Theory of Sexual Harassment
The elements of a prima facie case of hostile work environment sexual
harassment under Title VII are: "`(1) the employee suffered intentional
discrimination [in a work environment] because of [his or her] sex; (2)
the discrimination was pervasive and regular; (3) the discrimination
detrimentally affected the plaintiff; (4) the discrimination would
detrimentally affect a reasonable person of the same sex in that
position; and (5) the existence of respondeat superior liability.'"
Bonnenberger v. Plymouth Township, 132 F.3d 20, 25 (3d Cir. 1997)
(quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir.
1990)). Any such ...