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MOORE v. PENNSYLVANIA DEPT. OF MILITARY AND VETS. AFFAIRS

August 26, 2002

AMANDA MOORE PLAINTIFF,
V.
PENNSYLVANIA DEPARTMENT OF MILITARY AND VETERANS AFFAIRS AND PENNSYLVANIA ARMY NATIONAL GUARD DEFENDANTS



The opinion of the court was delivered by: Jan E. Dubois, Judge.

MEMORANDUM AND ORDER

MEMORANDUM

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.

DISCUSSION

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.

A. Claim Under Title VII

1. Theory of Sexual Harassment

Plaintiff does not identify the Title VII theory on which she bases her claim. Thus, the Court will consider the two types of Title VII claims which might arguably be raised by plaintiff's allegations — claims of hostile work environment and a quid pro quo claim of sexual harassment under Title VII.

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 ...


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