The opinion of the court was delivered by: (Judge Munley)
Before the court is defendants' motion to dismiss (Doc. 10) the plaintiff's complaint (Doc. 1). Having been fully briefed and argued, the matter is ripe for disposition.
Plaintiff Karen Gallagher worked for the Borough of Dickson City ("Borough") as a part-time police officer from January 2004 until the Borough terminated her employment on February 8, 2005. (Complaint (Doc. 1) (hereinafter "Complt") at ¶¶ 11, 17). At the time she lost her job, plaintiff was the only woman working for the Police Department ("Department"). (Id. at ¶ 13). Plaintiff alleges that while she worked for the Department she was subjected to harassing conduct from Dave Spinello, who was a full time police officer. (Id. at ¶ 14). According to the plaintiff, Officer Spinello: told her that instead of working in the Department she should be featured in a "partially nude girly calendar" that was posted there; opined that women should not be working in law enforcement; called women "broads" and "chicks"; called her a "broad" and a "chick"; told plaintiff she should be the Department's secretary; informed plaintiff that the last "broad" who worked in the Department had fetched his radio for him; and told the plaintiff that "broads" should be in the kitchen. (Id.).
Plaintiff complained about these comments to the Borough, suggesting that they created a hostile work environment. (Id. at ¶ 15). According to her complaint, Defendants Wiltshire, Gallis, Novajosky and Bott, who were members of the City Council, knew that Officer Spinello had engaged in this conduct. (Id. at ¶ 16). They refused to take any action to correct the situation. (Id. at ¶ 17). Instead, the Borough Council fired the plaintiff. (Id.). After the Council fired her, the Borough hired two male part-time officers. (Id. at ¶ 18).
On August 21, 2006, plaintiff filed the instant complaint against the Borough, Wiltshire, Gallis, Novajosky and Bott. The complaint named the individual defendants both in their individual and official capacities. Count I of the complaint alleges a violation of plaintiff's right to equal protection pursuant to 42 U.S.C. § 1983. That count also alleges a violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Plaintiff claims the Borough discriminated against her in employment because of her gender.*fn1 These allegations appear to arise out of the Borough's failure to remedy the harassment plaintiff faced from officer Spinello. Count II alleges an equal protection violation and a violation of Title VII through retaliation by the Borough for plaintiff's complaints about Spinello's behavior. Plaintiff contends that her firing constituted this retaliation. Count III, brought under the Pennsylvania Human Relations Act ("PHRA"), 43 PENN. STAT. ANN. §§ 955 et seq., alleges gender discrimination, harassment and retaliation against the Borough. Count IV alleges individual liability under the PHRA against all the individual defendants. Count V is a first amendment retaliation claim, alleging that defendants fired plaintiff after she raised a matter of public concern. Plaintiff presumably brings this claim pursuant to 42 U.S.C. § 1983. Count VI alleges that the Borough failed to train employees and agents not to sexually harass fellow employees and to correct such situations when they occurred.
Plaintiff filed the instant motion to dismiss on October 16, 2006. After the parties briefed the issue, we held oral argument on June 14, 2007 bringing the case to its present posture.
As this case is brought pursuant to 42 U.S.C. §§ 1983 and 2000e for constitutional and statutory violations we have jurisdiction under 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." We have jurisdiction over plaintiff's state law claims pursuant to 28 U.S.C. § 1367(a) ("In any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article II of the United States Constitution.").
When a 12(b)(6) motion is filed, the sufficiency of a complaint's allegations are tested. The issue is whether the facts alleged in the complaint, if true, support a claim upon which relief can be granted. In deciding a 12(b)(6) motion, the court must accept as true all factual allegations in the complaint and give the pleader the benefit of all reasonable inferences that can fairly be drawn therefrom, and view them in the light most favorable to the plaintiff. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).
Defendants seek to dismiss portions of plaintiff's complaint on several grounds. We will address ...