The opinion of the court was delivered by: Pratter, J.
Diane Carter complains that her former employer and superiors in the Susquehanna Regional Police cadre subjected her to sexual harassment for several years, ultimately culminating in her termination in 2008. She also alleges that they have defamed her to prospective employers. For their part, the Defendants filed a Motion to Dismiss Plaintiff's Amended Complaint. The Court heard oral argument on the pending motion on April 17, 2009, and now grants the Motion in part and denies it in part.
FACTUAL*fn1 AND PROCEDURAL BACKGROUND
Ms. Carter filed a complaint on October 3, 2008 against all of the Defendants except Susquehanna Regional Police Commission (Police Commission). Defendants filed a motion to dismiss, and Ms. Carter filed an Amended Complaint as a response, adding, among other things, the Defendant Police Commission. The Amended Complaint alleges that Ms. Carter formerly worked for the Susquehanna Regional Police Department (Police Department), which is operated by the Police Commission. She alleges that Defendants Overlander, Draeger, Murphy, Strickland, and Mohr are or were members of the Police Commission, that Mr. Roberts is a sergeant with the Police Department and was the Chief of Police, that Mr. Englert is a lieutenant with the Police Department, that Mr. Haugh is now the Chief of Police and was a sergeant, and that Mr. Rapp is a sergeant with the Police Department.
Ms. Carter was employed as a full-time patrol officer with the Police Department from April 1, 2002 to August 18, 2006, when she became a part-time patrol officer. On August 31, 2008, she was terminated from her job. Ms. Carter alleges that she was subjected to unwanted sexually inappropriate, offensive and insensitive behavior, including sexual comments and innuendo by Mr. Roberts, and that the conduct began early in her employment and continued regularly thereafter. She also claims that she was subject to disparate treatment as one of two female officers on the police force, including being obliged to use the male locker room rather than being provided with a separate facility.
Ms. Carter alleges that she objected to the sexually inappropriate conduct, but that Mr. Roberts did nothing to address her concerns. She claims that she and the other female police officer went to the Board of Commissioners to voice their concerns about the conduct, as well as about other issues pertaining to the mismanagement of the Police Department. After voicing these concerns to the Police Commission, Ms. Carter alleges, Messrs. Roberts, Haugh, Englert and Rapp (the Supervisor Defendants) subjected her performance to heightened scrutiny. She claims that Messrs. Overlander, Draeger, Murphy, Strickland, and Mohr (the Commissioner Defendants) knew and acquiesced in this heightened scrutiny.
Ms. Carter maintains that she continually protested the unfair treatment, and at one point threatened to file a lawsuit. She claims that this only served to intensify the retaliation, and that she was placed on remedial training status, subjected to one-on-one supervision, received poor performance evaluations, and was openly criticized by Messrs. Roberts, Haugh and Englert. For example, as an incident of the treatment to which she was subjected, she states that she was disciplined for leaving a middle initial out of a report, while male officers reported for watching pornography at the station were not disciplined.
Ms. Carter alleges that the continual harassment caused "severe and extreme physical and emotional upset" and directly caused her to resign her full-time position in August 2006 and go to part-time status. She complains that even then she continued to raise her concerns, including meeting with the Police Commission, and that she filed charges of discrimination with the Pennsylvania Human Relations Commission and U.S. Equal Employment Opportunity Commission. She alleges that she wished to return to full-time status for work and requested to return repeatedly, but only if the hostile work environment was remedied. Ms. Carter claims that Mr. Overlander was even removed from the Police Commission for a time because of the objections she raised to his conduct. Ms. Carter claims that she applied to other police departments for a full time job as a police officer but that "upon information and belief," Defendants Roberts, Englert and Haugh have demeaned and defamed her to prospective employers and continue to do so.
On August 31, 2008, Ms. Carter was terminated from the Police Department, in retaliation for her complaints. She claims that this and all other employment actions taken against her were done by the Supervisor Defendants with the knowledge and acquiescence of the Commissioner Defendants. She claims that the Commissioner Defendants caused the discrimination and/or permitted it to continue by "taking official actions to perpetuate the environment and by failing and refusing to take appropriate action to correct and remedy a known discriminatory environment." Am. Compl. at ¶ 23. She claims that the actions taken against her continued regularly and consistently throughout her employment and that each action about which she complains escapes the statute of limitations under a theory of continuing violations as a result. She claims that she exhausted her administrative remedies and received a Notice of Right to sue from the EEOC on September 17, 2008.
Ms. Carter brings three counts in her Amended Complaint. The first is a sexual discrimination/hostile work environment claim under 42 U.S.C. § 1983 against the Supervisor and Commissioner Defendants, for which she demands compensatory and punitive damages, as well as costs, interest, attorneys' fees and injunctive relief. Ms. Carter levies Count II against the Police Commission,*fn2 claiming that it violated Title VII and the Pennsylvania Human Relations Act by subjecting her to a hostile work environment, and she claims the same damages as she demanded in Count I. Finally, in Count III, Ms. Carter alleges that Defendants Roberts, Haugh, and Englert defamed her by making false statements demeaning her character and reputation to prospective employers. She claims that the statements related to her character, credibility, and fitness to perform as a police officer, that the prospective employers understood them as applying to her, and that the comments were defamatory and understood as such by the prospective employers. She again demands the same relief as she does in Count I.Defendants have moved to dismiss Ms. Carter's Amended Complaint on several grounds which are discussed here.
A Rule 12(b)(6) motion to dismiss tests the sufficiency of a complaint. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Rule 8 of the Federal Rules of Civil Procedure requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007) (quoting Conley, 355 U.S. at 47). While a complaint need not contain detailed factual allegations, the plaintiff must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 1964-65 (citations omitted). Specifically, "[f]actual allegations must be enough to raise a right to relief above the speculative level . . . ." Id. at 1965 (citations omitted).
In making such a determination, courts "must only consider those facts alleged in the complaint and accept all of those allegations as true." ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994) (citing Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)); see also Twombly, 127 S.Ct. at 1965 (stating that courts must assume that "all the allegations in the complaint are true (even if doubtful in fact)"). The Court must also accept as true all reasonable inferences that may be drawn from the allegations, and view those facts and inferences in the light most favorable to the non-moving party. Rocks v. Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989). The Court, however, need not accept as true "unsupported conclusions and unwarranted inferences," Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173, 183-84 (3d Cir. 2000) (citing City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 263 n.13 (3d Cir. 1998)), or the plaintiff's "bald assertions" or "legal conclusions," Morse v. Lower Merion Sch. Dist., 132 F.3d. 902, 906 (3d Cir. 1997).
To evaluate a motion to dismiss, the Court may consider the allegations contained in the complaint, exhibits attached to the complaint, matters of public record and records of which the Court may take judicial notice. See Tellabs, Inc. v. Makor Issues & Rts., 127 S.Ct. 2499, 2509 (2007); Pension ...