The opinion of the court was delivered by: William W. Caldwell United States District Judge
Plaintiff, Debra A. Olsen, a police officer for Camp Hill Borough, filed this 42 U.S.C. § 1983 action alleging in an amended complaint a First Amendment retaliation claim and a Fourteenth Amendment substantive due process claim. The suit arises in part from the Borough's unsuccessful attempt to return Olsen to a rotating work schedule as opposed to the fixed schedule she had been working for years because of a health condition. The defendants are: the Borough; Lou Thieblemont, Camp Hill's mayor; Gregory J. Ammons, Camp Hill's police chief; and Michael Hope and James McNaughton, Camp Hill police officers.
Defendants filed a motion to dismiss the retaliation claim, which we granted. See 2009 WL 2426060, at *4 (M.D. Pa. Aug. 6, 2009). In opposing Defendants' motion, Plaintiff pointed out that her amended complaint also alleged a constitutional claim for a hostile work environment and that the allegations supported an equal-protection claim based on sexual harassment. We agreed, but because those claims had not been made clear in the complaint, in the interest of judicial economy, we allowed the defendants to file another motion to dismiss.
Defendants did so and we are considering that second motion, which argues that the amended complaint fails to set forth sufficient allegations to support those claims.
Fed. R. Civ. P. 12(b)(6) authorizes dismissal of a complaint for "failure to state a claim upon which relief can be granted." Under Rule 12(b)(6), we must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)). While a complaint need only contain "a short and plain statement of the claim," Fed. R. Civ. P. 8(a)(2), and detailed factual allegations are not required, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d. 929 (2007), a complaint has to plead "enough facts to state a claim to relief that is plausible on its face." Id. at 570, 127 S.Ct. 1955 at 1974. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, U.S. , , 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009)(quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965.) "[L]abels and conclusions" are not enough, Twombly, 550 U.S. at 555, 127 S.Ct. at 1964-65, and a court "'is not bound to accept as true a legal conclusion couched as a factual allegation.'" Id., 127 S.Ct. at 1965 (quoted case omitted).
In resolving the motion to dismiss, we thus "conduct a two-part analysis." Fowler, supra, 578 F.3d at 210. First, we separate the factual elements from the legal elements and disregard the legal conclusions. Id. at 210-11. Second, we "determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "'plausible claim for relief.'" Id. at 211 (quoted case omitted).
The amended complaint alleges the following.*fn1 The Borough hired Plaintiff in or about January 1990. (Am. Compl. ¶ 10). She was hired over the objections of defendant Ammons, the chief of police, who did not want a female police officer in the Borough, fought against the plaintiff's hiring, and in response to that hiring, "exclaimed that no one tells him what or who runs his police department . . . ." (Id. ¶¶ 13 and 5).
From the beginning of Plaintiff's employment, Defendant Ammons "consistently and persistently" treated her in "an openly hostile, demeaning and disrespectful way." (Id. ¶ 16). McNaughton and Hope treated her "in a similar demeaning, disrespectful, and hostile manner." (Id. ¶ 17). "Ammons frequently waited for opportunities when . . . members of the Police Department were present at common meetings . . . to ridicule the plaintiff" and "intentionally created a contentious, harassing situation at plaintiff's work site having no reason to do so." (Id. ¶ 18). More specifically, in March 2008 Ammons and Hope harassed her "over a Vehicle Code, a pager and a speed timing device." (Id.).
McNaughton "harassed the plaintiff, particularly engaging in misconduct of a sexual harassment nature . . . ." (Id. ¶ 19). In July 2008, McNaughton "disclosed to third parties . . . that the Borough had in effect a secret policy that they (the Police Department) would not back the plaintiff up should she need backup in a dangerous situation. Plaintiff was never advised of this unlawful retaliatory policy by McNaughton, the Chief, and the Borough." (Id.). Hope "has also acted to openly insult, attempt to intimidate, and interfere with plaintiff's performance of her duties." (Id. ¶ 20). "For just one example" of Hope's conduct, in February 2008, "Hope intentionally harassed the plaintiff over a misspelling in a report . . . ." (Id.). Thieblemont was part of this unlawful conduct. (Id.).
The defendants' unlawful conduct has been on a recurring basis for over ten years, including the two years preceding the filing of the complaint. (Id. ¶ 21).
In or about February 1998, "the plaintiff suffered a debilitating seizure while performing her appointed duties as a police officer . . . ." (Id. ¶ 11). She suffered "serious injuries as a result of her collapse" following the seizure but was able to return to work ...