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Kern v. Schuylkill Intermediate Unit 29

January 15, 2010

SUZANNE KERN PLAINTIFF
v.
SCHUYLKILL INTERMEDIATE UNIT 29, GERALD ACHENBACH, ED.D. DEFENDANTS
KAREN THARP PLAINTIFF
v.
SCHUYLKILL INTERMEDIATE UNIT 29, GERALD ACHENBACH, ED.D. DEFENDANTS



The opinion of the court was delivered by: Judge Vanaskie

MEMORANDUM

Plaintiffs, Karen Tharp and Suzanne Kern, brought suits against Defendants, Schuylkill Intermediate Unit 29 ("I.U.") and Gerald Achenbach, asserting eight claims for relief in connection with their separation from employment with the I.U.*fn1 (Tharp Dkt. 5; Kern Dkt. 5.) Subsequently, Defendants moved to dismiss Counts I through III and V through VIII of the amended complaints filed separately on behalf of Tharp and Kern. (Tharp Dkt. 6; Kern Dkt. 6.) For the following reasons, Defendants' motion will be granted in part and denied in part.

I. BACKGROUND

On or about December 3, 2001, Ms. Tharp began working for the I.U. as a Special Education Instructor. Around August 1979, Ms. Kern began working for the I.U. as a Marketing Instructor. On June 1, 2007, Plaintiffs and their fellow employees were playing with squirt guns in the school halls. On June 28, 2007, Plaintiffs attended a meeting with Executive Director Gerald Achenbach to discuss the squirt gun incident. At the meeting, Kern and Tharp were compared to the Columbine High School shooters. Specifically, Defendants showed Plaintiffs a power-point presentation, which juxtaposed a school surveillance photograph of them holding squirt guns next to a picture of the shooters from Columbine High School.

On July 23, 2007, Kern received a letter informing her that she interrupted the educational process, set a bad example for the students, that the images on the monitors could have been misinterpreted as a threat to students or staff, and the event was insensitive to the tragedy at Virginia Tech which transpired earlier that same year. On July 25, 2007, Kern alleges that she was forced to retire from her position because of the treatment, reactivation, and exacerbation of her former disability, Post Traumatic Stress Disorder.

On August 14, 2007, Tharp received a similar letter, which additionally explained that she was suspended for three days: August 22, August 23, and August 27, 2007. Tharp claims that she was mistreated, discriminated against, and "constructively discharged."

Plaintiffs separately filed dual administrative claims of discrimination with the Equal Employment Opportunity Commission ("EEOC") and the Pennsylvania Human Relations Commission ("PHRC"), on or about December 4, 2007. (Dkt. 11, Exhbt. "A".)*fn2 Kern presented both disability and gender discrimination claims to the EEOC, while Tharp asserted only a claim of gender discrimination. On or about January 7, 2008, the I.U. received from the EEOC "Notices of Charge of Discrimination" for each Plaintiff, but the notices failed to specify the precise statutory basis for the discrimination claims. (Dkt. 7, Exhbt. "B".) On October 2, 2008, counsel for Plaintiffs sent letters on their behalf to the EEOC requesting a notice of right-to-sue (Tharp Dkt. 5, at 21; Kern Dkt. 5, at 21), but no right-to-sue letter was ever issued.

Plaintiffs initiated these actions in the Court of Common Pleas of Schuylkill County by way of Writs of Summons on June 30, 2008. On August 26, 2008, Defendants filed Notices of Removal to this Court. On October 2, 2008, Plaintiffs' filed amended complaints. Defendants' moved to dismiss the amended complaints on October 6, 2008. (Kern Dkts. 6, 27.)

Tharp's amended complaint contains seven counts against the I.U. (Counts I-VII), and three Counts against Achenbach (Counts VI-VIII). Kern's amended complaint contains seven counts against the I.U. (Counts I-VII), and two counts against Achenbach (Counts II and VIII).

Plaintiffs present a number of common claims. First, each alleges violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., contending that each Plaintiff has disabilities that impose substantial limitations on one or more major life activity, each Plaintiff can perform the essential functions of their job with reasonable accommodations, and the I.U. discriminated against each Plaintiff because of her disability. Next, each Plaintiff asserts gender discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e.*fn3 Each Plaintiff also asserts a right to relief against the I.U. under the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. § 951, et seq., with both Plaintiffs asserting that Achenbach is liable individually for having aided and abetted the alleged discriminatory conduct. Plaintiffs also present procedural due process claims, seeking relief under 42 U.S.C. § 1983. Kern and Tharp both assert defamation causes of action, Tharp against the I.U. and Achenbach, and Kern solely against the I.U., stemming from the meeting where their pictures with water guns were compared with the Columbine High School shooters. (Tharp Dkt. 5, at 15; Kern Dkt. 5, at 16.) Finally, Tharp asserts a claim for intentional infliction of emotional distress against the I.U. and Achenbach, and Kern brings the same action against the I.U. only.

II. DISCUSSION

A. Standard of Review

The court's task on a Rule 12(b)(6) motion to dismiss for failure to state a claim is to "determine whether, under any reasonable reading of the pleadings, the plaintiffs may be entitled to relief." Langford v. City of Atlantic City, 235 F.3d 845, 847 (3d Cir. 2000). In doing so, all factual allegations and all reasonable inferences drawn therefrom are assumed to be true. Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). "The complaint will be deemed to have alleged sufficient facts if it adequately puts the defendants on notice of the essential elements of the cause of action." Id.

The court, however, need not accept as true a complaint's "bald assertions" or "legal conclusions." In re Burlington Coat Factory Secs. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997). Thus, a Rule 12(b)(6) motion does not serve to question a plaintiff's well-pled facts, but rather tests the legal foundation of the plaintiff's claims. United States v. Marisol, Inc., 725 F. Supp. 833, 836 (M.D. Pa. 1989).

The Supreme Court recently abrogated its longstanding decision in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), which had held that a complaint may be dismissed only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." The Court retired this "no set of facts" language in favor of a new standard: a plaintiff's obligation to state a claim for relief under Rule 8(a)(2) "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). As a result of Twombly, plaintiffs were required to nudge their claims "across the line from conceivable to plausible." Id. at 570. To state a claim consistent with the language of Fed. R. Civ. P. 8(a)(2), which requires only a "short and plain statement of the claim showing that the pleader is entitled to relief," a complaint must contain factual allegations sufficient "to raise a right to relief above a speculative level."

Id. "[W]ithout some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only 'fair notice,' but also the 'grounds' on which the claim rests." Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008). As such, courts may dismiss a complaint if it fails to "contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Twombly, 550 U.S. at 562 (quotation and citation omitted); see also Phillips, 515 F.3d at 234 (in order to survive a motion to dismiss, a plaintiff must allege in his complaint "enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s]" of a particular cause of action).

"In general, a district court ruling on a motion to dismiss (or for judgment on the pleadings) may not consider matters outside the pleadings." In re Pressure Sensitive Labelstock Antitrust Litig., 566 F.Supp.2d 363, 375 (M.D. Pa. 2008) (citing In re Burlington Coat Factory, 114 F.3d 1410, 1426 (3d Cir. 1997)). "[A]n exception to the general rule is that a 'document integral to or explicitly relied upon in the complaint' may be considered 'without converting the motion [to dismiss] into one for summary judgment.' " In re Burlington Coat Factory, 114 F.3d at 1410 (quoting Shaw v. Digital Equip. Corp., 82 F.3d 1194, 1220 (1st Cir.1996)). A document is integral to the complaint when the allegations in the complaint are based on the document. Id.

B. Exhaustion of Administrative Remedies: ADA (Count I), Title VII (Count II), and PHRA (Count III) Claims Against the I.U.

Initially, Defendants' sought to dismiss Plaintiffs' claims under the ADA, Title VII, and PHRA on the ground that Plaintiffs had failed to exhaust administrative remedies. (Defs.' Br. Supp. Mot. Dismiss Pltf's. Am. Compl., Tharp Dkt. 7, at 5-7.) Plaintiffs' opposition brief included copies of administrative charges of discrimination dated December 4, 2007. In Defendants' Reply to Plaintiffs' Brief in Opposition to the Motion to Dismiss, Defendants requested that, pursuant to Fed. R. Civ. P. 12(e), the Court require Plaintiffs to more definitively plead that administrative exhaustion was accomplished. (Defs.' Reply Pltfs.' Br. Opp'n Mot. Dismiss, Dkt. 17, at 2-5.)

Under the ADA, Title VII, and PHRA, "a plaintiff must exhaust all administrative remedies before seeking judicial relief . . . ." Dubose v. District 1199C, 105 F.Supp.2d 403, 410 (E.D. Pa. 2000). The "exhaustion requirement is designed to provide sufficient notice to the defendant concerning the charges and obtain voluntary compliance without resort to ...


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