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Rosenberg v. Vuotto

October 26, 2010


The opinion of the court was delivered by: Buckwalter, S. J.


Currently pending before the Court is the Motion by Defendants Carmen Vuotto and the City of Philadelphia to Dismiss. For the following reasons, the Motion is granted and Plaintiff's Complaint is dismissed in its entirety.


Taking all well-pled allegations in the Complaint as true, Plaintiff was hired as a police officer, on June 27, 1997, by Defendant the City of Philadelphia ("the City"). (Compl. ¶ 1.)*fn1

Sometime in May 2001, Plaintiff was assigned to the 1st Police District as a supervisor in the Operations Room. (Id. ¶¶ 2-3.) On April 11, 2006, Plaintiff sent a memo to Lieutenant Joseph Walsh requesting vacation days for July 5 and 6, 2006. (Id. ¶ 4.) Although the request was approved by Lt. Walsh, Defendant Captain Vuotto, who was Plaintiff's supervising commanding officer, ordered Plaintiff to resubmit her vacation request directly to him, with the reason for her absence, the hotel phone number, and a copy of her hotel confirmation. (Id. ¶¶ 4-5.) Captain Vuotto purportedly never gave any such orders to male officers. (Id. ¶ 5.) Plaintiff complied with this order and provided Captain Vuotto with a new memo containing the name and confirmation number of her hotel reservation. (Id.) On April 17, 2006, Captain Vuotto approved her request for vacation. That same day, he contacted the hotel to confirm Plaintiff's reservation and also demanded that Plaintiff provide the name of the second hotel in which she would be staying -- a request with which Plaintiff complied. (Id. ¶¶ 6-7.) Again according to Plaintiff, Captain Vuotto never confirmed hotel information for male officers.

Plaintiff was out of the office on vacation from July 5 through July 8, 2006. On July 8, 2006, a phone call was made to the hotel inquiring about Plaintiff's reservation, but Plaintiff was not given the caller's information. (Id. ¶ 9.) When she returned home that day, she found a "75-48" message from Captain Vuotto requesting that she contact him immediately. (Id. ¶ 10.) Although she did so, he was unavailable at the time. (Id.) The next day, on July 9, 2006, Plaintiff spoke with Captain Vuotto who said that he sent a message to Plaintiff's home because "he did not know where she was going to be." (Id. ¶ 11.) Plaintiff had assumed that the information about the second hotel had been given to Captain Vuotto by Lt. Walsh. (Id.) In connection with Captain Vuotto's behavior, Plaintiff filed a harassment complaint against him with the Fraternal Order of Police in July of 2006. (Id. ¶ 12.)

The following year, on May 21, 2007, a complainant's sister came into the 1st District to report an incident. (Id. ¶ 13.) Plaintiff, who was the Operations Room Supervisor at the time, advised the woman that she could not make a report based on someone's word other than the actual complainant. (Id.) Plaintiff further explained that the woman should go to the hospital where the complainant was and call the police to meet her there so they could see the complainant and talk to a doctor or nurse about her injuries. (Id.) Plaintiff did not send a car to the relevant hospital (University of Pennsylvania Hospital) because it was in the 18th Police District. (Id.) The complainant's sister never called the police again and, as a result, no report was ever taken.

Captain Vuotto filed charges against Plaintiff, on August 8, 2007, for neglect of duty, failure to take police action, and/or failure to make the required written report in connection with this May 21, 2007 incident. (Id. ¶ 14.) Thereafter, on November 28, 2007, Plaintiff received a fifteen-day suspension without pay. (Id. ¶ 15.) Plaintiff alleges that she is unaware of any such male officers who were similarly disciplined for the same conduct. (Id. ¶ 16.)

On August 8, 2008, Plaintiff filed a sex discrimination and retaliation claim with the Equal Employment Opportunity Commission ("EEOC"), which was cross-filed with the Pennsylvania Human Relations Commission ("PHRC"). (Id. ¶ 24.) Plaintiff received a right-to-sue letter under 42 U.S.C. § 2000(e) for sex employment discrimination and retaliation for opposing sex employment discrimination.*fn2 (Compl. ¶ 26.)

On July 19, 2010, Plaintiff initiated a civil action in this Court setting forth two causes of action, as follows: (1) employment discrimination/retaliation pursuant to 42 U.S.C. § 2000e; and (2) employment discrimination/retaliation under the Pennsylvania Human Relations Act ("PHRA"), 43 PA. CONST. STAT. § 951, et seq. Defendants filed a Motion to Dismiss on August 30, 2010, and Plaintiff responded on September 13, 2010.


Under Rule 12(b)(6), a defendant bears the burden of demonstrating that the plaintiff has not stated a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6); see also Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), the United States Supreme Court recognized that "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555. It emphasized that it would not require a "heightened fact pleading of specifics," but only "enough facts to state a claim to relief that is plausible on its face." Id. at 570.

Following the basic precepts of Twombly, the Supreme Court, in the subsequent case of Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), enunciated two fundamental principles applicable to a court's review of a motion to dismiss for failure to state a claim. First, it noted that "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 1949. Thus, although "[Federal] Rule [of Civil Procedure] 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era . . . it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Id. at 1950. Second, the Supreme Court emphasized that "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. "Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. The Supreme Court explained:

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. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the ...

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