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Jacqueline Mitcham v. Pittsburgh Cardiovascular Institute and Oliver W. Caminos

February 28, 2011


The opinion of the court was delivered by: Susan Paradise Baxter United States Magistrate Judge

District Judge McLaughlin Magistrate Judge Baxter



It is respectfully recommended that Plaintiff=s Motion to Dismiss Counts II and III of Defendants= Counterclaims [ECF No. 5] be denied.


A. Relevant Procedural History

On April 1, 2010, Plaintiff initiated this action by filing a Complaint against Defendants Pittsburgh Cardiovascular Institute (APCI@) and Oliver W. Caminos, M.D. (ACaminos@), pursuant to Title VII of the Civil Rights Act of 1991, 42 U.S.C. ' 2000e, et seq. (ATitle VII@), alleging claims of sexual harassment, constructive discharge, assault, battery, and intentional infliction of emotional distress. [ECF No. 1]. In particular, Plaintiff alleges that Defendant Caminos made an Aunwelcome sexual advance@ toward her on January 14, 2008, which Defendant PCI allegedly failed to address. As a result, Plaintiff claims that she was subjected to an Aintolerably hostile working environment,@ which ultimately compelled her to resign on May 2, 2008. As relief for her claims, Plaintiff seeks monetary damages in excess of $75,000.00, costs, and attorneys= fees.

In response, Defendants filed an Answer, Affirmative Defenses, and Counterclaims on July 9, 2010. Defendants= counterclaims are set forth in three counts: conversion (ACount I@); violation of the Pennsylvania Wiretap Act, 18 Pa.C.S. ' 5701, et seq. (ACount II@); and defamation (ACount III@). [ECF No. 2].

On July 29, 2010, Plaintiff filed a motion to dismiss Counts II and III of Defendants= counterclaims [ECF No. 5], asserting that Defendants have failed to state claims upon which relief may be granted. Defendants have since filed a memorandum of law in opposition to Plaintiff=s motion. [ECF No. 7]. This matter is now ripe for consideration.

B. Relevant Factual History

Plaintiff alleges that, in January 2008, she served as the office ultrasound technician for Defendant PCI, where she reported directly to Defendant Caminos. (ECF No. 1, Complaint, at && 11-12). Plaintiff was completing a pelvic/prostate ultrasound study of Defendant Caminos on January 14, 2008, when, according to Plaintiff, Defendant Caminos exposed himself and instructed Plaintiff to perform a scan of his penis. (Id. at && 15-31). After Plaintiff capitulated, the examination lasted several minutes, during which Plaintiff alleges that she repeatedly explained to Defendant Caminos that she did not know what she was doing and wanted to stop. (Id. at && 32-33). After the examination was over, Plaintiff alleges that she reported the incident to Defendant PCI=s manager of ultrasound technicians and Defendant Caminos= executive assistant, yet nothing was done in response. (Id. at && 36-39). On January 16, 2008, Plaintiff confronted Defendant Caminos in his office to Aexplain[] how humiliated and shocked she was by his actions.@ (Id. at & 41). The ensuing conversation was recorded by Plaintiff. (ECF No. 5, Motion to Dismiss, at & 8). Plaintiff ultimately resigned from her position in May 2008.

C. Standard of Review

A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of the complaint must be accepted as true. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). A complaint must be dismissed pursuant to Rule 12 (b)(6) if it does not allege Aenough facts to state a claim to relief that is plausible on its face.@ Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)(rejecting the traditional 12 (b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41 (1957)). See also Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S.Ct. 1937 (May 18, 2009) (specifically applying Twombly analysis beyond the context of the Sherman Act).

The Court need not accept inferences drawn by plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) citing Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997). Nor must the court accept legal conclusions set forth as factual allegations. Twombly, 550 U.S. at 555, citing Papasan v. Allain, 478 U.S. 265, 286 (1986). AFactual allegations must be enough to raise a right to relief above the speculative level.@ Twombly, 550 U.S. at 555. Although the United States Supreme Court does Anot ...

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