The opinion of the court was delivered by: O'neill, J.
Now before me is a partial motion to dismiss the complaint of plaintiff Jamie Miles filed by defendants the City of Philadelphia, Mayor Michael Nutter, Commissioner Charles Ramsey, Captain Frank Gramlich, Captain Carol Abrams, Captain Dennis Gallagher, Sergeant Steve Naughton, Corporal Karen Preston, and Officer Connie Witherspoon.*fn1 For the reasons that follow, I will grant defendants' motion.
Plaintiff, a white female, is a police officer in the Philadelphia Police Department. Compl. at ¶ 18. On or about March 14, 2008, plaintiff was transferred to the department's Community Relations Unit. Id. at ¶ 19. Her direct supervisor was defendant Vega. Id. at ¶ 20. Plaintiff alleges that between March 14, 2008 and September 15, 2008, Vega engaged in a number of "unwelcomed" or "unwarranted" interactions with her. Id. at ¶ 21. On or about March 28, 2008, she claims that Vega "kissed her on the lips after a social outing," an action which she told him was inappropriate. Id. at ¶ 21(a). She asserts that on or about May 17, 2008, he "approached her from behind and grabbed her by placing his hands around her neck and chest area" and said "I know you like me." Id. at ¶ 21(d). On or about May 22, 2008, he "blocked Plaintiff in her cubicle and tried to convince her to go out with him." Id. at ¶ 21(e). She alleges that she reported this incident to defendant Preston as "sexual harassment and/or sex discrimination." Id.
Plaintiff alleges that on July 2, 2008, she was harassed by "Ms. Baraket," a woman "who she believes has a personal relationship with Cpl. Vega." Id. at ¶ 21(f). Plaintiff alleges that she reported her July 2 interaction with Ms. Baraket to defendant Naughton as an incident of "sexual harassment and/or sex discrimination." Id. Plaintiff asserts that in a subsequent meeting with defendant Gallagher regarding the July 2 incident she informed him that she believed Ms. Barakat had yelled at her in retaliation for plaintiff's rejection of Vega. Id. at ¶ 22. Vega was transferred from the Community Relations Unit on September 15, 2008. Id. at ¶ 24.
Prior to Vega's transfer, on or about July 16, 2008, plaintiff filed a complaint including seven allegations of sexual harassment and retaliation with the Philadelphia Police Department Equal Employment Opportunity Unit. Id. at ¶ 23. At the time, "Defendant Abrams was Captain of Internal Affairs, which includes the EEO Unit." Id. Plaintiff alleges that defendant Gramlich is the current Captain of Internal Affairs. Id. She asserts without further explanation that both defendants "had knowledge of Plaintiff's complaint to EEO." Id. Between August and October of 2008, the EEO Unit investigated her complaint. Id. at ¶ 24. The EEO Unit issued a final determination on or about July 10, 2009, finding that four of plaintiff's seven allegations against defendant Vega based on sexual harassment were substantiated. Id. at ¶ 26. The EEO Unit also found "a violation of departmental policy regarding Equal Employment Opportunity Regulations." Id.
In addition to her complaint with the EEO unit, on or about July 31, 2008, plaintiff dual filed a charge against the City of Philadelphia with the Pennsylvania Human Relations Commission (Case No. 2008-000632) and the Equal Employment Opportunity Commission (Case No. F172008-62769) alleging sex discrimination and harassment and naming defendant Vega as the harasser. Id. at ¶ 25. The PHRC found that probable cause existed for plaintiff's claim of sexual harassment discrimination, that the City of Philadelphia failed to conduct a proper investigation into her complaint and that the City failed to take prompt and appropriate remedial action by allowing Vega to remain as plaintiff's supervisor after she filed her internal complaint and by allowing Vega to retire without discipline or penalty. Id. at ¶ 27.
Plaintiff claims that she was subjected to additional adverse employment actions beginning on July 21, 2009. Id. at ¶ 28. She alleges that she was given a counseling memo for "work place [sic] irregularities" including "unexcused lateness reports for court and training and irregularities in the ruse [sic] of the computer system." Id. at ¶ 28(a). She claims that "[n]o male officers or officers who had not filed a complaint of employment discrimination against the City were counseled or given discipline for the conduct described." Id. She was issued another counseling memo on or about May 3, 2010 and claims that "[n]o male officers or officers who had not filed a complaint of employment discrimination against the City were counseled or given discipline for the conduct described." Id. at ¶ 28(b). She claims that she was told by defendant "Gallagher that her promotional opportunity to Sergeant may be adversely affected as a result of her filing the internal EEO complaint and a discrimination charge with the PHRC, although [she had] scored high enough to qualify her for a Sergeant position." Id. She asserts that in May 2010 defendant Naughton gave her multiple assignments with unclear instructions and that defendants Naughton, Preston and Gallagher thereafter disciplined her in an unspecified manner for not performing the assignments efficiently. Id. at ¶ 28(c). She also claims that defendant Naughton denied her the opportunity to participate in the monthly awards ceremony in June 2010. Id. at ¶ 28(d). She claims that she was made the focus of an internal investigation on or about June 18, 2010 and that she was "made the focus of an internal investigation and sent to Differential Police Responses Unit, which removes any overtime opportunity or pay, or transfers or promotional opportunity." Id. at ¶ 28(f). Plaintiff either amended her prior PHRC complaint or dual filed a new complaint on or about August 16, 2010 to include allegations regarding the 2009 and 2010 events. Id. at ¶ 29. She also made a second complaint with the EEO Unit "alleging further sex discrimination and retaliation, naming the City of Philadelphia" on or about November 30, 2010.
Finally, plaintiff asserts she was assigned to the Evidence Unit from the end of October 2010 to the end of December 2010. Id. at ¶ 31. She claims that "[w]hile at the Evidence Unit, P/O Connie Witherspoon (black, female), also assigned to Evidence, was given information from Internal Affairs/EEO which she should not have been given, regarding Plaintiff's confidential EEO Unit complaints." Id. Plaintiff claims that Witherspoon "confronted" her and "physically assaulted her by pushing her multiple times in the chest and shoulder area and [making] a statement about Plaintiff being 'white trash.'" Id. at ¶ 31. She alleges that she made a complaint about the alleged assault to Lieutenant Hwyrnak in the Evidence Unit, but that Hwyrnak failed to report the assault to Internal Affairs or to take disciplinary action against Witherspoon.
Federal Rule of Civil Procedure 12(b)(6) permits a Court to dismiss all or part of an action for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6).
Typically, "a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations," though plaintiff's obligation to state the grounds of entitlement to relief "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). "Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the allegations in the complaint are true (even if doubtful in fact)." Id. (citations omitted). The complaint must state "'enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element." Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 321 (3d Cir. 2008), quoting Twombly, 550 U.S. at 556. The Court of Appeals has recently made clear that after Ashcroft v. Iqbal, 129 S. Ct. 1937, 1955 (2009), "conclusory or 'bare-bones' allegations will no longer survive a motion to dismiss: 'threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.' To prevent dismissal, all civil complaints must now set out 'sufficient factual matter' to show that the claim is facially plausible." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009), quoting Iqbal, 129 S. Ct. at 1949. When reviewing motions to dismiss in light of Twombly and Iqbal, "[f]irst, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.'" Id. at 210-11, quoting Iqbal, 129 S. Ct. at 1950. "[A] complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to 'show' such an entitlement with its facts." Id., citing Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008). "Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged--but it has not 'show[n]'--'that the pleader is entitled to relief.'" Iqbal, 129 S. Ct. at 1949.
I. Count I: First Amendment ...