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Jamie Miles v. City of Philadelphia

February 17, 2012

JAMIE MILES
v.
CITY OF PHILADELPHIA, ET AL.



The opinion of the court was delivered by: O'neill, J.

MEMORANDUM

Now before me are a partial motion to dismiss the amended 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 and Corporal Karen Preston (the "City defendants"). For the reasons that follow, I will grant the City defendants' motion. Also before me is defendant Juan Vega's separate motion to dismiss plaintiffs' amended complaint. For the reasons that follow, I will also grant Vega's motion.

BACKGROUND

Plaintiff, a white female, is a police officer in the Philadelphia Police Department. Am. Compl. at ¶ 17. On or about March 14, 2008, plaintiff was transferred to the department's Community Relations Unit. Id. at ¶ 18. Defendant Vega was plaintiff's direct supervisor. Id. at ¶ 29. 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 ¶ 20. 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 ¶ 20(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 ¶ 20(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 ¶ 20(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 ¶ 20(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 also asserts that at a meeting on or about July 11, 2008, she informed defendant Gallagher that she believed Ms. Barakat had yelled at her in retaliation for plaintiff's rejection of Vega. Id. at ¶ 21. Vega was transferred from the Community Relations Unit on September 15, 2008 and thereafter took early retirement from the Department. Id. at ¶ 25.

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 ¶ 22. 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 ¶ 23. 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. Id. at ¶ 24. Although her charge includes allegations arising out of defendant Vega's conduct, the only respondent named in plaintiff's July 31 charge is the "City of Philadelphia, Police Department." Dkt. No. 14-3 at ¶ 3. 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. Am. Compl. at ¶ 27; see also Dkt. No. 14-1.

Plaintiff claims she was subjected to additional adverse employment actions beginning on July 21, 2009. Am. Compl. 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. Plaintiff also asserts that, "although she is qualified for the rank of Sergeant," Commissioner Ramsey failed to promote her since 2008. Id. at 28(g). She asserts that in May 2010 defendants Naughton, Preston and Gallagher gave her multiple assignments with unclear instructions, that "from May 7 2010 to June 11, 2010, [she] was teaching a D.A.R.E. program at Ben Franklin Middle School, but assigned to Meredith Elementary School" and that she "did not properly notify her supervisors" that "[t]he program at Ben Franklin had run overtime." 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 asserts that she notified defendant Gallagher of her intent to sue in federal court on June 10, 2010. Id. at ¶ 28(e). She claims that due to an Internal Affairs investigation against her, on or about June 18, 2010, she "was sent to Differential Police Re[s]ponses Unit ("DPR") which removes any overtime opportunity or pay, or transfers or promotional opportunity." Id. at ¶ 28(f). She alleges that "[t]he investigation was initiated as a result of Plaintiff failing to timely start the D.A.R.E. Program at Meredith Elementary School." Id.

Plaintiff contends that on July 16, 2010, she "personally notified" defendants Nutter, Ramsey, Gramlich and Abrams of her EEO Unit and PHRC complaints and that thereafter Internal Affairs instructed her "to direct all further correspondence regarding her EEO Unit complain(s) [sic] to Capt. Abrams, in that Capt. Abrams was in charge of, or oversaw, all EEO Complaints." Id. at ¶ 29. On or about August 16, 2010, Plaintiff dual filed a new complaint with the PHRC and the EEOC that included allegations regarding the 2009 and 2010 events. Id. at ¶ 30; Dkt. No. 14-4. Her complaint named Nutter, Ramsey, Gramlich, Abrams, Gallagher, Naughton and Preston as respondents and "[a]ccordingly, the named Defendants were notified by the PHRC that a charge had been filed against them." Am. Compl. at ¶ 30. Defendant Vega was not named as a respondent in her August 16 PHRC complaint. Dkt. No. 14-4. Plaintiff does not allege that defendant Vega was notified of her new claims by the PHRC, by the department or by anyone else. See Am. Compl. ¶ 30. Plaintiff 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. Id. at ¶ 33. Plaintiff does not allege that any of the individual defendants were named as respondents in this complaint. See id. Plaintiff received a right-to-sue letter with respect to her complaints on or about April 26, 2011. Id. at ¶ 34.

After receiving a right-to-sue letter, plaintiff sent a letter to defendants Nutter and Ramsey on or about May 23, 2011 to "re-notify" them of "the failure by Internal Affairs to take the appropriate action to resolve" the alleged discrimination by Cpl. Vega and the alleged retaliatory acts of Gallagher, Naughton and Preston. Id. ¶ 35. Plaintiff then instituted this action on or about June 21, 2011. Id. ¶ 36. She claims that on the day after she filed her lawsuit, she "wrongfully received discipline (18's) for neglect of Duty and Conduct Unbecoming." Id. at ¶ 37. On October 13, 2011, she was suspended for 30 days with intent to dismiss. Id. at ¶ 37 and Dkt. No. 8-1 at ECF page 16. Her suspension and dismissal notice were signed by defendants Gramlich and Gallagher. Id.

On September 21, 2011, I granted the City defendants' partial motion to dismiss plaintiff's complaint but granted plaintiff leave to amend. Plaintiff filed an amended complaint on October 14, 2011.*fn1

STANDARD OF REVIEW

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. ...


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