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Kelly A. Sharp v. Pennsylvania Army National Guard

August 3, 2012


The opinion of the court was delivered by: Chief Judge Kane

(Magistrate Judge Methvin)


Before the Court is Magistrate Judge Methvin's May 29, 2012 Report and Recommendation, recommending that Defendants' motions to dismiss be granted in part and denied in part. (Doc. No. 25.) Defendants Pennsylvania Army National Guard, Colonel Cindy Dwyer, Major William Charpentier, and Captain Paolo Sica (collectively "National Guard Defendants") filed objections to the Report and Recommendation on June 13, 2012. (Doc. No. 27.) Defendant Military Personnel Services Corporation filed an objection to the Report and Recommendation on June 15, 2012. (Doc. No. 28.) For the reasons that follow, the Court will adopt the Report and Recommendation in part and will grant in part Defendants' motions to dismiss.


The background of this matter is set forth in more detail in Magistrate Judge Methvin's Report and Recommendation; however, the Court will briefly summarize the pertinent details.*fn1

Plaintiff Kelly A. Sharp alleges that she was employed by Military Personnel Services from September 29, 2009 to July 19, 2010, when she was terminated after being subjected to what she describes as a hostile work environment. While at Military Personnel Services, Plaintiff served as a liaison between the National Guard and Military Personnel Services' Family Assistance Centers which are service centers for soldiers and their families. (Doc. No. 12 ¶¶ 15-17.) Plaintiff initially worked under supervision of a National Guard member, Captain Ryan Quinn. Plaintiff also received direction from Captain Quinn's supervisor, Major William Charpentier. (Id. ¶¶ 18, 20.) Colonel Cindy Dwyer was Charpentier's supervisor and also served as the personnel manager of the Joint Force Headquarters, which had overall responsibility for the Family Assistance Centers. (Id. ¶ 19.)

In March 2010, Plaintiff discovered that Military Personnel Services had billed the National Guard at a higher rate than the one specified in their contract. (Id. ¶ 21.) Plaintiff reported these irregularities to non-party Sandy Hintz, the program manager at Military Personnel Services. (Id. ¶ 22.) Hintz informed Plaintiff that Defendant Ronald Tipa, Military Personnel Services' principal and corporate officer, would handle the matter directly with Defendant Dwyer, and that she need not pursue the matter further. (Id. ¶¶ 22-24.)

In April 2010, Defendant Dwyer called Plaintiff into her office, where she asked her about Captain Quinn's job performance. (Id. ¶ 25.) Plaintiff was complimentary of Captain Quinn's performance, but Defendant Dwyer disagreed with Plaintiff's positive characterization of Quinn's performance. (Id.) That same month, Defendant Dwyer applied for a position as Chief of Staff of the National Guard; however, she was not selected for the position. (Id. ¶ 26.) Plaintiff alleges that Defendant Dwyer blamed Plaintiff's sister, who was a member of the interview panel that reviewed applicants for the Chief of Staff position, for not selecting her for the position. (Id. ¶ 28.)

The next month, in May 2010, Plaintiff alleges that Defendants Dwyer and Charpentier circulated rumors that Plaintiff and Captain Quinn were engaged in an extramarital affair and that Defendant Dwyer relayed the rumor to parties in the National Guard and staff at the Family Assitance Center where Plaintiff worked. (Id. ¶¶ 29-30.) Plaintiff alleges that she complained about the rumor to Hintz, but that the Military Personnel Services took no action. (Id. ¶ 31.) Later that month, Defendant Dwyer informed Captain Quinn that he would be removed from his position and replaced by Defendant Sica. (Id. ¶ 32.)

Defendant Sica replaced Captain Quinn in July 2010, and soon began engaging in conduct that Plaintiff characterized as hostile and demeaning to females. (Id. ¶ 33-51.) In her amended complaint, Plaintiff details several instances of allegedly hostile conduct by Defendant Sica, including refusing to speak with a female senior ranking non-commissioned officer, commenting on a female Lieutenant's appearance and sexual preferences, addressing a female staff member as "Barbie," using terms such as "bitch" and "whore" in the office environment, and engaging in other behavior that Plaintiff classified as lewd and lascivious.

On July 9, 2010, Plaintiff met with Defendant Charpentier to discuss Defendant Sica's "hostility and demeaning behavior towards women in the office." (Id. ¶ 51.) Plaintiff alleges that Defendant Charpentier informed her that "[Defendant] Sica views women under his command as subordinate without regard to their rank or position." (Id.) When Defendant Charpentier discussed the issue with Defendant Sica, Plaintiff alleges that Defendant Sica said "that bitch crossed the line and she is out of here" or words to that effect. (Id. ¶ 53.) Plaintiff complained of the work environment to Hintz; however, Military Personnel Services did not take action in response to Plaintiff's complaint of a hostile work environment. (Id. ¶¶ 51, 54.)

Plaintiff was terminated on July 19, 2010. (Id. ¶¶ 59-60.) Plaintiff alleges that on July 20, 2010, Defendant Dwyer stated that Plaintiff was fired because she was having an affair with Captain Quinn, she refused to work with Defendant Sica, and she was belligerent. (Id. ¶ 56.)

On July 5, 2011, Plaintiff initiated this action, and on September 20, 2011, Plaintiff filed an amended complaint alleging four counts against her former employer and supervisors: (1) a state-law claim for intentional interference with contractual relations against Defendants Dwyer, Charpentier, and Sica; (2) a state-law claim for defamation against Defendants Dwyer, Charpentier, and Sica; (3) claims pursuant to 42 U.S.C. § 1983 against all Defendants for violations of Plaintiff's constitutional rights to free speech, due process, and equal protection; and (4) claims under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq., against all Defendants. (Doc. No. 12.) The National Guard Defendants filed a motion to dismiss the amended complaint on October 6, 2011. (Doc. No. 15.) Defendants Military Personnel Services and Tipa also filed a motion to dismiss that same day. (Doc. No. 17.)


The Magistrate Act, 28 U.S.C. § 636, and Federal Rule of Civil Procedure 72(b), provide that any party may file written objections to a magistrate's proposed findings and recommendations. In deciding whether to accept, reject, or modify a Report and Recommendation, a Court must make a de novo determination of those portions of the Report and Recommendation to which objection is made. 28 U.S.C. § 636(b)(1).

Dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure is proper when the defendants are entitled to judgment as a matter of law. See Markowitz v. Ne. Land Co., 906 F.2d 100, 103 (3d Cir. 1990). To avoid dismissal, the complaint must contain allegations sufficient to "raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Essentially, a plaintiff must "set forth sufficient information to outline the elements of his claim or to permit inferences to be drawn that these elements exist." Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (citation omitted). Put otherwise, a civil complaint must "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 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A court, however, "need not credit a complaint's 'bald assertions' or 'legal conclusions' when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)).


In her Report and Recommendation, Magistrate Judge Methvin recommended that the motions to dismiss be granted in part and denied in part. (Doc. No. 25.) On June 13, 2012, the National Guard Defendants filed objections to the Report and Recommendation, and on June 15, 2012, Defendant Military Personnel Services filed an objection. (Doc. Nos. 27, 28.) Plaintiff did not file any objections to the Report and Recommendation. The Court will address each of Magistrate Judge Methvin's recommendations in turn.

A. State Law Claims

First, Magistrate Judge Methvin found that sovereign immunity did not apply to Plaintiff's state law claims. (Doc. No. 25 at 15-16.) In her amended complaint, Plaintiff brings state law claims against Defendants Dwyer, Charpentier, and Sica for intentional interference with contractual relations and defamation. (Doc. No. 12 ¶¶ 61-69). In her claim for intentional interference with contractual relations, Plaintiff alleges that Defendants Dwyer, Charpentier, and Sica "improperly sought to and ultimately succeeded in inducing [her] civilian employer, [Military Personnel Services], to fire her from her position" and that these "actions were unfounded." (Doc. No. 12 ¶¶ 63-64.) Plaintiff also alleges that these actions "cannot be said to have been in the best interests of [the National Guard]" because they were "willful, malicious, reckless or oppressive." (Id. ¶ 64.) In her defamation claim, Plaintiff alleges that Defendants Dwyer, Charpentier, and Sica "by their derogatory and defamatory words and language," which were published to third persons, including Military Personnel Services and persons within the National Guard, "adversely affected [her] reputation . . . and ultimately led to her dismissal from her civilian employment with [Military Personnel Services]." (Id. ¶¶ 66-68.)

The National Guard Defendants moved to dismiss these state law claims, arguing that the claims are barred by the doctrine of sovereign immunity. (Doc. No. 5 at 5.) Magistrate Judge Methvin found that sovereign immunity did not apply to Plaintiff's intentional interference with contractual relations claim, and recommended that the motion to dismiss that claim be denied. (Doc. No. 25 at 15.) With respect to Plaintiff's defamation claim, Magistrate Judge Methvin also found that sovereign immunity did not apply and recommended that the motion be denied with respect to Defendants Dwyer and Charpentier. However, Magistrate Judge Methvin recommended that Plaintiff's defamation claim be dismissed without prejudice as to Defendant Sica, as Plaintiff did not allege sufficient facts to support a defamation claim against him. (Id. at 15-16.) The National Guard Defendants objected to Magistrate Judge Methvin's recommendation, arguing that the National Guard employees are entitled to sovereign immunity because their action fell within the scope of their employment. (Doc. No. 27 at 8-15.)

Pennsylvania's doctrine of sovereign immunity bars damage claims for state law torts against "the Commonwealth, and its officials and employees acting within the scope of their duties." 1 Pa. Cons. Stat. § 2310. The statute further provides that these actors shall "remain immune from suit except as the General Assembly shall specifically waive the immunity." Id. Sovereign immunity is waived when the cause of action falls within one of only nine "strictly construed and narrowly interpreted" exceptions. Brown v. Blaine, 833 A.2d 1166, 1173 (Pa. Commw. Ct. 2003) (citing Bufford v. Pa. Dep't of Transp., 670 A.2d 751 (Pa. Commw. Ct. 1996)). One such exception is National Guard activities, which are "acts of a member of the Pennsylvania military forces." 42 Pa. Cons. Stat. § 8522(b)(8). Furthermore, the defense of sovereign immunity cannot be raised when "the individual's conduct falls outside the scope of the employee's employment." Johnson v. Townsend, 314 F. App'x 436, 439 (3d Cir. 2008). Conduct of a state official or employee "is within the scope of employment if, but only if: (a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; [and] (c) it is actuated, at least in part, by a purpose to serve the [Commonwealth]." Restatement 2d Agency § 228; Aliota v. Graham, 984 F.2d 1350, 1358 (3d Cir. 1993) (predicting that the Pennsylvania Supreme Court would adopt the test set forth in Restatement 2d Agency § 228). "[W]illful misconduct does not ...

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