The opinion of the court was delivered by: O'neill, J.
Now before me is a partial motion to dismiss plaintiff Jamie Miles' third amended complaint filed by defendants the City of Philadelphia, Commissioner Charles Ramsey, Captain Frank Gramlich, Captain Dennis Gallagher, Sergeant Steve Naughton and Corporal Karen Preston.*fn1 For the reasons that follow, I will grant the motion.
Plaintiff, a white female, was a police officer in the Philadelphia Police Department. This matter arises out of a series of events prior to plaintiff's suspension and dismissal from the department and her subsequent claims for retaliation, discrimination on the basis of sex and sexual harassment. The facts of this case are familiar to all relevant parties and are detailed in my opinions of September 21, 2011, Dkt. No. 6, and February 17, 2012. Dkt. No. 16. I therefore only discuss the facts and procedural history that are relevant to the instant motion.
On February 17, 2012, I found that plaintiff had not exhausted her administrative remedies with respect to claims predicated on her October 13, 2011 suspension with intent to dismiss and dismissed those claims without prejudice. Dkt. No. 17. Claiming she had since exhausted her administrative remedies with respect to such claims, on October 16, 2012, plaintiff sought leave to file a third amended complaint in order to assert claims predicated on her suspension and termination. On November 1, 2012, I allowed plaintiff to file her third amended complaint.
In Count I of her third amended complaint, plaintiff asserts a claim for First Amendment retaliation pursuant to 42 U.S.C. § 1983 against defendants Ramsey, Gramlich and Gallagher (and not the City of Philadelphia). Count II of plaintiff's third amended complaint asserts a claim titled "Monell" and brought under § 1983 against the City of Philadelphia. In Count III, plaintiff asserts a claim against the City for "Employment Discrimination/Retaliation" under 42 U.S.C. § 2000e. Count IV of plaintiffs' third amended complaint asserts a claim against all defendants pursuant to the Pennsylvania Human Relations Act, 43 P.S. §§ 951-963.
Plaintiff now asserts the following facts relevant to her claims. Gramlich "was the commanding officer of Internal Affairs" when plaintiff was investigated by Internal Affairs and he "supervised the investigation." Dkt. No. 42 at ¶ 27(f). She filed this lawsuit on or about June 21, 2011. Id. at ¶ 34. Gramlich concluded the Internal Affairs investigation after he was named a defendant in this lawsuit. Id. at ¶ 69. On June 29, 2011, plaintiff was charged with one count of neglect of duty and two counts of conduct unbecoming an officer. Id. at ¶ 35. In September 2011 she was found guilty of these counts by the Police Board of Inquiry. Id. On October 31, 2011, plaintiff was suspended for 30 days with intent to dismiss. Id. at ¶ 36. Thereafter, she was terminated. Id. Defendants Gramlich and Gallagher signed plaintiff's notices of suspension and dismissal. Id. Defendant Ramsey as Commissioner must approve recommended discipline and "may choose a lesser or more severe disciplinary action." Id. at ¶ 35. Plaintiff alleges that Ramsey "engaged in discriminatory conduct by disciplining Plaintiff more severely than other officers who engaged in similar or even more severe conduct." Id. at ¶ 55. Plaintiff contends that the City "has failed to properly supervise and/or train its supervisors . . . in civil rights, employment laws, and to the proper use of the City's disciplinary rules to handle recurring situation [sic] of inconsistent discipline . . . ." Id. at ¶ 60 (emphasis omitted). On April 9, 2012, plaintiff filed a retaliation charge with the Equal Employment Opportunity Commission naming as respondents the City, Ramsey and Gramlich. Id. at ¶ 39.
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 made clear that after Ashcroft v. Iqbal, 556 U.S. 662 (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, 556 U.S. at 678. The Court also set forth a two part-analysis for reviewing motions to dismiss in light of Twombly and Iqbal:
First, 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, 556 U.S. at 679. The Court explained, "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). "[W]here 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, 556 U.S. at 679.
I. Count I: First Amendment ...