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McIntyre v. County of Delaware

United States District Court, E.D. Pennsylvania

August 16, 2019



          DuBois, J.


         Plaintiffs Karen McIntyre and Julie Burke, former employees of the Delaware County Emergency Services Department, bring this action asserting sex and age discrimination, hostile work environment, retaliation, and post-employment retaliation claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000(e), et seq., 42 U.S.C. § 1983, the Age Discrimination and Employment Act (“ADEA”), 29 U.S.C. §§ 621, et seq., the Pennsylvania Human Relations Act (“PHRA”), P.S. §§ 951, et seq., and the Pennsylvania Whistleblower Law (“PWL”), 43 P.S. §§ 1421, et seq..

         Presently before the Court is Motion of Defendants Delaware County, Joe Brennan, and Tim Boyce to Dismiss Plaintiffs' Second Amended Complaint. For the following reasons the Court grants in part and denies in part defendants' motion to dismiss.

         II. BACKGROUND [1]

         Plaintiffs, McIntyre and Burke, had been employed for “decades” by the Delaware County Emergency Services Department (“ESD”) prior to their termination in August of 2018. Sec. Am. Compl. ¶¶ 2-3. At the time of their termination, McIntyre, age 52, worked as an Information Systems Coordinator while Burke, age 57, worked as a “911 Coordinator.” Id. ¶¶ 4- 6. Joe Brennan was McIntyre and Burke's supervisor. Id. ¶ 7. Tim Boyce was McIntyre and Burke's “superior” in his role as Delaware County Director of the ESD. Id. ¶ 7.

         Plaintiffs assert that the ESD routinely engaged in discriminatory practices, including, (1) paying female employees “lower salar[ies] and hourly wages as compared to their male counterparts, ” (2) providing female employees with fewer opportunities for promotions and pay increases, (3) inequitably administering vacation time and sick days, (4) providing male employees with unearned overtime pay and not providing female employees with the same benefits, and (5) allowing male employees use of County owned vehicles “while no female employees were provided with such a perk.” Id. ¶¶ 13-22.

         McIntyre and Burke each made “multiple oral and written reports to their superiors of discriminatory, retaliatory, wasteful and fraudulent practices at the [ESD], ” including letters to Lou DeVlieger, the Director of Personnel, in May and June 2017. Id. ¶¶ 28-29. Brennan threatened their job security if they ever put their complaints in writing or made a complaint outside of the ESD, saying “you are not to worry about what other people do here.” Id. ¶ 30.

         In the two years leading up to their termination, plaintiffs were retaliated against by their superiors. For example, in December of 2016, plaintiffs were “stripped of their duties without any explanation” and “forced to move from their offices to administrative cubicles.” Id. ¶ 23. Beginning in January 2017, plaintiffs were required by Boyce to attend twice-daily meetings with Brennan. Id. ¶ 24. There was no such requirement for the male employees. Id. ¶ 24. In May 2017, “Brennan and Boyce further retaliated against [p]laintiffs by requiring Ms. McIntyre and Ms. Burke to document their daily tasks and goals for each work day.” Id. ¶ 25.

         Plaintiffs further allege that they were retaliated against through a “bogus investigation” involving allegations that plaintiffs had accessed pornographic files on their work computers. Id. ¶ 45. On two separate occasions in 2017 McIntyre returned to her work computer to find pornographic files, that she had not accessed, open on her desktop. Id. ¶ 38. After these incidents, McIntyre anonymously reported the presence of pornography on the computer system to Delaware County Counsel Brian Zeidek. Id. ¶ 39. In March 2018, Burke and McIntyre were both questioned by detectives from the Criminal Investigations Division (“CID”) of the Delaware County District Attorney's Office and placed on paid administrative leave “ostensibly related” to their computer activity. Id. ¶ 33. Plaintiffs assert that neither of them ever accessed files on their computers that they were not authorized to access. Id. ¶ 37.

         After being investigated by the CID, plaintiffs were terminated on August 22, 2018.[2] Id. ¶ 45. Plaintiffs claim that their suspension and termination was retaliation by their superiors “for their repeated reports of wrongdoing to management and the EEOC.” Id. ¶ 45. Plaintiffs further allege that they were subjected to additional retaliation after their termination through the County's opposition to their rightful unemployment benefits and roadblocks to “COBRA rights and the return of personal effects.” Id. ¶ 46.

         After exhausting their administrative remedies, [3] plaintiffs filed their Complaint on November 23, 2018, the First Amended Complaint on November 28, 2018, and the Second Amended Complaint on February 15, 2019. Plaintiffs assert the following claims in the Second Amended Complaint: (1) sex discrimination, hostile work environment, retaliation, and post-employment retaliation claims under Title VII against the County of Delaware (Counts I & II); (2) Due Process, First Amendment, and Equal Protection violations under 42 U.S.C. § 1983 against the County of Delaware, Brennan, and Boyce (Count III); (3) age discrimination, hostile work environment and retaliation claims under the ADEA against the County of Delaware (Count IV); (4) sex and age discrimination, hostile work environment, and retaliation claims under the PHRA against the County of Delaware (Count V); and (5) violations of the Pennsylvania Whistleblower Law against the County of Delaware (Count VI). On March 1, 2019, defendants filed the present partial motion to dismiss. On March 15, 2019, plaintiffs responded. The motion is thus ripe for decision.


         “The purpose of a 12(b)(6) motion to dismiss is to test the legal sufficiency of the complaint.” Nelson v. Temple Univ., 920 F.Supp. 633, 634 n.2 (E.D. Pa. 1996). To survive a motion to dismiss, a plaintiff must allege “sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. In assessing the plausibility of a plaintiff's claims, a district court first identifies those allegations that constitute nothing more than mere “legal conclusions” or “naked assertion[s].” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 564 (2007). Such allegations are “not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. The court then assesses “the ‘nub' of the plaintiff['s] complaint-the well-pleaded, nonconclusory factual allegation[s]”-to determine whether it states a plausible claim for relief. Id. at 680. “In deciding a Rule 12(b)(6) motion, a court must consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the complainant's claims are based upon these documents.” Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010).


         Defendants' partial motion to dismiss seeks dismissal of plaintiffs' claims under Title VII (Counts I & II), § 1983 (Count III), the Whistleblower Act (Count VI), and plaintiffs' claims for punitive damages against Delaware County. The Court addresses each argument in turn.

         A. Title VII Claims (Counts I & II)

         1. Exhaustion of Administrative Remedies

         As an initial matter, defendants argue that plaintiffs failed to exhaust all administrative remedies with respect to their Title VII claims because alleged acts in 2016 and January of 2017 occurred more than 300 days before plaintiffs filed EEOC charges. Def. Mot. 9.

         “To bring suit under Title VII in a deferral state, such as Pennsylvania, a plaintiff must first file a charge with the EEOC within 300 days of the alleged unlawful employment practice. 42 U.S.C. § 2000e-5(e)(1).” Larochelle v. Wilmac Corp., 210 F.Supp.3d 658, 686-87 (E.D. Pa. 2016). Typically, discrete acts of discrimination are not actionable if time-barred. Id. “However, timeliness is analyzed differently when the claim is one for hostile work environment . . . . ‘[C]ourt[s] may consider [the] entire scope of a hostile work environment claim . . . so long as any act ...

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