United States District Court, E.D. Pennsylvania
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
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.
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.
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.
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.
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.
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.
being investigated by the CID, plaintiffs were terminated on
August 22, 2018. 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.
exhausting their administrative remedies,  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
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).
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.
Title VII Claims (Counts I & II)
Exhaustion of Administrative Remedies
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.
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 ...