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Pepitone v. Township of Lower Merion

United States District Court, E.D. Pennsylvania

December 19, 2019

JO ANNE PEPITONE, Plaintiff,
v.
TOWNSHIP OF LOWER MERION, TOWNSHIP OF LOWER MERION POLICE DEPARTMENT, and POLICE SUPERINTENDENT MICHAEL J. MCGRATH, Defendants.

          MEMORANDUM

          JOYNER, J.

         Presently before the Court are Plaintiff's First Amended Complaint (“FAC”), (FAC, Doc. No. 9); Defendants' Partial Motion to Dismiss the FAC for failure to state a claim under Rule 12(b)(6), (Defs. Partial Motion to Dismiss, Doc. No. 12); and Plaintiff's Response thereto, (Pl. Response, Doc. No. 13). For the reasons that follow, the Motion will be granted in part and denied in part.

         Factual Background

         Plaintiff Jo Anne Pepitone brings claims against the Township of Lower Merion (“Township”), the Township of Lower Merion Police Department (“LMPD”), and Michael J. McGrath (“McGrath”) - a police department superintendent - in his individual capacity. (Doc. No. 9 ¶1; Doc. No. 13 at 1-2.) Plaintiff alleges violations of Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991 (“Title VII”) 42 U.S.C. § 2000(e), et seq.; 42 U.S.C. § 1983 and the Equal Protection Clause of the Fourteenth Amendment; and the Pennsylvania Human Relations Act (“PHRA”) 43 P.S. § 951 et seq. In response to Defendants' contention that LMPD and the Township are a single entity for purposes of § 1983 liability, (Doc. No. 12-1 at 21), Plaintiff, without qualification, “agrees to dismiss her claims against LMPD . . . ., ” (Doc. No. 13 at 2.) Accordingly, we treat LMPD and the Township as a single entity and grant Defendants' Partial Motion to Dismiss as to LMPD.

         Plaintiff alleges that she has worked for the Township for several years in various roles. (Doc. No. 9 ¶11-12.) She contends that “there have been numerous sexually charged rumors circulating throughout the police department . . . . [that] have contributed to creating a sexually hostile and gender discriminatory hostile work environment, ” (id. ¶15), that the Defendants have condoned or ignored, (id. ¶17). Plaintiff also argues that the Defendants were, or should have been, aware of the alleged discriminatory culture, (id. ¶¶17, 22). Plaintiff states that, when she spoke with “multiple police department supervisors about the ongoing rumors about her, ” (Doc. No. 13 at 6), they told her “‘that is how this place works, '” (Doc. No. 9 ¶18(s).)

         According to Plaintiff, LMPD conducted an investigation into whether Plaintiff was having an inappropriate relationship with another officer, (id. ¶18(g), (n)), and that, “[s]hortly thereafter, ” (id. ¶18(p)), LMPD transferred Plaintiff to a “less senior and less prestigious, ” (id. ¶18(p)), platoon, (id.), even though Plaintiff was told that “she had done nothing wrong, this was not a discipline matter and there were no policy violations, ” (id. ¶18(o)). In contrast, Plaintiff alleges, LMPD apparently did not discipline a male officer for having a relationship with a female subordinate, (id. ¶18(e)). Plaintiff seems to suggest that such reassignment was punitive, as she states that, in the past, other officers have “had their platoon assignments changed . . . [as a result of] performance deficiencies . . . .” (Id. ¶18(q).)

         Then, on April 3, 2018, Plaintiff reports that she “emailed a sexual harassment, discrimination and retaliation complaint to McGrath [and others] . . . .” (Id. ¶23.) On April 17, 2018, Plaintiff alleges that she “met with an investigator to discuss her complaint.” (Id. ¶24.) Plaintiff states that, on April 23, 2018 - after submitting and discussing with an investigator her complaint - she “received her first negative evaluation in her 10 years at LMPD.” (Id. ¶26.) Plaintiff claims that she then “filed a sexual harassment and retaliation complaint with the EEOC, ” (id. ¶31), and that LMPD was aware of the EEOC complaint on or before June 2018, (id.). Plaintiff reports that the Township and LMPD investigated the claims underlying her complaint. (Id. ¶32-37.) Plaintiff claims that, in the meeting where Defendants reviewed with Plaintiff the results of the investigation stemming from her complaint, “[Defendant] McGrath told Pepitone that she was being placed on a performance improvement plan . . . .” (Id. ¶38.)

         Analysis

         Jurisdiction

         Subject matter jurisdiction in this case is proper under 28 U.S.C. §§ 1331 and 1367. This Court has personal jurisdiction over the Defendants, as the Defendants have consented to personal jurisdiction in this forum by litigating the merits without contesting personal jurisdiction. Richard v. U.S. Airways, Inc., 2011 WL 248446, at *1 (E.D. Pa. Jan. 26, 2011) (“Personal jurisdiction is a right that may be waived . . . . a party may consent to personal jurisdiction if he or she ‘actually litigates the underlying merits . . . .'”). Plaintiff alleges - and Defendants do not contest in their Partial Motion to Dismiss the FAC - that Plaintiff has exhausted all administrative remedies under Title VII and the PHRA. (Doc. No. 9 ¶3.)

         Standard Under Fed.R.Civ.P. 8(a)(2)

         Rule 8(a)(2) states that “[a] pleading that states a claim for relief must contain . . . . a short and plain statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. Pro. 8(a)(2). See also Rosh v. Gold Standard Café at Penn, Inc., 2016 WL 7375014, at *2 (E.D. Pa. Dec. 19, 2016).

         Standard for Motions to Dismiss Under Fed.R.Civ.P. 12(b)(6) for Failure to State a Claim

         Under Rule 12(b)(6), “[t]he Court may grant a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6) if, ‘accepting all well-pleaded allegations in the complaint as true, and viewing them in the light most favorable to the plaintiff, plaintiff is not entitled to relief.'” Ballentine v. United States, 486 F.3d 806, 810 (3d Cir. 2007).

         In determining motions to dismiss for failure to state a claim, Courts should 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). See also Witasick v. Minnesota Mut. Life Ins. Co., 803 F.3d 184, 192 (3d Cir. 2015).

         To survive a motion to dismiss under 12(b)(6), the complaint must contain sufficient factual matter accepted as true “to state a claim that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 697 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Courts are to take as true all of the factual allegations in the complaint and the reasonable inferences that can be drawn from those facts. Witasick, 803 F.3d at 192; Ethypharm S.A. Fr. v. Abbott Laboratories, 707 F.3d 223, 225, n.1 (3d Cir. 2013).

         Lastly, Courts should disregard “legal conclusions and ‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements . . . .” Ethypharm, 707 F.3d at 231, n.14.

         Count I - Sexual Harassment Under Title VII and the PHRA Against the Township

         In their Partial Motion to Dismiss, Defendants do not seek dismissal of Count I. (Doc. No. 12-1; Doc. No. 12-2.) Thus, we do not address Count I.

         Count II - Sex Discrimination Under Title VII and the PHRA Against the Township

         I. Claim Under Title VII

         In their briefs, the parties misstate the standard applicable to a Title VII sex discrimination claim at the motion to dismiss stage. Instead, on a motion to dismiss under Rule 12(b)(6), a plaintiff bringing a Title VII sex discrimination claim need only plead “a short and plain statement showing a right to relief, ‘not a detailed recitation of the proof that will in the end establish such a right.'” Gavura v. Pennsylvania State House of Representatives, 55 Fed.Appx. 60, 63 (3d Cir. 2002) (“[A]n employment discrimination complaint need not include [specific facts establishing a prima facie case of discrimination under the framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ] and instead must contain only a short and plain statement of the claim showing that the pleader is entitled to relief.”) (alteration in original) (internal quotations omitted); Astle v. Elwyn, Inc., 2002 WL 32130103, at *1 (E.D. Pa. Dec. 20, 2002) (“Complaints in employment discrimination cases must satisfy Fed.R.Civ.P. 8(a), which requires only a short and plain statement showing a right to relief . . . . Thus, an employment discrimination complaint [alleging violations of Title VII] need not include specific facts establishing a prima facie case of discrimination.”).

         In Gavura, 55 Fed.Appx. 60, the Third Circuit held that when a female plaintiff on a motion to dismiss alleged discrimination stemming from: (1) receiving no benefits; (2) receiving a comparatively lower salary; and (3) facing a requirement to pay certain expenses out-of-pocket - while male employees did not face such ...


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