United States District Court, E.D. Pennsylvania
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.
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.
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).)
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).)
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 . . . .”
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.)
Under Fed.R.Civ.P. 8(a)(2)
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).
for Motions to Dismiss Under Fed.R.Civ.P. 12(b)(6) for
Failure to State a Claim
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
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).
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.
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.
I - Sexual Harassment Under Title VII and the PHRA
Against the Township
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.
II - Sex Discrimination Under Title VII and the PHRA
Against the Township
Claim Under Title VII
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
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 ...