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holding that the plaintiff's complaint alleged that the employees aided and abetted the discrimination because the plaintiff complained about the harassment multiple times and was subjected to unfair retaliation
Summary of this case from Rosh v. Gold Standard Café at Penn, Inc.Opinion
CIVIL ACTION NO. 03-1620
March 30, 2004
MEMORANDUM AND ORDER
Plaintiff Deborah Carlton brings this civil rights action against Lt. Stephen Smyth, Captain Arthur Grover (collectively, the "individual defendants"), and the City of Philadelphia (the "City"). In the Amended Complaint, Plaintiff asserts claims against the City under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq, (Count I), against all Defendants under 42 U.S.C. § 1981 and 1983 (Count II), and against all Defendants under the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Cons. Stat. § 951 et seq. (Count III). Now before the Court is Defendants' Motion to Dismiss the Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons that follow, Defendants' Motion will be granted in part and denied in part.
I. Background
Viewed in the light most favorable to Plaintiff, the relevant facts are as follows. Plaintiff, a black female, is employed by the City as a Police Officer. (Am. Compl. at ¶ 4). She was assigned to the Police Academy of the Philadelphia Police Department in March of 1991. (Id. at ¶ 9). In 1999, Plaintiff filed a charge of race discrimination with the Equal Employment Opportunity Commission ("EEOC"). (Id. at ¶ 10). Her co-workers and supervisors were aware of her EEOC charge. (Id at ¶ 12).
In April 2000, Plaintiff began working in the Driver Training Unit, under the supervision of Defendant Smyth. (Id. at ¶ 11). Under his watch, Plaintiff received less desirable work assignments than other officers, was the only officer forced to work the 9:00 A.M. to 5:00 P.M. shift, and was subjected to "sick checks," i.e. police officers either drove by the residence or telephoned to determine whether an officer who had called in sick actually was home. (Id. at ¶¶ 13-15). In February of 2001, she complained twice in writing to Defendant Grover about intolerable working conditions, such as inappropriate language from her male colleagues. (Id. at ¶ 16).
In November of 2001, Plaintiff was informed that she was allowed only a 30 minute lunch, although no one else at the Police Academy followed this rule. (Id. at ¶¶ 17-18). In December of 2001, Plaintiff again complained to Captain Grover about disparate treatment. Two days later, she received an unsatisfactory performance evaluation. As a result, she did not receive a raise and was not eligible for transfer or promotion. (Id. at ¶ 22). Earlier in the year, Plaintiff had received an evaluation that rated her performance as satisfactory. (Id. at ¶ 23). She further complains that she was the only member of her unit who was not invited to their Christmas party. (Id. at ¶ 24).
Plaintiff filed a second EEOC charge of discrimination, based on retaliation, on February 2, 2002. (Id. at ¶ 2). On or about April 18, 2002, she complained in writing of a hosfile work environment, stating that she had been given assignments to teach on short notice without adequate time to prepare. (Id. at ¶ 30). On or about May 30, 2002, she received three charges of Conduct Unbecoming an Officer for unwillingness to cooperate with her co-workers and supervisors, repeated violations of departmental rules and regulations, and failure to properly patrol her beat. (Id. at ¶ 31). As a result of the disciplinary charges, she was involuntarily transferred to a patrol district. (Id. at ¶ 32). In January of 2003, she received notice of a five-day unpaid suspension. (Id. at ¶ 33). The instant action initially was filed on March 17, 2003 and the Amended Complaint was filed on April 4, 2003.
II. Legal Standard
When deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court may look only to the facts alleged in the complaint and its attachments. Jordan v. Fox, Rothschild. O'Brien Frankel. 20 F.3d 1250, 1261 (3d Cir. 1994). The Court must accept as true all well-pleaded allegations in the complaint and view them in the light most favorable to the plaintiff. Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d 939, 944 (3d Cir. 1985). A Rule 12(b)(6) motion will be granted only when it is certain that no relief could be granted under any set of facts that could be proved by the plaintiff. Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988).
III. Analysis
A. Exhaustion of Administrative Remedies
Defendants first argue that Plaintiff's Title VII and PHRA claims must be dismissed because she failed to attach to her Amended Complaint a valid right-to-sue letter from the EEOC. Before a complainant may bring suit under Title VII, she must file a charge with the EEOC and must obtain from the EEOC a notice of her right to sue in federal court. 42 U.S.C. § 2000e-5; Burgh v. Borough Council of Borough of Montrose, 251 F.3d 465, 470 (3d Cir. 2001). The federal court action must be commenced within 90 days of receipt of the right-to-sue letter. Id.
In the instant case, Plaintiff pled that she had exhausted her administrative remedies. She stated that she filed a charge with the EEOC on February 2, 2002 and that a right-to-sue letter was issued on or about December 17, 2002, thus rendering this action timely filed on March 17, 2003. (Am. Compl. at ¶ 2). This is sufficient to plead exhaustion. In Harley v. City of Philadelphia, 2003 WL 22597606, *2 (E.D. Pa. Nov. 4, 2003), the court held that it was not necessary for the plaintiff to attach the right-to-sue letter to the complaint because he asserted his right to institute suit and that the letter had been received. Accordingly, Plaintiff's Title VII claim will not be dismissed for failure to produce the right-to-sue letter.
Defendants also contend that Plaintiff's PHRA claim should be dismissed for the same reason. However, in interpreting the PHRA, Pennsylvania courts have held that when one year has elapsed after the filing of a charge with the Pennsylvania Human Relations Commission ("PHRC"), an aggrieved party may file suit in court even though she has received no notice from the PHRC. 43 Pa. Cons. Stat. § 962(c); Snyder v. Penn. Ass'n of School Retirees, 566 A.2d 1235, 1240 (Pa.Super. 1989). In this case, Plaintiff has alleged that she filed her charge with the PHRC on February 2, 2002, more than one year prior to the filing of this action, and has not asserted that she received notice. (Am. Compl. at ¶ 2). Thus, Plaintiff's PHRA claim will not be dismissed.
B. Punitive Damages Against the City under Title VII
In Count I of the Amended Complaint, Plaintiff requests punitive damages against the City. Defendants argue that punitive damages are not recoverable against a municipality under Title VII. Plaintiff has agreed to withdraw her demand for punitive damages on this Count. (Pl. Response at 7, n. 1). Accordingly, the demand for punitive damages will be stricken from Count I.
C. Statute of Limitations under Title VII
Defendants next argue that Plaintiffs claim of retaliation under Title VII is barred in part by the statute of limitations. Ordinarily, a statute of limitations defense cannot be raised in the context of a motion to dismiss. However, an exception is made where the complaint facially demonstrates noncompliance with the limitations period. Oshiver v. Levin, Fishbein, Sedran Berman, 38 F.3d 1380, 1384 n. 1 (3d Cir. 1994).
Under Title VII, a charge must be filed with the EEOC within 180 days of the occurrence of the allegedly unlawful employment practice. 42 U.S.C. § 2000e-5(e)(1). This time limitation is extended to 300 days in cases where the aggrieved party "initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice. . . ." Id. In this case, Plaintiff claims that she filed a charge with the EEOC on February 2, 2002, and that the charge was dual filed with the PHRC. Accordingly, Plaintiff had 300 days after the alleged act of discrimination in which to bring a claim with the EEOC.See McCarron v. British Telecom, 2002 WE 1832843, *11 (E.D. Pa. Aug. 7, 2002) (applying the 300-day limitations period when claims were dual filed with the PHRC and the EEOC).
Defendants argue that paragraphs 9 through 16 of the Amended Complaint, which reference events occurring prior to 300 days before the filing of the EEOC charge, i.e. prior to April 8, 2001, should be stricken. Plaintiff responds that incidents occurring prior to that date may be considered even though they fall outside the limitations period because they are part of a "continuing violation." The continuing violation doctrine "permit[s] employees or ex-employees to assert a claim for discriminatory acts which pre-date the limitations period on the theory that such acts constituted a pattern of discriminatory treatment which became apparent only in light of ensuing developments." Harley. 2003 WL 22597606 at *4. quoting Smith v. Holtz. 856 F. Supp. 227, 233 (M.D. Pa. 1994) (internal quotations omitted). To successfully present such a claim, a plaintiff must show that: (1) at least one discriminatory act occurred within the actual filing period, and (2) the discrimination did not consist of "isolated, intermittent acts of discrimination," but instead of a "persistent, ongoing pattern."Ryan v. General Machine Products, 277 F. Supp.2d 585, 592 (E.D. Pa. 2003), quoting West v. Philadelphia Elec. Co.. 45 F.3d 744, 754 (3d Cir. 1995).
In the Amended Complaint, Plaintiff alleges multiple violations occurring within the filing period. In addition, she has pled sufficient facts to support the inference that these violations were part of a pattern of harassment. The sheer number of incidents alleged across a substantial period of time leads to the conclusion that Plaintiff was subjected to persistent, as opposed to isolated, discrimination. See generally Am. Compl. Furthermore, these allegations involve conduct on the part of the same individuals over time. For example, Plaintiff alleges several acts of discrimination that occurred in the Driver Training Unit under the supervision of Defendant Smyth. See Am. Compl. at ¶¶ 13-19. Because it does not appear without question that Plaintiff can prove no set of facts in support of her claim that defendants' alleged discriminatory behavior was part of an ongoing practice or pattern, the Court will not dismiss the allegations contained in paragraphs 9 through 16 of the Amended Complaint.
Defendants further argue that because Plaintiff's February 2, 2002 charge with the EEOC was based upon retaliation rather than racial discrimination, Plaintiff is prohibited from raising any discrimination claims now. Defendants are correct that, generally, "the parameters of a civil action in the district court are defined by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Anjelino v. New York Times Co.. 200 F.3d 73, 94 (3d Cir. 1999). quoting Ostapowicz v. Johnson Bronze Co. 541 F.2d 394, 398-99 (3d Cir. 1976) (internal quotations omitted). However, at this stage of the proceedings, it is premature for the Court to determine the scope of the EEOC investigation. The Court does not have before it the charge filed with the EEOC or any accompanying papers, and therefore cannot conclude that Plaintiff failed to present her race discrimination claims or that such claims were not within the scope of the EEOC's investigation. Thus, the Court will not preclude Plaintiff from raising claims of racial discrimination at this time.
D. Retaliatory Conduct by the City of Philadelphia
Defendants argue that Plaintiff has not established retaliatory conduct on the part of the City. Under Title VII, it is unlawful for an employer to "discriminate against any [employee] . . . because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). To establish a claim of discriminatory retaliation, Plaintiff must show: (1) that she engaged in conduct protected by Title VII; (2) that her employer subsequently took adverse employment action against her; and (3) that there was a causal connection between the protected conduct and the employer's actions. Bianchi v. City of Philadelphia, 2002 WE 23942, *8 (E.D. Pa. Jan. 7, 2002); Nelson v. Upsala College. 51 F.3d 383, 386 (3d Cir. 1995).
Plaintiff's Amended Complaint alleges that she experienced racial harassment and disparate treatment in retaliation for filing a complaint with the EEOC in 1999. Am. Compl. at ¶ 35. Defendants submit that, because the Amended Complaint does not present evidence that there is a causal connection between Plaintiff's filing of charges and the alleged disparate treatment, her claim should be dismissed. Defendants have misconstrued the standard on a motion to dismiss. It is not necessary for Plaintiff to present evidence establishing every element of the alleged offense. Rather, Plaintiff need only provide "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Here, Plaintiff has more than adequately alleged a causal connection between her protected conduct and the City's actions. Accordingly, her retaliation claim will not be dismissed.
E. Claims under Section 1981
42 U.S.C. § 1981 provides that "[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . [including] the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship." 42 U.S.C. § 1981(a) and (b). Plaintiff alleges that she was denied similar terms, privileges and conditions of the contractual employment relationship as other employees. Defendants argue that Plaintiff's claims under § 1981 should be dismissed because 42 U.S.C. § 1983 provides the exclusive remedy for violations of § 1981 by state actors. Plaintiff responds that the § 1981 claims should be merged into the § 1983 claims rather than dismissed. In support of their contention, Defendants note that the circuits have split on this issue and that the Third Circuit has yet to confront the matter directly. There is also disagreement among courts within the Eastern District of Pennsylvania. The source of the confusion is whether the Supreme Court's decision in Jett v. Dallas Indep. School Dist., 491 U.S. 701 (1989), holding that § 1983 is the exclusive remedy for violations of § 1981 by state actors, survives the 1991 amendments to § 1981.
Section 1983 provides, "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . ." 42 U.S.C. § 1983.
After the Supreme Court decided Jett, Congress passed the Civil Rights Act of 1991, which amended § 1981 by adding subsection (c), providing that "[t]he rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law." The Ninth Circuit has held that this provision creates an implied right of action against state actors under § 1981.Federation of African American Contractors v. City of Oakland. 96 F.3d 1204, 1214 (9th Cir. 1996). The Fourth and Eleventh Circuits have held that § 1983 remains the exclusive remedy for violations of § 1981 by state actors. Dennis v. County of Fairfax. 55 F.3d 151, 156 (4th Cir. 1995); Johnson v. City of Fort Lauderdale, 903 F. Supp. 1520 (S.D. Fla. 1995), aff'd 114 F.3d 1089 (11th Cir. 1997). District courts within the Eastern District of Pennsylvania are divided on this issue. See Poli v. SEPTA, 1998 WL 405052, * 12 (E.D. Pa. July 7, 1998) (following the holding in Jett that § 1983 is the exclusive remedy for violations of § 1981): Watkins v. Penn. Bd. of Probation and Parole, et al., 2002 U.S. Dist. LEXIS 23504 (E.D. Pa. Nov. 25, 2002) (adopting the Ninth Circuit's view that there is a private right of action under § 1981).
In Miles v. City of Philadelphia, 1999 WL 274979 (E.D. Pa. May 5, 1999) (Waldman, J.), the District Court concluded that the Supreme Court's holding in Jett is still good law despite the 1991 amendments, and that there is no private right of action under § 1981. Id. at *5. Defendants' reliance on Miles is misplaced, however. In that case, the Court merged the § 1981 claims into the § 1983 claims, making the right of action under § 1983 the vehicle for asserting substantive violations of § 1981.
Although Defendants are correct that the Third Circuit has not explicitly addressed the effect of the 1991 amendments to § 1981, it recently stated in a non-precedential opinion, "[t]he Court has ruled 'that the express action at law provided by § 1983 . . . provides the exclusive federal damages remedy for the violation of the rights guaranteed by § 1981 when the claim is pressed against a state actor.'" Oaks v. City of Philadelphia, 59 Fed. Appx. 502, 503 (2003) (citing Jett, 491 U.S. at 735-36). Thus, it appears that the Third Circuit is of the view that Jett survived the 1991 amendments. This Court will adopt the logic of Judge Waldman in Miles and the Third Circuit in Oaks. Accordingly, Plaintiff's § 1981 claims will be merged with her § 1983 claims, but will not be dismissed.
F. Statute of Limitations under Section 1983
Defendants argue that Plaintiff's claims under § 1983 are time-barred to the extent that she seeks to recover for employment actions arising prior to March 17, 2001. Because § 1983 does not contain its own statute of limitations, courts look to the forum state's statute of limitations for personal injury torts. Genty v. Resolution Trust Corp.. 937 F.2d 899, 919 (3d Cir. 1991). Under Pennsylvania law, most intentional tort claims are governed by a two-year statute of limitations. 42 Pa. Cons. Stat. § 5524. The limitations period begins to run when the plaintiff knows or has reason to know of the injury that forms the basis of the § 1983 action. Genty. 937 F.2d at 919.
Plaintiff concedes that a two-year statute of limitations applies to her claims. (Pl. Response at 7). However, she again argues that actions occurring outside the limitations period may nonetheless be considered because they are part of a "continuing violation." The Court may grant a motion to dismiss claims as time-barred only when the complaint facially demonstrates noncompliance with the statute of limitations. See Oshiver. 38 F.3d at 1384 n. 1. As discussed supra in Section C, the Court cannot conclude from the face of the Amended Complaint that there is no set of circumstances under which Plaintiff could prove that Defendants' alleged discriminatory behavior was part of an ongoing practice or pattern. Thus, the § 1983 claims will not be dismissed as time-barred at this time.
G. Section 1983 Claims Against the Individual Defendants
Defendants next argue that Plaintiff's § 1983 claims should be dismissed as to the individual defendants because she has not adequately alleged their direct involvement in the discriminatory activity. It is well-established that liability cannot lie in a § 1983 action absent personal involvement on the part of the defendant. Robinson v. City of Pittsburgh. 120 F.3d 1286, 1294 (3d Cir. 1997), citing Rode v. Dellarciprete. 845 F.2d 1195, 1207 (3d Cir. 1988). Respondeat superior generally is insufficient to show personal involvement. Id. However, a supervisor can be liable for the actions of a subordinate if he or she had actual knowledge of and acquiesced in the subordinate's unlawful acts. Id
With regard to Defendant Smyth, Defendants claim that Plaintiff "does not allege any facts with which defendant Smyth was directly involved that occurred within the applicable statute of limitations period for § 1983 claims." (Motion to Dismiss at 9). The Court has already determined that it would be premature to rule on the statute of limitations issue. Thus, the Court will consider the allegations of events occurring prior to March 17, 2001 in determining whether Plaintiff adequately has stated a claim. In her Amended Complaint, Plaintiff claims that Defendant Smyth gave her less desirable work assignments than other personnel in retaliation for filing a charge with the EEOC. Am. Compl. at ¶ 13. This would be sufficiently direct involvement to withstand a motion to dismiss.
In February of 2001, Plaintiff complained to Defendant Grover about intolerable working conditions as the only female among approximately fifteen male officers. Am. Compl. at ¶ 16. She also complained to him in December of 2001 and two days later received a performance evaluation rating her work as unsatisfactory. Id at ¶ 22. Plaintiff did not specify the substance of that complaint or who was responsible for issuing the performance evaluation. In February of 2002, Plaintiff was interviewed by Captain Grover regarding discipline of recruits on the driving course and he denied her request to audiotape disciplinary related interviews. Id. at ¶ 25. Finally, in April of 2002, she requested to speak to Captain Grover and was informed that she would first have to go through the chain of command and speak with Corporal Sidorski. Id. at ¶ 29.
The Court concludes that Plaintiff has sufficiently pled the personal involvement of Defendant Grover for purposes of a motion to dismiss. Taking the facts alleged and all reasonable inferences therefrom to be true, as the Court must on a motion to dismiss, it is possible for Plaintiff to recover on the theory that Defendant Grover knew of and acquiesced in repeated violations of her federal constitutional and statutory rights. The facts support the inference that, because Plaintiff was forced to complain several times about the same behavior, Defendant Grover was aware that this behavior was occurring and failed to take action to prevent it. Accordingly, Plaintiff's § 1983 claims against Defendant Grover will not be dismissed.
H. Municipal Liability under Section 1983
Defendants argue that Plaintiff has failed adequately to allege municipal liability as required by § 1983. Under that Section, "[t]he City, as a municipality, is not liable through respondeat superior for the constitutional torts of its employees." Robinson. 120 F.3d at 1295 (citing Monell v. Dept. of Social Services. 436 U.S. 658 (1978)). Rather, "[m]unicipal liability attaches only 'when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury' complained of." Id. (quoting Monell. 436 U.S. at 694). Defendants assert that Plaintiff's claim should be dismissed because she has not identified an impermissible policy or custom or the person responsible for instituting such a policy. (Motion to Dismiss at 14). They also note that she has not alleged a causal relationship between the impermissible municipal policy or custom and the constitutional injury suffered. (Id. at 17).
The Supreme Court has held that plaintiffs asserting claims based on municipal liability need only meet the requirements of notice pleading under Fed.R.Civ.P. 8(a)(2) and are not required to plead specific facts with particularity. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit. 507 U.S. 163, 168 (1993). All that is required under the Federal Rules of Civil Procedure is a "short and plain statement of the claim" sufficient to put the defendant on notice of what the claim is and the grounds on which it rests. Chester v. Fredericksdorf, 2001 WL 1198663, *1 (E.D. Pa. Oct. 10, 2001). However, "the Court need not credit a complaint's 'bald assertions' or 'legal conclusions' when deciding a motion to dismiss." Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997) (citations omitted).
Even under the liberal pleading standard described above, the Court finds Plaintiffs Amended Complaint to be insufficient. Plaintiff alleges that:
1. Defendant City engaged in misconduct arising from its impermissible racial animus in its customs or policies;
2. The misconduct "was caused by a custom or policy;"
3. An official who has the power to make policy is responsible for either the affirmative proclamation of a policy or acquiescence in a well-settled custom;
4. A decision-maker possessing final authority to establish municipal authority with respect to the action has issued an official proclamation, policy, or edict; and
5. Defendant City's course of conduct is considered to be a 'custom' when, though not authorized by law, its practices of its officials are so permanent and well-settled as to virtually constitute law.
Am. Compl. at ¶ 39. These conclusory allegations are too vague and ambiguous to properly state a claim. Defendants cannot be expected to defend against such accusations, as it is impossible to determine what policy or custom is being called into question and who is allegedly responsible for instituting it. Courts in this district have routinely dismissed complaints containing conclusory and vague allegations of a municipal policy or custom. See, e.g. Berthesi v. Pennsylvania Bd. of Probation. 246 F. Supp.2d 434, 439 (E.D. Pa. 2003) (dismissing complaint with prejudice because plaintiff did not identify a municipal policy or custom or a municipal agent with the authority to create such policy);Richardson-Freeman v. Norristown Area School Dist., 2000 WL 1751062, *1-2 (E.D. Pa. Nov. 28, 2000) (dismissing second amended complaint for failing to identify a policy or custom that resulted in the violations alleged). Even accepting every fact alleged in Plaintiff's Amended Complaint as true, Plaintiff would not be entitled to relief against the City under § 1983. Accordingly, that portion of Count II asserting claims against the City will be dismissed, with leave to amend the Amended Complaint to plead this claim with sufficient specificity within thirty days of the date of this Memorandum and Order if Plaintiff is able responsibly to do so.
I. Punitive Damages under Section 1983
Defendants next argue that Plaintiff's demand in Count II for punitive damages should be dismissed because punitive damages are unavailable in actions under § 1983 against a municipality or against local officials in their official capacities. Defendants are correct that punitive damages may not be granted against a municipality, see Bolden v. Southeastern Penn. Transp. Auth., 953 F.2d 807, 830 (3d Cir. 1991), and that actions against government employees in their official capacities "generally represent only another way of pleading an action against an entity of which an officer is an agent."Hafer v. Melo, 502 U.S. 21, 25 (1991). However, Count II does not assert claims against the individual defendants in their official capacities. It simply requests "punitive damages against Defendants Grover and Smyth." Am. Compl. at p. 8. To the extent that Plaintiff demands punitive damages against the individual defendants in their personal capacities, such damages are recoverable in actions under § 1983. Kentucky v. Graham. 473 U.S. 159, 167 n. 13 (1985). Accordingly, the demand for punitive damages in Count II will not be dismissed.
J. Plaintiff's PHRA Claim Against the Individual Defendants
Finally, Defendants argue that Plaintiff has failed to state a PHRA claim against the individual defendants. The definition of "employer" under the core provision of the PHRA does not include individual employees. 43 Pa. Cons. Stat. §§ 954(b) (c) and § 955(a); Dici v. Commonwealth of Pennsylvania. 91 F.3d 542, 552 (3d Cir. 1996). However, a different section of the PHRA contemplates individual liability. Section 955(e) forbids "any person, employer, employment agency, labor organization or employee, to aid, abet, incite, compel, or coerce the doing of any act declared by this section to be an unlawful discriminatory practice. . . ." 43 Pa. Cons. Stat. § 955(e). Direct incidents of harassment are not covered by § 955(e). Dici. 91 F.3d at 552-53. Only supervisory employees, not co-workers, may be held liable under § 955(e), on the theory that only the former can share the discriminatory purpose and intent of the employer that is required for aiding and abetting. Bacone v. Philadelphia Housing Auth.. 2001 WL 748177, *2 (E.D. Pa. June 27, 2001).
Defendants argue that Dici dictates the Court's decision in the instant case. In Dici. the court granted summary judgment in favor of one defendant because the plaintiff had failed to allege facts indicating that the defendant aided or abetted the employer in refusing to take prompt remedial action against discrimination suffered by the plaintiff.Dici. 91 F.3d at 552-53. However, the Dici court refused to grant summary judgment as to the other defendant, the plaintiff's supervisor, because the plaintiff had sufficiently alleged that this defendant knew of discriminatory behavior and refused to take prompt action to end it. Id. at 553.
The Court first notes that the case at bar is not before the Court on summary judgment, but rather on a motion to dismiss. Plaintiff has sufficiently pleaded claims under § 955(e). Both Defendants Grover and Smyth were supervisory employees. Am. Compl. at ¶¶ 11, 28. Further, Plaintiff alleges that she complained to Defendant Grover on multiple occasions about intolerable working conditions. Id. at ¶ 16. She also claims that, under Defendant Smyth's supervision, she was subjected to unfair "sick checks" in retaliation for having filed EEOC charges. Id. at ¶ 14. These allegations, if taken to be true, could sustain a claim for aiding and abetting under the PHRA. Accordingly, Plaintiffs PHRA claims against the individual defendants will not be dismissed.
IV. Conclusion
Plaintiffs demand in Count I for punitive damages against the City will be stricken. Her claim in Count II against the City under § 1983 will be dismissed with leave to amend the Amended Complaint to plead this claim with sufficient specificity within thirty (30) days of the receipt of this Memorandum and Order. Plaintiffs claims under 42 U.S.C. § 1981 will be merged with her claims under 42 U.S.C. § 1983. Defendants' Motion to Dismiss will be denied on all other grounds. An appropriate Order follows.
ORDER
AND NOW, this day of March, 2004, upon consideration of Defendants' Motion to Dismiss Plaintiff's Amended Complaint (docket no. 7) and Plaintiff's response thereto (docket no. 8), and for the reasons stated in the accompanying Memorandum, it is ORDERED that the Motion is GRANTED IN PART and DENIED IN PART. Accordingly,
1. Plaintiff's demand in Count I for punitive damages against the City is STRICKEN.
2. Plaintiff's claim in Count II against the City of Philadelphia is DISMISSED WITHOUT PREJUDICE. Plaintiff is given leave to amend the Amended Complaint to plead this claim with sufficient specificity within thirty (30) days of the receipt of this Order.
3. Plaintiff's claims under 42 U.S.C. § 1981 will be merged with her claims under 42 U.S.C. § 1983.
4. On all other grounds, the Motion is DENIED.