KAMARA v. ROSEMONT COLLEGE et al

Filing 5

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE HARVEY BARTLE, III ON 3/31/14. 4/1/14 ENTERED AND COPIES MAILED AND E-MAILED.(va, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
WILHEMINA A. KAMARA
v.
ROSEMONT COLLEGE, et al.

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CIVIL ACTION

NO. 14-1176

MEMORANDUM
Bartle, J.

March 31, 2014
Plaintiff Wilhemina A. Kamara has sued her former

employer Rosemont College ("College") where plaintiff maintains
she had been a Resident Coordinator, as well as four current or
former employees of the College.1
counts:

The complaint contains three

(1) "wrongful retaliatory termination;" (2) "gender

discrimination;" and (3) "violation of Sixth Amendment right."
The defendant has moved under Rule 12(b)(6) of the
Federal Rules of Civil Procedure to dismiss the complaint on the
ground that plaintiff has failed to state any claims upon which
relief can be granted.2

All the claims revolve around her

1. The individual defendants are: Dr. Sharon Hirsh, the
President of Rosemont College; Jane Federowicz, the College's
Assistant Vice-President for Human Resources; Mary Beth Tsikalas,
the College's former Vice-President of Finance and
Administration; and Lee Plenn, the former Director of Residence
Life and Assistant Dean.
2. Plaintiff originally filed her action in the Superior Court
of New Jersey where defendant removed it to the United States
District Court for the District of New Jersey. Judge Joel Pisano
thereafter transferred the action to this District on the ground
that all claims and underlying events involved her employment at
(continued...)

employment at Rosemont College in Rosemont, Pennsylvania.
According to the complaint, the events in issue took place in
late 2010 and into the summer of 2011.
on July 28, 2011.

Plaintiff was terminated

The reasons given were "inappropriate and

unwelcomed touching of students," "inappropriate and
unprofessional communication with students" and "pervasive lack
of confidence in staff you supervise."

As far as can be

determined, she was an at-will employee.
The First Count of the complaint is entitled "Wrongful
Retaliatory Termination."

It appears from its wording to be a

common law count for wrongful termination in violation of
Pennsylvania public policy.

With certain narrow exceptions,

Pennsylvania does not recognize such a claim for an at-will
employee such as plaintiff.

Only where the firing violates a

clear public policy "articulated in the constitution, in
legislation, an administrative regulation, or a judicial
decision" will a plaintiff state a claim.

Hunger v. Grand Cent.

Sanitation, 670 A.2d 173, 175 (Pa. Super. Ct. 1996).

All

plaintiff alleges is that she made a complaint to her supervisor
about the Resident Assistant staff and another complaint that a
co-worker's complaint, in her view, was handled unfairly.

Even

assuming that she was fired in retaliation for her actions in

2. (...continued)
Rosemont College and her subsequent termination, all of which
occurred in Pennsylvania. Kamara v. Rosemont College, et al.,
No. 13-4459 (D. N.J. Feb. 26, 2014) (order granting transfer to
E.D. Pa.).
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this regard, no public policy of Pennsylvania is implicated so as
to give rise to a common law cause of action.
These allegations are a far cry from claims that have
been recognized in Pennsylvania as a violation of public policy.
The Pennsylvania Supreme Court, for example, has allowed a claim
where an employee was fired for serving on a jury and where an
employee was terminated for exercising his right under the
Pennsylvania Workers' Compensation Act.

Shick v. Shirey, 716

A.2d 1231 (Pa. 1998); Reuther v. Fowler & Williams, Inc., 386
A.2d 119 (Pa. Super. Ct. 1978).
In Kroen v. Bedway Security Agency, Inc., 633 A.2d 628
(Pa. Super. Ct. 1993), the Superior Court of Pennsylvania also
upheld a cause of action for discharge of any employee for
refusal to take a polygraph test which was prohibited under
Pennsylvania law.

Likewise, an employee had a valid claim when

he was fired for reporting a nuclear safety violation which he
was required to do under federal law.

Field v. Philadelphia

Elec. Co., 565 A.2d 1170 (Pa. Super. Ct. 1989).

Plaintiff's

complaints to her employer, even if she was fired for making
them, do not implicate any "clear mandate of public policy" of
the Commonwealth.

Kroen, 633 A.2d at 633.

It is also important to note that Pennsylvania will not
recognize a common law claim for wrongful discharge where
specific statutory remedies are available for claims such as sex
discrimination.

Weaver v. Harpster, 975 A.2d 555, 567 (Pa.

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2009); Jacques v. Akzo Int'l Salt, Inc., 619 A.2d 748, 753 (Pa.
Super. Ct. 1993).
Plaintiff titles the Second Count of her complaint as
"Gender Discrimination."

She alleges violations of the New

Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-12 and
"Title VII of Pennsylvania."

We will assume she means to

reference both Title VII of the Civil Rights Act of 1964, 42
U.S.C. 2000e, and the Pennsylvania Human Relations Act, 43 Pa.
Cons. Stat. Ann. § 951.
First, there is no valid claim under the New Jersey
law.

The alleged discrimination and retaliation in issue here

all took place at Rosemont College in Pennsylvania.
was not employed by a college in New Jersey.

Plaintiff

See Devine v.

Apollo Health St., Inc., Civil Action No. 09-3039, 2010 U.S.
Dist. LEXIS 41659 *6 (E.D. Pa. Apr. 26, 2010).
Nor does plaintiff have a valid claim under Title VII.
Prior to bringing suit, she was required to have filed an
administrative charge with the federal Equal Employment
Opportunity Commission ("EEOC") within 300 days of the alleged
discriminatory or retaliatory act if she initially filed a
parallel proceeding with the Pennsylvania Human Relations
Commission or otherwise within 180 days.

No administrative

charge was ever filed with the EEOC, and it is now too late since
she was terminated from her job on July 28, 2011.

42 U.S.C.

§ 2000e-5(e)(1); Watson v. Eastman Kodak Co., 235 F.3d 851, 854
(3d Cir. 2000).

Because she does not allege that she ever filed
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a charge with the EEOC, this court lacks subject matter
jurisdiction over her Title VII claims.

Alexander v. Gardner-

Denver Co., 415 U.S. 36, 47 (1974); Trevino-Barton v. Pittsburgh
Nat'l Bank, 919 F.2d 874, 878 (3d Cir. 1990).

Furthermore, Title

VII does not provide a remedy against the four individuals who
are current or former employees of Rosemont College.

Dici v.

Commw. of Pennsylvania, 91 F.3d 542, 552 (3d Cir. 1996).
In addition, plaintiff has not alleged that she ever
filed an administrative discharge claim within 180 days of the
wrongful conduct as required under the Pennsylvania Human
Relations Act.

Failure to do so precludes any judicial remedies

under the Act.

Woodson v. Scott Paper Co., 109 F.3d 913, 925 (3d

Cir. 1997).
Finally, plaintiff makes a claim against defendants
under the Sixth Amendment to the Constitution in the Third Count
of her complaint.

The Sixth Amendment provides:

In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public
trial, by a impartial jury of the State and
district wherein the crime shall have been
committed, which district shall have been
previously ascertained by law, and to be
informed of the nature and cause of the
accusation; to be confronted with the
witnesses against him; to have compulsory
process for obtaining witnesses in his favor,
and to have the Assistance of Counsel for his
defence.
This provision of the Constitution applies to criminal
prosecutions and has no relevance in a civil lawsuit against
private entities or persons who are sued here.

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Accordingly, the motion of defendants to dismiss
plaintiff's complaint will be granted as to Counts One and Three
as well as to the claim under Count Two for violation of the New
Jersey Law Against Discrimination pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure.

The claim under Title VII

and the Pennsylvania Human Relations Act will be dismissed for
lack of subject matter jurisdiction under Rule 12(b)(1).

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