MILLER v. KUTZTOWN UNIVERSITY et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE LAWRENCE F. STENGEL ON 12/10/2013. 12/12/2013 ENTERED AND COPIES E-MAILED.(kp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
KUTZTOWN UNIVERSITY and
DR. ROBERT REYNOLDS,
December 10, 2013
This is a civil rights action brought under Title IX against Defendant Dr. Robert
Reynolds and his employer Kutztown University. The plaintiff, a former Kutztown
student, alleges that Dr. Reynolds sexually harassed her while serving as her academic
advisor. Dr. Reynolds moves to dismiss the counts against him. For the foregoing
reasons, I will deny Dr. Reynolds’s motion to dismiss and allow the case to proceed
In January 2010, the plaintiff transferred to Kutztown University (Kutztown). In
June 2011, she was accepted as an undergraduate honors student into the General Studies
Major with her individualized program of study focusing on Pennsylvania German
Family History Research. Defendant Dr. Robert Reynolds, a professor and Executive
Director of the Pennsylvania German Cultural Heritage Center (PGCHC) at Kutztown,
was assigned to be the plaintiff’s academic advisor at that time. As part of her
individualized program, the plaintiff was required to work closely with Dr. Reynolds and
the PGCHC. Dr. Reynolds was the instructor for much of the plaintiff’s individualized
In July 2011, Dr. Reynolds allegedly began to make uninvited and unwanted
sexually-offensive remarks and advances towards the plaintiff.2 The plaintiff objected to
these unwanted advances, but Dr. Reynolds continued his advances. In September 2011,
during a PGCHC-sponsored event, Dr. Reynolds allegedly made several sexualized
comments about the plaintiff in the presence of his male colleagues. Additionally, during
a meeting at his home, Dr. Reynolds allegedly groped and kissed the plaintiff without her
consent. Dr. Reynolds then allegedly threatened to commit suicide if the plaintiff reported
him and threatened to sabotage her academic career if she did not give in to his sexual
In January 2012, the plaintiff requested a new academic advisor because of Dr.
Reynolds’s persistent sexual harassment and the severe emotional distress it caused her.
On January 22, 2012, the plaintiff and her husband sent an email to Dr. Reynolds
informing him of her request for a new advisor and demanding that he cease further
contact with the plaintiff. On January 23, 2012, the plaintiff and her husband contacted
As a result of their advisor-advisee relationship, Dr. Reynolds became aware that the plaintiff had suffered
emotional trauma from a childhood assault. Though not entirely clear from the pleadings, it appears to be of some
relevance to the plaintiff’s claims.
For example, Dr. Reynolds frequently told the plaintiff she was “hot” and “sexy” and that “they were going to be
lovers.” Dr. Reynolds also asked the plaintiff to have sex with him on several occasions and to stay at his home
while his family was on vacation in order to “have sex.” The plaintiff alleges that Dr. Reynolds sent her “hundreds
of unsolicited text messages, many of which included sexualized remarks.” Am. Compl. at ¶¶ 17-21. He also
allegedly told her he “loved her” and “it was her fault.” He allegedly suggested they share a hotel room during field
trips. Id. at ¶ 26.
Kutztown to inform them of Dr. Reynolds’s sexual harassment.3 Kutztown failed to
investigate the allegation and undertake remedial action.
Thereafter, the plaintiff claims that the defendants “commenced a campaign of
retaliation” against her by: excluding her from a lecture series which she helped organize,
preventing her from meeting with the visiting scholar to procure research for a paper
presentation at an academic conference, revoking her Pennsylvania German Heritage
Center Library privileges, and excluding her from participating in any PGCHC events.4
In February 2012, Edward Quinter, a professor of German Studies, refused to work with
the plaintiff on an honors research project, after previously promising his assistance.
As a result of this retaliation, the plaintiff was forced to withdraw from her
academic program in March 2012. In April 2012, the plaintiff registered another
complaint with Kutztown about Dr. Reynolds’s behavior and the failure of Kutztown
staff to investigate the previous complaint. Kutztown subsequently investigated her
complaint and found that Dr. Reynolds did, in fact, act “inappropriately.” Nonetheless, no
disciplinary action against him was taken.
The plaintiff further claims this retaliation is ongoing because she has been
deprived of opportunities for awards and scholarships, thereby adversely affecting her
career opportunities. In July 2012, Kutztown revoked the plaintiff’s invitation to a
previously scheduled campus visit from the German Ambassador to the United States. On
Specifically, the plaintiff and her husband contacted John Green, Associate Vice President of University
Advancement, who forwarded the complaint to Jason Ketter, Executive Director, and Jesus Pena, Associate Vice
President of Equity and Compliance. Am. Compl. at ¶ 30.
This included events at which Dr. Reynolds was not a participant. See Am. Compl. at ¶¶ 33-39.
June 30, 2013, the plaintiff was told by Dr. David Valuska, an emeritus professor of
history and the President of the PGCHC Advisory Board, that he would not assist her
with her honors research project because he did not want to have anything to do with her
since he “had been told [she] was in trouble with the University.”5 On October 15, 2013,
the plaintiff received an email from Robert Watrous, Associate Vice Provost, informing
her that she was not permitted to participate in co-curricular activities.
Subsequently, the plaintiff filed this suit claiming: 1) a violation of Title IX
against Kutztown University for retaliation (Count I), 2) assault and battery against Dr.
Reynolds (Count II), and 3) intentional infliction of emotional distress against Dr.
Reynolds (Count III).6 The plaintiff seeks compensatory and punitive damages along with
fees and costs.7 In response Dr. Reynolds filed a motion to dismiss Counts II and III
under Rule 12(b)(6).8
STANDARD OF REVIEW UNDER 12(b)(6)9
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure
for failure to state a claim upon which relief can be granted examines the legal
See Am. Compl. at ¶ 44.
The original complaint was filed on July 10, 2013. Since the claims against both defendants involve the same
nucleus of operative facts, the defendants have been joined in this same suit. After being ordered to respond, the
defendants each filed a motion to dismiss under Rule 12(b)(6). In response, the plaintiff filed an amended complaint.
The plaintiff seeks punitive damages from Dr. Reynolds only.
Both defendants have filed a motion to dismiss the amended complaint under Rule 12(b)(6). Because the claims
against each differ, their arguments as to why these claims should be dismissed under Rule 12(b)(6) also differ. For
the sake of clarity, I have addressed each defendant’s motion with its own memorandum.
This court has jurisdiction to hear this case under 28 U.S.C. §§ 1331 and 1391 because the plaintiff’s claims are
substantively based in Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq. This court has
supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367.
sufficiency of the complaint.10 Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The factual
allegations must be sufficient to make the claim for relief more than just speculative.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In determining whether to
grant a motion to dismiss, a federal court must construe the complaint liberally, accept all
factual allegations in the complaint as true, and draw all reasonable inferences in favor of
the plaintiff. Id.; see also D.P. Enters. v. Bucks County Cmty. Coll., 725 F.2d 943, 944
(3d Cir. 1984).
The Federal Rules of Civil Procedure do not require a plaintiff to plead in detail all
of the facts upon which he bases his claim. Conley, 355 U.S. at 47. Rather, the Rules
require a “short and plain statement” of the claim that will give the defendant fair notice
of the plaintiff’s claim and the grounds upon which it rests. Id. The “complaint must
allege facts suggestive of [the proscribed] conduct.” Twombly, 550 U.S. at 564. Neither
“bald assertions” nor “vague and conclusory allegations” are accepted as true. See Morse
v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997); Sterling v. Southeastern
Pennsylvania Transp. Auth., 897 F. Supp. 893 (E.D. Pa. 1995).
The claim must contain enough factual matters to suggest the required elements of
the claim or to “raise a reasonable expectation that discovery will reveal evidence of”
those elements. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)
(quoting Twombly, 550 U.S. at 556). A court “may dismiss a complaint only if it is clear
In deciding a motion to dismiss, the court should consider the allegations in the complaint, exhibits attached to the
complaint, and matters of public record. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d
1192, 1196 (3d Cir. 1993). The court may also consider “undisputedly authentic” documents when the plaintiff's
claims are based on the documents and the defendant has attached copies of the documents to the motion to dismiss.
that no relief could be granted under any set of facts that could be proved consistent with
the allegations.” Brown v. Card Service Center, 464 F.3d 450, 456 (3d Cir. 2006)(quoting
Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).
A. Sovereign Immunity
Dr. Reynolds argues that Counts II and III, against him individually, should be
dismissed because he is entitled to sovereign immunity. Whether Dr. Reynolds is entitled
to sovereign immunity is a matter of state law. See Brumfield v. Sanders, 232 F.3d 376,
380 (3d Cir. 2000). Under Pennsylvania law, the Commonwealth and its employees
“acting within the scope of their duties, shall continue to enjoy sovereign immunity and
official immunity and remain immune from suit” unless the legislature has specifically
waived immunity.11 1 Pa. C.S. § 2310.
If an employee acts outside the scope of his duties, he is not entitled to sovereign
immunity. In Pennsylvania, “scope of employment” is determined according to whether
an employee’s actions were: 1) of the kind an employee is expected to perform; 2)
substantially within authorized time and space limits; and 3) intended, at least in part, to
serve one’s employer. Brumfield, 232 F.3d at 380, citing Restatement (Second) of
There are nine legislatively created exceptions to immunity: 1) vehicle liability; 2) medical/professional liability;
3) care, custody, or control of personal property; 4) Commonwealth real estate, highways, and sidewalks; 5)
potholes and other dangerous conditions; 6) care, custody, and control of animals; 7) liquor store sales; 8) National
Guard activities; and 9) toxoid and vaccines. 42 Pa. C.S. § 8522(b). None of these exceptions apply in this case.
However, whether an employee is entitled to immunity within the statutory definition is a separate inquiry from
whether his actions fall within the exceptions.
Agency § 228(1) (1958).12 If force is intentionally used by an employee, such use of
force would be expected by an employer in order for an employee to fulfill his
employment duties. Restatement (Second) of Agency § 228(1) (1958). See also Gerhart
v. Com. of Penn., No. 09–cv–1145, 2009 WL 2581715, at *8-9 (E.D. Pa. Aug. 13,
2009)(discussing Strothers v. Nassan, No. 08–1624, 2009 WL 976604, at *7 (W.D.Pa.
Apr. 9, 2009)).
Dr. Reynolds’s employment as a professor at a state university would make him an
employee within the statutory definition. See Ismael v. Ali, 276 Fed.Appx. 156, 158 (3d
Cir. 2008)(finding that professors at state universities are employees entitled to sovereign
immunity). However, there is no question that allegations of sexual assault and battery
would not fall within the duties of his position as a history professor.13 Given that the
plaintiff has plausibly argued that the alleged assault and battery would not fall within Dr.
Reynolds’s duties as an academic advisor, the plaintiff has met her burden in overcoming
a motion to dismiss on this issue.
See also Butler v. Flo–Ron Vending Co., 557 A.2d 730, 736 (Pa. Super. Ct. 1989) (adopting scope of employment
definition in § 228); Johnson v. Knorr, No. 01–3418, 2005 WL 3021080, at *8 n. 5 (E.D.Pa. Oct. 31, 2005) (rev'd on
other grounds); Aliota v. Graham, 984 F.2d 1350, 1359 (3d Cir.1993).
Dr. Reynolds argues that these actions are within the scope of his employment because they took place at work
events or were related to his position as the plaintiff’s advisor. To argue that he would be immune from the legal
ramifications of kissing and touching the plaintiff in a sexually harassing way simply because these actions took
place during a work meeting stretches the bounds of immunity beyond which it was intended.
See Kintzel v. Kleeman, No. 3:13cv163, 2013 WL 4498969, at *3 (M.D.Pa. Aug 19, 2013)(“it is without question
that the sexual assault and battery that is the basis of plaintiff's complaint is not within the scope of defendant's
employment…. It is not the sort of conduct he is employed to perform, and it is not actuated in any way to serve the
Commonwealth.”); Fitzgerald v. McCutcheon, 410 A.2d 1270, 1272 (Pa. Super. Ct. 1979)(“If an assault is
committed for personal reasons or in an outrageous manner, it is not actuated by an intent of performing the business
of the employer and is not done within the scope of employment.”)(citations omitted).
Furthermore, what constitutes the “scope of employment” for a particular position
is typically a question of fact intended to be decided by a jury and should not be decided
on a motion to dismiss when the plaintiff’s claim has some merit. Butler, 557 A.2d at
736. See also Brown v. Lewis, 865 F.Supp.2d 642, 649 (E.D.Pa. 2011)(denying a motion
to dismiss when plaintiff made plausible arguments civil rights violations were not within
the scope of employment). For these reasons, Dr. Reynolds’s sovereign immunity
argument has no merit.
B. Count III – Intentional Infliction of Emotional Distress
Dr. Reynolds also argues that Count III (Intentional Infliction of Emotional
Distress) is inadequate to state a claim. To sufficiently plead a claim for Intentional
Infliction of Emotional Distress (IIED) under Pennsylvania law, a plaintiff must
demonstrate that a person intentionally or recklessly caused her severe emotional distress
through “extreme or clearly outrageous” conduct. Andrews v. City of Phila., 895 F.2d
1469, 1486-87 (3d Cir. 1990)(citing Cox v. Keystone Carbon, 861 F.2d 390, 395 (3d
Cir.1988)). See Manley v. Fitzgerald, 997 A.2d 1235, 1241 (Pa. Cmwlth. 2010). In order
for sexual harassment to rise to the requisite level of outrageousness to make out such a
claim, the harassment must be coupled with retaliatory actions for turning down sexual
propositions. Andrews, 895 F.2d at 1487.
Accepting the plaintiff’s allegations in her complaint as true for the purpose of this
motion, the plaintiff’s complaint establishes the required elements to make out a prima
facie claim of IIED. Dr. Reynolds’s unwanted sexual advances could plausibly be
considered sexual harassment; the resulting prohibitions placed on the plaintiff’s
academic study after her complaint against him could be seen as retaliatory.14 See
Bowersox v. P.H. Glatfelter Co., 677 F.Supp. 307, 311-12 (M.D.Pa. 1988)(finding that
allegations of sexual harassment coupled with retaliatory acts that prevented plaintiff
from doing her job were enough to overcome a motion to dismiss an IIED claim);
Borreggine v. Messiah College, No. 1:13–cv–01423, 2013 WL 6055214, at *3-4
(M.D.Pa. Nov. 15, 2013)(finding that defendant’s removal of plaintiff from the lacrosse
team and instruction to her teammates that they cease communications with her was
enough to constitute outrageous behavior for an IIED claim at the motion to dismiss
For the reasons explained above, I will deny Dr. Reynolds’s motion to dismiss
Counts II and III.
An appropriate Order follows.
Kutztown contends that the restrictions on the plaintiff were instituted simply because she had asked to not have
contact with Dr. Reynolds. See Doc. No. 11. While there may be some dispute as to the reason why the plaintiff was
prohibited from engaging in activities related to her chosen course of study, her pleading is enough to allow this
dispute to be explored further in discovery.
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