Frank v. Smith et al

Filing 30

MEMORANDUM and ORDER granting in part and denying in part 21 defendants' Motion to Dismiss ; Signed by Honorable James M. Munley on 12/29/09 (sm, )

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA TINA FRANK, Plaintiff : No. 3:09cv596 : : (Judge Munley) : : v. : : BRIAN W. SMITH, : ANTHONY HERZOG, : WEDELL KAY, : WAYNE COUNTY, : CRAIG CHALMERS, and : MILO HAMBY, : Defendants : :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
M E M O R AN D U M B e fo re the court is defendants' motion to dismiss plaintiffs' amended complaint. Having been fully briefed, the matter is ripe for disposition. B a c k g ro u n d T h is case arises out of plaintiff's employment as a Corrections Officer at the W a yn e County (Pa.) Correctional Facility ("W C C F " or "The Prison"). (See Amended C o m p la in t (hereinafter "Complt.") (Doc. 18)). Plaintiff began working at the prison on D e c m e b e r 12, 2006. (Id. at ¶ 6). W h e n hired, plaintiff was one of only two female c o rre c tio n a l officers at the facility. (Id.). She did well in her job, being offered a p ro m o tio n three months after she started. (Id. at ¶ 7). At the same time, however, plaintiff suffered continuing abuse and harassment fro m her shift supervisor, Defendant Milo Hamby, from her first day on the job. (Id.

at ¶ 8). Others joined in this harassment. (Id.). On plaintiff's first day at work, D e fe n d a n t Hamby announced over a loadspeaker that plaintiff was a "hot female." (Id. at ¶ 9). This statement was heard by male co-workers, supervisors and prison in m a te s . (Id. at ¶ 9). This event caused plaintiff great embarrassment and u n d e rm in e d her authority as a prison officer. (Id.). The alleged harrassment took other forms as well. (Id. at ¶ 10). Hamby often m a d e false reports and accusations about plaintiff, including an allegation that P la in tiff had misplaced an inmates jewelry. (Id.). He aimed different rules at her th a n her male coworkers. (Id. at ¶ 11). Plaintiff was prohibited from eating lunch. (Id.). Her reports on inmates­properly prepared­were not accepted. (Id.). Reports b y male coworkers prepared in the same manner were accepted. (Id.). Hamby u n d e rm in e d plaintiff's authority by countermanding her orders to inmates, and p u n is h e d her when she complained about his behavior to superiors. (Id. at ¶ 12). Plaintiff also failed to receive the protection from inmates accorded other, male, o ffic e rs . (Id. at ¶ 14). Prison policy was to place disobedient inmates in lock-up, yet a n inmate who threatened plaintiff did not suffer such consequences. (Id.). In early F e b ru a ry 2007, plaintiff found a picture of herself at work that had the phrase "Gypsy P o rc h Monkey" scrawled across it. (Id. at ¶ 15). Male corrections officers often d is c u s s e d plaintiff with inmates, discussing both her work performance and personal life . (Id. at ¶ 26). One corrections officer falsely told inmates that he was dating p la in tiff. (Id. at ¶ 27). This officer also made sexually explicit gestures that s im u la te d copulation towards plaintiff in the presence of other officers and inmates. 2

(Id. at ¶ 33). An inmate told plaintiff that other correctional officers had told them that p la in tiff had performed sexual acts on others to be allowed to wear the sweater she w o re to work. (Id. at ¶ 35). Plaintiff alleges that such behavior was humiliating and d e g ra d in g , and not mere horseplay. (Id. at ¶ 34). Plaintiff alleges that this disparate treatment embarrassed her and undermined h e r authority as a corrections officer. (Id. at ¶ 16). This treatment also placed her s a fe ty in danger, as inmates were aware that they could act aggressively towards h e r without suffering any consequences. (Id.). The behavior of Defendant Hamby a n d other male corrections officers also trapped plaintiff alone in the cell block, u n a b le to use the restroom or have access to beverages for long periods of time. (Id. at ¶ 17). Male coworkers did not face such restrictions on their movement. (Id.) Hamby also frequently forced plaintiff to work alone in dangerous cell blocks, in c lu d in g one block populated by a prisoner who had attacked her. (Id. at ¶ 18). Male corrections officers, by contrast, were allowed to sit behind a desk, away from th e cell block. (Id.). Plaintiff was also forced to work split shifts and double shifts th a t male officers were not. (Id. at ¶ 19). Plaintiff also contends that Hamby and other supervisors retaliated against her w h e n she complained of their behavior by giving her less desirable work hours, c h a n g in g the conditions of her workplace to make them less safe, calling family m e m b e rs to harass them and generally behaving in a hostile manner. (Id. at ¶¶ 303 2 , 36-42, 47-48, 50). This combination of harassment and retaliation turned plaintiff in to "`an emotional wreck.'" (Id. at ¶ 54). This instability left her unable to supervise 3

inmates and forced her to take time off from work. (Id.). On June 18, 2007, plaintiff, fe a rin g that she would be fired and feeling that she had no other options, submitted h e r resignation. (Id. at ¶ 60). These events, plaintiff claims, "were unwelcome, h u m ilia tin g , severe and/or pervasive, frequent, relentless, based on sex and [b e c a u s e of] protected activity. (Id. at ¶ 67). They caused plaintiff "to obtain both m e d ic a l and psychiatric advice, medication, obtain ongoing counseling, subjecting h e r to therapy and deep depression, and depriving her of further substantially equal jo b opportunities." (Id.). P la in tiff filed a complaint in this court on April 1, 2009. (See Doc. 1). Defendants filed a motion to dismiss that complaint on July 10, 2009. (See Doc. 14). The court denied the defendants' motion as moot after plaintiff filed her amended c o m p la in t. (See Doc. 20). The amended complaint raises nine causes of action. Count I alleges disparate treatment sexual harassment pursuant to Title VII of the C ivil Rights Act of 1964, 42 U.S.C. § 2000e. Count II raises a claim of strict liability s e xu a l harassment pursuant to the same statute. Count III is a hostile environment T itle VII sexual harassment claim. Count IV alleges retaliation for complaining about T itle VII violations. Count V claims retaliatory harassment and strict liability pursuant to Title VII. Count VI makes a retaliatory harassment claim based on a hostile work e n viro n m e n t. Count VII is a First Amendment retaliation claim, brought pursuant to 4 2 U.S.C. § 1983. Count VIII alleges an equal protection violation constituted by h a ra s s m e n t, privacy and retaliation. Count IX is state-law claim for intentional in flic tio n of emotional distress. All claims are aimed in part against the defendants in 4

their official capacities. The defendants then filed the instant motion to dismiss. (Doc. 21). The motion seeks to dismiss the claims against the individual defendants in their official capacities and the intentional infliction of emotional distress claim. The parties then briefed the issues, bringing the case to its present posture. J u r is d ic tio n B e c a u s e this case raises claims under Title VII and Section 1983, this court h a s jurisdiction under 28 U.S.C. § 1331 ("The district courts shall have original ju ris d ic tio n of all civil actions arising under the Constitution, laws, or treaties of the U n ite d States."). The court has supplemental jurisdiction over the plaintiff's state-law c la im pursuant to 28 U.S.C. § 1367. L e g a l Standard D e fe n d a n ts have filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). W h e n a defendant files such a motion, all well-pleaded a lle g a tio n s of the complaint must be viewed as true and in the light most favorable to th e non-movant to determine whether "under any reasonable reading of the p le a d in g s , the plaintiff may be entitled to relief." Colburn v. Upper Darby Township, 8 3 8 F.2d 663, 665-66 (3d Cir. 1988) (citing Estate of Bailey by Oare v. County of Y o rk , 768 F.3d 503, 506 (3d Cir. 1985), (quoting Helstoski v. Goldstein, 552 F.2d 5 6 4 , 565 (3d Cir. 1977) (per curium)). The court may also consider "matters of p u b lic record, orders, exhibits attached to the complaint and items appearing in the re c o rd of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1 3 8 4 n.2 (3d Cir. 1994) (citations omitted). The court does not have to accept legal 5

conclusions or unwarranted factual inferences. See Curay-Cramer v. Ursuline Acad. o f W ilm in g to n , Del., Inc., 450 F.3d 130, 133 (3d Cir. 2006) (citing Morse v. Lower M e rio n Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). The federal rules require only that plaintiff provide "`a short and plain s ta te m e n t of the claim showing that the pleader is entitled to relief,'" a standard w h ic h "does not require `detailed factual allegations,'" but a plaintiff must make "`a s h o w in g , rather than a blanket assertion, of entitlement to relief' that rises `above the s p e c u la tiv e level.'" McTernan v. City of York, 564 F.3d 636, 646 (3d Cir. 2009) (q u o tin g Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). The "c o m p la in t must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (q u o tin g Twombly, 550 U.S. at 570). Such "facial plausibility" exists "when the p la in tiff pleads factual content that allows the court to draw the reasonable inference th a t the defendant is liable for the conduct alleged." Id. D is c u s s io n D e fe n d a n ts ' motion to dismiss states two grounds for dismissal. The court will a d d re s s each in turn. i. Individual Defendants in their Official Capacities T h e defendants argue that the claims against the individual defendants in their o ffic ia l capacities should be dismissed, as those claims are duplicative of claims a g a in s t the County. The court agrees. "Official-capacity suits . . . `generally re p re s e n t only another way of pleading an action against an entity of which an officer 6

is an agent.'" Kentucky v. Graham, 473 U.S. 159, 165 (1985) (quoting Monell, 436 U .S . at 690). Such suits are, "in all respects other than name, to be treated as a suit a g a in s t the entity. Id. at 166. They are "not a suit against the official personally, for th e real party in interest is the entity." Id. (emphasis in original). Therefore, "`[w]here a suit is brought against a public official in his [or her] official capacity, the suit is tre a te d as if [it] were brought against the governmental entity of which he [or she] is a n official.'" McGreevy v. Stroup, 413 F.3d 359, 369 (3d Cir. 2005) (citation omitted). As such, the court will grant the defendants motion and dismiss any claims brought a g a in s t the defendants in their official capacities. Though the complaint is not a m o d e l of pleading, the court interprets it as bringing claims against these defendants in their individual capacities and will not dismiss them from the case entirely. ii. Intentional Infliction of Emotional Distress T h e defendants also argue that plaintiffs' claim for intentional infliction of e m o tio n a l distress should be dismissed both against the county and against the in d ivid u a l defendants. The parties agree that W a yn e County is immune from tort lia b ility under Pennsylvania law, and the court will grant the motion as it relates to th e County. In Pennsylvania, "[o]ne who by extreme and outrageous conduct intentionally o r recklessly causes severe emotional distress to another is subject to liability for s u c h emotional distress, and if bodily harm to the other results from it, for such bodily h a rm ." Taylor v. Albert Einstein Med. Ctr., 754 A.2d 650, 652 (Pa. 2000). Such to rtio u s conduct "`must be so outrageous in character, and so extreme in degree, as 7

to go beyond all possible bounds of decency, and to be regarded as atrocious, and u tte rly intolerable in a civilized society.'" Hoy v. Angelone, 720 A.2d 745, 753 (Pa. 1 9 9 8 ) (quoting Buczek v. First National Bank of Mifflintown, 531 A.2d 1122, 1125 (P a . Super. Ct. 1987)). Under this standard, "[i]t has not been enough that the d e fe n d a n t has acted with an intent which is tortious or even criminal, or that he has in te n d e d to inflict emotional distress, or even that his conduct has been c h a ra c te riz e d by `malice,' or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort." Daughen v. Fox, 539 A.2d 858, 861 (Pa. S u p e r. Ct. 1988) (quoting RESTATEMENT OF TORTS (2d) § 46 Comment (d)). P e n n s ylva n ia courts have held that "it is unwise and unnecessary to permit recovery to be predicated on an inference based on the defendant's `outrageousness' without e xp e rt medical confirmation that the plaintiff suffered the claimed distress." Kazatsky v. King David Memorial Park, Inc., 527 A.2d 988, 995 (Pa. 1987). Thus, "to state a c la im under which relief can be granted for the tort of intentional infliction of e m o tio n a l distress, the plaintiffs must allege physical injury." Hart v. O'Malley, 647 A .2 d 542, 554 (Pa. Super. Ct. 1994). Defendants insist that plaintiff has not pled such physical injury. The court d is a g re e s . Plaintiff alleges that the harassment she experienced at the prison c re a te d an "unbearably high" level of "stress. (Complt. at ¶ 54). She "felt too e m o tio n a lly unstable . . . to supervise inmates and sought some time off." (Id.). Moreover, plaintiff alleges that she suffered "severe emotional distress, causing her to obtain both medical and psychiatric advice, medication, obtain ongoing 8

counseling, subjecting her to therapy and deep depression." (Id. at ¶ 67). The a rg u m e n t here is over the extent of plaintiff's injuries from defendant's conduct, not w h e th e r plaintiff has pled extreme and outrageous behavior. W h ile the defendants a re correct in arguing that plaintiff could not prevail unless she shows that she s u ffe re d physical injury as a result of defendants' conduct, the plaintiff has alleged th a t she suffered injuries that required medical treatment. The court finds it p la u s ib le , based on these allegations, that plaintiff suffered a physical injury and will n o t dismiss the claim at this early date. Of course, plaintiff will have to supply m e d ic a l evidence to substantiate her claims, and defendants are free to raise this is s u e again at the summary judgment stage. C o n c lu s io n F o r the reasons stated above, the court will grant the defendants' motion as it re la te s to plaintiff's claims against the individual defendants in their official capacities a n d to the County on plaintiff's intentional infliction of emotional distress claim. The c o u rt will deny defendants' motion as it relates to plaintiff's claim for intentional in flic tio n of emotional distress against the individual defendants. An appropriate o rd e r follows.

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA TINA FRANK, Plaintiff : No. 3:09cv596 : : (Judge Munley) : : v. : : BRIAN W. SMITH, : ANTHONY HERZOG, : WEDELL KAY, : WAYNE COUNTY, : CRAIG CHALMERS, and : MILO HAMBY, : Defendants : :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER AN D NOW, to wit, this 29th day of December 2009, the defendants' motion to d is m is s the complaint (Doc. 21) is hereby GRANTED in part and DENIED in part. The motion is granted with respect to plaintiff's claims against the individual d e fe n d a n ts in their official capacities and against W a y n e County with respect to p la in tiff's claim for intentional infliction of emotional distress. The motion is denied w ith respect to plaintiff's claim for intentional infliction of emotional distress against th e individual defendants. B Y THE COURT: s / James M. Munley JUDGE JAMES M. MUNLEY United States District Court 10