Doe et al v. Schuylkill County Courthouse et al
MEMORANDUM OPINION re 73 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by George Halcovage. Signed by Magistrate Judge Martin C. Carlson on May 6, 2022. (kjn)
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JANE DOE, et al.,
COURTHOUSE, et al.,
Civil No. 3:21-CV-477
(Magistrate Judge Carlson)
This case involves allegations of abhorrent workplace misconduct at the
Schuylkill County Courthouse involving alleged sexual harassment, assault, and
predation coupled with assertions of official indifference to the plight of the alleged
victims of this workplace violence. The plaintiffs, four Jane Doe employees of
Schuylkill County, filed this action against the County and several individual
defendants. Their claims stem from the alleged sexual abuse and harassment
perpetrated by County Commissioner George Halcovage over a period of several
years while the plaintiffs were employed by the County. The plaintiffs assert that the
County, as well as the individual supervisory defendants, knew of the sexual abuse
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and harassment and did nothing to stop it. Instead, the plaintiffs contend that these
defendants retaliated against them for reporting the sexual abuse and harassment.
Pending before the court is a motion to dismiss filed by one of the defendants,
George Halcovage.1 (Doc. 73). With respect to Defendant Halcovage, the plaintiffs
allege that he discriminated and retaliated against them, and that he aided and abetted
discriminatory conduct in violation of the Pennsylvania Human Relations Act
(“PHRA”). They also assert that Halcovage violated their rights under the Equal
Protection Clause of the Fourteenth Amendment by subjecting them to disparate
treatment and a hostile work environment. The plaintiffs also assert a claim against
Halcovage for First Amendment retaliation. Finally, Doe 1 and Doe 2 have asserted
a state law claim against Halcovage for intentional infliction of emotional distress.
In his motion to dismiss, Halcovage contends that the plaintiffs have failed to
state a claim for intentional infliction of emotional distress. He further argues that
the First Amendment retaliation claim fails because the plaintiffs were speaking as
employees, rather than as citizens about a matter of public concern. With respect to
the PHRA claims, Halcovage contends that the discrimination and retaliation
provisions do not apply to individuals, and that the plaintiffs have not stated a claim
for aiding and abetting against him. Halcovage further asserts that the plaintiffs have
The defendants have filed five separate motions to dismiss, which will be addressed
in separate memorandum opinions.
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failed to state an Equal Protection claim for disparate treatment and a hostile work
environment. Finally, Halcovage challenges the plaintiffs’ request to proceed under
their “Jane Doe” pseudonyms.2
This motion is fully briefed and is ripe for resolution. (Docs. 84, 88, 92). For
the reasons that follow, we will grant the motion to dismiss with respect to the PHRA
discrimination claim but deny the motion in all other respects.
The factual background of this case is taken from the factual allegations set
forth in the plaintiff’s second amended complaint (Doc. 63), which we must accept
as true for purposes of this motion to dismiss.
George Halcovage was elected as a Commissioner of Schuylkill County in
2012. (Doc. 63, ¶ 45). At this time, Plaintiffs Jane Doe 3 and Jane Doe 4 were
employed with the County as the Tax Claim Director and Clerk Typist One,
respectively. (Id., ¶¶ 43-44). The complaint alleges that upon the start of his term as
County Commissioner, Halcovage frequently visited the Tax Claims Office and
subjected the female employees to unwelcomed sexual harassment. (Id., ¶ 47). This
harassment, which included discriminatory sexist and inappropriate comments, was
sometimes directed at and witnessed by Doe 3 and Doe 4, and caused them to feel
We have addressed the plaintiffs’ use of pseudonyms in a prior Memorandum
Opinion, deciding that at this juncture, the plaintiffs may proceed under their Jane
Doe pseudonyms. (Doc. 123).
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extremely uncomfortable, humiliated, and distressed. (Id., ¶¶ 47-48). The plaintiffs
allege that Glenn Roth, the First Assistant County Solicitor and Risk Manager, and
Gary Bender, the County Administrator, witnessed this behavior by Halcovage but
did nothing to stop it. (Id., ¶ 49).
Plaintiff Jane Doe 1 was hired by the County in February of 2014. (Id., ¶ 51).
According to the complaint, Halcovage visited Doe 1’s workspace often, which
caused her coworkers to make comments about Doe 1 talking with Halcovage who
was “a sucker for pretty girls.” (Id., ¶¶ 52-53). Halcovage began making unwanted
comments about Doe 1’s physical appearance, which increased in frequency and
intensity throughout Doe 1’s first year with the County. (Id., ¶¶ 55-56). These
comments about Doe 1’s physical appearance eventually escalated into more
forceful sexual advances, with Halcovage grabbing Doe 1 and kissing her after a
fundraiser that Doe 1 attended in late 2014 or early 2015. (Id., ¶¶ 57-61). After this
incident, Halcovage allegedly made comments to Doe 1 which she believed implied
that her job was contingent on submitting to Halcovage’s sexual advances. (Id., ¶
Around this same time, Plaintiff Jane Doe 2 was hired by the County, and the
complaint alleges that she was almost immediately subject to unwanted sexual
comments from Halcovage. (Id., ¶¶ 65-66). It is alleged that these sexually charged
comments caused Doe 2 issues with her female coworkers, who either ignored her
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or gave her one-word answers, which she believed to be due to her coworkers’
incorrect impression that she was in a relationship with Halcovage. (Id., ¶¶ 68-72).
The complaint further alleges that the plaintiffs witnessed Halcovage making
inappropriate and sexist comments about other female coworkers. (Id., ¶¶ 76-77).
According to the plaintiffs, Defendants Roth and Bender were present for some of
these comments but did nothing to stop Halcovage or inform him that his behavior
was inappropriate. (Id., ¶¶ 78-79). This led the plaintiffs to believe that any efforts
they made to report Halcovage’s conduct would be futile. (Id., ¶ 81).
Halcovage’s alleged sexual harassment of the Doe plaintiffs continued and
intensified. In 2015, Halcovage made a comment to Doe 2’s husband at a fundraising
event about “using” his wife, a comment which allegedly insinuated that Halcovage
and Doe 2 had sexual intercourse. (Id., ¶¶ 83-86). The complaint asserts that
Defendant Roth was present for this comment and later mentioned that the comment
made him uncomfortable, remarking that Halcovage “didn’t have to say it that way.”
(Id., ¶¶ 87-89). However, Roth did not report Halcovage’s behavior to HR. (Id., ¶
Doe 1 and Doe 2 also attended a fundraiser in March of 2015 at Halcovage’s
request. (Id., ¶ 91). According to the complaint, Halcovage insisted he drive Doe 1
home after the event. (Id., ¶ 92). Upon arriving at Doe 1’s home, Halcovage was
verbally and physically affectionate with her, kissed her, and ultimately unzipped
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his pants and exposed his genitals to her. (Id. ¶¶ 94-95). Doe 1 took this to mean that
Halcovage wanted her to perform oral sex on him, which made her feel overwhelmed
and uncomfortable. (Id., ¶¶ 97-98). Due to his position of authority over her, Doe 1
ultimately performed oral sex on Halcovage. (Id., ¶ 97). The complaint alleges that
immediately following this incident with Doe 1, Halcovage called Doe 2 demanding
to know where she was and who she was with. (Id., ¶ 98).
The complaint alleges another instance of sexual assault by Halcovage in
2018, where Halcovage took Doe 1 into the tax filing room inside the courthouse,
forcibly pushed her head down, exposed his genitals, and forced her to perform oral
sex on him. (Id., ¶¶ 109-12). While Doe 1 and Doe 2 consistently attempted to rebuff
Halcovage’s sexual advances, it is alleged that Halcovage also inserted himself into
their personal and family lives, particularly when they refused his sexual advances.
(Id., ¶ 101). The complaint asserts that Halcovage frequently made appearances at
Doe 1’s home late at night with alcohol or early in the morning, causing her to be
late for work. (Id., ¶ 104). Moreover, when Doe 1 rebuffed Halcovage’s advances,
Halcovage’s harassment of Doe 2 intensified. (Id., ¶ 119). The plaintiffs allege that
over time, Halcovage’s requests for oral sex turned into requests for sexual
intercourse. (Id., ¶ 116).
In 2019, Doe 3 became Doe 1’s direct supervisor. (Id., ¶ 142). In July and
November of 2019, Doe 3 twice reported incidents of Halcovage’s sexual
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harassment to Defendant Roth. (Id., ¶¶ 145-47). According to the complaint, Roth
did not document the incidents, make any inquiries, or report the incidents to HR.
(Id., ¶ 148). Around this same time, Roth allegedly knew that Halcovage was
contacting Doe 1 and Doe 2 outside of work hours but did not report Halcovage’s
behavior to anyone. (Id., ¶¶ 154-55). In 2020, Doe 3 pleaded with Roth to intervene
with respect to Halcovage’s harassment, and Roth told her to take her complaints to
HR. (Id., ¶¶ 156-57).
Thus, in May of 2020, Doe 1 sent Doe 3 a formal email reporting Halcovage’s
sexual harassment and sexual assault. (Id., ¶ 159). This email was promptly
forwarded to HR, after which HR conducted formal interviews of the plaintiffs. (Id.,
¶ 160-61). One month later, Halcovage stepped down as Chief Commissioner but
remained in the Commissioner position. (Id., ¶ 162). At this time, the County put out
a press release stating that an investigation revealed that Halcovage had violated the
County’s Sexual Harassment Policy, the Conduct and Disciplinary Action Policy,
and the Physical and Verbal Abuse Policy. (Id., ¶ 164). This press release also stated
that Halcovage could not be removed from his position as Commissioner absent a
criminal conviction or impeachment. (Id.)
Following the Doe Plaintiffs’ reports of sexual misconduct, they allege that
they were subject to retaliation by Halcovage, the County, and the other individual
defendants. On this score, it is alleged that Halcovage was not removed from the
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plaintiffs’ work environment and was still working at the courthouse. (Id., ¶ 167).
The County also permitted an employee of Doe 3 and Doe 4 to be relocated without
consulting Doe 3 or Doe 4, which impacted their job performance and was believed
to be done in retaliation for their reports against Halcovage. (Id., ¶¶ 173-74).
Additionally, while Halcovage was informed there was a specific place he could
park, Defendant Bender allegedly authorized him to park in the same parking lot as
Doe 3 and Doe 4. (Id., ¶ 177). Doe 3 and Doe 4 were also required to conduct an
assessment appeal hearing in the Commissioner’s suite, although they had requested
not to be required to work in that location. (Id., ¶¶ 178-79). Thus, Doe 3 encountered
Halcovage in August of 2020, which caused her emotional distress. (Id., ¶ 180-81).
The plaintiffs ultimately filed complaints with the Equal Employment
Opportunity Commission (“EEOC”) and the Pennsylvania Human Relations
Commission (“PHRC”) in August of 2020. (Id., ¶ 8). In these complaints, they
alleged violations of Title VII, the PHRA, Pennsylvania common law, and Section
Following the filing of the EEOC complaints, Doe 3 encountered Halcovage
several times, after which she reported her concerns to Doreen Kutzler, an HR
representative for the County. (Id., ¶¶ 184-86). The complaint alleges that Doe 3
These complaints were supplemented on March 16, 2021. (Doc. 63, ¶ 9). The
plaintiffs received their Right to Sue letters on April 8, 2021 and October 27, 2021.
(Id., ¶¶ 11, 13).
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contact Kutzler twice regarding her concerns, but Kutzler never responded to her
email or took any action to prevent the plaintiffs from further encounters with
Halcovage. (Id., ¶¶ 186-87). Doe 3 also emailed Kutzler to set up specific times for
she and Doe 4 to come to the office so as not to encounter Halcovage, and Kutzler
again ignored her emails. (Id., ¶¶ 188-89). Moreover, while Doe 1 and Doe 2 were
working from home, they allege that they were not given the supplies they needed,
which hindered them from performing their job duties. (Id., ¶ 192). Additionally, in
October 2020, Kutzler and Bender engaged in contract negotiations with one of Doe
3 and Doe 4’s employees without consulting them, which led to more responsibilities
for Doe 3 and Doe 4. (Id., ¶¶ 196-200).
In October of 2020, Doe 1 again requested that she be given permission to
continue to work from home and provided with the necessary supplies to do so. (Id.,
¶ 204). This request was ultimately denied, and in November of 2020, Doe 1 and
Doe 2 were informed that they would be required to work in the “410 building.” (Id.,
¶ 206). The plaintiffs brought concerns to the County regarding this work
arrangement, indicating that Halcovage could access the building and that there was
no parking close by. (Id., ¶ 208). The County had also arranged for Defendant
Bender to provide Doe 1 and Doe 2 with keys to their offices and to answer any
questions they had, but this arrangement was changed when the plaintiffs informed
the County that they did not want to have contact with Bender. (Id., ¶¶ 210-11). At
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or around this time, Doe 1 and Doe 2 requested to use paid time off, which Kutzler
denied, informing them they could only use unpaid leave. (Id., ¶¶ 216-17).
Additionally, Doe 3 emailed Kutzler about the state and cleanliness of the new office
space for Doe 1 and Doe 2, concerns that were said to have been remedied but were
not. (Id., ¶¶ 219-223).
The harassment and retaliation of the plaintiffs allegedly continued into 2021.
Thus, on or about January 13, 2021, Doe 2 alleges that Halcovage was following
her, and she reported it to both Kutzler and the police. (Id., ¶ 224). Two days later,
Doe 3 and Doe 4 learned that Halcovage had been assigned a parking spot in the
same lot they parked in and that he had access to where they worked in the
courthouse. (Id., ¶ 226). Upon learning this, Doe 3 and Doe 4 opted to work from
home that day, and they were later reprimanded for this decision by Bender. (Id., ¶
227). They were further reprimanded by Bender and Zula for allowing their
employees to work from home. (Id., ¶¶ 229-30). Thus, in February of 2021, Zula
denied Doe 1’s request to work from home, even though Doe 3 had approved it as
her supervisor. (Id., ¶¶ 231-34). Additionally in February 2021, Kutzler permitted
Bender and Halcovage to sign up for the same sexual harassment training that Doe
3 and Doe 4 had signed up for, requiring them to adjust their schedule to go to a
different training. (Id., ¶¶ 235-36). At or around this time, Doe 2 had requested to
work from home, and Zula denied her request. (Id., ¶¶ 237-38). Additionally, Doe 1
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and Doe 2 were not assigned parking spaces for the “410 building” and had been
threatened that their vehicles would be towed. (Id., ¶ 242).
Thereafter, on March 18, 2021, just two days after the initial complaint was
filed in this case, Doe 3 and Doe 4 received notice that their office was being
restructured, which resulted in a demotion and a decrease in their salaries. (Id., ¶
243). The restructuring of the office was voted on by Halcovage despite others
requesting that he abstain from the vote. (Id.) Moreover, the restructuring resulted
in Doe 1 and Doe 2 reporting directly to Defendant Bender. (Id., ¶ 244). In April
2021, Doe 3 and Doe 4 were issued written warnings for unprofessional and
inappropriate conduct. (Id., ¶ 245; Doc. 63-1, Ex. K, at 44-45). Then in May 2021,
Doe 3 was suspended without pay, which was signed off by Bender. (Doc. 63, ¶ 246;
Doc. 63-1, Ex. L, at 50). In July of 2021, Doe 2 was issued a written reprimand for
failing to report an absence from work. (Doc. 63, ¶ 247; Doc. 63-1, Ex. M, at 56).
Ultimately, in September of 2021, Doe 3 and Doe 4 were suspended indefinitely
without pay. (Doc. 63, ¶ 258; Doc. 63-1, Ex. N, at 58).
As we have noted, the initial complaint in this matter was filed on March 18,
2021. (Doc. 1). The plaintiffs filed an amended complaint on April 16, 2021, and a
second amended complaint was filed on October 29, 2021, which is now the
operative pleading in this case. (Doc. 63). With respect to Defendant Halcovage, the
amended complaint asserts the following claims by the Doe Plaintiffs: intentional
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infliction of emotional distress by Doe 1 and Doe 2 (Count IV); discrimination,
retaliation, and aiding and abetting discrimination and retaliation under the PHRA
(Counts V-VII); Fourteenth Amendment Equal Protection violations based on
disparate treatment and hostile work environment (Counts VIII-IX); and retaliation
in violation of the First Amendment (Count XIII).
Halcovage has now filed a motion to dismiss, arguing that the plaintiffs have
failed to state a claim against him. As we will discuss below, the motion will be
granted with respect to the PHRA discrimination claim but denied in all other
Motion to Dismiss – Standard of Review
A motion to dismiss tests the legal sufficiency of a complaint. It is proper for
the court to dismiss a complaint in accordance with Rule 12(b)(6) of the Federal
Rules of Civil Procedure only if the complaint fails to state a claim upon which relief
can be granted. Fed. R. Civ. P. 12(b)(6). With respect to this benchmark standard for
the legal sufficiency of a complaint, the United States Court of Appeals for the Third
Circuit has aptly noted the evolving standards governing pleading practice in federal
court, stating that:
Standards of pleading have been in the forefront of jurisprudence in
recent years. Beginning with the Supreme Court’s opinion in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), continuing with our
opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.
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2008)], and culminating recently with the Supreme Court’s decision in
Ashcroft v. Iqbal, BU.S.B, 129 S. Ct. 1937 (2009), pleading standards
have seemingly shifted from simple notice pleading to a more
heightened form of pleading, requiring a plaintiff to plead more than
the possibility of relief to survive a motion to dismiss.
Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).
In considering whether a complaint fails to state a claim upon which relief
may be granted, the court must accept as true all allegations in the complaint and all
reasonable inferences that can be drawn therefrom are to be construed in the light
most favorable to the plaintiff. Jordan v. Fox, Rothschild, O’Brien & Frankel, Inc.,
20 F.3d 1250, 1261 (3d Cir. 1994). However, a court “need not credit a complaint’s
bald assertions or legal conclusions when deciding a motion to dismiss.” Morse v.
Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court
need not “assume that a . . . plaintiff can prove facts that the . . . plaintiff has not
alleged.” Associated Gen. Contractors of Cal. v. California State Council of
Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action, a
plaintiff must provide some factual grounds for relief which “requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of
actions will not do.” Id., at 555. “Factual allegations must be enough to raise a right
to relief above the speculative level.” Id.
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In keeping with the principles of Twombly, the Supreme Court has
underscored that a trial court must assess whether a complaint states facts upon
which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal,
556 U.S. 662 (2009), the Supreme Court held that, when considering a motion to
dismiss, a court should “begin by identifying pleadings that, because they are no
more than conclusions, are not entitled to the assumption of truth.” Id., at 679.
According to the Supreme Court, “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Id., at 678. Rather,
in conducting a review of the adequacy of a complaint, the Supreme Court has
advised trial courts that they must:
[B]egin by identifying pleadings that because they are no more than
conclusions are not entitled to the assumption of truth. While legal
conclusions can provide the framework of a complaint, they must be
supported by factual allegations. When there are well-pleaded factual
allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.
Id., at 679.
Thus, following Twombly and Iqbal, a well-pleaded complaint must contain
more than mere legal labels and conclusions; it must recite factual allegations
sufficient to raise the plaintiff’s claimed right to relief beyond the level of mere
speculation. As the United States Court of Appeals for the Third Circuit has stated:
[A]fter Iqbal, when presented with a motion to dismiss for failure to
state a claim, district courts should conduct a two-part analysis. First,
the factual and legal elements of a claim should be separated. The
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District Court must accept all of the complaint’s well-pleaded facts as
true, but may disregard any legal conclusions. Second, a District Court
must then determine whether the facts alleged in the complaint are
sufficient to show that the plaintiff has a “plausible claim for relief.” In
other words, a complaint must do more than allege the plaintiff’s
entitlement to relief. A complaint has to “show” such an entitlement
with its facts.
Fowler, 578 F.3d at 210-11.
As the Court of Appeals has observed:
The Supreme Court in Twombly set forth the “plausibility” standard for
overcoming a motion to dismiss and refined this approach in Iqbal. The
plausibility standard requires the complaint to allege “enough facts to
state a claim to relief that is plausible on its face.” Twombly, 550 U.S.
at 570, 127 S. Ct. 1955. A complaint satisfies the plausibility standard
when the factual pleadings “allow[ ] the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal,
129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S. Ct. 1955).
This standard requires showing “more than a sheer possibility that a
defendant has acted unlawfully.” Id. A complaint which pleads facts
“merely consistent with” a defendant’s liability, [ ] “stops short of the
line between possibility and plausibility of ‘entitlement of relief.’ ”
Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011), cert. denied,
132 S. Ct. 1861 (2012).
In practice, consideration of the legal sufficiency of a complaint entails a
First, the court must “tak[e] note of the elements a plaintiff must plead
to state a claim.” Iqbal, 129 S. Ct. at 1947. Second, the court should
identify allegations that, “because they are no more than conclusions,
are not entitled to the assumption of truth.” Id., at 1950. Finally, “where
there are well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to an
entitlement for relief.”
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Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting
Iqbal, 129 S. Ct. at 1950).
In considering a motion to dismiss, the court generally relies on the complaint,
attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263,
268 (3d Cir. 2007). The court may also consider “undisputedly authentic
document[s] that a defendant attached as an exhibit to a motion to dismiss if the
plaintiff’s claims are based on the [attached] documents.” Pension Benefit Guar.
Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover,
“documents whose contents are alleged in the complaint and whose authenticity no
party questions, but which are not physically attached to the pleading, may be
considered.” Pryor v. Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir.
2002); see also U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 382, 388 (3d Cir. 2002)
(holding that “[a]lthough a district court may not consider matters extraneous to the
pleadings, a document integral to or explicitly relied upon in the complaint may be
considered without converting the motion to dismiss in one for summary
judgment”). However, the court may not rely on other parts of the record in
determining a motion to dismiss, or when determining whether a proposed amended
complaint is futile because it fails to state a claim upon which relief may be granted.
Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
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B. The Defendant’s Motion Will Be Granted in Part and Denied in Part.
1. Intentional Infliction of Emotional Distress4
Plaintiffs Doe 1 and Doe 2 bring a state law claim for intentional infliction of
emotional distress against Halcovage. Under Pennsylvania law, the elements of a
claim for intentional infliction of emotional distress are as follows: “(1) the conduct
[of the defendant] must be extreme and outrageous; (2) it must be intentional or
reckless; (3) it must cause emotional distress; [and] (4) that distress must be severe.”
Hoy v. Angelone, 691 A.2d 476, 482 (Pa. Super. Ct. 1997). This claim also requires
an allegation of some type of physical injury, harm, or illness related to the distress.
Defendant Halcovage belatedly argues in his reply brief that many of the events
which the plaintiffs rely on for their IIED claim are barred by the statute of
limitations. (Doc. 92, at 8). However, it is well settled that Halcovage cannot
belatedly present new arguments in a reply brief that were not addressed in his
opening brief or in response to the plaintiffs’ opposition brief. See Bell v.
Lackawanna County, 892 F.Supp.2d 647, 688 n.41 (M.D. Pa. 2012) (“A reply brief
is not the appropriate forum in which to raise new issues and the court need not
address issues raised for the first time therein”). We further note that the continuing
violations exception to the statute of limitations may apply in the instant case. See
Smith v. RB Distribution, Inc., 515 F.Supp.3d 311, 318 n.7 (E.D. Pa. 2021)
(“Pennsylvania courts have not addressed the applicability of continuing violation
theories to IIED claims. It is worth noting, however, that in jurisdictions that have
adopted this rule, courts have not required plaintiffs to demonstrate that the conduct
occurring within the limitations period was outrageous. Instead, judges have
examined whether the conduct was part of continuous pattern of wrongful behavior
that could support a claim for IIED if viewed collectively”). However, in our view,
these tardy arguments may not be addressed through this motion to dismiss. Rather,
this issue must await another day for consideration upon a more fulsome factually
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Robinson v. Family Dollar, Inc., No. 14-3189, 2015 WL 3400836 (E.D. Pa. May 27,
2015) (citing Corbett v. Morgenstern, 934 F.Supp. 680, 684 (E.D. Pa. 1994)). It is
difficult to make out a cognizable claim for intentional infliction of emotional
distress, in no small part because “the conduct must be ‘so extreme in nature as to
go beyond all possible bounds of decency such that it would be regarded as utterly
intolerable to civilized society.’ ” Regan v. Twp. of Lower Merion, 36 F.Supp.2d
245, 251 (E.D. Pa. 1999). While “sexual harassment alone does not rise to the level
of outrageousness necessary to make out a cause of action for the intentional
infliction of emotional distress, ‘blatantly abhorrent conduct’ may be actionable.”
Smith, 515 F.Supp.3d at 319 (quoting Hoy, 720 A.2d at 754).
Here, Halcovage argues that the allegations, considered separately, do not rise
to the level of extreme and outrageous conduct. Halcovage’s simplified and
fragmented characterization of the allegations in the amended complaint describe
them as amounting to little more than unwelcome comments and encounters at the
workplace. In casting the complaint in this fashion Halcovage fails to consider the
truism first expressed by John Adams: “Facts are stubborn things.” A necessary
corollary to this proposition which applies when considering a motion to dismiss is
that well-pleaded facts are also stubborn things, and we may not ignore the wellpleaded facts in the complaint in favor of Halcovage’s much more anodyne and
incomplete description of those facts.
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When we consider the well-pleaded facts in this complaint we conclude that
they set forth blatantly abhorrent conduct which may well be actionable. Read in its
entirety, the amended complaint states sufficient factual allegations at this stage to
state a claim for intentional infliction of emotional distress. The amended complaint
alleges two instances of sexual assault on Doe 1, with one of those instances
occurring at the courthouse; repeated unwelcome and sexually explicit comments;
sexual propositions, to which the plaintiffs believed their jobs would be contingent
upon their submission to Halcovage’s sexual demands; and insistent phone calls and
uninvited visits to the plaintiffs’ homes when they refused Halcovage’s sexual
advances. The complaint further alleges that after the plaintiffs reported Halcovage’s
conduct, he engaged in retaliatory behavior which ultimately caused the plaintiffs to
be relocated to another building so that they would not encounter Halcovage. Finally,
the plaintiffs have alleged that this conduct by Halcovage has caused them extreme
emotional distress resulting in physical injury.
At this stage of the proceedings, where we must accept these allegations as
true, we find that the plaintiffs have sufficiently alleged facts to state a claim for
intentional infliction of emotional distress against Halcovage. Indeed, these
allegations show behavior by Halcovage that can be characterized as “blatantly
abhorrent conduct” that is so extreme and outrageous in nature “as to go beyond all
possible bounds of decency such that it would be regarded as utterly intolerable to
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civilized society.” Hoy, 720 A.2d at 754; Regan, 36 F.Supp.2d at 251. Accordingly,
the motion to dismiss this claim will be denied.
2. PHRA Claims
The Doe plaintiffs also bring claims against Halcovage under the PHRA,
alleging that he discriminated against them, retaliated against them, and aided and
abetted discriminatory and retaliatory conduct. See 42 Pa. Cons. Stat. §§ 955(a), (d),
(e). The PHRA makes it unlawful for an employer to discriminate with respect to
compensation, hire, privileges, or other employment-related benefits against an
employee because of sex. § 955(a). An “employer” is defined under the Act as “the
Commonwealth or any political subdivision or board, department, commission or
school district thereof and any person employing four or more persons within the
Commonwealth . . .” § 954(b). The Act further prohibits employers and employees
from retaliating against an individual who reports discriminatory conduct. § 955(d).
In addition, the PHRA prohibits employers and employees from aiding, abetting, or
inciting discriminatory or retaliatory conduct. § 955(e).
With respect to the discrimination and retaliation claims, Halcovage argues
that these provisions only apply to an “employer,” and since he is not an “employer”
he cannot be held liable under § 955(a) and (d) for discrimination or retaliation. For
their part, the plaintiffs contend that Halcovage, having supervisory authority, can
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be considered a “joint employer” and therefore liable under § 955(a). The Third
Circuit has aptly noted in the past that, with respect to these discrimination claims,
Generally, the PHRA is applied in accordance with Title VII. Davis v.
Sheraton Society Hill Hotel, 907 F.Supp. 896, 899 n. 1 (E.D. Pa. 1995).
Like Title VII, the definition of an employer under the PHRA cannot
be construed to include “employees;” indeed, “employee” is defined as
a wholly separate term under the Act. See 43 Pa. Cons. Stat. Ann. §
954(b) & (c). The employment discrimination provision of the PHRA
declares only that “any employer” may be held liable. See 43 Pa. Cons.
Stat. Ann. § 955(a).
Dici v. Commonwealth of Pa., 91 F.3d 542, 552 (3d Cir. 1996). See also McIlmail
v. Pennsylvania, 381 F.Supp.3d 393, 415 (E.D. Pa. 2019) (“The PHRA is ‘generally
applied in accordance with Title VII,’ which exposes only employers to liability
while exempting individual employees. . .”) (internal citations omitted).
On this score, the plaintiffs argue that Halcovage has supervisory authority,
and thus, should be considered a “joint employer” liable for discrimination under the
PHRA. However, the plaintiffs have provided no authority for this proposition, and
an independent search has not yielded any caselaw in this circuit which would
suggest than an individual can be considered a “joint employer” of an employee.
Rather, cases discussing a joint employer relationship have almost exclusively
considered this joint employer relationship in the context of two entities, not
individual persons. See e.g., Faush v. Tuesday Morning, Inc., 808 F.3d 208, 215 (3d
Cir. 2015) (“Two entities may be “co-employers” or “joint employers” of one
employee for purposes of Title VII”); Showers v. Endoscopy Center of Central Pa.,
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LLC, 58 F.Supp.3d 446, 456 n.7 (M.D. Pa. 2014) (“The court notes that two
corporations may also be consolidated under the ‘joint employer’ doctrine”); Myers
v. Garfield & Johnson Enterprises, Inc., 679 F.Supp.2d 598, 607 (E.D. Pa. 2010)
(“[A] finding that companies are ‘joint employers’ assumes in the first instance that
companies are . . . independent legal entities that have merely ‘historically chosen to
handle joint important aspects of their employer-employee relationship’”) (citations
Accordingly, we are not persuaded by the plaintiffs’ assertion that Halcovage,
an individual employee, albeit a county commissioner, can be considered a “joint
employer” for purposes of their PHRA discrimination claim. Therefore, in the
absence of any legal authority construing the PHRA in this fashion, with respect to
the direct PHRA discrimination claim against Defendant Halcovage, we conclude
that this claim fails as a matter of law, as Halcovage cannot be considered an
“employer” under the PHRA. Of course, as we discuss below, Halcovage may still
be held liable under the PHRA for discrimination against the plaintiffs on an aiding
and abetting theory. Such an aiding and abetting claim is expressly authorized by
statute and encounters none of the analytical obstacles which arise from the PHRA’s
limitation of direct discrimination liability to employers.
With respect to the retaliation claim, as we have noted, § 955(d) prohibits both
employers and employees from retaliating against an individual who reports
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discriminatory conduct. 42 Pa. Cons. Stat. § 955(d). Indeed, the statute forbids
retaliation by “any person,” statutory language that is sweeping in its reach. Thus,
the plaintiffs must show that they engaged in protected activity, suffered adverse
action at the hands of the defendant, and show a causal connection between their
protected activity and the adverse action taken against them. See Fasold v. Justice,
409 F.3d 178, 188-89 (3d Cir. 2005) (noting that “retaliation claims . . . under the
PHRA typically proceed under the McDonell Douglas framework”).5 Given that the
PHRA retaliation provision extends to “any person” Halcovage’s argument that the
retaliation provision does not apply to him as an individual has no merit. Moreover,
as we have noted, the amended complaint is replete with allegations that Halcovage
retaliated against the plaintiffs for reporting his discriminatory conduct.
Accordingly, his motion to dismiss this claim is denied.
Further, with respect to aiding and abetting, typically “[a]n individual
employee may be exposed to liability under the aider and abettor provision only if
he acts in a supervisory role because ‘only supervisors can share the discriminatory
purpose and intent of the employer . . . required for aiding and abetting.’” McIlmail
v. Pennsylvania, 381 F.Supp.3d 393, 415 (E.D. Pa. 2019) (quoting Brzozowski v.
Pa. Tpk. Comm’n, 165 F.Supp.3d 251, 263 (E.D. Pa. 2016) (internal citations
omitted)); Davis v. Levy, Angestrich, Finney, Baldante, Rubenstein & Coren P.C.,
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
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20 F.Supp.2d 885, 887 (E.D. Pa. 1998) (“[A]n individual supervisory employee can
be held liable under an aiding and abetting/accomplice liability theory pursuant to §
955(e) for his own direct acts of discrimination or for his failure to take action to
prevent further discrimination by an employee under supervision”). On this score,
sexual harassment is actionable under the PHRA when the harassment “is
sufficiently ‘severe or pervasive’ to alter the ‘terms, conditions, or privileges’ of his
or her employment.” Toth v. California Univ. of Pennsylvania, 844 F.Supp.2d 611,
627 (E.D. Pa. 2012) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57,
63–69 (1986)). The relevant inquiry is “whether the harassment is frequent or severe,
whether it is ‘physically threatening or humiliating,’ and whether it ‘unreasonably
interferes with an employees’ work performance.’” Id. (quoting Harris v. Forklift
Systems, Inc., 510 U.S. 17, 23 (1993)).
Halcovage cannot dispute that, as a County Commissioner, he acted in a
supervisory role with respect to this plaintiffs. Instead, Halcovage argues that the
plaintiffs have not alleged sufficient facts to show that he engaged in discrimination
against them because he did not directly alter the plaintiffs’ conditions or terms of
employment. However, we find that the amended complaint sufficiently alleges
discriminatory actions by Halcovage which affected the conditions of the plaintiffs’
employment and interfered with their work performance. At the outset, we note that
Halcovage meets the definition of a “supervisor,” in that he had the authority “to
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effect a significant change in employment status, such as hiring, firing, failing to
promote, reassignment with significantly different responsibilities, or a decision
causing a significant change in benefits.” Stoud v. Susquehanna County, 471
F.Supp.3d 606, 620 (M.D. Pa. 2020) (quoting Bumbarger v. New Enterprise Stone
and Lime Co., Inc., 170 F.Supp.3d 801, 841 (W.D. Pa. 2016)). The Stoud court found
that, as County Commissioners, the defendants in that case “were unquestionably
[the plaintiff’s] supervisors.” Id.
Furthermore, the amended complaint sets forth events which can be
characterized as rampant sexual harassment directed at all of the plaintiffs, as well
as other female employees of the County. On this score, it is alleged that Halcovage
consistently subjected Doe 3 and Doe 4 to harassment with inappropriate, sexually
charged comments to them or around them. Halcovage is further alleged to have
sexually harassed Doe 1 and Doe 2 from the beginning of their employment with the
County. Thus, these plaintiffs allege that they were subjected to sexually
inappropriate comments, which escalated into requests for oral sex and sexual
intercourse and resulted in forced or coerced sexual acts on several occasions, one
of which is alleged to have occurred in the County Courthouse. They assert that
when they attempted to rebuff these requests by Halcovage, he inserted himself into
their personal and family lives by showing up uninvited at their homes or calling
them incessantly outside of work hours. Doe 1 and Doe 2’s workspace is alleged to
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have been so uncomfortable, fearful, and stressful that they requested to work from
home, and when that request was denied, they were ultimately relocated to another
building so that they would not have to encounter Halcovage. With respect to Doe 3
and Doe 4, they allege that after they reported Halcovage’s harassment and abuse,
he engaged in a pattern of retaliation and harassment which ultimately led to their
demotions and suspensions in 2021.
Accordingly, given these well pleaded allegations, Halcovage’s assertion that
the complaint fails to include allegations that his discriminatory conduct affected the
plaintiffs’ workplace is meritless. Rather, these allegations, taken as true, show
continuous sexual harassment perpetrated by Halcovage, which included soliciting
sexual acts and ultimately forced sexual acts that occurred in the plaintiffs’
workspace, all of which would undoubtedly affect the conditions and terms of the
plaintiffs’ employment. Accordingly, the PHRA’s aiding and abetting provisions
apply here and allow a discrimination claim against Halcovage on an aiding and
abetting theory. Moreover, Halcovage may be liable for PHRA retaliation violations
both directly and as an aider and abettor. Thus, we conclude that the plaintiffs have
sufficiently stated a claim against Halcovage under the PHRA due to his own
discriminatory and retaliatory conduct.
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3. Equal Protection Claims
Next, Halcovage argues that the plaintiffs have failed to state a § 1983 claim
against him for discrimination and creating a hostile work environment because of
their sex in violation of the Fourteenth Amendment.
To state an equal protection claim under § 1983, the plaintiffs must show “that
[they were] subjected to ‘purposeful discrimination’ because of [their] sex.”
Robinson v. City of Pittsburgh, 120 F.3d 1286, 1293 (3d Cir. 1997) (quoting Keenan
v. City of Philadelphia, 983 F.2d 459, 465 (3d Cir. 1992)). Thus, the plaintiffs must
allege “(1) disparate treatment in relation to other similarly situated individuals, and
(2) that the discriminatory treatment was based on sex.” Id. (citing Andrews v. City
of Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990)). The complaint must further
allege “some affirmative conduct by the supervisor that played a role in the
discrimination.” Andrews, 895 F.2d at 1478. Thus, “[t]he necessary involvement can
be shown in two ways, either ‘though allegations of personal direction or of actual
knowledge and acquiescence.’” Id. (quoting Rode v. Dellarciprete, 845 F.2d 1195,
1207 (3d Cir. 1988)).
Further, a plaintiff alleging that a defendant created a hostile work
environment on the basis of sex must allege that “(1) [S]he suffered intentional
discrimination because of her [sex]; (2) the discrimination was severe or pervasive;
(3) the discrimination detrimentally affected her; (4) it would have detrimentally
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affected a reasonable person in like circumstances; and (5) a basis for employer
liability is present.” Komis v. Sec’y of U.S. Dep’t of Labor, 918 F.3d 289, 293 (3d
Cir. 2019) (citations omitted); see Starnes v. Butler County Court of Common Pleas,
50th Judicial District, 971 F.3d 416, 428 (3d Cir. 2020) (“[W]e have been clear that
§ 1983 shares the same elements for discrimination purposes as a Title VII action”).
“[A] hostile work environment exists ‘when the workplace is permeated with
“discriminatory intimidation, ridicule, and insult,” that is “sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an abusive
working environment.” ’ ” Starnes, 971 F.3d at 428 (quoting National R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002) (internal citations omitted)).
Moreover, it is well settled that “[t]he intent to discriminate on the basis of sex in
cases involving sexual propositions, innuendo . . . or sexual derogatory language is
implicit, and thus should be recognized as a matter of course.” Andrews, 895 F.2d
at 1482 n.3.
Here, we find that the plaintiffs have sufficiently alleged discrimination and a
hostile work environment claim under § 1983 against Halcovage. First, the plaintiffs
have alleged that they were subjected to intentional discrimination because of their
sex. As we have noted, the amended complaint asserts that Halcovage subjected the
plaintiffs to unwelcome and inappropriate sexually charged comments, went as far
as to solicit sexual acts from two of the Doe plaintiffs, and allegedly sexually
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assaulted Doe 1 on two separate occasions, one taking place in the County
Courthouse. Indeed, as the Third Circuit has explained, allegations of harassment
that include sexual innuendos and propositions show the intent to discriminate based
on sex. Andrews, 895 F.2d at 1482 n.3. Moreover, “[s]exual assault is the most
severe form of harassment, and severe harassment is actionable under a hostile work
environment claim.” Vandegrift v. City of Phila., 228 F.Supp.3d 464, 485 (E.D. Pa.
2017) (citing Meritor Sav. Bank, 477 U.S. at 67). Thus, we find that the
discrimination was based on sex, and that it was severe or pervasive.
Further, we find that the discrimination would likely detrimentally affect a
reasonable person in similar circumstances, and that it did detrimentally affect the
plaintiffs in this case. Here, the harassment of the plaintiffs was so severe that Doe
1 and Doe 2 requested to work from home so they would not encounter Halcovage
at the courthouse. When this request was denied, they were relocated to another
building so that they would not have contact with him. Doe 3 and Doe 4 also
requested to have no contact with Halcovage, and when they were informed he had
access to their workspace, they opted to work from home so as not to encounter him.
The plaintiffs have alleged that they suffered distress, embarrassment, fear, and
humiliation because of Halcovage’s actions. Accordingly, we find that at this stage,
where we must accept these allegations as true, the plaintiffs have sufficiently
alleged these elements of a hostile work environment claim.
Case 3:21-cv-00477-MCC Document 125 Filed 05/06/22 Page 30 of 33
Finally, there is a basis for employer liability. The basis for employer liability
“depends on whether the harasser is the victim’s supervisor or merely a coworker.”
Huston v. Procter & Gamble Paper Prods. Corp., 568 F.3d 100, 104 (3d Cir. 2009).
Here, we have already determined that Halcovage, as a County Commissioner, is a
supervisor. Thus, because Halcovage is a supervisor, “the employer may be held
strictly liable.” Bumbarger, 170 F.Supp.3d at 837 (citing Huston, 568 F.3d at 107).
Accordingly, we find that the plaintiffs have sufficiently stated a claim for
discrimination and a hostile work environment against Halcovage under § 1983.
Thus, Halcovage’s motion to dismiss these claims will be denied.
4. First Amendment Retaliation
Finally, Halcovage contends that the plaintiffs have failed to state a claim
against him for retaliation under the First Amendment pursuant to § 1983.
In order to state a claim of retaliation under the First Amendment, a plaintiff
must show: “(1) that [she] engaged in a protected activity, (2) that defendants'
retaliatory action was sufficient to deter a person of ordinary firmness from
exercising his or her rights, and (3) that there was a causal connection between the
protected activity and the retaliatory action.” Lauren W. ex rel. Jean W. v.
DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007) (citing Thomas v. Independence Twp.,
463 F.3d 285, 296 (3d Cir. 2006)). Stated differently, the plaintiff must demonstrate
that the protected speech was “a ‘substantial factor’ in the alleged retaliatory action.”
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McAndrew v. Bucks Cnty Bd. Of Comm'rs, 183 F.Supp.3d 713, 731 (E.D. Pa. 2016)
(citing Gorum v. Sessoms, 561 F.3d 179, 184 (3d Cir. 2009)). If a plaintiff makes
such a showing, the burden then shifts to the defendants to show that, even if the
protected speech had not taken place, it would have taken the same action.
With respect to the third element, there are three ways in which a plaintiff can
establish causation for a First Amendment retaliation claim, showing, “(1) an
‘unusually suggestive temporal proximity’ between the speech and the alleged
retaliatory conduct;” (2) a ‘pattern of antagonism coupled with timing’; or (3) that
the ‘record as a whole’ permits the trier of fact to infer causation. McAndrew, 183
F.Supp.3d at 737 (quoting DeFlaminis, 480 F.3d at 267).
When the plaintiff is a public employee, there are special considerations which
we must balance to determine if their speech is protected under the First
Amendment. To be protected speech under the First Amendment, a public
employee’s speech must involve a matter of public concern, in that “it can be fairly
considered as relating to any matter of political, social or other concern to the
community.” Middleton v. Deblasis, 844 F.Supp.2d 556, 563-64 (E.D. Pa. 2011)
(quoting Baldassare v. New Jersey, 250 F.3d 188, 195 (3d Cir. 2001)). “When an
employee exposes malfeasance by a government official, it is a matter of public
concern.” Starnes, 971 F.3d at 429 (citing Azzaro v. County of Allegheny, 110 F.3d
968, 978-79 (3d Cir. 1997)). Additionally, “[c]laims of sexual . . . discrimination can
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constitute matters of public concern, even if plaintiff makes those claims in private.”
Middleton, 844 F.Supp.2d at 564 (citing Givhan v. W. Line Consol. Sch. Dist., 439
U.S. 410, 415–16 (1979); Azzaro, 110 F.3d at 978). On this score, the Third Circuit
has found that private complaints regarding sexual harassment by elected officials
constituted protected speech, as the alleged conduct was “relevant to the electorate’s
evaluation of the performance of the office of an elected official.” Azzaro, 110 F.3d
Here, Halcovage argues that because the plaintiffs allege that they made their
complaints of harassment and abuse internally, their speech was not protected. At
the outset, we note that the facts of the instant case are analogous to Azzaro, a case
in which the plaintiff alleged that she was sexually harassed by a County
Commissioner. Thus, the plaintiffs’ speech in this case, although the complaints
were first made privately through the internal process, similarly constitute a matter
of substantial public concern, as they are “relevant to the electorate’s evaluation of
the performance of the office of an elected official.” Id. Moreover, Halcovage’s
argument completely ignores the fact that the plaintiffs have alleged retaliatory
conduct after the filing of their EEOC and federal civil rights complaints. See
Starnes, 971 F.3d at 429 (“Starnes made her report to the EEOC as a citizen and the
statement involved a matter of public concern because it dealt with sexual
malfeasance and an abuse of power by a judge. Additionally, Starnes's EEOC
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complaint is ‘petitioning activity’ because her complaint was not clearly frivolous
or a sham”). The plaintiffs further allege that Doe 3 and Doe 4 were demoted two
days after the initial complaint was filed in this case, and the demotion and
restructuring of their office was voted on by Halcovage.6
Accordingly, we find at this stage that the plaintiffs have adequately alleged
facts to state a claim against Halcovage for retaliation in violation of the First
Amendment. Thus, his motion to dismiss will be denied.
Accordingly, for the foregoing reasons, Defendant Halcovage’s motion to
dismiss (Doc. 73) will be GRANTED as to the direct PHRA discrimination claim
but DENIED in all other respects.
An appropriate order follows.
Dated: May 6, 2022
S/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
The retaliatory acts alleged to have occurred after the EEOC and federal civil rights
complaints were filed cut against Halcovage’s belated argument in his reply brief
that the plaintiffs’ retaliation claim is barred by the statute of limitations. (Doc. 92,
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