Moore v. Penn. Dept. Military & Veterans Affairs

• Decision Date: 26 August 2002
• Docket Number: CIVIL ACTION NO. 01-6241.
• Citation: 216 F.Supp.2d 446
• Parties: Amanda MOORE, Plaintiff, v. PENNSYLVANIA DEPARTMENT OF MILITARY AND VETERANS AFFAIRS and Pennsylvania Army National Guard, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

216 F.Supp.2d 446

Amanda MOORE, Plaintiff, v. PENNSYLVANIA DEPARTMENT OF MILITARY AND VETERANS AFFAIRS and Pennsylvania Army National Guard, Defendants.

CIVIL ACTION NO. 01-6241.

United States District Court, E.D. Pennsylvania.

August 26, 2002.

Nina B. Shapiro, Lancaster, PA, for Plaintiff.

Beth Anne Smith, Philadelphia, PA, for Defendant.

MEMORANDUM AND ORDER

DuBOIS, District Judge.

MEMORANDUM

This matter is before the Court on Defendant Pennsylvania Department of Military and Veterans Affairs' Motion to Dismiss Plaintiff's Complaint. For the reasons which follow, the Court will grant the Motion. Plaintiff's Title VII claim against both defendants will be dismissed without prejudice to plaintiff's right to file an amended complaint in conformity with this Memorandum if warranted by the facts;¹ plaintiff's claim under the Pennsylvania Human Relations Act against the moving defendant will be dismissed with prejudice.

I. BACKGROUND

The case arises out of plaintiff's application for part-time employment in the Pennsylvania Army National Guard. On September 28, 1999, Sergeant Andrew Funk, a recruiter for the Pennsylvania Army National Guard, interviewed plaintiff for such a position. Complaint, ¶ 13. Sergeant Funk, dressed in full uniform, began the interview at a public restaurant, and "explained to plaintiff the military entrance procedures, compensation, benefits, tuition reimbursement, and description of service assignments." Id., ¶ 14. He continued the interview at a tavern, where he allegedly purchased alcoholic beverages for plaintiff, who was younger than the legal drinking age. Id., ¶ 15-16. According to the Complaint, plaintiff left the tavern at midnight. Id., ¶ 17. Sergeant Funk followed her out of the tavern and then sexually assaulted her in the parking lot of the tavern. Id. ¶ 18. Sergeant Funk pled guilty to furnishing alcohol to a minor, and the National Guard discharged him from service. Id. ¶ 20-21.

Plaintiff brought suit against moving defendant, Pennsylvania Department of Military and Veterans Affairs ("PDMVA"), and the Pennsylvania Army National Guard. The Pennsylvania Army National Guard has not responded to the Complaint. In the Complaint, plaintiff asserts claims under Title VII, 42 U.S.C. § 2000e et seq., and the Pennsylvania Human Relations Act, 43 P.S. 951 et seq.

II. DISCUSSION

Defendant PDMVA moves to dismiss plaintiff's Title VII claim on the following grounds:

1. Plaintiff failed to plead an agency relationship between moving defendant and Sergeant Funk;

2. Plaintiff failed to allege that Sergeant Funk made sex a condition of employment; and,

3. Title VII does not afford protection to uniformed personnel of the armed forces.

The motion to dismiss plaintiff's claim under the Pennsylvania Human Relations Act is based on sovereign immunity under the Eleventh Amendment. The Court will address these arguments in turn.

A. Claim Under Title VII

1. Theory of Sexual Harassment

Plaintiff does not identify the Title VII theory on which she bases her claim. Thus, the Court will consider the two types of Title VII claims which might arguably be raised by plaintiff's allegations— claims of hostile work environment and a quid pro quo claim of sexual harassment under Title VII.

The elements of a prima facie case of hostile work environment sexual harassment under Title VII are: "`(1) the employee suffered intentional discrimination [in a work environment] because of [his or her] sex; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect a reasonable person of the same sex in that position; and (5) the existence of respondeat superior liability.'" Bonenberger v. Plymouth Township, 132 F.3d 20, 25 (3d Cir.1997) (quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990)). Any such claim under Title VII must fail because plaintiff was not at the time of the alleged assault an employee and thus could not have been exposed to a hostile workplace.

With respect to a claim of quid pro quo sexual harassment, the Third Circuit has held that:

unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature constitute [quid pro quo] sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment [or] (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual.

Id. at 27 (internal quotation omitted). Those elements were modified by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998), to require an actual change in employment conditions in cases where a plaintiff refused to submit to advances. The Third Circuit thereafter held that "to prove a claim of quid pro quo sexual harassment, a plaintiff must demonstrate either that she submitted to the sexual advances of her alleged harasser or suffered a tangible employment action as a result of her refusal to submit to those sexual advances." Hurley v. Atlantic City Police Dep't, 174 F.3d 95, 133 (3d Cir.), cert. denied, 528 U.S. 1074, 120 S.Ct. 786, 145 L.Ed.2d 663 (2000) (citing Newton v. Cadwell Labs., 156 F.3d 880, 883 (8th Cir.1998); Ponticelli v. Zurich American Ins. Group, 16 F.Supp.2d 414, 428 (S.D.N.Y.1998)).

Neither plaintiff's original Complaint nor her proposed amended complaint allege that Sergeant Funk explicitly or impliedly made sex a condition of her employment. Neither the original Complaint nor the proposed amended complaint allege the details of the claimed agency relationship. The absence of these essential elements of a Title VII claim necessitates dismissal of the Complaint, although the Court will grant plaintiff leave to file an amended complaint in conformity with this Memorandum if warranted by the facts.

2. Applicability of Title VII to Plaintiff

There is a separate issue relating to Title VII on which plaintiff's Complaint is lacking. Plaintiff fails to allege in the Complaint the nature of the position for which she was applying. The question of whether plaintiff may proceed under Title VII depends, in part, on the position in the National Guard for which she applied.

a. Plaintiff's Potential Status

"[T]he National Guard is a state agency, under state authority and control [with its] activity, makeup, and function ... provided for, to a large extent, by federal law." Johnson v. Orr, 780 F.2d 386, 388 (3d Cir.1986) (quoting New Jersey Air Nat'l Guard v. Fed. Labor Rel. Auth., 677 F.2d 276, 278-79 (3d Cir.1982)). It is staffed by military and civilian personnel. Jorden v Nat'l Guard Bureau, 799 F.2d 99, 101 (3d Cir.1986). The Court has identified two types of civilian personnel employed by the Guard: hybrid (dual-status) employees and purely civilian employees.² Taylor v. Jones, 653 F.2d 1193, 1199 (8th Cir.1981). Purely civilian employees are those persons who work in positions that do not require membership in the National Guard; they are state employees. Id. Unlike purely civilian employees, hybrid employees, or National Guard technicians, hold dual civilian and military positions. These employees are hired "to perform a wide range of administrative, clerical, and technical tasks within a military context." Urie v. Roche, 209 F.Supp.2d 412, 415 (D.N.J.2002) (Rodriguez, J.). The National Guard Technicians Act, 32 U.S.C. § 709, which codifies the nature of this position and classifies National Guard technicians as federal employees, requires that these employees serve as members of the National Guard and hold the military grade specified for the civilian position. Id. § 709(b).

b. Effect of Plaintiff's Potential Status on her Entitlement to Title VII Protection

The Supreme Court has repeatedly emphasized the special status of the military in our judicial system. See, e.g., Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983). In Chappell, the Court applied the doctrine of intramilitary immunity first announced in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), to bar enlisted military personnel from maintaining lawsuits to recover damages from a superior officer for alleged constitutional violations.³ Id. at 305, 103 S.Ct. 2362. "The special status of the military has required, the Constitution has contemplated, Congress has created, and this Court has long recognized two systems of justice, to some extent parallel: one for civilians and one for military personnel." Id. at 303-304, 103 S.Ct. 2362 (citation omitted). "The special nature of military life, the need for unhesitating and decisive action by military officers and equally disciplined responses by enlisted personnel, would be undermined by a judicially created remedy exposing officers to personal liability at the hands of those they are charged to command." Id. at 304, 103 S.Ct. 2362.

In addition to the unique disciplinary structure of the military establishment, the Court found another "special factor" dictated "that it would be inappropriate to provide enlisted military personnel a Bivens-type remedy against their superior officers." Id. (citation omitted). The Constitution vests Congress plenary authority over the military, and, in exercising that authority, Congress has established statutes regulating military life and provided for a comprehensive internal system of justice which furnishes a review and remedy for complaints and grievances of uniformed members of the armed forces. Id. at 301-03, 103 S.Ct. 2362. Because Congress, in its exercise of its plenary authority over military life, did not provide enlisted military personnel with a Bivens-type remedy, the Court reasoned that "[a]ny action to provide a judicial response by way of [a Bivens-type] remedy would be plainly inconsistent with Congress' authority in this field." Id. at 304, ...