The opinion of the court was delivered by: DAVID COAR, District Judge
MEMORANDUM OPINION AND ORDER
Before this Court are is a motion to dismiss the complaint of
James Gumm ("Gumm" or "Plaintiff"), filed by Carol Scholl
("Scholl" or "Defendant"). Scholl seeks to dismiss Counts IV, V,
VII, VIII, and IX of Gumm's complaint. In the alternative, she
requests that this Court dismiss Gumm's requests for punitive
relief on those counts.*fn1 For reasons stated below,
Scholl's motion to dismiss is GRANTED IN PART and DENIED IN PART.
This Court will not dismiss Count IV and V or Gumm's request
for punitive relief on those counts. This Court will dismiss
Counts VII, VIII, and IX with respect to Scholl; consequently,
Scholl's request to deny punitive damages on those counts MOOT. Factual and Procedural Background*fn2
Plaintiff James Gumm first began working in the Milton Township
Assessor's office in 1988. ¶ 8. He started as a deputy assessor
and was later elected to the post of Assessor. ¶ 8. He began his
four-year term in 1998, was re-elected, and began his second
four-year term in 2002. ¶¶ 8-9.
As Assessor, Gumm updated the information technology in the
Assessor's Office. ¶¶ 10-11. Since early 2002, the total number
of employees necessary for the day-to-day operations of the
Assessor's office has decreased by half, from 20 employees to 10
employees. ¶ 13.
When Gumm took office, there was a substantial disparity in
residential and commercial assessments. ¶ 14. A number of
commercial properties had either been under-assessed or not
assessed at all. ¶ 14. Gumm was particularly concerned about the
exemptions and underappraisals that benefitted elected officials.
During his tenure, Gumm updated commercial assessments. ¶ 17.
He denied Milton Township Board member James Flickinger four of
the five assessment exemptions that Flickenger had been
previously given. ¶ 19. He also denied exemptions to a number of
individuals associated with Flickenger and increased the
assessments of others associated with Flickenger as much as five
times what they had paid in the past. ¶ 22.
Gumm's moves met with considerable resistance from a number of
people, including local and civic political leaders who objected
to the assessment corrections. ¶ 16. Gumm was repeatedly warned
by elected officials and political leaders that his reelection
would be opposed and efforts would be made to destroy him
politically. ¶ 16. Flickenger, for example, participated in closed sessions of
public bodies, met with members of Gumm's church to discuss the
most intimate details of Gumm's life, encouraged disturbances
among Gumm's employees, publicly maligned Gumm, and campaigned
and voted to deny Gumm the necessary resources to do his job. ¶
Ron Smith, a former Milton Township Assessor who was employed
by Milton Township in another capacity during the events in
question, vocalized a strong interest in seeing Gumm removed from
office. ¶ 24. Smith pursued Gumm's removal by meeting with
employees from the Assessor's office and encouraging them to
pursue claims for disparate treatment of one kind or another. ¶
28. In 2000, he met repeatedly with employee Carol Scholl. ¶ 29.
After Gumm took office, Smith and Scholl met several times to
discuss the viability of a lawsuit against Gumm that would serve
to tarnish his reputation and credibility such that he would be
forced to leave office. ¶ 32. Smith had previously assisted
Scholl in pursuing claims for sexual harassment against another
individual. ¶ 30.
In or about August 2000, Scholl came to work wearing a t-shirt
that pictured tomatoes and stated "firm." ¶ 156. She later
complained that Gumm touched her shirt and said the word "firm."
¶ 157. Later that day, she met with a local police officer. ¶
158. She told the officer that she had had a tape recorder in her
pocket during a meeting with Gumm and that she wanted to use the
recording. ¶ 158. The officer told her it was illegal. ¶ 158.
When Gumm later demanded a copy of the tape, she said it she had
recorded over it. ¶ 160. When Scholl was asked for a copy of the
tape that had been "taped over" she claimed that it had been
destroyed. ¶ 161.
In late 2000, Scholl and seven other employees in the
Assessor's office prepared a claim against Gumm and another
Assessor's Office employee, Larry Gage. ¶ 37. In February 2001, Scholl filed a claim with the EEOC alleging, among other things,
that she had "felt pressured for dates with Gumm." ¶ 33. Scholl
researched the law on sexual harassment, came to work wearing
provocative clothing and a hidden microphone with the intent that
he would be provoked into saying or doing something that would
support a claim for sexual harassment; and met with other
employees in the office to convince them that they were underpaid
or under-utilized on account of their gender. ¶ 35. Scholl's
personal files indicate that she and Gumm were "developing a
friendship." ¶ 34.
The complaint was lodged shortly after a meeting in which
Township Board member Barbara Murphy advised the complainants on
how to craft their complaint so it would be covered by the
Township's insurance policy. ¶ 38. The employees alleged that the
Assessor's Office constituted a hostile work environment and
Scholl alleged that Gumm was pursuing her for dates. ¶ 39. The
claims were asserted against the Assessor's Office and the Milton
Township Board. ¶ 40.
The Board's retained attorney, Richard Russo, interviewed both
the claimants and a number of individuals they identified as
witnesses. ¶ 41. Russo accumulated over two dozen audio cassettes
of testimony and a box of documentation regarding claims against
Gumm. ¶ 42. The tapes revealed that many, if not all of the
claims against Gumm, were completely lacking in merit or
credibility. ¶ 44. Gumm was not told that many of the claimants
had already acknowledged during their taped interviews with Russo
that the claims filed with the EEOC were lacking in merit. ¶ 54.
Scholl said during her interview that other than one instance,
there had been no inappropriate touching. ¶ 46. Another witness
was among many who testified that she thought the allegations had
been fabricated to get Gumm out of office. ¶ 47. Gumm was not given access to the tapes during the investigation
or its subsequent resolution. ¶ 43. He lodged complaints with the
Township Supervisor and the Township Human Rights Consultant
regarding the Board's handling of the investigation. ¶ 49.
Freedom of information requests were made on his behalf. ¶ 49. He
had asked that the counsel retained to represent him provide him
with the documents. ¶ 49.*fn3
Before the mediation, Gumm had repeatedly advised his counsel
and the other defendants that he believed the evidence would
exonerate him and that he therefore had no interest in
considering the kinds of settlements that were likely to be
discussed at the mediation. ¶ 52. Gumm vehemently denied any
liability and repeatedly asked that the Board and ...