The opinion of the court was delivered by: KATZ
AND NOW, this 23rd day of March, 1998, upon consideration of defendants' Motion to Dismiss, and the response thereto, it is hereby ORDERED that said motion is GRANTED in part and DENIED in part as follows:
Count I is DISMISSED as against defendant Mulvaney, and against defendant DPW to the extent it alleges retaliation;
Counts II, III, IV, and V are DISMISSED as against defendant DPW and defendant Mulvaney in his official capacity; and
The remainder of the motion is DENIED. It is further ORDERED that
Service on all defendants should be effected according to Federal Rule of Civil Procedure 4 forthwith; and
Plaintiff may amend his complaint within ten days of this Order.
Plaintiff Richard Dill is an African American male who was employed by the Commonwealth of Pennsylvania Department of Public Welfare (DPW) from September, 1976 until he resigned in November, 1984. Comp. PP 9, 12. During his employment, Mr. Dill served as a union representative who on numerous occasions represented fellow employees against management to enforce the union-negotiated contract. In this capacity, plaintiff participated in negotiations, strikes, stop work orders, and walkouts. Comp. PP 13, 14. In November, 1995, plaintiff applied for reinstatement to DPW. His application was denied, and the reason given was plaintiff's poor performance and attendance records during his prior DPW employment. Comp. PP 16, 17, 19. Plaintiff asserts that these reasons were pretextual, and the actual reasons for the denial of his reinstatement were his race and/or retaliation for his having engaged in protected activities. Comp. PP 18, 21.
In his amended complaint, plaintiff alleges violations of Title VII for disparate treatment and retaliation (Count I), 42 U.S.C. §§ 1981 and 1983 (Counts II and III), the Pennsylvania Human Relations Act (Count IV), and the Pennsylvania Public Employee Relations Act (Count V) against DPW and the DPW Philadelphia County Assistance Office's Director of Personnel Services, James L. Mulvaney. In the present motion to dismiss, defendants make several arguments for dismissal under Federal Rule of Civil Procedure 12(b)(1) for Eleventh Amendment immunity, Rule 12(b)(5) for insufficient service, and Rule 12(b)(6) for failure to state a claim, each of which will be discussed in turn below.
Under Rule 12(b)(5), the court has "broad discretion" in deciding whether to dismiss the complaint for insufficient service. See Umbenhauer v. Woog, 969 F.2d 25, 30 (3d Cir. 1992). The Third Circuit has instructed that "dismissal of a complaint is inappropriate when there exists a reasonable prospect that service may yet be obtained." Id. Given that instruction, the court chooses not to dismiss the complaint ...