The opinion of the court was delivered by: YVETTE KANE, District Judge
Pending before the Court is Defendants' motion to dismiss
Plaintiff's Second Amended Complaint (Doc. No. 31). For the
reasons that briefly follow, the Motion will be granted in part.
Plaintiff is an African-American employee of the Pennsylvania
Department of General Services. Plaintiff first began working for
the Department in 1985 as a Journeyman's Assistant. In 1988,
Plaintiff was promoted to Refrigeration Mechanic. In 1994 or
1995, Plaintiff was promoted to Refrigeration Plant Supervisor I.
Plaintiff is a union member and has served as a union steward
with Local #2162 as a Refrigeration Mechanic, and with Local
#2245 as a supervisor. On or about September 16, 2002, Plaintiff
was suspended without pay for five days for insubordination,
disrespectful conduct, failing to abide by established operating
procedures, unauthorized absence and neglect of supervisory
responsibilities. These allegations arose out of an incident
during which Plaintiff and a subordinate employee used a state vehicle to pick up food at approximately
6:45 p.m. This vehicle was involved in a traffic accident and
Plaintiff was unable to return to the work site until
approximately 3:00 a.m. In addition to being suspended, Plaintiff
was demoted from Refrigeration Plant Supervisor to Refrigeration
Mechanic as a result of this incident. On November 15, 2002, a
white employee was promoted to Plaintiff's former position of
Refrigeration Plant Supervisor.
Plaintiff commenced this litigation by filing a complaint on
April 2, 2004 in which he asserted a number of civil rights
violations against all Defendants. (Doc. No. 1.) Plaintiff
amended the complaint for the first time on September 10, 2004.
(Doc. No. 11.) Subsequently, in order to address certain
deficiencies in the amended complaint, Plaintiff filed a
second amended complaint on December 13, 2004. (Doc. No. 30.) Defendants
moved to dismiss the second amended complaint on December 27,
A motion to dismiss tests the legal sufficiency of the
complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993).
When considering a motion to dismiss, the court accepts as true
all factual allegations contained in the complaint and views them
in the light most favorable to the plaintiff. U.S. Express Lines
Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). The plaintiff
is required to "set forth sufficient information to outline the
elements of his claim or to permit inferences to be drawn that
those elements exist." Kost, 1 F.3d at 183 (citations omitted).
A court should grant a motion to dismiss only if it appears the
plaintiff can prove no set of facts in support of his claim that
would entitle him to relief. Wisniewski v. Johns-Manville
Corp., 759 F.2d 271, 273 (3d Cir. 1985) (citations omitted).
A motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) is properly granted when, taking all factual allegations and inferences as true, the moving
party is entitled to judgment as a matter of law. Markowitz v.
Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). The burden
is on the moving party to show that no claim has been stated.
Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir. 1980). "A court
may dismiss a complaint only if it is clear that no relief could
be granted under any set of facts that could be proved consistent
with the allegations." Hishon v. King & Spalding, 467 U.S. 69,
73 (1984). 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,
908 (3d Cir. 1997). "The issue is not whether a plaintiff will
ultimately prevail but whether the claimant is entitled to offer
evidence to support the claims." Lake v. Arnold, 112 F.3d 682,
688 (3d Cir. 1997) (citing Scheuer v. Rhodes, 416 U.S. 232, 236
(1974), overruled on other grounds by Harlow v. Fitzgerald,
457 U.S. 800 (1982)).
Defendants Myers and Phillips contend that Plaintiff's
second amended complaint should be dismissed because "as of the filing
of [the] brief in support of the motion to dismiss," Plaintiff
had not served the summons or any of the complaints filed upon
either Defendant. Therefore, they argue the 120-day period for
service provided by Rule 4(m) of the Federal Rules of Civil
Procedure has expired. (Doc. No. 32, at 6.); Fed.R.Civ.P.
Subsequent to Defendants' filing the pending motion to dismiss,
the Court entered an Order granting Plaintiff an extension of
time to serve Defendants Myers and Phillips, and directed the
Clerk of Court to reissue a summons. (Doc. No. 35.) Subsequently,
both Defendants waived service. (Doc. No. 38.) Therefore, the Court finds that this asserted basis for
dismissing the second amended complaint has been rendered moot.
B. Eleventh Amendment Immunity and Immunity Under the PHRA
Defendants next argue that Plaintiff's claims against the
Department of General Services and all individual Defendants
should be dismissed because the Department of General Services
and all of its employees enjoy immunity ...