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June 10, 2005.


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.

I. Background*fn1

  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, 2004.

  II. Standard of Review

  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)).

  III. Discussion

  A. Improper Service

  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. 4(m).

  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 ...

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