The opinion of the court was delivered by: Magistrate Judge Blewitt
The Plaintiff, John Bell, originally filed this employment discrimination action on June 4, 2005, against Defendant Mericle Development Corp., pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., Count I, and the Family Medical Leave Act ("FMLA") 29 U.S.C. § 2601, et seq. (requires employers to allow an employee to take unpaid leave to care for his serious health condition and prohibits retaliation by employer for doing so), Count II. (Doc. 1). Defendant filed its Answer to the original Complaint on June 28, 2005. (Doc. 4). Subsequently, Plaintiff filed an Amended Complaint on November 21, 2005 (Doc. 12), in which he retained his two stated original claims and asserted two new counts under the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. C.S.A. §§ 95, et seq., one as against the original Defendant, and one against a new Defendant, Tina Rothery, a supervisor of Defendant Mericle. (Counts III & III (sic) of Amended Complaint, Doc. 12).*fn1
Presently ripe for disposition is the Motion to Dismiss the Plaintiff's Amended Complaint filed on behalf of Defendant Mericle Development Corp. ("Defendant Mericle") on December 14, 2005. (Doc. 15).*fn2 Defendant argues that Plaintiff did not exhaust his administrative remedies with the PHRC before he filed this action, and thus his new PHRA claims must be dismissed.*fn3
I. Motion to Dismiss Standard
When evaluating a motion to dismiss, the court must accept all material allegations of the complaint as true and construe all inferences in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). A complaint should not be dismissed for failure to state a claim unless it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 44-46 (1957); Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988). A complaint that sets out facts which affirmatively demonstrate that the plaintiff has no right to recover is properly dismissed without leave to amend. Estelle v. Gamble, 429 U.S. 97, 107-108 (1976).
II. Allegations of the Complaint
The Plaintiff alleges that he began working for Defendant Mericle in October 2002 as a construction worker, that he is 30 years old, and that he has a seizure disability. Plaintiff avers that he suffered a seizure on June 3, 2004 and passed out while he was working for Defendant at a job site. Plaintiff was taken to the hospital by ambulance. Due to this condition, Plaintiff took the next day off of work. Plaintiff returned to work the following Monday, June 7, 2004, and informed his supervisor that he required time off to treat his medical condition. Defendants contacted him on this day to discuss his medical restrictions. Thereafter, Plaintiff had to leave work on June 10 and 11 for medical appointments and tests, and Defendants were aware of these appointments. On June 14, 2004, Plaintiff called off work due to a recurring headache since his June 3 seizure, and was then terminated. (Doc. 12, ¶'s 11.-22.).
Plaintiff also alleges that Defendants knew he had a disability, that he was significantly limited in major life functions due to his disability, and that he requested reasonable accommodation for time off for medical treatment, but Defendants refused to allow it. (Id., ¶'s 23.-25.). Thus, Plaintiff alleges that on June 14, 2004, he was terminated from his position due to his disability.
The Plaintiff represents that he has filed a claim of employment discrimination with the Equal Employment Opportunity Commission ("EEOC") and the Pennsylvania Human Relations Commission ("PHRC"). (Id., ¶ 4. a.). The EEOC issued a Notice of Right to Sue on May 31, 2005.
(Id., ¶ 4. b. & Doc. 17, Ex. A).*fn4
Defendant Mericle moves to dismiss the Plaintiff's Amended Complaint on one ground. The single ground raised is that Plaintiff has failed to exhaust his administrative remedies with the PHRC prior to bringing this action in federal court, and thus his two new PHRA claims raised in his amended pleading should be dismissed.
A. Exhaustion of Administrative Remedies with Respect to PHRA Claims
We now turn to the argument that the Plaintiff has failed to exhaust his administrative remedies with the PHRC with respect to his PHRA claims. The Defendant argues that the Plaintiff has failed to exhaust his administrative remedies with respect to his state PHRA causes of action since he filed his federal action ...