The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
MEMORANDUM OPINION AND ORDER OF COURT
Before the Court for consideration and disposition is DEFENDANT'S MOTION TO DISMISS, with brief in support (Document Nos. 2 & 3). The issues have been fully briefed, and the matter is ripe for disposition. See Document Nos. 4 & 5. For the reasons which follow, the Court finds that each count of Plaintiff's Complaint fails to state a claim upon which relief can be granted. However, the Court will afford Plaintiff an opportunity to file an Amended Complaint which states a legally sufficient claim for intentional infliction of emotional distress. If Plaintiff fails to do so, the case will be dismissed with prejudice.
The following background is drawn from the Complaint. Prior to December of 2000, plaintiff Margaret Timm ("Plaintiff") was employed as the General Manager of the Pittsburgh branch offices of In Home Health, Inc. Complaint at ¶ 7. On or about December 28, 2000, defendant Manor Care, Inc. ("Defendant") purchased In Home Health, Inc. and Plaintiff became Defendant's Director of Home Care. Id. at ¶¶ 8, 10. Plaintiff's duties included "management of operations, financial activities, and human resources responsibilities in the Pittsburgh offices." Id. at ¶ 11. At the time of the alleged acts of discrimination her salary was $91,520.00. Id. at ¶ 12.
The Complaint alleges that on multiple occasions Plaintiff was told, "You look old," and that Plaintiff's supervisor told her that she "looked tired and that she looked like she was waiting around until she could retire." Id. at ¶¶ 15-16. It is also alleged that one of Plaintiff's human resources representatives told Plaintiff "that she should retire and that she should find a less stressful job in health care," and that another employee asked, "Aren't you getting too old for this?" Complaint at ¶¶ 17-18. Additionally, the Complaint alleges that "there was a pattern of preferring the younger employees and discriminating against the older employees," and that there was also "a pattern of terminating older workers and replacing them with younger workers." Id. at ¶¶ 19, 27.
Plaintiff's employment was terminated on March 31, 2003. Id. at ¶ 24. She was told that her termination was due to mistakes made in an accreditation survey, but Plaintiff alleges that she was told not to work on the accreditation survey, and that the younger employees who were actually responsible for the accreditation survey were not fired. Id. at ¶ 21-23.
The Complaint alleges that on September 24, 2003, Plaintiff filed a charge of age discrimination with the Pennsylvania Human Relations Commission ("PHRC"). Id. at ¶ 3. The PHRC found that the charge of discrimination was untimely, albeit by one day, because Plaintiff faxed a copy of her complaint to the PHRC on September 25, 2003, which was "still 181 days after March 28, 2003, the date the Complainant learned that she had been terminated." Defendant's Br., exh. A at unnumbered 2. Thus, the PHRC dismissed Plaintiff's complaint as untimely filed. Id.
On December 14, 2005 Plaintiff filed a three-count Complaint in the Court of Common Pleas of Allegheny County, Pennsylvania. The Complaint alleges age discrimination, in violation of the Pennsylvania Human Relations Act, 43 Pa. C.S.A. § 951 et seq. ("PHRA"), (Count 1), wrongful discharge based upon age, in violation of Pennsylvania's public policy (Count 2), and Intentional Infliction of Emotion Distress (Count 3). Defendant removed the case to this Court pursuant to 28 U.S.C. §§ 1332 and 1441, i.e., diversity of citizenship jurisdiction. Document No. 1. Defendant has filed a Motion to Dismiss in which it contends that each count fails to state a claim upon which relief can be granted.
When considering a motion to dismiss pursuant to Rule 12(b)(6) the Court accepts as true all well pleaded allegations of fact. Pennsylvania Nurses Ass'n. v. Pennsylvania State Educ. Ass'n., 90 F.3d 797, 799-800 (3d Cir. 1996), cert. denied, 519 U.S. 1110 (1997). In addition, the Court must view all facts, and reasonable inferences drawn therefrom, in the light most favorable to the non-movant. General Motors Corp. v. New A.C. Chevrolet, Inc., 263 F.3d 296, 325 (3d Cir. 2001). Dismissal is appropriate 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); see also Lorenz v. CSX Corp., 1 F.3d 1406, 1411 (3d Cir. 1993).
The Federal Rules of Civil Procedure do not require detailed pleading of the facts on which a claim is based, they simply require "a short and plain statement of the claim showing that the pleader is entitled to relief," which statement is sufficient to "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Fed.R.Civ.P. 8(a)(2); see also Conley v. Gibson, 355 U.S. 41, 47 (1957). Notwithstanding this standard, the Court "need not credit a complaint's bald assertions or legal conclusions." In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997) (internal quotations omitted).
Generally, "to the extent that [a] court considers evidence beyond the complaint in deciding a 12(b)(6) motion, it is converted to a motion for summary judgment." Anjelino v. New York Times Co., 200 F.3d 73, 88 (3d Cir. 1999). However, in resolving a 12(b)(6) motion to dismiss, a court may look beyond the complaint to matters of public record, including court files and records, decisions of government agencies and administrative bodies, and documents referenced in the complaint or essential to a plaintiff's claim which are attached to a defendant's motion. Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993).*fn1 The parties have submitted orders from the underlying PHRC proceedings in support of their respective positions regarding exhaustion of administrative remedies. Because exhaustion of administrative remedies is essential to Plaintiff's PHRA claim, the Court has considered them without the necessity of converting the pending motion to dismiss into a motion for summary judgment. Pension Ben. Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196-97 (3d Cir.), cert. denied, 510 U.S. 1042 (1994).
A. Age Discrimination In Violation ...