The opinion of the court was delivered by: Conti, District Judge
Pending before the court are two motions: (1) a motion filed by defendant Consol Pennsylvania Coal Company, Bailey Mine (Consol Energy, Inc.) ("defendant" or "Consol") to dismiss the complaint of plaintiff Jesse Lowell Satterfield ("plaintiff" or "Satterfield") for failure to state a claim and to strike plaintiff's claim for punitive damages (Doc. No. 24) ("defendant's motion"); and (2) a motion filed by plaintiff for leave to file a supplemental complaint (Doc. No. 28) ("plaintiff's motion").
Previously in the course of this civil action, plaintiff filed a twice-amended complaint (Doc. No. 13) alleging that defendant violated the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. (the "ADEA"), and the Fifth and Fourteenth Amendments to the Constitution of the United States (Doc. No. 13). In response to this second amended complaint, defendant filed a motion to dismiss for failure to state a claim (Doc. No. 15). On March 31, 2005, upon consideration of defendant's motion to dismiss, plaintiff's response, and accompanying pleadings by both parties, the court entered an order (the "March 31, 2005 Order") dismissing without prejudice one of plaintiff's ADEA claims, the overtime claim, and dismissing with prejudice plaintiff's remaining claims.
Specifically, the court dismissed with prejudice plaintiff's ADEA claims other than his overtime claim as time-barred*fn1 and dismissedwith prejudice plaintiff's Fifth and Fourteenth Amendment claims for failure to state a claim.*fn2 The court, however, to the extent permitted by law, dismissed plaintiff's overtime claim without prejudice and provided plaintiff the opportunity to file a new complaint relating to his overtime claim within thirty days of the date of the order.
As set forth in more detail herein, the court will grant defendant's motion to dismiss the May 2, 2005 complaint and grant plaintiff's motion for leave to file a supplemental complaint, treating plaintiff's heretofore filed "Supplemental Complaint" as a new complaint for the reasons set forth herein.
I. Defendant's Motion to Dismiss and to Strike the Claim for Punitive Damages
Plaintiff's complaint filed on May 2, 2005*fn3 (plaintiff's "May 2, 2005 complaint") alleges essentially the same claims that were alleged in his second amended complaint, including the overtime claim that was dismissed without prejudice, and adds a new claim for hostile work environment. In addition, in this complaint, plaintiff argues that claims that are otherwise time-barred are properly before this court as a part of a "continuing violation" whose course extended within the statutory period. Defendant argues in response that many of plaintiff's claims in the May 2, 2005 complaint have been dismissed with prejudice and should be dismissed on the basis of res judicata; that plaintiff's overtime claim is legally defective because plaintiff commenced his civil action prior to filing the charge of a discrimination and therefore did not exhaust his administrative remedies with respect to that claim and time-barred because the May 2, 2005 complaint was filed more than 90 days after the EEOC's dismissal of his charge; and that plaintiff's hostile work environment claims are invalid as outside the scope of the charge of discrimination. In addition, defendant moves to strike plaintiff's prayer for relief in the form of punitive damages. The court addresses these issues in turn.
Facts Accepted As True for Purposes of Deciding the Motion to Dismiss
Defendant is a private Delaware corporation registered to do business in the Commonwealth of Pennsylvania. Pl.'s May 2, 2005 Compl. ¶2. Plaintiff Jesse Lowell Satterfield has been employed since March 2001 by defendant at Bailey Mine in Greene County, Pennsylvania. Id. ¶19.*fn4 Plaintiff previously was employed by defendant at Four States Mine from December 5, 1973 through September 16, 1984 at which time that mine closed and plaintiff was laid off. Id. Plaintiff's seniority within the company dates back to December 5, 1973. Id.
In July 2002, defendant posted job vacancies for at least five mine electrician positions. Id. ¶ 21. Plaintiff applied for these positions. Id. Plaintiff alleges that he was the only applicant for the positions. Id. Defendant did not hire plaintiff for any of these positions. Id. Plaintiff alleges that he is more qualified than the two individuals that defendant temporarily selected for the mine electrician/mechanic positions, and that these individuals are younger than plaintiff and did not have current electrical cards when temporarily assigned to the positions. Id. On August 28, 2002, defendant posted another job vacancy for the position of shuttle car operator. Id. ¶ 22. Plaintiff applied for the position but was not hired. Id. On October 7, 2002, plaintiff learned that defendant had hired another individual who was 34 years of age for the position. Id.
Several months later, in February 2003, plaintiff visited defendant's human resources office and requested that defendant execute an affidavit of employment on plaintiff's behalf which was required for plaintiff's application to take the Pennsylvania mine official examination. Id. ¶23. On March 17, 2003, plaintiff submitted by certified mail a second request to defendant requesting that defendant execute the affidavit of employment; however, on March 19, 2003, defendant's supervisor of human resources returned the affidavit of employment to plaintiff unexecuted. Id. Subsequently, plaintiff's application was denied by the Pennsylvania Department of Environmental Protection, Bureau of Deep Mine Safety, allegedly on the ground that his affidavit of employment was not executed. Id. ¶24. In April 2003 plaintiff received from the Pennsylvania Department of Deep Mine Safety information that defendant had executed affidavits of employment for other individuals employed by defendant, and plaintiff alleges that most of these employees are "comparatively younger" than plaintiff. Id. ¶25.
Plaintiff further alleges that he was never scheduled for daily overtime between July 2003 and March 22, 2004, despite the fact that the other employees on plaintiff's shift, most of whom are "relatively younger" than plaintiff, were scheduled to work daily overtime. Id. ¶ 15.
Finally, plaintiff alleges that since being employed by defendant he has been subjected to unwanted and unwarranted verbal abuse in the workplace including behavior in violation of company rules prohibiting the use of profane, obscene, or threatening language or conduct towards subordinates and fellow employees. Id. ¶20.
A motion to dismiss tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a motion to dismiss, the court is not opining on whether the plaintiff will be likely to prevail on the merits. Rather, when considering a motion to dismiss, the court accepts as true all factual allegations in the complaint and views them in a light most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). The pleader is required to "set forth sufficient information to outline the elements of his claim or to permit inferences to be drawn that these elements exist." Kost, 1 F.3d at 183 (citing 5A CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERALPRACTICE AND PROCEDURE § 1357 (2d ed. 1990)). A motion to dismiss will only be granted if it appears that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Id. Moreover, the court is under a duty to examine the complaint independently to determine if the factual allegations set forth could provide relief under any viable legal theory. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
While this court is mindful that pro se plaintiffs are not held to as high of a standard as litigants that are represented by counsel, a pro se plaintiff must still plead the essential elements of his claim and is not excused from conforming to the standard rules of civil procedure. McNeil v. United States, 508 U.S. 106, 113 (1993) ("[W]e have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel. . . ."); Haines v. Kerner, 404 U.S. 519, 520 (1972). Thus, plaintiff, even though he is pro se, must set forth sufficient ...