The opinion of the court was delivered by: Ambrose, Chief District Judge
OPINION and ORDER OF COURT
Defendant, County of Greene, filed a Motion to Dismiss Plaintiff's, Bryan Bird's, Complaint for failure to state a claim based on Rule 12(b)(6) and for lack of subject matter jurisdiction based on Rule 12(b)(1). (Docket No. 5). Plaintiff filed a response and a brief in opposition thereto. (Docket Nos . 8 and 9). After careful review of the parties submissions and based on the reasons set forth below, the Motion to Dismiss at Docket No. 5 is denied.
On September 26, 2006, Plaintiff filed a five-count Complaint against his former employer, Defendant. (Docket No. 1). Claim I is a claim for failure to accommodate under the Americans with Disabilities Act ("ADA"), 42, U.S.C. §12101, et seq. Claim II is a claim for failure to accommodate under Pennsylvania Human Relations Act ("PHRA"), 43 Pa.C.S.A. §959, et seq. Claim III is a claim for retaliation under the ADA and Claim IV is a claim for retaliation under the PHRA. Claim V is a claim for hostile work environment under the ADA and the PHRA.
A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure challenges the jurisdiction of the court to address the merits of the plaintiff's suit. Fed. R. Civ. P. 12(b)(1). In other words, it "attacks . . . the right of a plaintiff to be heard in Federal court." Cohen v. Kurtzman, 45 F. Supp.2d 423, 428 (D. N.J. 1999). A Rule 12(b)(1) attack may argue that the plaintiff's federal claim is immaterial and made solely for the purpose of obtaining federal jurisdiction, is insubstantial and frivolous or, alternatively, the attack may be directed at "the existence of subject matter jurisdiction in fact." Mortensen v. First Federal Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). In a Rule 12(b)(1) motion based on the existence of jurisdiction, no presumption of truthfulness attaches to the allegations of the plaintiff (in contrast to the presumption applied under a Rule 12(b)(6) motion or a Rule 12(b)(1) motion based on immateriality). Id. The plaintiff bears the burden of persuading the court that it has jurisdiction as compared to the burden of the defendant under a Rule 12(b)(6) motion of convincing the court that the plaintiff has failed to state a claim. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991), cert. denied, 501 U.S. 1222 (1991). Because the court must determine whether jurisdiction exists before it may proceed to the merits of a case, the court may make factual findings which are decisive to the issue. Cohen, 45 F.Supp.2d at 429, citing Employers Ins. of Wausau v. Crown Cork & Seal Co., 905 F.2d 42, 45 (3d Cir. 1990). If I determine that this Court does not have subject matter jurisdiction over the case, I must dismiss the action. Robinson v. Dalton, 107 F.3d 1018, 1020 (3d Cir. 1997).
In deciding a Motion to Dismiss pursuant to 12(b)(6), all factual allegations and all reasonable inferences therefrom must be accepted as true and viewed in the light most favorable to the plaintiff. Colburn v. Upper Darby Township, 838 F.2d 663, 666 (3d Cir. 1988), cert. denied, 489 U.S. 1065 (1988). I may dismiss a complaint only if it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45 (1957). In ruling on a motion for failure to state a claim, I must look to "whether sufficient facts are pleaded to determine that the complaint is not frivolous, and to provide defendants with adequate notice to frame an answer." Colburn, 838 F.2d at 666.
While a court will accept well-pleaded allegations as true for the purposes of the motion, it will not accept legal or unsupported conclusions, unwarranted inferences, or sweeping legal conclusions cast in the form of factual allegations. See, Miree v. DeKalb County, Ga., 433 U.S. 25, 27 n. 2 (1977). Moreover, the plaintiff must set forth sufficient information to outline the elements of his claims or to permit inferences to be drawn that these elements exist. See, Fed. R. Civ. P. 8(a)(2); Conley, 355 U.S. at 45-46. Thus, when ruling upon a 12(b)(6) motion, a district court is limited to considering the facts as they are alleged in the complaint, anything properly attached thereto and matters of public record. FED. R. CIV. P. 12(b)(6); 10(c). In addition, courts may consider exhibits that the defendant attaches to its motion to dismiss if they are undisputedly authentic and the plaintiff's complaints are based on them. Pension Ben. Guar. Corp. v. White Consol. Industries, Inc., 998 F.2d 1192 (3d Cir.1993).
III. Claims I and II: ADA and PHRA*fn1 - Failure to Accommodate
The parties appear to agree on the elements necessary to establish a prima facie case for failure to accommodate under the ADA and PHRA.*fn2 (Docket No. 6, p. 3; Docket No. 9, p. 2). Defendant argues that Plaintiff's Complaint should be dismissed for failure to allege that he is a disabled person within the meaning of the ADA. (Docket No. 6, pp. 3-5). As Defendant points out, however, the Complaint asserts that "Plaintiff meets the qualifications as a disabled individual under the ADA, by reason of his obesity and the consequent health impairments, including but not limited to sleep apnea, limited ability to engage in physical activity, and other common affiliations as a sequellae of obesity." (Docket No. 1, 18). With regard to the pleading stage of litigation, the Third Circuit has recognized as follows:
Under the notice pleading standard of Fed.R.Civ.P. 8(a), a complaint requires only a short and plain statement showing a right to relief, "not a detailed recitation of the proof that will in the end establish such a right." Pryor, 288 F.3d at 564. As the United States Supreme Court recently has confirmed, complaints in employment discrimination cases must satisfy only the simple requirements of Rule 8(a). Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 513, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); see also Weston v. Pennsylvania, 251 F.3d 420, 429 (3d Cir.2001). Thus, "an employment discrimination complaint need not include [specific facts establishing a prima facie case of discrimination under the framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ] and instead must contain only 'a short and plain statement of the claim showing that the pleader is entitled to relief.' " Swierkiewicz, 539 U.S. at 508, 122 S.Ct. 992; Weston, 251 F.3d at 429 (a complaint need not plead law or match facts to every element of a legal theory to survive a motion to dismiss under Rule 12(b)(6)).
Gavura v. Pennsylvania State House of Representatives, 55 Fed.Appx. 60, *63, 2002 WL 31781092, *3 (3d Cir. 2002). Based on the above, I find the allegations set forth in Plaintiff's Complaint are sufficient to place Defendant on notice that he is pursuing a failure to accommodate claim under the ADA and the PHRA for which he could be entitled to relief. Accordingly, Plaintiff has done all that is ...