The opinion of the court was delivered by: Judge Sylvia H. Rambo
Plaintiff Ronald Grigsby filed the instant complaint against his employer, Pratt & Whitney Amercon,*fn1 and his supervisors, individual defendants Alfred Mattarese ("Mattarese"), Randy Gronda ("Gronda"), and Jim Putira ("Putira"), alleging that they discriminated against him because of his race in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e-5 et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Cons. Stat. Ann. §§ 951, et seq. Before the court are two motions to dismiss. The first is a motion by Pratt & Whitney Amercon pursuant to Fed. R. Civ. P. 12(b)(6), challenging both the timeliness and the sufficiency of Plaintiff's complaint (Doc. 9). The second is brought by individual defendants Mattarese, Gronda, and Putira pursuant to Rule 12(b)(5) for failure to effect timely service, and Rule 12(b)(6) for failure to state a claim (Doc. 20.) For the reasons that follow, disposition of Pratt & Whitney Amercon's motion to dismiss will be denied in part and stayed in part until further order of this court. Additionally, the motion to dismiss by Mattarese, Gronda, and Putira will be granted in part, denied in part, and stayed in part.
Plaintiff's complaint contains the following allegations, which are taken as true for the purposes of these motions to dismiss. Plaintiff alleges he was discriminated against on the basis of race while employed at Pratt & Whitney Amercon. Plaintiff, who is African-American, was hired as a machine operator by Pratt & Whitney Amercon in December 2001. In early August 2003, Plaintiff applied for, and was hired as a machine operator on the weekend shift. On October 17, a job notice was posted for a second-shift welder. Plaintiff, who had previous welding experience, applied for the job and was hired as a welder in late October 2003. He passed all three welding certifications. In November 2003, Putira, who is white, became welding supervisor. On December 3, 2003, Plaintiff was laid off from his welding position.
On July 20, 2004, Plaintiff was called back to Pratt & Whitney Amercon as a machine operator. When he returned, Plaintiff met with Gronda to ask why he was not called back as a welder. Gronda said that Plaintiff could go back to welding if there was an opportunity. Plaintiff later learned that in early May 2004, while he was on layoff, a job notice had been posted for a welding position in Building 2, which would report to Putira. Plaintiff alleges that although he was qualified for the position, he was neither notified about it nor hired to fill it. Instead, Putira brought in four unqualified individuals, at least two of whom were white, to fill the vacancies. These individuals required training in welding and could not pass the welding certification tests.
In September 2004, Jim Hartman, a former Pratt & Whitney Amercon welder, was hired as a part-time welder without any job notice posted. In October 2004, Hartman, who is white, began working as a welder full-time, and continued to do so until his retirement during the summer of 2005. In September 2004 Plaintiff met with Gronda to request the opportunity to do his welding certification off-hours. Gronda told him that he was lucky to have his job on the machine line and that Plaintiff was not wanted in welding. Putira refused to permit Plaintiff to keep up his welding certification. Plaintiff alleges that he met with Mattarese, the President of Pratt & Whitney to discuss his frustration with not being hired as a welder or being permitted to certify as a welder. Although Pratt & Whitney Amercon had an "Open Door Policy" in place at the time, Mattarese told Plaintiff to let Gronda handle the situation. In December 2004, Gronda again told Plaintiff that the welding department did not want him.
On January 27, 2005, Putira told one of the welders that a third welder was needed. The next day, Bill Grant, the Director of Human Resources asked Plaintiff if he could do welding work for Putira. Plaintiff said he was interested in the position, but said that Gronda had indicated that Putira did not want Plaintiff to work for him. Plaintiff followed up with messages to both Grant and Mattarese expressing his interest in the position, but received no response. On February 10, 2005 a job notice for the position was posted. Plaintiff applied for the position, and was hired.
Plaintiff alleges that although he started work as a welder on the first shift on March 7, 2005, he was paid at the lower rate of a machine operator rather than that of a welder until the middle of April 2005. On March 7, 2005, the same day Plaintiff started work as a welder, Putira announced that an additional welder would be needed, and John Forry, a white male, would be brought in for the position. Forry was currently working as a machine operator and was not certified as a welder. Two days later, Putira asked Plaintiff to switch from the first to the third shift so that Forry could practice his welding certification. Plaintiff refused, citing his childcare obligations.
On May 13, 2005, Plaintiff's attorney sent a letter to the Equal Employment Opportunity Commission ("EEOC") alleging race discrimination by Defendants. (Doc. 16 Ex. 1.) The letter stated that Plaintiff wished to file a charge of race discrimination, and requested that the charge be dual-filed with the Pennsylvania Human Relations Commission ("PHRC"). Enclosed with the letter was a fourteen page statement of allegations of discrimination and employment history, and a number of EEOC forms completed and signed by Plaintiff, including an Allegation of Employment Discrimination Questionnaire, a Charge Information Questionnaire, a Witness Questionnaire, a Remedy Information Questionnaire, and the Dual File Form. Also included along with the letter were a number of exhibits, including affidavits from two witnesses to the alleged discrimination, notices for positions at issue in this case, and several other related documents. (See Doc. 16 Ex. 16.) Both the Allegations of Discrimination and the Remedy Information forms were signed by Plaintiff under penalty of perjury, and for each questionnaire Plaintiff checked the box stating "I want to file a charge." (Id. Exs. 3, 4.) According to a U.S. Postal Service delivery confirmation submitted by Plaintiff, his letter was received by the EEOC on May 16, 2005. (Id. Ex. 7.)
On June 23, 2005, an EEOC investigator sent a letter to Plaintiff's attorney requesting that Plaintiff complete an "EEOC Charge of Discrimination Form" which the EEOC attached to Plaintiff's previously submitted Statement of Discrimination. (Id. Ex. 9.) According to the letter, completion of the form was necessary for the EEOC to formalize the charge. (Id.) On July 8, 2005, Plaintiff signed the formal charge of discrimination, which was stamped received by the EEOC in Philadelphia on July 15, 2005. (Id. Ex. 10.) On November 16, 2005, the PHRC sent a letter to Plaintiff acknowledging that his charge was dual-filed with the PHRC, and that it had waived the opportunity to investigate the complaint. (Id. Ex. 11.)
On March 27, 2006, the EEOC made a determination that there was reason to believe that a violation of Title VII had occurred, and announced that the EEOC would seek conciliation with the defendants. (Id. Ex. 12.) The conciliation efforts were unsuccessful, and on January 29, 2007, the EEOC mailed Plaintiff a Notice of Right to Sue.
On April 29, 2007, Plaintiff filed the instant complaint, seeking both actual and punitive damages, and injunctive relief. (Id.) Plaintiff requested waiver of service by Pratt & Whitney Amercon shortly after the complaint was filed. Pratt & Whitney Amercon waived service for itself, but refused to accept service on behalf of individual defendants Mattarese, Gronda, and Putira. Plaintiff has submitted an affidavit averring that since May 2007, he has attempted without success to obtain the addresses of Mattarese and Putira, who were no longer employed by Pratt & Whitney Amercon. (Doc. 27 Ex. A ¶ 2.) Plaintiff requested their addresses from Pat Baughman, the Human Resource Manager for Pratt & Whitney Amercon, but she refused to provide them, citing privacy concerns. (Id. ¶ 3.) Throughout the summer, Plaintiff asked various Pratt & Whitney Amercon employees who were friends of Mattarese and Putira for their addresses, but the employees would not provide this information. (Id. ¶¶ 5, 6.) Finally, shortly before the 120 day deadline for service, Plaintiff learned from other employees where Mattarese and Putira had moved, and he obtained their addresses though directory assistance. On the week of the deadline for expiration of service, Plaintiff sent a request for waiver of service via certified mail to Mattarese and Putira. ( Id. ¶ 12.) Mattarese received the request for waiver of summons on August 27, 2007. (Doc. 26 Ex. 1.) Putira received the same request two days later on August 29, 2007. (Id. Ex. 2.) Neither Mattarese nor Putira returned the waiver, and to date neither has been personally served.
On July 23, 2007, Pratt & Whitney Amercon filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim (Doc. 9). Pratt & Whitney Amercon argues that many of Plaintiff's claims were untimely filed, and that Plaintiff failed to state a prima facie case of employment discrimination under Title VII and the PHRA. On September 11, 2007 individual defendants Mattarese, Gronda, and Putira filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(5) and 12(b)(6), arguing that the Plaintiff failed to effect timely service and failed to state a claim (Doc. 20). For the reasons that follow, Pratt & Whitney Amercon's motion to dismiss (Doc. 9) will be denied in part and stayed in part, and the motion to dismiss by the individual defendants (Doc. 20) will be granted in part, denied in part, and stayed in part.
Defendants seek dismissal of Plaintiff's complaint on two grounds: (1) Defendants Mattarese and Putira argue that Plaintiff failed to effectuate timely service of the summons and complaint upon them; and (2) all Defendants argue that the complaint should be dismissed pursuant to Rule ...