The opinion of the court was delivered by: Christopher C. Conner United States District Judge
The instant matter is an employment discrimination suit brought by plaintiff Shirley Jamison ("Jamison") against her former employer, defendant Campbell Chain Cooper Tool ("Campbell Chain"). Jamison alleges that Campbell Chain discharged her in violation of the Americans with Disabilities Act ("ADA") and retaliated against her in violation of Title VII of the Civil Rights Act of 1964. She also advances claims under Pennsylvania state law for breach of contract and intentional infliction of emotional distress. Campbell Chain has filed a motion to dismiss (Doc. 11) the complaint for failure to state a claim upon which relief can be granted. For the reasons herein, the motion will be granted in part and denied in part.
I. Statement of Facts*fn1
Jamison was formerly employed by Campbell Chain as a packer and material handler, a position requiring her to operate a forklift. (Doc. 1 ¶¶ 4, 8-10.) On March 10, 2005, she filed a short-term disability claim with Campbell Chain's insurance carrier, and one month later she was diagnosed with a herniated disc in her lower back. (Id. ¶¶ 11, 14.) Her medical condition prevented her from either sitting or standing continuously for more than twenty minutes and from lifting more than ten pounds. (Id. ¶ 12.) It also limited her ability to fulfill her employment duties and caused her to be frequently absent from work. (Id. ¶¶ 15-16.)
Jamison informed Campbell Chain of her condition, and the company handled her absences in accordance with its established attendance policy. The applicable policy prohibits employees from accumulating more than three days of unexcused absence in any four-month period or more than six days of unexcused absence within any six-month period. (Id. ¶¶ 17-18.) Employees who fail to comply are subject to various sanctions including discharge. (Id. ¶ 18.) On August 5, 2005, Campbell Chain terminated Jamison's employment, though she lacked a sufficient number of absences to qualify for this sanction under the attendance policy. (Id. ¶¶ 19-20.) Campbell Chain allegedly justified her discharge with attendance records that inaccurately represented the extent of her absenteeism. (Id. ¶ 21.) She allegedly suffered emotional distress as a result of the discharge. (Id. ¶¶ 34-35.) She also forfeited her rights in Campbell Chain's employee retirement fund. (Id. ¶¶ 40-41.) After her discharge, she filed a claim for unemployment compensation, which Campbell Chain opposed without success. (Id. at 52-54.)
On February 20, 2007, Jamison commenced the instant suit alleging ADA and Title VII violations, breach of contract, and intentional infliction of emotional distress.*fn2 Campbell Chain has moved to dismiss all claims except that under the ADA. The parties have fully briefed these issues, which are now ripe for disposition.
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of complaints that fail to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the court must "accept as true all factual allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff." Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). Although the court is generally limited in its review to the facts in the complaint, it "may also consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n. 2 (3d Cir. 1994); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).
Federal notice pleading rules require the complaint to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Sershen v. Cholish, No. 3:07-CV-1011, 2007 WL 3146357, at *4 (M.D. Pa. Oct. 26, 2007) (quoting Erickson v. Pardus, --- U.S. ---, 127 S.Ct. 2197, 2200 (2007)). The plaintiff must present facts that, if true, demonstrate a plausible right to relief. See FED. R. CIV. P. 8(a) (stating that the complaint should include "a short and plain statement of the claim showing that the pleader is entitled to relief"); Bell Atl. Corp. v. Twombly, ---U.S. ---, 127 S.Ct. 1955, 1965 (2007) (requiring plaintiffs to allege facts sufficient to "raise a right to relief above the speculative level"); Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007). Thus, courts should not dismiss a complaint for failure to state a claim if it "contain[s] either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Montville Twp. v. Woodmont Builders LLC, No. 05-4888, 2007 WL 2261567, at *2 (3d Cir. 2007) (quoting Twombly, --- U.S. at ---, 127 S.Ct. at 1969). Under this liberal pleading standard, courts should generally grant plaintiffs leave to amend their claims before dismissing a complaint that is merely deficient. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000).
Campbell Chain moves to dismiss Jamison's claims for retaliation, intentional infliction of emotional distress, and breach of contract. The court will address these issues seriatim.
To state a prima facie case of retaliation, a plaintiff must allege that: (1) he or she engaged in a protected activity, (2) the employer subjected him or her to an adverse employment action, and (3) "a causal link exists between the protected activity and the adverse action." Weston v. Pennsylvania, 251 F.3d 420, 430 (3d Cir. 2001); see also 42 U.S.C. § 2000e-3(a); Aguiar v. Morgan Corp., 27 F. App'x 110, 112 (3d Cir. 2002); Glenn v. Horgan Bros., Inc., No. 03-6578, 2005 WL 1503428, at *2 (E.D. Pa. June 24, 2005). The adverse employment action must occur during the term of employment, and an employer's post-termination activity cannot provide the basis for a retaliation claim. See Glanzman v. Metro. Mgmt. Co., 391 F.3d 506, 516 (3d Cir. 2004) ("Once [an individual's] employment [is] terminated, it [is] not possible for [the individual] to suffer adverse employment ...