The opinion of the court was delivered by: Judge Sylvia H. Rambo
Before the court is Defendants' motion to dismiss Plaintiff's amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. For the reasons that follow, the motion will be granted in part and denied in part.
According to Plaintiff's amended complaint, Plaintiff, a Caucasian male and an honorably discharged military veteran, applied for at least twenty-five civil service positions as an Equal Employment Opportunity Specialist at several Commonwealth agencies between 2001 and 2004, but was rejected for every position. (Doc. 24 at 4--5.) As part of the application process, Plaintiff underwent a civil service examination. (Id. at 4.) Plaintiff achieved the highest possible score for each position for which he applied. (Id.) Additionally, Plaintiff was awarded a veteran's preference for his military service, which he claims should have resulted in his automatic selection for any position for which he was one of the top three applicants. (Id. 5.) Nevertheless, after interviewing for each of these positions, Plaintiff was rejected and the positions either went unfilled or other candidates were selected. (Id. at 6.) On multiple occasions during these interviews, "individuals appeared visibly surprised at having a Caucasian male apply for the position of Equal Opportunity Specialist." (Id.) Plaintiff subsequently engaged in correspondence with Executive Director of the State Civil Service Commission Jeffrey Wallace in which he expressed his belief that he had been a victim of discrimination. (Id. at 8.)
On December 18, 2006, Plaintiff filed a pro se complaint (Doc. 1), alleging that several state agencies and individuals*fn1 refused to hire him in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e-2000e-17, the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623, and the Pennsylvania Military Affairs Act. Plaintiff sought reinstatement, back pay, attorneys fees, and one million dollars in damages to be donated to a scholarship fund for children of veterans killed in Iraq and Afghanistan. (Doc. 1. at 3.)
On April 13, 2007, Defendants moved to dismiss Plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. (Doc. 9.) The court dismissed Plaintiff's Title VII and ADEA claims against Individual Defendants with prejudice while granting leave to file an amended complaint raising claims pursuant to 42 U.S.C. §§ 1981 and 1983. (Id.)
On January 29, 2008, Plaintiff, through counsel,*fn2 filed the instant amended complaint alleging violation of his right to contract under 42 U.S.C. § 1981 and violation of his constitutional rights to due process and equal protection. (Doc. 24 at 9--12.) Plaintiff seeks damages in the form of back pay, front pay, actual damages, compensatory damages, legal fees, and punitive damages. (Id.) In addition, Plaintiff seeks an order "directing the Defendants and their successors from discriminating against Caucasian male veterans and from denying veterans their Veteran's Preference Rights under state law." (Id. at 11--12.)
On February 20, 2008, Defendants moved to dismiss Plaintiff's amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. (Doc. 24.) Defendants filed a brief in support of that motion on April 10, 2008. (Doc. 29.) On April 28, 2008, Plaintiff filed a brief in opposition to Defendants' motion to dismiss the amended complaint. (Doc. 30.) Defendants did not file a reply brief. Accordingly, the matter is ripe for disposition.
Among other requirements, a sound complaint must set forth "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This statement must "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). "Fair notice" in Rule 8(a)(2) "depends on the type of case-some complaints will require at least some factual allegations to make out a showing that the pleader is entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (quotation omitted). "A situation may arise where, at some point, the factual detail in a complaint is so undeveloped that it does not provide a defendant the type of notice of claim which is contemplated by Rule 8." Id. A plaintiff must provide "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action" to show entitlement to relief. Twombly, 127 S.Ct.at 1965. Accord Phillips, 515 F.3d at 238--39; Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (The court is not "compelled to accept unsupported conclusions and unwarranted inferences or a legal conclusion couched as a factual allegation.") (quotations and citations omitted)); Evancho v. Fisher, 423 F.3d 347, 350(3d Cir. 2005).
A defendant may attack a complaint by a motion under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. In deciding a motion to dismiss under Rule 12(b)(6), the court is required to accept as true all of the factual allegations in the complaint, Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007), and all reasonable inferences permitted by the factual allegations, Watson v. Abington Twp., 478 F.3d 144, 150 (3d Cir. 2007), viewing them in the light most favorable to the plaintiff, Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007). Accord Phillips, 515 F.3d at 233. If the facts alleged are sufficient to "raise a right to relief above the speculative level" such that the plaintiff's claim is "plausible on its face," a complaint will survive a motion to dismiss. Twombly, 127 S.Ct. at 1965, 1974; Phillips, 515 F.3d at 234; Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007); Stevenson v. Caroll, 495 F.3d 62, 66 (3d Cir. 2007). This requirement "calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of" necessary elements of the plaintiff's cause of action. Twombly, 127 S.Ct. at 1965. "The defendant bears the burden of showing that no claim has been presented." Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005).
Finally, in the Third Circuit, a court must grant leave to amend before dismissing a civil rights complaint that is merely deficient. See, e.g., FletcherHarlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007); Weston v. Pennsylvania, 251 F.3d 420, 428 (3d Cir. 2001); Shane v. Fauver, 213 F.3d 113, 116--17 (3d Cir. 2000). "Dismissal without leave to amend is justified only on the ...