The opinion of the court was delivered by: Stengel, J.
Joseph Ocasio, an Hispanic police officer, has brought this suit against the City of Bethlehem for race discrimination, national origin discrimination, harassment, hostile work environment, and retaliation. The city has moved to dismiss certain claims pursuant to Federal Rule of Civil Procedure 12(b)(6). The city concedes that the race and national origin discrimination claims were properly exhausted. (Mot. to Dismiss at 2 (Document #7).) The issue is whether Officer Ocasio properly exhausted the administrative remedies for his harassment, hostile work environment, and retaliation claims. Upon consideration of the parties' filings, I will grant the motion.
Joseph Ocasio has been a Bethlehem police officer for sixteen years. (Am. Compl. ¶ 6.) He holds the rank of Patrolman. (Id. ¶ 7.) He is Hispanic, and his national origin is Puerto Rican. (Id. ¶ 5.) Officer Ocasio believes that the police department refused to promote him to the position of Sergeant due to his race and/or national origin.
The city's civil service system serves as one of the factors for determining promotions. (Id. ¶ 13.) An officer seeking promotion would take the appropriate civil service examination, and would then be placed on an eligibility list based on test scores. (Id.) When deciding who to promote, the police department's formal policy is to consider the top three candidates for a position; the alleged informal practice is to promote the highest ranking officer on the list. (Id. ¶ 14.)
In January 2004, Officer Ocasio took the civil service exam for the position of Police Sergeant. (Id. ¶ 19.) As Sergeant positions opened up, white police officers ranked ahead of Officer Ocasio were promoted. (Id. ¶ 20.) By the time an opening for Sergeant became available in September 2005, Mr. Ocasio was the top candidate on the list. (Id. ¶ 21.) The police department, however, chose to promote a lower ranked white candidate. (Id. ¶ 22.) All of the police department's supervisory staff are white. (Id. ¶ 11.)
Even before the police department decided not to promote Officer Ocasio, he was subject to discrimination and harassment on several occasions. (Id. ¶ 17.) He filed internal complaints and spoke with his supervisors. (Id. ¶ 17.) He alleges that because of his complaints, he was subjected to continued harassment and a hostile work environment. (Id. ¶ 18.) Fellow officers allegedly made comments referring to Officer Ocasio's race and national origin. (Id. ¶¶ 26, 31, 32, 34.) Some of the comments and conduct were retaliatory in nature, suggesting that his duties and performance reviews could be adversely affected because of his complaints. (Id. ¶¶ 27S29, 33.)
On April 25, 2006, Officer Ocasio filed a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission (EEOC) and with the Pennsylvania Human Relations Commission (PHRC). (Id. ¶ 34.) Officer Ocasio only checked off "race" as the cause of discrimination. The notarized Statement of Particulars attached to the charge provided a detailed description of the police department's diversity and facts leading to the department's failure to promote Officer Ocasio. No facts supporting a harassment, hostile work environment, or retaliation claim were included, and no discussion of Officer Ocasio's dealings with his supervisors or co-workers was presented. The only possible reference to such claims was a sentence stating that the department's failure to promote "is typical of the City Police Department's pattern of engaging in and tolerating discriminatory practices, including the various Department officials' knowing tolerance of and participation in racially discriminatory language and conduct in the workplace." (Def.'s Mot. to Dismiss Ex. B.) While the EEOC charge was pending, members of the police department allegedly continued to make discriminatory comments and engage in retaliatory conduct. (Am. Compl. ¶ 34.) Officer Ocasio did not file any additional charges describing these events either.
On June 11, 2007, the EEOC determined that the failure to promote Officer Ocasio to Sergeant was due to his race and national origin. (Id. ¶ 2.) On May 15, 2008, Officer Ocasio received a Right to Sue Letter from the U.S. Department of Justice. (Id.; see Am. Compl. Ex. A.) Officer Ocasio filed his initial complaint on August 7, 2008, and then his current amended complaint on September 25, 2008. The complaint contains four counts:
Count I: National origin discrimination, harassment, and hostile work environment under Title VII;
Count II: Race discrimination, harassment, and hostile work environment under Title VII;
Count III: Race discrimination, harassment, and hostile work environment under the PHRA; and
Count IV: National origin discrimination, harassment, hostile work environment, and retaliation under the PHRA.
The complaint lists all of the objectionable comments and conduct described above. Rather than directly naming every speaker or actor, the complaint employs a coded identification system. (See, e.g., id. ¶ 34 ("Sergeant CB stated . . ...