The opinion of the court was delivered by: Joyner, J.
Before the Court is Defendant, Stryden, Inc.'s, Motion to Dismiss the Amended Complaint (Doc. No. 8) and Plaintiffs' Response in Opposition (Doc. No. 10). For the reasons set forth in this Memorandum, we will deny Defendant's Motion to Dismiss the Amended Complaint.
In October of 2006, lead Plaintiff, Mr. Donald Cardwell, and similarly-situated opt-in plaintiffs, Messers. Vincent Cesario, Donald Delisi, Philip Green, Joseph Lafferty, Philip Miller, Edward Ryan, and Andrew Wasnick, were working as shuttle drivers for Tandem, a company which had been awarded a contract to staff the National Car Rental facilities in the Philadelphia area. All the employees, except for plaintiff Miller, had originally been hired by National Car Rental and became employees of Tandem when it was awarded the contract to staff the facilities. All plaintiffs are over 60 years of age and at all times maintained a satisfactory job performance rating in their positions.
On or around the end of October 2006, Defendant Stryden ("Stryden") was awarded the National Car Rental contract. Plaintiffs were then informed that Tandem was ceasing operations on October 31, 2006, and that Stryden would be their new employer as of November 1, 2006. Defendant Stryden asked each plaintiff to complete a job application and provide medical information prior to assuming their duties with Stryden. All plaintiffs complied with the requests and applied to the same position that they had held prior to Stryden's takeover; no interviews or written or oral tests were administered at this time. Each plaintiff was then told on or around October 31, 2006, that their "services were not needed anymore." Plaintiffs were then replaced by younger drivers on November 1, 2006. In December 2006, each plaintiff then completed a "Selection Questionnaire (Hiring, Promotion, Transfer, etc.)" with the Equal Employment Opportunity Commission ("EEOC"). A Charge of Discrimination was then completed by the EEOC, listing Mr. Cardwell as the charging party and all other plaintiffs by name in the description of the discriminatory action. The charge was dual-filed with the Pennsylvania Human Relations Commission ("PHRC"). The EEOC then investigated the charges and requested documents from Stryden pertaining to all plaintiffs. On July 25, 2008, the EEOC issued a Notice of Right to Sue Letter. Plaintiffs then filed a multiple plaintiff joint action with this Court alleging two counts: (I) Age Discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § § 623(a)(1) and 623(a)(2); and (II) Age Discrimination in violation of the Pennsylvania Human Relations Act ("PHRA"). On December 11, 2008, Stryden filed a Partial Motion to Dismiss Plaintiffs' Complaint on the basis of the fact that Plaintiffs Cesario, Delisi, Green, Lafferty, Miller, Ryan, and Wasnick did not file full administrative claims with the EEOC. On December 19, 2008, plaintiffs filed an Amended Complaint, a representative action naming Mr. Cardwell lead plaintiff. Written consents were also filed for the opt-in plaintiffs on December 15 or 18, 2008, pursuant to Section 16(b) of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216(b). On January 5, 2009, Stryden moved to dismiss plaintiffs' Amended Complaint and plaintiffs responded on January 19, 2009.
In response to a pleading, under Federal Rule of Civil Procedure 12(b)(6), a Defendant may assert by motion that the Plaintiff's complaint "[fails] to state a claim upon which relief can be granted." In analyzing a Rule 12(b)(6) motion to dismiss, we "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (citations omitted). "To survive a motion to dismiss, a civil plaintiff must allege facts that 'raise a right to relief above the speculative level . . . .'" Id. at 232 (quoting Bell Atl. Corp. v. Twombley, 127 S.Ct. 1955, 1965, 167 L.Ed. 929, 940 (2007)). In other words, the plaintiff must provide "enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s]" of a particular cause of action. Id. at 234. In ruling on a Rule 12(b)(6) motion to dismiss, the court may consider documents "integral to or explicitly relied upon in the complaint." In re Rockefeller Sec. Lit., 184 F.3d 280, 287 (3d Cir. 1999).
In its Motion to Dismiss the Amended Complaint, Defendant argues that:
(1) Opt-in Plaintiffs, Messers. Vincent Cesario, Donald Delisi, Philip Green, Joseph Lafferty, Philip Miller, Edward Ryan, and Andrew Wasnick (herein after "opt-in plaintiffs"), did not timely file EEOC charges and are therefore barred from bringing individual ADEA claims; and
(2) Opt-in plaintiffs filed their opt-in consent notices after the statute of limitations had expired and so, as the statute of limitations was not tolled by Plaintiffs' Original Complaint, they are not proper plaintiffs to this action.
We will address each argument in turn.
I. EEOC Filing of the Opt-in Plaintiffs
Defendant contends that the ADEA requires that a grievant bring suit in federal court only after first resorting to administrative remedies, pursuant to 29 U.S.C. §626(d). Oscar Mayer & Co. v. Evans, 441 U.S. 750, 758 (1879). Defendant argues that since plaintiffs included in the Amended Complaint did not file a formal "charge" with the Equal Employment Opportunity Commission (EEOC) or another administrative agency, they are now unable to be proper plaintiffs in the current action under the ADEA. Plaintiffs, however, contend that the opt-in plaintiffs timely completed intake questionnaires, or "Selection Questionnaires," filed with the EEOC that should be deemed "charges" within the meaning of the statute. See 29 C.F.R. §1626.8(b); Fed. Express Corp. V. Holowecki, 128 S.Ct. 1147 (2008). Additionally, plaintiffs argue that even if the questionnaires are deemed not to be charges, they are proper plaintiffs to the action because the named ...