The opinion of the court was delivered by: Norma L. Shapiro, J.
This is an action for unlawful retaliation under the Age Discrimination in Employment Act, 29 U.S.C. § 621 ("ADEA"). The matter comes before the court on: (1) defendant's Motion to Strike the Amended Complaint (paper no. 16); (2) defendant's Motion to Compel Deposition and Discovery of Plaintiff (paper no. 17); and (3) plaintiff's Opposition and Cross-Motion to Strike Without Prejudice or, in the Alterative Stay Defendant's Motion to Dismiss Plaintiff's Pro-Se Amended Complaint and Motion to Place Plaintiff's Civil Action in Administrative Suspense Status Upon Hiring Counsel (paper no. 18). Defendant's motions will be granted; plaintiff's cross-motion and motion to place this action in administrative suspense will be denied.
Plaintiff, a police officer, filed a pro se complaint against his employer, the City of Philadelphia, for violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(b) and 2000e-2(d) ("Title VII") and the Pennsylvania Human Relations Act, 43 P.S. §§ 951 and 955 ("PHRA"). Defendant moved to dismiss the complaint for failure to state a claim. (Paper no. 5.) Upon consideration of defendant's motion to dismiss, the court recharacterized the complaint on account of plaintiff's pro se status. See Castro v. United States, 540 U.S. 375, 381 (2003). The court construed the complaint as asserting claims under Title VII, PHRA, ADEA and the Pennsylvania Whistleblower Act, 43 P.S. §1421. The court, granting defendant's motion in part, dismissed all claims except the ADEA retaliation charge. Memorandum and Order, Jul. 3, 2008 (paper no. 7).
A. Defendant's Motion to Strike the Amended Complaint
On August 12, 2008, defendant filed an answer to the complaint, as recharacterized by the court. On January 2, 2009, plaintiff filed an amended complaint reasserting the Title VII claims previously dismissed by the court. Defendant argues the amended complaint should be stricken under Federal Rule of Civil Procedure 15.
Federal Rule of Civil Procedure 15 provides that once a responsive pleading has been served, a party may not file an amended pleading without the opposing party's written consent or leave of court. The rule further provides that the court should freely give leave to amend when justice so requires. Fed. R. Civ. P. 15 (a)(2). Plaintiff did not seek leave of court before filing the amended complaint and defendant does not consent to the proposed amendment. Because of plaintiff's pro se status, the court will treat the amended complaint as a request for leave to file an amended pleading under Rule 15.
A district court may deny leave to amend where amendment would be futile. See Winer Family Trust v. Queen, 503 F.3d 319, 330-31 (3d Cir. 2007). The amended complaint reasserts the Title VII claims that the court dismissed on grounds that plaintiff had failed to present a right-to-sue letter issued by the Equal Employment Opportunity Commission ("EEOC"), as required by statute. Plaintiff claims the court should reconsider and reinstate the Title VII claims because defendant "[k]nowingly and purposefully broke the laws." Am. Compl. ¶ 48 (paper no. 15).*fn1
To bring a claim under Title VII, a prospective plaintiff must file a timely charge with the EEOC and receive from the Commission notice of a right to sue on those charges. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798 (1973). "Receipt of [a] right-to-sue letter [shows] that a complainant has exhausted administrative remedies, an essential element for bringing a claim in court under Title VII." Burgh v. Borough Council of the Borough of Montrose, 251 F.3d 465, 470 (3d Cir. 2001). Without a right-to-sue letter, the suit can be dismissed under Rule 12(b)(6) for failure to state a claim upon which relief may be granted. See Gooding v. Warner-Lambert Co., 744 F.2d 354, 358 (3d Cir. 1984). If the EEOC fails to issue a right-to-sue letter within 180 days of receiving the complainant's charge, the complainant may request a right-to-sue letter and the EEOC must promptly issue one. See Burgh, 251 F.3d at 470.
Plaintiff claims he filed a charge with the EEOC on May 21, 2008, but "has not been given a final disposition to date of this Amended Civil Action." Am. Compl. ¶ 39 (paper no. 15). Although more than 180 days have passed since plaintiff claims to have filed the charge, plaintiff does not claim to have requested or received a right-to-sue letter. It would be futile for plaintiff to amend the complaint because he fails to allege at least one essential element of a Title VII claim. Plaintiff's request for leave to amend will be denied without prejudice; plaintiff may seek leave to amend the complaint to assert claims under Title VII upon receipt of a right-to-sue letter issued by the EEOC. Defendant's motion to strike the amended complaint will be granted; the action will proceed on the original complaint as recharacterized by the court (i.e., a claim for retaliation under the ADEA).
B. Defendant's Motion to Compel Deposition and Discovery of Plaintiff
At a pretrial conference held on December 2, 2008, because of plaintiff's pro se status, the court explained to plaintiff that the Federal Rules of Civil Procedure allow all parties to conduct discovery, including written interrogatories and oral depositions. Defendant claims that plaintiff, notwithstanding the court's instruction, failed to respond to interrogatories and failed to appear for his deposition.
Federal Rule of Civil Procedure 37(a)(1) provides that, "[o]n notice to other parties and all affected persons, a party may move for an order compelling disclosure of discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action." Defendant did not file the proper certification, but submitted correspondence showing that plaintiff ...