The opinion of the court was delivered by: Judge Vanaskie
Jack R. Evans, Jr. has asserted claims of discrimination and retaliation against his former employer, Defendant Maui Cup-Letica Corporation ("Letica"). Letica has filed a motion to dismiss, contending that Plaintiff's claims are time barred, that service was untimely, and that the Amended Complaint fails to state a claim of retaliation or discrimination under the Americans with Disabilities Act ("ADA"), 42 U.S.C.A. § 12101, et seq.. (Dkt. 15.)*fn1 Although Plaintiff's action is not untimely and dismissal for improper service is not warranted, Plaintiff has failed to present sufficient allegations respecting the material elements necessary to sustain a claim of retaliation or discrimination under the ADA. Accordingly, Defendant's Motion to Dismiss will be granted. Plaintiff, however, will be given an opportunity to file another amended complaint in order to attempt to rectify his pleading deficiencies.
Plaintiff initially filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), and was mailed a right-to-sue letter on May 23, 2007. (EEOC Notice of Rights, Dkt. 2.) The right-to-sue letter clearly provided that any lawsuits based on the EEOC claims must be filed within ninety (90) days of receipt of the right-to-sue notice and that failure to file would result in loss of Plaintiffs' right to sue. (Id. at 3.)*fn2
On August 7, 2007, Plaintiff filed a complaint and motion for leave to proceed in forma pauperis in this Court. (Dkts. 1 & 2.) The Complaint identified the parties and requested the Court to "find in favor of plaintiff on the grounds of failure to accommodate an employee with a disability and harrassment [sic] as well as discrimination of said employee and retaliation against an injured employee." (Dkt. 1, at 2.) Plaintiff's statement of the claim referred to: "attached papers A1, A2, and A3," without any further explanation of his claims. (Id. at 1-2.) There were, however, no papers attached to the Complaint. Instead, attached to Plaintiff's Motion for Leave to Proceed In Forma Pauperis were three sheets of paper, labeled A1, A2, and A3. (Dkt. 2, at 4-6.) The attached papers provide a time line of events which occurred between April 15, 2005, and September 14, 2005. (Id.)*fn3
On October 22, 2007, this Court granted Plaintiff's Motion for Leave to Proceed In Forma Pauperis, but directed Plaintiff "to file an amended complaint that provides adequate notice to Defendant of his disability claim." (Oct. 22, 2007 Order, Dkt. 5, at 1.) This Court found that the Complaint did not set forth any allegations against Defendant, but instead incorporate[d] by reference an exhibit attached to his request for in forma pauperis status. The attached exhibit, however, afford[ed] no basis for a meaningful reply by Defendant. An amended complaint setting forth the factual allegations of Mr. Evans's claim will enable Defendant to properly respond. (Id.) This Court dismissed the Complaint without prejudice and ordered Plaintiff to file an amended complaint within twenty (20) days. (Id.)
(Id.) On May 17, 2005, Plaintiff "tripped over a pallet while restacking a product" and was "sent to Care Works for a drug test." (Id.) Plaintiff alleges that to his knowledge, no other employees have been sent for a drug test when an incident did not result in injury or damage to company property. (Id.) On May 18, 2005, Plaintiff was permanently "removed from forklift duty and put back on light duty," which Plaintiff alleges was unnecessary. (Id.) Although Plaintiff alleged that it was unnecessary to put him back on light duty, he claims that on May 26, 2005, he was removed from the warehouse and placed on the lid line as a stacker, which was not within the "doctor's recommendations." (Id.) Plaintiff claims that on five occasions over the summer of 2005 he was absent from work due to back pain and doctors appointments, and received demerits on the attendance point system. (Id. at 5.) Plaintiff states that on August 31, 2005, he received his one-year evaluation and received a salary increase of $0.12 per hour which was less than 1.5 percent of his salary. (Id.) On September 14, 2005, Plaintiff was switched from third shift to first shift, which resulted in the loss of a $0.50 per hour shift differential. (Id.) Plaintiff was assigned to sort cups, which was "light duty" work. (Id.) Thus, based on this recitation of facts, Plaintiff felt as though he has "been targeted and pushed around" since his accident occurred and that he is "being made an example of, by the Management, as to what happens to an injured employee, by [sic] made to do light duty in full view of the AMPAC employees." (Id. at 6.)
On November 23, 2007, Plaintiff filed a notice of a change of address with the Clerk's Office. (Change of Address, Dkt. 6.) On February 6, 2008, well outside the twenty (20) day filing period, Plaintiff filed a letter with the Court stating that he never received the October 22, 2007 Order and requested leave to continue the action "from the point where [he] failed to receive the order." (Letter, Dkt. 7.) On February 7, 2008, the Court granted Plaintiff's request to continue the action and ordered Plaintiff to file an amended complaint within twenty (20) days. (Feb. 7, 2008 Order, Dkt. 8, at 2.)
Plaintiff filed an amended complaint on February 14, 2008. (Amended Complaint, Dkt. 9.) The statement of the claim in Plaintiff's Amended Complaint asserts:
1. After an on the job injury, sustained on April 15, 2005, Defendant failed to abide by several doctors recomendations [sic] and limitations.
2. Plaintiff was removed from his regular duties and was forced to preform [sic] duties beyond his physical capabilities and limitations as set forth by several specialising [sic] physicians.
3. Defendant failed to make any reasonable accomodations [sic] to assist Plaintiff after his injury, transferring Plaintiff to a less than desirable position, forcing him to exceed doctor reccomended [sic] physical capabilities and limitations
4. Defendant retaliated against and disiplined [sic] Plaintiff for sustaining said injury and for seeking medical attention for treatment thereof. (Id. at 1-2.) Plaintiff's prayer for relief was that this Court find that Defendant "was in knowledge of and violated the Americans with Disabilities Act of 1990 and afford the Plaintiff in this action the legal satisfaction of bringing Defendants to justice." (Id. at 2.) No additional information was included in Plaintiff's Amended Complaint.
On February 19, 2008, this Court ordered that the United States Marshal serve a copy of the summons and Amended Complaint upon Defendant. (Feb. 19, 2008 Order, Dkt. 10.) The Summons was returned executed on June 6, 2008. (Dkt. 11.) On June 25, 2008, Defendant filed the current Motion to Dismiss. (Dkt. 15.) The Motion has been fully briefed and is ripe for decision.
The court's task on a Rule 12(b)(6) motion to dismiss for failure to state a claim is to "determine whether, under any reasonable reading of the pleadings, the plaintiffs may be entitled to relief." Langford v. City of Atlantic City, 235 F.3d 845, 847 (3d Cir. 2000). In doing so, all factual allegations and all reasonable inferences drawn therefrom are assumed to be true. Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). "The complaint will be deemed to have alleged ...