The opinion of the court was delivered by: James F. McClure, Jr. United States District Judge
On October 31, 2008, plaintiff Diane Kerstetter instituted this civil action against defendants Pennsylvania Department of Corrections SCI-Coal Township (hereinafter "SCI-Coal Township"), Joseph Piazza, Thomas Spence, Nancy Wilson, and Dave Popek. In her complaint, Kerstetter filed the following eight counts: violation of 42 U.S.C. § 1983 (Count I), violation of 42 U.S.C. § 1985 (Count II), retaliation in violation of Title VII of the Civil Rights Act of 1964 (Count III), gender Discrimination in violation of Title VII of the Civil Rights Act of 1964 (Count IV), age discrimination in violation of the ADEA (Count V), intentional infliction of emotional distress (Count VI), civil conspiracy (Count VII), and constructive discharge (Count VIII).
On January 5, 2009, defendants filed a motion to dismiss. (Rec. Doc. No. 12). Defendants requested an extension to file their supporting brief, thus their supporting brief was timely filed on January 27, 2009. (Rec. Doc. No. 19). Plaintiff filed her opposing brief February 11, 2009 (Rec. Doc. No. 20), and defendants filed their reply brief March 2, 2009. (Rec. Doc. No. 21). Thus, the matter is ripe for disposition.
Now, for the following reasons we will grant defendants' motion in part, and deny the motion in part.
I. Motion to Dismiss Standard
When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must view all allegations stated in the complaint as true and construe all inferences in the light most favorable to plaintiff. Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984); Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In ruling on such a motion, the court primarily considers the allegations of the pleading, but is not required to consider legal conclusions alleged in the complaint. Kost, 1 F.3d at 183. At the motion to dismiss stage, the court considers whether plaintiff is entitled to offer evidence to support the allegations in the complaint. Maio v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir. 2000). A complaint should only be dismissed if, accepting as true all of the allegations in the complaint, plaintiff has not pled enough facts to state a claim to relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1960 (2007).
In considering a Rule 12(b)(6) motion, we must be mindful that federal courts require notice pleading, as opposed to the heightened standard of fact pleading. Hellmann v. Kercher, 2008 U.S. Dist. LEXIS 54882, 4 (W.D. Pa. 2008). Federal Rule of Civil Procedure 8 "'requires only a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the.claim is and the grounds on which it rests,'" Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964, (2007) (citing Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, (1957)). However, even under this lower notice pleading standard, a plaintiff must do more than recite the elements of a cause of action, and then make a blanket assertion of an entitlement to relief under it. Hellmann, 2008 U.S. Dist. LEXIS at 4-5. Instead, a plaintiff must make a factual showing of his entitlement to relief by alleging sufficient facts that, when taken as true, suggest the required elements of a particular legal theory. Twombly, 127 S.Ct. at 1965.
The failure-to-state-a-claim standard of Rule 12(b)(6) "streamlines litigation by dispensing with needless discovery and factfinding." Neitzke v. Williams, 490 U.S. 319, 326-27 (1989). A court may dismiss a claim under Rule 12(b)(6) where there is a "dispositive issue of law." Id. at 326. If it is beyond a doubt that the non-moving party can prove no set of facts in support of its allegations, then a claim must be dismissed "without regard to whether it is based on an outlandish legal theory or on a close but ultimately unavailing one." Id. at 327.
II. Allegations in the Complaint
Accepting as true all of the allegations in the complaint, the facts are as follows. Diane Kerstetter was, at the time of the events in the complaint, a 60 year-old employee working for SCI-Coal Township. Kerstetter began at SCI-Coal Township in 2004, and in 1996 she was promoted to Accounting Assistant in Inmate Accounts. Nancy Wilson, 42 years-old at the relevant time period, was Kerstetter's immediate supervisor. David Popek, in his late forties, is Business Manager. Joseph Piazza, in his late forties, is Superintendent. Thomas Spence is Human Relations Director.
On August 7, 2006, Pawelcyzk*fn1 and Wilson told Kerstetter that Piazza had ordered Kerstetter be transferred to the mailroom. Plaintiff believed she had been subjected to a hostile work environment for years after testifying in a fact finding between two other employees in an EEO hearing. Plaintiff had commendable evaluations until Wilson became her supervisor in February 2005. Plaintiff believed Wilson was retaliating against her for participation in EEO activities. Kerstetter appealed to Popek and Spence regarding the move to the mailroom. Piazza explained to Kerstetter that she was not being moved for disciplinary reasons, but due to a hostile work environment. Kerstetter filed a grievance but no investigation or remedial action was taken.
As a result, Kerstetter suffered emotional distress, and took medical leave beginning August 22, 2006. After Kerstetter returned to work, she was told Piazza had seen her standing around outside the mailroom. Kerstetter asserts she only left the mailroom to use the ladies room. On October 30, 2006, Kerstetter gave Spence a "Doctor's Return to Work Authorization." In the days after, Kerstetter's belongings were packed in six boxes and set aside. Kerstetter left work due to stress over the continued harassment. Kerstetter made efforts to return to her job, but she was ordered by her doctor to resign to protect her health and safety.
Kerstetter asserts she was constructively discharged May 8, 2007.
1. Count I: Violation of 42 U.S.C. § 1983
In Count I, plaintiff alleges defendants violated her civil rights under 42 U.S.C. § 1983 by "depriv[ing] plaintiff of the rights, privileges and immunities secured . . . by the First, Fourth, Sixth, and Fourteenth Amendments." In her brief, plaintiff conceded that she has no viable claim under the Fourth or Sixth Amendments, as a result she is not pursuing those claims. (Rec. Doc. No. 20 at 6). Plaintiff also indicated that the § 1983 claim is intended to be against the individual defendants, she is not pursuing a claim against SCI-Coal Township. Thus, plaintiff is pursuing a claim that the four individual defendants violated plaintiffs First and Fourteenth Amendment rights, and thus forming a § 1983 claim.
Defendants have not argued for dismissal of the § 1983 claim against the individual defendants for alleged violations of the First and Fourteenth amendments. Therefore, Count I is an actionable § 1983 claim against Piazza, Spence, Wilson and Popek for allegations of deprivations of plaintiff's First and Fourteenth amendment rights.
2. Count II: Violation of 42 U.S.C. § 1985
In Count II, plaintiff alleges that defendants, individually and in their official capacities, conspired against plaintiff to dismiss her. Plaintiff alleges that as part of the conspiracy, defendants met and agreed to harass plaintiff. Plaintiff asserts this "deprived plaintiff of the rights, privileges and immunities secured to plaintiff by the First, Fourth, Sixth and Fourteenth Amendments" in violation of 42 U.S.C. § 1985. In her brief, plaintiff conceded that she has no viable claim under the Fourth or Sixth Amendments, and she is not pursuing those claims against any defendants. (Rec. Doc. No. 20 at 6). ...