The opinion of the court was delivered by: Judge Nora Barry Fischer
This matter comes before the Court on a Motion to Dismiss (Docket No. 94) pro se Plaintiff Jacqueline B. N'Jai's Amended Complaint (Docket No. 86) pursuant to Rule 12(b)(6) by Defendants Wilkinsburg School District ("Wilkinsburg"), Joseph Tindal, Sue Goodwin, Lynn Black, Robert Schneider, Shawn Davis, Randy Davis, Laura Mannella, Cynthia Fligger, and Denise Warhola ("Individual Defendants," collectively with Wilkinsburg, "Defendants"). Plaintiff seeks recovery from Wilkinsburg and the Individual Defendants for various employment discrimination claims based on Wilkinsburg's alleged wrongful failure to promote her in 2004 and for her termination in 2005. The Individual Defendants have moved for dismissal of Plaintiffs' claims on the basis that they have not been served, and alternatively, her claims fail as a matter of law. Wilkinsburg moves for dismissal on the basis that Plaintiff has not complied with the statutory requirements for her discrimination claims. The Court finds that these arguments are meritorious and also finds that Plaintiff's section 1981 and federal constitutional claims are time-barred. Therefore, Defendants' Motion to Dismiss is GRANTED.
The factual background and procedural history of the instant matter are discussed in greater detail in the Court's prior Memorandum Opinion filed on May 29, 2009 addressing Plaintiff's case in light of the factors as set forth in Poulis v. State Farm Fire & Cas. , 747 F.2d 863 (3d Cir. 1984). (Docket No. 79); see also N'Jai v. Floyd , Civ. A. No. 07-1506, 2009 U.S. Dist. LEXIS 45130 (W.D. Pa. May 29, 2009). By the Court's Order filed simultaneously with said Memorandum Opinion, Plaintiff's claims against all named Defendants and her 42 U.S.C. §§ 1983 and 1985 claims against Wilkinsburg were dismissed with prejudice. (Docket No. 80). Plaintiff was ordered by the Court to re-plead her claims against Wilkinsburg under Title VII, the ADA, the ADEA and for retaliation by June 19, 2009. ( Id. ). Plaintiff was also specifically directed to do the following: to set forth more fully whether her 2004 failure to promote claim was timely filed within 90 days of receipt of her EEOC right to sue letter; to file a full and complete copy of said letter; and to set forth whether she exhausted her administrative remedies for her 2005 unlawful discharge claim.*fn1 ( Id. ). She was further ordered to re-state her claim under Pennsylvania's Whistleblower Law, 43 P.S. §§ 1421, et seq . ( Id. ).
Plaintiff filed her Amended Complaint on June 30, 2009, attaching an appendix of exhibits totaling 147 pages.*fn2 (Docket No. 86, 86-1, 87-1 - 87-4). In addition to restating her claims against Wilkinsburg,*fn3 Plaintiff names the following individuals as Defendants for the first time: Joseph Tindal, Lynn Black, Robert Schneider, Shawn Davis, Randy Davis, Laura Mannella, Cynthia Fligger, and Denise Warhola.*fn4 (Docket No. 80 at 1).
The Amended Complaint contains the following eight claims: (1) racial discrimination under Title VII (Count I); (2) retaliation in violation of Title VII (Count II); (3) racial discrimination in violation of 42 U.S.C. § 1981*fn5 (Count III); (4) discrimination in violation of the Americans with Disabilities Act of 1990 ("ADA")(Count IV); (5) discrimination in violation of the Age Discrimination in Employment Act ("ADEA")(Count V); (6) retaliation in violation of the ADEA (Count VI); (7) retaliation for participating in activities protected under Pennsylvania's Whistleblower Law, 43 P.S. §§ 1421, et seq. (Count VII); and (8) violations of Plaintiff's First and Fourteenth Amendment due process and equal protection rights*fn6 "and/or Amend to Add Federal 2009. (Docket No. 84). Upon consideration of Defendants' responses filed on July 13 and 15, 2009 (Docket Nos. 88, 89, and 90), the Court denied Plaintiff's motion regarding an appeal on July 15, 2009. (Docket No. 91).
Tort Claims Act Pursuant to 28 U.S.C. §§ 2677 E.E.O.C" (Count IX).(Docket Nos. 86 and 86-1).*fn7 For all of her claims, Plaintiff requests compensatory, punitive, and injunctive relief, as well as back pay and front pay. (Docket No. 86). In addition, at Count IX, Plaintiff requests declaratory relief against Wilkinsburg. (Docket No. 86-2 at 10).
In support of her claims, Plaintiff alleges that Wilkinsburg wrongfully refused to hire her for certain full time teaching positions in the fall of 2004, when she was working as a homebound teacher, and then terminated her employment sometime in the fall of 2005. (Docket No. 86 at 8-9). Plaintiff also avers that Wilkinsburg and various of its employees discriminated against her on the basis of her race (African-American), her age,*fn8 her perceived disability*fn9 and in retaliation for her opposition to prior discriminatory conduct. (Docket No. 86, passim ). In furtherance of her 2005 unlawful discharge claim, Plaintiff contends that Wilkinsburg retaliated against her after she filed a charge with the PHRC in the fall of 2004. (Docket No. 86 at 9).
With regard to the Individual Defendants, Plaintiff alleges that she was discriminated against after she complained of discriminatory conduct to Sue Goodwin, Human Relations Director, and Joseph Tindal, Superintendent, whom she avers "was not certified or qualified to be a superintendent."(Docket No. 86 at 4, 14). Specifically, she states that she reported to them the "racist actions of the Wilkinsburg School District's hiring and promotion practices of mostly younger whites in permanent positions, and substitutes, and when fellow teachers were stating slurs, and acting racist." (Docket No. 86 at 4, 14). Further, Plaintiff contends that Sue Goodwin and Joseph Tindal "along with" Anthony Sanchez*fn10 "committ[ed] outright discrimination." (Docket No. 86 at 15). Robert Schneider, a special education teacher "who was acting principal, without any elementary principal certification" (Docket No. 86 at 4), purportedly made racist comments to Plaintiff after she pointed out instances of his discriminatory conduct. (Docket No. 86 at 18-19). Randy Davis "was also acting like the union representative for whites. He was openly racist and expressed his dissatisfaction for Dr. Turner (black) and Tindal being over him." ( Id. at 4).
Plaintiff avers that Sean Davis is a "non certified substitute who told Plaintiff, Schneider, and Dr. Turner at a meeting that he could not pass the required test for certification." (Docket No. 86 at 4). Plaintiff complains that he, as well as another individual named Joseph Vrbanic who is not named as a party, were hired over her despite their lack of teaching certifications because they are white and younger. ( Id. at 18, 19, 23, 31). Through August 31, 2004, she reported these same complaints to Joseph Tindal and Sue Goodwin by email and also informed them of her filing with the PHRC. (Docket No. 86 at 20-21, 24).*fn11 Plaintiff avers that Laura Mannella, Cynthia Fligger, and Denise Warhola "were classroom teachers in regular and special education classrooms" and that "they participated in the racist hostile environment against Plaintiff, other black staff and black children." (Docket No. 86 at 5).*fn12
On July 20, 2009, Wilkinsburg and the Individual Defendants filed a Motion to Dismiss Plaintiff's Amended Complaint and a Brief in Support. (Docket Nos. 94 and 95). Plaintiff filed her Response to the Motion on August 4, 2009. (Docket No. 96). Upon review of Plaintiff's filings, which violated the Court's earlier directive to include a full and complete copy of her EEOC Notice of Right to Sue letter, the Court, mindful of Plaintiff's pro se status, entered another Order on August 5, 2009 directing Plaintiff to file a full and complete copy of her EEOC letter by August 17, 2009. (Docket No. 97). The Court also set a hearing and argument on Defendants' Motion to Dismiss for August 21, 2009 at 3:30 p.m. ( Id. ).
Plaintiff filed a Response to this Order on August 17, 2009, in which she states that she requested a right to sue letter from the EEOC, specifically from Mr. Thomas Hardiman,*fn13 via a "certified request" on June 6, 2009. (Docket No. 98). She further states that Mr. Hardiman, in turn, sent her a letter "claiming he will forward the request to a main headquarters and get back with [her]." (Docket No. 98 at 1). Plaintiff did not provide the Court with a copy of this letter from Mr. Hardiman in her Appendix. Plaintiff claims that she received no response before she filed her Amended Complaint on June 30, 2009. ( Id. ). On August 13, 2009, Plaintiff sent a fax to the EEOC's Philadelphia District Office requesting a right to sue letter for the charge at number "17F-2005-6-17FA560458,"*fn14 a copy of which was attached to her Response filed on August 17, 2009. (Docket No. 98-2). She did not receive a response from the EEOC by August 17, 2009. Instead, she claims that she "was told by Washington EEOC to contact Hardiman, in the Pittsburgh Office, for he is the one to give it to me." (Docket No. 98 at 1). Plaintiff alleges that she contacted Mr. Hardiman, but that he was on the phone "and would get back to her," which, she claims, he did not do prior to August 17, 2009. ( Id. at 1-2). Plaintiff also handwrote on her response that Mr. Hardiman "said EEOC will issue the Right to Sue letter, call at 412 395-5902 (Regional Dir.)." (Docket No. 98 at 2).
Upon the Court's granting of Defendants' request for leave to file a supplement to their Motion to Dismiss (Docket Nos. 99 and 101), Defendants filed their supplement on August 18, 2009, attaching to it a copy of Plaintiff's right to sue letter dated July 15, 2008,*fn15 which was mailed to her by Marie M. Tomasso, District Director of the EEOC Philadelphia District Office.*fn16 (Docket No. 102-2). In their supplement, Defendants' counsel avers that in preparation for the hearing, they discovered in their files what appeared to be Plaintiff's EEOC letter for charge number 17F-2005-60458, which they believe to be the document the Court had requested. (Docket No 102 at 2).
A hearing on Defendants' motion was held on August 21, 2009, during which the Court heard oral argument and received evidence on the motion. (Docket No. 103). During the hearing, Plaintiff offered as an exhibit a copy of her EEOC Notice of Right to Sue letter, dated July 15, 2008, signed by Marie M. Tomasso. (Docket No. 103-3). Plaintiff also provided the envelope in which she claims she received the letter; it is postmarked August 17, 2009. (Docket No. 103-3). At the request and expense of Plaintiff, a transcript of the proceedings was produced and filed of record on September 8, 2009. (Docket No. 104).
Thereafter on September 10, 2009, Defendants requested leave to again supplement their motion. They requested 45 days within which to file a further supplement with information subpoenaed and produced by the PHRC and the EEOC from Plaintiff's claim files. (Docket No. 105). In support thereof, Defendants stated that they believe they were never provided a copy of the PHRC's findings issued for Plaintiff's 2004 charge.*fn17 ( Id. ). The Court granted the motion giving Defendants until October 26, 2009 to file their supplement. (Docket No. 106).*fn18
On October 22, 2009, Defendants filed their second Supplement to their Motion to Dismiss, attaching to it Plaintiff's EEOC right to sue letter dated July 15, 2008 and the PHRC's Findings of the Investigation for PHRC Case No. 200401907 and EEOC No. 17FA560458. (Docket Nos. 114, 114-3, 114-4). The EEOC right to sue letter states that the EEOC has adopted the findings of the state agency that investigated Plaintiff's charge, i.e. the PHRC, which had concluded that Plaintiff's allegations have no probable cause because the investigation did not establish a prima facie case. (Docket No. 114-4).
As the parties' briefing has concluded, Defendants' Motion to Dismiss is now ripe for disposition.
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal , 129 S.Ct. 1937, 1949 (2009)(citing Bell Atlantic Corp. v. Twombly , 550 U.S. 544 (2008)); see also Fowler v. UPMC Shadyside , 578 F.3d 203, 210 (3d Cir. 2009); and F ED. R. C IV. P. 8(a)(2)(a valid complaint requires only "a short and plain statement of the claim" showing entitlement to relief."). The Supreme Court in Iqbal clarified that the decision in Twombly "expounded the pleading standard for 'all civil actions.'" Iqbal , 129 S.Ct. at 1953; Fowler , 578 F.3d at 210-11. The court further explained that although a court must accept as true all of the factual allegations contained in a complaint, that requirement does not apply to legal conclusions; therefore, the pleadings must include factual allegations to support the legal claims asserted. Iqbal , 129 S.Ct. at 1949, 1953. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 1949 (citing Twombly , 550 U.S. at 555); see also Fowler , 578 F.3d at 210; and Phillips v. County of Allegheny , 515 F.3d 224, 232 (3d Cir. 2008). The determination of whether a complainant has sufficiently pled a claim "is a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal , 129 S.Ct. at 1950 (citing Twombly , 550 U.S. at 556); see also Fowler , 578 F.3d at 210-11 (holding that in light of Iqbal , a district court should first separate the factual and legal elements of a claim and then, accepting the "well-pleaded facts as true," "determine whether the facts" pled are sufficient to show a "'plausible claim for relief.'"). Ultimately, to survive a motion to dismiss, a plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 129 S.Ct. at 1949 (citing Twombly , 550 U.S. at 556).
A court must liberally construe a pro se complainant's allegations, while pro se plaintiffs must be held to less stringent standards. Erickson v. Pardus , 551 U.S. 89, 127 S.Ct. 2197, 2200 (2007); Alston v. Parker , 363 F.3d 229 (3d Cir. 2004); see also Taylor v. Diznoff , 633 F.Supp. 640, 641 (W.D. Pa. 1986)("a judge may not become a surrogate attorney" for a pro se party).
Pursuant to the so-called "Third Circuit Rule," a statute of limitations defense may be raised by a motion to dismiss under Rule 12(b)(6), but only if "the time alleged in the statement of the claim[s] shows that the cause of action has not been brought within the statute of limitations." Hanna v. U.S. Veterans' Admin. Hosp. , 514 F.2d 1092, 1094 (3d Cir. 1975); Robinson v. Johnson , 313 F.3d 128, 135 (3d Cir. 2002). If the limitations bar is apparent on the face of the complaint, then it may be the basis for dismissal of the complaint under Rule 12(b)(6). Robinson , 313 F.3d at 135 (citing Bethel v. Jendoco Constr. Corp. , 570 F.2d 1168, 1174 (3d Cir. 1978)).
In evaluating a Rule 12(b)(6) motion, a court "may look beyond the complaint to matters of public record, including court files and records ... and documents referenced in the complaint or essential to a plaintiff's claim which are attached to either the [c]omplaint or the defendant's motion." Spence v. Brownsville Area Sch. Dist. , Civ. A. No. 08-0626, 2008 U.S. Dist. LEXIS 55026, at *7 (W.D. Pa. July 15, 2008)(citing Pension Benefit Guar. Corp. v. White Consol. Indus. , 998 F.2d 1192, 1196 (3d Cir. 1993)). A court may consider "an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document." Pension Benefit Guar. Corp. , 998 F.2d at 1196 (citations omitted). Otherwise, a plaintiff with a legally insufficient claim could survive a motion to dismiss "simply by failing to attach a dispositive document on which it relied." Id.
Defendants have moved for dismissal of Plaintiff's Amended Complaint, in its entirety, on various grounds. The Individual Defendants move for dismissal first on the basis that Plaintiff has failed to effectuate service of her Amended Complaint. Alternatively, they contend that Plaintiff has not timely brought her claims against them and that they cannot be held individually liable. Wilkinsburg moves for dismissal on the grounds that Plaintiff has not fully complied with the statutory requirements for her discrimination claims to proceed in this Court and that her Whistleblower claim is time-barred. The Court will first address the motion as it relates to the Individual Defendants.
A. Plaintiff's Claims Against the Individual Defendants
The Individual Defendants first contend that they have not been properly served because Plaintiff has failed to make proper service of her Amended Complaint on each of them. (Docket No. 95 at 4). They argue that throughout the litigation of this action, Plaintiff has had ample warning of the need for proper service and the consequences of failing to effect service. ( Id. ). Defendants also point out that Plaintiff has been repeatedly instructed by the Court regarding the means of effectuating proper service of process. (Docket No. 104 at 2-3). To bring this defense before the Court, Wilkinsburg authorized its attorneys to represent the nine individual parties for purposes of this motion because at the time of the cited incidents, those nine people were employees of the Wilkinsburg School District. (Docket No. 104 at 3: 23-25; 8: 7-11). As a result, Wilkinsburg's counsel have entered their appearances on behalf of the Individual Defendants as a "courtesy defense" and out of respect for the Court in order to enable the Court to address the claims against them. (Docket No. 95 at 5; Docket No. 104 at 3: 19-22).*fn19
Plaintiff asserts that because counsel for the Individual Defendants is the same as Defendant Wilkinsburg's counsel, and because the latter received a copy of the Amended Complaint at their law firm's offices, the nine Individual Defendants were properly served. (Docket No. 110 at 2; Docket No. 112 at 5; Docket No. 104 at 4: 22-23, 36: 7-17).*fn20 Plaintiff is incorrect in this assertion.
Proper service is an essential step in establishing a district court's personal jurisdiction over a defendant. Chiang v. United States SBA , Civ. A. No. 07-2686, 2009 U.S. App. LEXIS 9668, at *4 (3d Cir. May 4, 2009). A plaintiff is responsible for having the summons and complaint served within the time allowed by Federal Rule of Civil Procedure 4(m). F ED. R. C IV. P. 4(c)(1). Federal Rule of Civil Procedure 4(m) provides that if service of process of the summons and complaint is not made within 120 days after the filing of the complaint, the court "shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specific time." F ED. R. C IV. P. 4(m). If a plaintiff shows "good cause" for the failure to timely serve a defendant, the court shall extend the time for service for an appropriate period. Id. This requires a party to demonstrate good faith for seeking an extension based on a reasonable basis for noncompliance with Rule 4. MCI Telecomms. Corp. v. Teleconcepts, Inc. , 71 F.3d 1086, 1097 (3d Cir. 1995). The "good cause" inquiry is focused on the plaintiff's reasons for not complying with the time limit in the first place. Boley v. Kaymark , 123 F.3d 756, 758 (3d Cir. 1997).
Plaintiff filed her Amended Complaint on June 30, 2009. (Docket No. 86). Therefore, she had until October 30, 2009 to properly serve each of the nine Individual Defendants with her amended pleading. In fact, at the August 21, 2009 hearing, the Court advised Plaintiff that the docket reflected that she had made no effort "whatsoever to serve these individuals." (Docket No. 104 at 33:13-17). This Court instructed Plaintiff that she needed to make service on each of the Individual Defendants within 120 days of the filing of her amended pleading, i.e. by October 30, 2009, even though she had mailed her pleading and other court filings to Wilkinsburg's counsel. (Docket No. 104 at 3: 19-21; 4:2-4; 33: 2-22; 38: 7-19). The Court specifically directed Plaintiff to the Court's website which provides a "Pro Se Package" with detailed instructions in plain language on what one has to do in terms of service of process.*fn21 (Docket No. 104 at 38: 7-13).
While Plaintiff did properly serve Defendant Wilkinsburg, Plaintiff has still failed to make service on the Individual Defendants and the Court has not been presented with any evidence to excuse Plaintiff's lack of diligence. See Boley , 123 F.3d at 758. She has not offered any explanation or shown good cause as to why the Individual Defendants have not been served; nor did she request an extension of time to make service prior to October 30, 2009. Instead, she argues that service on counsel is sufficient. In response, the Court notes that all litigants must comply with the Federal Rules of Civil Procedure whenever they file a lawsuit in federal court, regardless of whether they are represented by counsel. Plaintiff is required to comply with the rules of procedure. As noted, while Plaintiff is pro se , she has instituted numerous civil actions in this Court "and has, or should have, gained experience and familiarity with the requisites of maintaining a civil action in federal court." N'Jai v. Pa. Dep't of Educ., et al. , CA 02-268 (W.D. Pa. 2003; Docket No. 39 at 7). Plaintiff has been previously warned by this Court and by other Judges in this district of the necessity of proper service and the manner in which service is to be effectuated. ( Id. ). To this end, Plaintiff has been reminded by this Court at the above-described hearing and in three previous orders of the need for compliance with Rule 4. ( See Docket Nos. 67, 80, and 85). Thus, in instituting this action and in continuing to prosecute it, Plaintiff had ample warning of the need for proper service and the consequences of her failure to effect service. (W.D. Pa. 2003; Docket No. 39 at 8).
Given Plaintiff's history in this Court,*fn22 her continued failure to comply with Rule 4(i), and her lack of explanation for the same, the Individual Defendants are dismissed from this action pursuant to Rule 4(m) for Plaintiff's failure to make proper service of her Amended Complaint. See Fed. R. Civ. P. 4(m)(a district court may dismiss "on motion or on its own after notice to the plaintiff.").
Ordinarily, having ruled that the Individual Defendants are dismissed under Rule 4(m), the Court would not address the remaining issues as to these parties. However, in the interest of completeness, the Court will address the ...