The opinion of the court was delivered by: Yohn, J.
Plaintiff, Shamus Reilly, has sued his former employer, the Upper Darby Township ("Upper Darby"), for discrimination pursuant to the Americans with Disabilities Act (the "ADA"), 42 U.S.C. §§ 12101-12213 (Count I), and the Pennsylvania Human Relations Act (the "PHRA"), 43 Pa. Stat. §§ 951-963 (Count II). He claims that although he suffers from a progressive muscular degenerative disease he could still perform his job as a police officer, but that Upper Darby would not accommodate him. Upper Darby moves to dismiss the complaint, claiming that he failed to file a timely charge of with the Equal Employment Opportunity Commission (the "EEOC"), a prerequisite to his ADA claim, and that he filed the instant suit before the one-year period for conciliation required by the PHRA expired. Reilly argues that the time for him to file his charge with the EEOC should be tolled because he never saw notices posted about his rights under the ADA. I conclude that he should have the opportunity to pursue discovery on this issue. Reilly does not, however, dispute Upper Darby's argument as to the PHRA. I will therefore deny the motion as to Count I but will grant it as to Count II, without prejudice to Reilly's right to reinstate his PHRA claim if it is not resolved after completion of the administrative process.
I. Factual and Procedural Background
Reilly claims that despite his disability he is able to perform the essential duties of his job and that, regardless, reasonable accommodations are available at minimal cost. (First Am. Compl. ¶¶ 36, 39, 41, 43.) He seeks reinstatement, back pay, lost benefits, interest, compensatory and punitive damages, a permanent injunction enjoining future discrimination, and costs and attorneys' fees. (Id. at ¶¶ 6-8.) Accepting all well-pleaded facts in the complaint as true, as I must when considering a motion to dismiss, the facts of Reilly's claims are as follows.
Reilly worked as an Upper Darby police officer for more than a decade. (Id. ¶ 10.) During that employment, he was diagnosed with a muscular degenerative disease. (Id. ¶ 11.) The disease has a slow progression, such that most patients can work for many years after the onset of symptoms. (Id. ¶¶ 12-14.) In June 2007, as an accommodation for leg weakness and an impaired ability to walk, Upper Darby assigned Reilly to the Operations Room of its police department. (Id. ¶¶ 15-17.)
On August 3, 2007, Reilly underwent a fitness-for-duty health examination. (Id. ¶ 19.) The physician who examined him reported that Reilly was fit to continue working in the Operations Room. (Id. ¶ 19.) Nevertheless, the Superintendent of Police (1) requested that a police captain prepare a list of alternative jobs suitable for Reilly and (2) ordered a meeting between Reilly and Upper Darby's Chief Administrative Officer, Tom Judge Jr. (Id. ¶¶ 20-22.) At this meeting, which took place on October 4, 2007, Reilly learned that he would no longer be allowed to work in the Operations Room. (Id. ¶ 23.) On October 14, 2007, Upper Darby placed Reilly on involuntarily medical leave. (Id. ¶¶ 24, 33.)
Upper Darby later informed Reilly that the Operations Room assignment was meant only as a light duty position for employees whom Upper Darby expected to return to full duty. (Id. ¶ 25.) Reilly alleges, however, that the Operations Room is actually staffed by officers with no disabilities and by part-time employees. (Id. ¶¶ 26-28.) Upper Darby refused to discuss alternative positions or accommodations for Reilly and refused to participate in the interactive accommodation process. (Id. ¶¶ 29-31.) Based on the collective bargaining agreement that covered police officers like Reilly in Upper Darby, Reilly filed a grievance over being placed on leave. (Id. ¶¶ 29-31.) On October 14, 2008, after an arbitrator upheld the decision to place Reilly on leave, Upper Darby terminated Reilly's employment. (Id. ¶ 35.)
In January 2009, more than 300 days after Upper Darby placed him on involuntary medical leave, Reilly filed a charge with the EEOC alleging that Upper Darby violated the ADA. (Id. ¶ 35b.)*fn1 Reilly cross-filed this charge with the Pennsylvania Human Relations Commission (the "PHRC"). (Id. ¶ 8.) The EEOC notified Reilly of his right to sue and on June 1, 2009, within 90 days of his receipt of that notice, he filed a complaint in this court. (Id. ¶ 9.) On July 23, 2009, he filed a First Amended Complaint in which he alleged that throughout the time period relevant to his claims he "saw no Township postings or other notices to employees of the police force of their rights under the ADA" or "of time constraints for filing charges with the EEOC." (Id. ¶¶ 35a-35b1.)
II. Standards Under Rule 12(b)(6)
The Third Circuit recently clarified the two-part analysis a court should use to consider a motion to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-211 (3d Cir. 2009). First, the court should separate the factual and legal elements of the claim. Id. The court may disregard any legal conclusions but must accept all of the complaint's well-pleaded facts as true. Id. Second, the court must determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a plausible claim for relief. Id. "This 'plausibility' determination will be 'a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'" Id. (quoting Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S.Ct. 1937, 1949-50 (2009)). "A claim has facial plausibility when the plaintiff pleads 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.*fn2
Before an aggrieved party may properly file a discrimination claim under the ADA in federal court, he or she must meet a number of procedural obligations. See 42 U.S.C. §§ 12117(a) and 2000e. For example, he or she must file a charge with the EEOC within 300 days of the alleged act of discrimination if, as here, he or she also instituted proceedings before a state agency that has authority to grant relief in such a matter, such as the PHRC. Ruehl v. Viacom, Inc., 500 F.3d 375, 383 (3d Cir. 2007) ("'In deferral states, such as Pennsylvania, the charge must be filed within 300 days of the allegedly illegal act.'") (quoting Seredinski v. Clifton Precision Prods. Co., 776 F.2d 56, 61 (3d Cir. 1985) (a 300-day rather than a 180-day limitations period applied because the PHRC has overlapping jurisdiction with the EEOC and, therefore, the EEOC must afford the PHRC a reasonable time to remedy the violation alleged)); 42 U.S.C. § 2000e-(5)(e)(1). If a plaintiff fails to meet these procedural obligations, the court must dismiss the action as untimely. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 108-09 (2002). Here, Reilly did not file his charge with the EEOC until January 2009, more than 300 days after October 14, 2007, when Upper Darby placed him on involuntary medical leave.*fn3
An employer, however, also has obligations under the ADA, such as the requirement to post notices of fair employment practices in "conspicuous places," including descriptions of the filing requirements of the ADA. 42 U.S.C. § 2000e-10(a). Furthermore, the time period in which an employee must file a charge with the EEOC is not a jurisdictional issue but rather is in the nature of a statute of limitations, and is therefore "subject to equitable modifications, such as tolling." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir. 1994). Under the doctrine of equitable tolling, an employer's failure to post the required ADA notices in "conspicuous places" tolls the limitations period, at least until such time as the aggrieved person seeks out an attorney or acquires knowledge of his rights to be free from discrimination. Hammer v. Cardio Med. Prod., 131 F. App'x 829, 831 (3d Cir. 2005); 42 U.S.C. § 2000e-10(a); see also Bonham v. Dresser Indus., 569 F.2d 187, 193 (3d ...