The opinion of the court was delivered by: Amy Reynolds Hay Chief United States Magistrate Judge
Judge Donetta W. Ambrose/Chief U.S. Magistrate Judge Amy Reynolds Hay
REPORT AND RECOMMENDATION
Plaintiff, Joseph Shavers ("Shavers"), filed this civil rights action against Sunfresh Food Service, Inc. ("Sunfresh") after Sunfresh allegedly terminated his employment in July of 2009. Sunfresh has filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6) asking that the complaint be dismissed for failure to state a claim. For the reasons that follow, it is respectfully recommended that the motion [Dkt. 12] be denied.
A. Factual and Procedural Background
Shavers is a 49 year old black male who began working for Sunfresh as a truck driver in November of 2004. Amended Compl. ¶¶ 8, 9 [Dkt. 8]. Shavers claims that while employed at Sunfresh he was subjected to racial epithets, insults and threats by both co-workers and management and that despite his complaints, Sunfresh's owners did nothing to correct the racially hostile work environment and, in fact, condoned it. Id. at ¶¶ 11, 12, 14, 17, 18. Shavers also alleges that he was subjected to a racially motivated physical attack by a manager and a co- worker on July 18, 2009, that was "actuated by the purpose of serving [Sunfresh's owners]," and that no disciplinary action was taken against the individuals involved. Id. at ¶¶ 13, 17, 21, 22, 24, 25, 27. Shavers alleges that thereafter he feared for his safety and has not reported to work since the attack, and that he was, in fact, constructively discharged. Id. at ¶¶ 28, 29.
As a result, Shavers filed a complaint on October 14, 2009, which he amended on December 9, 2009, bringing claims for race discrimination under 42 U.S.C. § 1981 ("Section 1981") at Count I, and assault and battery at Count II. Sunfresh subsequently filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), which is now ripe for review.
In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the United States Supreme Court held that a complaint is properly dismissed under Fed. R. Civ. P. 12(b)(6) where it does not allege "enough facts to state a claim to relief that is plausible on its face." Id. at 570. In assessing the sufficiency of the complaint, the Court must accept as true all allegations in the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Odd v. Malone, 538 F.3d 202, 205 (3d Cir. 2008). The Court, however, need not accept inferences drawn by the plaintiff if they are unsupported by the facts as set forth in the complaint. See California Public Employees' Retirement System v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004), citing Morse v. Lower Merion School District, 132 F.3d 902, 906 (3d Cir. 1997). Nor must the Court accept legal conclusions set forth as factual allegations; rather, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. at 555, citing Papasan v. Allain, 478 U.S. 265, 286 (1986). See Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (Finding that, under Twombly, "labels, conclusions, and a formulaic recitation of the elements of a cause of action" do not suffice; noting that the complaint "must allege facts suggestive of [the proscribed] conduct;" and requiring plaintiff to allege "enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s] of his claim").
Sunfresh first argues that Shavers' claim brought pursuant to Section 1981 at Count I of the Amended Complaint should be dismissed because it is clear from the original complaint filed by Shavers that he is contemplating bringing suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f)(1) ("Title VII"), but he has not exhausted his administrative remedies. Because Sunfresh is of the belief that once Shavers receives a Right to Sue letter from the Equal Employment Opportunity Commission ("EEOC") he will again amend his complaint to include a Title VII claim, it argues that Shavers is clearly attempting to circumvent the administrative procedures enacted by Congress and that the case, as it stands now, is not ripe for adjudication.
Review of Shavers' original complaint shows that, although he was purportedly bringing suit under Section 1981, he also indicated that he had filed a timely charge of discrimination with the EEOC and the Pennsylvania Human Right Commission and that he intended to amend the complaint when he receives the Right to Sue letter. Compl. ¶ 4 [Dkt. 1]. In response, Sunfresh filed a motion to dismiss arguing, much as it has here, that because Shavers was clearly contemplating bringing suit under Title VII, he is required to exhaust his administrative remedies before filing suit and that because Shavers had clearly not received a Right to Sue letter from the EEOC, the complaint should be dismissed. In lieu of responding to Sunfresh's motion to dismiss, however, Shavers filed an Amended Complaint in which he eliminated the paragraph stating that he had filed a charge with the EEOC and intended to amend the complaint when he received a Right to Sue letter, indicating instead -- and correctly so -- that Section 1981 has no exhaustion requirement. Thus, the Amended Complaint gives no indication that Shavers filed a charge with the EEOC or that he intends to file another amended complaint.
Sunfresh nevertheless asks the Court to dismiss the Amended Complaint based on what Shavers asserted in the original complaint. The Amended Complaint, however, nullifies the original complaint and any reference to an EEOC charge. Snyder v. Pascack Valley Hospital, 303 F.3d 271, 276 (3d Cir. 2002) ("An amended complaint supercedes the original version in providing the blueprint for the future course of a lawsuit"); California Sun Tanning USA, Inc. v. Electric Beach, Inc., 2010 WL 827725, at *4 (3d Cir. March 11, 2010), quoting King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994) ("An amended complaint supersedes the original complaint and renders it of no legal effect unless the amended complaint specifically refers to and adopts or ...