The opinion of the court was delivered by: Judge McClure
On January 26, 2010, plaintiff, Yan Yan ("Yan"), commenced the instant civil action by filing a complaint against defendants Penn State University ("Penn State"), Zhi-Chun Lai ("Dr. Lai"), and Li-Lun Ho ("Ho"). Yan filed an amended complaint on May 26, 2010. (Rec. Doc. No. 16). The amended complaint alleges: Count I: Hostile Educational Environment in Violation of Title IX, 20 U.S.C. §1681(a); Count II: Retaliation/Discrimination in Violation of 20 U.S.C. §1681(a); Count III: Violation of the Rehabilitation Act 29 U.S.C. §794; Count IV: Retaliation in Violation of the First Amendment pursuant to 42 U.S.C. §1983; Count V: Violation of Equal Protection pursuant to 42 U.S.C. §1983; Count VI:
Violation of Equal Protection pursuant to 42 U.S.C. §1983; and Count VII: Discrimination on the Basis of National Origin and Race pursuant to 42 U.S.C. §1983.
On May 28, 2010, defendants filed a Motion to Dismiss (Partially) Plaintiff's Amended Complaint together with a supporting brief. (Rec. Doc. Nos. 17 and 18). Plaintiffs filed an opposing brief*fn1 on June 11, 2010. (Rec. Doc. No. 19). Defendants filed a reply brief on June 25, 2010. (Rec. Doc. No. 20). Thus, the matter is ripe for disposition.
Now, therefore, for the following reasons we will grant the partial motion to dismiss.
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). "The tenet that a court must accept as true all of the [factual] allegations contained in the complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, __ U.S. __, 2009 U.S. Lexis 3472, *29 (internal citations omitted). 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. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, __ U.S. at *29. 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). "Determining whether a complaint states a plausible claim for relief will... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, __ U.S. at *30. 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. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - - but it has not "shown" - - "that the pleader is entitled to relief." Iqbal, __ U.S. at *29, citing Fed. R. Civ. P. 8(a). 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
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). "The tenet that a court must accept as true all of the [factual] allegations contained in the complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, __ U.S. __, 2009 U.S. Lexis 3472, *29 (internal citations omitted). 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. Accepting as true all of the factual allegations in the complaint, the facts are as follows.
Yan Yan is a female student from China, residing in the United States pursuant to a student visa. Yan was a Ph.D. candidate at Penn State. The Ph.D. program was to be completed between June 18, 2007 and May 31, 2012. Yan was also awarded a graduate assistantship which helped to cover tuition and her livelihood. Dr. Lai was Yan's thesis advisor. Yan was supposed to sit for her comprehensive exam at some point during the summer of 2008.
Ho, a Taiwanese male, was the senior lab member in the Ph.D. program.
Ho controlled the lab supplies, managed the lab equipment, and managed the undergraduates who used the lab. Yan alleges that Ho had the power to control or affect how she could use the lab resources and conduct her experiments. Yan asserts that when she started working in the lab in the summer of 2007, Ho immediately began to harass her.
Ho would provide negative evaluations of Yan. Ho advised Yan not to communicate with Dr. Lai because Yan is a woman. Ho told Yan that he did not want her in the lab because she is a woman. Ho would interfere in Yan's research. Ho indicated that he felt prejudice against women in Yan's position.
On January 26, 2008, Yan needed to move a heavy CO2 cylinder. Ho refused to help and impeded Yan's efforts. Consequently, the heavy cylinder fell on Yan's hand and broke two of her fingers. Yan reported the injuries to Penn State and filed a workers compensation claim. The injuries were to Yan's right hand, which significantly impaired her research and teaching assistant work.
On February 21, 2008, Yan complained about Ho to the University police. An administrative directive was issued directing Yan and Ho to have no contact with each other.
Yan advised Dr. Lai about Ho's harassment, that Ho did not like to work with women and told him that she reported Ho to the University police. Dr. Lai intimated to Yan that if she reported Ho to HR, there would be trouble for her. After this, Dr. Lai scheduled Yan's comprehensive exam for May 1, 2008. Yan protested his scheduling the exam for this date because her hand injury had set her ...