The opinion of the court was delivered by: Juan R. Sánchez, J.
Defendant Western-Southern Life Insurance Company (Western-Southern) asks this Court to dismiss Plaintiff Thomas J. Carl's Amended Complaint alleging employment discrimination pursuant to Federal Rule of Civil Procedure 12(b)(6).*fn1 For the reasons set forth herein, the Court will grant the motion.
Western-Southern hired Carl as a Sales Representative in October 2004 and promoted him to the position of Sales Manager the following month. In September 2005, Carl returned to a Sales Representative position, which he held until February 4, 2006, when he was "constructively discharged." Am. Compl. ¶¶ 42-43. After Carl returned to a Sales Representative position, he was discriminated against and harassed by Abdullah Parviz Pezeshkian, the Western-Southern District Sales Manager who supervised Carl.
On September 28, 2006, Carl filed a Charge of Discrimination (Charge) with the EEOC, alleging he had been subjected to discrimination based on religion, national origin, and disability, as well as retaliation, during the period from November 1, 2004, through February 4, 2006. Am. Compl. ¶ 44; Def.'s Mot. to Dismiss Am. Compl. Ex. D. The Charge listed Carl's address as 8592 Old Lind Road, Philadelphia, PA 19128, id., and was cross-filed with the Pennsylvania Human Relations Commission (PHRC), Am. Compl. ¶ 44.
On March 17, 2007, the EEOC issued a Dismissal and Notice of Rights (Notice, also known as a right-to-sue letter) to Carl at the 8592 Old Lind Road address listed on his Charge, notifying him the EEOC was closing its file on his Charge and advising him of his right to file a lawsuit. Def.'s Mot. to Dismiss Am. Compl. Ex. E. The Notice also advised Carl his lawsuit must be filed within 90 days from his receipt of the Notice or his right to sue would be lost. Id. Although Carl acknowledges the Notice was sent, he alleges he did not receive it because the street name in the address was incorrect by one letter. Am. Compl. ¶ 45. Carl asserts he lives at 8592 Old Line Road, not 8592 Old Lind Road, the address listed on his Charge. Id. On April 26, 2007, the PHRC sent Carl a letter advising him it had closed his case. Def.'s Mot. to Dismiss Am. Compl. Ex. F. Carl alleges he did not receive a copy of this letter, which was also sent to the 8592 Old Lind Road address listed on his EEOC Charge. Am. Compl. ¶ 46.
Carl did not hear anything about the Charge he filed in September 2006 until April 2009, when the EEOC sent him a letter regarding the Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5 (2009) (codified at 42 U.S.C. § 2000e-5(e)(3)) (Ledbetter Act). On June 30, 2009, the EEOC issued a second Notice to Carl pursuant to the Ledbetter Act. Am. Compl. Ex. A. In its letter accompanying this new Notice, the EEOC explained it had contacted individuals who had "filed Charges with EEOC, including a wages issue, and for which the individual may have been affected by the Supreme Court's decision in the Ledbetter v. Goodyear Tire and Rubber Company case (which was reversed by the Lilly Ledbetter Fair Pay Act)." Id. The letter went on to state the EEOC had determined Carl was eligible to receive "a new issuance of a Notice of Right to Sue" based on Carl's response to an EEOC questionnaire in which Carl indicated he was impacted by the Ledbetter decision and as a result did not file a lawsuit based upon his Charge of Discrimination. Id.
On September 1, 2009, Carl filed a Complaint in this Court, asserting claims for discrimination and harassment based on national origin, disability, and religion pursuant to Title VII, the ADA, and the PHRA, and also asserting state law claims for negligent and intentional infliction of emotional distress. Western-Southern filed a motion to dismiss the Complaint, and on January 21, 2010, this Court granted the motion in part and dismissed Carl's negligent and intentional infliction of emotional distress claims. As to Carl's discrimination claims, however, this Court denied the motion without prejudice to reassertion and granted Carl leave to file an amended complaint. On February 4, 2010, Carl filed his Amended Complaint, which the instant motion seeks to dismiss.
To survive a motion to dismiss pursuant to Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In evaluating such a motion, the district court first should separate the legal and factual elements of the plaintiff's claims. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). The court "must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions." Id. at 210-11. The court must then "determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.'" Id. at 211 (quoting Iqbal, 129 S.Ct. at 1950).
Western-Southern argues Carl's Title VII and ADA claims are time-barred because Carl failed to file his Complaint within 90 days of his presumed receipt of the EEOC's first Notice and because the Ledbetter Act did not revive those time-barred claims. Western-Southern makes a similar statute of limitations argument as to Carl's PHRA claim based on Carl's failure to file his Complaint within two years after the date the PHRC sent Carl a letter notifying him it was closing his case. Western-Southern further argues Carl's § 1981 claim should also be dismissed because he has alleged a claim for discrimination based on national origin, which is not cognizable under § 1981. Carl responds his claims are timely because he never received the EEOC's first Notice or the PHRC's letter, both of which were sent to the wrong address, and the statute of limitations did not begin to run until he received the new Notice the EEOC issued pursuant to the Ledbetter Act. Carl further argues even if his claims were time-barred, the Ledbetter Act revived them. Finally, Carl asserts he has sufficiently alleged a § 1981 claim for discrimination based on his Irish ancestry and ethnicity.*fn3
Discrimination claims under Title VII and the ADA must be filed within 90 days after the plaintiff receives notice of the EEOC's dismissal of the claim. 42 U.S.C. § 2000e-5(f)(1); Ebbert v. DaimlerChrysler Corp., 319 F.3d 103, 108 & n.4 (3d Cir. 2003). This 90-day limitations period generally begins to run on the date the plaintiff receives a right-to-sue letter from the EEOC. Id. at 115 n.14. In some instances, however, a right-to-sue letter may be deemed received even though the plaintiff did not actually see it. Id. at 115 n.15 (citing with approval "precedent in other circuits holding that a notice letter correctly delivered to a complainant's residence or postal box constitutes notice even though the complainant may not have seen the notice him or herself at the time of delivery"). Absent evidence to the contrary, "courts will presume that a plaintiff received her right-to-sue letter three days after the EEOC mailed it." Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 239 (3d Cir. 1999).
In determining whether a right-to-sue letter may be deemed received notwithstanding the plaintiff's assertion he never saw it, courts have considered the degree to which the plaintiff himself is responsible for his own failure to receive the letter. In St. Louis v. Alverno College, 744 F.2d 1314 (7th Cir. 1984), for example, the Seventh Circuit dismissed a Title VII claim as barred by the 90-day limitations period, even though the plaintiff never actually received the EEOC's right-to-sue letter, where the EEOC had mailed the letter to a Milwaukee address from which the plaintiff had moved.
Because the plaintiff had failed to formally notify the EEOC of his change of address, as required by EEOC regulations, the court held the 90-day limitations period "began running on the date the notice was delivered to the most recent address plaintiff provided the EEOC." Id. at 1316-17. The court distinguished the plaintiff's situation from factual scenarios in which the doctrine of constructive receipt is inapplicable because the plaintiff's failure to receive actual notice is "through no fault of [his] own." Id. In contrast, the plaintiff's failure to tell the EEOC he had moved "was not an event beyond his control." Id. at 1317. Although the Third Circuit has not addressed the issue, several other Circuits have also held the 90-day ...