The opinion of the court was delivered by: Christopher C. Conner United States District Judge
Plaintiff Christopher Stine ("Stine") brings this action alleging that defendants engaged in unlawful employment practices. The defendants include Stine's former employer, the Pennsylvania State Police, Bureau of Liquor Control Enforcement (the "Bureau"), and various employees and agents of the State Police, named individually. Presently before the court are three motions to dismiss Stine's amended complaint: (1) a motion (Doc. 21) filed by the Bureau, (2) a motion (Doc. 42) filed by defendants Backus, Asken, Facciolo, Hand, Butler, Coyle, Pawlowski, Brown, and Henry, and (3) a motion (Doc. 50) filed by defendants Zerance, Bonney, Miller, and Johnson. For the reasons that follow, the motions will be granted.
I. Statement of Facts*fn1
Stine, an employee of the Bureau, (Doc. 15 ¶ 24), suffered from symptoms of Attention Deficit Hyperactivity Disorder ("ADHD") and/or Attention Deficit Disorder ("ADD"), which affected his ability to think, concentrate, learn, communicate, interact with others, and express himself. (Id. ¶¶ 27, 30, 78). On multiple occasions, Stine requested accommodations for his condition. (Id. ¶¶ 26, 32, 43, 53). Stine's requested accommodations related to time, level of supervision, communication of assignments, methods of instruction, training, guidance, and feedback. (Id. ¶¶ 31, 32). None of the defendants provided the requested accommodations, nor did they propose alternative accommodations or attempt to determine how to reasonably accommodate Stine's condition. (Id. ¶¶ 38, 39, 44, 45).
Stine's evaluations and performance reviews noted deficiencies in his work performance. (Id. ¶¶ 47, 48, 53). According to Stine, these deficiencies resulted from his ADHD/ADD symptoms. (Id. ¶¶ 48, 49, 57). In 2006 and/or 2007, Stine was placed on an interim evaluation period. (Id. ¶ 50). In July of 2006, defendants Coyle and Butler advised Stine that he should look for another job. (Id. ¶¶ 50). Stine's work environment became hostile. (Id. ¶ 52). On or about January 15, 2007, and at other unspecified dates, Stine filed a grievance regarding accommodation-related issues.*fn2 Stine received notice that his employment with the Bureau was terminated on or about April 17, 2007. (Id. ¶ 55). Stine attributes the defendants' conduct-including the denials of his accommodation requests, the hostile work environment, the discipline imposed on him, and his termination-to disability-based discrimination and retaliation for his protected conduct. (Id. ¶ 52, 53, 57, 73). Stine also contends that the defendants-or at least defendant Facciolo-published information about his employment performance that prevented him from obtaining employment elsewhere. (Id. ¶ 71, 87, 92).
Stine filed the instant action on May 19, 2009, and he subsequently filed an amended complaint. (See Docs. 1, 15.) In Count I of the amended complaint, Stine brings a claim against all defendants pursuant to 42 U.S.C. § 1983, and he alleges that defendants infringed his rights under the First Amendment, the Fourteenth Amendment, the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213, and the Pennsylvania Human Relations Act ("PHRA"), 43 PA. CONS. STAT. §§ 951- 963. Count II presents a claim against the Bureau, for regarding Stine as disabled and for discriminating against him in violation of § 504 of the Rehabilitation Act of 1973 ("Rehabilitation Act" or "RA"), 29 U.S.C. §§ 791-794e. Finally, Count III, which consists of an ADA claim, is brought against the Bureau and against defendants Miller and Pawlowski in their official capacities. In Count III, Stine complains that the defendants regarded him as disabled and subjected him to disability-based discrimination.
In three separate motions, (see Docs. 21, 42, 50), all of the defendants have moved to dismiss various portions of Stine's amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The motion to dismiss filed by the Bureau (Doc. 21), and the motion filed by defendants Backus, Asken, Facciolo, Hand, Butler, Coyle, Pawlowski, Brown, and Henry (Doc. 42), also invoke Rule 12(b)(1). The issues have been fully briefed and are now ripe for disposition.
Federal Rule of Civil Procedure 12(b)(1) provides that a court may dismiss a complaint for "lack of subject-matter jurisdiction." FED. R. CIV. P. 12(b)(1). A motion to dismiss under Rule 12(b)(1) therefore challenges the power of a federal court to hear a claim or case. See Petruska v. Gannon Univ., 462 F.3d 294, 302 (3d Cir. 2006). In the face of a 12(b)(1) motion, the plaintiff has the burden to "convince the court it has jurisdiction." Gould Elecs., Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000); see also Kehr Packages v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991) ("When subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff must bear the burden of persuasion.").
Motions under Rule 12(b)(1) may take one of two forms. A "facial" attack "contests the sufficiency of the pleadings." Common Cause of Pa. v. Pennsylvania, --- F.3d ---, 2009 WL 467171, at *4-5 (3d Cir. Feb. 26, 2009) (quoting Taliaferro, 458 F.3d at 188). The court assumes the veracity of the allegations in the complaint but must examine the pleadings to ascertain whether they present an action within the court's jurisdiction. United States ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007). The court should grant such a motion only if it appears with certainty that assertion of jurisdiction would be improper. Empire Kosher Poultry, Inc. v. United Food & Commercial Workers Health & Welfare Fund of Ne. Pa., 285 F. Supp. 2d 573, 577 (M.D. Pa. 2003); see also Kehr Packages, 926 F.2d at 1408-09. If the complaint is merely deficient as pleaded, the court should grant leave to amend before dismissal with prejudice. See Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000).
In contrast, a "factual" attack argues that, although the pleadings facially satisfy jurisdictional prerequisites, one or more of the allegations is untrue, rendering the controversy outside of the court's jurisdiction. Carpet Grp. Int'l v. Oriental Rug Imps. Ass'n, Inc., 227 F.3d 62, 69 (3d Cir. 2000); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). In such circumstances, the court is both authorized and required to evaluate the merits of the disputed allegations because "the trial court's . . . very power to hear the case" is at issue. Mortensen, 549 ...