The opinion of the court was delivered by: (Chief Judge Kane)
Pending before the Court is Defendant PPL Corporation's motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and to strike the complaint pursuant to Federal Rule of Civil Procedure 12(f). The motion is ripe for disposition. For the reasons that follow, the Court will grant Defendant's motion in part.
Plaintiff filed a complaint in this action on July 9, 2010, asserting violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq.; the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.; and the Pennsylvania Human Relations Act ("PHRA"), 42 U.S.C. § 951 et seq. (Doc. No. 1.) Plaintiff is a sixty-two year old male who has been employed by Defendant for over twenty-seven years. (Id. ¶¶ 17, 18.) In 2004, Plaintiff underwent a spinal infusion. (Id. ¶ 20.) Plaintiff suffered a back injury while employed by Defendant on July 13, 2007. (Id. ¶ 21.) In 2007, Plaintiff requested an accommodation for his back injury, which Defendant denied. (Id. ¶ 22.) When Plaintiff returned to work after his July 2007 back injury, Defendant discriminated against him by denying him overtime. (Id. ¶ 23.) On November 21, 2008, Plaintiff underwent further back surgery. (Id. ¶ 26.) Following this surgery, Defendant regarded Plaintiff as disabled and discriminated against him in a number of ways, including denying Plaintiff overtime and failing to reimburse him for mileage to and from the doctor. (Id. ¶¶ 27-36.) In April 2008, Plaintiff requested that he be appointed as a trainer as an accommodation. (Id. ¶¶ 37, 39.) Defendant denied Plaintiff's request and did not appoint him as a trainer. (Id. ¶¶ 40-43.) Plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC") which was date-stamped by the EEOC on March 20, 2010. (Doc. No. 12 ¶ 12.) Plaintiff cross-filed his EEOC charge with the Pennsylvania Human Relations Commission. (Doc. No. 1 ¶ 14.) On or about April 11, 2010, the EEOC issued a right to sue letter to Plaintiff. (Id. ¶ 14c.) On September 2, 2010, Defendant filed the present motion. (Doc. No. 8.) Defendant filed a brief in support on September 16, 2010. (Doc. No. 9.) Plaintiff filed a response to Defendant's motion on October 14, 2010. (Doc. Nos. 12, 13.) Defendant filed a reply brief on October 25, 2010. (Doc. No. 14.)
A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the complaint, Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993), and is properly granted when, taking all factual allegations and inferences as true, the moving party is entitled to judgment as a matter of law. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). The burden is on the moving party to show that no claim has been stated. Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir. 1980). Thus, the moving party must show that Plaintiff has failed to "set forth sufficient information to outline the elements of his claim or to permit inferences to be drawn that those elements exist." Kost, 1 F.3d at 183 (citations omitted). A court, however, "need not credit a complaint's 'bald assertions' or 'legal conclusions' when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906, 908 (3d Cir. 1997). Indeed, the Supreme Court has recently held that while the 12(b)(6) standard does not require "detailed factual allegations," there must be a "'showing,' rather than a blanket assertion of entitlement to relief. . . . '[F]actual allegations must be enough to raise a right to relief above the speculative level.'" Phillips v. County of Allegheny, 515 F.3d 224, 231-32 (3d Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Put otherwise, a civil complaint must "set out 'sufficient factual matter' to show that the claim is facially plausible." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1955 (2009)).
Defendant moves to dismiss Plaintiff's retaliation claim under the ADA, ADEA, and PHRA for failure to exhaust administrative remedies. (Doc. No. 8 ¶¶ 13-17.) Defendant also moves to dismiss Plaintiff's claims under the ADA and the ADEA to the extent that those claims are based on alleged discriminatory conductthat occurred before May 24, 2008, as the 300-day statute of limitations bars the Court from considering such conduct. (Id. ¶ 13.) Finally, Defendant moves to dismiss Plaintiff's claims under the PHRA to the extent that those claims are based on alleged discriminatory conductthat occurred before September 21, 2008, as the 180-day statute of limitations bars the Court from considering such conduct. (Id. ¶ 14.)
1. Exhaustion of Remedies
Paragraph 1 of Plaintiff's complaint states that he is seeking redress against Defendant for, inter alia, retaliation in violation of the ADEA. (Doc. No. 1 ¶ 1.) Further, in Count I of Plaintiff's complaint, he pleads that Defendant's conduct constituted unlawful retaliation in violation of the ADA. (Id. ¶ 51.) Defendant seeks to dismiss these retaliation claims for failure to exhaust administrative remedies. (Doc. No. 8 ¶¶ 13-17.) Plaintiff does not oppose Defendant's motion to dismiss any retaliation claims raised pursuant to the ADEA, ADA, and PHRA. (Doc. No. 12 ¶¶ 15-19.) Accordingly, Defendant's motion to dismiss any retaliation claims will be granted.
2. Statute of Limitations
Defendant next argues that Plaintiff's ADEA and ADA claims should be dismissed to the extent that they arise out of alleged discriminatory conduct that occurred before May 24, 2008. (Doc. No. 8 ¶ 13.) Similarly, Defendant argues that Plaintiff's PHRA claims should be dismissed to the extent that they rely on alleged discriminatory conduct that occurred before September 21, 2008. Specifically, Defendant argues that its alleged failure to accommodate Plaintiff in 2007, its alleged denial of overtime after Plaintiff returned to work after his July 2007 back injury, and its alleged refusal to appoint Plaintiff as a trainer in 2008 are time barred by the ADA and ADEA's 300-day statute of limitations and the PHRA's 180-day statute of limitations.*fn1 (Doc. No. 9 at 7.) Rule 12(b) does not explicitly permit the assertion of a statute of limitations defense by a motion to dismiss. However, the so-called "Third Circuit Rule" "permits a limitations defense to be raised by a motion under Rule 12(b)(6), but only if 'the time alleged in the statement of a claim shows that the cause of action has not been brought within the statute of limitations.'" Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002) (quoting Hanna v. U.S. Veterans' Admin. Hosp., 514 F.2d 1092, 1094 (3d Cir. 1974)).
Plaintiff argues that any alleged violations that occurred prior to May 24, 2008, and September 21, 2008, can be pursued according to the continuing violations theory. (Doc. No. 13 at 7.) The continuing violations theory allows a plaintiff to recover for discriminatory actions occurring outside the limitations period when the actions are part of a pattern or practice of ongoing discriminatory conduct that, collectively, constitutes one act of discrimination. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002) ("A hostile work environment claim is composed of a series of separate acts that collectively constitute one 'unlawful employment practice' . . . . It does not matter, for purposes of the statute, that some of the component acts of the hostile work environment fall outside the statutory time period."). The continuing violations theory does not apply, however, to discrete discriminatory acts that are individually actionable. Id. at 113 ("[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discriminatory act starts a new clock for filing charges alleging that act."). The Third Circuit Court of Appeals has explained that "Morgan established a bright-line distinction between ...