The opinion of the court was delivered by: Joyner, J.
Before this Court is Defendant's Motion to Dismiss Plaintiff's Amended Complaint (Doc. No. 18) and Plaintiff's response thereto (Doc. No. 19). For the reasons set forth in this Memorandum, the Court denies Defendants' Motion.
Plaintiff is the alleged victim of discrimination by her former employer on the basis of sex, pregnancy, and national origin, as well as retaliation. Plaintiff filed a complaint with the Pennsylvania Human Relations Commission (PHRC) on April 10, 2008. (Am. Compl. ¶ 37.) This complaint was dual filed with the Equal Employment Opportunity Commission (EEOC). (Id.) On June 4, 2009, the PHRC notified Plaintiff that, one year having passed since the filing of the complaint, she could now bring suit in the Court of Common Pleas for the alleged violations of the Pennsylvania Human Relations Act (PHRA). (Pl.'s Resp. 5.) *fn1
Plaintiff chose not to file suit at this time, and the PHRC continued to handle the complaint, with an eye toward a hearing to adjudicate the merits. (Am. Compl. ¶¶ 39-42.) Before the hearing date, however, Plaintiff notified the PHRC that she had filed suit in federal court. (Pl.'s Resp. 6.) The PHRC dismissed the complaint without a final adjudication. (Am. Compl. ¶ 43.)
Plaintiff's federal suit was filed on June 17, 2010 (Doc. No. 1), with an amended complaint on August 30, 2010 (Doc. No. 17). The case is before this Court on federal-question jurisdiction, for claims arising under Title VII and the Family and Medical Leave Act (FMLA), and supplemental jurisdiction, for claims arising under the PHRA. Defendants have moved to dismiss the amended complaint under Federal Rule of Civil Procedure 12(b)(6), on the grounds that (1) counts I-VI are precluded by the "election of remedies" doctrine, in that Plaintiff previously chose to utilize the PHRC to resolve her discrimination claims; and (2) count VII fails to plead a willful violation of FMLA such that the claim is time-barred.
Federal Rule of Civil Procedure 12(b)(6) authorizes a court to dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. at 1950. The court must take all such factual allegations in the complaint as true; it does not take as true "a legal conclusion couched as a factual allegation." Id. (citation omitted). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 1949. Thus, the plaintiff need not satisfy any "probability" requirement but must set forth "more than a sheer possibility that a defendant has acted unlawfully." Id.
Resolving a PHRA claim "involves an issue of state law, requiring us . . . to apply state substantive law, statutory and decisional as interpreted by the highest court of the state."
Burgh v. Borough Council, 251 F.3d 465, 474 (3d Cir. 2001). "In the absence of a reported decision on point by the Pennsylvania Supreme Court, we must look to the decisions of the intermediate appellate courts for guidance." Id.; see also Bouker v. Cigna Corp., 847 F. Supp. 337, 338 (E.D. Pa. 1994) ("With respect to a supplemental state law claim, federal courts must apply state substantive law." (citing United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966)).
A. The election of remedies doctrine does not bar counts I-VI. Defendants argue that because Plaintiff previously filed an administrative complaint with the PHRC, pursuant to the PHRA, the "election of remedies" doctrine should preclude this federal suit premised on the same allegedly discriminatory conduct.
In Pennsylvania, an election of remedies includes the deliberate and knowing resort to one of two inconsistent paths to relief. The adoption, by an unequivocal act, of one of two or more inconsistent remedial rights has the effect of precluding a resort to others. To be inconsistent the remedies in question must be different means of adjudicating the same issues. A party makes a conclusive election [of] remedies which will bar later resort to an inconsistent remedy when: (1) the party knows his rights, (2) has carried his case to a conclusion, and (3) has obtained a decision on the issues involved.
Devore v. City of Phila., No. 04-3030, 2005 U.S. Dist. LEXIS 3438, at *7-9 (E.D. Pa. Feb. 11, 2005) (internal quotation marks omitted) (citations omitted); see also Wedgewood Diner, Inc. v. Good, 534 A.2d 537, 439 (Pa. Super. Ct. 1987) ("[T]he majority and preferable view is that 'where there is nothing more than the mere institution of a suit or proceeding, which is abandoned or dismissed before judgment, there is nothing on ...