The opinion of the court was delivered by: Tucker, J.
Presently before this Court is Defendant Lehigh University's Motion to Dismiss Count II of Plaintiff's Complaint (Doc. 6); Plaintiff Drew Francis's Response in Opposition thereto (Doc. 8) and Defendant's Motion For Leave to Reply (Doc. 9). Upon review of the parties submissions and for the reasons set forth below this Court grants Defendant's Motion to Dismiss Count II of Plaintiff's Complaint. In addition, this Court grants Defendant's Motion For Leave to Reply.
Facts as Alleged in the Complaint
The instant action stems from circumstances surrounding Plaintiff Drew Francis's ("Francis") termination from Lehigh University. Defendant, Lehigh University is a non-profit corporation created and existing pursuant to the laws of the Commonwealth of Pennsylvania. (Compl. ¶ 3.) Plaintiff brings this suit against Defendant asserting violations of the Americans with Disabilities Act of 1990 and violations of his civil rights pursuant to 42 U.S.C. § 1983 and the Fourteenth Amendment of the United States Constitution.
Plaintiff was employed by Defendant as a Professor for approximately fourteen years.
Plaintiff's tenure at Lehigh University began in 1995 and ended on or around February 2010, after he was accused of violating Defendant's sexual harassment policies. (Compl. ¶¶17-21.) On or around June 10, 2009, Plaintiff was informed that termination proceedings would be initiated against him and that he was banned from Lehigh University's campus. (Compl. ¶17.) Shortly thereafter, Plaintiff was further informed that as of September 1, 2009 his salary and benefits would be terminated. (Compl. ¶ 19.) Plaintiff was also advised that should he so desire he should remove any personal property from Defendant's grounds immediately. (Compl. ¶ 19.)
Plaintiff avers that prior to his termination he advised Professor Pam Pepper, his department chair, that he might require surgery on his hand, and consequently would require further accommodation with respect to drawing. (Compl. ¶ 22.) The Complaint alleges that Defendant had previously granted Plaintiff an accommodation because of an ankle injury which prevents Plaintiff from climbing ladders and performing other important job-related activities. (Compl. ¶ 24.) According to Plaintiff, two weeks after his discussion with Pepper regarding his impending surgery she filed the instant charges of sexual harassment against him. (Compl. ¶ 23.)
Plaintiff avers that other similarly situated professors and lecturers who have been charges with violating Defendant's sexual harassment policies, and who have not engaged in a protected activity have not been subject to dismissal for cause. (Compl. ¶ 25.) In fact, Plaintiff alleges that said professors and lecturers have been permitted to sign strict confidentiality letters indicating that they would not violate the policy again. (Compl. ¶ 25.) Accordingly, Plaintiff argues that Lehigh University has treated him in a manner that differs from that in which other similarly situated professors who have violated the sexual harassment policy have been treated. (Compl. ¶ 26.)
With regards to Count II of Plaintiff's Complaint, Francis alleges that Defendant's use of constitutionally infirm termination hearing procedures denied him his right to due process under the Fifth and Fourteenth Amendments of the United States Constitution, in violation of 42 U.S.C. § 1983. (Compl. ¶ 28, 37.) Specifically, Plaintiff avers that Defendant permitted the introduction of hearsay evidence, denied Plaintiff the right to confront and cross-examine witnesses, denied Plaintiff notice of the charges levied against him and otherwise denied Plaintiff rights secured by the United States Constitution. (Compl. ¶ 28.) Plaintiff alleges that Defendant deprived him of said rights while acting under color of state law. And as a result, Plaintiff sustained loss of his employment and livelihood. (Compl. ¶ 36.) Further Plaintiff avers that his reputation was adversely affected and he has endured great pain and mental suffering. (Compl. ¶ 36.)
Motion to Dismiss Pursuant to Federal Rule 12(b)(6)
On a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6), the court is required to accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and to view them in the light most favorable to the non-moving party. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 (3d Cir. 1994). A complaint should be dismissed only if the alleged facts, taken as true, fail to state a claim. See In re Warfarin Sodium Antitrust Litig., 214 F.3d 395, 397-98 (3d Cir. 2000). The question is whether the claimant can prove any set of facts consistent with his or her allegations that will entitle him ...