The opinion of the court was delivered by: Yohn, J.
In her first amended complaint, plaintiff claims that defendant's failure to rehire her after she provided an affidavit in support of a co-worker's sexual harassment suit against defendant constitutes retaliation under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000 et seq.) and the Pennsylvania Human Relations Act ("PHRA") (43 Pa. Stat. Ann. § 951 et seq.). Currently before the court is defendant's motion to dismiss plaintiff's complaint for failure to state a claim, or in the alternative a motion for summary judgment. For the reasons set forth below, I deny defendant's motion to dismiss in part, and grant in part.*fn1
I. Factual and Procedural History*fn2
Plaintiff worked for defendant as a "laborer" from 1996 to 2006 in both a full-time and part-time capacity. Plaintiff was customarily laid off at the end of each year when business at the facility was slow, and then brought back at the beginning of the new year. From 2001 to 2006, plaintiff worked with Richard Gilbert, who allegedly sexually harassed female co-workers, including plaintiff. Plaintiff claims that in 2005 Gilbert took a screwdriver and put it to her breasts "in a threatening manner" while supervisors were present. In late 2006, plaintiff cooperated in an investigation against Gilbert after a female co-worker accused him of putting a box cutter against her breast. On December 29, 2006, while the investigation was pending before the Equal Employment Opportunity Commission ("EEOC"), plaintiff signed an affidavit detailing her experiences with Gilbert.*fn3
I also decline to address defendant's arguments that plaintiff will not be able to prove the various factual allegations in the complaint, because that is not the proper standard when deciding a Rule 12(b)(6) motion to dismiss.
At the end of 2006, plaintiff was laid off and was told that "she would be brought back in January 2007 when the work picked up," as was consistent with past practice.*fn4 Plaintiff was never called to work in January. Plaintiff alleges that other laborers were hired at that time.*fn5 Plaintiff contacted supervisors in the first quarter of 2007 to inquire about returning to work but was told that work was slow and that she would be called back once it picked up. Defendant placed an advertisement for workers in May 2007. Plaintiff applied but was rejected.*fn6
Plaintiff filed a charge of discrimination with the EEOC on October 12, 2007, and requested that it be cross-filedwith the Pennsylvania Human Rights Commission ("PHRC"). She received a right-to-sue letter on September 1, 2009. Plaintiff then filed this civil action on November 30, 2009. It was not served upon the defendant until March 26, 2010. After defendant moved to dismiss on May 10, 2010, plaintiff filed an amended complaint on June 10, 2010. I issued an order on June 14, 2010, dismissing defendant's first motion as moot. Defendant filed the instant motion on July 26, 2010.*fn7
"To survive a motion to dismiss [under 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.'" 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." Iqbal, 129 S. Ct. at 1949 (2009).
In evaluating a motion to dismiss, "the factual and legal elements of a claim should be separated." 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 assumption of truth does not apply to legal conclusions couched as factual allegations or to "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Iqbal, 129 S. Ct. at 1949. Rather, the complaint must contain "'enough factual matter (taken as true) to suggest' the required element. This 'does not impose a probability requirement at the pleading stage,' but instead 'simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element." Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Bell Atl. Corp., 550 U.S. at 556) (internal citations omitted).
In plaintiff's brief she claims that defendant's failure to rehire her from January to May 2007 after her participation in a sexual-harassment investigation constitutes retaliation under Title VII*fn8 and the PHRA.*fn9 Defendant argues that failure-to-hire is a discrete act that cannot be part of a continuing act of discrimination stretching from January to May. I agree. Plaintiff's complaint therefore alleges two separate acts of retaliation: defendant's refusal to rehire her in January 2007 and its refusal to hire her in May 2007. Defendant argues that plaintiff's claim arising from defendant's failure to rehire her in January 2007 is time-barred under the PHRA. Defendant then argues that plaintiff's remaining claims fail because she did not plead sufficient facts to establish a plausible case of retaliation. I conclude that plaintiff's claim of ...