The opinion of the court was delivered by: DuBOIS, J.
This is an employment discrimination case in which the plaintiff, Anthony Prisco, alleges that his former employer discriminated against him based on age and disability. The Complaint alleges claims under the Americans with Disabilities Act ("ADA"), the Age Discrimination in Employment Act ("ADEA"), the Family and Medical Leave Act ("FMLA"), and the Pennsylvania Human Relations Act ("PHRA"). Plaintiff filed an Amended Complaint on October 1, 2010, adding a claim that he had exhausted his administrative remedies under the PHRA and facts related to his ADEA claim. (First Am. Compl. ¶¶ 14, 45-47.)
Defendants, Methodist Hospital and Thomas Jefferson University Hospitals, Inc., have moved to dismiss Counts IV and V of the Amended Complaint, which allege violations under the ADEA and the PHRA, pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, the Court denies defendants' motion to dismiss as to Count V, and grants defendants' motion to dismiss as to Count IV without prejudice to plaintiff's right to file a second amended complaint within twenty days if warranted by the facts.
Prisco, who is 62, began working as a member of the cleaning staff for defendant Methodist Hospital in October 2006. (First Am. Compl. ¶¶ 16-18.) Due to chronic back problems, Prisco took periodic time off from work during his employment. (Id. ¶¶ 19-22.) Defendants disciplined Prisco for missing work on at least two occasions, in May and August 2009, and Prisco contends he was subjected to significant animosity due to his absences. (Id. ¶¶ 23-25, 27.) In mid-August 2009, Methodist Hospital terminated Prisco, allegedly because he had to miss additional time from work. (Id. ¶ 26.)
On September 16, 2009, Prisco filed a Notice of Discrimination with the Equal Employment Opportunity Commission ("EEOC"), requesting that EEOC file the complaint concurrently with the Pennsylvania Human Relations Commission ("PHRC"). (Defs.' Mot. to Dismiss in Part the First Am. Compl. Ex. A at 2.) PHRC entered Prisco's complaint administratively on September 21, 2009. (Id. Ex. A at 3.) On March 17, 2010, Prisco asked the EEOC for a Right to Sue letter, which the EEOC issued on April 1, 2010. (Id. Ex. A at 4-5.) Prisco initiated this suit in federal court on June 29, 2010.
On July 8, 2010, the PHRC contacted Prisco to determine if he had filed suit, and requested that he contact them within 30 days to establish whether his case was ongoing or if the state should close it. (Id. Ex. B at 2.) It appears Prisco never responded to the PHRC's request. (Id. at 5.) On August 20, 2010, the PHRC notified Prisco that his case had been "closed administratively." (Id. Ex. B at 3.)
Prisco filed an Amended Complaint on October 1, 2010. Defendants filed the pending motion to dismiss plaintiff's Amended Complaint, in part, on October 15, 2010.
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that, in response to a pleading, a defense of "failure to state a claim upon which relief can be granted" may be raised by motion. In analyzing a motion to dismiss pursuant to Rule 12(b)(6), the Court "accept[s] all factual allegations as true, [and] construe[s] the complaint in the light most favorable to the plaintiff . . . ." Phillips v. County of Allegheny, 515 F.3d 224, 231, 233 (3d Cir. 2008) (internal quotations omitted).
"To survive a motion to dismiss, a civil plaintiff must allege facts that 'raise a right to relief above the speculative level . . . .'" Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 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, 556 U.S. __, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). To satisfy the plausibility standard, a plaintiff's allegations must show that defendant's liability is more than "a sheer possibility." Id. "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557).
In Twombly, the Supreme Court utilized a "two-pronged approach," which it later formalized in Iqbal. Iqbal, 129 S. Ct. at 1950; Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). Under this approach, a district court first identifies those factual allegations that constitute nothing more than "legal conclusions" or "naked assertions." Twombly, 550 U.S. at 555, 557. Such allegations are "not entitled to the assumption of truth" and must be disregarded. Iqbal, 129 S. Ct. at 1950. The court then assesses "the 'nub' of the ...