The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
MEMORANDUM OPINION AND ORDER OF COURT
Presently before the Court for disposition is the CONSOLIDATED PARTIAL MOTION TO DISMISS AND MOTION TO STRIKE, with brief in support, filed by Defendant, Giant Eagle, Inc. (Document Nos. 5-1, 5-2, and 9), the RESPONSE and BRIEF IN OPPOSITION filed by Plaintiff, Robert P. Smith (Document Nos. 14 and 16, respectively), and the REPLY BRIEF filed by Defendant, Giant Eagle, Inc. (Document No. 18). For the reasons that follow, the Partial Motion to Dismiss will be granted in part and denied in part and the Motion to Strike will be granted.
Because this matter comes before the Court on a Rule 12(b)(6) Motion to Dismiss, the factual allegations set forth in Plaintiff‟s Complaint are accepted as true. Hemi Group, LLC v. City of N.Y., -- U.S. ---, 130 S.Ct. 983, 986-87 (2010). The pertinent facts are as follows:
Giant Eagle hired Plaintiff, a white male, as a "floating" pharmacist in April 2007. At the time of his hire, Plaintiff was 54 years of age. Smith openly used smokeless tobacco while performing his duties as a pharmacist. On July 30, 2009, Giant Eagle informed Plaintiff that his employment was terminated due to his open use of chewing tobacco while performing services as a licensed pharmacist for Giant Eagle.
On December 9, 2010, Plaintiff filed the instant three-count Complaint against Giant Eagle in which he alleges that his employment was unlawfully terminated in violation of the Age Discrimination in Employment Act ("ADEA"), Title VII of the Civil Rights Act of 1964 ("Title VII"), and the Pennsylvania Human Relations Act ("PHRA"). Specifically, Plaintiff alleges that his termination "for the use of smokeless tobacco was merely a pretext for terminating Mr. Smith based on his age, 56 years, and his gender, male, so that newly hired young female pharmacists could fill his position." Complaint, at ¶ 15(E).
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, --- U.S. ---, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); see also Fowler v. UPMC Shadyside, 578 F.2d 203, 210 (3d Cir. 2009) and Fed. R. Civ. P. 8(a)(2) (providing that a valid complaint requires only "a short and plain statement of the claim" showing entitlement to relief.) In Iqbal, the United States Supreme Court clarified that the decision in Twombly "expounded the pleading standard for "all civil actions.‟ " Iqbal, 129 S. Ct. at 1953; Fowler, 578 F.3d at 210-11. The Supreme Court further explained that although a court must accept as true all of the factual allegations contained in a complaint, that requirement does not apply to legal conclusions; therefore, the pleadings must include factual allegations to support the legal claims asserted. Iqbal, 129 S. Ct. at 1949, 1953. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 1949 (citing Twombly, 550 U.S. at 555). The United States Court of Appeals for the Third Circuit expounded on this standard as follows:
After Iqbal, it is clear that conclusory or "bare-bones" allegations will no longer survive a motion to dismiss: "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Iqbal, 129 S. Ct. at 1949. To prevent dismissal, all civil complaints must now set out "sufficient factual matter" to show that the claim is facially plausible. This then "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1948. The Supreme Court‟s ruling in Iqbal emphasizes that a plaintiff must show that the allegations of his or her complaints are plausible. See Id. at 1949-50; see also Twombly, 505 U.S. at 555, & n.3.
Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). In light of Iqbal, the Fowler court then set forth a two-prong test to be applied by the district courts in deciding motions to dismiss for failure to state a claim. First, the district court must accept all well-pleaded facts as true and discard any legal conclusions contained in the complaint. Fowler, 578 F.3d at 210-11. Next, the court must consider whether the facts alleged in the Complaint sufficiently demonstrate that the plaintiff has a "plausible claim for relief." Id. at 211. To survive a motion to dismiss, a complaint must show an entitlement to relief through its facts. Id. (citing Phillips v. County of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008).
The determination of whether a complainant has sufficiently pled a claim "is a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 129 S. Ct. at 1950 (citing Twombly, 550 U.S. at 556). Ultimately, to survive a motion to dismiss, a plaintiff must plead "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.
A. Age Discrimination Claims under the ADEA*fn1
Defendant argues that Plaintiff‟s age discrimination claims are barred by the United States Supreme Court‟s recent decision in Gross v. FBL Financial Servs., --- U.S. ---, 129 S. Ct. 2343 (2009) and, therefore, should be dismissed for failure to state a claim upon which relief can be granted. According to Defendant, the Supreme Court decision in Gross bars Plaintiff from asserting discrimination based on both age and gender in the same action. In Gross, the Supreme Court interpreted ADEA language requiring that adverse employment decisions be "because of [an] individual‟s age." Gross, 129 S.Ct. at 2350 (citing 20 U.S.c. 623(a)(1)). A plaintiff can no longer establish discrimination under the ADEA by "showing that age was simply a motivating factor," but rather must show that "age was the "but-for‟ cause of the employer‟s adverse action." Id. at ...