The opinion of the court was delivered by: Surrick, J.
Presently before the Court is Defendant Brooks Range Contract Services, Inc.'s Motion to Dismiss the Complaint. (ECF No. 7.) For the following reasons, Defendant's Motion will be granted in part and denied in part.
Defendant Brooks Range Contract Services, Inc. is a federal government contractor engaged exclusively in the business of providing services to federal government agencies. (Compl. ¶ 3, ECF No. 1.) Plaintiff Antonio Santiago is a Hispanic male. (Id. at ¶ 16.) For twenty-three years, Plaintiff worked as a building engineer for U.S. Facilities, Inc. ("U.S. Facilities"). (Id. at ¶ 18.) On February 1, 2010, Defendant took over the U.S. Facilities contract. (Id. at ¶ 19.)
On January 22, 2010, Plaintiff was informed by his supervisor, Brian Gougler, that he, as well as other employees, had to put their identification badges in an envelope and turn them in to security. (Id. at ¶ 20.) Plaintiff was advised that he and the other employees would be notified whether they would be permitted to work for Defendant. (Id. at ¶ 21.) Plaintiff later learned that he would not be hired by Defendant. (Id. at ¶ 22.) While he had a "stellar record," Plaintiff was told that he would not be rehired because of "performance problems." (Id. at ¶ 23.) Plaintiff was seventy-three years old when he was told that he would not be hired by Defendant. (Id. at ¶ 17.)
On March 25, 2010, Plaintiff filed a written charge of discrimination (No. 530-2010-01652) against Defendant with the Philadelphia office of the Equal Employment Opportunity Commission ("EEOC"), alleging age and race discrimination. (Id. at ¶ 13a.) On August 22, 2011, the EEOC issued a Notice of Right to Sue. (Id. at ¶ 13b.) On August 24, 2011, Plaintiff received this Notice. (Id. at ¶ 13c.) On November 21, 2011, Plaintiff filed a Complaint, in which he alleges age discrimination in violation of the Age Discrimination in Employment Act of 1967 ("ADEA") (Count One), race discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") (Count Two), and age and race discrimination in violation of the Pennsylvania Human Relations Act ("PHRA") (Count Three). (Compl.) On January 18, 2012, Defendant filed the instant Motion to Dismiss the Complaint. (Def.'s Mot., ECF No. 7.) On February 9, 2012, Plaintiff filed an unopposed motion for an extension of time to respond to Defendant's Motion. (ECF No. 10.) On February 10, 2012, the Court granted the motion. (ECF No. 11.) On February 24, 2012, Plaintiff filed a Response opposing Defendant's Motion. (Pl.'s Resp., ECF No. 12.)
Under Federal Rule of Civil Procedure 8, a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Federal Rule of Civil Procedure 12(b)(6) provides that a complaint may be dismissed for "failure to state a claim upon which relief can be granted." "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.'" Iqbal, 129 S. Ct. at 1949 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
A complaint that merely alleges entitlement to relief, without alleging facts that show entitlement, must be dismissed. Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).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 elements." Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at 556). Nevertheless, over the past several years, "pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss." Fowler, 578 F.3d at 210. After the Supreme Court's opinion in Ashcroft v. 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.'" Fowler, 578 F.3d at 210 (quoting Iqbal, 129 S. Ct. at 1949).
Defendant asserts that Plaintiff "has not pled any facts, let alone sufficient facts, to support any of his claims," and therefore, all three Counts should be dismissed. (Def.'s Mem. 1, ECF No. 7-2.) In addition, Defendant argues that Plaintiff should not be granted leave to amend the Complaint because any amendment would be futile. (Id. at 8-9.) Plaintiff, on the other hand, contends that he is not required to plead all facts that may support his claims, that he has sufficiently pleaded all three Counts, and that in the event the Court grants Defendant's Motion to Dismiss, he should be permitted to amend the Complaint. (Pl.'s Resp. 4, 6-9.)
A. Age Discrimination Under the ADEA and the PHRA*fn2 Under the ADEA, 29 U.S.C. §§ 621 et seq., it is unlawful for an employer to "discriminate against any individual . . . because of such individual's age." 29 U.S.C. § 623(a)(1).*fn3 In the Third Circuit, to sufficiently allege disparate treatment on the basis of age, a plaintiff must allege that (1) his age played a role in the employer's decision, and (2) his age had a "determinative influence" on the result of that decision. Monaco v. Am. Gen. Assurance Co., 359 F.3d 296, 300 (3d Cir. 2004). In addition, the plaintiff must show that "ultimately [he was] replaced by a person sufficiently younger to permit an inference of age discrimination." Id.; see also Garcia v. Newtown Twp., No. 09-3809, 2010 WL 785808, at *9 (E.D. Pa. Mar. 5, 2010)
(stating same standard on motion to dismiss).*fn4
In the Complaint, there is no allegation or set of facts that might show that Plaintiff's age played a role in Defendant's decision not to hire Plaintiff, or that Plaintiff was replaced by someone younger than him. Plaintiff alleges that Defendant's conduct, "in refusing to hire Plaintiff because of his age and otherwise subjecting him to adverse employment actions because of his age, constitutes unlawful age discrimination against Plaintiff." (Compl. ¶ 26.) This allegation, however, is a mere legal conclusion, and there are no facts in the Complaint to support it. See Pierce v. Lowe's Home Ctrs., Inc., No. 10-507, 2010 WL 3122838, at *2 (W.D. Pa. Aug. 9, 2010) (dismissing ADEA claim where "factual allegations provided are virtually non-existent and are completely insufficient to raise a right to relief above the speculative level for any cause of action"); Pezzoli v. Allegheny Ludlum Corp., No. 10-0427, 2010 WL 2852988, at *2 (W.D. Pa. July 20, 2010) (dismissing ADEA claim because "[n]ot only does [plaintiff] fail to allege any non-speculative, non-conclusory facts that might support an inference of age discrimination as a 'but-for' cause, he also fails to assert that [his employer] ultimately filled the position with someone sufficiently younger than him [to] permit an inference of age discrimination."); cf. Garcia, 2010 WL 785808, at *9 (finding that complaint could survive motion to dismiss because of allegations that plaintiff was replaced by someone she believed to be more than ten years her junior and that defendant's employees discriminated against her because of her age); Adams v. Perloff Bros., Inc., 784 F. Supp. 1195, 1197-98 (E.D. Pa. 1992) (finding that plaintiff sufficiently alleged age discrimination where the complaint alleged that plaintiff was laid off then told that he could not work as a full-time employee because he was too old and had too much seniority, and where other individuals who were younger and had less seniority were subsequently hired). Indeed, Plaintiff, in his Response, attempts to fill in the holes in the allegations of his Complaint by asserting that "upon information and belief, individuals selected by Defendant for continued employment were younger than Plaintiff, who was seventy-three years of age at the time his employment was adversely impacted." (Pl.'s Resp. 8.) However, no such allegation, or set of facts supporting such allegation, appears in the Complaint. Merely pleading that Plaintiff was seventy-three years old when not hired cannot survive a motion to dismiss. See Sangi v. Warren Hosp., No. 10-4571, 2011 WL 4857933, at *2 (D.N.J. Oct. 11, 2011) ("Plaintiff appears to believe that pleading [that 'she was subject to certain adverse employment actions including, ultimately, termination'] along with an allegation that Plaintiff is in a protected class is sufficient to state her claim. It is not."). While ...