The opinion of the court was delivered by: O'neill, J.
Now before me is the motion of defendant Atkinson Freight Lines Corp. of Pennsylvania, t/d/b/a Atkinson Freight Lines, to dismiss counts II and III of the amended complaint of plaintiff John A. Mellor for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons that follow, I will grant AFL's motion.
From June 2006 until August 3, 2009, Mellor was a full time Janitor/Maintenance Person for AFL, earning $13.00 per hour. Am. Compl. ¶¶ 16, 17. Mellor has a hearing impairment that significantly impairs his ability to hear. Id. ¶ 18. AFL was aware of plaintiff's hearing impairment. Id. ¶ 19. Mellor contends that AFL "deliberately ensured that Plaintiff was unable to successfully perform his job because the verbal instructions given to him were not properly heard" and that his employer refused to speak clearly to him and to ensure that he understood verbal instructions. Id. at ¶ 23. Mellor also alleges that as a result of his hearing impairment, he was mocked and humiliated by Sam Nucifore, his immediate supervisor, who "constantly stated that Plaintiff's hearing disability was a significant problem." Id. ¶¶ 20, 21. Mellor contends that Nucifore referred to Mellor's hearing as "a pain in the ass" and that he "asked whether Plaintiff had ever considered getting a hearing aid." Id. ¶ 21-22. Mellor alleges that he complained to AFL that his hearing impairment was not being accommodated. Id. ¶ 24. Mellor's amended complaint does not identify how he made his complaint to AFL or the nature of the accommodation he sought. Mellor contends that he was retaliated against as a "[a]s a direct consequence of [his]complaints regarding his inability to properly hear instructions." Id. ¶¶ 24, 25. He asserts that he "was given extra work to do and a limited time within which to complete his tasks" and that he "was then criticized for not completing his work on time." Id. ¶ 26.
Plaintiff also alleges that he was retaliated against and harassed on a daily basis "by Scott Keck, the Manager of Bensalem Travel Plaza, who consistently referred to Plaintiff as a 'midget' and made sexual comments regarding his height." Id. ¶¶ 27, 28. In particular, Mellor's amended complaint identifies two incidents of alleged sexual harassment. First, around March 2009, "while Plaintiff was working in the men's restroom, Keck walked in and told Plaintiff to 'stand over here so I can rest my balls on your head and you can hold it (referring to his penis) until it needs me to shake it.'" Id. ¶ 31. Then, around May 2009, Keck told a truck driver, who wanted to pay for a shower, that "if you ask nicely, we will send in the midget [i.e., Plaintiff] to wash your back, too." Id. ¶ 32, 33. Mellor contends that Nucifore heard Keck's comments, laughed at them, and did nothing to prevent them. Id. ¶ 29, 30.
Mellor alleges that he "reported the harassing and discriminating comments to which he was being subjected to Rick Pulons, Operations Manager," but that "Pulons did not want to hear it." Id. ¶¶ 34, 35. Pulons allegedly "stated that Plaintiff was not completing his work to satisfaction" and "discrimiated and retaliated against" Mellor. Id. ¶ 38. Plaintiff contends that an AFL vice president named Marsha "was present on at least three of the occasions Plaintiff made complaints to Pulons and thus [was] aware of the harassment and discrimination Plaintiff experienced." Id. ¶ 36. Marsha took no remedial action. Id. ¶ 37.
Mellor was ultimately terminated by AFL. Id. ¶ 39. Mellor asserts that he was terminated "for allegedly not doing enough work when the amount of work he had to do was deliberately overwhelming" and that his termination was "in retaliation for complaints made about the discrimination and harassment he experienced by Keck and Nucifore." Id. ¶¶ 39, 40.
Rule 12(b)(6) of the Federal Rules of Civil Procedure permits a Court to dismiss all or part of an action for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Typically, "a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations," though plaintiff's obligation to state the grounds of entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the allegations in the complaint are true (even if doubtful in fact)." Id. (citations omitted). The complaint must state "'enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element." Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 321 (3d Cir. 2008), quoting Twombly, 550 U.S. at 556. The Court of Appeals has made clear that after Ashcroft v. Iqbal, 129 S. Ct. 1937, 1955 (2009), "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.' To prevent dismissal, all civil complaints must now set out 'sufficient factual matter' to show that the claim is facially plausible." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009), quoting Iqbal, 129 S. Ct. at 1949. When reviewing motions to dismiss in light of Twombly and Iqbal, "[f]irst, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.'" Id. at 210-11, quoting Iqbal, 129 S. Ct. at 1950. "[A] complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to 'show' such an entitlement with its facts."
Id., citing Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008). "Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged--but it has not 'show[n]'--'that the pleader is entitled to relief.'" Iqbal, 129 S. Ct. at 1949.
I. Count Two: Sexual Harassment
Count Two of Mellor's amended complaint asserts a claim for sexual harassment under Title VII. In order to establish his claim, Mellor must show that (1) he suffered intentional discrimination because of his gender; (2) the discrimination was severe or pervasive; (3) it detrimentally affected him; (4) it would have detrimentally affected a reasonable person in like circumstances; and (5) there is a basis for employer liability.*fn1 See Weston v. Pennsylvania, 251 F.3d 420, 426 (3d Cir.2001), citing Andrews v. City of Phila., 895 F.2d 1469, 1482 (3d Cir. 1990).*fn2 "Hostile work environment harassment occurs when unwelcome sexual conduct unreasonably interferes with a person's performance or creates an intimidating, hostile, or offensive working environment." Weston, 251 F.3d at 425-26, citing Meritor Savs. Bank FSB v. Vinson, 477 U.S. 57, 65 (1986). The target of the alleged harassment must "prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted discriminat[ion] . . . because of . . . sex." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998) (emphasis and alterations in orignal).
A plaintiff can establish a same-sex sexual harassment claim "where there is evidence that the harasser sexually desires the victim," "where there is no sexual attraction but where the harasser displays hostility to the presence of a particular sex in the workplace," or where there is "evidence that the harasser's conduct was motivated by a belief that the victim did not conform to the stereotypes of his or her gender." Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 262 (3d Cir. 2001). "Based on the facts of a particular case and the creativity of the parties, other ways . . . may be available." Id. at 264. The conduct alleged in Mellor's amended complaint, while vulgar, is not sufficient to set forth a ...