JOEL H. SLOMSKY, J.
Before the Court are two Motions to Dismiss for Failure to State a Claim (Doc. Nos. 19 and 21) filed by Defendant Delaware County Community College (“DCCC”) and Defendant John Preston (“Preston”), respectively.
Plaintiff Kseniya Gjeka (“Plaintiff”) originally filed suit against Preston and DCCC in the Court of Common Pleas of Delaware County on July 10, 2012 (Doc. No. 3 at 3). In her Second Amended Complaint, she alleges that Preston, her professor at DCCC, sexually harassed her over a three year period and that DCCC knew or should have known about the harassment. The date Plaintiff filed her initial Complaint in state court is critical because the Court must determine the viability of her claims under the applicable Pennsylvania statute of limitations.
The Motions to Dismiss are now ripe for adjudication. For reasons that follow, the Court will grant Preston’s Motion in its entirety, and will grant DCCC’s Motion in part and deny it in part. In considering the Motions to Dismiss, the Court has concluded that more than one reason warrants dismissal of certain claims.
II. FACTUAL BACKGROUND
Plaintiff, a Ukrainian citizen, registered about January 2008 as an international student in the Science for Health Professions program at DCCC. (Doc. No. 17 at 4.) From June to August 2008, Plaintiff was enrolled in the TOEFL Preparatory course offered by DCCC. (Id.) Defendant Preston, a DCCC employee, was the TOEFL course professor. (Id.) Plaintiff avers that Preston “flagrantly flirted with Plaintiff in class.” (Id.) Plaintiff further alleges that during the course, Preston “handwrote a flagrant solicitation” on Plaintiff’s classwork, “wrongfully providing Plaintiff with. . . Preston’s personal e-mail address, telephone number, and an explicit and inappropriate request that Plaintiff send. . . Preston personal photographs. . . .” (Id. at 5.)
Plaintiff contends that Preston asked her on August 6, 2009 to send him a “friend request” on the social media website Facebook. (Id.) On the same date, Preston sent Plaintiff an e-mail stating: “We should have lunch or dinner - I am not cheap like your ex-boyfriend; I will take you to a nice place. We both have some free time coming up.” (Id. at 5.) Plaintiff further contends that from August 7, 2008 to July 4, 2011, Preston sent “unsolicited, inappropriate, flirtatious and harassing messages” to her through her personal e-mail account and Facebook. (Id. at 6.)
On March 22, 2010, during the time when Preston was sending the e-mails and contacting Plaintiff over the internet, Preston was terminated from DCCC. (Id. at 50.) There are no averments in the Second Amended Complaint that Preston was terminated for reasons related to Plaintiff or her allegations against him. (Doc. No. 22 at 5.) On July 13, 2010, Preston sent an e-mail to Plaintiff notifying her that he was no longer working for DCCC. (Id.)
As a result of Preston’s conduct, Plaintiff filed a claim on or about August 1, 2011 with the Pennsylvania Human Relations Commission (“PHRC”) for sexual harassment/sexual discrimination under the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. § 951 et seq. (Id.) On May 15, 2012, Plaintiff voluntarily withdrew her claim filed with the PHRC. (Id.)
On July 10, 2012, Plaintiff filed suit against DCCC and Preston in the Court of Common Pleas of Delaware County, asserting the following claims against each Defendant:
1) Count 1 alleges sex discrimination in violation of the Pennsylvania Human Relations Act (“PHRA”);
2) Count 2 alleges sex discrimination in violation of Title IX;
3) Count 3 alleges sex discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment pursuant to § 1983;
4) Count 4 alleges the creation of a hostile environment in violation of Pennsylvania common law, Title IX, and the PHRA;
5) Count 5 alleges Vicarious Liability/Respondeat Superior;
6) Count 6 alleges a breach of fiduciary duty;
7) Count 7 alleges negligent supervision and hiring;
8) Count 8 alleges a breach of contract; and
9) Count 9 alleges an intentional infliction of emotional distress.
(See Doc. No. 17 at 20-64.)
On September 13 and 14, 2012, Defendants filed Motions to Dismiss the original Complaint for Failure to State a Claim. (Doc. Nos. 9 and 10.) On October 24, 2012, the Court held a hearing on the Motions. At the hearing, Plaintiff agreed to file a Second Amended Complaint. (Tr. of Oral Argument 29:4-25, Oct. 24, 2012 [hereafter “Oral Argument”].)
On December 12, 2012, Plaintiff filed the Second Amended Complaint. (Doc. No. 17.) On December 18, 2012, Preston and DCCC each filed another Motion to Dismiss for Failure to State a Claim. (Doc. Nos. 19, 21.) On January 2, 2012, Plaintiff filed her Response to the Motions to Dismiss. (Doc. Nos. 23 and 24.) On January 9, 2013, DCCC filed its Reply. (Doc. No. 25.)
Only Counts 2, 3, and 4 of the Second Amended Complaint assert claims that are the basis of federal jurisdiction. For reasons set forth infra, these claims and others will be dismissed. The one remaining state law claim for breach of contract will be remanded to state court.
III. STANDARD OF REVIEW
To survive a motion to dismiss, a plaintiff must state a plausible claim in the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). In Iqbal, the leading case on the matter, the court explained that the plausibility standard requires “more than a sheer possibility that a defendant has acted unlawfully.” Id. at 678. This means that a simple recitation of the elements of a claim, accompanied by conclusory statements of law, will not suffice. Id. (citing Twombly, 550 U.S. at 555.)
Applying this principle, in Malleus v. George, the Third Circuit explained that the inquiry requires that a district court: “(1) identify the elements of the claim, (2) review the complaint to strike conclusory allegations, and then (3) look at the well-pleaded components of the complaint and evaluat[e] whether all of the elements identified in part one of the inquiry are sufficiently alleged.” 641 F.3d 560, 563 (3d Cir. 2011). Elements are sufficiently alleged when the facts in the complaint “show” that the plaintiff is entitled to relief. Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)). Deciding whether a claim is plausible will be a “context- specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id.
A. The Statute of Limitations Bars All But One Claim against DCCC
DCCC submits that most of the claims against it are time-barred under the Pennsylvania statute of limitations. (Doc. No. 22 at 9.) In Pennsylvania, any action to recover damages for injury to a person based on negligent, intentional, or otherwise tortious conduct must be commenced within two years of the occurrence of the injury. 42 Pa. Cons. Stat. § 5524(7). The two year statute of limitations also applies to any action to recover damages under 42 U.S.C. § 1983 or Title IX. See Kasteleba v. Judge, 325 F. App’x 153, 156 (3d Cir. 2009) (stating that federal courts apply a state’s personal injury statute of limitations claims to § 1983 claims); Bougher v. Univ. of Pittsburgh, 882 F.2d 74, 77-78 (3d Cir. 1989) (concluding that “the most analogous statute of limitations [for a Title IX claim] is Pennsylvania’s two-year statute of limitations period applicable to personal injury actions. . . .”). Actions based on breach of an express or implied contract, however, must be instituted within four years of the breach. 42 Pa. Cons. Stat. § 5524(a).
Federal Rule of Civil Procedure 8(c)(1) provides: “In responding to a pleading, a party must affirmatively state any . . . affirmative defense, including . . . statute of limitations.” An affirmative defense such as a statute of limitations defense must be raised at the earliest possible moment in litigation, which is normally in the answer. Robinson v. Johnson, 313 F.3d 128, 134– 37 (3d Cir. 2002). Under what is commonly referred to as the “Third Circuit Rule, ” it is permissible for “a limitations defense to be raised by a motion under Rule 12(b)(6), but only if ‘the time alleged in the statement of a claim shows that the cause of action has not been brought within the statute of limitations.’” Robinson, 313 F.3d at 135 (quoting Hanna v. U.S. Veterans’ Admin. Hosp., 514 F.2d 1092, 1094 (3d Cir. 1975)). Thus, a statute of limitations defense may be raised in a Rule 12(b)(6) motion “where the complaint facially shows noncompliance with the limitations period and the affirmative defense clearly appears on the face of the pleading.” Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.2d 1380, 1385 n.1 (3d Cir. 1994).
In considering whether the statute of limitations period expired against DCCC before the original Complaint was filed, the actions of its employee Preston are crucial to this decision. It is well settled that an employer can be vicariously liable for the actions of an employee that cause injuries to a third party, if the conduct of the employee is within the employee’s scope of employment. See Costa v. Roxborough Mem’l Hosp., 708 A.2d 490, 493 (Pa. Super. Ct. 1998). “The conduct of an employee is considered ‘within the scope of employment’ for purposes of vicarious liability if: 1) it is of a kind and nature that the employee is employed to perform; 2) it occurs substantially within the authorized time and space limits; 3) it is actuated, at least in part, by a purpose to serve the employer; and 4) if force is intentionally used by the employee against another, the use of force is not unexpected by the employer.” Id. (citing Fitzgerald v. McCutcheon, 410 A.2d 1270, 1272 (Pa. Super. Ct. 1979).
Plaintiff avers here that Preston continuously harassed her from approximately August 2008 until July 4, 2011. (Doc. No. 17 at 6.) Consequently, Plaintiff contends that she satisfied the Pennsylvania two year statute of limitations for tort claims, by filing this action on July 10, 2012. But Preston was terminated from DCCC on March 22, 2010, at which point he stopped being an employee of DCCC. (Doc. No. 17 at 50.) Since Preston was not an employee after March 22, 2010, his conduct after his termination was not within the scope of his employment and DCCC is therefore not vicariously liable for any post-termination conduct. Accordingly, any action against DCCC for Preston’s actions should have been instituted by March 22, 2012, or two years after his termination from DCCC. Since the original Complaint was filed on July 10, 2012, the statute of limitations bars Plaintiff from asserting tort claims against DCCC.
Recognizing this impediment to her case, Plaintiff argues, in the alternative, that the Pennsylvania statute of limitations was tolled for all claims existing on or before August 1, 2011, when she filed her PHRC claim. (Doc. No. 23 at 18-19.) Filing a discrimination action with the PHRC, however, does not toll the Pennsylvania statute of limitations for state law claims. See Hartman v. Sterling, Inc., No. 01-cv-2630, 2003 WL 22358548, at *14 (E.D. Pa. Sept. 10, 2003) (state law claims of wrongful discharge, breach of contract, tortious interference with plaintiff’s right to continue employment, negligent hiring, retention, and supervision, and intentional infliction of emotional distress were not tolled by filing an action with the PHRC). The same holding would apply to the federal causes of action alleged in the Second Amended Complaint. Accordingly, the Pennsylvania statute of limitations was not tolled when Plaintiff filed her PHRC claim.
As a second alternative, Plaintiff argues that the Court should apply the continuing violations theory in order to overcome the statute of limitations bar. Under the continuing violations theory, discriminatory acts that are not individually actionable may be aggregated for purposes of a hostile work environment claim; such acts “can occur at any time so long as they are linked in a pattern of actions which continues into the applicable limitations period.” O'Connor v. City of Newark, 440 F.3d 125, 127 (3d Cir. 2006) (citing Nat. R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105 (2002) (explaining that a court may consider the “entire scope of a hostile work environment claim . . . so long as any act contributing to that hostile environment takes place within the statutory time period”)).
The Third Circuit has applied the continuing violations theory to a Title VII claim involving sexual discrimination. Mandel v. M. & Q. Packaging Corp., 706 F.3d 157, 165-66 (3d Cir. 2013). Neither party, however, has cited a case that applies the continuing violations theory to a Title IX claim of sexual discrimination. One court addressed the potential applicability of the continuing violations theory to a Title IX claim without deciding the issue. Folkes v. N.Y. Coll. of Osteopathic Med. Of N.Y. Inst. Of Tech., 214 F.Supp.2d 273, 288-289 (E.D.N.Y. 2002). The Folkes court expressed doubt that the theory would apply to a Title IX claim, reasoning that the theory “may well be a poor fit with the goals of Title IX.” Id. The court elaborated:
In Gebser, the Supreme Court explained the differences between Title VII and Title IX, noting that Title IX, . . . “condition[s] an offer of federal funding on a promise by the recipient not to discriminate, in what amounts essentially to a contract between the Government and the recipient of funds.” 524 U.S. at 286, 118 S.Ct. 1989. . . .
Gebser shows the Supreme Court's reluctance to extend the reach of Title IX beyond that imposed by Congress. Id. at 287, 118 S.Ct. 1989 (“Title IX's contractual nature has implications for our construction of the scope of available remedies. When Congress attaches conditions to the award of federal funds under its spending power, . . . as it has in Title IX and Title VI, we examine closely the propriety of private actions holding the recipient liable in monetary damages for noncompliance with the condition.”) This reasoning led the Gebser Court to impose the actual notice standard discussed supra, and leads this court to question the advisability of applying the oft-disfavored continuing violation exception to Title IX claims.
This Court agrees with the rationale set forth in Folkes. With no precedent being cited to the contrary, the Court will not expand the continuing violations theory beyond its application to a hostile work environment claim under Title VII, which is not changed in this case. Since the continuing violations theory is not applicable here, for reasons noted above, all claims against DCCC that fall under Pennsylvania’s two year statute of limitations for personal injury must be dismissed as untimely. These claims are:
• Count 1, sex discrimination under the PHRA
• Count 2, sex discrimination under Title IX;
• Count 3, sex discrimination under the Fourteenth Amendment pursuant to 42 ...