RONALD L. BUCKWALTER, District Judge.
Presently before the Court is the Motion to Dismiss by Defendants the City of Philadelphia ("the City"), Linda Turner, and Lynn Spiro. For the following reasons, the Motion is granted.
I. FACTUAL BACKGROUND
According to the facts set forth in the Amended Complaint, Plaintiff was hired in July 1988 by Defendant City of Philadelphia and employed as the Older Adult Center Director in the City's Park and Recreation Department. (Am. Compl. ¶ 12.) On June 6, 2008, Plaintiff filed a complaint of race discrimination against Defendants with the EEOC under Charge No. 530-2008-02625. (Id. ¶ 13.) Upon receiving a Notice of Right to Sue, Plaintiff filed litigation in the United States District Court for the Eastern District of Pennsylvania under Civil Action No. 10-4237 ("Prior Action"). (Id. ¶ 14.) While the Prior Action was pending, Plaintiff resigned his employment with Defendant in January 2011 to take care of his terminally ill mother. (Id. ¶ 15.) Months prior to his resignation, he provided both Defendants and the City's Park and Recreation Department with documentation and formal notification of his mother's medical needs. (Id. ¶ 16.) In accordance with the Family and Medical Leave act, he also submitted several physician documents certifying that he assisted his mother. (Id.)
On September 22, 2011, this Court granted summary judgment in favor of Defendants on all counts in the Prior Action. (Id. ¶ 17.) Four days later, Plaintiff demanded reinstatement to his employment with the City pursuant to Civil Service Regulation 15.031. (Id. ¶ 18.) Plaintiff hand delivered his letter to the City's Director of Human Resources Department and, while he was there, a copy of the letter was faxed directly to the Human Resources Director of the Park and Recreation Department, Defendant Linda Turner. (Id. ¶ 22.) While that reinstatement request was pending, he appealed the District Court's dismissal of the Prior Action to the United States Court of Appeals for the Third Circuit. (Id.)
At the time Plaintiff made his request for reinstatement, the position of Older Adult Center Director in the City's Park and Recreation Department-vacated eight months previously by Plaintiff-had not been filled by Defendants. (Id. ¶ 20.) Nonetheless, Defendants never responded to Plaintiff's request for reinstatement and "quickly" filled the position with another employee. (Id. ¶¶ 23, 27.) Thus, on December 14, 2011, Plaintiff hand delivered another letter to the City's Human Resources Office requesting available and appropriate positions in the Park and Recreation Department so that he could be reinstated to his employment with the City. (Id. ¶ 24.) Again, while Plaintiff waited at the Human Resources Office, a copy of this letter was faxed to Linda Turner. (Id.)
Both Linda Turner and Defendant Lynn Spiro (collectively, the "Individual Defendants") were the appointing authorized officials of the Parks and Recreation Department responsible for approving Plaintiff's reinstatement requests and they were both involved in the Prior Action. (Id. ¶ 25.) Indeed, during Plaintiff's previous employment with the City as the Director of the Martin Luther King Older Adult Center in the Recreation Department, Ms. Spiro was Plaintiff's immediate supervisor and Ms. Turner was the Director of Human Resources for the Recreation Department. (Id. ¶ 26.)
Ultimately, the City and these individual Defendants did not reinstate Plaintiff. (Id. ¶ 27.) Neither the City nor the individual Defendants ever responded to Plaintiff's requests for reinstatement. (Id. ¶ 28.) Plaintiff believes such failure to reinstate was in retaliation for pursuing claims of race discrimination against Defendants with the EEOC. (Id. ¶ 30.)
On February 7, 2012, Plaintiff filed a complaint of retaliation under Title VII and the PHRA against the City of Philadelphia with the EEOC. (Id. ¶ 3.) The EEOC issued and mailed a Dismissal and Notice of Right to Sue to Plaintiff on August 30, 2012. (Id.) Thereafter, on November 8, 2012, Plaintiff initiated the current federal action and, on March 19, 2013, filed an Amended Complaint setting forth the following causes of action: (1) retaliation in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-1, et seq. against Defendant City of Philadelphia; (2) violation of 42 U.S.C. § 1981 against the Individual Defendants; (3) violation of 42 U.S.C. § 1983 against all Defendants; and (4) violation of the Pennsylvania Human Relations Act ("PHRA"), 42 Pa.C.S. § 951, et seq. Defendants filed a Motion to Dismiss this Amended Complaint on April 2, 2013, and Plaintiff responded on April 18, 2013. The Motion is now ripe for judicial consideration.
II. STANDARD OF REVIEW
Under Rule 12(b)(6), a defendant bears the burden of demonstrating that the plaintiff has not stated a claim upon which relief can be granted. Fed. R. Civ. P.12(b)(6); see also Hedges v. United States , 404 F.3d 744, 750 (3d Cir. 2005). In Bell Atl. Corp. v. Twombly , 550 U.S. 544 (2007), the United States Supreme Court recognized that "a plaintiff's obligation to provide the grounds' of his entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555. Following these basic dictates, the Supreme Court, in Ashcroft v. Iqbal , 556 U.S. 662 (2009), subsequently defined a two-pronged approach to a court's review of a motion to dismiss. "First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678. Thus, although "Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era... it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Id. at 678-79. Second, the Supreme Court emphasized that "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 679. "Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id . A complaint does not show an entitlement to relief when the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct. Id .; see also Phillips v. Cnty. of Allegheny , 515 F.3d 224, 232-34 (3d Cir. 2008) (holding that: (1) factual allegations of complaint must provide notice to defendant; (2) complaint must allege facts suggestive of the proscribed conduct; and (3) the complaint's "factual allegations must be enough to raise a right to relief above the speculative level.'" (quoting Twombly , 550 U.S. at 555)).
Notwithstanding these new dictates, the basic tenets of the Rule 12(b)(6) standard of review have remained static. Spence v. Brownsville Area Sch. Dist., No. Civ.A.08-626 , 2008 WL 2779079, at *2 (W.D. Pa. July 15, 2008). The general rules of pleading still require only a short and plain statement of the claim showing that the pleader is entitled to relief and need not contain detailed factual allegations. Phillips , 515 F.3d at 233. Further, the court must "accept all factual allegations in the complaint as true and view them in the light most favorable to the plaintiff." Buck v. Hampton Twp. Sch. Dist. , 452 F.3d 256, 260 (3d Cir. 2006). Finally, the court must "determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Pinkerton v. Roche Holdings Ltd. , 292 F.3d 361, 374 n.7 (3d Cir. 2002).
A. Title VII and PHRA Retaliation Claims (Counts I and III)
Defendants first argue that Plaintiff fails to create a plausible claim for relief under Title VII and the PHRA's anti-retaliation provisions. Specifically, they assert that the Amended Complaint does not allege facts that show that his EEOC complaint and federal lawsuit filed against the City in 2008 caused or is connected to his failure to be reinstated after his resignation in 2011. The Court agrees.
Title VII's anti-retaliation provision declares it to be an "unlawful employment practice" for a covered employer "to discriminate against" an employee "because he [or she] has opposed any practice made an unlawful employment practice" by Title VII, or "because he [or she] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing" thereunder. 42 U.S.C. § 2000e-3(a). "To establish a prima facie case of retaliation under Title VII, a plaintiff must tender evidence that: (1) she engaged in activity protected by Title VII; (2) the employer took an adverse employment action against her; and (3) there was a causal connection between her participation in the protected activity and the adverse employment action.'" Moore v. City of Phila. , 461 F.3d 331, 340-41 (3d Cir. 2006) (quoting Nelson v. Upsala Coll. , 51 F.3d 383, 386 (3d Cir. 1995)). As to the "protected activity" element, "the anti-retaliation provision of Title VII protects those who participate in certain Title VII proceedings (the participation clause') and those who oppose discrimination made unlawful by Title VII (the opposition clause')." Id . (citing Slagle v. Cnty. of Clarion , 435 F.3d 262, 266 (3d Cir. 2006)). In either case, the employee must hold "an objectively reasonable belief, in good faith, that the activity [he] oppose[s] is unlawful under Title VII." Id.
Pursuant to the second element, the United States Supreme Court has clarified what constitutes an adverse employment action. In Burlington N. & Santa Fe Ry. Co. v. White , 548 U.S. 53 (2006), it found "that the anti-retaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment." Id. at 64. Rather, a plaintiff claiming retaliation under Title VII must show that a reasonable employee would have found the alleged retaliatory actions "materially adverse" in that they "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Id. at 68 (quotations omitted). Nonetheless, "[a]n employee's decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience." Id. at 68.
The third element of a prima facie case requires a showing of a causal connection between the Plaintiff's protected activity and an action that might have dissuaded a reasonable worker from making or supporting a charge of discrimination. Moore , 461 F.3d at 341-42 (3d Cir. 2006). To determine whether a plaintiff has met the causation element, the court must consider all evidence that is "potentially probative of causation." Farrell v. Planters Lifesavers Co. , 206 F.3d 271, 279 (3d Cir. 2000). Generally, temporal proximity of a retaliatory act to a protected activity is probative, but not dispositive of the causation element. Estate of Smith v. Marasco , 318 F.3d 497, 512-13 (3d Cir. 2003). Stated differently, temporal proximity between the protected activity and the employer action may indicate causation, but "the mere fact that adverse employer action occurs after a complaint will ordinarily be insufficient to satisfy the plaintiff's burden of demonstrating a causal link between the two events.'" Krouse v. Am. Sterilizer Co. , 126 F.3d 494, 503 (3d Cir. 1997) (quoting Robinson v. City of Pittsburgh , 120 F.3d 1286 (3d Cir. 1997)). To be "unusually suggestive" of a retaliatory motive, "the temporal proximity must be immediate." Lorah v. Tetra Tech, Inc. , 541 F.Supp.2d 629, 636 (D. Del. 2009). The Third Circuit has suggested that a temporal proximity of two days is sufficient to establish causation, see Farrell , 206 F.3d at 279 & n.5, whereas a temporal proximity of ten days is sufficient to establish causation only when accompanied by other evidence of wrongdoing, Shellenberger v. Summit Bancorp, Inc. , 318 F.3d 183, 189 (3d Cir. 2003); see also Fischer v. Transue, No. Civ.A.04-2756 , 2008 WL 3981521, at *10 (M.D. Pa. Aug. 22, 2008) (holding that temporal proximity of twenty-two days was insufficient to establish causation); Smith v. ABF Freight Sys., Inc., No. Civ.A.04-2231 , 2007 WL 3231969, at *11 (M.D. Pa. Oct. 29, 2007) (holding that temporal proximity of one and one-half months was insufficient to establish causation); Mar v. City of McKeesport, No. Civ.A.05-19 , 2007 WL 2769718, at *4 (W.D. Pa. Sept. 20, 2007) (holding that temporal proximity of three months was insufficient to establish causation); Killen v. N.W. Human Servs., Inc., No. Civ.A.06-4100 , 2007 WL 2684541, at *8 (E.D. Pa. Sept. 7, 2007) ((holding that temporal proximity of seventeen days was insufficient to establish causation). "[I]n cases where temporal proximity is not unusually suggestive' of retaliatory motive, the Third Circuit has demanded further evidence to substantiate a causal connection." McCloud v. United Parcel Serv., Inc. , 543 F.Supp.2d 391, 401-02 (E.D. Pa. 2008). "Such other evidence may include, but is not limited to, a pattern of antagonism' by the employer that could link the adverse action with Plaintiff's complaint." Id.
In the present case, Defendants concede, for purposes of their Motion, the first and second elements of the prima facie case, but focus their arguments on the third element-temporal proximity. Specifically, Defendants claim that Plaintiff fails to establish a causal connection based on temporal proximity between his alleged protected activities and the alleged adverse employment actions. They contend that, even assuming ongoing protected activity-from the filing of his EEOC charge on June 6, 2008 through the pending appeal of this Court's dismissal of his action in December 2011-there are no allegations of an "unusually suggestive" temporal lapse or pattern of intervening antagonism on which Plaintiff can rest a claim of causation.
Upon review, the Court notes that this case presents some unusual circumstances. First, Plaintiff's protected activity began in 2008 when he first filed his EEOC charge and continued through his filing of his Prior Action in federal court in August 2010, the Court's grant of summary judgment in favor of the defendants on September 22, 2011, and the filing of his appeal with the Third Circuit in October 2011. Moreover, it was Plaintiff who had voluntarily left his employment in January 2011 and chose to wait until just four days after the dismissal of his federal case on summary judgment to seek reinstatement. Defendants thereafter did not engage in any specifically identifiable retaliatory activity, but rather simply disregarded his request for reinstatement. Finally, the alleged adverse employment action-the disregard of requests for reinstatement-occurred starting in September 26, 2011 (the date of his first request) and continued after December 14, 2011 (the date of the second request).
Thus, the precise problem with the present case is not that there is too great of a lapse of time between the protected activity and the adverse employment action, but rather that both the protected activity and the adverse employment action continued over such an extended period of time that it is impossible to make any inference of causation between them. To allow the mere suggestion of some temporal proximity to satisfy the element of causation in this case would mean that any seemingly adverse action taken by Defendants against Plaintiff any time after the 2008 filing of his EEOC complaint could constitute impermissible retaliation. Clearly, the law did not intend to so expand the notion of "unusually suggestive" temporal proximity. "[T]he mere fact that adverse employment action occurs after a complaint will ordinarily be insufficient to satisfy the plaintiff's burden of demonstrating a causal link between the two events." Krouse , 126 F.3d at 503. Rather, for temporal proximity to be unusually suggestive of a retaliatory motive, it must be "immediate." No such immediacy exists here.
Given the lack of any unduly suggestive temporal proximity, the onus now falls on Plaintiff to allege facts that would indicate some type of intervening period of antagonism. The Amended Complaint, however, is devoid of any factual allegations demonstrating any antagonism-let alone a pattern of antagonism-by Defendants against Plaintiff in the period before he submitted his request for reinstatement. Plaintiff first filed his charge with the EEOC in June 2008, but he does not allege that he was subject to any retaliation or termination at that time. Plaintiff then commenced a civil action in this Court on August 20, 2010, but makes no allegation that he was fired from his position at the Water Department or suffered any other employment action. Rather, in January 2011, he voluntarily resigned solely to take care of his terminally ill mother. (Id. ¶ 15.) In the nine months between that resignation and Plaintiff's request for reinstatement, there are no alleged interactions between Plaintiff and Defendants that would suggest antagonistic conduct or animus. Indeed, the only intervening event that Plaintiff discusses is the Court's grant of summary judgment on his pending litigation ...