DONALD P. RUSSO, ESQUIRE On behalf of Plaintiff
STEVEN E. HOFFMAN, ESQUIRE EDWARD J. EASTERLY, ESQUIRE On behalf of Defendants
JAMES KNOLL GARDNER, United States District Judge
This matter is before the court on two defense motions: (1) Defendant’s Motion to Dismiss and/or Strike Plaintiff’s Amended Complaint (“Motion to Dismiss/Strike”); and (2) Defendant’s Motion to Strike [Plaintiff’s Declaration] (“Motion to Strike Declaration”).
For the reasons expressed below, I grant in part, and deny in part, the Motion to Dismiss/Strike and grant the Motion to Strike Declaration.
SUMMARY OF DECISION
In this matter, plaintiff Lisa Steinagel asserts discrimination claims against her former employer, defendant Valley Oral Surgery.
Because, for the reasons expressed below, I conclude that plaintiff has sufficiently pled a disparate-treatment age discrimination claim, I deny the Motion to Dismiss/Strike to the extent it seeks to dismiss that claim.
However, because I conclude that plaintiff has not pled sufficient facts to state an age-based hostile work environment claim, I grant the Motion to Dismiss/Strike that claim. Moreover, I grant the Motion to Dismiss/Strike to the extent it seeks to strike plaintiff’s declaration from consideration in support of plaintiff’s opposition to the motion to dismiss as a matter outside the pleadings.
Finally, I grant the Motion to Strike Declaration and strike Plaintiff’s Declaration from Plaintiff’s Brief in response to the motion to dismiss as a matter outside the pleadings.
Jurisdiction in this case is based upon federal question jurisdiction pursuant to 28 U.S.C. § 1331. This court has supplemental jurisdiction over plaintiff’s pendent state-law claims. See 28 U.S.C. § 1367.
Venue is proper pursuant to 28 U.S.C. § 1391(b) because the events giving rise to plaintiff’s claims allegedly occurred in Lehigh County, Pennsylvania, which is located within this judicial district.
On March 6, 2012 plaintiff Lisa Steinagel filed a Praecipe for Writ of Summons in the Court of Common Pleas of Lehigh County, Pennsylvania. Plaintiff filed a Complaint on September 5, 2012 asserting a disparate-treatment age discrimination claim against defendant Valley Oral Surgery under the Age Discrimination in Employment Act (“ADEA”)(Count I) and the Pennsylvania Human Relations Act (“PHRA”)(Count II).
Defendant removed the case from the Court of Common Pleas of Lehigh County, Pennsylvania to this court on October 2, 2012, and, on October 8, 2012, filed its first motion seeking to dismiss plaintiff’s age discrimination claims and to strike paragraphs in plaintiff’s first Complaint concerning one purportedly-racial comment made by plaintiff’s supervisor.
Plaintiff did not file a brief or memorandum of law in opposition to defendant’s first motion to dismiss/strike explaining why the allegations in her initial Complaint were sufficient to state a disparate-treatment age discrimination claim. Rather, plaintiff filed her Amended Complaint on November 23, 2012.
The Amended Complaint alleges the same two counts of age discrimination contained in the first Complaint -- Count I alleging age discrimination in violation of the ADEA, and Count II alleging age discrimination in violation of the PHRA.
Defendant filed the within Motion to Dismiss/Strike on November 28, 2012. Plaintiff’s Brief was filed on December 13, 2012, together with Plaintiff’s Declaration.
On January 9, 2013 defendant filed the within Motion to Strike Declaration. Plaintiff’s Memorandum of Law in Opposition to Defendant’s Motion to Strike Plaintiff’s Affidavit was filed on January 25, 2013.
Hence this Opinion.
STANDARD OF REVIEW
A claim may be dismissed under Federal Rule of Civil Procedure 12(b)(6) for "failure to state a claim upon which relief can be granted." A Rule 12(b)(6) motion requires the court to examine the sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957) (abrogated in other respects by Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
Generally, in ruling on a motion to dismiss, the court relies on the complaint, attached exhibits, and matters of public record, including other judicial proceedings. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2008).
Except as provided in Federal Rule of Civil Procedure 9, a complaint is sufficient if it complies with Rule 8(a)(2), which requires “a short and plain statement of the claim showing that the pleader is entitled to relief”. Rule 8(a)(2) does not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face. Twombly, 550 U.S. at 570, 127 S.Ct. at 1974, 167 L.Ed.2d at 949.
In determining whether a complaint is sufficient, the court must accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading, the plaintiff may be entitled to relief. Fowler, 578 F.3d at 210 (citing Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)).
Although “conclusory” or “bare-bones allegations” will not survive a motion to dismiss, Fowler, 578 F.3d at 210, a complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits. Phillips, 515 F.3d at 231. Nonetheless, to survive a Rule 12(b)(6) motion, the complaint must provide “enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element.” Id. at 234 (quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965, 167 L.Ed.2d at 940)(internal quotations omitted).
The court is required to conduct a two-part analysis when considering a Rule 12(b)(6) motion. First, the factual matters averred in the complaint, and any attached exhibits, should be separated from legal conclusions asserted. Fowler, 578 F.3d at 210. Any facts pled must be taken as true, and any legal conclusions asserted may be disregarded. Id. at 210-211.
Second, the court must determine whether those factual matters averred are sufficient to show that the plaintiff has a “plausible claim for relief.” Id. at 211 (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. at 1950, 178 L.Ed.2d at 884).
Ultimately, this two-part analysis is “context-specific” and requires the court to draw on “its judicial experience and common sense” to determine if the facts pled in the complaint have “nudged [plaintiff’s] claims” over the line from “[merely] conceivable [or possible] to plausible.” Iqbal, 556 U.S. at 679-680, 129 S.Ct. at 1949-1951, 178 L.Ed.2d at 884-885.
A well-pled complaint may not be dismissed simply because “it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.” Twombly, 550 U.S. at 556, 127 S.Ct. at 1965, 167 L.Ed.2d at 940-941 (internal quotations omitted).
Based upon the Amended Complaint, and accepting all factual allegations in the Amended Complaint as true, and construing it in the light most favorable to the plaintiff as I must do under the foregoing standard of review, the pertinent facts are as follows.
Plaintiff Lisa Steinagel was hired by defendant Valley Oral Surgery as a receptionist on July 17, 2001. She was qualified for her position, receiving yearly reviews grading her as “exceptional/outstanding” during her seven years of employment with defendant.
During her employment, plaintiff was placed under the supervision of a new office manager, Maggie Goodrich, who was “substantially younger” than plaintiff. At one point during plaintiff’s employment, Ms. Goodrich told her that “it was very rare that she ever ha[d] to fire anyone that was hired by her personally, and that it [was] usually people who were hired prior [to her arrival] that she would have to terminate.”
Ms. Goodrich created a new position, Front Desk Coordinator, but did not create or provide a job description for that position. Plaintiff was promoted to Front Desk Coordinator.
Ms. Goodrich’s Remark
While on a work trip with plaintiff and another co-worker named Tyisha, who was of African American descent, Ms. Goodrich stated, “I don’t have anything in common with those people.” Plaintiff and Tyisha discussed Ms. Goodrich’s remark later because it made them both uncomfortable. After the trip, another co-worker, Rosie, told Dr. Popowich and Dr. Grimm (members of the oral surgery practice) of the comment made by Ms. Goodrich.
Ms. Goodrich later told plaintiff that she was disappointed that plaintiff did not tell her that Rosie had informed the doctors about the comment. Ms. Goodrich said she meant no harm by her remark and that she had “black friends.”Plaintiff does not allege the time when these events occurred.
Later,  Ms. Goodrich demoted plaintiff from Front Desk Coordinator and told plaintiff that she did not meet the requirements for Front Desk Coordinator and that she was disappointed in plaintiff’s performance.
In September of 2008, plaintiff was undergoing medical testing for esophageal cancer and felt stressed while awaiting the results. On September 18, 2008 plaintiff was “involved in a verbal altercation” with a substantially younger, pregnant, co- worker. Plaintiff requested a meeting with all co-workers involved in or present during the altercation, as ...