LAWRENCE F. STENGEL, District Judge.
This is an employment discrimination case brought under Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act. The defendants move to dismiss in part the plaintiff's first amended complaint. For the following reasons, I will grant this motion in part and deny it in part.
Plaintiff Rashaun Merces-Clark is a black male who was hired by the Pennsylvania State Police in May 2011 and assigned to Troop M - Fogelsville as a patrol trooper after completing basic training. His supervisors at the time he completed his other training requirements were Corporal Nicole Palmer, Sergeant David Nosal, Defendant Lieutenant Edgardo Colon, and Defendant Captain William Teper. Defendant Lieutenant Gaspich replaced Lt. Colon as the plaintiff's supervisor after Colon retired.
From February 2012 until September 2012, two internal affairs division (IAD) investigations regarding actions taken by the plaintiff commenced. Defendant Teper was the captain who sustained these IADs and sent the completed reports to the Department of Discipline Office; the plaintiff alleges he did so wrongfully. On September 21, 2012, the plaintiff submitted three EEO complaints to Lt. Gaspich: two against Capt. Teper for sustaining the IADs and one against Lt. Colon for retaliation after the plaintiff did not follow appropriate chain of communication procedures. The plaintiff alleges that Lt. Gaspich then yelled and cursed at him for initiating these complaints. The following day, the plaintiff submitted another EEO complaint against Lt. Gaspich, alleging a hostile work environment.
On October 19, 2012, the plaintiff was issued two reprimands from the previous IADs and was terminated from his position in accord with a decision made by a three-member panel. The reasons for termination were "lacking knowledge or policing, criminal justice, not dependable, and not reliable." The plaintiff alleges that other white officers, who had engaged in similarly-culpable conduct, were not terminated or even disciplined.
On November 20, 2012, the plaintiff dually filed a complaint with the Equal Employment Opportunity Commission (EEOC) and Pennsylvania Human Relations Commission (PHRC) alleging race discrimination and retaliation. The plaintiff received his right-to-sue letter on April 4, 2013. He filed suit in this court on April 18, 2013.
The plaintiff alleges that the defendants retaliated against him-for filing his EEO complaints and for filing this federal lawsuit-by not allowing him to participate in a training opportunity, terminating his employment, and relaying damaging information about his suit and employment to future potential employers. His complaint includes the following counts: 1) Count I: Title VII Claim against the Pennsylvania State Police (PSP) and Commonwealth of Pennsylvania, and 2) Count II: Pennsylvania Human Relations Act Claim against all defendants.
II. MOTION TO DISMISS STANDARD
In lieu of answering the plaintiff's complaint, the defendants filed this motion to dismiss Count II in its entirety and Count I against the Commonwealth, under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
a. Rule 12(b)(1) - Lack of Jurisdiction
An attack on the subject matter jurisdiction of a matter may be raised at any stage of litigation. See Fed.R.Civ.P. 12(b)(1), 12(h)(3). A motion attacking subject matter jurisdiction prior to the filing of an answer under Federal Rule Civil Procedure 12(b)(1) is considered a facial attack. Nelson v. Commonwealth Department of Public Welfare, 244 F.Supp.2d 382, 386 (E.D.Pa. Dec. 9, 2002)(citing Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 694 n. 2 (3d Cir.1996)). In this situation, the trial court does not necessarily have to accept the complaint's allegations as true and no inferences are to be drawn in favor of the plaintiff. See Hedges v. U.S., 404 F.3d 744, 750 (3d Cir. 2005); CNA v. U.S., 535 F.3d 132, 140 (3d Cir. 2008). Instead, the plaintiff bears the burden of persuasion that jurisdiction exists under Rule 12(b)(1). Hedges, 404 F.3d at 750.
b. Rule 12(b)(6) - Failure to State a Claim
When considering a Rule 12(b)(6) motion for failure to state a claim, on the other hand, the court must: 1) accept all factual allegations as true; 2) construe the complaint in favor of the plaintiff; and 3) determine whether any reasonable reading of the complaint would entitle the plaintiff to relief. Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 562 n. 8 (2007)). The factual allegations in the complaint must be more than speculative. Phillips, 515 F.3d at 234 (citing Twombly, 550 U.S. at 555). While the plaintiff need not provide ...