United States District Court, E.D. Pennsylvania
NORMA L. SHAPIRO, District Judge.
Before the court is Defendant's Motion to Dismiss Plaintiff's First Amended Complaint, seeking dismissal of plaintiff's claims against defendant for failing to plead essential elements of her employment discrimination claims (paper no. 20). Plaintiff responds that defendant's motion should be denied as untimely and procedurally barred (paper no. 26). Plaintiff also contends the motion should be denied on the merits. The allegations in the Amended Complaint are sufficient to support her claims of gender and age discrimination. Defendant's motion will be denied.
On February 28, 2014, plaintiff, Gina Tilton, initiated this action against defendant, GlaxoSmithKline, LLC, for alleged violations of 42 U.S.C. § 2000e et seq. ("Title VII"), the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), and the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. § 951 et seq. ("PHRA"). Plaintiff, then fifty-five years old, alleged defendant discriminated against her on the basis of her age and gender. According to the complaint, plaintiff was first employed by defendant as a marketing manager in February 2012. At some point, plaintiff's manager, Greg Galiano, returning from a medical leave of absence, began treating plaintiff in a manner she found rude and belligerent. Plaintiff alleges Mr. Galiano disciplined plaintiff for pretextual reasons and made disparaging comments about her age and gender. Plaintiff alleges Mr. Galiano's treatment of her constituted a hostile work environment. Plaintiff's initial complaint did not allege that plaintiff suffered any other injury or that she no longer worked for defendant.
On April 22, 2014, defendant timely filed an answer to plaintiff's complaint, asserting, inter alia, plaintiff's complaint failed to state a claim upon which relief could be granted and plaintiff's claims were barred by her voluntary resignation from her position. Answer at 6 (paper no. 10).
On June 25, 2014, the court held an initial pretrial conference under Federal Rule of Civil Procedure 16. At the Rule 16 conference, the court asked plaintiff to clarify the alleged adverse employment action, a necessary element for her claims. Plaintiff stated she was alleging constructive discharge and the court issued a written order (paper no. 17) granting plaintiff leave to file an amended complaint alleging injury.
After plaintiff filed her amended complaint (paper no. 18), defendant filed the instant motion seeking dismissal of the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
II. LEGAL STANDARD
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 555 U.S. 544, 570 (2007)).
The Court of Appeals has instructed courts to analyze a complaint in two parts to determine whether it complies with the pleading standard articulated in Twombly and Iqbal. First, the court should divide the allegations in the complaint into factual and legal claims and the court ignore the legal conclusions but should accept the factual allegations as true. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). Second, the court should determine whether the alleged facts construed in the light most favorable to the plaintiff set forth a "plausible claim for relief." Id. at 211.
Plaintiff may prevail on an employment discrimination claim either by presenting "direct evidence" of discrimination or presenting sufficient circumstantial evidence to satisfy the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Price Waterhouse v. Hopkins, 490 U.S. 228, 271-72 (1989) (O'Connor, J., concurring); Ptasznik v. Univ. of Pa., 523 F.Appx. 156, 159 (3d Cir. 2013). Plaintiff is not required to establish she can prove her case of discrimination at the pleadings stage, but she must "put forth [factual] allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element[s]'" of each of her claims. Fowler, 578 F.3d at 213 (citation omitted).
Plaintiff contends defendant's motion is untimely and improper because defendant did not file a motion to dismiss the initial complaint, but responded with an answer, so its motion is barred under Rule 12. In general, a motion to dismiss under Rule 12 should be made before a responsive pleading to the complaint is filed. Fed.R.Civ.P. 12(b). Additionally, certain defenses are waived when a defendant fails to assert them by pre-answer motion or in a responsive pleading. Fed.R.Civ.P. 12(h)(1). Finally, a party having previously submitted a motion to dismiss may not file a subsequent motion to dismiss asserting defenses omitted from the earlier motion if the defense was available when the earlier motion was filed. Fed.R.Civ.P. 12(g)(2).
Plaintiff's arguments are without merit. In the cases cited by plaintiff, only one court refused to address the substance of a Rule 12(b)(6) motion. In CGL, LLC v. Schwab, the court denied the defendant's Rule 12(b)(6) motion to dismiss an amended complaint because the defendant had not included the Rule 12(b)(6) argument with a previously-adjudicated motion to dismiss the initial complaint, so the second motion was procedurally barred under Rule 12(g)(2). No. 11-4593, 2012 WL 4321972, at *3-4 (E.D. Pa. Sept. 21, 2012) (denying without prejudice to raise the arguments in a ...