United States District Court, M.D. Pennsylvania
ROBERT D. MARIANI, District Judge.
On June 18, 2013, Plaintiff, Leo James, Jr., filed a Complaint against Defendant, Tri-Way M workers, Inc. (Doc. 1). Prior to the filing of this claim, Plaintiff timely filed a Charge of Employment Discrimination with the Equal Employment Opportunity Commission ("EEOC") and the Pennsylvania Human Relations Commission ("PHRC") against Tri-Way M workers. (Doc. 1, at ¶ 4). The EEOC issued a Notice of Right to Sue, and Plaintiff filed the present action within 90 days of receipt of the Notice. ( Id. ).
The Complaint alleges that Defendants deprived Plaintiff of employment in whole or in part because of his race in violation of 42 U.S.C. § 1981 (Count I); conspired against Plaintiff in violation of 42 U.S.C. § 1985 (Count II); engaged in unlawful practices protected under Title VII of the Civil Rights Act of 1964 and 1991, as amended, and 42 U.S.C. § 2000e, et seq., and r iated against Plaintiff for exercising his rights under Title VII (Counts III, IV, VII); fostered and perpetuated a hostile and offensive work environment and r iated against Plaintiff because of his expressed opposition to these conditions in violation of 43 Pa.Cons.Stat.Ann. § 951, et seq. (Count VI); and subjected Plaintiff to Intentional Infliction of Emotional Distress (Count VIII). Plaintiff also requests declaratory judgment pursuant to 28 U.S.C. § 2201, et seq. (Count V); and Punitive Damages (Count IX).
On October 22, 2013, Defendant filed a Motion to Dismiss Portions of Plaintiffs Complaint. (Doc. 11). Plaintiff did not concur in the motion, but failed to file any brief in opposition. Consequently, on August 18, 2014, the Court ordered that "in accordance with Local Rule 7.6 that any party opposing any motion, other than a motion for summary judgment, who fails to file a brief in opposition within 14 days after service of the movant's brief shall be deemed not to oppose such motion', the plaintiff must "show cause why Defendant's Motion to Dismiss Portions of Plaintiffs Complaint (Doc. 11) should not be deemed unopposed." (Doc. 16). Plaintiff failed to comply with the Court's Order. As a result, Defendant's motion is ripe for decision. For the reasons set forth below, the Court will grant in part and deny in part Defendant's motion.
II. FACTUAL ALLEGATIONS
Plaintiffs Complaint makes the following allegations:
James, an African American, was hired by Tri-Way M workers as a laborer on May 9, 2006. (Doc. 1, ¶¶ 18, 20). During his employment with Defendant, he "was verbally harassed by a co-worker and/or employees of the Defendant... on a regular basis." ( Id. at ¶ 21). The co-worker, Dennis Hower, referred to James "as the n-word' or boy". ( Id. at ¶¶ 22, 28). On numerous occasions, Plaintiff reported these comments to management, specifically John Martino, vice-president of Tri-Way M workers. ( Id. at ¶ 23). Defendant failed to take corrective action or protect Plaintiff from Tri-Way M worker's employees and/or officers, causing James to continue to work "in this hostile work environment and continu[e] to oppose and report the hostile work environment." ( Id. at ¶¶ 29, 31). James' supervisors "created not only a hostile work environment for Plaintiff' at work, but "also created a pattern of undermining Plaintiffs]... duties in performing his job duties." (Doc. 1, ¶ 33). While James "attempted to work through the harassment and hostile work environment[, scrutiny of Plaintiff.. intensified as a result of his reporting the illegal actions of the Defendant." ( Id. at ¶ 36).
James was discharged from his employment on or about April 27, 2007, allegedly because he failed to "punch out' for lunch"; however "other Caucasian employees were not required to do so and were not reprimanded and/or discharged from their employment." (Doc. 1, ¶¶ 21, 24). Instead, Plaintiff alleges that he was "continuously harassed and eventually discharged from his employment because of his race as an African American" ( Id. at ¶ 25), and in r iation for
reporting and opposing the hostile work environment; racial, color, religion, ancestry and/or national origin harassment and racial, color, religion, ancestry and/or national origin discrimination; religious harassment and religious discrimination; national origin harassment and national origin discrimination to which he was exposed.
( Id. at ¶ 16).
Ill. STANDARD OF REVIEW
A complaint must be dismissed under FED. R. CIV. P. 12(b)(6), if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell All. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The plaintiff must aver "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. lqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).
"Though a complaint does not need detailed factual allegations, ... a formulaic recitation of the elements of a cause of action will not do." DelRio-Mocci v. Connolly Prop. Inc., 672 F.3d 241, 245 (3d Cir. 2012) (citing Twombly, 550 U.S. at 555). In other words, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013) (internal citations and quotation marks omitted). A court "take[s] as true all the factual allegations in the Complaint and the reasonable inferences that can be drawn from those facts, but... disregard[s] legal conclusions and threadbare recitals of the elements of a cause of ...