THOMAS O'NEILL, Senior District Judge
I. INTRODUCTION
In his second amended complaint, plaintiff Nathaniel Harley, formerly a Philadelphia police officer, alleges that defendants, the City of Philadelphia, Captain Daniel Castro and Captain Michael Weaver, violated § 2000e-3(a) of Title VII of the Civil Rights Act of 1964, the First and Fourteenth Amendments of the United States Constitution, and the Pennsylvania Human Relations Act, 43 Pa. C.S.A. § 951, et seq. Harley contends that he was subject to harassment and retaliation when he spoke out about certain acts by the defendants.
By order of July 24, 2003, I dismissed Count I and II of plaintiff s first amended complaint, including plaintiffs claims of speech retaliation under the First and Fourteenth Amendments, plaintiffs due process claims under the Fourteenth Amendment, and any punitive damages claims against the city. Plaintiff filed the second amended complaint on August 6, 2003. Presently before me is defendants' Rule 12(b)(6) partial motion to dismiss plaintiffs second amended complaint. For the reasons stated below I will deny the motion as to as to Count II and as to plaintiff's claim of First Amendment violations under Section 1983 in Counts I and in. I will grant the motion as to plaintiff's Fourteenth Amendment Due Process claim.
II. BACKGROUND
In July 1997, defendant Weaver, who was then a Lieutenant in the police department's Internal Affairs Division, visited plaintiffs home while attempting to serve him with notice of an approaching Internal Affairs Division interview. When plaintiff's nephew answered the door, Weaver allegedly flashed his weapon in violation of police department policy. At the time, plaintiff was on an extended medical leave of absence from his position as a Philadelphia police officer.
Throughout 1997 and 1998, Harley provided information and sworn statements to the Acting Executive Director of the Police Advisory Commission (PAC) regarding alleged discriminatory practices at the 39th District. Plaintiff does not specifically allege that this information or these statements included Weaver's alleged misconduct at his home. PAC announced its findings regarding the complaints of plaintiff and other minority officers in the 39th District in April of 2000. In its findings, it discussed the "gun flash" incident as one of several wrongful acts exhibited against plaintiff and his family.
The Philadelphia Daily News subsequently published a newspaper article on April 5, 2000 regarding the incident with plaintiff's nephew and defendant Weaver citing the PAC report as a source. The article reflected unfavorably on Weaver. Plaintiff contends that after the article was published defendants harassed him and retaliated against him by pursuing disciplinary charges against him pertaining to unrelated incidents.
III. STANDARD FOR RULE 12(b)(6)
A Rule 12(b)(6) motion to dismiss examines the sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45 (1957). In determining the sufficiency of the complaint I must accept all the plaintiffs well-pleaded factual allegations as true and draw all reasonable inferences therefrom. Graves v. Lowery, 117 F.3d 723, 726 (3d Cir. 1997).
The Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is "a short and plain statement of the claim" that will give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests.
Id.,
quoting Conley,
355 U.S. at 47. I will not inquire as to whether the plaintiff will ultimately prevail, but only whether he is entitled to offer evidence to support his claims.
See Oatway v. Am. Int'l Group. Inc.,
325 F.3d 184, 187 (3d Cir. 2003). "Thus, [I will] not grant a motion to dismiss `unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief"
Graves,
117 F.3d at 726,
quoting. Conley,
355 U.S. at 45-46.
IV. COUNT II: NOTICE OF RIGHT TO SUE
Plaintiff has sufficiently established that he received notice of his right to sue from the Equal Opportunity Employment Commission (EEOC) to withstand a motion to dismiss his title VII claim. Defendants argue plaintiffs discrimination claim must be dismissed because plaintiff did not produce a right-to-sue letter from the EEOC corresponding to the administrative charge underlying Count II of the complaint. An aggrieved party must file a charge of discrimination with the EEOC and must obtain notice from the EEOC of his right to sue in federal court before he may initiate an action under Title VII of the Civil Rights Act of 1964 ( 42 U.S.C. § 2000e et seq.). See 42 U.S.C. § 2000e-5(f)(1):Ebbert v. Daimler Chrysler Corp., 319 F.3d 103. 108 (3d Cir. 2003); Burgh v. Borough Council of Montrose, 251 F.3d 465, 470 (3d Cir. 2001); Gokav v. Pennridee Sch. Dist., No. 02-8482, 2003 WL 21250656, at *3 (E.D. Pa. Feb 28, 2003). Once the EEOC has provided the aggrieved party with notice of his right to sue, he has ninety days to commence a federal court action. 42 U.S.C. § 2000e-5(f)(1). Notice need not be given in the form of a written right-to-sue letter. See Ebbert, 319 F.3d at 116 ("Because the statute does not say that notice must be in writing, we hold that oral notice can suffice to start the 90-day period."). There must be proof however, that plaintiff knew when the 90-day statute of limitations period would start. Id.
Plaintiff filed a charge with the EEOC alleging race and retaliation discrimination on May 26, 2000 and filed a complaint with the Pennsylvania Human Relations Commission (PHRC) on the same date. In paragraphs 4 and 5 of the second amended complaint, plaintiff states that the EEOC issued a letter to the plaintiff indicating his right to institute suit and that he received this letter from the U.S. Department of Justice. Although plaintiff does not provide a copy of this letter or state when it was received, at this stage of the case, I must accept all the plaintiffs well-pleaded factual allegations as true and therefore this allegation is sufficient to establish he received notice of his right to sue from the EEOC. Therefore Count II will not be dismissed for plaintiffs failure to attach an EEOC right-to-sue letter.
V. COUNT II: STATUTE OF LIMITATIONS
Plaintiff has sufficiently alleged events of Title VII retaliation within the statute of limitations period to withstand a motion to dismiss Count II of the second amended complaint. Defendant argues that Count n alleges incidents of discrimination beyond the statute of limitations and that any allegations pertaining to retaliatory behavior prior to July 26, 1999 should be stricken from the complaint. Title VII plaintiffs who file claims in deferral states such as Pennsylvania, where a state agency is authorized to grant relief for federally prohibited employment discrimination, must submit their administrative discrimination charge within 300 days of the challenged employment action. See 42 U.S.C. § 2000e-5(e)(1); 43 Pa. Cons. Stat. §§ 955(a), 959; Watson v. Eastman Kodak Co., 235 F.3d 851, 854 (3d Cir. 2000).
As noted above, plaintiff filed his Title VII charge on May 26, 2000. Accordingly, only those incidents occurring within the 300 days prior to May 26, 2000 (events after July 26, 1999) are within the applicable statute of limitations period for a Title VH claim. In the second amended complaint, plaintiff asserts that he "was ordered to appear before the Police Board of Inquiry to face disciplinary charges regarding [incidents allegedly occurring over a four year period prior to the 1997 "gun flash" incident] on several occasions immediately following the newspaper article." (Pls. Sec. Am. Compl. ¶ 23) As the Daily News article was published on April 5, 2000, within the 300 day period, plaintiff has sufficiently alleged retaliation within the limitations period to withstand a motion to dismiss his Title VII retaliation claim.
Defendant asserts that most incidents of alleged harassment occurred prior to July 26, 1999 and that any claims arising from such events should be dismissed as untimely. Any incidents of retaliatory discrimination alleged to have taken place before July 26, 1999 are not relevant to Count II of plaintiff s claim and will not be considered in determining the merits of his case.
VI. COUNTS I AND III: PROTECTED SPEECH AND STATUTE OF LIMITATIONS
Counts I and III of the second amended complaint also seek relief under 42 U.S.C. § 1983 for a violation of plaintiff s First Amendment right to free speech. Plaintiff has sufficiently alleged participation in a protected activity to withstand a motion to dismiss his First Amendment claim. In order to state a claim for unlawful retaliation under the First Amendment and Section 1983 he must preliminarily show that he engaged in a protected activity. See Swartzwelder v. McNeilly, 297 F.3d 228, 235 (3d Cir. 2002); Baldassare v. State of New Jersey, 250 F.3d 188, 194-95 (3d Cir. 2001). Plaintiff alleges that the comments he made to the PAC in 1997 and 1998 were protected speech on a matter of public concern — the Philadelphia Police Department's allegedly wrongful practices at the 39th District. At this point, it does not appear beyond a doubt that the plaintiff can prove no set of facts in support of his claim that his comments to the PAC constituted a protected activity.
The Court of Appeals has explained the framework for asserting a First Amendment retaliation claim for public employees:
A public employee's retaliation claim for engaging in protected activity must be evaluated under a three-step process. First, plaintiff must establish the activity in question was protected. For this purpose, the speech must involve a matter of public concern. Once this threshold is met, plaintiff must demonstrate his interest in the speech outweighs the state's countervailing interest as an employer in promoting the efficiency of the public services it provides through its employees.
If these criteria are established, plaintiff must then show the protected activity was a substantial or motivating factor in the alleged retaliatory action. Lastly, the public employer can rebut the claim by demonstrating "it would have reached the same decision . . . even in the absence of the protected conduct."
Baldassare, 250 F.3d at 194-95 (citations omitted).
Defendants argue plaintiff did not engage in any protected speech because his statements were made outside of the applicable statute of limitations and therefore cannot form the basis of a First Amendment retaliation claim. However, plaintiff has sufficiently alleged that Counts I and III of the second amended complaint are not time barred. In Pennsylvania, the statute of limitations for claims brought pursuant to 42 U.S.C. § 1983 is two years. Dibenedetto v. City of Reading, 96-CV-5055, 1998 WL 474145, at *7 (E.D. Pa. July 16, 1998); 42 Pa. C.S. § 5524(7) (2003). Federal law dictates when a Section 1983 action accrues although state law sets the applicable limitations period. Montgomery v. De Simone, 159 F.3d 120, 126 (3d Cir. 1998). Under federal law "the limitations period begins to run from the time when the plaintiff knows or has reason to know of the injury which is the basis of the Section 1983 action" Id., quoting Genty v. RTC, 937 F.2d 899, 919 (3d Cir. 1991). In the instant case, plaintiff filed his complaint on December 10, 2001, so unless he can identify good cause for tolling of the statute his claims under § 1983 for causes of action arising before December 10, 1999 are barred by the statute of limitations.
According to the second amended complaint, plaintiff testified before the PAC in late 1997 and early 1998. He also asserts that "after [defendants Weaver and Castro] became commanding officers . . . [they] began seeking discipline of plaintiff." (Pls. Sec. Am. Compl. ¶ 22). Weaver became a commanding officer in 1997 shortly after the gun flash incident, and Castro's promotion to captain was in Spring 1999. Defendants argue that plaintiff therefore knew his rights were being violated in Spring of 1999 at the latest, and that his § 1983 claim is thus time barred.
Plaintiff argues that the events prior to December 10, 1999 may be considered even though they fall outside of the limitations period because they are part of a "continuing violation." The continuing violation doctrine "originated in the context of Title VII claims to permit employees or ex-employees to assert a claim for discriminatory acts which pre-date the limitations period on the theory that such acts constituted a pattern of discriminatory treatment which became apparent only in light of ensuing developments."Smith v. Holtz, 856 F. Supp. 227, 233 (M.D. Pa. 1994). To establish that a claim falls within the continuing violations doctrine, plaintiff must demonstrate that at least one act occurred within the filing period and that the harassment is more than the occurrence of isolated or sporadic acts of intentional discrimination. West v. Philadelphia Elec. Co., 45 F.3d 744, 754-55; Vinson v. Seven Seventeen HB Phila. Corp., Civ. A. 00-6334, 2001 WL 1774073 at *11 (E.D. Pa., Oct 31, 2001).
In the second amended complaint, plaintiff alleges at least one Section 1983 violation within the filing period. Plaintiff received notices from defendants of their intent to take disciplinary action in April of 2000, just after the Daily News article was published and defendants' became aware of his statements to the PAC. (Pls. Sec. Am. Compl. ¶ 21) He thereafter went before the Police Board of Inquiry on the disciplinary charges brought by defendants. On its own, this allegation is sufficient for plaintiffs claim to fall within the statute of limitations so as to withstand a motion to dismiss. Further, because it does not appear "beyond a doubt that the plaintiff can prove no set of facts in support of his claim" that defendants' alleged discriminatory behavior was part of an ongoing practice or pattern I will not dismiss the allegations of events occurring prior to December 10, 1999. Graves, 117 F.3d at 726, quoting Conley, 355 U.S. at 45-46. Plaintiff may be able to establish a continuing violation. Therefore Counts I and in of the second amended complaint are not time barred and I will deny the motion to dismiss with respect to plaintiffs claim of First Amendment violations under Section 1983.
VII. COUNTS I AND III: FOURTEENTH AMENDMENT DUE PROCESS CLAIMS
By Order of July 24, 2003, I dismissed plaintiffs Fourteenth Amendment Due Process claims. In counts I and in of the second amended complaint, paragraphs 29 and 44, plaintiff alleges that defendants `Violated rights secured . . . pursuant to the First and Fourteenth Amendments" and defendants "failed to provide due process." Plaintiff has not, however, alleged an equal protection violation in the second amended complaint. Therefore, pursuant to my Order of July 24, 2003, all references to Fourteenth Amendment violations in plaintiffs second amended complaint are stricken and plaintiffs Fourteenth Amendment claim is dismissed.
ORDER
AND NOW, this day of November 2003, after considering defendants' motion to dismiss and the plaintiffs response thereto, and for the reasons set forth in the accompanying memorandum, it is hereby ORDERED that defendants' motion is GRANTED IN PART and DENIED IN PART. Accordingly:
1) the Morion is DENIED as to Count II of the second amended complaint;
2) the Motion is DENIED as to plaintiffs claim of First Amendment violations under Section 1983 in Counts I and in of the second amended complaint;
3) the Motion is GRANTED as to plaintiffs Fourteenth Amendment claim and the Fourteenth Amendment claim is hereby DISMISSED with prejudice.