Jordan Lee v. Arcadia University et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

E.D. Pa.November 28, 2016

243186.1 11/28/2016 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA Edith Elizabeth Jordan Lee, Plaintiff, v. Arcadia University, et al., Defendants. Civil Action No. 16-3534-NIQA DEFENDANT ARCADIA UNIVERSITY’S MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6) Defendant Arcadia University (“Arcadia”) files this Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted, and avers as follows: 1. Plaintiff filed an administrative charge of discrimination against Arcadia on or about July 24, 2015 with the Pennsylvania Human Relations Commission (“PHRC”). Compl. ¶ 4. 2. Plaintiff’s administrative charge raised the following claims: Harassment (Different Treatment) under the Pennsylvania Human Relations Act (“PHRA”) (Count I), Discharge – PHRA (Count II), and Retaliation – PHRA (Count III). A true and correct copy of the administrative charge is attached hereto as Exhibit A.1 3. Plaintiff’s administrative charge did not raise a claim under a disparate impact theory. 1 “The Third Circuit has held that review of documents attached as exhibits to a motion to dismiss is proper where the allegations in the complaint are based on such documents and the plaintiff has failed to attach them to the complaint.” Raines v. Haverford Coll., 849 F. Supp. 1009, 1012 n.1 (E.D. Pa. 1994). Plaintiff did not attach the administrative charge, but there are allegations in the Complaint based on it; therefore, it is attached hereto. See Compl. ¶ 4 (“Plaintiff, Edith Elizabeth Jordan Lee, filed a charge with the Equal Employment Opportunity Commission (EEOC) on or about July 24, 2015 (Charge No. 17F201561233). The charge was dual filed with the Pennsylvania Human Relations Commission (PHRC).”). Case 2:16-cv-03534-NIQA Document 10 Filed 11/28/16 Page 1 of 7 2 243186.1 11/28/2016 4. On April 27, 2016, the PHRC concluded that the “complaint should be dismissed because the facts of the case do not establish that probable cause exists to credit the allegations of unlawful discrimination.” A true and correct copy of the PHRC’s April 27, 2016 letter is attached hereto as Exhibit B. Again, there are allegations in the Complaint based upon this letter but it was not attached to the Complaint. See Compl. ¶ 6. 5. Plaintiff commenced this action by filing a Complaint in this Court on June 28, 2016. 6. Plaintiff’s Complaint asserts the following claims: Race Discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”) – Disparate Treatment (Count I), Race Discrimination under Title VII – Disparate Impact (Count II), Violation of 42 U.S.C. § 1981 (Count III), Defamation (Count IV), Race Discrimination under the PHRA (Count V), and Retaliation under the PHRA (Count VI). 7. Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that a defendant may move to dismiss a claim for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). 8. In deciding a motion to dismiss pursuant to Rule 12(b)(6), courts 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 of the complaint, the plaintiff may be entitled to relief.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (internal quotation and citation omitted). After the Supreme Court’s decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial plausibility when the plaintiff pleads the factual content that allows the court to Case 2:16-cv-03534-NIQA Document 10 Filed 11/28/16 Page 2 of 7 3 243186.1 11/28/2016 draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556). This standard, which applies to all civil cases, “asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. at 678. 9. A plaintiff bringing an employment discrimination suit under Title VII or the PHRA must first exhaust administrative remedies prior to filing an action in federal court. Ishmael v. Sch. Dist. of Philadelphia, No. 15-3081, 2016 WL 5661711, at *3 (E.D. Pa. Sept. 30, 2016) (dismissing a Title VII claim for failing to exhaust administrative remedies, among other deficiencies). Waiver of Disparate Impact Claim 10. For a plaintiff to fulfill the administrative exhaustion requirement with regard to a disparate impact claim, the “charge of discrimination ‘must identify or describe the neutral employment practice which is alleged to disproportionately affect protected employees in order to exhaust disparate impact claims. . . . Otherwise, every assertion of intentional discrimination could be read to imply unintentional discrimination, and all claims of disparate treatment would exhaust claims of disparate impact.’” Ingram v. Vanguard Grp., Inc., No. 14-3674, 2015 WL 4394274 (E.D. Pa. July 17, 2015) (quoting Brown v. Ameriprise Fin. Servs., Inc., 707 F. Supp. 2d 971, 976-77 (D. Minn. 2010)). 11. Plaintiff’s administrative charge did not raise a disparate impact claim. 12. Plaintiff’s administrative charge did not “identify or describe [any] neutral employment practice which is alleged to disproportionately affect protected employees in order to exhaust disparate impact claims” as required by Ingram. 13. Therefore, Plaintiff has not satisfied the administrative exhaustion requirement with respect to Count II (Disparate Impact), and Count II must be dismissed. Case 2:16-cv-03534-NIQA Document 10 Filed 11/28/16 Page 3 of 7 4 243186.1 11/28/2016 Waiver of Both Title VII Claims 14. In addition, the administrative charge did not allege any violation of Title VII, it only alleged violations of the PHRA. See Administrative Charge ¶ 17 (“Based upon the foregoing, I allege that the respondent violated Section 5(a) of the Pennsylvania Human Relations Act 43 P.S. 951-963.”); ¶ 25 (“Based upon the foregoing, I allege that the respondent violated Section 5(a) of the Pennsylvania Human Relations Act 43 P.S. 951-963.”); ¶ 33 (“Based upon the foregoing, I allege that the respondent violated Section 5(d) of the Pennsylvania Human Relations Act 43 P.S. 951-963.”). 15. Therefore, Plaintiff failed to exhaust her remedies with regard to both Title VII claims (Counts I and II), and those claims should be dismissed. Waiver of Count V – Race Discrimination under the PHRA 16. To bring a claim under the PHRA, a plaintiff must file a charge of discrimination with the PHRC within 180 days of the alleged unlawful employment practice. 43 P.S. § 959(h); Ingram, 2015 WL 4394274, at *9. 17. Plaintiff’s employment was terminated on September 2, 2014. Compl. ¶ 24. 18. Attached to the administrative charge was a PHRC Employment Discrimination Questionnaire that Plaintiff completed on February 27, 2015. February 27, 2015 was the 179th day after the termination of Plaintiff’s employment.2 2 Although Plaintiff’s administrative charge was not filed until July 14, 2015, Arcadia acknowledges that Plaintiff’s completion of the Questionnaire equitably tolled the 180 filing requirement on the retaliation claim presented in Count VI of Plaintiff’s Complaint; it did not toll 180 day requirement with respect to Count V. Case 2:16-cv-03534-NIQA Document 10 Filed 11/28/16 Page 4 of 7 5 243186.1 11/28/2016 19. Any allegation regarding anything that occurred prior to September 1, 2014 (180 days prior to Plaintiff’s completion of the Questionnaire) is time-barred with respect to the PHRA. 20. Count V of the Complaint is a vague claim for Race Discrimination under the PHRA. It states that “[t]he egregious nature of Defendant’s illegal misconduct and the extent of Plaintiff’s financial, physical, and emotional injuries and damages justify a recovery of monetary damages for the value of Plaintiff’s claims, and the facts and circumstances of this case entitle Plaintiff to additional damages under state law.” Compl. ¶ 75. 21. Count V is time barred because it relates to the non-retaliatory conduct that allegedly occurred prior to September 1, 2014. Plaintiff began working at Arcadia on January 6, 2014, and almost all of the alleged discrimination that she complains of occurred between January and the termination of her employment. See, e.g., Compl. ¶ 21 (alleging that Plaintiff’s supervisor began a pattern of acts of intimidation “soon after her arrival”). Indeed, none of the complained of events could have occurred on September 1, 2014, because that day was Labor Day and Arcadia was closed. 22. The termination of Plaintiff’s employment is dealt with by Count VI, which is styled “Retaliation under the PHRA.” Count VI alleges that “Plaintiff was discharged because she exercised her right under the law to complain of discrimination.” Compl. ¶ 79. Count VI is an allegation of retaliation that occurred on September 2, 2014, 179 days prior to Plaintiff completing the PHRC Questionnaire. 23. Unlike Count VI, Count V should be dismissed because it relates to conduct that allegedly occurred before September 1, 2014, all of which is time-barred. Case 2:16-cv-03534-NIQA Document 10 Filed 11/28/16 Page 5 of 7 6 243186.1 11/28/2016 WHEREFORE, Defendant Arcadia University respectfully requests that the Court dismiss Counts I, II, and V of Plaintiff’s Complaint. Respectfully submitted, SAUL EWING, LLP Date: November 28, 2016 /s/ Emily H. Edmunds Emily H. Edmunds, Esquire 2 North Second Street, 7th Floor Harrisburg, PA 17101 (717) 257-7576 eedmunds@saul.com James A. Keller, Esquire 1500 Market Street, 38th Floor Philadelphia, PA 19102 (215) 972-1964 jkeller@saul.com Counsel for Arcadia University Case 2:16-cv-03534-NIQA Document 10 Filed 11/28/16 Page 6 of 7 7 243186.1 11/28/2016 CERTIFICATE OF SERVICE I, Emily H. Edmunds, certify that on this date I served a true and correct copy of the foregoing Motion to Dismiss upon the following counsel by United States mail and electronic mail: Brian P. McVan, Esquire McVan & Weidenburner 162 S. Easton Road Glenside, PA 19038 Counsel for Plaintiff Dated: November 28, 2016 _/s/ Emily H. Edmunds_________ Emily H. Edmunds Case 2:16-cv-03534-NIQA Document 10 Filed 11/28/16 Page 7 of 7 243253.1 11/28/2016 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA Edith Elizabeth Jordan Lee, Plaintiff, v. Arcadia University, et al., Defendants. Civil Action No. 16-3534-NIQA DEFENDANT ARCADIA UNIVERSITY’S BRIEF IN SUPPORT OF ITS MOTION TO DISMISS COUNTS I, II, AND V PURSUANT TO FED. R. CIV. P. 12(b)(6) Defendant Arcadia University (“Arcadia”) submits this Brief in Support of its Motion to Dismiss for failure to state a claim upon which relief can be granted. I. INTRODUCTION Arcadia has moved to dismiss Counts I, II, and V of Plaintiff’s Complaint. Counts I and II are both Title VII claims alleging race discrimination. Those claims were not pursued before the Pennsylvania Human Relations Commission (“PHRC”), the agency where Plaintiff chose to pursue her administrative charge of discrimination. Therefore, Plaintiff failed to exhaust her administrative remedies with regard to Counts I and II. Count II should also be dismissed because it asserts a disparate impact claim under Title VII, and no disparate impact claim (either under Title VII or the Pennsylvania Human Relations Act (“PHRA”)) was included in Plaintiff’s administrative charge. Because Plaintiff failed to pursue any disparate impact theory in her administrative charge, she failed to exhaust her administrative remedies with regard to that claim. Count V is a race discrimination claim under the PHRA that relates to conduct that allegedly occurred more than 180 days before Plaintiff submitted a Questionnaire to the PHRC. Therefore, that claim is barred by the PHRA’s requirement that a claim related to alleged discriminatory conduct must be made at least 180 days after the conduct occurred. Count V should be dismissed. Case 2:16-cv-03534-NIQA Document 10-1 Filed 11/28/16 Page 1 of 8 2 243253.1 11/28/2016 II. FACTS Plaintiff was hired as Arcadia’s Associate Vice President for Finance on January 6, 2014. Compl. ¶ 15. She alleges that “soon after her arrival,” her supervisor began a pattern of acts of intimidate and created a hostile work environment. Id. ¶ 21. Plaintiff alleges that she reported “hostile treatment and racial discrimination” to Arcadia’s President and General Counsel on July 18, 2014. Id. ¶ 24. She alleges that she was terminated in retaliation for her complaint on September 2, 2014. Id. ¶ 24. Plaintiff completed a PHRC Employment Discrimination Questionnaire on February 27, 2015. February 27, 2015 was the 179th day after the termination of Plaintiff’s employment. The PHRC stamped the Questionnaire “Received” that same day. The administrative charge of discrimination against Arcadia was filed on or about July 24, 2015 with the PHRC. Compl. ¶ 4. Plaintiff’s administrative charge raised the following claims: Harassment (Different Treatment) – PHRA (Count I), Discharge – PHRA (Count II), and Retaliation – PHRA (Count III). Plaintiff’s administrative charge did not raise a claim under a disparate impact theory. Plaintiff’s administrative charge only pursued claims under the PHRA, and did not assert any claim under Title VII. On April 27, 2016, the PHRC concluded that the “complaint should be dismissed because the facts of the case do not establish that probable cause exists to credit the allegations of unlawful discrimination.” Motion Ex. B. There are allegations in the Complaint based upon this letter, but it was not attached to the Complaint. See Compl. ¶ 6. Plaintiff commenced this action by filing a Complaint in this Court on June 28, 2016. Plaintiff’s Complaint asserts the following claims: Race Discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”) – Disparate Treatment (Count I), Race Discrimination Case 2:16-cv-03534-NIQA Document 10-1 Filed 11/28/16 Page 2 of 8 3 243253.1 11/28/2016 under Title VII – Disparate Impact (Count II), Violation of 42 U.S.C. § 1981 (Count III), Defamation (Count IV), Race Discrimination under the PHRA (Count V), and Retaliation under the PHRA (Count VI). III. ARGUMENT Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that a defendant may move to dismiss a claim for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). In deciding a motion to dismiss pursuant to Rule 12(b)(6), courts 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 of the complaint, the plaintiff may be entitled to relief.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (internal quotation and citation omitted). After the Supreme Court’s decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial plausibility when the plaintiff pleads the factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678 (citing Twombly, 550 U.S. at 556). This standard, which applies to all civil cases, “asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. at 678. A plaintiff bringing an employment discrimination suit under Title VII or the PHRA must first exhaust administrative remedies prior to filing an action in federal court. Ishmael v. Sch. Dist. of Philadelphia, No. 15-3081, 2016 WL 5661711, at *3 (E.D. Pa. Sept. 30, 2016) (dismissing a Title VII claim for failing to exhaust administrative remedies, among other deficiencies). Case 2:16-cv-03534-NIQA Document 10-1 Filed 11/28/16 Page 3 of 8 4 243253.1 11/28/2016 A. Plaintiff Failed to Exhaust Administrative Remedies With Regard to Any Disparate Impact Claim. For a plaintiff to fulfill the administrative exhaustion requirement with regard to a disparate impact claim, the “charge of discrimination ‘must identify or describe the neutral employment practice which is alleged to disproportionately affect protected employees in order to exhaust disparate impact claims. . . . Otherwise, every assertion of intentional discrimination could be read to imply unintentional discrimination, and all claims of disparate treatment would exhaust claims of disparate impact.’” Ingram v. Vanguard Grp., Inc., No. 14-3674, 2015 WL 4394274 (E.D. Pa. July 17, 2015) (quoting Brown v. Ameriprise Fin. Servs., Inc., 707 F. Supp. 2d 971, 976-77 (D. Minn. 2010)). Plaintiff’s administrative charge did not raise a disparate impact claim. Plaintiff’s administrative charge did not “identify or describe [any] neutral employment practice which is alleged to disproportionately affect protected employees in order to exhaust disparate impact claims” as required by Ingram. Plaintiff therefore has not satisfied the administrative exhaustion requirement with respect to Count II (Disparate Impact), and Count II must be dismissed. B. Plaintiff Failed to Exhaust Administrative Remedies With Regard to Both Title VII Claims. The administrative charge did not allege any violation of Title VII, it only alleged violations of the PHRA. See Administrative Charge ¶ 17 (“Based upon the foregoing, I allege that the respondent violated Section 5(a) of the Pennsylvania Human Relations Act 43 P.S. 951- 963.”); ¶ 25 (“Based upon the foregoing, I allege that the respondent violated Section 5(a) of the Pennsylvania Human Relations Act 43 P.S. 951-963.”); ¶ 33 (“Based upon the foregoing, I allege that the respondent violated Section 5(d) of the Pennsylvania Human Relations Act 43 P.S. 951-963.”). The administrative charges makes no reference at all to Title VII. Therefore, Case 2:16-cv-03534-NIQA Document 10-1 Filed 11/28/16 Page 4 of 8 5 243253.1 11/28/2016 Plaintiff failed to exhaust her remedies with regard to both Title VII claims (Counts I and II), and those claims should be dismissed. C. Count V, a Race Discrimination Claim under the PHRA Related to Conduct the Allegedly Occurred Prior to September 2, 2014, is Time Barred. To bring a claim under the PHRA, a plaintiff must file a charge of discrimination with the PHRC within 180 days of the alleged unlawful employment practice. 43 P.S. § 959(h); Ingram, 2015 WL 4394274, at *9. Plaintiff’s employment was terminated on September 2, 2014. Compl. ¶ 24. Attached to the administrative charge was a PHRC Employment Discrimination Questionnaire that Plaintiff completed on February 27, 2015. February 27, 2015 was the 179th day after the termination of Plaintiff’s employment.1 Any allegation regarding anything that occurred prior to September 1, 2014 (180 days prior to Plaintiff’s completion of the Questionnaire) is time-barred with respect to the PHRA claim. September 1, 2014 was Labor Day and Arcadia was closed that day. Practically speaking, that means that the only PHRA-related issues that were preserved by Plaintiff when she completed the Questionnaire on the 179th day following her termination were issues related to events that took place on September 2, 2014 or later. Count V of the Complaint is a vague claim for Race Discrimination under the PHRA. It states “[t]he egregious nature of Defendant’s illegal misconduct and the extent of Plaintiff’s financial, physical, and emotional injuries and damages justify a recovery of monetary damages 1 Although Plaintiff’s administrative charge was not filed until July 14, 2015, Arcadia acknowledges that Plaintiff’s completion of the Questionnaire equitably tolled the 180 filing requirement on the retaliation claim presented in Count VI of Plaintiff’s Complaint; it did not toll the 180 day requirement with respect to Count V because that claim was not timely raised before the PHRC. Case 2:16-cv-03534-NIQA Document 10-1 Filed 11/28/16 Page 5 of 8 6 243253.1 11/28/2016 for the value of Plaintiff’s claims, and the facts and circumstances of this case entitle Plaintiff to additional damages under state law.” Compl. ¶ 75. Count V is time barred because it relates to alleged non-retaliatory conduct that occurred prior to September 1, 2014. Plaintiff began working at Arcadia on January 6, 2014, and she alleges that discrimination started to occur soon thereafter. See, e.g., Compl. ¶ 21 (alleging that Plaintiff’s supervisor began a pattern of acts of intimidation “soon after her arrival”). The termination of Plaintiff’s employment is dealt with by Count VI, which is styled “Retaliation under the PHRA.” Count VI alleges that “Plaintiff was discharged because she exercised her right under the law to complain of discrimination.” Compl. ¶ 79. Count VI is an allegation of retaliation that occurred on September 2, 2014, 179 days prior to Plaintiff completing the PHRC Questionnaire. Count V should be dismissed because it solely relates to conduct that allegedly occurred before September 1, 2014, all of which is time-barred for the purposes of the PHRA. Case 2:16-cv-03534-NIQA Document 10-1 Filed 11/28/16 Page 6 of 8 7 243253.1 11/28/2016 IV. CONCLUSION For the foregoing reasons, Defendant Arcadia University respectfully requests that the Court dismiss Counts I, II, and V of Plaintiff’s Complaint. Respectfully submitted, SAUL EWING, LLP Date: November 28, 2016 /s/ Emily H. Edmunds Emily H. Edmunds, Esquire 2 North Second Street, 7th Floor Harrisburg, PA 17101 (717) 257-7576 eedmunds@saul.com James A. Keller, Esquire 1500 Market Street, 38th Floor Philadelphia, PA 19102 (215) 972-1964 jkeller@saul.com Counsel for Arcadia University Case 2:16-cv-03534-NIQA Document 10-1 Filed 11/28/16 Page 7 of 8 8 243253.1 11/28/2016 CERTIFICATE OF SERVICE I, Emily H. Edmunds, certify that on this date I served a true and correct copy of the foregoing Motion to Dismiss upon the following counsel by United States mail and electronic mail: Brian P. McVan, Esquire McVan & Weidenburner 162 S. Easton Road Glenside, PA 19038 Counsel for Plaintiff Dated: November 28, 2016 _/s/ Emily H. Edmunds_________ Emily H. Edmunds Case 2:16-cv-03534-NIQA Document 10-1 Filed 11/28/16 Page 8 of 8 Case 2:16-cv-03534-NIQA Document 10-2 Filed 11/28/16 Page 1 of 2 Case 2:16-cv-03534-NIQA Document 10-2 Filed 11/28/16 Page 2 of 2 Case 2:16-cv-03534-NIQA Document 10-3 Filed 11/28/16 Page 1 of 17 Case 2:16-cv-03534-NIQA Document 10-3 Filed 11/28/16 Page 2 of 17 Case 2:16-cv-03534-NIQA Document 10-3 Filed 11/28/16 Page 3 of 17 Case 2:16-cv-03534-NIQA Document 10-3 Filed 11/28/16 Page 4 of 17 Case 2:16-cv-03534-NIQA Document 10-3 Filed 11/28/16 Page 5 of 17 Case 2:16-cv-03534-NIQA Document 10-3 Filed 11/28/16 Page 6 of 17 Case 2:16-cv-03534-NIQA Document 10-3 Filed 11/28/16 Page 7 of 17 Case 2:16-cv-03534-NIQA Document 10-3 Filed 11/28/16 Page 8 of 17 Case 2:16-cv-03534-NIQA Document 10-3 Filed 11/28/16 Page 9 of 17 Case 2:16-cv-03534-NIQA Document 10-3 Filed 11/28/16 Page 10 of 17 Case 2:16-cv-03534-NIQA Document 10-3 Filed 11/28/16 Page 11 of 17 Case 2:16-cv-03534-NIQA Document 10-3 Filed 11/28/16 Page 12 of 17 Case 2:16-cv-03534-NIQA Document 10-3 Filed 11/28/16 Page 13 of 17 Case 2:16-cv-03534-NIQA Document 10-3 Filed 11/28/16 Page 14 of 17 Case 2:16-cv-03534-NIQA Document 10-3 Filed 11/28/16 Page 15 of 17 Case 2:16-cv-03534-NIQA Document 10-3 Filed 11/28/16 Page 16 of 17 Case 2:16-cv-03534-NIQA Document 10-3 Filed 11/28/16 Page 17 of 17 243727.1 11/28/2016 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA Edith Elizabeth Jordan Lee, Plaintiff, v. Arcadia University, et al., Defendants. Civil Action No. 16-3534-NIQA ORDER AND NOW, this ______________ day of __________________, 201__, upon consideration of Arcadia’s University’s Motion to Dismiss, Brief in Support, and any response thereto, it is hereby ORDERED that the Motion is GRANTED. Counts I, II, and V are DISMISSED WITH PREJUDICE. Arcadia University shall Answer the remaining Counts of the Complaint within the time provided by the Federal Rules of Civil Procedure. BY THE COURT: The Honorable Nitza I. Quiñones Alejandro Case 2:16-cv-03534-NIQA Document 10-4 Filed 11/28/16 Page 1 of 1