The opinion of the court was delivered by: Simandle, District Judge
This matter is before the Court on a motion filed by the Attorney General of New Jersey on behalf of all Defendants to dismiss Plaintiff's amended complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), Fed. R. Civ. P., and for failure to state a claim pursuant to Rule 12(b)(6), Fed. R. Civ. P. [Docket Item 34.] THE COURT FINDS AS FOLLOWS: 1. On March 19, 2010, Plaintiff filed a motion to amend his Complaint. [Docket Item 30.] Defendants did not object to this amendment, and on March 29, 2010, Magistrate Judge Schneider granted Plaintiff's motion. [Docket Item 31.]
2. The Amended Complaint's statement of facts reads in full: "Defendants hired and fired plaintiff on the very same day, without cause and by circumventing proper procedures regarding employee terminations, defendants violated equal pay act by not paying plaintiff the $11.00 per hr that was required, defendants discriminated against plaintiff because of his age and race thus violating plaintiffs [sic] rights." (Mot. to Amend Compl. 2.) The Plaintiff sought relief under the Age Discrimination in Employment Act (ADEA), the Equal Pay Act (EPA), and "Civil Rights act." Based on the parties' filings and because the factual allegations are related to employment, the Court understands the Amended Complaint to be referring to Title VII of the Civil Rights Act of 1964.
3. On May 3, 2010, Defendants New Jersey Department of Personnel, Cindy Leese, Robert Saulstein, Veterans Haven, and Leanne McCloskey filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), arguing, among other things, that Plaintiff failed to present his claims to the Equal Employment Opportunity Commission (EEOC) as required for Title VII and ADEA claims. [Docket Item 34.] Plaintiff and Defendants have exchanged briefs and the Court will now decide Defendants' motion.*fn1
4. Defendants' argument that Plaintiff failed to exhaust all administrative remedies as required for his Title VII and ADEA claims is not a jurisdictional issue. Ruehl v. Viacom, Inc., 500 F.3d 375, 384 (3d Cir. 2007) (concerning ADEA); Robinson v. Dalton, 107 F.3d 1018, 1021 (3d Cir. 1997) (citing Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 392-98 (1982) (concerning Title VII)). Therefore, the proper grounds to bring a motion to dismiss for failure to exhaust is under Rule 12(b)(6) rather than Rule 12(b)(1). Robinson, 107 F.3d at 1021-22.
5. "In deciding motions to dismiss pursuant to Rule 12(b)(6), courts generally consider only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim." Lum v. Bank of America, 361 F.3d 217, 222 n.3 (3d Cir. 2004) (citations omitted). A court must "determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.' In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to 'show' such as entitlement with its facts." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citations omitted).
6. The "prerequisites to a suit under Title VII are the filing of charges with the EEOC and the receipt of the Commission's statutory notice of the right to sue." Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398 (3d Cir. 1976). Likewise, the ADEA states: "No civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission." 29 U.S.C. § 626(d). While Title VII and the ADEA address different types of discrimination, "when there is no material difference in the question being addressed," case law addressing these statutes may be used interchangeably. Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 157 (3d Cir. 1995). "A complaint does not state a claim upon which relief may be granted unless it asserts the satisfaction of the precondition to suit specified by Title VII: prior submission of the claim to the EEOC for conciliation or resolution." Robinson v. Dalton, 107 F.3d 1018, 1022 (3d Cir. 1997) (quoting Hornsby v. United States Postal Serv., 787 F.2d 87, 90 (3d Cir. 1986)). The absence of some showing of administrative exhaustion or a reason to toll or waive the prerequisite can lead to dismissal. See e.g. Barnes v. Rozman, 107 F. App'x 273, 274-75 (3d Cir. 2004) (affirming dismissal of Title VII claims).
7. Plaintiff's complaint does not assert that his ADEA or Title VII claims have been administratively exhausted; specifically, he does not allege that he presented his claims to the EEOC or received notice of his right to sue.*fn2 Plaintiff has also failed to give any reason in his Complaint that would justify waiving the prerequisite, so Defendants' motion to dismiss for failure to state a claim will be granted.
8. Unlike ADEA or Title VII claims, Equal Pay Act (EPA) claims do not have to be filed with the EEOC. Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618, 640 (2007), superceded by statute on other grounds as stated in Mikula v. Allegheny County of Pa., 583 F.3d 181, 184 (3d Cir. 2009) ("[T]he EPA does not require the filing of a charge with the EEOC or proof of intentional discrimination."). To state a prima facie case for unequal pay, a plaintiff must show he or she and a member of the opposite gender "(1) worked in the same establishment; (2) received unequal wages; (3) for work that was equal in terms of skill, effort, and responsibility; and (4) that was performed under similar working conditions." Tillman v. Pepsi Bottling Group, Inc., 538 F. Supp. 2d 754, 773 (D. Del. 2008).
9. In Plaintiff's Amended Complaint he does not allege that a female co-worker received greater wages for similar work, so this Equal Pay Act claim will be dismissed for failure to state a claim.*fn3
10. In sum, Defendants' motion to dismiss will be granted under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. The accompanying order shall be entered.
JEROME B. SIMANDLE United States ...