This Motion for Judgment on the Pleadings is brought by Defendants Atwork Corporation and Kate Nell against Plaintiff, James Rogers. For the reasons that follow, the Motion is DENIED.
In June, 1993, Rogers, a Pennsylvania citizen, applied for a position as a sales consultant with Atwork, a Massachusetts corporation with a branch office in Pennsylvania. Nell, a Massachusetts citizen, is Atwork's Regional Sales Manager. In August, 1993, Nell traveled to Philadelphia to interview Rogers, at which time she allegedly told him that he would not be hired because he was too old. Rogers was 47 at the time.
In October, 1993, Rogers filed a Charge of Age Discrimination with the Equal Employment Opportunity Commission's Philadelphia office (EEOC). The Philadelphia office transferred the charge to the EEOC's Boston office in December, 1993. That same month, Boston EEOC transmitted the matter to the Massachusetts Commission Against Discrimination (MCAD). Pursuant to a work-sharing agreement with MCAD, the EEOC conducted the initial investigation of Rogers' claim. The present action is brought under the Age Discrimination in Employment Act (ADEA), 29 U.S.C.A. §§ 621-34 (1985).
In this Motion, Defendants seek Judgment on the Pleadings under Federal Rule of Civil Procedure 12(c). This rule gives District Courts the power to enter judgment based solely on the pleadings. In order to grant a motion for judgment on the pleadings, it must be apparent that there are no issues of material fact and that only questions of law exist. Britamco Underwriters v. CJH Inc., 845 F. Supp. 1090, 1092 (E.D. Pa. 1994); Cardio-Medical Assoc. v. Crozer-Chester Medical Ctr., 536 F. Supp. 1065 (E.D. Pa. 1982); 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure, § 1367 at 509-10 (1990). When a party raises matters that could have been raised in a 12(b) motion, a court may treat the motion as if it were a 12(b) motion. So, for example, "if a party raises an issue of subject matter jurisdiction on his motion for a judgment on the pleadings, the court will treat the motion as if it had been brought under Rule 12(b)(1)."
Wright & Miller, supra, § 1367 at 516.
Defendants assert three separate grounds to support their Motion. First, they assert that Rogers has not fulfilled his jurisdictional prerequisites under the ADEA because he has not filed his claim with the Pennsylvania Human Relations Commission (PHRC), as required under § 633(b) of the ADEA. Second, they assert that this Court does not have personal jurisdiction over Nell. Third, they assert that Nell has no liability under the ADEA in her individual capacity, but only in an official capacity. We address the last two contentions first.
A. Personal Jurisdiction over Nell
There are two types of personal jurisdiction. First is specific jurisdiction, which is based on whether a defendant "purposefully established minimum contacts within the forum state, . . . . such that it could reasonably anticipate being haled into court there." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 476, 85 L. Ed. 2d 528, 105 S. Ct. 2174 (1985); (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 62 L. Ed. 2d 490, 100 S. Ct. 559 (1980)); Violanti v. Emery Worldwide A-CF Co., 847 F. Supp. 1251, 1255 (M.D. Pa. 1994). Second is general jurisdiction, which exists when "'there are sufficient contacts to justify an assertion of "personal jurisdiction over a defendant in a suit not arising out of or related to the defendant's contacts with the forum"'" Violanti, 847 F. Supp. at 1255 (quoting Covenant Bank for Sav. v. Cohen, 806 F. Supp. 52, 55 (D.N.J. 1992) (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.9, 80 L. Ed. 2d 404, 104 S. Ct. 1868 (1984))).
Defendants assert that this Court does not have personal jurisdiction over Nell because she has limited contacts with the forum. It cites Violanti, claiming that the case addresses this "exact issue in the context of an age discrimination suit." Defendant's Brief at 7. Violanti, however, is inapposite to this case. There, plaintiff did not allege either specific or general jurisdiction. He did not show any contacts of defendants with the forum apart from his receipt of one letter and two telephone calls in Pennsylvania. In contrast, Plaintiff's Complaint alleges that Nell traveled to Philadelphia to interview Rogers and allegedly made the discriminatory statements in Philadelphia. We hold, in these circumstances, that this Court has specific jurisdiction over Nell.
B. Individual Liability under the ADEA
Defendants allege that the claims against Nell must be dismissed because employees or agents of a violating employer cannot be sued in their individual capacity under the ADEA. Violanti, 847 F. Supp. at 1236; Crawford v. West Jersey Health Sys., 847 F. Supp. 1232, 1237 (D.N.J. 1994).
We note that there is a split among district courts concerning this issue. Violanti, 847 F. Supp. at 1236. We do not need to address this split, however, because we find that Nell is not being sued in her individual capacity.
The Complaint does not specifically state that Nell is being sued individually. It refers to her as an agent of Atwork (Complaint PP 8, 15), and all references to her are within the context of her position as Regional Sales Manager for Atwork. Complaint PP 17-20, 22-26. Moreover, in Plaintiff's Brief, Rogers argues that Nell is being sued in her official capacity.
The Brief states, "the Complaint alleges that defendant Nell was the decision-maker for Atwork. As such, she was sued in her official capacity as an agent under 29 U.S.C. § 630(b)." Plaintiff's Brief at 17.
We find that Nell is being sued in her official capacity, which all courts recognize is permissible under the ADEA. Crawford, 847 F. Supp. at 1236. Accordingly, we do not dismiss the complaint against Nell on this ground.
C. Statutory Requirements
The ADEA states that a plaintiff may not file a civil action under the ADEA for:
60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission. Such a charge shall be filed -- * * *
(2) in a case to which section 633(b) of this title applies, within 300 days after the alleged unlawful practice occurred, or within 30 days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier. 29 U.S.C.A. § 626(b).