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COHEN v. TEMPLE PHYSICIANS

July 13, 1998

FLORENCE COHEN
v.
TEMPLE PHYSICIANS, INC. DOCTORS ASSOCIATES, LTD., STEVEN J. GREENBERG, M.D., GAIL B. SMITH, M.D.



The opinion of the court was delivered by: JOYNER

MEMORANDUM AND ORDER

 JOYNER, J.

 July 13, 1998

 Plaintiff brought this civil action under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12111, et. seq., Pennsylvania Human Relations Act (PHRA), 42 P.S. § 951, et. seq., and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et. seq. to recover for her allegedly improper demotion and subsequent termination from her employment with Defendants as office manager/administrator. Defendants Doctors Associates, Ltd. and Drs. Greenberg and Smith now move to dismiss the complaint on the grounds that they are not "employers" under the ADA and the ADEA and for the reason that there is no individual liability under the PHRA, ADA and ADEA. For the reasons discussed below, the motion shall be granted in part and denied in part.

 Background

 According to the complaint, Florence Cohen was hired by Doctors Associates, Ltd. and Doctors Greenberg and Smith in November, 1971 as Front Desk Secretary. She eventually rose to the position of Office Manager/Administrator. (Complaint, Ps20- 22). In November, 1996, Plaintiff was diagnosed with lung cancer and a short time later underwent surgery to remove the cancer. (Complaint, P24). However, when Plaintiff returned to work part-time in February, 1997, her supervisor, Dr. Greenberg told her that her position as Office Manager/Administrator had been filled by a younger employee and that she was being demoted to the position of Front Desk Receptionist ostensibly because the defendants wanted to remove stress from Plaintiff's working life. (Complaint, Ps 26-27).

 In March, 1997, Doctors Associates entered into an agreement with Defendant Temple Physicians, Inc. whereby Temple Physicians would acquire Doctors Associates and Doctors Associates would be merged and/or integrated into Temple Physicians effective May 15, 1997. (Complaint, Ps 30-32). On May 14, 1997, Plaintiff's employment was terminated by one Michelle Sample, a Temple Physicians employee allegedly due to down-sizing. (Complaint, P33). Ms. Cohen subsequently brought this lawsuit, claiming that, contrary to Defendants' explanation, she was terminated because of her age (63) and because she was perceived as being disabled due to lung cancer. (Complaint, Ps34-36, 40-41). Plaintiff alleges that Defendants' termination of her employment thus violated the ADA, ADEA and the PHRA.

 Standards Applicable to Motions to Dismiss

 Under Fed.R.Civ.P. 12(b)(1), a party may file a motion to dismiss for lack of subject matter jurisdiction. A district court can grant a 12(b)(1) motion based on the legal insufficiency of the claim. Dismissal, however, is proper only when the claim appears to be immaterial and made solely for the purpose of obtaining jurisdiction or is wholly insubstantial or frivolous. Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1408-09 (3rd Cir. 1991). See Also : Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666, 94 S. Ct. 772, 776, 39 L. Ed. 2d 73 (1974). Whereas on a motion to dismiss under Rule 12(b)(6) the plaintiff is entitled to have all reasonable inferences drawn in his favor, when jurisdiction is challenged under Rule 12(b)(1), the burden is on the plaintiff to prove that jurisdiction exists and the courts are not limited in their review to the allegations of the complaint. Doe v. William Shapiro, Esquire, P.C., 852 F. Supp. 1246, 1249 (E.D.Pa. 1994). Any evidence may be reviewed and any factual disputes resolved regarding the allegations giving rise to jurisdiction as it is for the Court to resolve all factual disputes involving the existence of jurisdiction. Sitkoff v. BMW of North America, Inc., 846 F. Supp. 380, 383 (E.D.Pa. 1994). In contrast, if the attack to jurisdiction is facial, that is, to the allegations of jurisdiction stated in the complaint, the factual allegations of the complaint are presumed to be true and the complaint is reviewed to ensure that each element necessary for jurisdiction is present. Id. If jurisdiction is based on a federal question, the pleader claiming federal jurisdiction simply must show that the federal claim is not frivolous. Radeschi v. Commonwealth of Pennsylvania, 846 F. Supp. 416, 419 (W.D.Pa. 1993), citing Bartholomew v. Librandi, 737 F. Supp. 22 (E.D.Pa.), aff'd, 919 F.2d 133 (3rd Cir. 1990). Only if it appears to a certainty that the pleader will not be able to assert a colorable claim of subject matter jurisdiction may the complaint be dismissed. Kronmuller v. West End Fire Co. No. 3, 123 F.R.D. 170, 172 (E.D.Pa. 1988). See Also : Mortensen v. First Federal Savings and Loan Association, 549 F.2d 884, 891 (3rd Cir. 1977). The plaintiff must therefore have an opportunity to present facts by affidavit or by deposition, or in an evidentiary hearing in support of her jurisdiction contention. Shepherdson v. Local Union No. 401, 823 F. Supp. 1245, 1248 (E.D.Pa. 1993).

 Discussion

 A. "Employer" Status of Moving Defendants.

 Moving Defendants first assert that this Court lacks the requisite jurisdiction to adjudicate Plaintiff's claims against them because she has failed to allege that Defendants are "employers" as that term is defined in the ADA and the ADEA.

 The ADEA declares that, for purposes of that Act,

 The term "employer" means a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year...The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State and any interstate agency, but such ...


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