The opinion of the court was delivered by: THOMAS VANASKIE, Chief Judge, District
Plaintiff Mary Holocheck ("Holocheck") filed this age
discrimination and civil rights action against Defendants Luzerne
County Head Start, Inc. ("Head Start"), its Executive Director,
Lynn Evans Biga, and the Manager of its Center in Nanticoke,
Pennsylvania, Marion Sod. Presently before this Court is the
Defendants' partial motion to dismiss. As explained below, the
claims against Ms. Biga and Ms. Sod under the Age Discrimination
in Employment Act (Count I) will be dismissed as there can be no
individual liability under the federal anti-discrimination
statute. Count III, claiming substantive and procedural due
process violations, will be dismissed because, as a matter of
law, Plaintiff did not have a protected property interest in her
employment. The challenge to the timeliness of Plaintiff's
Pennsylvania Human Relations Act claim (Count II), however, will be rejected because Plaintiff has
presented grounds for tolling the running of the period for
filing an administrative charge of discrimination. Furthermore,
the individual Defendants will not be dismissed as to Count II
because state law provides for individual liability of
supervisory personnel who intentionally discriminate against
those whom they supervise.
As set forth in the Complaint, the allegations of which must be
accepted as true, Holocheck was employed by the Nanticoke Center
of Luzerne County Head Start as a teachers aid from 1984 until
1988, and as a teacher from 1988 until 2002. On October 10, 2002,
Holocheck's employment at Head Start was terminated and she was
replaced by an individual who was under the age of forty (40).
She was fifty-six (56) years of age at the time of her
Head Start is operated by Luzerne County pursuant to the "Head
Start Act," 42 U.S.C. § 9836. At the time of Holocheck's
termination, Defendant Lynn Evans Biga was the executive director
of Head Start and Marion Sod was the manager of the Nanticoke and
Plymouth Centers of Head Start.
On July 11, 2003, more than nine months after her termination,
Holocheck filed a complaint with the Equal Employment Opportunity
Commission ("EEOC") and the Pennsylvania Human Relations
Commission ("PHRC"). (Complaint at ¶ 12.) Holocheck claimed that
she was terminated as a result of her age and sought relief pursuant to
the Age Discrimination in Employment Act ("ADEA"),
29 U.S.C. § 63, and the Pennsylvania Human Relations Act ("PHRA"), 43 PA.
CON. STAT. § 955.
Following exhaustion of the administrative complaint process,
Plaintiff filed a Complaint against all Defendants in this Court
on September 20, 2004. Plaintiff's Complaint contains three
Counts: Count I violation fo the ADEA; Count II violation of
the PHRA; and Count III violation of 42 U.S.C. § 1983.
Defendants filed a Motion to Dismiss (Dkt. Entry 8) on November
23, 2004, and a brief in support of their motion (Dkt. Entry 14)
was filed on December 2, 2004. Plaintiff filed a brief in
opposition to Defendants' Motion to Dismiss (Dkt. Entry 16) on
December 16, 2004. Defendants' Motion to Dismiss has been fully
briefed and is ripe for resolution by this Court.
A. Standard for a Motion to Dismiss
In deciding a motion to dismiss filed pursuant to Federal Rule
of Civil Procedure 12(b)(6), the Court must accept as true all of
the factual allegations in the pleading and draw all reasonable
inferences from those facts in the light most favorable to the
claimant. Unger v. Nat'l Residents Matching Program,
928 F.2d 1392, 1400 (3d Cir. 1991); Truhe v. Rupell, 641 F. Supp. 57, 58
(M.D. Pa. 1985). The Court, however, "need not credit [the
pleading's] `bald assertions' or `legal conclusions' when
deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). A Rule 12(b)(6)
motion will be granted "only if it is clear that no relief could
be granted under any set of facts that could be proved consistent
with the allegations." Brown v. Philip Morris Inc.,
250 F.3d 789, 796 (3d Cir. 2001). "The issue is not whether a plaintiff
will ultimately prevail but whether the claimant is entitled to
offer evidence to support the claims." Maio v. Aetna, Inc.,
221 F.3d 472, 482 (3d Cir. 2000). "The [pleading] will be deemed to
have alleged sufficient facts if it adequately puts the
defendants on notice of the essential elements of the . . . cause
of action." Langford v. City of Atl. City, 235 F.3d 845, 847
(3d Cir. 2000). The Rule 12(b)(6) movant carries the burden of
showing the legal insufficiency of the claims asserted. See
Johnsrud v. Carter, 620 F.2d 29, 32-33 (3d Cir. 1980).
B. Individual Liability Under the ADEA
Defendants Biga and Sod first assert that Holocheck's Complaint
fails to state a cognizable claim under the ADEA and PHRA against
them. The gist of their argument is that liability extends only
to the "employer."*fn1
This Court specifically addressed the issue of individual
liability under the ADEA in Perepchuk v. Friendly's Ice Cream
Corp., No. 97-CV-1988, 2000 WL 1372876, at *4 (M.D. Pa. March
28, 2000). In Perepchuk, this Court held: Although the Third Circuit has not directly addressed
the issue of individual liability under the ADEA or
the ADA, it has held that employees are not
individually liable under Title VII. Sheridan v.
E.I. Dupont de Nemours and Co., 100 F.3d 1061, 1078
(3d Cir. 1996), cert. denied, 521 U.S. 1129
(1997). Notably, Title VII defines "employer" in
virtually the identical manner as the ADA and ADEA.
Furthermore, courts in other circuits, as well as
district courts in this circuit, have held that
individual employees are not liable under either the
ADA or the ADEA. See Stults v. Conoco, Inc.,
76 F.3d 651, 655 (5th Cir. 1996) (ADEA); Smith v.
Lomax, 45 F.3d 402, 403 n. 4 (11th Cir. 1995) (ADEA,
Title VII); Birkbeck v. Marvel Lighting Corp.,
30 F.3d 507, 519-511 (4th Cir.), cert. denied,
513 U.S. 1058 (1994)(ADEA); Miller v. Maxwell's Int'l
Inc., 991 F.2d 583, 587-88 (9th Cir.), cert.
denied, 510 U.S. 1109 (1994)(ADEA); Fullman v.
Philadelphia Int'l Airport, 49 F. Supp. 2d 434, 441
(E.D. Pa. 1999) (ADA); Metzgar v. Lehigh Valley
Housing Authority, No. Civ. A. 98-CV-3304, 1999 WL
562756, at *3 (E.D. Pa. 1999) (ADA); Brannaka v.
Bergey's Inc., No. 97-6921, 1998 WL 195660, at *2
(E.D.Pa. Mar. 30, 1998) (ADA); Lantz v. Hospital of
the University of Pennsylvania, Civ. A. No. 96-2671,
1996 WL 442795, at *6 (E.D.Pa. July 30, 1996) (ADEA).
Id. at 4. A survey of post-Perepchuk cases reveals that the
courts in this and other circuits continue to reject the notion
that individuals may be held liable under the ADEA. E.g.,
Cheng v. Benson, 358 F. Supp. 2d 696, 700-01 (N.D. Ill. 2005);
Vuong v. J.C. Penney, No. Civ. A. 04-3940, 2005 WL 1353394, at
*8 (E.D. Pa. May 31, 2005); Allen v. Egan, 303 F. Supp. 2d 71,
76 (D. Conn. 2004); Verdecchia v. Douglas A. Prozan, Inc.,
274 F. Supp. 2d 712, 723 (W.D. Pa. 2003). Judge Katherine Hayden
presented a cogent analysis for rejecting individual liability
under the ADEA in McDowell v. Axsys Technologies Corp., No Civ.
A. 03-2488, 2005 WL 1229863, at *4-7 (D.N.J. May 24, 2005).
Plaintiff has not cited any countervailing authority. The facts of Perepchuk and this case are substantially alike
in that in both cases the plaintiff is attempting to impose
individual liability under the ADEA on the manager of a business
for his/her alleged unlawful termination. ...