United States District Court, M.D. Pennsylvania
August 30, 2005.
MARY HOLOCHECK, Plaintiff
LUZERNE COUNTY HEAD START, INC., LYNN EVANS BIGA, Individually and as Executive Director of Luzerne County Head Start, Inc., MARION SOD, Individually and as Manager of the Nanticoke and Plymouth Centers of Luzerne County Head Start, Inc. Defendants.
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. Accordingly, consistent
with Perepchuk and the above-cited precedents, I find that
Defendants Biga and Sod cannot be held individually liable under
the ADEA. Therefore, Count I of Holocheck's Complaint will be
dismissed as to Defendants Biga and Sod.
C. Individual Liability Under the PHRA
Count II of Holocheck's Complaint seeks to hold Biga and Sod
individually liable under the PHRA. Generally, the PHRA is
applied in accordance with Title VII which, as discussed above,
does not impose individual liability on the agents or employees
of the employer defendant. Sheridan v. E.I. Dupont de Nemours
and Co., 100 F.3d 1061, 1077-78 (3d Cir. 1996), cert.
denied, 521 U.S. 1129 (1997). Like Title VII, the definition of
an employer under the PHRA cannot be construed to include
"employees"; indeed, "employee" is defined as a wholly separate
term under the Act. See 43 PA. CONS. STAT. § 954(b) and (c).
The employment discrimination provision of the PHRA declares only
that "any employer" may be held liable. See 43 Pa. Cons. Stat.
§ 955(a). However, a different section of the PHRA contemplates
individual liability. Section 955(e) forbids "any person,
employer, employment agency, labor organization or employe[e], to
aid, abet, incite, compel, or coerce the doing of any act
declared by this section to be an unlawful discriminatory
practice. . . ." 43 PA. CONS. STAT. § 955(e). Direct incidents of harassment by non-supervisory co-employees are not
covered by § 955(e). See Dici v. Com. of Pa., 91 F.3d 542,
552-53 (3d Cir. 1996) Supervisory employees, however, may be held
liable under § 955(e) on the theory that only supervisors can
share the discriminatory purpose and intent of the employer that
is required for aiding and abetting. Bacone v. Philadelphia
Housing Auth., No. 01-CV-419, 2001 WL 748177, *2 (E.D. Pa. June
27, 2001). That is, "[a]n individual supervisory employee can be
held liable under an aiding and abetting/accomplice liability
theory . . . for [her] own direct act of discrimination or for
[her] failure to take action to prevent further discrimination by
an employee under supervision." Davis v. Levy, Angstreich,
Finney, Baldante, Rubenstein & Coren P.C., 20 F. Supp. 2d 885,
887 (E.D. Pa. 1998).
In the instant case, Holocheck alleges that Biga and Sod held
supervisory positions. She further avers facts from which it may
be inferred that each intentionally discriminated against her
because of her age. This is sufficient to state a claim for
relief against the individual defendants under 43 PA. CONS. STAT.
§ 955(e). See Carlton v. City of Philadelphia, No. Civ. A.
03-1620, 2004 WL 633279, at * 8 (E.D. Pa. March 30, 2004)
Accordingly, Count II of Holocheck's Complaint will not be
dismissed as to Biga and Sod.
D. Tolling of Plaintiff's PHRA Claim
To bring suit under the PHRA, a plaintiff must file an
administrative complaint with the PHRC within 180 days of the
alleged act of discrimination. See 43 PA. CONS. STAT. §
959(a),(h) "If a plaintiff fails to file a timely complaint with the PHRC,
then he or she is precluded from judicial remedies under the
PHRA." Woodson v. Scott Paper Co., 109 F.3d 913, 925 (3d Cir.
1997); Vincent v. Fuller Co., 616 A.2d 969, 974 (Pa. 1992).
There is an exception to the 180 day filing requirement. Section
12(e) of the PHRA provides that the 180-day period in which to
file an administrative charge may be extended through equitable
tolling. 43 PA. CONS. STAT. § 962(e); Brennan v. National
Telephone Directory Corp., 850 F. Supp. 331, 341 (E.D. Pa.
1994). However, "restrictions on equitable tolling . . . must be
scrupulously observed." Williams v. Army and Air Force Exchange
Service, 830 F.2d 27, 30 (3d Cir. 1987) (quoting School
District of Allentown v. Marshall, 657 F.2d 16, 19 (3d Cir.
There are three "principal, though not exclusive" situations in
which equitable tolling may arise. Oshiver v. Levin, Fishbein,
Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir. 1994). These
include "if (1) the defendant has actively misled the plaintiff;
(2) if the plaintiff has in some extraordinary way been prevented
from asserting his rights; or (3) if the plaintiff has timely
asserted his rights mistakenly in the wrong forum." School
District of the City of Allentown v. Marshall, 657 F.2d 16, 20
(3d Cir. 1981).
In this case, the alleged discriminatory action on which
Holocheck has based her Complaint occurred on October 10, 2002,
when she was terminated from her position at Head Start. In order
to meet the 180-day filing requirement set forth under the PHRA,
Holocheck would have had to file her Complaint of discrimination
with the PHRC by April 8, 2003. However, Holocheck did not file her Complaint with the PHRC until
July 11, 2003, which was well beyond the 180-day statute of
limitations. Therefore, in order to establish a viable claim,
Holocheck must aver facts sufficient to infer her PHRC Complaint
was subject to equitable tolling under section 12(e).
As Holocheck has not claimed that she was actively misled by
the defendants or that she mistakenly filed her complaint in the
wrong forum, she must establish that she was prevented from
asserting her rights "in some extraordinary way." School
District of the City of Allentown, 657 F.2d at 20. The only
basis asserted in Holocheck's Complaint for her failure to timely
file a complaint with the PHRC is that "Defendants failed to post
Pennsylvania Human Relations Commission notices in [her]
workplace. . . ." (Complaint at ¶ 22.)
Our Court of Appeals, in Bonham v. Dresser Industries, Inc.
569 F.2d 187, 193 (3d Cir. 1977), held:
Failure to post the required notice will toll the
running of the 180-day period, at least until such
time as the aggrieved person seeks out an attorney or
acquires actual knowledge of his rights under the Age
Discrimination in Employment Act. See Bishop v.
Jelleff Associates, Inc., 7 FEP Cas. 510 (D.D.C.
1974). Cf., Hiscott v. General Electric Co.,
521 F.2d 632 (6th Cir. 1975); Edwards v. Kaiser Aluminum
& Chemical Sales, Inc., 515 F.2d 1195 (5th Cir.
1975); Skoglund v. Singer Co., 13 FEP Cas. 253
(D.N.H. 1975); McCrickard v. Acme Visible Records,
Inc., 409 F. Supp. 341 (W.D. Va. 1976). Any other
result would place a duty upon the employer to comply
without penalty for breach, and would grant to the
employee a right to be informed without redress for
violation. Though equitable tolling may be available to save a
discrimination claim, "[p]laintiffs have the burden of
establishing the facts necessary to justify equitable tolling."
Byers v. Follmer Trucking Co., 763 F.2d 599, 600-01 (3d Cir.
Holocheck has asserted that her claim should be tolled because
the defendants did not post the required notice. In light of this
averment, it cannot be concluded that Plaintiff would be unable
to satisfy the requirements for equitable tolling. Therefore,
Head Start's claim that Count II of Holocheck's Complaint should
be dismissed for failure to file her administrative charge within
the required time frame will be denied.*fn2 See Hammer v.
Cardio Medical Products, Inc., 131 Fed. Appx. 829, 831-32 (3d
Cir. 2005) (district court erred in dismissing complaint for
failure to timely file administrative change where complaint
alleged that employer had failed to post requisite notice).
E. Section 1983 Claim
Section 1983 does not create substantive rights, but provides a
remedy for the violation of rights created by federal law. City
of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). To
maintain a cause of action under 42 U.S.C. § 1983, a plaintiff
must be able to show "(1) the conduct complained of was committed by a person acting under
color of state law; and (2) the conduct deprived plaintiff of
rights, privileges, or immunities secured by the Constitution or
laws of the United States." Kost v. Kozakiewicz, 1 F.3d 176,
184 (3d Cir. 1993).
Assuming, arguendo, that the decision to terminate
Holocheck's employment with Head Start was committed by a person
acting under color of state law, she must show that she was
deprived of "rights, privileges, or immunities secured by the
Constitution or laws of the United States." Kost,
1 F.3d at 184. Plaintiff claims that her termination violated the
substantive and procedural aspects of the Fourteenth Amendment
due process clause. She also contends that her termination
violated rights extended to her by federal regulations
implementing the Head Start Act.
"The first step in the analyzing a due process claim is to
determine whether the `asserted individual interest . . . [is]
encompassed within the [Fourteenth [A]mendment's protection of
life, liberty or property.'" Elmore v. Cleary, 399 F.3d 279,
282 (3d Cir. 2005). Holocheck contends that Pennsylvania law
accorded her a property interest in her continued employment that
was protected by the due process clause.
In Nicholas v. Pennsylvania State Univ., 227 F.3d 133, 140-42
(3d Cir. 2000), the court held that tenured public employment is
not a fundamental property interest entitled to substantive due
process protection. Id. at 142. Similarly, in McCullough v.
City of Atlantic City, 137 F. Supp. 2d 557, 566 (D.N.J. 2001),
the court found that damages for lost pay and benefits were also not afforded substantive due process protection.
Plaintiff's claimed property interest in this case an alleged
contractual entitlement that she could be fired only if specific
disciplinary procedures were followed is similarly not
protected by substantive due process.
Plaintiff claims that her continued employment was assured by
the Personnel Policies and Practices Manual given to her at the
start of each school year such that she was entitled to be heard
before being fired. In other words, she maintains that the
Manual's provisions governing discipline and termination of
employment constituted terms of a binding contract that conferred
a property interest in her job.
A personnel manual can create a legally-binding obligation on
the part of an employer to terminate employment only for cause or
to follow certain pre-termination procedures. See Bauer v.
Pottsville Area Emergency Medical Services, Inc., 758 A.2d 1265,
1269 (Pa.Super.Ct. 2000). Furthermore, "[c]ourts have
recognized that a `for-cause' termination provision in an
enforceable employment agreement or statute may establish a
protected property interest." Demko v. Luzerne County Community
College, 113 F. Supp. 2d 722, 728 (M.D. Pa. 2000). On the other
hand, an at-will employee does not have a legitimate entitlement
to continued employment because she serves solely at the pleasure
of her employer. See Chabal v. Reagan, 841 F.2d 1216, 1224
(3d Cir. 1988). Therefore, a determination that a public employee
"held [her] position at the will and pleasure of the
[governmental entity] necessarily establishes that [the employee]
had no property interest" in the job sufficient to trigger due
process concerns. Bishop v. Wood, 426 U.S. 341, 346 n. 8 (1976)
(internal quotations omitted); see also Robertson v. Fiore,
62 F.3d 596, 601 (3d Cir. 1995) (per curiam) (stating that an
at-will employee "lacks a protected property interest in his
position within the meaning of the Fourteenth Amendment").
As explained recently by our Court of appeals in Elmore,
399 F.3d at 282:
As an initial matter, state law determines whether
such a property interest exists. Brown v. Trench,
787 F.2d 167, 170 (3d Cir. 1986); see also Kelly
v. Borough of Sayreville, N.J., 107 F.3d 1073, 1077
(3d Cir. 1997) ("State law creates the property
rights protected by the Fourteenth Amendment.").
Here, under controlling Pennsylvania law, a "public
employee takes his job subject to the possibility of
summary removal by the employing authority. He is
essentially an employee-at-will." Scott v. Phila.
Parking Auth., 166 A.2d 278, 280 (Pa. 1960); see
also Rank v. Twp. of Annville, 641 A.2d 667, 670
(Pa.Commw. Ct. 1994); Bolduc v. Bd. of Supervisors
of Lower Paxton Twp., 618 A.2d 1188, 1190 (Pa.
Commw. Ct. 1992). Stated otherwise, a public employee
in Pennsylvania generally serves at the pleasure of
her employer and thus has no legitimate entitlement
to continued employment.
Holocheck's argument that the personnel manual converted her
employment from at-will to tenured assumes that the local agency
had the authority to do so. Holocheck's assumption is erroneous.
As stated in Elmore, 349 F. 3d at 282-83:
A local government in Pennsylvania cannot provide its
employees with tenure status unless there exists
express legislative authority for doing so. See
Stumpp v. Stroudsburg Mun. Auth., 658 A.2d 333,
334-35 (Pa. 1995); Scott, 166 A.2d at 280; see
also Perri v. Aytch, 724 F.2d 362, 364 (3d Cir.
1983); Rosenthal v. Rizzo, 555 F.2d 390, 392 (3d Cir. 1977); Cf. Appeal of
Gagliardi, 163 A.2d 418, 419 (Pa. 1960) ("A
municipality is a creature of the state and possesses
only such powers of government as are expressly
granted to it and as are necessary to carry the same
into effect."). As the Pennsylvania Supreme Court has
stated, "[t]enure in public employment, in the sense
of having a claim to employment which precludes
dismissal on a summary basis is, where it exists, a
matter of legislative grace." Stumpp,
658 A.2d at 334 (quoting Scott, 166 A.2d at 281).
In Elmore, the plaintiff, like Holocheck, argued that a "for
cause" termination provision in a township "Personnel Policy
handbook" converted her employment from at-will to tenured. The
Third Circuit held that the personnel manual could not be given
such effect because there was no specific enabling legislation
from the Pennsylvania General Assembly that would have enabled
the township to employ individuals "on anything other than
at-will basis." Id. In Demko, this Court ruled that enabling
legislation for local community colleges did not authorize
abrogating the ordinary at-will employment terms. Demko,
113 F. Supp. 2d at 732-33. In Cooley v. Pennsylvania Housing Finance
Agency, 830 F.2d 469
, 472-73 (3d Cir. 1987), the Court held that
a personnel manual could not provide the security of tenured
employment where the General Assembly had expressed no intention
to allow the state agency to abrogate at-will employment.
Plaintiff alleges that Luzerne County Head Start, Inc., "is a
federally funded Pennsylvania agency operated by Luzerne County. . . ." (Complaint, ¶
4.)*fn3 Plaintiff has not cited any state statutory
authority enabling Luzerne County to provided Head Start teachers
with tenured employment. In an analogous context, it has been
recognized that Pennsylvania County governments do not have the
authority to confer tenured status through the issuance of
personnel manuals. See Appeal of Groff, 41 Pa. D. & C. 495,
500-01 (Lancaster 1985). Independent research has not disclosed
any basis for holding otherwise here. Accordingly, Holocheck did
not have a property interest in her employment that was
safeguarded by the Fourteenth Amendment due process clause.
Holocheck also asserts that 45 C.F.R. § 1301.31 provides an
independent source for the right "not to be terminated in
violation of the written Personnel Policies and Practices of
Luzerne County Head Start, Inc." (Complaint at ¶ 29.) This
regulation, inter alia, requires local Head Start agencies to
"establish and implement written personnel policies for staff"
that "must include" procedures for termination of employment.
Citing Sabree v. Richman, 367 F.3d 180 (3d Cir. 2004),
Plaintiff asserts that this federal regulation may be "a source
of § 1983 enforceable rights." (Br. in Opp. to Mot. to Dismiss at
Plaintiff's reliance upon Sabree is misplaced. Sabree
concerned the question of whether a congressional enactment conferred a personal right enforceable
by way of a section 1983 action. It did not address the question
of whether a regulation implementing a federal statute may confer
such a right.
That issue, however, was addressed in South Camden Citizens in
Action v. New Jersey Dept. of Environmental Protection,
274 F.3d 771 (3d Cir. 2001). In that case, the Third Circuit held that "a
federal regulation alone may not create a right enforceable
through section 1983 not already found in the enforcing statute."
Id. at 790 (emphasis added). This conclusion flowed from the
Supreme Court's statement in Alexander v. Sandoval,
532 U.S. 275, 291 (2001), that "[l]anguage in a regulation may invoke a
private right of action that Congress through statutory text
created, but it may not create a right that Congress has not."
Thus, as explained in Three Rivers Center for Independent Living
v. Housing Authority of City of Pittsburgh, 382 F.3d 412, 424
(3d Cir. 2004), "regulations give rise to a right of action
[under § 1983] only insofar as they construe a personal right
that a statute creates."
The purpose of the Head Start Act is "to promote school
readiness by enhancing the social and cognitive development of
low-income children through the provision, to low-income children
and their families, of health, educational, nutritional, social,
and other services that are determined, based on family needs
assessments, to be necessary." 42 U.S.C. § 9831. Clearly,
Holocheck, as a teacher, is not a member of the class of the
legislation's intended beneficiaries. Holocheck does not point to
any statutory provision that confers a personal right to
continued employment in the Head Start Program. Under these circumstances,
the regulation in question does not confer upon her a right
protected by § 1983. See Atkinson v. Lafayette College, No.
Civ. A. 01-CV-2141, 2002 WL 123449, at *10-11 (E.D. Pa. Jan. 29,
2002) (regulation prohibiting retaliation may not be enforced in
a § 1983 action where the legislative intent to create such a
protected right is missing); see also Hodder v. Schoharie
County Child Development Council, Inc., No. 95-CV-557, 1995 WL
760832, at *5 (N.D.N.Y. Nov. 14, 1995) ("the Court has found no
indication that Congress intended the Act or its interpretive
regulations to create a private right of action for employees who
are terminated from Head Start Agencies in a manner allegedly
inconsistent with those rules").
In summary, neither state nor federal law clothed plaintiff's
employment with a right enforceable through an action under
42 U.S.C. § 1983. Accordingly, Count III of the Complaint will be
dismissed. III. CONCLUSION
For the reasons set forth above, Defendants' motion to dismiss
will be granted in part and denied in part. Count I of
Plaintiff's Complaint asserting a cause of action under the ADEA,
will be dismissed as to the individually named Defendants, Biga
and Sod, and Count III of Plaintiff's Complaint asserting claims
under § 1983 will be dismissed in its entirety. Defendants'
motion to dismiss will be denied in all other respects. An
appropriate Order follows. ORDER
NOW, THIS 30th DAY OF AUGUST, 2005, for the reasons set forth
in the foregoing Memorandum, IT IS HEREBY ORDERED THAT:
1. Defendants Motion to Dismiss (Dkt. Entry 8) is GRANTED IN
PART AND DENIED IN PART.
a.) Defendants Biga and Sod are dismissed from Count I of the
b.) Count III of Plaintiff's Complaint is DISMISSED. c.) In all other respects, Defendants' Motion to Dismiss is
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