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August 30, 2005.

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 termination.

  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. ...

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