The opinion of the court was delivered by: GARY LANCASTER, District Judge
This is an action in employment discrimination. Plaintiffs,
Melody Valentino and Margaret A. Cornelius, allege that
defendant, Glade Run Lutheran Services ("Glade Run"),
constructively terminated Valentino from her position of cook and
Cornelius from her position of Nutritional Service Department
Supervisor, due to their ages, in violation of the Age
Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621-634
("ADEA"). Plaintiffs seek money damages.
Defendant has filed a motion to dismiss Count VI*fn1 of
the complaint because Cornelius has not set forth a prima facie
case of unlawful retaliation [doc. nos. 20, 21]. Defendant argues that
an employer's appeal of a claim for unemployment compensation
benefits does not constitute an adverse employment action.
For the reasons which follow, the motion will be granted.
Plaintiff Cornelius alleges that she was employed by defendant
as a full-time cook from 1996 to 2000. After leaving defendant's
employ for a brief period, in 2001, Cornelius was rehired by
defendant as Nutritional Service Department Supervisor. Plaintiff
claims that beginning in December, 2003, she was subjected to
harassment and disparate treatment because of her age. Plaintiff
alleges that on May 17, 2004, she went on FMLA leave due to the
depression and anxiety she was experiencing as a result of the
hostile working environment. On July 23, 2004, plaintiff's
physician cleared her to resume working, on the condition that
she did not return to work with defendant. As such, plaintiff
claims that she was compelled to resign from defendant's employ
on July 23, 2004. Plaintiff contends that defendant was motivated
by plaintiff's age when it subjected her to severe and pervasive
harassment and disparate treatment, which culminated in her
constructive discharge on July 23, 2004. After she left defendant's employ, plaintiff filed her initial
charge of discrimination with the Equal Employment Opportunity
Commission ("EEOC") as well as a claim for unemployment
compensation ("UC") benefits. Plaintiff's claim for UC benefits
was initially approved; however, defendant appealed that
decision. On appeal, plaintiff's claim for benefits was denied.
Count VI of plaintiff's complaint alleges that defendant
unlawfully retaliated against her for filing her charge of
discrimination with the EEOC by appealing her claim for UC
When the court considers a Rule 12(b)(6) motion to dismiss, the
issue is not whether plaintiff will prevail in the end or whether
recovery appears to be unlikely or even remote. The issue is
limited to whether, when viewed in the light most favorable to
plaintiff, and with all well-pleaded factual allegations taken as
true, the complaint states any valid claim for relief. See
ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994). In
this regard, the court will not dismiss a claim merely because
plaintiff's factual allegations do not support the particular
legal theory he advances. Rather, the court is under a duty to
examine independently the complaint to determine if the factual
allegations set forth could provide relief under any viable legal theory. 5A Charles Alan Wright & Arthur R. Miller,
Federal Practice & Procedure § 1357 n. 40 (2d ed. 1990). See
also Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
It is according to this standard that the court has reviewed
defendant's motion. Based on the pleadings of record and the
briefs filed in support and opposition thereto, the court is
persuaded "beyond doubt that the plaintiff can prove no set of
facts in support of [her] claim which would entitle [her] to
relief." Conley, 355 U.S. at 45-46.
In order to establish a discriminatory retaliation claim under
the ADEA, a plaintiff must prove three elements: (1) she was
engaged in a protected activity; (2) her employer acted adversely
against her after or contemporaneous with employee's protected
activity; and (3) her employer's adverse action was causally
connected to her participation in the protected activity.
Glanzman v. Metropolitan Management Corp., 391 F.3d 506, 509
(3d Cir. 2004).
Defendant argues that plaintiff's claim for unlawful
retaliation fails as a matter of law because she cannot possibly
allege adverse employment action sufficient to satisfy the second
element of her prima facie case. Defendant claims that its UC appeal cannot be an adverse employment action because it occurred
after plaintiff's employment had already ended.
In Glanzman, 391 F.3d at 516, plaintiff claimed that her
employer retaliated against her by contesting plaintiff's right
to UC benefits. The Court of Appeals for the Third Circuit
rejected plaintiff's retaliation claim and stated:
. . . [plaintiff] could not suffer adverse employment
action after or contemporaneous with the protected
activity. Quite obviously, given the nature of
unemployment benefits, her employment was terminated
before, not after or contemporaneous with, her filing
for unemployment compensation. Once her employment
was terminated it was not possible for her to suffer
adverse employment action.
The holding of the Court of Appeals applies with full force to
the instant case. As in Glanzman, plaintiff was no longer
employed by defendant when defendant appealed her UC benefits
award. It is impossible for plaintiff to suffer adverse
employment action after her employment had been terminated.
Because plaintiff cannot allege any facts to support the second
element of her ...