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Erbe v. Potter

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


February 20, 2009

GEORGE J. ERBE, PLAINTIFF
v.
JOHN E. POTTER, DEFENDANT

The opinion of the court was delivered by: Christopher C. Conner United States District Judge

(Judge Conner)

ORDER

AND NOW, this 20th day of February, 2009, upon consideration of the report of the magistrate judge (Doc. 21), recommending that defendant's motion to dismiss (Doc. 4) be denied with respect to plaintiff's disability discrimination claim and granted with respect to his age discrimination claim, and following an independent review of the record, it appearing that plaintiff has proper standing to raise disability and age discrimination claims,*fn1 and that a plaintiff advancing a disability discrimination claim is required to contact a counselor within forty-five days of the allegedly discriminatory act, see 29 C.F.R. §1614.105(a)(1) ("The first step in the administrative process is for an aggrieved person to contact an EEO counselor within 45 days of the discriminatory incident or effective date of the action."); see also Spence v. Straw, 54 F. 3d 196, 201 (3d. Cir. 1996) ("Before instituting a civil action in federal court, a plaintiff alleging employment discrimination by a federal agency must exhaust administrative remedies."), that plaintiff alleges that he became aware of defendant's final termination of his employment when he received a dismissal of his formal EEO complaint on August 13, 2007 and he sought timely precomplaint counseling following this notification (Id. at ¶¶ 27, 29), and that defendant claims that plaintiff had knowledge of such dismissal as early as April 25, 2007, (Doc. 23 at 6), and the court concluding that the face of the complaint does not demonstrate that plaintiff neglected to pursue his claim in an untimely manner,*fn2 and the court further concluding that plaintiff's complaint is wholly lacking any factual arguments to support his age discrimination claim, see D'Altilio v. Dover Twp., 2007 U.S. Dist. LEXIS 71414 ("Like other civil rights claims, the plaintiff need not allege all elements of a prima facie case at the pleading stage."); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007); Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) ("Stating a claim requires a complaint with enough factual matter to suggest the required elements of a claim."),*fn3 and that it contains no allegations that plaintiff was in a protected class based on age, that defendant took any action against plaintiff because of plaintiff's age, or that defendant performed any other acts supporting an inference of age discrimination, it is hereby ORDERED that:

1. The report and recommendation of the magistrate judge (Doc. 21) is ADOPTED.

2. Defendant's motion to dismiss (Doc. 4) is GRANTED in part and DENIED in part as follows:

a. Defendant's motion to dismiss is GRANTED with respect to plaintiff's age discrimination claim.

b. Defendant's motion to dismiss is DENIED in all other respects.

3. Plaintiff shall be permitted to file an amended complaint that alleges facts supporting his age discrimination claim on or before March 6, 2009.

4. The above captioned matter is REMANDED to the magistrate judge for further proceedings.


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