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Witmer v. Arthur J. Gallagher & Co.

March 31, 2009


The opinion of the court was delivered by: Yvette Kane, Chief Judge United States District Court Middle District of Pennsylvania

(Chief Judge Kane)


Before the Court is a motion to dismiss Plaintiff Chuck E. Witmer's complaint brought by Defendants Arthur G. Gallagher & Co., Gallagher Bassett Services, Dean Snyder, and Martin Essig. (Doc. No. 5.) The motion was referred to Magistrate Judge Blewitt, who issued a report and recommendation on March 2, 2009. (Doc. No. 12.) Defendant GBS filed an objection to the report and recommendation on March 10, 2009. (Doc. No. 13.) For the reasons that follow, the Court will adopt in part and reject in part the report and recommendation and sustain Defendants' objection.


On September 13, 2004, Plaintiff Chuck Witmer, a 52-year-old "American white/part American Indian male," began working as a claims supervisor with Defendant Gallagher Bassett Services ("GBS"). (Doc. No. 1 ¶ 1; Doc. No. 8, at 2.) Plaintiff was assigned to supervise only one client, Everest National Insurance Company ("Everest"), which he did until May 1, 2006 when he "resigned his employment with [GBS] reasonably believing that he was constructively discharged." (Doc. No. 1 ¶ 1.) Prior to May 1, 2006, Plaintiff avers that he had a history of positive reviews and regular salary increases. (Doc. No. 1 ¶ 16.) In fact, Defendant Martin Essig, Plaintiff's direct supervisor, told Plaintiff he was denied transfer to another supervisory position on the basis that Plaintiff was "too valuable" to Everest to be considered for another position. (Doc. No. 1 ¶ 21.)

Only weeks after the denial of transfer, on May 1, 2006, Defendant Essig told Plaintiff that Everest was dissatisfied with Plaintiff's work and that Everest had requested that Plaintiff's entire team be removed from its account. (Doc. No. 1 ¶¶ 20-25.) Plaintiff, however, was the only member of the four-person team removed from the Everest account. (Doc. No. 1 ¶ 20.) Defendant Essig informed Plaintiff that he had been temporarily reassigned to a new work desk where he would be working on "special projects." (Doc. No. 1, at 5.) This new placement constituted a demotion from a supervisory position to a senior claims position, a salary reduction, a decrease in responsibilities, and a change in job duties to "degrading work" and "a large open pending with numerous files that were not being attended to."*fn1 (Doc. No. 1 ¶ 23, 32.) Plaintiff further alleges that the new work position required "bilingual phone contact, skills that Plaintiff does not possess." (Id.) Plaintiff resigned the day of his demotion, on the belief that he was being constructively discharged. (Doc. No. 1, at 1.)

Plaintiff alleges he exhausted all available administrative remedies because he filed a timely claim with the Equal Employment Opportunity Commission ("EEOC") on the basis of age discrimination and retaliation, which was cross-filed with the Pennsylvania Human Relations Commission ("PHRC"). On July 14, 2008, Plaintiff filed this claim alleging age, race, and gender discrimination under Title VII, 42 U.S.C. § 2000(e) et seq., and state law claims of breach of contract, negligence, intentional infliction of emotional distress, intentional interference with a contractual relationship, abuse of process, defamation, and fraud. On August 5, 2008, Defendants jointly filed a motion to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6). (Doc. No. 5.) The case was then referred to Magistrate Judge Blewitt. Magistrate Judge Blewitt issued a report and recommendation that all claims, except Plaintiff's Title VII age discrimination claim, be dismissed. (Doc. No. 12.) Defendants filed an objection to that report on March 10, 2009, arguing that the Title VII age discrimination claim should also be dismissed because Title VII does not create a cause of action for discrimination on the basis of age. (Doc. No. 13.) Plaintiff has not filed a brief in opposition to Defendants' objection, and the deadline has now passed.*fn2 For the reasons that follow, the Court sustains Defendants' objection.


When a party makes timely and specific objections to a report and recommendation of a magistrate judge, this Court must "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b); M.D. Pa. L.R. 72.3; Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984). The Court may also "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. Although the review is de novo, the statute permits the Court to rely on the recommendations of the magistrate judge to the extent it deems proper. Goney, 749 F.2d at 7.

A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the complaint, Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993), and is properly granted when, taking all factual allegations and inferences as true, the moving party is entitled to judgment as a matter of law. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). The burden is on the moving party to show that no claim has been stated. Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir. 1980). Thus, the moving party must show that Plaintiff has failed to "set forth sufficient information to outline the elements of his claim or to permit inferences to be drawn that those elements exist." Kost, 1 F.3d at 183 (citations omitted). A court, however, "need not credit a complaint's 'bald assertions' or 'legal conclusions' when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906, 908 (3d Cir. 1997). Indeed, the Supreme Court has recently held that while this standard does not require "detailed factual allegations," there must be a "'showing,' rather than a blanket assertion of entitlement to relief . . . '[F]actual allegations must be enough to raise a right to relief above the speculative level'" in order to survive a 12(b)(6) motion to dismiss. Phillips v. County of Allegheny, 515 F.3d 224, 231-32 (3d Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007)).


Plaintiff alleges that he was discriminated against on the basis of his age, gender, and race in violation of Title VII. Plaintiff also alleges a litany of other state law claims including breach of contract, intentional infliction of emotional distress, negligence, intentional interference with contract, abuse of process, defamation, and fraud. Magistrate Judge Blewitt recommended that all state law claims except the breach of contract claim be dismissed on statute of limitations grounds. He then recommended that the breach of contract claim be dismissed due to PHRA pre-emption. The Court agrees on both accounts.

Magistrate Judge Blewitt further recommended that the Title VII discrimination claims in the First and Second Causes of Action be dismissed except for Plaintiff's disparate treatment age discrimination claim in Cause of Action One, alleged only under Title VII and not under the ADEA. In fact, Defendants' brief in support of their motion to dismiss did not argue for dismissal of this claim on the grounds that Title VII cannot support an age discrimination claim. Yet, in an objection to the report and recommendation, Defendants argue for the first time that Plaintiff's age discrimination claims must be dismissed because there is no cause of action for age discrimination under Title VII .

Although Defendants did not raise this argument in their initial briefings, the Court will nonetheless sustain Defendants' objection. Usually, interests of judicial economy weigh against allowing a party to raise a new issue in objection to a Magistrate Judge's report and recommendation that was not raised before the Magistrate Judge. See e.g. Paterson-Leitch Co., v. Massachusetts Mun. Wholesale Electric Co., 840 F.2d 985, 991 (1st Cir. 1988) ("Systemic efficiencies would be frustrated and the magistrate's role reduced to that of a mere dress rehearser if a party were allowed to feint and weave at the initial hearing, and save its knock-out punch for the second round."). However in this case, it is clear that Defendants' objection to the report and recommendation is meritorious and would put an end to litigation of the pending ...

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