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McGehean v. AF&L Insurance Co.

October 2, 2009


The opinion of the court was delivered by: O'neill, J.


On April 28, 2009, plaintiff Carol McGehean filed a complaint against defendants AF&L Insurance Company and CIVC Partners alleging violations of the Age Discrimination in Employment Act, 29 U.S.C.A. § 621 et seq. (ADEA), the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq., as amended by the Civil Rights Act of 1991, 42 U.S.C.A. § 1981a (Title VII) and the Pennsylvania Human Relations Act, 43 Pa. Stat. Ann. § 951 et seq. (PHRA). Defendant CIVC moves to dismiss all of plaintiff's claims against CIVC. Plaintiff moves for CIVC to reimburse the costs and fees incurred by plaintiff for service of process. Presently before me are CIVC's motion to dismiss, plaintiff's response in opposition*fn1 and CIVC's reply, as well as plaintiff's motion for costs and fees, defendant's response and plaintiff's reply.


Plaintiff alleges that defendants discriminated against her on the basis of her age and sex in violation of the ADEA, Title VII and PHRA. She alleges that she suffered a reduction in compensation and job responsibilities, ageist remarks, a hostile work environment and retaliatory termination. Plaintiff requested, inter alia, compensatory damages for "pain, suffering, inconvenience, mental anguish, humiliation, loss of position and other non-pecuniary losses caused by Defendant's actions" as well as punitive damages.


Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss all or part of an action for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Typically, "a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations," though plaintiff's obligation to state the grounds of entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the allegations in the complaint are true (even if doubtful in fact)." Id., citations omitted. The complaint must state "'enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element." Wilkerson v. New Media Tech. Charter School Inc., 522 F.3d 315, 321 (3d Cir. 2008), quoting Twombly, 550 U.S. at 556. The Court of Appeals has recently made clear that after Ashcroft v. Iqbal, --- U.S. ---, 129 S.Ct. 1937, 1955, 173 L.Ed. 2d 868 (2009), "conclusory or 'bare-bones' allegations will no longer survive a motion to dismiss: 'threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.' Iqbal, 129 S.Ct. at 1949. To prevent dismissal, all civil complaints must now set out 'sufficient factual matter' to show that the claim is facially plausible." Fowler v. UPMC Shadyside, No. 07-4285, 2009 WL 2501662, at * 4 (3d Cir. 2009). The Court of Appeals also set forth a two-part analysis for reviewing motions to dismiss in civil actions in light of Twombly and Iqbal: "First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.'" Id. at *5, quoting Iqbal, 129 S.Ct. at 1950. The Court of Appeal explained, "a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to 'show' such an entitlement with its facts." Id., citing Phillips v. County of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008). "Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not 'show[n]' -'that the pleader is entitled to relief.'" Iqbal, 129 S.Ct. at 1949.


A. Judicial Notice

Preliminarily, in ruling on defendant's motion to dismiss I will not rely on any documents or facts introduced by plaintiff for the first time in her response to defendant's motion. Plaintiff sets forth additional facts and documents in her response that are not contained in her complaint. She suggests in a footnote that I may take judicial notice of these facts and documents and consider them in deciding the motion to dismiss.

I may look to the facts alleged in the complaint or incorporated by reference thereto when deciding a motion to dismiss. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). I may also take judicial notice of certain facts and documents when considering a motion to dismiss. Federal Rule of Evidence 201 states that a court may take judicial notice of facts "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b)(2). On a motion to dismiss, courts take judicial notice of documents which are matters of public record such as Securities and Exchange Commission filings, Oran v. Stafford, 226 F.3d 275, 289 (3d Cir. 2000), court-filed documents, Rouse v. II-VI Inc., No. 02:06cv0566, 2008 WL 398788, at *1 (W.D. Pa. Feb. 11, 2008), and Federal Drug Administration reports published on the FDA website, In re Wellbutrin SR/Zyban Antitrust Litigation, 281 F. Supp. 2d 751, 755 n. 2 (E.D. Pa. 2003).

Here plaintiff asks that I take judicial notice of the following: a CIVC brochure (Exh. B), a page from CIVC's website (Exh. C), an organizational chart (Exh. D), a Report of Examination of AF&L Insurance Co. (Exh. E), portions of a SEC filing for RAM Holdings, Ltd. (Exh. F), and a web page with a "profile" of Daniel G. Helle (Exh. G). I will not take judicial notice of Exhibits B, C, D, or G because these are not matters of public record and the sources of the documents are questionable. Furthermore, I will not take judicial notice of Exhibit E. Although an official copy of a Report of Examination conducted by the Office of Corporate and Financial Regulation of the Pennsylvania Insurance Department (PID) would qualify for judicial notice because it is a public document whose "accuracy cannot reasonably be questioned," here the plaintiff has provided an unofficial copy taken from the PID's website. The PID clearly states on its website that the links to the reports "are not official documents, and are provided for informational purposes only. Copies of the original, signed version of these documents are available by contacting the Office of Corporate and Financial Regulation of the Pennsylvania Insurance Department."*fn2 Indeed, the version of the report attached as Exhibit E to plaintiff's response states "FOR INFORMATION ONLY" across every page. Finally, plaintiff's Exhibit F directs me to a S-1/A SEC filing filed by RAM Holdings Ltd. on April 24, 2006. While there is sufficient authority and reason to permit me to take judicial notice of a SEC filing, the contents do not contain any pertinent information. Plaintiff alleges in her complaint that the discrimination against her began shortly after April 2007 when Benedict Iacovetti became president of AF&L and culminated in March 2008 with her termination. The relevant portion of the SEC filing states that as of April 24, 2006 Michael J. Miller "is currently a principal at CIVC Partners. Mr. Miller is a director of AF&L, Inc." It is irrelevant who was a director in April 2006 since the time period in which the alleged discrimination took place was between April 2007 and March 2008. Also, assuming AF&L Insurance Co., the named defendant, and AF&L, Inc. are separate entities, it is not clear why it is relevant that a principal at CIVC was also a director of AF&L, Inc.

B. Defendant's Motion to Dismiss

CIVC moves to dismiss plaintiff's complaint against CIVC arguing that she failed to allege that CIVC is plaintiff's employer. The only allegation plaintiff specifically pleaded with regard to CIVC is that CIVC "is a Chicago based firm which during the relevant time owned and operated AF&L or otherwise had direct control over AF&L's business." Complaint ¶ 12.

Plaintiff also pleaded that the discriminatory conduct and retaliatory actions were committed by both defendants. For example, she alleges that "[i]n March 2008 Defendants cut Ms. McGehean's work hours and transitioned job duties to younger employees. When Ms. McGehean complained about discrimination in the workplace, Defendants terminated Ms. McGehean's employment without cause." Id. ΒΆ 9, emphasis added. Plaintiff did not ...

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