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Shope v. Dep't of the Navy

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


December 29, 2009

JACOB LARRY SHOPE, PLAINTIFF
v.
DEPARTMENT OF THE NAVY, WILLIAM M. LAVAGE, DEFENDANTS

The opinion of the court was delivered by: William W. Caldwell United States District Judge

MEMORANDUM

We are conducting the initial review of a pro se complaint by Plaintiff Jacob Larry Shope, in which he seeks in forma pauperis status. He alleges that the Department of Navy and William M. Lavage, Director of Human Resources at the Naval Supply Depot, Mechanicsburg, Pennsylvania, violated the Federal Privacy Act ("FPA"), 5 U.S.C. § 551, et seq., and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-34, by forwarding emails to non-federal entities and eliminating his employment, respectively.*fn1

The FPA prevents a government agency from disclosing, with certain exceptions, "any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains." 5 U.S.C. § 552a(b). An agency's failure to comply subjects it to civil liability if a plaintiff can demonstrate they were adversely effected by the non-compliance. § 552a(g)(1)(D).

Plaintiff's FPA allegations are insufficient. As near as we can determine, the Plaintiff has alleged that on September 29, 2008, Defendant Lavage forwarded an email, received from the Plaintiff, to Yale Electric Supply, in which Shope indicated his desire to obtain federal employment. As a result of this disclosure, he was placed on probation, we presume, by Yale Electric. However, the email at issue was not attached to the complaint and we are unable to determine if it is a type of record that is protected under the FPA. Additionally, while detailed allegations are not required, the Plaintiff must plead enough facts to make a claim for relief plausible. See Twombly, U.S. at , 127 S.Ct. at 1974. The above allegations offer little in the way of factual background and are not sufficient to justify further proceedings.

Additionally, the Plaintiff's ADEA claim is insufficient. The ADEA makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment" because of age. 29 U.S.C. § 623(a)(1). In order to establish a prima facie case of discrimination, Shope must allege that (1) he is over forty, (2) he is qualified for the position in question, (3) he suffered from an adverse employment decision, and (4) that his replacement was "sufficiently younger to permit a reasonable inference of age discrimination." Potence v. Hazleton Area School Dist., 357 F.3d 366, 370 (3d Cir. 2004). The complaint alleges that Shope is over the age of forty.

The complaint is written in a narrative style and does not contain a "short and plain statement" showing that he is was qualified for a position, that he suffered an adverse employment decision and that a position went to someone sufficiently younger. See Fed. R. Civ. P. 8(a). We will grant the Plaintiff leave to file an amended complaint that meets the requirements for pleading his claim. The Plaintiff is advised that he must plead facts that indicate discrimination.

The amended complaint must stand on its own. It must be a completely new pleading that restates all of his claims. Any amended complaint cannot merely be a supplement to his original one. The complaint also must conform to the requirements of Rule 8 of the Federal Rules of Civil Procedure. In other words, Plaintiff must start over.

We will issue an appropriate order.

ORDER

AND NOW, this 29th day of December, 2009, it is ordered that:

1. Plaintiff's request to proceed in forma pauperis is granted.

2. Plaintiff is granted twenty-one (21) days from the date of this order to file an amended complaint that complies with pleading requirements.

3. If Plaintiff fails to comply with this order, his complaint will be dismissed without prejudice.

William W. Caldwell United States District Judge


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