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Lasko v. Emerald Coal Resources

September 24, 2010


The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge


Pending before the Court are PRECISION STAFFING SERVICES, INC.‟S MOTION TO DISMISS (Doc. No. 36), with brief in support (Doc. No. 37), EMERALD‟S, CUMBERLAND‟S, AND FOUNDATION‟S MOTION TO DISMISS (Doc. No. 38), with brief in support (Doc. No. 39), HEINTZMANN CORPORATION‟S MOTION TO DISMISS (Doc. No. 40), with brief in support (Doc. No. 41). Plaintiff filed Responses in Opposition to the Motions to Dismiss the Amended Complaint against Precision Staffing (Doc. No. 47), Heintzmann (Doc. No. 48), Emerald, Cumberland, and Foundation (Doc. No. 49), and a Joint Memorandum in Opposition to Defendants‟ Motion to Dismiss (Doc. No. 52).*fn1 Heintzmann is the only defendant that submitted a Reply in Response to Plaintiff‟s Opposition (Doc. No. 51). Accordingly, the issues have been fully briefed and the matter is ripe for disposition.


Plaintiff, Michael Albert Lasko, initiated this case by the filing of a three-count Complaint, generally alleging that he was denied certain employment opportunities due to his age in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 6211 et seq., and the Pennsylvania Human Relations Act ("PHRA"), 42 Pa. Cons. Stat. § 951, et seq. In sum, Plaintiff avers that he was aggrieved by the Defendants‟*fn2 allegedly unlawful employment practices in and around Greene County, Pennsylvania "where Plaintiff worked or sought employment from the individual and jointly named Defendants." (Doc. No. 35 at 2).

Factual Background

The following facts are taken from the Amended Complaint. According to Plaintiff, presently age 59, he "was employed by Defendants individually or jointly for a period in excess of 18 years." (Doc No. 35 at 5). Throughout this period, Plaintiff contends that he held the position of coal miner, performed various other services for the various Defendants, became a Pennsylvania Black Hat and a machine runner, obtained his Pennsylvania Bituminous papers and Gas Cards, engaged in training young miners, and retained membership with the United Mine Workers Union. (Doc. No. 35 at 5).

Plaintiff states that "[p]rior to January 2008, and to the present, [he] sought on innumerable occasions to obtain continuous employment by making application, on and off, with each individually named Defendant." (Doc. No. 35 at 5). Allegedly, Defendants did not grant him continuous employment but rather, "individually and severally hired many workers to work underground who were not as qualified as Plaintiff and who were younger in age than the Plaintiff." (Doc. No. 35 at 5-6).

In turn, Plaintiff avers that Defendants did not hire him and/or refused to continuously employ him due to his age and/or in retaliation for the complaints he made with regard to "the failure and refusal" of Defendants to allow him to work in the mines. Specifically, Plaintiff avers the following scenarios to support his claims:

(1) Plaintiff passed a required testing procedure in 2008 but was not hired, as Defendants hired younger miners instead and frequently waived the testing or experience requirements for such miners;

(2) a defendant‟s human resources department repeatedly stated no work was available for the Plaintiff while the defendant actually hired eight younger miners directly from the union;

(3) Defendants refuse to hire or allow older miners to work underground, not only because the hourly wages are greater for such workers, but also because, for each year that a miner does not work underground, the union agreement necessitates that the miner forfeits two percent (2%) of his retirement; and

(4) Plaintiff made complaints to "Defendants" upon their refusal to allow him to work in the mines, which resulted in Plaintiff being removed as a supervisor or foreman, forced to do laborer work, and only being allowed to work for mine contractors, who pay workers approximately half of the regular mine wage.

As a result, Plaintiff claims he is entitled to "damages in the form of back pay, front pay, and the benefits, privileges and any promotional increases, together with any increase in wage, to which he is or was entitled." (Doc. No 35 at 10, 12, 13). Plaintiff also "prays for compensatory damages for future pecuniary losses, emotional pain and suffering, inconvenience, mental anguish, loss of enjoyment of life," and other losses and damages." (Doc. No 35 at 10, 12, 13).

Procedural History

Plaintiff contends that he has "exhausted his administrative remedies by filing charges of discrimination with the U.S. Equal Employment Opportunity Commission" ("EEOC") and "filed the instant suit within 90 days of receipt of the Right to Sue Letters." (Doc. No. 35 at 2).

Plaintiff brought this lawsuit on January 26, 2010, by the filing of a three-count Complaint against all of the named Defendants. The original Complaint alleged the following causes of action: (1) age discrimination and disparate impact; (2) age discrimination; and (3) retaliation discrimination.

On March 25, 2010, the named Defendants, with the exception of Precision Staffing Services, filed Motions to Dismiss for Failure to State a Claim (Doc Nos. 20, 26). The moving Defendants argued "that the Complaint fails to sufficiently plead the inter-relationship between Plaintiff and named Defendants, the inter-relationship between the Defendants with one another, and the attribution of the acts forming the basis of the complaint with any of the Defendants." (Doc. No. 34 at 2). The Court agreed.

In a Memorandum Opinion and Order of Court (Doc. No. 34) dated May 4, 2010 the Court granted the motions, and dismissed the original complaint (Doc. No. 1) with leave to amend. This Court held that the "vague and open-ended assertions contained within the complaint hardly begin to satisfy the requirement to plead circumstances, occurrences, or events in support of the claims, and amount to little more than a bare averment that Plaintiff wants relief and is entitled to it." (Doc. No. 34 at 5). Thereafter, Plaintiff filed an Amended Complaint on May 18, 2010 that alleges three identical claims but which also includes additional facts that ...

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