The opinion of the court was delivered by: Arthur J. Schwab United States District Judge
Plaintiff, Alfred J. Russo, brings the current action against defendants, Allegheny County ("County") and the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division ("Common Pleas"), alleging constructive discharge due to his gender and age in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. Plaintiff claims he was forced to retire or be demoted, which would have resulted in a yearly pay cut of $22,000.
The County filed a Motion to Dismiss the Complaint arguing plaintiff‟s claims are barred because of failure to exhaust administrative remedies, as plaintiff did not file a timely complaint with the Equal Employment Opportunity Commission ("EEOC"), and never named County as respondent.
Defendant Common Pleas has filed a Motion for Summary Judgment arguing plaintiff‟s EEOC charge was untimely, plaintiff‟s EEOC charge alleging age discrimination is wholly inadequate to support his Title VII sex discrimination claim, and that plaintiff‟s age discrimination claim fails on its merits, because the United States Supreme Court has determined that Congress did not abrogate a state‟s sovereign immunity with respect to the ADEA. Plaintiff responds that the EEOC charge was not untimely and it would be premature to dismiss the gender discrimination claim. However, plaintiff admits the age discrimination claim against defendant Common Pleas is immunity barred.
After careful consideration of the pending Motion to Dismiss (doc. no. 6), the response thereto (doc. no. 12), the Motion for Summary Judgment (doc. no. 11), and the response thereto (doc. no. 15), the Court will grant defendant County‟s Motion to Dismiss and grant defendant Common Pleas‟ Motion for Summary Judgment, for the reasons that follow.
Plaintiff Alfred J. Russo ("Russo") was employed in the Court of Common Pleas of Allegheny County as a minute clerk between November 1974 and February 2009, as an assistant manager of criminal division between April 1997 and April 2005, and as court manager of the criminal division, also known as chief minute clerk, from April 2005 to February 2009. Doc. No. 12-2 ¶ 1. During his employment, plaintiff‟s duties included randomly assigning judges to cases, as ordered by the administrative judge and court administrator. Id. at ¶ 3. Additionally, plaintiff received his paychecks from Allegheny County, health-care benefits from an Allegheny County sponsored plan, and participated in the Allegheny County Retirement Fund. Id. at ¶ 4.
On February 20, 2009, plaintiff alleges he was subjected to age discrimination when he was "constructively discharged by receiving a re-assignment which would have resulted in a $22,000 pay-cut." Id. at ¶ 5. Instead of accepting the pay cut, plaintiff accepted an early retirement. Id.
Plaintiff states that two other court employees in their early sixties were also asked to retire. Doc. No. 12-2, Ex. 1. Five younger females and one younger male employee were hired. Id. Furthermore, plaintiff asserts that "all younger employees were routinely accorded reasonable notice or warning that their job performance was deficient... [and that his] performance evaluations were consistent "exceeds expectations‟ and unlike younger employees he was never accorded prior reasonable notice or prior warning that his performance was "old fashioned‟, slow‟, or "lacking initiative‟ so as to rectify the perceived deficiencies." Doc. No. 1 ¶ 10.
Additionally,plaintiff alleges he was subjected to gender discrimination. Specifically, plaintiff asserts his boss, Helen Lynch ("Lynch"), fired him without cause, but "agonized over firing a female... [because] she [was] a single mom and [needed] the benefits." Id. at Ex. 2. Plaintiff also states a "married female employee was flirting with a married male lawyer" and was "suspected of giving him information about cases" yet she was never discharged. Id. Plaintiff also contends that Lynch reassigned "major job responsibilities to younger females before [p]laintiff‟s constructive discharge" and promoted "younger females when male candidates possessed superior credentials and qualifications." Doc. No. 1 ¶ 14.
Plaintiff alleges that as a result of his constructive discharge, he "suffered severe emotional distress and depression, an exacerbation of his diabetic condition, and weight loss of over forty pounds." Doc. No. 1 ¶ 13.
Plaintiff states his claims "were processed through the EEOC and [a] right-to-sue letter was issued... on March 5, 2010 at EEOC No. ...