IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
April 27, 2011
BUCKS COUNTY COMMUNITY COLLEGE
The opinion of the court was delivered by: Baylson, J.
MEMORANDUM RE: MOTION TO DISMISS
Plaintiff Carol D. Mikulski ("Plaintiff") brings this action against her employer, Bucks County Community College ("Defendant"), for violations of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Stat. Ann. § 951 et seq. Defendant moves to dismiss Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), and, in the alternative, moves for a more definite statement pursuant to Federal Rule of Civil Procedure 12(e). For the following reasons, Defendant's Motion will be granted in part and denied in part.
1. Factual Background
Plaintiff's Complaint alleges the following facts. Plaintiff, a 56-year-old woman, began working for Defendant in 1993 as Coordinator of Community and Cultural Programs, a position she held until 1997. Compl. ¶¶ 8, 11. From 1999 to June 2004, Plaintiff served as Assistant Director, Continuing Education, including three stints as Interim Director, Continuing Education. Compl. ¶ 11. From July 2004 to the present, Plaintiff has held the position of Executive Director, Continuing Education. Compl. ¶¶ 8, 11.
In fall 2009, Plaintiff applied for the newly created position of Assistant Vice President, Continuing Education and Workforce Development. Compl. ¶ 12. The posted minimum requirements for the position included a masters degree; ten years of experience leading adult and continuing education initiatives and managing staff; senior leadership skills; interpersonal skills; adaptability to diverse constituencies; and grant writing experience. Compl. ¶ 13. Defendant formed a search committee, which selected Plaintiff as one of five finalists for the position. Compl. ¶ 14. Barbara Miller ("Miller"), Vice President of Continuing Education, Workforce Development and Public Safety Training, interviewed Plaintiff for the position in December 2009. Compl. ¶ 14. In January 2010, Miller announced the selection of Christine Gillespie ("Gillespie"), a 47-year-old candidate who was employed at a lower level than Plaintiff and did not meet the posted minimum requirements for the position. Compl. ¶¶ 15-18.
Plaintiff met with Miller to discuss why Plaintiff did not receive the promotion, given her experience and positive performance history. Compl. ¶¶ 19-20. Miller informed Plaintiff that Defendant's search committee ranked Gillespie above Plaintiff, which Plaintiff contests. Compl. ¶¶ 21-22. Miller told Plaintiff that "there are going to be a lot of changes at the College" and "I have to think about the College over the next ten years." Compl. ¶ 23.
Since May 2010, Plaintiff has been excluded from meetings and decision-making processes related to her job and job functions, and has suffered a "campaign of retaliation." Compl. ¶¶ 32-33. On June 7, 2010, Plaintiff filed a written complaint alleging age discrimination with the President of Bucks County Community College, James Linksz. Compl. ¶ 26. On June 14, 2010, Plaintiff received a performance review from Miller criticizing Plaintiff's direct communication style and unprofessional communication with Miller, in contrast to Plaintiff's April 2010 review praising her "excellent communications skills." Compl. ¶¶ 27-30.
2. Procedural History
Plaintiff alleged that she timely filed charges with the Equal Employment Opportunity Commission ("EEOC") and the Pennsylvania Human Relations Commission ("PHRC"), and exhausted her administrative remedies. Compl. ¶ 4.
On January 26, 2011, Plaintiff filed a federal Complaint (ECF No. 1) with two Counts: Count One, "Age Discrimination," for violations of the ADEA, and Count Two, "State Law Claims," for violations of the PHRA. Compl. ¶¶ 36-45. Plaintiff seeks back pay with interest, front pay, compensatory damages, liquidated damages, costs, attorneys' fees, compensatory damages under the PHRA, and other monetary, injunctive and equitable relief as the Court deems just and proper.
On February 28, 2011, Defendant filed the Motion to Dismiss the Complaint or in the Alternative for a More Definite Statement of Plaintiff's Claims (the "Motion") (ECF No. 4), which is currently before the Court. Defendant attached to its Motion the June 14, 2010 Performance Evaluation of Plaintiff (the "June 2010 evaluation"). (Def.'s Ex. 1, ECF No. 4-4) Defendant also attached Plaintiff's administrative Charge of Discrimination (the "Charge"). (Def.'s Ex. 2, ECF No. 4-5) The cover sheet of the Charge is dated September 22, 2010, and is marked for filing with both the EEOC and the PHRC. Plaintiff responded to the Motion on March 21, 2011. (ECF No.5)
III. The Parties' Contentions
A. Defendant's Motion
Defendant attacks Plaintiff's Complaint on several grounds. First, Defendant contends that Plaintiff cannot state a claim of retaliation based on the June 2010 evaluation or her exclusion from workplace meetings. Second, Defendant argues that although the Complaint states that the action arises under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. and the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq., it does not state a claim under either statute. Third, Defendant argues that Plaintiff did not exhaust her administrative remedies under the PHRA and therefore cannot bring PHRA claims in court. Fourth, Defendant argues that Counts One and Two should be dismissed to the extent they allege claims not pursuant to the ADEA and PHRA.
Alternatively, Defendant contends that Plaintiff's claims are vague and ambiguous, including allegations regarding Plaintiff's exclusion from meetings and decision-making processes, the campaign of retaliation against Plaintiff, Defendant's violations of policies in its handbook, and the damage to Plaintiff's reputation. Defendant requests that Plaintiff state with more detail the following: (1) retaliation and discrimination claims under the ADEA and PHRA; (2) federal claims being asserted under laws other than the ADEA; and (3) state claims being asserted under laws other than the PHRA.
B. Plaintiff's Response
Plaintiff responds that Count One of her Complaint contains two claims: failure to promote Plaintiff on account of her age, and retaliation for filing a complaint of age discrimination with Defendant's President. Plaintiff argues that she has established a prima facie case of her failure to promote claim under the ADEA. Plaintiff contends that she also stated a retaliation claim, but requests that the Court grant her leave to provide a more definite statement as to retaliation. Plaintiff concedes that she does not state a claim under the FLSA. Plaintiff does not respond to Defendant's other arguments.
IV. Legal Standard
This Court has jurisdiction over Plaintiff's federal statutory claims pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over Plaintiff's state-law claims pursuant to 28 U.S.C. § 1367(a). Venue is proper under 28 U.S.C. § 1391(b).
B. Motion to Dismiss for Failure to State a Claim
Under the notice pleading requirements of Federal Rule of Civil Procedure 8(a)(2), a complaint must contain only "a short and plain statement of the claim showing that the pleader is entitled to relief." To survive a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), the complaint must plead sufficient factual allegations, that, taken as a whole, state a facially plausible claim to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A complaint satisfies the threshold of facial plausibility if "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements," are insufficient to establish plausible allegations to survive the motion. Id. at 1949 (citing Twombly, 550 U.S. at 555). The court must "'accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.'" Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). However, the court may disregard any legal conclusions in the complaint. Id. at 210-11 (citing Iqbal, at 1949).
Generally, the district court may consider only the facts alleged in the complaint and its attachments on a motion to dismiss. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). The court may also take into consideration "an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document." Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993).
C. Motion for More Definite Statement
Under Rule 12(e), "[a] party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response." Fed. R. Civ. P. 12(e). The party moving for a more definite statement "must point out the defects complained of and the details desired." Id. The purpose of a Rule 12(e) motion is to assist the defendant in obtaining the factual basis underlying a plaintiff's claim for relief. Thomas v. Independence Twp., 463 F.3d 285, 301 (3d Cir. 2006).
Under the ADEA, "[i]t shall be 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 such individual's age."
29 U.S.C. § 623(a). To initiate a civil action under the ADEA, a plaintiff must first file a charge alleging unlawful discrimination with the EEOC and wait 60 days after filing. Fed. Express Corp. v. Holowecki, 552 U.S. 389, 395 (2008) (citing 29 U.S.C. § 626(d)). Plaintiff satisfied this procedural requirement.
As Plaintiff clarified in her Response, Count One alleges two distinct violations of the ADEA: failure to promote, and retaliation. Pl.'s Resp. at 3. Defendant's Motion challenges only the retaliation claim.*fn1
The anti-retaliation provision of the ADEA states: "It shall be unlawful for an employer to discriminate against any of his employees. . . because such individual. . . has opposed any practice made unlawful by this section, or because such individual. . . has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter." 29 U.S.C. § 623(d). To establish a prima facie case of retaliation under the ADEA, a plaintiff must show: (1) that she engaged in a protected employee activity; (2) that the employer contemporaneously or subsequently subjected her to adverse action; and (3) that the protected activity and the adverse action are causally linked. Fasold v. Justice, 409 F.3d 178, 188 (3d Cir. 2005) (citing Fogleman v. Mercy Hosp., Inc., 283 F.3d 561, 567-58 (3d Cir. 2002)); Peters v. Air Prods. & Chems., Inc., No. 05-CV-02038, 2006 WL 860097, at *5 (E.D. Pa. Mar. 31, 2006) (Gardner, J.) (discussing the three elements of an ADEA retaliation claim in the context of a motion to dismiss). A plaintiff may show a causal link by proving "(1) an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action"; "(2) a pattern of antagonism coupled with timing to establish a causal link"; or (3) that causation may be inferred "from the 'evidence gleaned from the record as a whole.'" Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007) (quoting Farrell v. Planters Lifesavers Co., 206 F.3d 271, 281 (3d Cir. 2000)) (internal citations omitted).
Defendant does not dispute that the Complaint alleges Plaintiff engaged in a protected activity by complaining that she suffered discrimination when Defendant failed to promote her. However, Defendant contends that the Complaint did not allege that Defendant took an adverse action against Plaintiff.
In Burlington Northern & Sante Fe Railway Co. v. White, 548 U.S. 53 (2006), the Supreme Court held that the scope of the "adverse action" element in Title VII's anti-retaliation provision included any "materially adverse" actions that, evaluated objectively, "might have 'dissuaded a reasonable worker from making or supporting a charge of discrimination.'" Id. at 68 (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)). The anti-retaliation provision was intended to protect employees from any conduct that "produces an injury or harm," not limited to conduct affecting an employee's "'compensation, terms, conditions, or privileges of employment.'" Id. at 61 (quoting 42 U.S.C. § 2000e-2), 67. However, "petty slights or minor annoyances that often take place at work and that all employees experience" are not treated as adverse actions. Id. at 68. Courts have applied the holding in Burlington Northern to the ADEA's anti-retaliation provision, which does not materially differ from the anti-retaliation provision in Title VII. See, e.g., Kessler v. Westchester Cnty. Dept. of Soc. Servs., 461 F.3d 199, 205 (2d Cir. 2006); Johnson v. McGraw-Hill Cos., 451 F. Supp. 2d 681, 710 (W.D. Pa. 2006) (McVerry, J.).
In her Complaint, Plaintiff alleged three adverse actions: criticism of Plaintiff's communication skills in the June 2010 evaluation; routine exclusion from meetings and decision-making processes relating to her job since May 2010; and a "campaign of retaliation." Compl. ¶¶ 27-33. First, Defendant contends that Plaintiff's allegations regarding the June 2010 evaluation do not support a retaliation claim because the evaluation contained "overwhelmingly positive content." Def.'s Mot. Dismiss 11. The Court agrees that, viewed objectively, the performance evaluation would not dissuade a reasonable worker from making or supporting a charge of discrimination. In fact, the June 2010 evaluation commends Plaintiff's "excellent oral and written communication skills." The evaluation further praises Plaintiff as "talented" and someone who "works well with individuals" and is "always able to bring differences to the table and resolve them in an amicable manner." Although the evaluation states in the "areas for improvement" section that Plaintiff's communication with Miller "has at times, been unprofessional," this hardly rises to a level of harm to support a retaliation claim.
Second, Defendant argues that Plaintiff's alleged exclusion from meetings and decision-making processes does not support a retaliation claim. However, the three cases that Defendant cited in support of its argument were decided on an employer's motion for summary judgment, where the employee did not produce sufficient evidence that exclusion from meetings was an adverse action to establish a prima facie case of retaliation. At the motion to dismiss stage, Plaintiff need not prove her prima facie case but rather must state a facially plausible claim.
Reading the Complaint in the light most favorable to Plaintiff, the allegation that she was excluded from meetings and decisions that affected her job functions supports a retaliation claim. In Burlington Northern, the Supreme Court explained that the anti-retaliation provision "speaks in general terms rather than specific prohibited acts. . .[because] an 'act that would be immaterial in some situations is material in others.'" Burlington Northern, 548 U.S. at 69 (quoting Washington v. Ill. Dept. of Revenue, 420 F.3d 658, 661 (7th Cir. 2005)). For instance, not inviting an employee to lunch could be either a "petty slight" if the gathering is purely social, or an adverse action if the lunch involves a training activity that "contributes significantly to the employee's professional advancement." Id. In this case, Plaintiff's allegations put Defendant on notice of the retaliation claim. Plaintiff should have the opportunity during discovery to develop evidence that her exclusion from the meetings and decision-making processes was material. Moreover, the temporal relationship between her complaint of discrimination and her exclusion from work meetings suggests a causal link.
Third, Defendant argues, and the Court agrees, that the allegation of a "campaign of retaliation" is vague and requires a more definite statement. Def.'s Mot. Dismiss 14 n.9. Plaintiff in her Response requested that she be allowed to provide a more definite statement as to the retaliation claim. Pl.'s Resp. 3 n.2. Although the Court finds that Plaintiff has stated a claim for retaliation based on Plaintiff's exclusion from job-related meetings and decision-making processes, the Court will grant Plaintiff the opportunity to amend the retaliation claim.
As a prerequisite to filing suit under the PHRA, "a plaintiff must first have filed an administrative complaint with the PHRC within 180 days of the alleged act of discrimination." Woodson v. Scott Paper Co., 109 F.3d 913, 925 (3d Cir. 1997) (citing 43 Pa. Stat. Ann. §§ 959(a), 962). After filing a charge with the PHRC, the PHRC has exclusive jurisdiction for one year over the claim. Burgh v. Borough Council of the Borough of Montrose, 251 F.3d 465, 471 (3d Cir. 2001) (citing Clay v. Advanced Computer Applications, Inc., 559 A.2d 917, 920 (Pa. 1989); 43 Pa. Stat. Ann. § 962(c)(1)). If the PHRC does not take action within one year of filing the charge, the plaintiff may proceed in court. Clay, 559 A.2d at 920 (citing 43 Pa. Stat. Ann. § 962(c)). Abiding by the procedural requirements of the PHRA "allows the PHRC to use its specialized expertise to attempt to resolve discrimination claims without the parties resorting to court." Woodson, 109 F.3d at 925.
A plaintiff's failure to exhaust administrative remedies deprives the district court of jurisdiction over the claim. See First Jersey Secs., Inc. v. Bergen, 605 F.2d 690, 700 (3d Cir. 1979). A motion to dismiss under Rule 12(b)(1) challenges the power of a federal court to hear a claim or case. Petruska v. Gannon Univ., 462 F.3d 294, 302 (3d Cir. 2006). Therefore, the Court treats Defendant's challenge to the PHRA claim based on Plaintiff's failure to exhaust her administrative remedies as a motion pursuant to Federal Rule of Civil Procedure 12(b)(1) rather than 12(b)(6). On a Rule 12(b)(1) motion, the Court does not draw all inferences in favor of the plaintiff, because the plaintiff bears the burden to "convince the court it has jurisdiction." Gould Elecs., Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000); Kehr Packages v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991) ("When subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff must bear the burden of persuasion.").*fn2
Here, Plaintiff has not met her burden to show that the Court has jurisdiction over her PHRA claims. Plaintiff did not state in the Complaint any facts to support her allegation that she exhausted her administrative remedies. Defendant filed with the Court Plaintiff's administrative "Charge of Discrimination" dated September 22, 2010. In her Response, Plaintiff did not offer any rebuttal facts that the PHRC acted on the Charge before she filed her Complaint, or that the Charge was in fact filed on an earlier date. Because the evidence demonstrates that Plaintiff filed her Complaint in federal court before the mandatory one-year waiting period expired, Plaintiff's claims under the PHRA will be dismissed for lack of subject matter jurisdiction.
Plaintiff cited ERISA in the jurisdictional allegations of the Complaint. The purpose of the ERISA statute is to protect participants and beneficiaries in employee benefit plans. Boggs v. Boggs, 520 U.S. 833, 845 (1997) (citing Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 90 (1983)). Plaintiff made no allegations to support a claim involving an employee benefit plan under ERISA. Any claim under ERISA is dismissed.
Plaintiff cited the FLSA in the jurisdictional allegations of the Complaint. In her Response, Plaintiff clarified that she does not assert a claim under the FLSA. Pl.'s Resp. 6. Plaintiff explained that she cited the FLSA because the ADEA incorporates certain provisions of the FLSA. See Lorillard v. Pons, 434 U.S. 575, 578-79 (1978) (discussing how the ADEA enforcement scheme follows the model of the FLSA in certain respects). Any claim under the FLSA is dismissed.
E. Other Claims
Defendant asks the Court to dismiss "any other claims in Counts I and II besides the ADEA and PHRA claims" on the grounds that "Plaintiff has not identified or delineated any [other] claims in Counts I and II." Def.'s Mot. Dismiss 18. Defendant essentially asks the Court to speculate what claims might be read into the Complaint for purpose of dismissing those same claims. The Court will not engage in such speculation or dismiss phantom claims.
The Court grants Defendant's Motion to Dismiss as to any claims pursuant to ERISA or the FLSA. The Court treats Defendant's Motion as a Rule 12(b)(1) motion with respect to Count Two, and dismisses the PHRA claims for lack of subject matter jurisdiction. The Court denies the Motion to Dismiss as to all other claims. The Court grants Defendant's Motion for a More Definite Statement as to the ADEA retaliation claim, and denies the Motion for a More Definite Statement in all other respects. Plaintiff shall file an Amended Complaint within fourteen days. An appropriate Order follows.
O:\CIVIL 11-12\11-557 Mikulski v. Bucks Community College\Mikulski MTD mem.wpd