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Nelson T. Molisee v. Securitas Security Services

January 4, 2012


The opinion of the court was delivered by: Mitchell, Magistrate Judge:


Presently before the Court is a motion to dismiss the amended complaint submitted by the defendant, Securitas Security Services, USA, Inc. ("Securitas"). For reasons discussed below, Securitas‟ motion to dismiss (Document No. 10) will be granted as to Counts II and III and as to the plaintiff‟s claim of age discrimination in Count IV, and denied in all other respects.

In this alleged employment discrimination case, the plaintiff, Nelson T. Molisee, has filed a four-count amended complaint against Securitas, his former employer. In Count I, the plaintiff complains that Securitas unlawfully terminated his employment on the basis of his disability or perceived disability in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101, et seq. In Count II, the defendant is said to have unlawfully terminated the plaintiff‟s employment on the basis of his age in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq. In Count III, the plaintiff contends that he was subjected to a hostile work environment by his supervisor during his employment at Securitas. In Count IV, Securitas is said to have discriminated against the plaintiff on the basis of his age and disability in violation of the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. § 951 et seq. The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1367.

In the amended complaint, the plaintiff contends that Securitas, a security service company, hired him in 2007 as a Field Supervisor, which required him to service its clients, and train, mentor, and discipline its security officers; that during his tenure as a Field Supervisor, he was forced to work excessive hours, sometimes 75-100 hours per week to serve the needs of clients; that as a result of being overworked, he developed a serious medical condition, including heart problems, diabetes and severe chronic obstructive pulmonary disease ("COPD"), which was known by Securitas; that due to his heart problem and diabetes, he missed work for four to five weeks; that when he returned to work, he was called into Vice President John Dixon‟s office, and Dixon told him he would be fired if he continued to talk to Sales Manager John Scanlon; and that Vice President Dixon frequently belittled, berated and created a hostile work environment for the plaintiff.

The plaintiff asserts that approximately three months prior to his termination, Vice President Dixon received a client complaint unrelated to the plaintiff; that Dixon then met with Branch Managers Jeff Werner and Melissa Glaze to discuss why Securitas‟ Field Supervisors, including the plaintiff, were not handling client complaints; that at that meeting, Dixon is said to have indicated that the plaintiff had a heart problem and an eighth grade education and stated "What‟s he going to do for you?"; and that Dixon told Branch Managers Werner and Glaze to meet with the Field Supervisors and direct them to confront problems involving security officers rather than avoid them, which Werner and Glaze did.

The plaintiff further alleges that after the Field Supervisors were instructed to deal with problems involving security officers, Branch Manager Glaze received a complaint from a hotel client regarding a security officer who was acting in dereliction of his duties; that Glaze told the plaintiff to meet with the client and determine if the security officer was acting properly; that the plaintiff found that the security officer was acting improperly, and he informed the officer he would re-inspect him in one week; and that upon re-inspection, the officer was again found to be in dereliction of his duties, whereupon the plaintiff was instructed to call a replacement officer and report the incident to Vice President Dixon.

The plaintiff contends that when the derelict security officer was replaced by another officer, he called the employee complaint line and asserted he was removed because of his race; that Securitas investigated the incident, after which Branch Manager Werner was informed that the plaintiff was going to be discharged; that Werner objected to the plaintiff‟s discharge, as he was not interviewed during the investigation and felt that the plaintiff had followed company procedures; and that nonetheless, the plaintiff‟s employment was terminated.

The plaintiff avers that on or about June 30, 2010, following his discharge, he filed an Intake Questionnaire with the Equal Employment Opportunity Commission ("EEOC"), asserting claims of age discrimination, disability discrimination and retaliation; that on or about May 19, 2011, the EEOC issued him a "right to sue" letter in connection with his claims; and that he has complied with all procedural requirements for initiating this suit.

On August 15, 2011, the plaintiff commenced this action by filing a complaint against the defendant. On October 4, 2011, the plaintiff filed his amended complaint, alleging that Securitas discriminated against him in violation of the ADA, the ADEA, and the PHRA, and subjected him to a hostile work environment.

In response to the amended complaint, Securitas has moved to dismiss it in its entirety for failure to state a claim pursuant to F.R.Civ.P. 12(b)(6). We agree that the plaintiff‟s pleadings are deficient as to his ADEA claim in Count II, hostile work environment claim in Count III, and age discrimination claim under the PHRA in Count IV.

In reviewing a Rule 12(b)(6) motion to dismiss, the Court "must accept all of the complaint‟s well-pleaded facts as true, but may disregard any legal conclusions." Fowler v. UPMC, 578 F.3d 203, 210-11 (3d Cir. 2009), citing Ashcroft v. Iqbal, -- U.S. -- , 129 S.Ct. 1937, 1949 (2009). The court "must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "plausible claim for relief.‟" Fowler, 578 F.3d at 211, quoting Iqbal, 129 S.Ct. at 1950. To be "plausible‟, a claimant‟s factual allegations must "permit the court to infer more than the mere possibility of misconduct." Id. That is, "a complaint must do more than allege the plaintiff‟s entitlement to relief"; it "has to "show‟ such an entitlement with its facts." Fowler, 578 F.3d at 211. A pleading that only proffers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

ADA claim in Count I:

Count I of the amended complaint purports to state a claim for disability discrimination under the ADA. To state a claim under the ADA, the plaintiff must allege that he: (1) has a "disability" within the meaning of the ADA, (2) is otherwise qualified to perform the essential functions of the job, and (3) has suffered an adverse employment decision because of his disability. Williams v. Phila. Housing Auth.Police Dept., 380 F.3d 751,761 (3d Cir. 2004).

Securitas argues that the plaintiff has not established the first or third prong of his prima facie case, as his pleadings do not reflect that he has a "disability" as defined by the ADA, or that he was terminated because of his disability. We disagree.

Under the ADA, the term "disability" means, with respect to an individual--

(A) a physical or mental impairment that substantially limits one or more of the major life ...

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