The opinion of the court was delivered by: (judge Conaboy)
Here we consider Defendants' Partial Motion to Dismiss/Motion to Strike Plaintiff's Amended Complaint (Doc. 15) filed on July 19, 2012, by Defendants WVHCS Retention Company ("WVHCS") and James Carmody ("Carmody") (collectively "Defendants"). With this motion, Defendants seek dismissal of the following: 1) age discrimination claim against Defendant James Carmody; 2) common law tort claim for constructive discharge; 3) defamation claim; and 4) demands for punitive damages under the ADEA and PHRA and for liquidated damages under the PHRA. (Doc. 15 at 1-2.) Defendants filed a supporting brief with their motion. (Doc. 15-2.) Plaintiff has not filed a responsive brief and the time for doing so has passed. Therefore, this matter is ripe for disposition. For the reasons discussed below, Defendants' motion is granted in part and denied in part.
Plaintiff was employed with WVHCS and its predecessor as a full-time
registered nurse since approximately 1975.*fn2 In
October 2008, Plaintiff went to the Price Chopper in Edwardsville,
Pennsylvania, at approximately 11:15 p.m. following a sixteen (16)
hour shift at the hospital. (Doc. 11 ¶ 16.) She parked in the fire
lane when she went into the store and received a ticket for doing so.
(Doc. 11 ¶ 19.) Plaintiff avers that she paid the ticket immediately
but it was returned to her because she had failed to sign the
citation. (Doc. 11 ¶ 20.) On or about November 26, 2008, Plaintiff
went to the Edwardsville Police Department to pay the fine. (Doc. 11 ¶
21.) Officer Michael Lehman was the attendant in the office. (Doc. 11
¶ 22.) At some time prior to December 2, 2008, someone from the
Edwardsville Police Department called Lisa Goble, a representative of
the Human Resources
Department ("HR") of WVHCS, and alleged that Plaintiff "had caused a
'ruckus' in the Edwardsville Police Department and that she had told
Officer Lehman that if he or his associates were in need of care in
the Hospital Emergency Room, they would 'have to wait.'" (Doc. 11 ¶
27.) Plaintiff denies the allegation that she caused a ruckus. (Doc.
11 ¶ 28.)
Plaintiff's supervisor, Norma Janosky, told Plaintiff that the Edwardsville Police Department was insinuating that she was using the hospital as a tool, and that she would most likely face disciplinary action as she was representing the hospital in this context. (Doc. 11 ¶ 39.) When Plaintiff denied the allegations, Plaintiff was advised to speak with James Carmody, head of the hospital's HR Department. (Doc. 11 ¶ 40.)
Plaintiff avers that she received information that at some point before December 5, 2008, Edwardsville Police Chief David Souchick spoke to Defendant Carmody and told him that "the matter allegedly involving Plaintiff at the Edwardsville Police Department was no more than a 'misunderstanding' and that the matter should not proceed further." (Doc. 11 ¶ 43.) Plaintiff further avers that Defendant Carmody told Souchick that the matter was "now in the hands of HR." (Doc. 11 ¶ 44.)
An "Agreement" concerning Plaintiff's disciplinary terms was formalized on December 11, 2008. (Doc. 11 ¶ 59.) Plaintiff's discipline included the following: 1) suspension from January 5, 2009, through January 16, 2009; 2) the suspension would be relied upon as the primary basis for any subsequent (progressive) discipline for a period of three years beginning on January 5, 2009; 3) Plaintiff would write a letter of apology to the Edwardsville Police Department; 4) neither Plaintiff nor her union would file a grievance or any such action related to the disciplinary decision; 5) the terms of the Agreement did not establish precedent or suspend, modify, or terminate any provision of the collective bargaining agreement between WVHCS-Hospital and the union; and 6) the determination by the hospital was strictly confidential. (Doc. 11 ¶ 59.)
Defendants aver that Plaintiff was disciplined because of her statements. (Doc. 15-2 at 2.) Plaintiff contends that her discipline was really a result of her age and salary. (Doc. 15-2 at 2 (citing Doc. 11 ¶¶ 61, 73).) Plaintiff alleges that, as a result of the disciplinary action against her and the rumored "buyout" of the hospital, she felt she was targeted for "extreme and/or unnecessary future action, including termination because of her age and longevity." (Doc. 11 ¶ 73.) She further explains that she felt "because of the potential sale of the Hospital, she would be a target based upon her age, her corresponding pay based upon her years of experience, and her ability to collect the amount of overtime, classifying her as one of the top five paid employees from [the Hospital]." (Doc. 11 ¶ 74.) Plaintiff alleges that "[f]inding no other available options, a lack of meaningful and appropriate communication from the Defendants, and with a likely risk of future termination for aforesaid reasons" Plaintiff submitted a letter to her supervisor stating that she was resigning from her full-time position but wanted to remain "per diem" in both the Endoscopy Unit and Emergency Room. (Doc. 11 ¶ 75.)
In the beginning of January 2009, layoffs were beginning to take place at the hospital in anticipation of the merger. (Doc. 11 ¶ 84.) On January 20, 2009, Plaintiff requested to work additional hours in the Emergency Room and she was assigned to do so. (Doc. 11 ¶ 88.) On January 21, Plaintiff's Endoscopy Unit supervisor, Ms. Janoski, told Plaintiff should could no longer do per-diem work in the Endoscopy Unit. (Doc. 11 ¶ 89.) She was told the directive came from Defendant Carmody. (Id.) On the same date, Plaintiff learned she was not allowed to work in the emergency room. (Doc. 11 ¶ 92.) Plaintiff learned that the disciplinary letter in her file would preclude any additional per diem or overtime work. (Doc. 11 ¶ 93.) She states that she "immediately secured further employment at a lower level." (Doc. 11 ¶ 94.) The footnote inserted following this assertion notes that Plaintiff took a job at Moses Taylor Hospital on December 17, 2009. (Doc. 11 ¶ 94 & n.3.)
In May 2009, Wyoming Valley Health Care System, Inc., transferred control of its assets to another entity, now known as WVHCS Retention Company. (Doc. 11 ¶¶ 95-96.) Plaintiff believes that Cornelius Catena replaced Dr. William Host as Chief Executive Officer. (Doc. 11 ¶ 98.) In June or July of 2009, Mr. Catina told Plaintiff that, after discussing the matter with Defendant Carmody, it would not be in the hospital's best interest to rehire her. (Doc. 11 ¶ 100.) Plaintiff believes that Carmody represented to others that Plaintiff had a number of prior disciplinary actions against her. (Doc. 11 ¶ 98.)
Based on these allegations, Plaintiff sets out four counts in her Amended Complaint: Count I against both Defendants for violation of the Age Discrimination in Employment Act ("ADEA"); Count II against both Defendants for violation of the Pennsylvania Human Relations Act ("PHRA"); Count III against both Defendants for Constructive Discharge; and Count IV against both Defendants for Defamation. (Doc. 11 at 23-41.) She filed the Amended Complaint on April 3, 2012.
Defendants filed the motion under consideration here on July 19, 2012. (Doc. 15.) Defendants make the following arguments: Plaintiff's ADEA claim against Defendant Carmody must be dismissed because the ADEA does not provide for individual liability (Doc. 15-2 at 4); Plaintiff's common law constructive discharge claim must be dismissed because it is preempted by the Pennsylvania Human Relations Act (id.); Plaintiff's defamation claim must be dismissed both because it is time-barred and Plaintiff has not identified a defamatory statement (Doc. 15-2 at 5); Plaintiff's demand for punitive damages under the ADEA or PHRA must be stricken because punitive damages are not available under these statutes (Doc. 15-2 at 8); and Plaintiff's demand for liquidated damages must be stricken because these damages are not available under the PHRA (id.).
Because Plaintiff did not file a brief in opposition to Defendants'
motion, pursuant to the Local Rules of Court of the Middle District of
Pennsylvania, she is deemed not to oppose the motion. See L.R. 7.6.
Even in cases where the plaintiff has not responded to a motion to
dismiss, the Third Circuit Court of Appeals has instructed that a
plaintiff's claims should not be dismissed before the Court analyzes
the relevant factors found in Poulis v. State Farm Fire & Casualty
Co., 747 F.2d 863 (3d Cir. 1984). See, e.g., Xenos v. Hawbecker, 441
F. App'x 128, 131 (3d Cir. 2011) (not precedential) (citing Comdyne I,
Inc. v. ...