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Gerald A. Zielinski v. Whitehall Manor

September 28, 2012

GERALD A. ZIELINSKI, PLAINTIFF
v.
WHITEHALL MANOR, INC., DEFENDANT



The opinion of the court was delivered by: James Knoll Gardner United States District Judge

OPINION

This matter is before the court on the Partial Motion to Dismiss Counts III and IV of Plaintiff's Amended Complaint Against Defendant Whitehall Manor, Inc., which motion was filed on December 13, 2011 ("Motion to Dismiss"). Plaintiff's Brief in Opposition to Defendant's Motion to Dismiss was filed January 5, 2012 ("Plaintiff's Brief").

SUMMARY OF DECISION For the reasons expressed below, I deny defendant's Partial Motion to Dismiss Counts III and IV of Plaintiff's Amended Complaint Against Defendant Whitehall Manor, Inc. Specifically, I deny defendant's motion because plaintiff's January 12, 2010 letter to the Equal Employment Opportunity Commission constitutes a Charge of Retaliation in violation of the Age Discrimination in Employment Act *fn1 ("ADEA") and the Pennsylvania Human Relations Act *fn2 ("PHRA"). Further, I find that plaintiff's Charge of Retaliation was filed with the Equal Employment Opportunity Commission and the Pennsylvania Human Relations Commission prior to the deadline required by the ADEA and the PHRA.

Finally, I find that plaintiff has pled sufficient facts to support a reasonable inference that defendant retaliated against plaintiff for complaining of age discrimination in violation of the ADEA and the PHRA. Specifically, plaintiff has pled sufficient facts to support a reasonable inference that plaintiff engaged in activity protected by the ADEA and the PHRA, that defendant took an adverse employment action against plaintiff after such protected activity, and that a causal relationship exists between plaintiff's protected activity and the adverse employment action.

JURISDICTION This court has jurisdiction in this matter pursuant to 28 U.S.C. § 1331 because Plaintiff's Amended Complaint alleges that defendant violated the federal Family and Medical Leave Act *fn3 ("FMLA") and the federal ADEA. The claims alleged thus pose a federal question.

VENUE Venue is proper pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the events giving rise to plaintiff's claims allegedly occurred in Whitehall, Lehigh County, Pennsylvania, which is located in this judicial district.

PLAINTIFF'S CLAIMS In his four-count amended complaint, plaintiff Gerald

A. Zielinski alleges that defendant Whitehall Manor, Inc. violated the FMLA (Counts One and Two), the ADEA (Count Three), and the PHRA (Count Four). *fn4

Specifically, in Count One plaintiff alleges that defendant violated 29 U.S.C. § 2615(a)(1) of the FMLA, *fn5 which prohibits interfering with or denying rights afforded under the FMLA.

In Count Two plaintiff alleges that defendant violated 29 U.S.C. § 2615(a)(2) of the FMLA, *fn6 which prohibits discrim- inating against an individual attempting to exercise his rights under the FMLA.

In Count Three plaintiff alleges that defendant violated 29 U.S.C. § 623(d) of the ADEA, *fn7 which prohibits an employer from retaliating against an employee for opposing conduct made unlawful by the ADEA.

Finally, in Count Four, plaintiff alleges that defendant violated 43 P.S. § 955(d) of the PHRA, *fn8 which prohibits an employer from retaliating against an employee for opposing conduct made unlawful by the PHRA.

STANDARD OF REVIEW A claim may be dismissed under Federal Rule of Civil Procedure 12(b)(6) for "failure to state a claim upon which relief can be granted." A Rule 12(b)(6) motion requires the court to examine the sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957) (abrogated in other respects by Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Generally, in ruling on a motion to dismiss, the court relies on the complaint, attached exhibits, and matters of public record, including other judicial proceedings. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2008).

Except as provided in Federal Rule of Civil Procedure 9, a complaint is sufficient if it complies with Rule 8(a)(2), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief". Rule 8(a)(2) does not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face. Twombly, 550 U.S. at 570, 127 S.Ct. at 1974, 167 L.Ed.2d at 949. *fn9

In determining whether a complaint is sufficient, 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, the plaintiff may be entitled to relief. Fowler, 578 F.3d at 210 (citing Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)).

Although "conclusory" or "bare-bones allegations" will not survive a motion to dismiss, Fowler, 578 F.3d at 210, a complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits. Phillips, 515 F.3d at 231. Nonetheless, to survive a Rule 12(b)(6) motion, the complaint must provide "enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." Id. at 234 (quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965, 167 L.Ed.2d at 940) (internal quotations omitted).

The court is required to conduct a two-part analysis when considering a Rule 12(b)(6) motion. First, the factual matters averred in the complaint, and any attached exhibits, should be separated from legal conclusions asserted. Fowler, 578 F.3d at 210. Any facts pled must be taken as true, and any legal conclusions asserted may be disregarded. Id. at 210-211.

Second, the court must determine whether those factual matters averred are sufficient to show that the plaintiff has a "plausible claim for relief." Id. at 211 (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. at 1950, 178 L.Ed.2d at 884).

Ultimately, this two-part analysis is "context-specific" and requires the court to draw on "its judicial experience and common sense" to determine if the facts pled in the complaint have "nudged [plaintiff's] claims" over the line from "[merely] conceivable [or possible] to plausible." Iqbal, 556 U.S. at 679-680, 129 S.Ct. at 1949-1951, 178 L.Ed.2d at 884-885.

A well-pled complaint may not be dismissed simply because "it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely." Twombly, 550 U.S. at 556, 127 S.Ct. at 1965, 167 L.Ed.2d at 940-941 (internal quotations omitted).

FACTS Based upon the factual allegations in Plaintiff's Amended Complaint construed in the light most favorable to plaintiff, which I must accept as true under the applicable standard of review discussed above, the pertinent facts are as follows.

Plaintiff Gerald Zielinski is an adult individual who resides in Whitehall, Lehigh County, Pennsylvania. Defendant Whitehall Manor, Inc. is an assisted living personal care home which employed plaintiff as its Maintenance Director from February, 2002 until July, 2009. *fn10

From 2002 through 2008, plaintiff's performance evaluations were excellent. After suffering a workplace injury in February 2009, plaintiff had surgery on his knee on March 27, 2009. On April 21, 2009 plaintiff returned to work.

Upon plaintiff's return to work, defendant's President Nimita Kapoor-Atiyeh ("Supervisor") demoted plaintiff to the position of Personal Care Assistant and required that he work the overnight shift. Four weeks later plaintiff's Supervisor reduced plaintiff's hourly pay. Plaintiff's Supervisor harassed him incessantly for several months thereafter. *fn11

In June 2009 plaintiff expressed concern to his Supervisor that he had not been reinstated to his position as Maintenance Director as he believed he was entitled under the FMLA. On the evening of July 15, 2009, plaintiff's attorney sent a letter by facsimile transmission ("fax") to the home of plaintiff's Supervisor, warning the Supervisor of possible age discrimination. Plaintiff's Supervisor fired plaintiff the next day, July 16, 2009. Plaintiff was 65 years old at the time of his termination from employment. *fn12

On January 12, 2010, exactly 180 days from plaintiff's termination date of July 16, 2009, plaintiff faxed a letter to the Philadelphia branch of the Equal Employment Opportunity Commission ("EEOC") requesting assistance in filing a Charge of Retaliation against defendant ("January 12, 2010 letter"). The EEOC received a paper copy of the letter by mail on January 14, 2010. In the letter, plaintiff requested that the Charge of Retaliation be cross-filed with the Pennsylvania Human Relations Commission ("PHRC"). *fn13

On April 6, 2010, plaintiff filed a Charge of Discrimination with the EEOC against defendant alleging discrimination for a disability, and retaliation for a protected activity, in violation of the Americans with Disabilities Act *fn14

("ADA"). Both the January 12, 2010 letter and the April 6, 2010 Charge of Discrimination were given the same charge number by the EEOC. The EEOC notified defendant of plaintiff's ...


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