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Herskowitz v. County of Lebanon

United States District Court, Third Circuit

October 1, 2013



MARTIN C. CARLSON, Magistrate Judge.


Much preliminary litigation in federal court now turns on construing the heightened pleading standards announced by the United States Supreme Court in Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007) and Ashcroft v. Iqbal , 556 U.S. 662 (2009), which eschew pleadings that are no more than "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements" and instead enjoin courts to:

[B]egin by identifying pleadings that because they are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Iqbal at 679.

There is, however, a risk which lurks within these heightened pleading standards. In some instances these pleading standards, which were designed to curb litigation based formulaic assertions of claims, can lead to the opposite result, motions to dismiss which rest upon formulaic assertions that well-pleaded facts are simply talismanic recitals of a cause of action, and reasonable inferences are mere conclusory statements.

The above-captioned action presents an employment dispute between Benjamin P. Herskowitz, who had been employed as the Hazardous Materials Chief of Lebanon County prior to being terminated on November 10, 2012. Specifically, the plaintiff alleges that his employment was terminated for unlawful retaliatory and discriminatory reasons, in violation of federal and Pennsylvania law. Additionally, the plaintiff claims that during his employment the defendant interfered with his right to exercise leave benefits under the Family Medical Leave Act in order to care for his wife during and after her pregnancy, and to help care for his infant son who suffered from certain serious health conditions post-delivery. The plaintiff also claims that his employer retaliated against him because he attempted to exercise his rights under the FMLA.

The defendant has filed a partial motion to dismiss the complaint, arguing that the plaintiff's claims for discrimination and harassment fail at the pleading stage for lack of sufficient factual allegations, and improper reliance upon "hollow" legal conclusions. Upon consideration, we disagree.

The complaint, read as an entire narrative, alleges facts that adequately claim discrimination, retaliation, and interference with the plaintiff's rights in violation of state and federal law. Given this commonsense reading of the 37 page, 169 paragraphs set forth in the plaintiff's complaint, the defendant's motion to dismiss, in many respects, seems to simply rely upon a recitation of the pleading standards that have been enunciated and explained in recent years by the Supreme Court and the United States Court of Appeals for the Third Circuit, without demonstrating how those legal benchmarks apply to the actual pleading filed in this case. In short, this motion does not demonstrate that the plaintiff's complaint fails to meet these pleading standards, and cannot make such a showing since the complaint actually contains a careful factual recital.[1]

Because we find that the plaintiff's 169-paragraph complaint has clearly, sufficiently, and plausibly alleged facts adequate to support his claims of discrimination, retaliation, and interference with the exercise of his rights, and because the complaint otherwise satisfies the standards imposed on pleadings in federal civil actions, we will recommend that the defendant's motion to dismiss be denied, and that the parties be directed to proceed to mediation to see whether the plaintiff's claims are susceptible to a mutually agreeable resolution.[2] If mediation is unsuccessful, we recommend that the parties be directed to commence discovery, during which they will have an opportunity to determine whether the plaintiff is able to develop evidentiary support for his various theories of relief.


According to the detailed complaint filed in this action, the plaintiff began his employment with Lebanon County in May 2008. (Doc. 1, ¶ 12) Sometime thereafter, the plaintiff became the defendant's Hazardous Materials Chief. In this capacity, the plaintiff's immediate supervisor was Daniel Kauffman, who served as the defendant's Emergency Management Director. In connection with his employment as Hazardous Materials Chief, the plaintiff received annual performance ratings that either met or exceeded expectations, and prior to November 10, 2010, the plaintiff had never received any written discipline. ( Id., ¶¶ 14-17)

In the fall of 2009, the plaintiff's wife became pregnant. ( Id., ¶ 25) During her pregnancy, the plaintiff's wife experienced health complications, and plaintiff was as a result forced to miss time from work intermittently to care for her. ( Id., ¶¶ 26-27) The defendant was aware that the plaintiff was missing work relating to his wife's complications during her pregnancy, and plaintiff submitted a written request to use leave under the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601-2654.

The plaintiff's son was born on June 5, 2010. (Doc. 1, ¶ 40) Shortly after he was born, the plaintiff's son began suffering from serious health conditions that required continuing medical treatment and surgery. ( Id., ¶¶ 41-43) In addition, during this same post-delivery period, the plaintiff's wife developed other serious medical conditions that required the plaintiff to miss additional time from work in order to help care for his family. ( Id., ¶¶ 44-50)

In July 2010, the plaintiff was served with a subpoena to testify at an unemployment compensation hearing of a colleague. ( Id., ¶ 60) The plaintiff notified that defendant's Director of Human Resources to inform her of his receipt of a subpoena, and that he intended to testify regarding what he perceived to be the defendant's misogynistic attitudes, and to attest that his colleague had been treated less favorably than similarly situated men. ( Id., ¶¶ 63-66) In addition, the plaintiff informed the Director of Human Resources that he opposed the gender discrimination that he had witnessed, and that he reported his opposition to this conduct to his supervisor, Mr. Kauffman, on several prior occasions. ( Id., ¶ 67)

On July 14, 2010, the plaintiff testified at his co-worker's unemployment compensation hearing. During his testimony, the plaintiff testified about gender discrimination he had observed directed at his colleague, and that he had reported this ...

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