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McCall v. Butler Health System/Butler Memorial Hospital

United States District Court, Third Circuit

December 4, 2013

GREG R. McCALL, Plaintiff,


MAUREEN P. KELLY, Magistrate Judge.

Defendant Butler Health System/Butler Memorial Hospital ("Butler") has filed a Motion to Dismiss Plaintiff's First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, Defendants' Motion to Dismiss [ECF No. 14] is granted and Plaintiff's First Amended Complaint is dismissed without prejudice.


Plaintiff Greg McCall ("Plaintiff") initiated this action on January 28, 2013, filing a Complaint with this Court [ECF No. 1]. On March 18, 2013, Defendant moved to dismiss the Complaint for failure to state a claim and raising timeliness issues. [ECF No. 3]. In response, Plaintiff filed his First Amended Complaint ("Amended Complaint"). In his Amended Complaint, Plaintiff alleges claims for age discrimination and constructive discharge pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. ("ADEA"), and a claim for retaliation pursuant to the Pennsylvania Human Relations Act, 43 Pa.C.S. § 951, et seq. ("PHRA").

Because this matter comes to the Court on a Rule 12(b)(6) Motion to Dismiss, the factual allegations set forth in Plaintiff's Amended Complaint are accepted as true. See Oshiver v. Levin, Fishbein, Sedran & Berman , 38 F.3d 1380, 1384 (3d Cir. 1994). In pertinent part, the Amended Complaint alleges that Plaintiff was born in 1947 and was hired by Defendant in 1989. Plaintiff's last position in the Defendant's employ was as the Information Systems Technical Help Desk Supervisor in the Technical Help Desk department. Plaintiff alleges that in March 2009, at the age of 62, he was offered $26, 000 to retire and when Plaintiff refused, he received two written reprimands based upon false allegations. Plaintiff had not previously been the subject of disciplinary action and Plaintiff alleges that substantially younger employees in his department were not reprimanded without justification. Beginning in July 2010, Plaintiff was assigned additional responsibilities to work as a "greeter" at the reception desk, a position for which he received no additional compensation and which Plaintiff found humiliating and discriminatory, given that the position required limited skills and none of the younger personnel in his department were similarly reassigned.

On July 20, 2010, Plaintiff filed an age discrimination charge with the Equal Employment Opportunity Commission ("EEOC") [ECF No. 12, ¶ 23; ECF No. 15-1], alleging that because of his age, he was subjected to a hostile work environment and demoted to a demeaning position with a loss of job responsibilities. [ECF No. 12, ¶¶ 23, 30]. Plaintiff cross-filed with the Pennsylvania Human Relations Commission (PHRC"). After receiving an "EEOC Dismissal letter" with respect to this charge on November 17, 2010, he "chose not to file in Federal Court." Id.

Plaintiff alleges that Defendant learned of his EEOC complaint "within days" of filing and retaliated against Plaintiff for the next 18 months by excluding him from discussions and decisions concerning the operation of his department, undermining his ability to perform his job, and publicly berating Plaintiff concerning the shortcomings of his department. By the fall of 2011, Plaintiff was not permitted to participate in required training required for his position, and was given poor performance reviews even though he had been effectively stripped of his ability to perform his job for the years 2010 and 2011. As a result of this alleged retaliatory and discriminatory treatment, on January 4, 2012, Plaintiff filed a second charge of discrimination with the EEOC alleging a hostile work environment and retaliation, and cross-filed with the PHRC. [ECF No. 12-5, ¶¶ 23-30; ECF No. 15-2]. On April 27, 2012, Plaintiff received a second EEOC "right to sue letter, " identified in Plaintiff's complaint as an "EEOC Dismissal letter." Id. at ¶ 30. The second letter, attached to Plaintiff's Amended Complaint as Exhibit 6, like the first right to sue letter Plaintiff received in 2010, contains a "Notice of Suit Rights." Through this Notice, Plaintiff was informed that he "may file a lawsuit against the defendant under federal law based on this charge in federal or state court." [ECF No. 12-6]. The letter further states "Your lawsuit must be filed WITHIN 90 DAYS of your receipt of this notice; or your right to sue based on this charge will be lost." [ Id., (bold, underscore and capitalization in original)]. Plaintiff again "chose not to file in Federal Court." [ECF 12, ¶ 30].

As a result of "intolerable working conditions, " Plaintiff suffered from depression, anxiety and stress to such a degree that his physician recommended he retire. [ECF No. 12, ¶¶ 11-12]. Accordingly, on February 20, 2012, Plaintiff tendered notice of his intent to retire to Butler, effective March 30, 2012. Plaintiff alleges his retirement constituted a "constructive discharge, " arising out of Defendant's discriminatory and retaliatory conduct. Plaintiff therefore filed a third charge of discrimination with the EEOC (No. 533-2012-00654) on April 13, 2012, for constructive discharge and retaliation, and cross-filed with the PHRC. [ECF No. 12-3]. Plaintiff alleges that as a result of his constructive discharge, he has suffered economic losses in the form of lost wages, pension and health benefits, as well as other fringe benefits, along with future earnings, front pay and other expenditures necessitated by Defendant's conduct. [ECF No. 12, ¶¶ 16-20].

In reference to the third charge of discrimination, the EEOC issued a third right to sue letter on November 13, 2012. This suit was initiated on January 29, 2013, within 90 days of the third right to sue letter.

This Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1343. In addition, this Court has jurisdiction over the pendant state law claims pursuant to 28 U.S.C. § 1367(a). Venue lies in this district pursuant to 28 U.S.C. § 1391(b), as the acts giving rise to this lawsuit allegedly occurred in this district.


In assessing the sufficiency of the complaint pursuant to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true all material allegations in the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Odd v. Malone , 538 F.3d 202, 205 (3d Cir. 2008). The Court, however, need not accept bald assertions or inferences drawn by the plaintiff if they are unsupported by the facts set forth in the complaint. See California Public Employees' Retirement System v. The Chubb Corp. , 394 F.3d 126, 143 (3d Cir. 2004), citing Morse v. Lower Merion Sch. Dist. , 132 F.3d 902, 906 (3d Cir. 1997). Nor must the Court accept legal conclusions set forth as factual allegations. Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555 (2007). Rather, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Id., citing Papasan v. Allain , 478 U.S. 265, 286 (1986). Indeed, the United States Supreme Court has held that a complaint is properly dismissed under Fed.R.Civ.P. 12(b)(6) where it does not allege "enough facts to state a claim to relief that is plausible on its face, " id. at 570, 127 S.Ct. 1955, or where the factual content does not allow the court "to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). See Phillips v. County of Allegheny , 515 F.3d 224, 231 (3d Cir. 2008) (finding that, under Twombly, "labels, conclusions, and a formulaic recitation of the elements of a cause of action" do not suffice but, rather, the complaint "must allege facts suggestive of [the proscribed] conduct" and that are sufficient "to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s] of his claim").

In addition, the Court is not limited to evaluating the complaint alone; it can also consider documents attached to the complaint, matters of public record, indisputably authentic documents, Delaware Nation v. Pennsylvania , 446 F.3d 410, 413 n. 2 (3d Cir. 2006), documents that form the basis of a claim, Lum v. Bank of America , 361 F.3d 217, 221 n. 3 (3d Cir. 2004) ( abrogation on other grounds recognized by In re Insurance Brokerage Antitrust Litigation , 618 F.3d 300, 323 n. 22 (3d Cir. 2010)), and "documents whose contents are alleged in the complaint and whose authenticity no party questions, " even though they "are not physically attached to the pleading...." Pryor v. Nat'l Collegiate Athletic Ass'n , 288 F.3d 548, 560 (3d Cir. 2002). Plaintiff did not attach his three EEOC/PHRC charges to his Amended Complaint, but did provide copies of the EEOC right to sue letters issued in November 17, 2010, April 27, 2012 and November 12, 2012. In conjunction with their Motion to Dismiss, Defendants have provided copies of Plaintiff's first and second EEOC/PHRC complaints. [ECF No. 15-1, 15-2]. Plaintiff has not objected to the authenticity of these documents, which form the basis of his retaliation and constructive discharge claims and which are expressly referred to in his Amended Complaint. Therefore, the Court finds that it may rely upon the EEOC administrative charges without converting the present motion to a motion for summary judgment under Rule 56. Price v. Schwan's Home Servs., Inc., No. 05-220J, 2006 WL 897721 (W.D. Pa. Apr. 3, 2006).[1]


Defendant moves to dismiss Plaintiff's ADEA claim as untimely. Defendant argues that the allegedly discriminatory acts forming the predicate of Plaintiff's constructive discharge and retaliation claims were the subject of the two previously filed charges with the EEOC and cross-filed with the PHRC. After investigating each of Plaintiff's earlier charges, the EEOC issued right to sue letters on November 17, 2010, and April 25, 2012, notifying Plaintiff that he had 90 days to file suit against his employer for the conduct alleged in the charging complaint. Defendant contends the instant federal action for constructive discharge is unsustainable because it relies entirely upon acts made the subject of the prior two EEOC charges, and by failing to timely file suit, Plaintiff did not properly exhaust required and available administrative remedies. In the absence of any allegations of discriminatory or retaliation independent of the content of the prior EEOC charges, Defendant argues that Plaintiff's Amended Complaint fails to state a claim upon which relief can be granted.

In response, Plaintiff contends that the previously issued right to sue letters do not control the timeliness or propriety of this action; rather, Plaintiff argues, this action was timely filed within 90 days of receipt of a third EEOC right to sue letter issued on November 13, 2012, which arises solely out of his constructive discharge. Plaintiff posits that his pending lawsuit is proper because the predicate elements of his constructive discharge claim were not "actionable" at the time his prior EEOC charges were filed, in part because he had not suffered ...

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