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Bartlett v. Kutztown University

United States District Court, E.D. Pennsylvania

February 23, 2015

KUTZTOWN UNIVERSITY; EAST STROUDSBURG UNIVERSITY; JAVIER CEVALLOS, in his personal and professional capacities; CARLOS VARGAS ABURTO, in his personal and professional capacities; GERALD SILBERMAN, in his personal and professional capacities; SHARON PICUS, in her personal and professional capacities; JOHN GREEN, in his personal and professional capacities; THERESA FRITSCHE, in her personal and professional capacities; MARCIA G WELSH, in her personal and professional capacities; and PENNSYLVANIA STATE SYSTEM OF HIGHER EDUCATION Defendants.


C. DARNELL JONES, II, District Judge.

I. Introduction

Currently pending before this Court is Defendants Kutztown University ("KU"), Pennsylvania State System of Higher Education ("PASSHE"), East Stroudsburg University ("ESU"), Javier Cevallos, Carlos Vargas, Gerald Silberman, Sharon Picus, John Green, Theresa Fritsche, and Marcia Welsh's Motion to Dismiss, or alternatively, for Severance and Change of Venue. Said Motion seeks dismissal of various counts of Plaintiffs' Second Amended Complaint alleging age, gender and disability discrimination, retaliation, violations of equal protection, and aiding and abetting discrimination. After consideration of Defendants' Motion and Plaintiffs' Response thereto, said Motion shall be granted in part and denied in part.

II. Background

Plaintiffs were vested employees of Kutztown University. This case arises as the result of their termination from employment, which Plaintiffs claim was motivated by discrimination based on age, gender and disability, and was in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq. (Counts I-II), Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq. (Counts III-IV), Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101, et seq. (Count V), and the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. § 951, et seq. (Counts IX-XIII). Plaintiffs further allege retaliation under federal and state law (Counts II, IV, XII) and claim they were discriminatorily denied due process rights, in violation of 42 U.S.C. § 1983 (Counts VI-VIII).

Plaintiffs consist of four males and two females: Camille Bartlett ("Bartlett"), Glenn Godshall ("Godshall"), Jack Grant ("Grant"), Michael Sitkus ("Sitkus"), Bonnie Yurvati ("Yurvati"), and Dr. William Stahler ("Stahler"). All Plaintiffs were over the age of fifty at the time of their termination from employment. (Second Am. Compl. ¶ 32.) With the exception of Stahler, who was fired on April 25, 2012, Plaintiffs' employment was terminated on or about July 26, 2011. (Second Am. Compl. ¶¶ 47, 65, 72, 88, 97, 117.) KU informed Plaintiffs that their terminations were financially motivated and unrelated to their performance. (Second Am. Compl. ¶¶ 34, 47, 65, 72, 88, 97, 117.) While KU maintains that it has experienced ongoing economic distress (Second Am. Compl. ¶ 23), Plaintiffs allege Defendants "have used the pretext of an economic shortfall to actively terminate older (and a subset of older female) employees close to benchmarks in their retirements." (Second Am. Compl. ¶ 24.)

Plaintiff Yurvati, a female and former Senior Systems Analyst ("Analyst"), contends KU discriminated against her based on age and gender by terminating her employment and reassigning her job duties to two males, both under the age of thirty-five (35). (Second Am. Compl. ¶¶ 45, 49.) On December 28, 2011, Yurvati filed a charge with the Equal Employment Opportunity Commission ("EEOC") against KU and PASSHE, alleging age and gender discrimination. (Defs.' Mot. Mem. Ex. D1.) Yurvati also appealed her layoff by filing a "Merit Principle Appeal" with PASSHE. (Pls.' Opp'n Mem. Ex. C.) PASSHE conducted a hearing regarding the Merit Principle Appeal on January 12, 2012. (Second Am. Compl. ¶¶ 52-54.) Yurvati claims she was denied due process at this hearing because PASSHE: (1) refused to sequester witnesses; (2) admitted evidence that was "incomplete"; (3) refused to admit evidence of job postings listed by KU following Yurvati's termination; (4) refused to allow a witness to testify concerning the alleged discrimination at KU; and (5) ignored Yurvati's exceptions to their decision, which allegedly included errors and misstatements. (Second Am. Compl. ¶¶ 57-58.) Yurvati further claims the above events occurred in retaliation for filing an EEOC charge. (Second Am. Compl. ¶ 57.) Following the PASSHE hearing, Yurvati spoke with Defendant Gerald Silberman ("Silberman"), Vice President of Administration and Finance for KU, who allegedly told Yurvati not to apply for reemployment with KU because she had filed complaints against the university. (Second Am. Compl. ¶ 61.) Nonetheless, Yurvati applied for a position with KU on January 18, 2013. (Second Am. Compl. ¶ 62.) On February 21, 2013, Yurvati's application was rejected. ( Id. )

Plaintiff Sitkus, a 52 year-old male and former Analyst in the same department as Yurvati, alleges the following facts in support of his age discrimination and retaliation claims:

(a) Sitkus was one of six employees employed in the department, (b) Sitkus was one of three employees over the age of 50 who were terminated; (c) both employees under the age of 35 were retained; and (d) the only remaining Analyst over the age of 50 had already fully vested in retirement and had already announced his intent to retire.

(Second Am. Compl. ¶ 67.)

Sitkus alleges KU treated him less favorably than employees younger than forty and retaliated against him for filing an EEOC charge by refusing to consider him for rehire. (Second Am. Compl. ¶ 69.)

Plaintiff Bartlett is a female who was over the age of fifty at the time she was terminated from her position as Director of Administrative Services and Dining Services for KU in July 2011. (Second Am. Compl. ¶¶ 70-71.) The job duties of Plaintiff Bartlett have since been assumed by individuals under the age of forty. (Second Am. Compl. ¶ 75.) On December 15, 2011, Bartlett was granted Emeriti status by the KU Council of Trustees for her exceptional service. (Second Am. Compl. ¶ 76.) Bartlett alleges that following her termination, she applied for a position for which she was qualified at ESU. (Second Am. Compl. ¶ 77.) Several months later, Bartlett filed an EEOC charge against KU alleging age and gender discrimination. (Defs.' Mot. Ex. D1.) On March 19, 2012, Defendant Theresa Fritsche ("Fritsche"), Director of Human Resources at ESU, notified Bartlett that she was not selected for the ESU position. (Second Am. Compl. ¶ 79.) Bartlett further claims that in November, 2012, she again applied for a position at ESU for which she was qualified, and was again rejected. (Second Am. Compl. ¶ 80.) As such, Bartlett alleges ESU conspired with KU and PASSHE to not hire her in retaliation for filing an EEOC charge. (Second Am. Compl.¶ 81.) In support of this claim, Bartlett alleges Fritsche maintained friendships and contacts with KU (where Fritsche used to work in Human Resources) and conspired with KU to not hire Bartlett. (Second Am. Compl. ¶ 82.) Lastly, Bartlett alleges that an employee of Defendant Carlos Vargas ("Vargas"), Provost and Vice President of Academic and Student Affairs at KU, told her the reason she had not been invited to Emeriti university functions was because she filed an EEOC charge. (Second Am. Compl. ¶ 84.)

Plaintiff Godshall, a male and former Director of Alumni Relations at KU, was terminated from his employment on July 26, 2011 and was replaced by two substantially younger individuals. (Second Am. Compl. ¶ 89.) On September 22, 2011, Godshall was granted Emeriti status by the KU Board of Trustees for his service to KU. (Second Am. Compl. ¶ 91.) Godshall filed an EEOC charge against KU on December 28, 2011 and claims that since filing his EEOC charge, KU has withheld some Emeriti-related "invitations and benefits" in retaliation. (Second Am. Compl. ¶ 92.) Therefore, Godshall alleges KU and PASSHE treated him less favorably than employees under the age of forty and retaliated against him for filing a discrimination charge. (Second Am. Compl. ¶ 94.)

Plaintiff Grant, a 65 year-old male and former Internal Operations and Data Manager, alleges he was similarly replaced by a substantially younger employee. (Second Am. Compl. ¶¶ 95, 99.) Along with Plaintiffs Yurvati, Bartlett, Sitkus, and Godshall, Grant filed an EEOC charge on December 28, 2011. (Defs.' Mot. Ex. D1.) Grant claims he was treated less favorably than employees under the age of forty and retaliated against for filing his EEOC charge. (Second Am. Compl. ¶ 101.)

Plaintiff Stahler, a 65 year-old male and former Director of Admissions at KU, was terminated in April, 2012. (Second Am. Compl. ¶ 117.) Two years prior, in April 2010, Stahler suffered a heart attack. (Second Am. Compl. ¶ 107.) Approximately one month later, Defendant Vargas directed Stahler to: return to work without medical clearance; perform a presentation; and, visit a high school in Philadelphia. (Second Am. Compl. ¶ 108.) Despite his medical condition and not being cleared to return to work, Stahler complied with Vargas' directives. ( Id. ) In February 2011, Vargas notified Stahler that he would be replaced as Director of Admissions as soon as Vargas could find a desirable candidate. (Second Am. Compl. ¶ 109.) Vargas did offer Stahler a demotion to a position that did not yet exist and informed him that if he elected to decline the offer, he would be out of work in three weeks. (Second Am. Compl. ¶ 109.) However, KU was unable to find a replacement that month and ultimately offered to allow Stahler to remain in his position until Fall 2011. (Second Am. Compl. ¶ 110.) Two months later, Stahler was offered a position as Associate Dean of KU's College of Visual and Performing Arts. (Second Am. Compl. ¶ 111.) Soon after, Stahler was offered another position as Director of Admissions at a different college, which he rejected on account of the Associate Dean offer. (Second Am. Compl. ¶ 113.) In July, 2011, Stahler assumed the position of Interim Dean. (Second Am. Compl. ¶ 115.) On April 25, 2012, Vargas terminated Stahler and denied him a demotion, citing financial constraints. (Second Am. Compl. ¶¶ 116-117.) Following his termination, Stahler was replaced by a younger female. (Second Am. Compl. ¶ 118.) Stahler applied for positions for which he qualified at four other PASSHE schools but was not selected for any of them. (Second Am. Compl. ¶ 117.) Stahler claims Defendants treated him less favorably than non-disabled employees and employees younger than forty, and retaliated against him because he filed an EEOC charge. (Second Am. Compl. ¶ 119.)

Defendants bring the instant Motion to Dismiss Plaintiffs' Second Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(1) and Fed.R.Civ.P. 12(b)(6). Defendants alternatively move to transfer a portion of this action pursuant to 28 U.S.C. § 1404(a), arguing that venue in the Middle District of Pennsylvania is appropriate. (Defs.' Mot. Mem. 31-33.)

III. Standards of Review

A. Rule 12(b)(1)

Rule 12(b)(1) permits courts to dismiss claims for want of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). The Third Circuit has recognized that "the Eleventh Amendment is a jurisdictional bar which deprives federal courts of subject matter jurisdiction.'" Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 694 n.2 (3d Cir. 1996) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-100 (1984)). Thus, Rule 12(b)(1) serves as the proper means by which to challenge the propriety of federal jurisdiction by reason of the Eleventh Amendment. Id.

A challenge to subject matter jurisdiction under Rule 12(b)(1) may take two forms: a facial attack or a factual challenge. U.S. ex rel. Atkinson v. PA. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007) (citing Gould Elecs., Inc. v. U.S., 220 F.3d 169, 178 (3d Cir. 2000)). A Rule 12(b)(1) motion asserting sovereign immunity under the Eleventh Amendment is "properly treated as a facial challenge." Sixth Angel Shepherd Rescue Inc. v. West, 790 F.Supp.2d 339, 349 (E.D. Pa. 2011). When considering a facial challenge, the court "must consider the allegations of the complaint as true." Mortensen v. First Fed. Sav. & Loan. Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). Moreover, the court "must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff." Gould, 220 F.3d at 176 (internal citations omitted).

B. Rule 12(b)(6)

In deciding a motion to dismiss pursuant to Rule 12(b)(6), courts 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 of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (internal quotation and citation omitted). After the Supreme Court's decision in Bell Atl. Corp. v. Twombly, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. 544, 555 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678 (citing Twombly, 550 U.S. at 556). This standard Aasks for more than a sheer possibility that a defendant has acted unlawfully." Id . accord Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) ("[A]ll civil complaints must contain more than an unadorned, the-defendant-unlawfully-harmed-me accusation.") (internal quotation marks omitted).[1]

IV. Discussion

A. Eleventh Amendment and Sovereign Immunity

Pursuant to the Eleventh Amendment of the United States Constitution, a "state [is]... immune from liability for damages in a suit brought in federal court by one of its own citizens." Dellmuth v. Muth, 491 U.S. 223, 229 n.2 (1989). However, there are two exceptions to this immunity. Koslow v. Pennsylvania, 302 F.3d 161, 168 (3d Cir. 2002). First, Congress may abrogate a state's sovereign immunity "when it both unequivocally intends to do so and act[s] pursuant to a valid grant of constitutional authority.'" Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001) (internal quotation omitted). Second, a state may waive its sovereign immunity by consenting to suit. Koslow, 302 F.3d at 168 (citation omitted). Sovereign immunity has been extended to cover state "agents" and "instrumentalities." United States EEOC v. Court of Common Pleas, Civ. No. 14-899, 2014 U.S. Dist. LEXIS 146552, at *9 (W.D. Pa. Oct. 15, 2014) (citing Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997)). The state university system, PASSHE, is one of these instrumentalities entitled to state sovereign immunity. Skehan v. State Sys. of Higher Educ., 815 F.2d 244, 249 (3d Cir. 1987); see also 24 P.S. 20-2002-A(a) ("[PASSHE] is... a public corporation and government instrumentality."). KU, by statute, is a member institution of PASSHE. 24 P.S. § 20-2002-A(a)(8). The Third Circuit and district courts within the Circuit have consistently held that PASSHE and its member universities are entitled to sovereign immunity under the Eleventh Amendment.[2]

Plaintiffs' argument against sovereign immunity relies heavily on Fitchik v. N.J. Transit Rail Operations, Inc., 873 F.2d 655 (3d Cir. 1989). Specifically, Plaintiffs claim Defendants were required to apply the Fitchik factors to prove KU is entitled to sovereign immunity.[3] Plaintiffs further rely on cases in which KU was previously a defendant.[4] (Pls.' Opp'n Mem. 11-19.) Additionally, Plaintiffs emphasize that "each state university exists in a unique governmental context, and each must be considered on the basis of its own peculiar circumstances." Kovats v. Rutgers, 822 F.2d 1303, 1312 (3d Cir. 1987).

Contrary to Plaintiffs' assertions, this Court recognizes that most district courts have not applied the Fitchik test in determining that PASSHE schools are entitled to sovereign immunity. See, e.g., McKinnie, 2006 U.S. Dist. LEXIS 73934, at *7; O'Hara, 171 F.Supp.2d at 495-96; Seybert, 83 F.Supp.2d at 553; Layser, 935 F.Supp. at 566; Lach, 679 F.Supp. at 513; Lewis, 658 F.Supp. at 360. This is likely because courts throughout the Third Circuit have already established that PASSHE and its fourteen universities enjoy sovereign immunity. Id. This also comports with Plaintiffs' assertion that each state university must be considered within its own particular context. Kovats, 822 F.2d at 1312. Specifically, the courts have long since evaluated a state university's potential sovereign immunity in the context of that university's connection, or lack thereof, to PASSHE. E.g., O'Hara, 171 F.Supp.2d at 497 (" Skehan was by no means the first or last Third Circuit and Pennsylvania case to conclude that [PASSHE] and its fourteen component universities ... enjoy immunity under the Eleventh Amendment.") (emphasis added); Lach, 679 F.Supp. at 513 ("It follows that [because PASSHE is a state agency immune from suit under the Eleventh Amendment] the constituent parts of [PASSHE], the state universities, also share eleventh amendment immunity."); Seybert, 83 F.Supp.2d at 553 (granting West Chester University's motion to dismiss on sovereign immunity grounds solely because West Chester is a PASSHE university and therefore enjoys sovereign immunity). The Kovats court described this distinction between PASSHE and non-PASSHE universities.[5] The O'Hara court similarly illustrated this distinction. 171 F.Supp.2d at 499 n.8 (describing the Third Circuit's practice of distinguishing between PASSHE-related schools and non-PASSHE schools-such as Temple, Penn State University, and Pittsburgh-in its evaluation of a public university's sovereign immunity).

Thus, like other PASSHE-member universities, KU is an arm of the state by way of its affiliation with PASSHE and is therefore entitled to Eleventh Amendment sovereign immunity. ESU has similarly been held to be an "arm of the state" and also entitled to Eleventh Amendment sovereign immunity. Mattison v. E. Stroudsburg Univ., Civ. No. 12-2557, 2013 U.S. Dist. LEXIS 52579, at *8 (M.D. Pa. April 12, 2013) (recognizing that ESU is "generally subject to immunity from suit under the Eleventh Amendment."); Coulter v. E. Stroudsburg Univ., Civ. No. 10-0877, 2010 U.S. Dist. LEXIS 43866, at *3 (M.D. Pa. May 4, 2010) ("[ESU] is... an arm of the state" and therefore entitled to sovereign immunity).[6] Accordingly, this Court shall analyze each of Plaintiffs' claims in light of Eleventh Amendment restrictions.

1. Age Discrimination and Retaliation under the ADEA

The ADEA remedies discrimination based on age. 29 U.S.C. § 623(a)(1). Specifically, the ADEA includes in its definition of employer "any agency or instrumentality of a State." 29 U.S.C. § 630(b)(2). However, the ADEA does not abrogate states' or state instrumentalities' sovereign immunity against suits brought by individuals for damages. Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91 (2000) (holding Congress did not abrogate states' sovereign immunity to damages suits brought by private individuals under the ADEA); Shahin v. Delaware, 424 F.Appx. 90, 92 (3d Cir. 2011) ("The Supreme Court has held... that the ADEA does not abrogate the states' Eleventh Amendment immunity to suits by private individuals for damages.") (citing Kimel, 528 U.S. at 91; Hill v. Borough of Kutztown, 455 F.3d 225, 247 n.30 (3d Cir. 2006) (same) (citing Kimel, 528 U.S. at 91)). Moreover, Pennsylvania has specifically withheld its consent to suit in federal court. 42 Pa. Cons. Stat. § 8521(b).

As contained within Counts I and II of their Second Amended Complaint, all Plaintiffs have brought age discrimination/retaliation claims against Defendants PASSHE, KU and ESU pursuant to the ADEA. However, for the reasons just discussed, these defendants all enjoy sovereign immunity under the Eleventh Amendment and have not waived that protection. Accordingly, all ADEA claims against KU, ESU, and PASSHE shall be dismissed. See Obotetukudo v. Clarion Univ., Civ. No. 13-0639, 2014 U.S. Dist. LEXIS 107927, at *2, 33 (W.D. Pa. Aug. 6, 2014) (noting that the Eleventh Amendment would bar an employee's ADEA claim against Clarion University - a PASSHE entity).[7]

2. Gender Discrimination and Retaliation ...

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