United States District Court, E.D. Pennsylvania
May 14, 2015
BETTY CAULER, Plaintiff,
LEHIGH VALLEY HOSPITAL, INC., d/b/a LEHIGH VALLEY HOSPITAL & HEALTH NETWORK, Defendant.
This is an age discrimination case involving a former temporary employee assigned to work at Lehigh Valley Hospital and Health Network through a staffing agency. The plaintiff alleges she was not hired full-time by the defendant because of her age and then was terminated from her job with the staffing agency after she complained about the initial age discrimination. The defendant has moved to dismiss under Rule 12(b)(6). For the reasons explained below, I will grant this motion and dismiss the plaintiff’s complaint.
Plaintiff Betty Cauler, 62, began working for Aaron Resources, an employment agency, in February 2011. Aaron assigned her to work at Defendant Lehigh Valley Hospital and Health Network (LVHN) as a temporary part-time Standardized Patient/Simulation Technician. Aaron “had an on-going business relationship” with LVHN to provide staffing. The plaintiff allegedly received compliments on her performance from the doctors with which she worked.
In June 2012, the defendant sought to hire a full-time Simulation Technician. This position entailed the same work the plaintiff was already doing at LVHN through Aaron. The plaintiff told Deborah Arnold, her supervisor at LVHN, that she planned to apply for the position. Arnold “told her that she should not apply.” The plaintiff applied for the job anyway in July 2012. She did not get the job. Instead, LVHN offered the position to three “substantially younger employees, all junior, in seniority” to the plaintiff. One accepted the position.
Allegedly, Deborah Arnold “sabotaged” the plaintiff’s application because she “wanted a younger employe[e] for this job.” When Ms. Cauler did not get the job, she complained to Arnold’s supervisor, an employee of LVHN, that she was being discriminated against.
On August 23, 2012, Ms. Cauler was terminated from her position at Aaron and LVHN. Allegedly, LVHN “encouraged Aaron Resources to terminate Plaintiff’s [e]mployment with Aaron Resources, or risk their contract with Defendant, LVHN.”
The plaintiff filed an EEOC charge against LVHN on November 8, 2012-within 300 days of the alleged discrimination. She received her Right-to-Sue letter on January 12, 2015. She filed this action on March 3, 2015, claiming that she was discriminated and retaliated against by LVHN under the Age Discrimination in Employment Act (ADEA). The plaintiff seeks lost earnings, benefits, and reinstatement to her previous position as a Simulation Technician. The defendant moves to dismiss the complaint under Rule 12(b)(6).
II. STANDARD OF REVIEW
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted examines the legal sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The factual allegations must be sufficient to make the claim for relief more than just speculative. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). In determining whether to grant a motion to dismiss, a federal court must construe the complaint liberally, accept all factual allegations in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. Id.; see also D.P. Enters. v. Bucks County Cmty. Coll., 725 F.2d 943, 944 (3d Cir. 1984).
The Federal Rules of Civil Procedure do not require a plaintiff to plead in detail all of the facts upon which she bases her claim. Conley, 355 U.S. at 47. Rather, the Rules require a “short and plain statement” of the claim that will give the defendant fair notice of the plaintiff’s claim and the grounds upon which it rests. Id. The “complaint must allege facts suggestive of [the proscribed] conduct.” Twombly, 550 U.S. at 564. Neither “bald assertions” nor “vague and conclusory allegations” are accepted as true. See Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997); Sterling v. Southeastern Pennsylvania Transp. Auth., 897 F.Supp. 893 (E.D. Pa. 1995). The claim must contain enough factual matters to suggest the required elements of the claim or to “raise a reasonable expectation that discovery will reveal evidence of” those elements. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556).
III. DISCUSSION 
a. Count I: Age Discrimination
The ADEA makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age…” 29 U.S.C. § 623(a)(1). The plaintiff must show that age was the “but for” cause of the adverse action. Gross v. FBL Financial Servs., Inc., 557 U.S. 167, 176 (2009). To make out a prima facie failure-to-hire claim under the ADEA, the plaintiff must plead that: (1) she is forty years of age or older; (2) she was qualified for the position in question; (3) she was not selected for the position; and (4) circumstances giving rise to an inference of discrimination accompanied the failure to hire her. Landmesser v. Hazleton Area Sch. Dist., 574 F. App’x 188, 189 (3d Cir. 2014)(citing Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003)).
It is clear the plaintiff is over 40 years old and that she was not hired for the Simulation Technician position after applying for it. Ms. Cauler alleges that she was qualified for the position because “it was the same exact job she was performing as an Aaron Resources employee for Defendant, LVHN.” Compl., Doc. No. 1 at ¶ 20. Ms. Cauler allegedly worked in this position as an Arnold employee for almost a year and half before applying for the same position with LVHN. Id. at ¶¶ 6, 9. She also claims she “received many accreditations from the doctors who worked with her.” Id. at ¶ 8. These doctors encouraged her to apply for the position. Id. at ¶ 10. Viewing these facts in the light most favorable to the plaintiff, it appears that she was qualified for the Simulation Technician position.
The plaintiff, however, offers no facts from which I can infer that she was not hired based on age discrimination. To support the idea that age discrimination was the “but for” reason for LVHN’s failure to hire her, she simply states that a “substantially younger” person was hired instead. The age of this person or even an estimated age of this person is not pled. The qualifications of this person are not alleged. Whether this person was similar to the plaintiff (i.e. a comparator who was treated differently) was not alleged. While the plaintiff does not have to establish all of the elements of the prima facie case, she is at least expected to offer enough factual evidence to “raise a reasonable expectation that discovery will reveal evidence of” those elements. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)(quoting Twombly, 550 U.S. at 556). Simply stating that a “substantially younger” person was hired instead of the plaintiff is not enough to show an inference of discrimination. This is a legal conclusion, not a factual allegation. See Sempier v. Johnson & Higgins, 45 F.3d 724, 729 (3d Cir. 1995)(explaining how the determination of whether an employee is “sufficiently younger” is made by the fact-finder in looking at the ages of both the plaintiff and the employee who was hired and the other circumstances of the case)(citations omitted); Ashcroft v. Iqbal, 556 U.S. 662, 681-82 (2009).
Because the plaintiff has failed to offer any facts to support an inference of discrimination, she has failed to state a claim of age discrimination. See Gladden v. Solis, No. 11–3120, 490 Fed.Appx. 411, 412 (3d Cir. Jul 24, 2012)(“Gladden did not otherwise raise the inference that the decision was based on discriminatory grounds.”). Count I will be dismissed.
b. Count II: Retaliation
The ADEA provides, in relevant part, that “[i]t shall be unlawful for an employer to discriminate against any of his employees . . . because such individual, . . . has opposed any practice made unlawful by this section.” 29 U.S.C. § 623(d). To state a claim of retaliation under the ADEA, the plaintiff must allege that: 1) she engaged in protected activity; 2) she was subject to an adverse action; and 3) there was a causal connection between the protected activity and the adverse action. Fasold v. Justice, 409 F.3d 178, 188 (3d Cir. 2005). The ADEA only prohibits “age discrimination by employers against employees and applicants for employment.” E.E.O.C. v. Zippo Mfg. Co., 713 F.2d 32, 35 (3d Cir. 1983)(quoting Levine v. Fairleigh Dickinson University, 646 F.2d 825, 828 (3d Cir.1981))(emphasis added)(quotation marks omitted).
To support her retaliation claim, the plaintiff offers two facts: 1) she was terminated from her position at LVHN and with Aaron on August 23, 2012; and 2) her termination was after she complained to Arnold’s supervisor that she had been discriminated against based on age. Compl., Doc. No. 1 at ¶¶ 28, 29.
The plaintiff, however, has not alleged she is an employee of LVHN. Instead, her allegations show she is an employee of Aaron Resources, which is not a defendant in this case. Though LVHN qualifies as an employer under the statutory definition of the ADEA, this alone does not make the plaintiff an employee of LVHN. See Shah v. Bank of America, No. 09–1652, 346 Fed.Appx. 831, 834 (3d Cir. Sept. 8, 2009). In order to determine whether a person is an employee for purposes of the ADEA, the common law of agency and the traditional master-servant doctrine applies. See Scott v. UPS Supply Chain Solutions, No. 12–2886, 523 Fed.Appx. 911, 912-13 (3d Cir. May 3, 2013)(citing Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322–24, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992)); Menkowitz v. Pottstown Mem'l Med. Ctr., 154 F.3d 113, 127–28 n. 5 (3d Cir. 1998)(explaining how the definition of “employee” is the same under Title VII, the ADEA, and ADA). See also E.E.O.C. v. Zippo Mfg. Co., 713 F.2d 32, 37-39 (3d Cir. 1983)(adopting Title VII test of determining “employee” status in the context of the ADEA). Essentially, the plaintiff must allege that LVHN has sufficient control over the working relationship to be considered her “employer.” See Shah v. Wisconsin, No. 11– 0419, 2011 WL 5192127, at *3 (D.N.J. Oct. 31, 2011)(“Numerous factors should be taken into consideration in making this determination, but the control of one party by another is paramount.”).
Fields v. Colgate Palmolive Co. offers insight in this regard. No. 10–365, 2010 WL 5252537, at *4-5 (D.N.J. Dec. 15, 2010). Mr. Fields was assigned to work at Colgate by Adecco Employment Services, a temporary employment agency. Id. at *1. He worked as a chemist at Colgate through Adecco starting in October 2007. Id. In June 2008, Fields applied for a permanent position as a chemist at Colgate. Id. Another candidate was chosen to fill the position in October 2008. Id. In January 2009, Adecco terminated Fields from his position with Colgate. Id. Fields claimed this termination was based on wrongful discrimination under Title VII. Id. at *4. The court dismissed Fields’ wrongful termination claim against Colgate because Fields was never an employee of Colgate. Id. (“Plaintiff's relationship with the Temporary Employment Agency-and Plaintiff's lack of a formal relationship with Defendant-signifies that Plaintiff was not an employee of Defendant.”). The court pointed to allegations in Fields’ complaint which showed that Adecco, not Colgate, controlled Fields’ employment. Id. (“Plaintiff's Charge indicates that it was the Temporary Employment Agency and not Defendant-that governed all aspects of Plaintiff's employment: ‘In October 2007, I was placed by Adecco [‘the Temporary Employment Agency’] to work with [Defendant].’ … Similarly, Plaintiff notes that Plaintiff ‘was notified by Adecco that [Defendant] no longer required [Plaintiff's] services.’”)(emphasis in original)).
The same is true in this case. The plaintiff does not allege that she was an employee of LVHN or that LVHN had the authority to terminate the plaintiff’s employment. Instead, the plaintiff alleges that LVHN “encouraged Aaron Resources to terminate Plaintiff’s [e]mployment with Aaron Resources, or risk their contract with Defendant, LVHN.” Compl., Doc. No. 1 at ¶ 27 (emphasis added). She goes on to say that LVHN “deliberately and intentionally targeted [her] for termination by Aaron Resources by demanding that Aaron Resources fire her, causing the termination of Plaintiff….” Id. at ¶ 30 (emphasis added). From these statements alone (the few “factual allegations” the plaintiff offers to support this claim), it is clear that Aaron Resources dictated the terms of the plaintiff’s employment, not LVHN. Like Fields, the plaintiff specifically states that she “began working” for Aaron Resources and that Aaron Resources “assigned her” to LVHN. Id. at ¶ 6. As the plaintiff makes clear in her complaint, she was an employee of Aaron Resources.
Even if LVHN could be considered an employer for the purposes of the retaliation claim, she offers only conclusory allegations to connect her firing by Aaron to the complaint she made to Arnold’s supervisor at LVHN. This is not enough under Rule 12(b)(6) to state a claim of retaliation. See Ashcroft v. Iqbal, 556 U.S. 662, 681-82 (2009)(“A pleading that offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.”)(quoting Twombly, 550 U.S. at 555). See also Wade v. Donahoe, Nos. 11–3795, 11–4584, 2012 WL 3844380, at *8-10 (E.D. Pa. Sept. 4, 2012)(dismissing plaintiff’s retaliation claims because “there are no factual allegations… to support or infer the conclusion that the USPS was retaliating against her….”); Lott v. Children's Hosp. of Philadelphia, No. 10–04088, 2010 WL 5186167, at *2-3 (E.D. Pa. Dec. 22, 2010)(dismissing plaintiff’s retaliation claim because the plaintiff “must set out factual allegations to establish more than a ‘mere possibility’ that the actions taken by CHOP could constitute retaliation.”)(citing Iqbal).
The plaintiff has failed to state a retaliation claim under the ADEA. Count II should also be dismissed.
For the foregoing reasons, I will dismiss the plaintiff’s complaint under Rule 12(b)(6).
An appropriate Order follows.