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Zito v. Apex Asset Management, LLC

United States District Court, E.D. Pennsylvania

March 31, 2017



          STENGEL, J.

         Debra Ann Zito brought this action against her former employer alleging claims under the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq. (the “ADEA”), the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq, (the “ADA”), and the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. § 951 et seq. (the “PHRA”). She alleges that the defendant, Apex Asset Management, LLC, terminated her because of both her visual impairment and her age. The defendants filed a motion for judgment on the pleadings, arguing that the plaintiff did not administratively exhaust her claims and that the claims are untimely. For the following reasons, the motion is granted in part and denied in part.[1]

         I. BACKGROUND

         Ms. Zito first worked as a collector at Apex from December 2013 until she left on her own accord in April 2007. (Compl. ¶ 9.) Ms. Zito was rehired to the same position on May 9, 2009 and was promoted to collections supervisor in 2010. (Id.) Ms. Zito held this position until her termination on August 16, 2013. (Id.) Ms. Zito was never subject to discipline under Apex's progressive discipline policy and was never “written up” or disciplined, formally or informally, during her time at Apex. (Id. ¶ 25.)

         At the time she was fired, Ms. Zito was over the age of forty, blind in her right eye, and suffering rapid loss of vision in her left eye (which ultimately left her blind). (Id. ¶¶ 10-11.) Ms. Zito alleges that Apex was aware of her vision impairment prior to her termination because she discussed her deteriorating vision with Apex's President, John Kline. (Id. ¶ 14.) Mr. Kline knew of Ms. Zito's treatment and approved several days off of work so Ms. Zito could visit doctors to treat her vision issues. (Id.) Mr. Kline assigned some of Ms. Zito's job duties to another non-disabled and younger employee, Amber Olweiler, around the time that Ms. Zito's loss of vision was accelerating. (Id. ¶ 17.)

         Ms. Zito alleges that Mr. Kline notified her in person on August 16, 2013 that he was terminating her because Apex was downsizing and/or restructuring. (Id. ¶ 18.) Mr. Kline denied Ms. Zito's offer to accept a demotion. (Id.) Mr. Kline told her that he intended to resign from Apex and that he would also terminate Ms. Olweiler's employment as part of Apex's downsizing. (Id. ¶ 19.) Ms. Zito alleges that these statements were pretext for terminating her based on her age and disability. (Id. ¶ 24.) In support, she alleges that Mr. Kline never actually resigned and that Ms. Olweiler was not only not terminated, but was actually promoted to a supervisory position similar to Ms. Zito's position. (Id. ¶ 20.) Ms. Zito asserts that Apex did not terminate any non-disabled supervisory employees or supervisory employees under the age of forty because of the downsizing. (Id. ¶¶ 21-22.) In addition to promoting Ms. Olweiler, Apex promoted multiple non-disabled employees under the age of forty to supervisory positions. (Id.¶ 20.)

         After receiving a right to sue letter, Ms. Zito filed a complaint alleging disability discrimination under the ADEA, ADA, and PHRA seeking $150, 000 in compensatory damages and $75, 000 in punitive damages. (Id. ¶¶ 6, 34-36, 43-45, 53-55.) Apex filed a motion for judgment on the pleadings, arguing that her claims are time-barred because she failed to exhaust her administrative remedies. (Defs.' Mem. Supp. Mot. Judg. Pleadings 7.)


         Under Rule 12(c) of the Federal Rules of Civil Procedure, “[a]fter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). While motions to dismiss for failure to state a claim pursuant to Rule 12(b)(6) must be brought before, and in lieu of, filing answers, a Rule 12(c) motion is appropriate after the defendants have answered the complaint. Id. The difference between Rules 12(b)(6) and 12(c), however, is purely procedural and there is “no material difference in the applicable legal standards.” Spruill v. Gillis, 372 F.3d 218, 223 n.2 (3d Cir. 2004). Accordingly, the Court turns to Rule 12(b)(6) jurisprudence for further guidance on the appropriate standard of review.

         Under Rule 12(b)(6), a defendant bears the burden of demonstrating that the plaintiff has not stated a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6); see also Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the United States Supreme Court recognized that “a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555. Subsequently, in Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court defined a two-pronged approach to a court's review of a motion to dismiss. “First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678. Thus, while “Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era . . . it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Id. at 678-79.

         Second, the Supreme Court emphasized that “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679. “Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. A complaint does not show an entitlement to relief when the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct. Id.; see also Phillips v. Cty. of Allegheny, 515 F.3d 224, 232-34 (3d Cir. 2008) (holding that: (1) factual allegations of complaint must provide notice to defendant; (2) complaint must allege facts suggestive of the proscribed conduct; and (3) the complaint's “‘factual allegations must be enough to raise a right to relief above the speculative level.'” (quoting Twombly, 550 U.S. at 555)).

         The basic tenets of the Rule 12(b)(6) standard of review have remained static. Spence v. Brownsville Area Sch. Dist., No. Civ.A.08-626, 2008 WL 2779079, at *2 (W.D. Pa. July 15, 2008). The general rules of pleading still require only a short and plain statement of the claim showing that the pleader is entitled to relief and need not contain detailed factual allegations. Phillips, 515 F.3d at 233. Further, the court must “accept all factual allegations in the complaint as true and view them in the light most favorable to the plaintiff.” Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006). Finally, the court must “determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.Pinkerton v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002).


         Apex argues that it is entitled to judgment on the pleadings because the plaintiff's ADEA, ADA, and PHRA claims are time-barred since her formal charge was filed more than 300 days after her termination. (Defs.' Mem. Supp. Mot. Judg. Pleadings 8.) The plaintiff argues that her claims are timely because the EEOC intake questionnaire she filed constituted a ...

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