United States District Court, E.D. Pennsylvania
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.
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.)
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.)
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.
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.)
STANDARD OF REVIEW
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.
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.
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)).
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.
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