United States District Court, W.D. Pennsylvania
STEVEN D. SHICK, Plaintiff,
AIELLO'S CAFÉ Defendants.
ORDER GRANTING MOTION TO DISMISS
Barbara Jacobs Rothstein U.S. District Court Judge
Steven D. Shick, proceeding pro se, filed this
action against Defendants Aiello's Café, Earnest
Aiello, and Rosa Aiello. Mr. Shick is a former employee of
Aiello's Café. He brings an employment
discrimination claim, as well as claims for “personal
injury, ” “personal property, ”
“civil rights, ” and
“forfeiture/penalty.” Dkt. No. 1 at 4. Defendants
move to dismiss the complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6). Dkt. No. 14. Having reviewed the
motion, the opposition thereto, the record of the case, and
the relevant legal authority, the Court will grant the
motion. The reasoning for the Court's decision follows.
provides few factual averments in his form complaint;
however, he attached several exhibits to the pleading. From
reviewing those exhibits, the Court is able to glean the
following factual allegations. Mr. Shick, who is sixty-two
years old, alleges that he was employed by Aiello's
Café as a dishwasher until he was terminated. In a
letter he wrote to the U.S. Equal Employment Opportunity
Commission (“EEOC”), he alleged the following:
I was fired because the restaurant was not happy with my
performance because I was complaining of unlawful and unsafe
health practices and alcohol being served to minors,
including violations of labor laws as child under the age of
16 were working in an establishment that serves alcohol and
allowing children under the age of 18 to service alcohol.
Dkt. No. 1, Ex. 2. On September 22, 2016, the EEOC dismissed
Mr. Shick's complaint after determining that the Age
Discrimination in Employment Act of 1967 (“ADEA”)
did not apply to Aiello's Café because it employs
“less than the required number of employees” to
bring it under the purview of the Act. Id. at Ex. 3.
Shick also filed a Child Labor Act complaint with the
Pennsylvania Department of Labor & Industry Bureau of
Labor Law Compliance, in which he alleged that the
café employs four minors (sixteen-year-olds).
Id. at Ex. 5. Mr. Shick included a citation notice
in which it appears Aiello's Café was cited and
fined $250 for employing a minor under the age of eighteen to
serve alcoholic beverages. Id. at Ex. 6. Finally, in
response to Defendants' motion to dismiss, Mr. Shick
filed a copy of a document titled “Child Labor Act
Inspection Report” dated November 13, 2015 in which
Aiello's Café was cited for employing three
minors. Dkt. No. 23, Ex. 1. The report indicates that the
café has twelve employees. Id.
STANDARD OF REVIEW
considering a motion to dismiss under Rule 12(b)(6), the
plaintiff's allegations are to be construed favorably to
the pleader and a complaint should not be dismissed for
failure to state a claim unless it appears beyond doubt that
the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief. Simmons v.
Community Service Providers, Inc., 847 F.Supp. 351, 352
(E.D. Pa. 1994). Although a pleading need not correctly
categorize legal theories giving rise to the claims, the
complaint must nevertheless provide a defendant with fair
notice of what the plaintiff's claim is and the grounds
upon which it rests. Id. at 353 (citing Williams
v. New Castle County, 970 F.2d 1260, 1265-1266 (3rd Cir.
1992)). In addition, pro se complaints are to be
more liberally construed and held to less stringent standards
than pleadings drafted by lawyers. Id. (citing
Boag v. MacDougall, 454 U.S. 364, 365-66 (1982)).
the allegations in the complaint liberally, the Court
concludes that Plaintiff attempts to state a claim for age
discrimination under the Age Discrimination in Employment Act
of 1967 (“ADEA”). This is consistent with the
documents Plaintiff attached to his pleadings; it is also
consistent with Plaintiff's opposition to the motion to
dismiss in which he states that he brings this lawsuit
because “defendants have acted unlawfully under the
Federal statute of the ADEA Act of 1967 (Age
discrimination).” Dkt. No. 23 at 4.
ADEA prohibits employers from discriminating against
individuals in hiring, discharge, compensation, term,
conditions, or privileges of employment on the basis of their
age.” Patel v. Shinseki, 984 F.Supp.2d 461,
468 (W.D. Pa. 2013) (quoting Duffy v. Paper Magic Grp.,
Inc., 265 F.3d 163, 167 (3d Cir. 2001)). However, the
ADEA's prohibitions only apply to employers with over 20
employees. Id. (citing 29 U.S.C. § 630(b));
Mann v. Estate of Meyers, 61 F.Supp.3d 508, 528 (D.
N.J. 2014) (“Congress did not wish to impose the burden
of litigation upon small entities”). The exhibits
Plaintiff attached in support of his complaint and opposition
to the motion to dismiss conclusively demonstrate that
Aiello's Café has fewer than twenty employers.
See Dkt. No. 1, Ex. 3; Dkt. No. 23, Ex. 1. Indeed,
the documents demonstrate that the café employs twelve
individuals. Dkt. No. 23, Ex. 1. Therefore, Aiello's
Café does not fall under the purview of the ADEA and
Plaintiff cannot maintain his ADEA claim against it as a
matter of law. See Evans v. Watt, 2004 WL 90064, *1
(C.D. Cal. January 7, 2004) (granting motion to dismiss
because employee could not maintain an ADEA claim against
employer who had fewer than fifteen employees); Avington
v. Metropolitan Tulsa Urban League, 603 Fed.Appx. 662,
663 (10th Cir. 2015) (affirming summary judgment on ADEA
claim brought by pro se plaintiff for failing to
establish that his employer had twenty or more employees).
to the extent that Plaintiff attempts to bring an ADEA claim
against Mr. and Mrs. Aiello individually, the courts in this
Circuit have consistently held that individual defendants
cannot be held liable for damages under the ADEA.
Mann, 61 F.Supp.3d at 527-28 (citing cases).
Therefore, Plaintiff cannot maintain ...