United States District Court, W.D. Pennsylvania
REPORT AND RECOMMENDATION
CYNTHIA REED EDDY, UNITED STATES MAGISTRATE JUDGE
reasons stated herein, it is respectfully recommended that
the Motion to Dismiss (ECF No. 17) filed on behalf of
defendant Lego Systems, Inc. (âLEGOâ) be denied.
Kimberly Robben initiated this action with the filing of a
Complaint (ECF No. 1) on September 25, 2018. On January 29,
2019, she filed her First Amended Complaint
(“FAC”) (ECF No. 16), the operative pleading.
Defendant HCL America, Inc. filed an answer on February 12,
2019. (ECF No. 19). Defendant LEGO has filed the now pending
motion to dismiss. (ECF No. 17), with brief in support (ECF
No. 18). Plaintiff has filed a brief in opposition (ECF No.
22) and LEGO has filed a reply. (ECF No. 26). The matter is
now ripe for disposition.
allegations in the FAC are as follows. In May 2016, Plaintiff
was contacted by a recruiter from IDC Technologies, Inc.
(“IDC”), Meenakshi Gusain (“Gusain”)
who represented to Plaintiff that she was “recruiting
on behalf of Defendant HCL and Defendant LEGO for a full-time
‘Business Analyst' position.” (FAC at
¶¶ 22-23). Plaintiff alleges LEGO was a single or
joint employer with HCL. (FAC at ¶ 16). After reviewing
the job requirements, Plaintiff “determined she was
qualified for the Business Analyst position, ” and on
May 9, 2016 applied for the position by responding to the IDC
recruiter's email and submitted her résumé
along with three letters of recommendation. (FAC at
¶¶ 25-26). IDC recruiter Gusain then purportedly
notified Plaintiff she had been selected for an interview and
that Nisha Khanna Verma would conduct the interview by Skype.
(FAC at ¶¶ 27, 29). Gusain sent Plaintiff a link to
Verma's LinkedIn page for Plaintiff to review prior to
the interview. (FAC at ¶ 29). Verma's LinkedIn
profile stated that her title was Digital Producer, LEGO
Group. (FAC at ¶30). Gusain also shared with Plaintiff
an e-mail address for Verma which contained a domain name for
HCL. (FAC at ¶ 30).
claims the business analyst position reported to Ms. Verma,
who was HCL's senior program manager working with LEGO.
(FAC at ¶ 24). Ms. Verma interviewed Plaintiff on or
about May 18, 2016. (FAC at ¶ 31). Ultimately, Plaintiff
was not selected for the position. (FAC at ¶ 38).
Plaintiff alleges she was not selected “because of her
age” and a substantially younger person was hired
instead. (FAC at ¶¶ 38, 41).
2, 2016, Gusain sent Plaintiff an e-mail, which, according to
Gusain, contained Plaintiff's interview
“feedback” from Gusain's
“client.” (FAC at ¶34.) In that e-mail,
Gusain informed Plaintiff that her
“client[‘s]” feedback about Plaintiff was
Kim Robben: Good candidate from experience, knowledge
perspective. However I am not sure about her team fit from
kerins [sic] perspective as she is an elderly lady with lot
of experience but not sure how she will it [sic] into the
team. I will talk to kerin about it.
(FAC at ¶ 34). Upon information and belief,
“kerin”, as referenced in Gusain's June 2,
2016 e- mail to Plaintiff, refers to Kerin Smollen. (FAC at
¶36.) On her LinkedIn profile, Kerin Smollen indicates
that she held the position of “Department Head: Content
Management, User Experience & Creative Technology”
with LEGO from June 2015 until December 2017. (FAC at ¶
was 57 years old at the time Defendants failed to hire her.
(Id. at ¶41.) At Count I she asserts claims of
age discrimination under the Age Discrimination in Employment
Act, as amended by the Older Workers Benefits Protection Act,
29 U.S.C. § 621, et seq. (“ADEA”), and at
Count II she asserts a claim pursuant to the Pennsylvania
Human Relations Act, 43 P.S. §951, et seq.
Standard of Review
survive dismissal pursuant to Federal Rule of Civil Procedure
12(b)(6), “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The
reviewing court must “determine whether, under any
reasonable reading of the complaint, the plaintiff may be
entitled to relief.” Phillips v. Cnty. of
Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). Dismissal
under Federal Rule of Civil Procedure 12(b)(6) is proper
where the factual allegations of the complaint conceivably
fail to raise, directly or inferentially, the material
elements necessary to obtain relief under a legal theory of
recovery. Twombly, 550 U.S. at 561. Thus,
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678 (2009)
(citing Twombly, 550 U.S. at 555). The factual and
legal elements of a claim should be separated, with the court
accepting all well-pleaded facts as true and disregarding all
legal conclusions. Santiago v. Warminster Twp., 629
F.3d 121, 130-31 (3d Cir. 2010). Under this standard, civil
complaints “must contain more than an unadorned,