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Fogarty v. University of Pittsburgh of Commonwealth System of Higher Education

United States District Court, W.D. Pennsylvania, Pittsburgh.

October 21, 2019

NEIL F. FOGARTY, Plaintiff,


          Marilyn J. Horan United States District Judge

         Plaintiff, Neil F. Fogarty ("Fogarty"), brings the within action against Defendant, University of Pittsburgh of the Commonwealth System of Higher Education, asserting claims for discrimination under the Age Discrimination in Employment Act ("ADEA"); for retaliation under the ADEA; and for discrimination under the Pennsylvania Human Relations Act ("PHRA"). (ECF No. 1). Defendant moves to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(6). The parties provided briefs, (ECF Nos. 6, 7, and 10), and the matter is now ripe for decision.

         For the following reasons, the Defendant's Motion to Dismiss will be granted in part and denied in part.

         I. Background

         a. Factual Background

         Fogarty is 61 years old. (ECF No. 1 at ¶5). Defendant has employed Fogarty from April or May of 1986 until the present. Id. at ¶ 9. Specifically, Fogarty has held the position of lecturer and/or instructor at the Defendant's Katz Graduate School of Business ("School"). Id. In 2014, Fogarty met with the Dean of the business school, John Delaney ("Delaney") to request university funding for Fogarty to obtain a Ph.D. in order to change his faculty status from "professionally qualified" to "academically qualified." Id. at ¶¶ 10, 11. Fogarty alleges that the School had an established precedent, where the School paid the tuition for individuals to obtain their Ph.D. Id. During the meeting, Delaney informed Fogarty that the School would deny his request due to the "opportunity costs" of investing additional training and education resources for someone at an "advanced stage of [their] career." Id. at ¶ 13. In February 2014, Professor John Prescott ("Prescott"), Fogarty's immediate supervisor, again denied Fogarty's request for funding for his Ph.D. due to "the advanced stage of [Fogarty's] career, and Prescott commented that 'there are too many old men in our interest group, and they should all retire.'" Id. at ¶ 14.

         On April 20, 2015, Fogarty emailed Prescott to apply for a recently vacated undergraduate business ethics course teaching position. Id. at ¶ 15. Prescott responded that Fogarty was ineligible because he did not hold a Ph.D. and because the position was not open. Id. at ¶ 17. Subsequently, in April 2016, Fogarty learned, through a series of emails with Prescott, that the School was far along in the process of hiring for a business ethics professor position. Id. at ¶¶ 18-21. Prescott advised that he "forgot" to tell Fogarty about the open position, and that one of the final candidates had a J.D., but not a Ph.D. Id. at ¶ 22. On April 29, 2016, Fogarty reported his communications with Prescott to Jeffrey Inman ("Inman"), the Associate Dean for Research and Faculty. Id. at ¶ 23. Fogarty advised Inman that he believed Prescott's conduct was based upon Fogarty's age. Id. at ¶ 23.

         On June 3, 2016, Prescott emailed Fogarty to inform him that his class load for Fall 2016 would be twelve credits less than he had been assigned to teach during the Fall, 2015 semester. Id. at ¶ 24. On February 2, 2017, Fogarty complained to Professor Paul Harper ("Harper") about Prescott's failure to consider him for the business ethics position, and that Fogarty believed Prescott's conduct was due to Fogarty's age. Id. at ¶ 26. Prescott later told Fogarty that he had been informed that Fogarty had spoken to Harper. Id. at ¶ 27. On March 15, 2017, Prescott emailed Fogarty to advise him that his teaching load and income for 2017-2018 would be reduced by fifty percent due to a "desire for greater diversity." Id. at ¶ 28. On May 10, 2017, Fogarty's summer term courses were reduced from four to three classes. Id. at ¶ 29. On June 20, 2017, Fogarty's full-time office location was assigned to a younger employee. Id. at ¶ 31. Fogarty was assigned a substitute office. On July 12, 2017, the Defendant had a job posting seeking teacher applicants for courses that had been removed from Fogarty's teaching schedule. Id. at ¶ 32. Fogarty's class load and income were further reduced in August 2017. Id. at ¶ 33. In October 2017, Fogarty informed Professor Suchits of the alleged discriminatory conduct. Id. at ¶ 33. On November 29, 2017, Fogarty received his Spring 2018 teaching schedule, which reflected a reduction from six courses to two courses. Id. at ¶ 35. On December 4, 2017, Fogarty was informed that he would have no teaching assignments for the 2018 Summer term. Id. at ¶ 36. On August 29, 2018, Fogarty was removed from his substitute office, which was then assigned to a younger graduate student. Id. at ¶ 38. On April 4, 2018, the School offered Fogarty three classes for the Fall 2018 to Summer 2019 academic year. Id. at ¶ 39. This assignment was thereafter reduced to two classes in December 2018. Id. The School stated that the reduction was due to the reduced No. of MBA classes and the addition of full-time faculty. Id. at ¶ 40.

         b. Procedural History

         On January 5, 2018, Fogarty filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") and with the Pennsylvania Human Relations Commission ("PHRC"). (ECF No. 1 at ¶ 4). In these filings, Fogarty asserted claims for alleged adverse actions that occurred between February 24, 2014 and December 4, 2017. On November 23, 2018, the EEOC issued a Notice of Dismissal and Right to Sue. Id. Fogarty filed his present complaint on February 15, 2019, wherein, he alleges that discriminatory acts occurred February 24, 2014, April 2016, June 3, 2016, March 15, 2017, May 10, 2017, June 20, 2017, August 7, 2017, November 29, 2017, December 4, 2017, August 29, 2018, and December 2018. The Defendant has filed a Motion to Dismiss, arguing that the alleged acts from February 24, 2014, April 2016, and June 3, 2016 are time barred. Defendant also contends that Fogarty failed to exhaust his administrative remedies with regard to the acts that occurred on August 29, 2018, and in December 2018.

         II. Standard of Review

         When reviewing a motion to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Eid v. Thompson, 740 F.3d 118, 122 (3d Cir. 2014) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.2008)). "To survive a motion to dismiss 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556); see also Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. "Factual allegations of a complaint must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. A pleading party need not establish the elements of a prima facie case at this stage; the party must only "put forth allegations that 'raise a reasonable expectation that discovery will reveal evidence of the necessary element[s].'" Fowler v. UPMC Shadyside, 578 F.3d 203, 213 (3d Cir.2.009) (quoting Graff v. Subbiah Cardiology Associates, Ltd, 2008 WL 2312671 (W.D. Pa. June 4, 2008)); see also Connelly v. Lane Const Corp., 809 F.3d 780, 790 (3d Cir.2016) ("Although a reviewing court now affirmatively disregards a pleading's legal conclusions, it must still . . . assume all remaining factual allegations to be true, construe those truths in the light most favorable to the plaintiff, and then draw all reasonable inferences from them.") (citing Foglia v. Renal Ventures Mgmt., LLC, 754 F.3d 153, 154 n. 1 (3d Cir.2014)).

         Nonetheless, a court need not credit bald assertions, unwarranted inferences, or legal conclusions cast in the form of factual averments. Morse v. Lower Merion School District, 132 F.3d 902, 906, n. 8 (3d Cir.1997). The primary question in deciding a motion to dismiss is not whether the Plaintiff will ultimately prevail, but rather whether he or she is entitled to offer evidence to establish the facts alleged in the complaint. Maio v. Aetna, 221 F.3d 472, 482 (3d Cir.2000). The purpose of a motion to dismiss is to "streamline [ ] litigation by dispensing with needless discovery and factfinding." Neitzke v. Williams, 490 U.S. 319, 326-327, (1989).

         III. Discussion

         a. Timeliness of Fogarty's Claims

         Fogarty filed his charge with the EEOC on January 5, 2018. In his present complaint, he alleges that discriminatory acts occurred on February 24, 2014, in April 2016, June 3, 2016, March 15, 2017, May 10, 2017, June 20, 2017, August 7, 2017, November 29, 2017, December 4, 2017, August 29, 2018, and in December 2018. Defendant contends that any alleged adverse actions against Fogarty that occurred on or before June 3, 2016 should be dismissed as time-barred, because those alleged acts occurred more than 300 days before Fogarty filed his EEOC charge. Fogarty argues that his claims from June 3, 2016 and before are timely, because they ...

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