United States District Court, W.D. Pennsylvania, Pittsburgh.
NEIL F. FOGARTY, Plaintiff,
UNIVERSITY OF PITTSBURGH OF THE COMMONWEALTH SYSTEM OF HIGHER EDUCATION, Defendant,
OPINION AND ORDER
Marilyn J. Horan United States District Judge
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.
following reasons, the Defendant's Motion to Dismiss will
be granted in part and denied in part.
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.
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.
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.
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.
Standard of Review
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
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).
Timeliness of Fogarty's Claims
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 ...