MCQUILKIN v. DELAWARE RIVER PORT AUTHORITY
Filing
12
OPINION. Signed by Judge Jerome B. Simandle on 11/03/2011. (tf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
JAMES McQUILKIN,
HON. JEROME B. SIMANDLE
Plaintiff,
Civil No. 11-652 (JBS/AMD)
v.
OPINION
DELAWARE RIVER PORT AUTHORITY,
Defendant.
APPEARANCES:
Stephen G. Console, Esq.
Andrew L. Mackerer, Esq.
CONSOLE LAW OFFICES LLC
1525 Locust Street
9th Floor
Philadelphia, PA 19102
Attorneys for Plaintiff James McQuilkin
William F. Cook, Esq.
William M. Tambussi, Esq.
BROWN & CONNERY
360 Haddon Avenue
Westmont, NJ 08108
Attorneys for Defendant Delaware River Port Authority
SIMANDLE, District Judge:
I.
INTRODUCTION
This matter is presently before the Court on the Defendant
Delaware River Port Authority's ("Defendant") motion to dismiss
Plaintiff James McQuilkin's ("Plaintiff") complaint for failure
to state a claim.
[Docket Item 8.]
The instant action alleges
discrimination in violation of the Age Discrimination in
Employment Act.
The Defendant argues that the complaint should
be dismissed because a portion of Plaintiff's claim is time
barred; the Plaintiff fails to state a claim for discrimination
and retaliation; and the Plaintiff seeks compensation for damages
which are not cognizable under the Age Discrimination in
Employment Act.
The Plaintiff has filed opposition.
The Plaintiff maintains
that its complaint is timely, sufficiently states a claim for
both retaliation and discrimination, and seeks damages which are
cognizable under the Age Discrimination in Employment Act.
For the reasons stated below, the Court will grant in part
and deny in part Defendant's motion to dismiss.
II.
BACKGROUND
The instant action alleges that the Defendant violated the
Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq.
("ADEA"), when the Defendant lowered the job grade level of the
Grants Specialist position after the Plaintiff was offered and
accepted the position.
The complaint alleges that Plaintiff was hired by the
Defendant on or about July 1987 as a toll collector. (Comp. ¶
16.)
On or about 1997, the Plaintiff began attending law school
and was reimbursed by the Defendant for his first year of
tuition. (Comp. ¶¶ 17-18.)
However, the Defendant subsequently
2
told the Plaintiff that he would no longer receive tuition
reimbursement despite the continuing tuition reimbursement given
to younger employees. (Comp. ¶ 18.)
From 2001 to 2004, the
Plaintiff made unsuccessful requests to the Defendant for
reimbursement of his tuition expense.
(Comp. ¶ 20.)
In 2004, the Plaintiff went to the EEOC office in
Philadelphia, PA, and filled on an EEOC Intake Questionnaire
complaining that the Defendant had discriminated against him on
the basis of his age in denying him tuition reimbursement. (Comp.
¶ 23.)
The Plaintiff informed the Defendant's Chief of Human
Resources and Equal Employment Officer, Toni Brown, that he had
filled out the EEOC Intake Questionnaire.
(Comp. ¶ 24.)
Shortly
after his meeting with Ms. Brown, the Defendant approved
Plaintiff's request for tuition reimbursement and paid the
Plaintiff for his tuition expense. (Comp. ¶ 25.)
In January 2005, the Plaintiff transferred to the government
relations department to work as a Grants Specialist.
26.)
(Comp. ¶
When the Plaintiff applied for the position, he was
informed by the head of the department that a Grants Specialist
was a grade level 11.
(Comp. ¶ 26.)
The application for the
Grants Specialist position also indicated the position was a
grade level 11.
(Comp. ¶ 26.)
After being offered the position as Grants Specialist, the
Plaintiff learned that the Defendant had classified the position
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a grade level 8 which is compensated at a lower rate than grade
level 11 positions.
(Comp. ¶ 26.)
The Plaintiff talked to his
supervisor, Linda Hayes, who agreed that the Grants Specialist
position should be compensated at grade level 11.
(Comp. ¶ 28.)
After several requests by Ms. Hayes, in June 2007, the
Defendant hired the Hay Group, an independent Human Resources
consultant, to analyze the proper grade for Plaintiff's position.
(Comp. ¶ 29.)
The Hay Group recommended the position of Grants
Specialist be classified as grade level 10.
(Comp. ¶ 29.)
From January 2009 to September 2009, Ms. Hayes' supervisor,
Mr. Shanahan, met with Ms. Brown, the Chief of Human Resources,
about increasing Plaintiff's job grade level to at least grade
level 10 which was recommended by the Hay Group.
32.)
(Comp. ¶¶ 31-
The Defendant continued to refuse to raise Plaintiff's
grade level beyond level 8 and purportedly stated that education
was the reason.
(Comp. ¶ 34.)
In January 2010, the Plaintiff retired from the Defendant.
(Comp. ¶ 36.)
At the time the Plaintiff retired, he was still
being compensated at a grade level 8 for his position as a Grants
Specialist.
(Comp. ¶ 36.)
The Plaintiff then filed the instant action on February 4,
2011.
[Docket Item 1.]
(Comp. ¶ 15.)
The Plaintiff was then 63 years old.
The Plaintiff alleges the Defendant's refusal to
increase the grade level of the Grants Specialist position
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violated the ADEA.
First, the Plaintiff alleges that Defendant's
actions were retaliatory and in response to Plaintiff's
complaints of age discrimination with regard to his tuition
reimbursement.
(Comp. ¶ 27.)
The Plaintiff further alleges that
Plaintiff's age was a motivating and/or determinative factor in
Defendant's discriminatory treatment of Plaintiff.
(Comp. ¶ 39.)
The Plaintiff maintains that the Defendant's discriminatory
failure to reclassify Plaintiff's position at the appropriate
grade level adversely affected Plaintiff's salary since 2005 and
Plaintiff's pension benefits.
(Comp. ¶¶ 37-38.)
The Plaintiff alleges he suffered a loss of earnings, loss
of benefits, pain and suffering, embarrassment, humiliation, loss
of self-esteem, mental anguish and loss of life's pleasures as a
result of the Defendant's conduct. (Comp. ¶ 42.)
The Plaintiff
also seeks liquidated damages against the Defendant as he alleges
the Defendant's discriminatory and retaliatory acts were willful
and intentional.
(Comp. ¶ 43.)
The Defendant then filed the instant motion to dismiss.
The
Defendant argues that the Complaint should be dismissed on
several grounds.
First, the Defendant maintains that Plaintiff's
claim as to pay received before December 27, 2008 is time-bared
under the ADEA.
Second, the Defendant argues that the Plaintiff
has failed to state claim for retaliation or discrimination
because there was no adverse employment action, there are no
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facts pled which show a causal nexus between the tuition
reimbursement and the salary for his position as a Grants
Specialist and the complaint does not identify any person
sufficiently younger than the Plaintiff in a similar position who
was not subject to the alleged adverse action.
Finally, the
Defendant argues that courts have consistently held that damages
for pain and suffering, emotional distress or punitive damages
are not cognizable under the ADEA and Plaintiff's claims for
these damages should be dismissed.
The Plaintiff opposes the motion to dismiss.
First, the
Plaintiff argues that his complaint is timely and that whether
the Plaintiff can seek a claim for pay received before December
27, 2008 is a damages issue that is not properly considered at
this early stage of the litigation.
Second, the Plaintiff
contends that he has stated a claim for both discrimination and
retaliation under the ADEA.
Finally, the Plaintiff concedes that
he is not entitled to a recovery for emotional distress or
punitive damages.
However, the Plaintiff argues that his
allegation for liquidated damages is appropriate and should not
be dismissed.
III.
DISCUSSION
A.
Standard of Review
The sufficiency of pleadings in federal court is governed by
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Rule 8, Fed. R. Civ. P., among others, a rule that is designed to
"give the defendant fair notice of what the . . . claim is and
the grounds upon which it rests."
550 U.S. 544, 555 (2007).
Bell Atl. Corp. v. Twombly,
The rule provides that "[a] pleading
that states a claim for relief must contain . . . a short and
plain statement of the claim showing that the pleader is entitled
to relief."
Fed. R. Civ. P. 8(a)(2).
This is not a high bar.
As the Third Circuit Court of Appeals has affirmed, "the Federal
Rules do not require a claimant to set out in detail the facts
upon which he bases his claim.
Rather, the complaint must only
give the defendant fair notice of what the plaintiff's claim is
and the grounds upon which it rests."
Thomas v. Independence
Tp., 463 F.3d 285, 295 (3d Cir. 2006) (internal quotations and
citations omitted).
Some facts, however, are necessary.
In order to give
Defendant fair notice, and to permit early dismissal if the
complained-of conduct is not unlawful, a complaint must allege,
in more than legal boilerplate, those facts about the conduct of
each defendant giving rise to liability.
555; Fed. R. Civ. P. 11(b)(3).
Twombly, 550 U.S. at
These factual allegations must
present a plausible basis for relief (i.e. something more than
the mere possibility of legal misconduct).
See Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1951 (2009).
In its review of Defendants’ motion to dismiss pursuant to
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Rule 12(b)(6), Fed. R. Civ. P., the Court must "accept all
factual allegations as true and construe the complaint in the
light most favorable to the plaintiff."
Phillips v. County of
Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (quoting Pinker v.
Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)).
And
on this procedural posture, "courts generally consider only the
allegations in the complaint, exhibits attached to the complaint,
matters of public record, and documents that form the basis of a
claim."
Lum v. Bank of America, 361 F.3d 217, 222 n.3 (3d Cir.
2004) (citation omitted).
B. Is Plaintiff's Complaint Time Barred?
The Defendant argues that the Plaintiff's claim alleging age
discrimination is time-barred as to pay received before December
27, 2008.
The Defendant does not dispute that Plaintiff's claim
is timely filed with regard to pay received on or after December
27, 2008 and therefore, the claim is not barred by a statute of
limitations problem.
However, in this case, the Defendant
maintains that to pursue an employment discrimination claim under
the ADEA, an employee must first file a charge with the EEOC
within 300 days of an adverse employment action or of
notification of such an action.
The Plaintiff did not file a
charge here until October 23, 2009.
Consequently, the Defendant
urges this court to hold that the Plaintiff may not seek damages
for allegedly discriminatory compensation between January 2005
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and December 27, 2008 (300 days prior to October 23, 2009).
The Defendant's motion is premature.
In the Third Circuit,
a statute of limitations defense may only be raised in a Rule
12(b)(6) motion if "the time alleged in the statement of a claim
shows that the cause of action has not been brought within the
statute of limitations." Robinson v. Johnson, 313 F.3d 128, 135
(3d Cir. 2002) (citing Hanna v. U.S. Veterans' Admin. Hosp., 514
F.2d 1092, 1094 (3d Cir. 1975).
"When reviewing a Rule 12(b)(6)
dismissal on statute of limitations grounds, we must determine
whether the time alleged in the statement of a claim shows that
the cause of action has not been brought within the statute of
limitations. " Cito v. Bridgewater Township Police Dep't., 892
F.2d 23, 25 (3d Cir. 1989).
Otherwise, a limitations defense is
considered an affirmative defense that should be raised in the
pleadings.
Robinson, 313 F.3d at 135.
In this case, the Defendant does not dispute that the
Plaintiff's cause of action is timely.
Rather, the Defendant's
argument challenges the extent of the Defendant's liability.
This argument is more properly brought as an affirmative defense
in the Defendant's answer and is premature in a motion to
dismiss.
Therefore, the Court will deny the Defendant's motion to
dismiss on this ground as this limitations defense should be
raised in the pleadings.
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C. Does the Plaintiff's Complaint Sufficiently State a Claim
Upon Which Relief Can Be Granted?
The Plaintiff's complaint alleges retaliation and
discrimination in violation of the ADEA.
The court will address
both claims separately.
1.
Retaliation
A plaintiff must allege three elements in order to establish
a prima facie case of retaliation in violation of the ADEA.
These elements are: (1) the employee engaged in a protected
activity; (2) the employee was subjected to an adverse employment
action; (3) there is a causal connection between the protected
activity and the adverse employment action.
Fasold v. Justice,
409 F.3d 178, 188-89 (3d Cir. 2005).
In this case, the first element is properly pled.
The
Plaintiff engaged in protected activity when he filled out an
EEOC Questionnaire challenging the Defendant's refusal to
reimburse his tuition expenses when the Defendant had reimbursed
the tuition expenses of younger employees.
(Compl. ¶ 23).
The
anti-retaliation provision of the ADEA provides:
It shall be unlawful for an employer to discriminate
against any of his employees . . . because such
individual . . . has opposed any practice made unlawful
by this section, or because such individual . . . has
made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or litigation
under this chapter.
29 U.S.C. § 623(d)(emphasis added).
The Plaintiff clearly participated in protected activity by
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filling out the EEOC charge, seeking assistance from the EEOC and
opposing the Defendant's denial of tuition reimbursement to older
employees.
activity.
Filing a complaint with the EEOC is protected
Fasold v. Justice, 409 F.3d at 188.
The Defendant's
argument that the Plaintiff did not engage in protected activity
because he did not actually file the EEOC charge is without merit
and disregards the broad protection the ADEA provides in
preventing employers from interfering with an employee's efforts
to obtain statutory protections. McInnis v. Town of Weston, 458
F. Supp. 2d 7, 14 (D. Conn. 2006).
Indeed, the protections
against retaliation are sufficiently broad that it would even
include the employee's "protesting what the employee believes in
good faith to be a discriminatory practice," whether or not a
formal complaint was filed.
Aman v. Cort Furniture, 85 F.3d
1074, 1085 (3d Cir. 1989).
In addressing the second element, the Plaintiff has also
stated sufficient facts to allege an adverse employment action.
The complaint avers that the Plaintiff applied for the position
of Grants Specialist and was told by the Department Head during
the application process that this position was to be compensated
at grade level 11. (Compl. ¶ 26).
According to the complaint,
all the paper work filled out by the Plaintiff during the
application process indicated the position was compensated at
grade level 11.
(Compl. ¶ 26).
The complaint then alleges the
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Defendant downgraded the position to grade level 8 only after the
Plaintiff was hired.
(Compl. ¶ 26).
As a result, the Plaintiff
duly alleges he received less compensation than he was led to
believe during the application process.
(Compl. ¶ 26).
These factual allegations are sufficient to meet the
pleading requirements of the adverse employment action element of
a retaliation claim.
The Defendant's argument that there was no
adverse employment action because the Plaintiff was promoted by
being hired as a Grants Specialist and his salary was not
decreased by taking the position is unpersuasive.
The
Plaintiff's complaint sufficiently alleges that the Plaintiff was
paid less than the position was marketed as and this pay decrease
was made after the Plaintiff was selected, as if aimed at him.
This is sufficient to state a claim for an adverse employment
action.
The Defendant's reliance on Guillen-Gonzalex v. J.C. Penney
Corp., 731 F.Supp. 2d 219 (D.P.R. 2010), is misplaced.
In this
case, the court granted summary judgment and dismissed a
plaintiff's ADEA retaliation claim for failure to produce
sufficient evidence showing an adverse employment action.
This
is distinguishable from the instant case where the Plaintiff has
sufficiently pled an adverse employment action and the Defendant
has filed merely a motion to dismiss, not a motion for summary
judgment.
The Defendant's argument is premature at this early
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stage of the litigation.
With regard to the third element, the Plaintiff has
sufficiently stated facts to allege a causal connection between
the protected activity and the adverse employment action.
The
Plaintiff alleges in his complaint that the Defendant lowered the
grade level of the Grants Specialist Position from grade level 11
to grade level 8 in retaliation for Plaintiff's complaints of age
discrimination.
(Comp. ¶ 27.)
The Plaintiff supports this
conclusion with the following factual allegations: (1) The
Plaintiff filled out the EEOC Questionnaire in 2004 and told Ms.
Brown, the Defendant's Chief of Human Resources and Equal
Employment Officers that he had been to the EEOC and filled out
an intake form (Comp. ¶¶ 23-24); (2) After his conversation with
Ms. Brown, the Plaintiff's request for tuition reimbursement was
approved by the Defendant and the Plaintiff received his
reimbursement (Comp. ¶ 25); (3) A few months later, in January
2005, the Plaintiff was hired as a Grants Specialist and
immediately after he was hired, the Plaintiff learned the
position was lowered from a grade level 8 to a grade level 11
(Comp. ¶ 26); (4) Education was given as the reason for the
Grants Specialist position downgrade (Comp. ¶ 34).
The Plaintiff maintains that these factual allegations
support a temporal proximity between the protected activity and
the adverse employment decision which is sufficient to raise an
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inference of retaliation.
Temporal proximity can be sufficient in itself to create an
inference of a causal connection for the purposes of a prima
facie case of retaliation.
Farrell v. Planters Lifesavers Co.,
206 F.3d 271, 279 (3d Cir. 2000).
However, when the temporal
relationship is not unusually suggestive, temporal proximity
alone is insufficient to establish the necessary causal
connection.
Id. at 280.
When assessing temporal proximity and
causation, a court must take into account the procedural
circumstance of the case and each case "must be considered with a
careful eye to the specific facts and circumstances encountered."
Id. at 279 n.5.
Further, a plaintiff may establish causation for
purposes of his prima facie case through evidence of temporal
proximity and other evidence such as inconsistent explanations
given by the employer, inconsistent testimony, or a pattern of
antagonism.
Id. at 281.
Importantly, there are no "exclusive
ways to show causation, as the proffered evidence, looked at as a
whole, may suffice to raise the inference."
Id. at 280.
The Complaint, when read as a whole, states a plausible
claim for retaliation.
The Defendant reimbursed the Plaintiff
for a sizable tuition bill only after the Plaintiff threatened to
bring suit for age discrimination.
Shortly thereafter, the
Defendant hired the Plaintiff for a new position.
However,
instead of paying the Plaintiff the announced salary for the
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position, the Defendant substantially diminished the Plaintiff's
salary (and conceivably used the excess money to offset its own
costs in reimbursing the Plaintiff's tuition).
These facts, when
viewed as a whole, present a plausible basis for inferring
causation and are sufficient to meet the requirements of Rule 8.
In summary, the Plaintiff's complaint provides sufficient
factual allegations to support Plaintiff's prima facie case for
retaliation; namely, that the Plaintiff engaged in protected
activity, the Plaintiff suffered an adverse employment action,
and a causal connection existed between the protected activity
and the adverse employment action.
Therefore, the Court will deny the Defendant's Motion to
Dismiss with regard to the Plaintiff's retaliation claim.
2.
Discrimination
The Plaintiff's complaint also attempts to state a cause of
action for age discrimination under the ADEA.
In order to prove
a claim for age discrimination, a plaintiff must show that his
age was a determinative factor in defendant's adverse employment
decision by the following four elements: (1) he is a member of
the protected class; (2) he is qualified for the position in
question; (3) he suffered from an adverse employment decision;
and (4) the unfavorable action gives rise to an inference of age
discrimination.
See Fasold v. Justice, 409 F.3d at 184 and
Barnabas v. Bd. of Trs. of the Univ. of the Dist. of Columbia,
15
686 F. Supp. 2d 95, 101 (D.D.C. 2010).
Moreover, as the Supreme
Court has recently stated, "to establish a disparate-treatment
claim under the plain language of the ADEA, . . . a plaintiff
must prove that age was the 'but-for' cause of the employer's
adverse decision."
Gross v. FBL Financial Services, Inc., 129
S.Ct. 2343, 2350 (2009).
Here, the Plaintiff's complaint fails to allege facts
sufficient to meet the fourth element of his prima facie case.
The complaint is devoid of any reference to younger employees in
the Grants Specialist position or in comparable positions that
did not have their pay decreased.
There are no facts alleged
which give rise to an inference that the Grants Specialist
position was downgraded from level 11 to level 8 compensation due
to the Plaintiff's age.
The Complaint also is devoid of any
allegation that the Grants Specialist title was actually designed
as a surrogate position for older workers so that the downgrade
had a significantly disproportionate impact on persons 40 years
of age or older as would be required if Plaintiff seeks to assert
an ADEA claim for disparate impact.
Jackson, 544 U.S. 228 (2005).
See Smith v. City of
Consequently, in regards to the
ADEA discrimination claim, the Plaintiff's complaint fails to
allege facts which support a plausible basis for relief.
Therefore, the Defendant's motion to dismiss will be granted
as to the Plaintiff's discrimination claim alleging a violation
16
of the ADEA.
D.
What Damages are Permitted under the ADEA?
Lastly, the Defendant moves to dismiss the portion of the
Plaintiff's complaint that seeks damages for pain and suffering,
embarrassment, humiliation, loss of self-esteem, mental anguish,
and loss of life's pleasures.
The Defendant argues that these
damages are not permissible under the ADEA.
The Court agrees.
A claimant under the ADEA cannot seek compensatory damages
for non-pecuniary losses such as pain and suffering or emotional
distress.
Rogers v. Exxon Research & Eng'g Co., 550 F.2d 834,
836 (3d Cir. 1977).
See also C.I.R. v. Schleier, 515 U.S. 323,
326 (1995) ("the ADEA does not permit a separate recovery of
compensatory damages for pain and suffering or emotional
distress").
Here, the Plaintiff seeks damages for several non-pecuniary
losses including pain and suffering, embarrassment, humiliation,
loss of self-esteem, mental anguish, and loss of life's
pleasures.
The ADEA does not permit recovery for these damages.
Therefore, the Defendant's motion to dismiss with regard to these
damages will be granted.
The Defendant also moves to dismiss the portion of
Plaintiff's complaint seeking punitive damages.
The Plaintiff
opposes this by arguing that he seeks liquidated damages, not
punitive damages, which are permissible under the ADEA.
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The Third Circuit has previously held that punitive damages
are not available under the ADEA.
Rogers v. Exxon Research &
Eng'g Co., 550 F.2d at 842, overruled on other grounds by
Holliday v. Ketchum, MacLeod & Grove, Inc., 584 F.2d 1221 (3d
Cir. 1978)(en banc).
Several circuit courts have also addressed
the issue and denied claims for punitive damages.
See Bruno v.
Western Elec. Co., 829 F.2d 957, 966-67 (10th Cir.
1987)(summarizing cases from other circuits).
Many district
courts within the Third Circuit have denied claims for punitive
damages under the ADEA as well.
See Kelly v. United States Steel
Corp., No. 11-193, 2011 U.S. Dist. LEXIS 91123 (W.D. Pa. August
16, 2011); Lukens v. Whitemarsh Valley Country Club, No. 02-1279,
2003 U.S. Dist. LEXIS 20188 (E.D. Pa. Nov. 5, 2003); McGehean v.
AF&L Ins. Co., No. 09-1792, 2009 U.S. Dist. LEXIS 92194 (E.D. Pa.
Oct. 2, 2009).
However, this does not prevent a claimant from recovering
liquidated damages under the ADEA because liquidated damages are
specifically prescribed by the statute for willful violations.
See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 125
(1985) and 29 U.S.C. § 626(b)(providing for double the amount of
damages for lost wages and benefits if employer willfully
violated the law).
In this case, the Plaintiff's complaint specifically
requests relief in the form of "liquidated damages to Plaintiff
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in accordance with the ADEA."
(Comp. Relief §(d)).
The
Complaint alleges the Defendant's violation of the ADEA was
willful and thus warrants the imposition of liquidated damages.
(Comp. ¶ 43).
Several factual allegations in the complaint
support this conclusion including the Defendant's refusal to
raise Plaintiff's job grade level despite the recommendations of
Plaintiff's supervisors (Comp. ¶ 28) and the recommendation of an
independent consultant group (Comp. ¶ 36).
Therefore, the Court will deny the Defendant's motion to
dismiss with regard to the Plaintiff's request for liquidated
damages because liquidated damages are permitted under the ADEA
and the Plaintiff's complaint pleads sufficient facts to support
a plausible basis for an award of liquidated damages.
IV.
CONCLUSION
For the reasons expressed above, the Court will grant in
part and deny in part Defendant's motion to dismiss.
The Court will deny the Defendant's motion to dismiss as to
whether the Defendant can be held liable for pay received before
December 27, 2008.
This limitations argument is premature in a
motion to dismiss and should be brought as an affirmative defense
in the pleadings.
The Court will deny the Defendant's motion as to the
Plaintiff's ADEA retaliation claim since the Plaintiff's
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complaint alleges fact sufficient to support a plausible basis
for relief.
The Court will grant the Defendant's motion with regard to
the Plaintiff's discrimination claim under the ADEA because the
Plaintiff has failed to allege facts which support an inference
of age discrimination.
Finally, as to the Plaintiff's requests for damages, the
Court will grant the Defendant's motion to dismiss with regard to
the Plaintiff's request for damages for pain and suffering,
embarrassment, humiliation, loss of self-esteem, mental anguish,
and loss of life's pleasures.
These non-pecuniary damages are
not permitted under the ADEA.
However, the Court will deny the
Defendant's motion as to liquidated damages as these are
prescribed in 29 U.S.C. § 626(b) and the Plaintiff has pled
sufficient facts to support a plausible basis for an award of
liquidated damages.
It may be possible that an amended pleading could cure the
deficiencies noted in the discrimination claim if the Plaintiff
pled sufficient grounds supporting his allegation that the
lowering of the Grants Specialist job level was due to
Plaintiff's age.
Therefore, as to this count, the dismissal
will be without prejudice to the Plaintiff moving to amend his
complaint to correct the above deficiency.
See Alston v.
Parker, 363 F.3d 229, 235 (3d Cir. 2004) ("We have held that even
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when a plaintiff does not seek leave to amend, if a complaint is
vulnerable to 12(b)(6) dismissal, a District Court must permit a
curative amendment, unless an amendment would be inequitable or
futile.").
The accompanying Order will be entered.
November 3, 2011
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
United States District Judge
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