ALLEN et al v. THE SCHOOL REFORM COMMISSION et al
MEMORANDUM AND OPINION. SIGNED BY HONORABLE JOHN R. PADOVA ON 2/2/17. 2/3/17 ENTERED & E-MAILED.(fdc)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
WANDA ALLEN, et al.
THE SCHOOL REFORM
COMMISSION, et al.
February 2, 2017
Plaintiffs brought this putative class action against the School Reform Commission
(“SRC”) and the School District of Philadelphia 1 after they were laid off from their positions as
They assert a single claim pursuant to the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C.A. § 623. Defendants move to dismiss Plaintiffs’ Second
Amended Complaint in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(6). For the
following reasons, we grant Defendants’ Motion in part and deny it in part.
The Second Amended Complaint (“Amended Complaint”) alleges the following facts.
Plaintiffs Wanda Allen, John Reese, Kim Rodgers, and William Swain are former Assistant
Principals in the School District of Philadelphia.
(Am. Compl. ¶¶ 6-9.) The SRC is the
corporate body organized under Pennsylvania law to govern the School District of Philadelphia.
(Id. ¶ 11.) The SRC and School District laid off nearly 4,000 employees in 2013, including all of
the District’s assistant principals.
(Id. ¶ 15.)
None of the Plaintiffs were hired for open
administrator positions with the School District. (Id. ¶¶ 28, 33, 36, 38-39.)
Plaintiffs also named Dr. William Hite, the Superintendent of the School District of
Philadelphia, as a Defendant. By agreement of the parties, he is dismissed as a Defendant in this
action. (See infra note 2.)
In contrast, thirteen teachers were internally promoted to Principal positions by the
District in 2014 and 2015. ( Id. ¶ 42.) Similarly, thirteen out-of-state administrators were hired
as Principals in this time period.
(Id. ¶ 46.)
Without giving specific ages for these
administrators, Plaintiffs aver that the majority of teachers and out-of-state administrators hired
as Principals were younger than Plaintiffs. (Id. ¶¶ 43, 47.) Plaintiffs further aver, moreover, that
Defendants have “systematically promoted assistant principals and principals who are younger
than 40 years of age over existing assistant principals who are over the age of 45 years old.” (Id.
¶ 54.) Each named plaintiff is over 50 years of age. (Id. ¶¶ 23, 29, 34, 37.)
Defendants move to dismiss the Amended Complaint on the grounds that Plaintiffs have
failed to plead sufficient facts to state an ADEA claim under either a disparate-impact or
disparate-treatment theory. They further argue, in the alternative, that Plaintiffs have attempted
to set forth a mixed motive claim which is not cognizable under the ADEA. 2
When considering a motion to dismiss pursuant to Rule 12(b)(6), we “consider only the
complaint, exhibits attached to the complaint, [and] matters of public record, as well as
undisputedly authentic documents if the complainant’s claims are based upon these documents.”
Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v.
White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)). We take the factual allegations
of the complaint as true and “construe the complaint in the light most favorable to the plaintiff.”
Defendants also moved to dismiss any allegations in the Amended Complaint that
suggest that Defendants have violated any of Plaintiffs’ state or federal constitutional rights and
any claims asserted against Dr. Hite in his individual capacity. Plaintiffs do not oppose these
aspects of the Motion to Dismiss. (Pls.’ Resp. at 13.) Plaintiffs have submitted a proposed Third
Amended Complaint removing Dr. Hite as a defendant and deleting all allusions to constitutional
violations. For the reasons stated infra, we conclude that such amendment is unnecessary and we
deny Plaintiff’s request to file a Third Amended Complaint. Rather, we grant the Motion to
Dismiss any claims for violation of Plaintiffs’ state or federal constitutional rights as uncontested
and dismiss with prejudice any state or federal constitutional violations asserted by Plaintiffs.
DelRio-Mocci v. Connolly Props., Inc., 672 F.3d 241, 245 (3d Cir. 2012) (citing Warren Gen.
Hosp. v. Amgen, Inc., 643 F.3d 77, 84 (3d Cir. 2011)). Legal conclusions, however, receive no
deference, as the court is “‘not bound to accept as true a legal conclusion couched as a factual
allegation.’” Wood v. Moss, 134 S. Ct. 2056, 2065 n.5 (2014) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)).
A plaintiff’s pleading obligation is to set forth “a short and plain statement of the claim,”
which gives the defendant “‘fair notice of what the . . . claim is and the grounds upon which it
rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original) (quoting
Fed. R. Civ. P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47 (1957)). The complaint must
contain “‘sufficient factual matter to show that the claim is facially plausible,’ thus enabling ‘the
court to draw the reasonable inference that the defendant is liable for [the] misconduct alleged.’”
Warren Gen. Hosp., 643 F.3d at 84 (quoting Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d
Cir. 2009)). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for
more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678
(citing Twombly, 550 U.S. at 556). In the end, we will grant a motion to dismiss brought
pursuant to Rule 12(b)(6) if the factual allegations in the complaint are not sufficient “‘to raise a
right to relief above the speculative level.’” W. Run Student Hous. Assocs., LLC v. Huntington
Nat’l Bank, 712 F.3d 165, 169 (3d Cir. 2013) (quoting Twombly, 550 U.S. at 555).
The ADEA “makes it unlawful for an employer: (1) to fail or refuse to hire or to
discharge any individual or otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such individual’s
age[.]” 29 U.S.C. § 623(a). The protections of the ADEA are “limited to individuals who are at
least 40 years of age.” 29 U.S.C. § 631(a). “ADEA claims may proceed under a disparateimpact or disparate-treatment theory. Karlo, et al. v. Pittsburgh Glass Works, LLC, No. 15-3435,
-- F.3d --, 2017 WL 83385, at *4 (3d Cir. Jan. 10, 2017) (citing Smith v. City of Jackson,
Mississippi, 544 U.S. 228, 231-32 (2005)). “Disparate treatment is governed by § 623(a)(1);
disparate impact is governed by § 623(a)(2).” Id. (citations omitted).
“[D]isparate-impact claims do not require proof of discriminatory intent.’” Id. Rather
“[d]isparate impact redresses policies that are ‘fair in form, but discriminatory in operation.’” Id.
(quoting Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971)). Consequently, “disparateimpact claims ‘usually focus[ ] on statistical disparities. . . .’” Id. (alterations in original)
(quoting Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 987 (1988)). To state a prima facie
case of age discrimination in violation of the ADEA under the disparate-impact theory, a
complaint must “(1) identify a specific, facially neutral policy, and (2) proffer statistical evidence
that the policy caused a significant age-based disparity.” Id. (citation omitted). “Once a plaintiff
establishes a prima facie case, an employer can defend by arguing that the challenged practice
was based on ‘reasonable factors other than age’ — commonly referred to as the ‘RFOA’
defense.” Id. (quoting 29 U.S.C. § 623(f)(1); 29 C.F.R. § 1625.7.) While plaintiffs “must
ultimately demonstrate a significant disparity, the burden a plaintiff must meet to survive a
motion to dismiss is much less onerous.” United States v. Pennsylvania, 110 F. Supp. 3d 544,
553 (M.D. Pa. 2015) (citing Powell v. Ridge, 189 F.3d 387, 394 (3d Cir. 1999)). Instead, at the
motion to dismiss stage, plaintiffs “need only plead that a facially neutral employment practice’s
adverse effects fall disproportionately on a [protected group].” Id.
Defendants argue that the Amended Complaint fails to state a facially plausible claim for
age discrimination under a disparate-impact theory because it fails to identify a specific “facially
neutral” employment practice used by the school district that disparately impacts older workers.
Defendants are correct that the Amended Complaint does not identify a facially neutral
employment practice utilized by the School District that has allegedly disparately impacted older
workers. In fact, the only allegation in the Amended Complaint specifically addressing the
School District’s practices alleges that the School District “has systematically promoted assistant
principals and principals who are younger than 40 years of age over existing assistant principals
who are over the age of 45 years old.” (Am. Compl. ¶ 54.) This alleged policy is facially
discriminatory, not facially neutral. We conclude that the Amended Complaint fails to state a
plausible claim for age discrimination in violation of the ADEA under a disparate-impact theory.
We therefore grant Defendants’ Motion to dismiss the Amended Complaint insofar as it purports
to state a claim for age discrimination pursuant to a disparate-impact theory.
Disparate-treatment claims, unlike disparate-impact claims, require evidence of
discriminatory intent. “In a disparate treatment case, the trier of fact asks not whether the
employer’s otherwise nondiscriminatory policy has some adverse effect on members of the
protected class, but rather, ‘is the employer . . . treating some people less favorably than others
because of their [age].’” DiBiase v. SmithKline Beecham Corp., 48 F.3d 719, 726 (3d Cir. 1995)
(alteration in original) (quoting U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715
(1983)). In the absence of direct evidence of discrimination, we apply the McDonnell Douglas
burden shifting analysis to a claim of age discrimination brought under a disparate-treatment
theory. Sarullo v. U.S. Postal Service, 352 F.3d 789, 797 (3d Cir. 2003).
“Under that framework, the plaintiff bears the initial burden of establishing a prima facie
claim of employment discrimination . . . .” Greene v. V.I. Water & Power Auth., 557 F. App’x
189, 195 (3d Cir. 2014) (citing Sarullo, 352 F.3d at 797). “[T]he burden [then] shifts to the
employer to ‘articulate some legitimate, nondiscriminatory reason for the’” adverse employment
action. Sarullo, 352 F.3d at 797 (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
“The plaintiff must then establish by a preponderance of the evidence that the
employer’s proffered reasons were merely a pretext for discrimination . . . .” Id. (citing Tex.
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981); and McDonnell Douglas, 411 U.S.
at 804). A complaint asserting a prima facie case of employment discrimination in violation of
the ADEA must allege facts that, if true, establish the following elements: “(1) [the plaintiff] is
over forty, (2) is qualified for the position in question, (3) suffered from an adverse employment
decision, and (4) that his or her replacement was sufficiently younger to permit a reasonable
inference of age discrimination.” Potence v. Hazleton Area Sch. Dist., 357 F.3d 366, 370 (3d
Cir. 2004) (citing Duffy v. Paper Magic Group, Inc., 265 F.3d 163, 167 (3d Cir. 2001)); see also
Smith v. City of Allentown, 589 F.3d 684, 689-90 (3d Cir. 2009) (citing Potence, 356 F.3d at
Defendants argue that the Amended Complaint fails to state a facially plausible claim for
age discrimination under a disparate-treatment theory because the Amended Complaint fails to
allege facts that would establish the fourth element of a prima facie case of age discrimination,
namely that the School District failed to hire Plaintiffs for assistant principal or principal
positions under circumstances that would give rise to an inference of age discrimination. The
Amended Complaint alleges that Plaintiffs are all over 50 years old and that Defendants hired
younger, less qualified individuals for Assistant Principal and Principal positions rather than
hiring Plaintiffs for those positions. (Am. Compl. ¶¶ 23, 29, 34, 37, 42-50, 52.) The Amended
Complaint also specifically alleges that Defendants “promoted assistant principals and principals
who are younger than 40 years of age over existing assistant principals who are over the age of
45 years old” and that Defendants laid off the Plaintiffs “and replaced them with inexperienced
and less qualified individuals under 40 years of age.” (Am. Compl. ¶¶ 54, 56.) We conclude
that the Amended Complaint states sufficient facts to state the fourth element of a prima facie
case of age discrimination in violation of the ADEA under a disparate-treatment theory. We
therefore deny Defendants’ Motion to dismiss the Amended Complaint insofar as it states a
claim for age discrimination pursuant to a disparate-treatment theory.
Defendants finally argue that Plaintiffs have attempted to improperly plead their age
discrimination claim pursuant to a mixed motive theory. A plaintiff who claims to have been
discriminated against in violation of Title VII, and who has direct evidence of such
discrimination, may bring his or her claim pursuant to “the mixed-motive theory set forth in
Price-Waterhouse v. Hopkins, 490 U.S. 228 (1989), under which a plaintiff may show that an
employment decision was made based on both legitimate and illegitimate reasons.” Makky v.
Chertoff, 541 F.3d 205, 213 (3d Cir. 2008). However, the ADEA does not authorize mixed
motive age discrimination claims. Gross v. FBL Financial Services, Inc., 557 U.S. 167, 175-78
(2009). Instead, plaintiffs “must prove that age was the ‘but-for’ cause of the employer’s
adverse decision.” Id. at 176 (citing Bridge v. Phoenix Bond & Indemnity Co., 553 U.S. 639,
654 (2008) (additional citations omitted)).
Defendants argue that the Amended Complaint should be dismissed because it fails to
allege that age is the “but-for” cause of Defendants’ adverse employment actions. Specifically,
Defendants argue that the Amended Complaint alleges that Defendants were motivated by a
desire to save costs by eliminating older administrators, rather than by a desire to eliminate older
employees solely on the basis of their ages. (See Am. Compl. ¶ 22 (alleging that the District’s
personnel strategy “aimed at reducing costs by eliminating older administrators”).) However, we
decline to dismiss the Amended Complaint on this basis at this stage of the litigation. As we
described above, the Amended Complaint alleges a facially plausible claim for age
discrimination under the disparate-treatment theory by alleging that Defendants hired individuals
who were sufficiently younger than Plaintiffs for principal and assistant principal positions, even
though Plaintiffs were more experienced and more qualified for those positions that the
individuals Defendants hired. These allegations are sufficient to “‘raise a reasonable expectation
that discovery will reveal evidence of’” “but-for” causation, which is sufficient at the motion to
dismiss stage. See Gladden v. Solis, 490 F. App’x 411, 412 (3d Cir. 2012) (stating that “to
survive a motion to dismiss, a plaintiff need not establish the elements of a prima facie case; a
plaintiff merely must ‘put forth allegations that raise a reasonable expectation that discovery will
reveal evidence of the necessary element’” (quoting Fowler v. UPMC Shadyside, 578 F.3d 203,
213 (3d Cir. 2009)). We conclude that the Amended Complaint pleads sufficient facts to state a
facially plausible claim that age was the “but-for” cause of the Defendants’ decision to hire
younger individuals as administrators. We therefore deny Defendants’ Motion to dismiss the
Amended Complaint on the ground that it impermissibly alleges an age discrimination claim
pursuant to a mixed motive theory.
For the foregoing reasons, we grant defendants’ Motion to Dismiss Plaintiffs’ Amended
Complaint to the extent that the Amended Complaint purports to allege a claim of age
discrimination in violation of the ADEA under a disparate-impact theory. By agreement of the
parties we also dismiss Dr. William Hite as a Defendant in this action and dismiss any claims for
violation of Plaintiff’s state or federal constitutional rights. We deny Defendants’ Motion to
Dismiss with respect to Defendants other arguments. An appropriate Order follows.
BY THE COURT:
/s/ John R. Padova
John R. Padova, J.
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