BARON v. ABBOTT LABORATORIES
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE JAN E. DUBOIS ON 2/15/17. 2/16/17 ENTERED AND COPIES E-MAILED.(mbh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
February 15, 2017
This is an employment discrimination case. Plaintiff Clive Baron alleges that his former
employer, Abbott Laboratories, retaliated against him in violation of the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 621, et seq., the Florida Civil Rights Act of 1992
(“FCRA”), Fla. Stat. §§ 760. 01, et seq., and the Pennsylvania Human Relations Act (“PHRA”),
43 Pa. Cons. Stat. Ann. § 951, et seq., when it did not reinstate him because he had opposed
perceived age discrimination and filed a law suit in this Court in which he asserted claims of age
discrimination under the ADEA, FCRA, and PHRA. Clive Baron v. Abbott Laboratories, Civil
Action No. 14-4706 (“Baron I”). After consideration of Abbott’s Motion for Summary
Judgment in Baron I, this Court entered judgment in favor of Abbott and against Baron by
Memorandum and Order dated February 17, 2016. 2016 WL 660883 (E.D. Pa. Feb. 17, 2016).
Presently before the Court is Abbott’s Motion to Dismiss the single claim of retaliation in
the Complaint under the doctrine of res judicata. For the reasons that follow, the Court denies
Plaintiff Clive Baron was employed by defendant Abbott Laboratories (“Abbott”) from
March 2010 until he was terminated by Abbott on December 31, 2013. Compl. ¶¶ 7, 25. At the
time of his termination, Baron was 60 years old. Compl. ¶ ¶ 1, 25.
On May 14, 2014, Baron filed a complaint with the Equal Employment Opportunity
Commission (“EEOC”), alleging that Abbott had discriminated against him based on his age
when he was not considered for a supervisor’s position and when it eliminated his position and
assigned his responsibilities to younger employees. Compl. ¶¶ 20, 27, 30-31, 36.
On August 12, 2014, Baron filed a Complaint in Baron I (the “Baron I Complaint”) in
this Court, alleging claims of age discrimination by Abbott under the ADEA, FCRA, and PHRA.
Compl. ¶ 37.
Baron learned through discovery in Baron I that, in December 2014, Abbott planned to
create a new position with the same with the same responsibilities as Baron’s prior position, and
that, in February 2015, Abbott hired Richard Lanchantin to fill this position. Compl. ¶¶ 40-41,
On July 31, 2015, Abbott filed a Motion for Summary Judgment in Baron I. In support
of that Motion, Abbott argued that Baron could not establish a prima facie case of age
discrimination because he had been replaced by Lanchantin, who was 59 years old. Baron I Def.
Statement of Facts ¶¶ 55-56; Baron I Def. Mem. Supp. Mot. Summ. J. 6, 8; Baron I Def. Reply
Supp. Mot. Summ. J. 6. In response, Baron argued that he was replaced prior to Lanchantin’s
hire by two employees who were 6 years and 21 years younger than Baron. Baron I Plff. Mem.
Opp. Mot. Summ. J. 1, 5-7 (Baron I Document No. 21, filed Aug. 28, 2015). With respect to
Abbott’s hiring of Lanchantin, Baron stated that
Then, when Mr. Baron’s former position was reinstated about a year after
it was temporarily eliminated, Mr. Baron was not even considered for it because
he had opposed the age discrimination to which he was subjected and participated
in enforcement proceedings to vindicate his rights under the [ADEA, FCRA, and
The retaliation to which Mr. Baron was subjected only recently came to
light on July 22, 2015, when David Champagne was deposed for a second time
after [Abbott Laboratories] concealed the fact that another individual, Richard
Lanchantin, was hired into Mr. Baron’s identical position in early 2015.
Accordingly, Plaintiff will be moving to amend his Complaint to include this
Baron I Plff. Mem. Opp. Mot. Summ. J. 2. In his Sur Reply, Baron argued that Lanchantin was
not his replacement; rather, Lanchantin’s hire was evidence that Abbott “was careful in its
orchestration of its defense against Baron’s claims . . . and retaliated against Baron for opposing
the age discrimination to which he was subjected.” Baron I Plff. Sur-Reply 4-5 (Baron I
Document No. 27, filed Oct. 8, 2015). Baron never amended the Baron I Complaint to include a
claim of retaliation.
By Memorandum and Order dated February 17, 2016, the Court granted Abbott’s Motion
for Summary Judgment and entered judgment in favor of Abbott and against Baron in Baron I.
The Court concluded “that no reasonable jury could find that [the employees who were 6 and 21
years younger than Baron] ‘replaced’ Baron because [they did not] take over Baron’s job
responsibilities.” Baron I, 2016 WL 660883 at *5. The Court also found that “the employee
who replaced Baron was Lanchantin in May 2015” and that the “one-year age gap” between
Baron’s age at the time of termination and Lanchantin’s age at the time of promotion was
“insufficient to create an inference of age discrimination.” Id. at *6. That Memorandum and
Order made no reference to Baron’s potential retaliation claim.
On June 16, 2016, Baron filed the Complaint in the above-captioned case, asserting a
claim of retaliation against Abbott in violation of the ADEA, FCRA, and PHRA. Compl. ¶ 58.
Specifically, Baron alleged that “Abbott’s decision not to reinstate Plaintiff into the position he
formerly held [and occupied by Lanchantin] was in retaliation for Plaintiff having opposed what
he reasonably and in good faith believed to be the age discrimination . . . and for having
participated in any investigation or proceeding under the ADEA, PHRA, and FCRA . . . .”
Compl. ¶ 58.
On August 29, 2016, Abbott filed a Motion to Dismiss Plaintiff’s Complaint (Document
No. 5). Abbott argues that the Complaint fails to state a claim because the sole count of
retaliation is barred by the doctrine of res judicata. Def.’s Mem. Supp. Mot. 1. Baron filed his
Response on September 15, 2016 (Document No. 11). The Motion is thus ripe for review.
To survive a motion to dismiss under Rule 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). The pleading’s factual allegations need not be detailed, but “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements do not suffice.” Id.
(citing Twombly, 550 U.S. at 555). In evaluating a complaint, a court first identifies allegations
that are mere “legal conclusions” or “naked assertions.” Twombly, 550 U.S. at 555, 557. These
allegations are “not entitled to assumption of truth” and must be disregarded. Iqbal, 556 U.S. at
679. Then the court evaluates all “well-pleaded, nonconclusory factual allegation[s]” to
determine whether the plaintiff has stated a plausible claim for relief. Id.
While “res judicata is an affirmative defense that typically may not afford the basis for
a Rule 12(b)(6) dismissal unless it is ‘apparent on the face of the complaint,’” the United States
Court of Appeals for the Third Circuit has found this rule inapplicable where, as in this case,
there are no relevant factual disputes, the district court deciding the motion to dismiss also
adjudicated the case on which res judicata is based, and the evidence relied on that is outside the
Complaint is a matter of public record. Hoffman v. Nordic Naturals, Inc., 837 F.3d 272, 280 (3d
The doctrine of res judicata “promotes judicial economy and protects defendants from
having to defend multiple identical or nearly identical lawsuits by barring not only claims that
were brought in a previous action, but also claims that could have been brought.” Morgan v.
Covington Twp., 648 F.3d 172, 177 (3d Cir. 2011) (citation and quotation marks omitted). Res
judicata “applies when there exists (1) a final judgment on the merits in a prior suit involving (2)
the same parties or their privies and (3) subsequent suit based on the same cause of action.” Id.
(citation and quotation marks omitted). However, the Third Circuit has held that “res judicata
does not bar claims that are predicated on events that postdate the filing of the initial complaint.”
Id. at 178. In so holding, the Third Circuit stated that “[a] contrary rule would only invite
disputes about whether plaintiffs could have amended their initial complaints to assert claims
based on later-occurring incidents.” Id.
In its Motion to Dismiss, Abbott argues that Baron “relied heavily” on his retaliation
argument in his Response to the Motion for Summary Judgment in Baron I and failed to amend
the Baron I Complaint, despite learning the relevant information during discovery. Def. Mem.
Supp. Mot. 2. Abbott acknowledges that the Third Circuit has held that res judicata does not bar
claims arising from events that occur after a complaint is filed. However, Abbott relies on Lin v.
Rohm & Haas Co., 865 F. Supp. 2d 649, 659 (E.D. Pa. Mar. 26, 2012) (Yohn, J.), to argue that
the rationale of Morgan “does not apply when a plaintiff relies upon the events postdating the
initial complaint to make assertions in the initial litigation” and makes “a strategic decision not
to file an amended complaint.” Id. at 3-4.
In Lin, the plaintiff alleged that her former employer had retaliated against her by seeking
excessive discovery in a state lawsuit between the parties. 865 F, Supp. 2d at 654-55. The
plaintiff had previously filed a complaint in federal court alleging that the defendant filed the
state lawsuit in retaliation for plaintiff’s informal complaints to the EEOC. Id. at 654. While the
discovery requests occurred after the filing of the first suit, the plaintiff relied on the discovery
requests to support her retaliation claim in briefing the defendant’s renewed motion for summary
judgment and her motion for reconsideration in the first suit. Id. at 659. The Lin court
concluded that res judicata barred the plaintiff’s retaliation claims in the second suit because the
court in the first suit had “construed [plaintiff’s] briefs as asserting claims arising out of the . . .
discovery requests—and clearly addressed those claims . . . .” Id. at 661. In Lin, the court stated
that the court in the first suit had “expressly addressed” the discovery requests by noting that the
plaintiff “now largely predicates the ‘adverse employment action’ prong of her retaliation claim
on the discovery requests . . . and asserting[ing] that it did ‘not believe that discovery sanctioned
by the state court can constitute an adverse employment action’” in those circumstances. Id. at
660-61 (citation omitted).
Baron argues that his retaliation claim is not barred because the facts underlying the
retaliation claim occurred after the filing of the Baron I Complaint and the retaliation claim was
not litigated or considered by the Court in Baron I. The Court agrees for the following two
First, the facts forming the basis of Baron’s retaliation claim—Abbott’s hiring of
Lanchantin—occurred in February 2015, well after the filing of the Baron I Complaint. Thus,
under Morgan, res judicata does not bar this claim.
Next, the Court concludes that the exception to the Morgan rationale applied in Lin is
inapplicable to this case. Unlike the plaintiff in Lin, Baron did not rely on the facts of
Lanchantin’s hire as evidence that he suffered age discrimination in Baron I. Rather, Baron
asserted that he had been replaced by employees who were 6 years and 21 years younger. Baron
also stated in the motion papers in Baron I that Abbott retaliated against him when it did not
reinstate him to his former position and hired Lanchantin instead and that he would move to
amend his Complaint to include such a claim, but he never did so. Thus, unlike the court in Lin,
this Court did not consider Baron’s retaliation claim in granting the Motion for Summary
Judgment in Baron I in its Memorandum and Order dated February 17, 2016. The Court
considered the fact of Lanchantin’s hiring only in concluding that Baron had been replaced by
Lanchantin rather than by the employees who were 6 years and 21 years younger than Baron.
For these reasons, the Court concludes that res judicata does not bar Baron’s retaliation claim in
For the foregoing reasons, defendant’s Motion to Dismiss is denied. An appropriate
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