ROE v. THE MCKEE MANAGEMENT ASSOCIATES, INC. et al

Filing 27

MEMORANDUM AND OPINION. SIGNED BY HONORABLE MARK A. KEARNEY ON 2/21/17. 2/21/17 ENTERED & E-MAILED.(fdc)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CIVIL ACTION

CAROLYNN ROE

v.

N0.16-5520

THE MCKEE MANAGEMENT
ASSOCIATES, INC, et al

MEMORANDUM
KEARNEY,J.

February 21, 2017

A fired 70-year-old employee rece1vmg unemployment benefits and expecting a
promised favorable reference who later raised post-termination age discrimination claims now
seeks to amend her complaint to allege her former employers illegally retaliated against her
under the Age Discrimination in Employment Act by contesting her ongoing unemployment
benefits and refusing to issue the promised favorable reference. We find the proposed second
amended complaint neither prejudicial nor sought after undue delay.
The former employers also argue the amendment is futile. To determine whether the
proposed amendment states a retaliation claim sufficient to withstand a motion to dismiss, we
must decide whether, under the governing Act, the employee's post-termination refusalto sign a
release or raising claims of age discrimination are protected activity. We must then decide
whether the former employers' arguably responsive post-termination contest of her ongoing
unemployment benefits and withholding a favorable reference can be post-employment adverse
employment actions giving rise to a potential retaliation claim. In 2004, our Court of Appeals
held a former employee could not proceed on a retaliation claim under the Act based on posttermination adverse actions. We find this 2004 reasoning cannot withstand the analysis required
by the Supreme Court's 2006 guidance in the similarly-phrased Title VII paradigm in Burlington

Northern & Santa Fe Ry. Co. v. White. Courts in this Circuit allow Title VII retaliation claims
based on post-termination conduct including contesting unemployment benefits. We do not see a
reasoned basis to distinguish post-termination retaliation for claiming age discrimination under
the Act from post-termination retaliation when former employees claim race or gender
discrimination under Title VII.
In the accompanying Order, we grant leave to amend to allow the terminated employee to
allege retaliation based on her post-termination age discrimination claim followed shortly
thereafter by the former employers' change of position in contesting her ongoing unemployment
benefits and refusing to issue the promised favorable reference.

I.

Facts
In February 1996, The McKee Management Associates, Inc., The McKee Group, and

Lindenwood Apartments, LTD (together the "former employers") hired Carolynn Roe to manage
five of their multi-unit apartment complexes. 1 Ms. Roe received favorable performance reviews,
salary increases, and other bonuses during her twenty years of employment.2 In February 2015,
the former employers increased her salary and thanked her for hard work and dedication. 3 The
former employers never reprimanded her or placed her on a performance improvement plan. 4
Ms. Roe's former employers fired her on June 8, 2015, at the age of 70. 5 They replaced
her with Andres Hames, approximately age 40. 6 Kevin McLaughlin, Esquire, the former
employers' attorney, and Ms. Custer, the Human Resources Manager, told Ms. Roe she could
collect unemployment and would receive a good reference. 7 When Ms. Roe asked why they fired
her, Attorney McLaughlin said "performance." 8 Ms. Custer would not give Ms. Roe specifics
and told her to talk to a lawyer. 9 Attorney McLaughlin handed Ms. Roe a standard release of
claims against the former employers, including claims under the Age Discrimination in

2

Employment Act ("ADEA'') and the Pennsylvania Human Relations Act ("PHRA") (the "June
release"). 10 Ms. Roe did not sign the June release.
Ms. Roe filed for unemployment benefits on June 15, 2015 and began receiving
payments. 11 On June 29, 2015, Ms. Roe's attorney told her former employers she intended to file
a claim of age discrimination. 12
On July 7, 2015, the former employers began to contest Roe's unemployment benefits
claiming performance deficiencies. 13 With the contest, the Commonwealth stopped the
unemployment payments. 14 On August 7 and 14, 2015, the former employers' new lawyer
presented Ms. Roe with a broader release waiving all claims, specifically including claims under
the ADEA and PHRA (the "August release"). 15 The former employer said they would not oppose
her unemployment benefits in exchange for her signing the release. 16 Ms. Roe refused to sign the
August release. 17
Ms. Roe instead pursued and won her claim for unemployment benefits through
Pennsylvania's Department of Labor Board of Review. 18 After winning at this level, the
Commonwealth began paying her unemployment benefits again five months after it had stopped
payments based on the contest. 19 The former employers have not issued the promised reference
letter. 20
After receipt of a right to sue letter, Ms. Roe timely sued the former employers alleging
their reasons for termination are pretext for age discrimination and they retaliated posttermination against her by contesting unemployment benefits and withholding a favorable
reference after she engaged in protected activity of refusing to sign the June or August releases
and claiming age discrimination.

3

II.

Analysis

Responding to the former employers' motion to dismiss, Ms. Roe moves to amend her
first amended complaint. We grant Ms. Roe's motion for leave to amend except as to her claim
of protected activity based on refusing to sign the June and August releases.
Federal Rule of Civil Procedure 15(a)(2) requires we "freely give leave when justice so
requires." 21 "Dismissal without leave to amend is justified only on the grounds of bad faith,
undue delay, prejudice, or futility." 22 The former employers argue undue delay, prejudice, and
futility, but fail to demonstrate undue delay, prejudice, or futility.
Our Court of Appeals instructs "delay alone is an insufficient ground to deny leave to
amend. " 23 An "undue" delay places "an unwarranted burden on the court."24 "The issue of
prejudice requires [a] focus on the hardship to the defendants if the amendment were
permitted." 25 These hardships can include "additional discovery, cost, and preparation to defend
against new facts or new theories." 26 Amendments are futile when "the complaint, as amended,
would fail to state a claim upon which relief could be granted."27 Our Court of Appeals has
stated "the pleading philosophy of the Rules counsels in favor of liberally permitting
amendments to a complaint."28
A. We find no undue delay or prejudice.
Ms. Roe has not unduly delayed her request to again amend her complaint. The former
employers rely on Bjorgung v. Whitetail Resort, LP and Estate of Olivia ex rel. McHugh v. New
Jersey to argue undue delay. 29 Both cases involved plaintiffs who delayed their requests to

amend for several years. 30 Ms. Roe filed her original complaint on October 21, 2016, her first
amended complaint on January 20, 2017, and her motion for leave to amend her complaint a
second time on February 10, 2017. 31 This delay is not "undue." She added facts to address her

4

former employers' motions to dismiss. While plaintiffs should meet our pleading standards in
their first filing, we should not discourage plaintiffs from amending to meet pleading deficiencies
so early in the case.
The former employers argue a third version of the complaint will prejudice them. They
claim Ms. Roe adds improper allegations about Rule 408 settlement discussions in her proposed
second amended complaint. 32 They also argue they have already incurred costs from filing their
two previous motions to dismiss and will have to incur the expense of a third motion to
dismiss. 33 The former employers also argue they already sent written discovery requests based on
the first amended complaint, and will have to send additional interrogatories based on the newly
plead facts in the second amended complaint. 34
These arguments do not establish prejudice. The settlement discussions are not an issue
because Ms. Roe's allegations address the causation elements of the retaliation claim. They are
not introduced for a use Rule 408 prohibits. 35 The former employers have not shown how their
previous discovery requests, now awaiting response, are wasted in light of Ms. Roe's proposed
changes. In the accompanying Order, we allow the parties discovery requests beyond the Rule 33
limits. The former employers have not established undue delay or prejudice.
B. The proposed second amended complaint is not futile.

The central dispute is whether Ms. Roe can state a claim for ADEA retaliation arising
from the former employers' post-termination conduct in contesting unemployment benefits and
withholding a promised reference letter after Ms. Roe refused to sign the June and August
releases and after Ms. Roe's lawyer told the former employers of potential liability for age
discrimination.

5

To establish a prima facie case of retaliation under ADEA, Ms. Roe must show she
"engaged in protected conduct; (2) [she] was subject to an adverse employment action
subsequent to such activity; and (3) ... a causal link exists between the protected activity and the
adverse action."36 The former employers presently challenge Ms. Roe's ability, as a matter of
ADEA law, to plead post-termination protected conduct and adverse employment actions. They
concede, for purposes of this motion, Ms. Roe pleaded a causal link between her alleged
protected conduct and their responsive acts.
Ms. Roe's second amended complaint adds several facts directed at the retaliation claim.
Unlike the first amended complaint, the second amended complaint pleads the second element of
the prima facie case of retaliation. The second amended complaint provides additional
information about the alleged adverse employment actions. The first amended complaint only
discussed the June release, and did not address the August release. The second amended
complaint pleads additional facts about the August release. The second amended complaint
clarifies the former employers did not condition her ability to collect unemployment on her
signing the June release, but did condition their withdrawal of opposition to her unemployment
claim on her signing the August release. The second amended complaint also reveals Ms. Roe
began receiving unemployment payments after she filed for unemployment in mid-June, and
stopped receiving the payments about five weeks later.
The second amended complaint also clarifies the timeline of the alleged retaliation. The
first amended complaint only alleges she filed for unemployment, informed the former
employers of her intent to file age discrimination claims, and had to pursue her claim for
unemployment against the former employers' opposition up to the Department of Labor Board of
Review. The second amended complaint fleshes out this timeline by alleging she filed for

6

unemployment and began receiving payments, and then informed the former employers of her
intent to sue through her attorney. The former employers then began to contest her
unemployment benefits claim, causing the payments to discontinue. They presented her with the
August release shortly thereafter, this time conditioning their withdrawal of their opposition to
her unemployment claim on her signing the August release.
Lastly, the first amended complaint says nothing about the reference letter the former
employers promised Ms. Roe. The first amended complaint only states the former employers told
her they would provide her with a good reference when they fired her. The second amended
complaint adds Ms. Roe still has not received a reference letter. These added allegations and
clarifications allow Ms. Roe to plead the second element in her prima facie case of retaliation.
Assuming, as we must, these facts will be proven, we must now examine whether
pleading of post-employment activity is protected conduct and an employer's responsive actions
can be considered adverse employment actions under ADEA.
1. Ms. Roe alleges protected conduct in claiming age discrimination but not in
failing to sign the June and August releases.

Under the ADEA, a person has engaged in "protected conduct" when she "has opposed
any practice made unlawful by ... section [623]" of the Act. 37 Section 623 makes it unlawful to
discriminate "against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such an individual's age." 38
Ms. Roe does not allege protected conduct before her termination. She alleges after her
termination she (1) refused to sign a release of discrimination claims against her former
employers, 39 and (2) informed her former employers she intended to file charges of age
discrimination. 40 We shall consider each of these activities in tum.

a. Ms. Roe's refusal to sign a release is not protected conduct.
7

Our Court of Appeals held in EEOC v. Allstate a refusal to sign a release of
discrimination claims is not a protected activity under the ADEA. In EEOC v. Allstate, the
defendants changed their business model and terminated several employees. 41 The defendants
required the former employees "to sign a release of all legal claims against the company related
to their employment or termination, including discrimination claims arising under ... the Age
Discrimination in Employment Act[.]" 42 Several former employees refused to sign the release
and filed discrimination and retaliation charges. 43
The EEOC argued the former employees' refusal to sign a release constitutes opposition
to unlawful discrimination. 44 Our Court of Appeals disagreed, stating "such inaction does not
communicate opposition sufficiently specific to qualify as protected employee activity."45 Our
Court of Appeals held "[b]ecause Allstate's Release barred its signatories from bringing any
claims against Allstate concerning their employment or termination, employee agents who
refused to sign it might have done so for any number of reasons unrelated to discrimination."46
Ms. Roe alleges Attorney McLaughlin handed her "a release of claims" when the former
employers fired her on June 8, 2015. 47 She described this June release as "a release of her right to
file claims under the ADEA and PHRA."48 She refused to sign this release. 49 She then alleges on
August 7 and 14, 2015, the former employers' new lawyer presented her with "a release to sign
whereby she would waive any and all claims including her right to pursue claims under the
ADEA and PHRA and in exchange for the Defendants not contesting her unemployment
claim." 50 This August release occurred after the former employers began opposing her
unemployment benefits claim on July 7, 2015. 51 Ms. Roe refused to sign this August release. 52
Ms. Roe's refusal to sign the August release cannot serve as the protected conduct
because it occurred after the alleged retaliation took place. 53 Ms. Roe's refusal to sign the June
8

release occurred before the alleged retaliation, but this release contained a general release of all
claims, including age discrimination claims. As in Allstate, Ms. Roe's refusal to sign this release
does not communicate specific opposition to age discrimination. This alleged protected activity
does not suffice to meet the first element of the prima facie case.
b. Ms. Roe's claim for age discrimination is protected conduct.

The former employers argue Ms. Roe's stated intent to sue for age discrimination is not
protected because it occurred after her termination. 54 The former employers' argument assumes a
protected activity cannot occur after an employee's termination. We disagree.
An individual can engage in a protected activity under ADEA after their termination. In
Fasold v. Justice, the plaintiff filed an EEOC charge for age discrimination after his

termination. 55 Our Court of Appeals found "there is no dispute that Fasold engaged in a protected
employee activity in that he filed a complaint with the EEOC and the PHRC." 56 In Schmidt v.
Montgomery Kone, Inc., the defendants laid off the plaintiff and he filed an age discrimination

complaint with the EEOC. 57 The defendants then called him back to work and assigned him
more difficult and dangerous tasks upon his return. 58 He alleged these work assignments were in
retaliation for filing the EEOC complaint after his lay-off. 59 The court held the plaintiff stated a
prima facie case of retaliation. 60

Communicating intent to sue is a protected activity under the ADEA. Our Court of
Appeals held in Barber an individual engages in protected conduct under the ADEA when he or
she opposes age discrimination. "A general complaint of unfair treatment does not translate into
a charge of illegal age discrimination. " 61 Our Court of Appeals did not precisely define the type
of conduct constituting protected activity, but stated "[o]ur analysis requires only that we analyze
the message ... conveyed[.]"62

9

In Zielinski v. Whitehall Manor, Inc., the plaintiffs attorney sent the plaintiffs supervisor
a letter stating "if I learn of evidence supporting a claim for age discrimination we will lodge
those charges[.]" 63 The court noted "[c]onsistent with Barber, plaintiffs attorney specifically
mentioned age discrimination, so the letter is not a general claim of unfair treatment." 64 The
court held "[i]f protesting age discrimination by society in general constitutes protected activity,
certainly plaintiffs attorney threatening to sue plaintiffs Supervisor upon learning of evidence
supporting age discrimination constitutes protected activity." 65
Ms. Roe's attorney informed the former employers she "intended to file a claim of age
discrimination with the appropriate governmental agency." 66 As in Zielinski, Ms. Roe's attorney
specifically mentioned age discrimination and communicated clear opposition to age
discrimination. This activity constitutes protected conduct under the ADEA. Ms. Roe's proposed
second amended complaint pleads the first element of the prima facie case for retaliation.
2. Ms. Roe pleads two post-employment adverse employment actions.

Ms. Roe does not allege she experienced adverse employment actions before her
termination. She instead alleges adverse employment actions occurring after her termination: her
former employers opposed her unemployment benefits claim67 and refused to give her a good
reference. 68 Both of these actions allegedly occurred after the former employers promised not to
contest unemployment benefits and to provide a good reference. Ms. Roe received
unemployment benefits for several weeks. The former employers contested unemployment
benefits after Ms. Roe's lawyer told the former employers of an age discrimination claim, and
the Commonwealth then stopped her benefit payments.

10

a. The former employers' opposition to Ms. Roe's unemployment benefits
claims is an adverse employment action.

Ms. Roe and her former employers disagree on the relevant standard governing the
required timing of an "adverse employment action" under ADEA. The former employers rely on
Glanzman v. Metropolitan Mgmt. Co. as the controlling precedent arguing we cannot find an
ADEA adverse employment action after termination. Ms. Roe relies on the Supreme Court's
later holding in Burlington Northern & Santa Fe Ry. Co. v. White applying a different standard
for an adverse employment action in a Title VII case.
In Glanzman, defendants fired the plaintiff after discovering her plans to steal a
dishwasher from one of their properties. 69 The plaintiff filed for unemployment benefits, and
defendants contested her claim. 70 She argued this opposition constituted an adverse employment
action for purposes of a retaliation claim under the ADEA. 71 Our Court of Appeals held her
"retaliation argument fails because she was not employed . . . at the time of the alleged
retaliation." 72 Our Court of Appeals held "given the nature of unemployment benefits, her
employment was terminated before, not after or contemporaneous with, her filing for
unemployment benefits. Once her employment was terminated it was not possible for her to
suffer adverse employment action." 73
Even with this bright line rule from our Court of Appeals, the former employers admit
post-termination actions can constitute adverse employment actions after Glanzman if they affect
the former employee's ability to obtain future employment. 74 They argue Ms. Roe has not and
cannot allege their opposition to her unemployment benefits claim impacted her employment
prospects. 75 Ms. Roe has not alleged this opposition impacts her employment prospects but
described harm during oral argument and may do so in her second amended complaint if possible
under Fed.R.Civ.P. 11.
11

Eighteen months after Glanzman, the United States Supreme Court in Burlington
Northern expanded the definition of an "adverse employment action" in the Title VII retaliation

context. 76 The Supreme Court held "a plaintiff must show that a reasonable employee would
have found the challenged action materially adverse[.]" 77 "Materially adverse" means the
adverse employment action would have dissuaded a reasonable worker from filing a charge of
discrimination. 78 Ms. Roe argues we should apply this standard to find, in an ADEA context, the
former employers' post-termination actions would dissuade a reasonable worker from making or
supporting a charge of discrimination. 79
Our Court of Appeals has applied Burlington Northern to ADEA retaliation claims, but
those cases either involved pre-termination adverse employment actions, joint Title VII and
ADEA retaliation claims, or both. In Daniels v. School District of Philadelphia, the plaintiff
asserted retaliation claims under both Title VII and ADEA. 80 Our Court of Appeals stated "[w]e
address these claims together as the circumstances of this case do not require that we make
differing analyses." 81 The adverse employment actions in Daniels occurred pre-termination. 82 In
Mikulski v. Bucks County Cmty.College, Judge Baylson applied Burlington Northern to an

ADEA retaliation claim also involving pre-termination adverse employment actions. 83 In Swain
v. City of Vineland, the plaintiff asserted a retaliation claim only under the ADEA and its New

Jersey equivalent. 84 Our Court of Appeals applied the Burlington Northern standard to this
claim, but the adverse employment actions also occurred pre-termination. 85
Our Court of Appeals has not clarified how Burlington Northern affects Glanzman
regarding post-termination adverse employment actions for ADEA retaliation claims. The
Glanzman reasoning makes sense on a facial level; how can someone suffer an adverse

employment action after she is no longer employed? But the Supreme Court recognizing the

12

realities of retaliation after Glanzman announced a more deferential standard focusing on
whether the employers' action, even post-termination, would have a chilling effect on asserting
discrimination claims.
Burlington Northern concerns a Title VII retaliation claim, not an ADEA retaliation

claim. In Stezzi v. Citizens Bank of Pennsylvania, Judge O'Neill in reviewing a Title VII claim
commented, in dicta, "[while] the respective anti-retaliation provisions under the ADEA and
Title VII are nearly identical, Courts in this Circuit have not uniformly applied these provisions
with regards to claims for post-employment retaliation. As Glanzman demonstrates, our Court of
Appeals held in December 2004 a former employee cannot bring an ADEA retaliation claim for
alleged conduct occurring post-employment." 86 Judge O'Neill reviewed a Title VII case and
held only Glanzman had no effect upon the Title VII post-termination adverse conduct claim.
We decline to follow this dicta.
We follow Judge Vanaskie's more persuasive reasoning in his post-Burlington Northern
holding in Petrunich v. Sun Building Systems and apply the Burlington Northern standard to Ms.
Roe's ADEA retaliation claim plead in her proposed second amended complaint. In Petrunich,
plaintiff alleged the defendant opposed his request for unemployment benefits in retaliation for
his ADEA complaint. 87 Judge Vanaskie held "under the standard articulated in [Burlington
Northern], the opposition to Mr. Petrunich's claim for unemployment benefits is an adverse

employment action because it would discourage a reasonable worker from filing an age
discrimination complaint." 88

Judge Vanaskie did not distinguish between post-employment

retaliation for discrimination charges simply because one type of discrimination is for race or
gender and the other is for age.

13

Courts in other Circuits have also interpreted Burlington Northern to permit a plaintiff to
base their prima facie case of Title VII retaliation on their former employer's opposition to their
unemployment claims. In Koger v. Woody, a Title VII case, the district court found the plaintiff
stated a plausible claim for retaliation when she alleged her former employers presented false
information to contest her unemployment benefits. 89 The Court held "[g]iven the scope of
retaliation claims that the Supreme Court articulated in Burlington v. White, Plaintiff has met her
burden of pleading a retaliation claim sufficiently to survive a motion to dismiss." 90 The District
of Columbia Circuit also noted in dicta a former employer's false report to contest
unemployment benefits "involve[ d] conduct that ... the Supreme Court has already indicated can
support a retaliation claim [in Burlington Northern]."

91

We see no basis to preclude ADEA plaintiffs from the same rights to retaliation claims as
those asserting ADEA and Title VII. The language of the anti-retaliation provisions in ADEA
and Title VII is virtually identical. 92 Our Court of Appeals has applied the Burlington Northern
"materially adverse" standard to ADEA retaliation claims. Our Court of Appeals' narrow
interpretation of post-employment retaliation in Glanzman pre-dates the Supreme Court's

Burlington Northern guidance. We are aware of no reason why the same statutory language in a
Title VII retaliation case would prohibit post-termination retaliation but would permit it for age
discrimination. Under this standard of whether former employers' post termination actions would
dissuade a reasonable worker from making or supporting a charge of discrimination, we find the
former employers' opposition to Ms. Roe's unemployment benefits constitutes an adverse
employment action.
Under the Burlington Northern standard, Ms. Roe's second amended complaint alleges
an adverse employment action for purposes of the prima facie case of retaliation. The second

14

amended complaint clarifies Ms. Roe initially succeeded in obtaining unemployment benefits
until her former employers began opposing her claim on July 7, 2015. 93 We can plausibly infer at
this stage the risk of losing unemployment benefits payments would dissuade a reasonable
worker from filing a discrimination charge. These added details allow Ms. Roe to meet the
second element of the prima facie case.
b. The former employers' failure to issue the promised reference letter can
be an adverse employment action.
Ms. Roe also adds in her second amended complaint she has still not received a positive
reference from her former employers. This added allegation affects her ability to meet the second
element of the prima facie case.
The former employers' failure to provide Ms. Roe with a reference constitutes an adverse
employment action because it impacts her ability to obtain future employment. Our Court of
Appeals has held an individual "may file a retaliation action against a previous employer for
retaliatory conduct occurring after the end of the employment relationship when the retaliatory
act ... arises out of or is related to the employment relationship." 94 "We [have] held that a former
employee could state a claim for retaliation arising out of post-employment conduct, so long as
the retaliation affected the plaintiffs future employment opportunities." 95
In Foster v. JLG Indus., the district court denied the defendants' motion to dismiss and
allowed an ADEA retaliation claim to proceed "only with respect to the failure to provide
Plaintiff with post-employment references." 96 Ms. Roe's second amended complaint clarifies the
former employers failed to provide her with a reference and this failure is affecting her
employment prospects. Ms. Roe alleges "[b ]ecause Defendants have not provided Ms. Roe with
the positive referenced [sic] as promised, her future employment opportunity [sic] have been
greatly impaired and her prospects of finding comparable employment greatly diminished[.]"97

15

This amended allegation allows Ms. Roe to meet the second element of the prima facie case of
retaliation.

III.

Conclusion
Ms. Roe's proposed second amended complaint is not proffered after undue delay and

does not unduly prejudice her former employers at this early stage. While the former employers
dispute the facts, those issues need to await trial or at least review of a fulsome summary
judgment record. Ms. Roe states a claim for ADEA retaliation arising from her post-termination
protected activity of claiming age discrimination which arguably resulted in her former
employers' change of position in contesting her ongoing unemployment benefits and never
issuing the promised favorable reference letter. On the deferential standard applied today, we
allow Ms. Roe to file a second amended complaint consistent with the accompanying Order and
this Memorandum.

1

Proposed Second Amended Complaint at iii! 14, 22, 29 (ECF Doc. No. 11).

2

Id. at iii! 23-26.

3

Id. at if 27.

4

Id. at if 28.

5

.

Id. atif29.

6

Id. at if 32.

7

Id. at iii! 30, 31.

8

Id. at if 30.

9

Id.

10

Id. at iii! 30, 35.
16

11

Id. at~~ 33, 35.

12

Id. at~ 34.

13

Id. at~ 35.

14

Id.

15

Id. at~ 36.

16

Id.

11

Id.

18

Id. at~ 35.

19

Id.

20

Id. at~ 37.

21

Fed.R.Civ.P. 15(a)(2).

22

Alston v. Parker, 363 F.3d 113, 115 (3d Cir. 2004).

23

Cureton v. Nat'! Collegiate Athletic Ass 'n, 252 F.3d 267, 273 (3d Cir. 2011).

24

Id.

25

Id.

26

Id.

27

Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000).

28

CMR D.N Corp. & Marina Towers Ltd. v. City of Phila., 703 F.3d 612 (3d Cir. 2013) (citing
Adams v. Gould Inc., 739 F.2d 858, 864 (3d Cir. 1984)).
29

Defendants' Opposition to Plaintiffs Motion for Leave to File a Second Amended Complaint
at p. 3 (ECF Doc. No. 22).
30

Bjorgung, 550 F.3d 263, 266 (3d Cir. 2008); Estate of Olivia ex rel. McHugh, 604 F.3d 788,
803 (3d Cir. 2010).

31

ECF Doc. Nos. 1, 6, 16.
17

32

ECF Doc. No. 22, at pp. 6-7.

33

Id.

34

Id. at p. 7.

35

The former employers also object to Ms. Roe's "sharp pleading practices" regarding what they
contend are Rule 408 discussions. ECF Doc. No. 22, at p. 9. We consider this argument
subsumed in the former employers' other Rule 408 arguments concerning prejudice. These
issues may also be addressed in pre-trial in limine motions.
36

Barber v. CSX Distrib. Servs., 68 F.3d 694, 701 (3d Cir. 1995).

37

29 u.s.c. § 623(d).

38

29 U.S.C. § 623(a).

39

ECF Doc. No. 11 at~ 35.

40

Id. at~ 34.

41

778 F.3d 444, 446-47 (3d Cir. 2015).

42

Id. at 447.

43

Id. at 447-48.

44

Id. at 452.

45

Id.

46

Id. (emphasis in original).

47

First Amended Complaint at~ 30 (ECF Doc. No. 6).

48

Id. at~ 35.

49

Id.

50

Id. at~ 36.

51

Id. at~ 35.

52

Iid. at~ 36.
18

53

Barber, 68 F.3d at 701.

54

Defendants' Motion to Dismiss First Amended Complaint at p. 5 (ECF Doc. No. 8).

55

Fasold v. Justice, 409 F.3d 178, 182 (3d Cir. 2005).

56

Id at 188.

57

69 F. Supp. 2d 706, 709 (E.D. Pa. 1999).

58

Id.

59

Id.

60

Id. at 714.

61

Barber, 68 F.3d at 702 (emphasis in original).

62

Id.

63

899 F. Supp. 2d 344, 354 (E.D. Pa. 2012).

64

Id.

65

Id.

66

ECF Doc. No. 11 at~ 34.

67

Id. at~ 35.

68

Id. at~ 37.

69

391 F.3d 506, 509-10 (3d Cir. 2004).

70

Id. at 515-16.

11

Id.

n Id.
73

Id.; See also Boyle v. McCann-Erickson, 949 F.Supp. 1095 (S.D.N.Y. 1997) (before
Burlington Northern, holding employer did not retaliate by deciding not to rehire after
terminating employee and then learning of age discrimination claim because the decision did not
affect the employment, which had ended, or his ability to enforce his rights).
19

74

ECF Doc. No. 8, at pp. 6-7. See Fasold, 409 F.3d at 188-89 and Mullen v. Chester Cty. Hosp.,
No. 14-2836, 2015 WL 1954399 at *10 (E.D. Pa. Apr. 30, 2015).
75

ECF Doc. No. 8, at p. 7.

76

548 U.S. 53, 57 (2006).

77

Id. at 68.

78

Id. (citing Washington v. Ill. Dep 't of Revenue, 420 F.3d 658, 662 (7th Cir. 2005)).

79

ECF Doc. No. 11 at p. 10.

80

776 F.3 181, 192 (3d Cir. 2015).

81

Id.

82

Id. at 196.

83

No. 11-557, 2011 WL 1584081, *4 (E.D.Pa. Apr. 27, 2011).

84

457 F. App'x 107 (3d Cir. 2012).

85

Id. at 111.

86

No. 10-4333, 2012 WL 4717900 at *3 (E.D. Pa. Oct. 4, 2012).

87

No. 4-2234, 2006 WL 2788208 at *7 (M.D. Pa. Sept. 26, 2006).

88

Id. at *8.

89

No. 09-09, 2009 WL 2762610 at *4 (E.D. Va. Aug. 28, 2009).

90

Id. at *5.

91

Steele v. Schafer, 535 F.3d 689, 696 (D.C. Cir. 2008). Courts in other Circuits have held the
opposite. In Yanke v. Mueller Die Cut Solutions, Inc., a district court in the Western District of
North Carolina stated it "does not consider an employer's lawful participation in an employee's
worker's compensation or unemployment benefit proceedings as an 'adverse action' within the
meaning of Title VII[.]" No. 3-527, 2007 WL 437694 at *9 (W.D.N.C. Feb. 5, 2007).
92

See 29 U.S.C. § 623(d); 42 U.S.C. § 2000e-3(a); see also Kessler v. Westchester County Dep 't
of Soc. Servs., 461 F.3d 199, 205 (2d Cir. 2006) ("The ADEA contains a nearly identical
provision prohibiting retaliation for complaining of employment discrimination on the basis of

20

age, see 29 U.S.C. § 623(d), and the same standards and burdens apply to claims under both
statutes, see, e.g., Terry v. Ashcroft, 336 F.3d 128, 141 (2d Cir. 2003)"); Satterfield v. Consol.
Pa. Coal Co., No. 06-1262, 2007 WL 2728541 (W.D.Pa. Sept. 17, 2007) (applying Burlington
Northern because the Title VII and ADEA retaliation provisions are "not materially different");
93

ECF Doc. No. 11 at ,-r 35.

94

Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 200 (3d Cir. 1994)). Although Charlton is a
Title VII retaliation case, one court in this District applied it to an ADEA retaliation claim. See
Sylvester v. Unisys Corp., No. 97-7488, 1999 WL 167725 at *11 (E.D. Pa. Mar. 25, 1999).
95

Robinson v. City of Pittsburgh, 120 F.3d 1286, n. 15 (3d Cir. 1997).

96

372 F. Supp. 2d 792, 804 (M.D. Pa. 2005).

97

ECF Doc. No. 11 at ,-r 37.

21