Opinion
Civil Action 22-721
10-19-2022
KENNETH BOWSER, Plaintiff, v. M&M LIME COMPANY, INC., Defendant.
Hardy, District Judge
REPORT AND RECOMMENDATION
ECF No. 12
LISA PUPO LENIHAN, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
It is respectfully recommended that the Partial Motion to Dismiss Count II (ADEA) of the Complaint filed by Defendant M&M Lime Company, Inc. be denied.
II. REPORT
A. Factual Allegations
Presently before the Court is Defendant M&M Lime Company, Inc.'s (“Defendant”) Partial Motion to Dismiss Count II of the Complaint filed by Plaintiff Kenneth Bowser (“Plaintiff” or “Bowser”). Plaintiff's two-count Complaint alleges both disability and age discrimination. Defendant now seeks to dismiss the age claim in Count II.
Plaintiff is 65 years old. Complaint, ECF No. 1 ¶ 6. He has worked for Defendant for over 44 years. Id. Plaintiff last held the position of High Lift Worker. Id. ¶ 7. He was diagnosed with prostate cancer in 2015, and also suffers from diabetes. He is able to perform the essential functions of his job, however, with or without reasonable accommodation. Id. ¶ 8.
On November 23, 2020, Plaintiff was informed that he was being temporarily laid off due to the pandemic. Id. ¶¶ 9-10. In addition to Plaintiff, Defendant also laid off a similarly aged employee who was also disabled, and two younger employees who were in their twenties. Id. ¶¶ 9, 11.
A short time later, the two younger employees were recalled. Neither Plaintiff nor the other older, disabled employee was recalled with the two younger employees. Id. ¶ 12. After management pushed back his original recall date multiple times, Plaintiff asked his supervisor in May of 2021 whether he could return to work. Id. ¶ 14. Plaintiff's supervisor told Plaintiff that he could not return to work because of his health. Plaintiff then filed a Charge of Discrimination with the EEOC. Thereafter, Defendant re-hired Plaintiff in February of 2022. Id. ¶¶ 15-16.
B. Legal Standard
The United States Court of Appeals for the Third Circuit summarized the standard to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):
Under the “notice pleading” standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with “a short and plain statement of the claim showing that the pleader is entitled to relief.” As explicated in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), a claimant must state a “plausible” claim for relief, and “[a] claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Although “[f]actual allegations must be enough to raise a right to relief above the speculative level,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a plaintiff “need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element.” Fowler, 578 F.3d at 213 (quotation marks and citations omitted); see also Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 117-18 (3d Cir. 2013).Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).
C. Analysis
In support of its Partial Motion to Dismiss Plaintiff's ADEA claim only, Defendant argues that Plaintiff has failed to plead the fourth element of an ADEA claim because he alleges that he was told by his supervisor that he was not permitted to return to work because of his health. Plaintiff responds that he is alleging a direct evidence ADA claim, and a circumstantial evidence claim for violation of the ADEA, and that he may allege more than one reason for the Defendant's alleged adverse action.
The Age Discrimination in Employment Act (“ADEA”) prohibits employers from discriminating on the basis of age and declares it “unlawful for an employer to fail or refuse to hire or discharge any individual or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's age.” 29 U.S.C. § 623(a).
At the motion to dismiss stage, a plaintiff need not make out a prima facie case of discrimination as “[a] prima facie case is an ‘evidentiary standard, not a pleading requirement[.]'” Connelly v. Lane Constr. Corp., 809 F.3d 780, 789 (3d Cir. 2016) (quoting Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 510 (2002)). Instead, a plaintiff must “allege sufficient facts to raise a reasonable expectation that discovery will uncover proof of [his] claims.” Id. The Court, however, may use the elements of a prima facie case as a guide for evaluating the claim at the motion to dismiss stage. See Dreibelbis v. Cnty. of Berks, 438 F.Supp.3d 304 (E.D. Pa. 2020).
In order to make out a prima facie case under the ADEA, a plaintiff must show “(1) the plaintiff is at least 40 years old; (2) the plaintiff suffered an adverse employment decision; (3) the plaintiff was qualified for the position in question; and (4) the adverse action occurred under circumstances that create an inference that plaintiff's age was a motivating factor.” Dodson v. Coatesville Hosp. Corp., 773 Fed.Appx. 78, 80 (3d Cir. 2019) (citing O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 310 (1996)).
Here, Plaintiff asserts that in this temporary layoff case, substantially younger workers were treated more favorably in the recall process than Plaintiff and another older worker. That is, Plaintiff alleges that Defendant told him it was a temporary layoff because of the pandemic and that the company would recall him in March of 2021. ECF No. 1 ¶ 10. Both younger employees were recalled while Plaintiff and the other older worker were not. Plaintiff's recall date was postponed from March until May 2021, when Plaintiff asked his supervisor if he could return to work. Id. ¶¶ 12-14. Although the supervisor responded that Plaintiff could not return to work because of his health, Plaintiff was re-hired in February 2022 after he filed a Charge of Discrimination. Id. ¶¶ 15-16. Taking all of these factual allegations as true, Plaintiff has raised an inference that Plaintiff was not recalled because of his age when the younger employees were recalled, and he and the other older employee were not. At this early stage of the proceedings, Plaintiff has sufficiently alleged the fourth element of a prima facie case of age discrimination under the ADEA.
Contrary to Defendant's arguments, the adverse employment action at issue here is the failure to recall, not the initial selection or inclusion in the temporary layoff.
III. CONCLUSION
For the reasons discussed above, it is respectfully recommended that the Partial Motion to Dismiss Count II (ADEA) of the Complaint filed by Defendant M&M Lime Company, Inc. be denied.
In accordance with the Magistrate Judges Act, 28 U.S.C. §636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of a copy of this Report and Recommendation to file objections. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.