Opinion
Civil Action No. 18-1279
08-01-2019
KIMBERLY ROBBEN, Plaintiff(s), v. HCL AMERICA, INC and LEGO SYSTEMS, INC, Defendant(s).
REPORT AND RECOMMENDATION Cynthia Reed Eddy, Chief United States Magistrate Judge.
I. Recommendation
For the reasons stated herein, it is respectfully recommended that the Motion to Dismiss (ECF No. 17) filed on behalf of defendant Lego Systems, Inc. ("LEGO") be denied.
II. Report
A. Procedural History
Plaintiff Kimberly Robben initiated this action with the filing of a Complaint (ECF No. 1) on September 25, 2018. On January 29, 2019, she filed her First Amended Complaint ("FAC") (ECF No. 16), the operative pleading. Defendant HCL America, Inc. filed an answer on February 12, 2019. (ECF No. 19). Defendant LEGO has filed the now pending motion to dismiss. (ECF No. 17), with brief in support (ECF No. 18). Plaintiff has filed a brief in opposition (ECF No. 22) and LEGO has filed a reply. (ECF No. 26). The matter is now ripe for disposition.
The allegations in the FAC are as follows. In May 2016, Plaintiff was contacted by a recruiter from IDC Technologies, Inc. ("IDC"), Meenakshi Gusain ("Gusain") who represented to Plaintiff that she was "recruiting on behalf of Defendant HCL and Defendant LEGO for a full-time 'Business Analyst' position." (FAC at ¶¶ 22-23). Plaintiff alleges LEGO was a single or joint employer with HCL. (FAC at ¶ 16). After reviewing the job requirements, Plaintiff "determined she was qualified for the Business Analyst position," and on May 9, 2016 applied for the position by responding to the IDC recruiter's email and submitted her résumé along with three letters of recommendation. (FAC at ¶¶ 25-26). IDC recruiter Gusain then purportedly notified Plaintiff she had been selected for an interview and that Nisha Khanna Verma would conduct the interview by Skype. (FAC at ¶¶ 27, 29). Gusain sent Plaintiff a link to Verma's LinkedIn page for Plaintiff to review prior to the interview. (FAC at ¶ 29). Verma's LinkedIn profile stated that her title was Digital Producer, LEGO Group. (FAC at ¶30). Gusain also shared with Plaintiff an e-mail address for Verma which contained a domain name for HCL. (FAC at ¶ 30).
Plaintiff claims the business analyst position reported to Ms. Verma, who was HCL's senior program manager working with LEGO. (FAC at ¶ 24). Ms. Verma interviewed Plaintiff on or about May 18, 2016. (FAC at ¶ 31). Ultimately, Plaintiff was not selected for the position. (FAC at ¶ 38). Plaintiff alleges she was not selected "because of her age" and a substantially younger person was hired instead. (FAC at ¶¶ 38, 41).
On June 2, 2016, Gusain sent Plaintiff an e-mail, which, according to Gusain, contained Plaintiff's interview "feedback" from Gusain's "client." (FAC at ¶34.) In that e-mail, Gusain informed Plaintiff that her "client['s]" feedback about Plaintiff was as follows:
Kim Robben: Good candidate from experience, knowledge perspective. However I am not sure about her team fit from kerins
[sic] perspective as she is an elderly lady with lot of experience but not sure how she will it [sic] into the team. I will talk to kerin about it.(FAC at ¶ 34). Upon information and belief, "kerin", as referenced in Gusain's June 2, 2016 e-mail to Plaintiff, refers to Kerin Smollen. (FAC at ¶36.) On her LinkedIn profile, Kerin Smollen indicates that she held the position of "Department Head: Content Management, User Experience & Creative Technology" with LEGO from June 2015 until December 2017. (FAC at ¶ 36).
Plaintiff was 57 years old at the time Defendants failed to hire her. (Id. at ¶41.) At Count I she asserts claims of age discrimination under the Age Discrimination in Employment Act, as amended by the Older Workers Benefits Protection Act, 29 U.S.C. § 621, et seq. ("ADEA"), and at Count II she asserts a claim pursuant to the Pennsylvania Human Relations Act, 43 P.S. §951, et seq. ("PHRA").
C. Standard of Review
To survive dismissal pursuant to Federal Rule of Civil Procedure 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 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The reviewing court must "determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). Dismissal under Federal Rule of Civil Procedure 12(b)(6) is proper where the factual allegations of the complaint conceivably fail to raise, directly or inferentially, the material elements necessary to obtain relief under a legal theory of recovery. Twombly, 550 U.S. at 561. Thus, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678 (2009) (citing Twombly, 550 U.S. at 555). The factual and legal elements of a claim should be separated, with the court accepting all well-pleaded facts as true and disregarding all legal conclusions. Santiago v. Warminster Twp., 629 F.3d 121, 130-31 (3d Cir. 2010). Under this standard, civil complaints "must contain more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). A court in making this determination must ask "not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claim." Twombly, 550 U.S. at 583 (quoting Scheuer v. Rhoads, 416 U.S. 232, 236 (1974) (internal quotations omitted)).
D. Discussion
LEGO argues that Plaintiff has failed to allege the existence of an employment or prospective employment relationship with LEGO. LEGO specifically argues that under the "integrated enterprise" test applicable to ADEA cases, the appropriate standard for determining whether nominally separate corporations are to be considered a single employer is whether they comprise an integrated enterprise, citing those factors set forth in Pellegrino v. McMillen Lumber Prod. Corp., 16 F. Supp. 2d 574, 591 (W.D. Pa. Sept. 13 1996). LEGO further argues that Plaintiff has not alleged that HCL and LEGO are a "joint employer" pursuant to factors outlined in In re Enterprise Rent-A-Car Wage & Hour Emp't Practices Litig., 683 F.3d 462, 469 (3d Cir. 2012).
In response, Plaintiff argues that the question of whether LEGO is a single or joint employer is more aptly decided at the summary judgment phase, citing to case law in which courts have refused to dismiss a claim without the opportunity of discovery, as the issue is fact-intensive analyses. See e.g., Thompson v. US Airways, Inc., 717 F. Supp. 2d 468, 479 (E.D. Pa. 2010); Hayes v. Waddell & Reed, et al., CA No. 12-293, 2013 U.S. Dist. LEXIS 139774 (W.D. Pa. Aug. 14, 2013).
At this juncture, it is important to allow a fully developed record in order to resolve these legal issues. We must give plaintiff the benefit of all reasonable inferences and find the allegations are sufficient to establish a plausible claim against the defendant LEGO as a joint employer. Plaintiff has alleged that LEGO "retained significant control over the terms and conditions of Plaintiff's prospective employment as a Business Analyst. (FAC at ¶ 8). Furthermore, we note that it is alleged Gusain wrote in the email that she was recruiting on behalf of both entities (FAC at ¶ 23), Verma's LinkedIn profile stated that her title was Digital Producer, LEGO Group, Gusain shared an email address for Verma containing a domain name for Defendant HCL (FAC at ¶30), and an inference can be raised that HCL consulted with and sought the approval of LEGO with regard to the hiring decision. (FAC at ¶¶ 34, 36, 37) (Kerin Smollen, LEGO employee, referred to as hesitant to hire Plaintiff because Plaintiff was an "elderly lady"). It is further alleged that Gusain and Verma represented to Plaintiff that the employment would be with both entities if she was hired. (FAC at ¶¶ 22, 23, 30, 34).
As for the argument that the HCL and LEGO are a single employer, Plaintiff's allegations are much weaker, and her arguments in reliance on Nesbit v. Gears Unlimited, Inc. 347 F.3d 72 (3d Cir. 2003) are misplaced. As LEGO correctly notes, Nesbit involved alleged violations of Title VII, not the ADEA, and addressed the question of whether named defendant companies were in a parent-subsidiary relationship. Id. at 86. Here, there are few factual allegations, as opposed to legal conclusions, to support the allegation that LEGO and HCL collectively decided not to hire Plaintiff on the basis of her age. Regardless, given the procedural posture of this case, and the allegations that both defendants failed to hire plaintiff and both defendants hired a substantially younger person, and drawing all reasonable inferences from the facts as currently alleged, Plaintiff should be allowed to proceed on the alternative theory that defendants were operating as a single employer.
Of course, whether these factual allegations will be borne out through discovery remains to be seen, but at this juncture, out of an abundance of caution, it is respectfully recommended that the action against LEGO be permitted to proceed to discovery.
III. Conclusion
For all the foregoing reasons, it is respectfully recommended that the motion to dismiss be denied.
Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Civil Rules, the parties are allowed until August 15, 2019, to file objections. Failure to timely file objections will constitute a waiver of any appellate rights. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their objections and any response to the initial objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.
s/Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge cc: All counsel of record via ECF electronic notification