Opinion
CIVIL 1:21-CV-02006
02-07-2023
DAWN WALEGA, Plaintiff, v. LACKAWANNA COUNTY GOVERNMENT OFFICE, et al., Defendants.
MANNION, JUDGE.
REPORT AND RECOMMENDATION
SUSAN E. SCHWAB, UNITED STATES MAGISTRATE JUDGE.
I. Introduction.
Plaintiff Dawn Walega claims that the defendants discriminated and retaliated against her in connection with her employment with Lackawanna County. Currently pending is the defendants' motion to dismiss Walega's second amended complaint. For the reasons set forth below, we recommend that the court grant the motion by dismissing Walega's federal claims for failure to state a claim upon which relief can be granted. We further recommend that the court decline to exercise supplemental jurisdiction over Walega's state-law claims and dismiss those claims without prejudice. Finally, we recommend that the court grant Walega one final opportunity to amend her complaint.
II. Background and Procedural History.
Walega began this action by filing a complaint on November 29, 2021. See doc. 1. The complaint concerned employment discrimination and named two defendants: Justin MacGregor and William Browning. Id. We granted Walega's application for leave to proceed in forma pauperis, and we ordered the Clerk of Court to serve the complaint on the two named defendants. See doc. 6.
Walega also filed a document titled “Case Brief.” See doc. 5. Noting that Walega improperly asserted factual allegations supporting her claims in this Case Brief, but the proper place for such allegations is in a complaint, we informed Walega that pursuant Fed.R.Civ.P. 15(a) she may file an amended complaint without first seeking leave of court. See doc. 8 at 1-2. In her Case Brief, Walega also requested the appointment of counsel. Doc. 5 at 2. After considering the relevant factors, we denied that request. Doc. 8 at 2-6.
A short time later, Walega filed an amended complaint. See doc. 9. The defendants then filed a motion to dismiss the amended complaint and a brief in support of that motion. See docs. 14, 15. Given that we had a case management conference already scheduled and because we intended to discuss the amended complaint and the motion to dismiss at that conference, we stayed Walega's duty to respond to the motion to dismiss pending that conference. See doc. 16.
After the case management conference and in accordance with the discussion at that conference, by an Order dated March 22, 2022, we granted Walega leave to file a second amended complaint. See doc. 19. For Walega's benefit, we noted some pleading standards that she must comply with in filing a second amended complaint. Id. at 1-5. In addition to setting forth the pleading standards, we noted that “Walega should not assume that the court and defendants are aware of the events at issue; rather, she should draft her second amended complaint ‘as if [she] were telling a story to people who knew nothing about [her] situation.'” Id. at 2 (quoting Whrel v. United States, No. 16-CV-758-JDP, 2017 WL 4352088, at *2 (W.D. Wis. Sept. 29, 2017)).
A few days later, Walega filed a document titled “Plaintiff's Motion to Provide Amended Complaint.” See doc. 20. Although the Clerk of Court initially docketed this document as an amended complaint, the document was titled as a motion, not an amended complaint. Further, it appeared that Walega drafted this document before she received the Order of March 22, 2022, explaining the pleading standards that she must comply with in filing a second amended complaint. And the document did not comply with the pleading standards. Thus, we directed the Clerk of Court to correct the docket to reflect that the document is a motion, not an amended complaint. See doc. 21. And we granted the motion to the extent that we gave Walega another opportunity to file a second amended complaint that complies with the pleading standards. Id. at 6. Again, for Walega's benefit, we outlined the pleading standards. Id. at 2-6. We also again noted that Walega should not assume that the court and defendants are aware of the events at issue and that she should tell the story of what happened. Id. at 3. We further stressed that Walega must provide fair notice of her claims. Id. at 6. Thus, we explained, “she must allege in her second amended complaint what each defendant did, and she must set forth against which defendant or defendants she is bringing which claims.” Id.
On May 13, 2022, Walega filed a document titled as a second amended complaint. See doc. 22. And on May 17, 2022, she filed another document also titled as a second amended complaint. See doc. 24. There were only minor formatting differences between these two documents. Compare doc. 22 with doc. 24. But to clear up the confusion of having two documents titled as a second amended complaint and so that the defendants knew to which complaint they must respond, we ordered the earlier second amended complaint (doc. 22) stricken, and we ordered that the later second amended complaint (doc. 24) is the operative complaint going forward. See doc. 25.
In the caption of her second amended complaint, Walega names the following as the defendants: (1) Lackawanna County Government Office (“Lackawanna County”); (2) Justin MacGregor; (3) William Browning; (4) Jane Doe, Lackawanna County employee(s); and (5) John Doe, Lackawanna County employee(s). In the body of her second amended complaint, Walega mentions numerous other individuals, who are apparently Lackawanna County employees.
Although Walega names this defendant as Lackawanna County Government Office, since Walega is proceeding pro se, we liberally construe the second amended complaint to be naming Lackawanna County as a defendant.
“Doe defendants ‘are routinely used as stand-ins for real parties until discovery permits the intended defendants to be installed.'” Hindes v. F.D.I.C., 137 F.3d 148, 155-56 (3d Cir. 1998) (quoting Scheetz v. Morning Call, Inc., 130 F.R.D. 34, 36 (E.D. Pa. 1990)). Here, apart from listing Jane and John Does in the caption, the second amended complaint contains no allegations regarding any Jane or John Does.
Perhaps Walega intended these other individuals to be the Jane and John Does listed in the caption. But since Walega knows their names, there is no need to refer to them as Doe defendants. In any event, as discussed below, we are recommending that Walega be given one final opportunity to amend her complaint. If that recommendation is adopted, Walega can clarify this issue in a third amended complaint.
Despite setting forth the pleading standards for Walega, telling her that she should not assume that we know what happened, and stressing that her second amended complaint must provide fair notice of her claims, the second amended complaint is unclear. Although Walega is apparently complaining about events that happened to her during 2017 and 2018, while she was employed, she does not even allege who her employer was. Nevertheless, construing the second amended complaint liberally, as we must since Walega is pro se, we assume that Walega worked for Lackawanna County in some capacity.
Instead of opening her second amended complaint with allegations about what the defendants allegedly did that affected her, she starts with an advisement: “Lackawanna County Residents and Lackawanna County Taxpayers should be advised their public officials have mishandled their funds due to fraud and flex time abuse.” Doc. 24 ¶ 1 (all bold omitted). She then alleges that defendant William Browning and other employees took time to which they were not entitled, and that flex time was fraudulently applied to Kerri Browning (William's wife). Id.
Walega also alleges that a Mackenzie Malone would socialize and take breaks and lunches for extended amounts of time, that she would sleep on the job, that she would refuse to do work, that she would not sign in and out as required, that she would not hand in leave slips until questioned, that she would use her phone and her computer for personal reasons, and that she would commit “other infractions that were not addressed in the correct manner.” Id. ¶ 2. Walega alleges that Malone was “a younger worker,” and she characterizes Malone's treatment as age discrimination. Id.
Walega asserts that she was wrongfully terminated and retaliated against after she “brought forward fraud and flex time abuse[.]” Id. ¶ 3. She alleges that on November 6th, 7th, 8th of 2017, she notified supervisors Patricia O'Neill and Adrian Maillet of “wrong doing.” Id. And, on December 1, 2017, she emailed Human Resources Director defendant Justin MacGregor “to discuss issues occurring at Lackawanna County,” but MacGregor “failed to follow through and do his job.” Id. ¶¶ 3, 7. Later, on December 1, 2017, Walega was given a written warning. Id. ¶ 3. About three days after that, she received in the mail notice that she was given a five day suspension. Id.
Characterizing such as threats and verbal abuse, Walega alleges that although she was performing her job duties, Lackawanna County repeatedly told her that she was going to lose her job. Id. She also alleges that the County transferred her to another floor in order to humiliate her. Id. Walega further contends that unlike many other employees, she followed procedures and policies. Id. For example, she asserts that she was diligent in having leave slips properly approved. Id. She also alleges that Lackawanna County employees were required to punch in and out when arriving at or leaving work. Id. ¶ 4. But there was such abuse of that policy, that William Browning implemented “a stricter policy for the employees that were negligent in punching in and out.” Id. Still, an “OYFS supervisor continued to be defiant by not punching in and out during the month of December [2017] and was never disciplined for her infractions.” Id. Walega, on the other hand, “was diligent in punching in and out,” and she would notify her supervisor if there was an issue with the time clock. Id.
Walega does not allege what “OYFS” stands for.
Walega also alleges that in February 2016, a supervisor-Sandy Perry-told her to “STOP SCANNING” and Walega complied. Id. ¶ 5. According to Walega, her April 2017 performance review “will prove Lackawanna County is fabricating and falsifying [her] work habits.” Id. In this regard, she notes that she assisted with payroll; that if payroll is not completed on time, employees do not get paid on time; and that Lackawanna County cannot show that “paychecks were not received on time because of [her] ‘so called' poor work habits.” Id. She also alleges that she continued to complete assignments and meet payroll deadlines until she was placed on paid administrative leave in January 2018. Id.
According to Walega, she was forced to sign a last chance agreement on January 12, 2018. Id. ¶ 6. Although she was hesitant to sign the agreement because it “listed discrepancies,” William Browning threated to immediately terminate her employment if she did not sign. Id. (bold omitted). Walega again asserts that “Lackawanna County falsified and fabricated [her] work habits and there was no written warning on November 29, 2017, etc.” Id.
The significance of the November 29, 2017 date is not clear from the second amended complaint.
On January 26, 2018, Walega requested two hours of leave in connection with a commitment involving her two youngest daughters. Id. ¶ 3. But according to Walega, defendant MacGregor, while in defendant William Browning's office, put her on paid administrative leave. Id. MacGregor said, “I am immediately putting Dawn on Paid Administrative Leave because of her aggressive behavior towards JoAnn (Granza).” Id. MacGregor then asked Granza to escort Walega out of the building. Id. And without hesitation and without a word being spoken, Granza and Adrian Maillet walked Walega out. Id. Walega alleges that she did not exhibit any aggressive behavior toward Granza or any other employee either before or after MacGregor's remark, which Walega characterizes as defamation. Id. And she alleges that despite two due process hearings, she was wrongfully terminated. Id.
Walega also alludes to false statements by Attorney Thomas Nealon, id. ¶ 7, but the context of such statements is not clear. She asserts that there was no meeting with Justin MacGregor on December 1, 2017. Id. And she contends that her “so called' infractions, contrary to Nealon's suggestion otherwise, were after she reported wrongdoing in November 2017. Id. ¶ 8. According to Walega, at some point, Adrian Maillet commented that Walega “went up (referring to Human Resources on the 6th Floor in the Administrative Building) to file a complaint.” Id.
Attorney Nealon is one of the defense attorneys in this case.
Although inartfully pleaded, in her second amended complaint, Walega purports to list 11 causes of actions:
(1) Wrongful termination, threats, retaliation, and humiliation against MacGregor, William Browning, Sandy Perry, and Lackawanna County;
(2) Wrongful termination, retaliation, and humiliation against Adrian Maillet and Lackawanna County;
(3) Defamation against MacGregor and Lackawanna County;
(4) Verbal Abuse against William Browning, Sandy Perry, and Lackawanna County;
(5) Age discrimination against Mackenzie Malone and Lackawanna County;
(6) False statements against MacGregor, William Browning, Lackawanna County, and Attorney Thomas Nealon;
(7) Fraud against MacGregor, William Browning, Kerri Browning, Patricia O'Neill, Adrian Maillet, Sandy Perry, and Lackawanna County;
(8) Flex time abuse against Kerri Browning and Lackawanna County;
(9) Nepotism against MacGregor, William Browning, Kerri Browning, and Lackawanna County;
(10) Loss of job, wages, and fear against MacGregor, William Browning, Adrian Maillet, Sandy Perry, and Lackawanna County;
(11) fraud against Lackawanna County Taxpayers and Residents by MacGregor, William Browning, Kerri Browning, Patricia O'Neill, Adrian Maillet, Sandy Perry, and Lackawanna County.Id. at 4-5, ¶¶ 1-11.
As relief, Walega asks for judgment “against Lackawanna County for [her] to return to work immediately, loss of wages since February 2018, address and resolve the fraud and flex time abuse with Lackawanna County Residents and Lackawanna County taxpayers, address the fear that was initiated during employment and following the years the case continued, plus additional request be granted.” Id. at 5 (Wherefore Clause).
Walega also suggests that she would “settle said claim for such amount (Loss of job/employment since February 2018, Loss of wages since February 2018, Loss of place in society, Loss [of] the bond with youngest daughter Clare Grace, Loss of health insurance since February 2018, Emotional distress, Negative affect [sic] on Plaintiff and Plaintiff's daughters, and other on such terms as Judge Susan E. Schwab and the court permits or allows, in the best interest of Plaintiff Walega.” Doc. 24 at 5 (Resolved Further Clause).
Defendants MacGregor, William Browning, and Lackawanna County filed a motion to dismiss the second amended complaint and a brief in support of that motion. And Walega filed a brief and other documents in opposition to that motion. See docs. 29, 30. For the reasons set forth below, we will recommend that the defendants' motion to dismiss be granted to the extent that Walega's federal claims be dismissed for failure to state a claim upon which relief can be granted. We will also recommend that the court decline to exercise supplemental jurisdiction over Walega's state-law claims. Finally, we recommend that the court grant Walega one final opportunity to amend her complaint.
Defense counsel docketed the motion to dismiss as also filed on behalf of the Jane and John Does. See docket entry for doc. 26. But neither the motion to dismiss nor the brief in support of that motion mentions any Jane or John Does. See docs. 26, 27. Nor does defense counsel explain how he could have an attorney-client relationship with unidentified Jane and John Does. Moreover, as mentioned above, although the caption of the second amended complaint lists Jane and John Does, the body of the second amended complaint contains no allegations regarding Jane and John Does. Thus, we will not further discuss any Jane and John Does.
III. Discussion.
In their motion, the defendants move to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) (lack of subject-matter jurisdiction), 12(b)(2) (lack of personal jurisdiction), and 12(b)(6) (failure to state a claim upon which relief can be granted). Below, we address whether the second amended complaint fails to state a claim upon which relief can be granted. Although the defendants also mention lack of subject-matter jurisdiction and lack of personal jurisdiction, they do not brief those issues. Because the defendants fail to brief the alleged lack of personal jurisdiction, we will not address that issue further at this time. But “[t]he Court ha[s] ‘an independent obligation to determine whether subject-matter jurisdiction exist[s], even in the absence of a challenge from any party.'” Guerra v. Consol. Rail Corp., 936 F.3d 124, 131 (3d Cir. 2019) (quoting HartigDrug Co. Inc. v. Senju Pharm. Co. Ltd., 836 F.3d 261, 267 (3d Cir. 2016)). Thus, we will examine whether this court has subject-matter jurisdiction despite the defendants' failure to brief that issue.
A. This court has subject-matter jurisdiction.
“Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). “[T]hey have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto.” Bender v. Williamsport Area School Dist., 475 U.S. 534, 541 (1986). “Subject-matter jurisdiction can never be waived or forfeited.” Gonzalez v. Thaler, 565 U.S. 134, 141 (2012). Thus, the court has an obligation to satisfy itself that it has subject-matter jurisdiction, and the court may raise the issue sua sponte. Nesbit v. Gears Unlimited, Inc., 347 F.3d 72, 77-78 (3d Cir. 2003). “If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Fed.R.Civ.P. 12(h)(3).
The court has diversity jurisdiction over civil actions where the matter in controversy exceeds the sum or value of $75,000 and is between inter alia citizens of different states. 28 U.S.C. § 1332. Section 1332 requires complete diversity. Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996). There is complete diversity only when “the citizenship of each plaintiff is diverse from the citizenship of each defendant.” Id. “A plaintiff invoking a federal court's diversity jurisdiction bears the burden of stating ‘all parties' citizenships such that the existence of complete diversity can be confirmed.'” Kissi v. Gillespie, 348 Fed.Appx. 704, 705-06 (3d Cir. 2009) (quoting Chem. Leaman Tank Lines, Inc. v. Aetna Cas. & Sur. Co., 177 F.3d 210, 222 n. 13 (3d Cir. 1999)).
Here, Walega has not alleged facts from which it can reasonably be inferred that this court has diversity jurisdiction. She does not allege an amount in controversy. Thus, she has not satisfied the requirement that the amount in controversy exceed $75,000. Nor does she allege that the court has complete diversity. In fact, she does not allege the citizenship of either her or any of the defendants. Accordingly, as pleaded, the court does not have diversity jurisdiction pursuant to 28 U.S.C. § 1332.
The court has federal-question jurisdiction over “civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Here, the defendants identify a federal claim-a claim under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.-that provides the court with federal-question jurisdiction under § 1331. Although Walega does not mention the ADEA, “[w]e apply the applicable law, irrespective of whether a pro se litigant has mentioned it by name.” Holley v. Dep't of Veteran Affairs, 165 F.3d 244, 248 (3d Cir. 1999). Here, because Walega alleges age discrimination in connection with her employment, her exclusive remedy is a claim under the ADEA. Hildebrand v. Allegheny Cty., 757 F.3d 99, 109-10 (3d Cir. 2014) (holding that the ADEA, which provides a comprehensive remedial scheme, precludes 42 U.S.C. § 1983 claims of age discrimination in employment). Thus, we apply the ADEA.
The defendants do not specifically cite to the ADEA. But quoting Burton v. Teleflex Inc., 707 F.3d 417, 426 (3d Cir. 2013), for the standards for a prima facie case of age discrimination under the ADEA, they contend that Walega fails to state a claim for age discrimination upon which relief can be granted. See doc. 27 at 5-6.
The defendants argue that Walega's second amended complaint fails to state a claim for age discrimination upon which relief can be granted. That may be so, but that does not mean that the court lacks subject-matter jurisdiction. “[T]he absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction, i.e., the court's statutory or constitutional power to adjudicate the case.” Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 89 (1998) (emphasis in original). Subject-matter jurisdiction is not defeated by the possibility that the averments of the complaint might fail to state a cause of action on which the plaintiff could actually recover. Id. Rather, “[d]ismissal for lack of subject-matter jurisdiction because of the inadequacy of the federal claim is proper only when the claim is ‘so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy.'” Id. (quoting Oneida Indian Nation of N.Y. v. County of Oneida, 414 U.S. 661, 666 (1974)). Here, as discussed below, the second amended complaint fails to state a claim under the ADEA upon which relief can be granted, but we cannot say that the second amended complaint fails to raise at least an arguable ADEA claim. Moreover, construing the second amended complaint liberally, as we must since Walega is pro se, and given that she mentions retaliation for reporting purported misconduct of other county employees, we construe the second amended complaint as also raising a First Amendment retaliation claim. And given the federal claims-the ADEA and First Amendment claim-the court has federal-question subject-matter jurisdiction under 28 U.S.C. § 1331.
Having concluded that the court has subject-matter jurisdiction, we turn to the whether the second amended complaint states a claim upon which relief can be granted. After setting forth the pleading standards and Fed.R.Civ.P. 12(b)(6) standards, we conclude that the second amended complaint fails to state either an ADEA or a First Amendment retaliation claim upon which relief can be granted.
B. Pleading and Fed.R.Civ.P. 12(b)(6) Standards.
In accordance with Fed.R.Civ.P. 12(b)(6), the court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” When reviewing a motion to dismiss under Rule 12(b)(6), “[w]e must accept all factual allegations in the complaint as true, construe the complaint in the light favorable to the plaintiff, and ultimately determine whether plaintiff may be entitled to relief under any reasonable reading of the complaint.” Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010). In making that determination, we “consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the [plaintiff's] claims are based upon these documents.” Id. at 230.
“A Rule 12(b)(6) motion tests the sufficiency of the complaint against the pleading requirements of Rule 8(a).” I.H. ex rel. D.S. v. Cumberland Valley Sch. Dist., 842 F.Supp.2d 762, 769-70 (M.D. Pa. 2012). “Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a ‘short and plain statement of the claim showing that the pleader is entitled to relief.'” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Fed.R.Civ.P. 8(a)(2)). The statement required by Rule 8(a)(2) must give the defendant fair notice of the nature of the plaintiff's claim and of the grounds upon which the claim rests. Erickson v. Pardus, 551 U.S. 89, 93 (2007). Detailed factual allegations are not required, but more is required than “labels,” “conclusions,” or “a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “In other words, a complaint must do more than allege the plaintiff's entitlement to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). “A complaint has to ‘show' such an entitlement with its facts.” Id.
In considering whether a complaint fails to state a claim upon which relief can be granted, the court “‘must accept all facts alleged in the complaint as true and construe the complaint in the light most favorable to the nonmoving party.'” Krieger v. Bank of Am., N.A., 890 F.3d 429, 437 (3d Cir. 2018) (quoting Flora v. Cty. of Luzerne, 776 F.3d 169, 175 (3d Cir. 2015)). But a court “need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). A court also need not “assume that a . . . plaintiff can prove facts that the . . . plaintiff has not alleged.” Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).
Following Twombly and Iqbal, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, it must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis:
First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Finally, “where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.”Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (footnote and citations omitted) (quoting Iqbal, 556 U.S. at 675, 679).
A complaint filed by a pro se litigant is to be liberally construed and “‘however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'” Erickson, 551 U.S. at 94 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Nevertheless, “pro se litigants still must allege sufficient facts in their complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013).
C. The second amended complaint fails to state either an ADEA or a First Amendment retaliation claim upon which relief can be granted.
At the outset, we note that both Walega and the defendants appear to fundamentally misunderstand the nature and limits of a Fed.R.Civ.P. 12(b)(6) motion. Walega requests a hearing on the defendants' motion. See doc. 29 at 1, 3. But because a Rule 12(b)(6) motion is based on the allegations in the operative complaint, there is no basis to hold a hearing. Walega also submitted an affidavit in opposition to the defendants' motion to dismiss. See doc. 29-1. But again, as the standards set forth above show, a Rule 12(b)(6) motion is limited to whether Walega has pleaded a claim upon which relief can be granted, and in making that determination we do not consider documents, such as affidavits, outside the operative complaint. Thus, we will not consider Walega's affidavit. Similarly, “[a]lthough a court on a motion to dismiss ordinarily ‘must accept the allegations in the complaint as true,' it is not compelled to accept assertions in a brief without support in the pleadings.” Chavarriaga v. New Jersey Dep t of Corr., 806 F.3d 210, 232 (3d Cir. 2015) (quoting Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013)). “After all, a brief is not a pleading.” Id. Thus, we do not accept the factual assertions in Walega's brief in opposition that do not appear in her second amended complaint.
For the defendants' part, in their motion and brief, they make factual statements regarding the purported reasons for Walega's termination and regarding Mackenzie Malone that are not found in Walega's second amended complaint. See doc. 26 ¶¶ 2, 3, 4, 5, 11; doc. 27 at 4-6. Again, “a court reviewing a motion to dismiss must examine the plausibility of ‘allegations in the complaint.'” Doe v. Princeton Univ., 30 F.4th 335, 344-45 (3d Cir. 2022) (quoting Twombly, 550 U.S. at 555). “Factual claims and assertions raised by a defendant are not part of that scrutiny.” Id. at 345. Thus, we will not consider the factual contentions raised by the defendants.
1. The ADEA.
The second amended complaint fails to state an ADEA claim upon which relief can be granted. The second amended complaint also fails to allege a condition precedent to bringing an ADEA claim in federal court.
The ADEA prohibits employers from discriminating against individuals 40 years of age and over based on their age, providing, among other things, that “[i]t shall be unlawful for an employer . . . 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)(1); see also 29 U.S.C. § 631(a) (providing that “[t]he prohibitions in this chapter shall be limited to individuals who are at least 40 years of age”); O 'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312 (1996) (“The discrimination prohibited by the ADEA is discrimination ‘because of [an] individual's age,' 29 U.S.C. § 623(a)(1), though the prohibition is ‘limited to individuals who are at least 40 years of age,' § 631(a).”).
To establish a discrimination claim based on circumstantial evidence under the ADEA, the plaintiff must first establish a prima facie case by showing “that (1) [s]he is at least forty, (2)[s]he is qualified for the job, (3) [s]he suffered an adverse employment action, and (4) [s]he was replaced by (or passed over in favor of) someone else ‘who was sufficiently younger so as to support an inference of a discriminatory motive.'” Martinez v. UPMC Susquehanna, 986 F.3d 261, 266 (3d Cir. 2021) (quoting Willis v. UPMC Children 's Hosp. of Pittsburgh, 808 F.3d 638, 644 (3d Cir. 2015)). But “the prima facie case is not ‘intended to be rigid, mechanized, or ritualistic.'” Willis, 808 F.3d at 644 (quoting Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 352 (3d Cir. 1999)). And “[w]here the plaintiff is not directly replaced, the fourth element is satisfied if the plaintiff can provide facts which ‘if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.'” Id.
The defendants suggest that the second amended complaint fails to state an ADEA claim upon which relief can be granted because Walega has not alleged the elements of a prima facie case. But at the pleading stage, although “it is sufficient,” “it is not necessary” “to allege a prima facie case.” Martinez, 986 F.3d at 266. Rather, “[t]he complaint need only allege enough facts to ‘raise a reasonable expectation that discovery will reveal evidence of [each] necessary element.'” Id. (quoting Fowler, 578 F.3d at 213). Nevertheless, we agree with the defendants that the second amended complaint fails to state an age discrimination claim under the ADEA upon which relief can be granted. Walega does not allege that she was at least 40 years old. Moreover, although Walega alleges that Mackenzie Malone, a “younger worker,” failed to do her job in a myriad of ways and was not disciplined, Walega fails to allege that she was disciplined for the same or substantially similar failures. Further, Walega does not allege facts from which it can reasonably be inferred that either her discipline or her termination was causally related to her age. Accordingly, the second amended complaint fails to state an age discrimination claim upon which relief can be granted.
Nor does the second amended complaint state an ADEA retaliation claim upon which relief can be granted. In addition to discrimination, the ADEA, in certain circumstance, also prohibits employers from retaliating against employees, providing that
[i]t shall be unlawful for an employer to discriminate against any of his employees or applicants for employment, . . . because such individual . . . has opposed any practice made unlawful by this section, or because such individual . . . has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this chapter.”29 U.S.C. § 623(d). For an employee to establish a prima facie case of retaliation requires a “showing ‘(1) [that she engaged in] protected employee activity; (2) adverse action by the employer either after or contemporaneous with the employee's protected activity; and (3) a causal connection between the employee's protected activity and the employer's adverse action.” Daniels v. Sch. Dist. of Philadelphia, 776 F.3d 181, 193 (3d Cir. 2015) (quoting Marra v. Phila. Hous. Auth., 497 F.3d 286, 300 (3d Cir. 2007)). As mentioned above, at the pleading stage, although a plaintiff does not necessarily need to allege a prima facie case, she must allege “enough facts to ‘raise a reasonable expectation that discovery will reveal evidence of [each] necessary element.'” Martinez, 986 F.3d at 266 (quoting Fowler, 578 F.3d at 213).
Here, Walega has not alleged enough facts to state an ADEA retaliation claim upon which relief can be granted. In particular, she has not alleged facts from which it can reasonably be inferred that she engaged in protected activity under the ADEA. In this regard, although she alleges that she complained about wrongdoing to supervisors in November of 2017, she asserts that she “brought forward fraud and flex time abuse,” not that she complained about age discrimination. Doc. 24 ¶ 3. Even if we assume that Walega complained about Mackenzie Malone not being disciplined for not doing her job, as set forth above, that is not age discrimination under the ADEA given that age discrimination under the ADEA requires that a qualified employee at least 40 years of age suffered an adverse employment action based on his or her age.
In addition to failing to state either a discrimination or a retaliation claim under ADEA upon which relief can be granted, Walega fails to allege that she meets the condition precedent to bring a claim under the ADEA. “A plaintiff seeking relief under the ADEA must exhaust his or her administrative remedies as mandated by 29 U.S.C. § 626(d).” Hildebrand v. Allegheny Cnty., 757 F.3d 99, 111 (3d Cir. 2014). That section “requires plaintiffs in ‘deferral states' such as Pennsylvania, which have a state agency with authority to investigate claims of employment discrimination, to file charges with the EEOC within 300 days of the last date of alleged discrimination.” Id. (quoting Watson v. Eastman Kodak Co., 235 F.3d 851, 854 (3d Cir. 2000), and citing 29 U.S.C. §§ 626, 633). “A plaintiff's obligation to timely file with the EEOC is a condition precedent to filing suit under the ADEA.” Id. And the plaintiff must allege in the complaint that she meets the condition precedent to bringing suit. See Danielsen v. Pennsylvania Coll. of Tech., Cmty. Arts Ctr., No. 4:13-CV-02927, 2015 WL 391096, at *4 (M.D. Pa. Jan. 28, 2015) (stating that the obligation to file a charge with the EEOC “is a condition precedent to filing suit under the ADEA and must be pled in the plaintiff's complaint”). “In pleading conditions precedent, it suffices to allege generally that all conditions precedent have occurred or been performed.” Fed.R.Civ.P. 9(c); Hildebrand, 757 F.3d at 112. Here, however, Walega does not allege-generally or otherwise-that she met the condition precedent for bringing suit under the ADEA.
2. The First Amendment.
As set forth above, we also construe the second amended complaint liberally to assert a First Amendment retaliation claim. We nevertheless conclude that the second amended complaint fails to state such claim upon which relief can be granted.
The defendants do not construe the second amended complaint as raising a First Amendment claim. Thus, they have not moved to dismiss that claim. Nevertheless, the court may sua sponte dismiss a case in which the plaintiff is proceeding in forma pauperis for failure to state a claim upon which relief can be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii) (“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim on which relief may be granted[.]”).
Walega's First Amendment claim is brought pursuant to 42 U.S.C. § 1983. “Section 1983 imposes civil liability upon any person who, acting under the color of state law, deprives another individual of any rights, privileges, or immunities secured by the Constitution or laws of the United States.” Shuman v. Penn Manor School Dist., 422 F.3d 141, 146 (3d Cir. 2005). Section 1983 “does not create any new substantive rights but instead provides a remedy for the violation of a federal constitutional or statutory right.” Id. To establish a claim under § 1983, the plaintiff must establish a deprivation of a federally protected right and that this deprivation was committed by a person acting under color of state law. Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005).
Here, it is clear from the face of the second amended complaint that Walega's §1983 First Amendment claim is barred by the statute of limitations. Thus, that claim should be dismissed.
“The running of the statute of limitations is an affirmative defense.” Wisniewski v. Fisher, 857 F.3d 152, 157 (3d Cir. 2017). Although the statute of limitations is an affirmative defense, a court can dismiss a complaint based on the statute of limitations when “the complaint facially shows noncompliance with the limitations period and the affirmative defense clearly appears on the face of the pleading.” Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n. 1 (3d Cir. 1994). But ‘“[i]f the bar is not apparent on the face of the complaint, then it may not afford the basis for a dismissal of the complaint under Rule 12(b)(6). '” Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014) (quoting Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002). In other words, “[a] complaint is subject to dismissal for failure to state a claim on statute of limitations grounds only when the statute of limitations defense is apparent on the face of the complaint.” Wisniewski, 857 F.3d at 157.
“A section 1983 claim is characterized as a personal-injury claim and thus is governed by the applicable state's statute of limitations for personal-injury claims.” Dique v. New Jersey State Police, 603 F.3d 181, 185 (3d Cir. 2010). “The statute of limitations applicable to § 1983 claims in Pennsylvania is two years.” Wisniewski, 857 F.3d at 157. A § 1983 cause of action ‘“accrues, and the statute of limitations commences to run, when the wrongful act or omission results in damages.'” Dique, 603 F.3d at 185-86 (quoting Wallace v. Kato, 549 U.S. 384, 391 (2007)). In other words, the cause of action accrues “when the plaintiff has ‘a complete and present cause of action,' that is, when ‘the plaintiff can file suit and obtain relief.'” Wallace, 549 U.S. at 388 (citations omitted). Thus, “[u]nder federal law, a cause of action accrues “‘when the plaintiff knew or should have known of the injury upon which the action is based. '” Montanez v. Sec'y Pennsylvania Dep 't of Corr., 773 F.3d 472, 480 (3d Cir. 2014) (quoting Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009)).
Here, Walega began this case on November 29, 2021. See doc. 1. Her First Amendment retaliation claim is based on events that occurred more than two years before that date-in late 2017 and early 2018. See doc. 24. And given that nature of the events at issue (discipline and termination) it is clear that Walega knew about those events at, or near the time, of those events. Thus, Walega's First Amendment retaliation claim is barred by the statute of limitations.
D. State-Law Claims.
Walega's remaining claims are state-law claims. Those state-law claims arguably fall within the court's supplemental jurisdiction. But because we recommend that the court dismiss the federal claims, we recommend that the court decline to exercise supplemental jurisdiction over the state-law claims given that considerations ofjudicial economy, convenience, and fairness do not provide an affirmative justification for exercising supplemental jurisdiction over those claims.
“The Supplemental Jurisdiction statute, 28 U.S.C. § 1367, enables federal district courts to entertain claims not otherwise within their adjudicatory authority when those claims ‘are so related to claims . . . within [federal-court competence] that they form part of the same case or controversy.'” Artis v. D.C., 138 S.Ct. 594, 597 (2018) (quoting 28 U.S.C. § 1367(a)). But a district court may decline to exercise supplemental jurisdiction under certain circumstances. See 28 U.S.C. § 1367(c).
One of the circumstances that allows the court to decline to exercise supplemental jurisdiction is when the district court has dismissed all claims over which it has original jurisdiction. Id. § 1367(c)(3). In this context, “[t]he decision to retain or decline jurisdiction over state-law claims is discretionary.” Kach, 589 F.3d at 650. “That discretion, however, is not unbridled.” Id. Rather, when deciding whether to exercise supplemental jurisdiction, “a federal court should consider and weigh in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity.” City of Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156, 173 (1997) (quoting Carnegie-Mellon Univ. v. Cahill, 484 U.S. 343, 350 (1988)). The Third Circuit has held that “where the claim over which the district court has original jurisdiction is dismissed before trial, the district court must decline to decide the pendent state claims unless considerations ofjudicial economy, convenience, and fairness to the parties provide an affirmative justification for doing so.” Hedges v. Musco, 204 F.3d 109, 123 (3d Cir. 2000) (quoting Borough of West Miflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995)). Indeed, “the presumptive rule is that the state claims shall be dismissed, unless reasons of economy and fairness dictate otherwise.” Gregor v. TD Bank, N.A., No. CV 2:21-05255-KM-ESK, 2021 WL 4490251, at *6 (D.N.J. Oct. 1, 2021) (footnote omitted).
Here, we are recommending that the court dismiss the federal claims, which are the only claims over which the court has original jurisdiction. There is nothing unique about this case such that considerations of judicial economy, convenience, and fairness provide an affirmative justification for exercising supplemental jurisdiction over Walega's state-law claims. Accordingly, we recommend that the court decline to exercise supplemental jurisdiction over those claims. Thus, those claims should be dismissed without prejudice. See Kach, 589 F.3d at 650 (“If a district court decides not to exercise supplemental jurisdiction and therefore dismisses state-law claims, it should do so without prejudice, as there has been no adjudication on the merits.”).
E. Leave to Amend.
“[I]f a complaint is subject to a Rule 12(b)(6) dismissal, a district court must permit a curative amendment unless such an amendment would be inequitable or futile.” Phillips v. County of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008). In a civil rights action, the court “must provide the plaintiff with this opportunity even if the plaintiff does not seek leave to amend.” Id.
Here, Walega has already amended her complaint multiple times, and she has still failed to state a federal claim upon which relief can be granted. And given the statute of limitations, any further amendment as to the First Amendment retaliation claim would be futile. It is also doubtful that Walega can state an ADEA claim upon which relief can be granted. Nevertheless, given the liberalamendment standard, given that Walega is proceeding pro se, and in an abundance of caution, we will recommend that the court provide Walega one final opportunity to attempt to plead an ADEA claim upon which relief can be granted now that the court has set forth the basic elements of any such claim and has brought to Walega's attention the condition precedent for bringing any such claim.
If this recommendation is granted and Walega is given leave to file a third amended complaint, we call Walega's attention to Federal Rule of Civil Procedure 11(b), which provides that by presenting a third amended complaint to the court, she “certifies that to the best of [her] knowledge, information, and belief, formed after an inquiry reasonable under the circumstances” that:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery;Fed. R. Civ. P. 11(b)(1)-(b)(3). And a party who violates Rule 11(b) may be subject to sanctions. See Fed.R.Civ.P. 11(c). We also note that any third amended complaint must be titled as a third amended complaint and must contain the docket number of this case. Fed.R.Civ.P. 10(a). “The plaintiff is advised that any amended complaint must be complete in all respects.” Young v. Keohane, 809 F.Supp. 1185, 1198 (M.D. Pa. 1992). “It must be a new pleading which stands by itself as an adequate complaint without reference to the complaint already filed.” Id. “In general, an amended pleading supersedes the original pleading and renders the original pleading a nullity.” Garrett v. Wexford Health, 938 F.3d 69, 82 (3d Cir. 2019). “Thus, the most recently filed amended complaint becomes the operative pleading.” Id. In other words, if a third amended complaint is filed, the original, amended, and second amended complaints will have no role in the future litigation of this case. Any third amended complaint must also comply with the pleading requirements of the Federal Rules of Civil Procedure, including the requirements that the complaint contain “a short and plain statement of the grounds for the court's jurisdiction,” “a short and plain statement of the claim,” and “a demand for the relief sought.” Fed.R.Civ.P. 8(a)(1)-(3). Further, “[e]ach allegation must be simple, concise, and direct.” Fed.R.Civ.P. 8(d)(1). “A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances.” Fed.R.Civ.P. 10(b). And to the extent it would promote clarity to do so, “each claim founded on a separate transaction or occurrence . . . must be stated in a separate count.” Id.
IV. Recommendations.
For the foregoing reasons, we recommend that the court grant the defendants' motion (doc. 26) to dismiss the second amended complaint. More specifically, we recommend that the court dismiss the federal claims for failure to state a claim upon which relief can be granted. We further recommend that the court decline to exercise supplemental jurisdiction over Walega's state-law claims and dismiss those claims without prejudice. Finally, we recommend that the court grant Walega one final opportunity to amend her complaint.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive 33 further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions. 34