Despot v. Balt. Life Ins. Co., Civil Action No. 15-1672

CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
PartiesDAVID DESPOT, Plaintiff, v. THE BALTIMORE LIFE INSURANCE CO., et al., Defendants.
Docket NumberCivil Action No. 15-1672
Decision Date28 June 2016

Judge Bissoon

Magistrate Judge Mitchell

I. Recommendation

It is respectfully recommended that the Motion to Dismiss Plaintiff's Amended Complaint filed by defendant the Baltimore Life Insurance Co., Inc. (ECF No. 62) be granted. It is further recommended that the motion to dismiss filed by defendant Microsoft Corp. (ECF No. 22), as joined in by defendant Yahoo!, Inc. (ECF No. 32) and as supplemented (ECF Nos. 60, 61, 67), be granted. It is further recommended that the motion to dismiss filed by defendant Casetext, Inc. (ECF No. 35), as supplemented (ECF No. 56), be granted. It is further recommended that the motion to dismiss filed by defendant Portfolio Media, Inc. (ECF No. 40), as supplemented (ECF No. 53), be granted. It is further recommended that the motion to dismiss the Amended Complaint filed by defendant Google, Inc. (ECF No. 57), as supplemented (ECF No. 66), be granted. It is further recommended that defendants, Inc.,, Inc.,, LLC and RFC Express be dismissed from this case based upon Plaintiff's failure to make timely service.

II. Report

Plaintiff, David Despot, has filed an Amended Complaint against two sets of defendants. First, Plaintiff asserts eleven claims of employment discrimination and related causes of action against the Baltimore Life Insurance Company, Inc. ("BLIC")1 on the basis of retaliation, age, disability and equal pay, all arising out of BLIC's decision not to employ him after engaging in three interviews with him, allegedly because he revealed that he had sued previous employers for discriminatory acts. He invokes Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (Title VII), the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34 (ADEA), the Pennsylvania Human Relations Act, 43 P.S. §§ 951-63 (PHRA), the Americans With Disabilities Act, 42 U.S.C. §§ 12101-12117 (ADA), the First Amendment to the United States Constitution, and the Equal Pay Act, 29 U.S.C. § 206. In addition, he purports to allege five Pennsylvania state law claims: "reprisal for engaging in protected activities," negligent misrepresentation, intentional misrepresentation, negligence and intentional infliction of emotional distress (IIED).

Second, he has named nine defendants who provide on-line research services: Google, Inc. (Google), Microsoft Corp./Bing (Microsoft), Yahoo!, Inc. (Yahoo!),, Inc. (,, Inc. (, Pacermonitor/ Harros, LLC (Pacer), Law 360/Portfolio Media, Inc. (Portfolio Media), Casetext, Inc. (Casetext) and RFC Express (together, the "Search Engine Defendants"). Plaintiff's state law claims against the Search Engine Defendants (for IIED, defamation, unfair trade practices, misrepresentation, negligence and invasion of privacy) arise primarily out of his contention that, when his name is run through their services, the top results include links to filings from the many previous legal actions he has filed. He also purports to raise employment retaliation discrimination claims against the Search Engine Defendants by alleging that he applied for positions with them and was not hired.

Currently pending before the Court are six motions to dismiss the Amended Complaint, filed by various defendants, specifically BLIC and five of the Search Engine Defendants,2 pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that he has failed to state claims upon which relief could be granted and that, with respect to his employment discrimination claims, he failed to present them to the Equal Employment Opportunity Commission (EEOC). Some of the defendants have supplemented their motions to dismiss the original complaint. Plaintiff has filed what he refers to as a response and some of the moving defendants have filed a reply brief. For the reasons that follow, all of the motions should be granted.

Facts Relating to BLIC

Plaintiff alleges that he approached BLIC in May 2015 and was invited to apply for the position of Agency Manager for SW Penn. On June 1, 2015, he attended his first interview with David Krupa, Assistant Vice President, Training and Development at BLIC. (Am. Compl. ¶¶ 24-26.)3 On June 3, 2015, he completed the Pre-Employment Authorization and Disclosure Form and also sent an email to Krupa in which he explained why he had late payments on student loan accounts for his two children:

From 8/21/2007 thru 10/20/2009, I was the Regional Director of Sales (IA, IL, IN, KY, MT, NC, ND, OH, PA, SD, TN, and WV) for American Income Life. I was one of the three very successful Regional Directors out of nine nationally. My salary was $104,000 and I was hitting maximum bonus level of $13,000 quarterly and $52,000 annually based upon very successful and consistent sales and recruiting results. Now, the unthinkable. At the annual company convention, there were sexually harassing comments made to my wife at breakfast by one of the other company directors when I was up at the fruit bar. To further complicate matters, this company director was with the company for 20 years and truly was a very close personal friend of the President. I had great relationships with my direct supervisor, all of the executive team at American Income, as well as with this particular director. However, this overall relationship immediately changed when I informed the company of what happened. Instead of the director and personal friend of the President confessing to what he did, the company ended up retaliating against me for bringing this information forward.... In turn as a direct result of this event, my income at the time dropped from about $152,000 to about $20,000 on unemployment and I became late on payments of student loan accounts for my two children. Currently, I am financially stable...

(Am. Compl. ¶ 27.)

Plaintiff states that, on June 9, 2015, during a second interview, Krupa told him that he had been cleared for hire by the Compliance Department in regard to his credit history. In addition, they discussed compensation plan options and potential starting dates. However, Krupa asked him to remove his description of the event involving what happened at American Income Life from the background report so that he "would not look like a victim to the Compliance Department." Plaintiff at first refused to remove the information, but eventually complied. (Am. Compl. ¶¶ 28-32.)

On June 15, 2015, Krupa informed Plaintiff that BLIC had discovered that he had filed at least five lawsuits against various companies. Plaintiff responded:

that these lawsuits involved the breaking of laws by companies that the Plaintiff worked for (or was going to work for). These cases, for examples, included negative impacts on the Plaintiff's employment (or as an employment candidate) for choosing not to support and be involved in deceptive sales practices, forgery of the Plaintiff's signature on an important financial document, several cases involving violations of EEOC laws and resulting retaliation against the Plaintiff, several cases involving EEOC retaliation against the Plaintiff just because the Plaintiff opposed what the Plaintiff believed to be violations of EEOC laws, several cases involving EEOC retaliation against the Plaintiff, just because the Plaintiff had filed an EEOC complaint and/or an EEOC-related lawsuit, and etc.))

(Am. Compl. ¶ 34.) Plaintiff reiterated this response in an email to Krupa dated June 16, 2015, and he included the statement that:

the only concern I have at this time is if [BLIC] would not finalize my appointment and hiring as Agency Manager for SW Penn as I would view this just as further EEOC retaliation against me by [BLIC]. To me, that would be really disappointing and really wrong and I pray that this will not happen.

(Am. Compl. ¶ 35.)

On June 18, 2015, Plaintiff received a memo from Krupa which informed him that BLIC was not going to hire him for the position. According to Plaintiff, the memo listed three reasons for this decision: 1) on his employment application, Plaintiff did not disclose his prior employment with Nationwide in 2011 or his employment with Colonial; 2) his credit history was "below that of a [BLIC] manager"; and 3) BLIC viewed Plaintiff's email of June 16, 2015 as containing an implied threat. Plaintiff responds that: 1) he put his primary employment history on the form (which had only limited space) and Krupa said that would be fine; 2) as noted, Krupa told him on June 9, 2015 that he had been cleared for hire by the Compliance Department with respect to his credit history; and 3) "on the contrary, [BLIC] engaged in retaliatory discrimination against the Plaintiff." (Am. Compl. ¶¶ 36-38.)

Facts Relating to the Search Engine Defendants

Plaintiff states that, on May 5, 2015, he requested that:

eight legal information providers not remove the information/content from their websites (which shows court case records) but the Plaintiff's request was to immediately remove all documents and associated links with the Plaintiff's name (David Despot) and associated legal cases that are being linked to and appearing in any or all of the results of the search engines (Google, Microsoft Bing, Yahoo, etc.) as this is both directly and indirectly causing serious damages to the Plaintiff.

(Am. Compl. ¶ 50.) He provides numerous examples of the results obtained from searching his name in Google, Yahoo! and Microsoft, with case filings reported by various Search Engine Defendants. (Am. Compl. ¶ 52.) Plaintiff also alleges that, on April 25, 2015, he applied for employment with six of the Search Engine Defendants. (Am. Compl. ¶ 55.) He alleges that he is an "indirect employment applicant" with the remaining three (Portfolio Media, Casetext and RFC...

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