Nerosa v. Storecast Merchandising, CIVIL ACTION NO. 02-440 (E.D. Pa. 8/28/2002)
| Decision Date | 28 August 2002 |
| Docket Number | CIVIL ACTION NO. 02-440. |
| Parties | KATHLEEN B. NEROSA and ROBERT NEROSA, v. STORECAST MERCHANDISING CORPORATION and STORECAST CORPORATION OF AMERICA. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Plaintiff Kathleen Nerosa has asserted an array of claims under Title VII, the Age Discrimination in Employment Act ("ADEA"), the Americans with Disabilities Act ("ADA"), the Equal Pay Act ("EPA") and the Pennsylvania Human Relations Act ("PHRA") against her former employer, Storecast Merchandising Corporation ("Storecast").1 Her husband, Robert Nerosa, has asserted a claim for loss of consortium.
Defendant has moved to dismiss Counts II, IV, V, VI, VII, VIII, IX, X and XI of plaintiffs' complaint as well as portions of Counts I and III for failure to state cognizable claims. Defendant has also requested sanctions against plaintiffs' attorney to compensate defendant for legal fees incurred in responding to "frivolous positions" taken by plaintiffs in their brief after being "presented with clear legal authority explaining the deficiencies therein."
The facts as alleged by plaintiffs are as follow.
Ms. Nerosa was hired by defendant in October 1985 as a full-time employee after working part-time for 1 ½ years as a merchandiser. In April 1991, she was promoted to the supervisory position of retail manager. In March 2000, she was transferred to the I-Star Division where she was responsible for supervising 16 team leaders.
Ms. Nerosa was paid a lower salary than Frank Gilmartin and Richard Haggerty, two male supervisors in their thirties who performed similar job functions and possessed similar job titles as plaintiff. The male supervisors were assigned more sales associates and more stores than was Ms. Nerosa and territories less saturated with competitors. They were thus able to generate more sales volume and revenues. During the course of her employment, Ms. Nerosa never received any negative performance evaluations or written or verbal warnings about her performance.
In September 2000, Ms. Nerosa was placed on medication to treat several related medical conditions including shortness of breath, a heart murmur, sinus tachycardia, rapid heart beat, chest pain and non-insulin dependent diabetes mellitus.
On December 1, 2000, a treating physician provided her with a medical note advising that she should refrain from heavy or strenuous physical activity such as pushing and pulling due to a cardiac condition. Ms. Nerosa could perform all essential functions of her job duties which did not include heavy or strenuous physical tasks. She had subordinate employees who could push or pull heavy boxes when an occasion to do so arose.
Ms. Nerosa presented the medical note to Matthew Kiernan, her supervisor and defendant's director of operations, on December 1, 2000. Later that day he berated Ms. Nerosa for nearly thirty minutes about an assigned project and a minor variation in her performance of certain job duties. She became faint, dizzy and weak. She collapsed into a wall and was taken to a hospital.2
On January 5, 2001, Mr. Kiernan advised Ms. Nerosa that she was being terminated for poor work performance. Three days later, she received a letter of termination from defendant which did not specify any reason for her termination.3
At the time of her termination, Ms. Nerosa was 53 years of age and earned an annual salary of $33,700. Her replacement was a 34-year-old male with little prior relevant work experience who earned a lesser salary.
On March 26, 2001, Ms. Nerosa filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") which was cross-filed with the Pennsylvania Human Relations Commission ("PHRC"). She alleged that she was terminated because of her age and disability and was discriminated against in salary based on her gender. On October 31, 2001, the EEOC issued a formal Dismissal of Ms. Nerosa's charges on the ground that the agency could not conclude from its investigation that any violation had occurred. The EEOC advised plaintiff of her right to sue. The instant action followed.4
The complaint contains 92 paragraphs and spans 37 pages. Much of what is pled is repetitive and the eleven counts into which the complaint is segmented fail to correspond in any coherent manner to the various legal claims and theories advanced.
In Count I, captioned "Violation of the Age Discrimination in Employment Act," plaintiffs actually set forth multiple claims which are then replicated in subsequent counts. Ms. Nerosa alleges that her termination was "part of a pattern and practice of unlawful age, sex and disability discrimination and age, sex and disability harassment." She also alleges that the defendant violated the Equal Pay Act by paying her a lesser salary than male supervisors.
In Count II, Ms. Nerosa alleges that defendant terminated her because of her age and created a work environment hostile to persons of her age in violation of the ADEA.
In Count III, Ms. Nerosa alleges that defendant engaged in unlawful age, sex and disability discrimination and age sex and disability harassment in violation of the PHRA.
In Count IV, she alleges that defendant engaged in age, sex and disability discrimination as well as age, sex and disability harassment and retaliated against her for opposing this conduct with indifference to her federally protected rights thus entitling her to punitive damages under the PHRA, the ADEA, the ADA and Title VII.
In Count V, she alleges that defendant violated Title VII by engaging in unlawful age, sex and disability discrimination and a pattern or practice of unlawful age, sex, and disability harassment.
In Count VI, Ms. Nerosa alleges that defendant violated the ADA by refusing to permit her to continue to work, with or without a reasonable accommodation, based on her record of impairment and defendant's erroneous perception of her inability to perform the essential functions of her job. In Count VIII, she alleges that the same conduct constitutes a violation of the PHRA.
In Count VII, she alleges that defendant violated the ADA by failing to reasonably accommodate her perceived impairment and permit her to continue to work. In Count IX, captioned "Retaliation Pursuant to the Americans with Disabilities Act," she alleges that defendant wrongfully terminated her, refused to acknowledge her accommodation request and engaged in unspecified deceptive conduct calculated to prevent her from continuing to perform her job duties. In Count X, she alleges that the same conduct constitutes a violation of the PHRA.
In Count XI, Mr. Nerosa asserts a claim for loss of consortium.
Defendant asserts that Ms. Nerosa failed to administratively exhaust her hostile work environment, retaliation and gender-based discrimination claims, and failed to state cognizable hostile work environment, retaliation or disability claims under federal or state law.5 Defendant also asserts that Mr. Nerosa may not predicate a loss of consortium claim on the employment discrimination statutes relied upon and that Ms. Nerosa may not recover punitive damages on her ADEA and related PHRA claims.6
A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of a claim while accepting as true the claimant's allegations and reasonable inferences therefrom, and viewing them in the light most favorable to her. See Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990); Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir. 1987); Winterberg v. CNA Ins. Co., 868 F. Supp. 713, 718 (E.D.Pa. 1994), aff'd, 72 F.3d 318 (3d Cir. 1995). A court may also consider any document referenced in or integral to the complaint on which plaintiff's claim is based. See In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1426 (3d Cir. 1997); In re Westinghouse Securities Litigation, 90 F.3d 696, 707 (3d Cir. 1996). A court, however, need not credit conclusory allegations or legal conclusions in deciding such a motion to dismiss. See General Motors Corp. v. New A.C. Chevrolet, Inc., 263 F.3d 296, 333 (3d Cir. 2001); Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997); L.S.T., Inc. v. Crow, 49 F.3d 679, 683-84 (11th Cir. 1995). A complaint may be dismissed when the facts alleged and the reasonable inferences therefrom are legally insufficient to support the relief sought. See Pennsylvania ex rel. Zimmerman v. PepsiCo., Inc., 836 F.2d 173, 179 (3d Cir. 1988).
As a precondition for filing suit under Title VII, the ADEA, the ADA and the PHRA, a plaintiff must exhaust a claim by presenting it in an administrative charge to the EEOC and the PHRC. See Antol v. Perry, 82 F.3d 1291, 1295-96 (3d Cir. 1996) (); Fakete v. Aetna, Inc., 152 F. Supp.2d 722, 731 (E.D.Pa. 2001) (); Deily v. Waste Mgt. of Allentown, 118 F. Supp.2d 539, 541 (E.D.Pa. 2000) ().
The scope of a judicial complaint is not limited to the four corners of the administrative charge. See Love v. Pullman, 404 U.S. 522, 527 (1972); Hicks v. ABT Assoc., 572 F.2d 960, 963 (3d Cir. 1978); Duffy v. Massinari, 202 F.R.D. 437, 440 (E.D.Pa. 2001). It is delimited, however, to acts fairly within the scope of the charge or the investigation which can reasonably be expected to result from it. See Holtz v. Rockefeller & Co., 258 F.3d 62, 83 (2d Cir. 2001); Hicks, 572 F.2d at 966; Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398-99 (3d Cir. 1976); Shouten v. CSX Transportation, Inc., 58 F. Supp.2d 614, 616 (E.D.Pa. 1999).
There must be a close nexus between the facts supporting each claim or an additional claim in the judicial complaint must fairly appear to be an explanation of the original charge or one growing out of it. See Duffy, 202 F.R.D. at 440; Galvis v. HGO Services,...
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