MEMORANDUM
Plaintiff Mary Holocheck (“Holocheck”) filed this age discrimination and civil rights action against Defendants Luzerne County Head Start, Inc. (“Head Start”), its Executive Director, Lynn Evans Biga, and the Manager of its Center in Nanti-coke, Pennsylvania, Marion Sod. Presently before this Court is the Defendants’ partial motion to dismiss. As explained below, the claims against Ms. Biga and Ms. Sod under the Age Discrimination in Employment Act (Count I) will be dismissed as there can be no individual liability under the federal anti-discrimination statute. Count III, claiming substantive and procedural due process violations, will be dismissed because, as a matter of law, Plaintiff did not have a protected property interest in her employment. The challenge to the timeliness of Plaintiffs Pennsylvania Human Relations Act claim (Count II), however, will be rejected because Plaintiff has presented grounds for tolling the running of the period for filing an administrative charge of discrimination. Furthermore, the individual Defendants will not be dismissed as to Count II because state law provides for individual liability of supervisory personnel who intentionally discriminate against those whom they supervise.
I BACKGROUND
As set forth in the Complaint, the allegations of which must be accepted as true, Holocheck was employed by the Nanticoke Center of Luzerne County Head Start as a teachers aid from 1984 until 1988, and as a teacher from 1988 until 2002. On October 10, 2002, Holocheck’s employment at Head Start was terminated and she was replaced by an individual who was under the age of forty (40). She was fifty-six (56) years of age at the time of her termination.
On July 11, 2003, more than nine months after her termination, Holocheck filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) and the Pennsylvania Human Relations Commission (“PHRC”). (Complaint at ¶ 12.) Ho-locheck claimed that she was terminated as a result of her age and sought relief pursuant to the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 63, and the Pennsylvania Human Relations Act (“PHRA”), 43 Pa. Con. Stat. § 955.
Following exhaustion of the administrative complaint process, Plaintiff filed a Complaint against all Defendants in this Court on September 20, 2004. Plaintiffs Complaint contains three Counts: Count I — violation of the ADEA; Count II — violation of the PHRA; and Count III — violation of 42 U.S.C. § 1983. Defendants filed a Motion to Dismiss (Dkt. Entry 8) on November 23, 2004, and a brief in support of their motion (Dkt. Entry 14) was filed on December 2, 2004. Plaintiff filed a brief in opposition to Defendants’ Motion to Dismiss (Dkt. Entry 16) on December 16, 2004. Defendants’ Motion to Dismiss has been fully briefed and is ripe for resolution by this Court.
II. DISCUSSION
A. Standard for a Motion to Dismiss
In deciding a motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true all of the factual allegations in the pleading and draw all reasonable inferences from those facts in the light most favorable to the claimant.
Unger v. Nat’l Residents Matching Program,
B. Individual Liability Under the ADEA
Defendants Biga and Sod first assert that Holocheck’s Complaint fails to state a cognizable claim under the ADEA and PHRA against them. The gist of their argument is that liability extends only to the “employer.” 1
Although the Third Circuit has not directly addressed the issue of individual liability under the ADEA or the ADA, it has held that employees are not individually liable under Title VII. Sheridan v. E.I. DuPont de Nemours and Co.,100 F.3d 1061 , 1078 (3d Cir.1996), cert. denied,521 U.S. 1129 ,117 S.Ct. 2532 ,138 L.Ed.2d 1031 (1997). Notably, Title VII defines “employer” in virtually the identical manner as the ADA and ADEA. Furthermore, courts in other circuits, as well as district courts in this circuit, have held that individual employees are not liable under either the ADA or the ADEA. See Stults v. Conoco, Inc.,76 F.3d 651 , 655 (5th Cir.1996) (ADEA); Smith v. Lomax,45 F.3d 402 , 403 n. 4 (11th Cir.l995)(ADEA, Title VII); Birkbeck v. Marvel Lighting Corp.,30 F.3d 507 , 519-511 (4th Cir.), cert. denied,513 U.S. 1058 ,115 S.Ct. 666 ,130 L.Ed.2d 600 (1994)(ADEA); Miller v. Maxwell’s Int’l Inc.,991 F.2d 583 , 587-88 (9th Cir.), cert. denied,510 U.S. 1109 ,114 S.Ct. 1049 ,127 L.Ed.2d 372 (1994)(ADEA); Fullman v. Philadelphia Int’l Airport,49 F.Supp.2d 434 , 441 (E.D.Pa.l999)(ADA); Metzgar v. Lehigh Valley Housing Authority, No. Civ. A. 98-CV-3304,1999 WL 562756 , at *3 (E.D.Pa.1999)(ADA); Brannaka v. Bergey’s Inc., No. 97-6921,1998 WL 195660 , at *2 (E.D.Pa. Mar.30, 1998)(ADA); Lantz v. Hospital of the University of Pennsylvania, Civ. A. No. 96-2671,1996 WL 442795 , at *6 (E.D.Pa. July 30, 1996)(ADEA).
Id.
at *4. A survey of
post-Perepchuk
cases reveals that the courts in this and other circuits continue to reject the notion that individuals may be held liable under the ADEA.
E.g., Cheng v. Benson,
The facts of Perepchuk and this case are substantially alike in that in both cases the plaintiff is attempting to impose individual liability under the ADEA on the manager of a business for his/her alleged unlawful termination. Accordingly, consistent with Perepchuk and the above-cited precedents, I find that Defendants Biga and Sod cannot be held individually liable under the ADEA. Therefore, Count I of Holocheck’s Complaint will be dismissed as to Defendants Biga and Sod.
C. Individual Liability Under the PHRA
Count II of Holocheek’s Complaint seeks to hold Biga and Sod individually liable under the PHRA. Generally, the PHRA is applied in accordance with Title VII which, as discussed above, does not impose individual liability on the agents or employees of the employer defendant.
Sheridan v. E.I. DuPont de Nemours and Co.,
In the instant case, Holocheck alleges that Biga and Sod held supervisory positions. She further avers facts from which it may be inferred that each intentionally discriminated against her because of her age. This is sufficient to state a claim for relief against the individual defendants under 43 Pa. Cons.Stat. § 955(e).
See Carlton v. City of Philadelphia,
No. Civ. A. 03-1620,
D. Tolling of Plaintiff’s PHRA Claim
To bring suit under the PHRA, a plaintiff must file an administrative complaint with the PHRC within 180 days of the alleged act of discrimination.
See
43 Pa. Cons.Stat. § 959(a),(h) “If a plaintiff fails to file a timely complaint with the PHRC, then he or she is precluded from judicial remedies under the PHRA.”
Woodson v. Scott Paper Co.,
There are three “principal, though not exclusive” situations in which equitable tolling may arise.
Oshiver v. Levin, Fishbein, Sedran & Berman,
In this case, the alleged discriminatory action on which Holocheck has based her Complaint occurred on October 10, 2002, when she was terminated from her position at Head Start. In order to meet the 180-day filing requirement set forth under the PHRA, Holocheck would have had to
As Holocheck has not claimed that she was actively misled by the defendants or that she mistakenly filed her complaint in the wrong forum, she must establish that she was prevented from asserting her rights “in some extraordinary way.”
School District of the City of Allentown,
Our Court of Appeals, in
Bonham, v. Dresser Industries, Inc.
Failure to post the required notice will toll the running of the 180-day period, at least until such time as the aggrieved person seeks out an attorney or acquires actual knowledge of his rights under the Age Discrimination in Employment Act. See Bishop v. Jelleff Associates,398 F.Supp. 579 , 7 FEP Cas. 510 (D.D.C. 1974). Cf., Hiscott v. General Electric Co.,521 F.2d 632 (6th Cir.1975); Edwards v. Kaiser Aluminum & Chemical Sales, Inc.,515 F.2d 1195 (5th Cir.1975); Skoglund v. Singer Co., 13 FEP Cas. 253 (D.N.H.1975); McCrickard v. Acme Visible Records, Inc.,409 F.Supp. 341 (W.D.Va.1976). Any other result would place a duty upon the employer to comply without penalty for breach, and would grant to the employee a right to be informed without redress for violation.
Though equitable tolling may be available to save a discrimination claim, “[plaintiffs have the burden of establishing the facts necessary to justify equitable tolling.”
Byers v. Follmer Trucking Co.,
Holocheck has asserted that her claim should be tolled because the defendants did not post the required notice. In light of this averment, it cannot be concluded that Plaintiff would be unable to satisfy the requirements for equitable tolling. Therefore, Head Start’s claim that Count II of Holocheck’s Complaint should be dismissed for failure to file her administrative charge within the required time frame will be denied.
2
See Hammer v. Cardio Medical Products, Inc.,
E. Section 1983 Claim
Section 1983 does not create substantive rights, but provides a remedy for the violation of rights created by federal law.
City of Oklahoma City v. Tuttle,
Assuming,
arguendo,
that the decision to terminate Holocheck’s employment with Head Start was committed by a person acting under color of state law, she must show that she was deprived of “rights, privileges, or immunities secured by the Constitution or laws of the United States.”
Kost,
“The first step in the analyzing a due process claim is to determine whether the ‘asserted individual interest ... [is] encompassed within the [Fourteenth [Amendment’s protection of life, liberty or property.’ ”
Elmore v. Cleary,
In
Nicholas v. Pennsylvania State Univ.,
Plaintiff claims that her continued employment was assured by the Personnel Policies and Practices Manual given to her at the start of each school year such that she was entitled to be heard before being fired. In other words, she maintains that the Manual’s provisions governing discipline and termination of employment constituted terms of a binding contract that conferred a property interest in her job.
A personnel manual can create a legally-binding obligation on the part of an employer to terminate employment only for cause or to follow certain pre-termi-nation procedures.
See Bauer v. Pottsville Area Emergency Medical Services, Inc.,
As an initial matter, state law determines whether such a property interest exists. Brown v. Trench,787 F.2d 167 , 170 (3d Cir.1986); see also Kelly v. Borough of Sayreville, N.J.,107 F.3d 1073 , 1077 (3d Cir.1997) (“State law creates the property rights protected by the Fourteenth Amendment.”). Here, under controlling Pennsylvania law, a “public employee takes his job subject to the possibility of summary removal by the employing authority. He is essentially an employee-at-will.” Scott v. Phila., Parking Auth.,402 Pa. 151 ,166 A.2d 278 , 280 (1960); see also Rank v. Twp. of Annville,163 Pa.Cmwlth. 492 ,641 A.2d 667 , 670 (1994); Bolduc v. Bd. of Supervisors of Lower Paxton Twp., 152 Pa. Cmwlth. 248,618 A.2d 1188 , 1190 (1992). Stated otherwise, a public employee in Pennsylvania generally serves at the pleasure of her employer and thus has no legitimate entitlement to continued employment.
Holocheck’s argument that the personnel manual converted her employment from at-will to tenured assumes that the local agency had the authority to do so. Holocheck’s assumption is erroneous. As stated in
Elmore,
A local government in Pennsylvania cannot provide its employees with tenure status unless there exists express legislative authority for doing so. See Stumpp v. Stroudsburg Mun. Auth.,540 Pa. 391 ,658 A.2d 333 , 334-35 (1995); Scott,166 A.2d at 280 ; see also Perri v. Aytch,724 F.2d 362 , 364 (3d Cir.1983); Rosenthal v. Rizzo,555 F.2d 390 , 392 (3d Cir.1977); Cf. Appeal of Gagliardi,401 Pa. 141 ,163 A.2d 418 , 419 (1960) (“A municipality is a creature of the state and possesses only such powers of government as are expressly granted to it and as are necessary to carry the same into effect.”). As the Pennsylvania Supreme Court has stated, “[t]enure in public employment, in the sense of having a claim to employment which precludes dismissal on a summary basis is, where it exists, a matter of legislative grace.” Stumpp,658 A.2d at 334 (quoting Scott,166 A.2d at 281 ).
In
Elmore,
the plaintiff, like Holocheck, argued that a “for cause” termination provision in a township “Personnel Policy handbook” converted her employment from at-will to tenured. The Third Circuit held that the personnel manual could not be given such effect because there was no specific enabling legislation from the Pennsylvania General Assembly that would have enabled the township to employ individuals “on anything other than at-will basis.”
Id.
In
Demko,
this Court ruled that enabling legislation for local community colleges did not authorize abrogating the ordinary at-will employment terms.
Demko,
Plaintiff alleges that Luzerne County Head Start, Inc., “is a federally funded Pennsylvania agency operated by Luzerne County....” (Complaint, ¶ 4.)
3
Plaintiff has not cited any state statutory authority
Holocheck also asserts that 45 C.F.R. § 1301.31 provides an independent source for the right “not to be terminated in violation of the written Personnel Policies and Practices of Luzerne County Head Start, Inc.” (Complaint at ¶ 29.) This regulation,
inter alia,
requires local Head Start agencies to “establish and implement written personnel policies for staff’ that “must include” procedures for termination of employment. Citing
Sabree v. Richman,
Plaintiffs reliance upon Sabree is misplaced. Sabree concerned the question of whether a congressional enactment conferred a personal right enforceable by way of a section 1983 action. It did not address the question of whether , a regulation implementing a federal statute may confer such a right.
That issue, however, was addressed in
South Camden Citizens in Action v. New Jersey Dept. of Environmental Protection,
The purpose of the Head Start Act is “to promote school readiness by enhancing the social and cognitive development of low-income children through the provision, to low-income children and their families, of health, educational, nutritional, social, and other services that are determined, based on family needs assessments, to be necessary.” 42 U.S.C. § 9831. Clearly, Holocheck, as a teacher, is not a member of the class of the legislation’s intended beneficiaries. Holocheck does not point to any statutory provision that confers a personal right to continued employment in the Head Start Program. Under these circumstances, the regulation in question does not confer upon her a right protected by § 1983.
See Atkinson v. Lafayette College,
No. Civ. A. 01-CV-2141,
In summary, neither state nor federal law clothed plaintiffs employment with a right enforceable through an action under 42 U.S.C. § 1983. Accordingly, Count III of the Complaint will be dismissed.
III. CONCLUSION
For the reasons set forth above, Defendants’ motion to dismiss will be granted in part and denied in part. Count I of Plaintiffs Complaint asserting a cause of action under the ADEA, will be dismissed as to the individually named Defendants, Biga and Sod, and Count III of Plaintiffs Complaint asserting claims under § 1983 will be dismissed in its entirety. Defendants’ motion to dismiss will be denied in all other respects. An appropriate Order follows.
ORDER
NOW, THIS 30th DAY OF AUGUST, 2005, for the reasons set forth in the foregoing Memorandum, IT IS HEREBY ORDERED THAT:
1. Defendants Motion to Dismiss (Dkt. Entry 8) is GRANTED IN PART AND DENIED IN PART.
a.) Defendants Biga and Sod are dismissed from Count I of the Complaint.
b.) Count III of Plaintiffs Complaint is DISMISSED.
c.) In all other respects, Defendants’ Motion to Dismiss is DENIED.
Notes
. The ADEA defines "employer” to be “a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of the twenty or more calendar weeks in the current or preceding calendar year.” 29 U.S.C. § 630(b). The term also means "(1) any agent of such person, and (2) ... any agency or instrumentality of a State or political subdivision of a State....” Id.
. It should be noted that Holocheck has provided a copy of her sworn responses to a PHRA questionnaire, in which Holocheck stated that she was "certain that the [defendants] did not have notices posted,” and that she contacted an attorney "shortly before filing the PHRC complaint.” Holocheck, further explains that she was informed of her right to file a complaint regarding the alleged discriminatory employment action with the PHRC by her attorney on June 25, 2003, and she filed a complaint with the PHRC on July 11, 2003.
. It bears noting that, if Defendant Luzerne County Head Start, Inc. is a state agency, as opposed to a local agency, litigation of the ADEA claim in federal court may be foreclosed by the Eleventh Amendment.
See Kimel v. Florida Bd. of Regents,