Opinion
Civil Action No. 04-3413.
October 8, 2004
MEMORANDUM
Before the court is the motion of defendants to dismiss plaintiff's complaint for failure to state a claim for relief and failure to exhaust administrative remedies.
I.
Plaintiff Hyman A. Lit ("Lit") has brought an action against his employer Infinity Broadcasting Corporation of Pennsylvania, a division of Viacom, Inc., and its owned and operated radio station, WOGL-FM radio station (the "station"), along with WOGL-FM's general manager Sil Scaglione ("Scaglione"). Plaintiff claims age and disability discrimination, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621, et seq., the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101, et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Cons. Stat. Ann. §§ 951, et seq.
According to the complaint, plaintiff began working in the radio broadcasting industry in 1954. During his tenure in the business, plaintiff has worked as a disc jockey, announcer, and host for nationally syndicated television programs. In 1987, plaintiff was diagnosed with Parkinson's Disease, a degenerative neurological disease. In October, 1988, at the age of fifty-three, plaintiff joined the on-air staff of defendant's radio station WOGL-FM, first as a freelance announcer and later as an employee of the station. In May, 2000, plaintiff's salary was reduced by from $140,000 to $75,000 without any reduction of his on-air schedule. In March, 2001, soon after defendant Sil Scaglione became General Manager of WOGL-FM, plaintiff's on-air schedule was reduced to one show per week and his salary was again reduced from $75,000 to $35,000. On January 31, 2002, plaintiff's status as an employee of WOGL-FM was terminated, and he became an independent contractor for the station. At that time, his salary was again reduced to approximately $900 per month and his fringe benefits were discontinued without notice.
II.
Defendants first move to dismiss for lack of subject matter jurisdiction on the ground that plaintiff has failed to exhaust administrative remedies. Under both federal and state anti-discrimination laws, an aggrieved employee must exhaust statutorily required administrative remedies prior to filing any lawsuit. Woodson v. Scott Paper Co., 109 F.3d 913, 926 (3d Cir. 1997); Doyle v. Barnhart, CIV.A. No. 03-0264, 2004 WL 1237359, at *2 (E.D. Pa. May 17, 2004). The PHRA requires that any administrative complaint be filed with the Pennsylvania Human Relations Commission ("PHRC") within 180 days of the alleged act of discrimination. See 43 Pa. Cons. Stat. Ann. §§ 959(h), 962. Under the ADA and ADEA, the employee has 300 days to file a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). See Watson v. Eastman Kodak Co., 235 F.3d 851, 854 (3d Cir. 2000); Peter v. Lincoln Tech. Inst., 255 F. Supp. 2d 417, 426 (E.D. Pa. 2002) (citing 42 U.S.C. § 2000e-5(e)(1)).
Defendants contend that the first three alleged discriminatory actions in plaintiff's complaint (his first and second pay reductions and his reduction in on-air time) occurred in May, 2000, and March, 2001 and are now therefore time-barred. Plaintiff filed his PHRC complaint on July 22, 2002, more than 180 days after defendants' first three purported acts of discrimination. In response, plaintiff asserts that the allegations in his complaint regarding events prior to the 180 or 300-day filing deadlines are not separate claims, but evidence of defendant's pattern and practice of discrimination against plaintiff. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 118 (2002).
Plaintiff's charge of discrimination was filed with the EEOC 172 days after his status at WOGL-FM changed from employee to independent contractor. The charge of discrimination raised violations of the ADEA, ADA, and PHRA, the same claims raised in the instant complaint. At this early stage, it does not appear "beyond a doubt that the plaintiff can prove no set of facts in support of his claim" that defendants' alleged discriminatory behavior was part of an ongoing practice or pattern. Conley, 355 U.S. at 45-46. Thus, we will deny without prejudice defendants' motion to dismiss plaintiff's ADA, ADEA, and PHRA claims on the ground that they are time barred.
III.
Defendants move to dismiss all counts of the complaint on the ground that plaintiff has failed to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. In considering a motion to dismiss for failure to state a claim, we accept as true all well-pleaded facts in the complaint and draw any reasonable inferences in plaintiff's favor. See Hishon v. King Spalding, 467 U.S. 69, 73 (1984); Oshiver v. Levin, Fishbein, Sedran Berman, 38 F.3d 1380, 1384 (3d Cir. 1994). We should grant the motion only if "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations" contained in the complaint. Hishon, 467 U.S. 69, 73 (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In ruling on a motion to dismiss, we need not decide whether plaintiff will ultimately be able to prove his claims. The Supreme Court has held that to survive a motion to dismiss, a plaintiff alleging employment discrimination is not required to plead facts necessary to establish a prima facie case of discrimination, but rather simply a "short and plain statement of the claim showing that the pleader is entitled to relief."Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (citing Fed.R.Civ.P. 8(a)(2)).
Count I of plaintiff's complaint alleges that defendants violated the ADEA. To prove a prima facie case of age discrimination under the ADEA, plaintiff must establish that: (1) he was over forty years of age; (2) he was qualified for the position at issue; (3) he suffered an adverse employment action; and (4) he was ultimately replaced by, or the position was filled by, a younger person. See Bunnion v. Consol. Rail Corp. 108 F. Supp. 2d 403, 429 (E.D. Pa. 1999) (citing Connors v. Chrysler Fin. Corp., 160 F.3d 971, 973-74 (3d Cir. 1998)). Plaintiff is seventy-one. His complaint states that he is a "nationally heralded radio personality" who has received many accolades during his radio career. Compl. at ¶¶ 17-19. Plaintiff contends that he received pay cuts and a reduction of on-air time and was relegated to the status of an independent contractor without fringe benefits whereas substantially younger, less experienced employees did not receive such adverse treatment. Compl. at ¶¶ 23-24, 27-30. We find that plaintiff has sufficiently set forth a claim for age discrimination. This is all that is required to survive a motion to dismiss. See Weston v. Commw. of Pennsylvania, 251 F.3d 420, 428 (3d Cir. 2001) (citations omitted). Accordingly, we will deny defendants' motion to dismiss Count I of plaintiff's complaint.
Count II of the complaint alleges that defendants have violated the ADA. To prevail on an ADA claim, a plaintiff must prove that: (1) he has a disability; (2) he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) he has suffered an otherwise adverse employment decision as a result of discrimination." Williams v. Philadelphia Housing Auth. Police Dep't, 380 F.3d 751, 761 (3d Cir. 2004) (internal citations and quotations omitted). In the instant case, plaintiff alleges that his Parkinson's Disease, "substantially limits his ability to stand and walk, but does not impair his ability to perform as a radio music show host." Compl. at ¶ 20. Because plaintiff states that he is substantially impaired in his ability to perform major life activities (walking and standing), he states that he is "disabled" within the meaning of the ADA. See e.g., Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 194, (2002); 42 U.S.C. § 12102(2)(A). Plaintiff also alleges that he received pay cuts and a reduction of on-air time and was relegated to the status of an independent contractor without fringe benefits whereas employees without actual or perceived disabilities did not receive such adverse treatment. Compl. at ¶¶ 23-24, 27-30. We find that plaintiff has sufficiently set forth a claim under the ADA. Therefore, we will deny defendants' motion to dismiss Count II of the complaint.
Counts III and IV of the complaint allege age and disability discrimination in violation of the PHRA. Our Court of Appeals has found that PHRA age and disability discrimination claims are considered under the same standards that apply to ADEA and ADA claims. See Connors, 160 F.3d at 972 (age); Gagliardo v. Connaught Labs., Inc., 311 F.3d 565, 568 n. 2 (3d Cir. 2002) (disability). For the same reasons set forth above, we will deny defendants' motion to dismiss Counts III and IV of the complaint.
Finally, defendants contend that plaintiff fails to state a claim because he is an independent contractor and not an employee and therefore his claims are not actionable under state or federal anti-discrimination acts that protect an employee from discrimination by an employer. See Menkowitz v. Pottstown Mem'l Med. Ctr., 154 F.3d 113, 127-28 (3d Cir. 1998) (citingEqual Employment Opportunity Comm'n v. Zippo Mfg. Co., 713 F.2d 32, 38 (3d Cir. 1983)). We are not persuaded. Plaintiff asserts that his change in status from employee to independent contractor was involuntary. He maintains that his employment was "terminated" on January 31, 2002 because of his age and disability. Compl. at ¶ 29. Thus, prior to this date, plaintiff was an employee of WOGL-FM. For purposes of the pending motion, we must accept as true plaintiff's allegation that he was an employee. Whitehead v. Craftmatic Org., CIV.A. No. 94-7770, 1995 WL 327987, at *1 (E.D. Pa. 1995) (citing Kulwicki v. Dawson, 969 F.2d 1454, 1462 (3d Cir. 1992)). An employee who experiences an adverse action based on his disability or age has standing to bring claims under the ADA, ADEA, and PHRA. See 42 U.S.C. §§ 12101, et seq. (ADA); 29 U.S.C. §§ 621, et seq. (ADEA); 43 Pa. Cons. Stat. Ann. §§ 951, et seq. (PHRA). Accordingly, at this stage, defendants' challenge to plaintiff's status as an employee is unavailing.