United States District Court, D. Delaware
C. Herr, Law Office of Daniel C. Herr LLC, Wilmington, DE
19801; Neelima Vanguri, Sidney L. Gold, Sidney L. Gold &
Associates, P.C., Philadelphia, PA - attorneys for Plaintiff
A. Guerke, Baird Mandalas Brockstedt, LLC, Wilmington, DE -
attorneys for Defendant April 24, 2019 Wilmington, Delaware
NOREIKA, U.S. DISTRICT JUDGE.
the Court is a motion to dismiss pursuant to Fed.R.Civ.P.
12(b)(6), filed by Defendant Wendover, Inc.
(“Defendant” or “Wendover”) (D.I.
10), alleging that Plaintiff Forestieri's
(“Plaintiff or “Forestieri”) First Amended
Complaint (“Amended Complaint”) (D.I. 9) fails to
state a claim upon which relief can be granted. Plaintiff
opposes the motion. For the reasons set forth below,
Defendant's motion to dismiss the Amended Complaint will
be granted-in-part and denied-in-part.
filed her original Complaint on August 3, 2018. (D.I. 1). On
September 20, 2018, Defendant moved to dismiss that
Complaint. (D.I. 7). In lieu of responding to the motion,
Plaintiff filed an Amended Complaint on October 10, 2018.
(D.I. 9). The Amended Complaint asserts violations of the
Americans with Disabilities Act (“ADA”), 42
U.S.C.§ 12101, et. seq., the Age Discrimination
in Employment Act, (“ADEA”), 29 U.S.C. §621
et seq., and the Family and Medical Leave Act
(“FMLA”), 29 U.S.C. 2601, et seq. (Id.
a sixty-nine-year-old individual, was employed by Defendant
from 1999 until October of 2016. (Id. ¶ 9). The
Amended Complaint alleges that throughout her employment with
Defendant, she “held the position of General Manager
and at all times maintained a satisfactory job performance
rating.” (Id. ¶ 10). Plaintiff alleges
that on May 24, 2016, she fell at her home and suffered a
wrist facture, which led to difficulties “lifting,
grasping, performing manual tasks, and musculoskeletal
function[ing].” (Id. ¶ 11). Plaintiff
alleges that she contacted her supervisor, Frank Germann
(“Germann”) “to inquire about disability
leave” and to inform him that “she would not be
able to work for the next three (3) to four (4)
months.” (Id. ¶ 13). She alleges that
Germann instructed her “to take the time off to allow
her injury to properly heal.” (Id.) Plaintiff
further alleges that during her leave she remained in contact
with her supervisor and “at all times expressed her
intent to return to work as soon as she was medically cleared
to do so.” (Id. ¶ 16). On September 2,
2016, Plaintiff informed Germann that she would be able to
return to work around September 26, 2016. (Id.
¶ 17). The Amended Complaint alleges “[f]or the
period of time that Plaintiff required additional leave
beyond her FMLA leave, she requested the same as a reasonable
accommodation for her disability.” (Id.). On
September 21, 2016, Plaintiff was approved by her doctor to
return to work on September 26, 2016 without restriction.
(Id. ¶ 18). Plaintiff returned to work on
September 26, 2016. (Id. ¶ 19).
Amended Complaint alleges that, upon returning to work,
Plaintiff met with “Rob Beaver (“Beaver”),
Vice-President, and Gerald Hoffner (“Hoffner”),
Regional Director, ” at which time she was informed
that she would be demoted to the role of assistant manager
and that her salary would decrease from $65, 000 to $35, 000.
(Id. at ¶ 20). Plaintiff alleges that Beaver
explained the change was because Plaintiff “had been
out for a while and [he was] concerned that [she] will not be
able to perform the job because when [Beaver] came back to
Wendy's [he] had a hard time and [she] was older than
[him].” (Id.). Plaintiff further alleges that
Beaver stated that “we weren't even sure you
[Plaintiff] were coming back because there was no
communication from you.” (Id. ¶ 22).
Plaintiff alleges that Beaver told her that she would be
replaced by Anthony Kemsky (“Kemsky”) - an
Assistant Manager, who was “a similarly-situated,
significantly younger, non-disabled individual” - and
that she would be transferred to the University Plaza
Wendy's location. (Id. ¶¶ 20-21).
Amended Complaint alleges that Plaintiff reported to the
University Plaza Wendy's location on October 3, 2016 and
“expressed concern to Beaver that she had not been
formally trained to use the newly renovated facility.”
(Id. ¶ 23). Plaintiff alleges that Beaver
“voiced apprehension that Plaintiff Forestieri would
not be able to complete work related tasks because of her
age.” (Id.). Plaintiff further alleges that,
on October 6, 2016, Beaver and Hoffner called Plaintiff into
a meeting and again “expressed concern that Plaintiff
Forestieri would not be able to do her job because of her age
and her time off related to her disability.”
(Id. ¶ 24).
Amended Complaint contends that “Forestieri believes
and therefore avers that the Defendant demoted Plaintiff
Forestieri on the basis of her age (69), her actual and/or
perceived disability and/or record of impairment (Wrist
Fracture, Nerve Damage), and/or in retaliation for Plaintiff
Forestieri's requests for reasonable
accommodations.” (Id. ¶ 25). Plaintiff
alleges she was unlawfully terminated on October 5, 2016.
(Id. ¶ 9).
presented with a motion to dismiss for failure to state a
claim pursuant to Rule 12(b)(6), district courts conduct a
two-part analysis. Fowler v. UPMC Shadyside, 578
F.3d 203, 210 (3d Cir. 2009). First, the Court separates the
factual and legal elements of a claim, accepting “all
of the complaint's well-pleaded facts as true, but
[disregarding] any legal conclusions.” Id. at
210-11. Second, the Court determines “whether the facts
alleged in the complaint are sufficient to show . . . a
‘plausible claim for relief.'” Id.
at 211 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679
survive a motion to dismiss, a civil plaintiff must allege
facts that ‘raise a right to relief above the
speculative level on the assumption that the allegations in
the complaint are true (even if doubtful in
fact).'” Victaulic Co. v. Tieman, 499 F.3d
227, 234 (3d Cir. 2007) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)). Dismissal under Rule
12(b)(6) is appropriate if a complaint does not contain
“sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 570); see also
Fowler, 578 F.3d at 210. A claim is facially
plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. The Court is not obligated
to accept as true “bald assertions” or
“unsupported conclusions and unwarranted
inferences.” Morse v. Lower Merion Sch. Dist.,
132 F.3d 902, 906 (3d Cir. 1997); Schuylkill Energy Res.,
Inc. v. Pennsylvania Power & Light Co., 113 F.3d
405, 417 (3d Cir. 1997). Instead, “[t]he complaint must
state enough facts to raise a reasonable expectation that
discovery will reveal evidence of [each] necessary
element” of a plaintiff's claim. Wilkerson v.
New Media Tech. Charter Sch. Inc., 522 F.3d 315, 321 (3d
Cir. 2008) (internal quotation marks omitted).