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Forestieri v. Wendover, Inc.

United States District Court, D. Delaware

April 24, 2019

WENDOVER, INC. Defendant.

          Daniel 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

          Kevin A. Guerke, Baird Mandalas Brockstedt, LLC, Wilmington, DE - attorneys for Defendant April 24, 2019 Wilmington, Delaware



         Before 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.

         I. BACKGROUND

         Plaintiff 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. ¶ 2).

         Forestieri, 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).

         The 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).

         The 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).

         The 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).


         When 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 (2009)).

         “To 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).

         III. ...

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