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ABRAMS v. LIGHTOLIER

December 29, 1988

BERNARD ABRAMS, Plaintiff,
v.
LIGHTOLIER, INC., et al., Defendants



The opinion of the court was delivered by: WOLIN

 This is an action brought under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, and under similar New Jersey statutes. *fn1" Plaintiff Bernard Abrams alleges that defendants Lightolier, Inc. and other related companies discriminated against him on the basis of age and perceived handicap in firing him on July 3, 1986. Defendants originally moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. Defendants moved in the alternative for an order striking from the complaint any reference to a preliminary finding by the Equal Employment Opportunity Commission (EEOC) that defendants violated the ADEA. Plaintiff has cross-moved (1) to strike an affidavit submitted in support of defendants' motion, and (2) for sanctions to be imposed against defendants for bringing the instant motions and for filing the affidavit in question. In response to the explanations contained in plaintiff's opposition memorandum, defendants no longer seek to dismiss the entire complaint but rather seek a limiting order to preclude plaintiff from asserting wrongful failure to promote and a discriminatory pattern or practice. For the reasons that follow, the Court will deny all the above motions except plaintiff's motion to strike the affidavit, which will be granted.

 I. Defendant's Motion to Dismiss (Now a Motion for a Limiting Order)

 On a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, the Court must accept plaintiff's allegations as true and must construe those allegations in the light most favorable to plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90, 96 (1974); Rapf v. Suffolk County, 755 F.2d 282, 290 (2d Cir. 1985). Thus, a complaint should not be dismissed as insufficient unless it is certain that there is no possible set of facts that, if proven, would support the claim. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80, 84 (1957); Scott v. Plante, 532 F.2d 939, 945 (3d Cir. 1976).

 The ADEA makes it unlawful for an employer "to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). In order to prevail in an ADEA claim against an employer, plaintiff must prove that age was a "determinative factor" in the discharge or other decision by defendant employer. Blum v. Witco Chemical Corp., 829 F.2d 367, 372 (3d Cir. 1987); Duffy v. Wheeling Pittsburgh Steel Corp., 738 F.2d 1393, 1395 (3d Cir.), cert. denied, 469 U.S. 1087, 105 S. Ct. 592, 83 L. Ed. 2d 702 (1984).

 In Sorba v. Pennsylvania Drilling Co., 821 F.2d 200, 202 (3d Cir. 1987), cert. denied, 484 U.S. 1019, 108 S. Ct. 730, 98 L. Ed. 2d 679 (1988), the Third Circuit established that a plaintiff may make out a prima facie case under the ADEA solely by the use of indirect evidence. As now conceded by defendants, plaintiff's complaint makes out a prima facie case for wrongful discharge under the ADEA.

 The allegations in the complaint, however, hint at a possible action for wrongful failure to promote and also allege a pattern or practice of discrimination by defendants against older employees. In bringing their motion to dismiss the entire complaint, defendants argued that plaintiff has failed to properly plead a cause of action based on wrongful failure to promote and a cause of action based on a pattern or practice of discrimination.

 In his opposition papers, plaintiff countered that he does not intend to assert a separate cause of action for wrongful failure to promote and does not purport to bring a class action on behalf of the other possible victims of any discriminatory pattern or practice. Rather, plaintiff intends to use the other allegations to buttress his claims of wrongful discharge.

 With these clarifications, defendants now concede that plaintiff has made out a prima facie case for wrongful termination. Nevertheless, defendants seek an order limiting the triable issues to wrongful discharge and precluding plaintiff from asserting a "claim" based on wrongful failure to promote or a discriminatory pattern or practice. Defendants seem to have missed the point, and their motion will be denied.

 Plaintiff is entitled to rely on a discriminatory pattern or practice as indirect evidence of discrimination against him. The Supreme Court has allowed such evidence in Title VII racial discrimination cases, see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-05, 93 S. Ct. 1817, 1825, 36 L. Ed. 2d 668, 679 (1973), and there is no reason why this rationale should not apply with equal force in an ADEA claim. *fn2" Indeed, to disallow such statistical evidence would be to disarm plaintiff of one of the few tools available to him for discerning an employer's motives in his particular case. See Diaz v. American Telephone & Telegraph, 752 F.2d 1356, 1363 (9th Cir. 1985) (Title VII case).

 With regard to wrongful failure to promote, plaintiff concedes that he has not made out a prima facie case for such a claim in itself, but asserts that he intends to rely on the failure to promote as evidence of wrongful discharge. The Court agrees that such evidence too might be relevant to proving plaintiff's cause of action.

 II. Plaintiff's Cross-Motion for Sanctions

 Plaintiff has cross-moved for sanctions, alleging that defendants' motion was frivolous. As noted above, the complaint does state a claim upon which relief can be granted. However, in light of the confusing nature of the plaintiff's pleading, defendant was entitled to bring some type of motion to clarify plaintiff's purposes. Although ...


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