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Robert J. Mccafferty v. Thermo Fisher Scientific

August 5, 2011


The opinion of the court was delivered by: Linares, District Judge



This matter comes before the Court on Defendant Thermo Fisher Scientific's partial motion to dismiss all of Plaintiff's claims with the exception of Plaintiff's Age Discrimination in Employment Act ("ADEA") claim premised upon his termination. The Court has considered the submissions of the parties and decides this matter without oral argument pursuant to Rule 78 of the Federal Rules of Civil Procedure. For the reasons set forth below, Defendant's motion is granted in part and denied in part.


Plaintiff Robert McCafferty ("Plaintiff" or "McCafferty") is currently 69 years old. On October 21, 2011, Plaintiff began working at Nalge Nunc International as a High Throughout Specialist ("HTS"). Complaint ("Compl.") ¶ 8. In April 2003, Plaintiff's position was eliminated and he obtained a sales position wherein he reported to Senior Territory Manager Keith Katzgrau. In that position, Mr. McCafferty was responsible for the sales of Nalge Nunc's major accounts in Northern New Jersey, and its small accounts in Upstate New York. ( Id. ¶ 9.)

On or about August 6, 2004, Defendant Thermo Fisher Scientific ("Defendant" or "TFS") acquired what had been Nalge Nunc International. After the acquisition, Mr. McCafferty continued to work as a sales associate. Mr. Katzgrau remained Mr. McCafferty's supervisor.

In October 2004, Mr. Katzgrau removed Mr. McCafferty from his major accounts in Northern New Jersey and his smaller accounts in Upstate New York, and instead assigned him to "minor accounts in Central and Southern New Jersey." ( Id. ¶ 11.) Mr. Katzgrau assigned Mr. McCafferty's former accounts to another salesperson, Ben Hayes. ( Id. ) According to Plaintiff, Mr. Katzgrau did not inform Mr. McCafferty that he had been removed from his original accounts; rather, Mr. McCafferty learned of the switch from his distributors and competitors. (Id. ¶ 12.) When Mr. McCafferty approached Mr. Katzgrau about his decision to assign Ben Hayes to Plaintiff's former accounts, Mr. Katzgrau allegedly told Plaintiff that he had chosen Mr. Hayes because Mr. Hayes was "young, handsome, well-dressed, energetic, and sports-minded, and [Defendant] feels that he will be a future asset to the company." (Id. ¶ 13). In April 2006, Mr. Hayes voluntarily left his employment with Defendant. Plaintiff was not reassigned to his former major accounts. ( Id. ¶ 15.)

On or about June or July 2007, Mr. McCafferty claims that Defendant posted a job advertisement for his position as representative of the Central and South Jersey territories "as if his position were vacant." ( Id. ¶ 16.) On August 24, 2007, Plaintiff asked Mr. Katzgrau about the advertisement and Mr. Katzgrau replied that Defendant was seeking a replacement for Mr. Hayes. Mr. McCafferty then asked to be reassigned to Mr. Hayes's vacant position and Mr. Katzgrau declined to transfer Plaintiff back to his former accounts. According to Plaintiff, Mr. Katzgrau also expressed concerns about Mr. McCafferty "driving long distances" to his current accounts in Central and Southern New Jersey. (Id. ¶ 19.) Mr. Katzgrau suggested that Plaintiff should be assigned to "minor accounts" in Bergen County, New Jersey, and Upstate New York. (Id. ¶ 20.) Plaintiff claims that these territories had historically produced lower revenue, were much farther away from his home than either his former or then current territories, and he believed that this position would likely be eliminated in the future. (Id. ¶¶ 20-21.) Plaintiff objected to the reassignment and told Mr. Katzgrau that he believed it to be an act of age discrimination. (Id. ¶ 22.)

In September 2007, Mr. McCafferty met with Mr. Katzgrau to discuss, inter alia, his territories, his 2006 performance review and his quarterly commission bonus for the second quarter of 2007. Even though the position remained vacant, according to Plaintiff, Mr. Katzgrau again refused to reassign him to his original territories. (Id. ¶ 24.) Mr. Katzgrau also refused to correct a miscalculation in Mr. McCafferty's sales figures for 2006, which affected Mr. McCafferty's commission. Mr. Katzgrau did not explain his calculations to Plaintiff, but according to Plaintiff, promised to give him a $5,500 bonus for the second quarter of 2007. Mr. McCafferty never received this bonus. (Id. ¶ 26.)

In late 2007, Defendant hired Karen Lew, a female in her 30s to fill Mr Hayes's vacant position. (Id. ¶ 27.) After Defendant hired Ms. Lew, Mr. Katzgrau transferred some of Mr. McCafferty's accounts to her, leaving Plaintiff with very few accounts. Again, Mr. Katzgrau did not inform Mr. McCafferty that he was transferring several of Plaintiff's accounts to Ms. Lew. (Id. ¶ Mr. McCafferty again told Mr. Katzgrau that his actions constituted age discrimination. Defendant never investigated Mr. McCafferty's allegations of age discrimination, nor took any remedial actions. (Id. ¶ 30.)

In January 2008, Defendant decreased Mr. McCafferty's vacation from 4 weeks to 3 weeks per year. (Id. ¶ 31.) On August 5, 2008, Defendant informed Mr. McCafferty that it was terminating him effective August 19, 2008.

On or about December 4, 2008, Mr. McCafferty submitted a charge of discrimination to the United States Equal Employment Opportunity Commission ("EEOC"), alleging that he was subject to discrimination due to his age in violation of the ADEA. (Id. ¶ 33.) On February 24, 2011, the EEOC issued a "Notice of a Right to Sue" to Plaintiff. (Id. ¶ 34.)


On a motion to dismiss pursuant to Rule 12(b)(6), "courts are required to accept all well-pleaded allegations in the complaint as true and draw all reasonable inferences in favor of the non-moving party." Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008). But, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Courts are not required to credit bald assertions or legal conclusions draped in the guise of factual allegations. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429 (3d Cir. 1997). A pleading that offers "labels and conclusions" or a "formulaic recitation of the elements of a cause of action will not do." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 555). Thus, "'stating . . . a claim ...

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