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Waters v. Village of Grafton

September 9, 2009

JEFFREY WATERS, PLAINTIFF,
v.
VILLAGE OF GRAFTON, GRAFTON POLICE DEPARTMENT, CHIEF OF POLICE ROB HEDGER, AND ASSISTANT CHIEF MIKE WEBER, DEFENDANT.



The opinion of the court was delivered by: Herndon, Chief Judge

MEMORANDUM AND ORDER

I. Introduction

On March 3, 2008, Plaintiff Jeffrey Waters filed his Complaint against the City of Grafton, the Grafton Police Department, and Chief of Police William Hedger (Doc. 2, Ex. 1). On March 14, 2008, Defendants removed the cause to this Court (Doc. 2). On August 28, 2008, Plaintiff filed his first amended Complaint, adding Assistant Chief of Police Mike Weber (Doc. 21). In his amended Complaint, Plaintiff brings four counts against Defendants, including claims for: retaliation for opposing unlawful discrimination under the Age Discrimination in Employment Act ("ADEA"), age discrimination in failure to hire under the ADEA, tortious interference with a business expectancy, and violation of his First Amendment rights pursuant to 42 U.S.C. § 1983.

In his Complaint, Plaintiff alleges that in September 2006 he applied for a police officer position with the Grafton Police Department (Doc. 21 ¶ 10). At the time he submitted his application, Plaintiff was over forty years old (Id.). Plaintiff alleges that he was better qualified than numerous other applications because of his prior experience as a police officer (Doc. 21 ¶ 11). Plaintiff had graduated from the police academy, was a licensed peace officer, and had been employed by various police organizations (Id. at ¶ 5). Plaintiff was not hired by the Department and Plaintiff alleges that it was due to his age that he was not hired (Id. at ¶¶ 14, 29, 30). Plaintiff further alleges that on February 4, 2007, he complained to the Village of Grafton Aldermen and requested an investigation or explanation as to why the Department did not hire him and why others of lessor qualifications were hired (Id. at ¶¶ 15-16). Plaintiff also complained to The Alton Telegraph and the Jersey County Journal, complaining that the Department refused to hire him because of his age and that he intended to file a complaint with the Equal Employment Opportunity Commission ("EEOC") (Id. at ¶¶ 15-16).

Plaintiff further alleges that unfounded complaints against him were made to the U.S. Postal Inspector's office in St. Louis, Mo. (Doc. 21 at ¶16). Plaintiff was employed as a security guard for American Building Maintenance Security Services of America (ABM SSA), a government contractor (Id. at ¶15). Plaintiff alleges that Defendant Chief Hedger and Assistant Chief Weber originated the complaint and allegedly reported the allegations to the Alton Telegraph (Id. at ¶¶16, 17). Plaintiff further alleges that he was reassigned from his position at the Post Office to another facility with a lower rate of pay and when that contract expired, he lost his employment with ABM SSA (Id. at ¶¶19, 37, 38).

On September 12, 2008, Defendants filed a motion to dismiss all of the claims pursuant to FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6) for failure to state a claim (Doc. 24). Plaintiff has filed a response to the motion (Doc. 25) and Defendants have filed a reply (Doc. 26). Defendant has also filed a motion to supplement motion to dismiss or, in the alternative, motion for summary judgment (Doc. 29).*fn1 The Court rules as follows.

II. Legal Standard

Defendant brings its motion to dismiss pursuant to FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6) for failure to state a claim. When ruling on a motion to dismiss for failure to state a claim under FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6), the Court must look to the complaint to determine whether it satisfies the threshold pleading requirements under FEDERAL RULE OF CIVIL PROCEDURE 8. Rule 8 states that a complaint need only contain a "short and plain statement of the claim showing that the pleader is entitled to relief." FED.R.CIV.P.8(a)(2). In a recent opinion issued on May 21, 2007, the Supreme Court held that Rule 8 requires that a complaint allege "enough facts to state a claim to relief that is plausible on its face" to survive a Rule 12(b)(6) motion. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547, 127 S.Ct. 1955, 1960 (2007). In other words, the Supreme Court explained it was " a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief'" by providing "more than labels and conclusions," because "a formulaic recitation of the elements of a cause of action will not do...." Id. at 555, 127 S.Ct. at 1964-65 (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932 (1986)). The Seventh Circuit has read the Bell Atlantic decision to impose "two easy-to-clear hurdles":

First, the complaint must describe the claim in sufficient detail to give the defendant "fair notice of what...claim is and the grounds upon which it rests." Second, its allegations must plausibly suggest that the plaintiff has a right to relief, raising that possibility above a "speculative level"; if they do not, the plaintiff pleads itself out of court.

E.E.O.C. v. Concentra Health Services, Inc., 2007 WL 2215764, 2 (7th Cir. 2007) (citations omitted).

III. Analysis

A. ADEA Claims

Plaintiff brings two claims pursuant to the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. Plaintiff argues that he was both discriminated against in his employment application because of his age and that Defendants retaliated*fn2 against him for protesting Defendant's alleged unlawful employment practices. Defendants argue that Plaintiff can not bring these claims under the ADEA because Defendants are not subject to the provisions of the ADEA as it employees less than twenty individuals.*fn3 The ADEA defines "employer" as "a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year." 29 U.S.C. § 630(b). An employee does not include persons elected to public office. See 29 U.S.C. § 630(f). Defendant Village of Grafton argues that it has never employed more than twenty employees, exclusive of those elected positions, and is therefore not subject to ADEA regulations. Plaintiff has conceded that he cannot show the twenty employee requirement and thus his claims under the ADEA should be dismissed (See Doc. 32).

As to the individual claims under the ADEA, Defendants are correct that individuals that do not meet the definition of employer under the ADEA are not held liable under the ADEA. See Thelen v. Marc's Big Boy Corp., 64 F.3d 264, 267 n.2 (7th Cir. 1995).*fn4 While the Seventh Circuit in Thelen did not reach the issue, it noted that it is likely that there is no individual liability under the ADEA as it had previously found that an individual, who did not meet the statutory qualifications as an employer, could not be held liable under the ADA as the relevant language in the two statutes are identical. Id. (citing United States Equal Employment Opportunity Comm'n v. AIC Sec. Investigations, Ltd., 55 F.3d 1276 (7th 1995) (findings no individual liability under the ADA and specifically noting that provisions defining employer of the ADEA were identical). See also Horwitz v. Board of Educ. of Avoca School Dist. No. 37, 260 F.3d 602, 610 n.2 (7th Cir. 2001) (noting that the Seventh ...


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