Protin v. Greenman-Pedersen, Inc.

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JAMES PROTIN, Plaintiff, v. GREENMAN-PEDERSON, INC., Defendant.

No. 2:23-cv-01981

United States District Court, W.D. Pennsylvania

October 11, 2024

OPINION

Mark R. Hornak, Chief United States District Judge

Plaintiff James Protin brings this suit under the Age Discrimination in Employment Act (ADEA). Mr. Protin alleges that Defendant Greenman-Pedersen, Inc. (GPI)-his former employer-violated the ADEA's antidiscrimination provision by firing him because of his age. Mr. Protin also alleges that GPI violated the ADEA's antiretaliation provision by asserting counterclaims against him. GPI now moves to dismiss Mr Protin's retaliation claims.

For the reasons discussed below, GPI's Partial Motion to Dismiss is DENIED.

I. Background

GPI is a national, multipurpose engineering firm with over 1,600 employees. (ECF No. 30 ¶¶ 15-16; ECF No. 33 ¶¶ 15-16). Sometime in April 2020, GPI hired Mr Protin to work as a Director of Business Development in its Pittsburgh office. (ECF No. 30 ¶¶ 19-20; ECF No. 33 ¶¶ 19-20). According to Mr. Protin, his time at GPI was without incident: he received several bonuses and a promotion; his performance was “exemplary”; and he was never subject to employee discipline or negative reviews. (ECF No. 30 ¶¶ 23, 36-37). Then, in August 2023, Mr. Protin was fired. (ECF No. 30 ¶ 28; ECF No. 33 ¶ 28). At the time of his termination, he was sixty-three (63) years old. (ECF No. 30 ¶ 32).

In November 2023, Mr. Protin initiated the present lawsuit. According to Mr. Protin, GPI's conduct violated the ADEA. GPI retained younger, less qualified employees, and his termination was motivated by age-based animus. (ECF No. 1 ¶¶ 28, 32). In its Answer, GPI denied that it fired Mr. Protin because of his age and also brought a counterclaim against Mr. Protin. (ECF No. 20). It claimed that Mr. Protin breached the fiduciary duty of loyalty that he owed to GPI by: (1) maintaining outside employment; (2) misusing a corporate credit card; and (3) misappropriating corporate resources, including his time. (ECF No. 20 at 9-11). GPI asserted this claim as a compulsory counterclaim under Rule 13(a)(1) of the Federal Rules of Civil Procedure. (ECF No. 20 at 8).

In response, Mr. Protin amended his Complaint to add a retaliation claim. In his Amended Complaint, Mr. Protin alleges that GPI's counterclaim is baseless, and that GPI only brought this counterclaim to punish Mr. Protin for filing a charge of discrimination with the EEOC and for filing suit in this Court. (ECF No. 30 ¶¶ 43-101). GPI then moved to dismiss Mr. Protin's retaliation claim. (ECF No. 31). That Motion is now before the Court.

II. Legal Standard

A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In evaluating such a motion, the Court must “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). However, the Court need not accept as true any unsupported conclusions or inferences nor “threadbare recitals of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). As such, a plaintiff's factual allegations must “raise a right to relief above the speculative level” and state a “plausible” claim for relief to survive a motion to dismiss. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

III. Discussion

GPI advances two principal arguments in support of its Motion to Dismiss. First, GPI argues that post-termination conduct may never be the basis for a retaliation claim under the ADEA. (ECF No. 32 at 3-4). And second, GPI argues that even if post-termination conduct could be the basis for an ADEA retaliation claim, Mr. Protin's retaliation claim should still be dismissed because he has failed to sufficiently allege that GPI's counterclaim was “objectively baseless.” (ECF No. 32 at 4-6).

A. Whether Post-Termination Conduct May Be the Basis for Retaliation Claim Under the ADEA

The ADEA's antiretaliation provision prohibits an employer from discriminating “against any of his employees . . . because such individual . . . has opposed any practice made unlawful by this section.” 29 U.S.C. § 623(d). To establish a prima facie case for retaliation, the plaintiff must demonstrate “(1) [that she engaged in] protected employee activity; (2) adverse action by the employer either after or contemporaneous with the employee's protected activity; and (3) a causal connection between the employee's protected activity and the employer's adverse action.” Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 193 (3d Cir. 2015) (alteration in original) (quoting Marra v. Phila. Hous. Auth., 497 F.3d 286, 300 (3d Cir. 2007)); accord Kowal v. Ferndale Area Sch. Dist., No. 21-3386, 2023 WL 110541, at *2 (3d Cir. Jan. 5, 2023), cert. denied, 144 S.Ct. 280 (2023); Kochka v. Allegheny Health Network, No. 21-01349, 2023 WL 2216286, at *5 (W.D. Pa. Feb. 24, 2023).^[1]

GPI first argues that Mr. Protin retaliation claim fails as a matter of law because posttermination conduct may never form the basis for an ADEA retaliation claim. (ECF No. 32 at 3). In support of its position, GPI relies primarily on the Third Circuit's decision in Glanzman v. Metropolitan Management Corp., 391 F.3d 506 (3d Cir. 2004). In Glanzman, the plaintiff claimed that her former employer retaliated against her by opposing her claim for unemployment compensation. 391 F.3d at 515. Relying on a Title-VII retaliation case, the court wrote that “To establish a claim for retaliation, a plaintiff must show that: (1) she was engaged in protected activities; (2) the employer took an adverse employment action after or contemporaneous with the employee's protected activity; and (3) a causal link exists between the employee's protected activity and the employer's adverse action.” Id. at 515-16 (citing Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279 (3d Cir. 2000)). Based on this articulation of the test, the court concluded that the plaintiff's retaliation claim failed for two reasons. First, the employer's contest of the plaintiff's unemployment-benefits claim occurred after the plaintiff's employment was terminated. “Once her employment was terminated it was not possible for her to suffer an adverse employment action.” Id. at 516. And second, the court noted that the plaintiff suffered no harm from the allegedly retaliatory conduct. Id.

In response, Mr. Protin argues that Glanzman is no longer good law, that it has been undermined by the Third Circuit's decision in Fasold v. Justice, 409 F.3d 178 (3d Cir. 2005), and by the Supreme Court's decision in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006). (ECF No. 36 at 3-5). Mr. Protin also notes that a number of district courts in the Third Circuit have applied Burlington Northern to retaliation claims under the ADEA. (ECF No. 36 at 5-7).

In reply, GPI distinguishes Fasold on the facts and argues that Burlington Northern, which was a Title-VII case, has not always been applied-and should not be applied-to ADEA retaliation claims. (ECF No. 37 at 2-4).

For somewhat different reasons than those advanced by Mr. Protin, the Court concludes that post-termination conduct may form the basis for a retaliation claim under the ADEA. While Glanzman's holding, if good law, would lead to a contrary result, for the reasons discussed below, the Court concludes that Glanzman does not now provide the rule of decision on this point. Here's why.

“As a general rule, there are-appropriately and of necessity-very significant constraints on this Court's authority to call into question the continued force of a precedential holding of the Third Circuit.” United States v. Green, 610 F.Supp.3d 711, 731 (W.D. Pa. 2022). In virtually every circumstance, this Court is bound to apply the holdings of published and precedential Third Circuit decisions unless those holdings have been specifically and expressly abrogated or overturned by the Supreme Court or the Third Circuit sitting en banc. Id. (citing Pardini v. Allegheny Intermediate Unit, 524 F.3d 419, 426 (3d Cir. 2008)). Importantly, when two precedential decisions by Third Circuit panels conflict, this Court must follow the earlier decision. Id. at 732 (citing Pardini, 524 F.3d at 426).

Beyond those principles, in certain limited circumstances, this Court may also decline to follow a precedential panel decision that appears to be on point even in the absence of express en banc repudiation. Such circumstances are present where the prior Third Circuit decision “‘conflicts with intervening Supreme Court precedent,' at least where that intervening precedent ‘unquestionably presents an intervening shift in the applicable . . . analytical framework.'” Id. at 731 (quoting Karns v. Shanahan, 879 F.3d 504, 515 (3d Cir. 2018)). In such circumstances, when intervening decisions “fundamentally undermine[]” a case's “precedential and persuasive vitality,” that case no longer retains controlling force. Id. at 732-33.

Here, applying the above principles, the Court concludes that Glanzman's holding-that post-termination conduct may never form the basis for a retaliation claim-does not retain “controlling force” for two reasons. First, it is inconsistent with precedential Third Circuit and Supreme Court decisions that predate Glanzman. And second, it has since been fundamentally undermined by the Supreme Court's decision in Burlington Northern to the degree that it can no longer be considered controlling precedent.

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