Friday, September 02, 2005

age discrimination - statute of limitations, tolling - etc.

Holocheck v. Luzerne County Head Start, M.D Pa., August 30, 2005

Defendant moved to dismiss Age Discrimination complaint which alleged federal and state causes of action.

         tolling statute of limitations - 180-day limit on bringing an age discrimination claim can be tolled where the employer fails  to post required notice of employee rights.  Failure to post the notice means that the employee was "prevented from     asserting her rights…."

        - individual liability - federal statute, ADEA, 29 USC 63 et seq -- federal claims against invidivuals supervisors dismissed --

        "…courts in this and other circuits continue to reject the notion that individuals may be held liable under the ADEA

        - individual liability - state statute - PHRA - 43 Pa. CS 955 "contemplates individual liability…Supervisory    employees…may be held liable…on the theory that only supervisors can share the discriminatory purpose and intent of the         employer that is required for aiding and abetting."  Thus, motion to dismiss this claim denied.

        - Sec. 1983 - personnel manual, federal regulations - Section 1983 claims dismissed.  Held, personnel manual did not    create an enforceable property interest under state law, where there was no state enabling legislation that gave local  government the right to employ people on other than an at-will basis.  Similarly,  a "federal regulation  alone may not create  a right enforceable through section 1983 not already found in the enforcing statute…'a regulation may invoke a private right    of action that Congress through statutory text created, but it may not create a right that Congress has not…[R]egulations       give rise to a right of action [under sec. 1983] only insofar as they constue a personal right that a statute creates,'" citing         Three Rivers Center for Indpt. Living vf. Housing Authority, 382 F.3d 412, 424 (3d Cir. 2004).

Donald Marritz, staff attorney
MidPenn Legal Services - Gettysburg