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UNITED STATES DISTRICT COURT 

MIDDLE DISTRICT OF PENNSYLVANIA 

ERIC ERNST, 

 Plaintiff 

 

 v. 

 

UNION COUNTY CONSERVATION 

DISTRICT et al., 

 Defendants 

) CIVIL ACTION NO. 4:21-CV-1702 

) 

) 

) 

) (ARBUCKLE, M.J.) 

) 

) 

) 

MEMORANDUM OPINION 

(Order on Defendants’ Motion to Dismiss Specific Sections of Plaintiff’s Amended 

Complaint (Doc. 29)) 

I. INTRODUCTION 

Eric Ernst (“Plaintiff”) filed this action against his employers, Union County 

and Union County Conservation District (“Defendants”), alleging violations of the 

Age Discrimination in Employment Act, the Pennsylvania Human Relations Act, 

and the Pennsylvania Whistleblower Law. Currently before the Court is Defendants’ 

motion to dismiss specific sections of Plaintiff’s first amended complaint pursuant 

to Federal Rule of Civil Procedure 12(b)(6). (Doc. 29). The parties have consented 

to proceed before a United States Magistrate Judge. (Doc. 21). The Court has 

reviewed the motion, the briefs, and the amended complaint. For the reasons 

explained in this Opinion, Defendants’ motion will be granted in part and denied in 

part. 

 

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II. BACKGROUND & PROCEDURAL HISTORY 

On July 14, 2021, Plaintiff filed a charge of discrimination with the Equal 

Employment Opportunity Commission (“EEOC”) and Pennsylvania Human 

Relations Commission (“PHRC”), numbered 2021-00065. (Doc. 27, ¶ 10). On or 

around July 14, 2022, the PHRC mailed Plaintiff a right to sue letter that advised 

him of his right to bring this action. (Doc. 27, ¶ 11; Doc. 27-1, p. 2). 

On October 5, 2021, Plaintiff Eric Ernst filed this action against Defendant 

Union County Conservation District (“UCCD”). (Doc. 1). The case was assigned to 

United States District Chief Judge Matthew W. Brann for the Middle District of 

Pennsylvania. On December 10, 2021, Defendant UCCD filed a motion to dismiss 

for failure to state a claim. (Doc. 9). On June 10, 2022, Judge Brann issued a Opinion 

and Order denying that motion. (Docs. 13, 14). On August 15, 2022, upon consent 

of Plaintiff and Defendant UCCD the case was assigned to the undersigned. (Doc. 

21). 

On August 12, 2022, Plaintiff filed a motion for leave to file an amended 

complaint. (Doc. 19). On August 23, 2022, the undersigned granted Plaintiff’s 

motion. (Doc. 24). On August 24, 2022, Plaintiff filed his amended complaint. (Doc. 

27). Plaintiff’s amended complaint added Defendant Union County. On February 

12, 2022, Defendant Union County consented to proceed before a United States 

Magistrate Judge. (Doc. 21). 

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Like the original complaint, Plaintiff’s amended complaint asserts claims 

under the Age Discrimination in Employment Act, the Pennsylvania Human 

Relations Act, and the Pennsylvania Whistleblower Law. (Doc. 27). To his amended 

complaint Plaintiff attaches a copy of the PHRA right to sue letter (Doc. 27-1, p. 2) 

and the letter informing him of his termination (Doc. 27-2, p. 2). Plaintiff avers that 

at all times relevant to this case he has been at least 40 years old (Doc. 27, ¶ 3) and 

that he has complied with all administrative prerequisites for the commencement of 

this action. (Doc. 27, ¶¶ 10-12). 

 Plaintiff’s amended complaint sets forth the following facts in detail. 

Plaintiff’s employment with Defendants began in 1989 when he was employed in 

Union County’s maintenance department. (Doc. 27, ¶ 14). In December 1994, 

Plaintiff began working for UCCD as an Erosion and Sedimentation Pollution 

Control Technician. (Doc. 27, ¶ 15). From December 1994 through January 2019, 

Plaintiff had no job-related issues with Defendants. (Doc. 27, ¶ 16). Throughout his 

employment, Plaintiff’s job performance consistently met or exceeded Defendants’ 

standards, he performed his job satisfactorily and had no issues with supervisors, 

other employees, or the public. (Doc. 27, ¶ 42). In January 2019, Eric Nyerges was 

hired as the Conservation District Manager and became Plaintiff’s supervisor. (Doc. 

27, ¶ 17). 

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 After Mr. Nyerges was hired, he and Plaintiff began having problems. (Doc. 

27, ¶ 18). For example, in February 2020 Plaintiff requested time off to attend his 

granddaughter’s funeral. (Doc. 27, ¶ 19). Mr. Nyerges denied Plaintiff’s request after 

asking Plaintiff if his granddaughter died as the result of a miscarriage, resulting in 

Plaintiff having to through Union County’s Human Resources office to have the 

bereavement day approved. Id. Plaintiff alleges that Mr. Nyerges would deny him 

time off but grant similar requests made by other employees. (Doc. 27, ¶ 20). Mr. 

Nyerges would question Plaintiff about the reason he was requesting to use sick 

leave and both Plaintiff and Union County’s Human Resources office told Mr. 

Nyerges on several occasions he could not ask those types of questions. (Doc. 27, ¶¶ 

21-22). Mr. Nyerges nevertheless continued to ask those types of questions and 

would become angry and look for ways to retaliate against Plaintiff when Plaintiff 

replied that it was none of his business. (Doc. 27, ¶ 23). 

 In 2019 and continuing thereafter, Mr. Nyerges began to tell Plaintiff he 

should retire and needed to retire. (Doc. 27, ¶ 46). Mr. Nyerges also told members 

of the public Plaintiff worked with that Plaintiff would be retiring soon. (Doc. 27, ¶ 

47). Defendants were aware of this discriminatory conduct and failed to take prompt 

remedial action. (Doc. 27, ¶ 48). 

On March 11, 2021, Mr. Nyerges asked to speak with Plaintiff to discuss 

Plaintiff’s workload. (Doc. 27, ¶ 24). While the two initially spoke about the 

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workload, the conversation focused on National Pollutant Discharge Elimination 

System (“NPDES”) permits that had been incorrectly processed by a former 

employee. (Doc. 27, ¶ 25). At the meeting, Mr. Nyerges told Plaintiff he needed to 

fix those improperly processed NPDES permits. (Doc. 27, ¶ 26). Mr. Nyerges’s role 

as Conservation District Manager required him to sign all approved NPDES permits. 

(Doc. 27, ¶ 27). Mr. Nyerges signed all of the permits Plaintiff reviewed, but had not 

signed all the permits by the former employee. Id. Mr. Nyerges told Plaintiff that he 

wanted to retaliate against the former employee who had incorrectly processed the 

NPDES permits by reporting him to the Department of Environmental Protection. 

(Doc. 27, ¶ 28). Mr. Nyerges blamed Plaintiff for the improper processing of the 

permits, which Plaintiff responded to by stating that Mr. Nyerges was the one 

ultimately responsible because he was responsible for signing all the permits. (Doc. 

27, ¶¶ 29-30). 

A few days before that March 11, 2021 meeting, Plaintiff informed 

Conservation District Board Vice Chair Lucas Criswell that Mr. Nyerges was not 

properly processing and completing NPDES permits. (Doc. 27, ¶ 31). Plaintiff had 

also spoken with a Union County commissioner about receiving a raise or stipend 

while he was doing the work of two employees. (Doc. 27, ¶ 32). Plaintiff made these 

reports in good faith to appropriate individuals without malice or personal benefit. 

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(Doc. 27, ¶ 66). These reports would lead Defendants to retaliate against Plaintiff. 

(Doc. 27, ¶ 67). 

Mr. Nyerges “was upset and irritated” that Plaintiff had spoken to the 

commissioner and board member about the improperly processed NPDES permits, 

which would ultimately lead to the March 30, 2021 events and Plaintiff’s 

termination. (Doc. 27, ¶ 33). Mr. Nyerges retaliated against Plaintiff after finding 

out about the reports, including pretextual write ups and hostile treatment. (Doc. 27, 

¶¶ 69-70). 

On March 30, 2021, Mr. Nyerges “demanded” Plaintiff meet with him alone 

in “the map room.” (Doc. 27, ¶ 34). Plaintiff had previously told the Chief Clerk that 

he did not feel safe alone with Mr. Nyerges and was told he did not have to meet 

with a department head alone if he felt it was unsafe. Id. Plaintiff told Mr. Nyerges 

he would not meet with Mr. Nyerges at that time. Id. In response, Mr. Nyerges began 

following Plaintiff around the office, demanding Plaintiff meet with him and 

eventually blocking Plaintiff’s path so that Plaintiff could not leave. (Doc. 27, ¶ 35). 

Plaintiff asked Mr. Nyerges to move several times but Mr. Nyerges refused. 

(Doc. 27, ¶ 36). Mr. Nyerges then “looked [Plaintiff] in the face and said ‘go ahead 

and push me and see what happens.’” (Doc. 27, ¶ 36). Plaintiff responded by saying 

“you push me and see what happens.” (Doc. 27, ¶ 37). Mr. Nyerges then claimed 

Plaintiff had threatened him and told Plaintiff he was calling the police. (Doc. 27, ¶ 

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38). Plaintiff then agreed to leave the office. (Doc. 27, ¶ 39). Plaintiff alleges Mr. 

Nyerges’s conduct towards Plaintiff at this meeting was “reprisal” from the March 

11, 2021 meeting and Plaintiff’s reports to the board member and commissioner. 

(Doc. 27, ¶ 76). 

On April 8, 2021, Plaintiff received a letter from the Union County 

Commissioners informing him that as of April 8, 2021, his employment with UCCD 

and Union County had been terminated. (Doc. 27, ¶ 43; Doc. 27-2, p. 2). The letter 

stated Plaintiff was “terminated purportedly for insubordination.” (Doc. 27, ¶ 43). 

At all times prior to his termination, Plaintiff was qualified and capable of doing his 

job. (Doc. 27, ¶ 44). Plaintiff was fifty-seven years old at the time of his termination. 

(Doc. 27, ¶ 45). After he was terminated, Plaintiff alleges Defendants gave Plaintiff’s 

job duties and responsibilities to an individual substantially younger and/or less 

experienced than Plaintiff. (Doc. 27, ¶ 50). 

On September 6, 2022, Defendants filed the instant motion to dismiss specific 

sections of Plaintiff’s first amended complaint. (Doc. 29). In their motion to dismiss, 

Defendants move to strike certain portions of Plaintiff’s prayers for relief. (Doc. 29, 

pp. 5-7). The Court construes those requests as a motion to strike pursuant to Federal 

Rule of Civil Procedure 12(f). A brief in support was filed on September 16, 2022. 

(Doc. 30). On September 29, 2022, a brief in opposition was filed. (Doc. 31). No 

reply brief was filed. Defendants’ motion is ripe and ready for review. 

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III. LEGAL STANDARDS 

Before proceeding to the merits of Defendant’s motion, it is helpful to restate 

the legal standards relevant to motions to dismiss under Rule 12(b)(6) of the Federal 

Rules of Civil Procedure. We will also discuss the other legal standards relevant to 

this decision. 

A. MOTIONS TO DISMISS UNDER RULE 12(B)(6) 

Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant 

to seek dismissal for failure to state a claim upon which relief can be granted. To 

assess the sufficiency of a complaint when dismissal is sought under Rule 12(b)(6), 

a court should: (1) take note of the elements a plaintiff must plead to state a claim; 

(2) identify mere conclusions which are not entitled to the assumption of truth; and 

(3) determine whether the complaint’s factual allegations, taken as true, could 

plausibly satisfy the elements of a legal claim.1

 

In order for his or her allegations to be taken as true, a plaintiff must provide 

some factual ground for relief, which “requires more than labels and conclusions, 

and a formulaic recitation of the elements of a cause of action will not do.”2

 To state 

a claim, a plaintiff must plead “enough facts to raise a reasonable expectation that 

1 Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011). 

2 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 

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discovery will reveal evidence of the necessary element[s].”3

 “Threadbare recitals 

of the elements of a cause of action, supported by mere conclusory statements, do 

not suffice.”4

 Thus, courts “need not credit a claimant’s ‘bald assertions’ or ‘legal 

conclusions’ when deciding a motion to dismiss.”5

 The court also need not assume 

that a plaintiff can prove facts that he or she has not alleged.6

 “To prevent dismissal, 

all civil complaints must now set out sufficient factual matter to show that the claim 

is facially plausible.”7

“A claim has facial plausibility when the plaintiff pleads factual content that 

allows the court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.”8

 The court must accept as true all allegations in the complaint, 

and any reasonable inferences that can be drawn therefrom are to be construed in the 

light most favorable to the plaintiff.9

 This “presumption of truth attaches only to 

3 Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting 

Twombly, 550 U.S. at 556 (internal quotation marks omitted)). 

4 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 

5 Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting 

In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)). 

6 Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of 

Carpenters, 459 U.S. 519, 526 (1983). 

7 Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting 

Iqbal, 556 U.S. at 1949). 

8 Palakovic v. Wetzel, 854 F.3d 209, 219-20 (3d Cir. 2017) (quoting Iqbal, 

556 U.S. at 678) (internal quotation marks omitted); see also Sheridan v. NGK 

Metals Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010). 

9 Jordan v. Fox Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 

1994). 

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those allegations for which there is sufficient ‘factual matter’ to render them 

‘plausible on [their] face.’”10 The plausibility determination is context-specific and 

does not impose a heightened pleading requirement.11 

In deciding a Rule 12(b)(6) motion, a court must consider only the complaint, 

exhibits attached to the complaint, matters of public record, as well as undisputedly 

authentic documents if the complainant's claims are based upon these documents.12 

B. FEDERAL RULE OF CIVIL PROCEDURE 12(F) STANDARD (MOTION TO 

STRIKE) 

Federal Rule of Civil Procedure 12(f) provides: 

(f) Motion to Strike. The court may strike from a pleading an 

insufficient defense or any redundant, immaterial, impertinent, or 

scandalous matter. The court may act: 

(1) on its own; or 

(2) on motion made by a party either before responding to the 

pleading or, if a response is not allowed, within 21 days after 

being served with the pleading. 

Rule 12(f) works to reinforce the Federal Rule of Civil Procedure Rule 8 

requirements that pleadings be “simple, concise, and direct.”13

10 Schuchardt v. President of the United States, 839 F.3d 336, 347 (3d Cir. 

2016) (internal quotation and citation omitted) (alternations in original). 

11 Id. at 347. 

12 Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010). 

13 Fed. R. Civ. P. 8(d)(1); Miller v. State Farm Mut. Auto Ins. Co., No. 1:20-

CV-00367, 2020 WL 3265345, at *2 (M.D. Pa. June 17, 2020) (quoting 5C Charles 

Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1380 (3d ed. 2020 

update)). 

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To that end, the purpose of any motion to strike should be to “clean up 

the pleadings, streamline litigation, and avoid the unnecessary forays 

into immaterial matters.” United States v. Educ. Mgmt. Corp., 871 F. 

Supp. 2d 433, 460 (W.D. Pa. 2012) (citation omitted). 

 

Motions to strike should not be used to persuade a court to determine 

disputed questions of law. See Tonka Corp. v. Rose Art Indus., Inc., 836 

F. Supp. 200, 218 (D.N.J. 1993) (citations omitted). They also “may not 

serve as an avenue to procure the dismissal of all or part of a 

complaint.” Davila v. N. Reg'l Joint Police Bd., 979 F. Supp. 2d 612, 

624 (W.D. Pa. Oct. 21, 2013), vacated in part on reconsideration, 2014 

U.S. Dist. LEXIS 102143 (W.D. Pa. July 28, 2014) (citing Giles v. 

Phelan, Hallinan & Schmieg, L.L.P., 901 F. Supp. 2d 509, 530–31 

(D.N.J. 2012)). 

The burden rests with the moving party to show that the challenged 

matter should be stricken. In re Ry. Indus. Emp. No-Poach Antitrust 

Litig., 395 F. Supp. 3d 464, 496 (W.D. Pa. 2019). Thus, the movant 

must demonstrate that the matter falls within one of the categories listed 

in Rule 12(f). “Immaterial” matter is that which “has no essential or 

important relationship to [any] claim[s] for relief.” Wagner v. 

Holtzapple, 101 F. Supp. 3d 462, 488 (M.D. Pa. 2015) (citing 

Del. Health Care, Inc. v. MCD Holding Co., 893 F. Supp. 1279 (D. Del. 

1995)). “Impertinent” matter consists of “statements that do not pertain, 

and are not necessary, to the issues in question.” Id. (citation omitted). 

And “scandalous” matter is that which “casts a derogatory light on 

someone, uses repulsive language, 8 or detracts from the dignity of the 

court.” Id. (citing Carone v. Whalen, 121 F.R.D. 231, 232 (M.D. Pa. 

1988)).

14

C. THE AGE DISCRIMINATION IN EMPLOYMENT ACT

The Age Discrimination in Employment Act (“ADEA”) provides in pertinent 

part that “[i]t shall be unlawful for an employer . . . to discharge any individual or 

14 Ashley v. Kosheba, No. 1:22-CV-00982, 2023 WL 6200805, at * 3 (M.D. 

Pa. Sept. 22, 2023). 

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otherwise discriminate against any individual with respect to his compensation, 

terms, conditions, or privileges of employment, because of such individual's age.”15

Stating a claim for age discrimination under the ADEA requires a plaintiff to allege 

“(1) he is over forty, (2) he is qualified for the position in question, (3) he suffered 

from an adverse employment decision, and (4) his replacement was sufficiently 

younger to permit a reasonable inference of age discrimination.”16 “[A]t the motion 

to dismiss stage, the plaintiff's job is simple: allege enough facts to raise a reasonable 

expectation that discovery will reveal evidence of each ADEA element.”17 

“Punitive damages are not available under the ADEA.”18 The ADEA 

addresses the availability of liquidated damages “in 29 U.S.C. § 626(b) which 

specifically provides that liquidated damages shall be payable only in cases of 

willful violations.”19 “An ADEA violation is willful if the employer either knew or 

showed reckless disregard for the matter of whether its conduct was prohibited by 

15 29 U.S.C. § 623(a)(1). 

16 Hill v. Borough of Kutztown, 455 F.3d 225, 247 (3d Cir. 2006) (citing 

Potence v. Hazleton Area Sch. Dist., 357 F.3d 463, 466 n.1 (3d Cir. 2005)). 

17 Williams v. Wilkes Barre Hospital Co., LLC, No. 3:22-CV-1151, 2023 WL 

3671811, at *2 (M.D. Pa. May 25, 2023). 

18 Andrews v. Williams WPC-I, LLC, No. 4:19-CV-02200, 2020 WL 4015404, 

at *7 (M.D. Pa. July 16, 2020). 

19 Bashore v. Pocono Mountain Reg’l Police Comm’n, No. 3:18-CV-425, 

2021 WL 3611113, at * 3 (M.D. Pa. Aug. 13, 2021) (internal quotation marks 

omitted)). 

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the ADEA.”20 The Supreme Court has rejected “any requirement of ‘direct’ evidence 

of discrimination, ‘outrageous’ conduct by the employer or proof that age was the 

predominant rather than a determinative factor in the employment decision.”21 

D. THE PENNSYLVANIA HUMAN RELATIONS ACT

The Pennsylvania Human Relations Act (“PHRA”) provides in relevant part 

that under Pennsylvania law, 

[i]t shall be an unlawful discriminatory practice, unless based upon a 

bona fide occupational qualification . . . [f]or any employer because of 

the race, color, religious creed, ancestry, age, sex, national origin or 

non-job related handicap . . . of any individual or independent 

contractor . . . to discriminate against such individual or independent 

contractor with respect to compensation, hire, tenure, terms, conditions 

or privileges of employment or contract, if the individual or 

independent contractor is the best able and most competent to perform 

the services required.22

To state a claim for age discrimination under the PHRA a plaintiff must allege “he 

was over the age of 40; subject to an adverse employment action; qualified for his 

position; and that the adverse employment action was on account of his age.”23 At 

the motion to dismiss stage this requires Plaintiff to plead adequate facts that allow 

20 Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1099 (3d Cir. 1995) 

(quoting Hazen Paper Co. v. Biggins, 507 U.S. 604, 617 (1993)) (internal quotation 

marks omitted). 

21 Starceski, 54 F.3d at 1099 (citing Hazen Paper Co., 507 U.S. at 617 

(footnote omitted). 

22 43 P.S. § 955(a). 

23 Higgins v. MetLife Inc., No. 22-3714, 2023 WL 5309893, at * 9 (E.D. Pa. 

Aug. 17, 2023) (citing Fowler v. AT&T, Inc., 19 F.4th 292, 299 (3d Cir. 2021)). 

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the court to reasonably expect discovery will reveal evidence of the elements.24

PHRA and ADEA claims are closely related and analyzed concurrently.25

“Resolution of [a] [p]laintiff’s ADEA claim also resolves his PHRA claim.”26

 Punitive damages are not available under the PHRA.27 Whether liquidated 

damages are punitive damages and therefore unavailable under the PHRA has not 

been conclusively decided in this Circuit.28

E. THE PENNSYLVANIA WHISTLEBLOWER LAW 

The Pennsylvania Whistleblower Law (“PWBL”) provides in relevant part: 

No employer may discharge, threaten or otherwise discriminate or 

retaliate against an employee regarding the employee's compensation, 

terms, conditions, location or privileges of employment because the 

employee or a person acting on behalf of the employee makes a good 

faith report or is about to report, verbally or in writing, to the employer 

or appropriate authority an instance of wrongdoing or waste by a public 

body or an instance of waste by any other employer as defined in this 

act.29

Under the PWBL, a good faith report is: 

A report of conduct defined in this act as wrongdoing or waste which 

is made without malice or consideration of personal benefit and which 

the person making the report has reasonable cause to believe is true. An 

employer is not barred from taking disciplinary action against the 

24 Phillips, 515 F.3d at 234. 

25 Keuch v. Teva Pharm. USA, Inc., No. 2:19-CV-05488-JMG, 2023 WL 

5401565, at *13 n.5 (E.D. Pa. Aug. 22, 2023). 

26 Id. 27 Hoy v. Angelone, 720 A.2d 745, 751 (Pa. 1998). 

28 Doe v. Schuylkill Cnty. Courthouse, No. 3:21-CV-477, 2022 WL 1424983, 

at *14 (M.D. Pa. May 5, 2022). 

29 43 P.S. § 1423(a). 

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employee who completed the report if the employee's report was 

submitted in bad faith.30

The PWBL defines wrongdoing as “[a] violation which is not of a merely technical 

or minimal nature of a Federal or State statute or regulation, of a political subdivision 

ordinance or regulation or of a code of conduct or ethics designed to protect the 

interest of the public or the employer.”31

 To state a PWBL claim, a plaintiff must allege that “prior to the alleged acts 

of retaliation, he had made a good faith report of wrongdoing to appropriate 

authorities.”32 “The plaintiff must also come forward with some evidence of a 

connection between the report of wrongdoing and the alleged retaliatory acts.”33 

 The Third Circuit has instructed that “[t]o establish the requisite causal 

connection a plaintiff usually must prove either (1) an unusually suggestive temporal 

proximity between the protected activity and the allegedly retaliatory action, or (2) 

a pattern of antagonism coupled with timing.”34 Additionally, causation “can be 

inferred” through “other evidence gleaned from the record as a whole.”35 Nor is a 

30 43 P.S. § 1422. 

31 Id. 32 O’Rourke v. Commonwealth, 778 A.2d 1194, 1200 (2001) (citing 43 P.S. 

§ 1424(b)). 

33 Kimes v. Univ. of Scranton, 126 F.Supp.3d 477, 504 (M.D. Pa. 2015) 

(quoting O’Rourke, 778 A.2d at 1200) (internal quotation marks omitted). 

34 Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). 

35 Farrell v. Planters Lifesavers Co., 206 F.3d 271, 281 (3d Cir. 2000); see 

also Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 196 (3d Cir. 2015). 

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plaintiff “limited to timing and demonstrative proof, such as actual antagonistic 

conduct or animus.”36

 With these legal standards and background of this case in mind we now turn 

to the analysis of Defendants’ motion to dismiss. 

IV. ANALYSIS 

In their motion to dismiss, Defendants assert four arguments: 

1. Plaintiff’s omnibus prayer for relief for compensatory damages 

should be stricken with respect to the ADEA claim because 

compensatory damages are not recoverable under the ADEA; 

2. Plaintiff’s omnibus prayer for relief for liquidated damages should 

be stricken with respect to the ADEA claim because Plaintiff has not 

adequately averred the alleged ADEA violations were willful; 

3. Plaintiff’s omnibus prayer for relief for liquidated damages should 

be stricken with respect to the PHRA claim because liquidated 

damages are not recoverable under the PHRA; and 

4. Count III of Plaintiff’s amended complaint alleging violations of the 

PWBL should be dismissed for failure to state a claim upon which 

relief may be granted. 

The Court will address each of these issues below in the order presented. 

A. PLAINTIFF’S OMNIBUS PRAYER FOR RELIEF FOR COMPENSATORY 

DAMAGES WITH RESPECT TO THE ADEA WILL BE STRICKEN

In their motion to dismiss, Defendants move to strike Plaintiff’s omnibus 

prayer for relief for compensatory damages with respect to the ADEA because the 

36 Id. 

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ADEA does not permit a separate recovery of compensatory damages. (Doc. 30, pp. 

6-8). Plaintiff concedes the ADEA does not permit a separate recovery of 

compensatory damages. (Doc. 31, p. 11). Plaintiff’s omnibus prayer for relief for 

compensatory damages with respect to the ADEA will therefore be stricken. 

B. PLAINTIFF’S OMNIBUS PRAYER FOR RELIEF FOR LIQUIDATED 

DAMAGES WITH RESPECT TO THE ADEA WILL NOT BE STRICKEN

In their motion to dismiss, Defendants move to strike Plaintiff’s omnibus 

prayer for relief for liquidated damages with respect to the ADEA because Plaintiff 

has failed to allege a willful violation of the ADEA. (Doc. 30, pp. 8-10). Defendants 

assert that “to find willfulness in a disparate treatment case, there must be ‘some 

additional evidence of outrageous conduct’ and not merely a finding that the 

employer knew or should have known that its conduct violated the ADEA.” (Doc. 

30, pp. 8-9). However, in Hazen Paper Co. v. Biggins, the Supreme Court reaffirmed 

“that the Thurston definition of ‘willful’—that the employer either knew or showed 

reckless disregard for the matter of whether its conduct was prohibited by the 

statute—applies to all disparate treatment cases under the ADEA. Once a ‘willful’ 

violation has been shown, the employee need not additionally demonstrate that the 

employer's conduct was outrageous . . . .”37 Thus Defendants’ argument that 

37 Hazen Paper Co., 507 U.S. at 617. See also Starceski, 54 F.3d at 1099, 1099 

n.10 (recognizing the Supreme Court rejected an outrageousness requirement in 

Hazen Paper Co., effectively overruling the Third Circuit’s decisions requiring a 

showing of outrageousness). 

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“Plaintiff has made no allegations of any conduct that would amount to the 

‘outrageous conduct’ necessary to establish liquidated damages” is unavailing. (Doc. 

30, p. 10). 

Plaintiff argues that under the proper standard, his amended complaint alleges 

willful conduct warranting the imposition of liquidated damages. (Doc. 31, pp. 12-

14). Plaintiff points to the allegations that during his thirty-two years of employment 

with the County his job performance consistently met or exceeded its standards, and 

that beginning in 2019 and continuing thereafter his newly hired supervisor began 

making age-related statements towards him directly and indirectly. (Doc. 31, p. 13). 

Plaintiff points specifically to his allegations that Mr. Nyerges told Plaintiff he 

should retire and that he needed to retire and that Mr. Nyerges told members of the 

public Plaintiff worked with that he was going to retire to support his allegations of 

willfulness. Id. Plaintiff alleges that as his supervisor, Mr. Nyerges was in a position 

of power over him and should have known that “making repeated, unwelcomed and 

unsupported age-related statements about an older employee reflects a systematic 

targeting of said employee with the goal of having them leave their job.” (Doc. 31, 

pp. 13-14). Finally, Plaintiff alleges that at this stage of the litigation the Court does 

not have enough information to conclude Defendants did not act willfully. (Doc. 31, 

p. 14). 

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The Court agrees with Plaintiff. At this stage of the proceedings Plaintiff’s 

amended complaint alleges sufficient facts to allow the Court to reasonably believe 

that discovery will reveal evidence that Defendants “knew or showed reckless 

disregard for the matter of whether its conduct was prohibited by” the ADEA.38

Plaintiff alleges Mr. Nyerges told Plaintiff that he should retire, and needed to retire, 

and told members of the public Plaintiff would be retiring soon. (Doc. 27, ¶¶ 46-47). 

Plaintiff also alleges these age-related comments were made while Mr. Nyerges 

acted hostile towards Plaintiff. (Doc. 27, ¶¶ 17-39). Further, the Court agrees with 

Plaintiff that it does not have enough information to determine Defendants did not 

act willfully, and so dismissing the liquidated damages request at this stage would 

be premature. (Doc. 31, p. 14). The Court will thus decline to strike Plaintiff’s claim 

for liquidated damages as related to the ADEA claim. Defendants may raise this 

issue again in a later stage of the proceedings if they wish. 

C. PLAINTIFF’S OMNIBUS PRAYER FOR RELIEF FOR LIQUIDATED 

DAMAGES WITH RESPECT TO THE PHRA WILL NOT BE STRICKEN

Defendants move to strike Plaintiff’s prayer for relief for liquidated damages 

with respect to the PHRA because liquidated damages are not available for violations 

of the PHRA. (Doc. 30, p. 10). Defendants’ argument on this point is “sparse.”39

Under Count II of the Amended Complaint, Plaintiff requests liquidated 

damages for an alleged violation of the PHRA. (ECF 27, p. 13). 

38 Hazen Paper Co., 507 U.S. at 617. 

39 Doe v. Schuylkill Cnty. Courthouse, 2022 WL 1424983, at *14. 

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However, liquidated damages are not available for violations of the 

PHRA. 

Liquidated damages are intended to be punitive damages. Potoski v. 

Wilkes University, 2010 U.S. Dist. LEXIS 99731, 8-9 (M.D. Pa. 2010) 

(citing Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 126 

(1985); Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1095 (3d 

Cir. 1995)). “Pennsylvania law clearly prohibits the imposition of 

punitive damages under the PHRA.” Id. at 8 (citing Hoy v. Angelone, 

720 A.2d 745, 751 (Pa. 1998); accord Gagliardo v. Connaught Labs, 

311 F.3d 565, 570 n.3 (3d Cir. 2002)). 

(Doc. 30, pp. 10-11). In response, Plaintiff argues that while Defendants cite to 

Hoy40 and Potoski41 to support their argument that liquidated damages are 

unavailable under the PHRA, courts in this circuit have not reached a conclusion 

about whether liquidated damages are available under the PHRA. (Doc. 31, p. 16). 

Plaintiff points to Doe v. Schuylkill County Courthouse in support of his argument.42

(Doc. 31, pp. 15-16). The Court agrees with the reasoning of Magistrate Judge 

Carlson in the Doe case: 

[T]he Pennsylvania Supreme Court has held that punitive damages are 

not available under the PHRA. See Hoy v. Angelone, 720 A.2d 745, 

751 (1998); Tudor v. TBGHealth, Inc., 2022 WL 1004874, at *4 n.5 

(M.D. Pa. April 2, 2022) (citing Hoy, 720 A.2d at 751; Klein v. 

Weidner, 729 F.3d 280, 288 (3d Cir. 2013) (granting summary 

judgment on the plaintiff's claim for punitive damages under the 

PHRA) . . . . 

40 Hoy v. Angelone, 720 A.2d 745, 751 (Pa. 1998). 

41 Potoski v. Wilkes Univ., No. 3:06-CV-2057, 2010 WL 3811973, at *3 (M.D. 

Pa. Sept. 22, 2010). 

42 Doe v. Schuylkill Cnty. Courthouse, 2022 WL 1424983, at *14. 

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[W]ith respect to the plaintiffs’ claims for liquidated damages, we will 

deny the defendants’ motion to dismiss. Courts in this circuit have 

differed in their conclusions regarding whether liquidated damages are 

permitted under the PHRA. Compare Potoski v. Wilkes Univ., 2010 

WL 3811973 (M.D. Pa. Sept. 22, 2010) (liquidated damages not 

available under the PHRA) with Craig v. Thomas Jefferson University, 

2009 WL 2038147, at *9 (E.D. Pa. July 7, 2009) (no caselaw 

establishing that liquidated damages are unavailable under the PHRA). 

As to this issue, the defendants’ brief is sparse with respect to relevant 

caselaw in this area. Accordingly, given that the issue is not as clearcut as the defendants suggest, we will decline to strike the plaintiffs’ 

claim for liquidated damages at this juncture. See Bellas v. WVHCS 

Retention Co., 2012 WL 3961227, at *7 (M.D. Pa. Sept. 10, 

2012) (declining to dismiss a liquidated damages demand at the motion 

to dismiss stage).43

Like in Doe, Defendants’ briefing here is sparse and conclusory given the lack of 

clarity in this Circuit on this issue.44 The Court will thus decline to strike Plaintiff’s 

claim for liquidated damages as related to the PHRA claim. Defendants may raise 

this issue again in a later stage of the proceedings if they wish. 

43 Doe v. Schuylkill Cnty. Courthouse, 2022 WL 1424983, at *14. See also

Craig v. Thomas Jefferson University, 2009 WL 2038147, at *9 (E.D. Pa. July 7, 

2009) (“[T]he court is not aware of (and defendant does not cite to) any case law 

establishing that liquidated damages are excluded from the “any other legal or 

equitable relief” expressly authorized in the PHRA. Nor is the court aware of any 

case holding that liquidated damages are available under the PHRA. It is, perhaps, 

unlikely that the Pennsylvania legislature intended liquidated damages to be 

available under the PHRA. Still, given the PHRA's expansive remedial language, the 

lack of case law addressing the issue, and the dearth of briefing submitted by the 

parties on the issue—little by defendant-movant and none by plaintiff—the court 

will not, at this juncture, strike plaintiff's demand for liquidated damages as to his 

PHRA claim (Count II). Defendant may, of course, raise the issue again at a later 

stage of the proceedings, at which time the court would expect more robust 

briefing.”). 

44 Doe v. Schuylkill Cnty. Courthouse, 2022 WL 1424983, at *14.

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D. DEFENDANTS’ MOTION TO DISMISS COUNT III – VIOLATION OF 

PWBL WILL BE DENIED

Defendants seek the dismissal of Count III of Plaintiff’s amended complaint 

for failure to state a claim. (Doc. 30, pp. 11-14). Plaintiff argues that the law of the 

case doctrine applies to as this issue was already raised by Defendant UCCD and 

rejected by Judge Brann earlier in this case. (Doc. 31, pp. 17-23). The Court is 

persuaded that the law of the case doctrine applies, but only as to Defendant UCCD. 

The amended complaint and the original complaint, in respect to Count III, 

are substantively the same and close to identical.45 The differences include the 

insertion of a paragraph alleging UCCD is an employer under the PWBL and 

explaining why (Doc. 27, ¶ 61), a paragraph alleging Plaintiff made the reports about 

the improper processing of the permits in good faith (Doc. 27, ¶ 66), and the 

alteration of one paragraph. In the original complaint, Plaintiff alleges: 

50. Mr. Nyerges found out that Mr. Ernst had reported the issue of the 

improper processing of NPDES permits to Lucas Criswell and a Union 

County commissioner. Mr. Nyerges was irritated and upset that Mr. 

Ernst did so. 

45 In Plaintiff’s Motion for Leave to File First Amended Complaint, he 

indicates that a red-lined version of the amended complaint is attached as exhibit 

four. (Doc. 19, ¶ 18). However, a red-lined copy does not appear to be attached. 

Exhibit four is a one page certificate of concurrence. (Doc. 19-4, p. 1). Thus the 

Court has compared the original and amended complaint carefully by hand. 

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(Doc. 1, ¶ 50). In the amended complaint, in the corresponding paragraph,46 Plaintiff 

alleges: 

68. Mr. Nyerges retaliated against Mr. Ernst after finding out that he 

had reported the issue to his superiors. 

(Doc. 27, ¶ 68). In the amended complaint, Plaintiff alleges that “Mr. Nyerges was 

irritated and upset” that he spoke to a “board member and county commissioner” in 

an earlier paragraph. (Doc. 27, ¶ 33). 

 As will be further discussed below, Defendant UCCD asserts almost identical 

substantive arguments to those made in the first motion to dismiss. Our decision 

must be guided by the law of the case principle. 

“The [l]aw of the case rules have developed to maintain consistency and 

avoid reconsideration of matters once decided during the course of a single 

continuing lawsuit.”47 Given that Plaintiff has plead substantively identical facts to 

his original complaint and that Defendant UCCD makes almost identical substantive 

arguments to those made in its first motion to dismiss, the Court believes Judge 

Brann’s prior Opinion (Doc. 13) and Order (Doc. 14) on Defendant UCCD’s first 

46 The paragraph numbering between the original and amended complaints 

varies due to the insertion of additional information both before Count III and in 

Count III as explained above. 

47 United States v. Bogart, No. 4:12-CV-347, 2014 WL 7507260, at *5 (M.D. 

Pa. Dec. 8, 2014) (quoting In re Pharmacy Benefit Managers Antitrust Litig., 582 

F.3d 432, 439 (3d Cir. 2009)) (internal quotation marks omitted), report and 

recommendation adopted, No. 4:12-CV-00347, 2015 WL 136389 (M.D. Pa. Jan. 8, 

2015). 

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motion to dismiss constitutes the law of the case as to Defendant UCCD.48 To find 

otherwise would seem to allow Defendant UCCD to have a reconsideration on a 

matter previously decided during this lawsuit.49 Moreover, to the extent the law of 

the case doctrine did not apply to this issue as to Defendant UCCD, the Court would 

nevertheless still deny Defendant UCCD’s motion to dismiss Count III of the 

amended complaint and would adopt and apply Judge Brann’s reasoning and 

analysis as its own in support of that determination, as discussed below. 

The Court does not believe that the law of the case doctrine applies to 

Defendant Union County. The Third Circuit has explained, 

Between Hamilton I and the District Court's decision, Hamilton also 

amended the complaint to include additional defendants. We agree with 

the Seventh Circuit that “[t]he law of the case doctrine should not be 

read so rigidly that it precludes a party from raising an argument that it 

had no prior opportunity to raise.” United States v. Dexter, 165 F.3d 

1120, 1124 (7th Cir.1999) (quoting Bagola v. Kindt, 131 F.3d 632, 637 

(7th Cir.1997)). The defendants added since Hamilton I lacked the 

opportunity to argue that they had not violated Hamilton's Eighth 

Amendment rights. On remand, they will have the opportunity to do so. 

We recognize, however, that the Hamilton I decision, though “not 

controlling, ... is highly persuasive authority for the issues it 

addressed.” Id.50 

Defendant Union County was added to this case in the amended complaint and has 

thus not yet had a chance to argue Plaintiff failed to state a claim. Therefore the 

48 Defendants make no argument that any of the exceptions to the law of the 

case doctrine apply to this case. 

49 Bogart, 2014 WL 7507260, at *5. 

50 Hamilton v. Leavy, 322 F.3d 776, 787 (3d Cir. 2003). 

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Court does not believe Judge Brann’s prior determination is the law of the case with 

respect to Defendant Union County.51 

i. Report of “Wrongdoing” 

Defendants assert that Plaintiff has failed to plead a legal basis for a PWBL 

claim because Plaintiff has not adequately alleged Mr. Nyerges’s actions were 

‘wrongdoing.’ (Doc. 30, p. 12). Defendants argue Plaintiff “failed to allege any state 

or federal statute or regulation that was violated and whether the alleged violation 

rose to a level greater than that of a merely technical or minimal nature.” (Doc. 30, 

p. 12) (internal quotations and citations omitted). This is substantively the exact 

argument that was made in Defendant UCCD’s motion to dismiss.52 

In deciding Defendant UCCD’s first motion to dismiss, Judge Brann held 

Plaintiff had adequately alleged “wrongdoing” under the PWBL, explaining: 

51 See Clarity Sports Int’l LLC. v. Redland Sports, No. 1:19-CV-00305, 2021 

WL 11108157, at *9 (M.D. Pa. Mar. 4, 2021), report and recommendation adopted,

Clarity Sports Int’l LLC et al v. Redland Sports et al., No. 1:19-CV-00305-YK, Doc. 

226 (M.D. Pa. Apr. 12, 2021).

52 Defendants’ brief in support of this motion to dismiss reads, “In the present 

case, Plaintiff has failed to plead the legal basis for a PWBL claim. Plaintiff has 

alleged that the actions of Mr. Nyerges were considered ‘wrongdoing’ as defined by 

the PWBL. Specifically, Plaintiff alleges that Mr. Nyerges improperly processed 

NPDES permits (ECF 27 ¶ 63). However, Plaintiff failed to allege any state or 

federal statute or regulation that was violated and whether the alleged violation rose 

to a level greater than that of a ‘merely technical or minimal nature.’ (ECF 27 ¶¶ 26-

30).” (Doc. 30, p. 12). 

The argument in the brief in support for the first motion to dismiss by 

Defendant UCCD reads, “In the present case, Plaintiff has failed to plead the legal 

basis for a claim. Plaintiff has alleged that the actions of Mr. Nyerges were 

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[A]t the motion to dismiss phase, plaintiffs are “not required to cite to 

a specific statute, code or regulation in order to state claim under the 

Whistleblower Law.”53 At this early stage, the claim survives so long 

as “the facts alleged . . . suggest that [the] Defendants’ actions were 

violative of a code of conduct or ethics,” or other law or regulation.54

Here, Ernst alleges that certain NPDES permits, which “Nyerges was 

required to sign” prior to approval, “had not been processed correctly 

by a former employee,” and that he informed a Conservation District 

board member and Union County commissioner that “Nyerges was not 

properly processing and completing the NPDES permits.”55 The 

Complaint contains no detail on which Federal or State statute or 

regulation Nyerges and the Conservation District purportedly violated 

by improperly processing and approving the NPDES permits.56 But in 

his Opposition, Ernst asserts that the Pennsylvania Department of 

Environmental Protection “has the statutory authority to ‘take 

appropriate action on all permit applications,’”57 and that consistent 

with 25 Pa. Code §§ 102.31 and 102.41, the Department delegated the 

authority over NPDES permit applications in Union County to the 

Conservation District.58 According to Ernst, he “raised wrongdoing 

considered ‘wrongdoing’ as defined by the PWBL. (ECF 1 ¶¶ 45, 47-50). However, 

Plaintiff failed to allege any state or federal statute or regulation that was violated 

and whether the alleged violation rose to a level greater than that of a ‘merely 

technical or minimal nature.’ Plaintiff claims to know a great deal about the NPDES 

permits that he alleges were improperly processed, but he fails to cite the state or 

federal statute or regulation concerning how to process NPDES permits. (ECF 1 ¶¶ 

20-22, 47). In addition, Plaintiff does not allege how the alleged improper processing 

of the NPDES permits rises to a level above a merely technical or minimal infraction. 

(ECF 1 ¶¶ 20-22, 47).” (Doc. 10, pp. 6-7). 

53 Beaumont v. Allegheny Cnty. Emergency Serv, 2021 WL 1948357, at *9 

(W.D. Pa. Mar. 9, 2021), report and recommendation adopted, 2021 WL 1946659 

(W.D. Pa. May 14, 2021). 

54 Bielewicz v. Penn-Trafford Sch. Dist., No. 10-1176, 2011 WL 1486017, at 

*5 (W.D. Pa. Feb. 9, 2011) (internal quotation marks omitted), report and 

recommendation adopted, 2011 WL 1399839 (W.D. Pa. Apr. 13, 2011). 

55 Doc. 1 ¶¶ 20, 22, 26–27. 

56 See id. ¶¶ 8–62. 

57 Doc. 11 at 6 (quoting 42 Pa. Stat. § 1423(a)). 

58 Id. at 6–7. 

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within this framework.”59

Ernst’s Complaint and Opposition leave many questions unanswered. 

Although Ernst endeavors in his Opposition to outline the legal basis 

for the violations he reported, he does not identify any statutory or 

regulatory provision that “specifically define[s] some prohibited 

conduct” regarding the processing of NPDES permits.60 Moving 

forward, this omission, if left unaddressed, will prove fatal.61 But at this 

stage, the absence of this information does not necessitate dismissal.62

Ernst’s allegations about reporting Nyerges’s approval of improperly 

processed permits “suggest that [Nyerges’s] actions were violative of a 

[Federal or State law or regulation].”63 Accordingly, Ernst adequately 

59 Id. at 7. 

60 Sukenik, 131 A.3d at 556. 

61 Id.; see also Allen v. City of Philadelphia, No. 1253 C.D. 2017, 2019 WL 

1528538, at *5–6 (Pa. Commw. Ct. Apr. 9, 2019) (holding that “the trial court 

committed an error of law by concluding that [the plaintiff’s] report constitute a good 

faith report of waste” because at trial, the plaintiff did not “connect [the alleged 

wrongful conduct he reported] with some type of specific violation that would satisfy 

the definition of ‘wrongdoing’”); Schellbach v. Colonial Intermediate Unit #20, 

2017 WL 4542372, *5 (Pa. Commw. Ct. Oct. 12, 2017) (affirming trial court’s order 

granting summary judgment because the plaintiff “has not identified any statutory 

provision or applicable regulation that specifically prohibits the complained-of 

conduct,” and, therefore, “the trial court properly concluded that [the plaintiff] has 

not alleged the ‘wrongdoing’ necessary to state a claim under the Whistleblower 

Law”). 

62 Compare Beaumont, 2021 WL 1948357 at *9 (denying a motion to dismiss 

a claim under the Whistleblower Law based on the plaintiff’s allegation that she 

suffered a retaliatory firing after reporting that her coworker, a 9-1-1 operator, was 

“sleeping on the job” even though the plaintiff did not “cite to a specific statute, code 

or regulation” that this conduct allegedly violated), with Gray v. Hafer, 651 A.2d 

221, 223–24 (Pa. Commwlth. 1994) (dismissing without prejudice plaintiff’s claim 

under the Whistleblower Law because the plaintiff alleges only that he “filed a goodfaith report . . . that identified and documented instances of wrongdoing and/or 

waste”; the plaintiff did not detail what the alleged “instances of wrongdoing and/or 

waste” were, leaving the court unable to determine whether these instances were 

“violation[s] of [a] statute” the purported wrongdoer was “charged to enforce for the 

benefit of the public” or “unrelated to [any] statutory or regulatory duties”). 

63 Bielewicz, 2011 WL 1486017 at *5. 

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alleges “wrongdoing” under the Whistleblower Law. 

(Doc. 13, pp. 8-10) (footnotes 52-62 in original). As explained above, the Court 

believes Judge Brann’s prior Opinion (Doc. 13) and Order (Doc. 14) on the first 

motion to dismiss constitutes the law of the case as to Defendant UCCD. Thus, 

Defendant UCCD’s motion to dismiss Count III of Plaintiff’s amended complaint 

on the ground Plaintiff failed to plead wrongdoing will be denied.64

As to Defendant Union County, it asserts a substantively identical argument 

as that made by Defendant UCCD in its first motion to dismiss on this ground and 

shares Defendants UCCD’s arguments in this motion to dismiss.65 The Court finds 

64 Again, to the extent the law of the case does not apply to Defendant UCCD, 

as the Court does below in deciding the motion to dismiss as to Defendant Union 

County, the Court would apply Judge Brann’s reasoning and analysis to deny 

Defendant UCCD’s motion to dismiss Count III of the amended complaint on this 

ground. 

65 The Court acknowledges that Plaintiff’s brief in opposition to this motion 

to dismiss does not, aside from the quoting of Judge Brann’s Opinion, assert the 

Pennsylvania Department of Environmental Protection has statutory authority to act 

on permit applications and delegate that authority to Defendant UCCD or outline the 

legal basis for the violations he reported as he asserted in his brief in opposition to 

Defendant UCCD’s first motion to dismiss. However, the Court does not believe this 

changes the result for Defendant Union County. A plaintiff cannot amend their 

complaint and plead new facts in a brief in opposition to a motion to dismiss. Reed 

v. Chambersburg Area Sch. Dist., 951 F. Supp. 2d 706, 720 (M.D. Pa. 2013), Davis 

v. Portfolio Recovery Associates, LLC., No. CV 21-166, 2022 WL 138046, at *4 

(W.D. Pa. Jan. 14, 2022). Further, the fact remains that this claim survives as long 

as Plaintiff’s alleged facts suggest Defendants’ actions violated a code of conduct, 

ethics, or other law or regulation. Bielewicz, 2011 WL 1486017, at *5. The Court 

finds Plaintiff has by alleging the permits were improperly processed, that Mr. 

Nyerges was not properly processing the permits he was required to sign prior to 

approval, that he informed a board member and County commissioner that the 

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Judge Brann’s Opinion to be “highly persuasive authority” on the issue of whether 

Plaintiff adequately alleged wrongdoing.66 The Court agrees with Judge Brann’s 

analysis quoted above and will apply that same reasoning to deny Defendant Union 

County’s motion to dismiss Count III of Plaintiff’s amended complaint on the 

ground Plaintiff failed to plead wrongdoing. 

ii. Causation 

Defendants also assert that Plaintiff has failed to state a PWBL claim because 

he fails to show evidence of a causal connection between the alleged reports he made 

and the alleged act of retaliation. (Doc. 30, pp. 12-14). Defendants make two 

arguments in support of this assertion, one of which is substantively the same as the 

argument made by Defendant UCCD in its first motion to dismiss and the other of 

which was not explicitly made by Defendant UCCD in its first motion to dismiss. 

(Doc. 30, pp. 12-14; Doc. 10, pp. 7-8). 

Defendants’ first argument was not explicitly or directly articulated in 

Defendant UCCD’s first motion to dismiss. Defendants argue that Plaintiff “makes 

only a bald assertion that Mr. Nyerges was aware” that Plaintiff had spoken with the 

board member and commissioner. (Doc. 30, p. 12). Defendants assert that Plaintiff 

permits were not being properly processed by Mr. Nyerges, and that Mr. Nyerges 

wanted to report the former employee to the Department of Environmental 

Protection for their improper processing of the permits. (Doc. 27, ¶¶ 25-28, 30-32). 

66 Hamilton, 322 F.3d at 787. 

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does not make any allegations indicating Mr. Nyerges was aware of those 

conversations and that “Plaintiff’s allegations simply provide a formulaic recitation 

of the elements of PWBL cause of the action.” (Doc. 30, p. 13). Defendants cite to 

Plaintiff’s amended complaint, alleging he “simply states that ‘Mr. Nyerges 

retaliated against Mr. Ernst after finding out that he had reported the issue to his 

superiors.’” Id. 

Defendants then correctly note that under Twombly, a plaintiff must allege 

“more than labels and conclusions, and a formulaic recitation of the elements of a 

cause of action . . . .”67 Defendants would have the Court conclude that because there 

are no allegations sufficiently supporting Mr. Nyerges awareness of the alleged 

report of wrongdoing, there can be no causal connection between the reports and 

Plaintiff’s termination. (Doc. 30, p. 13). 

However, as discussed above in Section III(D), “[t]o establish the requisite 

causal connection a plaintiff usually must prove either (1) an unusually suggestive 

temporal proximity between the protected activity and the allegedly retaliatory 

action, or (2) a pattern of antagonism coupled with timing.”68 Because a plaintiff can 

establish causation through temporal proximity coupled with a pattern of 

67 Twombly, 550 U.S. at 555. 

68 Lauren W. ex rel. Jean W., 480 F.3d at 267. 

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antagonism, the Court rejects Defendant’s argument on this point. As Judge Brann 

found, 

The Third Circuit instructs that “[t]o establish the requisite causal 

connection a plaintiff usually must prove either (1) an unusually 

suggestive temporal proximity between the protected activity and the 

allegedly retaliatory action, or (2) a pattern of antagonism coupled with 

timing.”69 That said, causation “can be inferred” by “other evidence 

gleaned from the record as a whole”; plaintiffs are “not limited to 

timing and demonstrative proof, such as actual antagonistic conduct or 

animus.”70

Here, Ernst alleges that he reported Nyerges’s failure to properly 

process and complete the NPDES permits “[o]nly a few days before 

[his] March 11, 2021, meeting” with Nyerges, and then Nyerges fired 

him on April 8, 2021— approximately four weeks later.71 The temporal 

proximity of these actions may well be insufficient, by itself, to 

establish causation.72 But Ernst does not predicate his argument for 

69 Id. 70 Farrell v. Planters Lifesavers Co., 206 F.3d 271, 281 (3d Cir. 2000); see 

also Daniels v. School District of Phila., 776 F.3d 181, 196 (3d Cir. 2015) (holding 

that “a plaintiff may rely on the temporal proximity between [the protected activity 

and employer’s adverse action] if ‘unusually suggestive,’” but “[i]n the absence of 

such a close temporal proximity, [courts] consider the circumstances as a whole, 

including any intervening antagonism by the employer, inconsistencies in the 

reasons the employer gives for its adverse action, and any other evidence suggesting 

that the employer had a retaliatory animus when taking the adverse action”). 

71 Doc. 1 ¶¶ 26–28. 

72 See Williams v. Phila. Housing Auth. Police Dep’t, 380 F.3d 751, 760 (3d 

Cir. 2004) (explaining that although “two days between the protected activity 

engaged in and the alleged retaliation” as well as “comments made by a supervisor 

suggesting retaliation ten days before termination, along with other evidence of 

retaliation,” have been held sufficient to “support a causal connection,” two months 

between the protected activity and adverse action are not “so close as to be unduly 

suggestive”) (citing Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989); 

Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 189 (3d Cir. 2003)), 

superseded by statute on other grounds as stated in Robinson v. First State 

Community Action Agency, 920 F.3d 182, 187–89 & n.30 (3d Cir. 2019). 

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causation solely on temporal proximity.73 Indeed, as Ernst asserts, the 

Complaint includes a collection of additional allegations relevant to this 

inquiry: 

 When Ernst informed Nyerges that the permits, which 

Nyerges was required to sign, were not processed properly, 

Nyerges blamed Ernst and the Conservation District 

employee who processed the permits and wanted to retaliate 

against the other employee by reporting him to the 

Department of Environmental Protection.74 

 Nyerges was “upset and irritated” when he learned that Ernst 

reported the improper permit processing to a Conservation 

District board member and County commissioner.75 

 Nyerges issued Ernst “pre-textual write ups and hostile 

treatment”: On March 30, 2021, Nyerges followed Ernst 

around the office demanding to meet with him, and, when 

Ernst refused, physically blocked Ernst’s path and then 

challenged Ernst to “push [him] and see what happens.”76

Taken together, the relatively close temporal proximity and the 

additional allegations of antagonism and animus “raise a reasonable 

expectation that discovery will reveal evidence” of a causal link 

between Ernst’s report of wrongdoing and termination.77

(Doc. 13, pp. 11-12). 

73 Doc. 11 at 11 (“Ernst has timing plus other supporting facts.”). 

74 Doc. 1 ¶¶ 20–25. 

75 Id. ¶ 28. 

76 Id. ¶¶ 52–56. 

77 Connelly, 809 F.3d at 789; see also Farrell, 206 F.3d at 280–86 (holding 

that timing of four weeks between protected conduct and retaliation coupled with 

evidence of animus and inconsistencies in the employer’s stated rationale for the 

plaintiff’s termination was “sufficient to establish [a] causal link”). 

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The Court agrees with Judge Brann and applies his analysis to this motion to 

dismiss. As Plaintiff has adequately plead a causal connection in a fashion approved 

of by the Third Circuit, the Court rejects Defendants argument that because there are 

not sufficient allegations to support Mr. Nyerges was aware of the reports of 

wrongdoing there can be no causal connection between the reports and Plaintiff’s 

termination. (Doc. 30, pp. 12-13). The Court will thus deny Defendants motion to 

dismiss Count III of Plaintiff’s amended complaint on this ground. 

Defendants’ second argument regarding causal connection is that “Plaintiff 

alleges facts and provides the termination letter that support that he was terminated 

for insubordination which is an additional reason why there is no causal connection 

between the alleged reports he made and his termination.” (Doc. 30, p. 14). This 

argument is substantively identical to Defendant UCCD’s argument in its first 

motion to dismiss.78 

78 Defendants argument in their brief in support to this motion to dismiss 

reads, “In addition, Plaintiff’s allegations specifically indicate that he was 

insubordinate to his supervisor, Mr. Nyerges. (ECF 27 ¶ 70). Plaintiff alleges Mr. 

Nyerges requested a meeting with Plaintiff but that Plaintiff refused to meet with 

Mr. Nyerges alone. (ECF 27 ¶ 70). Plaintiff further alleges that he was given 

authority by the Chief Clerk to refuse to meet with a department head alone if he did 

not feel safe. (ECF 27 ¶ 70). Rather than request time to ask for another individual 

to attend the meeting with him, Plaintiff instead ‘told Mr. Nyerges that he was not 

going to meet with him at that time.’ (ECF 27 ¶ 70). Further, Plaintiff does not allege 

that he attempted to set a future time and date to meet with Mr. Nyerges pursuant to 

his request. Plaintiff’s Exhibit B is a copy of his termination letter that specifically 

states that he was being terminated for insubordination and provides a summary of 

the acts for which he was terminated. (ECF 27-2, Exhibit B). Ultimately, Plaintiff 

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In deciding Defendant UCCD’s first motion to dismiss, Judge Brann rejected 

this argument, explaining: 

Separately, the Conservation District argues the Complaint and 

attached termination letter show that Ernst “was insubordinate with 

respect to [Nyerges’s] requests for a meeting” and “terminated for [his] 

insubordination.”79 But on this, the Conservation District jumps the 

alleges facts and provides the termination letter that support that he was terminated 

for insubordination which is an additional reason why there is no causal connection 

between the alleged report he made and his termination. Plaintiff fails to allege 

anything other than unsupported conclusions and unwanted inferences which the 

Court does not have to accept with respect to the alleged wrongdoing and any causal 

connection between the Plaintiff’s alleged report and the alleged act of retaliation.” 

(Doc. 30, pp. 13-14) (footnote omitted). 

In its brief in support of its first motion to dismiss, Defendant UCCD argued, 

“Further, Plaintiff failed to show evidence of a causal connection between the report 

he made and the alleged act of retaliation. In fact, Plaintiff’s allegations specifically 

indicate that he was insubordinate with respect to Mr. Nyerges’s requests for a 

meeting. (ECF 1 ¶ 53). Plaintiff alleges Mr. Nyerges requested a meeting with 

Plaintiff but that Plaintiff refused to meet with Mr. Nyerges alone. (ECF 1 ¶ 53). 

Plaintiff further alleges that he was given authority by the Chief Clerk to refuse to 

meet with a department head alone if he did not feel safe.1 (ECF 1 ¶ 53). Rather than 

request time to ask for another individual to attend the meeting with him, Plaintiff 

instead ‘told Mr. Nyerges that he was not going to meet with him at that time.’” 

(ECF 1 ¶ 53). Further, Plaintiff does not allege that he attempted to set a future time 

and date to meet with Mr. Nyerges pursuant to his request. Plaintiff, in the following 

paragraphs, alleges the insubordinate behavior of Plaintiff that continued after his 

initial act of insubordination. (ECF 1 ¶¶ 54-58). Plaintiff’s Exhibit A is a copy of his 

termination letter that specifically states that he was being terminated for 

insubordination and provides a summary of the acts for which he was terminated. 

(ECF 1-1, Exhibit A). Ultimately, Plaintiff alleges facts that support that he was 

terminated for insubordination so that there is no causal connection between the 

report he made and his termination. Plaintiff fails to allege anything other than 

unsupported conclusions and unwanted inferences which the Court does not have to 

accept with respect to the alleged wrongdoing and any causal connection between 

the report made and the alleged act of retaliation.” (Doc. 10, pp. 7-8) (footnote 

omitted). 

79 Doc. 10 at 7. 

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gun. As explained, questions regarding legitimate, non-discriminatory 

rationales versus pretext—that is, the McDonnell Douglas burden 

shifting analysis—are reserved for summary judgment.80 After the 

parties develop the factual record through discovery, the Conservation 

District will have the opportunity to offer a legitimate, nondiscriminatory justification for firing Ernst. But that’s not the question 

here. At the pleadings stage, Ernst needs only to allege “enough facts 

to raise a reasonable expectation that discovery will reveal evidence of 

the necessary elements.”81 Ernst has met this burden. 

(Doc. 10, pp. 12-13). Again, the Court believes Judge Brann’s prior Opinion (Doc. 

13) and Order (Doc. 14) on the first motion to dismiss constitutes the law of the case 

as to Defendant UCCD. The Court therefore will deny Defendant UCCD’s motion 

to dismiss Count III of Plaintiff’s amended complaint on this ground.82

As to Defendant Union County, it asserts a substantively identical argument 

as that made by Defendant UCCD in its first motion to dismiss on this ground and 

shares Defendants UCCD’s arguments in this motion to dismiss. The Court finds 

Judge Brann’s Opinion to be “highly persuasive authority” on the issue of whether 

Plaintiff adequately plead a causal connection.83 The Court agrees with Judge 

Brann’s analysis quoted above and will apply that same reasoning to deny Defendant 

80 Connelly, 809 F.3d at 789. 

81 Id. (internal quotation marks omitted). 

82 Again, to the extent the law of the case did not apply to Defendant UCCD, 

as the Court does below in deciding the motion to dismiss as to Defendant Union 

County, the Court would apply Judge Brann’s reasoning and analysis to deny 

Defendant UCCD’s motion to dismiss Count III of the amended complaint on this 

ground. 

83 Hamilton, 322 F.3d at 787. 

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Union County’s motion to dismiss Count III of Plaintiff’s amended complaint on 

this ground. 

 In sum, the Court will deny Defendants’ motion to dismiss Count III of 

Plaintiff’s amended complaint. 

V. CONCLUSION 

Based on the foregoing, Defendants’ Motion to Dismiss (Doc. 29) will be 

GRANTED in part and DENIED in part as follows: 

(1) Defendants’ motion to dismiss (Doc. 29) will be GRANTED insofar as it 

seeks to have Plaintiff’s omnibus prayer for relief for compensatory 

damages with respect to the ADEA be stricken and Plaintiff’s prayer for 

compensatory damages under the ADEA will be STRICKEN. 

(2) Defendants’ motion to dismiss (Doc. 29) will be DENIED insofar as it 

seeks to have Plaintiff’s omnibus prayer for relief for liquidated damages 

with respect to the ADEA stricken. 

(3) Defendants’ motion to dismiss (Doc. 29) will be DENIED insofar as it 

seeks to have Plaintiff’s omnibus prayer for relief for liquidated damages 

with respect to the PHRA stricken. 

(4) Defendants’ motion to dismiss (Doc. 29) will be DENIED insofar as it 

seeks dismissal of Count III of Plaintiff’s amended complaint. 

(5) An appropriate order will be issued. 

Date: September 26, 2023 BY THE COURT 

 s/William I. Arbuckle 

 William I. Arbuckle 

 U.S. Magistrate Judge 

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