IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

JAMES McQUILKIN,

 Plaintiff,

v.

DELAWARE RIVER PORT AUTHORITY,

 Defendant.

HON. JEROME B. SIMANDLE

Civil No. 11-652 (JBS/AMD)

OPINION

APPEARANCES:

Stephen G. Console, Esq.

Andrew L. Mackerer, Esq.

CONSOLE LAW OFFICES LLC

1525 Locust Street

9th Floor

Philadelphia, PA 19102

Attorneys for Plaintiff James McQuilkin

William F. Cook, Esq.

William M. Tambussi, Esq.

BROWN & CONNERY

360 Haddon Avenue

Westmont, NJ 08108

Attorneys for Defendant Delaware River Port Authority

SIMANDLE, District Judge:

I. INTRODUCTION

 This matter is presently before the Court on the Defendant

Delaware River Port Authority's ("Defendant") motion to dismiss

Plaintiff James McQuilkin's ("Plaintiff") complaint for failure

to state a claim. [Docket Item 8.] The instant action alleges

discrimination in violation of the Age Discrimination in

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Employment Act. The Defendant argues that the complaint should

be dismissed because a portion of Plaintiff's claim is time

barred; the Plaintiff fails to state a claim for discrimination

and retaliation; and the Plaintiff seeks compensation for damages

which are not cognizable under the Age Discrimination in

Employment Act. 

The Plaintiff has filed opposition. The Plaintiff maintains

that its complaint is timely, sufficiently states a claim for

both retaliation and discrimination, and seeks damages which are

cognizable under the Age Discrimination in Employment Act.

For the reasons stated below, the Court will grant in part

and deny in part Defendant's motion to dismiss. 

II. BACKGROUND

The instant action alleges that the Defendant violated the

Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq.

("ADEA"), when the Defendant lowered the job grade level of the

Grants Specialist position after the Plaintiff was offered and

accepted the position. 

The complaint alleges that Plaintiff was hired by the

Defendant on or about July 1987 as a toll collector. (Comp. ¶

16.) On or about 1997, the Plaintiff began attending law school

and was reimbursed by the Defendant for his first year of

tuition. (Comp. ¶¶ 17-18.) However, the Defendant subsequently

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told the Plaintiff that he would no longer receive tuition

reimbursement despite the continuing tuition reimbursement given

to younger employees. (Comp. ¶ 18.) From 2001 to 2004, the

Plaintiff made unsuccessful requests to the Defendant for

reimbursement of his tuition expense. (Comp. ¶ 20.) 

In 2004, the Plaintiff went to the EEOC office in

Philadelphia, PA, and filled on an EEOC Intake Questionnaire

complaining that the Defendant had discriminated against him on

the basis of his age in denying him tuition reimbursement. (Comp.

¶ 23.) The Plaintiff informed the Defendant's Chief of Human

Resources and Equal Employment Officer, Toni Brown, that he had

filled out the EEOC Intake Questionnaire. (Comp. ¶ 24.) Shortly

after his meeting with Ms. Brown, the Defendant approved

Plaintiff's request for tuition reimbursement and paid the

Plaintiff for his tuition expense. (Comp. ¶ 25.)

In January 2005, the Plaintiff transferred to the government

relations department to work as a Grants Specialist. (Comp. ¶

26.) When the Plaintiff applied for the position, he was

informed by the head of the department that a Grants Specialist

was a grade level 11. (Comp. ¶ 26.) The application for the

Grants Specialist position also indicated the position was a

grade level 11. (Comp. ¶ 26.) 

After being offered the position as Grants Specialist, the

Plaintiff learned that the Defendant had classified the position

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a grade level 8 which is compensated at a lower rate than grade

level 11 positions. (Comp. ¶ 26.) The Plaintiff talked to his

supervisor, Linda Hayes, who agreed that the Grants Specialist

position should be compensated at grade level 11. (Comp. ¶ 28.) 

After several requests by Ms. Hayes, in June 2007, the

Defendant hired the Hay Group, an independent Human Resources

consultant, to analyze the proper grade for Plaintiff's position. 

(Comp. ¶ 29.) The Hay Group recommended the position of Grants

Specialist be classified as grade level 10. (Comp. ¶ 29.)

From January 2009 to September 2009, Ms. Hayes' supervisor,

Mr. Shanahan, met with Ms. Brown, the Chief of Human Resources,

about increasing Plaintiff's job grade level to at least grade

level 10 which was recommended by the Hay Group. (Comp. ¶¶ 31-

32.) The Defendant continued to refuse to raise Plaintiff's

grade level beyond level 8 and purportedly stated that education

was the reason. (Comp. ¶ 34.)

In January 2010, the Plaintiff retired from the Defendant. 

(Comp. ¶ 36.) At the time the Plaintiff retired, he was still

being compensated at a grade level 8 for his position as a Grants

Specialist. (Comp. ¶ 36.)

The Plaintiff then filed the instant action on February 4,

2011. [Docket Item 1.] The Plaintiff was then 63 years old.

(Comp. ¶ 15.) The Plaintiff alleges the Defendant's refusal to

increase the grade level of the Grants Specialist position

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violated the ADEA. First, the Plaintiff alleges that Defendant's

actions were retaliatory and in response to Plaintiff's

complaints of age discrimination with regard to his tuition

reimbursement. (Comp. ¶ 27.) The Plaintiff further alleges that

Plaintiff's age was a motivating and/or determinative factor in

Defendant's discriminatory treatment of Plaintiff. (Comp. ¶ 39.) 

The Plaintiff maintains that the Defendant's discriminatory

failure to reclassify Plaintiff's position at the appropriate

grade level adversely affected Plaintiff's salary since 2005 and

Plaintiff's pension benefits. (Comp. ¶¶ 37-38.)

The Plaintiff alleges he suffered a loss of earnings, loss

of benefits, pain and suffering, embarrassment, humiliation, loss

of self-esteem, mental anguish and loss of life's pleasures as a

result of the Defendant's conduct. (Comp. ¶ 42.) The Plaintiff

also seeks liquidated damages against the Defendant as he alleges

the Defendant's discriminatory and retaliatory acts were willful

and intentional. (Comp. ¶ 43.) 

The Defendant then filed the instant motion to dismiss. The

Defendant argues that the Complaint should be dismissed on

several grounds. First, the Defendant maintains that Plaintiff's

claim as to pay received before December 27, 2008 is time-bared

under the ADEA. Second, the Defendant argues that the Plaintiff

has failed to state claim for retaliation or discrimination

because there was no adverse employment action, there are no

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facts pled which show a causal nexus between the tuition

reimbursement and the salary for his position as a Grants

Specialist and the complaint does not identify any person

sufficiently younger than the Plaintiff in a similar position who

was not subject to the alleged adverse action. Finally, the

Defendant argues that courts have consistently held that damages

for pain and suffering, emotional distress or punitive damages

are not cognizable under the ADEA and Plaintiff's claims for

these damages should be dismissed.

The Plaintiff opposes the motion to dismiss. First, the

Plaintiff argues that his complaint is timely and that whether

the Plaintiff can seek a claim for pay received before December

27, 2008 is a damages issue that is not properly considered at

this early stage of the litigation. Second, the Plaintiff

contends that he has stated a claim for both discrimination and

retaliation under the ADEA. Finally, the Plaintiff concedes that

he is not entitled to a recovery for emotional distress or

punitive damages. However, the Plaintiff argues that his

allegation for liquidated damages is appropriate and should not

be dismissed.

III. DISCUSSION

A. Standard of Review

The sufficiency of pleadings in federal court is governed by

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Rule 8, Fed. R. Civ. P., among others, a rule that is designed to

"give the defendant fair notice of what the . . . claim is and

the grounds upon which it rests." Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007). The rule provides that "[a] pleading

that states a claim for relief must contain . . . a short and

plain statement of the claim showing that the pleader is entitled

to relief." Fed. R. Civ. P. 8(a)(2). This is not a high bar. 

As the Third Circuit Court of Appeals has affirmed, "the Federal

Rules do not require a claimant to set out in detail the facts

upon which he bases his claim. Rather, the complaint must only

give the defendant fair notice of what the plaintiff's claim is

and the grounds upon which it rests." Thomas v. Independence

Tp., 463 F.3d 285, 295 (3d Cir. 2006) (internal quotations and

citations omitted). 

Some facts, however, are necessary. In order to give

Defendant fair notice, and to permit early dismissal if the

complained-of conduct is not unlawful, a complaint must allege,

in more than legal boilerplate, those facts about the conduct of

each defendant giving rise to liability. Twombly, 550 U.S. at

555; Fed. R. Civ. P. 11(b)(3). These factual allegations must

present a plausible basis for relief (i.e. something more than

the mere possibility of legal misconduct). See Ashcroft v.

Iqbal, 129 S.Ct. 1937, 1951 (2009). 

In its review of Defendants’ motion to dismiss pursuant to

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Rule 12(b)(6), Fed. R. Civ. P., the Court must "accept all

factual allegations as true and construe the complaint in the

light most favorable to the plaintiff." Phillips v. County of

Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (quoting Pinker v.

Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). And

on this procedural posture, "courts generally consider only the

allegations in the complaint, exhibits attached to the complaint,

matters of public record, and documents that form the basis of a

claim." Lum v. Bank of America, 361 F.3d 217, 222 n.3 (3d Cir.

2004) (citation omitted). 

B. Is Plaintiff's Complaint Time Barred?

The Defendant argues that the Plaintiff's claim alleging age

discrimination is time-barred as to pay received before December

27, 2008. The Defendant does not dispute that Plaintiff's claim

is timely filed with regard to pay received on or after December

27, 2008 and therefore, the claim is not barred by a statute of

limitations problem. However, in this case, the Defendant

maintains that to pursue an employment discrimination claim under

the ADEA, an employee must first file a charge with the EEOC

within 300 days of an adverse employment action or of

notification of such an action. The Plaintiff did not file a

charge here until October 23, 2009. Consequently, the Defendant

urges this court to hold that the Plaintiff may not seek damages

for allegedly discriminatory compensation between January 2005

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and December 27, 2008 (300 days prior to October 23, 2009).

The Defendant's motion is premature. In the Third Circuit,

a statute of limitations defense may only be raised in a Rule

12(b)(6) motion if "the time alleged in the statement of a claim

shows that the cause of action has not been brought within the

statute of limitations." Robinson v. Johnson, 313 F.3d 128, 135

(3d Cir. 2002) (citing Hanna v. U.S. Veterans' Admin. Hosp., 514

F.2d 1092, 1094 (3d Cir. 1975). "When reviewing a Rule 12(b)(6)

dismissal on statute of limitations grounds, we must determine

whether the time alleged in the statement of a claim shows that

the cause of action has not been brought within the statute of

limitations. " Cito v. Bridgewater Township Police Dep't., 892

F.2d 23, 25 (3d Cir. 1989). Otherwise, a limitations defense is

considered an affirmative defense that should be raised in the

pleadings. Robinson, 313 F.3d at 135.

In this case, the Defendant does not dispute that the

Plaintiff's cause of action is timely. Rather, the Defendant's

argument challenges the extent of the Defendant's liability. 

This argument is more properly brought as an affirmative defense

in the Defendant's answer and is premature in a motion to

dismiss.

Therefore, the Court will deny the Defendant's motion to

dismiss on this ground as this limitations defense should be

raised in the pleadings.

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C. Does the Plaintiff's Complaint Sufficiently State a Claim

Upon Which Relief Can Be Granted?

The Plaintiff's complaint alleges retaliation and

discrimination in violation of the ADEA. The court will address

both claims separately.

1. Retaliation

A plaintiff must allege three elements in order to establish

a prima facie case of retaliation in violation of the ADEA. 

These elements are: (1) the employee engaged in a protected

activity; (2) the employee was subjected to an adverse employment

action; (3) there is a causal connection between the protected

activity and the adverse employment action. Fasold v. Justice,

409 F.3d 178, 188-89 (3d Cir. 2005). 

In this case, the first element is properly pled. The

Plaintiff engaged in protected activity when he filled out an

EEOC Questionnaire challenging the Defendant's refusal to

reimburse his tuition expenses when the Defendant had reimbursed

the tuition expenses of younger employees. (Compl. ¶ 23). The

anti-retaliation provision of the ADEA provides:

It shall be unlawful for an employer to discriminate

against any of his employees . . . because such

individual . . . has opposed any practice made unlawful

by this section, or because such individual . . . has

made a charge, testified, assisted, or participated in

any manner in an investigation, proceeding, or litigation

under this chapter.

29 U.S.C. § 623(d)(emphasis added). 

The Plaintiff clearly participated in protected activity by

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filling out the EEOC charge, seeking assistance from the EEOC and

opposing the Defendant's denial of tuition reimbursement to older

employees. Filing a complaint with the EEOC is protected

activity. Fasold v. Justice, 409 F.3d at 188. The Defendant's

argument that the Plaintiff did not engage in protected activity

because he did not actually file the EEOC charge is without merit

and disregards the broad protection the ADEA provides in

preventing employers from interfering with an employee's efforts

to obtain statutory protections. McInnis v. Town of Weston, 458

F. Supp. 2d 7, 14 (D. Conn. 2006). Indeed, the protections

against retaliation are sufficiently broad that it would even

include the employee's "protesting what the employee believes in

good faith to be a discriminatory practice," whether or not a

formal complaint was filed. Aman v. Cort Furniture, 85 F.3d

1074, 1085 (3d Cir. 1989).

In addressing the second element, the Plaintiff has also

stated sufficient facts to allege an adverse employment action. 

The complaint avers that the Plaintiff applied for the position

of Grants Specialist and was told by the Department Head during

the application process that this position was to be compensated

at grade level 11. (Compl. ¶ 26). According to the complaint,

all the paper work filled out by the Plaintiff during the

application process indicated the position was compensated at

grade level 11. (Compl. ¶ 26). The complaint then alleges the

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Defendant downgraded the position to grade level 8 only after the

Plaintiff was hired. (Compl. ¶ 26). As a result, the Plaintiff

duly alleges he received less compensation than he was led to

believe during the application process. (Compl. ¶ 26).

These factual allegations are sufficient to meet the

pleading requirements of the adverse employment action element of

a retaliation claim. The Defendant's argument that there was no

adverse employment action because the Plaintiff was promoted by

being hired as a Grants Specialist and his salary was not

decreased by taking the position is unpersuasive. The

Plaintiff's complaint sufficiently alleges that the Plaintiff was

paid less than the position was marketed as and this pay decrease

was made after the Plaintiff was selected, as if aimed at him. 

This is sufficient to state a claim for an adverse employment

action.

The Defendant's reliance on Guillen-Gonzalex v. J.C. Penney

Corp., 731 F.Supp. 2d 219 (D.P.R. 2010), is misplaced. In this

case, the court granted summary judgment and dismissed a

plaintiff's ADEA retaliation claim for failure to produce

sufficient evidence showing an adverse employment action. This

is distinguishable from the instant case where the Plaintiff has

sufficiently pled an adverse employment action and the Defendant

has filed merely a motion to dismiss, not a motion for summary

judgment. The Defendant's argument is premature at this early

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stage of the litigation.

With regard to the third element, the Plaintiff has

sufficiently stated facts to allege a causal connection between

the protected activity and the adverse employment action. The

Plaintiff alleges in his complaint that the Defendant lowered the

grade level of the Grants Specialist Position from grade level 11

to grade level 8 in retaliation for Plaintiff's complaints of age

discrimination. (Comp. ¶ 27.) The Plaintiff supports this

conclusion with the following factual allegations: (1) The

Plaintiff filled out the EEOC Questionnaire in 2004 and told Ms.

Brown, the Defendant's Chief of Human Resources and Equal

Employment Officers that he had been to the EEOC and filled out

an intake form (Comp. ¶¶ 23-24); (2) After his conversation with

Ms. Brown, the Plaintiff's request for tuition reimbursement was

approved by the Defendant and the Plaintiff received his

reimbursement (Comp. ¶ 25); (3) A few months later, in January

2005, the Plaintiff was hired as a Grants Specialist and

immediately after he was hired, the Plaintiff learned the

position was lowered from a grade level 8 to a grade level 11

(Comp. ¶ 26); (4) Education was given as the reason for the

Grants Specialist position downgrade (Comp. ¶ 34).

The Plaintiff maintains that these factual allegations

support a temporal proximity between the protected activity and

the adverse employment decision which is sufficient to raise an

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inference of retaliation. 

Temporal proximity can be sufficient in itself to create an

inference of a causal connection for the purposes of a prima

facie case of retaliation. Farrell v. Planters Lifesavers Co.,

206 F.3d 271, 279 (3d Cir. 2000). However, when the temporal

relationship is not unusually suggestive, temporal proximity

alone is insufficient to establish the necessary causal

connection. Id. at 280. When assessing temporal proximity and

causation, a court must take into account the procedural

circumstance of the case and each case "must be considered with a

careful eye to the specific facts and circumstances encountered."

Id. at 279 n.5. Further, a plaintiff may establish causation for

purposes of his prima facie case through evidence of temporal

proximity and other evidence such as inconsistent explanations

given by the employer, inconsistent testimony, or a pattern of

antagonism. Id. at 281. Importantly, there are no "exclusive

ways to show causation, as the proffered evidence, looked at as a

whole, may suffice to raise the inference." Id. at 280.

The Complaint, when read as a whole, states a plausible

claim for retaliation. The Defendant reimbursed the Plaintiff

for a sizable tuition bill only after the Plaintiff threatened to

bring suit for age discrimination. Shortly thereafter, the

Defendant hired the Plaintiff for a new position. However,

instead of paying the Plaintiff the announced salary for the

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position, the Defendant substantially diminished the Plaintiff's

salary (and conceivably used the excess money to offset its own

costs in reimbursing the Plaintiff's tuition). These facts, when

viewed as a whole, present a plausible basis for inferring

causation and are sufficient to meet the requirements of Rule 8. 

In summary, the Plaintiff's complaint provides sufficient

factual allegations to support Plaintiff's prima facie case for

retaliation; namely, that the Plaintiff engaged in protected

activity, the Plaintiff suffered an adverse employment action,

and a causal connection existed between the protected activity

and the adverse employment action. 

Therefore, the Court will deny the Defendant's Motion to

Dismiss with regard to the Plaintiff's retaliation claim.

2. Discrimination

The Plaintiff's complaint also attempts to state a cause of

action for age discrimination under the ADEA. In order to prove

a claim for age discrimination, a plaintiff must show that his

age was a determinative factor in defendant's adverse employment

decision by the following four elements: (1) he is a member of

the protected class; (2) he is qualified for the position in

question; (3) he suffered from an adverse employment decision;

and (4) the unfavorable action gives rise to an inference of age

discrimination. See Fasold v. Justice, 409 F.3d at 184 and

Barnabas v. Bd. of Trs. of the Univ. of the Dist. of Columbia,

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686 F. Supp. 2d 95, 101 (D.D.C. 2010). Moreover, as the Supreme

Court has recently stated, "to establish a disparate-treatment

claim under the plain language of the ADEA, . . . a plaintiff

must prove that age was the 'but-for' cause of the employer's

adverse decision." Gross v. FBL Financial Services, Inc., 129

S.Ct. 2343, 2350 (2009). 

Here, the Plaintiff's complaint fails to allege facts

sufficient to meet the fourth element of his prima facie case. 

The complaint is devoid of any reference to younger employees in

the Grants Specialist position or in comparable positions that

did not have their pay decreased. There are no facts alleged

which give rise to an inference that the Grants Specialist

position was downgraded from level 11 to level 8 compensation due

to the Plaintiff's age. The Complaint also is devoid of any

allegation that the Grants Specialist title was actually designed

as a surrogate position for older workers so that the downgrade

had a significantly disproportionate impact on persons 40 years

of age or older as would be required if Plaintiff seeks to assert

an ADEA claim for disparate impact. See Smith v. City of

Jackson, 544 U.S. 228 (2005). Consequently, in regards to the

ADEA discrimination claim, the Plaintiff's complaint fails to

allege facts which support a plausible basis for relief.

Therefore, the Defendant's motion to dismiss will be granted

as to the Plaintiff's discrimination claim alleging a violation

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of the ADEA.

D. What Damages are Permitted under the ADEA?

Lastly, the Defendant moves to dismiss the portion of the

Plaintiff's complaint that seeks damages for pain and suffering,

embarrassment, humiliation, loss of self-esteem, mental anguish,

and loss of life's pleasures. The Defendant argues that these

damages are not permissible under the ADEA. The Court agrees.

A claimant under the ADEA cannot seek compensatory damages

for non-pecuniary losses such as pain and suffering or emotional

distress. Rogers v. Exxon Research & Eng'g Co., 550 F.2d 834,

836 (3d Cir. 1977). See also C.I.R. v. Schleier, 515 U.S. 323,

326 (1995) ("the ADEA does not permit a separate recovery of

compensatory damages for pain and suffering or emotional

distress"). 

Here, the Plaintiff seeks damages for several non-pecuniary

losses including pain and suffering, embarrassment, humiliation,

loss of self-esteem, mental anguish, and loss of life's

pleasures. The ADEA does not permit recovery for these damages. 

Therefore, the Defendant's motion to dismiss with regard to these

damages will be granted.

The Defendant also moves to dismiss the portion of

Plaintiff's complaint seeking punitive damages. The Plaintiff

opposes this by arguing that he seeks liquidated damages, not

punitive damages, which are permissible under the ADEA. 

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The Third Circuit has previously held that punitive damages

are not available under the ADEA. Rogers v. Exxon Research &

Eng'g Co., 550 F.2d at 842, overruled on other grounds by

Holliday v. Ketchum, MacLeod & Grove, Inc., 584 F.2d 1221 (3d

Cir. 1978)(en banc). Several circuit courts have also addressed

the issue and denied claims for punitive damages. See Bruno v.

Western Elec. Co., 829 F.2d 957, 966-67 (10th Cir.

1987)(summarizing cases from other circuits). Many district

courts within the Third Circuit have denied claims for punitive

damages under the ADEA as well. See Kelly v. United States Steel

Corp., No. 11-193, 2011 U.S. Dist. LEXIS 91123 (W.D. Pa. August

16, 2011); Lukens v. Whitemarsh Valley Country Club, No. 02-1279,

2003 U.S. Dist. LEXIS 20188 (E.D. Pa. Nov. 5, 2003); McGehean v.

AF&L Ins. Co., No. 09-1792, 2009 U.S. Dist. LEXIS 92194 (E.D. Pa.

Oct. 2, 2009). 

However, this does not prevent a claimant from recovering

liquidated damages under the ADEA because liquidated damages are

specifically prescribed by the statute for willful violations. 

See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 125

(1985) and 29 U.S.C. § 626(b)(providing for double the amount of

damages for lost wages and benefits if employer willfully

violated the law). 

In this case, the Plaintiff's complaint specifically

requests relief in the form of "liquidated damages to Plaintiff

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in accordance with the ADEA." (Comp. Relief §(d)). The

Complaint alleges the Defendant's violation of the ADEA was

willful and thus warrants the imposition of liquidated damages. 

(Comp. ¶ 43). Several factual allegations in the complaint

support this conclusion including the Defendant's refusal to

raise Plaintiff's job grade level despite the recommendations of

Plaintiff's supervisors (Comp. ¶ 28) and the recommendation of an

independent consultant group (Comp. ¶ 36). 

Therefore, the Court will deny the Defendant's motion to

dismiss with regard to the Plaintiff's request for liquidated

damages because liquidated damages are permitted under the ADEA

and the Plaintiff's complaint pleads sufficient facts to support

a plausible basis for an award of liquidated damages.

IV. CONCLUSION

For the reasons expressed above, the Court will grant in

part and deny in part Defendant's motion to dismiss. 

The Court will deny the Defendant's motion to dismiss as to

whether the Defendant can be held liable for pay received before

December 27, 2008. This limitations argument is premature in a

motion to dismiss and should be brought as an affirmative defense

in the pleadings. 

The Court will deny the Defendant's motion as to the

Plaintiff's ADEA retaliation claim since the Plaintiff's

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complaint alleges fact sufficient to support a plausible basis

for relief. 

The Court will grant the Defendant's motion with regard to

the Plaintiff's discrimination claim under the ADEA because the

Plaintiff has failed to allege facts which support an inference

of age discrimination. 

Finally, as to the Plaintiff's requests for damages, the

Court will grant the Defendant's motion to dismiss with regard to

the Plaintiff's request for damages for pain and suffering,

embarrassment, humiliation, loss of self-esteem, mental anguish,

and loss of life's pleasures. These non-pecuniary damages are

not permitted under the ADEA. However, the Court will deny the

Defendant's motion as to liquidated damages as these are

prescribed in 29 U.S.C. § 626(b) and the Plaintiff has pled

sufficient facts to support a plausible basis for an award of

liquidated damages.

It may be possible that an amended pleading could cure the

deficiencies noted in the discrimination claim if the Plaintiff

pled sufficient grounds supporting his allegation that the

lowering of the Grants Specialist job level was due to

Plaintiff's age. Therefore, as to this count, the dismissal

will be without prejudice to the Plaintiff moving to amend his

complaint to correct the above deficiency. See Alston v.

Parker, 363 F.3d 229, 235 (3d Cir. 2004) ("We have held that even

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when a plaintiff does not seek leave to amend, if a complaint is

vulnerable to 12(b)(6) dismissal, a District Court must permit a

curative amendment, unless an amendment would be inequitable or

futile.").

The accompanying Order will be entered.

November 3, 2011 s/ Jerome B. Simandle 

Date JEROME B. SIMANDLE

United States District Judge

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