United States District Court, D. Maryland, Southern Division
W. Grimm United States District Judge
Jim Anglemyer, the one-time president of a construction
company, accuses his former employer and an affiliated
company of age-based discrimination and retaliation in
violation of the Age Discrimination in Employment Act
("ADEA"). The companies have moved for dismissal,
arguing that the Complaint itself effectively acknowledges
they had another, legitimate reason for firing him. To
bolster this argument, they urge the Court to take judicial
notice of a "whistleblower" charge Mr. Anglemyer
filed with the Occupational Safety and Health Administration
("OSHA") soon after his termination. That charge,
which they have attached as an exhibit to their motion to
dismiss, accuses his employer of retaliating against him for
the way he responded to a staffer's threat of workplace
reading of the Complaint does not support the company's
contentions. Their motion makes much of the Complaint's
lone allusion to Mr. Anglemyer's handling of the
staffer's threat, but it takes that reference out of
context. In the end, I cannot agree that the mere mention of
that incident strips his ADEA claims of plausibility. I also
fail to see why his decision to challenge his termination on
alternate grounds in an OSHA whistleblower charge should
preclude him from seeking relief under the ADEA in a civil
lawsuit. The motion to dismiss is therefore denied.
Anglemyer has brought this suit under the ADEA, a federal law
that aims to "promote employment of older persons based
on their ability rather than age; to prohibit arbitrary age
discrimination in employment; [and] to help employers and
workers find ways of meeting problems arising from the impact
of age on employment." 28 U.S.C. § 621(b). At the
time of the events at issue, he was 68 years old. Compl.
story the Complaint tells is short, spanning just two pages
of double-spaced text. It starts by noting that Mr. Anglemyer
had been president of WCS Construction, LLC ("WCS")
since 2001. See Id. ¶ 8. As president, it says,
he reported to Chris Smith, who owned William C. Smith &
Co., Inc. ("Smith & Co."), with which WCS was
affiliated. See Id. ¶ 10.
Complaint then explains that on May 1, 2017, Mr. Anglemyer
sent Mr. Smith a letter "concerning his employment
status with WCS and his continued service as its
President." Id. ¶ 11. The letter
"discussed his contributions to WCS, noting, in
particular, that the company had netted $20 million in
profits in the 16 years he had worked there. See Id.
¶ 12. The letter "expressed the need for an
increase in salary to a level that more accurately reflected
his contributions and value." Id.
men met about a month later, on June 6, 2017. See
Id. ¶ 13. During the meeting, the Complaint
alleges, Mr. Smith "pushed him on the issue of
retirement," at one point commenting, "[Y]ou're
not getting any younger." Id. ¶ 14. Mr.
Anglemyer, concerned that Mr. Smith was thinking of replacing
him with a younger employee, "discussed and
complained" during the meeting "that his age was a
factor in Mr. Smith's decision to push him into
retirement." Id. ¶¶ 15-16.
Negotiations began, and at Mr. Smith's behest, Mr.
Anglemyer agreed to a deal that would keep him on as
president until the end of 2017, then bring him back as a
consultant. See Id. ¶ 16. They finalized the
agreement on June 16, 2017. See Id. ¶ 17. Under
the final terms, Mr. Anglemyer would work until the end of
2017, receive an additional $325, 000 for serving as a
retired consultant for 2018, obtain three bonuses totaling
$125, 000, and take ownership of a Ford F-350 truck belonging
to the company. See id.
Complaint next refers to a meeting between Messrs. Anglemyer
and Smith on July 11, 2017. See Id. ¶ 18. It
alleges the purpose of the meeting was "supposedly to
discuss an incident involving Mr. Anglemyer's handling of
another employee's threat of workplace violence."
Id. The Complaint provides no details about that
incident. It alleges, though, that before the meeting was
over, Mr. Smith fired Mr. Anglemyer "and prematurely
ended their contract, informing Mr. Anglemyer that he was no
longer a part of WCS." Id. Mr. Smith, according
to the Complaint, has since refused to pay him for the
remainder of 2017 or the agreed-upon consulting work, has
denied him the three bonuses, and has not transferred
ownership of the truck. See Id. ¶ 20.
Meanwhile, the company promoted another employee, D. Scott
Vossler, to replace Mr. Anglemyer as WCS's president.
See Id. ¶ 19. Mr. Vossler is between 15 and 20
years younger than Mr. Anglemyer. See id.
Anglemyer filed this federal lawsuit against WCS and Smith
& Co. (collectively, "Defendants") on July 17,
2018, asserting two claims under the ADEA: one claim of
age-based discrimination and another of retaliation.
Defendants have since moved to dismiss both claims.
See Mot. to Dismiss, ECF No. 15. Their motion
includes, as an exhibit, a copy of a whistleblower charge Mr.
Anglemyer filed with the Occupational Safety and Health
Administration ("OSHA") on August 9, 2017.
See ECF No. 15-2. The charge, of which Defendants
urge me to take judicial notice, appears to fill in some
details about the incident Mr. Anglemyer here alleges Mr.
Smith "supposedly" wanted to discuss at the July
11, 2017 meeting that ended in Mr. Anglemyer's
termination. In short, it alleges that a member of a project
team made a threat of workplace violence, and that Mr.
Anglemyer, upon learning of the threat, both directed an
assistant to report the incident to the human resources
office and disclosed the episode to the "purported
subject of the alleged threats." Id. at 7. It
concludes with an assertion that Mr. Anglemyer was fired for
taking these actions. See id.
motion is fully briefed. See ECF Nos. 15, 20, 21. No
hearing is necessary. See hoc. R. 105.6.
12(b)(6) motion "tests the sufficiency" of the
plaintiffs complaint. Vance v. CHF Int'l, 914
F.Supp.2d 669, 677 (D. Md. 2012). Under Rule 8(a)(2), the
complaint 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). Beyond that, the Supreme
Court has held that claims for relief must be
"plausible," specifying that "[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice."
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
"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." Id. at 678.
when a defendant moves to dismiss a complaint under Rule
12(b)(6), courts are limited to considering the sufficiency
of allegations set forth in the complaint and the
'documents attached or incorporated into the
complaint.'" Zak v. Chelsea Therapeutics
Int'l, Ltd.,780 F.3d 597, 606 (4th Cir. 2015)
(quoting E.I. du Pont de Nemours & Co. v. Kolon
Indus.,Inc.,637 F.3d 435, 448 (4th Cir.
2011)). A court also may consider matters ...