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Anglemyer v. WCS Construction, LLC

United States District Court, D. Maryland, Southern Division

July 30, 2019

WCS CONSTRUCTION, LLC et al., Defendant.


          Paul W. Grimm United States District Judge

         Plaintiff 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 violence.

         My 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.


         Mr. 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. ¶ 23.

         The 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.

         The 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.

         The two 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.

         The 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.

         Mr. 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.

         Defendants' motion is fully briefed. See ECF Nos. 15, 20, 21. No hearing is necessary. See hoc. R. 105.6.


         A 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.

         "Generally, 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 ...

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