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WRAY v. EDWARD BLANK ASSOCS.

April 16, 1996

Linda E. Wray, Plaintiff, against Edward Blank Associates, Inc., Edward Blank and Alyce Cucurullo in their individual and corporate capacities, Defendants.


The opinion of the court was delivered by: MCKENNA

 McKenna, D.J.

 Plaintiff Linda E. Wray ("Wray") began working as a Payroll Clerk for Defendant Edward Blank Associates, Inc. ("EBA") on December 18, 1980. She continued working for EBA until her termination on May 5, 1992. Until late 1991, Wray's career at EBA was going well. She was promoted from Payroll Clerk to Accounts Payable Clerk in March 1985, and promoted again, from Accounts Payable Clerk to Employee Benefits and Personnel Administrator in December 1991. Wray received twelve pay increases from December 18, 1980 to December 18, 1991, some of which were associated with her promotions (Compl. at Ex. A.) and until September, 1991 her employee evaluations were consistently good. (Compl. at P 8.)

 In September 1991, Defendant Alyce Cucurullo ("Cucurullo") became Wray's supervisor. Three months later, in December, 1991, Cucurullo informed her that she had been promoted to the position of Personnel Administrator. (Compl. at P 13.) Shortly thereafter, Plaintiff began having problems at EBA. In early January, 1992, Cucurullo told Plaintiff that she was making "too many mistakes and needed monitoring." (Compl. at P 13.) Later, Cucurullo told Plaintiff that new rules had been passed which forbade employees from taking work home, which Wray had previously been allowed to do. On April 1, 1992, Cucurullo met with Wray and discussed what Cucurullo claimed were Wray's job problems. Later that day, Cucurullo wrote Wray a confidential memo outlining several problems with Wray's work. In this memo, Cucurullo alleged, among other things, that Wray: had made errors in reviewing payroll documents; had not performed her ordinary duties during the regular workday; did not follow departmental rules and regulations, and; could not work cooperatively within the department. (Compl. at Ex. B.) On May 5, 1992, Defendant Edward Blank ("Blank") terminated Wray from her job. At the time she was fired, Plaintiff was fifty-five years old. She was replaced by an immediate new hire who was thirty-five years old.

 Plaintiff claims that Defendants Blank and Cucurullo decided to discharge her by April 1, 1992, and that complaints about her job performance were merely part of a conspiracy between Blank and Cucurullo to force her out of the workplace by making her work environment unbearable. Plaintiff further contends that she performed her work in an exemplary manner, and that she was fired solely because of her age.

 Plaintiff is suing Defendants Blank and Cucurullo in their individual and official capacities, as well as the corporate defendant EBA. Pursuant to the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-34 (the "ADEA"), Plaintiff seeks to recover: 1) lost wages from May 5, 1992 until the present; 2) attorney's fees; and 3) damages for "punitive damages for willful malicious, and intentional violations" of the ADEA. *fn1" (Compl. at P 30(b).)

 Pursuant to Fed. R. Civ. P. 12(f), all Defendants move to strike those portions of Plaintiff's complaint seeking punitive damages. Pursuant to Fed. R. Civ. P. 12(c), Defendants Blank and Cucurullo move to dismiss all of Plaintiff's claims against them in their individual capacities. For the reasons stated below, Defendants' motion is granted in part and denied in part.

 Standard of Review

 Fed. R. Civ. P. 12(c)

 In deciding a motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c), the court must apply the same standard as that applicable to a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Madonna v. United States, 878 F.2d 62, 65 (2d Cir. 1989). When deciding a motion to dismiss pursuant to Fed. R. Civ. P. 12(b), this Court may dismiss a complaint only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). Plaintiff need not prove that she will ultimately be successful on the merits of her case. All she must do is articulate "a short and plain statement of the claim showing that [she] is entitled to relief." Fed. R. Civ. P. 8(a)(2).

 Fed. R. Civ. P. 12(f)

 Fed. R. Civ. P. 12(f) reads, in relevant part: "Upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Technically, motions to strike are not proper methods of disposing of part or all of a complaint. 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1380 (2d ed. 1985). However, to avoid being restricted by the technical form of common-law practice, which the federal rules have abandoned, courts may treat motions to strike as motions to dismiss. Professional Asset Management, Inc. v. Penn Square Bank, 566 F. Supp. 134, 136 (D.C. Okl. 1983); Commercial Union Ins. Co. v. Upjohn Co., 409 F. Supp. 453, 459 (D.C. La. 1976). Unless a court strikes a pleading of its own initiative, a motion to strike must typically be made before responding to a pleading, or within 20 days after service of a pleading to which no responsive pleading is permitted. Culinary & Serv. Employees Union, AFL-CIO Local 555 v. Hawaii Employee Benefits Admin., Inc., 688 F.2d 1228, 1232 (9th Cir. 1982); Fed. R. Civ. P. 12(f). However, if a court deems it proper, it may consider motions to strike at any time. United States v. Iron Mountain Mines, Inc., 812 F. Supp. 1528, 1534-35 (E.D. Cal. 1992). This Court elects to treat Plaintiff's motion to strike as a timely motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Defendant's motion to strike portions of the Complaint will only be granted if, when read in the context of the entire Complaint, those portions of the complaint fail to state grounds upon which relief can be granted.

 Discussio ...


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