NICHOLSON v. SHEETZ INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ERIK W. NICHOLSON, )

)

Plaintiff, )

)

v. ) Case No. 1:19-cv-166-SPB

)

SHEETZ INC., et al., )

)

Defendants. )

MEMORANDUM OPINION

Plaintiff Erik W. Nicholson, an individual formerly employed at Sheetz Store #367 in

Harborcreek Township, Pennsylvania, commenced this pro se lawsuit against Sheetz Inc. and its

CEO, Joseph E. Sheets, following the closure of Store #367. In his operative pleading, Plaintiff

claims that the Defendants committed fraud, engaged in age discrimination, and breached their

contract with him in connection with the aforementioned store closing and the company’s

alleged failure to pay agreed upon wages.1

Pending before the Court is the Defendants’ motion to dismiss the Second Amended

Complaint. For the reasons that follow, Defendants’ motion will be denied as moot insofar as it

relates to a non-existent breach of contract claim against Joseph E. Sheets. In all other respects,

the Defendants’ motion will be granted, but Plaintiff will be given leave to re-plead certain

claims.

1 Although Plaintiff invokes 28 U.S.C. §1332 as a basis for this Court’s jurisdiction, he has

failed to adequately plead diverse citizenship on the part of Joseph E. Sheets. See Swiger v.

Allegheny Energy, Inc., 540 F.3d 179, 182 (3d Cir. 2008) (citizenship of a natural person, for

purposes of diversity jurisdiction, depends upon the state where the person is domiciled) (citing

Gilbert v. David, 235 U.S. 561, 569 (1915)); see also McNair v. Synapse Group Inc., 672 F.3d

213, 219 n.4 (3d Cir. 2012) (noting that, to be domiciled in a state, a person must reside there and

intend to remain indefinitely).

Nevertheless, the undersigned perceives that Plaintiff may be attempting to state a federal

employment discrimination claim in his operative pleading, which would allow the Court to

exercise subject matter jurisdiction pursuant to 28 U.S.C. §§1331 and 1367.

I. Background

Plaintiff is an individual residing in Findlay Lake, New York. Second Amended

Complaint (hereafter, “SAC”), ECF No. 24, ¶1. He alleges that:

On or about August 18[ ] 2018, the defendant Sheetz Inc. did knowingly and

willingly hire [him] away from a better paying position at Cracker Barrel by

citing all the benefits that they offered their employees. They failed to disclose to

the plaintiff that store #367 where the plaintiff would be working would be

closing because it had not shown a profit in twelve years (See Exhibit A). This

fraudulent activity left the plaintiff with only two options. First he could

continue to work for the defendant Sheetz Inc. at another one of their locations[,]

which would require considerably more travel time as well as reduced hours[,] or

[he could] find other employment. The decision to close store #367 was made by

defendant Joseph E. Sheetz and the failure of both defendants disclosing this

information was negligent at the very least and would be considered fraudulent by

any determination.

SAC ¶6. Plaintiff claims that “[t]he defendants Sheetz Inc. and Joseph E. Sheetz were aware

[for] months if not years that store #367 was under performing and that they were going to close

the location when the lease expired.” Id. ¶7. They nevertheless “fraudulently hired” Plaintiff “by

telling him his job would be a full time permanent position[,]” when, in actuality, “all they really

needed was someone to work for a few months.” Id. As a result of Defendants’ “fraud,”

Plaintiff suffered “harm, lost wages and the need to find other employment.” Id.

Plaintiff also avers that, while he was employed at Store #367, he was paid $9.00 an hour.

SAC ¶8. In October 2018, however, “the defendant Sheetz Inc. did advertise on the front doors

of store #367 . . . that it [would be] paying new hires $9.50 per hour.” Id.; see also SAC Ex. B,

ECF No. 24-2. According to the SAC, “[t]he only possible reason for this discrepancy was that

the plaintiff was an older employee since another older employee Robert Litz was also only

being paid $9.00 per hour.” SAC ¶8. In essence, “the older employees were training and

teaching new younger [hires] but making less money simply because they were older.” Id.

Thus, Plaintiff claims, “defendant Sheetz Inc. authorized by defendant Joseph E. Sheetz openly

discriminated against the plaintiff and Robert Litz by only paying them $9.00 per hour while

advertising on their front door that they we paying new hires $9.50 simply because they were

older employees.” Id. ¶9.

Finally, Plaintiff alleges that, under the terms of the “employee information manual,” he

was entitled to “a bonus of $1.00 per hour for every hour [he] worked in the first quarter of

2019[,] based on the stores [sic] customer service rating and performance.” SAC ¶¶10-11.

Plaintiff claims that Sheetz breached the terms of its contract with Plaintiff by failing to pay him

this bonus in April 2019. Id.

Based upon the foregoing allegations, Plaintiff commenced this action on June 10, 2019.

ECF No. 1. In his Second Amended Complaint, Plaintiff asserts claims of fraud, age

discrimination, and breach of contract. ECF No. 24, ¶¶6-11. As relief, he seeks $8,453,391.00

in “damages and lost earnings,” as well as punitive damages. SAC ¶ 12.

On December 18, 2019, Defendants filed the pending motion to dismiss the SAC, along

with a supporting brief. ECF Nos. 25 and 26. Plaintiff filed his response in opposition on

January 15, 2020. ECF No. 29. The issues are now sufficiently briefed and ripe for disposition.

II. Standard of Review

When considering a Rule 12(b)(6) motion, courts “accept all factual allegations as true,

construe the complaint in the light most favorable to the plaintiff, and determine whether, under

any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Wayne Land &

Mineral Grp. LLC v. Delaware River Basin Comm'n, 894 F.3d 509, 526–27 (3d Cir. 2018)

(internal quotation marks and citations omitted). In order to survive dismissal, “a complaint

must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)). Plausibility means “more than a sheer possibility that a defendant

has acted unlawfully.” Id. “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. (citing Twombly, 550 U.S. at 556).

Because Plaintiff is proceeding pro se, the Court must employ less stringent standards

when reviewing the complaint than it would if it were judging the work product of an attorney.

See Haines v. Kerner, 404 U.S. 519, 520 (1972). When presented with a pro se complaint, the

court should construe the complaint liberally and draw fair inferences from what is not alleged as

well as from what is alleged. See Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003).

Nevertheless, even a pro se plaintiff must be able to prove a “set of facts in support of his claim

which would entitle him to relief.” Haines, 404 U.S. at 520-21 (internal quotation marks and

citation omitted). Finally, if a district court is dismissing a claim under Rule 12(b)(6) in a civil

rights case, it must sua sponte “permit a curative amendment unless such an amendment would

be inequitable or futile.” Phillips v. County of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008).

Because Plaintiff is also proceeding in forma pauperis, this Court has an independent

obligation under 28 U.S.C. § 1915(e) to consider the sufficiency of his claims and to dismiss the

claims, sua sponte, if they fail to state a claim upon which relief can be granted. See id.

§1915(e)(2)(B). In conducting this analysis, the Court applies the same standard as would apply

under a Rule 12(b)(6) analysis. Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999).

III. Discussion

A. Count I of the Second Amended Complaint

In Count I of the SAC, Plaintiff asserts a claim of fraud in connection with his hiring at

Sheetz’ Store #367. Defendants contend that Plaintiff has failed to plead the required elements

and has also failed to offer sufficiently specific averments in support of this claim.

To plead a claim for fraud under Pennsylvania law, a plaintiff must allege: “‘(1)

misrepresentation of a material fact; (2) scienter; (3) intention by the declarant to induce action;

(4) justifiable reliance by the party defrauded upon the misrepresentation; and (5) damage to the

party defrauded as a proximate result. Crockett v. Luitpold Pharm., Inc., No. CV 19-276, 2020

WL 433367, at *11–12 (E.D. Pa. Jan. 28, 2020) (quoting Colaizzi v. Beck, 895 A.2d 36, 39 (Pa.

Super. Ct. 2006)).

Pennsylvania courts also recognize a cause of action based upon fraudulent concealment,

as set forth in Section 551 of the Restatement (Second) of Torts. See Marcum v. Columbia Gas

Transmission, LLC., 423 F. Supp. 3d 115, 121–22 (E.D. Pa. 2019). To establish a claim of

fraudulent concealment, the plaintiff must show that: (1) the defendant made an omission where

there was a duty to speak; (2) the omission was material to the transaction at hand; (3) the

omission was made falsely, with knowledge of its falsity or recklessness as to whether it is true

or false; (4) the omission was made with the intent of misleading another into relying on it; (5)

the plaintiff justifiably relied on the omission; and (6) the resulting injury was proximately

caused by the reliance. Gorton v. Air & Liquid Sys. Corp., No. CV 1:17-1110, 2020 WL

1550778, at *10 (M.D. Pa. Apr. 1, 2020); see Marcum, 423 F. Supp. 3d at 121–22; V-Tech

Servs., Inc. v. St., , 72 A.3d 270, 275-76 (Pa. Super. Ct. 2013).

Beyond these requirements, Rule 9(b) of the Federal Rules of Civil Procedure requires

that allegations of fraud be pled with particularity. Fed. R. Civ. P. 9(b). Thus, “a plaintiff in

federal court, to comply with Rule 9(b), must allege ‘the date, time and place of the alleged fraud

or otherwise inject precision or some measure of substantiation into a fraud allegation’ and must

state ‘the circumstances of the alleged fraud with sufficient particularity to place the defendant

on notice of the precise misconduct with which it is charged.’” Shuker v. Smith & Nephew, PLC,

885 F.3d 760, 778 (3d Cir. 2018) (quoting Frederico v. Home Depot, 507 F.3d 188, 200 (3d Cir.

2007)); see also In re Rockefeller Ctr. Properties, Inc. Sec. Litig., 311 F.3d 198, 217 (3d Cir.

2002) (A plaintiff alleging fraud must include “all of the essential factual background that would

accompany ‘the first paragraph of any newspaper story’—that is, the ‘who, what, when, where

and how of the events at issue.”). This heightened pleading standard applies to claims of

fraudulent concealment as well. See Davis v. Grusemeyer, 996 F.2d 617, 624 n. 13 (3d

Cir.1993) (stating that actions for fraudulent concealment are also subject to the heightened

pleading requirements of Rule 9(b)). “Where there are multiple defendants involved . . . the

particular fraudulent acts allegedly committed by each defendant must be specified.” Bret

Binder v. Weststar Mortg., Inc., No. 14-7073, 2016 WL 3762710, at *23 (E.D. Pa. July 13, 2016)

(citation and internal quotation marks omitted).

Here the premise of Plaintiff’s fraud claim is the Defendants’ alleged failure to disclose

“that store #367 where the plaintiff would be working would be closing because it had not shown

a profit in twelve years.” SAC ¶6. This alleged misconduct is in the nature of fraudulent

concealment rather than an affirmative misrepresentation. Absent from the SAC, however, is

any factual content establishing that the Defendants had a duty to disclose the omitted

information. As indicated above, “mere silence is not sufficient” to establish fraudulent

concealment, “in the absence of a duty to speak.” Marcum, 423 F. Supp. 3d at 121–22 (internal

quotation marks and citation omitted). As a general matter, Pennsylvania employers do not owe

fiduciary duties to their employees. See Reid v. Temple Univ. Hosp. Episcopal Campus, No. CV

17-2197, 2017 WL 5157620, at *5 (E.D. Pa. Nov. 7, 2017); Seifert v. Prudential Ins. Co. of Am.,

No. 13-7637, 2014 WL 2766546, at *8 (E.D. Pa. June 18, 2014). Thus, Plaintiff has not alleged

factual content sufficient to allow this Court to infer the Defendants’ liability.

Plaintiff also alleges that the Defendants told him “his job would be a full time permanent

position” when, in reality, “all they really needed was someone to work for a few months.” SAC

¶7. This aspect of Plaintiff’s fraud claim involves an alleged affirmative misrepresentation rather

than mere concealment. Nevertheless, the claim is insufficiently pled in that it fails to set forth

any particulars about “the date, time and place of the alleged fraud or otherwise inject precision

or some measure of substantiation into a fraud allegation,” such that Defendants have notice of

the precise misconduct that is being charged. Shuker, 885 F.3d at 778. In addition, Plaintiff fails

to differentiate the “particular fraudulent acts allegedly committed by each defendant.” Bret

Binder, 2016 WL 3762710, at *23.

For these reasons, Plaintiffs’ fraud claim is insufficiently pled and will be dismissed.

Defendants’ motion will be granted as to Count I of the SAC.

B. Count II of the Second Amended Complaint

In Count II of the SAC, Plaintiff alleges that the Defendants engaged in age

discrimination by paying newer, younger employees a higher hourly rate than older employees,

including Plaintiff, were paid. The SAC does not specify whether Count II is being asserted

under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §623, or the

Pennsylvania Human Relations Act (“PHRA”), 43 Pa. Cons. Stat. § 955. Because Plaintiff is

proceeding pro se, the Court will consider whether the SAC states a plausible claim under either

statute. The Court will look primarily to federal law in this regard, as the two statutes are

generally construed to provide coextensive protection. See Fasold v. Justice, 409 F.3d 178, 184

(3d Cir. 2005) (interpreting 29 U.S.C. 623(a) and 43 Pa. Cons. Stat. §955(a) “as applying

identically . . . and as being governed by the same set of decisional law” in the case at bar).

To maintain a viable age discrimination claim, a plaintiff must generally show that: (1) he

is forty years of age or older; (2) the defendant took an adverse employment action against him;

(3) he was qualified for the position in question; and (4) the adverse action occurred under

circumstances that would support an inference of discriminatory animus. See Murphy v. Hotwire

Commc'ns, LLC, No. CV 19-5901, 2020 WL 2128472, at *5 (E.D. Pa. May 5, 2020). To state a

claim for unequal pay, a plaintiff must plead facts tending to show that “‘younger employees

were compensated at higher rates for substantially equivalent work.’” Id. (quoting Tumolo v.

Triangle Pac. Corp., 46 F. Supp. 2d 410, 412 (E.D. Pa. 1999)); see also Aman v. Cort Furniture

Rental Corp., 85 F.3d 1074, 1087 (3d Cir. 1996); Crownover v. Shriver Contract Servs., No.

2:06-CV-783, 2008 WL 163050, at *5 (W.D. Pa. Jan. 15, 2008).

In addition, a plaintiff seeking relief under the ADEA must first exhaust his or her

administrative remedies. See 29 U.S.C. § 626(d); see also Seredinski v. Clifton Precision Prods.

Co., Div. of Litton Sys., Inc., 776 F.2d 56, 64 (3d Cir.1985). Because Pennsylvania has a state

agency with authority to investigate claims of employment discrimination, Section 626(d) of the

ADEA specifically requires that a plaintiff file charges with the Equal Employment Opportunity

Commission (“EEOC”) within 300 days after the alleged unlawful practice occurred. 29 U.S.C.

§§ 626(d)(2) & 633(b); see Hildebrand v. Allegheny County, 757 F.3d 99, 111 (3d Cir. 2014).

This obligation is a condition precedent to filing suit under the ADEA and must be pled in the

plaintiff's complaint. See Hildebrand, 757 F.3d at 111–12; see also Fed. R. Civ. P. 9(c) (“In

pleading conditions precedent, it suffices to allege generally that all conditions precedent have

occurred or been performed.”).

Here, Plaintiff’s age discrimination claims suffer from several deficiencies. First, he has

failed to allege the exhaustion of his administrative remedies. For this reason alone, Count II

must be dismissed.

In addition, Plaintiff’s substantive allegations fail to state a plausible violation of either

the ADEA or the PHRA. Plaintiff alleges that “defendants Sheetz Inc.[,] authorized by

defendant Joseph E. Sheetz[,] openly discriminated against the plaintiff and Robert Litz by only

paying them $9.00 per hour while advertising on their front door that they were paying new hires

$9.50[ ] simply because they were older employees.” SAC ¶9. But a mere advertisement for

open positions, by itself, does not constitute age discrimination, since it does not show that

younger employees were actually hired and that they performed substantially equivalent work

for higher pay. Moreover, the advertisement in question, appended to the SAC as “Exhibit B,”

says nothing about age; it merely indicates that the company was hiring new “store team

members” at a rate of $9.50 per hour. ECF No. 24-2. Nowhere does the advertisement indicate

that only younger employees would be hired at the stated rate of pay. Plaintiff posits in the SAC

that “[t]he only possible reason for this discrepancy was that the plaintiff was an older employee

since another older employee Robert Litz was also only being paid $9.00 per hour.” But again,

this statement fails to negate the possibility that “new hires” could have included older

individuals who (like Plaintiff) fall within the protection of the ADEA and the PHRA. In

determining the sufficiency of Count II, the Court need not credit Plaintiff’s conclusory

averments about the Defendants’ alleged discriminatory motives. See Connelly v. Lane Const.

Corp., 809 F.3d 780, 787 (3d Cir. 2016) (stating that, as part of a Rule 12(b)(6) review, the court

“should identify allegations that, because they are no more than conclusions, are not entitled to

the assumption of truth) (internal quotation marks and citation omitted); Nottingham v. Cooley,

No. 4:19-CV-00595, 2020 WL 3642440, at *2 (M.D. Pa. July 6, 2020) (noting that courts “‘need

not credit a complaint's bald assertions or legal conclusions when deciding a motion to

dismiss’”) (quoting Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Here,

Plaintiff’s non-conclusory allegations – in conjunction with Exhibit B -- are consistent with the

possibility of age discrimination; however, this is insufficient at the pleading stage to state a

plausible ADEA/PHRA violation. See generally Iqbal, 556 U.S. at 678 (explaining that a

plaintiff must plead “factual content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct,” and allege “more than a sheer possibility that a

defendant has acted unlawfully”); Saunders v. Danberg, 613 F. App'x 94, 96 (3d Cir. 2015)

(finding pleading deficient it “lack[ed] sufficient factual matter to allow us to infer more than the

possibility of misconduct.”).

Elsewhere in the SAC, Plaintiff states that “the older employees were training and

teaching new younger [employees] but making less money simply because they were older.”

SAC ¶8. From the context of this allegation, it is not clear if the Court is being asked to infer

unequal pay based solely upon the advertisement described above; if so, as discussed, no such

plausible inference can be drawn. In any event, though, even if the allegation is taken at face

value, it does not state that younger employees were being compensated at higher rates for

performing substantially equivalent work; and a court performing a Rule 12(b)(6) analysis

“‘need not assume that a plaintiff can prove facts that the plaintiff has not alleged.’” Nottingham,

2020 WL 3642440, at *2 (quoting Associated Gen. Contractors of Cal. v. California State

Council of Carpenters, 459 U.S. 519, 526 (1983)). For these reasons, the claim as currently pled

is deficient.

Finally, to the extent Plaintiff is asserting an ADEA claim against Defendant Joseph E.

Sheets personally, the claim fails as a matter of law. ADEA claims can be brought only against a

plaintiff’s employer. See Muhammad v. Sills Cummis & Gross P.C., 621 F. App’x 96, 98 (3d

Cir. 2015); Hill v. Borough of Kutztown, 455 F.3d 225, 246 n.29 (3d Cir. 2006). Here, it is clear

from Plaintiff’s pleading that Joseph E Sheets did not personally employ Plaintiff.

Notably, the PHRA differs from the ADEA in this respect. Unlike the ADEA, the PHRA

allows for individual supervisory employees to be held liable under an aiding and

abetting/accomplice liability theory pursuant to § 955(e) for their own direct acts of

discrimination, or for their failure to take action to prevent further discrimination by an employee

under their supervision. See Davis v. Levy, Angstreich, Finney, Baldante, Rubenstein & Coren,

P.C., 20 F. Supp. 2d 885, 887 (E.D. Pa. 1998) (citing Dici v. Commonwealth of Pa., 91 F.3d 542,

552 (3d Cir. 1996)); see also Brzozowski v. Pa. Tpk. Comm'n, 165 F. Supp. 3d 251, 263 (E.D. Pa.

2016); SeevSprecher v. Se. Home Health Servs. of PA, LLC, No. 20-CV-0968-JMY, 2020 WL

3830148, at *3 (E.D. Pa. July 8, 2020). Even so, the SAC alleges no facts from which it can

plausibly be inferred that Joseph E. Sheets personally supervised the employees that managed

Store #367 or that he was personally aware of, and condoned, specific acts of age discrimination

or unequal pay at that store. Consequently, Plaintiff’s PHRA claim against Joseph E. Sheets

must also be dismissed.

C. Count III of the Second Amended Complaint

In Count III of the SAC, Plaintiff asserts a claim for breach of his alleged employment

contract with Sheetz. In essence, he alleges that, under the terms of the “employee information

manual,” he was “due a bonus of $1.00 for every hour worked in the first quarter of 2019 . . .

based on the stores [sic] customer service rating and performance. SAC ¶¶10-11. He claims that

“Defendant Sheetz Inc. failed to pay this bonus to the plaintiff which he was clearly entitled to

under the terms of employment.” Id. ¶10.

“Under Pennsylvania law, [ ] ‘three elements are necessary to plead a cause of action for

breach of contract: (1) the existence of a contract, including its essential terms[;] (2) a breach of

the contract; and[ ] (3) resultant damages.’” Doe v. Univ. of Sciences, 961 F.3d 203, 211 (3d Cir.

2020) (alterations in the original; internal footnote omitted) (quoting Meyer, Darragh, Buckler,

Bebenek & Eck, P.L.L.C. v. Law Firm of Malone Middleman, P.C., 137 A.3d 1247, 1258

(2016)).2 “Although an agreement need not contain all of the terms necessary for the execution

of the agreement, it must ‘represent a meeting of the parties' minds on the essential terms of their

agreement.’” Quandry Sols. Inc. v. Verifone Inc., No. CIV.A.07-097, 2009 WL 997041, at *12

(E.D. Pa. Apr. 13, 2009) (quoting Yellow Run Coal Co. v. Alma–Elly–Yv Mines, Ltd., 426 A.2d

1152, 1154–55 (Pa. Super. Ct. 1981)). “The essential terms of a contract ... include the time and

manner of performance and price or other consideration.” Id. (citations omitted); see Lackner v.

Glosser, 892 A.2d 21, 31 (Pa. Super. Ct. 2006) (indicating that “the essential terms of an alleged

bargain” include “time [and] manner of performance” as well as “price or consideration”).

Defendants argue that Plaintiffs’ allegations are deficient in that they “not only fail to set

forth the essential terms of the alleged contract, but fail to establish that there was any binding

contract . . . that would entitled him to bonus pay.” ECF No. 26 at 10. The Court agrees that

Count III, as set forth in the SAC, is inadequately pled.

2 Defendants assume that Pennsylvania law governs the breach of contract claim, and Plaintiff

does not contend otherwise. Accordingly, as the parties have implicitly agreed that Pennsylvania

law applies, the Court will do the same. See Doe v. Univ. of Sciences, 961 F.3d at 211 n. 5.

Here, Plaintiff has neither attached a copy of the alleged contract, nor specified the terms

that allegedly entitled him to bonus pay during the first quarter of 2019. In addition, he has not

alleged circumstances suggesting that the terms of a handbook were intended by Sheetz Inc. to

have a binding effect. As the district court observed in Carlisle Medical Group, LLC v. Eldohiri,

Civ. No. 1:15-cv-2367, 2017 WL 783433 (M.D. Pa. Mar. 1, 2017), “a provision in an employee

handbook cannot be binding on employees if that policy is never actually communicated ... by

ensuring that the handbooks are distributed to [the] employees.” Id. at *3; see also Lord v. Erie

County, 476 F. App’x 962, 996 (3d Cir. 2012) (addressing contractual principles in the context of

a due process claim and noting that the “terms in an employee handbook are binding only when

either the handbook itself or the employer’s representation of it clearly indicate that the

handbook is to have a binding effect”). Absent from the SAC in this case is any averment

demonstrating that Sheetz Inc. distributed the handbook to Plaintiff under terms that indicated an

intent to make the handbook terms contractually binding.

Defendants also argue that, even if the SAC can be adequately deemed to allege the

existence of a contract, Count III still fails to state a claim against Defendant Joseph E. Sheets.

Defendants refer the Court to numerous cases recognizing that a contract between a corporation

and another party does not create contractual relationships on the part of the corporation’s

agents, as individuals. See ECF No. 26 at 11 (citing authority). Though the Court does not

dispute this principle, it also does not construe Count III as setting forth a breach of contract

claim against Joseph E. Sheets personally. Accordingly, the Defendants motion to dismiss will

be denied as moot insofar as it relates to the (non-existent) breach of contract claim against

Joseph E. Sheets.

IV. Conclusion

Based upon the foregoing reasons, the Defendants’ motion to dismiss will be granted as

to all claims in the SAC. It will be denied as moot insofar as it relates to the non-existent breach

of contract claim against Joseph E. Sheets.

Although Plaintiff’s age discrimination claim against Joseph E. Sheets is incapable of

being rehabilitated through further amendment, the Court cannot say the same of his fraud claims

against the Defendants or his age discrimination and breach of contract claims against Sheetz

Inc. See Phillips, 515 F.3d at 245. Accordingly, the Court will grant Plaintiff leave to re-plead

his fraud claims against the Defendants in Count I, his age discrimination claim(s) against Sheetz

Inc. in Count II, and his breach of contract claim against Sheetz Inc. in Count III.

An appropriate Order follows.

____________________________

SUSAN PARADISE BAXTER

United States District Judge