Citation Codes

Equivalent Citations

citation codes

Docket Number

Civil Action No. CV-02-4359 (DGT)

Motions

Motion to dismiss : Granted

Judges

David G. Trager

Acts

Labor — Age Discrimination In Employment — Congressional Statement Of Findings And Purpose
Labor — Age Discrimination In Employment — Recordkeeping, Investigation, And Enforcement
The Public Health And Welfare — Civil Rights — Equal Employment Opportunities — Definitions
Labor — Age Discrimination In Employment — Definitions

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Smart Summary

Case Summary: Marianna Carcasole-Lacal v. American Airlines, Inc., TWA Airlines LLC (E.D.N.Y. July 8, 2003)

Factual and Procedural Background

The plaintiff, proceeding pro se, is a former TWA employee who enrolled in TWA's Fall 1992 Early Retirement Incentive Program and elected a lump-sum retirement benefit. In 2000–2001 TWA became insolvent and negotiated a sale of certain assets to American Airlines under an Asset Purchase Agreement (February 28, 2001 Purchase Agreement) that specifically identified assets American would purchase and liabilities it would assume. The Bankruptcy Court approved the sale by an order (the Sale Approval Order) providing, among other things, that certain employment-related claims and employment contracts would be delivered "free and clear" and that purchasers (including American and its affiliates) would not be liable as successors to sellers for certain claims.

After the sale, plaintiff received notice that American Airlines would provide retiree travel privileges only to regular TWA retirees and would not assume early-retirement agreements such as hers. Plaintiff wrote to American Airlines requesting reconsideration and later filed an EEOC charge in Fall 2001 naming only TWA (the bankrupt entity). The EEOC initially issued a right-to-sue letter, which plaintiff later asked to rescind; ultimately a right-to-sue letter naming only TWA was issued on June 18, 2002. On August 5, 2002, plaintiff sued American Airlines and TWA Airlines LLC in the Eastern District of New York, asserting breach of contract and claims under the Age Discrimination in Employment Act (ADEA) based on American Airlines' decision not to assume her early retirement agreement.

Procedurally, defendants moved to dismiss under Rule 12(b)(6) on the grounds that they were not parties to the plaintiff's retirement contract and that the ADEA claims were deficient for failure to exhaust administrative remedies, because the plaintiff was not an "employee" of the defendants, and because plaintiff could not show age-based motive.

Legal Issues Presented

Whether plaintiff may maintain a breach of contract claim against American Airlines or TWA Airlines LLC where neither defendant was a party to her early retirement agreement with TWA and American expressly declined to assume that agreement in the asset sale.
Whether plaintiff's ADEA claim may proceed against American Airlines and TWA Airlines LLC where the EEOC administrative charge named only TWA (i.e., whether plaintiff exhausted administrative remedies and whether the "identity of interests" doctrine allows unnamed defendants to be sued).
Whether plaintiff qualifies as an "employee" under the ADEA with respect to American Airlines or TWA Airlines LLC, such that she may sue those entities under the statute.

Arguments of the Parties

Plaintiff's Arguments

Plaintiff alleges that American Airlines' decision not to assume her early retirement agreement constituted a breach of contract and a violation of the ADEA (that American refused to honor travel privileges provided by her early-out contract and that the refusal was motivated by her age).
Plaintiff pursued an EEOC charge (naming only TWA) and obtained a right-to-sue letter; she seeks damages for the alleged contract breach and ADEA violation.

Defendants' Arguments

Defendants move to dismiss the breach of contract claim because neither American Airlines nor TWA Airlines LLC was ever a party to plaintiff's early retirement agreement; a non-party cannot be held liable for breach.
Defendants argue that the ADEA claim must be dismissed because plaintiff failed to name them in the EEOC charge (thus failing to exhaust administrative remedies), and the "identity of interests" exception does not apply.
Defendants further argue that plaintiff is not and never was an "employee" of American Airlines or TWA Airlines LLC and therefore lacks standing to sue them under the ADEA.
As an additional (alternative) ground, defendants contend that plaintiff cannot establish a prima facie case of age discrimination because she cannot rebut defendants' legitimate, non-discriminatory reason for not assuming the contract (the court did not reach this argument after resolving other grounds).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Conley v. Gibson, 355 U.S. 41 (1957)	Standard for dismissal under Fed. R. Civ. P. 12(b)(6): complaint must be dismissed if plaintiff can prove no set of facts entitling her to relief.	Used as the governing standard for deciding the sufficiency of plaintiff's complaint on defendants' motion to dismiss.
Brass v. Am. Film Techs., Inc., 987 F.2d 142 (2d Cir. 1993)	Permissible materials to consider on a Rule 12(b)(6) motion: factual allegations, exhibits, matters of judicial notice, and documents incorporated by reference.	The court considered plaintiff's complaint, attached documents, Purchase Agreement (incorporated by reference), and the Bankruptcy Court's Sale Approval Order on the motion.
Cortec, Inc. v. Sum Holding L.P., 949 F.2d 42 (2d Cir. 1991)	Also cited as authority for what documents can be considered on a 12(b)(6) motion.	Supported the court's reliance on certain incorporated and publicly available documents when evaluating the complaint.
Hughes v. Rowe, 449 U.S. 5 (1980) (per curiam)	Pro se plaintiffs are entitled to less stringent standard of review.	Informed the court's approach to reading the pro se plaintiff's pleadings liberally while recognizing procedural requirements still apply.
Haines v. Kerner, 404 U.S. 519 (1972)	Pro se pleadings should be construed liberally.	Reinforced the court's liberal construction of the plaintiff's submissions but not to the extent of excusing compliance with law.
Ferran v. Town of Nassau, 11 F.3d 21 (2d Cir. 1993)	Supports more lenient treatment of pro se pleadings.	Referenced in context of pro se standard of review.
McPherson v. Coombe, 174 F.3d 276 (2d Cir. 1999)	Courts must read pro se pleadings liberally and raise strongest arguments suggested.	Cited to justify liberal construction of plaintiff's pro se complaint while still applying legal standards.
Burgos v. Hopkins, 14 F.3d 787 (2d Cir. 1994)	Support for liberal interpretation of pro se pleadings.	Used in conjunction with McPherson for pro se standards.
Traguth v. Zuck, 710 F.2d 90 (2d Cir. 1983)	Pro se status does not exempt a party from compliance with procedural and substantive law.	Emphasized limits of pro se leniency; plaintiff still must meet legal requirements.
Onedia Indian Nat'l v. County of Oneida, 199 F.R.D. 61 (N.D.N.Y. 2000)	Judicial notice may be taken of widely reported newspaper articles.	Cited to support the court taking judicial notice of a newspaper article distinguishing TWA from TWA Airlines LLC.
Cerasani v. Sony Corp., 991 F. Supp. 343 (S.D.N.Y. 1998)	Also supports judicial notice of newspaper articles.	Used as additional support for taking judicial notice of media reporting about corporate entities involved in the asset sale.
HDR, Inc. v. Int'l Aircraft Parts, Inc., 257 A.D.2d 603 (2d Dep't 1999)	General principle that a party cannot be held liable for breach of contract to which it was not a party.	Applied to conclude plaintiff could not state a breach claim against defendants who were not parties to her contract.
W.H. Brownyard Corp. v. Am. Int'l Group, 237 A.D.2d 594 (2d Dep't 1997)	Same principle regarding liability only to contracting parties.	Reinforced the court's conclusion that defendants cannot be held liable for a contract to which they were not parties.
In re Trans World Airlines, Inc., 322 F.3d 283 (3d Cir. 2003)	Holds that a purchaser of assets from TWA did not assume certain employment-related liabilities; supports that TWA retained liability.	Discussed by the court as potentially supportive of defendants' position, although the court noted uncertainty about relying on this decision given the Sale Approval Order's allocation of certain interpretive jurisdiction to the Bankruptcy Court.
Johnson v. Palma, 931 F.2d 203 (2d Cir. 1991)	Articulates the "identity of interests" exception allowing suit against unnamed parties under certain factors.	Provided the four-factor test the court applied and ultimately found did not rescue plaintiff's ADEA claim against unnamed defendants.
Glus v. G.C. Murphy Co., 562 F.2d 880 (3d Cir. 1977)	Source of the four-factor formulation used to determine identity-of-interest.	Quoted within Johnson and used as the analytical framework for the identity-of-interests inquiry.
Moscowitz v. Brown, 850 F. Supp. 1185 (S.D.N.Y. 1994)	Example of dismissing claims against defendants not named in EEOC complaint due to lack of actual notice.	Relied upon in concluding that American Airlines and TWA Airlines LLC did not have actual notice and thus were not covered by identity-of-interests exception.
Vital v. Interfaith Med. Ctr., 168 F.3d 615 (2d Cir. 1999)	General rule that ADEA/Title VII actions may generally be maintained only against defendants named in the administrative charge; citation to statutory framework.	Used to support the proposition that plaintiff may generally maintain an ADEA action only against defendants named in the EEOC charge.
Hyland v. New Haven Radiology Assocs., 794 F.2d 793 (2d Cir. 1986)	Requirement that a plaintiff be an employee suing a current or former employer to bring an ADEA action.	Supported the court's conclusion that plaintiff could not bring an ADEA claim because she was not an employee of the named defendants.
Caruso v. Peat, Marwick, Mitchell Co., 664 F. Supp. 144 (S.D.N.Y. 1987)	Also supports that ADEA plaintiffs must be employees suing employers.	Applied in concluding plaintiff lacked the employee-employer relationship with defendants required by the ADEA.
Campbell v. City Univ. Constr. Fund, 1999 WL 435132 (S.D.N.Y. June 25, 1999)	To be an "employee" under the ADEA in the Second Circuit, plaintiff must receive some job-related benefits; also references common law agency test.	Used to explain and apply the test for whether plaintiff was an employee of defendants; court found she was not because she never received job-related benefits from defendant entities.
Pietras v. Bd. of Fire Comm'rs of the Farmingville Fire Dist., 1999 WL 397993 (2d Cir. 1999)	Referenced in connection with the requirement of job-related benefits to qualify as an "employee."	Used as authority for the benefits-based aspect of the employee inquiry.
Frankel v. Bally, Inc., 987 F.2d 86 (2d Cir. 1993)	Common-law agency test for determining employee status focuses on control over manner and means of work.	Supported the court's application of the agency test component of the employee analysis; plaintiff could not show such a relationship with defendants.
Thomas v. Held, 941 F. Supp. 444 (S.D.N.Y. 1996)	Also addresses employee definition and agency test under ADEA.	Used to support the court's conclusion that plaintiff did not meet the employee definition with respect to defendants.
Gallagher v. Int'l Bhd. of Elec. Workers, 127 F. Supp.2d 139 (N.D.N.Y. 2000)	Example of dismissing ADEA claims where defendants were not named in EEOC charge.	Applied as supporting precedent for dismissing claims against defendants not named administratively.
Smith v. Local Union 28 Sheet Metal Workers, 877 F. Supp. 165 (S.D.N.Y. 1995)	Dismissal of pro se ADEA claim where defendants were not named in EEOC charge.	Referenced to support dismissal of pro se plaintiff's ADEA claims against unnamed defendants.

Court's Reasoning and Analysis

The court applied the governing 12(b)(6) standard (Conley) and considered the complaint, exhibits attached or incorporated by reference, and matters of which judicial notice could be taken (Brass; Cortec; Onedia; Cerasani). The analysis proceeded in three main parts.

1) Standard of Review and Pro Se Considerations. The court acknowledged that plaintiff proceeds pro se and that her pleadings are to be construed liberally (Haines; Hughes; McPherson), but emphasized that pro se status does not excuse compliance with procedural and substantive law (Traguth).

2) Breach of Contract Claim. The court concluded plaintiff's breach claim fails because neither American Airlines nor TWA Airlines LLC was ever a party to the plaintiff's early retirement agreement with TWA, and a defendant cannot be liable for breach of a contract to which it is not a party (HDR; W.H. Brownyard). The complaint and incorporated documents (Offer Letter; Election Form) showed the contractual relationship was between plaintiff and TWA. The court also noted that American expressly declined to assume many TWA contracts in the bankruptcy sale context (April 6 Letter; Purchase Agreement language). The court observed that the Purchase Agreement and the Sale Approval Order allocate certain liabilities to TWA and contain provisions regarding jurisdiction to interpret or enforce the Purchase Agreement, noting that such issues might properly be addressed by the Bankruptcy Court; nevertheless, that jurisdictional allocation did not prevent this court from resolving whether defendants were parties to or breached the contract to the extent no interpretation of the Purchase Agreement was required.

3) ADEA Claim. The court analyzed the ADEA claim first for failure to exhaust administrative remedies and then for lack of employee status.

Failure to exhaust / naming requirement: The ADEA requires a charge to be filed with the EEOC within 300 days and generally limits suits to defendants named in the administrative charge (29 U.S.C. § 626(d); 42 U.S.C. § 2000e-5(f)(1); Vital). Plaintiff's EEOC charge named only TWA; she did not name American or TWA Airlines LLC.
Identity-of-interests exception: The court applied the four-factor Johnson/Glus test to determine whether unnamed defendants could be sued nonetheless. The court found each factor weighed against the plaintiff: American and TWA Airlines LLC had no shown actual notice of being investigated; plaintiff was aware of the roles of the unnamed parties at the time of administrative filing and could have named them; their interests were not so similar to TWA's as to make naming unnecessary for conciliation; and their absence from the EEOC proceedings prejudiced them because they were denied the opportunity to offer a legitimate, non-discriminatory justification. As a result, the identity-of-interests exception did not apply and administrative exhaustion failed (Johnson; Moscowitz; Gallagher; Smith).
Employee status under the ADEA: Alternatively, the court held that plaintiff was not an "employee" of either American Airlines or TWA Airlines LLC as required to bring an ADEA claim (Hyland; Caruso). The court applied the Second Circuit's tests: plaintiff received no job-related benefits from defendants (Campbell; Pietras) and could not show the common-law agency relationship or control required to establish employee status (Frankel; Thomas). Because plaintiff had no employment relationship with defendants, she could not maintain an ADEA claim against them.
Because the ADEA claim was dismissed on the two alternative grounds (failure to exhaust and lack of employee status), the court did not address defendants' separate argument that plaintiff could not establish a prima facie case or rebut a legitimate nondiscriminatory reason.

Holding and Implications

Defendants' motion to dismiss plaintiff's complaint is GRANTED.

Direct effects:

The breach of contract claim against American Airlines and TWA Airlines LLC is dismissed because neither defendant was a party to plaintiff's early retirement agreement and American expressly declined to assume such contracts in the bankruptcy asset purchase context.
The ADEA claim against American Airlines and TWA Airlines LLC is dismissed for failure to exhaust administrative remedies (plaintiff did not name these defendants in her EEOC charge and the identity-of-interests exception does not apply) and, alternatively, because plaintiff was not an "employee" of those entities under the ADEA.

Broader implications: The opinion resolves the plaintiff's claims on the specific factual and legal grounds described above and does not announce a new, broader rule of law; it applies established precedents to the facts presented and dismisses the complaint without reaching every argument raised by defendants.

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MARIANNA CARCASOLE-LACAL, Plaintiff v. AMERICAN AIRLINES, INC., TWA AIRLINES LLC f/k/a TRANS WORLD AIRLINES, INC., Defendants.

MEMORANDUM ORDER

DAVID G. TRAGER, District Judge

Plaintiff pro se Marianna Carcasole-Lacal has sued American Airlines and TWA Airlines LLC (collectively, defendants), alleging that American Airlines' decision not to assume her early retirement agreement when purchasing various assets from Trans World Airlines, Inc. ("TWA") in bankruptcy was a breach of contract and a violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"). Defendants are moving to dismiss plaintiff's complaint on the following grounds: (1) plaintiff cannot maintain a breach of contract claim against either defendant because neither American Airlines nor TWA Airlines LLC was ever a party to any contract with her and (2) plaintiff cannot maintain an ADEA claim because (i) she has failed to exhaust administrative remedies because she has never filed an EEOC charge against either defendant, (ii) her claim is not covered by the ADEA because she is not and was never the "employee" of either defendant, and (iii) plaintiff cannot establish that American Airlines' decision not to assume her early retirement agreement is based on her age.

TWA Airlines LLC was erroneously named in the caption of plaintiff's complaint as "TWA Airlines LLC f/k/a TransWorld Airlines, Inc."). In fact, in 2001, as part of the sale of TWA's assets to American Airlines, American Airlines established TWA Airlines LLC, a wholly owned subsidiary to hold those assets of TWA that were purchased by American Airlines out of bankruptcy. TWA Airlines LLC is not, as plaintiff asserts, an entity formerly known as TWA. See Joe Kennedy, Skies Not That Unfriendly, TWA Chief Says, Roanoke Times World News, Mar. 18, 2002, at C1 (stating that Gerry Gitner is "the CEO of the bankrupt TWA Inc., not to be confused with TWA Airlines LLC, the holder of the assets bought from TWA Inc. and operated by American Airlines"). Judicial notice can be taken of facts from newspaper articles that are widely reported in the media. See Fed.R.Evid. 201; see also Onedia Indian Nat'l v. County of Oneida, 199 F.R.D. 61, 83 n. 10 (N.D.N.Y. 2000) (taking judicial notice of newspaper articles) (citations omitted); Cerasani v. Sony Corp., 991 F. Supp. 343, 354 n. 3 (S.D.N.Y. 1998) (same).

Background

The facts of this case are taken from plaintiff's complaint, documents attached thereto, document referenced therein, and documents of which judicial notice can be taken.

In Fall 1992, TWA offered an Early Retirement Incentive Program (the "Early Retirement Program") to employees who were members of the International Association of Machinists Union. See Compl. ¶ 8; see also Letter from TWA to Plaintiff of 9/25/92 ("Offer Letter"). As part of this Early Retirement Program, TWA agreed to provide employees who elected to participate with certain retirement benefits, either in lump sum or on a monthly basis, and reduced rate travel privileges as specified by a benefits schedule and in accordance with the employee's age and years of service. See Early Retirement Program, Attach. 1 ¶ 4. Plaintiff was among the TWA employees who were offered the Early Retirement Program. See Offer Letter. On October 14, 1992, plaintiff signed a form indicating her intent to participate in the Early Retirement Program and elected to receive her retirement benefits in a lump sum payment. See Election Form For Benefit Option, dated Oct. 14, 1992 ("Election Form").

Plaintiff's complaint is included as Exhibit B to the Memorandum of Law in Support of Defendant's Motion to Dismiss (bit B to"Defendants' Memorandum"). The Offer Letter is attached to plaintiff's complaint and included as Exhibit C to Defendants' Memorandum.

The Early Retirement Program is attached to plaintiff's complaint and included as Exhibit D to Defendants' Memorandum.

The Election Form is attached to plaintiff's complaint and included as Exhibit D to Defendants' Memorandum.

In 2000, TWA became insolvent and determined that it could not continue to operate as an independent airline. Throughout the year, TWA had conversations with American Airlines concerning the possibility of a strategic partnership. American Airlines and TWA entered into an initial Asset Purchase Agreement on January 9, 2001, which set forth a purchase plan subject to an auction and bankruptcy court approval. On January 10, 2001, TWA filed a voluntary petition for relief under Chapter 11 of the United States Bankruptcy Code. On February 28, 2001, American Airlines and TWA executed an Amended and Restated Asset Purchase Agreement ("Purchase Agreement"), which specifically identified the TWA assets that American Airlines would purchase, as well as the liabilities that American Airlines would assume and the liabilities that TWA would retain. See Purchase Agreement ¶¶ 3.1-3.2. Specifically, the Purchase Agreement provides that TWA retains "all obligations and liabilities of [TWA] to provide air travel or related services pursuant to any flight travel privileges, awards, or certificates or any similar agreements or understandings (whether written or oral)" other than those relating to passengers denied boarding or affected by overbooking. See id. §§ 3.2(h), 3.1(g).

The Purchase Agreement is included as Exhibit E to Defendants' Memorandum.

On March 12, 2001, the United States Bankruptcy Court for the District of Delaware ("Bankruptcy Court") entered an order approving the sale of certain assets of TWA to American Airlines in accordance with the Purchase Agreement ("Sale Approval Order"). See Sale Approval Order, In re Trans World Airlines, Inc., et al., dated Mar. 12, 2001. Paragraph 4 of the Sale Approval Order provides that American Airlines "shall not be liable in any way (as successor to [TWA] or otherwise) for any claims that any of the foregoing [including TWA employees] or any other third party may have against any of the Sellers," and that, "with regard to employees' claims, the free and clear delivery of the assets shall include, but not be limited to, all asserted or unasserted, known or unknown, employment related claims . . . employment contracts . . . and successorship liability accrued up to the date of closing." Sale Approval Order ¶ 4. Finally, the Sale Approval Order also provides that "[p]ursuant to sections 105(a) and 363 of the Bankruptcy Code, all Persons are enjoined from taking any action against Purchaser or Purchaser's Affiliates including, without limitation, TWA Airlines LLC, to recover any claim which such person has solely against Sellers or Sellers' Affiliates." Id. ¶ 1.1.

The Sale Approval Order is included as Exhibit F to Defendants' Memorandum. It is entitled, "Order Pursuant to Sections 105(a), 363, 365, and 1146(c) of the Bankruptcy Code (i) Authorizing the Debtors' Sale of Substantially All of their Assets, Free and Clear of Liens, Claims, and Encumbrances; (ii) Approving an Asset Purchase Agreement; and (iii) Approving the Assumption and Assignment of Certain Executory Contracts and Unexpired Leases in Connection with Such Sale."

Following entry of the Sale Approval Order, TWA sent a letter to Plaintiff, indicating that American Airlines would provide retiree travel privileges to all former TWA employees who were regular retirees of TWA, but not those who, like plaintiff, elected to take early retirement. See Compl. ¶ 8; Letter from Tony Campanaro to Plaintiff of 4/6/01 ("April 6 Letter"). Plaintiff thereafter wrote a letter to an executive of American Airlines, asking him to reconsider American Airlines' decision not to assume her early retirement agreement. See Letter from Plaintiff to Don Carty of 4/18/01 ("April 18 Letter"). Subsequently, in Fall 2001, plaintiff filed with the Equal Employment Opportunity Commission ("EEOC") a charge of discrimination against only TWA, the bankrupt entity. See Compl. ¶ 10. The EEOC sent plaintiff a right-to-sue letter on May 8, 2002. Thereafter, plaintiff wrote to the EEOC asking that her right-to-sue notice be rescinded, a request that the EEOC granted by letter dated May 24, 2002. See Letter from EEOC to Plaintiff of 5/24/02 ("EEOC Letter"). The EEOC Letter also informed plaintiff that:

The April 6 Letter is attached to plaintiff's complaint and included as Exhibit J to Defendants' Memorandum.

The April 18 Letter is attached to plaintiff's complaint.

The EEOC Letter is attached to plaintiff's complaint and included as Exhibit H to Defendants' Memorandum.

In order to establish a claim of age discrimination under the Age Discrimination in Employment Act, you would have to demonstrate that the termination of your travel privileges, as outlined in your early-out contract, was occasioned by your age. In this situation, all individuals, regardless of age, who had retired under specialized severance or "early out" packages were similarly affected. While there is a difference in treatment between those who retired under the standard package as compared to those who retired under specialized packages, that difference in treatment does not appear to be related to the age of either group of individuals.

EEOC Letter. Ultimately, plaintiff received her final right-to-sue letter on June 18, 2002, which names only TWA as respondent. See Compl. ¶ 12; EEOC Notice of Right to Sue, dated June 18, 2002. On August 5, 2002, plaintiff filed a complaint against defendants in the Eastern District of New York, seeking an unspecified amount of damages allegedly arising from a breach of plaintiff's early retirement agreement with TWA and from American Airlines' decision not to assume plaintiff's early retirement agreement in violation of the ADEA.

The June 18, 2002 right-to-sue letter is attached to plaintiff's complaint and included as Exhibit G to Defendants' Memorandum.

Discussion (1) Standard of Review

A complaint is properly dismissed for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) if "the plaintiff can prove no set of facts in support of [her] claim that would entitle [her] to relief." Conley v. Gibson, 355 U.S. 41, 45-6, 78 S.Ct. 99, 102 (1957). When determining the sufficiency of a plaintiff's claim, "consideration is limited to the factual allegations in [the] complaint, which are accepted as true, to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in [plaintiff's] possession or of which plaintiff had knowledge and relied on in bringing suit." Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993) (citing Cortec, Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir. 1991)).

Since plaintiff is proceeding pro se, her submissions are entitled to a less stringent standard of review than formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 176 (1980) (per curiam) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595 (1972)); see also Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir. 1993). The Second Circuit has instructed courts to "read the pleadings of a pro se plaintiff liberally and interpret them to raise the strongest arguments they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (citing Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). However, courts must also be aware that pro se status "does not exempt a party from compliance with relevant rules of procedural and substantive law." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983).

In addition to the plaintiff's complaint and the documents attached thereto, defendants have attached to their memorandum the Purchase Agreement, dated February 28, 2001, and the March 9, 2001 amendment thereto. Some of the terms of the Purchase Agreement are described in the April 6 Letter from TWA to plaintiff, which plaintiff attached to her complaint; therefore, the Purchase Agreement is incorporated into plaintiff's complaint by reference. In addition to the Purchase Agreement, defendants have attached the Bankruptcy Court's Sale Approval Order, which also can properly be considered on this motion, as it is a public document of which this court may take judicial notice.

(2) Breach of Contract

Plaintiff alleges that defendants somehow breached the contract between TWA and her for travel privileges as set forth in her early retirement agreement. See Compl. ¶ 8. Plaintiff's breach of contract claim is fatally deficient because there is not and was never a contractual relationship between plaintiff and either American Airlines or TWA Airlines LLC. A party cannot be held liable for a breach of contract to which it was not a party. See, e.g., HDR, Inc. v. Int'l Aircraft Parts, Inc., 257 A.D.2d 603, 604, 683 N.Y.S.2d 867, 868 (2d Dep't 1999); W.H. Brownyard Corp. v. Am. Int'l Group, et al., 237 A.D.2d 594, 595, 655 N.Y.S.2d 1021, 1022 (2d Dep't 1997) (citations omitted). Plaintiff's early retirement agreement was formed between plaintiff and TWA. See Offer Letter; Election Form. In fact, plaintiff admits that the "contract" at issue was "held between [her]self and TWA." Compl. ¶ 8. Even the most liberal construction of plaintiff's complaint and incorporated documents fails to find a single assertion or indication that either American Airlines or TWA Airlines LLC was a party to, or ever assumed any obligations with respect to, plaintiff's early retirement agreement.

Moreover, it is clear that American Airlines, in the context of its purchase of various TWA assets out of bankruptcy, expressly declined to assume plaintiff's early retirement agreement. Indeed, this is the gravamen of plaintiff's claim. See Compl. ¶ 8. In fact, plaintiff received a letter from Tony Campanaro, then Manager of Employee Travel for TWA, explaining that "[b]ecause this was a bankruptcy situation, American Airlines had the right to reject a number of contracts currently held by TWA, Inc. Among the rejected contracts were the agreements that provided either lifetime or limited pass travel for individuals as a provision of their severance, early retirement incentive, or `early out' packages." See April 6 Letter; Compl. ¶ 8. As there can be no breach of contract claim absent a contract between plaintiff and defendants, and plaintiff has alleged no such contract (or assumption of a contract) in her complaint, there can be no set of facts supporting plaintiff's claim that would entitle her to relief. Accordingly, plaintiff's breach of contract claim should be dismissed.

In addition, § 3.2(h) of the Purchase Agreement provides that TWA would retain the liability of providing "air travel or related services pursuant to any flight travel privileges." Moreover, the Third Circuit recently affirmed a decision of the District Court for the District of Delaware affirming an order entered by the Bankruptcy Court, which authorized the sale of certain TWA assets to American Airlines free and clear of certain successor liability claims. See In re Trans World Airlines, Inc., 322 F.3d 283 (3d Cir. 2003). In In re Trans World Airlines, the EEOC and flight attendants formerly employed by TWA sued American Airlines for (1) employment discrimination claims (including claims under the ADEA) pending before the EEOC and (2) travel vouchers awarded to TWA flight attendants in the settlement of a sex discrimination case filed in the 1970s. The Third Circuit held that, when TWA sold its assets to American Airlines, TWA did not transfer its liability, if any, for these claims to American Airlines.
Although defendants assert that the Purchase Agreement and the Third Circuit's decision in In re Trans World Airlines support their argument, this court's ability to rely on this evidence is unclear. The Sale Approval Order contains the following provision:

This Court shall retain exclusive jurisdiction through the Bankruptcy Resolution Date to interpret and enforce the provisions of the [Purchase] Agreement . . . and this Order in all respects and further to hear and determine all matters arising from the construction or implementation of this Order or the [Purchase] Agreement and any and all disputes between Sellers and/or Purchaser, as the case may be, and any non-Sellers party to, among other things, any Assumed Contracts concerning, inter alia, Seller's assumption and assignment thereof to Purchaser under the Agreement; provided, however, that in the event the Court abstains from exercising or declines to exercise such jurisdiction or is without jurisdiction with respect to the [Purchase] Agreement, Sale Procedures Order, or this Order, such abstention, refusal, or lack of jurisdiction shall have no effect upon, and shall not control, prohibit, or limit the exercise of jurisdiction of any other court having competent jurisdiction with respect to any such matter.

Sale Approval Order ¶ 29. This provision appears to suggest that resolution of any argument regarding the Purchase Agreement, including the issue of whether American Airlines assumed plaintiff's early retirement agreement, should be decided by the Bankruptcy Court. The provision, however, does not appear to restrict this court's ability to adjudicate defendants' motion on the issues of whether defendants had or breached a contract with plaintiff or violated the ADEA, as plaintiff alleges, to the extent that the resolution of these issues do not require interpretation of the Purchase Agreement or Sale Approval Order.

(3) ADEA Claim

A. Failure to Exhaust Administrative Remedies

As indicated above, plaintiff alleges that defendants violated the ADEA by determining — based solely on plaintiff's age — not to assume her early retirement agreement when purchasing various TWA assets out of bankruptcy. Defendants maintain that plaintiff's ADEA claim fails because plaintiff has not filed a charge of discrimination against either of them and, thus, has failed to exhaust her administrative remedies. To sustain a claim for unlawful discrimination under the ADEA, a plaintiff must file an administrative charge with the EEOC within 300 days of the alleged discriminatory acts. See 29 U.S.C. § 626(d). As a general rule, a plaintiff may maintain an ADEA action only against defendants named in an administrative charge. See 42 U.S.C. § 2000e-5(f)(1);Vital v. Interfaith Med. Ctr., 168 F.3d 615, 619 (2d Cir. 1999) (citing 42 U.S.C. § 2000e-5(f)(1)); see also 29 U.S.C. § 626(d)(2) (providing that the EEOC must "notify all persons named in [the administrative charge] as prospective defendants in [a federal court] action"). Plaintiff's administrative charge identified only TWA as a potential defendant.

Nonetheless, it is possible that plaintiff's failure to name American Airlines and TWA Airlines LLC is excusable under the "identity of interests" doctrine articulated in Johnson v. Palma, 931 F.2d 203 (2d Cir. 1991), and its progeny. Under this exception, a plaintiff may "proceed against an unnamed party where there is a clear identity of interest between the unnamed defendant and the party named in the administrative charge" and the latter had actual notice that their individual conduct was being investigated. Id. at 209; see also Moscowitz v. Brown, 850 F. Supp. 1185, 1192 (S.D.N.Y. 1994). To determine whether an identity of interests exists, courts look to four factors:

1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; 2) whether, under the circumstances, the interests of a named [party] are so similar as the unnamed party's that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; 3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; 4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party.

Johnson, 931 F.2d at 209 (quoting Glus v. G.C. Murphy Co., 562 F.2d 880, 888 (3d Cir. 1977)) (alteration in original).

However, applying the four factors to this case, the identity of interests exception does not save plaintiff's ADEA claim. As indicated above, TWA was the only respondent named in the EEOC charge of discrimination, and there are no allegations or indications that American Airlines and/or TWA Airlines LLC had "actual notice" that their conduct was being investigated. See Moscowitz, 850 F. Supp. at 1192 (dismissing charges against defendants not named in EEOC complaint because, inter alia, there was no allegation that the defendants had actual notice that their conduct was being investigated). In addition, given that plaintiff was notified by TWA about American Airlines' purchase of certain TWA assets out of bankruptcy and American Airlines' decision not to assume plaintiff's early retirement contract, she was unquestionably able to ascertain the role of the unnamed parties at the time of the administrative filings and could have, if she wished, named them in the charge. In fact, plaintiff wrote to American Airlines and asked it to reconsider the decision not to assume her early retirement agreement.See April 18 Letter. Moreover, the respective interests of American Airlines and TWA Airlines LLC are not sufficiently similar to those of TWA for purposes of obtaining voluntary conciliation and compliance. Furthermore, the absence of American Airlines and TWA Airlines LLC from the administrative proceedings has prejudiced them since they were deprived the opportunity to set forth their position that they had a legitimate, non-discriminatory reason for not assuming plaintiff's early retirement contract. Lastly, plaintiff has not alleged that defendants have in some way represented to her that their relationship with her is to be through TWA. Indeed, as noted above, plaintiff wrote directly to American Airlines asking it to reconsider its decision. Therefore, because plaintiff's failure to name defendants in her EEOC charge does not fall within the identity of interests exception, the ADEA charges against defendants should be dismissed. See Johnson, 931 F.2d at 210;Gallagher v. Int'l Bhd. of Elec. Workers, 127 F. Supp.2d 139, 144 (N.D.N.Y. 2000) (dismissing ADEA claim against defendants not named in EEOC charge); Smith v. Local Union 28 Sheet Metal Workers, 877 F. Supp. 165, 173 (S.D.N.Y. 1995) (dismissing pro se compliant against defendants not name in EEOC charge).

B. Employee under ADEA

Alternatively, even if defendants could be considered to fall within the identity of interests exception, defendants assert that plaintiff still cannot maintain a claim under the ADEA because she is not and was never an "employee" of either American Airlines or TWA Airlines LLC under the statute. In order to bring an action under the ADEA, a plaintiff must be an employee suing a former or current employer. See Hyland v. New Haven Radiology Assocs., 794 F.2d 793, 796 (2d Cir. 1986); Caruso v. Peat, Marwick, Mitchell Co., 664 F. Supp. 144, 146 (S.D.N.Y. 1987). The Act defines "employer" in general terms as "a person engaged in an industry affecting commerce who has twenty or more employees. . . ." 29 U.S.C. § 630(b). An "employee" is defined in the Act simply as "[a]n individual employed by an employer." 29 U.S.C. § 630(f). Aside from exceptions not relevant here, the ADEA provides no further guidance on the issue.

However, case law fleshes out the concept of an employee under the ADEA. "In the Second Circuit, to be an employee under the ADEA . . ., plaintiff must receive some type of job-related benefits." Campbell v. City Univ. Constr. Fund, No. 98 Civ. 5463, 1999 WL 435132, at *2 (S.D.N.Y. June 25, 1999) (citing Pietras v. Bd. of Fire Comm'rs of the Farmingville Fire Dist., Nos. 98-7334, 98-7486, 1999 WL 397993, at *3 (2d Cir. 1999)). Job related benefits include benefits such as a salary, pension, life insurance, and scholarships. See id. In addition, "plaintiff must show that she meets the definition of an employee under the common law test of agency." Id. (citing Frankel v. Bally, Inc., 987 F.2d 86, 89-90 (2d Cir. 1993)); see also Thomas v. Held, 941 F. Supp. 444, 450 (S.D.N.Y. 1996) (same). This inquiry mainly focuses on the right of the hiring party to control the "manner and means" through which the work is performed. See Frankel, 987 F.2d at 90.

Plaintiff in this case fails to meet either test. Plaintiff was never an employee, or even an applicant for employment, with either American Airlines or TWA Airlines LLC. Thus, plaintiff has never received any job-related benefits from defendants, and she cannot allege the existence of a relationship under the laws of agency. Although plaintiff's complaint alleges that she is a former employee of TWA, to whom she refers to as her "employer," this relationship with TWA provides no connection to either of the defendants in this case. Absent an employment relationship, plaintiff cannot state a claim against defendants for age discrimination under the ADEA.

Since plaintiff's ADEA claim can be dismissed on the two alternative grounds discussed above, it is not necessary to address defendants' third argument — that plaintiff cannot establish a prima facie case of age discrimination because plaintiff cannot rebut defendants' non-discriminatory reason for not assuming her early retirement contract.

Conclusion

For the foregoing reasons, defendants' motion to dismiss plaintiff's complaint is granted.

SO ORDERED.

CARCASOLE-LACAL v. AMERICAN AIRLINES, INC., (E.D.N.Y. 2003)