PARKER v. 4247 FX, INC. et al
MEMORANDUM AND OPINION. SIGNED BY HONORABLE C. DARNELL JONES, II ON 5/12/17. 5/12/17 ENTERED & E-MAILED. COPIES MAILED TO W. PARKER, G.R. PARKER. (fdc)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
WALTER PARKER and
GORDON ROY PARKER
4247 FX, INC., a Pennsylvania Corporation;
GARY KERSTEIN, a Pennsylvania Resident;
JOYCE PRENTISS, a Pennsylvania Resident;
MARLA KLEIN KERSTEIN, a Pennsylvania
Resident; ALAN H. KLEIN, a Pennsylvania
Resident; FAIRFAX APARTMENTS
ASSOCIATES, a Pennsylvania Corporation;
and, JOHN DOES #1-10
May 12, 2017
Pro se Plaintiffs Walter Parker and Gordon Roy Parker commenced the above-captioned
suit against Defendants, alleging: violations of the Fair Labor Standards Act and Pennsylvania
Wage Payment Collection Law; Breach of Contract; Fraudulent or Negligent Misrepresentation;
Unjust Enrichment; Conversion; and, violations of the Fair Housing Act. Presently before the
court is Defendants’ Motion to Dismiss Plaintiffs’ Amended Complaint for failure to state a
claim. For the reasons set forth below, Defendants’ Motion shall be granted, with leave for
Plaintiffs to amend particular claims, as specified herein.
Standard of Review
In deciding a motion to dismiss pursuant to Rule 12(b)(6), courts must “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.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (internal quotations
and citation omitted). After the Supreme Court’s decision in Bell Atlantic v. Twombly, 550 U.S.
544, 555 (2007), “[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 (2009). “A claim
has facial plausibility when the plaintiff pleads the factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged. Id. at 678 (citing
Twombly, 550 U.S. at 556). This standard, which applies to all civil cases, “asks for more than a
sheer possibility that a defendant has acted unlawfully.” Id. at 678; accord Fowler v. UPMC
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (“[A]ll civil complaints must contain more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.”) (internal quotation marks
Plaintiffs Walter and Gordon Roy Parker are brothers who live together at The Fairfax
apartment building in Philadelphia, Pennsylvania. (Am. Compl. ¶ 1.) For a time, Plaintiffs also
worked at The Fairfax as receptionists at “The Desk.” (Am. Compl. ¶ 14.) In 1988, Plaintiffs’
mother, Penny Parker, hired them to work in this position. (Am. Compl. ¶ 15.) Plaintiff Gordon
Parker was allegedly forced to resign from his position in October 1998, as a result of a
controversy with the University of Pennsylvania. (Am. Compl. ¶ 17.) He has not been a formal
employee at The Fairfax since that time. (Am. Compl. ¶ 17.) Penny Parker passed away in July,
2007, at which time Plaintiff Walter Parker took over her responsibilities as desk manager. (Am.
Compl. ¶ 19.)
Plaintiffs allege that from 2007 through 2016, Plaintiff Walter Parker was required to
provide full coverage for The Desk, with Plaintiff Gordon Parker covering for him at times when
Plaintiff Walter Parker was unavailable. (Am. Compl. ¶ 20.) Plaintiff Walter Parker alleges he
made himself available “at all times” in the event a time-sensitive issue relating to his duties at
The Desk needed resolution. (Am. Compl. ¶ 22.)
During the time that Plaintiff Walter Parker worked at The Desk, both Plaintiffs also
lived at The Fairfax. (Am. Compl. ¶ 1.) Plaintiffs paid a reduced monthly rent of $450. (Am.
Compl. ¶ 50.) This reduced monthly rent included an abatement of approximately $700 that
offset the $1,150 per month market value of the apartment Plaintiffs occupy at The Fairfax.
(Am. Compl. ¶ 48.)
Plaintiff Walter Parker left his position at The Desk on February 29, 2016. (Am. Compl.
¶ 57.) Plaintiff sent an Americans with Disabilities Act (ADA) notification to Defendants, which
he eventually withdrew. (Am. Compl. ¶ 58(a).) Plaintiff Walter Parker alleges that despite
submitting two medical clearances, he was prevented from returning to his job. (Am. Compl. ¶
On March 1, 2016, Plaintiffs put Defendants on notice of their unpaid-wage allegations.
(Am. Compl. ¶ 58.) Plaintiff Walter Parker claims he is owed a total of $44,567.50 for the
overtime he worked while he was on call. (Am. Compl. ¶ 25.) Plaintiff Walter Parker also
claims that Defendants have used his disability as a pretext for not allowing him to return to
work, and his constructive termination is, in fact, retaliation for his wage complaint. (Am.
Compl. ¶ 58(a).)
Claims Against John Doe Defendants
Plaintiffs name as Defendants “John Doe #1 through John Doe #10.” (Am. Compl. ¶ 7.)
These John Doe defendants are meant to serve as placeholders for “any other entities or
individuals, including but not limited to outside investors, who own and operate The Fairfax, or
who are officers who assist, directly or indirectly, in its day-to-day operations.” (Am. Compl. ¶
7.) Defendants urge this Court to dismiss all claims against the John Doe defendants, arguing
that while John Doe defendants may be used at times for privacy reasons, their use here is
inappropriate, as “Plaintiffs have personal knowledge of every Fairfax employee and discovery
will not reveal the existence of unknown parties.” (Defs.’ Mot. Dismiss 6 (citing Breslin v. City
and Cty. of Phila., 92 F.R.D. 764, 765 (E.D. Pa. 1981)).
Federal Rule of Civil Procedure 21 provides in pertinent part that “[o]n motion or on its
own, the court may at any time, on just terms, add or drop a party.” Fed.R.Civ.P. 21. In this
particular case, Plaintiffs have been residents of The Fairfax for decades. Moreover, Walter
Parker has been an employee of The Fairfax since 1988, while Gordon Parker was an employee
from 1988 through 1998. Plaintiffs filed their original Complaint on June 9, 2016 and amended
same on July 11, 2016. Under these circumstances, it is inconceivable there exist any additional
defendants that could be unveiled through discovery and would be appropriate to join at this
point in the litigation. 1 Accordingly, all claims against John Doe defendants #1 through #10
shall be dismissed with prejudice.
In fact, Plaintiffs have already demonstrated that they have devoted significant time and energy
in an attempt to identify as many defendants as possible by their inclusion of records from the
Pennsylvania Department of State’s website in their Amended Complaint, specifically
identifying the owners of The Fairfax and the officers affiliated with 4247 FX, Inc. (Am. Compl.
¶¶ 3, 4.) To the extent they claim Defendants “have gone to lengths” to keep the identities of
Fair Labor Standards Act Claims Against Individually-Named Defendants
In addition to naming 4247 FX, Inc. as a Defendant in this action, Plaintiffs have named
Joyce Prentis, Gary Kerstein, Marla Klein Kerstein, and Alan Klein as defendants in their
individual capacity. Defendants argue that Plaintiffs have failed to prove these defendants
should be held individually liable under the FLSA, and thereby move for dismissal of said
claims. (Defs.’ Mot. Dismiss 7, 9.) For the reasons set forth below, claims against Defendants
4247 FX, Inc., Joyce Prentis, and Alan Klein in their individual capacities shall be dismissed
with prejudice and the claims against Gary Kerstein and Marla Klein Kerstein shall be dismissed
with leave to amend.
In Count I of Plaintiffs’ Amended Complaint, Plaintiffs allege Defendants violated the
Fair Labor Standards Act, 29 U.S.C. §§ 201–219 (2012), by refusing to pay Plaintiff Walter
Parker for overtime worked at The Desk. (Am. Compl. ¶ 38.) Under the FLSA, an employer is
“any person acting directly or indirectly in the interest of an employer in relation to an
employee.” Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 148 (3d Cir. 2014) (citing
29 U.S.C. §203(d) (2012)). Individual liability may be imposed against a company’s owners,
officers, or supervisory personnel, provided that the individual “exercises ‘supervisory authority
over the complaining employee and was responsible in whole or part for the alleged violation’
while acting in the employer’s interest.” Id. at 153 (quoting Haybarger v. Lawrence County
Adult Prob. & Parole, 667 F.3d 408, 417 (3d Cir. 2012)).
alleged “outside investors” hidden (Am. Compl. ¶ 60), the remaining allegations in the Amended
Complaint clearly demonstrate that any such “investors” could not reasonably be deemed
“employers” under the FLSA. This Court further notes that prior to responding to the instant
motion, Plaintiffs filed a Motion for Summary Judgment, in which they sought an immediate
judgment (prior to commencement of any discovery) against the named defendants but did not
reference any John Does. (ECF No. 14.)
Plaintiffs provide brief explanations for including the individual defendants in their
Amended Complaint. Namely, Plaintiffs allege that 4247 FX is “the sole officer listed for
Defendant Fairfax Apartments Associates.” (Am. Compl. ¶ 3.) Plaintiffs go on to claim that
4247 FX is “Plaintiff’s [sic] employer as defined by the FLSA because it is acting indirectly
and/or directly in the interest of Defendant Fairfax Apartments Associates.” (Am. Compl. ¶
34(b).) Plaintiffs claim Ms. Prentis is “listed on the official Secretary of State website as an
officer (treasurer) of Defendant 4247 FX, and Walt’s employer as defined by the FLSA because
she is acting in/directly [sic] in the interest of Defendant Fairfax Apartments Associates.” (Am.
Compl. ¶ 34(c).) Mr. Kerstein is alleged to be the general manager of The Fairfax and is said to
have given “the direct order not to rehire Gordon at The Desk in 2006, resulting in Ms. Parker
working until just prior to her death.” (Am. Compl. ¶ 34(d).) Mr. Klein is described as “the
Klein family patriarch” and the owner of The Fairfax, and is “Plaintiff’s employer as defined by
the FLSA because he is acting indirectly and/or directly in the interest of Defendant Fairfax
Apartments Associates.” (Am. Compl. ¶ 34(e).) Finally, Ms. Klein Kerstein, Mr. Klein’s wife,
is described as having duties “equivalent to that of [Mr. Klein]; combined, they ‘run’ The Fairfax
. . . [and] . . . the occasional contact, including the harassing pounding on Plaintiffs’ door and
telephone call subsequent to the February 29, 2016 events was directed solely by her.” (Am.
Compl. ¶ 34(f).)
Plaintiffs do not allege facts sufficient to establish that Defendants 4247 FX, Inc., Joyce
Prentis, or Alan H. Klein can be held individually liable under the FLSA. The Amended
Complaint merely names these individual defendants, recites the language of the statute,
claiming that each individual defendant “is acting indirectly or directly in the interest of
Defendant Fairfax Apartments Associates[,]” and makes conclusory statements that are
immaterial to survival of the claims. Accordingly, all claims of individual liability against these
particular defendants shall be dismissed with prejudice.
Moreover, Plaintiffs’ Amended Complaint pleads insufficient facts to plausibly show that
Defendants Gary Kerstein and Marla Klein Kerstein had supervisory authority over the Plaintiffs
and were responsible in part or in whole for any FLSA violations. See Mackereth v. Kooma,
Inc., Civ. No. 14-4824, 2015 U.S. Dist. LEXIS 63143, at *20-21 (E.D. Pa. May 14, 2015)
(dismissing individual liability claims that were based solely on allegations that defendants were
corporate officers and “‘exercise[d] sufficient control over the labor policies and practices
complained of . . . to be considered employers of Plaintiffs’ within the meaning of the FLSA”
and concluding that the plaintiff needed “something more than the mere positions of the
individual defendants to show that they are Plaintiffs’ employers.”). Because Plaintiffs have
failed to plead facts that could plausibly demonstrate that either of these Defendants had
supervisory authority over Plaintiffs and were responsible for violating the FLSA, all claims
against them in their individual capacity shall be dismissed with leave to amend. 2
Counts I and II Alleging Unpaid Overtime and Unpaid On-Call Time in
Violation of the FLSA
Plaintiffs Walter Parker and Gordon Parker allege that Defendants have violated the Fair
Labor Standards Act by not compensating Plaintiffs for the overtime and on-call time they had
Plaintiffs’ assumption that it was Defendant Gary Kerstein who “gave the direct order not to
rehire Gordon at The Desk in 2006” is not only supposition, but is of no consequence. As this
Court discusses in detail hereinbelow, there are no circumstances under which Plaintiff Gordon
Parker can sustain a claim under the FLSA. To the extent Walter Parker is in possession of
additional facts to plausibly demonstrate the potential for Mr. Kerstein to ultimately be held
liable in his individual capacity, amendment shall be permitted. Moreover, even construing as
true Plaintiffs’ allegation that Ms. Kerstein “directed” some unidentified person or people to
pound on Plaintiffs’ door and telephone them “subsequent to the February 29, 2016 events[,]”
Plaintiffs’ provide no allegations to potentially demonstrate that this alleged activity had
anything to do with their employment. Again, one last opportunity for amendment shall be
provided with regard to this claim.
worked between 2007 and 2016. (Am. Compl. ¶¶ 36, 46.) Plaintiffs seek $44,567.50, which
they allege is the total amount of unpaid wages owed by Defendants. (Am. Compl. ¶ 41(a).)
With regard to Plaintiff Walter Parker’s uncompensated overtime claim, this Court does
not yet have enough information regarding the rent credit to properly determine whether
Defendants have adequately compensated Plaintiff for his scheduled overtime work, therefore
Defendants’ Motion to Dismiss that claim shall be granted with leave to amend. Plaintiff Walter
Parker’s claim for unpaid on-call time, and any claim by Gordon Parker shall be dismissed with
prejudice, as any amendment would be futile.
Plaintiff Walter Parker’s Overtime Compensation Claim
Plaintiff Walter Parker’s FLSA claim for overtime compensation raises three questions.
First, this Court must determine whether Plaintiff has sufficiently pleaded the existence of unpaid
overtime. Second, this Court must determine whether the reasonable costs of lodging can be
counted toward overtime compensation. Third, this Court must decide whether the $700 rent
credit at issue here is “reasonable” under Section 203(m) of the FLSA. For the reasons set forth
below, this Court grants Defendants’ Motion to Dismiss Plaintiff Walter Parker’s FLSA claim
for unpaid overtime, with leave to amend.
Sufficiency of the Amended Complaint
At the outset, this Court notes that while Defendants addressed Plaintiff Walter Parker’s
claims regarding on-call compensation, Defendants did not address his claims for
uncompensated overtime. Nevertheless, the court will determine whether said Plaintiff has
pleaded facts sufficient to state a claim for unpaid overtime under the FLSA. While there is little
case law in the Third Circuit to guide this Court’s analysis, a district court case out of the Middle
District provides a helpful summary regarding the manner in which the court should evaluate the
sufficiency of unpaid overtime claims at the motion to dismiss stage:
While highly specific figures need not be pleaded, Plaintiffs must be “able
to estimate the time periods in which they worked without proper overtime
compensation.” Mell v. GNC Corp., No. 10-945, 2010 U.S. Dist. LEXIS
118938, 2010 WL 4668966, at *8 (W.D. Pa. Nov. 9, 2010). Precise
records as to days and hours owed are not necessary, but instead “a just
and reasonable inference that in their capacity as employees . . . they
worked a concrete number of hours for which they were improperly
compensated.” Beaulieu v. Vermont, No. 2:10-cv-00032, 2010 U.S. Dist.
LEXIS 101192, 2010 WL 3632460 at *5 (D. Vt. Aug. 5, 2010) (finding
individualized determinations as to each Plaintiff based on a weekly
estimate sufficient to meet the pleading standards). Of course, “[t]he
critical component of a complaint alleging violations of Section 207 is an
approximation of the number of unpaid weekly overtime hours worked
over the employment period.” Id. “At a minimum, it must set forth the
approximate number of unpaid regular and overtime hours allegedly
worked.” Nakahata v. New York-Presbyterian Healthcare System, Inc.,
Nos. 10 Civ. 2661(PAC), 10 Civ. 2662(PAC), 10 Civ. 2683(PAC), 10 Civ.
3247(PAC), 2011 U.S. Dist. LEXIS 3585, 2011 WL 321186 at *4
(S.D.N.Y. Jan. 28, 2011).
Attanasio v. Cmty. Health Sys., Civ. No. 11-CV-582, 2011 U.S. Dist. LEXIS 121764, at
*20–21 (M.D. Pa. Oct. 20, 2011).
Under this standard, Plaintiff Walter Parker has pleaded sufficient facts to state a
claim for relief under the FLSA. Plaintiffs’ Amended Complaint alleges that Walter
Parker has worked overtime without compensation from 2007 through 2016. (Am.
Compl. ¶ 25.) Plaintiff Walter Parker also provides specific figures for the number of
scheduled hours he worked per week from August 23, 2015, through February 28, 2016.
(Am. Compl. ¶ 26.) Plaintiff has not yet provided evidence to support these assertions,
but specific evidence is not required at this stage in the litigation. Plaintiff need only
provide an estimate of overtime worked. Based on Plaintiffs’ Amended Complaint, it is
plausible that Plaintiff Walter Parker has worked overtime between 2007 and 2016
without sufficient compensation.
Rent Credit as Compensation
Next, based on the facts as alleged in the Amended Complaint, it is likely The Fairfax
may properly include a rent credit towards any compensation owed to Plaintiffs. The FLSA
provides that the reasonable costs of lodging may be included in determining paid wages:
“Wage” paid to any employee includes the reasonable cost, as determined
by the Administrator [Secretary], to the employer of furnishing such
employee with board, lodging, or other facilities, if such board, lodging, or
other facilities are customarily furnished by such employer to his
employees: Provided, That the cost of board, lodging, or other facilities
shall not be included as part of the wage paid to any employee to the
extent it is excluded therefrom under the terms of a bona fide collectivebargaining agreement applicable to the particular employee: Provided
further, that the Secretary is authorized to determine the fair value of such
board, lodging, or other facilities for defined classes of employees and in
defined areas, based on average cost to the employer or to groups of
employers similarly situated, or average value to groups of employees, or
other appropriate measures of fair value. Such evaluations, where
applicable and pertinent, shall be used in lieu of actual measure of cost in
determining the wage paid to any employee.
29 USCS § 203(m).
If the lodging provided is primarily for the benefit of the employer, not the employee,
then it cannot be included in the wages of an employee. 29 CFR § 531.32. Accordingly, “when
the employer pays for ‘board, lodging, or other facilities,’ it may add the costs of those facilities
to the cash wage for purposes of complying with the FLSA minimum, [unless they are provided]
primarily for the benefit or convenience of the employer.’” Rivera v. Brickman Group, Ltd., Civ.
No. 05-1518, 2008 U.S. Dist. LEXIS 1167, at *25–26 (E.D. Pa. Jan. 7, 2008).
Construing Plaintiffs’ Amended Complaint liberally as this Court must do, the rent credit
was not provided primarily for the benefit of Defendants. Plaintiffs were not required to live in
The Fairfax as a condition of Plaintiff Walter Parker’s employment. In fact, Plaintiffs
acknowledged that they “could easily have lived elsewhere” and had even considered purchasing
a house or condominium in 2015, while Plaintiff Walter Parker was still a full-time employee.
(Am. Compl. ¶¶ 50, 76(b).)
Plaintiffs make a number of conclusory allegations, claiming that Plaintiff Walter Parker
was “chained” to The Desk and on-call “24/7/365,” but at no point do they allege any facts from
which to infer that The Fairfax required Plaintiffs to live on site for the convenience or benefit of
Defendants. (Am. Compl. ¶¶ 21, 22.) Because Plaintiffs have not established that the rent credit
was provided primarily for the benefit of The Fairfax, this Court finds that the rent credit may be
counted toward overtime compensation.
Value of the Rent Credit
This Court now turns to the question of the rent credit’s value. This determination turns
on Section 203(m)’s use of the term “reasonable cost.” The Department of Labor defines
reasonable cost as “not more than the actual cost to the employer of the board, lodging, or other
facilities customarily furnished by him to his employees.” 29 CFR § 531.3(a). “Reasonable cost
does not include a profit to the employer or to any affiliated person.” 29 CFR § 531.3(b).
According to the Department of Labor, there are three methods to determine reasonable
(1) An employer may calculate the “reasonable cost” of facilities in
accordance with the requirements set forth in § 531.3; (2) an employer
may request that a determination of “reasonable cost” be made, including
a determination having particular application; and (3) an employer may
request that a determination of “fair value” of the furnished facilities be
made to be used in lieu of the actual measure of the cost of the furnished
facilities in assessing the “wages” paid to an employee.
29 CFR § 531.33.
Therefore, although an employer has the option of requesting a determination from the
Administrator, it is not required to do so in order to claim the credit. This Court has no
indication that The Fairfax has requested a reasonable cost determination from the
Administrator. If The Fairfax was to determine the “reasonable cost” in accordance with §
531.3, it would have to determine “the cost of operation and maintenance including adequate
depreciation plus a reasonable allowance (not more than 5 ½ percent) for interest on the
depreciated amount of capital invested by the employer[.]” 29 CFR § 531.3(c). There is also no
indication in the pleadings that The Fairfax has made this calculation.
At this point, this Court does not have sufficient evidence to determine whether the $700
rent credit is the “reasonable cost” of lodging as defined by Section 203(m) of the FLSA. The
$700 credit might be the difference between the fair market value of Plaintiffs’ apartment and
what they pay in monthly rent, but the apartment’s fair market value is not relevant to the
calculation of reasonable cost. Reasonable cost only includes the actual cost to the employer; it
does not include profit. For this reason, this Court is unable to conclusively determine the
amount of the rent credit that can be properly counted as compensation for any overtime Plaintiff
may have worked. Accordingly, Defendants’ Motion to Dismiss Plaintiff’s claim for unpaid
overtime shall be granted with leave for Plaintiffs to amend.
Plaintiff Walter Parker’s Unpaid On-Call Time Claim
On-call time can be compensable under the FLSA, but the Supreme Court has not
established a “bright line rule” to determine whether hours spent on call qualify for
compensation. Ingram v. Cty. of Bucks, 144 F.3d 265, 267 (3d Cir. 1998) (citing Skidmore v.
Swift, 323 U.S. 134 (1944)). The Department of Labor has issued regulations regarding on-call
time, and the Third Circuit has held that those regulations are “entitled to substantial deference.”
Ingram, 144 F.3d at 268 (citing Elizabeth Blackwell Health Center for Women v. Knoll, 61 F.3d
170, 182 (3d Cir. 1995); 29 CFR § 553.221).
The Third Circuit, in interpreting the Department of Labor regulations, has established
four factors to help courts determine whether on-call time is compensable under the FLSA:
First, whether the employee may carry a beeper or leave home; second, the
frequency of calls and the nature of the employer’s demands; third, the
employee’s ability to maintain a flexible on-call schedule and switch oncall shifts; and fourth, whether the employee actually engaged in personal
activities during on-call time. If these factors reveal onerous on-call
policies and significant interference with the employee’s personal life,
Courts have held that on-call time is compensable.
Ingram, 144 F.3d at 268; see also Genarie v. PRD Mgmt., Civ. No. 04-2082, 2006 U.S. Dist.
LEXIS 9705, at *48 (D.N.J. Feb. 17, 2006) (finding on-call time was not compensable and
granting summary judgment where plaintiffs conceded that they were “free to engage in personal
pursuits while on call.” ).
Plaintiff Walter Parker has not alleged facts sufficient to state a claim for relief for
uncompensated on-call time under the FLSA. Plaintiffs’ Amended Complaint includes
conclusory allegations, claiming Plaintiff was “‘on call’ literally ‘24/7/365.’” (Am. Compl. ¶
21.) Plaintiff also claims that he was “on a ‘short leash,’ perpetually ‘chained’ to the Desk.”
(Am. Compl. ¶ 22.) In the same paragraph, however, Plaintiff concedes that he was “free to
conduct some personal business during his on-call time.” (Am. Compl. ¶ 22.) Said Plaintiff also
claims that he has been unable to use any of his personal days and that he has adjusted his sleep
schedule in case he is called in for an unscheduled double shift. (Am. Compl. ¶ 23.) He includes
no information in his Amended Complaint regarding the frequency with which he received calls
from his employer, how often he had to cover another employee’s shift, the flexibility with
which he was permitted to switch on-call shifts with other employees, or whether he was forced
to carry a beeper or similar device.
Casting aside conclusory allegations regarding being “chained” to the Desk, Plaintiff
Walter Parker has merely stated that he was frequently on call in case of an emergency or in case
another employee did not show up for their shift, while also conceding that he was able to
conduct personal business during times when he believed he was on call. Assessing Plaintiff
Walter Parker’s claim for on-call under the FLSA in conjunction with the Department of Labor’s
regulations and the Third Circuit’s interpretation of those regulations, said Plaintiff cannot
plausibly sustain his claim and amendment would be futile. Accordingly, said claim is dismissed
Plaintiff Gordon Parker’s Employment Status
The threshold inquiry in an FLSA case “is whether the plaintiff has alleged an actionable
employer-employee relationship.” Thompson, 748 F.3d at 148. This relationship, in the context
of an FLSA claim, is expansive. The Third Circuit has instructed:
When determining whether someone is an employee under the FLSA,
“economic reality rather than technical concepts is to be the test of
employment.” Under this theory, the FLSA defines employer
“expansively,” and with “striking breadth.” The Supreme Court has even
gone so far as to acknowledge that the FLSA’s definition of an employer
is “the broadest definition that has ever been included in any one act.”
In re Enterprise Rent-A-Car Wage & Hour Emp’t Prac. Litig., 683 F.3d 462, 467–68 (3d Cir.
2012) (citations omitted).
Even under this expansive definition, Plaintiff Gordon Parker was not an employee of
The Fairfax between 2007 and 2016. By his own admission, Mr. Parker resigned from his
position at The Fairfax in October of 1998. (Am. Compl. ¶ 17.) While Plaintiff Gordon Parker
alleges that he at times worked in Plaintiff Walter Parker’s stead, the Amended Complaint is
devoid of any specific instances when Plaintiff Gordon Parker functioned as an employee of The
Fairfax after his resignation. (Am. Compl. ¶ 20.) Plaintiffs specifically allege that Plaintiff
Walter Parker is due unpaid overtime wages which accrued from when he was on call, but
Plaintiffs allege no specific unpaid wages for Gordon Parker. (Am. Compl. ¶¶ 25, 26.)
These facts, when viewed in the light most favorable to the Plaintiffs, fail to establish that
Plaintiff Gordon Parker was an employee of The Fairfax at any time between 2007 and 2016. As
such, Count II—as far as it is a claim brought by Plaintiff Gordon Parker against Defendant The
Fairfax—shall be dismissed with prejudice.
Count III: Retaliation Under the FLSA
Plaintiffs claim Defendants have retaliated against them for filing an FLSA claim in
violation of 29 U.S.C. §§ 218(a)(2) and 218(c)(a)(1-5). 3 Specifically, Plaintiffs allege that after
they raised their wage concerns, Walter Parker was “constructively terminated” when The
Fairfax refused to allow him to return to his position at The Desk after he had left due to a “selfreported disability.” (Am. Compl. ¶ 58(a).) Plaintiffs further claim that after they raised their
wage concerns, Walter Parker’s position “was either abolished, or given to someone else, with
the rent on Plaintiffs’ apartment raised to $1,000.00 effective September 1, 2016.” (Am. Compl.
It is well settled that:
Claims for retaliation under the FLSA are analyzed under the three-part burdenshifting framework prescribed by McDonnell Douglas. Cononie v. Allegheny Gen.
Hosp., 29 F. App'x 94, 95 (3d Cir. 2002).
Under that framework, to make out a claim for retaliation a plaintiff must show
that (1) [s/he] engaged in protected activity, (2) [s/he] experienced an adverse
Plaintiffs reference 29 U.S.C. § 218(a)(2) in their Amended Complaint. Because § 218(a)(2)
does not exist, this Court shall assume Plaintiffs intended to invoke 29 U.S.C. § 215(a) and 29
U.S.C. § 218c(a)(1)-(5).
employment action after or contemporaneous to the protected activity, and (3)
there was a causal connection between the protected activity and the adverse
employment action. Marra v. Phila. Hous. Auth., 497 F.3d 286, 300 (3d Cir.
2007); Woodson v. Scott Paper Co., 109 F.3d 913, 920 (3d Cir. 1997). If the
plaintiff succeeds in making a prima facie case, the burden is returned to the
defendant to establish a legitimate, nonretaliatory reason for the adverse
employment action. Woodson, 109 F.3d at 920 n.2. If the defendant meets the
burden of producing evidence of a nonretaliatory reason for the action, then the
ultimate burden of persuasion returns to the plaintiff who must prove that the
alleged reason proffered by the defendant were pretextual. Marra, 497 F.3d at 300
(citing Moore v. City of Phila., 461 F.3d 331, 342 (3d Cir. 2006)).
Chickilly v. Panther Valley Sch. Dist., Civ. No. 14-2173, 2016 U.S. Dist. LEXIS 129840, at *2223 (M.D. Pa. Sept. 21, 2016). This Court recognizes that “while [Plaintiffs are] not required to
prove a prima facie case at the motion to dismiss stage, [they are] required to meet the
heightened pleading requirements of Twombly and ‘put forth allegations that raise a reasonable
expectation that discovery will reveal evidence of the necessary element[s].’” Morton v. Arnold,
618 F. App’x 136, 141 (3d Cir. 2015) (internal citations omitted).
Plaintiff Gordon Parker’s retaliation claim necessarily fails because he has not been an
employee of The Fairfax since 1998. The absence of an employer-employee relationship makes
retaliation under the FLSA a legal impossibility.
With regard to Walter Parker, he alleges he “was forced to take indefinite leave from The
Desk for an unrelated reason” on February 29, 2016. (Am. Compl. ¶ 57.) Walter Parker claimed
a self-reported disability and had filed a request under the Americans with Disabilities Act, 42
U.S.C. §§ 12111 et seq. (“ADA”), which he eventually withdrew. (Am. Compl. ¶ 58(a).) 4 At
this point, Defendants had not yet been put on notice of any sort of wage complaint. 5
Defendants note that although they were not legally required to do so, they provided
Defendant Walter Parker with five (5) weeks of unpaid leave when he initially claimed a medical
disability, and agreed to hold his job open until June 1, 2016. (Defs.’ Mot. Dismiss 3-4.)
Plaintiffs allege “[s]ince March 1, 2016, when Defendants were put on notice of the unpaidwage allegations, they have retaliated against the Plaintiffs in numerous ways . . . ” (Am.
In response to Defendants’ Motion to Dismiss, Plaintiffs have included the text of the
letter Plaintiff Walter Parker sent to Defendants on March 18, 2016, in which Walter Parker
voluntarily resigns from his position at The Desk and confirms he took a leave of absence on
February 29, 2016. (Pls.’ Opp’n Mot. Dismiss 4.) 6 Specifically, Walter Parker wrote that the
“work-related progression of my ADHD/Asperger’s condition necessities that I undergo a rather
extensive medical evaluation process related to my employment and general employability, as it
relates to the desk job.” (Pls.’ Opp’n Mot. Dismiss 4.) Walter Parker additionally wrote that he
was “only capable of working in a highly-structured environment” where he would “not deal
with the public.” (Pls.’ Opp’n Mot. Dismiss 4.)
After receiving this letter, Defendants requested that Plaintiff submit a medical evaluation
confirming he was “capable of performing the essential functions of this job[,]” which
necessarily included working with the public. (Defs.’ Mot. Dismiss 4.) Defendants maintain
that Walter Parker submitted a medical evaluation which improperly named him as “Mr. Walter”
and included no discussion of Mr. Parker’s abilities to perform the essential functions of his job.
Compl. ¶ 58.) Plaintiffs do not provide any indication as to the nature of the “notice” to which
they refer. However, for the reasons set forth herein, this omission is of no consequence.
In deciding a motion to dismiss, courts may consider the allegations contained in the complaint,
attached exhibits, and matters of public record. Pension Benefit Guar. Corp. v. White Consol.
Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). The court may also consider indisputably
authentic documents submitted to the court without converting the motion to dismiss into a
motion for summary judgment. Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004). Although a
copy of Plaintiff Walter Parker’s notice of self-reported disability is not attached to the Amended
Complaint, both parties reference the notice and Plaintiffs provide an excerpt from same in their
Opposition to Defendants’ Motion. In this case, neither party disputes the authenticity of the
letter Plaintiff Walter Parker submitted to Defendants regarding his subsequently withdrawn
ADA request (Pls.’ Opp’n Defs.’ Mot. Dismiss 4).
(Defs.’ Mot. Dismiss 4.) Therefore, Defendants requested a more detailed medical evaluation
but received no response from Walter Parker. (Defs.’ Mot. Dismiss 4.) 7
Construing the facts set forth in Plaintiffs’ Amended Complaint as true, Plaintiffs are
unable to meet the minimal pleadings standards for sustaining a retaliation claim under the
FLSA. As a preliminary matter, Plaintiffs’ pleadings are devoid of facts from which one could
plausibly infer that Walter Parker was engaged in any protected activity. Moreover, Walter
Parker was not discharged from his position; he himself raised the issue of his suitability, failed
to provide the necessary medical clearances afterwards, and then—of his own volition—decided
not to return to the job. The pleadings further demonstrate that Walter Parker was given ample
opportunity to obtain the necessary medical clearances to perform the essential functions of his
job and failed to do so.
Because Plaintiffs have failed to plead a plausible claim of retaliation under the FLSA,
Defendants’ Motion to Dismiss same shall be granted and said claim shall be dismissed with
Defendants further note that Walter Parker never returned to work but instead, filed the instant
lawsuit. Once Defendants realized Walter Parker was not returning to work, they notified
Plaintiffs in March, April and June that effective September 1, 2016, the rent credit would end.
However, Defendants offered Plaintiffs a continued rental rate that was lower than that offered to
the public for a similar apartment unit. (Defs.’ Mot. Dismiss 5.)
In further support of dismissal, Defendants argue that Plaintiffs’ FLSA retaliation claim is
precluded for failure to exhaust administrative remedies pursuant to 29 U.S.C. §218c(b)(1) and
15 U.S.C. § 2087(b). (Defs.’ Mot. Dismiss 12.) However, neither of these statutory provisions
requires an employee to file a complaint of discrimination with the Secretary of Labor prior to
commencing suit in federal court. Instead, both statutory provisions provide that an employee
“may” do so. In response to the instant Motion, Plaintiffs have attached a letter from the U.S.
Department of Labor dated April 18, 2016, in which the Department references the fact that
Plaintiff Walter Parker “recently” contacted them regarding “a complaint that the above-named
employer failed to pay proper over time under the Fair Labor Standards Act (FLSA).” (Pls.’
Opp’n Mot. Dismiss, Ex. A.) Although the letter did not reference any retaliation complaint by
Plaintiff Walter Parker, it informed him of the Department’s decision to decline to investigate his
wage claim and notified him of his right to bring a private legal action. Because Plaintiffs were
E. Count IX: Fair Housing Act
Plaintiffs next allege that all Defendants are in violation of the Fair Housing Act, 42
U.S.C. §§ 3601 et seq. (“FHA”). Specifically, Plaintiffs allege that their “status as disabled
individuals” is directly responsible for their treatment by Defendants, which includes being
treated as “serfs,” the “human-trafficking” of Plaintiff Gordon Parker, the inability to select an
apartment, and “encouraging internet harassment and threats against Plaintiff Gordon Roy
Parker, in collusion with UPenn.” (Am. Compl. ¶ 89.)
The Fair Housing Act makes it unlawful “[t]o discriminate in the sale or rental, or
otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of
that buyer or renter[.]” 42 U.S.C. § 3604(f)(1). The FHA provides that “‘handicap’ means, with
respect to a person, a physical or mental impairment which substantially limits one or more of
such person’s major life activities, a record of having such an impairment, or being regarded as
having such an impairment.” 42 U.S.C. § 3602(h).
Plaintiffs’ Amended Complaint is devoid of any allegations that either of them has a
specific handicap as defined by the FHA. Plaintiffs state that Gordon Parker “assumed the
caregiver role” for Plaintiff Walter Parker after the death of their mother. (Am. Compl. ¶ 19.)
They further allege they are “mutual caregivers and mutually disabled.” (Am. Compl. ¶ 23(c).)
However, absent any allegations of a specific condition that would constitute a “handicap” as
defined by the FHA, their claim fails.
Additionally, the Amended Complaint is similarly devoid of any facts to indicate
potential discrimination based on a handicap as defined by the FHA. Plaintiffs allege that they
were forced to move to their current apartment in February of 2008, and were not permitted to
not required to exhaust their administrative remedies with regard to their retaliation claim,
Defendants’ argument on this point is without merit.
change apartments “as a regular tenant paying full rent would.” (Am. Compl. ¶ 49.) Aside from
this allegation being contradictory to others contained within the Amended Complaint, at no
point do Plaintiffs claim that this alleged treatment by Defendants was attributable to any
purported “handicap” they might have.
Because Plaintiffs have failed to allege a specific handicap and discrimination on the
basis of that handicap, the Fair Housing Act claim as contained in Count IX of Plaintiffs’
Amended Complaint shall be dismissed. Inasmuch as it appears any further attempt to amend
this claim would be futile, said dismissal is with prejudice.
State Law Claims
Plaintiffs allege Defendants have violated Pennsylvania’s Wage Payment Collection Law
(WPCL), and also raise common law claims for breach of contract, fraudulent or negligent
misrepresentation, unjust enrichment, and conversion. (Am. Compl. ¶¶ 63,74, 76, 86, 87.) For
the reasons set forth below, each of Plaintiffs’ state law claims shall be dismissed.
Common Law Claims
Plaintiffs’ common law claims are duplicative of their FLSA claims and must be
dismissed. In particular, when state law claims are based on the same set of facts and
circumstances as a plaintiff’s FLSA claim, the FLSA preempts said state law claims. See
Preobrazhenskaya v. Mercy Hall Infirmary, 71 F. App’x 936, 941 (3d Cir. Pa. 2003) (affirming
dismissal of common law claim stemming “from the same set of facts as the claim under the
FLSA” because FLSA provided a remedy).
Each of Plaintiffs’ common law claims is based on the same set of facts as Plaintiffs’
federal law claims. Plaintiffs premise their breach of contract claim on the amount of the rent
credit and its application to their overtime and on-call wages due, as well as the rental suitability
of their unit in the Fairfax. (Am. Compl. ¶¶ 67, 70, 71.) Plaintiffs’ negligent or fraudulent
misrepresentation claims are also based on the rent credit and the rental suitability of their unit.
(Am. Compl. ¶ 76.) Plaintiffs’ unjust enrichment and conversion claims are also both focused on
the rent credit. (Am. Compl. ¶ 80.) Each of these common law claims are focused squarely on
the monthly rent credit, which is at the heart of Plaintiffs’ FLSA claims. As such, said claims are
preempted by the FLSA and shall be dismissed. 9
Plaintiffs’ only remaining state law claim, which is premised on the WPCL, must also be
dismissed. The Third Circuit has noted that the WPCL “does not create a right to compensation
. . . rather, it provides a statutory remedy when the employer breaches a contractual obligation to
pay earned wages. The contract between the parties governs in determining whether specific
wages are earned.” Antol v. Esposto, 100 F.3d 1111, 1117 (3d Cir. 1996) (quoting Weldon v.
Kraft, Inc., 896 F.2d 793, 801 (3d Cir. 1990)).
Nowhere in Plaintiffs’ Amended Complaint do they allege the existence of an
employment contract between themselves at the Fairfax. Instead, Plaintiffs merely allege that
Walter Parker replaced his mother as desk manager after her death on July 26, 2007. (Am.
Compl. ¶ 19.) Other than this, Plaintiffs do not comment on whether an employment contract,
either written or oral, exists. Without this allegation, Plaintiffs cannot establish the necessary
breach of contractual obligation that could plausibly sustain a claim for relief under the WPCL.
Accordingly, said claims shall be dismissed with leave to amend.
Said dismissal shall be without prejudice to re-raise same in state court, in the event Plaintiffs
are unable to sustain their pleading burden on their FLSA claims.
Futility of Amendment
In their Opposition to Defendants’ Motion, Plaintiffs write “[a]ny defects in pleading can
be remedied with leave to amend.” (Pls.’ Mem. Opp’n Mot. Dismiss 1.) A district court is
justified in denying leave to amend based on “undue delay, bad faith, dilatory motive, prejudice,
and futility.” In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997)
(citing Forman v. Davis, 371 U.S. 178, 182 (1962)). Futility, in this context, “means that the
complaint, as amended, would fail to state a claim upon which relief could be granted.” In re
Burlington Coat Factory Sec. Litig., 114 F.3d at 1434 (citing Glassman v. Computervision Corp.,
90 F.3d 617, 623 (1st Cir. 1996)).
In this case, Plaintiffs have already been given an opportunity to amend their Complaint
and they did so on July 11, 2016 by filing an extensive, 31-page Amended Complaint that
chronicles—in particular detail—the circumstances surrounding their decades’ long relationship
with Defendants. Recognizing that “[i]f a complaint is subject to dismissal, ‘a district court must
permit a curative amendment unless such an amendment would be inequitable or futile[,]’”
McCann v. Borough of Magnolia, 581 F. App’x 125, 126 (3d Cir. 2014) (citing Phillips v. Cnty.
of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008)). See also Utah v. Strayer Univ., 667 F. App’x
370, 372 (3d Cir. 2016) (“[I]n light of the nature of the allegations set forth in [Plaintiff's]
amended complaint, which at times border on the frivolous, we conclude that the District Court
did not abuse its discretion in determining that allowing him leave to amend his complaint would
have been futile.”) (citing Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002)).
Taking this standard into consideration, this Court declines to grant Plaintiffs leave to amend
their claims against the John Doe defendants, 4247 FX, Inc., Joyce Prentis, and Alan H. Klein.
This Court also declines to grant Plaintiffs leave to amend their FLSA uncompensated on-call
claims, as well as their state common law claims
Having pointed out the deficiencies in Plaintiffs’ remaining claims, this Court shall grant
Plaintiffs leave to amend same because there is a possibility that “a properly amended complaint
would state a claim upon which” Plaintiffs could obtain relief. Grayson, 293 F.3d at 109.
Accordingly, Plaintiffs may amend their complaint insofar as they are able to provide this Court
with additional details regarding their individual FLSA liability claims against Defendants Gary
Kerstein and Marla Klein Kerstein, Walter Parker’s overtime claim under the FLSA, and
Plaintiffs’ WPCL claim, to the extent they might be able to provide more information regarding
the contractual obligation they believe Defendants have violated.
For the reasons set forth hereinabove, Defendants’ Motion to Dismiss shall be granted
and Plaintiff’s claims against all John Doe defendants, as well as all claims against 4247 FX,
Inc., Joyce Prentis, and Alan H. Klein in their individual capacities, and Counts II, III and IX are
dismissed with prejudice.
Defendants’ Motion to Dismiss shall be granted with leave for Plaintiffs to amend as to
Counts I and IV, as well as to Plaintiffs’ FLSA individual liability claims against Defendants
Gary Kerstein and Marla Klein Kerstein. Counts V, VI, VII, and VIII shall also be dismissed, in
accordance with Footnote 9 herein.
An appropriate Order follows.
BY THE COURT:
/s/ C. Darnell Jones, II J.
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