Bellinger et al v. Old Pine Community Center

Filing 14

MEMORANDUM OPINION; ETC.. SIGNED BY HONORABLE TIMOTHY J. SAVAGE ON 6/3/21. 6/4/21 ENTERED AND E-MAILED.(JL )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JEANETTE BELLINGER, JARED DE
URIARTE, KHALIF MARTINS,
GABRIELLE RUMNEY and
ISABELLE RUSSELL
v.
OLD PINE COMMUNITY CENTER

:
:
:
:
:
:
:
:

CIVIL ACTION

NO. 21-757

MEMORANDUM OPINION
Savage, J.

June 3, 2021

This case arises from Old Pine Community Center’s termination of five employees
during the COVID-19 pandemic. The former employees have sued Old Pine for violating
the Philadelphia COVID-19 Anti-Retaliation Ordinance, the Philadelphia Paid Sick Leave
Ordinance (“Ordinance”) and the Families First Coronavirus Relief Act (“FFCRA”), and for
retaliating against them for exercising their rights under these laws.
Old Pine moves to dismiss only the claim under the Philadelphia Paid Sick Leave
Ordinance. It argues plaintiffs have failed to state a claim for violation of and retaliation
under the Ordinance. Because plaintiffs have sufficiently alleged facts that, if proven,
support a claim under the Ordinance, we shall deny Old Pine’s motion.
Plaintiffs’ Allegations
Defendant Old Pine Community Center offers a feeding program for low-income
residents and an after-school summer camp in Philadelphia. 1 Plaintiffs were employed

1

Compl. at ¶¶ 1, 36 (ECF No. 1).

by Old Pine until August 3, 2020. 2 On July 22, 2020, after an employee tested positive
for COVID-19, 3 Old Pine announced it would shut down its community center until July
27 and instructed its employees to get tested for COVID-19. 4 It advised employees to
work from home in the meantime. 5 When plaintiffs asked if they would be compensated
for working remotely, Old Pine “refused to respond.” 6
On July 24, nine employees, including the five plaintiffs, sent a letter complaining
about their treatment during the pandemic to Old Pine’s Board of Managers. 7 They
blamed Old Pine for a “lack of clear communication of accrual of paid sick leave for all
employees.” 8 They accused Old Pine of fostering a “culture of intimidation and toxicity,”
putting them in “[f]ear of retaliation and retribution in voicing concerns.”9
Ten days later, on August 3, Old Pine terminated five of the nine employees. They
are Jeanette Bellinger, Old Pine’s former Lead Youth Counselor; Jared de Uriarte, the
former Administrative Coordinator; Khalif Martins, a former maintenance employee;
Gabrielle Rumney, a former Youth Counselor/Care Package Coordinator; and Isabelle
Russell, a former program coordinator. 10

2

Id.

3

Id. at ¶ 18; see also Compl. Ex. A (“July 24 Letter”).

4

Compl. at ¶ 19.

5

Id. at ¶ 23.

6

Id.

7

Id. at ¶ 21; see also July 24 Letter.

8

July 24 Letter.

9

Id. (bold and italics in original).

10

Compl. at ¶¶ 12-16.

2

After their termination, plaintiffs filed a charge with the Mayor’s office, as required
by the Ordinance, to investigate whether Old Pine violated the Ordinance. 11 After the
Mayor’s office issued its Determination of Reasonable Cause on January 14, 2021,
plaintiffs timely filed suit. 12
Legal Standard
A Rule 12(b)(6) motion tests the sufficiency of the allegations contained in the
complaint. To survive, “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)). A claim
is plausible “when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556
U.S. at 678.
A conclusory recitation of the elements of a cause of action is insufficient. Phillips
v. Cty of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). The plaintiff must allege facts
necessary to make out each element. Id. (quoting Twombly, 550 U.S. at 563 n.8). In
other words, the complaint must contain facts which, if proven later, support a conclusion
that a cause of action can be established.
In considering a motion to dismiss under Rule 12(b)(6), the court must first
separate the factual and legal elements of a claim, accepting the well-pleaded facts as
true and disregarding legal conclusions. The court next determines whether the facts
alleged, if proven, show that the plaintiff has a plausible claim for relief. Fowler v. UPMC

11

Id. at ¶ 5.

12

Id. at ¶ 6.

3

Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (quoting Iqbal, 556 U.S. at 679). In
making this determination, all well-pleaded allegations of the complaint must be accepted
as true and interpreted in the light most favorable to the plaintiff, and all inferences must
be drawn in his favor. See McTernan v. City of York, 577 F.3d 521, 526 (3d Cir. 2009).
Analysis 13
In 2015, the City of Philadelphia enacted the “Promoting Healthy Families and
Workplaces” ordinance to provide paid and unpaid sick leave to certain employees
working within the city. See Phila. Code § 9-4100 et seq. The Ordinance “ensure[s] that
workers employed in the City of Philadelphia can address their own health needs . . . by
requiring employers to provide a minimum level of paid sick days. . . .” Id. at § 9-4102(1).
It guarantees eligible employees up to 40 hours of paid sick leave per year. Id. at §§ 94104(1)-(2). It also requires employers to “give notice that employees are entitled to sick
time, the amount of sick time, and the terms of its use guaranteed” by the law. Id. at § 94107(1).
Plaintiffs claim that Old Pine violated the Ordinance when it did not pay them sick
time for leave taken, track their accrued sick time, carry over sick time from year to year
and provide notice of their rights under the law. 14 They also allege that Old Pine retaliated
against them for complaining about Old Pine’s failure to comply with the Ordinance and
attempting to exercise their rights under it. 15

13 We have subject matter jurisdiction pursuant to 28 U.S.C § 1331 because plaintiffs assert an
FFCRA claim. We exercise supplemental jurisdiction over the non-federal claims because they arise from
the same case or controversy. 28 U.S.C. § 1367(a); De Ascensio v. Tyson Foods, Inc., 342 F.3d 301, 308
(3d Cir. 2003).
14

Compl. at ¶ 59.

15

Id.

4

The Ordinance grants all “employees as defined in this Chapter . . . the right to sick
time” and makes it “unlawful for an employer or any other person to interfere with, restrain,
or deny the exercise of, or the attempt to exercise, any right protected under this Chapter.”
Id. at §§ 9-4104(1); 9-4106(1). The Ordinance defines an “Employee” as:
any individual employed by an employer who performs work within the
geographic boundaries of the City of Philadelphia for at least 40 hours in a
year; but excluding independent contractors, seasonal workers, adjunct
professors, employees hired for a term of less than six months, interns, pool
employees, State and Federal employees, and employees covered by a
bona fide collective bargaining agreement.
Id. at § 9-4103(3).
Old Pine contends Russell is not an employee under the Ordinance. It does not
dispute that the remaining four plaintiffs are covered employees. It claims that at the time
Russell was employed at Old Pine she was a student at Drexel University and was an
intern who was hired for a term of less than six months. 16 To support these assertions,
Old Pine attaches what it claims is Russell’s offer letter. 17
As an intern, so Old Pine contends, Russell is ineligible for sick leave because the
Ordinance excludes interns from the definition of “Employee.” 18 The Ordinance defines
“Intern” as:

16

Def.’s Mot. to Dism. at 4 (ECF No. 6).

See Def.’s Mot. to Dism. Ex. 1. (ECF No. 6) (“Offer Letter”). We generally consider only the
allegations of the complaint, exhibits attached to the complaint and matters of public record. Pension
Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993), cert. denied, 114 S.
Ct. 687 (1994). We may also consider “an undisputedly authentic document that a defendant attaches as
an exhibit to a motion to dismiss if the plaintiff’s claims are based on the document.” Id. Otherwise,
analyzing documents beyond the pleadings would convert the motion to one for summary judgment. Id.
Old Pine did not make this request. See Def.’s Mot. to Dism. at 2 n.1 (“Defendant recognizes that courts
may not consider evidence presented outside of the pleadings without converting a motion to dismiss to a
summary judgment motion. . . .”).
17

18

Id.

5

[A] student who is enrolled in an educational institution and who is
performing work for that institution, provided that such student shall not be
considered an intern for the purposes of this Chapter when working for any
employer other than the educational institution in which the student is
enrolled.
Id. at § 9-4103(10) (emphasis added). According to the offer letter, Russell was a Drexel
University student who was not working for Drexel, but for Old Pine. 19 Thus, she is not
an intern excluded under the Ordinance.
The Ordinance also excludes persons who are “hired for a term of less than six
months.” See id. at § 9-4103(3). Old Pine claims the offer letter proves that Russell’s
term of employment was for less than six months.
The offer letter is unclear. It has two different periods of employment. The first
fixed a term of employment of seven months. 20 The other set a term of five and a half
months. 21 The first start and end dates are crossed out. 22 Neither party provided an
explanation for when the dates were changed or whether Russell knew they had been
changed.

Resolving what was Russell’s period of employment requires a factual

determination by a jury. Thus, we shall deny Old Pine’s motion to dismiss Russell’s claim.
Old Pine argues that the Ordinance does not entitle former employees to
compensation for unused sick leave after termination. See id. at § 9-4109 (“Nothing in
this Section shall be construed as requiring financial or other reimbursement to an
employee from an employer upon the employee’s termination, resignation, retirement, or

19

See Offer Letter.

20

Id. (“Start Date” of March 1, 2020 and “End Date” of October 30, 2020).

21

Id. (“Start Date” of March 30, 2020 and “End Date” of September 18, 2020).

22

Id.

6

other separation from employment for accrued sick time that has not been used”).
Plaintiffs are not seeking compensation for unused sick leave. Rather, they seek payment
for the ten business days from when Old Pine suspended operations on July 22 to when
it terminated them on August 3. They characterize these ten days as compensable sick
leave time. 23
The Ordinance allows an employee to use accrued paid sick time for a “mental or
physical illness, injury or health condition; . . . need for medical diagnosis, care, or
treatment of a mental or physical illness, injury or health condition; [or…] need for
preventive medical care.” Id. at § 9-4105(1)(a). The definition of preventive medical care
was amended on March 16, 2020 by a Supplemental Emergency Regulation in response
to the COVID-19 pandemic. 24 As part of the Emergency Regulation, preventive medical
care was expanded to include, among other things, “the evaluation of a person under
investigation for COVID-19” and “the act of engaging in a self-quarantine for twoweeks . . . as the result of having come into contact with an individual who has been
diagnosed with COVID-19.” 25
Plaintiffs allege that on July 22 they received an email stating that one of their
supervisors who had “failed to maintain social distancing and failed to wear a mask” tested
positive for COVID-19. 26 They were informed that Old Pine’s community center would

23

Pls.’ Resp. to Mot. to Dism. at 4 (ECF No. 13).

24 Mem. from Brian Abernathy, Managing Director, to James Leonard, Commissioner, on
“Supplemental Emergency Regulation Regarding COVID-19 and Chapter 9-4100 of the Philadelphia Code:
Promoting Healthy Families and Workplaces” Attach. A (Mar. 16, 2020), https://www.phila.gov/media/
20200813143202/Paid-sick-leave-emergency-regulations.pdf (“Emergency Regulation”).
25

Id. at 2.1(a) and (b)(iii).

26

Compl. at ¶ 18; see also July 24 Letter.

7

close until July 27 and they were instructed to get COVID-19 tests. 27 Plaintiffs began
seeking COVID-19 tests which would take “anywhere from 7-10 days” to produce
results. 28 On July 27, Old Pine extended its shutdown. 29 Plaintiffs were terminated seven
days later while Old Pine was closed.
Plaintiffs allege they were engaging in preventive medical care, as defined by the
Ordinance and the Emergency Regulation, during the time period Old Pine closed its
facilities. They also allege they were not paid for accrued sick time during that period.
The allegations, if proven, will establish a violation of the Ordinance.
Plaintiffs also allege that Old Pine retaliated against them for exercising their rights
under the Ordinance. Specifically, plaintiffs claim that Old Pine fired them for sending the
July 24 letter complaining about Old Pine’s “lack of clear communication of accrual of paid
sick leave for all employees.”30 Old Pine argues that this “conclusory statement” is
insufficient to state a retaliation claim and there are no facts to support the conclusion
that plaintiffs were terminated in retaliation because of one sentence in their July 24
letter. 31
The Ordinance states an “employer shall not take retaliatory personnel action or
discriminate against an employee because the employee has exercised rights protected
under this Chapter.” Id. at § 9-4106(2). “[R]etaliatory personnel action” is defined in the

27

Id. at ¶¶ 19; 21-25.

28

July 24 Letter.

29

Compl. at ¶ 25.

30

July 24 Letter

31

Def.’s Mot. to Dism. at 5-6.

8

Ordinance as the “discharge, suspension, or demotion by an employer of an employee
or any other adverse action taken by an employer against an employee.” Id. at § 94103(13).
Plaintiffs allege that Old Pine “failed to provide any Plaintiff notice of their right to
accrue one hour of sick time for every forty (40) hours worked.”32 The Ordinance makes
clear that employees are entitled to notice about this policy. Plaintiffs’ July 24 letter clearly
expresses dissatisfaction with Old Pine’s failure to provide this notice. 33 Within two weeks
of sending the letter, they were terminated. 34 These allegations are sufficient to state a
claim for retaliation under the Ordinance.
Conclusion
Plaintiffs have sufficiently alleged that they were covered employees entitled to
paid leave for the time period between when Old Pine closed its facility due to a positive
COVID-19 test and their termination under the Ordinance. They have also alleged
sufficient facts showing their termination was in retaliation for exercising their rights to
notice about sick leave rights. Therefore, because they have stated a claim for relief
under the Ordinance, we shall deny Old Pine’s motion to dismiss.

32

Compl. at ¶ 24.

33

July 24 Letter.

Plaintiffs’ complaint does not make clear whether Bellinger was actually terminated with the other
four plaintiffs after the July 24 letter. Compare Compl. at ¶ 12 (“Plaintiff, Jeanette Bellinger, was an
employee of Defendant and was wrongfully terminated on August 3, 2020”), ¶ 26 (“On August 3, 2020,
Plaintiffs were terminated”) with ¶ 36 (“The one program that was terminated was the summer camp/after
school program, led by Plaintiff Jeannette Bellinger. However Plaintiff Jennette Bellinger continued to work
full-time on the feeding program, which was never terminated. Plaintiff Janette Bellinger’s termination
placed pressure on the staff and her termination was not due to a COVID slowdown”).
34

9