Wevodau v. Commonwealth of Pennsylvania, Office of Attorney General et al

Filing 21

MEMORANDUM re Dfts' mtn to dismiss 17 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 1/4/17. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
:
:
:
Plaintiff,
:
:
v.
:
:
COMMONWEALTH OF
PENNSYLVANIA, OFFICE OF THE :
:
ATTORNEY GENERAL and
KATHLEEN KANE, individually and :
:
in her official capacity,
:
:
Defendants.
KEVIN WEVODAU,

Civil No. 1:16-CV-0743

Judge Sylvia H. Rambo

MEMORANDUM
In this employment action, Plaintiff alleges, inter alia, that Defendants
violated the Pennsylvania Whistleblower Act and Family Medical Leave Act by
placing him on involuntary paid administrative leave when he attempted to return
to work after taking permitted medical leave. Presently before the court is
Defendants’ motion to dismiss Count II of the amended complaint, which alleges
that Defendant Kathleen Kane illegally retaliated against Plaintiff in violation of
the Family Medical Leave Act. For the reasons stated herein, the motion will be
granted. In addition, because the only remaining claim in the amended complaint
arises under Pennsylvania law, the court declines to exercise supplemental
jurisdiction pursuant to 28 U.S.C. § 1367(c)(3) and will remand this case to the
Commonwealth Court of Pennsylvania.

I.

Background
A.

Facts

Plaintiff has been employed by Defendant Commonwealth of Pennsylvania
(“the Commonwealth”) as a Special Agent in Charge of the Bureau of Criminal
Investigations for the Office of the Attorney General of Pennsylvania since
approximately January 2013. (Doc. 13, ¶¶ 9, 11.) During his employment with the
Commonwealth, Defendant Kathleen Kane (“Defendant Kane,” and, together with
the Commonwealth, “Defendants”) served as the Attorney General. (Id. at ¶ 9.)
Prior to accepting his position with Defendant Kane’s administration, Plaintiff
worked for the Federal Bureau of Investigations (“FBI”). (Id. at ¶ 16.) Within a
few months of working for Defendants, Plaintiff discovered that Defendant Kane
was suspicious of him, and she accused him of being a “mole for the FBI” and of
monitoring her activities, even though such was not true. (Id. at ¶¶ 15-17.)
In early 2014, Defendant Kane cancelled a planned sting operation that was
based on an investigation into public corruption of certain Philadelphia
government officials and state legislatures on the basis that the sting operation was
racially motivated, despite evidence of wrongdoing, which Plaintiff alleges was
done in order to maintain and gain political allies for Defendant Kane. (Id. at ¶¶
18-21.) Plaintiff wrote a memo to Defendant Kane in April 2014, stating that her
comments regarding the sting operation were untrue. (Id. at ¶ 25.) Despite
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Defendant Kane’s refusal to bring charges based on the evidence collected in the
investigation leading up to the sting operation, the Philadelphia District Attorney
reviewed the evidence and subsequently approved the prosecution of several
individuals. (Id. at ¶ 26.) In November 2014, Plaintiff met with a Montgomery
County Special Prosecutor regarding an investigation into Defendant Kane’s
administration related to potential criminal charges against Defendant Kane, and
Plaintiff subsequently testified before a grand jury in December 2014 and January
2015. (Id. at ¶¶ 28-30, 32.)
On April 16, 2015, an undercover agent involved in the sting operation filed
a defamation suit against both Defendant Kane and Plaintiff related to Defendant
Kane’s statements that the operation involved racial targeting, statements that
Defendant Kane attributed to Plaintiff. (Id. at ¶ 34.) Plaintiff requested separate
legal counsel for the suit, stating that his interests were not aligned with Defendant
Kane’s and that he intended to expose her false statements. (Id. at ¶ 35.) In May
2015, a newspaper article was published which stated that Plaintiff had reported
the falsity of Defendant Kane’s assertions about the sting operation, and Plaintiff
alleges that Defendant Kane received discovery shortly thereafter that both
identified Plaintiff as a witness in a criminal trial against her related to the sting
operation and detailed his grand jury testimony. (Id. at ¶¶ 37-38.)

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On June 19, 2015, Defendant Kane directed Plaintiff to visit her at her
residence after business hours and instructed him to leave his phone on a table
before they spoke. (Id. at ¶¶ 39-40.) Plaintiff alleges that Defendant Kane told him
that he was a cancer to the Office of the Attorney General, was the leak for all
negative press about the office, and threatened that his reputation could be ruined
and his family lost if he did not resign from his position. (Id. at ¶¶ 41-42.) Plaintiff
refused to resign, and again testified before a grand jury for the Philadelphia
District Attorney’s office related to the sting operation and Defendant Kane’s
efforts to threaten and intimidate potential witnesses. (Id. at ¶¶ 43-44.)
On June 22, 2015, Plaintiff applied for a twelve-week leave of absence
under the Family Medical Leave Act (“FMLA”) for personal health issues, which
Defendants approved. (Id. at ¶¶ 45-46.) After the expiration of the FMLA leave
period, on or about October 22, 2015, Plaintiff attempted to return to work, but was
told by Defendants that he would first need a fitness for duty evaluation. (Id. at ¶
48.) Plaintiff alleges that he agreed to the evaluation, but Defendants never
responded to his inquiries regarding what exactly he needed to do to complete an
evaluation, and that Defendants have since maintained that Plaintiff is on an
administrative leave, but have given no reason for the administrative leave or a
date upon which it will expire. (Id. at ¶¶ 48, 50.) As of the filing of the amended
complaint, Plaintiff had been on administrative leave for approximately eight
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months and counting, despite having been previously medically cleared to return to
work. (Id. at ¶¶ 49, 55, 72.) Plaintiff alleges that the administrative leave and
refusal to allow him to return to work is in retaliation for him exercising his right
to FMLA leave and for testifying against Defendant Kane regarding the sting
operation. (Id. at ¶¶ 56, 58, 60-61.)
B.

Procedural History

Plaintiff initiated this action by filing a complaint against Defendants in the
Commonwealth Court of Pennsylvania on April 4, 2016. (Doc. 2.) Defendants
removed the action to this court on May 3, 2016 (Doc. 1), and subsequently filed a
motion to dismiss the complaint for failure to state a claim on June 9, 2016 (Doc.
11.) Plaintiff filed an amended complaint on June 23, 2016 (Doc. 13), and
Defendants moved to dismiss Plaintiff’s FMLA retaliation claim contained in
Count II of the amended complaint on July 8, 2016 (Doc. 17.) The motion has been
fully briefed (Docs. 18-20) and is ripe for disposition.
II.

Legal Standard
Defendants have moved to dismiss Count II of the amended complaint for

failure to state a claim upon which relief can be granted pursuant to Federal Rule
of Civil Procedure 12(b)(6).1 A motion to dismiss pursuant to Rule 12(b)(6) tests

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Defendants have also moved to strike Plaintiff’s purported request for punitive damages under
Federal Rule of Civil Procedure 12(f), arguing that punitive damages are not available under
either the Pennsylvania Whistleblower Law or the FMLA. (See Doc. 18, p. 15 of 16.) However,
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the sufficiency of the complaint against the pleading requirements of Rule 8(a),
which requires that a complaint set forth “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). For a
complaint to survive dismissal it “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) (citing Bell Atl. v. Twombly, 550 U.S. 544, 570 (2007)).
Thus, the court 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.” United
States v. Pennsylvania, 110 F. Supp. 3d 544, 548 (M.D. Pa. 2015) (quoting
Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012)); see also Fed. R.
Civ. P. 12(b)(6).
III.

Discussion
Defendants argue that Plaintiff has failed to state an FMLA retaliation claim

because: (1) paid administrative leave does not qualify as an adverse employment
action; (2) Plaintiff waited five weeks after the expiration of his FMLA leave to
seek reinstatement, and employees are subject to termination as of the first day
after FMLA leave has expired should they not return to work; and (3) Plaintiff has
the amended complaint does not contain a request for punitive damages, and Plaintiff
acknowledges both that they are unavailable and that he is not pursuing such an award. (See Doc.
19, p. 4 of 17.) Accordingly, the court finds that Defendants’ request to strike Plaintiff’s nonexistent request for punitive damages is moot.
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not pleaded facts to support that his placement on administrative leave was
causally related to his FMLA leave. (See Doc. 18, pp. 7-9 of 16.) Plaintiff argues in
response that he was given an extension of his FMLA leave by Defendants and
attempted to return to work promptly at the expiration of the extension, that paid
administrative leave is an adverse employment action, and that the timing of the
administrative leave shows the causal link to his decision to take FMLA leave.
(See Doc. 19, pp. 9-12 of 17.) The court will discuss each argument in turn;
however, because the court finds Defendants’ second argument dispositive, it need
not reach the causation element.
A.

Adverse Employment Action

Defendants’ first argument is that Plaintiff has failed to state a claim for
retaliation under the FMLA because placing an employee on paid administrative
leave is not an adverse employment action. To establish a retaliation claim under
the FMLA, a “plaintiff must prove that (1) she invoked her right to FMLAqualifying leave, (2) she suffered an adverse employment decision, and (3) the
adverse action was causally related to her invocation of rights.” Lichtenstein v.
Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 301-02 (3d Cir. 2012) (citing Erdman
v. Nationwide Ins. Co., 582 F.3d 500, 508-09 (3d Cir. 2009)). In reviewing
retaliation claims, courts within the Third Circuit have held that “a plaintiff must
show ‘that a reasonable employee would have found the challenged actions
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“materially adverse” in that they ‘well might have dissuaded a reasonable worker
from making or supporting a charge of discrimination.’” Burton v. Pa. State
Police, 990 F. Supp. 2d 478, 509 (M.D. Pa. 2014) (citing Moore v. City of Phila.,
461 F.3d 331, 341 (3d Cir. 2006) (quoting Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 68 (2006)); see also Grosso v. Fed. Express Corp., 467 F.
Supp. 2d 449, 459 (E.D. Pa. 2006) (“Thus, this Court concludes that Burlington
Northern provides guidance in determining whether plaintiff was subject to an
“adverse employment action [under the FMLA]”).
Here, Plaintiff alleges that he was placed on paid administrative leave, which
has now persisted for over a year, and given neither a reason for the action nor its
anticipated duration. Other courts have found that similar circumstances can
constitute an adverse employment action:
Plaintiff was placed on paid administrative leave on
September 16, 2005. Although he continued to receive
full compensation and other benefits, he was relieved of
all job responsibilities, ceased to function in his
employment position or any other capacity for
Defendant, and was not permitted to come to the
workplace. His interaction with fellow employees ceased,
as did any on-the-job experience and training he
normally would have received. Plaintiff did not receive
regular employment reviews that might have laid the
foundation for increased responsibilities or pay. As of the
date of trial, Plaintiff had remained on paid
administrative leave for almost one year, with no
indication from Defendant as to when he might be
permitted to return to work.
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The Court concludes that a reasonable employee likely
would find such an administrative leave to be “materially
adverse” as required by Burlington.
Foraker v. Apollo Grp. Inc., Civ. No. 04-cv-2614, 2006 WL 3390306, *2 (D. Ariz.
Nov. 22, 2006); see also Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 332 (5th
Cir. 2009) (“Placing an employee on paid administrative leave, however, cannot be
said to be a ‘petty slight.’ Indeed, depending on the circumstances, it may range
from a completely benign measure to one that stigmatizes an employee and causes
significant emotional distress. Forced leave may even affect an employee's
opportunities for future advancement.”).2 The court agrees with the analysis in
Foraker, and finds that Plaintiff has sufficiently alleged that his ongoing paid
administrative leave, which deprives him of the ability to go to his workplace and
advance his career, constitutes an adverse employment action.
B. Timing of Attempted Return to Work
Defendants next argue that Plaintiff has failed to state a claim for retaliation
under the FMLA because he did not attempt to return to work until five weeks after
his FMLA leave expired, and he therefore had no right to reinstatement. (See Doc.
18, pp. 7-8 of 16.) Plaintiff alleges that he was given express permission to extend
his leave beyond the twelve weeks allotted by the FMLA, and he was entitled to
2

Even abused, fictional office employee Milton Waddams was allowed to go to work – albeit in
the basement and deprived of his favorite stapler – and no one disputes the adversity of his
ultimately untenable work environment. See Office Space (Twentieth Century Fox Film
Corporation 1999).
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reinstatement when he attempted to return to work at the end of the extension. (See
Doc. 19, pp. 11-12 of 17.)
The majority of courts that have reviewed extensions of FMLA leave
beyond twelve weeks have interpreted the twelve-week leave period strictly and
found that employees are not entitled to the protections of the FMLA after the
statutory leave has expired, even where the employee has received permission to
extend their leave from the employer. See, e.g., Conoshenti v. Pub. Serv. Elec. &
Gas Co., 364 F.3d 135, 148 (3d Cir. 2004) (holding that employee who exceeded
FMLA leave “was subject to immediate discharge on the very first workday that he
was both absent from work and no longer protected by the FMLA.”); Hofferica v.
St. Mary Med. Ctr., 817 F. Supp. 2d 569, 577 (E.D. Pa. 2011) (stating that “[a]n
employer may not terminate an employee because he or she has taken the leave
permitted by the statute. If the employee is not able to return to work after twelve
weeks, however, the employer may terminate the employee.”) (quoting Katekovich
v. Team Rent A Car, Inc., 36 F. App’x 688, 690 (3d Cir. 2002)) (alteration in
original); Dogmanits v. Capital Blue Cross, 413 F. Supp. 2d 452, 462 (E.D. Pa.
2005) (holding that employees who exceed the twelve weeks of FMLA leave
“stand to lose their entitlement to job restoration even if their employers provide
additional, non-FMLA, leave.”).

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In arguing that he was still protected by the FMLA due to his employer’s
express permission to extend his leave, Plaintiff cites a single decision from the
District of New Jersey which held that an employee “should not lose her FMLA
protection for taking a leave longer than 12 weeks when her employer gave her the
permission to do so.” Santosuosso v. Novacare Rehab., 462 F. Supp. 2d 590, 59798 (D.N.J. 2006). The holding in Santosuosso is clearly the minority position on
this issue, and subsequent cases within the District of New Jersey have declined to
follow its approach. See Ackerman v. Beth Israel Cemetery Ass’n of Woodbridge,
N.J., Civ. No. 09-cv-1097, 2010 WL 2651299, *8 n.3 (D.N.J. June 25, 2010)
(“[T]his Court finds as a matter of law that when Plaintiff exceeded the twelveweek FMLA leave period, he lost the protections he had under the FMLA. Thus,
plaintiff has failed to state a claim under the FMLA.”); see also Devine v.
Prudential Ins. Co. of Am., Civ. No. 03-cv-3971, 2007 WL 1875530, *30 (D.N.J.
June 28, 2007) (dismissing FMLA claim at summary judgment where employee
exceeded twelve weeks of leave, and quoting a letter opinion from the United
States Department of Labor that stated “[i]f the employee is unable to or does not
return to work at the end of 12 weeks of FMLA leave (provided the employer
designated the leave as FMLA leave and so notified the employee in writing), all
entitlements and rights under FMLA cease at that time”).

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Here, Plaintiff acknowledges that he did not attempt to return to work until
five weeks after his FMLA leave expired. Thus, the court finds that Plaintiff was
no longer entitled to the protections of the FMLA as a matter of law. In so finding,
the court adopts the majority approach and declines to follow the holding in
Santosuosso.
C.

Supplemental Jurisdiction

After dismissal of Plaintiff’s FMLA claim, the only remaining claim in the
amended complaint is a retaliation claim pursuant to the Pennsylvania
Whistleblower Law, over which the court does not have original jurisdiction. Thus,
the court must decide if it is appropriate in this case to exercise supplemental
jurisdiction over Plaintiff’s state law claim.
Whether to exercise supplemental jurisdiction is within the discretion of the
court. It is well settled that a district court “may decline to exercise supplemental
jurisdiction over a claim . . . if . . . the district court has dismissed all claims over
which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). When deciding whether
to exercise supplemental jurisdiction, “a federal court should consider and weigh in
each case, and at every stage of the litigation, the values of judicial economy,
convenience, fairness, and comity.” City of Chi. v. Int’l Coll. of Surgeons, 522 U.S.
156, 173 (1997) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350
(1988)). The Third Circuit has held that “where the claim over which the district
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court has original jurisdiction is dismissed before trial, the district court must
decline to decide the pendent state claims unless considerations of judicial
economy, convenience, and fairness to the parties provide an affirmative
justification for doing so.” Hedges v. Musco, 204 F.3d 109, 123 (3d Cir. 2000).
Here, the court finds that no considerations of judicial economy,
convenience, or fairness provide an affirmative justification for exercising
supplemental jurisdiction after the court has disposed of Plaintiff’s federal claim.
The case is at an early stage of litigation, no significant time or resources have
been expended, and a Pennsylvania state court is the more appropriate forum to
decide a single claim pursuant to Pennsylvania law.
IV.

Conclusion
For the reasons stated herein, the court finds that Plaintiff has failed to state

claim upon which relief can be granted pursuant to the FMLA, and, accordingly,
Count II of the amended complaint will be dismissed. The court also declines to
exercise supplemental jurisdiction over Plaintiff’s remaining state law claim
pursuant to 28 U.S.C. § 1367(c)(3), and will remand this case to the
Commonwealth Court of Pennsylvania.
An appropriate order will issue.
s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: January 4, 2017
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