Wevodau v. Commonwealth of Pennsylvania, Office of Attorney General et al
MEMORANDUM re pltf's MOTION for Reconsideration 30 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 9/18/17. (ma)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PENNSYLVANIA, OFFICE OF THE :
ATTORNEY GENERAL and
KATHLEEN KANE, individually and :
in her official capacity,
Civil No. 1:16-CV-0743
Judge Sylvia H. Rambo
In this employment action, Plaintiff alleges that Defendants retaliated
against him in violation of 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. On January 4,
2017, the court dismissed Plaintiff’s claim under the Family Medical Leave Act
and remanded this matter to the Commonwealth Court of Pennsylvania. Presently
before the court is Plaintiff’s motion for reconsideration as to the dismissal of his
Family Medical Leave Act claim and request for leave to amend the complaint.
(Doc. 23.) For the following reasons, Plaintiff’s motion will be denied.
The court writes primarily for the parties, and because they are familiar with
the facts as discussed in the court’s memorandum and order of January 4, 2017, see
Wevodau v. Commonwealth, Civ. No. 16-cv-0743, 2017 WL 36395 (M.D. Pa. Jan.
4, 2017), the court will set forth only the factual and procedural history pertinent to
the instant motion.
Relevant Factual Background and Procedural History
Plaintiff, a former FBI agent, began working for 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 in approximately January 2013. During his employment with the
Commonwealth, Defendant Kathleen Kane (“Defendant Kane,” and, together with
the Commonwealth, “Defendants”) served as the Attorney General. According to
the amended complaint, within a few months of working for Defendants,
Defendant Kane accused Plaintiff of being a “mole for the FBI” and of monitoring
her activities, even though such was not true.
In November 2014, Plaintiff met with a Montgomery County Special
Prosecutor regarding an investigation into Defendant Kane regarding her refusal to
carry out a sting operation or pursue corruption charges against several
Philadelphia government officials and state legislatures, and Plaintiff later testified
before a grand jury. On April 16, 2015, an undercover agent involved in the
attempted 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. 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. 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.
On June 19, 2015, Defendant Kane directed Plaintiff to visit her at her
residence after business hours. 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. 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.
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. 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. Plaintiff alleges that he
agreed to the evaluation, but Defendants never responded to his inquiries regarding
what exactly he needed to do to complete it, 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. As of the filing of the
amended complaint, Plaintiff had been on administrative leave for approximately
eight months and counting, despite having been previously medically cleared to
return to work. Plaintiff alleges that Defendants placed him on administrative leave
and refused to allow him to return to work in retaliation for him exercising his right
to FMLA leave and for testifying against Defendant Kane regarding the sting
On February 10, 2017, the court granted Defendants’ motion to dismiss
Plaintiff’s FMLA claim, finding that the complaint failed to state sufficient facts to
show a plausible claim for relief. (See Docs. 28 & 29.) Presently before the court is
Plaintiff’s motion to reconsider and for leave to file an amended complaint (Doc.
30), which has been fully briefed (Docs. 31-33) and is ripe for disposition.
Plaintiff has moved for the court to reconsider its decision to dismiss
Plaintiff’s FMLA claim with prejudice. While the motion is titled as one for
reconsideration, in substance it is a motion seeking leave to file an amended
complaint. Generally, leave to amend a pleading pursuant to Federal Rule of Civil
Procedure 15(a) should be “freely give[n] when justice so requires.” Fed. R. Civ.
P. 15(a)(2). However, a court need not grant leave to amend in the presence of bad
faith, undue delay, undue prejudice, or futility. See Lorenz v. CSX Corp., 1 F.3d
1406, 1414 (3d Cir. 1993). Where “denial of leave to amend is based on ‘futility,’
it essentially means that a ‘complaint, as amended, would fail to state a claim’ for
relief.” Dombroski v. J.P. Morgan Chase Bank, N.A., 513 F. App’x 212, 215 n.5
(3d Cir. 2013) (quoting Burtch v. Milberg Factors, Inc., 662 F.3d 212, 231 (3d Cir.
Plaintiff argues that the court made an error of law in dismissing Plaintiff’s
FMLA retaliation claim with prejudice, and seeks leave to amend.1 Defendants
contend that Plaintiff has already amended his complaint once, could have
While Plaintiff contends that the court made an error of law when finding that the amended
complaint did not contain sufficient factual allegations to support a plausible FMLA retaliation
claim, the argument is merely a request that the court revisit its decision. “A motion for
reconsideration is not to be used as a means to reargue matters already argued and disposed of or
as an attempt to relitigate a point of disagreement between the Court and the litigant.” Ogden v.
Keystone Residence, 226 F. Supp. 2d 588, 606 (M.D. Pa. 2002). Accordingly, Plaintiff’s request
for reconsideration will be denied.
amended it a second time in response to their previous motion to dismiss, and
therefore allowing him to amend at this stage would be the result of undue delay.
Defendants further contend that amendment would be futile because Plaintiff has
once again failed to plead facts sufficient to support a plausible finding that the
adverse employment action he suffered was caused by his decision to take FMLA
A court is not required to allow for amendment of a pleading where there
has been undue delay. See, e.g., Alston v. Parker, 363 F.3d 229, 236 (3d Cir.
2004). Undue delay may be found where, as here, a plaintiff had prior
opportunities to cure the deficiencies in the complaint, but chose not to do so. See
Krantz v. Prudential Invest. Fund Mgmt. LLC, 305 F.3d 140, 144 (3d Cir. 2002)
(“A District Court has discretion to deny a plaintiff leave to amend where the
plaintiff was put on notice as to the deficiencies in his complaint, but chose not to
resolve them.”) (citing Rolo v. City Investing Co. Liquidating Trust, 155 F.3d 644,
654 (3d Cir.1998)). Here, Plaintiff was put on notice in the form of Defendants’
motion to dismiss that his amended complaint may not contain sufficient facts to
support his FMLA claim, and Plaintiff had the opportunity at that point to file a
second amended complaint to resolve any potential factual deficiencies. Instead,
Plaintiff stood on the allegations in his amended complaint and filed a brief in
opposition to the motion to dismiss. Having already amended his complaint once,
and then choosing not to amend a second time in the face of the motion to dismiss,
Plaintiff has no entitlement to belatedly amend his complaint after the court
decided that the factual allegations in his amended complaint were indeed
insufficient. See U.S. ex rel. Wheatley v. Eastwick Coll., 657 F. App’x 89, 97 (3d
Cir. 2016) (finding that plaintiff was put on notice of complaint’s deficiencies by
motion to dismiss and denying leave to file an amended complaint); see also Pino
v. Carey, Civ. No. 15-cv-1172, 2016 WL 8853269, *6 (M.D. Pa. Dec. 19, 2016)
(“[W]here [the plaintiff] persists in renewing claims which have already been
rejected as legally deficient, the proper exercise of this Court's discretion calls
upon us to deny [the plaintiff] leave to further amend his complaint in this
particularly feckless fashion.”). Thus, it is well within the court’s discretion to
deny Plaintiff leave to amend based on undue delay.
Even assuming, arguendo, that Plaintiff had timely submitted the proposed
second amended complaint, the amendment would be futile because the second
amended complaint does not contain sufficient facts to support Plaintiff’s FMLA
claim. As the court stated in response to Plaintiff’s prior motion for
reconsideration, Plaintiff’s amended complaint relies only on the timing and fact of
Defendants’ refusal to allow Plaintiff to return to work following his leave, along
with Plaintiff’s subjective belief “that Defendants have retaliated [against] him for
availing himself of his legal protection to leave under the FMLA.” (Doc. 13, ¶ 56.)
The court found that these threadbare and conclusory allegations were not enough
to support the maintenance of Plaintiff’s FMLA claim, and nothing in the second
amended complaint changes the court’s decision.
The proposed second amended complaint states, as did the amended
complaint, that Plaintiff received his FMLA leave without issue upon request,
exercised the full twelve weeks, and received additional non-FMLA leave. As the
court previously stated, “[t]he only inference that can be drawn from these facts is
that Defendants did not want Plaintiff to return to work due to his whistleblowing
activity, and were more than happy for him to continue on any type of leave
available, including the current paid administrative leave.” Wevodau v.
Pennsylvania, Civ. No. 16-cv-0743, 2017 WL 551818, *4 (M.D. Pa. Feb. 10,
2017); see also Doe v. Sizewise Rentals, LLC, 530 F. App’x 171, 174 (3d Cir.
2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 681-82 (2009)) (noting that a claim
is not plausible where, after accepting the factual allegations as true, an “obvious
alternative explanation” appears a “more likely” cause of the complained behavior
than that which plaintiff asks the court to infer) (citation omitted). Thus, the court
finds that Plaintiff’s proposed second amended complaint fails to state a claim for
relief under Federal Rule of Civil Procedure 12(b)(6) with regard to his FMLA
retaliation claim, and that amendment would be futile.
For the reasons stated herein, the court finds that Plaintiff has failed to
provide any reason for the court to reconsider its dismissal of his FMLA claim, and
the motion for reconsideration will be denied. Further, the court finds that Plaintiff
has submitted his request for leave to amend the complaint for a second time after
undue delay and that, nonetheless, amendment would be futile. Accordingly,
Plaintiff’s request for leave to amend the complaint will be denied.
An appropriate order will issue.
s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: September 18, 2017
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