Glover v. C & Z Construction Services, LLC

Filing 20

MEMORANDUM & ORDER - IT IS HEREBY ORDERED THAT: 1. The Defendants motion to dismiss (Doc. 11) is GRANTED in its entirety. 2. The Plaintiff is GRANTED LEAVE to amend his complaint. An amended complaint shall be filed within twenty (20) days of the date of this Order 11 Signed by Honorable John E. Jones, III on 8/2/17. SEE ORDER FOR ADDITIONAL INFORMATION. (sc)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CRAIG GLOVER,
Plaintiff,
v.
C & Z CONSTRUCTION
SERVICES, LLC t/d/b/a C & Z
CONSTRUCTON,

Defendant.

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1:17-cv-647

Hon. John E. Jones III

MEMORANDUM & ORDER
August 2, 2017
Presently pending before the Court is a motion to dismiss Counts I through
VI of the Complaint filed by Defendants C & Z Construction Services, LLC. (the
“Motion) (Doc. 11). Defendant filed the Motion on May 10, 2017, along with a
brief in support on May 24, 2017. (Docs. 11, 12). Plaintiff Craig Glover filed a
brief in opposition on June 21, 2017. (Doc. 15). Defendant did not file a brief in
reply, and the time for filing has passed. See Local Rule 7.7. The Motion is
therefore ripe for our review, and for the reasons that follow the Motion shall be
granted, the Complaint dismissed, and Plaintiff granted leave to amend his
complaint.

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I.

BACKGROUND & PROCEDURAL HISTORY
On April 11, 2017, Plaintiff commenced this action with the filing of a six

count claim against Defendant. (Doc. 1). Count I claims violations of the Age
Discrimination in Employment Act (ADEA); Count II claims violations of the
Americans with Disabilities Act (ADA) 42 U.S.C. § 12112(b)(4); Count III brings
a hostile work environment claim under Title VII; Count IV claims violations of
the Pennsylvania Human Relations Act (PHRA); Count V claims violations of the
Pennsylvania Wage Payment and Collection Law (WPCL) 43 Pa. Cons. Stat. Ann.
§ 260.3(a) et. seq.; Count VI brings a state law claim of conversion. The following
facts are derived from his Complaint. As an initial matter, we note that Plaintiff’s
Complaint does not contain many facts from which the Court is able to understand
a full picture of his allegations.
Plaintiff is a former employee of the Defendant and was born on February 9,
1961. (Doc. 1, ¶ 20, 22). Plaintiff worked for the Defendant in 1998 and then again
from July 2007 until April 4, 2016. (Id., at ¶¶ 22-23). Plaintiff alleges that, during
his time of employment, the Defendant’s owner, Paul Carlavale, made offensive
sexual comments and pejorative insults regarding female employees and his wife.
(Id., at ¶ 24). In October 2015, Carlavale told Plaintiff that he had “hired a younger
guy, because you are getting older.” (Id., at ¶ 26). “Plaintiff’s job description was

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changed, duties were taken from him and he was forced to train younger and less
experienced employees.” (Id., at ¶ 27).
While Plaintiff does not actually describe how his job was changed, he
alleges that Carlavale knew that Plaintiff had a son with special needs such that he
could not be on call 24/7 and travel long distances, and then alleges that despite
knowing of his special needs son, “Carlavale forced Plaintiff to accept such a
position.” (Id., at ¶¶ 27-30). We glean from these allegations, therefore, that
Plaintiff’s job was changed to include 24/7 on call duties and travel. Plaintiff next
alleges “[u]pon information and belief, Carlavale gave Plaintiff the position
because he knew Plaintiff could never accept it and he would have to resign as a
consequence.” (Id., at ¶ 31). Next, Plaintiff alleges that “[w]hen Plaintiff was
constructively discharged, Carlavale called him and told him ‘no matter how old
you are, you always have a job with me.’” (Id., at ¶ 31). We glean from this that
Plaintiff resigned when Carlavale told him of his changed job duties.
Plaintiff also alleges that Defendant gave him a 2008 Dodge Ram 3500 pickup truck (the “truck”) in 2009. (Id., at ¶ 34). The truck had Plaintiff’s name on it
and had lettering that stated “This truck was earned by Craig Glover, Job
Supervisor, For Excellence in his Field.” (Id., at ¶ 36). “After Carlavale demoted
Plaintiff, he told Plaintiff he had to return the truck, which Plaintiff did reluctantly
in or around January 2015.” (Id., at ¶ 41).
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Plaintiff alleges that on April 4, 2016, he was constructively discharged from
his employment by Defendant. (Doc. 1 ¶ 23). Plaintiff filed a charge of
discrimination against the Defendant with the Equal Employment Opportunity
Commission (“EEOC”) on June 13, 2016. (Id., at ¶ 16a). The EEOC issued a
Notice of Right to Sue on his charge on January 11, 2017, and Plaintiff timely filed
this action pursuant to that Notice. (Id., at 16b, 16c).
II.

STANDARD OF REVIEW
A motion to dismiss pursuant to Rule 12(b)(6) declares that the complaint

fails to state a claim upon which relief can be granted. See FED R. CIV. P. 12(b)(6).
In considering a motion to dismiss pursuant to Rule 12(b)(6), courts "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. Cnty. of Allegheny, 515 F.3d 224,
231 (3d Cir. 2008) (quoting Pinker v. Roche Holdings, Ltd., 292 F.3d 361, 374 n.7
(3d Cir. 2002)). In resolving a motion to dismiss pursuant to Rule 12(b)(6), a court
generally should consider only the allegations in the complaint, as well as
"documents that are attached or submitted with the complaint, . . . and any matters
incorporated by reference or integral to the claim, items subject to judicial notice,
matters of public record, orders, [and] items appearing in the record of the
case." Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006).
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A Rule 12(b)(6) motion tests the sufficiency of the complaint against the
pleading requirements of Rule 8(a). Rule 8(a)(2) requires that a complaint contain
a short and plain statement of the claim showing that the pleader is entitled to
relief, "in order to give the defendant fair notice of what the claim is and the
grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127
S. Ct. 1955, 167 L. Ed. 2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47,
78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)). While a complaint attacked by a Rule 12(b)(6)
motion to dismiss need not contain detailed factual allegations, 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, 129 S. Ct. 1937, 1949, 173
L. Ed. 2d 868 (2009). To survive a motion to dismiss, a civil plaintiff must allege
facts that "raise a right to relief above the speculative level . . . ." Victaulic Co. v.
Tieman, 499 F.3d 227, 235 (3d Cir. 2007) (quoting Twombly, 550 U.S. at
555). Accordingly, to satisfy the plausibility standard, the complaint must indicate
that defendant's liability is more than a "sheer possibility." Iqbal, 129 S. Ct. at
1949. "Where a complaint pleads facts that are 'merely consistent with' a
defendant's liability, it 'stops short of the line between possibility and plausibility
of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557).
Under the two-pronged approach articulated in Twombly and later
expounded upon and formalized in Iqbal, a district court must first identify all
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factual allegations that constitute nothing more than "legal conclusions" or "naked
assertions." Twombly, 550 U.S. at 555, 557. Such allegations are "not entitled to
the assumption of truth" and must be disregarded for purposes of resolving a Rule
12(b)(6) motion to dismiss. Iqbal, 129 S. Ct. at 1950. Next, the district court must
identify "the 'nub' of the . . . complaint - the well-pleaded, nonconclusory factual
allegation[s]." Id. Taking these allegations as true, the district judge must then
determine whether the complaint states a plausible claim for relief. See id.
However, "a complaint may not be dismissed merely because it appears
unlikely that the plaintiff can prove those facts or will ultimately prevail on the
merits." Phillips, 515 F.3d at 231 (citing Twombly, 550 U.S. at 556-57). Rule
8 "does not impose a probability requirement at the pleading stage, but instead
simply calls for enough facts to raise a reasonable expectation that discovery will
reveal evidence of the necessary element." Id. at 234.
III.

DISCUSSION

Defendant has moved to dismiss Counts I through VI of Plaintiff’s
Complaint for failure to state a claim. (Doc. 11). In his brief in opposition, Plaintiff
indicates agreement to voluntarily withdraw Count VI for conversion. (Doc. 15, p.
1). As such, Count VI is dismissed. We will address the remaining counts in turn.
A. Age Discrimination in Employment Act

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In Count I of the Complaint, Plaintiff alleges a violation of the Age
Discrimination in Employment Act (ADEA). (Doc. 1). “To plead a claim of
discriminatory discharge under the ADEA, a plaintiff must allege that: (1) he was
over 40 years of age; (2) the defendant took an adverse employment action against
him; (3) he was qualified for the position which he held; and (4) he was replaced
by a person sufficiently younger to support an inference of discriminatory animus.”
Molisee v. Securitas Sec. Servs., USA, Inc., 2012 WL 13698, at *5 (W.D. Pa. Jan.
4, 2012) (citing Smith v. City of Allentown, 589 F.3d 684, 689 (3d Cir. 2009)).
In the Complaint, Plaintiff sufficiently satisfied the first element by showing
that he was approximately fifty-five (55) years old at the time of the alleged
adverse employment action. (Doc. 1 ¶¶ 20, 23). Plaintiff satisfied the second
element by claiming that Defendant constructively terminated him on April 4,
2016.1 (Doc. 1 ¶ 23).
Absent in the complaint, however, is any averment that Plaintiff was
qualified to hold the position he was constructively discharged from at the time of
his alleged constructive discharge in 2015. His claim that he had to train younger,
less experienced employees is not sufficient to imply that Plaintiff himself was
qualified. Danielsen v. Pennsylvania Coll. of Tech., No. 4:13-CV-02927, 2014
WL 5088214, at *4 (M.D. Pa. Oct. 9, 2014) (Brann, J.).

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See Colwell v. Rite Aid Corp., 602 F.3d 495, 503-504 (3d. Cir. 2010) (stating it was legally
possible for a Plaintiff to recover under the ADEA on a claim of constructive discharge.)
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Because Plaintiff did not allege that he was qualified for the position that he
held, he failed to satisfy the requirements for pleading under the ADEA. The Court
will therefore grant the Motion with regards to Count I and grant Plaintiff leave to
amend his Complaint.
B. Association Discrimination - Americans with Disabilities Act
In Count II of the Complaint, Plaintiff alleges a violation of the “association
provision” of the Americans with Disabilities Act, 42 U.S.C. § 12112(b)(4). In
order for a Plaintiff to establish a prima facie case for association discrimination
under the ADA, he must show that: “(1) he was ‘qualified’ at the time of the
adverse employment action; (2) he was subject to an adverse employment action;
(3) at the time of the adverse employment action, the plaintiff was known by his
employer to have a relative or an associate with a disability; and (4) the adverse
employment action occurred under circumstances raising a reasonable inference
that the disability of the relative or associate was a determining factor in the
employer’s decision.” Barthalow v. David H. Martin Excavating, Inc., 2007 WL
2207897, at *3 (M.D. Pa. July 30, 2007) (Rambo, J.) Defendant argues that Count
II must fail because Plaintiff has failed to “demonstrate even a scintilla of evidence
that there is a causal relation” between his association with a person with
disabilities and his adverse employment action. (Doc. 11, ¶¶ 30, 31).

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Importantly, “a complaint need not establish a prima facie case of
employment discrimination to survive a motion to dismiss; however, the claim
must be facially plausible and must give fair notice to the defendants of the basis
for the claim.” Huggard v. Crown Bank, No., 2012 WL 529548, at *4 (D.N.J. Feb.
17, 2012) (internal quotes omitted). As discussed in relation to Plaintiff’s ADEA
claim, Plaintiff has not alleged that he was qualified for his position at the time of
the adverse employment action. Because this is an essential element for an
association discrimination claim as well, Count II will similarly be dismissed and
Plaintiff granted leave to amend.2
C. Title VII Hostile Work Environment
In Count III of the Complaint, Plaintiff alleges that Defendant subjected him
to a continually hostile work environment, and therefore brings action under Title
VII. (Doc.1 ¶ 24) In order to succeed on a hostile work environment claim, a
Plaintiff must show: “1) the employee suffered intentional discrimination because
of his/her sex, 2) the discrimination was severe or pervasive, 3) the discrimination
detrimentally affected the plaintiff, 4) the discrimination would detrimentally
affect a reasonable person in like circumstances, and 5) the existence of respondeat
superior liability.” Mandel v. M&Q Packaging Corp., 706 F.3d 157, 167 (3d. Cir.

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While we base our decision to dismiss Count II on Plaintiff’s failure to plead his qualification
for his job, we also note that a review of the Complaint reflects a lack of facts necessary to
causally connect Plaintiff’s association with his disabled son with his alleged adverse
employment action. We urge Plaintiff to consider this should he choose to amend his Complaint.
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2013). The plaintiff “need not establish a prima facie case in order to survive a
motion to dismiss,” but must “allege sufficient facts to raise a reasonable
expectation that discovery will uncover proof of [his] claims.” Connelly v. Lane
Const. Corp., 809 F.3d 780, 788 (3d Cir. 2016). The following is the only factual
allegation relating to a hostile work environment:
Plaintiff’s constructive discharge was, in part, due to continually
hostile work environment which included, but was not limited to,
offensive sexual comments and pejorative insults by Defendant’s
owner, Paul Carlavale, regarding female employees and even his wife.
(Doc. 1, ¶ 24). Plaintiff then recited the elements of a hostile work
environment claim in Count III. (Id., at ¶ 50). Certainly, this one vague factual
allegation is insufficient to survive the pleading standards of Twombly and raise a
reasonable expectation that discovery will uncover proof of his claims. Therefore,
we shall dismiss Count III and again grant leave to amend.
D. Pennsylvania Human Relations Act (“PHRA”)
In Count IV of the Complaint, Plaintiff alleges that Defendant violated the
Pennsylvania Human Relations Act. (Doc. 1). Noticeably absent in the Complaint
is any reference to relevant Pennsylvania Code. Count IV contains only one
pertinent statement: “Defendant violated the PHRA by its discriminatory actions
against Plaintiff.” (Doc. 1, ¶ 53). This is a legal conclusion that does not state a
claim upon which relief can be granted. To the extent that Plaintiff intends to
incorporate the PHRA equivalents of his ADEA and Title VII claims into Count
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IV, we note that the legal standards applicable are identical and thus Plaintiff’s
PHRA claim equivalents are dismissed along with his ADEA3 and Title VII
claims.4 Accordingly, we shall grant the Motion with regards to Count IV.
E. Pennsylvania Wage Payment and Collection Law
In Count V of the Complaint, Plaintiff alleges that Defendant violated the
Pennsylvania Wage Payment and Collection Law, 43 P.S. § 260. (“WPCL”).
Specifically, Plaintiff states that Defendant took possession of Plaintiff’s truck,
which was a form of remuneration cognizable under the WPCL. (Doc. 1, ¶ 58).
Defendant contends that the Plaintiff’s usage of a company truck does not amount
to a payment or wage under the WPCL. (Doc. 11 ¶ 42). Additionally, Defendant
states that the Plaintiff failed to claim the existence of a contract that named the
truck as a form of payment. (Id. at ¶ 43). These two issues, Defendant argues,
necessitate the failure of Plaintiff’s WPCL claim as a matter of law. (Id. at ¶ 44).
Under the WPCL, “wages” include “fringe benefits or wage supplements”,
defined as “all monetary employer payments to provide benefits under any
employee benefit plan, as defined in section 3(3) of the Employee Retirement
Income Security Act ...; as well as separation, vacation, holiday, or guaranteed pay;

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“The same legal standard applies to both the ADEA and the PHRA and therefore it is proper to
address them collectively.” See Ptasznik v. Univ. of Pennsylvania, 523 Fed. Appx. 156 n.3 (3d.
Cir. 2013) (quoting Kautz v. Met-Pro Corp., 412 F.3d 463, 466 n.1 (3d Cir. 2005).
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 "The proper analysis under Title VII and the Pennsylvania Human Relations Act is identical, as
Pennsylvania courts have construed the protections of the two acts interchangeably.” Huston v.
P&G Paper Prods. Corp., 568 F.3d 100, n.2 (3d. Cir. 2009). 
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reimbursement for expenses; union dues withheld from the employees' pay by the
employer; and any other amount to be paid pursuant to an agreement to the
employee, a third party or fund for the benefit of employees.” 43 P.S. § 260.2a
(emphasis added).
The WPCL “does not create an employee's substantive right to
compensation; rather, it only establishes an employee's right to enforce payment of
wages and compensation to which an employee is otherwise entitled by the terms
of an agreement.” Banks Engineering Co., Inc. v. Polons, 697 A.2d 1020, 1024
(Pa.Super.1997). “To present a wage-payment claim, the employee must aver a
contractual entitlement to compensation from wages and a failure to pay that
compensation.” Braun v. Wal-Mart Stores, Inc., 24 A.3d 875, 954 (Pa. Super.
2011) (internal quotation omitted). The Pennsylvania Superior Court upheld the
reasoning in Braun, reaffirming the need for a plaintiff to aver the existence of a
contractual agreement in order to present a WPCL claim. See Baron v. Quad Three
Grp., Inc., 2013 WL 3822134, at *5 (Pa. Super. Ct. 2013).
In the present action, the Plaintiff has failed to aver that his right to the truck
is pursuant to an agreement between himself and the Defendant, either through a
written or oral contract, such that he is entitled to it under the WPCL. Rather,
Plaintiff characterizes the truck as a gift from Carlavale. (Doc. 1, ¶ 40). As such,
we will grant the motion with respect to Count V.
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IV.

CONCLUSION

Plaintiff’s Complaint is insufficient to state a claim under Counts I through
V, and Plaintiff has voluntarily dismissed Count VI. We shall therefore grant the
Defendant’s motion to dismiss for failure to state a claim in its entirety and offer
Plaintiff leave to amend the Complaint.
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1. The Defendant’s motion to dismiss (Doc. 11) is GRANTED in its entirety.
2. The Plaintiff is GRANTED LEAVE to amend his complaint. An amended
complaint shall be filed within twenty (20) days of the date of this Order.

s/ John E. Jones III
John E. Jones III
United States District Judge

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