Mulqueen v. Energy Force, LLC et al
MEMORANDUM (Order to follow as separate docket entry)re report and recommendation of MJ Blewitt.Signed by Honorable James M. Munley on 11/14/13. (sm)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ENERGY FORCE, LLC,
(Magistrate Judge Blewitt)
JAMES LONG, T.S. DUDLEY
LAND CO. and DIANE LONG,
Before the court for disposition is Magistrate Judge Thomas M. Blewitt’s
Report and Recommendation (hereinafter “R&R”). (Doc. 37). The R&R
proposes that the court grant the defendants’ motions to dismiss counts two,
three and six of plaintiff’s complaint with prejudice. Plaintiff filed objections to
the R&R (Doc. 38), and they are ripe for disposition.
The instant employment discrimination action arose from Plaintiff
Whitney Mulqueen’s (hereinafter “plaintiff”) employment with Defendant T.S.
Dudley Land Company (hereinafter “T.S. Dudley”). (Doc. 1, Compl.
(hereinafter “Compl.”) ¶ 15). On January 4, 2012, Defendant Energy Force,
LLC (hereinafter “Energy Force”), a staffing agency, placed plaintiff in a
training position with Defendant T.S. Dudley. (Id. ¶ 15). T.S. Dudley assigned
her to work in a hotel room in Dickson City, Pennsylvania. (Id.) Plaintiff
worked with two younger women in a suite that was disorganized, loud and
unprofessional. (Id. ¶¶ 18, 49). Plaintiff claims that Defendants T.S. Dudley
and Energy Force (collectively “defendants”) failed to provide her with a job
description and adequately train her. (Id. ¶¶ 16-17).
Moreover, plaintiff alleges defendants failed to compensate her for any
work performed in excess of forty hours per week. (Id. ¶¶ 45, 47).
Specifically, Val Shears (hereinafter “Shears”), plaintiff’s supervisor, advised
plaintiff that normal working hours were Monday through Friday from 9:30 a.m.
to 5:00 p.m. (Id.) Plaintiff was also required to take work home over the
weekends. (Id.) Plaintiff claims that she was never compensated for this
weekend work. (Id.)
Based on these allegations, plaintiff filed a six-count complaint in this
court. The complaint asserts the following causes of action: Count One,
violation of the Age Discrimination in Employment Act (hereinafter “ADEA”), 29
U.S.C.A. § 621 et seq.; Count Two, involuntary servitude in contravention of 18
U.S.C. § 1584; Count Three, wrongful discharge under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e (hereinafter “Title VII”); Count Four,
violation of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq.; Count Five,
a constructive discharge claim; and Count Six, a claim for declaratory relief
pursuant to 28 U.S.C. § 2201.
On June 28, 2013, Defendants T.S. Dudley and Diane Long filed a
motion to dismiss counts two, three and six. (Doc. 13). On August 20, 2013,
Defendants Energy Force and James Long filed a motion to dismiss counts
two, three and six. (Doc. 32). On October 3, 2013, Magistrate Judge Blewitt
recommended granting defendants’ motions to dismiss and dismissing counts
two, three and six with prejudice. Plaintiff filed objections to the
recommendation regarding counts two and three. She did not object to the
recommendation pertaining to count six.
Prior to addressing the motions to dismiss, the court notes that plaintiff’s
ad damnum clause requests the court criminally prosecute defendants for
allegedly violating civil and criminal statutes. The determination of whether to
prosecute and what criminal charges to bring, however, are decisions that
generally rest in the prosecutor’s, not the court’s, discretion. United States v.
Batchelder, 442 U.S. 114, 124 (1979); see also United States v. Friedland, 83
F.3d 1531, 1539 (3d Cir. 1996) (stating that under 28 U.S.C. §§ 541 & 547 the
United States Attorney is responsible for the prosecution of all crimes within
his or her district). Moreover, the Third Circuit Court of Appeals has stated
that a private person in a federal civil action lacks standing to impose criminal
liability on a defendant. Friedland, 83 F. 3d at 1539. As such, the court will
strike plaintiff’s request to prosecute the defendants from plaintiff’s ad
The court next addresses the defendants’ motions to dismiss.
Defendants have each filed a motion to dismiss three counts contained within
plaintiff’s six-count complaint: Count Two, involuntary servitude in
contravention of 18 U.S.C. § 1584; Count Three, wrongful discharge under
Title VII; and Count Six, a claim for declaratory relief pursuant to 28 U.S.C. §
2201. Magistrate Judge Blewitt suggests that all three counts should be
dismissed with prejudice. Plaintiff does not object to the dismissal of count six,
but plaintiff objects to the dismissal of counts two and three. Thus, the court
will first discuss count six and then address counts two and three.
A. Report and Recommendation - No Objections to the dismissal of
Magistrate Judge Blewitt recommends dismissing plaintiffs claim for
declaratory relief, count six, with prejudice. Neither plaintiff nor defendants
object to this recommendation. When deciding whether to adopt the R&R
when no objections have been filed, the court must determine if a review of the
record evidences plain error or manifest injustice. FED. R. CIV. P. 72(b) 1983
Advisory Committee Notes (“When no timely objection is filed, the court need
only satisfy itself that there is no clear error on the face of the record to accept
the recommendation”); see also 28 U.S.C. § 636(b)(1); Sullivan v. Cuyler, 723
F.2d 1077, 1085 (3d Cir. 1983). No plain error has been discerned following a
review of the record. Accordingly, the court will adopt this portion of the R&R
and dismiss count six with prejudice.
B. Report and Recommendation - Objections to the dismissal of Counts
Two and Three
Plaintiff objects to the recommendations of dismissing count two,
involuntary servitude, and count three, wrongful discharge, with prejudice. In
disposing of objections to a R&R, the district court must make a de novo
determination of those portions of the report against which objections are
made. 28 U.S.C. § 636(b)(1)(c); see also Sullivan v. Cuyler, 723 F.2d 1077,
1085 (3d Cir. 1983). The court may accept, reject, or modify, in whole or in
part, the magistrate judge’s recommendations. Henderson v. Carlson, 812
F.2d 874, 877 (3d Cir. 1987). The district court judge may also receive further
evidence or recommit the matter to the magistrate judge with instructions. Id.
The court addresses counts two and three in seriatim.
1. Count Two - Involuntary Servitude
Plaintiff objects to the recommendation that the court dismiss her
involuntary servitude claim with prejudice. Involuntary servitude claims arise
under the Thirteenth Amendment to the United States Constitution. The
Thirteenth Amendment abolished slavery and conditions of involuntary
servitude in all parts of the United States. See City of Memphis v. Greene,
451 U.S. 100, 120 (1981). “[T]he phrase ‘involuntary servitude’ was intended
‘to cover those forms of compulsory labor akin to African slavery which in
practical operation would tend to produce like undesirable results.’” United
States v. Kozminski, 487 U.S. 931, 942 (1988) (quoting Butler v. Perry, 240
U.S. 328, 332 (1916)). The Third Circuit Court of Appeals has stated that it
will “tak[e] a contextual approach to involuntary servitude by confining the
Thirteenth Amendment to those situations that are truly ‘akin to African
slavery.’” Steirer v. Bethlehem Area Sch. Dist., 987 F.2d 989 (3d Cir.1993).
In the present case, plaintiff alleges challenging working conditions.
Plaintiff’s work environment, however, “does not evoke in the court’s mind the
burdens endured by the African slaves in the cotton fields or kitchens of the
antebellum south.” United States v. Bertoli, 994 F.2d 1002, 1022 (3d Cir.
1993). Moreover, the general defense against oppressive hours, pay, working
conditions or treatment is the right to change employers. Pollock v. Williams,
322 U.S. 4, 17-18 (1944). Plaintiff never claimed that the defendants
physically restrained her or prevented her from leaving work. Rather, she
always maintained the right to walk away from defendants’ employment. In
short, plaintiff has not alleged that her employment with defendants rose to the
level of involuntary servitude. Accordingly, plaintiff’s objection will be overruled
and her involuntary servitude claim, count two, will be dismissed.1
2. Count Three - Title VII Wrongful Discharge
Plaintiff also objects to the recommendation that the court dismiss her
wrongful discharge claim under Title VII.2 Title VII provides that “[i]t shall be
unlawful employment practice for an employer . . . to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of
The court will deny this claim with prejudice as an amendment would
be futile. See Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004) (holding that
district courts must permit a curative amendment within a set period of time
unless such an amendment would be inequitable or futile).
Plaintiff seeks to bring her employment discrimination claim pursuant
to Title VII’s jurisdictional provision, 42 U.S.C. § 2000e-5(f)(3). The court,
however, construes count three as a disparate treatment claim under 42
U.S.C. § 2000e-2(a)(1). See Alston, 363 F.3d at 234 (stating that courts are
to construe complaints so “as to do substantial justice,” keeping in mind that
pro se complaints in particular should be construed liberally).
employment, because of such individual’s race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-2(a)(1). In order to prove a prima facie case of
disparate treatment under Title VII, the plaintiff must show that: 1) she is a
member of a protected class; 2) she was qualified for the position; 3) she was
subjected to an adverse employment action; and 4) the circumstances of the
adverse action imply discrimination. Sarullo v. U.S. Postal Serv., 352 F.3d
789, 797 (3d Cir. 2003).
Here, plaintiff alleges that she was treated differently because of her
age. (See Compl. ¶¶ 8, 18, 20, 22, 24, 29-30, 32, 34, 37, 39, 49, 51-52, 54)
(emphasis added). Plaintiff fails to allege differential treatment based on her
race, color, religion, sex, or national origin. In short, count three asserts a
claim of age discrimination pursuant to the ADEA, which plaintiff previously
alleged in count one. Thus, plaintiff’s objection will be overruled and plaintiff’s
Title VII claim, count three, will be dismissed.3
The court will deny this claim with prejudice as an amendment would
be futile. See Alston, 363 F.3d 229, 235 (3d Cir. 2004) (holding that district
courts must permit a curative amendment within a set period of time unless
such an amendment would be inequitable or futile).
For the reasons stated above, the court will overrule the plaintiff’s
objections and adopt the R&R, which dismisses counts two, three and six with
prejudice. This case will be remanded for the disposition of the following
claims: Count One, violation of the ADEA; Count Four, violation of the Fair
Labor Standards Act; and Count Five, constructive discharge. An appropriate
s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?