Kaczmarek v. COLTS et al

Filing 10

MEMORANDUM (Order to follow as separate docket entry) re 7 Defendants' MOTION TO DISMISS.Signed by Honorable A. Richard Caputo on 11/16/17. (dw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DAVID KACZMAREK,
CIVIL ACTION NO. 3:17-CV-00950

Plaintiff,

(JUDGE CAPUTO)

v.
COUNTY OF LACKAWANNA TRANSIT
SYSTEM, and LINDA MATYLEWICZ, in
her individual capacity,
Defendants.

MEMORANDUM
Presently before this Court is Defendants’ Motion to Dismiss (Doc. 7) Plaintiff’s
Complaint (Doc. 1) in its entirety. Because Plaintiff has sufficiently pled the prima facie
elements of a retaliation claim under the Family Medical Leave Act (“FMLA”), Count I of
Plaintiff’s Complaint will not be dismissed. Further, Count II of Plaintiff’s Complaint will not
be dismissed because Defendants have not provided evidence to suggest that the County
of Lackawanna Transit System is a local agency as opposed to a Commonwealth agency,
and thus Defendants are not immune from suit.
I. Background
A. Factual Background
The well-pleaded facts as set forth in Plaintiff’s Complaint are as follows:
Plaintiff David Kaczmarek (“Plaintiff”) has been an employee of Defendant County
of Lackawanna Transit System (“COLTS”) for over nine years. During that time he had “an
unblemished work history.” (Compl. ¶ 1.) Defendant COLTS is a municipal entity, which
during the relevant time of this action employed Defendant Linda Matylewicz as its Director
of Human Resources.
Plaintiff first requested intermittent leave under the FMLA on March 16, 2016
because he was suffering from: (1) a lumbar disc disease; (2) lumbar radiculopathy; (3)

lumbar myofascial pain syndrome; (4) chronic nonmalignant pain syndrome; and (5)
migraines. His FMLA certificate related to this request was denied on March 21, 2016 when
Defendant Matylewicz noted that she was unable to read the information provided by
Plaintiff’s doctor. Following the denial of Plaintiff’s FMLA certificate, Plaintiff was scheduled
to undergo a physical exam administered by the Department of Transportation (“DOT”).
Plaintiff complied with the examination even though he was not due for such an exam until
August of 2016. After completing the DOT examination, Plaintiff’s FMLA certification was
approved. Notably, the certification that was ultimately approved covered the same
conditions that were set forth in the initial certification that was denied on March 21, 2016.
On August 26, 2016, Plaintiff took FMLA leave to pursue back treatment. Plaintiff
subsequently obtained treatment and provided Defendants with a return to work notice on
September 2, 2016. The return to work notice was completed by Plaintiff’s personal doctor
and the doctor used by Defendant COLTS. Due to the Labor Day holiday, Plaintiff was
scheduled to return to work on September 6, 2016. Plaintiff did not misuse his FMLA leave.
On or about September 2, 2016, Plaintiff alleges that Defendants hired a private
investigation firm (“PI firm”) to surveil him and his family. Defendants provided the PI firm
with confidential and private information to support its investigation.1 The investigation and
surveillance continued after Plaintiff returned to work. Specifically, Plaintiff claims that the
private investigation firm “peek[ed] into [his] personal windows of his home. . . stalk[ed] and
viedo tape[d] his family members, and research[ed] his personal off-duty habits.” (Compl.
¶ 26.)
B. Procedural History
Based on the foregoing facts, Plaintiff filed a two-count complaint on June 6, 2017
1

Plaintiff offers no averment regarding the substance of the information
provided. It is unclear whether the information provided would have
actually been of a confidential nature.
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claiming that Defendants unlawfully retaliated against him in violation of the FMLA (Count
I), and that Defendants invaded his privacy in violation of state law (Count II). Defendants
filed a Motion to Dismiss Plaintiff’s Complaint on June 15, 2017 and a brief in support of its
Motion on June 27, 2017. Plaintiff responded to Defendants’ Motion with a Brief in
Opposition on June 28, 2017. Defendants have not filed a Reply to Plaintiff’s Brief in
Opposition.
This matter has been fully briefed and is ripe for disposition.
II. Legal Standard
A. Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint,
in whole or in part, for failure to state a claim upon which relief can be granted. See
Fed. R. Civ. P. 12(b)(6). “Under the ‘notice pleading’ standard embodied in Rule 8 of the
Federal Rules of Civil Procedure, a plaintiff must come forward with ‘a short and plain
statement of the claim showing that the pleader is entitled to relief.’” Thompson v. Real
Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014) (quoting Fed. R. Civ. P.
8(a)(2)).
When resolving a Rule 12(b)(6) motion, “a court must consider no more than
whether the complaint establishes ‘enough facts to raise a reasonable expectation that
discovery will reveal evidence of the necessary elements’ of the cause of action.”
Trzaska v. L’Oreal USA, Inc., 865 F. 3d 155, 162 (3d Cir. 2017) (quoting Connelly v.
Lane Constr. Corp., 809 F.3d 780, 789 (3d Cir. 2016)). In reviewing the sufficiency of a
complaint, a court must take three steps: (1) identify the elements of the claim; (2)
identify conclusions that are not entitled to the assum ption of truth; and (3) assume the
veracity of the well-pleaded factual allegations and determine whether they plausibly
give rise to an entitlement to relief. See Connelly, 809 F.3d at 787 (citations omitted).

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“To survive a motion to dismiss, 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, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (q uoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)).
III. Discussion
A. Count I: Retaliation under the FMLA
Defendants seek dismissal of Count I of Plaintiff’s Complaint which alleges that
Defendants violated the FMLA’s anti-retaliation provision
The FMLA was enacted “to ‘balance the demands of the workplace with the needs
of families,’ and ‘to entitle employees to take reasonable leave for medical reasons . . . in
a manner that accommodates the legitimate interests of employers.’” Conoshenti v. Pub.
Serv. Elec. & Gas Co., 364 F.3d 135, 140-41 (3d Cir.2004) (quoting 29 U.S.C. § 2601(b)(1),
(b)(3)). To that end, the FMLA allows covered employees to take as many as twelve weeks
of leave from work as a result of a “serious health condition that makes the employee
unable to perform the functions of the position of such employee.” 29 U.S.C.
§2612(a)(1)(D). Pursuant to the FMLA, employers are prohibited from retaliating against
employees who take full advantage of the benefits afforded by the FMLA. See 29 U.S.C.
§ 2615.
In order to establish “a retaliation claim under the FMLA, a plaintiff must prove that
(1) she invoked her right to FMLA-qualifying 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, 303 (3d Cir. 2012) (citing
Erdman v. Nationwide Ins. Co., 582 F.3d 500, 508-09 (3d Cir. 2009)). Here, there is no
question that Plaintiff has pled that he properly invoked his right to FMLA leave. Thus, the
focus of this Court’s inquiry will be whether Plaintiff has pled an adverse employment

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decision that was causally related to his FMLA leave.
The Supreme Court has clarified the definition of an “adverse employment action”
in the context of Title VII of the Civil Rights Act of 1964. See Burlington Northern & Santa
Fe Railway Co. v. White, 548 U.S. 53, 67-68 (2006). In Burlington Northern & Santa Fe
Railway Co. v. White the Supreme Court stated:
The anti-retaliation provision protects an individual not from all retaliation, but
from retaliation that produces an injury or harm . . . In our view, a plaintiff must
show that a reasonable employee would have found the challenged action
materially adverse, which in this context means it well might have dissuaded
a reasonable worker from [engaging in protected activity].
548 U.S. at 67-68. A number of courts, including courts within the Third Circuit2, have
applied this definition of “adverse employment action” to retaliation claims under the FMLA.
See, e.g., Millea v. Metro-North R.R., 658 F.3d 154, 164 (2d Cir. 2011) (applying the
Burlington Northern definition of an “adverse action” to actions under the FMLA); Metzler
v. Federal Home Loan Bank of Topeka, 464 F.3d 1164, 1171 n.2 (10th Cir. 2006) (same);
McArdle v. Dell Prods., L.P., 293 Fed. App’x. 331, 337 (5th Cir. 2008) (per curiam) (same);

2

It is important to note that the Third Circuit has not yet decided whether to
apply the standard for “adverse employment action” promulgated in the
Title VII context by Burlington Northern. See Budhun v. Reading Hosp. &
Med. Ctr., 765 F.3d 245, 257 n.6 (3d Cir. 2014) (noting that the Third
Circuit has not concluded that the Burlington Northern definition applies in
the context of an FMLA claim); Kasper v. County of Bucks, 514 Fed.
App’x. 210, n.5 (discussing the more restrictive definition utilized in the
Circuit prior to Burlington Northern). But see Wells v. Retinovitreous
Assocs., No. 16-2962, 2017 WL 3271598, *6 n.14 (3d Cir. Aug. 1, 2017)
(explaining that the District Court should have applied the Burlington
Northern standard); DiCampli v. Korman Cmtys., 257 Fed. App’x. 497,
500-01 (3d Cir. 2007) (applying the Burlington Northern standard for
“adverse action” to the FMLA); Moore v. City of Philadelphia, 461 F.3d
331, 341 (3d Cir. 2006) (explaining that the Circuit’s more restrictive
standard for retaliation claims under Title VII was displaced by Burlington
Northern.)
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Burton v. Pa. State Police, 990 F. Supp 2d 478, 509 (M.D. Pa. 2014) (Rambo, J.) (same);
Grosso v. Fed. Express Corp., 467 F. Supp. 2d 449, 458 (E.D. Pa. 2006) (same). In other
words, “[f]or purposes of the FMLA’s anti-retaliation provision, a materially adverse action
is any action by the employer that is likely to dissuade a reasonable worker in the plaintiff’s
position from exercising his legal rights.” Millea, 658 F.3d at 164.
Here, Plaintiff alleges that he suffered an adverse employment action under the
FMLA as the subject of surveillance orchastrated by his employer. Defendants disagree and
argue that surveillance does not amount to an adverse action absent a denial of benefits
or an impact on the terms of Plaintiff’s employment. Plaintiff is correct. When applying the
Burlington Northern definition of “adverse employment action” courts have held that
secretive surveillance of an employee may constitute an adverse employment action
sufficient to support a claim of retaliation. See, e.g., Fercello v. County of Ramsey, 612 F.3d
1069, 1081 (8th Cir. 2010) (“[P]lacing an employee under constant surveillance could be
evidence of retaliation.”); Cichonke v. Bristol Twp., No. 14-4243, 2015 WL 8764744, *19
(E.D. Pa. Dec. 14, 2015) ([I]t is possible that a reasonable jury could find that such
[surveillance] was an adverse employment action.”); Mendez v. Starwood Hotels & Resorts
Worldwide, Inc., 746 F. Supp. 2d 575, 597 (S.D.N.Y. 2010) (“[T]here is nothing
unreasonable about the jury’s concluding that secret surveillance by an employer well might
. . . dissuade a reasonable employee from continuing to” engage in a protected activity);
Bind v. City of New York, No. 08-11105, 2011 WL 4542897, *10 (S.D.N.Y Sept. 20, 2011)
(noting that even if an employee is unaware of surveillance, the fact that the employee was
under surveillance may constitute an adverse employment action). As any reasonable
person may suspect, if an employer hires private investigators to surveil an employee on
FMLA leave, employees would likely be “dissuaded from exercising their legal right” to
benefit under the FMLA in an attempt to avoid such surveillance. Millea, 658 F.3d at 164;
see also Mira v. Media, No. 15-9990, 2017 WL 1184302, *7 (S.D.N.Y. Mar. 29, 2017) (“[I]t
is not difficult to imagine that retaliatory stalking and surveillance might intimidate a
reasonable employee and dissuade her from complaining about discrimination.”).
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In the instant action, the surveillance alleged is particularly troubling because it was
not limited solely to the workplace. Rather, the surveillance extended to Plaintiff’s private
life; investigators allegedly captured video of Plaintiff’s family and peered into the windows
of Plaintiff’s home. Because Plaintiff has sufficiently pled that Defendants’ surveillance
served as an adverse employment action, the second element of the prima facie case for
retaliation is satisfied for the purpose of determining plausibility under FED. R. CIV. P.
12(b)(6).
Further, Plaintiff has sufficiently alleged that an adverse action was causally
connected to the invocation of his rights under the FMLA. “The requisite causal connection
can be established by (1) temporal proximity between the protected activity and the adverse
employment action, (2) circumstantial evidence of a ‘pattern of antagonism’ following the
protected conduct, or (3) where the proffered evidence, looked at as a whole, suffices to
raise the inference.” Innella v. Lenape Valley Found., 152 F. Supp. 3d 445, (E.D. Pa. 2015)
(quoting Kachmar v. Sungard Data Sys., 109 F.3d 173, 177 (3d Cir. 1997)). “When the
temporal proximity between the protected activity and adverse action is ‘unduly suggestive,’
this is sufficient standing alone to create an inference of causality.” Lichtenstein, 691 F.3d
at 307 (citing LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 232 (3d Cir.
2007)). Here, the alleged retaliatory conduct–namely the surveillance of Plaintiff–began
roughly eight days after Plaintiff t ook FMLA leave. Taken alone, this allegation supports
the inference that the alleged adverse employment action alleged was caused by Plaintiff’s
decision to take FMLA leave. See, e.g., id. (finding an adverse action taken seven days
after the invocation of FMLA leave was “unduly suggestive”); Seeger v. Cincinnati Bell Tel.
Co., 681 F.3d 274, 283 (6th Cir. 2012) (three weeks was “unduly suggestive”). Further,
Plaintiff has pled facts that support a finding of a “pattern of antagonism.” For example,
Plaintiff claims that after making a request for FMLA leave, Defendants “made disparaging
comments about Plaintiff and his need for FMLA leave.” (Compl. ¶ 13.) Additionally, this
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Court believes that the 14-day surveillance of Plaintiff at his private residence also amounts
to a “pattern of antagonism.” Thus, Plaintiff has sufficiently pled causation to survive the
instant Motion to Dismiss.
Plaintiff has sufficiently pled the prima facie case for a retaliation claim under the
FMLA. Therefore, Count I of Plaintiff’s Complaint will not be dismissed.
B. Count II: Invasion of Privacy
The Political Subdivision Tort Claims Act (“Tort Claims Act”) provides municipalities,
local agencies, and their employees with immunity for tort liability. 42 Pa. C.S.A. § 8541.
Here, Defendants argue that they are covered under the Tort Claims Act, and therefore are
immune from suit for a claim of invasion of privacy. It follows that if immunity is provided
Defendants’ Motion to Dismiss should be granted.
Specifically, the Tort Claims Act states: “Except as otherwise provided in this
subchapter, no local agency shall be liable for any damages on account of any injury to a
person or property caused by any act of the local agency or an employee thereof or any
person.” 42 Pa. C.S.A. § 8541. (emphasis added). Thus, whether an agency is considered
a local or Commonwealth agency is dispositive to the question of immunity under the Tort
Claims Act. Notably, this immunity does not cover “acts or conduct which constitutes a
crime, actual fraud, actual malice or willful conduct.” 42 Pa. C.S.A. § 8542(d).
Defendants claim that COLTS is a local agency entitled to immunity for two reasons.
First, Defendants argue that COLTS was created under the Municipalities Authorities Act,
and as such should be designated as a local agency. Defendants cite no authority to
support this contention. Even if such a proposition were true, Defendants have provided no
evidence that COLTS was incorporated under the MAA.3 Further, it is not immediately clear

3

Defendants could have attached the certificate of incorporation indicating
it was formed under the MAA. Am. Corp. Soc. v. Valley Forge Ins. Co.,
8

that incorporation pursuant to the MAA warrants designation as a “local agency” for
immunity purposes.4 The Supreme Court of Pennsylvania has opined that an authority
created under the MAA “is not the creature, agent, or representative of the municipality
organizing it.” Simon Appeal, 184 A.2d 695, 697 (Pa. 1962). Second, Defendants argue that
similar transportation authorities have been provided immunity under the Tort Claims Act.
For example, Defendants cite Gloffke v. Robinson, 812 A.2d 728 (Pa. Cmwlth. Ct. 2005),
for the proposition that transportation authorities are classified as “local agencies.” But, what
Defendants fail to acknowledge is that in Gloffke the parties agreed that the transportation
authority at issue was a “local agency.” 812 A.2d at 732. That is not the case here.
Additionally, Defendants cite Smith v. Endless Mountain Transit Authority, 878 A.2d 177
(Pa. Cmwlth. Ct. 2005), and Flaxman v. Burnett, 574 A.2d 1061 (Pa. Super. Ct. 1990) for
the same proposition. Again, however, the cases cited are not instructive. Each of these
cases relied on additional evidence to either conclude that an authority was a “local
agency,” or to compare and contrast the types of agencies entitled to immunity under the
Tort Claims Act. Put simply, Defendants have not provided this Court with any basis to
conclude that immunity is owed under the Tort Claims Act.
Since no evidence was provided with Defendants’ Motion to Dismiss, this Court is
limited to the averments made in the Complaint when assessing whether COLTS is a “local
agency” and whether immunity is owed. With that said, the averments on the face of the

424 Fed. App’x. 86 (3d Cir. 2011) (citing Pension Benefit Gaur. Corp. v.
White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993)).
4

At least one case this Court has identified suggests that incorporation
under the MAA may be sufficient evidence to support a finding that an
authority is a local agency for purposes of immunity. See Smith v. Endless
Mt. Transp. Auth., 878 A.2d 177, 180 (Pa. Comwth. 2005).
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Complaint do not support a finding that Defendants are immune from suit.5 For this reason,
Count II of Plaintiff’s Complaint will not be dismissed.
IV. Conclusion
Defendants’ Motion to Dismiss Plaintiff’s Complaint will be denied in its entirety.
Count I of the Complaint will not be dismissed because Plaintiff has sufficiently pled the
prima facie case for a retaliation claim under the FMLA. Further, Count II of the Complaint
will not be dismissed because Defendants have provided no basis upon which this Court
could conclude that Defendants are immune from suit under the Tort Claims Act.
An appropriate order follows.

November 16, 2017
Date

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/s/ A.Richard Caputo
A. Richard Caputo
United States District Judge

It is important to note that Defendants are free to raise the question of
immunity again upon a Motion for Summary Judgment. But, at this time
Defendants have not provided sufficient evidence to support a finding of
immunity.
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