Soenen v. Keane Frac, LP
MEMORANDUM (Order to follow as separate docket entry) re 12 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Keane Frac, LP. Signed by Honorable Matthew W. Brann on 6/4/2021. (lg)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
KEANE FRAC, LP,
JUNE 4, 2021
On July 28, 2020, Plaintiff John Soenen filed a four-count complaint against
Defendant, Keane Frac, LP.1 On September 30, 2020, Soenen filed an amended
complaint alleging six counts.2 Soenen alleges that Keane violated the Family and
Medical Leave Act (“FMLA”), the Pennsylvania Human Relations Act (“PHRA”),
Title VII of the Civil Rights Act of 1964 (“Title VII”), and the Pregnancy
Discrimination Act (“PDA”).3 Keane subsequently filed a motion to dismiss on
November 3, 2020.4
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 12(b)(6), a complaint may be
dismissed, in whole or in part, if the plaintiff has failed to “state a claim upon
which relief can be granted.” A motion to dismiss “tests the legal sufficiency of a
pleading”5 and “streamlines litigation by dispensing with needless discovery and
factfinding.”6 Where applicable, “Rule 12(b)(6) authorizes a court to dismiss a
claim on the basis of a dispositive issue of law.”7 This is true of any claim,
“without regard to whether it is based on an outlandish legal theory or on a close
but ultimately unavailing one.”8
Following the Roberts Court’s “civil procedure revival,”9 the landmark
decisions of Bell Atlantic Corporation v. Twombly10 and Ashcroft v. Iqbal11
tightened the standard that district courts must apply to 12(b)(6) motions.12 These
cases “retired” the lenient “no-set-of-facts test” set forth in Conley v. Gibson and
replaced it with a more exacting “plausibility” standard.13 Accordingly, after
Twombly and Iqbal, “[t]o survive a motion to dismiss, a complaint must contain
Richardson v. Bledsoe, 829 F.3d 273, 289 n.13 (3d Cir. 2016) (Smith, C.J.) (citing Szabo v.
Bridgeport Machines, Inc., 249 F.3d 672, 675 (7th Cir. 2001) (Easterbrook, J.).
Neitzke v. Williams, 490 U.S. 319, 326–27 (1989).
Id. at 326 (citing Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).
Id. at 327.
Howard M. Wasserman, The Roberts Court and the Civil Procedure Revival, 31 Rev. Litig.
313, 316, 319-20 (2012).
550 U.S. 544 (2007).
556 U.S. 662, 678 (2009).
Id. at 670 (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
Id. (citing Conley, 355 U.S. at 41).
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sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’”14
“A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.”15 “Although the plausibility standard does not impose a
probability requirement, it does require a pleading to show more than a sheer
possibility that a defendant has acted unlawfully.”16 Moreover, “[a]sking for
plausible grounds . . . calls for enough facts to raise a reasonable expectation that
discovery will reveal evidence of [wrongdoing].”17
The plausibility determination is “a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.”18 No
matter the context, however, “[w]here 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.’”19 Likewise, “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”20
Id. at 678 (quoting Twombly, 550 U.S. at 570).
Connelly v. Lane Const. Corp., 809 F.3d 780 (3d Cir. 2016) (Jordan, J.) (internal citations
Twombly, 550 U.S. at 556.
Iqbal, 556 U.S. at 679.
Id. at 678 (internal quotations omitted) (quoting Twombly, 550 U.S. at 557).
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Nevertheless, when disposing of a motion to dismiss, the Court “accept[s] as
true all factual allegations in the complaint and draw[s] all inferences from the
facts alleged in the light most favorable to [the plaintiff].”21 The Court is not,
however, required to apply this tenet to legal conclusions.22 As a matter of
procedure, the United States Court of Appeals for the Third Circuit has directed
district courts evaluating motions to dismiss to proceed in three steps:
The court “should identify allegations that, because they are no more
than conclusions, are not entitled to the assumption of truth”; and
The court must “tak[e] note of the elements [the] plaintiff must plead
to state a claim”;
“When there are well-pleaded factual allegations, [the] court should
assume their veracity and then determine whether they plausibly give
rise to an entitlement of relief.”23
FACTS ALLEGED IN THE AMENDED COMPLAINT
Soenen was employed by Keane, a “covered entity” within the meaning of
the FMLA, from approximately March 2016 to August 6, 2018.24 In or around
Spring 2018, Soenen requested FMLA-protected leave from work due to the
pending birth of his child, who was due in August 2018.25 On or around July 23,
2018, Soenen emailed two managers to remind them that he would be on FMLA
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008) (Nygaard, J.).
Iqbal, 556 U.S. at 678; see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.
2009) (Nygaard, J.) (“After Iqbal, it is clear that conclusory or ‘bare-bones’ allegations will
no longer survive a motion to dismiss.”).
Connelly, 809 F.3d at 787 (internal quotations and citations omitted).
Doc. 11 at ¶¶ 8-9.
Id. at ¶ 11.
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leave in early August 2018 due to the birth of his child.26 On or around August 3,
2018, Keane informed Soenen that he would either have to resign or be
terminated.27 Soenen was not given a reason for this ultimatum.28 He resigned
Soenen alleges, on information and belief, that Keane provided childbirth
and bonding-related leave to female employees, that Soenen was treated less
favorably than female employees seeking to take childbirth and bonding-related
leave, and that Soenen was treated less favorably than employees whose partners
were not pregnant.30 Soenen does not, however, identify any comparators who
were purportedly treated more favorably than him.
Keane’s FMLA Policy
Keane’s FMLA policy (attached to Keane’s brief in support of its motion to
dismiss and referenced in the amended complaint) sets forth the eligibility
requirements and criteria for taking FMLA leave.31 It provides that “eligible
employees” may take FMLA leave for the birth of one’s child or to care for a
newborn child.32 The policy also states that “[a]n employee should request FMLA
leave by completing [Keane’s] Request for Leave form and submitting it to the
Id. at ¶ 13.
Id. at ¶ 14.
Id. at ¶ 17.
Id. at ¶ 19.
Id. at ¶¶ 21-23.
Id. at 16.
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Human Resources Department.”33 Soenen has not alleged that he provided notice
as described by the policy.
Soenen asserts six claims, alleging that Keane:
Interfered with Soenen’s rights under the FMLA (Count I);
Retaliated against Soenen in violation of the FMLA (Count II);
Unlawfully discriminated against Soenen on the basis of sex in violation
of the PHRA (Count III);
Unlawfully discriminated against Soenen on the basis of his association
with a pregnant person in violation of the PHRA (Count IV);
Unlawfully discriminated against Soenen on the basis of sex in violation
of Title VII (Count V); and
Unlawfully discriminated against Soenen on the basis of his association
with a pregnant person in violation of Title VII (Count VI).
Keane seeks to dismiss all counts for failure to state a claim. For the reasons
discussed below, Keane’s motion to dismiss is granted.
Counts I and II: Violation of the FMLA
Keane first seeks to dismiss counts I and II because the amended complaint
does not allege facts plausibly establishing that Soenen complied with Keane’s
usual and customary FMLA notice policy. Both FMLA-interference and FMLAretaliation claims require that an employee show that he provided proper notice to
Id. at 17-18.
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his employer of his intention to take FMLA leave.34 FMLA regulations permit
employers to create and enforce “usual and customary” notice policies as a
threshold requirement for approving FMLA leave.35
Keane argues that both of Soenen’s FMLA claims fail because he has not
alleged facts showing compliance with Keane’s usual and customary notice
requirement. Citing Keane’s FMLA policy, Keane asserts that Soenen needed to
plead facts plausibly demonstrating that he had completed and submitted a Request
for Leave form. Soenen responds that Keane’s FMLA policy may not be
considered on a motion to dismiss as it is not undisputedly authentic.
Alternatively, Soenen contends that the policy does not constitute a usual and
customary notice requirement because it was not mandatory.
First, the Court may properly consider the FMLA policy as it is referenced
by and integral to the amended complaint. “To decide a motion to dismiss, courts
Ross v. Gilhuly, 755 F.3d 185, 191-93 (3d Cir. 2014). To succeed on an interference claim, a
plaintiff must show: “(1) he or she was an eligible employee under the FMLA; (2) the
defendant was an employer subject to the FMLA’s requirements; (3) the plaintiff was entitled
to FMLA leave; (4) the plaintiff gave notice to the defendant of his or her intention to take
FMLA leave; and (5) the plaintiff was denied benefits to which he or she was entitled under
the FMLA.” Id. (internal quotation marks omitted) (quoting Johnson v. Cmty. Coll. of
Allegheny Cnty., 566 F. Supp. 2d 405, 446 (W.D. Pa. 2008)). To succeed on a retaliation claim,
a plaintiff must show 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, 301-02,
303 (3d Cir. 2012) (citations omitted) (“To invoke rights under the FMLA, employees must
provide adequate notice to their employer about their need to take leave.” (citations omtited)).
Soutner v. Penn State Health, 2020 WL 1531323, at *2 (M.D. Pa. Mar. 31, 2020); see 29 C.F.R.
§ 825.302(d) (“An employer may require an employee to comply with the employer’s usual
and customary notice and procedural requirements for requesting leave, absent unusual
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generally consider only the allegations contained in the complaint, exhibits
attached to the complaint and matters of public record.”36 However, courts may
consider an extrinsic document where the document is “undisputedly authentic”
and is “integral to or explicitly relied upon in the complaint.”37 Plaintiffs may
challenge a court’s consideration of external documents on grounds of authenticity
where they provide some factual basis for doing so.38
Here, Soenen offers no reason to question the authenticity of Keane’s policy
other than that the document has not been authenticated by Soenen. Soenen does
not explain why the document is purportedly inauthentic or why Keane’s
identification of the policy is insufficient. Moreover, the Court is satisfied that
Keane’s policy is “integral to” Soenen’s complaint. Compliance with an
employer’s usual and customary notice requirement is an essential element of an
FMLA interference or retaliation claim. The policy is also crucial to Soenen’s
discrimination claims, which allege that Keane applied its FMLA policy in a
Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)
In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (internal
quotation marks and citations omitted).
See Hofman v. Time Warner Cable Inc., 2013 WL 2460121, at *4 n.2 (D.N.J. June 6, 2013)
(rejecting a plaintiff’s authenticity challenge because the document at issue was “the only
written agreement governing the parties’ relationship, [was] authenticated as true and correct
by [the defendant’s] in-house counsel, and no evidence [was] submitted to question its
authenticity.”); In re AT&T Corp. Sec. Litig., 2002 WL 31190863, at *17 (D.N.J. Jan. 30,
2002). Cf. Enrunda Trading Co., Ltd. v. MTM Trading LLC, 2018 WL 11241079, at *4 (D.N.J.
Mar. 29, 2018) (declining to consider a written contract at the motion-to-dismiss stage where
the plaintiff argued that it was fraudulent).
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discriminatory fashion. Accordingly, the Court will consider Keane’s FMLA
policy for purposes of deciding this motion.
Second, Keane’s FMLA policy created a usual and customary notice
requirement. Soenen errs because he improperly assumes that a usual and
customary notice policy must be couched in mandatory language. To the contrary,
so long as Keane’s policy constitutes a usual and customary notice requirement, it
may be enforced against any employee without interfering with that employee’s
rights or retaliating against them.39 Because Keane had a written policy stating that
employees should inform their managers of their intent to take FMLA leave in
writing, the Court is convinced that this policy constituted a usual and customary
notice requirement. Accordingly, because Soenen has not pled facts showing that
he has satisfied this requirement, Keane’s motion to dismiss counts I and II is
Counts III and V: Unlawful Sex Discrimination
Keane next seeks to dismiss Soenen’s claims for unlawful sex
discrimination.40 “To withstand a motion to dismiss, a plaintiff must plead facts
giving rise to a plausible claim of discrimination, that she: (1) is a member of a
protected class; (2) is qualified for the position; (3) suffered an adverse
See Srouder v. Dana Light Axle Mfg., LLC, 725 F.3d 608, 615 (6th Cir. 2013) (“[W]e hold that
an employer may enforce its usual and customary notice and procedural requirements against
an employee claiming FMLA-protected leave.”).
Analysis of discrimination claims brought under Title VII and the PHRA is the same. Kelly v.
Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996).
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employment action; and (4) under circumstances that give rise to an inference of
unlawful discrimination.”41 “To properly plead the fourth element, a plaintiff may,
but is not required to, show that similarly situated individuals outside her class
received more favorable treatment.”42
Keane asserts that Soenen’s sex discrimination claims should be dismissed
because they are supported only by bare-bones allegations that, “upon information
and belief,” Soenen was treated less favorably than similarly situated female
employees and that Keane maintained and applied a discriminatory FMLA policy.
Keane argues that these allegations are conclusory in nature and are thus
insufficient to save the complaint from dismissal; Keane further points to Soenen’s
failure to identify specific comparators against whom his claims of discrimination
may be evaluated.
The Court agrees that counts III and V fail because they are unsupported by
specific factual allegations. Plaintiffs do not need to allege facts identifying
potential comparators to survive a motion to dismiss, but they must provide some
factual information upon which a discrimination claim may rest.43 Beyond making
conclusory statements that he was treated less favorably than women under
Keane’s FMLA policy, and that the FMLA policy was applied in a discriminatory
Miller v. Tithonus Tyrone, LP, 2020 WL 2065941, at *5 (W.D. Pa. Apr. 29, 2020) (citing Jones
v. Sch. Dist. of Phila., 198 F.3d 403, 410-11 (3d Cir. 1999)).
Id. (citing Anderson v. Wachovia Morg. Corp., 621 F.3d 261, 273 (3d Cir. 2010)).
E.g., id. (finding that a plaintiff was not required to identify specific comparators because she
presented sufficiently specific allegations in her complaint to survive a motion to dismiss).
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fashion, Soenen offers no facts to support a discrimination claim. Consequently,
Keane’s motion to dismiss counts III and V is granted.
Counts IV and VI: Unlawful Associational Pregnancy (Sex)
Finally, Keane seeks to dismiss counts IV and VI. To successfully bring a
claim of discrimination based on pregnancy, a male plaintiff must prove that he
was discriminated against both on the basis of his sex and on the basis of his
association with his partner’s pregnancy.44 Thus, to survive a motion to dismiss,
Soenen must allege facts establishing that he was discriminated against on the
basis of his sex. Here, Soenen only alleges that he was treated less favorably than
employees whose partners were not pregnant. This, standing alone, does not state
a claim for sex discrimination.45 Accordingly, Keane’s motion to dismiss counts
IV and VI is granted.
Griffin v. Sisters of Saint Francis, Inc., 489 F.3d 838, 843 (7th Cir. 2007) (“[M]ale plaintiffs,
like their female counterparts, must prove that they suffered adverse employment actions
because of their sex [to establish pregnancy discrimination].”); Pennington v. S. Motion, Inc.,
2017 WL 3897166, at *5 (N.D. Miss. Sept. 6, 2017).
Following Obergefell v. Hodges, it is no longer legally proper to presume that a pregnant
woman’s partner is necessarily a man. 576 U.S. 644, 675 (2015) (holding that same-sex
couples may not be deprived of the right to marry).
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Keane’s motion to dismiss pursuant to Rule 12(b)(6) is granted. Soenen is
granted leave to amend. Consequently, Soenen will be given fourteen days from
today’s date to file an amended complaint. If no amended complaint is filed, the
action will be summarily dismissed pursuant to Federal Rule of Civil Procedure
An appropriate Order follows.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
United States District Judge
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