DUNKEL v. INTEGRATIVE STAFFING GROUP et al
Filing
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OPINION & ORDER denying 29 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by INTEGRATIVE STAFFING GROUP. COURT FURTHER ORDERS that Integrative Staffing Group shall file its Answer to the Amended Complaint no later than June 6, 2016. Signed by Judge Maurice B. Cohill on 5/23/16. (rtw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
PAUL L. DUNKEL,
Plaintiff,
v.
INTEGRATIVE STAFFING GROUP,
and ALLEGHENY PLYWOOD
COMPANY, INC.
Defendants.
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Civil No. 15-1632
Opinion and Order
Plaintiff Paul Dunkel filed this action against Defendants Integrative Staffing Group and
Allegheny Plywood Company, Inc. alleging that he was discriminatorily discharged from his
employment in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a); the Employee
Retirement Income and Security Act, 29 U.S.C. § 1140; and Pennsylvania common law.
Integrative Staffing filed a motion to dismiss the Complaint seeking dismissal of all
claims, arguing that Plaintiff failed to plausibly plead an employer-employee relationship
between Integrative Staffing and himself, and failed to plead that Integrative Staffing provided
Plaintiff with workers’ compensation benefits. In response, Plaintiff filed an Amended
Complaint.1 ECF No. 24. Presently before the Court is Integrative Staffing’s Motion to Dismiss
Counts I, II, and III of Plaintiff’s Amended Complaint. ECF No. 29.
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Allegheny Plywood filed an Answer to the Complaint, which included a Crossclaim against Integrative Staffing.
ECF No. 26. Integrative Staffing filed a Motion to Dismiss Allegheny Plywood’s Crossclaim, which Motion was
dismissed as moot when Allegheny Plywood filed an Amended Answer and Crossclaim. ECF 31. On May 19,
2016, Integrative Staffing filed a Renewed Motion to Dismiss the Crossclaim. ECF No. 36.
Integrative Staffing concedes that Plaintiff’s Amended Complaint now properly asserts
that Integrative Staffing did provide workers’ compensation benefits, and therefore does not seek
dismissal of Count IV. Integrative Staffing continues to argue that the remaining Counts must be
dismissed because the Amended Complaint still fails to sufficiently plead an employer-employee
relationship. For the reasons set forth below we will deny Integrative Staffing’s motion.
I.
Relevant Background
Integrative Staffing is an industrial and administrative staffing agency located in
Coraopolis, Pennsylvania. Am. Compl. ¶¶ 6.c. & b. Integrative Staffing sponsored an ERISA
group welfare plan (health) and provided workers’ compensation insurance coverage to Mr.
Dunkel. Am. Compl. ¶¶ 6.f. & g, & 8.a.. Mr. Dunkel’s paychecks were issued by Integrative
Staffing, withholding taxes were paid by Integrative Staffing, and Integrative Staffing considered
Mr. Dunkel as its employee. Am. Compl. ¶ 8.
Allegheny Plywood is a wholesale distributor of cabinet grade hardwood plywood,
industrial panel products, laminate, solid surface and quartz surfacing products to the cabinet and
countertop industry located in Pittsburgh, Pennsylvania. Am. Compl. ¶¶ 7.a-c. Allegheny
Plywood sponsored an ERISA group welfare plan (health). Am. Compl. ¶ 7.f. Allegheny
Plywood exercised daily control of Mr. Dunkel’s work, supervised him, set his schedule and
otherwise employed Mr. Dunkel. Am. Compl. ¶¶ 9, 10.
Mr. Dunkel asserts that Integrative Staffing and Allegheny Plywood were joint employers
of him under the Rehab Act, ERISA and Pennsylvania common law. Am. Compl. ¶ 11. Mr.
Dunkel was hired by Integrative Staffing and Allegheny Plywood as a Delivery Driver on May
12, 2014. Am. Compl. ¶¶ 5.b, 12. The position for which he was ultimately hired was
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advertised on Craigslist as a CDL (Commercial Driver’s License) driver position for a
Pittsburgh-based company. Am. Compl. ¶ 13.
Mr. Dunkel called Allegheny Plywood to inquire about the job, and was told that the
position was not through a temp/staffing agency. Am. Compl. ¶ 14. He sent his resume directly
to Allegheny Plywood. Am. Compl. ¶ 15. Allegheny Plywood called him back to tell him he
had the job and that he was to report to Integrative Staffing. Am. Compl. ¶ 15. He reported to
Integrative Staffing in Coraopolis and was informed that it was the Human Resources office for
Allegheny Plywood. Am. Compl. ¶ 16. While at Integrative Staffing he completed paperwork,
and was then sent to Allegheny Plywood’s location in Pittsburgh. Am. Compl. ¶ 17. At
Allegheny Plywood he completed additional paperwork, and was told to report for work the next
day, May 12, 2014. Am. Compl. ¶ 18.
Mr. Dunkel only received work orders from Allegheny Plywood, not Integrative Staffing,
he reported to an Allegheny Plywood supervisor, and did not report to anyone at Integrative
Staffing. Am. Compl. ¶ 23. In order to perform his job he was given a delivery truck, driver’s
log, telephone, and fuel card, all supplied by Allegheny Plywood. Am. Compl. ¶ 22.
Furthermore, the “only things associated with Integrative Staffing were: time sheets (completed
and signed off by Allegheny Plywood); pay checks under Allegheny Plywood’s control; and,
workers’ compensation insurance coverage provided by Integrative Staffing.” Am. Compl. ¶ 24.
Mr. Dunkel’s Amended Complaint further alleges that he performed his duties satisfactorily and
that he was eligible to participate in the ERISA health welfare plan sponsored by Allegheny
Plywood. Am. Compl. ¶¶ 27, 28.
On July 29, 2014, while performing his duties Mr. Dunkel was struck in the head while
unloading a counter-top he was delivering to a customer. Am. Compl. ¶¶ 29-30. He reported the
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incident and the injury to Defendants by text messages and telephone call the same date it
occurred. Am. Compl. ¶¶ 31. Mr. Dunkel sustained a concussion and was taken to the hospital
where he remained until August 1, 2014. Am. Compl. ¶¶ 29, 32-33. While in the hospital, Mr.
Dunkel was terminated from his employment by Defendants by way of a voicemail left by an
agent of integrative Staffing. Am. Compl. ¶¶ 34-35, 5c, 19.
While in the hospital Mr. Dunkel also provided relevant information to a representative
from Integrative Staffing’s workers’ compensation insurance carrier who came to visit him in
person at the hospital. Am. Compl. ¶¶ 36-38. The representative completed a claim form for
Mr. Dunkel but did not provide him with a copy of the completed form. Am. Compl. ¶ 39.
After discharge from the hospital, Mr. Dunkel was advised by his own doctors that due to
his injury he would not be medically cleared to drive a commercial vehicle. Am. Compl. ¶¶ 4041. Mr. Dunkel approached Defendants regarding his new restrictions and asked to return to
work with accommodations. Am. Compl. ¶ 42. Defendants refused to offer Mr. Dunkel a
position and did not give him a reason, not did Defendants ever inform Mr. Dunkel of the initial
reason for his termination. Am. Compl. ¶¶ 43, 44. Mr. Dunkel therefore claims that
Defendants terminated him (i) because of his medical condition and Defendants’ perception that
this condition would substantially impair his ability to perform work; (ii) because Defendants
were unwilling to accommodate Mr. Dunkel; and (iii) in retaliation for Mr. Dunkel having
reported a work-related injury and filing for worker’s compensation benefits. Am. Compl. ¶ 51.
In Count I, he asserts a failure to accommodate claim under the Rehabilitation Act. In
Count II, he alleges a claim of discriminatory discharge based on his disability in violation of the
Rehabilitation Act. In Count III, Mr. Dunkel alleges a claim of discrimination under ERISA
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based on his disability. Finally, in Count IV he alleges wrongful discharge under Pennsylvania
Common law.
II.
Standards of Review
In ruling on a Rule 12(b)(6) motion for failure to state a claim upon which relief can be
granted a Court must “‘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. County of Allegheny, 515 F.3d
224, 233 (3d Cir. 2008) , quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n. 7 (3d Cir.
2002), and citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563, n.8 (2007).
“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.’” Iqbal, 556 U.S. at 678,
quoting Twombly, 550 U.S. at 570. “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.” Iqbal, 556 U.S. at 678, citing Twombly, 550 U.S. at 556. “Factual
allegations of a complaint must be enough to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555. “This [standard] ‘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.” Phillips, 515 F.3d at 234, quoting
Twombly, 550 U.S. at 556. Thus, “a plaintiff’s obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citation omitted).
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If a court decides to grant a motion to dismiss for failure to state a claim upon which
relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6), the court must next decide whether leave
to amend the complaint must be granted. As explained in Phillips,: “We have instructed that if a
complaint is vulnerable to 12(b)(6) dismissal, a district court must permit a curative amendment,
unless an amendment would be inequitable or futile.” 515 F.3d 236, citing Grayson v. Mayview
State Hosp., 293 F.3d 103, 108 (3d Cir.2002)).
III.
Discussion
Integrative Staffing seeks dismissal of Counts I, II, and III of the Amended Complaint.
Integrative Staffing argues that under common law agency principles there is no employment
relationship between Integrative Staffing and Mr. Dunkel for purposes of the Rehabilitation Act
or ERISA. Int. Staff. Br. 4, citing, inter alia, Nationwide Mut. Ins. Co. v. Darden, 112 S. Ct.
1344, 1348 (U.S. 1992) (“adopt[ing] a common-law test for determining who qualifies as an
“employee” under ERISA). Integrative Staffing further argues that it cannot be considered Mr.
Dunkel’s employer because it is a temporary employment agency exercising no control over Mr.
Dunkel’s responsibilities or duties once he is on assignment.
Mr. Dunkel responds by arguing that his Amended Complaint has set forth sufficient
allegations against Integrative Staffing to withstand the motion to dismiss, and at a minimum,
discovery on the issue would be necessary before an informed decision can be rendered.
Mr. Dunkel also argues that Integrative Staffing contradicts itself by conceding that
Plaintiff has properly asserted a common law wrongful discharge claim against Integrative
Staffing in Count IV. Mr. Dunkel argues that Count IV, a Pennsylvania common law wrongful
discharge claim, presumes that an employer-employee relationship exists and speaks directly to
Integrative Staffing’s power to terminate Mr. Dunkel. Therefore, because Integrative Staffing
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has accepted that the wrongful discharge claim is properly plead, it necessarily concedes that an
employer-employee relationship exists.
We believe it is premature at this stage to determine the employer-employee relationship
as a matter of law. However, as discussed below, the applicable law appears to weigh in favor of
finding that Integrative Staffing and Allegheny Plywood were joint employers, at least as alleged
in the Amended Complaint.
The common-law test cited by Integrative Staffing for distinguishing between an
employee and an independent contractor was described in Darden as follows:
“In determining whether a hired party is an employee under the general
common law of agency, we consider the hiring party's right to control the manner
and means by which the product is accomplished. Among the other factors
relevant to this inquiry are the skill required; the source of the instrumentalities
and tools; the location of the work; the duration of the relationship between the
parties; whether the hiring party has the right to assign additional projects to the
hired party; the extent of the hired party's discretion over when and how long to
work; the method of payment; the hired party's role in hiring and paying
assistants; whether the work is part of the regular business of the hiring party;
whether the hiring party is in business; the provision of employee benefits; and
the tax treatment of the hired party.” Darden, 503 U.S. at [322–26], 112 S.Ct. at
1348–49 (quoting [Community for Creative Non–Violence v.] Reid, 490 U.S.
[730] at 751–52, 109 S.Ct. [2166] at 2178–79[, 104 L.Ed.2d 811 (1989)]
(footnotes omitted)).
Verdecchia v. Douglas A. Prozan, Inc., 274 F. Supp. 2d 712, 721 (W.D. Pa. 2003), quoting
Kellam v. Snelling Personnel Servs., 866 F.Supp. 812, 814–815 (D.Del.1994), affirmed, 65 F.3d
162 (3d Cir.1995). “[W]hen it set out the common-law agency test in Darden, the Supreme
Court noted that ‘all of the incidents of the relationship must be assessed and weighed with no
one factor being decisive.’” Butterbaugh v. Chertoff, 479 F. Supp. 2d 485, 493 (W.D. Pa. 2007),
quoting, Darden, 503 U.S. at 324, 112 S.Ct. 1344 (citations omitted).
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In Deeter v. Trinity Services Group, Inc., 2015 WL 3504959, at *2 (W.D. Pa. June 3,
2015), cited by Integrative Staffing, the Court discussed “joint employers,” stated that “while an
employment agency can be considered a joint employer under certain circumstances, those
circumstances include the right to control the means and manner of employment, including the
decision to hire and/or fire; assignments and the work rules that would apply to the employee;
compensation, benefits and hours; the day to day supervision, including imposing discipline; and
maintaining employee records.” Deeter, 2015 WL 3504959, at *2 n.2, citing Abdallah v.
Allegheny Valley Sch., 2011 WL 344079, at *3 (E.D. Pa. Feb. 1, 2011) and Butterbaugh, 479 F.
Supp. 2d at 491.
In Abdallah, the Court discussed that the United States Court of Appeals for Third Circuit
“has noted that independent legal entities will be considered joint employers where both
employers exert significant control over the same employees with evidence demonstrating that
they share or co-determine those matters governing essential terms and conditions of
employment.” Abdallah, 2011 WL 344079, at *3 (emphasis added), citing Nat'l Labor
Relations Bd. v. Browning–Ferris Indus. of Pennsylvania, Inc., 691 F.2d 1117, 1124 (3d
Cir.1982). In addressing a Rule 12(b)(6) motion to dismiss, the Abdallah Court declined to
dismiss the claims against the employment agency as a matter of law in light of allegations that it
maintained significant power over his employment; delegated daily assignments, and “treated
Plaintiff as an employee and required that he adhere to its policies and directions during his
tenure there.” Abdallah, 2011 WL 344079, at *4.
The Butterbaugh Court discussed several different tests to determine employer-employee
status. In particular, the Court discussed the joint employer test, noting that the Third Circuit
Court stated that this test asks whether “‘one employer while contracting in good faith with an
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otherwise independent company, has retained for itself sufficient control of the terms and
conditions of employment of the employees who are employed by the other employer.’”
Butterbaugh, 479 F. Supp. 2d at 491, quoting Browning-Ferris, 691 F.2d at 1123. The
Butterbaugh Court further noted that subtle differences between a joint employer test and the
Darden common law test, observing that while “the central question of Browning-Ferris [joint
employer test] seems identical to that of [the common law test of] Darden, different factors guide
the analysis.” Butterbaugh, 479 F. Supp. 2d at 491. The factors that guide the joint employer test
have been articulated by “Courts in the Third Circuit [that] have distilled the Browning-Ferris
joint-employer test into the following three factors: ‘1) authority to hire and fire employees,
promulgate work rules and assignments, and set conditions of employment, including
compensation, benefits, and hours; 2) day-to-day supervision of employees, including employee
discipline; and 3) control of employee records, including payroll, insurance, taxes and the like.’”
Id., quoting Cella v. Villanova Univ., 2003 WL 329147, *7 (E.D.Pa. Feb 12, 2003). Incidentally
the Butterbaugh Court also noted a preference for the joint-employment test in a series of
Rehabilitation Act. Id. 479 F. Supp. 2d at 494.
Applying the law to this case, at this stage of the pleadings we find that Mr. Dunkel has
sufficiently alleged claims against Integrative Staffing that would make it premature to dismiss.
Mr. Dunkel asserts that Integrative Staffing and Allegheny Plywood were joint employers; that
Allegheny Plywood told him that the position was not through a temp/staffing agency; and that
he was hired jointly. Once Allegheny Plywood agreed to offer the job to Mr. Dunkel he was sent
directly to Integrative Staffing in Coraopolis, who told him that it was the Human Resources
office for Allegheny Plywood. The Amended Complaint also alleges that Integrative Staffing
sponsored an ERISA group welfare plan (health), provided workers’ compensation insurance
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coverage, issued paychecks and withheld taxes. Mr. Dunkel also claims that he informed
“Defendants” of his injury the day it occurred. Once he was injured, he was visited by a
representative from Integrative Staffing’s workers’ compensation insurance carrier, who
obtained relevant information and completed a claim form. Finally, Mr. Dunkel claims he was
terminated by Integrative Staffing, and that Defendants refused to offer accommodations.
We note that in Deeter, it appears that although the Court may have relied on a slightly
expansive version of the Third Circuit’s joint employer test, it nonetheless explicitly noted that
the “absence of any facts from which it could be inferred that [the employment agency] took part
in the decision to terminate Plaintiff's employment” was fatal to plaintiff’s claim. Deeter, 2015
WL 3504959, at *2. Moreover, the plaintiff in Deeter made no allegations that the employment
agency ever “took an adverse employment action against her.” Id. 2015 WL 3504959, at *2. In
fact, all the plaintiff alleged was that the employment agency “merely procured employment for
Plaintiff with an employer.” Id. 2015 WL 3504959, at *2 n.2.
In contrast, in this case Mr. Dunkel alleges that Integrative Staffing did much more than
merely procure employment. He explicitly alleges that Integrative Staffing was the actor that
terminated him (and it can be inferred from the allegations that it was Integrative Staffing’s
decision to terminate him). Thus, it is likely that under the set of facts in this case the Deeter
Court would also deny the motion to dismiss. Accordingly, we will deny Integrative Staffing’s
motion to dismiss.
IV.
Conclusion
For the reasons stated above we will deny Integrative Staffing’s motion to dismiss Counts
I, II, and II of Plaintiff’s Amended Complaint. We note that our ruling is limited by the fact that
we are deciding a motion to dismiss, and that it is possible that discovery will reveal sufficient
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