SEILER v. HOLLIDAYSBURG AMERICAN LEGION AMBULANCE SERVICE, INC.
Filing
94
MEMORANDUM OPINION AND ORDER OF COURT denying 41 Motion for Summary Judgment; denying 72 Motion for Summary Judgment; denying 79 Motion for Summary Judgment; denying 19 Motion for Summary Judgment; granting 30 Motion to Compel; denying without prejudice 30 Motion for Sanctions, and as more fully stated in said Memorandum Opinion and Order of Court. Signed by Judge Kim R. Gibson on 9/8/2011. (dlg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
BRIAN SEILER,
Plaintiff,
v.
HOLLIDA YSBURG AMERICAN
LEGION AMBULANCE SERVICE, INC.,
Defendant.
)
)
)
) CIVIL ACTION NO. 3:10-41
) JUDGE KIM R. GIBSON
)
)
)
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MEMORANDUM OPINION AND ORDER OF COURT
I.
SYNOPSIS
This matter is before the Court on Plaintiff s three motions for partial summary judgment
(docket nos. 19,41, & 72) Defendant's motion for summary judgment (docket no. 70), and Defendant's
motion to compel and motion for sanctions (docket no. 30). This Memorandum Opinion and Order
GRANTS the motion to compel and DENIES the remaining motions for reasons set forth herein.
II.
JURISDICTION AND VENUE
On February 5, 2010, Plaintiff, Brian Seiler, filed a Complaint alleging that Defendant,
Hollidaysburg American Legion Ambulance Service, Inc. (hereinafter "HALAS") violated the
Consolidated Omnibus Budget Reconciliation Act (hereinafter "COBRA), the Uniformed Services
Employment and Reemployment Rights Act (hereinafter "USERRA"), the Family Medical Leave Act
(hereinafter "FMLA"), and the Pennsylvania Wage Payment and Collection Law (hereinafter
"PWPCL") during the course of Plaintiffs employ with Defendant.
Jurisdiction is proper pursuant to 38 U.S.C. § 4323(b) (USERRA claims), 28 U.S.C. § 1367
(supplemental jurisdiction covering state law claim), 29 U.S.C. § 2617 (FMLA claim), and 28 U.S.C.
§ 1331 (general federal question jurisdiction). Venue is proper pursuant to 28 U.S.C. § 1391(b).
III.
PROCEDURAL AND FACTUAL BACKGROUND
On September 14, 2010, Plaintiff filed his first motion for partial summary judgment, arguing
for judgment in his favor on counts two, five, and six. Count two alleges that Defendant violated the
USERA by failing to make 403(b) retirement account contributions while Plaintiff was deployed to
Iraq and Afghanistan. Count five alleges that Defendant violated the COBRA by offering Plaintiff the
opportunity to continue his insurance effective September 20, 2009, not Plaintiffs termination date of
July 8, 2009, causing Plaintiff to incur medical expenses resulting from his wife's August 2009
surgery. Count six alleges a violation of the FMLA, averring that Defendant failed to offer Plaintiff the
opportunity to utilize medical leave, as Plaintiff was physically incapable of performing the duties of
an emergency medical technician, the position Defendant had offered Plaintiff as a demotion. Pursuant
to FED. R. CIV. P. 68, Plaintiff filed Defendant's offer to accept judgment on counts two and five on
December 6, 2010; thus, rendering Plaintiffs motion on these counts moot. On January 8, 2011,
Plaintiff filed a second motion for partial summary judgment, seeking judgment on count three, an
alleged violation of the USERRA based upon lost vacation pay, and count four, an alleged violation of
the PWPCA based upon vacation pay not received at the time of termination. On March 19, 2011,
Plaintiff filed his third and final motion for partial summary judgment, seeking judgment on count one,
an alleged violation of the USERRA resulting from Defendant's termination of Plaintiffs
employment.
On March 22, 2011, Defendant reciprocated with a summary judgment motion, contending that
Plaintiff is unable to obtain relief under the USERRA because he left his position voluntarily,
2
Defendant's personnel actions were not motivated by Plaintiffs military service, and because
Defendant had cause for removing Plaintiff from a management position due to poor job performance.
Defendant further contends that Plaintiff cannot recover under the USERRA for un-awarded vacation
time since Plaintiff was not treated differently than non-deployed employees on leave. Defendant also
asserts a laches defense to the USERRA claims. Defendant argues that Plaintiff cannot recover under
the PWPCL, as he had no legal right to the vacation time he claims, and he cannot recover under the
FMLA because he voluntarily left his employment.
In the interest of simplicity, this Court will address the parties' arguments statute-by-statute,
starting with the USERRA claims.
IV.
STANDARDOFREVIEW
A. SUMMARY JUDGMENT
Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment shall be
entered if the pleadings, depositions, affidavits, answers to interrogatories, and admissions on file show
that there is no genuine dispute regarding the material facts of the case and the moving party is entitled
to a judgment as a matter of law. See FED. R. Cry. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S.
242,247, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The Court must evaluate a party's motion for
summary judgment construing the alleged facts with all reasonable inferences favoring the nonmoving
party. See Baldwin v. Trailer Inns, Inc., 266 F.3d 1104, 1117 (9th Cir. 2001).
The party seeking summary judgment bears the initial burden of informing the Court of the
basis for its motion and identifying those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, which it believes
demonstrate the absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S.
317,323, 106 S. Ct. 2548,91 L. Ed. 2d 265 (1986). Where the moving party has met its initial burden
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with a properly supported motion, the party opposing the motion I1may not rest upon the mere
allegations or denials of his pleading, but ... must set forth specific facts showing that there is a
genuine issue for trial." Anderson, 477 U.S. at 248. Summary judgment is appropriate against a party
who "fails to make a showing sufficient to establish the existence of an element essential to that party's
case, and on which that party will bear the burden of proof at trial." Id. at 322. See also Citadel
Holding Corp. v. Roven, 26 F.3d 960, 964 (9th Cir. 1994). Although the initial burden is on the
movant to show the absence of a genuine issue of material fact, this burden may be discharged by
indicating to the Court that there is an absence of evidence to support the nonmoving party's claims.
See Singletary v. Pennsylvania Dep't ofCorr., 266 F.3d 186, 193 n.2 (3d Cir. 2001).
V.
DISCUSSION/ARGUMENTS
A.
USERRA Claims
The Unifonned Services and Employment and Reemployment Rights Act (USERRA), 38
U.S.C. § 4301, et seq., prohibits "discrimination against persons because of their service in the
unifonned services." 38 U.S.c. § 4301(a)(3). In particular, the act provides:
(a) A person who is a member of, applies to be a member of, performs, has perfonned,
applies to perfonn, or has an obligation to perform service in a uniformed service shall
not be denied initial employment, reemployment, retention in employment, promotion, or
any benefit of employment by an employer on the basis of that membership, application
for membership, performance of service, application for service, or obligation.
(b) An employer may not discriminate in employment against or take any adverse
employment action against any person because such person (1) has taken an action to
enforce a protection afforded any person under this chapter, (2) has testified or otherwise
made a statement in or in connection with any proceeding under this chapter, (3) has
assisted or otherwise participated in an investigation under this chapter, or (4) has
exercised a right provided for in this chapter. The prohibition in this subsection shall
apply with respect to a person regardless of whether that person has perfonned service in
the unifonned services.
(e) An employer shall be considered to have engaged in actions prohibited-
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(1) under subsection (a), if the person's membership, application for membership, service,
application for service, or obligation for service in the uniformed services is a motivating
factor in the employer's action, unless the employer can prove that the action would have
been taken in the absence of such membership, application for membership, service,
application for service, or obligation for service; or
(2) under subsection (b), if the person's (A) action to enforce a protection afforded any
person under this chapter, (B) testimony or making of a statement in or in connection
with any proceeding under this chapter, (C) assistance or other participation in an
investigation under this chapter, or (D) exercise of a right provided for in this chapter, is a
motivating factor in the employer's action, unless the employer can prove that the action
would have been taken in the absence of such person's enforcement action, testimony,
statement, assistance, participation, or exercise of a right.
(d) The prohibitions in subsections (a) and (b) shall apply to any position of
employment, including a position that is described in section 4312( d)(l )(C) of this title.
Section 4312 provides in pertinent part:
(a) Subject to subsections (b), (c), and (d) and to section 4304, any person whose absence
from a position of employment is necessitated by reason of service in the uniformed
services shall be entitled to the reemployment rights and benefits and other employment
benefits of this chapter if-
(1) the person (or an appropriate officer of the uniformed service in which such service is
performed) has given advance written or verbal notice of such service to such person's
employer;
(2) the cumulative length of the absence and of all previous absences from a position of
employment with that employer by reason of service in the uniformed services does not
exceed five years; and
(3) except as provided in subsection (t), the person reports to, or submits an application
for reemployment to, such employer in accordance with the provisions of subsection (e).
(e)(I) Subject to paragraph (2), a person referred to in subsection (a) shall, upon the
completion of a period of service in the uniformed services, notify the employer referred
to in such subsection of the person's intent to return to a position of employment with
such employer as follows:
(D) In the case of a person whose period of service in the uniformed services was for
more than 180 days, by submitting an application for reemployment with the employer
not later than 90 days after the completion of the period of service.
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(2)(A) A person who is hospitalized for, or convalescing from, an illness or injury
incurred in, or aggravated during, the performance of service in the uniformed services
shall, at the end of the period that is necessary for the person to recover from such illness
or injury, report to the person's employer (in the case of a person described in
subparagraph (A) or (B) of paragraph (1)) or submit an application for reemployment
with such employer (in the case of a person described in subparagraph (C) or (D) of such
paragraph). Except as provided in subparagraph (B), such period of recovery may not
exceed two years.
Section 4313 provides in pertinent part:
(a) Subject to subsection (b) (in the case of any employee) and sections 4314 and 4315
(in the case of an employee of the Federal Government), a person entitled to
reemployment under section 4312, upon completion of a period of service in the
uniformed services, shall be promptly reemployed in a position of employment in
accordance with the following order of priority:
(2) Except as provided in paragraphs (3) and (4), in the case of a person whose period of
service in the uniformed services was for more than 90 days-
(A) in the position of employment in which the person would have been employed if the
continuous employment of such person with the employer had not been interrupted by
such service, or a position of like seniority, status and pay, the duties of which the person
is qualified to perform; ....
Section 4316 provides in pertinent part:
(c) A person who is reemployed by an employer under this chapter [38 U.S.c. §§ 4301 et
seq.] shall not be discharged from such employment, except for cause
(1) within one year after the date of such reemployment, if the person's period of service
before the reemployment was more than 180 days; or
(2) within 180 days after the date of such reemployment, if the person's period of service
before the reemployment was more than 30 days but less than 181 days.
An employee making a USERRA discrimination claim bears "the initial burden of showing by
a preponderance of the evidence that the employee's military service was 'a substantial or motivating
factor' in the adverse employment action." Sheehan v. Department of the Navy, 240 F.3d 1009, 1013
(Fed. Cir. 2001) (quoting National Labor Relations Bd. v. Transportation Management Corp., 462 U.S.
393, 400-01, 103 S. Ct. 2469, 76 L. Ed. 2d 667 (1983) abrogated by Director, Office of Workers'
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Compensation v. Greenwich Collieries, 512 U.S. 267, 114 S. Ct. 2251, 129 L. Ed. 2d 221 (1994) (on
other grounds)). "If this requirement is met, the employer then has the opportunity to come forward
with evidence to show, by a preponderance of the evidence, that the employer would have taken the
adverse action anyway, for a valid reason." Id. Unlike the familiar McDonnell Douglas framework
applied in other discrimination cases, the procedural framework and evidentiary burdens set out in §
4311 shift both the burden of persuasion and the burden of production to the employer once the prima
facie case has been established. Maxfield v. Cintas. 427 F.3d 544, 551 (8th Cir. 2005). Therefore, in
USERRA actions there must be an initial showing by the employee that military status was at least a
motivating or substantial factor in the employer's decision, upon which the employer must prove, by a
preponderance of the evidence, that the adverse action would have been taken regardless of the
protected status.
The term "motivating factor" means that if the employer was asked at the moment of the
decision what its reasons were and if it gave a truthful response, one of those reasons would be the
employee's military position or related obligations. Robinson v. Morris Moore Chevrolet-Buick, Inc ..
974 F. Supp. 571,576 (E.D. Tex. 1997) (citing Price Waterhouse v. Hopkins. 490 U.S. 228,250, 109
S. Ct. 1775, 104 L. Ed. 2d 268 (1989) (addressing Title VII gender discrimination claim and related
affirmative defense)). In other words, if an employer "relied upon, took into account, considered, or
conditioned its decision" on an employee's military status, then the status was a motivating factor.
Robinson. 974 F. Supp. at 576.
The factual question of discriminatory motivation or intent may be proven by either direct or
circumstantial evidence. Sheehan. 240 F.3d at 1014. Under the USERRA, a discriminatory motive
may be reasonably inferred from a variety of circumstantial factors (as discrimination is rarely open or
notorious), including: proximity in time between the employee's military activity and the adverse
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employment action, inconsistencies between the proffered reason and other actions of the employer, an
employer's expressed hostility towards members protected by the statute together with knowledge of
the employee's military activity, and disparate treatment of certain employees compared to other
employees with similar work records or offenses. Sheehan. 240 F.3d at 1014.
Plaintiff contends that there is no dispute as to the fact that he was discharged from
employment within one year of being reemployed after returning from his most recent deployment
(Pl.'s Brief in Support of Third Motion for Partial Summary Judgment, docket no. 73, p. 3) Plaintiff
cites a June 16, 2009 letter from HALAS President Joseph Nedimyer that referenced "terminate"
and/or "termination" four times. Id at 4. Plaintiff further argues that the law makes no distinction
between a termination and a demotion for the purposes of evaluating an employer's actions under 38
U.S.C. § 4316. Plaintiff cites Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 286, 66 S.
Ct. 1105, 90 L.Ed. 1230 (1946) in support of the proposition that a demotion without cause is legally
indistinguishable from a discharge. Fishgold was interpreting the USERRA's early predecessor, the
Selective Training and Service Act of 1940; however, courts have continued to rely upon Fishgold
when interpreting the USERRA. See Gordon v. Wawa, Inc., 388 F.3d 78,82 (3d Cir. 2004); Hamovitz
v. Santa Barbara Applied Research, Inc., Civil Action No. 07-454, 2010 U.S. Dist. LEXIS 32523 at
*21 (W.D. Pa. February 26,2010); Glasser v. Gov't of the Virgin Islands, 853 F.Supp. 852,860 (D.
V.I. 1994) (citing Fishgold in interpreting seniority provision of the USERRA).
Plaintiff further asserts that his discharge was, by definition, not for cause because Defendant
failed to adhere to its own procedural mechanisms for terminating employment. Because the statute
does not define "cause," Plaintiff cites 20 CFR § 1002.248, which provides the following definition of
"cause:"
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What constitutes cause for discharge under USERRA?
The employee may be discharged for cause based either on conduct or, in some
circumstances, because of the application of other legitimate nondiscriminatory reasons.
(a) In a discharge action based on conduct, the employer bears the burden of proving that
it is reasonable to discharge the employee for the conduct in question, and that he or she
had notice, whieh was express or can be fairly implied, that the conduct would constitute
cause for discharge.
(b) If, based on the application of other legitimate nondiscriminatory reasons, the
employee's job position is eliminated, or the employee is placed on layoff status, either of
these situations would constitute cause for purposes ofUSERRA. The employer bears the
burden of proving that the employee's job would have been eliminated or that he or she
would have been laid otT.
As a general matter, courts defer to an agency's interpretation of an ambiguous statute. Sec'y of Labor
v. Trinity Indus., 504 F.3d 397, 400 (3d Cir. 2007) (quoting Reich v. D.M. Sabia Co., 90 FJd 854,
856 (3d Cir. 1996)). Courts of Appeals in other circuits have relied upon the Department of Labor's
interpretation of "cause." Rademacher v. HBE Corp., No. 10-1816, 2011 U.S. App. LEXIS 14339 at
*16 (8th Cir. 2011); Francis v. Booz. Allen & Hamilton, Inc., 452 F.3d 299, 308 (4th Cir. 2006);
Mario Living Trust v. Akal. Sec. Inc., No. 09-55320, 377 Fed. Appx. 683, 685 (9th Cir. April 28,
2010) (unpublished). Plaintiff contends that his termination was not for cause because Defendant
failed to follow its operating procedures by permitting two ineligible board members to vote on his
termination, which had been brought to the table by an ineligible member, and by conducting the
board meeting at which he was terminated in his absence.
Defendant disagrees with Plaintiff s assertion that a demotion is equivalent to a discharge
under § 4316, as the statute explicitly refers to a "discharge," not a demotion. (Def.'s Brief in
Opposition to PI.'s Third Motion for Summary Judgment, docket no. 89, p. 10) However, Defendant's
reasoning directly contradicts Fishgold, in which the Supreme Court noted that "[d]ischarge normally
means termination of the employment relationship or loss of a position." Fishgold, 328 U.S. at 286.
9
Even if Defendant is correct in its assertion that Plaintiff could have maintained employment as a
paramedic, Plaintiff clearly lost his "position" as Manager of Operations. Accordingly, for purposes of
§ 4316, Plaintiff need only show that there is no dispute as to the fact that he was demoted without
cause.
Plaintiff's count one USERRA arguments fail because there continues to be a dispute as to
whether Plaintiff was demoted for cause. Defendant contends that Plaintiff was demoted for cause,
citing numerous job performance deficiencies, such as Plaintiffs failure to maintain Defendant's
license in good standing, failure to collect on unpaid accounts, failure to confiscate the work cell
phone of a terminated employee, failure to suspend an employee charged with a felony, failure to
discipline Michael Parisi for using an ambulance for personal purposes, failure to submit a bid on
time, and failure to administer policies in a timely manner. Defendant draws support for many of these
alleged defect's from Plaintiffs own deposition. Defendant also offers the notes taken by Rodney
Estep, Defendant's Board Secretary, which indicate that Plaintiff was warned about his job
performance on May 14, 2009, and threatened with replacement at that time. (Def.'s Brief in
Opposition to Pl.'s Third Motion for Summary Judgment, docket no. 89, p. 16, Exhibit 4) As
previously noted, Plaintiff raises procedural irregularities in support of his contention that he was
demoted without cause. Without addressing the merits of any of these procedural arguments, the Court
notes that Defendant has offered sufficient evidence to enable a reasonable jury to return a verdict in
its favor on this issue. See Anderson v. Liberty Lobby, Inc .. 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L.
Ed. 2d 202 (1986). This evidence includes quotations from Plaintiffs own deposition, a declaration of
the Board Secretary, and the Board Secretary's notes. This Court does not evaluate the credibility of
evidence, see Josey v. John R. Hollingsworth Corp .. 996 F.2d 632 (3d Cir. 1993), and concludes that a
reasonable jury could combine Estep's declaration and notes with Plaintiffs own testimony to
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conclude that Plaintiffs job performance was deficient and that he had notice of this deficiency. Such
a reasonable jury could conclude that Plaintiff was demoted for "cause" within the meaning of 20 CFR
§ 1002.248. Accordingly, Plaintiff s motion on this count is without merit.
Defendant seeks summary judgment in its favor on count one. Defendant argues that Plaintiff
voluntarily left his employment. Yet, the Court need not delve into the details of the precise manner in
which Plaintiff departed and left HALAS or the comments he made, as Defendant acknowledges
demoting Plaintiff. As previously noted, a demotion without cause is sufficient to satisfy the
"discharge" requirement of 38 U.S.C. § 4316, based upon Fishgold and subsequent decisions relying
upon Fishgold as authoritative in evaluating the progeny of the Selective Training and Service Act of
1940, including the USERRA. Persuasive as Defendant's arguments may be that Plaintiff has offered
no evidence indicating that his military service was a motivating factor in this demotion, Plaintiff can
still recover pursuant to 38 U.S.C. § 4316 without any showing that his military service was a
motivating factor. Instead, § 4316 places the burden on employers to refrain from discharging
reemployed veterans without cause. "Because employers have the burden of proving that the discharge
was reasonable, it is difficult for employers to achieve summary judgment on claims under § 4316(c)."
Francis, 452 F.3d at 308. Defendant has not presented such evidence as to foreclose any reasonable
jury from concluding that Plaintiff was demoted without "cause." A reasonable jury could conclude
that Plaintiff's alleged deficiencies in job performance were insufficient to constitute "cause," that
they did not sufficiently persist after his May 14, 2009, warning, that the May 14, 2009, warning did
not allow Plaintiff enough time to improve his job performance, or that Defendant's alleged deviations
from internal procedures demonstrate motives other than "cause." Although Defendant has offered
sufficient evidence of "cause" to prevent Plaintiff from receiving summary judgment on count one, it
has not provided sufficient evidence to prevent any reasonable jury from concluding that Plaintiff was
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demoted without cause. Due to the allocation of the burden of proof, Defendant's motion cannot
prevail on this count.
Plaintiff also seeks summary judgment in his favor on count three, a claim based upon
Defendant's alleged failure to award vacation time in violation of the USERRA. Plaintiff asserts that
Defendant did not permit him to accumulate vacation pay while he was deployed. (PI.' s Brief in
Support of Second Motion for Summary Judgment, docket no. 42, p. 2-3) Plaintiff contends that
Defendant deviated from its own personnel policy, which awards vacation time at the anniversary of
an employee's employment, by awarding vacation time in 1126 segments with each pay period
throughout the year. Id. Defendant responds by noting Plaintiffs admission that HALAS does not
award vacation time to any employee during periods of unpaid leave and by arguing that Defendant
acted consistent with its policy of limiting employees to carrying over no more than ten days of
vacation time from one year to the next. (Def.'s Brief in Opposition to Pl.'s Second Motion for
Summary Judgment, docket no. 63, p. 7-8) HALAS further contends that the policy dictates that all
vacation time in excess of ten days is forfeited after a year. Id. Because it remains unclear from the
record whether Defendant treated Plaintiff's unpaid deployment leave any differently than any other
type of leave, this Court finds that either party could prevail on this issue before a reasonable jury and,
therefore, both motions are denied as to count three.
Defendant also seeks summary judgment on the USERRA claims based upon a laches defense.
Congress has statutorily established the inapplicability of any statute of limitations on USERRA
claims. See 38 U.S.C. § 4327; see also Erickson v. U.S. Postal Service, 636 F.3d 1353, 1358 (Fed. Cir.
2011) (noting absence of statute of limitations). Accordingly, laches is the only mechanism by which
Defendant can challenge Plaintiff's delay in pursuing his USERRA claims.
Though the Third Circuit does not appear to have addressed laches in a USERRA case, the
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Seventh and Fifth Circuits have done so. Laches has been described as the "inequity of permitting a
claim to be enforced." Miller v. City of Indianapolis, 281 F.3d 648, 653 (7th Cir. 2002) (quoting
Galliher v. Cadwell, 145 U.S. 368 (1892)). In order to prevail on a laches defense, Defendant must
show both a lack of diligence on the part of Plaintiff and prejudice to itself. See id. The Fifth Circuit
summarizes the test as "inexcusable delay" and "undue prejudice." Rogers et at v. City of San
Antonio, Texas, 392 F.3d 758, 773 (5th Cir. 2004). Plaintiff filed his initial Complaint on February 5,
2010. Plaintiff acknowledges that his earlier deployment to Iraq occurred between November of 2003
through February of2005. (Pl.'s SMF, docket no. 44, ~ 2) Thus, it is evident that a portion of his claim
could have arisen as long as five years prior to the filing date, the portion relating to vacation time not
awarded while deployed. Yet, the bulk of the instant litigation arose when HALAS voted to remove
Plaintiff from his management position on July 7, 2009, a decision Defendant acknowledges that
Plaintiff would have known by July 8, 2009, when he met with HALAS President Joseph Nedimyer.
(Def.' s SMF, docket no. 80,
~~
9-10) Plaintiff filed his initial Complaint within seven months of this
adverse employment action. Plaintiffs delay has not been excessive or inexcusable. However, even
assummg, arguendo, that Plaintiffs delay is inexcusable, Defendant has failed to demonstrate
prejudice.
Defendant's claim to prejudice is that it lost the opportunity to resolve Plaintiffs claim to
vacation pay via its internal complaint procedure. As a result, Defendant has incurred litigation
expenses. This is not sufficient to establish prejudice. Defendant has taken the position that Plaintiff is
not entitled to the vacation pay that he seeks. It would be an incredible feat of mental gymnastics to
reconcile the desired presumption that Defendant would have resolved the vacation pay claim via an
internal complaint mechanism in 2005 and again in 2008, but has taken the position in the instant
litigation that Plaintiff is not entitled to the vacation pay and expended resources in defense of this
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position. Defendant has failed to demonstrate an undue prejudice sufficient to make it "inequitable" to
allow Plaintiffs claim to proceed. Accordingly, Defendant's laches defense is without merit.
B.
PWPCL Claim
It is well established that the PWPCL does not create a right to compensation, but rather
provides a statutory remedy when an employer breaches a contractual obligation to pay earned wages.
See DeAsencio v. Tyson Foods, Inc., 342 F.3d 301, 309 (3d Cir. 2003). Plaintiff has filed a motion
seeking summary judgment on count four, Defendant's alleged failure to pay Plaintiff the entirety of
his accrued vacation pay at the time of his departure from HALAS. (Pl.'s Second Motion for Summary
Judgment, docket no. 41) Defendant similarly seeks summary judgment on this count, arguing that it
was under no obligation to pay the disputed vacation compensation. (Def.'s Brief in Support of Motion
for Summary Judgment, docket no. 81, p. 12-l3) For the reasons outlined above in the USERRA
section, neither party has demonstrated that no reasonable jury could find in favor of the other party on
this issue. More specifically, Plaintiff can offer a section from Defendant's personnel policy indicating
that vacation pay is awarded on the "anniversary" of an employee's employment without mentioning
any limit on vacation time carried forward. Defendant offers affidavits evidencing a policy limiting
vacation time carry-over to ten days. It is not clear to this Court what, in fact, Defendant's vacation
time policy was. For this reason, a genuine factual dispute exists, allowing a reasonable jury to decide
in favor of either party on this issue. Accordingly, the motions of both parties are denied on count four.
C.
FMLA Claim
The Family and Medical Leave Act was enacted by Congress in 1993, in part to address
problems arising from "inadequate job security for employees who have serious health conditions that
prevent them from working for temporary periods." 29 U.S.C. § 2601(b)(l). The act was designed to
provide a balance between "entitl[ing] employees to take reasonable leave for medical reasons" and
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"accommodat[ingJ the legitimate interests of employers." 29 U.S.C. §§ 2601(b)(1-2); see Callison v.
City of Philadelphia, 430 F.3d 117, 119 (3d Cir. 2005) (citing 29 U.S.C. § 2601(b)(1» (holding that
one of "[t]he primary purposes of the FMLA [is] to 'balance the demands of the workplace with the
needs of families'...."). The FMLA grants eligible employees the right to take up to twelve work
weeks of leave during a twelve-month period for any of the following reasons:
(A) Because of the birth of a son or daughter of the employee and in order to care for
such son or daughter.
(B) Because of the placement of a son or daughter with the employee for adoption or
foster care.
(C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such
spouse, son, daughter, or parent has a serious health condition.
(D) Because 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)(I)(A-D). At the end of the leave period, the employee has the right to be restored
to his or her former position or an equivalent position. 29 U.S.C. § 2614(a)(1).
Under the FMLA, "it shall be unlawful for any employer to interfere with, restrain, or deny the
exercise of or the attempt to exercise, any right provided under this subchapter." 29 U.S.C. §
2615(a)(1). In order for a plaintiff to establish a claim for an interference of FMLA rights, "the
employee only needs to show that he was entitled to benefits under the FMLA and that he was denied
them." Callison, 430 F.3d at 119.
To state a claim for interference under the FMLA, a plaintiff must show that: (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. Lombardo v. Air Products and Chemicals, Inc., No. 06-1120,
15
2006 U.S. Dist. LEXIS 46077 at *11 (E.D. Pa. July 7, 2006) (citing Weisman v. Buckingham Twp.,
No. 04-4719,2005 U.S. Dist. LEXIS 11696 at *11 (E.D. Pa. June 14,2005».
However, it is also possible to establish a claim for interference by demonstrating that an
employer failed to provide adequate notice of FMLA rights. The Department of Labor has established
the following notice requirements:
§ 825.300 Employer notice requirements.
(a) General notice. (1) Every employer covered by the FMLA is required to post and
keep posted on its premises, in conspicuous places where employees are employed, a
notice explaining the Act's provisions and providing information concerning the
procedures for filing complaints of violations of the Act with the Wage and Hour
Division. The notice must be posted prominently where it can be readily seen by
employees and applicants for employment. The poster and the text must be large enough
to be easily read and contain fully legible text. Electronic posting is sufficient to meet this
posting requirement as long as it otherwise meets the requirements of this section. An
employer that willfully violates the posting requirement may be assessed a civil money
penalty by the Wage and Hour Division not to exceed $ 110 for each separate offense ...
(b) Eligibility notice. (1) When an employee requests FMLA leave, or when the employer
acquires knowledge that an employee's leave may be for an FMLA-qualifying reason, the
employer must notify the employee of the employee's eligibility to take FMLA leave
within five business days, absent extenuating circumstances. See § 825.110 for definition
of an eligible employee. Employee eligibility is determined (and notice must be
provided) at the commencement of the first instance of leave for each FMLA-qualifying
reason in the applicable 12-month period (see §§ 825. 127(c) and 825.200(b». All FMLA
absences for the same qualifying reason are considered a single leave and employee
eligibility as to that reason for leave does not change during the applicable 12-month
period.
29 CFR § 825.300. The Seventh Circuit Court of Appeals has persuasively explained that:
Generally speaking, it does not take much for an employee to invoke his FMLA rights; he
must simply provide enough information "to place the employer on notice of a probable
basis for FMLA leave." Aubuchon, 359 F.3d at 953; see also Stevenson, 505 F.3d at 724
25. The applicable regulations make clear that an employee "need not expressly assert
rights under the FMLA or even mention the FMLA" in order to invoke his rights; he need
only note that leave is requested for some reason covered by the FMLA. 29 C.F.R. §
825.303(b); see also Aubuchon, 359 F.3d at 953 (the employee must provide enough
information to establish "probable cause" to believe the employee may qualify for FMLA
16
leave).
Righi v. SMC Corp. of America, 632 F.3d 404, 409 (7th Cir. 2011). In Righi, the Court was reviewing
a District Court decision to grant summary judgment in favor of an employer based upon an e-mail the
employee had sent in which he explicitly indicated that he did not intend to use FMLA leave at that
time. The Seventh Circuit concluded that the lower court had erred, as the e-mail left open the
possibility that the employee might want to use the FMLA, thus making it an error to grant summary
judgment when viewing the facts in the most favorable light to the nonmoving party. Id.
Based upon the clear language of § 825.303 and the Seventh Circuit's persuasive discussion in
Righi, Defendant's motion on count six cannot succeed. In viewing the facts in the light most
favorable to the non-moving party, Defendant clearly has reason to know that Plaintiff might want to
exercise his rights under the FMLA, as HALAS President Joseph Nedimyer testified that he offered
Plaintiff the paramedic position when his health permitted him to perform his duties at that position.
(Pl.'s Brief in Support of Third Motion for Summary Judgment, Exhibit 6, p. 22) If an employee's email that merely left open the possibility of a future desire to utilize FMLA rights was sufficient to
survive summary judgment in Righi, then Defendant's actual knowledge of Plaintiffs inability to
execute the paramedic duties due to a health condition is sufficient to survive Defendant's summary
judgment motion.
Although Plaintiff has offered sufficient evidence to survive Defendant's summary judgment
motion, he has not offered such evidence as to preclude a reasonable jury from finding that Defendant
was not under an obligation to provide FMLA notice, as a material dispute exists as to whether
Plaintiff declined to accept the offered demotion to a paramedic position. Nedimyer testified that
Plaintiff responded to the offer with a statement about being a man and taking the news like a man
before packing up his personal possessions and leaving HALAS without returning. (Def.'s Statement
17
of Material Facts,
~~
13-15). Based upon Plaintiff's conduct and statements, a reasonable jury could
conclude that Plaintiff had declined Defendant's offer. Accordingly, Plaintiffs motion is denied as to
count six.
D.
Discovery
Defendant's motion to compel and accompanying motion for sanctions arise from a letter
transmitted from Plaintiff's counsel to Defense counsel on November 11, 2010. (Def.'s Motion to
Comp., docket no. 30, Exhibit A) In this letter, Plaintiffs counsel stated "This is to advise that I have
broken a rule of professional conduct." Id. Counsel explains that he had twice communicated with
"Michael Paris, )" Defendant's employee, and offered to refrain from calling the employee as a
witness "to avoid any prejudice to HALAS." Defense counsel promptly replied with a letter that was
also dated November 11, 2010, in which she thanks Plaintiffs counsel for his candor and requests
copies of all correspondence with Parisi, the return of any documents supplied by Parisi, and an
explanation of how Parisi obtained any documents supplied. Id. at Exhibit B. On November 14,2010,
Plaintiff s counsel transmitted a letter to Defense counsel in which he takes the position that his
communications with Parisi had not, in fact, violated Pennsylvania Rule of Professional Conduct 4.2,
reasoning that Parisi was a bargaining unit employee who would not supervise, direct or consult with
Defendant's counsel. Id at Exhibit C. Defendant contends that Parisi held a management-level position
during the time period at issue in the litigation sub judice, causing him to be in possession of
Defendant's "confidential, proprietary" information. Id. at 3.
As a general matter, federal law governs the conduct of attorneys practicing in federal courts.
In re Snyder, 472 U.S. 634, 645 n.6 (1985). This Court, as part of the Western District of
Pennsylvania, has adopted Pennsylvania's Rules of Professional Conduct pursuant to Local Rule of
Subsequent letters, briefs, and depositions identify this individual as "Michael Parisi."
18
Civil Procedure 83.3(A)(2). Rule 4.2 states that:
In representing a client, a lawyer shall not communicate about the subject of the
representation with a person the lawyer knows to be represented by another lawyer in the
matter, unless the lawyer has the consent ofthe other lawyer or is authorized to do so by
law or a court order.
Comment 7 explains that:
In the case of a represented organization, this Rule prohibits communications with
a constituent of the organization who supervises, directs or regularly consults with the
organization's lawyer concerning the matter or has authority to obligate the organization
with respect to the matter or whose act or omission in connection with the matter may be
imputed to the organization for purposes of civil or criminal liability. Consent of the
organization's lawyer is not required for communication with a former constituent. If a
constituent of the organization is represented in the matter by his or her own counsel, the
consent by that counsel to a communication will be sufficient for purposes of this Rule.
Compare Rule 3.4(f). In communicating with a current or former constituent of an
organization, a lawyer must not use methods of obtaining evidence that violate the legal
rights of the organization. See Rule 4.4.
The Restatement of the Law Governing Lawyers (3d) § 102 offers the additional guidance that a
lawyer communicating with a non-client "may not seek to obtain information that the lawyer should
reasonably know that the non-client cannot reveal without violating a duty of confidentiality to another
imposed by law."
Both the plain language of Comment 7 and the decisions of other courts to have addressed
similar issues belie Plaintiff's simplistic, categorical position that only those who are currently in
management positions are covered by Rule 4.2. Comment 7 can be divided into a three-part inquiry: 1)
the extent to which Parisi supervises, directs, or communicates with Defendant's counsel regarding the
instant litigation; 2) the extent to which Parisi has the authority to obligate Defendant regarding the
instant litigation; and 3) the extent to which Parisi's acts or omissions in connection with this litigation
may be imputed to Defendant.
In Penda Corp. v. STK, LLC., the Middle District addressed a similar issue in which an
19
attorney's paralegal contacted an employee of STK to ask where STK's products were sold. The Court
determined that the employee was not a genuine manager, but that his statements could still constitute
an admission by STK if the statements were made while on duty as an employee. Civil Action No. 03
5578, NO. 03-6240, 2004 U.S. Dist. LEXIS 13577, *13-*14 (E.D. Pa. July 16, 2004). Because such
statements could constitute an admission, it was not necessary for the court to address the third prong
of the Comment 7 analysis, namely, the extent to which the employee's comments could be imputed to
STK. Id.
In the matter sub judice, the employee in question had once held a management position with
Defendant and he is still employed by Defendant. As a result, it is conceivable that this employee
could have disclosed privileged materials obtained while communicating with HALAS counselor he
could have made statements that constitute admissions on Defendant's behalf. Defendant cannot
reasonably assess any potential Rule 4.2 violation without having access to these communications. For
the same reason, this Court cannot fairly consider Defendant's motion for sanctions without having
access to the communications at issue. As a result, Defendant's motion to compel is granted and its
motion for sanctions is dismissed without prejudice to re-filing once Defendant has had an opportunity
to review these communications.
VI.
CONCLUSION
Therefore, Plaintiffs Motions for Summary Judgment (Docket nos. 19, 41, & 72) are
DENIED, Defendant's Motion for Summary Judgment (Docket no. 79) is DENIED, Defendant's
Motion to Compel (Docket no. 30) is GRANTED, and Defendant's Motion for Sanctions (Docket no.
30) is DENIED WITHOUT PREJUDICE. An appropriate order follows.
20
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
BRIAN SEILER,
Plaintiff,
v.
HOLLIDA YSBURG AMERICAN
LEGION AMBULANCE SERVICE, INC.,
Defendant.
)
)
)
) CIVIL ACTION NO. 3:10-41
) JUDGE KIM R. GIBSON
)
)
)
)
)
)
ORDER
AND NOW, this 8th day of September, 2011, this matter coming before the Court on
Plaintiff's Motions for Summary Judgment against Defendant (Docket nos. 19, 41, & 72) (the
"Plaintiff's Motions") and Defendant's Motion for Summary Judgment (Docket no. 79) (the
"Defendant's Motion"), and Defendant's Motion to Compel and Motion for Sanctions (Docket no. 30),
IT IS HEREBY ORDERED that the Plaintiff's and Defendant's motions for summary judgment are
DENIED, that Defendant's Motion to Compel is GRANTED, and that Defendant's Motion for
Sanctions is DENIED WITHOUT PREJUDICE.
KIM R. GIBSON,
UNITED STATES DISTRICT JUDGE
21
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