Rovetto v. Dublirer
| Decision Date | 30 November 2020 |
| Docket Number | Civil Action No. 20-cv-2497 (JMV) (MF) |
| Parties | ROBERT J. ROVETTO, NICOLE A. ROVETTO, Plaintiffs, v. DAVID ALLEN DUBLIRER, WADE ASHLEY FAWCETT, TOWER MANAGEMENT SERVICES L.P., TOWER MANAGEMENT SERVICES LLC, TOWER MANAGEMENT FINANCING CORP., TOWER SPRING GARDENS LLC, TOWER SPRING GARDENS ONE 2015 LLC, JOHN DOE 1-5, JOHN DOE CORP/LLC 1-5, Defendants. |
| Court | U.S. District Court — District of New Jersey |
Not for Publication
In this matter, Plaintiffs allege that Defendants improperly compensated and terminated Plaintiff Robert Rovetto and also made false and misleading statements about Plaintiffs. Presently before the Court is Defendants' motion to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). D.E. 19. The Court reviewed all the submissions in support and in opposition1 and considered the motion without oral argument pursuant to Federal Rule of Civil Procedure 78(b) and Local Civil Rule 78.1(b). For the reasons discussed below, the motion to dismiss is GRANTED.
Plaintiffs are proceeding pro se. The Complaint includes numerous factual allegations stemming from Plaintiff Robert Rovetto's initial employment to his termination, and the Court recounts only the factual background that appears to relate to Plaintiffs' claims.
Defendant David Allen Dublirer is the Vice President of Asset Management at Tower Management Service L.P. Compl. ¶ 14. Defendant Wade Ashley Fawcett was the former Superintendent of Spring Garden Apartments and is now the Director of Grounds and Maintenance of Tower Management Service L.P. Id. ¶ 15. Defendants Tower Management Service, L.P.3 and Tower Management Service, LLC are property management firms that own, operate, and maintain "numerous residential rental properties throughout New York, New Jersey and Pennsylvania." Id. ¶¶ 16-17. Defendant Tower Management Financing Corp. is a Delaware Corporation. Id. ¶ 18. These three Defendants are referred to collectively as "Tower." See id. ¶¶ 16-18. Defendants Tower Spring Gardens LLC, Tower Spring Gardens One 2015 LLC, and Tower Spring Gardens 1 LLC (collectively, "Spring Gardens") are "residential apartment complex[es] owned by . . . Tower Management Service L.P." Id. ¶¶ 19-21.4
Plaintiff Robert Rovetto ("Robert") is a former employee of Spring Gardens. Id. ¶ 24, 73. Robert began working in maintenance for Spring Gardens on June 30, 2011. Id. ¶ 24. On or around July 21, 2011, Robert and Plaintiff Nicole Rovetto ("Nicole") moved into a one-bedroomapartment at Spring Gardens pursuant to an Employee Lease Agreement. Id. ¶ 25. Nicole is an employee of Spring Gardens - she "was hired to assist in various day to day operations within the rental office as well as assisting the maintenance staff with cleaning units during their make ready process" on July 8, 2013 and has not been discharged or terminated. Id. ¶ 36, Opp. 1.
On August 1, 2011, Robert assumed "on-call" responsibility. Id. ¶ 27. Robert was on-call for seven consecutive days at a time; his on-call weeks rotated with other employees. Id. While on-call, Robert was required to answer any maintenance calls received outside of regular business hours, determine whether a given call constituted a true emergency, and if so, respond to the location of the emergency within fifteen minutes of receiving the call. Id. ¶ 28. Robert alleges that he was not provided any additional compensation for on-call shifts, except for the time he spent "physically attending to an emergency call." Id. ¶ 29.
When Robert inquired about compensation for his on-call shifts, Defendants told him that on-call responsibilities were part of the job for which he was already paid, including his apartment.5 Id. ¶ 30. Robert was on call for 62 weeks during the period of August 1, 2011 through October 20, 2018. Id. ¶ 31. During this time, he received an average of three to five paid hours for the weeks he was on-call and, in the event he did not work forty hours during a pay period, he was paid an hourly rate. Id.
Plaintiffs requested and received an apartment transfer to a two-bedroom unit on January 30, 2012; they moved into the new unit on February 2, 2012. Id. ¶ 32. On September 29, 2015, Robert was promoted to the position of Superintendent for the Spring Gardens properties andreceived an increase in hourly pay. Id. ¶ 44. On October 13, 2017, Robert received another pay increase following an above average annual performance evaluation. Id. ¶ 51.
Robert requested to remove himself from the on-call rotation on June 1, 2018 and the request was approved. Id. ¶ 52. Plaintiffs were interested in purchasing a home of their own and sent Dublirer an email on June 3, 2018, asking for clarification of administrative rent compensation. Id. ¶¶ 52-53. In response, they received a phone call from Fawcett who told them, "You don't get that money, your apartment is part of your job." Id. ¶ 53. Plaintiffs allege that this statement contradicted company policies. Id. While Dublirer was at Spring Gardens on September 11, 2018, Plaintiffs allege that he remarked to Robert that Nicole needed Quaaludes because "she's all over the place." Id. ¶ 58.
Plaintiffs closed on their new home on October 22, 2018 and vacated their Spring Gardens apartment on October 28, 2018. Id. ¶¶ 59-60. Plaintiffs allege that there was an "admin rent" deduction from Robert's November paycheck in the amount of $1,595, purportedly because Plaintiffs did not turn in their apartment keys; Plaintiffs maintain that they had in fact turned in their keys. Id. ¶ 61. Plaintiffs continue that "[a]ll future gross pay was reduced by" $1,595. Id. ¶ 62.
After Plaintiffs moved out of their Spring Gardens unit, "Robert was required to stay on property at Spring Gardens to be ready and available to work and avoid any travel delays that would arise during his commute to work" when snow was predicted. Id. ¶ 63. Robert alleges that he was not compensated for staying overnight and when he asked about additional pay, Dublirer replied, "I don't pay you to sleep." Id. During the overnight stays, Robert used a vacant unit or his desk and had to bring his own meals and sleeping necessities. Id. On one occasion, he slept on Fawcett's couch. Id.
In May 2019, Plaintiffs had a death in the family and Robert contacted Dublirer to notify him that Plaintiffs would be out of work for the next three days. Id. ¶ 65. Robert informed the property manager and maintenance staff, and the staff understood what tasks needed to be completed while Robert was out. Id. Robert further indicated that he could be reached by telephone if needed. Id. Fawcett texted Robert that afternoon and said "I'll just tell [Dublirer] its your aunt, it sounds better," and suggested that Robert "tell [Dublirer] you had direct involvement in making the funeral arrangements" because "it sounds better." Id. ¶¶ 66-67. Fawcett indicated that Dublirer was "pissed [Robert] took three days off of work" and when Nicole contacted Fawcett about the situation, Fawcett told her "Rob dropped the ball" and "[t]here was no excuse for [Robert] to take 3 days off" because Fawcett only took off 1 day when his grandmother died. Id. ¶ 67. Robert then contacted Dublirer; Dublirer assured Robert that he was not upset but needed to determine whether Robert would receive bereavement pay or if personal days would be deducted. Id. ¶ 68. Dublirer told Robert his (Robert's) job was secure. Id.
On July 30, 2019, Robert sustained a minor injury at work and, in accordance with company procedure, reported it to the property manager. Id. ¶ 70. Robert indicated that he did not require medical attention. Id. The property manager filed an incident report and instructed Robert not to return to work until he had a physician's clearance. Id. Robert then scheduled a medical appointment. Id. ¶ 70. While Robert was waiting to see the doctor, an issue arose between the insurance company and the doctor's office concerning the workers' compensation authorization, however, the issue was ultimately resolved, Robert saw his doctor, and he was cleared to return to work. Id. ¶ 72.
Robert returned to work the next day, and Dublirer fired him. Id. ¶ 73. Robert received a call from the property manager while driving home and was informed that Dublirer fired him"because he found out about a pay lawsuit."6 Id. ¶ 74. The Complaint alleges that Dublirer told other maintenance staff employees not to have any communication with Robert because "he has litigations against us." Id. ¶ 75. Robert learned that before he was fired, Dublirer made a formal police report about Robert allegedly making a threat. Id. ¶ 76. The police told Dublirer that his claim did not amount to an unlawful threat; Dublirer "proceeded with his accusation" and requested that an officer be present during Robert's termination. Id. Plaintiffs allege that Fawcett "continued to make false claims" to Spring Gardens residents about Robert's termination and told them that Robert "said something to the manager that was threatening toward the VP of the company." Id. ¶ 80. Moreover, Plaintiffs allege that Fawcett told employees and residents that he heard Robert had a deposition coming up. Id. ¶ 81.
Plaintiffs filed their Complaint on March 6, 2020. D.E. 1. The Complaint includes seven claims, some of which include subcounts.7 Claim One alleges a retaliatory discharge in violation of 29 U.S.C. § 215(a)(3). Compl. ¶ 84. Claim Two alleges "theft of wages" and includes subcounts: Subcount I asserts a claim for on-call time pursuant to N.J. Admin. Code § 12:56-5.6(b) and -5.7; and Subcount II8 asserts a claim for sleep time pursuant to 29 C.F.R. § 785.20 et seq. Id. ¶¶ 85-87. Claim Three alleges incorrect overtime compensation pursuant to 29 U.S.C. § 216(b). Id. ¶¶ 88-89. Claim Four alleges "false statement and concealment of facts" pursuant to 18 U.S.C. § 1962. Id. ¶ 90. Claim Five alleges "false information and hoaxes" pursuant to 18...
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