Sondesky v. Cherry Scaffolding, Inc., CIVIL ACTION No. 16-5667

• Decision Date: 05 September 2017
• Docket Number: CIVIL ACTION No. 16-5667
• Parties: LINDA SONDESKY, Plaintiff, v. CHERRY SCAFFOLDING, INC., et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

LINDA SONDESKY, Plaintiff, v. CHERRY SCAFFOLDING, INC.,et al., Defendants.

CIVIL ACTION No. 16-5667

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

September 5, 2017

Anita B. Brody, J.

MEMORANDUM

Plaintiff Linda Sondesky brings suit against Defendants Cherry Scaffolding, Inc. ("Cherry Scaffolding") and Stephen Ellis. Sondesky asserts claims under the Fair Labor Standards Act ("FLSA") and the Pennsylvania Wage Payment and Collection Law ("WPCL") against all Defendants. First Am. Compl. 4-5, ECF No. 12. In addition, Sondesky asserts Dragonetti Act and common law abuse of process claims against Cherry Scaffolding only. Id. at 5. Cherry Scaffolding asserts counterclaims against Sondesky for conversion and breach of fiduciary duty.¹ Defs.' Answer and Countercl. 12-16, ECF No. 31.

Defendants have moved to dismiss Plaintiff's First Amended Complaint for failure to state a claim and have also moved for judgment on the pleadings as to all counts of Plaintiff's First Amended Complaint. Defs.' Mot. Dismiss, ECF No. 15; Defs.' Mot. J. Pleadings, ECF No. 38. Plaintiff has moved for judgment on the pleadings as to Cherry Scaffolding's counterclaims. Pl.'s Mot. J. Pleadings, ECF No. 34. I will grant Defendants' motion to dismiss Sondesky'sWPCL claim and her abuse of process claim. I will deny Defendants' motion to dismiss Sondesky's FLSA and Dragonetti Act claims. I will deny both parties' motions for judgment on the pleadings.

I. BACKGROUND²

Sondesky was employed by Cherry Scaffolding as a bookkeeper from October 22, 2015 until March 7, 2016. Sondesky's rate of pay on her last day of work was $28.85 per hour. Sondesky asserts that she was a non-management employee and that her position was not exempt from any state or federal laws governing overtime pay. At some point during her employment, Sondesky had a telephone conversation with Ellis, who serves as President and Treasurer of Cherry Scaffolding. Sondesky informed Ellis that the office was in disarray and that she would need to be paid in full for all hours that she worked as the bookkeeper. Ellis confirmed that he understood Sondesky's position. Sondesky subsequently submitted all of her hours, including overtime, to payroll, and Cherry Scaffolding's management approved her compensation.

In early March of 2016, Cherry Scaffolding terminated Sondesky without a specific reason. Following her termination, Cherry Scaffolding filed a lawsuit against Sondesky in Pennsylvania Magisterial District Court (the "State Court Action") seeking to recover overtime compensation from Sondesky. On June 23, 2016, judgment in that suit was entered in Sondesky's favor.

In its Answer and Counterclaim, Cherry Scaffolding asserts that Sondesky had access to Cherry Scaffolding's bank accounts and withdrew $2,566.09 without justification. Sondesky refused Cherry Scaffolding's demands to return the money.

II. STANDARD OF REVIEW

In deciding a motion to dismiss under Rule 12(b)(6), 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. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (internal quotation marks omitted).

Federal Rule of Civil Procedure 12(c) provides that "[a]fter the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). "Judgment will only be granted where the moving party clearly establishes there are no material issues of fact, and that he or she is entitled to judgment as a matter of law." DiCarlo v. St. Mary Hosp., 530 F.3d 255, 259 (3d Cir. 2008). There is "no material difference in the applicable legal standards" for a motion for judgment on the pleadings under Rule 12(c) and a motion to dismiss under Rule 12(b)(6). Spruill v. Gillis, 372 F.3d 218, 223 n.2 (3d Cir. 2004).

To survive dismissal, a complaint must allege facts sufficient to "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rather, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Id. (internal quotation marks omitted). "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." Id.

"As a general matter, a district court ruling on a motion to dismiss may not consider matters extraneous to the pleadings. However, an exception to the general rule is that adocument integral to or explicitly relied upon in the complaint may be considered . . . ." In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (emphasis omitted) (citations omitted) (internal quotation marks omitted). Thus, a court may "consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994). Further, "a court may consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document." Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).

III. DISCUSSION

Defendants move to dismiss and move for judgment on the pleadings on all claims brought against them. I will deny both of Defendants' motions as to the FLSA claim (Count I) and the Dragonetti Act claim (Count III) because the facts alleged in the Amended Complaint raise a plausible right to relief.³ I will dismiss the WPCL claim (Count II) and the abuse of process claim (Count IV) because Sondesky has failed to state a claim under both.

Plaintiff moves for judgment on the pleadings on Cherry Scaffolding's counterclaims, arguing the counter claims are barred by res judicata. I will deny Plaintiff's motion because, based on the limited record before me, it is insufficiently clear that Cherry Scaffolding's counterclaims were previously adjudicated on the merits.

A. Defendants' Motion to Dismiss & Motion for Judgment on the Pleadings

i. Count I—FLSA

Defendants move to dismiss Sondesky's claim alleging retaliation in violation of the FLSA (Count I). To establish a prima facie case of retaliation, a plaintiff must demonstrate: "(1)protected employee activity; (2) adverse action by the employer either after or contemporaneous with the employee's protected activity; and (3) a causal connection between the employee's protected activity and the employer's adverse action." Marra v. Phila. Hous. Auth., 497 F.3d 286, 300 (3d Cir. 2007) (applying McDonnell Douglas framework to analogous provision of Pennsylvania law); Cononie v. Allegheny Gen. Hosp., 29 F. App'x 94, 95 (3d Cir. 2002) (holding FLSA retaliation claims are analyzed under McDonnell Douglass framework).

Defendants argue that Sondesky's claim fails because she has not alleged that she engaged in a protected activity. Sondesky contends that her telephone conversation with Ellis—during which she demanded that she be compensated for all hours actually worked, including overtime—constitutes an oral complaint that is protected under the FLSA. "To fall within the scope of the [FLSA] antiretaliation provision, a complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection. This standard can be met, however, by oral complaints, as well as by written ones." Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 14 (2011).

Based on the facts alleged in the Amended Complaint, Sondesky's telephone conversation with Ellis plausibly satisfies the standard set by the Supreme Court in Kasten. Sondesky asserts that she told Ellis that she would need to be paid for all hours actually worked, including overtime. Sondesky's right to overtime compensation is a right protected under the FLSA, and her demand to be paid any overtime compensation actually due is a clear assertion of that right.⁴ See 29 U.S.C. § 207(a)(1). I will therefore deny Defendants' motion to dismiss and motion for judgment on the pleadings as to Count I.

ii. Count II—WPCL

Defendants move to dismiss Sondesky's claim alleging violation of the Pennsylvania WPCL (Count II). They argue that the WPCL does not include an anti-retaliation provision comparable to that found in the FLSA and that Sondesky has failed to allege any other facts that could give rise to a claim under the WPCL. This is correct. The WPCL includes a private right of action for an employee to recover unpaid wages and liquidated damages. 43 P.S. § 260.9a. The statute is silent about an employee's right to bring a claim for retaliation. Federal courts that have considered the issue have concluded that the WPCL does not include a cause of action for retaliatory termination. See Donaldson v. Informatica Corp., 792 F. Supp.2d 850 (W.D. Pa. 2011) (predicting the Pennsylvania Supreme Court would not allow a cause of action for wrongful discharge based on the WPCL); Pease v. Faro Techs., No. 15-CV-3586, 2016 WL 705240 (E.D. Pa. Feb. 22, 2016) (concluding the WPCL does not provide an exception to the strong presumption of at-will employment). I will therefore grant Defendants' motion to dismiss Count II of Sondesky's First Amended Complaint.⁵

iii. Count III—Dragonetti Act

Cherry Scaffolding moves to dismiss Sondesky's claim alleging wrongful use of civil proceedings in violation of Pennsylvania's Dragonetti Act (Count III). To prove a claim for wrongful use of civil proceedings, plaintiffs...