Gagliardino v. Pinkerton Consulting & Investigations

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JONATHAN M. GAGLIARDINO v. PINKERTON CONSULTING AND INVESTIGATIONS

Civil Action No. 23-1358

United States District Court, D. Delaware

February 12, 2024

MEMORANDUM

KEARNEY, J.

An employee claiming his former employer fired him to retaliate for engaging in protected conduct must plead his specific protected conduct, when he engaged in the conduct, and when his former employer fired him. The employee claiming his employer breached an employment agreement or alternative contract theories must also plead why the former employer's decisions violated the implied terms of an employment agreement and how he can proceed on an unjust enrichment theory if there is an employment agreement. We today dismiss an employee's claims for failing to plead facts supporting his Fair Labor Standards Act and contract theories. We grant him leave to timely amend should he be able to plead facts consistent with Rule 11.

I. Alleged facts

Pinkerton Consulting and Investigations provides personal security for business executives. Pinkerton hired Johnathan Gagliardino in 2016 as its only Delaware-based agent.^[1] Mr. Gagliardino and Pinkerton entered a “valid employment agreement.”^[2] Mr. Gagliardino's work schedule varied greatly.^[3] Mr. Gagliardino routinely worked eighty-four-hour weeks or not at all.^[4]Mr. Gagliardino worked every security detail for Pinkerton in Delaware.^[5] Pinkerton hired Delaware subcontractors if the assignment required more than one agent or if Mr. Gagliardino could not work the assignment.^[6] Mr. Gagliardino sought Pinkerton's support to obtain a license to work protection details in Maryland.^[7] Pinkerton's Richard Dunmire told Mr. Gagliardino he must agree to work less than forty-eight-hours per week to receive both Pinkerton's financial support and for an authorized Pinkerton employee to sign the documents Mr. Gagliardino needed to obtain a license in Maryland.^[8] Pinkerton's Dunmire induced Mr. Gagliardino to accept the limited work schedule because Mr. Gagliardino relied on Pinkerton to obtain his Maryland license.^[9]

Pinkerton's Dunmire told Mr. Gagliardino on August 6, 2021 Mr. Gagliardino needed to obtain either Supervisor Marshall Ramsey's or a Pinkerton Human Resources employee's approval to work overtime.^[10] Pinkerton's Dunmire reduced overtime pay owed to Mr. Gagliardino.^[11]Pinkerton's Dunmire corrected Mr. Gagliardino's pay only after Mr. Gagliardino complained about his pay reduction.^[12]

Mr. Gagliardino obtained Supervisor Ramsey's approval to work additional overtime provided Mr. Gagliardino's time worked did not exceed thirty-two-hours per week.^[13] Mr. Gagliardino informed Pinkerton's Dunmire of this approval by August 20, 2021.^[14]

Pinkerton's Dunmire claimed Mr. Gagliardino slept on a subcontractor client's jobsite in an October 14, 2021 email.^[15] The subcontractor company conducted an internal investigation and concluded the subcontractor's employee, not Mr. Gagliardino, slept during the shift.^[16] Pinkerton's Dunmire removed Mr. Gagliardino from the client's jobsite on October 14, 2021 despite the subcontractor's investigation.^[17] Pinkerton's Dunmire based his decision removing Mr. Gagliardino from the jobsite and forbidding Mr. Gagliardino's return based on the false accusation Mr. Gagliardino slept at the jobsite.^[18]

Pinkerton management refused to respond to Mr. Gagliardino about his “unfair and illegal treatment.”^[19] Pinkerton fired Mr. Gagliardino when Mr. Gagliardino informed Pinkerton management and Pinkerton Human Resources about its “unfair and illegal treatment” towards him.^[20] Pinkerton manipulated “a record to create fictional grounds” to reduce Mr. Gagliardino's work hours and then fired Mr. Gagliardino.^[21]

II. Analysis

Mr. Gagliardino now sues his former employer Pinkerton for violating the Fair Labor Standards Act by retaliating against him for complaining about his treatment, breaching an implied covenant of good faith and fair dealing, and unjust enrichment.^[22] Mr. Gagliardino alleges Pinkerton violated the Fair Labor Standards Act by firing him after he complained about the unfair and illegal manipulation of his wages and work time.^[23] Mr. Gagliardino alleges Pinkerton violated the implied covenant of good faith and fair dealing contained in a valid employment agreement by relying on the false accusations Mr. Gagliardino slept on the job to cut Mr. Gagliardino's hours and fire him.^[24]Mr. Gagliardino alleges Pinkerton's reliance on the false sleeping accusations constitute a “manipulation of a record to create fictional grounds” for reducing Mr. Gagliardino's hours and firing him.^[25] Mr. Gagliardino alleges Pinkerton unjustly enriched itself by firing Mr. Gagliardino.^[26]

Pinkerton moves to dismiss Mr. Gagliardino's claims.^[27] Pinkerton argues Mr. Gagliardino does not plead a Fair Labor Standards Act retaliation claim because he did not engage in protected activity and fails to allege a causal connection between his alleged protected activity and termination.^[28] Pinkerton argues Mr. Gagliardino does not plead a breach of the implied covenant of good faith and fair dealing claim because Mr. Gagliardino does not identify a specific implied contractual obligation Pinkerton violated by firing him.^[29] Pinkerton argues Mr. Gagliardino does not plead an unjust enrichment claim because he does not allege the pecuniary gain Pinkerton received by firing Mr. Gagliardino.^[30] We need not address Pinkerton's assertion the Fair Labor Standards Act preempts Mr. Gagliardino's contract claims.^[31] We find Mr. Gagliardino does not plead a Fair Labor Standards Act retaliation claim because he does not allege the substance and timing of his complaints to Pinkerton management. We find Mr. Gagliardino does not plead a breach of the implied covenant of good faith and fair dealing claim because he pleads several different potential causes for his firing. We find Mr. Gagliardino does not plead an unjust enrichment claim because he has a valid remedy at law to challenge Pinkerton's conduct under his employment agreement. We dismiss each claim without prejudice allowing Mr. Gagliardino the opportunity to marshal his facts and replead if he can do so mindful of Rule 11.

A. Mr. Gagliardino does not plead a retaliation claim.

Mr. Gagliardino alleges Pinkerton's Dunmire reduced Mr. Gagliardino's worked overtime on August 6, 2021 but later corrected it.^[32] Mr. Gagliardino alleges Pinkerton's Dunmire removed Mr. Gagliardino from a jobsite on October 14, 2021 based on false accusations Mr. Gagliardino slept at the jobsite.^[33] Mr. Gagliardino alleges he informed Pinkerton management and its Human Resources department at an unspecified date about the company's “unfair and illegal treatment” of Mr. Gagliardino.^[34] Mr. Gagliardino alleges Pinkerton fired him after this meeting at an unspecified later date.^[35] Pinkerton counters Mr. Gagliardino does not plead he engaged in protected activity because he does not specify to what “unfair and illegal treatment” Pinkerton subjected him.^[36] Pinkerton counters Mr. Gagliardino does not plead a causal connection between his alleged protected activity and firing because he does not specify when and to whom he complained nor his termination date.^[37] We find Mr. Gagliardino does not plead a retaliation claim under the Fair Labor Standards Act because he does not allege he engaged in protected activity, and even if he did, Mr. Gagliardino does not allege a causal connection between his protected activity and an adverse employment action.

An employee alleging a retaliation claim under the Fair Labor Standards Act must allege he engaged in a protected activity, the employer took an adverse employment action against the employee, and there exists a causal link between the employee's protected activity and the employer's adverse employment action.^[38]

i. Mr. Gagliardino does not plead he engaged in protected activity.

Mr. Gagliardino alleges he met with Pinkerton at an unspecified date to discuss the company's “unfair and illegal treatment” towards him.^[39] Mr. Gagliardino alleges this meeting occurred after Pinkerton's Dunmire reduced Mr. Gagliardino's worked overtime, but later corrected it, and after Pinkerton's Dunmire relied on false accusations Mr. Gagliardino slept on a jobsite to remove Mr. Gagliardino from the jobsite.^[40] Mr. Gagliardino clarifies his allegation of “unfair and illegal treatment” constituted “unfair and illegal manipulation of his wages and work time.”^[41] Pinkerton counters Mr. Gagliardino does not allege the subject matter of his complaint to Pinkerton, when it occurred, and to whom at Pinkerton Mr. Gagliardino complained.^[42] We find Mr. Gagliardino does not plead he engaged in protected activity because he does not allege the specifics of his alleged protected activity through a complaint to Pinkerton.

The Fair Labor Standards Act prohibits employers from discriminating “against any employee because such employee has filed a[] complaint.”^[43] Our colleagues consider informal or internal complaints by employees as protected activity under the Fair Labor Standards Act though our Court of Appeals has not expressly addressed this issue.^[44] The Supreme Court instructs the employee's 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.”^[45] We are guided by the contrasts offered by Judge Brody in denying an employer's motion to dismiss an employee's Fair Labor Standards Act retaliation claim where the employee complained to the scaffolding company's treasurer about not being paid her wages and overtime.^[46]The employee in Sondesky v. Cherry...