Jenkins v. Ne. Treatment Ctrs., Inc.

STEVEN JENKINS, Plaintiff, v. NORTHEAST TREATMENT CENTERS, INC., et al., Defendants.

Civil Action No. 21-1421

United States District Court, E.D. Pennsylvania

November 10, 2021

MEMORANDUM

EDUARDO C. ROBRENO, J.

I. INTRODUCTION

Plaintiff Steven Jenkins (“Plaintiff”) brings this action against Northeast Treatment Centers, Inc. (“NET”), his former employer, and four former supervisors, Tanya Johnson, Ann Marie Weinberg, Julia Monaco and Jennifer Hermann (the “Individual Defendants”). NET and the Individual Defendants are hereinafter collectively referred to as “Defendants.”

Plaintiff alleges he was unlawfully terminated and retaliated against by Defendants for reporting unlawful pay practices and safety violations related to the COVID-19 pandemic. His Second Amended Complaint asserts three counts: (1) Violations under 42 U.S.C. § 1983 of substantive due process rights under the First Amendment (as incorporated through the Fourteenth Amendment); (2) Retaliation under the Fair Labor Standards Act (“FLSA”); and (3) Violations of Pennsylvania's Whistleblower Law.

All Defendants except Monaco filed a Motion to Dismiss for failure to state a claim, and Monaco later filed a Motion to Dismiss joining in the other Defendants' motion. Thus, the Court will refer to this motion as the collective Defendants' Motion to Dismiss.

For the reasons explained below, the Court will dismiss Count I with prejudice and dismiss Counts II and III without prejudice.

II. FACTUAL BACKGROUND^[1]

Defendant NET is a Community Umbrella Agency (“CUA”) which provides a behavioral health and social services including mental health services, addiction treatment, foster care, residential group care, adoption, juvenile justice services, and child welfare services. In August 2019, NET hired Plaintiff as a Behavioral Health Associate (“BHA”). In January 2020, Plaintiff noticed an error in the rate of pay he received. NET paid employees hazard pay due to COVID-19, but it failed to pay employees hazard pay on any overtime hours. Plaintiff reported this issue to his supervisors. He also reported it to the Pennsylvania Department of Labor and Industry.

Subsequently, Plaintiff exchanged a series of emails with NET's Director of Payroll, Defendant Weinberg. Weinberg informed Plaintiff that it was “upper management” who needed to address his concerns and that he should “take [his concerns] to the Vice President.” Sec. Am. Compl. ¶ 39, ECF No. 26 (alteration in original). Plaintiff then scheduled a telephone call with Defendant Hermann, NET's Vice President. During that call, Hermann informed Plaintiff that the issue was “bigger than [him].” Id. at ¶ 42 (alteration in original).

Shortly thereafter, a mass email was sent to all employees informing them that there had been a clerical error and that all employees would be receiving retroactive hazard pay for overtime hours worked during the pandemic. Almost immediately thereafter, Defendants^[2] allegedly began disproportionately writing Plaintiff up.

In February 2020, Plaintiff reported to work to cover a shift for which he was not previously scheduled. NET's Scheduler, Shirley, had called Plaintiff and asked him to cover a lobby shift from 3-11 p.m. Plaintiff agreed and came in. When he arrived, Nurse Jennifer approached Plaintiff and informed him that he needed to drive a patient to Eagleville, another facility operated by Defendant NET. Plaintiff informed Nurse Jennifer that he had just completed a sixteen-hour shift and felt unsafe driving two hours round trip.

Nurse Jennifer informed Defendant Johnson of the issue, who informed Plaintiff that if he did not wish to complete his duties, he should not have agreed to work and that he could clock out and go home. Plaintiff explained that the Scheduler informed him it was a lobby shift, which is why he agreed to come in. Johnson was unhappy with this response and informed Plaintiff that he was suspended. Plaintiff clocked out and went home. Upon arriving home, Plaintiff found an email stating that he was suspended until Tuesday.

Plaintiff emailed Hermann, who subsequently called Plaintiff. Hermann said Johnson told her that Plaintiff stated “I'm not working” during the interaction described above. Plaintiff stated this was untrue. Hermann agreed to take the suspension off Plaintiff's record and remove the write-up from Plaintiff's personnel file. However, Plaintiff still felt humiliated and distressed and lost more than sixteen hours of overtime.

Plaintiff made a report of harassment and abuse of power to NET's Human Resources Department (“HR”) regarding Johnson. Plaintiff informed HR that he felt uncomfortable working with Johnson as she had fabricated a story to substantiate a fraudulent write-up. Shortly thereafter, HR scheduled an inperson meeting between Plaintiff, Johnson, and HR. During the meeting, Johnson allegedly became angry and was very curt with Plaintiff. During the meeting, Johnson told Plaintiff that “when you become a director you can question how NET and supervisors do things.” Id. at ¶ 71. Johnson's behavior during or prior to the meeting was not addressed, but the parties agreed that Plaintiff would not have to report to Johnson moving forward.

In April or May, Plaintiff found out he was exposed to a patient/client who had tested positive for COVID-19. Plaintiff was tested and had to remain out of work for two weeks for test results and quarantine. During that time, Plaintiff's test came back negative, but he remained out due to the incubation period. Following another negative test result, Plaintiff returned to work immediately.

Shortly thereafter, Plaintiff was written up for the second time. At that time, Plaintiff was working seven to eight days straight due to understaffing issues. Specifically, Defendants often asked Plaintiff to cover shifts on his scheduled days off. Plaintiff was physically and mentally drained and began using his sick time. However, Defendants would not deduct a sick day from his balance. Rather, they would manipulate Plaintiff's “hours worked.” Id. at ¶ 83. This resulted in Plaintiff being paid less than if they had correctly deducted his sick time due to the amount of overtime he would have clocked for the week.

Defendants claimed that Plaintiff was manipulating time, but Plaintiff claims his reporting was accurate. Defendants Johnson and Monaco administered a write-up to Plaintiff, who disagreed with the write-up and refused to sign it. Plaintiff's request for a copy of the write-up was denied. Plaintiff claims that this second write-up was in retaliation for his earlier reports of unlawful acts by Defendants and in an effort to prevent him from reporting improper pay.

In November or December 2020, Johnson and Monaco informed NET employees that due to COVID-19, potential patients of NET were no longer permitted to stay outside on the property overnight. They could only stay overnight if space was available in the unit or there was an empty chair in the lobby. Plaintiff attempted to enforce this policy by instructing potential patients waiting outside that they could not remain on the grounds overnight. Plaintiff further informed them that they should seek medical treatment and/or housing elsewhere, including other drug rehabs or nearby hospitals.

On numerous occasions, Plaintiff also asked security to assist him in informing the potential patients, who were often under the influence of a mind-impairing substance. Shortly after the policy went into effect, Plaintiff was informed that a patient called Community Behavioral Health (an organization with which NET works closely) to inform them that a bald black male in the lobby was turning them away. As a result, Defendants wrote Plaintiff up for “violating policy.” Id. at ¶ 99.

During the in-person administration of the write-up, Plaintiff reminded Johnson and Monaco that they instructed him that this was the new policy. Johnson and Monaco had no response. Plaintiff refused to sign the write-up and requested a copy of it, but Defendants refused to give him one.

In the first week of December 2020, Johnson sent an email informing NET staff that the lobby capacity would be increasing from six to eight. Due to the size of the lobby, Plaintiff alleges the increase in capacity would make social distancing impossible. Plaintiff's shifts were often lobby shifts during which he was required to walk through the lobby to hand out and collect paperwork. Plaintiff felt unsafe and was concerned for his physical health and safety. Plaintiff located the applicable CDC guidelines and emailed them to Hermann, voicing his concerns. Shortly thereafter, Defendants revoked their statement concerning the capacity increase and allowed it to remain at six patients.

On December 25, 2020, Monaco contacted Plaintiff and asked if he could come in for an early shift for which he was not previously scheduled. Plaintiff informed Monaco that his brother had just passed away and he was not scheduled and could not come in early. However, Plaintiff did work during the evening on the next day, December 26, right after his brother's funeral. He also worked on December 27. Plaintiff was also scheduled to work the day after that, on December 28, from 11:00 P.M. to 7:00 A.M., but he agreed to come in early at 7:00 P.M. at Monaco's request.

On December 28, Plaintiff came to work and took a break between two patient transports. Typically, breaks are taken whenever they can be due to unpredictable patient intakes. Despite being on break, Plaintiff was doing laundry, one of his job duties. Plaintiff then began to experience unexpected grief over his brother's passing, and he began crying and needed a moment to gather his composure. Plaintiff stepped away and sat in a dark room. An...