Koller v. Riley Riper Hollin & Colagreco

850 F.Supp.2d 502

David M. KOLLER, Plaintiff,

v.RILEY RIPER HOLLIN & COLAGRECO, Defendant.

Civil Action No. 10–2933.

United States District Court, E.D. Pennsylvania.

Feb. 28, 2012.

Mark Daniel Schwartz, Bryn Mawr, PA, for Plaintiff.

William T. Salzer, Swartz Campbell LLC, Philadelphia, PA, for Defendant.

MEMORANDUM

JONES, District Judge.

I. Introduction

Plaintiff, David M. Koller, began his employment with Defendant, Riley Riper Hollin & Colagreco, at the end of August 2007. During his employment with Defendant, Plaintiff sustained a knee injury, which required him to undergo surgery and to utilize time under the Family Medical Leave Act of 1993, 29 U.S.C. §§ 260–2654 (2006), hereinafter “FMLA.” Several weeks after his surgery, Defendant terminated Plaintiff's employment, citing economic issues as the reason. Accordingly, Plaintiff commenced the within action by filing a Complaint in which he alleged that Defendant discriminated against him on the basis of his disability and gender, that Defendant retaliated against him for taking medical leave, and that Defendant breached an oral employment contract.

Defendant filed a Motion to Dismiss, which was denied without prejudice and leave was granted for Plaintiff to file an Amended Complaint. Plaintiff has done so and Defendant once again seeks dismissal of said Complaint for failure to state a claim upon which relief can be granted. SeeFed.R.Civ.P. 12(b)(6). For the reasons set forth hereinbelow, said Motion will be granted in part and denied in part.

II. Discussion

a. Standard of Review

In deciding a motion to dismiss pursuant to Rule 12(b)(6), courts 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. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir.2008) (internal quotation marks and citation omitted). After the Supreme Court's decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). “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.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). This standard, which applies to all civil cases, “asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 129 S.Ct. at 1949;accord Fowler v. UPMC Shadyside, 578 F.3d 203, 210–11 (3d Cir.2009) (“All civil complaints must contain more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” (internal quotation marks omitted)). “[W]here the well-pleaded facts do not permit the court to infer more than a mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’ Fed.R.Civ.P. 8(a)(2).” Iqbal, 129 S.Ct. at 1949.

The Third Circuit recently enumerated the steps a court should take in evaluating the sufficiency of a complaint:

First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Ashcroft v. Iqbal, , 129 S.Ct. 1937, 1947, 173 L.Ed.2d 868 (2009). Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 1950. Third, “whe[n] there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.” Id. This means that our inquiry is normally broken into three parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike conclusory allegations, and then (3) looking at the well-pleaded components of the complaint and evaluating whether all of the elements identified in part one of the inquiry are sufficiently alleged.

Malleus v. George, 641 F.3d 560, 563 (3d Cir.2011).

The sufficiency of Plaintiff's Amended Complaint shall be assessed accordingly.

b. Background

Plaintiff, David M. Koller, began his employment with Defendant, Riley Riper Hollin & Colagreco in August, 2007. (Am. Compl. ¶ 13) Plaintiff was an experienced attorney, and had been awarded the distinction of “Rising Star Super Lawyer” by Philadelphia Magazine in 2007, 2008, 2010 and 2011. (Am. Compl. ¶¶ 7, 14) Defendant hired Plaintiff to work for the first named partner, Thomas A. Riley, Jr. (“Riley”), and was promised that he would be involved strictly in employment litigation. (Am. Compl. ¶¶ 14, 17)

Upon commencing employment, Plaintiff was informed that a female associate, Jeanette Simone, would be taking the position under Riley, and that Plaintiff would be assigned to another partner, George Randolph (“Randolph”). (Am. Comp. ¶ 14) Additionally, Plaintiff was assigned small collection cases, rather than the employment litigation matters that he desired. (Am. Compl. ¶ 18) Plaintiff alleges that during this time, he observed a culture of preferential treatment towards female associates, to the extent that females were given greater leniency with regard to schedule flexibility, absences, and medical leave. (Am. Compl. ¶ 15)

Under Randolph, Plaintiff was required to work from 7 a.m. to 7 p.m. on weekdays and come to the office almost every weekend. (Am. Compl. ¶ 19) Plaintiff alleges that Randolph impeded his attempts to attend marketing events, and when Plaintiff did attend, Randolph demanded he report back to the office. (Am. Compl. ¶ 19) Despite this, in December, 2008 Randolph gave Plaintiff an excellent performance review, stating that Plaintiff was “the best associate that he had ever had when it came to client relations and that Koller would have a ‘long tenure’ with the Riley firm.” (Am. Compl. ¶ 20) Following this favorable review, Plaintiff was given a 5% pay raise and was told by Riley that “he was doing very well.” (Am. Compl. ¶ 21)

On January 11, 2009, Plaintiff tore his anterior cruciate ligament (“ACL”). (Am. Compl. ¶ 23) Plaintiff met with Human Resources Director, Colleen Mintzer on January 12, 2009, to advise her of his injury, at which point he voiced his concerns that the injury may cause him to lose his job. (Am. Compl. ¶ 24) Ms. Mintzer assured Plaintiff that he would not lose his job and that necessary treatment time would be accommodated. (Am. Compl. ¶ 24) Plaintiff was pre-approved by Ms. Mintzer and Randolph to take time off, possibly up to one month or more, for the necessary medical treatment and rehabilitation. (Am. Compl. ¶ 27)

On February 2, 2009, Plaintiff underwent surgery to repair his ACL. (Am. Compl. ¶ 26) Up to that point, his work hours were severely reduced, and during the two weeks Plaintiff took off to recover, he was heavily medicated and had trouble staying awake but still kept in contact with his secretary and Randolph. (Am. Compl. ¶¶ 25, 28) On February 17, 2009, Plaintiff returned to work, despite being in pain, medicated, and having difficulty moving and driving. (Am. Compl. ¶ 29) Beginning on February 24, 2009, Plaintiff attended physical therapy appointments twice a week in the morning, which caused him to arrive at the office at approximately 10 a.m. (Am. Compl. ¶ 3 0) Defendant refused to accommodate his tardiness that resulted from the therapy sessions. (Am. Compl. ¶ 31)

On March 2, 2009—one week after the therapy sessions began—Plaintiff was discharged. (Am. Compl. ¶ 32) Defendant cited tough economic times as the reason for the termination, and specifically told Plaintiff that he was not being discharged for work performance issues. (Am. Compl. ¶ 32) Plaintiff was the only associate terminated at that time; just three months after being given a favorable review and 5% raise. (Am. Compl. ¶ 33)

c. Individual Claims

i. FMLA Violations

The FMLA entitles “employees to take reasonable leave for medical reasons.” 29 U.S.C. § 2601(b)(2) (2006). Eligible employees, those employed with an employer for at least twelve months, may take up to twelve workweeks of leave per twelve-month period because of a serious health condition. 29 U.S.C. § 2612(a)(1)(D). This leave may be taken consecutively or intermittently. 29 U.S.C. § 2612(b)(1).

In order to protect this right, the FMLA prohibits employers from: (1) interfering with an employee's exercise of this right; and (2) discriminating or retaliating against an employee who exercises this right. See29 U.S.C. § 2615(a); Callison v. City of Philadelphia, 430 F.3d 117, 119 (3d Cir.2005).¹ Upon returning from FMLA leave, the employee is entitled to be reinstated to his or her former position, or an equivalent one. 29 U.S.C. § 2614(a)(1). However, “... if an employee is discharged during or at the end of a protected leave for a reason unrelated to the leave, there is no right to reinstatement.” Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135, 141 (3d Cir.2004) (citing 29 C.F.R. § 825.216(a)(1)).

“In order to assert a claim of interference, an employee must show that he was entitled to benefits under the FMLA and that his employer illegitimately prevented him from obtaining those benefits.” Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 401 (3d Cir.2007). Interference includes “not only refusing to authorize FMLA leave, but discouraging an employee from taking such leave.” Conoshenti, 364 F.3d at 142 (citing 29 C.F.R. § 825.220(b)). The Third Circuit has explicitly ruled that “[a]n interference action is not about discrimination, it is only about whether the employer provided the employee with the entitlements guaranteed by the FMLA.” Callison, 430 F.3d at 119. “Under this theory, the employee need not show that he was treated differently than others[,] [and] the employer cannot justify its actions...