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Wevodau v. Commonwealth

United States District Court, M.D. Pennsylvania

January 4, 2017

KEVIN WEVODAU, Plaintiff,
v.
COMMONWEALTH OF PENNSYLVANIA, OFFICE OF THE ATTORNEY GENERAL and KATHLEEN KANE, individually and in her official capacity, Defendants.

          MEMORANDUM

          SYLVIA H. RAMBO United States District Judge

         In this employment action, Plaintiff alleges, inter alia, that Defendants violated the Pennsylvania Whistleblower Act and Family Medical Leave Act by placing him on involuntary paid administrative leave when he attempted to return to work after taking permitted medical leave. Presently before the court is Defendants' motion to dismiss Count II of the amended complaint, which alleges that Defendant Kathleen Kane illegally retaliated against Plaintiff in violation of the Family Medical Leave Act. For the reasons stated herein, the motion will be granted. In addition, because the only remaining claim in the amended complaint arises under Pennsylvania law, the court declines to exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367(c)(3) and will remand this case to the Commonwealth Court of Pennsylvania.

         I. Background

         A. Facts

         Plaintiff has been employed by Defendant Commonwealth of Pennsylvania (“the Commonwealth”) as a Special Agent in Charge of the Bureau of Criminal Investigations for the Office of the Attorney General of Pennsylvania since approximately January 2013. (Doc. 13, ¶¶ 9, 11.) During his employment with the Commonwealth, Defendant Kathleen Kane (“Defendant Kane, ” and, together with the Commonwealth, “Defendants”) served as the Attorney General. (Id. at ¶ 9.) Prior to accepting his position with Defendant Kane's administration, Plaintiff worked for the Federal Bureau of Investigations (“FBI”). (Id. at ¶ 16.) Within a few months of working for Defendants, Plaintiff discovered that Defendant Kane was suspicious of him, and she accused him of being a “mole for the FBI” and of monitoring her activities, even though such was not true. (Id. at ¶¶ 15-17.)

         In early 2014, Defendant Kane cancelled a planned sting operation that was based on an investigation into public corruption of certain Philadelphia government officials and state legislatures on the basis that the sting operation was racially motivated, despite evidence of wrongdoing, which Plaintiff alleges was done in order to maintain and gain political allies for Defendant Kane. (Id. at ¶¶ 18-21.) Plaintiff wrote a memo to Defendant Kane in April 2014, stating that her comments regarding the sting operation were untrue. (Id. at ¶ 25.) Despite Defendant Kane's refusal to bring charges based on the evidence collected in the investigation leading up to the sting operation, the Philadelphia District Attorney reviewed the evidence and subsequently approved the prosecution of several individuals. (Id. at ¶ 26.) In November 2014, Plaintiff met with a Montgomery County Special Prosecutor regarding an investigation into Defendant Kane's administration related to potential criminal charges against Defendant Kane, and Plaintiff subsequently testified before a grand jury in December 2014 and January 2015. (Id. at ¶¶ 28-30, 32.)

         On April 16, 2015, an undercover agent involved in the sting operation filed a defamation suit against both Defendant Kane and Plaintiff related to Defendant Kane's statements that the operation involved racial targeting, statements that Defendant Kane attributed to Plaintiff. (Id. at ¶ 34.) Plaintiff requested separate legal counsel for the suit, stating that his interests were not aligned with Defendant Kane's and that he intended to expose her false statements. (Id. at ¶ 35.) In May 2015, a newspaper article was published which stated that Plaintiff had reported the falsity of Defendant Kane's assertions about the sting operation, and Plaintiff alleges that Defendant Kane received discovery shortly thereafter that both identified Plaintiff as a witness in a criminal trial against her related to the sting operation and detailed his grand jury testimony. (Id. at ¶¶ 37-38.)

         On June 19, 2015, Defendant Kane directed Plaintiff to visit her at her residence after business hours and instructed him to leave his phone on a table before they spoke. (Id. at ¶¶ 39-40.) Plaintiff alleges that Defendant Kane told him that he was a cancer to the Office of the Attorney General, was the leak for all negative press about the office, and threatened that his reputation could be ruined and his family lost if he did not resign from his position. (Id. at ¶¶ 41-42.) Plaintiff refused to resign, and again testified before a grand jury for the Philadelphia District Attorney's office related to the sting operation and Defendant Kane's efforts to threaten and intimidate potential witnesses. (Id. at ¶¶ 43-44.)

         On June 22, 2015, Plaintiff applied for a twelve-week leave of absence under the Family Medical Leave Act (“FMLA”) for personal health issues, which Defendants approved. (Id. at ¶¶ 45-46.) After the expiration of the FMLA leave period, on or about October 22, 2015, Plaintiff attempted to return to work, but was told by Defendants that he would first need a fitness for duty evaluation. (Id. at ¶ 48.) Plaintiff alleges that he agreed to the evaluation, but Defendants never responded to his inquiries regarding what exactly he needed to do to complete an evaluation, and that Defendants have since maintained that Plaintiff is on an administrative leave, but have given no reason for the administrative leave or a date upon which it will expire. (Id. at ¶¶ 48, 50.) As of the filing of the amended complaint, Plaintiff had been on administrative leave for approximately eight months and counting, despite having been previously medically cleared to return to work. (Id. at ¶¶ 49, 55, 72.) Plaintiff alleges that the administrative leave and refusal to allow him to return to work is in retaliation for him exercising his right to FMLA leave and for testifying against Defendant Kane regarding the sting operation. (Id. at ¶¶ 56, 58, 60-61.)

         B. Procedural History

         Plaintiff initiated this action by filing a complaint against Defendants in the Commonwealth Court of Pennsylvania on April 4, 2016. (Doc. 2.) Defendants removed the action to this court on May 3, 2016 (Doc. 1), and subsequently filed a motion to dismiss the complaint for failure to state a claim on June 9, 2016 (Doc. 11.) Plaintiff filed an amended complaint on June 23, 2016 (Doc. 13), and Defendants moved to dismiss Plaintiffs FMLA retaliation claim contained in Count II of the amended complaint on July 8, 2016 (Doc. 17.) The motion has been fully briefed (Docs. 18-20) and is ripe for disposition.

         II. Legal Standard

         Defendants have moved to dismiss Count II of the amended complaint for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).[1] A motion to dismiss pursuant to Rule 12(b)(6) tests the sufficiency of the complaint against the pleading requirements of Rule 8(a), which requires that a complaint set forth “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). For a complaint to survive dismissal it “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. v. Twombly, 550 U.S. 544, 570 (2007)). Thus, the 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.” United States v. Pennsylvania, 110 F.Supp.3d 544, 548 (M.D. Pa. 2015) (quoting Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012)); see also Fed. R. Civ. P. 12(b)(6).

         III. ...


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