United States District Court, M.D. Pennsylvania
H. RAMBO, UNITED STATES DISTRICT JUDGE
employment action, Plaintiff alleges that Defendants
retaliated against him in violation of 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. On
January 4, 2017, the court dismissed Plaintiff's claim
under the Family Medical Leave Act and remanded this matter
to the Commonwealth Court of Pennsylvania. Presently before
the court is Plaintiff's motion for reconsideration as to
the dismissal of his Family Medical Leave Act claim and
request for leave to amend the complaint. (Doc. 23.) For the
following reasons, Plaintiff's motion will be denied.
court writes primarily for the parties, and because they are
familiar with the facts as discussed in the court's
memorandum and order of January 4, 2017, see Wevodau v.
Commonwealth, Civ. No. 16-cv-0743, 2017 WL 36395 (M.D.
Pa. Jan. 4, 2017), the court will set forth only the factual
and procedural history pertinent to the instant motion.
Relevant Factual Background and Procedural History
a former FBI agent, began working for 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 in
approximately January 2013. During his employment with the
Commonwealth, Defendant Kathleen Kane (“Defendant Kane,
” and, together with the Commonwealth,
“Defendants”) served as the Attorney General.
According to the amended complaint, within a few months of
working for Defendants, Defendant Kane accused Plaintiff of
being a “mole for the FBI” and of monitoring her
activities, even though such was not true.
November 2014, Plaintiff met with a Montgomery County Special
Prosecutor regarding an investigation into Defendant Kane
regarding her refusal to carry out a sting operation or
pursue corruption charges against several Philadelphia
government officials and state legislatures, and Plaintiff
later testified before a grand jury. On April 16, 2015, an
undercover agent involved in the attempted 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. 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. 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.
19, 2015, Defendant Kane directed Plaintiff to visit her at
her residence after business hours. 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. 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
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. 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. Plaintiff alleges
that he agreed to the evaluation, but Defendants never
responded to his inquiries regarding what exactly he needed
to do to complete it, 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. 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. Plaintiff
alleges that Defendants placed him on administrative leave
and refused to allow him to return to work in retaliation for
him exercising his right to FMLA leave and for testifying
against Defendant Kane regarding the sting operation.
February 10, 2017, the court granted Defendants' motion
to dismiss Plaintiffs FMLA claim, finding that the complaint
failed to state sufficient facts to show a plausible claim
for relief. (See Docs. 28 & 29.) Presently
before the court is Plaintiffs motion to reconsider and for
leave to file an amended complaint (Doc. 30), which has been
fully briefed (Docs. 31-33) and is ripe for disposition.
has moved for the court to reconsider its decision to dismiss
Plaintiffs FMLA claim with prejudice. While the motion is
titled as one for reconsideration, in substance it is a
motion seeking leave to file an amended complaint. Generally,
leave to amend a pleading pursuant to Federal Rule of Civil
Procedure 15(a) should be “freely give[n] when justice
so requires.” Fed.R.Civ.P. 15(a)(2). However, a court
need not grant leave to amend in the presence of bad faith,
undue delay, undue prejudice, or futility. See Lorenz v.
CSX Corp., 1 F.3d 1406, 1414 (3d Cir. 1993). Where
“denial of leave to amend is based on ‘futility,
' it essentially means that a ‘complaint, as
amended, would fail to state a claim' for relief.”
Dombroski v. J.P. Morgan Chase Bank, N.A., 513 F.
App'x 212, 215 n.5 (3d Cir. 2013) (quoting Burtch v.
Milberg Factors, Inc., 662 F.3d 212, 231 (3d Cir.
argues that the court made an error of law in dismissing
Plaintiffs FMLA retaliation claim with prejudice, and seeks
leave to amend. Defendants contend that Plaintiff has
already amended his complaint once, could have amended it a
second time in response to their previous motion to dismiss,
and therefore allowing him to amend at this stage would be
the result of undue delay. Defendants further contend that
amendment would be futile because Plaintiff has once again
failed to plead ...