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Wevodau v. Commonwealth

United States District Court, M.D. Pennsylvania

September 18, 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 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.

         I. Background

         The 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.

         A. Relevant Factual Background and Procedural History

         Plaintiff, 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.

         In 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.

         On June 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 potential witnesses.

         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. 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.

         On 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.

         II. Legal Standard

         Plaintiff 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. 2011)).

         III. Discussion

         Plaintiff argues that the court made an error of law in dismissing Plaintiffs FMLA retaliation claim with prejudice, and seeks leave to amend.[1] 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 ...


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