TATE v. PHILLY SHIPYARD, INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

ROBERT TATE : CIVIL ACTION

:

v. :

:

PHILLY SHIPYARD, INC., et al. : NO. 19-5076

MEMORANDUM

Bartle, J. April 16, 2020

Plaintiff Robert Tate (“Tate”) brings this action

under the Family and Medical Leave Act of 1993 (“FMLA”), 29

U.S.C. § 2601, et seq., against defendants Philly Shipyard,

Inc., Greg Tucker, and Keith Russel (the “Shipyard Defendants”),

as well as against defendants Signal Mutual Indemnity

Association, Inc. and Karla Carney (the “Signal Defendants”).

Plaintiff also alleges state law claims of negligence and

illegal practice of law. Before the court are the separate

motions of the Shipyard Defendants and the Signal Defendants to

dismiss the complaint pursuant to Rule 12(b)(6) of the Federal

Rules of Civil Procedure on the grounds that plaintiff has

failed to state any claims for relief.

I

When deciding a Rule 12(b)(6) motion, the court must

accept as true all factual allegations in the complaint and draw

all inferences in the light most favorable to the plaintiff.

See Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir.

2008); Umland v. PLANCO Fin. Servs., Inc., 542 F.3d 59, 64

(3d Cir. 2008). We must then determine whether the pleading at

issue “contain[s] 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) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claimant must do

more than raise a “mere possibility of misconduct.” Fowler v.

UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009) (quoting Iqbal,

556 U.S. at 679). Under this standard, “[t]hreadbare recitals

of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

On a motion under Rule 12(b)(6), the court may consider

“allegations contained in the complaint, exhibits attached to

the complaint, and matters of public record.” Pension Benefit

Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196

(3d Cir. 1993) (citing 5A Charles Allen Wright & Arthur R.

Miller, Federal Practice and Procedure § 1357 (2d ed. 1990)).

II

The factual allegations in the complaint are taken as

true for present purposes. Tate was injured on November 3, 2016

while working for Philly Shipyard, Inc. He was throwing scrap

metal into a recycling bin at the time.1 His employer’s safety

1. Tate does not provide his job title or responsibilities in

the complaint.

coordinator sent him to the emergency room that night and for

physical therapy the following day. The physical therapist

placed Tate on modified duty with no lifting more than 20 pounds

and no crawling or climbing ladders. Another healthcare

provider modified these restrictions on December 12, 2016 and

recommended Tate avoid “repetitive, bending, stooping, kneeling,

squatting, [and] climbing below waist level.”

Despite plaintiff’s request for light or modified jobs

and the work limitations directed by the healthcare providers,

“none of the Defendants ever discussed light or modified jobs

and remained silent to his suggestions.” In addition, the

Signal Defendants “failed to notify [Philly Shipyard, Inc.] of

the medical necessity of providing the light or modified job

duty for Plaintiff.”2

At some point Tate filed a grievance with his union,

after which he alleges he was harassed. Tate was “placed on

intermittent FMLA leave” on July 26, 2017 and “forced out of

work” in connection with his injury on November 1, 2017.3

2. The complaint never explains the relationship between the

Shipyard Defendants and the Signal Defendants.

3. Whether Philly Shipyard, Inc. terminated Tate’s employment

is not stated in the complaint.

The complaint further alleges that the Signal

Defendants “took on the duty to provide the medical treatment

for [plaintiff] and exclusively controlled access of that

medical treatment including the available providers,” and “knew

or should have known of the work limitations imposed upon

[plaintiff] by his medical providers.” According to Tate, the

Signal Defendants told him that the work limitations would be

provided but they were not. The Signal Defendants also failed

to advise the Shipyard Defendants of the work limitations.

Finally, Tate alleges that defendant Carney counselled

him about his duties and obligations under the Longshore and

Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C. §§ 928, et

seq., and never advised him about the necessity for preapproval

to “obtain further medical treatment” or suggested he obtain

legal advice. Carney further did not advocate for light duty

for Tate and in the interest of the defendants denied him

medical treatment as well as a workers’ compensation payment.

III

Employers subject to the requirements of the FMLA must

provide up to 12 weeks of leave during any 12-month period for

eligible employees who suffer a serious health condition that

renders them unable to perform their job functions. 29 U.S.C.

§ 2612(a)(1)(D). Employers are prohibited from discriminating

against, interfering with, retaliating against or discharging

employees for having exercised or attempted to exercise their

rights under the FMLA. 29 U.S.C. § 2615. The FMLA also

protects employees who oppose or complain of conduct made

unlawful by it. 29 CFR § 825.220(e). The FMLA provides

employees with a private right of action against employers who

violate the FMLA. See 29 U.S.C. § 2617.

Claims brought under the FMLA take two general forms.

Employees may bring claims against employers who interfere with

their right to take leave. See Karaffa v. Montgomery Twp.,

Civil Action No. 12-1184, 2013 WL 1157626, at *4 (E.D. Pa. Mar.

21, 2013). Employees may also bring claims against employers

who retaliate or discriminate4 against them for taking leave.

Id. at 6.

IV

In Counts I, II, and III of the complaint Tate brings

claims under the FMLA against all the defendants for

interference, retaliation, and discrimination, respectively.

Each of the individual defendants and Signal Mutual Indemnity

Association, Inc. contend Tate has not pleaded they are his

4. Tate brings FMLA claims for retaliation and discrimination

under separate counts. These claims are both assessed through

the same lens of employment discrimination. See Lichtenstein v.

Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 302 (3d Cir. 2012).

Tate’s separate claims for retaliation and discrimination will

be addressed together. See supra Section VI.

“employer” under the FMLA and therefore has failed to state an

FMLA claim against them.

Employers are not the only parties who may be held

liable under the FMLA. Subject to limitations not at issue

here, “any person . . . who acts, directly or indirectly, in the

interest of an employer to any of the employees of such

employer” may also be subject to suit. 29 U.S.C.

§ 2611(4)(A)(ii)(I); see also 29 C.F.R. § 825.104(a) and (d).

Accordingly, suit may be brought against individual defendants

and separate entities which act on behalf of an employer towards

its employees. Hodgson v. Arnheim & Neely, Inc., 444 F.2d 609,

611-12 (3d Cir. 1971); see also 29 U.S.C. §§ 2611(8) and 203.

Whether such a defendant may be subject to suit under the FMLA

depends not on “technical concepts of the employment

relationship,” but “the totality of the circumstances.” See

Haybarger v. Lawrence Cty. Adult Prob. & Parole, 667 F.3d 408,

418 (3d Cir. 2012). Critical to the analysis is whether a

defendant “exercises supervisory authority over the complaining

employee and was responsible in whole or part for the alleged

violation while acting in the employer’s interest.” Id. at 417.

Tate alleges in the complaint that the Signal

Defendants “took on the duty to provide the medical treatment

for [plaintiff] and exclusively controlled access of that

medical treatment including the available providers,” and “knew

or should have known of the work limitations imposed upon

[plaintiff] by his medical providers.” Neither this nor any

other allegation in the complaint indicates whether the Signal

Defendants exercised supervisory authority over Tate or were

responsible for any decision to terminate him. Moreover,

reviewing the complaint as a whole does not permit these

inferences. Tate has not pleaded sufficient factual matter to

state a plausible FMLA claim against Signal Mutual Indemnity

Association, Inc. or Karla Carney.

Tate’s only allegation as to individual defendants

Greg Tucker and Keith Russel is that they were, at all relevant

times, servants, agents, or employees on behalf of Philly

Shipyard, Inc. The complaint is similarly insufficient to

support an inference that these defendants exercised supervisory

authority over Tate or were responsible for any termination.

For these reasons, we will dismiss Counts I, II, and

III of the complaint as they relate to Signal Mutual Indemnity

Association, Inc. and individual defendants Karla Carney, Greg

Tucker, and Keith Russel.

V

In Count I of the complaint, Tate brings an

interference claim against Philly Shipyard, Inc. for refusing to

provide modified duty work thereby forcing him to take FMLA

leave.5

To succeed on an interference claim under the FMLA, a

plaintiff must establish: “(1) he or she was an eligible

employee under the FMLA; (2) the defendant was an employer

subject to the FMLA’s requirements; (3) the plaintiff was

entitled to FMLA leave; (4) the plaintiff gave notice to the

defendant of his or her intention to take FMLA leave; and

(5) the plaintiff was denied benefits to which he or she was

entitled under the FMLA.” Capps v. Mondelez Glob., LLC,

847 F.3d 144, 155 (3d Cir. 2017).

Unlike the Americans with Disabilities Act, the FMLA

does not entitle an employee to workplace accommodations.

Thomas v. St. Mary Med. Ctr., 22 F. Supp. 3d 459, 474 (E.D. Pa.

2014). To the contrary, “the leave provisions of the [FMLA] are

wholly distinct from the reasonable accommodation obligations of

employers covered under the [ADA].” 29 C.F.R. § 825.702(a).

Workplace accommodations are not a benefit to which Tate is

entitled under the FMLA. Tate’s FMLA claim that Philly

5. Plaintiff also includes the other defendants under Counts

I, II, and III. Since the other defendants have been dismissed

due to Tate’s failure to indicate whether they exercised

supervisory authority over him, we limit the analyses to the

motion of Philly Shipyard, Inc. to dismiss these counts.

Shipyard, Inc. improperly refused to provide such accommodations

therefore fails as a matter of law.

In Count I, Tate also appears to bring a claim against

Philly Shipyard, Inc. for forcing him to take FMLA leave. Our

Court of Appeals has yet to recognize an involuntary leave claim

under the FMLA. Keyhani v. Trs. of Univ. of Pa., Civil Action

No. 173092, 2019 WL 2568279, at *7 (E.D. Pa. June 21, 2019). In

any event, even where a court has recognized a cause of action

for involuntary leave, it has done so only where an employee is

forced to take FMLA leave despite not having a serious health

condition. See Wysong v. Dow Chems. Co., 503 F.3d 441, 449 (6th

Cir. 2007). Tate alleges he was placed on intermittent FMLA

leave because of medical issues caused by his injury.

For these reasons, we will also dismiss Count I of the

complaint as it relates to Philly Shipyard, Inc.

VI

Tate brings separate FMLA claims for retaliation and

discrimination against Philly Shipyard, Inc. in Counts II and

III of the complaint. He asserts it forced him out of work

after he took FMLA leave and filed his union grievance. We

address Counts II and III together. See supra n. 4.

To succeed on a retaliation claim under the FMLA, a

plaintiff must establish that he or she: (1) “invoked [the]

right to FMLA-qualifying leave”; (2) “suffered an adverse

employment decision”; and (3) “the adverse action was causally

related to [the] invocation of rights.” Lichtenstein v. Univ.

of Pittsburgh Med. Ctr., 691 F.3d 294, 302 (3d Cir. 2012).

Retaliating against an employee for complaining of conduct made

unlawful by the FMLA is actionable regardless of whether the

conduct complained of is prohibited by the FMLA. An employee

need only “reasonably believe [the conduct] to be a violation of

the [FMLA].” 29 CFR § 825.220(e).

Tate was injured on November 3, 2016. Sometime after,

he filed a union grievance in connection with the refusal of

Philly Shipyard, Inc. to provide him modified work duty. Tate

alleges he was harassed for filing the grievance. He took FMLA

leave on July 26, 2017.6 His employment ended on November 1,

2017. The complaint does not otherwise specify the conduct

suggesting a causal connection between the end of Tate’s

employment and his FMLA leave or the union grievance.

Temporal proximity between an employee’s termination

and a protected activity may permit an inference of causation in

the absence of specific conduct. See Lichtenstein, 691 F.3d at

307. Moreover, the passage of time is “not legally conclusive

proof against retaliation.” Krouse v. Am. Sterilizer Co., 126

6. Tate does not state when the leave ended.

F.3d 494, 503 (3d Cir. 1997). At this stage, the allegation of

temporal proximity is sufficient.

For these reasons, we will deny the motion of Philly

Shipyard, Inc. to dismiss Counts II and III of the complaint.

VII

In Count IV, Tate brings a negligence claim under

Pennsylvania law against the Signal Defendants. Specifically,

he claims that the Signal Defendants were negligent in not

notifying the Shipyard Defendants of his need for workplace

accommodations which resulted in him being forced out of work.

To establish a claim for negligence under Pennsylvania

law, a claimant must show: (1) “the defendant owed a duty of

care to the plaintiff”; (2) “that duty was breached”; (3) “the

breach resulted in the plaintiff’s injury”; and (4) “the

plaintiff suffered an actual loss or damages.” Merlini ex rel.

Merlini v. Gallitzin Water Auth., 980 A.2d 502, 506 (Pa. 2009).

Tate fails to plead any plausible basis to support a claim that

the Signal Defendants assumed a duty to report any work

restrictions to his employer. He does not state a claim for

negligence. Count IV will be dismissed.

VIII

Tate claims in Count V of the complaint that defendant

Karla Carney – “a servant, agent or employee on behalf of”

Signal Mutual Indemnity Association, Inc. - is liable for

damages to him for the “illegal practice of law.”7

Specifically, Tate alleges that defendant Carney:

(1) “counseled [him] of his duties and obligations under the

Longshore and Harbor Workers’ Compensation Act (LHWCA), 33

U.S.C. §§ 928 et seq. but only for the benefit of Defendants

SIGNAL and Philly Shipyard”; (2) “never suggested he seek legal

advice”; (3) “did not notify [him] that pre-approval [for

further medical treatment] was necessary”; (4) refused to

“discuss [a] change of his physician”; (5) “did not advocate for

the light/modified work duty”; (6) “denied medical treatment”;

and (7) “denied [his] workers’ compensation payment.” Carney

contends that there is no private cause of action under

Pennsylvania law for the recovery of damages which result from

the illegal practice of law.

The unauthorized practice of law is a criminal

misdemeanor in Pennsylvania. See 42 Pa.C.S. § 2524(a).8

7. The complaint does not specifically identify the position

Carney had with Signal Mutual Indemnity Association, Inc.

8. 42 Pa.C.S. § 2524(a) provides:

[A]ny person . . . who within this

Commonwealth shall practice law, or who

shall hold himself out to the public as

being entitled to practice law, or use or

advertise the title of lawyer, attorney at

law, attorney and counselor at law,

counselor, or the equivalent in any

Injunctive relief may also be awarded against a party engaged in

the unauthorized practice of law. 42 Pa.C.S. § 2524(c).9 The

unauthorized practice of law is also a violation of the

Pennsylvania Unfair Trade Practices and Consumer Protection Law

(“UTPCPL”), 73 P.S. § 201-1, et seq., which provides an action

for damages for its violation. Id.; 73 P.S. § 201-9.2.

Therefore, it appears that an action for damages which result

from the unauthorized practice of law does exist under

Pennsylvania law.

Under the Constitution of Pennsylvania, the courts

have the exclusive authority to regulate and determine what

constitutes the practice of law. Harkness v. Unemployment Comp.

Bd. of Review, 920 A.2d 162, 166 (Pa. 2007). What constitutes

the practice of law is not capable of a comprehensive

definition. Id. For this reason, Pennsylvania courts do not

language, in such a manner as to convey the

impression that he is a practitioner of the

law of any jurisdiction, without being an

attorney at law . . . commits a misdemeanor

of the third degree upon a first violation.

9. 42 Pa.C.S. § 2524(c) provides:

In addition to criminal prosecution,

unauthorized practice of law may be enjoined

in any county court of common pleas having

personal jurisdiction over the defendant.

The party obtaining such an injunction may

be awarded costs and expenses incurred,

including reasonable attorney fees, against

the enjoined party.

endeavor to apply broad rules and instead determine what

constitutes the practice of law on a case-by-case basis. Id.

Consideration of the public interest is paramount to

this inquiry. Id. at 166. The Pennsylvania Supreme Court has

considered two related aspects of the public interest to

determine what constitutes the practice of law: “protection of

the public and prudent regulation so as not to overburden the

public good.” Id. The Pennsylvania Supreme Court has

explained:

The threads of legal consequences often

weave their way through even casual

contemporary interactions. There are times,

of course, when it is clearly within the ken

of lay persons to appreciate the legal

problems and consequences involved in a

given situation and the factors which should

influence necessary decisions. No public

interest would be advanced by requiring

these lay judgments to be made exclusively

by lawyers. Where, however, a judgment

requires the abstract understanding of legal

principles and a refined skill for their

concrete application, the exercise of legal

judgment is called for. . . . Each given

case must turn on a careful analysis of the

particular judgment involved and the

expertise which must be brought to bear on

its exercise.

Dauphin Cty. Bar Ass’n v. Mazzacaro, 351 A.2d 229, 233 (Pa.

1976).

It is clear that four of the seven allegations recited

above have nothing whatsoever to do with the practice of law.

Four of the allegations involve things that Carney, a layperson,

did not do. She never suggested that plaintiff seek legal

advice, she did not notify him about certain preapprovals needed

for further medical treatment, she refused to discuss a change

of the physician, and she did not advocate for him with respect

to light duty. It is not plausible that these inactions or

omissions of Carney constitute the illegal practice of law.

Plaintiff also asserts that as a representative of an

insurance company, Carney engaged in the illegal practice of law

when she denied him a workers’ compensation payment and medical

treatment. If plaintiff was entitled to the payment or the

medical treatment, Carney may have breached a contract or

committed some other wrong, but this conduct cannot by any

stretch of the imagination be deemed the illegal practice of

law.

This leaves the allegation that Carney improperly

“counseled [plaintiff] of his duties and obligations under the

Longshore and Harbor Workers’ Compensation Act” not for his

benefit but the benefit of the defendants. In this regard,

plaintiff’s pleading is sufficient to withstand a motion to

dismiss. Whether plaintiff will be able to prove illegal

practice of law must await another day.