# JACOBS v. CITY OF PHILADELPHIA

> District Court, E.D. Pennsylvania · January 20, 2021

URL: https://www.frixlaw.com/law-library/cases/10400332

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** January 20, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DERRICK JACOBS,
Plaintiff,
CIVIL ACTION
v. NO. 19-4615
CITY OF PHILADELPHIA, et al.,
Defendants.
OPINION
Slomsky, J. January 20, 2021
I. INTRODUCTION
Pro se Plaintiff Derrick Jacobs brings this suit against Defendants City of Philadelphia,
City of Philadelphia Police Department, Christine Coulter, and Dennis Wilson (collectively
“Defendants”), alleging violations of the Fair Labor Standards Act (“FLSA”) and the Pennsylvania
Wage Payment Collection Law (“PWPCL”). In an Amended Complaint, Plaintiff alleges that he
is entitled to overtime pay for time spent in “on-call” status and that he was retaliated against by
Defendants after he filed his original Complaint.

Before the Court is Defendants’ Motion to Dismiss for failure to state a claim (Doc. No.
13). Defendants argue that Plaintiff’s claims should be dismissed because he fails to allege that
his time spent on-call is compensable under the FLSA; he has not alleged a sufficient temporal
connection between his protected activity and the alleged retaliatory acts to support a FLSA
retaliation claim; and he cannot state a claim under the PWPCL against Defendants.
The Motion is now ripe for disposition. For the reasons stated infra, Defendants’ Motion
to Dismiss will be granted in part and denied in part.
II. BACKGROUND
Plaintiff Derrick Jacobs has been employed by Defendant City of Philadelphia as a
Detective in the Officer Involved Shooting Investigation (“OISI”) Unit since January 1, 2017. (See
Doc. No. 12 ¶¶ 2, 9.) The OISI Unit investigates all officer-involved shootings in the City and
County of Philadelphia that concern Philadelphia Police Officers, Sheriffs, and Correctional

Officers, as well as law enforcement personnel from other jurisdictions. (See id. ¶ 2.) As a
Detective in this Unit, Plaintiff’s regular work schedule is 10:00 a.m. to 6:00 p.m., Monday through
Friday, and apart from this schedule he “is required to be in on-call status from 6:00 PM to 10:00
AM Monday through Friday and for the full 24 hours each on Saturday and Sunday.” (Id. ¶ 10.)
On October 4, 2019, Plaintiff, acting pro se, filed his initial Complaint alleging violations
of the FLSA and state law (see Doc. No. 1 at 3), and on February 5, 2020 Plaintiff filed a First
Amended Complaint (“FAC”). (Doc. No. 12.) In the FAC, Plaintiff pleads in three Counts: (1) a
FLSA violation for failure to pay overtime, (2) a FLSA retaliation claim, and (3) a PWPCL
violation. (See id. at 5-6.)
In Count 1, Plaintiff alleges that his time spent in “on-call” status is compensable under the

FLSA because “[t]he requirements of the OISI unit for an officer in on call status are so restrictive”
that it impinges on Plaintiff’s personal time and the activities he can engage in while on-call. (Id.
¶ 25.) While on-call, Plaintiff alleges the following:
[H]e cannot be far from his office as he must be able to promptly respond to a
shooting. Plaintiff is not permitted to drink alcoholic beverages while on call. As
such Plaintiff’s time while in on call status severely limits his activities. He cannot
socialize with family and friends who reside too far from his home. He cannot
leave the state and go down the Jersey shore. He cannot be in any geographic area
that would make it too cumbersome to return to his office in a timely fashion.
Plaintiff has been called in to investigate shootings while in on call status.

(Id. ¶ 11.) By Plaintiff’s calculation, Defendants owe him $793,000 for all time spent in on-call
status between January 1, 2017 and December 31, 2018. (Id. ¶¶ 17-18.) Plaintiff also points to
Philadelphia’s Civil Service Regulation 6.114-7-1 to further justify why Defendants must
compensate him for time spent on-call.1 (Id. ¶ 12.)
In Count 2, Plaintiff alleges that Defendants also violated the FLSA anti-retaliation
provision when, after they learned about his Complaint filed in October 2019, Plaintiff
“experienced retaliation in the form of removal from being an active investigator (being relegated

to desk work only), being removed from any contact with the District Attorney’s office (any
questions about his files are directed to another officer), and being threatened with termination.”
(Id. ¶ 19.) Since his removal as an active investigator, Plaintiff avers that he now earns less money
since he no longer investigates shootings and “no longer earns overtime for testifying in court for
cases he investigates.” (Id. ¶ 20.) Additionally, Plaintiff notes that Defendant Coulter changed
Police Directive rules, expanding the OISI Unit’s responsibilities from investigating officer
involved shootings to investigating “ALL in custody deaths, suicides and attempted suicides.”2
(Id. ¶ 22) (emphasis in original).

1 Philadelphia Civil Service Regulation 6.114-7-1 reads as follows:

On-Call Time. Employees in positions below the rank of Prosecution Detective
Sergeant, who are required to be available by remaining at work or by remaining at
home subject to call for work at times other than during normal working hours, in
accordance with a pre-arranged authorized schedule, shall be in an on-call capacity.
All hours served in such a capacity will be compensated as regular hours of work.

Employees serving in an on-call capacity shall be compensated at one and one-half
(1-1/2) times the regular rate of pay for all hours served in excess of the regular
forty (40) hour work week.

City of Philadelphia Officer of Human Resources, Philadelphia Civil Service Regulations,
https://www.phila.gov/personnel/webregs/reg06.htm (last updated Oct. 13, 2020).

2 Plaintiff avers that, as to Count 1 of the FAC, this change to the Police Directive rules “further
restrict[ed] [his] activities in on call status.” (Doc. No. 12 ¶ 22.)
In Count 3, Plaintiff alleges that Defendants violated the PWPCL for failing to pay him
overtime for time spent on-call. (Id. ¶¶ 31-32.) Because the PWPCL defines wages as “all earnings
of an employee, regardless of whether determined on time, task, piece, commission or other
method of calculation[,]” and because “Plaintiff’s wages remain unpaid for more than sixty (60)
days beyond the date making such wages payable[] and no good faith contest or dispute of any

wage claim exists,” Plaintiff claims Defendants are required to pay his on-call overtime wages as
well as “liquidated damages [in] an amount equal to 25 percent of the total wages due and owing.”
(Id. ¶¶ 30-32.)
On February 20, 2020, Defendants filed the instant Motion to Dismiss under Federal Rule
of Civil Procedure 12(b)(6) for failure to state a claim. (Doc. No. 13.) In the Motion, Defendants
argue that Plaintiff fails to plead sufficient facts to prove that his on-call time is compensable under
the FLSA. (See id. at 5.) Pointing to a four-factor test established by the Third Circuit in Ingram
v. County Of Bucks, 144 F.3d 265 (3d Cir. 1998) to determine whether on-call time is compensable,
Defendants argue that Plaintiff cannot “succeed under the Third Circuit’s test[]” as he has not

alleged facts proving “that his personal activities were so restricted as to render his on-call time
compensable[.]” (Id. at 4-5.) Defendants also assert that Plaintiff failed to plead sufficient facts
for a FLSA retaliation claim because he failed to show that “the temporal proximity between his
protected activity”—filing the complaint—“and the retaliatory actions was unusually suggestive.”
(Id. at 7.) “In providing only an order of events without a specific timeline of those events, Plaintiff
perpetuates a logical fallacy” which Defendants contend “is insufficient to state a plausible claim
of relief for retaliation.” (Id. at 8.)
Lastly, Defendants argue that Plaintiff cannot bring a PWPCL claim against them because
the City of Philadelphia is a municipal corporation, and municipal corporations are not included
in the definition of “employer” under the PWPCL.3 (See id. at 6.) “Plaintiff admits that he is
employed by the City of Philadelphia[]” and “does not allege that the individual defendants
employed him[;]” therefore, Defendants contend that Count 3 should be dismissed because the
PWPCL does not apply to the City of Philadelphia. (Id.)
On March 18, 2020, Plaintiff filed a Response in Opposition to Defendants’ Motion in

which he maintains he pled sufficient facts to support his claims under the FLSA and the PWPCL.
(Doc. No. 14 at 7-9.) Regarding Count 1, Plaintiff realleges that Defendants “omitted the material
fact” that Philadelphia Civil Service Regulations mandate “overtime pay while in on-call status.”
(Id. at 2 ¶ 3.) As to Count 2, Plaintiff avers that, even though he “did not provide the exact date of
the retaliatory action by [Defendants] against him,” the FAC “clearly states that action was taken
against him once they learned of the filed complaint.” (Id. at 4 ¶¶ 10-11.)
Regarding Count 3, Plaintiff alleges that the City of Philadelphia is an employer under the
PWPCL because 1 Pa.C.S. § 1991 of the Statutory Construction Act defines “person” as “a
corporation, partnership, limited liability company, business trust, other association, government

entity (other than the Commonwealth), estate, trust, foundation or natural person.” (Id. at 8.) Since
the PWPCL was enacted after the Statutory Construction Act and includes persons in their
definition of “employer,” see 43 P.S. § 260.2a, Plaintiff argues that “Defendant City of Philadelphia
is an employer” under the PWPCL. (Id. at 9.)
III. STANDARD OF REVIEW
The motion to dismiss standard under Federal Rule of Civil Procedure 12(b)(6) for failure
to state a claim is set forth in Ashcroft v. Iqbal, 556 U.S. 662 (2009). After Iqbal it is clear that

3 “‘Employer.’ Includes every person, firm, partnership, association, corporation, receiver or
other officer of a court of this Commonwealth and any agent or officer of any of the above-
mentioned classes employing any person in this Commonwealth.” 43 P.S. § 260.2a.
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice” to defeat a Rule 12(b)(6) motion to dismiss. Id. at 678; see also Bell
Atl. Corp. v. Twombly, 550 U.S. 544 (2007). “To survive dismissal, ‘a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’”
Tatis v. Allied Interstate, LLC, 882 F.3d 422, 426 (3d Cir. 2018) (quoting Iqbal, 556 U.S. at 678).

Facial plausibility is “more than a sheer possibility that a defendant has acted unlawfully.” Id.
(quoting Iqbal, 556 U.S. at 678). Instead, “[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.” Id. (quoting Iqbal, 556 U.S. at 678).
Applying the principles of Iqbal and Twombly, the Third Circuit in Santiago v. Warminster
Township, 629 F.3d 121 (3d Cir. 2010), set forth a three-part analysis that a district court in this
Circuit must conduct in evaluating whether allegations in a complaint survive a Rule 12(b)(6)
motion to dismiss:
First, the court must “tak[e] note of the elements a plaintiff must plead to state a
claim.” Second, the court should identify allegations that, “because they are no
more than conclusions, are not entitled to the assumption of truth.” Finally, “where
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. at 130 (quoting Iqbal, 556 U.S. at 675, 679). The 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).
A complaint must do more than allege a plaintiff’s entitlement to relief, it must “show”
such an entitlement with its facts. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir.
2009) (citing Phillips v. County of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008)). “[W]here the
well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,
the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Iqbal,
556 U.S. at 679 (alteration in original) (citation omitted). The “plausibility” determination is a
“context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Id.

IV. ANALYSIS
As noted in the FAC, Plaintiff alleges three claims: (1) a FLSA violation for failure to pay
overtime, (2) a FLSA retaliation claim, and (3) a PWPCL violation. (See Doc. No. 12 at 5-6.) In
their Motion, Defendants seek dismissal of all claims because Plaintiff “failed to provide sufficient
factual support” to sustain Count 1, “failed to allege sufficient temporal proximity between his
protected activity and any retaliatory action” to support Count 2, and because the “City of
Philadelphia is immune from Pennsylvania Wage Payment and Collection Law claims” on Count
3. (Doc. No. 13 at 1.) Each claim is discussed in turn below.
A. Count 1: FLSA Violation for Failure to Pay Overtime While On-Call

“The FLSA establishes federal minimum-wage, maximum-hour, and overtime guarantees
that cannot be modified by contract.” Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 69
(2013). It mandates that employers “pay one and one-half times the employe[e]’s regular wage
for hours worked in excess of forty hours per week[.]” Davis v. Abington Memorial Hosp., 765
F.3d 236, 241 (3d Cir. 2014); 29 U.S.C. § 207(a). If an employer fails to compensate its employee
for working overtime, the employee can recover under the FLSA if he “prove[s] that he worked
overtime hours without compensation, and he must show the amount and extent of his overtime
work as a matter of just and reasonable inference.” Davis, 765 F.3d at 241 (citations omitted).
In Davis v. Abington Memorial Hospital, the Third Circuit Court of Appeals held that “in
order to state a plausible FLSA overtime claim, a plaintiff must sufficiently allege [forty] hours of
work in a given workweek as well as some uncompensated time in excess of the [forty] hours.”
Id. at 242 (alteration in original) (quoting Lundy v. Catholic Health Sys. of Long Island Inc., 711
F.3d 106, 114 (2d Cir. 2013)). The employee need not “identify the exact dates and times that she
worked overtime.” Id. at 243. “[A] plaintiff’s claim that she ‘typically’ worked forty hours per
week, worked extra hours during such a forty-hour week, and was not compensated for extra hours

beyond forty hours he or she worked during one or more of those forty-hour weeks, would suffice.”
Id. (emphasis in original).
Here, Plaintiff alleges that Defendants violated the FLSA by refusing to compensate him
while he was in on-call status. (See Doc. No. 12 ¶¶ 13, 16.) As a Detective in the OISI Unit,
Plaintiff’s “daily work schedule is Monday through Friday from 10:00 AM to 6:00 PM” and he is
“required to be in on-call status from 6:00 PM to 10:00 AM Monday through Friday and for the
full 24 hours each on Saturday and Sunday.” (Id. ¶ 10.) Plaintiff avers that he “regularly works
40 hours per week,” and “has been called in to investigate shootings while in on call status.” (Id.
¶¶ 10-11.) Because “regularly” and “typically” are synonymous, Plaintiff’s allegations regarding

hours worked suffice under Davis.
But Plaintiff does not seek overtime pay only for the times he was “called in to investigate
shootings while in on call status.” (Id. ¶ 11.) Rather, he alleges that he is owed overtime pay for
all time spent in on-call status. (Id. ¶ 17.) He estimates that he is owed roughly $793,000 in
overtime pay for: “16 hours per weekday Monday through Friday of on call overtime from January
1, 2017 to present” and “24 hours per day (Saturday and Sunday) for weekend on call overtime
from January 1, 2017 to present.” (Id. ¶¶ 17-18.)
In Ingram v. County of Bucks, the Third Circuit, in deciding a motion for summary
judgment, addressed whether time spent on-call is compensable under the FLSA. 144 F.3d 265,
268 (3d Cir. 1998). They noted that “[t]he Department of Labor promulgated regulations stating
that on-call time is compensable if the employee . . . finds his time on-call away from the
employer’s premises is so restricted that it interferes with personal pursuits[,]”4 and that the
Department’s regulation of the FLSA is “entitled to substantial deference.” Id. (citations omitted).
The court set forth four factors to consider in determining whether time spent on-call is

compensable: (1) “whether the employee may carry a beeper or leave home;” (2) “the frequency
of calls and the nature of the employer’s demands;” (3) “the employee's ability to maintain a
flexible on-call schedule and switch on-call shifts;” and (4) “whether the employee actually
engaged in personal activities during on-call time.” Id. “If these factors reveal onerous on-call
policies and significant interference with the employee’s personal life,” the factors weigh in favor
of compensation for time spent in on-call status. Id.
Courts in this District that have addressed this issue in deciding a motion to dismiss are
split on whether to apply the Ingram factors at the pleading stage. Two courts that applied Ingram
found the plaintiff did not state a claim. See Everett v. Maternal Child Consortium, LLC, No. 18-

746, 2018 WL 3374763, at *4 (E.D. Pa. July 10, 2018) (“Plaintiff’s single allegation that she

4 The full text of the relevant regulation states:

An employee who is not required to remain on the employer’s premises but is
merely required to leave word at home or with company officials where he or she
may be reached is not working while on call. Time spent at home on call may or
may not be compensable depending on whether the restrictions placed on the
employee preclude using the time for personal pursuits. Where, for example, an
employee in fire protection activities has returned home after the shift, with the
understanding that he or she is expected to return to work in the event of an
emergency in the night, such time spent at home is normally not compensable. On
the other hand, where the conditions placed on the employee’s activities are so
restrictive that the employee cannot use the time effectively for personal pursuits,
such time spent on call is compensable.

29 C.F.R. § 553.221(d).
‘performed compensable on-call work’ is not enough to state a claim under Ingram.”); Parker v.
4247 FX, Inc., No. 16-2710, 2017 WL 2002794, at *7 (E.D. Pa. May 12, 2017) (internal quotations
omitted) (“Plaintiffs’ Amended Complaint includes conclusory allegations, claiming Plaintiff was
‘on call’ literally ‘24/7/365[]’ [and] . . . he was ‘on a short leash,’ perpetually ‘chained to the Desk[]’
. . . however, Plaintiff concedes that he was ‘free to conduct some personal business during his on-

call time.’”). Conversely, two courts that did not apply Ingram held that the plaintiff did state a
plausible claim, explaining that applying Ingram at the pleading stage was premature since
discovery would glean more information on the four factors. See Razak v. Uber Techs., Inc., No.
16-573, 2016 WL 7241795, at *6 (E.D. Pa. Dec. 14, 2016) (“The Ingram factors are relevant to
the Plaintiffs’ burden of proof that they were ‘working’ while on-call. However, the Court will not
require Plaintiffs to plead with any more specificity than they already have . . . . Details . . . will
be learned through discovery.”); Bansept v. G & M Auto., 434 F. Supp. 3d 253, 259 (E.D. Pa.
2020) (“Through discovery, Plaintiff will have the opportunity to establish that his on-call time off
premises is compensable.”).

Here, this Court agrees with Razak and Bansept and finds that Plaintiff has alleged
plausible facts to state a claim under the FLSA. Unlike the plaintiffs in Everett and Parker, Plaintiff
here did not merely plead that he “performed on-call work”5 or was “on call literally 24/7/365.”6
Rather, Plaintiff alleged the following:
When Plaintiff is in on call status, he cannot be far from his office as he must be
able to promptly respond to a shooting. Plaintiff is not permitted to drink alcoholic
beverages while on call. As such Plaintiff’s time while in on call status severely
limits his activities. He cannot socialize with family and friends who reside too far
from his home. He cannot leave the state and go down the Jersey shore. He cannot

5 Everett v. Maternal Child Consortium, LLC, No. 18-746, 2018 WL 3374763, at *4 (E.D. Pa.
July 10, 2018).

6 Parker v. 4247 FX, Inc., No. 16-2710, 2017 WL 2002794, at *7 (E.D. Pa. May 12, 2017).
be in any geographic area that would make it too cumbersome to return to his office
in a timely fashion. Plaintiff has been called in to investigate shootings while in on
call status.

(Doc. No. 12 ¶ 11.) Plaintiff further alleged that, after filing suit, Defendant Coulter changed
Police Directive rules, expanding the OISI Unit’s responsibilities from investigating officer
involved shootings to investigating “ALL in custody deaths, suicides and attempted suicides.” (Id.
¶ 22) (emphasis in original). According to Plaintiff, “[t]his change further restricts [his] activities
in on call status.” (Id.)
At this stage, Plaintiff has pled plausible and sufficient facts that state a claim under the
FLSA because he has provided examples of how the on-call policies interfere with his personal
life. See Ingram, 144 F.3d at 268. Whether Plaintiff can establish that he is entitled to
compensation for all time spent in on-call status is a question to be answered after discovery, at
which point the Ingram factors will be considered in more detail, if a motion for summary
judgment is filed. See Razak, 2016 WL 7241795, at *6; Bansept, 434 F. Supp. 3d at 259.
Therefore, Defendants’ Motion to Dismiss as to Count 1 will be denied.
B. Count 2: FLSA Retaliation
The FLSA forbids employers from “discharg[ing] or in any other manner discriminat[ing]
against any employee because such employee has filed any complaint or instituted or caused to be
instituted any proceeding under or related to” the FLSA. 29 U.S.C. § 215(a)(3). This anti-
retaliatory provision was “designed to encourage employees to report suspected wage and hour
violations by their employers[]” and should be liberally construed. Brock v. Richardson, 812 F.2d
121, 123-24 (3d Cir. 1987).
To set forth a prima facie case of FLSA retaliation, a plaintiff must prove that he (1)
“engaged in protected activity, (2) the employer took an adverse employment action against him,
and (3) there was a causal link between the plaintiff's protected action and employer's adverse
action.” Jones v. Amerihealth Caritas, 95 F. Supp. 3d 807, 814 (E.D. Pa. 2015) (quoting Scholly
v. JMK Plastering, Inc., No. 07–4998, 2008 WL 2579729, at *3 (E.D. Pa. June 25, 2008)). “At
this early stage, however, Plaintiffs need only plead facts sufficient to raise the inference that they
can establish the elements of a prima facie case of retaliation.” Mackereth v. Kooma, Inc., No. 14-

04824, 2015 WL 2337273, at *11 (E.D. Pa. May 14, 2015).
In the FAC, Plaintiff alleges the following:
19. Since filing his original complaint in fall 2019 and his employer learning of his
complaint, Plaintiff has experienced retaliation in the form of removal from being
an active investigator (being relegated to desk work only), being removed from any
contact with the District Attorney's office (any questions about his files are directed
to another officer), and being threatened with termination.

20. It is important to note that when an officer is removed from being an active
investigator, the effect is that the officer now earns less money (by nature, active
investigations require overtime as shootings do not occur only during normally
scheduled work hours), and the investigator no longer earns overtime for testifying
in court for cases he investigates.

21. Deputy Commissioner Dennis Wilson has initiated and ordered a disciplinary
investigation against Derrick Jacobs in retaliation for his filing of federal lawsuits.

22. Commissioner Coulter has retaliated against Derrick Jacobs and the other
members of the Officer Involved Shooting Investigation Unit by having the Police
Directives (rules) changed.

(Doc. No. 12 ¶¶ 19-22.) These allegations raise a plausible inference that Defendants retaliated
against Plaintiff for engaging in protected activity. Not only does Plaintiff plead specific ways in
which he suffered adverse employment action after filing his initial Complaint in 2019, but he also
explains how the adverse actions negatively affected his wages and his responsibilities as a
Detective in the OISI Unit.
To counter these allegations, Defendants argue that Plaintiff fails to state a claim because
he “fails to allege facts from which a factfinder could conclude that the temporal proximity
between his protected activity and the retaliatory actions was unusually suggestive.”7 (Doc. No.
13 at 7.) But as previously noted, at this stage in the proceeding Plaintiff need only plead facts
that raise an inference of retaliation, which he has done. See Mackereth, 2015 WL 2337273, at
*11. As such, Plaintiff has stated a plausible claim of retaliation in violation of the FLSA, and
Defendants’ Motion as to Count 2 will be denied.

7 Defendants also point to five cases in support of their argument that “unusually close temporal
proximity is necessary for [a] factfinder to infer causation in retaliation claims.” (Doc. No. 13
at 7.) These cases are inapposite here because four of the five cases were decided at the
summary judgment stage on a more complete record, not at the motion to dismiss stage. See
LeBoon v. Lancaster Jewish Community Ctr. Ass’n, 503 F.3d 217, 231 (3d Cir. 2007); Thomas
v. Town of Hammonton, 351 F.3d 108, 109-10 (3d Cir. 2003); Kier v. F. Lackland & Sons,
LLC, 72 F. Supp. 3d 597, 619 (E.D. Pa. 2014); Abdul-Latif v. Cnty. of Lancaster, 990 F. Supp.
2d 517, 531 (E.D. Pa. 2014).

The one case that involved a motion to dismiss, Blakney v. City of Phila., 559 F. App’x 183
(3d Cir. 2014), is distinguishable on its facts. In Blakney, two years prior to filing the
retaliation suit, plaintiff filed a race discrimination suit against the City of Philadelphia, his
supervisor, and the Director of Human Resources for the Parks and Recreation Department.
See id. at 184. While litigation was pending, plaintiff voluntarily resigned. See id. After the
district court granted summary judgment for the City, plaintiff “demand[ed] reinstatement to
his prior position or to any available position[,]” but never received a response. Id. Because
plaintiff was not rehired, he filed a second suit alleging retaliation under Title VII and the
Pennsylvania Human Relations Act (“PHRA”). Id. at 185.

In affirming the district court’s dismissal of plaintiff’s claims, the Third Circuit held that
plaintiff “did not plead facts showing that he was subject to retaliatory conduct during the
period between” the filing of his first lawsuit and his voluntary resignation, noting that after
his resignation, “the only negative conduct Blakney experienced at the hand of the Parks and
Recreation Department was passive at best—they ignored his reinstatement requests.” Id. at
186. Moreover, “[t]he City's decisions to ignore Blakney's reinstatement requests and fill the
position with another employee were neutral acts that do not create an inference of
antagonism.” Id. at 187. It is clear that, unlike the facts in this case, the plaintiff in Blakney
did not plausibly allege that his employer retaliated against him by choosing not to rehire him.
Conversely, here Plaintiff Jacobs alleges numerous adverse actions taken by Defendants after
he filed his initial Complaint, as well as how those actions affected his employment.
C. Count 3: PWPCL Violation
The Pennsylvania Wage Payment and Collection Law (“PWPCL”), codified in 43 P.S. §
260.1 et seq., “provides a vehicle through which an[] employee may collect wages owed to him or
her from a delinquent employer.” Gallaher v. Goldsmith, 213 F. Supp. 2d 496, 498 (E.D. Pa. 2002).
The Law defines “employer” as “every person, firm, partnership, association, corporation, receiver

or other officer of a court of this Commonwealth . . . .” § 260.2a. Municipal entities are not
included in this definition, and Pennsylvania “has exempted municipal entities from the [P]WPCL
since it first confronted this issue in 1991 . . . .” Carstetter v. Adams Cnty. Transit Auth., No. 1:06–
1993, 2008 WL 2704596, at *14 (M.D. Pa. July 8, 2008); see also Scott v. Philadelphia Hous.
Auth., No. 10-4723, 2011 WL 1791095, at *10 (E.D. Pa. May 11, 2011) (“Pennsylvania state
courts, the Middle District of Pennsylvania, and the Eastern District of Pennsylvania[] have
consistently held that the [P]WPCL does not apply to municipal corporations[.]”). Under
Pennsylvania law, the City of Philadelphia is recognized as a municipal corporation. See 53 P.S.
§§ 101, 16251, 16255.

Defendants correctly point out in their Motion that the PWPCL does not apply to municipal
corporations such as the City of Philadelphia. (See Doc. No. 13 at 6.) While Plaintiff only focuses
on the PWPCL’s definition of “wages” in the FAC to argue that he is entitled to collect wages, (see
Doc. No. 12 ¶¶ 30-32), in his Response in Opposition to Defendants’ Motion he relies upon a
definition in the Statutory Construction Act, 1 Pa.C.S. § 1991, to argue that the City of Philadelphia
is a “person” rather than a municipal corporation.8 (See Doc. No. 14 ¶ 7.) Because he avers that
the City is a “person,” he argues that the PWPCL should apply to Defendants. (See id. ¶ 8.)

8 As previously noted, the statute defines “person” as “a corporation, partnership, limited
liability company, business trust, other association, government entity (other than the
Commonwealth), estate, trust, foundation or natural person.” 1 Pa.C.S. § 1991.
Section 1991 of the Statutory Construction Act states that its definitions apply “unless the
context clearly states otherwise[.]” 1 Pa.C.S. § 1991. The City of Philadelphia is recognized as a
municipal corporation under separate Pennsylvania statutes;9 therefore, the definition in section
1991 does not apply here. See Siciliano v. Mueller, 149 A.3d 863, 865 (Pa. Super. 2016) (“[W]here
terms are not defined in statutes, Statutory Construction Act requires words and phrases to be

construed by their common and approved usages.”). Accordingly, Defendants’ Motion as to Count
3 will be granted because Plaintiff cannot state a claim against Defendants under the PWPCL.10
V. CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss (Doc. No. 13) will be denied as
to the FLSA claims (Counts 1 and 2) and granted as to the PWPCL claim (Count 3). An appropriate
Order follows.

9 See 53 P.S. §§ 101, 16251, 16255.

10 Because municipal corporations—like Defendant City of Philadelphia—cannot be sued under
the PWPCL, see Scott v. Philadelphia Hous. Auth., No. 10-4723, 2011 WL 1791095, at *10
(E.D. Pa. May 11, 2011), Defendant City of Philadelphia Police Department and its employees,
Defendants Coulter and Wilson, also cannot be sued. They are agents or officers of Defendant
City of Philadelphia, and the PWPCL only applies to “any agent or officer” of an employer
subject to liability under the statute. See 43 P.S. § 260.2a.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10400332. Public record. Not legal advice.