GARCIA v. VERTICAL SCREEN, INC.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

WILLIAM GARCIA, : CIVIL ACTION

: NO. 19-3184

Plaintiff :

v. :

:

VERTICAL SCREEN, :

:

Defendant. :

M E M O R A N D U M

EDUARDO C. ROBRENO, J. March 21, 2022

TABLE OF CONTENTS

I. INTRODUCTION .............................................. 2

II. BACKGROUND ................................................ 3

III. LEGAL STANDARD .......................................... 6

IV. DISCUSSION ................................................ 7

A. Vertical Screen’s Motion ................................ 7

1. Discrimination Claims .................................. 8

2. Retaliation Claims .................................... 16

a. ADA & PHRA Retaliation ................................ 17

b. FMLA Retaliation ...................................... 18

c. Title VII Retaliation ................................. 23

3. FMLA Interference ..................................... 23

4. Failure to Pay Wages under the WPCL ................... 25

5. Punitive and Liquidated Damages ....................... 26

B. Vertical Screen’s Amended Counterclaims ................ 27

1. Breach of Contract .................................... 28

2. Trade Secret Claims under the DTSA and PUTSA .......... 29

C. Garcia’s Motion ........................................ 30

1. Breach of Contract .................................... 31

2. Misappropriation of Trade Secrets ..................... 32

3. Garcia’s WPCL Claim ................................... 38

V. CONCLUSION............................................... 40

I. INTRODUCTION

Plaintiff William Garcia brings this action against his

former employer, Defendant Vertical Screen Inc. (“Vertical

Screen”), claiming that Vertical Screen discriminated and

retaliated against him when it terminated his employment. Garcia

asserts claims pursuant to the Americans with Disabilities Act

(“ADA”), the Family and Medical Leave Act (“FMLA”), Title VII of

the Civil Rights act of 1964 (“Title VII”), and the Pennsylvania

Human Relations Act (“PHRA”). Garcia also brings a claim for

failure to pay wages owed under Pennsylvania’s Wage Payment and

Collection Law (“WPCL”).

Vertical Screen asserts counterclaims against Garcia for

breach of contract and misappropriation of trade secrets. The

parties have filed cross motions for summary judgment.

For the reasons set forth below, both motions will be

granted in part and denied in part. Specifically, Vertical

Screen’s motion will be granted as to Garcia’s claims under the

ADA, the FMLA, Title VII, the PHRA, and as to Garcia’s request

for punitive damages. It will be denied as to Garcia’s WPCL

claim and Vertical Screen’s counterclaims. Garcia’s motion will

be granted as to his WPCL claim and as to Vertical Screen’s

request for exemplary damages and attorneys’ fees pursuant to

its trade secret claims and denied as to the remainder of

Vertical Screen’s counterclaims.

II. BACKGROUND1

Vertical Screen is one of the world’s leading employment

applicant screening companies2 and is headquartered in

Warminster, Pennsylvania. Garcia was an employee at Vertical

Screen for five years until he was terminated on October 2,

2018.3 Garcia started as a Public Records Researcher and was

later promoted to Public Records Team Leader. As part of his

promotion, Garcia’s supervisors promised him a $.50/hour raise,

which he never received. During the final year of his employment

with Vertical Screen, Garcia’s supervisors were Katherine Denis,

Michael Hanna, Alison Graham, Samuel Twardowski, and Yahne

Johnson.

Garcia alleges that he suffered from disabilities during

his time at Vertical Screen, including rheumatoid arthritis

(originally misdiagnosed as Lupus) and anxiety. As a result of

these disabilities, Garcia took periodic time off from work. He

further claims that in response to his taking periodic time off,

Johnson told him on several occasions that he “shouldn’t be

1 As required at the summary judgment stage, the Court views the facts

“in the light most favorable” to the nonmoving party and draws “all

reasonable inferences” in that party’s favor. Young v. Martin, 801 F.3d 172,

174 n.2 (3d Cir. 2015).

2 As a screening company, Vertical Screen contracts with companies to

verify the identity, past employment history, education, and relevant

background of prospective applicants.

3 Garcia is also lead plaintiff in a putative collective action involving

FLSA overtime violations that is currently pending before Judge Brody. See

Garcia v. Vertical Screen, Inc., No. 18-cv-4718.

calling out,” or that Johnson would “take [his] position away

from [him].” Pl’s Stmt. of Facts ¶ 43, ECF No. 76.

Garcia asserts that he informed Hanna, Graham, and

Twardowski of his disabilities. He claims further that after he

informed his supervisors of his disabilities, Hanna disclosed

that Garcia was disabled to other co-workers. Hanna denies ever

disclosing Garcia’s medical conditions to anyone other than

Marcine Schiehser, Vice President of Human Resources at Vertical

Screen, or Twardowski, who was Hanna’s direct supervisor.

Garcia also claims that a co-worker falsely told other

employees that she and Garcia had a sexual relationship. He felt

this was sexual harassment and complained verbally to Twardowski

and asked him to communicate the complaint to the company’s

human resources department.

On September 17, 2018, Garcia requested necessary materials

to request FMLA leave from Vertical Screen’s human resources

department. He did not fill out the paperwork or otherwise

submit his FMLA request to Vertical Screen.

On October 2, 2018, Vertical Screen terminated Garcia’s

employment. Vertical Screen claims that he was terminated

because he violated the company’s confidentiality policy when he

allegedly sent a series of emails, one of which contained a

document titled “Courts Tier Training Spreadsheet” (the

“Spreadsheet”), from his work email to his personal email

account. According to Vertical Screen, the Spreadsheet included

information that was not only confidential, but amounted to

protectable trade secrets. Several Vertical Screen employees

testified that the decision to terminate Garcia was made solely

by Tim Gaudreau, the company’s chief operating officer. See

Gaudreau Dep. at 14:18-20, ECF No. 69-2; Schiehser Dep. at

46:14-17, ECF No. 69-12, Hanna Dep. 33:3-34:22, ECF No. 69-10.

Garcia denies ever sending himself any of the emails in

question. According to Vertical Screen’s IT Security Analyst

Neelay Patel, the company’s email security system triggered an

alert that Garcia had sent the Spreadsheet, which was at least

partially encrypted, to his personal email. See Patel Decl., ECF

No. 69-18. A subsequent investigation into the event led Patel

to conclude that the Spreadsheet had left the company’s servers

and had reached Garcia’s personal email account. See id.

However, Vertical Screen later performed a forensic analysis of

Garcia’s personal devices and email account and found no trace

of the Spreadsheet.

Garcia’s Amended Complaint contains five counts: (I)

disability discrimination and retaliation in violation of the

ADA; (II) interference and retaliation in violation of the FMLA;

(III) retaliation in violation of Title VII; (IV) failure to pay

wages owed under the WPCL; and (V) discrimination and

retaliation in violation of the PHRA.

Vertical Screen asserts three counterclaims against Garcia:

(I) breach of contract; (II) violation of the Defend Trade

Secrets Act, 18 U.S.C. § 1836, et seq. (the “DTSA”); and (III)

violation of the Pennsylvania Uniform Trade Secrets Act, 12 Pa.

Cons. Stat. Ann. § 5301, et. seq. (the “PUTSA”).

III. LEGAL STANDARD

Summary judgment is appropriate if no genuine dispute as to

any material fact exists and the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(a). “A motion

for summary judgment will not be defeated by ‘the mere

existence’ of some disputed facts, but will be denied when there

is a genuine issue of material fact.” Am. Eagle Outfitters v.

Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)). A

fact is “material” if proof of its existence or nonexistence

might affect the outcome of the litigation, and a dispute is

“genuine” if “the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Anderson, 477 U.S. at

248.

The Court views the facts in the light most favorable to

the nonmoving party. Am. Eagle Outfitters, 584 F.3d at 581.

“After making all reasonable inferences in the nonmoving party’s

favor, there is a genuine issue of material fact if a reasonable

jury could find for the nonmoving party.” Pignataro v. Port

Auth. of N.Y. & N.J., 593 F.3d 265, 268 (3d Cir. 2010) (citing

Reliance Ins. Co. v. Moessner, 121 F.3d 895, 900 (3d Cir.

1997)). While the moving party bears the initial burden of

showing the absence of a genuine issue of material fact, meeting

this obligation shifts the burden to the nonmoving party who

must “set forth specific facts showing that there is a genuine

issue for trial.” Anderson, 477 U.S. at 250 (quoting Fed. R.

Civ. P. 56(e) (1963)).

When confronted with cross-motions for summary judgment,

“[t]he court must rule on each party’s motion on an individual

and separate basis, determining, for each side, whether a

judgment may be entered in accordance with the Rule 56

standard.” Schlegel v. Life Ins. Co. of N. Am., 269 F. Supp. 2d

612, 615 n.1 (E.D. Pa. 2003) (alteration in original) (quoting

10A Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal

Practice & Procedure § 2720 (3d ed. 1998)).

IV. DISCUSSION

A. Vertical Screen’s Motion

Vertical Screen moves for summary judgment on all Garcia’s

claims. Because Garcia fails to meet his burden for each of his

discrimination and retaliation claims as required by McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 800 (1973), the motion

will be granted as to Garcia’s claims under the ADA, PHRA, FMLA,

and Title VII. The motion will also be granted as to Garcia’s

request for punitive damages, as he has not produced evidence to

support any claim under which punitive damages are available.

The motion will be denied as it applies to Garcia’s WPCL claim.

1. Discrimination Claims Under the ADA & PHRA

In considering claims of employment discrimination where no

direct evidence of discrimination exists, courts are informed by

the well-rehearsed burden shifting analysis of McDonnell

Douglas. The first step of the McDonnell Douglas framework

requires a court to ask whether the plaintiff has established a

prima facie case of disability discrimination. 411 U.S. at 802.

Then, the burden of production shifts to the employer to

articulate a legitimate, nondiscriminatory reason for the

employee’s termination. Id. And finally, if the employer

articulates a legitimate, non-discriminatory reason for the

termination, the plaintiff must then “establish by a

preponderance of the evidence that the employer’s proffered

reasons were merely a pretext for discrimination, and not the

real motivation for the unfavorable job action.” Sarullo v. U.S.

Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003) (citing Tex.

Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).

Under the burden-shifting framework, “the ultimate burden of

persuading the trier of fact that the defendant intentionally

discriminated against the plaintiff remains at all times with

the plaintiff.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,

518 (1993) (citing Burdine, 450 U.S. at 253)).

In order to establish a prima facie case of disability

discrimination under the ADA & PHRA, a plaintiff must establish

that “(1) he is a disabled person within the meaning of the ADA;

(2) he is otherwise qualified to perform the essential functions

of the job, with or without reasonable accommodations by the

employer; and (3) he has suffered an otherwise adverse

employment decision as a result of the discrimination.” Gaul v.

Lucent Tech., 134 F.3d 576, 580 (3d Cir. 1998) (addressing the

ADA); Rinehimer v. Cemcolift, 292 F.3d 375, 382 (3d Cir. 2002)

(“The PHRA is basically the same as the ADA in relevant aspects

and Pennsylvania courts generally interpret the PHRA in accord

with its federal counterparts.”) (internal quotations omitted).

Vertical Screen first argues that Garcia is not disabled

within the meaning of the ADA. The ADA defines “disability” to

include “a physical or mental impairment that substantially

limits one or more major life activities.” 42 U.S.C. §

12102(1)(A). “[M]ajor life activities include, but are not

limited to, caring for oneself, performing manual tasks, seeing,

hearing, eating, sleeping, walking, standing, lifting, bending,

speaking, breaching, learning, reading, concentrating, thinking,

communicating, and working.” Id. at § 12102(2)(A). Congress also

provides that “[t]he definition of disability in this chapter

shall be construed in favor of broad coverage of individuals

under this chapter, to the maximum extent permitted by the terms

of this chapter.” Id. at § 12102(4)(A).4 Whether an individual is

substantially limited in the performance of a major life

activity is a question for a jury unless there is no evidence on

the record from which a reasonable jury could conclude the

plaintiff was substantially limited. See Sowell v. Kelly Servs.,

Inc., 139 F. Supp. 3d 684, 698 (E.D. Pa. 2015).

Garcia has established that he is disabled under the ADA

and PHRA for the purposes of this motion. He testified in his

deposition that his anxiety causes him difficulty in getting out

of bed and getting to work. He further testified that he

occasionally had missed work due to his disabilities. This fits

into the broad definition of disability under the ADA (as

modified by the ADA Amendments Act of 2008, 42 U.S.C. § 12101,

et seq. (the “ADAAA”)), and a reasonable jury could conclude

that he was substantially limited in the performance of major

life activities based on the evidence presented. See Estate of

Murray v. UHS of Fairmount, Inc., No. 10-cv-2561, 2011 WL

5449364, at *8 (E.D. Pa. Nov. 10, 2011) (noting that the record

was “incredibly sparse” as to whether the plaintiff’s disability

substantially limited major life activities, but refusing to

4 These requirements apply equally to Garcia’s claim for disability

discrimination under the PHRA. See Rinehimer, 292 F.3d at 382.

grant summary judgment on those grounds due to the “stated

intent of the ADAAA”). Vertical Screen cites a number of

authorities for the proposition that Garcia has not established

that he is disabled under the ADA, but they were nearly all

decided prior to the passing of the ADAAA in 2008,5 which

directed courts to apply a broader definition of disability in

considering claims brought under the ADA. Based on the evidence

presented, Garcia has established the first element of his prima

facie case under the ADA and PHRA.

Vertical Screen next argues that Garcia has not established

the third element of his prima facie case under the ADA and

PHRA: that his disability was the cause of his termination. In

employment discrimination cases, courts look to several factors

in determining whether a plaintiff has established causation,

including (1) temporal proximity between a protected activity

and the adverse employment action, (2) whether there is a

“pattern of antagonism” following protected conduct, and (3)

whether the record, taken as a whole, raises an inference of

causation. See Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173,

177 (3d Cir. 1997); Abdul-Latif v. County of Lancaster, 990 F.

5 The one (unpublished) case cited by Vertical Screen that was decided

after the passing of the ADAAA, Lackey v. Heart of Lancaster Reg’l Med. Ctr.,

704 F. App’x 41 (3d Cir. 2017), is also inapposite because the plaintiff in

that case sought to establish that she had a disability by arguing only that

her employer regarded her as disabled. Lackey, 704 F. App’x at 48-49. The

Lackey court therefore focused on the employee’s perception of the

plaintiff’s medical conditions rather than whether the plaintiff had

established that her condition substantially limited a major life activity.

Supp. 2d 517, 530 (E.D. Pa. 2014) (citing Farrell v. Planters

Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000)).

Garcia essentially offers two arguments to support his

claim that he was fired because of his disability. First, he

avers that his supervisors at Vertical Screen exhibited a

pattern of antagonism against him after he disclosed his medical

conditions and began taking time off to attend medical

appointments, which pattern specifically included revealing his

private health information to others and exhibiting annoyance

with him taking time away from work. And finally, he argues that

Vertical Screen’s disparate treatment of similarly situated

employees (i.e., employees who also sent confidential documents

to their personal email addresses) raises an inference that his

disabilities motivated his termination.

Garcia’s first argument is unconvincing because he does not

point to any definitive pattern of antagonism by Vertical Screen

employees who would have been involved in the decision to fire

him. Garcia testified in his deposition that he felt threated by

Yahne Johnson, one of his supervisors, when he took time off to

care for his disabilities. Garcia claims that Johnson told him,

inter alia, that he “shouldn’t be calling out,” or that Johnson

would “take [his] position away from [him].” Garcia Dep. 262:2-

9, ECF No. 76-6. This behavior is certainly antagonistic, but

cannot serve as evidence of causation because there is no

evidence to suggest that Johnson played any part in the decision

to fire Garcia. Cf. Olson v. General Elec. Astrospace, 101 F.3d

947, 954 (3d Cir. 1996) (reversing summary judgment in a

discriminatory hiring case because the district court did not

consider representations made by a person “directly involved in

the hiring process”); see also Ezold v. Wolf, Block, Schorr &

Solis-Cohen, 983 F.2d 509, 545 (3d Cir. 1992) (explaining that

“[s]tray remarks by non-decisionmakers or by decisionmakers

unrelated to the decision process are rarely given great

weight”). In fact, the evidence presented at this stage suggests

that the decision to fire Garcia was made by Gaudreau alone. See

Gaudreau Dep. at 14:18-20, ECF No. 69-2; Schiehser Dep. at

46:14-17, ECF No. 69-12; Hanna Dep. 33:3-34:22, ECF No. 69-10.

Moreover, Plaintiff has not established why Hanna’s alleged

disclosure of his disability to Denis and Johnson, who were both

supervisors, resulted in a pattern of antagonism that would

suggest Garcia was terminated because he was disabled. To the

contrary, Garcia’s deposition testimony suggests that Hanna

informed Johnson of Garcia’s anxiety so that Johnson could

better accommodate him by reducing his workload, if necessary.

See Garcia Dep. at 333:4-7, ECF No. 76-6 (“Yahne Johnson came to

me and said, Mike [Hanna] told me about your anxiety. If you

need me to reduce some of your workload, I can.”). Therefore,

while the parties dispute whether Hanna actually did disclose

Plaintiff’s disability to others, this is not a material fact

because even if he did, this would still be insufficient to

support an inference that Garcia’s termination was caused by his

disability.

Garcia’s second causation argument—that he was treated

differently than similarly situated employees—also falls short.

Garcia identifies a Vertical Screen employee named Natasha James

who sent confidential information to her personal email address

but was given a written warning instead of being terminated. In

order to rely on this incident as evidence of discrimination,

Garcia “must establish that [James’] acts ‘were of comparable

seriousness to his own infraction.’” Anderson v. Haverford

Coll., 868 F. Supp. 741, 744 (E.D. Pa. 1994) (quoting Lanear v.

Safeway Grocery, 843 F.2d 298, 301 (8th Cir. 1988)).

But here, Vertical Screen has articulated a clear

difference between James’ conduct and Garcia’s. The information

James sent to herself was a non-encrypted list of applicant

names that did not “compromise[] how [Vertical Screen’s] systems

functioned or allowed access to [their] systems in any way.”

Gaudreau Dep. at 138:9-15, ECF No. 69-2; see also James Dep. at

70:9-11, ECF No. 69-19. In contrast, Garcia allegedly sent

himself an encrypted spreadsheet which contained information

that gave insight into the Vertical Screen’s “infrastructure”

and how it “managed [its] workflow.” Gaudreau Dep. at 137:1-14;

see also Patel Decl. ¶ 3, ECF No. 69-18 (stating that Patel

received a security alert on September 27, 2018, that Garcia had

sent an encrypted document to his personal email account); Pl’s

Resp. to Def’s Stmt. of Facts ¶ 43, ECF No. 76-2 (admitting

that, according to the Cyber Security Incident Report associated

with Garcia’s termination, the Spreadsheet was encrypted).

As further evidence that Garcia was not treated differently

than other employees who carried out similar conduct, Vertical

Screen points to two other researchers that it terminated for

sending similar confidential business and proprietary

information beyond company servers: (1) Arondai McGriff, who was

terminated for emailing himself a password-protected spreadsheet

containing Vertical Screen’s financial account information; and

(2) Olivia Scialanca, who sent herself client contact

information, applicant names, employee names, and information

regarding Vertical Screen’s internal processes and procedures.

See Gaudreau Dep. at 136:22-137:14. In other words, the evidence

before the Court suggests that Vertical Screen’s decision making

in firing Garcia was consistent with its treatment of other

employees; i.e., employees were fired when they shared

confidential information that contained insight into the

company’s proprietary information or internal workflow systems.

This class of employees includes Scialanca, McGriff, and Garcia,

and excludes James. The Court consequently finds that Garcia has

not shown that he was treated disparately from similarly

situated employees.

Because Garcia has not produced evidence that he was

terminated because of his disability, he fails to establish a

prima facie claim of discrimination under the ADA or PHRA. The

Court will accordingly grant Vertical Screen’s motion for

summary judgment as to these claims.

And as Garcia has failed to state a prima facie claim of

discrimination under the ADA or PHRA, the Court need not

consider whether Vertical Screen’s proffered reason for

terminating him was a pretext for disability discrimination.

2. Retaliation Claims Under the ADA, PHRA, FMLA &

Title VII

Garcia’s retaliation claims are also evaluated under the

McDonnell Douglas burden-shifting framework as set forth above.

See Carvalho-Grevious v. Delaware State Univ., 851 F.3d 249, 257

(3d Cir. 2017).

Garcia brings retaliation claims under the ADA, PHRA,6 FMLA,

and Title VII. The elements of retaliation under these four

statutes are essentially the same: in order to state a prima

facie case, a plaintiff must show that (1) he engaged in a

protected activity (such as taking FMLA qualifying leave,

6 As “the PHRA is basically the same as the ADA in relevant aspects and

Pennsylvania courts generally interpret the PHRA in accord with [the ADA],”

the elements of a retaliation claim under the PHRA and ADA are the same.

Rinehimer, 292 F.3d at 382.

requesting a reasonable accommodation under the ADA, or making a

complaint regarding an activity prohibited by Title VII), (2) he

suffered an adverse employment decision, and (3) there was a

causal connection between the protected activity and the adverse

employment decision. See Conoshenti v. Pub. Serv. Elec. & Gas

Co., 364 F.3d 135, 146 (3d Cir. 2004) (stating the elements of

an FMLA retaliation claim); Krouse v. Am. Sterilizer Co., 126

F.3d 494, 500 (3d Cir. 1997) (stating the elements of an ADA and

Title VII retaliation claim).

a. ADA & PHRA Retaliation

Garcia claims that he engaged in protected conduct under

the ADA and PHRA when he complained to management about Hanna’s

unauthorized disclosure of his disability.7 However, even if this

is true, his prima facie claim for retaliation under the ADA

fails at the causation prong. Garcia advances no argument that

would link his complaint to management to his termination.

Instead, he merely asserts that the Court should infer a causal

link here because his supervisors were aware that he had made

the complaint. The Court finds that asserting Defendant’s mere

7 Garcia also claims that his requests for intermittent leave were a

protected activity under the ADA, but he appears to use these same requests

for leave as the protected activity for his FMLA retaliation claim. And as

courts within the Third Circuit have recognized, “a request for FMLA leave is

not alternatively a request for a reasonable accommodation” under the ADA.

Capps v. Mondelez Global, LLC, 147 F. Supp. 3d 327, 341 (E.D. Pa. 2015)

(quoting Rutt v. City of Reading, Pa., No. 13-cv-4559, 2014 WL 5390428, at *3

(E.D. Pa. Oct. 22, 2014)). Garcia’s requests for leave will therefore only be

considered with respect to his FMLA claim.

awareness of Garcia’s protected activity is not sufficient to

support an inference that he was fired because of that protected

activity. See Krouse, 126 F.3d at 503 (“the mere fact that

adverse employment action occurs after a complaint will

ordinarily be insufficient to satisfy the plaintiff’s burden of

demonstrating a causal link between the two events.”) (quoting

Robinson v. City of Pittsburgh, 120 F.3d 1286, 1302 (3d Cir.

1997)); Parrotta v. PECO Energy Co., 363 F. Supp. 3d 577, 601

(E.D. Pa. 2019) (“To establish the requisite causal connection a

plaintiff must prove either (1) an unusually suggestive temporal

proximity between the protected activity and the alleged

retaliatory action, or (2) an intervening pattern of antagonism

[or other evidence of retaliatory animus] coupled with timing to

establish a causal link.”) (quotation marks and citations

omitted).

Because Garcia has failed to produce sufficient evidence of

causation and has therefore not established a prima facie case

of retaliation under the ADA or PHRA, and Vertical Screen’s

motion will be granted as to those claims.

b. FMLA Retaliation

Whether Garcia can establish causation for the purposes of

his FMLA retaliation claim is a closer case because of the

proximity between his request for FMLA leave and his

termination. See Krouse, 126 F.3d at 503 (suggesting that the

timing of an alleged retaliatory action may allow an inference

of causation when the temporal proximity is “unusually

suggestive” of a retaliatory motive). However, even assuming

Garcia has stated a prima facie case of FMLA retaliation, he

still cannot satisfy his burden of production under McDonnell

Douglas because the evidence presented does not support a

finding that Vertical Screen’s reason for terminating him was a

pretext for retaliation.

To establish that an employer’s justification for

termination was merely a pretext for retaliation, a plaintiff

must provide evidence “from which a factfinder could reasonably

either (1) disbelieve the employer’s articulated legitimate

reasons; or (2) believe that an invidious discriminatory reason

was more likely than not a motivating or determinative cause of

the employer’s action.” Burton v. Teflex, Inc., 707 F.3d 417,

427 (3d Cir. 2013) (quoting Fuentes v. Perskie, 32 F.3d 759, 764

(3d Cir. 1994)). Evidence undermining an employer’s proffered

reason must be sufficient to “support an inference that the

employer did not act for its stated reasons.” Sempier v. Johnson

& Higgins, 45 F.3d 724, 731 (3d Cir. 1995). A plaintiff can

satisfy that burden at the summary judgment stage by

“demonstrat[ing] such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions” in the

employer’s explanation for its action “that a reasonable

factfinder could rationally find them ‘unworthy of credence.’”

Burton, 707 F.3d at 427 (quoting Fuentes, 32 F.3d at 765).

Garcia advances several arguments to support his claim that

Vertical Screen’s stated reason for terminating him is a

pretext, including (1) that the information he allegedly sent

himself was not confidential, and thus did not require

termination, (2) that other Vertical Screen employees sent work

home to themselves in order to work from home but were not

disciplined, (3) that there are conflicts in the record that

support an inference of pretext, and (4) that the temporal

proximity between his request for FMLA leave and his termination

suggests his termination was retaliatory.

Garcia’s assertion that the information he allegedly

emailed to himself was not confidential information is

unsupported by the weight of the evidence. The Confidentiality

Agreement Garcia signed at the start of his employment defines

“Confidential Information” in part as “information concerning

the internal organization or business structure of Vertical

Screen or the work assignments or capabilities of any Employee,

officer and/or employee of Vertical Screen[.]” Confidentiality

Agreement § 2.2(vii), ECF No. 69-7. By Garcia’s own admission,

the Spreadsheet contained a compilation of employee names and

the search systems on which they were trained, which falls

squarely under the category of Confidential Information that

contains “work assignments or capabilities of any Employee.” Id.

at § 2.2(vii).

Garcia’s claim that other Vertical Screen employees sent

work home in violation of Vertical Screen’s “acceptable use

policy” does nothing to support a finding of pretext. Garcia

does not identify any employees who allegedly sent Vertical

Screen documents home other than James, Scialanca, and McGriff,

all of whom were disciplined for doing so. And as the Court

addressed in connection with the causation prong of Garcia’s ADA

and PHRA claims, there is no evidence of any disparate treatment

between these employees.

Garcia next points to two conflicts in the record that he

claims support a finding of pretext: (1) that he has denied

sending any confidential information to his personal email

address; and (2) that Garcia testified that Denis authorized

employees to send work home to themselves, while she denies ever

doing so. However, with respect to the first “conflict,” even if

Garcia’s assertions that he did not send himself any of the

emails in question is true, Vertical Screen was presented with

overwhelming evidence to the contrary when considering whether

the terminate his employment. See Patel Decl. ¶¶ 3-8, ECF No.

69-18. The issue here is not whether Vertical Screen was “wrong

or mistaken” in deciding to fire Garcia; rather, it is whether

Garcia has presented “evidence contradicting the core facts put

forward by the employer as the legitimate reason for its

decision.” Tomasso v. Boeing Co., 445 F.3d 702, 706 (3d Cir.

2006) (quoting Kautz v. Met–Pro Corp., 412 F.3d 463, 467 (3d

Cir. 2005)). And as to the second purported “conflict,” even if

Denis had authorized certain employees to send work home to

themselves, again, the weight of the evidence produced suggests

that Vertical Screen acted fairly and consistently with respect

to disciplining the identified employees (i.e., Scialanca,

McGriff, and Jones) who violated its confidentiality policy.

Again, Garcia has not shown that he was treated disparately from

other employees who similarly violated Vertical Screen’s

confidentiality policies.

Finally, the sixteen-day period between Garcia’s request

for FMLA leave and his termination, standing alone, is not

sufficient to support an inference of pretext. See Meneske v.

Harrah’s Chester Casino & Racetrack, 649 Fed. Appx. 142, 145 (3d

Cir. 2016) (holding that a plaintiff who was terminated one week

after her most recent request for FMLA leave did not establish

pretext without other evidence); Hughes v. City of Bethlehem,

294 Fed. Appx. 701, 704 (3d Cir. 2008) (finding that the

proximity between the plaintiff’s protected activity and her

employer’s adverse decision may be sufficient to establish the

causation element of her prima facie retaliation claim, but

without other supporting evidence, was insufficient to establish

pretext); see also generally Seeger v. Cincinnati Bell Tel. Co.,

LLC, 681 F.3d 274, 285 (6th Cir. 2012) (“[T]emporal proximity

cannot be the sole basis for finding pretext.”) (citation

omitted). The evidence before the Court, viewed as a whole,

simply does not support an inference that Vertical Screen’s

proffered reason for Garcia’s termination was a pretext for

retaliation. Vertical Screen’s motion will therefore be granted

as to Garcia’s claim for retaliation under the FMLA.

c. Title VII Retaliation

As Garcia advances the same “pretext” arguments with

respect to his Title VII retaliation claim as he did for his

FMLA retaliation claim, the preceding analysis applies to bar

his Title VII retaliation claim as well. In sum, Garcia has not

identified “weaknesses, implausibilities, inconsistencies, or

contradictions” that support any inference that Vertical

Screen’s stated reason for his termination was a pretext for

retaliation. Burton, 707 F.3d at 427 (quoting Fuentes, 32 F.3d

at 765). Vertical Screen’s motion for summary judgment will

therefore also be granted as to Garcia’s claims for retaliation

under Title VII.

3. FMLA Interference

“An [FMLA] interference action is not about

discrimination[;] it is only about whether the employer provided

the employee with the entitlements guaranteed by the FMLA.”

Callison v. City of Phila., 430 F.3d 117, 120 (3d Cir. 2005). In

order to successfully bring a claim of FMLA interference, a

plaintiff must establish the following:

(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 Global, LLC, 847 F.3d 144, 152 (3d Cir. 2017)

(quoting Ross v. Gilhuly, 755 F.3d 185, 191-92 (3d Cir. 2014)).

For the purposes of its motion, Vertical Screen concedes

that Garcia has established the first four elements of his

interference claim. Accordingly, whether Garcia has established

his claim at this stage depends upon whether he has satisfied

the final element; namely, whether he was denied benefits to

which he was entitled under the FMLA. Garcia’s position is that

Vertical Screen interfered with his FMLA rights by denying him

the opportunity to obtain a certification from his medical

provider and complete his FMLA application.

The Third Circuit has instructed that “for an interference

claim to be viable, the plaintiff must show that FMLA benefits

were actually withheld.” Ross, 755 F.3d at 192 (citing Callison,

430 F.3d at 119). Because Garcia had admittedly not submitted

the necessary paperwork to request FMLA benefits, he has not

shown that any FMLA benefits to which he was entitled were

actually withheld. Garcia points out that an employee may have

an actionable interference claim where an employer takes action

that “could chill” an employee’s desire to take FMLA leave,

Grosso v. Fed. Exp. Corp., 467 F. Supp. 2d 449, 463 (E.D. Pa.

2006) (internal quotation omitted), but does not produce any

evidence that Vertical Screen took any such action. Vertical

Screen’s motion will therefore be granted as to Garcia’s FMLA

interference claim.

4. Failure to Pay Wages under the WPCL

The Pennsylvania Superior Court has instructed that “‘[t]o

present a wage-payment claim,’ the employee must aver a

contractual entitlement to ‘compensation from wages’ and a

failure to pay that compensation.” Braun v. Wal-Mart Stores,

Inc., 24 A.3d 875, 954 (Pa. Super. Ct. 2011) (quoting Sullivan

v. Chartwell Inv. Partners, LP, 873 A.2d 710, 716 (Pa. Super.

Ct. 2011)). When there is no formal written employment contract,

a plaintiff bringing a WPLC claim “would have to establish, at a

minimum, an implied oral contract between the employee and

employer.” Id. (citing De Asencio v. Tyson Foods, Inc., 342 F.3d

301, 309 (3d Cir. 2003)).

Garcia avers that when he was promoted to team leader in

June 2018 he was promised a fifty-cent raise, but he never

received that raise. In its motion, Vertical Screen acknowledges

that the promises were made, but argues that Garcia was not

contractually entitled to it the raise because “there is no

evidence that Vertical Screen intended to be bound by these

promises, or that the terms of this alleged contract were

sufficiently definite.” Def’s Mot. at 34, ECF No. 66. But this

argument is not supported by the relevant law. In any event,

even if Vertical Screen somehow did not intend to be bound by

the promise, Garcia’s supervisors acted as agents of Vertical

Screen and had at least apparent authority to promise the five

percent raise, which would bind Vertical Screen to comply with

the promise. See Revere Press, Inc. v. Blumberg, 246 A.2d 407,

410 (1968) (“Apparent authority is power to bind a principal

which the principal has not actually granted but which he leads

persons with whom his agent deals to believe that he has

granted.”); Apex Fin. Corp. v. Decker, 369 A.2d 483, 485-86

(1976) (an agent acts with apparent authority when “a man of

ordinary prudence, diligence and discretion would have a right

to believe and would actually believe that the agent possessed

the authority he purported to exercise.”). Vertical Screen has

therefore failed to show it is entitled to summary judgment on

Garcia’s WPCL claim, so its motion will be denied as to this

claim.

5. Punitive and Liquidated Damages

Vertical Screen also moves for summary judgment on the

issue of punitive and liquidated damages. The ADA allows for an

award of punitive damages. See 42 U.S.C. § 1981a. However, as

Garcia’s ADA claims do not survive summary judgment, his

corresponding request for punitive damages also fails.

Furthermore, Garcia points to no authority, and the Court is

aware of none, which states that punitive damages are an

available remedy under the WPCL. As his WPCL claim is the sole

claim that survives this motion, Vertical Screen’s motion will

be granted as to punitive damages.

However, the WPCL does provide for payment of liquidated

damages in certain instances, such was where wages remain unpaid

for thirty days beyond the scheduled payday and no good faith

dispute over the wage claim exists. See Andrews v. Cross

Atlantic Cap. Partners, 158 A.3d 123, 133 (Pa. Super. Ct. 2017)

(citing 43 P.S. § 260.10). As Garcia’s WPCL claim survives this

motion, Vertical Screen’s request for summary judgment on the

issue of liquidated damages will be denied.

B. Vertical Screen’s Amended Counterclaims

Vertical Screen also moves for summary judgment on its

counterclaims for breach of contract and misappropriation of

trade secrets under the DTSA and PUTSA. Because there are

disputed material facts on the record with respect to each of

these claims, the motion will be denied as to Vertical Screen’s

counterclaims.

1. Breach of Contract

To prevail on a breach of contract claim under Pennsylvania

law, a plaintiff must establish “(1) the existence of a

contract, including its essential terms, (2) a breach of a duty

imposed by the contract[,] and (3) resultant damages.”

CoreStates Bank, N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa.

Super. Ct. 1999) (citation omitted). Vertical Screen’s

counterclaim argues that Garcia breached the Confidentiality

Agreement (the “Agreement”) he executed when he began his

employment.

Vertical Screen argues that Garcia breached the agreement

by both sending the information to himself and by failing to

return the Spreadsheet to Vertical Screen upon his termination,

as required by the Confidentiality Agreement. See id. at § 2.3.

However, the issue of whether Garcia actually sent himself the

Spreadsheet and whether it remained in his possession for any

period of time is disputed by the parties and subject to

conflicting evidence on the record. In arguing that Garcia did

breach the agreement, Vertical Screen relies upon the

declaration of Neelay Patel, an Information Technology Security

Analyst for Vertical Screen, who allegedly determined, after an

investigation, that the Spreadsheet left Vertical Screen’s

servers and reached Garcia’s personal email account. See Patel

Decl. ¶ 7, ECF No. 69-18. In response, Garcia points out that

Vertical Screen performed a forensic examination of Garcia’s

personal devices and found no trace of the information in

question. Inquiry into the respective reliability of this

conflicting evidence is not appropriately performed by the Court

at the summary judgment stage. The issue of whether Garcia

breached the Confidentiality Agreement is a disputed fact for

trial and Vertical Screen’s motion will be denied as to its

counterclaim for breach of contract.

2. Trade Secret Claims under the DTSA and PUTSA

Vertical Screen next argues that it is entitled to summary

judgment on its claims for trade secret misappropriation under

both the DTSA8 and the PUTSA.9 Both statutes define

misappropriation of a trade secret as either (1) acquisition of

a trade secret with reason to know that it was acquired by

improper means or (2) disclosure or use of a trade secret

without consent. Teva Pharm. USA, Inc. v. Sandhu, 291 F. Supp.

3d 659, 674 (E.D. Pa. Jan. 30, 2018); Alpha Pro Tech, Inc. v.

VWR Int’l LLC, 984 F. Supp. 2d 425, 440 (E.D. Pa. 2013) (citing

12 Pa. Cons. Stat. § 5302). The statutes both define acquisition

by improper means as the “acquisition of a trade secret of

another by a person who knows or has reason to know that the

8 Defend Trade Secrets Act, 18 U.S.C. § 1836, et seq.

9 Pennsylvania Uniform Trade Secrets Act, 12 Pa. Cons. Stat. Ann. § 5301,

et. seq.

trade secret was acquired by . . . theft, bribery,

misrepresentation, [or] breach.” 18 U.S.C. § 1839(5)-(6); 12 Pa.

Cons. Stat. § 5302.

Vertical Screen is not entitled to summary judgment on its

trade secret claims because there is a disputed material fact as

to whether Garcia actually “misappropriated” or “acquired” the

information in question. As noted in the preceding section with

respect to its breach of contract claim, there is conflicting

evidence on the issue of whether Garcia actually sent or

received the Spreadsheet. This disputed material fact precludes

summary judgment in Vertical Screen’s favor on its trade secret

claims.

C. Garcia’s Motion

Garcia moves for summary judgment on Vertical Screen’s

counterclaims and on his own claim under the WPCL. Because

Garcia falls short of establishing that he is entitled to

judgment as a matter of law on Vertical Screen’s counterclaims

for breach of contract and misappropriation of trade secrets,

his motion will be denied as to Vertical Screen’s counterclaims.

However, Garcia has demonstrated that there are no disputed

material facts and that he is entitled to judgment as a matter

of law on his WPCL claim, so his motion will be granted as to

that claim.

1. Breach of Contract

Garcia essentially advances two arguments with respect to

Vertical Screen’s counterclaim for breach of contract: (1) that

he did not breach the Confidentiality Agreement; and (2) that

Vertical Screen has failed to establish cognizable damages.

As previously noted, whether Garcia sent or possessed the

Spreadsheet is a disputed material fact that cannot be resolved

at summary judgment. Garcia also appears to argue in his motion

that even if he did send the Spreadsheet to himself, he still

would not have breached the agreement because there is no

evidence that he sent the information to a third party. But even

assuming this is true, the Agreement also requires that an

employee return any and all “Confidential Information” to

Vertical Screen upon termination, which Garcia admittedly did

not do. Therefore, Vertical Screen’s breach of contract claim

still turns on the disputed material fact of whether the

Spreadsheet ever came into Garcia’s possession.

Garcia’s damages argument is also unconvincing. Because

nominal damages are available for breach of contract under

Pennsylvania law, courts have refused to grant summary judgment

on a breach of contract claim solely because a party has not

established damages. See Thorsden v. Iron & Glass Bank, 476 A.2d

928, 931 (Pa. Super. Ct. 1984) (noting that a party who proves

breach of contract but shows no resulting damages is entitled to

nominal damages, so “[a] grant of summary judgment on the sole

basis of absence of provable damages . . . is generally

improper”); see also Zeno v. Ford Motor Co., Inc., 480 F. Supp.

2d 825, 834 (Pa. Super. Ct. 1984) (“In light of the law of

Pennsylvania allowing nominal damages for breach of contract,

summary judgment cannot be granted for failure to show

damages.”).

Garcia has therefore failed to establish that he is

entitled to summary judgment on Vertical Screen’s counterclaim

for breach of contract.

2. Misappropriation of Trade Secrets

Garcia first argues that he is entitled to summary judgment

on Vertical Screen’s counterclaims for misappropriation of trade

secrets because the data at issue is not a trade secret as a

matter of law. Both the DTSA and the PUTSA essentially define a

trade secret as information that: “(a) the owner has taken

reasonable means to keep secret; (b) derives independent

economic value, actual or potential, from being kept secret; (c)

is not readily ascertainable by proper means; and (d) others who

cannot readily access it would obtain economic value from its

disclosure or use.” Teva Pharm. USA, Inc. v. Sandhu, 291 F.

Supp. 3d 659, 675 (E.D. Pa. Jan. 30, 2018) (first citing 18

U.S.C. § 1839(3) and then citing 12 Pa. Stat. § 5302). Courts

consider six factors in determining whether information is a

trade secret: (1) existence of knowledge of the information

outside of the business, (2) the extent of knowledge of the

information within the business, (3) measures taken to protect

the alleged secret, (4) the information’s value, (5) the amount

of resources used in creating the information, and (6) the

difficulty of legitimately acquiring or duplicating the

information. Bimbo Bakeries USA, Inc. v. Botticella, 613 F.3d

102, 109 (3d Cir. 2010).

Garcia argues that the Spreadsheet is not a trade secret

because it essentially consists of a compilation of publicly

available data. Because the information is largely publicly

available, he argues, knowledge of the information exists widely

outside the business, the information is not inherently

valuable, and it is easily acquired or duplicated by a potential

competitor. Vertical Screen acknowledges that much of the

information contained in the Spreadsheet is publicly available,

but claims that what makes the Spreadsheet a protectable trade

secret is its formatting. It asserts that the Spreadsheet groups

jurisdictions in a way that gives Vertical Screen a competitive

edge in its industry and outlines its workflow processes.

Vertical Screen further argues that the Spreadsheet took “many

months” to develop, and would be valuable in the hands of

competitors, as they could use the Spreadsheet’s formatting to

create workflow processes that would rival Vertical Screen’s in

efficiency. And finally, Vertical Screen points out that it took

efforts to keep the Spreadsheet secure, including by encrypting

the file with password protections and requiring its employees

to sign confidentiality agreements that prohibited them from

sharing it. Viewing the evidence in the light most favorable to

the non-moving party, which here is Vertical Screen, a

reasonable jury could conclude that the Spreadsheet is a trade

secret.

Garcia next argues that even if the Spreadsheet is a trade

secret, he is still entitled to summary judgment on these claims

because he did not “misappropriate” it as a matter of law. As

previously noted, the issue of whether Garcia actually acquired

the Spreadsheet is a disputed material fact. Even so, Garcia

appears to argue that even if he did acquire the Spreadsheet, he

still cannot have “misappropriated” it because he would not have

had reason to know it was acquired through “improper means.”

Teva Pharm. USA, Inc., 291 F. Supp. 3d at 674 (defining

“misappropriation” of a trade secret, in part, as the

“acquisition of a trade secret of another by a person who knows

or has reason to know that the trade secret was acquired by

improper means”).

Contrary to Garcia’s assertions, the record supports an

inference, at this point to be drawn in favor of Vertical Screen

as the nonmoving party, that Garcia had reason to know that

sending the Spreadsheet to his personal email constituted

acquiring it by improper means. For example, he signed the

Confidentiality Agreement, which designated as “confidential”

any information “concerning the . . . work assignments or

capabilities of any Employee.” Confidentiality Agreement §

2.2(vii), ECF No. 69-7. He also signed Vertical Screen’s

Acceptable Use Policy, which prohibited employees from “sending

confidential information to external recipients unless via

approved encryption methods.” Acceptable Use Policy at 9, ECF

No. 69-23. In light of these acknowledgments, the Court cannot

find that Garcia did not misappropriate any trade secret as a

matter of law.

Garcia next argues that Vertical Screen’s PUTSA claim is

barred by the gist of the action doctrine. Pennsylvania’s “‘gist

of the action’ doctrine provides that an alleged tort claim

against a party to a contract, based on the party’s actions

undertaken in the course of carrying out a contractual

agreement, is barred when the gist or gravamen of the cause of

action stated in the complaint, although sounding in tort, is,

in actuality, a claim against the party for breach of its

contractual obligations. Bruno v. Erie Ins. Co., 106 A.3d 48, 53

(Pa. 2014).

To support his argument, Garcia cites Wiggins v.

Physiologic Assessment Servs., LLC, 141 A.3d 1058, 1064-65 (Del.

Super. Ct. 2016), in which the Superior Court of Delaware

dismissed misappropriation of trade secrets claims as barred by

the gist of the action doctrine because the defendant’s conduct

was clearly defined and prohibited by the employment agreement

between the parties. Wiggins is, of course, not binding, as it

is a Delaware state court decision. It is also distinguishable.

The trade secret claims in Wiggins were brought under the common

law rather than under federal and/or state statutes, as they are

here. And courts within this district and elsewhere within the

Third Circuit have suggested that the gist of the action

doctrine does not function to bar claims that seek to enforce a

right created by a federal or state statute. See, e.g., Sproul

Hill Assocs., L.P. v. Newell Rubbermaid Inc., No. 13-cv-4998,

2013 WL 6731976, at *3 (E.D. Pa. Dec. 23, 2013) (declining to

use gist of the action doctrine to bar Pennsylvania state

statutory claims); The Knit With v. Knitting Fever, Inc., Nos.

08-cv-4221, 08-cv-4775, 2009 WL 3427054, at *5-6 (E.D. Pa. Oct.

20, 2009) (declining to apply the doctrine to bar claims under

federal RICO statute); Pittsburgh Logistics Sys., Inc. v.

LaserShip, Inc., No. 18-cv-1382, 2019 WL 2443035, at *9 (W.D.

Pa. Jun. 12, 2019) (declining to dismiss DTSA and PUTSA claims

under the gist of the action doctrine because the statutes

create private rights “that are enforceable in the absence of a

mutual consensus between contracting parties”). Based on this

persuasive authority, the Court finds that the gist of the

action doctrine does not apply to bar Vertical Screen’s

counterclaim for misappropriation of trade secrets under the

PUTSA.

Garcia next argues that Vertical Screen’s trade secret

claims fail because there is no evidence that Vertical Screen

has sustained any actual damages as a result of the

misappropriation. While Garcia is correct that Vertical Screen

has not produced any evidence of monetary damages, the

counterclaims for misappropriation of trade secrets also seek an

injunction prohibiting Garcia from further misappropriation or

use of the alleged trade secrets and directing him to destroy or

erase confidential documents or information. See Amended

Counterclaims at 13, ECF No. 24; see also 18 U.S.C. §

1836(b)(3)(A) (authorizing injunctive relief under the DTSA); 12

Pa. Cons. Stat. § 5303(a) (authorizing injunctive relief under

the PUTSA). Again, the issue of whether Garcia misappropriated

any trade secret is a disputed material fact that cannot be

resolved at summary judgment. However, if Vertical Screen

establishes at trial that Garcia did misappropriate its trade

secrets, it may be entitled to injunctive relief. The Court

accordingly declines to enter summary judgment on Vertical

Screen’s trade secret claims based on any failure to establish

damages at this stage.

Garcia finally argues that he is entitled to at least

partial summary judgment on Vertical Screen’s DTSA claim to the

extent it seeks exemplary damages or attorneys’ fees. In order

to be awarded exemplary damages or attorney fees under the DTSA,

an employer must provide notice of the immunity offered under

section 1833(b)(1) of the DTSA, which prohibits an individual

from being held liable for disclosure of a trade secret in

certain situations not applicable to this action. The

Confidentiality Agreement is silent as to this immunity, so

Vertical Screen has not complied with DTSA’s notice requirement.

Vertical Screen is therefore unable to seek exemplary damages or

attorney fees pursuant to its DTSA claim, and Garcia’s motion

will be granted to that extent.

3. Garcia’s WPCL Claim

Garcia is entitled to summary judgment on his WPCL claim.

He has established at least an implied oral contract for

increased wages between him and Vertical Screen and that

Vertical Screen did not pay him the promised salary increase.

See Braun v. Wal-Mart Stores, Inc., 24 A.3d 875, 954 (Pa. Super.

Ct. 2011) (“‘To present a wage-payment claim,’ the employee must

aver a contractual entitlement to ‘compensation from wages’ and

a failure to pay that compensation.”) (quoting Sullivan v.

Chartwell Inv. Partners, LP, 873 A.2d 710, 716 (Pa. Super. Ct.

2011)).

Vertical Screen admits that Garcia’s supervisors promised

the raise and that it did not comply with the promise, but

argues in response that the promises did not establish a

contract because Garcia should have been aware that additional

approval of either Gaudreau or Twardowski was required to

confirm the promise of a raise. However, it points to no written

policy requiring such approval and no reason that Garcia should

have been aware of such a policy. Garcia has therefore

established that his supervisors had at least apparent authority

to offer him the raise in return for his acceptance of the

promotion. This creates a binding contract that is enforceable

under the WPCL. See Scully v. US WATS, Inc., 238 F.3d 497, 516-

17 (3d Cir. 2001) (noting that the WPCL “establishes a right to

enforce payment of wages and compensation that the employer has

legally obligated itself to pay”) (citation omitted). There are

no disputed material facts as to this claim, and no reasonable

jury could find that Vertical Screen did not breach an

employment contract with Garcia. The Court will accordingly

enter summary judgment in favor of Garcia on his WPCL claim.

Garcia also presents a calculation of damages to which he

claims he is entitled in connection with his WPCL claim. But

because Vertical Screen has not addressed this calculation and

because Garcia also requests prejudgment interest, the Court

will grant Garcia’s motion as to Vertical Screen’s liability

under the WPCL only and reserve the issue of damages for the

conclusion of the litigation.

V. CONCLUSION

For the reasons stated above, Vertical Screen’s motion for

summary judgment will be granted as to Garcia’s claims under the

ADA, PHRA, FMLA, Title VII, and Garcia’s request for punitive

damages, and denied as to Garcia’s WPCL claim and Vertical

Screen’s counterclaims.

Garcia’s motion will be granted as to Vertical Screen’s

liability under the WPCL and Vertical Screen’s request for

exemplary damages and attorneys’ fees pursuant to its trade

secret claims, and denied as to Vertical Screen’s breach of

contract claim and Garcia’s potential liability for

misappropriation of trade secrets under the DTSA and PUTSA.

An appropriate order follows.