PURVENAS HAYES v. SALTZ, MONGELUZZI & BENDESKY, P.C.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DESIREE PURVENAS HAYES, : CIVIL ACTION

: NO. 22-2277

Plaintiff, :

:

v. :

:

SALTZ, MONGELUZZI & BENDESKY, :

P.C., et al. :

:

Defendants :

M E M O R A N D U M

EDUARDO C. ROBRENO, J. JANUARY 23, 2023

I. INTRODUCTION

Before the Court is Defendants’ Second Partial Motion to

Dismiss. Plaintiff Desiree Purvenas-Hayes seeks unpaid overtime

compensation allegedly owed to her by her former employer,

Saltz, Mongeluzzi & Bendesky, P.C. Second Am. Compl. ¶ 1, ECF

No. 25 [hereinafter Am. Compl.]. Plaintiff asserts her claims

under the Fair Labor Standards Act, Pennsylvania’s Minimum Wage

Act, and Pennsylvania’s Wage Payment and Collection Law. Id.

¶ 2. Plaintiff also seeks damages for retaliation under FLSA for

filing this lawsuit. Id. ¶¶ 79-85. Plaintiff has withdrawn her

claim for invasion of privacy under state law (formerly Count

V).

Defendants renew their partial motion to dismiss. In their

initial motion, Defendants argued that Plaintiff’s retaliation

claim fails because she did not allege that certain statements

made by Mr. Mongeluzzi, a senior partner at her former

employers’ law firm, in the Legal Intelligencer article impacted

her current or future employment prospects or dissuaded

Plaintiff from pursuing her FLSA claim. See Defs.’ Mot. to

Dismiss 1-2, ECF No. 12. In her Second Amended Complaint,

Plaintiff describes the rejections she has faced after applying

for paralegal jobs in the wake of the publication of the Legal

Intelligencer article. Defendants maintain that Plaintiff has

failed to state a FLSA retaliation claim because “the Second

Amended Complaint fails to establish any plausible link between

the Intelligencer Statements and the rejection of several job

applications” and “Plaintiff fails to allege that the Statements

would have dissuaded a reasonable person from pursuing a FLSA

claim.” Defs.’ Mot. to Dismiss Count II of Pl.’s Second Am.

Compl. 2, ECF No. 26 [hereinafter “Defs.’ Mot.”].

II. BACKGROUND

Plaintiff was employed by Defendant as a litigation

paralegal for approximately nine and a half years. Am. Compl.

¶ 18. Plaintiff was paid hourly, 35 hours per week, for a total

of $79,567.44 annually. Am. Compl. ¶ 19, 21. Through March 16,

2020, Plaintiff was compensated for the overtime hours she

worked as a non-exempt employee. Am. Compl. ¶ 25. On March 16,

2020, Plaintiff began working from home because of the

Coronavirus pandemic, and began working “substantial overtime

hours” and “was expected to answer” communications from agents

of Defendant law firm “at all hours.” Am. Compl. ¶ 26, 28. Yet,

Plaintiff alleges she was paid no overtime for her work at home

in 2020, and only occasionally paid overtime for her work from

home in other years. Am. Compl. ¶¶ 29-30. Plaintiff provided

notice to Defendants regarding the overtime discrepancy, “but

the situation was never resolved.” Am. Compl. ¶¶ 32-33.

Plaintiff ultimately resigned on July 29, 2021, and alleges she

has never been paid for all the overtime work she performed. Am.

Compl. ¶ 36.

Plaintiff further alleges that, after she filed her

complaint, Defendant Mongeluzzi made statements to a reporter

from the Legal Intelligencer writing a story about Plaintiff’s

lawsuit disclosing Plaintiff’s COVID-19 vaccination status, both

in violation of the Americans with Disabilities Act, and

allegedly as retaliation for Plaintiff’s filing of a lawsuit for

overtime payment owed. Am. Compl. ¶¶ 37-45.

In her Second Amended Complaint, Plaintiff states that a

Google search of her name produces the Legal Intelligencer

article in which Defendants made the allegedly retaliatory

statements. Am. Compl. ¶ 49. Defendants quote the relevant

portion of the Legal Intelligencer article in their first

partial motion to dismiss:

According to Mongeluzzi, Purvenas-Hayes’ July 2021

departure came just two weeks before the firm’s

deadline for employees to receive their firm-mandated

COVID-19 vaccinations. He said she left because she

did not wish to receive the shot and that he was one

of two employees in the approximately 100-person firm

not to comply.

Mongeluzzi said the case is an instance of a

disgruntled employee suing over unfounded claims.

Def.’s Partial Mot. to Dismiss at 1, ECF No. 12 (quoting Def.’s

Partial Mot. to Dismiss, Ex. A, Former Paralegal Sues Saltz

Mongeluzzi Over Unpaid Overtime Claims, The Legal Intelligencer

(June 13, 2022, 5:03 PM),

https://www.law.com/thelegalintelligencer/2022/06/13/former-

paralegal-sues-saltz-mongeluzzi-over-unpaid-overtime-

claims/?slreturn=20220829133437).

Plaintiff claims that the article is in the top three

search results and can be read for free by users who are not

subscribers to the Legal Intelligencer. Id. ¶ 49. Plaintiff

further alleges that this Google search result is connected to a

number of recent job rejections. For instance, she interviewed

for a paralegal specialist position with the United States

Attorney’s Office, but was ultimately told that another

candidate was chosen, despite the USAJobs website posting for

the position stating that the position was still available. Id.

¶¶ 51-54. Plaintiff claims that she was rejected by a total of

six employers for paralegal positions, which she applied for

between May 4, 2022, and October 9, 2022. Id. ¶¶ 51-67. The

Legal Intelligencer article was published on June 13, 2022.

Plaintiff does not allege either that she was told that the

reason that she was not hired was connected to her prior

employment for Defendant, or otherwise asked any questions about

the statements during the interviews. Based on the timing of the

article and Plaintiff’s employment opportunity rejections,

Plaintiff claims that Defendants’ statement in the Legal

Intelligencer constituted an adverse employment action. Id.

¶ 84.

Overall, in her Second Amended Complaint, Plaintiff seeks

relief on four claims: FLSA violations for failure to pay

overtime compensation (Count I); FLSA retaliation (Count II);

violations of the Pennsylvania Minimum Wage Act (Count III); and

violations of the Pennsylvania Wage Payment and Collection Law

(Count IV). Plaintiff has withdrawn her state-law claim for

invasion of privacy. Defendants seek only to dismiss Count II of

Plaintiff’s Second Amendment Complaint, for retaliation under

FLSA.

III. LEGAL STANDARD

The party moving for dismissal under Rule 12(b)(6) bears

the burden of showing that the opposing party has not stated a

claim. See Kehr Packages v. Fidelcor, Inc., 926 F.3d 1406, 1409

(3d Cir. 1991). To meet this burden, a moving party must show

that the complaint does not contain “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 plaintiff need not make out a prima facie case in the

complaint in order to survive a motion to dismiss, however.

Connelly v. Lane Construction Corp, 809 F.3d 780, 788-89 (3d

Cir. 2016) (distinguishing between pleading requirements and

evidentiary standards); Fowler v. UPMC Shadyside, 578 F.3d 203,

213 (3d Cir. 2009) (“[A]n evidentiary standard is not a proper

measure of whether a complaint fails to state a claim.”). But,

while a plaintiff need not have the correct legal theory or make

out a prima facie case in the complaint, a plaintiff must allege

facts to show that discovery will reveal sufficient support of

each element of the claim. See Comcast Corp v. NAACP, 140 S. Ct.

1009, 1014-15 (2020) (“[W]hile the materials the plaintiff can

rely on to show causation may change as a lawsuit progresses

from filing to judgment, the burden itself remains constant.”);

Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315,

321 (3d Cir. 2008) (“The complaint must state ‘enough facts to

raise a reasonable expectation that discovery will reveal

evidence of the necessary element.’” (quoting Phillips v. County

of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)).

At this stage, the court must accept the plaintiff’s well-

pleaded factual allegations as true, and draw all reasonable

inferences in the plaintiff’s favor. Bell Atl. Corp., 550 U.S.

at 555-56. But, the court must disregard any conclusory

allegations in the complaint and instead look to well-pleaded

factual allegations. Iqbal, 556 U.S. at 678-79.

IV. DISCUSSION

The antiretaliation provision of the Fair Labor Standards

Act (FLSA) forbids an employer 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” FLSA. 29 U.S.C. §

215(a)(3). In other words, “[r]etaliation occurs when an

employer . . . takes an adverse action against an employee

because they engaged in a protected activity . . . . includ[ing]

. . . request of payment of wages . . . [or] exercising

rights . . . .” Protecting Workers from Retaliation, Field

Assistance Bulletin No. 2022-02, at 2, U.S. Dep’t of Labor (Mar.

10, 2022).

The purpose of the antiretaliation provision of FLSA is to

ensure that employees can assert their rights without fear of

economic retaliation. Uronic v. Cabot Oil & Gas Corp., -- F.4th

-- , 2022 WL 4231203, at *3-4 (3d Cir. 2022) (quoting Brock v.

Richardson, 812 F.2d 121, 124 (3d Cir. 1987)). The

antiretaliation provision is thus “broadly construed” and

“protect[s] employees engaging in activities not spelled out in

the statute.” Id. at *4. It “does not confine the actions and

harms it forbids to those that are related to employment or

occur at the workplace”; however, the provision is limited to

“those (and only those) employer actions that would have been

materially adverse to a reasonable employee or job applicant.”

Burlington N. & Santa Fe Ry Co. v. White, 548 U.S. 53, 57

(2006); see also Protecting Workers from Retaliation, at 3

(noting that former employees are protected under FLSA for

retaliation that occurs after the termination of an employment

relationship).

An adverse action refers to any action that could deter a

worker from exercising their rights, and includes termination,

threats, and blacklisting, among other actions. Id. at 2. An

adverse action, standing alone, is insufficient; there must be a

causal nexus between the protected activity and the adverse

employment action. Id. at 3; see also Burlington N. & Santa Fe

Ry. Co., 548 U.S. at 67 (“The antiretaliation provision protects

an individual from not all retaliation, but from retaliation

that produces an injury or harm.”); Jones v. Amerihealth

Caritas, 95 F. Supp. 3d 807, 814 (E.D. Pa. 2015) (listing the

elements of a FLSA retaliation claim as “(1) the plaintiff

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” (quoting Scholly v. JMK Plastering, Inc., No. 07-4998,

2008 WL 2579729, at *3 (E.D. Pa. June 25, 2008))).

When the alleged retaliation occurs after an employee has

been terminated, the plaintiff must allege that the action was

materially adverse, and thus would dissuade a reasonable

employee from making a similar charge, because it caused harm to

the plaintiff’s employment opportunities; such plaintiff cannot

succeed merely by alleging that the employer engaged in

upsetting conduct if it did not affect their future employment

prospects. Dean v. Phila. Gas Works, No. 19-4266, 2021 WL

2661485, at *12 (E.D. Pa. June 28, 2021). A former employer thus

engages in retaliation where its action “results in discharge

from a later job, a refusal to hire the plaintiff, or other

professional or occupational harm.” Charlton v. Paramus Bd. of

Educ., 25 F.3d 194, 200 (3d Cir. 1994). In essence, post-

employment retaliation “must relate to an employment

relationship” and “involve[] some harm to an employee's

employment opportunities.” Nelson v. Upsala College, 51 F.3d

383, 387, 388 n.6 (3d Cir. 1995); Boandl v. Geithner, 752 F.

Supp. 2d 540, 568 (E.D. Pa. 2010).

For example, an employer’s disparaging statements about a

former employee to current employees may be too slight of an

“adverse action” to give rise to a post-termination retaliation

claim. Ergo v. Int’l Merchant Servs., Inc., 519 F. Supp. 2d 765,

780 (N.D. Ill. 2007) (citing Burlington N. & Santa Fe Ry. Co. v.

White, 548 U.S. 53, 68 (2006)) (“[T]he Court concludes that

Plaintiffs’ allegations of accusation and name-calling cannot

support liability under the FLSA’s retaliation provision.”). On

the other hand, an employer’s public disclosure that an employee

had engaged in protected activity may constitute a materially

adverse employment action. See Greengrass v. Int’l Monetary

Sys., Ltd., 776 F.3d 481, 485 (7th Cir. 2015) (“[L]isting

[Plaintiff’s] name in publicly available SEC filings (and

referring to her complaint as ‘meritless’) constituted a

materially adverse employment action. . . . [N]aming EEOC

claimants in publicly available SEC filings could ‘dissuade[] a

reasonable worker from making or supporting a charge of

discrimination’--the essence of a materially adverse employment

action (quoting Burlington N. & Santa Fe Ry. Co., 548 U.S. at

68)).

Defendant does not contest that Plaintiff has engaged in

protected activity. Plaintiff clearly engaged in protected

activity by filing the original complaint, publicly exposing her

employer’s alleged failure to pay overtime wages. Defendant

concedes awareness of the protected activity and does not

contest that the statements in the Legal Intelligencer were made

in response to a question about this lawsuit, permitting an

inference of retaliatory intent (indicating that the causation

requirement is likely met). At issue, thus, is whether the

statement in the Legal Intelligencer,1 is a materially adverse

employment action.

Plaintiff’s allegations of harm based on legal conclusions

must be disregarded.2 Iqbal, 556 U.S. at 678-79. Her allegations

1 The statement at issue, copied from p. 2 above, is as

follows:

According to Mongeluzzi, Purvenas-Hayes’ July 2021

departure came just two weeks before the firm’s

deadline for employees to receive their firm-mandated

COVID-19 vaccinations. He said she left because she

did not wish to receive the shot and that he was one

of two employees in the approximately 100-person firm

not to comply.

Mongeluzzi said the case is an instance of a

disgruntled employee suing over unfounded claims.

2 For instance, Plaintiff alleges:

43. The Legal Intelligencer reported the foregoing

statements to the Philadelphia legal community on June

13, 2022, causing significant embarrassment and pain

and suffering to Plaintiff (as Defendant Mongeluzzi

intended).

. . .

45. The foregoing disclosure was also made in

retaliation for Plaintiff’s filing of the instant

civil action to assert her rights under the Fair Labor

Standards Act.

. . .

81. Defendants’ public disclosure of Plaintiff’s

confidential medical information and their other

statements as aforesaid were made deliberately and in

retaliation for Plaintiff’s filing of the instant

action and other protected activity under the FLSA.

. . .

that remain do not sufficiently allege that she suffered a

materially adverse employment action--that is, she has not

sufficiently alleged that her future employment prospects were

harmed. Plaintiff alleges in the Second Amended Complaint that

she has applied for paralegal positions with at least six

employers and, since the publication of the Legal Intelligencer

article, has been rejected from all of these positions. Am.

Compl. ¶¶ 51-67. Defendants challenge the significance of

Plaintiff’s rejections, as Plaintiff was employed in an

apparently comparable position at the time the Intelligencer

article was published, and remains employed in the same position

today. Defs.’ Mot. at 2. Defendants further argue that Plaintiff

cannot make out a FLSA retaliation claim because she has not

alleged that she met the qualifications of any of the jobs to

which she applied, nor has she alleged that any of the potential

employers disclosed or so much as suggested that they had heard

of or read the Intelligencer article containing the allegedly

damning statements. Id. at 3-6; see also Charlton, 25 F.3d at

84. Upon information and belief, Defendants’

statements as aforesaid constituted an adverse

employment action in that they deprived Plaintiff of

employment opportunities, including but not limited to

the opportunities outlined supra at paragraphs 51

through 67.

Second Am. Compl. ¶¶ 43, 45, 81, 84.

201 (requiring a plaintiff to ultimately demonstrate that a

defendant former employer “made a retaliatory use of [its]

influence to the detriment of [a plaintiff’s] employment

opportunities”); Wadhwa v. Secretary, Dep’t of Veterans Affs.,

505 F. App’x 209, 215 (3d Cir. 2012) (noting that a plaintiff

could not make out a claim of retaliation for failure to hire

where he “ha[d] not identified who was aware of his protected

activity . . . , who was responsible for not selecting him for

the vacancy, and how his failure to be selected was in any way

connected to his protected activity” and “the fact that he was

given no explanation for his non-selection” was not “sufficient

to demonstrate a causal connection”).

Plaintiff relies exclusively on (1) the fact that the

article was publicly available and comes up on Google when her

name is searched;3 (2) the assumption that all prospective

employers must have Googled her and seen the statements by

Defendants in the article; (3) the assumption that prospective

employers saw the statements and decided not to hire her on that

3 The Court notes that, as of January 16, 2023, the article does

not show up within the first three Google search results for

“Desiree Purvenas-Hayes.” In fact, an open source version of the

docket of this lawsuit appears in the top three search results,

and the Legal Intelligencer article is not on the first page at

all. Rather, a Law360 article which does not have the statements

at issue in it returns in the top ten search results. The Legal

Intelligencer article becomes the second search result when

searching for “Desiree Purvenas-Hayes Legal Intelligencer.” And,

the article is no longer accessible for free.

basis; and (4) the temporal proximity between the article and

her rejections to support her claim of retaliation.4 Pl.’s Resp.

in Opp’n at 5. But, without any allegation that Plaintiff was

even qualified for these positions or that she had to apply for

non-comparable positions in order to find substitute employment,

it is too speculative to open the doors of discovery--directed

towards multiple third-parties--on the retaliation claim.5

Moreover, Plaintiff has not alleged sufficient facts to show

4 Eure v. Friends’ Central School Corp., 18-1891, 2019 WL 3573489

(E.D. Pa. Aug. 5, 2019), in ultimately finding that Plaintiffs’

complaint could survive a motion to dismiss on a retaliation

claim arising in part out of a former employer’s statement to a

newspaper regarding Plaintiffs’ protected activity is not to the

contrary. Rather, in Eure, Plaintiffs explicitly pleaded that

“Defendants’ public statements concerning the reasoning and

nature of Plaintiffs’ suspension and firing, lowered Plaintiffs’

reputations in the community and prevented them from securing

gainful employment.” Id. at *10 (emphasis added). There is no

such allegation here that Plaintiff has not been able to secure

comparable employment as a paralegal since resigning from Saltz

Mongeluzzi & Bendesky P.C.

5 Notably, at the hearing on the Partial Motion to Dismiss on

October 6, 2022, Plaintiff’s counsel stated, in response to the

Court’s asking “how has she been adversely affected by the

statement,” that she had not been impacted employment-wise up to

that point, and “doesn’t know of anybody who refused to hire her

or pay her.” Hr’g Tr. 22:9-22, ECF No. 23. Moreover, Plaintiff’s

counsel stated that, “At the time the statement was made she was

working. . . . She’s still there.” Id. 23:9-14. Counsel also

stated that the adverse employment aspect at issue was the

prospective effect on Plaintiff’s employment, as the adverse

action hadn’t happened yet. Id. 24:5-20. However, five of the

six rejections that Plaintiff claims were caused by Defendant’s

statements had already occurred.

that Defendants exercised some influence over the prospective

employers’ decisions not to offer her a job.

Given that Plaintiff has already had ample notice, time,

and opportunity to support Count II following the October 6,

2022, hearing on Defendants’ initial Motion to Dismiss, the

motion to dismiss the Second Amended Complaint shall be granted

and leave to amend will be denied.

V. CONCLUSION

For the foregoing reasons, Count II of Plaintiff’s Second

Amended Complaint for retaliation under FLSA is dismissed with

prejudice. An appropriate order follows.