# HARVEY v. TECHNIMARK LLC

> District Court, W.D. Pennsylvania · March 8, 2024

URL: https://www.frixlaw.com/law-library/cases/10419566

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** March 8, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10419566

## How later opinions describe it (automated extraction)

- holding that the WPCL does not provide a cause of action for retaliatory wrongful discharge
- affirming dismissal of individual defendants under Title VII and the EPA, because there is no individual liability under the statutes
- holding that only supervisory employees may be liable for “aiding and abetting” an employer’s alleged discriminatory practice under the PHRA

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
PITTSBURGH

ROBERT HARVEY III, )
)

) 2:23-CV-00536-MJH
Plaintiff,
)

)
vs.
)

)
TECHNIMARK HEALTHCARE, LLC,
)
SCOTT IRVINE,
)

Defendants,

MEMORANDUM OPINION
Pro se Plaintiff, Robert Harvey III, filed the present lawsuit against Defendants, Technimark
LLC, and Scott Irvine, on November 10, 2022. (ECF No. 1). On March 28, 2023, Mr. Harvey
filed an Amended Complaint. (ECF No. 6). On October 3, 2023, Mr. Harvey filed a five-count
Second Amended Complaint against Defendants. The claims contained in the Second Amended
Complaint are as follows: (1) age discrimination, under the Age Discrimination in Employment
Act (“ADEA”) and the Pennsylvania Human Relations Act (“PHRA”); (2) breach of contract,
based upon failure to perform various contractual obligations; (3) violations of the Equal Pay Act
of 1963 (“EPA”); (4) retaliation, based upon Mr. Harvey’s complaints about Technimark’s
failure to pay him relocation funds; and (5) race discrimination in violation of Title VII and the
PHRA. Presently, before the Court, is Defendants’ Motions to Dismiss Mr. Harvey’s Amended
Complaint (ECF Nos. 31 & 33). The Motions to Dismiss have been fully briefed and are ripe for
decision.
For the reasons below, Defendants’ Motions to Dismiss will be granted in full.
I. Statement of Facts
Pro se Plaintiff, Robert Harvey III, a Black man, was 68 years old when he was hired by

Defendant, Technimark LLC (“Technimark”). (ECF No. 30, at 6). On August 23, 2021, Mr.
Harvey had an in-person interview with Technimark, for a position as a Tool and Dye Mold
Maker, at Technimark’s facility in Latrobe, Pennsylvania. (Id. at 3, 5). Mr. Harvey alleges that,
during the interview, he entered an oral agreement as to the terms of his employment with
Technimark. (Id. at 4). Mr. Harvey does not indicate who he made such agreement with. The
alleged oral agreement involved Mr. Harvey’s schedule, assignment to Crew Group “B,” hourly
pay-rate, benefits, and relocation assistance. (Id.). On August 25, 2021, Technimark sent Mr.
Harvey an offer letter, which Mr. Harvey alleges had different terms than the oral agreement he
had made at his interview. (Id.). Despite the observed differences in the offer letter’s terms, Mr.
Harvey signed the letter. (Id.). In referencing the relocation funds available to Mr. Harvey, the

offer letter states, “[Mr. Harvey] will receive $6,500.00 (taxed accordingly unless you bill
directly with relo-service) with a payback clause should you leave Technimark (100% if you
leave in year-one and 50% in year two).” (ECF No. 32-1). The offer letter did not contain a date
for when the relocation funds would be paid to Mr. Harvey. (ECF No. 30, at 17). Mr. Harvey
alleges that, after signing the offer letter, Mr. Harvey moved out of the home that he was living
in, located at 1724 Arthur Dr. NW, Warren OH 44485, and moved into one of his vacant rental
properties, located at 843 Utica Court NW, Warren OH 44485. (Id. at 9).

On September 15, 2021, Mr. Harvey began working at Technimark in Latrobe, Pennsylvania.
(Id. at 10). Mr. Harvey avers that Technimark should have paid him the relocation funds on
September 15, 2021, upon his arrival to work, because he had “completed his performance per
contractual agreement.” (Id.). The only support that Mr. Harvey provides that he relocated or that
he intended to relocate was a hotel receipt for a one-night stay in Latrobe, Pennsylvania. (ECF
No. 35-2). On September 16, 2021, Defendant, Scott Irvine, told Mr. Harvey the relocation funds
would be included in his first paycheck, with payroll taxes deducted, unless Mr. Harvey
submitted an invoice or estimate from a moving company for direct reimbursement. (Id.). On

September 16, 2021, Mr. Harvey found out that his schedule had been changed from the twelve-
hour afternoon shift (the shift Mr. Harvey claims he agreed to work) to the twelve-hour day shift.
(Id. at 11). Mr. Harvey claims that Kevin and Mark, younger and white coworkers, were only
required to work eight-hour shifts, as opposed to Mr. Harvey, who worked a twelve-hour shift.
(Id.). Mr. Harvey further alleges that Technimark’s tool supervisor, Andy Robertson, informed
Mr. Harvey that he could not operate the overhead crane until he watched a safety video. (Id.).
Mr. Harvey alleges that Technimark does not typically require watching a safety video before
operating the overhead crane. (Id.).

When Mr. Harvey received his first paycheck, the relocation funds were not included. (Id. at
12). After inquiring into the absence of the relocation funds in his first paycheck, Mr. Harvey
alleges that Mr. Irvine stated, “you will have to wait until the next paycheck distribution, October
8, 2021, unless [Mr. Harvey] submitted a written quotation or invoice from the Moving
Company defendants could not have the funds released immediately.” (Id. at 13). Mr. Harvey
alleges that he then met with Mr. Robertson and Mr. Irvine, and Mr. Irvine agreed that the funds
would be distributed to R.H. III Moving and Relocation Company, after the company provided
Technimark with the proper documentation. (Id. at 13-14). Mr. Harvey claims that he submitted

the requested documentation the next day, September 28, 2021. (Id. at 14). Mr. Harvey alleges
that, on September 29, 2021, a Technimark Human Resources employee contacted R.H. III
Moving and Relocation Services, and informed the company’s receptionist, Ariannah Warfield,
that “the issues had been resolved.” (Id. at 14). On September 30, 2021, Mr. Harvey was
informed by Mr. Irvine, that Technimark would not distribute the relocation funds to R.H. III
Moving, because Mr. Harvey had an ownership interest in the company, and it is not an
independent moving company. (Id. at 15).

On October 1, 2021, Mr. Harvey met with Mr Irvine, and demanded that he be paid the
relocation funds. (Id. at 21). Mr. Harvey alleges that, during this meeting, Mr. Irvine said, “I
guess the means you voluntarily quit.” Mr. Irvine allegedly told Mr. Harvey that he was
committing tax fraud, and relayed that the reimbursement funds would only be made to an
independently owned moving company. (Id.). Mr. Harvey then asked Technimark to call the
police. (Id. at 22). Once the police arrived, Mr. Harvey was instructed to get his tools and leave

Technimark’s property. (Id.).
II. Relevant Legal Standards

A. (12)(b)(6) Standard
When reviewing a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6),
the court must “accept all factual allegations as true, construe the complaint in the light most
favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint,
the plaintiff may be entitled to relief.” Eid v. Thompson, 740 F.3d 118, 122 (3d Cir. 2014)
(quoting Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). “To survive a motion to
dismiss, a complaint must 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)).
The Supreme Court clarified that this plausibility standard should not be conflated with a
higher probability standard. Iqbal, 556 U.S. at 678. “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.” Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 556); see also Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir.

2014). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 556 U.S. at 678. “Factual allegations of a complaint must be
enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. A
pleading party need not establish the elements of a prima facie case at this stage; the party must
only “put forth allegations that ‘raise a reasonable expectation that discovery will reveal
evidence of the necessary element[s].’” Fowler v. UPMC Shadyside, 578 F.3d 203, 213 (3d Cir.
2009) (quoting Graff v. Subbiah Cardiology Assocs., Ltd., 2008 WL 2312671 (W.D. Pa. June 4,
2008)); see also Connelly v. Lane Constr. Corp., 809 F.3d 780, 790 (3d Cir. 2016).
Nonetheless, a court need not credit bald assertions, unwarranted inferences, or legal

conclusions cast in the form of factual averments. Morse v. Lower Merion Sch. Dist., 132 F.3d
902, 906 n.8 (3d Cir. 1997). The primary question in deciding a motion to dismiss is not whether
the plaintiff will ultimately prevail; but rather, whether he or she is entitled to offer evidence to
establish the facts alleged in the complaint. Maio v. Aetna, 221 F.3d 472, 482 (3d Cir. 2000).The
purpose of a motion to dismiss is to “streamline[] litigation by dispensing with needless
discovery and factfinding.” Neitzke v. Williams, 490 U.S. 319, 326-27 (1989).
Furthermore, “in evaluating a motion to dismiss, courts are not limited to the complaint,
but may also consider evidence integral to or explicitly relied upon therein.” Tanksley v.
Daniels, 902 F.3d 165, 172 (3d Cir. 2018) (internal quotations omitted). “In deciding a Rule
12(b)(6) motion, a court must consider only the complaint, exhibits attached to the complaint,
matters of public record, as well as undisputedly authentic documents if the complainant’s claims
are based upon these documents.” Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citation
omitted).
B. Leave to Amend
In a civil rights case, when the court grants a motion to dismiss for a failure to state a

claim, the court must offer the plaintiff leave to amend, even if it was not requested by the
plaintiff, “unless doing so would be inequitable or futile.” Phillips, 515 F.3d at 246; Fletcher-
Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007).
III. Discussion
A. Age and Race Discrimination

At Counts I and V of the Second Amended Complaint, Mr. Harvey brings age and race
discrimination claims under Title VII, the ADEA, and the PHRA, against Technimark and Mr.
Irvine. (ECF No. 30, at 6, 23). Mr. Harvey alleges that Defendants discriminated against him,
based upon his age and race, because Defendants failed to distribute relocation funds to Mr.
Harvey, changed his agreed upon schedule, and did not provide him with healthcare benefits. (Id.
at 6-15).

To establish an age or race discrimination claim, Mr. Harvey must plead sufficient facts
to show that: (1) he is a member of a protected class; (2) he suffered an adverse employment
action; (3) he was qualified for his position; and (4) the adverse action arose under circumstances
giving rise to an inference of age or race discrimination. See Sarullo v. U.S. Postal Serv., 352
F.3d 789, 797 (3d Cir. 2003) (describing the prima facie burden for race discrimination); See
also Dodson v. Coatesville Hosp. Corp., 773 F. App’x 78, 80 (3d Cir. 2019) (describing the
prima facie burden of age discrimination.)

i. Technimark
Technimark argues that Mr. Harvey fails to plead sufficient facts to establish that a causal
connection exists between the alleged adverse employment actions and his age or race. (ECF No.
32, at 6). Mr. Harvey argues that Techinmark discriminated against him, based upon his age and
race, when they did not disburse the relocation funds to him, changed his schedule, and did not
provide him with healthcare benefits. (Id. at 6-15). In support of his argument, Mr. Harvey

alleges that two younger, white coworkers, were required to work eight-hour shifts, while he was
required to work twelve-hour shifts. (Id. at 11).
Mr. Harvey does not allege any facts sufficient to establish that a causal connection exists
between his age or race and Technimark’s failure to disburse the relocation funds, the alleged
schedule changes, the failure to provide health care benefits, and/or the circumstances
surrounding his departure from Technimark. Mr. Harvey relies primarily on the fact that he is a
68-year-old, Black man, to support that these actions occurred because of his age and/or race.

Such conclusory statements are not sufficient to establish that it is plausible that these alleged
actions occurred because of his age or race. See Morse v. Lower Merion Sch. Dist., 132 F.3d 902,
906 n.8 (3d Cir. 1997).
Moreover, the comparator evidence, that Mr. Harvey alleges in his Second Amended
Complaint, that Kevin and Mark, the younger, white employees at Technimark, is also
insufficient to establish that it is plausible that a causal connection exists between the alleged

actions and Mr. Harvey’s age or race. Kevin and Mark were not similarly situated to Mr. Harvey.
Mr. Harvey pleads that Kevin was an apprentice at Technimark – a different position than Mr.
Harvey, who was hired as a Tool and Dye Mold Maker. (Id. at 7). Mr. Harvey does not specify
Mark’s position at Technimark. See Parker v. Farley, 625 F. App’x 77, 82 (3d Cir. 2015) (noting
that comparators must be similarly situated “in all relevant respects” to support any inference of
race or age discrimination). Further, the only differential treatment that Mr. Harvey alleges was

that Mark and Kevin worked eight-hour shifts while Mr. Harvey worked twelve-hour shifts.
However, Mr. Harvey pleads that he was hired to work twelve-hour shifts. (ECF No. 30, at 4-5).
Mr. Harvey’s 12-hour work day was a result of the agreed upon terms of his employment, not
any differential treatment from Technimark.
As Mr. Harvey fails to plead sufficient facts to establish that it is plausible that a causal
connection exists between the alleged adverse actions and his race and/or age, Tehnimark’s

Motion to Dismiss will be granted as to all race and age discrimination claims brought against it
under Title VII, the ADEA, and the PHRA, at Counts I and V of the Second Amended
Complaint. As the Court cannot say that amendment would be inequitable or futile, Mr. Harvey
will be granted leave to amend regarding these claims.
ii. Mr. Irvine

Mr. Harvey brings age and race discrimination claims under Title VII, the ADEA, and
the PHRA against Mr. Irvine. (ECF No. 30, at 6,23). Mr. Irvine argues that individual employee
liability does not exist under Title VII and the ADEA. (ECF No. 34, at 5). Mr. Irvine further
argues that Mr. Harvey fails to establish a PHRA claim, because Mr. Harvey fails to allege that
Mr. Irvine is his supervisor. (Id.). Mr. Harvey argues that Mr. Irvine discriminated against him
based on his age and race when he did not disburse the relocation funds to him, changed his
schedule, and did not provide him with healthcare benefits. (Id. at 6-15).
a. Title VII and the ADEA Claims
Individual employee liability does not exist under Title VII and the ADEA. Hill v.

Borough of Kutztown, 455 F.3d 225, 246 n.29 (3d Cir 2006) (“[Plaintiff] did not bring an ADEA
claim against [the individual employee] himself, nor could he have because the ADEA does not
provide for individual liability.”) (collecting cases holding that there is no individual liability
under the ADEA); Kachmar v. SungGuard Data Sys., Inc., 109 F.3d 173, 184 (3d Cir. 1997)
(affirming dismissal of individual defendants and holding that Title VII does not permit
individual employee liability). Mr. Irvine is an individual; therefore, he cannot be liable under
Title VII and the ADEA.

Thus, Mr. Irvine’s Motion to Dismiss, as to all Title VII and ADEA claims brought
against him, at Counts I and V of the Second Amended Complaint, will be granted. As
amendment to these claims is futile, the Title VII and ADEA claims brought against Mr. Irvine,
at Counts I and V of the Second Amended Complaint, will be dismissed with prejudice.
b. PHRA Claims

The PHRA provides for individual liability only for supervisors who “aid, abet, incite,
compel or coerce doing of any . . . unlawful discriminatory practice.” 43 Pa. Cons. Stat. § 955
(e); See also Reganick v. SW. Veterans’ Ctr., 2008 WL 768423, at *8 (W.D. Pa. 2008) (citing
Dici v. Pa., 91 F.3d 542, 553 (3d Cir. 1996) (holding that only supervisory employees may be
liable for “aiding and abetting” an employer’s alleged discriminatory practice under the PHRA).
Mr. Harvey does not allege that Mr. Irvine was one of his supervisors. Mr. Harvey only pleads
that Mr. Irvine was a Human Resources Manager, whom he met on multiple occasions to discuss

disbursement of the relocation funds. Further, even if Mr. Irvine was one of Mr. Harvey’s
supervisors, Mr. Harvey fails to plead sufficient facts to establish that Mr. Irvine aided and
abetted Technimark in carrying out the alleged discriminatory actions.

Thus, Mr. Irvine’s Motion to Dismiss Mr. Harvey’s PHRA claims brought against him, at
Count I and V of the Second Amended Complaint, will be granted. As the Court cannot say that
amendment would be inequitable or futile, Mr. Harvey will be granted leave to amend his PHRA
claims against Mr. Irvine.
B. Breach of Contract
At Count II of the Second Amended Complaint, Mr. Harvey brings breach of contract claims
against Technimark and Mr. Irvine, alleging that the Defendants breached written, verbal, and
implied contracts. (ECF No. 30, at 3, 12).

To state a claim for breach of contract in Pennsylvania, a plaintiff must plead: “(1) the
existence of a contract, including its essential terms; (2) a breach of duty imposed by the
contract; and (3) resultant damages.” Ware v. Rodale Press, Inc., 322 F.3d 218, 225 (3d Cir.
2003) (quoting CoreStates Bank, N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa. Super. Ct. 1999)). To
establish the existence of a contract, a plaintiff must show the three essential elements of contract
formation – offer, acceptance, and consideration. See Kowal v. Ferndale Area Sch. Dist., 2019

WL 96066 (W.D. Pa. 2019). To sustain a breach of contract claim, there must be privity of
contract between the contracting parties. See Deynzer v. Columbia Gas of Pa., Inc., 875 A.2d
298, 301 (Pa. Super. Ct. 2005) (“[P]rivity of contract is personal privity, and is confined to the
persons of the contracting parties.”).
i. Technimark
Tehnimark argues that all the alleged breach of contract claims brought against it fail,
because the alleged verbal contracts are not enforceable; there is no plausible breach of contract
claim based on the written offer letter; and that no two-year implied contract existed. (ECF No.
32, at 9, 10, 12). Mr. Harvey argues that all of the alleged contracts existed and are enforceable
against the Technimark. (ECF No. 30, at 15).

There are two recognizable contracts alleged by Mr. Harvey in his Second Amended
Complaint. The first alleged contract was the verbal agreement that Mr. Harvey alleges was
made during his interview for employment at Technimark. During this interview, Mr. Harvey
alleges he verbally agreed, with an unnamed individual, that he would work the afternoon shift
on Crew Group “B,” that he would work 4 days a week, with 3 days off, and that he would be
paid a $7,500 relocation fee. (ECF No. 30, at 4). The next alleged contract was the written offer

letter. The written offer letter’s terms indicated that Mr. Harvey would receive relocation
assistance in the amount of $6,500, taxed accordingly, unless a bill was sent to Technimark from
a relocation service. (ECF No. 31-1). The offer letter also contained a payback clause, which
indicated that if Mr. Harvey left Technimark within a year, he would have to pay back the entire
sum of the relocation funds, and if he left within two years, then he would have to payback half
of the relocation funds. (Id.). Additionally, the offer letter contained language that waived any
prior offers or agreements. (Id.). Specifically, the letter stated, “[b]y signing below, you are
confirming your acceptance of the offer letter and are verifying that no other commitments
regarding this offer or future payments or arrangements have been made to you by anyone at
Technimark.” (Id.).

Here, the alleged verbal agreements made during Mr. Harvey’s interview for employment at
Technimark are not enforceable. Mr. Harvey fails to plead who offered him employment, who
accepted the offer, or if there was any exchange of consideration between himself and the
unnamed Technimark employee who interviewed him. At the time of the interview, Mr. Harvey
had not been offered employment, so no consideration was present. See Encore Int’l Inc. v.
Downey, 343 F. Supp 3d 459 (E.D. Pa. 2018) (citing Lackner v. Glosser, 892 A.2d 21, 30 (Pa.
Super. Ct. 2006) (“Where. . . there is no agreement or even discussion as to any of the essential

terms of an alleged bargain, such as . . . consideration, the ‘agreement’ is too indefinite for a
party to reasonably believe that it can be enforceable in an action at law.”). At most, the alleged
verbal agreements were agreements to agree or offer employment in the future. Pennsylvania
courts have held that such agreements are unenforceable. See Chanel Home Ctrs., Div. of Grace
Retail Corp v. Grossman, 795 F.2d 291,298 (3d Cir. 1986) (“It is hornbook law that evidence of
preliminary negotiations or an agreement to enter into a binding contract in the future does not
alone constitute a contract.”); Highland Sewer and Water Auth. v. Forest Hills Municipal Auth.,
797 A.2d 385, 390 (Pa. Commw. Ct. 2002) (“An agreement to agree is incapable of
enforcement[.]”) Further, Mr. Harvey agreed to waive any prior agreements when he signed the

written offer letter for employment at Technimark. Thus, the alleged verbal agreement made
during Mr. Harvey’s interview for employment is not enforceable.
Next, Mr. Harvey alleges that Techimark breached the contract that was formed when he
signed the written offer letter, because he was not provided with health care benefits on October
1, 2021, and because the relocation funds were never distributed to him. Mr. Harvey argues that
the relocation funds were due to him on September 15, 2021, the day that he began working at
Technimark. Mr. Harvey does not allege that there was an agreed upon a date that the funds

would be distributed to him. Moreover, the written agreement does not specify a date when the
relocation funds would be paid. Mr. Harvey assumed that he would receive the relocation funds
on his start date, based on his prior experience in the industry, and representations made to him
by Mr. Moore, a third-party recruiter. Mr. Harvey never avers that Technimark agreed to pay
him said funds on his start date. Additionally, in Mr. Harvey’s Second Amended Complaint, he
does not plead any terms from the written letter that support his claim of repudiation or breach of
any of the written offer letter based upon conversations with Mr. Irvine about payment of the

relocation funds or the refusal of Technimark to pay the funds to R.H. III Moving and Relocation
Company. Thus, Mr. Harvey fails to plead sufficient facts to establish that Technimark breached
any duty imposed by the written offer letter.
Moreover, Mr. Harvey did not suffer any damages from the alleged breach of the written
agreement. When Mr. Harvey signed the written offer of employment, he agreed to the payback
clause that was included in the written offer letter. The payback clause held, that if Mr. Harvey

left Technimark within a year, he would have to pay back the entire sum of the relocation funds.
Mr. Harvey worked at Technimark from September 15, 2021 to October 1, 2021, which is less
than one month. Consequently, he would have been required to pay back the entire sum of the
relocation funds if he had received them. Thus, Mr. Harvey fails to plead facts to establish that
he suffered any damages because of Technimark’s failure to distribute the relocation funds to
him.
Similarly, Mr. Harvey fails to plead sufficient facts to establish that Technimark’s failure

to provide him health care benefits by October 1, 2021 is a breach of contract, because he fails to
allege that he suffered any damages or was ever refused said benefits. In Mr. Harvey’s Second
Amended Complaint, he claims, in a conclusory fashion, that he did not receive his health care
benefits on October 1, 2021. October 1, 2021 was his final date of employment. As such,
prospective health benefits were not at issue once he no longer worked for Technimark. No
benefits were due with no continuing employment. As such, Mr. Harvey fails to plead sufficient
facts to establish that Technimark had any duty to provide health care benefits after he was no
longer an employee, or that he suffered any damages from Technimark’s alleged failure to
provide him with healthcare benefits on October 1, 2021.

Finally, Mr. Harvey alleges that Techinmark breached an implied contract to employ him
for two years, formed by the language of the written offer letter, discussing repayment of the
relocation funds. In Mr. Harvey’s Second Amended Complaint, he acknowledges that
Pennsylvania is an at-will employment state. (ECF No. 30, at 12). In at-will employment states,
unless otherwise provided in a written employment agreement, or by applicable law,
employment may be terminated at any time, with or without notice. See Schoch v. First Fidelity
Bank Corp., 912 F.2d 654, 660 (3d Cir. 1990). The written offer letter does not contain any term

or promise to employ Mr. Harvey for any period of time, nor does Mr. Harvey plead any other
express term that specified any guaranteed term of employment. The only mention of time within
the written offer was the payback clauses related to repayment of the relocation funds. Thus,
there was no express two-year employment contract.
Additionally, there is no implied contract created by the language of the written offer
letter. Mr. Harvey does not plead any facts to establish that an offer for a two-year term of
employment was ever extended to him, that he accepted any such offer, or that there was any

consideration present. As stated in the above paragraph, the only mention of any sort of time
period was in the written offer letter’s payback clause, which clearly does not establish any sort
of two-year employment term. As such, Mr. Harvey fails to plead sufficient facts to establish that
an implied contract for two years of employment at Technimark existed.
Further, where no express or implied contract exists, the only other premise upon which
Mr. Harvey could establish a right to employment beyond his actual period of employment
would be under the Pennsylvania exception to the employment at-will doctrine. In some cases,
Pennsylvania courts have recognized a narrow exception to the employment at-will doctrine
where an employee must show that they experienced an “extraordinary” benefit or detriment.

Kane v. Platinum Healthcare LLC, 2011 WL 248494, at *4 (E.D. Pa. 2011) (citing Martin v.
Safeguard Scientifics Inc., 17 F. Supp. 2d 357, 369 (E.D. Pa. 1998)). However, Mr. Harvey does
not plead that he ever relocated to Latrobe to work at Technimark, he only pleads that he moved
from his residence in Warren, Ohio, to another residence in the same town. In his Response, Mr.
Harvey attaches a hotel receipt as support that he did in fact relocate or plan to relocate to
Latrobe, Pennsylvania. (ECF No. 35-2). But the hotel receipt indicated that Mr. Harvey only
stayed one night in the hotel. (Id.). The allegations within the Second Amended Complaint do
not sufficiently allege any facts to support that he suffered any “extraordinary” detriment.
Therefore, Mr. Harvey does not plead sufficient facts to establish that any implied two-year

employment contract existed, much less whether Technimark breached any such contract.
Thus, as Mr. Harvey fails to plead sufficient facts to establish any breach of contract
claim, Technimark’s Motion to Dismiss the breach of contract claims brought against it, at Count
II of the Second Amended Complaint, will be granted. As the Court cannot say that amendment
would be inequitable or futile, Mr. Harvey will be granted leave to amend regarding these breach
of contract claims brought against Technimark.

ii. Mr. Irvine
Mr. Harvey brings the same breach of contract claims against Mr. Irvine. However, in Mr.
Harvey’s Second Amended Complaint, he does not plead that Mr. Irvine was a party, in his
individual capacity, to any of the alleged contracts. Accordingly, there is no privity of contract
between Mr. Irvine and Mr. Harvey; and thus, Mr. Irvine does not owe Mr. Harvey any duty
under the alleged contracts.

Thus, Mr. Harvey fails to plead sufficient facts to establish that Mr. Irvine breached any of
the alleged contracts. Mr. Irvine’s Motion to Dismiss the breach of contract claims brought
against him, at Count II of the Second Amended Complaint, will be granted. As the Court cannot
say that amendment would be inequitable or futile, Mr. Harvey will be granted leave to amend
regarding his breach of contract claims brought against Mr. Irvine.

C. Equal Pay Act
At Count III of the Second Amended Complaint, Mr. Harvey brings an EPA claim
against Technimark and Mr. Irvine. (ECF No. 30, at 20).
i. Technimark
Technimark argues that Mr. Harvey fails to bring an EPA claim, because he does not

reference any sex-based discrimination within his Second Amended Complaint. (ECF No. 32, at
8). Mr. Harvey argues that Technimark paid him less wages than other equally skilled
employees. (ECF No. 30, at 20).
The EPA applies only to “sex-distinction-based-pay-discrimination.” Alija-Iz v. U.S. V.I.
Dep’t of Educ., 626 F. App’x 44, 47 (3d Cir. 2015). Mr. Harvey does not plead any sex-based
discrimination within his Second Amended Complaint.

As such, Technimark’s Motion to Dismiss Mr. Harvey’s EPA claim brought against it, at
Count III of the Second Amended Complaint, will be granted. As the Court cannot say that
amendment would be inequitable or futile, Mr. Harvey will be granted leave to amend his EPA
claim against Technimark.

ii. Mr. Irvine
Mr. Irvine argues that Mr. Harvey cannot establish an EPA claim against him, because
individual liability does not exist under the EPA. (ECF No. 34, at 5).

Individual liability does not exist under the EPA. Wardlaw v. City of Phila. Street’s
Dep’t, 378 F. App’x 222, 225 (3d Cir. 2010) (affirming dismissal of individual defendants under
Title VII and the EPA, because there is no individual liability under the statutes). Here, Mr.
Harvey brings an EPA claim against Mr. Irvine, an individual, which is not available under the
EPA.
Thus, Mr. Irvine’s Motion to Dismiss, as to Mr. Harvey’s EPA claim brought against
him, at Count III of the Second Amended Complaint, will be granted. As further amendment will

be futile, said claim will be dismissed with prejudice.
D. Retaliation
At Count IV of the Second Amended Complaint, Mr. Harvey brings retaliation claims
against Technimark and Mr. Irvine, based upon his requests to be paid relocation funds, resulting
in wrongful discharge. (ECF No. 30, at 20). Mr. Harvey does not specify what law he brings
such retaliation claims under. Technimark and Mr. Irvine assume that Mr. Harvey is attempting
to bring a retaliation claim under the Pennsylvania Wage & Payment Collection Law (“WPCL”),
and they argue that retaliation claims and wrongful discharge claims are not available under the

statute. (ECF No. 32, at 8); (ECF No. 34, at 6).
Federal courts in Pennsylvania have consistently held that the WPCL does not provide a
cause of action for retaliation, nor does Pennsylvania law recognize a common law wrongful
discharge claim based on complaints regarding a failure to pay under the WPCL. See Donaldson
v. Informatica Corp., 792 F. Supp.2d 850, 860 (W.D. Pa. 2011) (holding that the WPCL does not
provide a cause of action for retaliatory wrongful discharge).

As the retaliation claims that Mr. Harvey brings against Technimark and Mr. Irvine are
not actionable under Pennsylvania law, Technimark and Mr. Irvine’s Motions to Dismiss the
retaliation claims brought at Count IV of the Second Amended Complaint, will be granted. As a
retaliation claim against Technimark and Mr. Irvine under the WPCL is not actionable,
amendment would be futile. Mr. Harvey will not be granted leave to amend regarding his
retaliation claims under the WPCL against Technimark and Mr. Irvine. To the extent that any

other legally actionable retaliation claims exist, Mr. Harvey will be granted leave to amend.
IV. Conclusion
For the reasons stated above, Technimark’s and Mr. Irvine’s Motions to Dismiss will be
granted in full.
Defendants’ Motions to Dismiss will be granted without leave to amend as follows:

• The Second Amended Complaint’s age discrimination claims under the ADEA
against Mr. Irvine, at Count I;
• The Second Amended Complaint’s race discrimination claims against Mr. Irvine
under Title VII, at Count V;
• The Second Amended Complaint’s EPA claim against Mr. Irvine, at Count III; and
e The Second Amended Complaint’s retaliation claims against Technimark and Mr.
Irvine under the WPCL, at Count IV.

Defendants’ Motions to Dismiss will be granted with leave to amend as follows:

e The Second Amended Complaint’s age discrimination claim under the ADEA
against Technimark, at Count I;
e The Second Amended Complaint’s race discrimination claim under Title VII
against Technimark, at Count V;
e The Second Amended Complaint’s breach of contract claims against Technimark
and Mr. Irvine, at Count II;
e The Second Amended Complaint’s EPA claim against Technimark, at Count IT;
and
e The Second Amended Complaint’s retaliation claims against Technimark and Mr.
Irvine only as to any other legally actionable retaliation claims, at Count IV.

A separate order to follow.

DATE: 3/8/2024 Merk. y Hora
Marilyn J. Foran
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10419566. Public record. Not legal advice.