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IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
ANTONIO MURPHY
Plaintiff,
v.
MCLANE EASTERN INC.
Post Office Box 6115
Temple, TX 76503-6115
and
MCLANE/EASTERN, INC.
t/d/b/a McLane PA
43 Valley View Business Park
Jessup, PA 18434
Defendants.
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CIVIL ACTION NO.: 3:16-cv-
01055
(Hon. James M. Munley)
DEFENDANT’S REPLY IN SUPPORT OF ITS MOTION TO DISMISS
COUNT IV OF THE COMPLAINT
Defendant, McLane/Eastern, Inc. t/d/b/a McLane PA, improperly pled as
separate entities with “McLane Eastern, Inc.” (“Defendant”), by and through its
undersigned counsel, file the following Reply in Support of its Motion to Dismiss
Count IV of the Complaint.
I. PRELIMINARY MATTERS
1. Defendant’s Motion was Timely Filed
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Plaintiff argues that Defendant’s motion is untimely. In support, he argues
that Plaintiff’s waiver was sent to Defendant on June 7, 2016 and that a response
was due by August 8, 2016. He then cites to Document No. 4 on the instant
matter’s docket, a docket entry which Plaintiff states he filed with the Court.
By referencing the dates in the filed waiver, the parties and Court can clearly
see that June 15, 2016 is the listed date from which Defendant had sixty (60) days
to respond, or on or before August 14, 2016. See Waiver of Summons with
Plaintiff’s Certificate of Service, Doc. No. 4, attached hereto as Exhibit “A”. As
August 14, 2016 was a Sunday, Defendant’s motion was timely filed on August
15, 2016.
2. Defendant’s Motion is in Compliance with Local Rule 7.1
Defendant’s motion is now in compliance with Local Rule 7.1. On
September 2, 2016 Defendant sought Plaintiff’s concurrence in the instant motion.
On September 6, 2016, Plaintiff informed Defendant he did not concur in the
motion. An appropriate Local Rule 7.1 Certification has been attached hereto.
Defendant submits that the lack of seeking concurrence was inadvertent and that
no party has been prejudiced by the lack of Local Rule 7.1 Certificate as the issue
is now cured.
II. ARGUMENT
1. Plaintiff Has Not Alleged That He Received “Ducks” for Absences in
the Complaint
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In Defendant’s Memorandum of Law in Support of Motion to Dismiss
Count IV of the Complaint (“Memorandum in Support”), Defendant argues that
Plaintiff cannot maintain his FMLA interference claim because he did not allege in
the Complaint that any benefits were actually withheld. As there are no such
allegations in the Complaint, Plaintiff’s interference claim is premised on receiving
discipline and being subsequently terminated. As set forth in the Lichtenstein cases
and Duncan, a plaintiff may not “go forward with an interference claim that is in
form and substance…a claim for retaliation.” See Memorandum in Support, pp.
10-13.1
In an effort to defeat Defendant’s motion, Plaintiff now argues, for the first
time, that that he received “ducks” for absences related to his July 2014 emergency
hospital visit. However, these are new allegations, not previously asserted in his
Complaint:
Here, Plaintiff has alleged that after he passed out at
work in July 2014 requiring emergency transportation by
an ambulance to a hospital, he was forced to use
unscheduled time off, which resulted in “ducks” to his
attendance record, which negatively impacted his job.
1 Defendant’s references to page numbers refers to the page numbers assigned by the Court’s ECF system located at
the top of each filed document.
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See Brief in Opposition to Defendant’s Motion to Dismiss Count IV of Plaintiff’s
Complaint (“Opposition”), p. 14 (emphasis added).
Even though Plaintiff requested FMLA following this
incident, and even though it was clear that Plaintiff had
given sufficient notice of the qualifying reasons for his
needed leave, he received a “duck” and was not afforded
FMLA leave for this absence.
See Opposition, p. 14 (emphasis added).
A review of the Complaint demonstrates that Plaintiff has not alleged that he
received “ducks” as a result of his July 2014 emergency treatment. The Complaint
paragraphs Plaintiff cites in support of his contention that he received “ducks” --
Paragraphs 30, 31 and 145 -- allege only that he was absent for two (2) days and
later “feared” that he would receive “ducks” for taking leave after his FMLA leave
was already approved and authorized.2 Plaintiff’s attempt to add new allegations in
his opposition, that he received “ducks” due to his two unscheduled absences,
should be rejected by the Court as they are required to be set forth in a pleading.
See Washington v. Client Network Services, Inc., 2016 U.S. Dist. LEXIS 52660
(E.D. Pa. 2016) (declining to consider plaintiff’s new factual allegations asserted in
plaintiff’s opposition to defendant’s motion to dismiss) (citing Pa. ex. Rel.
Zimmerman v. Pepsico, 836 F.2d 173 (3d Cir. 1988) (finding that plaintiffs cannot
amend their complaints through responsive briefs); Hammond v. City of Phila.,
2 Plaintiff also alleges in Paragraph 31 of the Complaint that Defendant has a policy in which “you receive a ‘duck’
for unscheduled time off.” Similarly, this allegation does not allege that Plaintiff actually received “ducks” for
taking time off.
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2001 U.S. Dist. LEXIS 10182, at *8-9 (E.D. Pa. 2001) (“A party may not rely on
new facts in submissions in response to a motion to dismiss to defeat the
motion.”)). See Washington v. Client Network Services, Inc. and Hammond v.
City of Phila., attached hereto as Exhibit “B”.
If Plaintiff had actually received “ducks” for his two absences, this
allegation would surely have been set forth in Plaintiff’s lengthy Complaint. The
only remaining allegations in the Complaint in support of Count IV are those
alleging that Plaintiff was disciplined and terminated in a wholly unrelated matter
involving Lisa Murphy’s complaint that Plaintiff had “touched her”. Compl. ¶¶ 53-
78.
Plaintiff’s claim for FMLA interference in Count IV of the Complaint is not
based on allegations that Plaintiff was denied FMLA benefits to which he was
entitled and is instead based on allegations of discipline and termination. Because
Plaintiff’s interference claim is based on the same adverse employment actions
alleged in support of Plaintiff’s FMLA retaliation claim, the interference claim is
redundant and must be dismissed pursuant to the binding precedent in the
Lichenstein cases and persuasive precedent in Duncan.
2. The Duncan Decision is Applicable Persuasive Precedent
Plaintiff argues that Duncan is inapposite because: (1) it was issued pursuant
to a motion for summary judgment, and; (2) plaintiff’s FMLA Interference claim
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was dismissed “(2)…because Defendant would have terminated his employment
regardless of his FMLA leave request.” (emphasis added).3
As set forth in Defendant’s Memorandum in Support, though the decision in
Duncan was made pursuant to a motion for summary judgment, its specific finding
that plaintiff’s FMLA interference claim must be dismissed as redundant with
plaintiff’s FMLA retaliation claim was based on the allegations set forth in the
complaint. Here, Defendant requests that the Court apply the same reasoning.
As stated, fully, in Duncan:
Thus, in light of the above discussion, Defendant is
entitled to summary judgment on Plaintiff's FMLA
interference claim because (1) with respect to the majority
of his allegations in Count One, it is in form and substance
an FMLA retaliation claim; and (2) Plaintiff has not stated
an interference claim for Defendant's failure to reinstate
him to his position following the leave period because
Defendant would have terminated his employment
regardless of his FMLA leave request.
Duncan v. Chester County Hospital, 2016 U.S. Dist. LEXIS 40912, at *43-44
(E.D. PA. 2016) (emphasis added).
Further, the Court acknowledged that its decision dismissing plaintiff’s
FMLA interference claim could have been decided based on either finding:
Having found that Plaintiff's FMLA interference claim is
either duplicative of his FMLA retaliation claim, or fails
because Plaintiff would have been fired in the absence of
3 The emphasized “(2)” reflects that Plaintiff’s cited text is not the only basis for the Court’s decision in Duncan, as
of course there was a “(1)”.
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seeking FMLA leave, the Court does not discuss the
parties' other arguments or their merits.
Duncan, 2016 U.S. Dist. LEXIS 40912, at *44 n. 25 (emphasis added).
That the court dismissed plaintiff’s FMLA Interference claim based on two
findings does not detract from the fact that: (1) one of the findings was that
plaintiff’s FMLA interference claim was duplicative of plaintiff’s FMLA
retaliation claim, and; (2) that the Court based this finding based on the allegations
in the complaint. As such, Duncan is applicable and proper persuasive precedent
on the issue of the redundant nature of Plaintiff’s FMLA interference claim.
3. Duran’s Temporal Proximity Analysis is Readily Distinguishable
Plaintiff argues that the issue of temporal proximity need not be addressed at
the motion to dismiss stage. In support of that argument, Plaintiff cites Duran v.
Cnty. of Clinton, 2015 U.S. Dist. LEXIS 128801, at *10-12 (M.D. Pa. 2015).
However, the allegations and analysis in Duran regarding causation and temporal
proximity are wholly different from those in the present matter.
A plaintiff must establish, as part of his prima facie case, that the alleged
adverse employment action was causally related to the invocation of FMLA rights.
Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 302 (3d Cir. 2012).
“The mere fact that adverse employment action occurs after [a protected activity]
will ordinarily be insufficient to satisfy the plaintiff’s burden on demonstrating a
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causal link,” unless the allegedly retaliatory action is “unusually suggestive” of
retaliatory motive.” Robinson v. City of Pittsburgh, 120 F.3d 1286, 1302 (3d Cir.
1997).
In Duran, the Court’s discussion that temporal proximity need not be
decided at the motion to dismiss stage is dicta, as the Court had already decided
that Plaintiff’s allegations regarding temporal proximity were sufficient to support
causation. As the Court states:
Duran alleges sufficient facts for his FMLA retaliation
claim to survive defendants' motion to dismiss. Duran
requested medical leave on October 5, 2012. (Doc. 1 ¶
39). His termination became effective one month later,
on or about the day he had planned to return to work full-
time. (Id. ¶¶ 42, 45). Further, Duran's chronology of his
termination process begins only "a few days after" his
leave request. (Doc. 1 ¶ 40). At this stage, these factual
allegations are adequate to support the causation element
of a retaliation claim.
Duran, 2015 U.S. Dist. LEXIS 128801 at *10-12 (emphasis added).
In Duran, as plaintiff had pled that his termination process began only “a
few days after” his leave request, he easily and readily met each and every
temporal proximity period described in the cases cited in Defendant’s
Memorandum in Support. See Memorandum in Support, p. 15 (citing cases
holding that between “twenty four hours” and “one month” are unusually
suggestive of retaliatory motive).
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However, the facts alleged here are wholly different from those in Duran.
While the plaintiff in Duran alleged that his termination process began only “a few
days after” his leave request, Plaintiff here alleges that he was terminated between
one and two months after his protected activity. As discussed in Defendant’s
Memorandum in Support, a period of between one and two months has been found
to not be unusually suggestive of suggestive of retaliatory motive, including a
finding by the Third Circuit.4
Further, Defendant submits that all allegations in the Complaint are subject
to the same level of scrutiny required by Iqbal and Twombly. “Factual allegations
[in a complaint] must be enough to raise a right to relief above the speculative
level.” Bell Atl. V. Twombly, 550 U.S. 544, 555 (2007). “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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plaintiff’s allegations regarding
temporal proximity do not fall within the periods described by precedent to raise an
4 Plaintiff’s in-quote citation to another Third Circuit case, Kachmar v. SunGard Data Sys., Inc., references a finding
that a four-month gap between protected activity and retaliatory action does not preclude a retaliation claim. 109
F.3d 173, 177-79 (3d Cir. 1997). Defendant notes that its citations in its memorandum in support reference more
recent cases on the issue of temporal proximity. See Williams v. Phila. Hous. Auth. Police Dep’t, 380 F.3d 751, 760
(3d Cir. 2004) (two months between protected activity and adverse action not unusually suggestive); Carmody v. Pa.
State Univ., 2007 U.S. Dist. LEXIS 26064, at *25 (M.D. Pa. 2007) ((one month gap not unusually suggestive)
(attached hereto as Exhibit “C”)).
Further, the holding in Kachmar explored not only temporal proximity, but whether that had been a “pattern of
antagonism” against plaintiff to establish a causal connection with retaliatory motive. Kachmar, 109 F.3d at 178.
The Court found that plaintiff had alleged “direct evidence” in support of her retaliation claim, and the District Court
“failed to make the more generalized inquiry into whether [Plaintiff’s] protective activity was the likely reason for
her termination.” Id. at 179. In the instant matter, Plaintiff has alleged no direct evidence, or any other facts, to
support his FMLA retaliation claim other than temporal proximity alone.
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inference of retaliatory motive, and whether such allegations fail to establish an
element of Plaintiff’s claim should be decided at the motion to dismiss stage.
Plaintiff fails to state any binding precedent holding that temporal proximity
allegations are subject to a different pleading standard, or can simply be ignored at
the motion to dismiss stage of litigation.
As Plaintiff has alleged no facts56 in support of his FMLA retaliation claim
other than temporal proximity, Plaintiff has failed to establish the third element of
his prima facie case of FMLA retaliation. Accordingly, Plaintiff’s FMLA
retaliation claim should be dismissed.
4. Plaintiff’s Allegations Supporting Retaliation Fail to Satisfy Pleading
Standards
Plaintiff’s only factual allegations in support of his retaliation claim, other
than references to his discipline and termination between one and two months after
his protective activity, assert:
Mr. Murphy was told by a co-worker to be careful
because the co-worker had overheard the supervisors
talking about Mr. Murphy, saying they are looking to try
to “get rid” of him, shortly after he had been taken from
5 Plaintiff cites to three Paragraphs he argues support his retaliation claim other than temporal proximity. Paragraph
78 is a legal conclusion alleging pretext. Paragraph 143 alleges double – hearsay and fails to satisfy pleading
standards. Paragraph 48 alleges that Plaintiff worked through being dizzy, which neither establishes nor supports
any aspect of his FMLA retaliation claim.
6 Plaintiff also argues that his twenty-eight page, 157 paragraph Complaint contains more than enough factual detail
to allow the Court to infer that Defendant is liable for his FMLA claims. However, these 157 paragraphs are alleged
in large part to support Count I – Racial Discrimination, Count II – Disability Discrimination, and Count III –
Pennsylvania Human Relations Act.
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in an ambulance, had disclosed his medical conditions
and had applied for FMLA leave.
Compl. ¶ 51.
Plaintiff then alleges, “[u]pon information and belief” that he believed that
Defendant was “trying to ‘get rid of’ him” based on the alleged co-worker’s
alleged comment. Compl. ¶¶ 80, 91, 143, 144.
The allegations set forth in Paragraph 51, and related Paragraphs, are vague
and tenuous, and would require the Court to draw incredible inferences to bring
Plaintiff’s FMLA retaliation claim above the speculative level. Plaintiff’s
opposition lends additional weight to this fact.
Plaintiff argues that Paragraph 51 is not vague or speculative. However,
Plaintiff then informs us that he does not know the name of the alleged co-worker,
or his title, and suggests that Defendant can provide Plaintiff with this information
during discovery.
In short, Plaintiff’s factual allegation averred in support of his retaliation
claim is asserted “[u]pon information and belief” that Defendant “sought to ‘get
rid’” of him based on a statement allegedly made by a co-worker, whose name and
title are unknown to Plaintiff, on a date that is not known or alleged, who allegedly
overheard an unknown number of supervisors, whose names and titles are
unknown to Plaintiff, and from which the only alleged quoted words discerned
and allegedly conveyed to Plaintiff are “get rid” and/or “get rid of” (double –
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hearsay). Plaintiff expects to ascertain the identity of the alleged co-worker from
Defendant during discovery, even though Plaintiff alleges in the Complaint that the
alleged conversation was a private exchange between Plaintiff and this unknown
and unidentified alleged co-worker.
Plaintiff’s allegations regarding his alleged conversation with a co-worker
do not satisfy Twombly and Iqbal pleading standards, and should be disregarded in
the Court’s consideration of Defendant’s Motion to Dismiss Count IV of the
Complaint.
III. CONCLUSION
Based on the foregoing, and for the reasons set forth in Defendant’s
previously filed Memorandum in Support, Defendant requests that Count IV of the
Complaint, alleging interference with FMLA rights and retaliation for exercising
FMLA rights, be dismissed with prejudice. Defendant respectfully requests oral
argument in connection with the instant motion.
Respectfully submitted,
JACKSON LEWIS P.C.
/s/ - John M. Nolan III
John M. Nolan III (PA 317001)
John M. Nolan (PA 94337)
1601 Cherry Street, Suite 1350
Philadelphia, PA 19102
(267) 319-7802
Case 3:16-cv-01055-JMM Document 17 Filed 09/14/16 Page 12 of 15
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(215) 399-2249 (facsimile)
J.Michael.Nolan@jacksonlewis.com
NolanJ@jacksonlewis.com
Counsel for Defendant
McLane/Eastern, Inc. t/d/b/a McLane
PA, improperly pled as separate
entities with “McLane Eastern, Inc.”
Dated: September 14, 2016
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LR 7.1 CERTIFICATE OF NON-CONCURRENCE
I, J. Michael Nolan III, hereby certify, pursuant to Local Rule 7.1, that
counsel for Defendant sought Plaintiff’s concurrence in the relief request in
Defendant’s Motion to Dismiss Count IV of the Complaint via e-mail dated
September 2, 2016. Plaintiff indicated on September 6, 2016 that there was not
concurrence regarding the relief requested in the instant motion.
JACKSON LEWIS P.C.
/s/ - John M. Nolan III
John M. Nolan III (PA 317001)
1601 Cherry Street, Suite 1350
Philadelphia, PA 19102
(267) 319-7802
(215) 399-2249 (facsimile)
J.Michael.Nolan@jacksonlewis.com
Counsel for Defendant
McLane/Eastern, Inc. t/d/b/a McLane
PA, improperly pled as separate
entities with “McLane Eastern, Inc.”
Dated: September 14, 2016
Case 3:16-cv-01055-JMM Document 17 Filed 09/14/16 Page 14 of 15
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of Defendant’s Reply in Support
of Its Motion To Dismiss Count IV Of The Complaint was served through the
Court’s ECF system, and will be sent electronically to the registered participants as
identified in the Notice of Electronic Filing (NEF) and paper copies will be sent to
those indicated as non-registered participants.
JACKSON LEWIS P.C.
/s/ - J. Michael Nolan III
John M. Nolan III (PA 317001)
1601 Cherry Street, Suite 1350
Philadelphia, PA 19102
(267) 319-7802
(215) 399-2249 (facsimile)
J.Michael.Nolan@jacksonlewis.com
Counsel for Defendant
McLane/Eastern, Inc. t/d/b/a McLane
PA, improperly pled as separate
entities with “McLane Eastern, Inc.”
Dated: September 14, 2016
4818-3178-7064, v. 1
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