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`Plaintiff,
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`v.
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`WARREN RIVERA-NIGAGLIONI,
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`JOHN F. MARTIN AND SONS, LLC,
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
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`Case No.:
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`COMPLAINT IN CIVIL ACTION
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`Defendant.
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`Filed on Behalf of Plaintiff:
`Warren Rivera-Nigaglioni
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`Counsel of Record for this Party:
`J.P. WARD & ASSOCIATES, LLC
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`Joshua P. Ward
`Pa. I.D. No. 320347
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`J.P. Ward & Associates, LLC
`The Rubicon Building
`201 South Highland Avenue
`Suite 201
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`Pittsburgh, PA 15206
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`Telephone:
`Fax No.:
`E-mail:
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`(412) 545-3015
`(412) 540-3399
`jward@jpward.com
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`Case 5:21-cv-01908-JFL Document 1 Filed 04/26/21 Page 2 of 15
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`Case No.:
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
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`COMPLAINT
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`Plaintiff,
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`v.
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`WARREN RIVERA-NIGAGLIONI,
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`JOHN F. MARTIN AND SONS, LLC,
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`Defendant.
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`AND NOW, comes Plaintiff, Warren Rivera-Nigaglioni, by and through the undersigned
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`counsel, J.P. Ward & Associates, LLC and, specifically, Joshua P. Ward, Esquire, who files the
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`within Complaint in Civil Action against Defendant, John F. Martin and Sons, LLC, of which the
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`following is a statement:
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`PARTIES
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`1.
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`Plaintiff, Warren Rivera-Nigaglioni (hereinafter “Mr. Rivera”), is an adult
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`individual who currently resides at 2503 Garfield Avenue, West Lawn, Pennsylvania 19609.
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`2.
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`Defendant, John F. Martin & Sons, LLC, (hereinafter “John F. Martin & Sons”), is
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`a company with a place of business located at 55 Lower Hillside Road, Stevens, Pennsylvania
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`17578.
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`JURISDICTION AND VENUE
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`1
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`Case 5:21-cv-01908-JFL Document 1 Filed 04/26/21 Page 3 of 15
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`3.
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`Jurisdiction is proper as Mr. Rivera brings this lawsuit under the Family and
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`Medical Leave Act of 1993 (hereinafter, the “FMLA”), 29 U.S.C. § 2601 et seq. and the Families
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`First Coronavirus Response Act (hereinafter, the “FFCRA”).
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`4.
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`This Court has supplemental jurisdiction over Mr. Rivera’s state law claims
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`pursuant to 28 U.S.C. § 1367(a).
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`5.
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`At all relevant times, upon information and belief, John F. Martin & Sons is a
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`company with less than 500 employees and therefore is subject to the recently enacted Families
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`First Coronavirus Response Act (FFCRA), which in turn is compromised of the Emergency Paid
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`Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Act (EFMLA). John F.
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`Martin & Sons is also subject to the Family and Medical Leave Act (FMLA).
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`6.
`
`The EPSLA and EFMLEA were two new emergency paid leave requirements
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`passed by Congress and signed by the President under the circumstances of the unprecedented
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`public health emergency of the COVID-19 pandemic. At the time the law was passed, numerous
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`state governments, including Pennsylvania’s, had issued shut down orders requiring schools and
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`workplaces to be closed and residents to remain at home except for essential life-sustaining
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`activity.
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`7.
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`Mr. Rivera is a resident and citizen of Pennsylvania, a substantial part of the events
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`or omissions giving rise to the claims occurred in Eastern Pennsylvania, and, therefore, this action
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`is within the jurisdiction of the United States District Court for the Eastern District of Pennsylvania
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`and the venue is proper pursuant to 28 U.S.C. § 1391(b).
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`2
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`Case 5:21-cv-01908-JFL Document 1 Filed 04/26/21 Page 4 of 15
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`PROCEDURAL HISTORY AND FACTUAL ALLEGATIONS
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`8.
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`On or about 2016, Mr. Rivera initiated employment with John F. Martin and Sons
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`as an order picker and was ultimately promoted to a position working in shipping, receiving and
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`inventory.
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`9.
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`During Mr. Rivera’s employment with John F. Martin & Sons, he received
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`numerous positive performance reviews and was slated for a promotion prior to the onset of
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`COVID-19 and his ultimate termination.
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`10. Mr. Rivera was known for his talent and versatility in the workplace, as he was able
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`to transfer from position to position when needed.
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`11. Mr. Rivera was a full-time employee who regularly dedicated over 40 hours a week
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`to John F. Martin & Sons.
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`12.
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`Additionally, Mr. Rivera would visit the worksite on the weekends upon John F.
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`Martin & Sons’ request to complete workplace tasks outside Mr. Rivera’s traditional workplace
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`duties.
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`13.
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`On or about March 2020, Mr. Rivera was unable to resume his regular work
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`schedule due to Governor Wolf’s statewide stay-at-home orders closing schools and childcare
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`services. This left Mr. Rivera without any childcare options for his child.
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`14. Mr. Rivera exhausted all options to obtain childcare as so to not disrupt his work
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`schedule but was ultimately unsuccessful due to COVID-19.
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`15.
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`On or around March 2020, at the onset of the COVID-19 pandemic, John F. Martin
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`& Sons placed a sign referencing the Families First Coronavirus Response Act (hereinafter,
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`“FFCRA”) on the bulletin board for employees.
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`3
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`Case 5:21-cv-01908-JFL Document 1 Filed 04/26/21 Page 5 of 15
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`16.
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`Upon the notification of his FMLA and associated FFCRA rights, Mr. Rivera
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`attempted to speak with Human Resources Representatives, Peter Santiago (hereinafter, Mr.
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`Santiago”) and Jenny Rivera (hereinafter, Ms. Rivera”) regarding his options for leave to care for
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`his child, but was informed they would get back to him with more information.
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`17. Mr. Rivera’s request for leave was ultimately denied, as Mr. Rivera was notified
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`that his need for the leave was not applicable, as the company could only grant FFCRA leave for
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`5 of the 6 qualifying reasons.
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`18.
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`John F. Martin & Sons intentionally excluded qualifying reason #5 of the FFCRA,
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`which provided leave for an individual who, “…is caring for a child whose school or place of care
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`is closed (or child care provider is unavailable) for reasons related to COVID-19”.
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`19.
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`In response to receiving this information, Mr. Rivera asked Ms. Rivera why
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`qualifying reason #5 was excluded from FMLA and its associated FFCRA leave. Ms. Rivera
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`informed Mr. Rivera that she was unsure of the answer and would speak to Mr. Santiago regarding
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`the justification for the exclusion.
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`20.
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`Rather than attempting to reasonably accommodate Mr. Rivera, Mr. Santiago and
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`Ms. Rivera informed Mr. Rivera that he must find a solution to his childcare dilemma and continue
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`his normal work schedule.
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`21.
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`Additionally, Mr. Rivera notified Supervisor, Keith Lehr (hereinafter, “Mr. Lehr”),
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`of his lack of childcare options due to the closure of schools and childcare facilities relating to the
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`COVID-19 pandemic. In response, Mr. Lehr informed Mr. Rivera that it was mandatory to
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`continue working his regularly scheduled hours and dismissed Mr. Rivera’s dilemma.
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`4
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`Case 5:21-cv-01908-JFL Document 1 Filed 04/26/21 Page 6 of 15
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`22.
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`On or about April 2020, Mr. Rivera slipped a letter under the office door of Mr.
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`Santiago and Ms. Rivera, once again requesting information as to why qualifying reason #5 was
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`not applicable for FFCRA leave.
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`23.
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`Shortly thereafter, Mr. Rivera was approached by Director of Sales and Operations,
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`John Flannery (hereinafter, “Mr. Flannery”), regarding the aforementioned letter and his need for
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`FMLA and its associated FFCRA leave.
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`24. Mr. Flannery informed Mr. Rivera that FMLA and the associated FFCRA was not
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`applicable to the entire corporation, as John F. Martin & Sons did not meet the requirements due
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`to exceeding 500 employees.
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`25.
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`Upon information and belief, John F. Martin & Sons deceptively and falsely
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`tabulated their employees to exceed 500 employees, therefore disqualifying the company and its
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`employees from FMLA and associated FFCRA benefits.
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`26.
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`Additionally, Mr. Flannery told Mr. Rivera, “If your kids don’t have anyone, I
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`would stay home because they come first”.
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`27.
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`Following Mr. Flannery’s suggestion, Mr. Rivera began to call off from work daily
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`on unpaid leave to provide childcare.
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`28.
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`On or about May 12, 2020, after approximately one week of calling off on unpaid
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`leave, Mr. Rivera received a termination letter from John F. Martin & Sons in the mail, citing his
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`absence from the workplace.
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`COUNT I
`FMLA RETALIATION
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`29. Mr. Rivera incorporates the allegations contained in the paragraphs, above, as if
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`fully set forth at length herein.
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`5
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`Case 5:21-cv-01908-JFL Document 1 Filed 04/26/21 Page 7 of 15
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`30.
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`In order to prevail on a claim of retaliation under the FMLA, one must prove that:
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`“(1) he invoked his right to FMLA-qualifying leave, (2) he suffered an adverse employment
`
`decision, and (3) the adverse action was causally related to his invocation of rights.” Lichtenstein
`
`v. U. of Pittsburgh Med. Ctr., 691 F.3d 294, 302 (3d Cir. 2012)
`
`31. Mr. Rivera was eligible for sick leave and paid leave under the FMLA, as he had
`
`worked for John F. Martin & Sons for approximately four years and dedicated at least 40 hours a
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`week to his employer.
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`32. Mr. Rivera attempted to invoke his rights to FMLA-qualifying leave upon
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`communicating with Ms. Rivera and Mr. Santiago following Governor Wolf’s COVID-19
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`mandatory stay-at-home order and the posting of a FFCRA poster outlining leave options for
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`employees in the workplace.
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`33. Mr. Rivera requested leave because he was unable to attend work due to the need
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`to care for his young child whose school or childcare provider was closed for reasons related to
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`COVID-19.
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`34. Ms. Rivera notified Mr. Rivera of his disqualification for FMLA and its associated
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`FFCRA leave due to John F. Martin & Sons not recognizing the childcare option (#5) under the
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`FFCRA and did not provide further justification for their decision.
`
`35.
`
`Upon Mr. Rivera’s attempt to gather more information regarding the lack of
`
`childcare option under the FFCRA and his FMLA rights through his employer, Mr. Flannery
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`informed Mr. Rivera that John F. Martin & Sons was disqualified from providing FMLA and its
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`associated FFCRA benefits to its employees due to employing over 500 individuals.
`
`36.
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`Therefore, Mr. Rivera was provided conflicting information regarding the
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`company’s eligibility under the FMLA.
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`
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`6
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`Case 5:21-cv-01908-JFL Document 1 Filed 04/26/21 Page 8 of 15
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`37.
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`Further, Mr. Flannery suggested Mr. Rivera call off work for unpaid leave until he
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`was able to find means for childcare, as he expressed his understanding of the issue out of Mr.
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`Rivera’s control due to the onset of COVID-19.
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`38.
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`Approximately one week after calling off work daily to provide childcare, Mr.
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`Rivera received a termination letter from John F. Martin & Sons in the mail, citing his absence
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`from the workplace.
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`39. Mr. Rivera suffered an adverse employment decision in the form of the termination
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`of his employment following his attempt to invoke his FMLA rights.
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`40. Mr. Rivera’s termination was causally related to the invocation of his FMLA-rights,
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`as Mr. Rivera attempted to invoke his FMLA rights on multiple occasions but was informed by
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`Mr. Santiago and Ms. Rivera that his need for childcare did not apply for FMLA leave, regardless
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`of qualifying reason #5 under the FFCRA.
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`41.
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`The two main factors relevant with respect to establishing a causal link to satisfy
`
`the prima facie case of retaliation under the FMLA are: (1) timing and/or (2) evidence of ongoing
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`antagonism. Sabbrese v. Lower’s Home Center’s Inc., 320 F. Supp. 2d 311 (W.D. Pa. 2004).
`
`42.
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`The timing of Mr. Rivera’s termination establishes a causal link sufficient to satisfy
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`the prima facie case of retaliation, as Mr. Rivera placed a request for FMLA-qualifying leave in
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`March 2020 following Governor Wolf’s COVID-19 mandatory stay-at-home order and was
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`terminated May 12, 2020.
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`43.
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`Despite Mr. Flannery’s suggestion to continue calling off work to provide
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`childcare, John F. Martin & Sons promptly terminated Mr. Rivera’s employment due to his
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`repeated absence from the workplace.
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`
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`7
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`Case 5:21-cv-01908-JFL Document 1 Filed 04/26/21 Page 9 of 15
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`44.
`
`The circumstances and timing between these two events evidence a strong
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`correlation between Mr. Rivera’s attempt to invoke his FMLA rights and his discharge.
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`WHEREFORE Plaintiff, Mr. Rivera, respects that this Honorable Court consider the above
`
`and grant relief in her favor. Specifically, Mr. Rivera requests that this Court award back pay, front
`
`pay, any other compensatory damages and liquidated damages as calculated by the Court,
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`reasonable attorney’s fees and any other relief as this Court sees fit.
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`
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`
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`COUNT II
`RETALIATION IN VIOLATION OF THE FFCRA
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`45. Mr. Rivera incorporates the allegations contained in the paragraphs, above, as if
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`fully set forth at length herein.
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`46.
`
`The FFCRA requires employers to provide specified employees with paid leave
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`because of a “qualifying need related to a public health emergency.” 116 P.L. 127, 2020 Enacted
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`H.R. 6201, 134 Stat. 178 §3102(a)(1)(F).
`
`47.
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`According to the FFCRA, a “public health emergency” means “the declaration of a
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`public health emergency, based on an outbreak of SARS-CoV-2 or another coronavirus with
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`pandemic potential,” based on declaration by the Secretary of Health and Human Services. 116
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`P.L. 127, Enacted H.R. 6201, 134 Stat. 178 §1101(h)(2).
`
`48.
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`On January 30, 2020, Health and Human Services Secretary Alex M. Azar II
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`declared a public health emergency under section 319 of the Public Health Service Act (42 U.S.C.
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`247d) for the entire United States in response to the novel 2019 coronavirus.
`
`49.
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`Under the FFCRA, an “eligible employee” is an employee who has been employed
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`by his or her employer for more than 30 calendar days prior to the requested leave. 116 P.L. 127,
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`Enacted H.R. 6201, 134 Stat. 178 §3102(b)(a)(1)(A).
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`
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`8
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`Case 5:21-cv-01908-JFL Document 1 Filed 04/26/21 Page 10 of 15
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`50.
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`Under the FFCRA, a qualifying employer is an employer with “fewer than 500
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`employees.” 116 P.L. 127, Enacted H.R. 134 Stat. 178 §3201(b)(a)(1)(B).
`
`51.
`
`The FFCRA defines a “qualifying need related to a public health emergency” as a
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`situation where the employee is “unable to work (or telework) due to a need for leave due to a need
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`for leave to care for the son or daughter under 18 years of age of such employee if the school or
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`place of child care has been closed, or the child care provider of such son or daughter is
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`unavailable, due to a public health emergency.” 116 P.L. 127, Enacted H.R. 134 Stat. 189-190
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`§5102(a)(2). 102(a)(1)(F).
`
`52.
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`Under the FFCRA “an employee qualifies for expanded family leave if the
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`employee is caring for a child whose school or place of care is closed (or childcare provider is
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`unavailable) for reasons related to COVID-19.” FFCRA section 3102(b) (incorporating FMLA
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`section 110(a)(1)(A).
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`53.
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`Because Mr. Rivera worked for John F. Martin & Sons for longer than 30 days, Mr.
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`Rivera is an “eligible employee” as defined by the FFCRA.
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`54.
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`Additionally, upon information and belief, John F. Martin & Sons employed fewer
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`than 500 employees, therefore, John F. Martin & Sons is a “qualifying employer” as defined by
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`the FFCRA.
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`55.
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`Due to Mr. Rivera’s lack of options for childcare due to Governor Wolf’s stay-at-
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`home order closing schools and childcare services, Mr. Rivera qualified for leave under option #5
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`the FFCRA.
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`56.
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`Additionally, under the FFCRA, individuals taking leave under the Act are to be
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`compensated during this time by paid sick leave that “shall be available for immediate use by the
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`employee.” 116 P.L. 127, Enacted H.R. 134 Stat. 178 §5102(e)(1).
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`9
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`Case 5:21-cv-01908-JFL Document 1 Filed 04/26/21 Page 11 of 15
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`57. Mr. Rivera was not compensated, as he was forced to utilize unpaid time off
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`pursuant to his denial of FFCRA leave.
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`58.
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`Under the FFCRA, it is illegal for an employer to “discharge, discipline, or in any
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`other manner discriminate against any employee who takes leave in accordance with [the] Act.”
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`116 P.L. 127, Enacted H.R. 134 Stat. 178 §5104(1).
`
`59.
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`Any employer who terminates an employee in such circumstances shall “be
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`considered to be in violation of section 15(a)(3) of the Fair Labor Standards Act of 1938 (29 U.S.C.
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`215(a)(3)).” 116 P.L. 127, Enacted H.R. 134 Stat. 178 §5105(a).
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`60.
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`Further, an employer who terminates an employer shall “be subject to the penalties
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`described in section 16 and 17 of [the Fair Labor Standards Act]. . . with respect to such violation.”
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`116 P.L. 127, Enacted H.R. 134 Stat. 178 §5101(b).
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`61. Mr. Rivera placed a request for FMLA-qualifying leave in March 2020 following
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`Governor Wolf’s COVID-19 mandatory stay-at-home order and was terminated May 12, 2020.
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`62.
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`Despite Mr. Flannery’s suggestion to continue calling off work to provide
`
`childcare, John F. Martin & Sons promptly terminated Mr. Rivera’s employment due to his
`
`repeated absence from the workplace to provide childcare.
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`63.
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`As a direct and proximate cause of the aforementioned conduct, Mr. Rivera suffered
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`actual damages, including, but not limited to, wage loss, loss of income, and emotional distress
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`damages, all in the past, present and future.
`
`64.
`
`As set forth hereinabove, the John F. Martin & Sons’ actions were intentional,
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`knowing, wanton, willful, and so outrageous as to shock the conscience.
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`WHEREFORE, Plaintiff, Mr. Rivera hereby requests this Honorable Court consider the
`
`above and grant relief in her favor. Specifically, Mr. Rivera requests this Court award her back
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`10
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`Case 5:21-cv-01908-JFL Document 1 Filed 04/26/21 Page 12 of 15
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`pay, front pay, any other compensatory and punitive damages as calculated by the Court, pre-
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`judgment and continuing interest as calculated by the Court, and reasonable attorney’s fees.
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`
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`COUNT III
`FMLA/FFCRA INTERFERENCE
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`65. Mr. Rivera incorporates the allegations contained in the paragraphs, above, as if
`
`fully set forth at length herein.
`
`66.
`
`The FMLA provides in pertinent part, “[i]t shall be unlawful for any employer to
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`interfere with, restrain, or deny the exercise of or the attempt to exercise” these rights, violation of
`
`which is known as FMLA retaliation. Lichtenstein v. U. of Pittsburgh Med. Ctr., 691 F.3d 294, at
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`307 (3d Cir. 2012) (citing to 29 U.S.C. § 2615(a)(1)).
`
`67.
`
`In order to demonstrate a claim for FMLA interference, a Plaintiff must establish:
`
`“(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.” Ross v. Gilhuly, 755 F.3d 185,
`
`191–92 (3d Cir. 2014) (citing to Johnson v. Cmty. Coll. of Allegheny Cnty., 566 F.Supp.2d 405,
`
`446 (W.D. Pa. 2008); see also, Sommer v. The Vanguard Grp., 461 F.3d 397, 399 (3d Cir. 2006)).
`
`68. Moreover, an employee does not need to prove that invoking FMLA rights was the
`
`sole or most important factor upon which the employer acted.” Lichtenstein v. U. of Pittsburgh
`
`Med. Ctr., 691 F.3d 294, 301 (3rd Cir. 2012).
`
`69.
`
`Under this regulatory interpretation, employers are barred from considering an
`
`employee's FMLA leave “as a negative factor in employment actions such as hiring, promotions,
`
`or disciplinary actions.” Callison v. City of Philadelphia, 430 F.3d 117, 119 (3d Cir. 2005).
`
`
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`11
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`Case 5:21-cv-01908-JFL Document 1 Filed 04/26/21 Page 13 of 15
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`70.
`
`Under the FFCRA, an “eligible employee” is an employee who has been employed
`
`by his or her employer for more than 30 calendar days prior to the requested leave. 116 P.L. 127,
`
`Enacted H.R. 6201, 134 Stat. 178 §3102(b)(a)(1)(A).
`
`71.
`
`Under the FFCRA, a qualifying employer is an employer with “fewer than 500
`
`employees.” 116 P.L. 127, Enacted H.R. 134 Stat. 178 §3201(b)(a)(1)(B).
`
`72.
`
`The FFCRA defines a “qualifying need related to a public health emergency” as a
`
`situation where the employee is “unable to work (or telework) due to a need for leave due to a need
`
`for leave to care for the son or daughter under 18 years of age of such employee if the school or
`
`place of child care has been closed, or the child care provider of such son or daughter is
`
`unavailable, due to a public health emergency.” 116 P.L. 127, Enacted H.R. 134 Stat. 189-190
`
`§5102(a)(2). 102(a)(1)(F).
`
`73. Mr. Rivera was employed for a qualified employer under the FMLA and is
`
`therefore entitled to leave pursuant to the FMLA.
`
`74.
`
`Additionally, Mr. Rivera was an eligible employee, as he had been employed at
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`John F. Martin & Sons for approximately four years.
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`75.
`
`Although not a formalistic standard to invoke rights under the FMLA, employees
`
`must give their employer “adequate notice”, and in doing so the employee “need not expressly
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`assert rights under the FMLA, or even mention the FMLA.” Lichtenstein v. U. of Pittsburgh Med.
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`Ctr., 691 F.3d 294, at 303 (3d Cir. 2012) (interpreting the language of 29 U.S.C. § 2612(e)(2) and
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`29 C.F.R. § 825.303(b)).
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`76. Mr. Rivera attempted to invoke his rights to FMLA leave as described hereinabove
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`in Mr. Rivera’s multiple requests for temporary leave under the FFCRA pursuant to a lack of
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`childcare options due COVID-19 concerns.
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`12
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`Case 5:21-cv-01908-JFL Document 1 Filed 04/26/21 Page 14 of 15
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`77.
`
`Upon Mr. Rivera’s denial of FMLA leave, Mr. Flannery suggested Mr. Rivera
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`continue to call off of work in order to provide the necessary childcare.
`
`78.
`
`Between the invocation of FMLA rights and the adverse employment decision, Mr.
`
`Rivera’s employer actively interfered with his right to take FMLA and its associated FFCRA leave
`
`in direct violation of 29 U.S.C. § 2615(a)(1).
`
`79.
`
`Shortly after Mr. Rivera began to call off, Mr. Rivera was terminated due to his
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`repeated absence in the workplace.
`
`80. Mr. Rivera was entitled to benefits to which he was denied and was instead
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`promptly terminated.
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`81.
`
`Therefore, John F. Martin & Sons violated Mr. Rivera’s rights by interfering with
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`and/or restraining the exercise of Mr. Rivera’s FMLA and associated FFCRA leave in direct
`
`violation of 29 U.S.C. § 2615(a)(1).
`
`WHEREFORE, Plaintiff, Mr. Rivera, hereby requests this Honorable Court consider the
`
`above and grant relief in his favor. Specifically, Mr. Rivera requests this Court award him back
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`pay, front pay, any other compensatory and punitive damages as calculated by the Court, pre-
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`judgment and continuing interest as calculated by the Court, and reasonable attorney’s fees.
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`JURY TRIAL DEMANDED.
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`Date: April 26, 2021
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`J.P. WARD & ASSOCIATES, LLC.
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`By:
`Joshua P. Ward (Pa. I.D. No. 320347)
`Kyle H. Steenland (Pa. I.D. No. 327786)
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`J.P. Ward & Associates, LLC.
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`Case 5:21-cv-01908-JFL Document 1 Filed 04/26/21 Page 15 of 15
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`The Rubicon Building
`201 South Highland Avenue
`Suite 201
`Pittsburgh, PA 15206
`Counsel for Plaintiff
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