Philadelphia Housing Authority

PHILADELPHIA – According to a federal court, a former plasterer with the Philadelphia Housing Authority was not able to prove a residency requirement associated with an in-house role was the pretext for his employment termination.

After being employed as a plasterer with defendant Operative Plasterers’ and Cement Masons’ International Association Local #008 (Union), beginning in November 2009, Wyatt transitioned into serving as a provisional employee of the Philadelphia Housing Authority (PHA) until September 2012.

On Sept. 2, 2012, under apparent promise of termination, Wyatt became an in-house employee of the PHA. Beginning later that month, Wyatt complained at union meetings about becoming an in-house employee for PHA, as it affected his benefits. Union leaders were reportedly hostile in response, and told him he had no right to speak because of his status as a journeyman, his suit says.

In this new assignment, Wyatt also became subject to the PHA’s residency requirement that all in-house employees reside in Philadelphia County – a requirement Wyatt believed he could not fulfill due to both a New Jersey court order and joint-custody parenting agreement which prevents him from residing in Philadelphia.

In early 2014, Wyatt was told by Union business agent Billy Taylor he received a residency waiver, but needed to provide documentation explaining why he couldn’t reside in Philadelphia County. However, Taylor passed away before Wyatt could submit the relevant waiver documents to him.

Wyatt did give the documents to Union President Thomas Kilkenney, who assured him the PHA would receive them. However, PHA fired Wyatt and 10 other in-house employees in September 2014, due to non-compliance with the residency requirement.

Five of these employees were rehired on a provisional basis, but Wyatt was not among them – and Wyatt alleged he was being retaliated against for speaking out to the Union about his status change to an in-house employee, and that the PHA was using his residency status as a pretext for firing him.

Wyatt then filed suit against the PHA, its Executive Director Kelvin A. Jeremiah, the Union, Kilkenney and 10 John Doe defendants on a number of counts for violating state and federal laws.

These claims included: “1) A breach of contract claim for failure to raise his salary and failure to provide a residency waiver (Count I); 2) An unjust enrichment claim for failure to provide a pay raise to which plaintiff believes he was entitled (Count III); 3) Section 1983 claims for retaliation for exercising rights under the First Amendment, asserted against the Union and PHA (Count V); and 4) an ERISA claim against the Union for failure to provide unspecified contractually defined benefits (Count VI).”

However, Rufe found Wyatt’s state law counts without merit, as the breach of contract and unjust enrichment claims set forth in Counts I and III of Wyatt’s amended complaint are pre-empted as a matter of law by Section 301 of the Labor Management Relations Act, through a collective bargaining agreement (CBA) which covers the stipulations of Wyatt’s employment.

“To the extent that the CBA governs this issue, the state law breach of contract claim is preempted; to the extent that it does not, the claim must be dismissed for failure to indicate the source of the alleged contractual obligation to provide a waiver,” Rufe said.

Wyatt’s retaliation claim also did not find favor with the Court.

“Plaintiff was terminated, along with nine other employees, for failure to comply with the City’s residency requirement, two years after complaining of his status change in a Union meeting, and points to no intervening pattern of antagonism. The Court cannot infer any retaliatory motive from the facts alleged,” Rufe said.

Rufe also dismissed Wyatt’s claim brought under the Employee Retirement Income Security Act of 1974 (ERISA).

“Plaintiff alleges that the Union and Union President breached fiduciary duties to provide contractually defined benefits to plaintiff, in violation of ERISA. However, plaintiff has not alleged what contractually defined benefits were interfered with, nor what duties defendant owed to him with regard to those benefits, and has pled no facts from which the Court can infer that the Union defendants interfered with the administration of any benefits to plaintiff,” Rufe said.

Rufe concluded by outlining the counts dismissed and how the remaining counts would be heard.

“Plaintiff has conceded that Counts II (Wage and Payment Collection Law), IV (Fair Labor Standards Act), and VII (ERISA Section 510) of the amended complaint, as well as the breach of fiduciary duty claims set forth in Count I, and the ERISA claims against the PHA in Count VI must be dismissed. The Court, accordingly, dismisses these claims with prejudice,” Rufe said.

Rufe added Wyatt’s remaining claims would be dismissed without prejudice, in order for him to have the opportunity to address the pleading deficiencies associated with the breach of contract/unjust enrichment claims, the retaliation claims, and the ERISA claim against the union, on or before March 21. Otherwise, those claims will be dismissed by the Court with prejudice.

The plaintiff is represented by Matthew B. Weisberg of Weisberg Law, in Morton.

The defendants are represented by Christopher A. Tinari and Michael Ronald Miller of Margolis Edelstein, plus Martin William Milz of Spear Wilderman Borish Endy Spear & Runckel, all in Philadelphia.

U.S. District Court for the Eastern District of Pennsylvania case 2:15-cv-02259

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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