PITTSBURGH – A lawsuit from workers at Shell Oil Company which alleged that they did not receive time-and-a-half compensation when they worked overtime hours, was briefly removed to federal court and then jointly remanded to state court.
Robert J. Merryman of Beaver Falls filed suit in the Allegheny County Court of Common Pleas on Oct. 15 versus Global Scaffold Construction Services, Inc. and Christopher Fannin, of Walker, La.
“Defendants were contracted by the Shell Oil Company, Great Arrow Builders LLC, their related corporate entities, and/or agents for the purpose of providing construction services in connection with the construction of the Pennsylvania Petrochemical Complex – a major construction project in Western Pennsylvania. The Pennsylvania Petrochemical Complex is more commonly referred to as the ‘Shell Cracker Plant’ and upon completion will operate for the purpose of converting natural gas into ethylene for use in plastics manufacturing. Defendants have employed more than 600 employees for purposes of providing services in connection with the construction of the Shell Cracker Plant,” the suit said.
“Merryman has been employed by defendants for approximately 3 years. Merryman continues to be employed by defendants through the present. The other members of the putative class were employed by defendants for some, or all, of the period within 3 years prior to the commencement of this action. At all times relevant hereto, Merryman and the putative class were/are hourly, non-exempt ‘employees’ of defendants. Defendants were required to pay Merryman and the putative class time and a half for all hours worked in excess of 40 hours per week. Merryman and the putative class regularly worked and continue to work in excess of 40 hours per work week and, have not received full payment for all overtime wages.”
Merryman added that defendants have “avoided paying Merryman and the putative class for all overtime compensation they are legally entitled to receive, through unlawful schemes designed to deprive them of their earned overtime wages.”
These schemes allegedly included “failing to pay Merryman and the putative class all overtime compensation owed for work activities performed prior to clocking-in to defendants’ timekeeping system—including but not limited to waiting for a bus at the parking lot assigned by defendants, riding the bus to the job site, and traveling to the punch clock location.”
In another, the defendants allegedly “failed to pay Merryman and the putative class all overtime compensation owed for compensable work activities performed after clocking out of defendants’ timekeeping system – including but not limited to traveling from the punch clock location to the bus, waiting for the bus, and riding the bus back to the parking lot as directed by defendants.”
“The putative class consists of more than 600 employees and is thus so numerous that joinder of all individual members in this action is impracticable. The total number, and identity, of such individuals is easily identifiable from defendants’ payroll and personnel records,” per the suit.
“The questions of law and/or fact are common to Merryman and the members of the putative class. In particular, during the relevant class period, defendants maintained a common practice of failing to pay their employees for overtime for all compensable work activities performed in excess of 40 hours in one week. The facts and evidence pertaining to these practices are common to Merryman and the putative class.”
In preliminary objections filed on Dec. 14, the defendants argued that the complaint as filed was legally insufficient and did not establish that Fannin was the plaintiff’s employer.
“The complaint does not allege that plaintiff or other employees are required to ride the bus. Nor does it aver that plaintiff or other employees perform any work on the bus – let alone that they are required to do so. Plaintiff merely asserts that taking the bus is his mode of transportation to the job site. Because the complaint fails to allege facts demonstrating that riding the bus is a ‘duty’ of plaintiff’s employment or that of the co-workers he seeks to represent, it fails to state a cause of action under the PMWA,” the objections stated.
“The only allegation concerning Fannin is the conclusory statement that ‘Mr. Fannin is the Vice President of GSCS and directs and supervises the work and compensation of employees who provide services on behalf of GCSC at the Shell Cracker Plant.’ This is a legal conclusion, not a well-pled fact, and therefore the Court should disregard it. Nor does it satisfy the fact-pleading requirements of Rule 1019(a), as it fails to disclose the material facts upon which plaintiff seeks to impose individual liability upon Fannin sufficient to enable him to prepare his case. It would be fundamentally unfair to require Fannin to defend himself against a putative 600-person class action based solely on the allegation that he ‘directs and supervises the work’ of employees at the site.”
In a Feb. 2 reply to the defendant’s answer and new matter, the plaintiff denied their new matter in full.
“The allegations of these paragraphs are legal conclusions to which no response is required. To the extent further response is required, said allegations are denied,” the reply said.
UPDATE
The case was removed to federal court under the Class Action Fairness Act and due to diversity of citizenship on Feb. 3.
However, the plaintiff filed a joint stipulation to remand the case to state court on March 3, which would not only bring the case back to the Allegheny County Court of Common Pleas, but also dismiss Fannin as a defendant and any other claims which would be removable on federal grounds.
“On Feb. 7, 2022, plaintiff’s counsel informed defendants’ counsel that plaintiff disputes that defendants’ removal notice was timely and intends to move to remand the case to state court on that basis. Plaintiff’s counsel also informed defendants’ counsel that plaintiff intends to move to remand to state court on the basis that the Local Controversy Exception to the Class Action Fairness Act is satisfied. Rather than contest the motion to remand, and based on the conditions set forth in this stipulation, the parties have agreed to the entry of an order remanding the case to state court in the form of the proposed order filed with this stipulation,” the stipulation stated.
“Plaintiff agrees that, within 14 days of the date when the case is remanded, he shall file the necessary documents to secure the dismissal with prejudice of Christopher Fannin as a defendant in this action. Plaintiff agrees not to amend his complaint to add claim(s) that would otherwise make this case removable based on 28 U.S.C. Section 1331 (federal question jurisdiction), including but not limited to claims under the Fair Labor Standards Act, 29 U.S.C. Section 203.”
Furthermore, the stipulation stated that the defendants “agreed to waive the right to seek removal of this action again at a later date on any basis, including but not limited to the Class Action Fairness Act or diversity jurisdiction, unless plaintiff amends his complaint to add claims that would make this case removable based on federal question jurisdiction, and in the event of such an amendment, the parties agree that defendants may remove the case within 30 days of the date the amendment is filed with the court.”
U.S. District Court for the Western District of Pennsylvania Judge W. Scott Hardy granted the motion to remand on the same day.
For counts of violating the Pennsylvania Minimum Wage Act, the plaintiff is seeking a long list of reliefs:
• A judgment in favor of Merryman and the putative class and against defendants for the value of all unpaid overtime wages in an amount exceeding $35,000;
• An order authorizing the sending of appropriate notice to current and former employees of defendants who are potential members of the PMWA putative class;
• An order certifying a class action based upon claims under the PMWA;
• An order certifying Merryman as the representative of the putative class;
• A declaratory judgment that defendants have willfully and in bad faith violated the wage provisions of the PMWA by denying Merryman and the putative class of their right to overtime compensation for all hours worked in excess of 40 in one week;
• An order requiring defendants to provide a complete and accurate accounting of all overtime compensation to which Merryman and the putative class are entitled;
• Reasonable attorneys’ fees, expert fees, expenses, costs, pre- and post-judgment interest and such further legal or equitable relief as the Court deems just and appropriate.
The plaintiff is represented by Steven E. Winslow of Jubelirer Pass Intrieri, in Pittsburgh.
The defendants are represented by Brad M. Kushner and Brandon S. Shemtob of Stevens & Lee, in Philadelphia.
Allegheny County Court of Common Pleas case GD-21-012748
U.S. District Court for the Western District of Pennsylvania case 2:22-cv-00200
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com