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Bauer v. Pottsville Area Emergency Medical Services8/25/2000
ation time or illness of other employees may require exceeding the part- time cap and engender temporary treatment as a full-time employee. This may be the only means by which the Pottsville area can meet a public responsibility with limited tax resources.
Pottsville Area Emergency Medical Services utilized part-time employees to the extent possible and, under conditions described in the handbook, permitted a person who worked at least 36 hours per week for a period of 90 consecutive days to be "treated as a full-time employee." The operative word in this provision is treated. If there was specific intent to establish a definitive contractual relationship, a term such as "becomes," "creates" or "constitutes" would have been employed. The term "treated as" implies that during the period the stated conditions were met, the entitlements applicable to a full-time employee would inure to the employee's benefit. Nothing in the handbook permits the assumption put forth by appellant that a contract of permanent or full-time employment was created when the minimum hours-days criteria of full employment were met. Neither does the provision permit appellant to presume that once the threshold was met and passed, there could be no reduction in hours, lessening or elimination of full-time status or ultimately termination at will. Based upon the facts averred in his complaint, however, appellant may be entitled to the benefits applicable to a full-time employee for the period during which he fulfilled the terms of the employee handbook. Accordingly, the trial court abused its discretion when it concluded the facts, as set forth by appellant in his complaint, are insufficient to support a claim of breach of contract.
Appellant also argues appellee violated the FLSA when it reduced his working hours to zero in retaliation for his complaints regarding full-time benefits. Specifically, appellant alleges appellee violated section 215, Prohibited acts; Prima facie evidence, (a)(3), which prohibits the discharge of or discrimination in any other manner against an employee "because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the Fair Labor Standards Act], or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee." 29 U.S.C.A. ยง 215 (a)(3).
The anti-retaliation provision of the FLSA protects only those employees who are asserting their statutory rights. James v. MedicalControl, Inc., 29 F. Supp. 2d 749 (N.D. Tex. 1998). See also Bonham v. Copper Cellar Corp., 476 F. Supp. 98 (E.D. Tenn. 1979) (where the immediate motivating factor for an employee's discharge is the employee's assertion of statutory rights under the FLSA, either officially or in complaints at work, the discharge is discriminatory whether other grounds for discharge exist). To establish a prima facie case of retaliation for the exercise of a federally protected right, appellant must show that (1) he engaged in a protected activity; (2) he was subjected to an adverse employment action following his protected activity; and (3) there was a causal connection between the activity and the adverse action. James, 29 F. Supp. 2d at 752.
In interpreting section 215 (a)(3), the federal courts in Pennsylvania have focused on the circumstances surrounding the employee's discharge and the timing of the FLSA action. In Brock v. Richardson, 812 F.2d 121 (3d Cir. Pa. 1987), an employee complaint was filed with the Department of Labor, Wage and Hour Division, regarding employer overtime violations. A compliance officer with the Division contacted an employee, who did not file the complaint, and interviewe
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