Filed: Oct. 10, 2019
Latest Update: Mar. 03, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 18-1554 _ CHARLES W. CARSON, Appellant v. WILLOW VALLEY COMMUNITIES; WILLOW VALLEY LIVING _ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 5-17-cv-02840) District Judge: Honorable Joseph F. Leeson, Jr. _ Submitted Pursuant to Third Circuit LAR 34.1(a) October 9, 2018 Before: GREENAWAY, JR., BIBAS and ROTH, Circuit Judges (Opinion filed: October 10, 2019) _
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 18-1554 _ CHARLES W. CARSON, Appellant v. WILLOW VALLEY COMMUNITIES; WILLOW VALLEY LIVING _ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 5-17-cv-02840) District Judge: Honorable Joseph F. Leeson, Jr. _ Submitted Pursuant to Third Circuit LAR 34.1(a) October 9, 2018 Before: GREENAWAY, JR., BIBAS and ROTH, Circuit Judges (Opinion filed: October 10, 2019) _ O..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 18-1554
___________
CHARLES W. CARSON,
Appellant
v.
WILLOW VALLEY COMMUNITIES;
WILLOW VALLEY LIVING
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 5-17-cv-02840)
District Judge: Honorable Joseph F. Leeson, Jr.
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 9, 2018
Before: GREENAWAY, JR., BIBAS and ROTH, Circuit Judges
(Opinion filed: October 10, 2019)
___________
OPINION *
___________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Charles W. Carson appeals from the order of the District Court dismissing his
complaint against Willow Valley Communities and Willow Valley Living (collectively,
“Willow Valley”). We will affirm.
I.
Carson is a 66-year-old Vietnam veteran. He was employed by Willow Valley as
a security officer and concierge for about six months until Willow Valley terminated his
employment on April 17, 2015. Carson later filed suit against Willow Valley. His
primary complaint appeared to be that Willow Valley terminated him in retaliation for his
filing of complaints about workplace safety under the Occupational Safety and Health
Act of 1970 (“OSHA”), but he asserted four other claims as discussed below. Willow
Valley filed a motion to dismiss Carson’s complaint under Fed. R. Civ. P. 12(b)(6), and
Carson filed a motion for leave to amend. 1 By order entered February 12, 2018, the
District Court granted Willow Valley’s motion, denied Carson’s motion, and dismissed
Carson’s complaint.
In doing so, the District Court addressed Carson’s claims as follows. First, Carson
asserted a claim for “violation of Equal Employment Opportunity Commission (EEOC)”
on the grounds that Willow Valley failed to post certain notices and terminated him in
retaliation for helping a coworker draft and file an EEOC complaint. The District Court
1
Carson required leave to amend his complaint because he sought to amend it more than
21 days after Willow Valley served its motion to dismiss. See Fed. R. Civ. P.
15(a)(1)(B).
2
dismissed this claim on the grounds that “violation of EEOC” is not a cause of action and
that Carson did not plausibly allege any violation of any of the anti-discrimination
statutes that the EEOC oversees.
Second, Carson alleged that Willow Valley violated the Age Discrimination in
Employment Act by paying him less than other employees. The District Court dismissed
this claim on the ground that he did not allege, inter alia, the ages of the other employees
or otherwise allege anything linking his compensation to his age.
Third, Carson alleged that Willow Valley terminated him in retaliation for his
OSHA complaints in violation of OSHA’s anti-retaliation provision, 29 U.S.C. § 660(c).
The District Court dismissed this claim on the ground that § 660(c), which provides an
administrative enforcement mechanism, does not provide a private right of action.
Fourth, Carson alleged that Willow Valley terminated him in violation of the
Vietnam Era Veterans’ Readjustment Assistance Act (“VEVRA”), 38 U.S.C. § 4212(b).
The District Court dismissed this claim on the ground that this provision too provides an
administrative enforcement mechanism but not a private right of action.
Finally, Carson asserted a claim for wrongful termination under Pennsylvania state
law. He also sought to amend his complaint to add a whistleblower claim under
Pennsylvania state law on the ground that his termination also was in retaliation for a
report of “potential elder abuse.” The District Court dismissed the first of these claims
without prejudice, and declined to allow Carson to amend his complaint with the second,
because it declined to exercise supplemental jurisdiction. The District Court also denied
3
Carson’s motion to amend as to his other claims as futile because Willow Valley’s
motion to dismiss put Carson on notice of the foregoing defects and his proposed
amended complaint failed to cure them. The District Court explained that its dismissal of
Carson’s state-law claims was without prejudice to his ability to assert them in state
court. Carson appeals and advises us that he has indeed asserted these claims in state
court.
II. 2
Having reviewed the record and the parties’ briefs, we will affirm for the reasons
adequately explained by the District Court. We briefly address three issues on appeal.
First, Carson argues that the District Court erred in dismissing his claim that
Willow Valley terminated him in retaliation for helping another employee (a dishwasher,
Jonathan Balaguer) file an EEOC complaint. The District Court reasoned that Carson
failed to plead any details regarding this assistance, or even that Willow Valley knew
about it, and that Carson’s conclusory allegation that his termination was motivated by
this assistance did not suffice. Carson argues that he adequately alleged a “nexus to
dishwasher” in paragraph 35 of his complaint. That paragraph, however, alleges only
2
We have jurisdiction under 28 U.S.C. § 1291. “Our review over a district court’s grant
of a motion to dismiss under Rule 12(b)(6) is plenary. To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” Davis v. Abington Mem’l Hosp., 765 F.3d 236, 240 (3d Cir.
2014) (citation and quotation marks omitted). We review for abuse of discretion the
District Court’s denial of leave to amend, see
id. at 244, and its decision not to exercise
supplemental jurisdiction, see Kach v. Hose,
589 F.3d 626, 634 (3d Cir. 2009).
4
that Carson “shared his concerns” regarding a statement by a restaurant manager that
“Balaguer left his dishwashing job . . . because Plaintiff allegedly personally hired Mr.
Balaguer away.” (ECF No. 1 at 7 ¶ 35.) That allegation does not raise an inference that
Willow Valley terminated Carson because he assisted Balaguer with an EEOC complaint,
and nothing else in Carson’s complaint or proposed amended complaint raises such an
inference either.
Second, Carson argues that the District Court erred in dismissing his claims under
OSHA and VEVRA. Carson, however, does not acknowledge the sole reason that the
District Court dismissed these claims—i.e., that these statutes do not provide a private
right of action. Thus, we will not address that issue. 3 Instead of contesting that issue,
Carson argues that the timing of his termination suggests that it was in response to his
OSHA complaints and that, as a matter of public policy, complaints about workplace
safety and his status as a Vietnam veteran should give him a cause of action for wrongful
termination under Pennsylvania state law. The District Court, however, dismissed
Carson’s state-law claim for wrongful termination without prejudice after declining to
exercise supplemental jurisdiction. The District Court’s decision to do so after
3
We nevertheless note that it appears that every Court of Appeals to have address the
issue has held that these statutes do not imply a private right of action. See, e.g., Johnson
v. Interstate Mgmt. Co., 849 F.3d 1093, 1096-98 (D.C. Cir. 2017) (addressing OSHA, 29
U.S.C. § 660(c)); Seay v. Tenn. Valley Auth.,
339 F.3d 454, 473 (6th Cir. 2003)
(addressing VEVRA, 38 U.S.C. § 4212(b)); cf. Antol v. Perry,
82 F.3d 1291, 1298 (3d
Cir. 1996) (holding that a different provision of § 4212 does not imply a private right of
action).
5
dismissing all of Carson’s federal claims was not an abuse of discretion. See 28 U.S.C. §
1367(c)(3); Kach, 589 F.3d at 650. Thus, Carson may seek to pursue his state-law claims
in state court, as he advises he is doing. We express no opinion on the merits of those
claims.
Finally, Carson does not challenge the District Court’s denial of leave to amend
his complaint and does not argue that he could plausibly state any of his federal claims if
given another chance. Even if we were to reach the issue, the District Court did not
abuse its discretion in denying leave to amend for the reasons it explained. See Davis,
765 F.3d at 244.
III.
For these reasons, we will affirm the judgment of the District Court.
6
