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Narodetsky v. Cardone Industries

February 24, 2010


The opinion of the court was delivered by: O'neill, J.


Plaintiff Dmitry Narodetsky filed a three-count complaint against corporate defendant Cardone Industries, Inc. and five individual defendants--Michael Cardone, Jr., William Bond, Kelly Stigelman, Shannon Sarracino and Dan Bosworth--alleging violations of the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq., the Consolidated Omnibus Budget Reconciliation Act, Pub. L. 99-272, Apr. 7, 1986, 100 Stat. 82, and the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq. The action arises out of plaintiff's termination of employment with Cardone Industries and alleged denial of employee benefits. Cardone Industries filed an answer. The individual defendants*fn1 move to dismiss plaintiff's FMLA and ERISA claims against them pursuant to Federal Rule of Civil Procedure 12(b)(6). Before me now are defendants' motion to dismiss, plaintiff's response and defendants' reply.


Plaintiff was employed by defendant Cardone Industries, a global supplier of automotive parts, as a tool designer for approximately twelve years before he was terminated. A few weeks before his termination, on or about August 19, 2009, plaintiff was diagnosed with a leg injury and was informed he would need surgery. Plaintiff's wife contacted defendant Kelly Stigelman, Cardone Industries' manager of health benefits, on or about August 24, 2009 and informed her that plaintiff would need time off for the anticipated operation. During this conversation, plaintiff's wife requested that plaintiff be given short-term disability for the upcoming medical leave. On or about the next day, defendants conducted a forensic computer search of plaintiff's computer. Plaintiff alleges that defendants performed the search to find a reason that would justify his termination and thereby obviate the need to grant the requested leave. Thereafter, on or about August 31, 2009, plaintiff informed his supervisor, Luis Martinez, that he would need to take ten days off from work following the surgery. Plaintiff and Martinez also discussed which date he should schedule the surgery so as not to inconvenience the defendants.

On or about September 9, 2009, plaintiff had a scheduled appointment with his doctor related to the upcoming surgery. Prior to this appointment, plaintiff was called into a meeting at which defendants Dan Bosworth, Shannon Sarracino and William Bond were present. They showed plaintiff an email which they alleged he had forwarded to another employee in July 2008. At the meeting, he was terminated for allegedly sending this email.

Plaintiff filed this action on October 15, 2009. His first cause of action alleges that both Cardone Industries and the individual defendants violated FMLA by interfering with his FMLA rights and retaliating against him after he provided notice to them about his need to take FMLA leave. His second cause of action alleges that Cardone Industries violated ERISA and COBRA. His third cause of action alleges that Cardone Industries and the individual defendants violated ERISA by (1) canceling his benefits under the group health plan, (2) terminating him "to avoid its obligations under the ERISA-governed plan," Comp. ¶ 60, and (3) terminating him for requesting short-term disability benefits.


Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss all or part of an action for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Typically, "a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations," though plaintiff's obligation to state the grounds of entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the allegations in the complaint are true (even if doubtful in fact)." Id., citations omitted. The complaint must state "'enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element." Wilkerson v. New Media Tech. Charter School Inc., 522 F.3d 315, 321 (3d Cir. 2008), quoting Twombly, 550 U.S. at 556. The Court of Appeals has recently made clear that after Ashcroft v. Iqbal, --- U.S. ---, 129 S.Ct. 1937, 1955, 173 L.Ed. 2d 868 (2009), "conclusory or 'bare-bones' allegations will no longer survive a motion to dismiss: 'threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.' Iqbal, 129 S.Ct. at 1949. To prevent dismissal, all civil complaints must now set out 'sufficient factual matter' to show that the claim is facially plausible." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). The Court of Appeals also set forth a two part-analysis for reviewing motions to dismiss in civil actions in light of Twombly and Iqbal: "First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.'" Id. at *5, quoting Iqbal, 129 S.Ct. at 1950. The Court of Appeal explained, "a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to 'show' such an entitlement with its facts." Id., citing Phillips v. County of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008). "Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged--but it has not 'show[n]'--'that the pleader is entitled to relief.'" Iqbal, 129 S.Ct. at 1949.


The essence of defendants' argument is that plaintiff has failed to plead sufficient facts to establish that the individual defendants are "employers" as that term is defined under the FMLA and ERISA.


The Family and Medical Leave Act makes it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter." 29 U.S.C. § 2615(a)(1). The FMLA defines "employer" in relevant part as "any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer." 29 U.S.C. § 2611(4)(A)(ii)(I). The Court of Appeals has not addressed whether individuals may be held liable under the FMLA. However, the FMLA implementing regulations explain that

[t]he definition of 'employer' in... the Fair Labor Standards Act... similarly includes any person acting directly or indirectly in the interest of an employer in relation to an employee. As under the FLSA, individuals such as corporate officers 'acting in the interest of an employer' are individually liable for any violations of the requirements of FMLA.

29 C.F.R. § 825.104(d). While the regulation does not bind this Court, "courts owe deference to an agency's interpretation of the statute and regulations it administers." NVE, Inc. v. Dept. of Health and Human Servs., 436 F.3d 182, 186 (3d Cir. 2006) (citing Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed. 2d 694 (1984)). Furthermore, courts in this Circuit have found individuals may be held liable under FMLA. See Kilvitis v. County of Luzerne, 52 F. Supp. 2d 403, 412 (M.D. Pa. 1999) (collecting cases finding ...

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