United States District Court, E.D. Pennsylvania
to Deborah Nerviano, an Italian-American with numerous
disabilities, she was fired from her job at Contract Analysis
Systems, LLC (“CAS”) and replaced by a Jewish
woman. Nerviano alleges that she had extracted a promise
whereby she could continue at her job receiving her full
salary, provided she turned over her disability checks to
CAS. She brings a host of claims, including discrimination
and breach of contract, against a number of individuals. She
also asserts that ADP Totalsource, Inc. (“ADP”)
was a joint employer along with CAS and is therefore also
liable. All Defendants have moved to dismiss the entire case.
The Court will grant the motions in part and deny the motions
in part; all that remains is the discrimination claim against
CAS, Howard Koenig, Sal De Trane, and Michael Greene, and the
breach of contract claim against CAS.
is a disabled Italian-American female who suffered from knee
problems that required two full knee replacement surgeries.
(Am. Compl. ¶¶ 6, 29, 31, 46.) She also suffered
from chronic cellulitis, obstructive sleep apnea,
hypersomina, and narcolepsy. (Id. ¶¶ 29,
a healthcare technology company that provides real-time
updates of clients' healthcare information. (Id.
¶ 24.) On April 16, 2010, Nerviano began working for CAS
as the Vice President of Administration. (Id. ¶
20.) In that role, she was the office manager, facility
manager, and the assistant to John Zubak, the CEO, and Harvey
Mitgang, the President of CAS. (Id. ¶ 21.) She
also “took care of the human resources function as well
as the bookkeeping and accounting, ” and she developed
the Quickbooks billing system. (Id. ¶¶
disabilities affected her ability to travel to and from work;
she was able to complete her work, but she needed an
accommodation to work from home. (Id. ¶ 36.)
She requested that accommodation, and she began regularly
working from home in April of 2012. (Id.
¶¶ 37-39.) Nerviano also began to receive
disability checks around April of 2012. (Id. ¶
41.) In June of 2012, Nerviano went on disability because she
needed knee replacement surgery and was suffering from
chronic cellulitis. (Id. ¶ 29.) At the time of
her first knee replacement, Nerviano also suffered from
conditions that affected her resting patterns, made her
tired, and made it difficult for her to concentrate and
focus. (Id. ¶¶ 33, 36.) As a condition of
her employment, Defendants required Nerviano to sign over her
disability checks to the company before they would pay her.
(Id. ¶ 42.) Nerviano agreed to turn over her
disability payments in exchange for her continued employment.
(Id. ¶ 43.)
November of 2015, Nerviano had to undergo a second full knee
replacement surgery. (Id. ¶ 46.) At all
relevant times, Nerviano continued to sign over her
disability checks to the company and to complete her work
from home. (Id.)
August 2, 2016, Nerviano received an email announcing some
changes to the organization; specifically, she was informed
that Zubak and Mitgang would be assuming different roles.
(Id. ¶¶ 48-49.) The email announced that
Howard Koenig and Sal De Trane would act as dual President
and CEO for CAS. (Id. ¶ 50.) The email stated
that a further explanation of the changes would be detailed
at a staff meeting set for August 4, 2016. (Id.
Plaintiff was scheduled to be out of town on August 4, she
reached out to Zubak and Mitgang. (Id. ¶ 52.)
Zubak assured Nerviano that everything was fine and that her
job was safe. (Id. ¶ 53.) She was told that
“Defendants would not terminate her per the agreement
between Plaintiff and Mr. Zubak.” (Id.)
August 8, 2016, Koenig asked Nerviano if she was available to
meet later that day. (Id. ¶ 56.) Krystyna
Raporte, CAS's VP of Finance, De Trane, CAS's CEO,
and Michael Greene, a CAS director, were copied on the email.
(Id. ¶¶ 16, 18, 56.) Nerviano responded
via email only to Koenig and De Trane because her email
response included personal health information. (Id.
¶ 57.) Plaintiff explained that she could not attend a
meeting that day but that she could meet in the office on
Wednesday or Thursday. (Id. ¶ 58.) Koenig
responded that he understood the nature of Plaintiff's
disability and that they could meet on Wednesday, August 10,
2016. (Id. ¶ 59.) On August 9, 2016, Nerviano
got a phone call from Koenig, a Jewish-American.
(Id. ¶¶ 60-61.) Greene and Raporte were
also on the call. (Id. ¶ 60.) Koenig told
Nerviano that Raporte had accepted a full-time job with the
company, and that Nerviano would report to Raporte, a
Jewish-American. (Id. ¶ 61.)
August 10, 2016, Nerviano met with Koenig, De Trane, Raporte,
and Greene. (Id. ¶¶ 62, 64.) Plaintiff was
asked a number of questions about her responsibilities.
(Id. ¶¶ 65-67.) After this questioning,
Nerviano was informed that she was terminated, effective
immediately. (Id. ¶ 68.) “Defendant ADP
was informed of Plaintiff's termination and assented to
the termination because ADP Totalsource canceled all of
Plaintiff's benefits at the time of her
termination.” (Id. ¶ 69.)
to Nerviano, Defendants kept her personal effects that were
in her office for over six weeks before Zubak and Mitgang
returned her things. (Id. ¶ 77.) Nerviano also
learned that her co-worker was replaced by a Jewish female.
(Id. ¶ 78.)
claims that CAS and ADP were both joint and single employers
of Nerviano. (Id. ¶ 11.) ADP is a Certified
Professional Employment Organization and holds a Certified
Professional Employment Organization Surety Bond from the
IRS. (Id. ¶¶ 26-27.) ADP is identified on
Nerviano's 2016 W-2 as an employer. (Id. ¶
Complaint includes the following claims: discrimination under
42 U.S.C. § 1981; discrimination under the
rehabilitation act; fraud; misrepresentation; conversion of
her disability benefits and her personal effects; breach of
contract; and negligence for publishing Nerviano's
personal health information to other employees.
STANDARD OF REVIEW
reviewing a motion to dismiss for failure to state a claim, a
district court must accept as true all well-pleaded
allegations and draw all reasonable inferences in favor of
the non-moving party. See Bd. of Trs. of Bricklayers
& Allied Craftsmen Local 6 of N.J. Welfare Fund v.
Wettlin Assocs., 237 F.3d 270, 272 (3d Cir. 2001). A
court need not, however, credit “bald assertions”
or “legal conclusions” when deciding a motion to
dismiss. Morse v. Lower Merion Sch. Dist., 132 F.3d
902, 906 (3d Cir. 1997); see also Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).
considering a motion to dismiss, a district court is
generally limited to “the allegations contained in the
complaint, exhibits attached to the complaint and matters of
public record.” Pension Benefit Guar. Corp. v.
White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.
1993). However, a court may also consider “an
undisputedly authentic document that a defendant attaches as
an exhibit to a motion to dismiss if the plaintiff's
claims are based on the document.” Id. This
narrow category of exhibits which may be considered includes
only those which are “integral to or explicitly relied
upon in the complaint.” In re Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997)
(internal quotation marks omitted). ...