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Nerviano v. Contract Analysis Systems, LLC

United States District Court, E.D. Pennsylvania

May 16, 2018



          SCHILLER, J.

         According 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.


         Nerviano 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, 33.)

         CAS is 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. ¶¶ 21-22.)

         Nerviano's 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.)

         In 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.)

         On 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. ¶ 51.)

         Because 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.)

         On 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.)

         On 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.)

         According 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.)

         Nerviano 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. ¶ 72.)

         Nerviano's 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.


         In 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).

         In 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). ...

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