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By: Thomas Paschos

Thomas Paschos & Associates, P.C.

Haddonfield, NJ

In Narodetsky v. Cardone Industries, Inc., 2010 WL 678288 (E.D.Pa. February 24, 2010), a slip opinion, Plaintiff Dmitry Narodetsky was employed by defendant Cardone Industries, for approximately twelve years. 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, 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 alleged that defendants performed the search to find a reason that would justify his termination and thereby obviate the need to grant the requested leave.

On or about August 31, 2009, plaintiff informed his supervisor that he would need to take ten days off from work following the surgery. On or about September 9, 2009, 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 a complaint against corporate defendant Cardone Industries, Inc. and five individual defendants-Michael Cardone, Jr., William Bond, Kelly Stigelman, Shannon Sarracino and Dan Bosworth alleging, among other things, that 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. Defendants' argued that plaintiff failed to plead sufficient facts to establish that the individual defendants are employers as that term is defined under the FMLA.

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.

The court noted that while the Court of Appeals has not addressed whether individuals may be held liable under the FMLA, 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). Furthermore, the court noted that courts in this Circuit have found individuals may be held liable under FMLA.

The court found that plaintiffs allegations that defendants participated in the forensic search of his computer with the goal of finding a reason to justify his termination because he had requested FMLA leave were sufficient to state a claim against defendants. The court held that the facts plaintiff alleged supported a finding that each of the individuals is a person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer in accordance with 29 U.S.C. 2611(4)(A)(ii)(I). The court provided:

As the president, Cardone is a corporate officer with operational control over Cardone Industries' and is therefore an employer along with the corporation. It is reasonable to infer that Bond, Sarracino and Bosworth had authority to fire employees because it is alleged that they terminated plaintiff at the September 9 meeting. Furthermore, I find it is reasonable to infer that Stigelman also had the authority to terminate employees because it is alleged that she is a manager and fired plaintiff.

The court held that plaintiffs allegations support an inference that each of the defendants exercised control over plaintiff in the decision to terminate him and, therefore, each defendant could be individually liable under FMLA.

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