Opinion
Civil Action 2:22-cv-549
11-03-2022
BRIAN DRDEK, Plaintiff v. MEYERS MANAGEMENT CO., INC., JAMES KOSSIS, SHARON KOSSIS, and LANCE FARBER Defendants.
REPORT AND RECOMMENDATION
PATRICIA L. DODGE, United States Magistrate Judge
I. Recommendation
It is respectfully recommended that Defendants' Partial Motion to Dismiss (ECF No. 10) be granted in part and denied in part.
II. Report
A. Relevant Procedural History
On April 12, 2022, Plaintiff Brian Drdek commenced an action against Meyers Management Co., Inc., d/b/a Meyer Management Company (“MMC”), James Kossis (“J. Kossis”), the President and primary owner-operator of MMC and two Vice Presidents of MMC operations, Sharon Kossis (“S. Kossis”) and Lance Farber (“Farber”). (ECF No. 1.) Drdek claims that Defendants violated the Family and Medical Leave Act, 29 U.S.C. §§ 2601 et seq. (“FMLA”), the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (“ADA”), and the Pennsylvania Human Relations Act, 43 P.S. §§ 951-963 (“PHRA”). (Id.)
On June 13, 2022, Defendants filed a Partial Motion to Dismiss under Rule 12(b)(6) seeking to dismiss Count I (Interference and Retaliation in violation of the FMLA) or, in the alternative, to dismiss the individual Defendants (J. Kossis, S. Kossis, and Farber). (ECF No. 10.) The motion is fully briefed (ECF Nos. 11, 17, 20) and ready for disposition.
B. Relevant Factual Background
Drdek began his employment with MMC in March 2019 and was hired with the understanding that he would be a supervisor. (ECF No. 1 ¶¶ 15-16.) He first worked as a Maintenance Technician which involved maintenance, repairs, remodeling, and other labor-related tasks associated with Defendants' management of commercial and residential properties. (Id.)
Late in June 2019, Drdek was officially promoted to Head of Maintenance of the South Hills location. (Id. ¶ 20.) The promoted role was supervisory with far less arduous requirements than that of an actual technician and involved primarily supervision, scheduling, overall coordination, and assigning tasks. (Id. ¶ 21.)
During his employment, Drdek suffered (and continues to suffer) from long-term and permanent disabilities, including diabetes, chronic kidney problems, hypertension, eye problems, and other medical complications. (Id. ¶ 23.)
In early 2020, Drdek experienced periodic flareups due to his chronic health problems and discussed his pain and discomfort with management in the event he needed any time off from work. (Id. ¶ 24.) Drdek alleges that Defendants' management was aware of his health problems prior to April 2020. (Id.)
Drdek continued to work until about June 22, 2020 when he was hospitalized because of health complications, including renal failure. (Id. ¶¶ 28, 31.) Leading up to his hospitalization, Drdek provided Defendants with notes regarding his medical conditions and certain limitations to keep Defendants advised of his ongoing health complications; however, Drdek continued to perform his job well and without any need to medical limitations because his medical restrictions did not impact his daily job or essential functions. (Id. ¶¶ 28-29.)
Drdek commenced a medical leave of absence on or about June 22, 2020, and management was fully aware of his medical incapacitation, inability to work, and need for a medical leave of absence. (Id. ¶ 32.) He initially intended to return to work in early July 2020 and provided documentation with certain restrictions (such as not lifting weight in excess of 40 pounds), but ultimately, he was required to take leave until July 28, 2020 because of medical complications. (Id. ¶¶ 33-34). Drdek provided Defendants with a medical note stating he was able “to return on July 28, 2020” to work. (Id. ¶ 34.)
Drdek alleges that Defendants failed to provide him with (1) written eligibility notifications of his FMLA rights within five days from him taking medical leave; (2) written FMLA designation notices within five days from him being on medical leave; (3) required written rights and responsibilities notices within five days from him being on medical leave; and (4) written FMLA designation notices for a leave. (Id. ¶ 38 (citing 29 C.F.R. § 825.300(b)-(d)).) He also alleges that Defendants failed to provide general FMLA notices in the workplace. (Id. ¶ 39.)
When Drdek tried to resume work on July 28, 2020, Defendants refused to let him return to work despite his return-to-work note. (Id. ¶ 40.) Instead, Defendants insisted that he obtain “a different fitness-for-duty examination based on medical documentation they created and provided for his physician to fill out,” which delayed his anticipated return to work beyond July 28, 2020. (Id.)
Drdek asserts that he “was 100% able to perform his supervisor role as of July 28, 2020, along with all essential duties of that role and job.” (Id. ¶ 45.) His July 28, 2020 medical note identified that Drdek had an indefinite “lifting” restriction of not more than 20 pounds, among other recommendations (although he was able to resume full-time). (Id. ¶ 44.)
By the first week of August 2020, Drdek provided Defendants with the additional information they requested. (Id. ¶ 43.) His August 3, 2020 medical documentation stated that he should avoid heights and ladders for the time being because it could cause dizziness or a fall risk. (Id. ¶ 44.)
Without a meeting or a telephone call about job duties or health limitations, Drdek was hand-delivered a letter dated August 6, 2020 terminating his employment effective immediately. (Id. ¶ 46.) Before terminating him, Defendants did not seek any information about how long he may be limited in climbing ladders to prevent dizziness or a fall risk (which, Drdek alleges, would have only been for approximately four to six weeks due to his medications and ongoing recovery). (Id. ¶ 45.) Defendants' management later told Drdek that he was “too much of a liability,” and separately, that “it was too risky to allow him to continue working” because of his medical problems. (Id. ¶ 46.)
Drdek had only taken an approximate five-week FMLA and alleges he was entitled to 12 weeks. (Id. ¶ 48.) Drdek asserts that even if he had to climb ladders (which he did not have to do as part of his duties) or was temporarily unable to perform some aspects of his job (which he alleges that he was still able to do), he could have remained on or used the additional seven weeks of FMLA leave to recover sufficiently to perform his role within Defendants' specifications. (Id.) He also alleges that he would have known this if Defendants had provided him with FMLA notice. (Id. ¶ 48 n. 10.)
During his employment, Drdek was primarily and directly supervised by Jim Smith, who was responsible for assigning work orders to specific assignments or locations. Smith is not a defendant in this case. (Id. ¶ 18.) Additional, Drdek was indirectly managed by the following supervisory personnel: Head of Maintenance Tony Bruno (who is not a defendant in this case); Vice President and Associate Broker S. Kossis; and Vice President Farber. (Id. ¶ 19.)
With respect to the three individual Defendants-J. Kossis, S. Kossis, and Farber-Drdek asserts that each of them “(a) took part in all discriminatory / retaliatory actions and/or omissions as outlined in this lawsuit; (b) orchestrated [his] discipline and/or termination throughout his employment for unlawful reasons; and (c) personally participated in the discriminatory and retaliatory decisions and actions underlying all claims in this lawsuit.” (ECF No. 17 at 18-20 (citing ECF No. 1 ¶ 12).)
C. Legal Standard
Under Federal Rule of Civil Procedure 12(b)(6), a complaint may be dismissed, in whole or in part, for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In deciding a Rule 12(b)(6) motion, the court must “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). When “accept[ing] all of the complaint's well-pleaded facts as true,” the court “may disregard any legal conclusions.” Id. at 210-11.
To survive a motion to dismiss, the plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Though ‘detailed factual allegations' are not required, a complaint must do more than simply provide ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action.'” Davis v. Abington Mem'l Hosp., 765 F.3d 236, 241 (3d Cir. 2014) (quoting Twombly, 550 U.S. at 555). In sum, the plaintiff “must plead facts sufficient to show that her claim has substantive plausibility.” Johnson v. City of Shelby, Miss., 574 U.S. 10, 12 (2014).
To assess the sufficiency of a complaint under Twombly and Iqbal, a court must take three steps: (1) outline the elements the plaintiff must plead to state a claim for relief; (2) peel away those allegations that are no more than conclusions and thus not entitled to the assumption of truth; (3) look for well-pled factual allegations, assume their veracity, and then determine whether they plausibly give rise to an entitlement to relief. See, e.g., Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011). The court's plausibility determination is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
To defeat a motion to dismiss, it is sufficient, but not necessary, to allege a prima facie case. Martinez v. UPMC Susquehanna, 986 F.3d 261, 266 (3d Cir. 2021). The complaint need only allege enough facts to “raise a reasonable expectation that discovery will reveal evidence of [each] necessary element.” Fowler v. UPMC Shadyside, 578 F.3d 203, 213 (3d Cir. 2009) (quoting Phillips v. Cty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)).
D. Discussion
“[W]hen employees invoke rights granted under the FMLA, employers may not ‘interfere with, restrain, or deny the exercise of or attempt to exercise these rights.'” Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 301 (3d Cir. 2012) (quoting 29 U.S.C. § 2615(a)(1)). Further, employers may not “‘discharge or in any other manner discriminate against an individual for opposing any practice made unlawful.'” Id. (quoting 29 U.S.C. § 2615(a)(2)). “[E]mployers are barred from considering an employee's FMLA leave ‘as a negative factor in employment actions such as hiring, promotions or disciplinary actions.'” Id. (citing 29 C.F.R. § 825.220(c)).
Defendants contend that Drdek fails to state a claim of FMLA interference or retaliation. (ECF No. 11 at 5-9.) In the alternative, Defendants argue that the FMLA claims against J. Kossis, S. Kossis, and Farber must be dismissed because Drdek fails to allege how the individual Defendants exercised supervisory authority over him. (Id. at 10-12.)
1. FMLA Interference Claim
To state a claim of FMLA interference, a plaintiff must allege that: “(1) he or she was an eligible employee under the FMLA; (2) the defendant was an employer subject to FMLA's requirements; (3) the plaintiff was entitled to FMLA leave; (4) the plaintiff gave notice to the defendant of his or her intention to take FMLA leave; and (5) the plaintiff was denied benefits to which he or she was entitled under the FMLA.” Ross v. Gilhuly, 755 F.3d 185, 191-92 (3d Cir. 2014) (quoting Johnson v. Cmty. Coll. of Allegheny Cnty., 566 F.Supp.2d 405, 446 (W.D. Pa. 2008)).
An “employee merely needs to show [he] was entitled to benefits under the FMLA and that [he] was denied them.” Hofferica v. St. Mary Med. Ctr., 817 F.Supp.2d 569, 576 (E.D. Pa. 2011) (quoting Thurston v. Cherry Hill Triplex, 941 F.Supp.2d 520, 526 (D.N.J. 2008)). One of the rights guaranteed by the FMLA is “to be restored by the employer to the position of employment held by the employee [or an equivalent position] when the leave commenced” or an equivalent position upon return from FMLA leave. 29 U.S.C. § 2614(a)(1).
Defendants contend that Drdek's claim for interference fails because he received all of his required medical leave and that as of July 28, 2020, he “was 100% able to perform his supervisor role” along with “all the essential duties of that role and job.” (ECF No. 1 ¶ 28; ECF No. 11 at 5-6.) Defendants also argue that Drdek does not have a private right of action based on the FMLA's general notice requirements. (Id. at 6-7.)
Drdek contends that Defendants'failure to properly notify him and designate his leave resulted in not only a delayed return to work but his ultimate termination. (ECF No. 17 at 16.) He also contends that Defendants' failure to comply with mandatory notice requirements prejudiced him in connection with his attempt to return to work or his ability to take further leave when they declined to honor his medical restrictions. (Id. at 16-17.) Finally, Drdek contends that Defendants impermissibly required him to complete and submit a fitness-for-duty examination for the first time when Drdek tried to return to work, which delayed his return. (Id.)
The Court uses “Defendants” for simplicity with respect to the parties' arguments on FMLA interference and retaliations claims but separately addresses the specific allegations against the individual Defendants below. See infra pp. 12-16.
Defendants argue that Drdek fails to rebut the fact that the general FMLA notice requirements do not provide a private right of action. (ECF No. 20 at 2.) They further argue that dismissal is proper given that Drdek has alleged that he received all of the leave to which he was entitled, did not suffer any prejudice, and was never denied additional leave. (ECF No. 20 at 23.).
An employer who fails to give proper FMLA notice may interfere with a plaintiff's FMLA rights. Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135, 142-43 (3d Cir. 2004). Interference may occur when a plaintiff who did not receive proper notice sustains prejudice because he is unable to exercise his FMLA rights in a meaningful way (such as allowing a plaintiff to make an informed decision about structuring his leave and plan of recovery). Id. (citing Nusbaum v. CB Richard Ellis, Inc., 171 F.Supp.2d 377, 385-86 (D.N.J. 2001) (“the overall intent of the FMLA is lost when an employer fails to provide an employee with the opportunity to make informed decisions about her leave options and limitations”)).
Here, Defendants focus on the fact that Drdek took all five weeks that he requested and “was 100% able to perform his supervisor role.” (ECF No. 11 at 6.) However, their argument ignores Drdek's allegation that the failure to provide individual notice caused him prejudice. Specifically, Drdek alleges that he would have been able to stay on FMLA for another seven weeks when Defendants refused to let him resume work (despite his return-to-work note) and required a different fitness-for-duty examination. (ECF No. 1 ¶¶ 45-49.) He alleges that an additional seven weeks would have allowed him to address some of the medical limitations that are alleged to have been Defendants' primary reason for his termination, such as the fact that he was a temporary “fall risk” for the next four to six weeks. (Id.)
In their reply, Defendants contend that Drdek's claims regarding Defendants' general notice obligations under the FLSA (including failing to “post a poster in the workplace” or to “include an outline of FMLA rights or entitlements in their grossly deficient employee handbook”) should be dismissed or, alternatively, stricken pursuant to Rule 12(f). The Court does not read Drdek's interference claim as being solely based on the failure to provide the general notice requirements; rather, it appears to be based on various interference related facts. Further, Defendants do not identify the basis for striking the reference to the FMLA's notice requirement, see Fed.R.Civ.P. 12(f) (“The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter”), and the Court declines to do so. See Orbital Eng'g, Inc. v. Buchko, Civil Action No. 20-593, 2020 WL 5642279, at *2 (W.D. Pa. Sept. 22, 2020) (quoting Brkovich v. Dynacom Industries, Inc., Civil Action No. 11-46, 2011 WL 7052128, at *1 (W.D. Pa. Nov. 10, 2011) (“Under Rule 12(f), the standard for striking portions of a complaint is strict and ... only allegations that are so unrelated to the plaintiff['s] claims as to be unworthy of any consideration should be stricken.... Moreover, striking portions of a plaintiff's pleading is a drastic remedy[,] which should be used only when justice requires it.” (internal citations and quotations omitted)).
Defendants also ignore the fact that Drdek's claim of interference is also premised on their requirement of a different fitness-for-duty examination. An employer may request that an employee provide fitness-for-duty certification in which the employee's healthcare provider merely certifies that the employee is able to resume work. 29 C.F.R. § 825.312. “An employer may require that this certification address the employee's ability to perform the essential functions of her job, but only if the employer provides a list of essential functions to the employee at the time that the employer notices the employee that she is eligible for FMLA leave.” Budhun v. Reading Hosp. & Med. Ctr., 765 F.3d 245, 252-53 (3d Cir. 2014) (finding a question of fact as to whether employer interfered with plaintiff's right to return to work when employer did not provide a specific list of essential functions and overrode a doctor's certification that plaintiff could return to work based on general job description) (emphasis added); 29 C.F.R. § 825.312(b).
Here, the Complaint alleges that when Defendants were required to provide him FMLA notice they did not provide list of essential functions; instead, Defendants required that he provide fitness-for-duty exam on the day he was supposed to return to work. (ECF No. 1 ¶¶ 39-41.) This different fitness-for-duty examination delayed Drdek's start date beyond July 28, 2020. (Id. ¶ 40.) Drdek's Complaint clearly alleges that Defendants interfered with his ability to return to work on July 28, 2022.
Thus, it is respectfully recommended that Defendants' Partial Motion to Dismiss be denied with respect to Drdek's FMLA interference claim.
2. FMLA Retaliation Claim
The elements of an FMLA retaliation claim are that a plaintiff (1) invoked his right to FMLA-qualifying leave, (2) suffered an adverse employment decision, and (3) the adverse action was causally related to plaintiff's invocation of rights. Capps v. Mondelez Glob., LLC, 847 F.3d 144, 152 n.6 (3d Cir. 2017).
Defendants-relying on summary judgment cases-contend that Drdek has failed to plead the third element because he pleaded that Defendants did not treat his medical leave as FMLA. (ECF No. 11 at 8-9). Defendants argue that because they did not know (or should have known) that Drdek was exercising his FMLA rights, they necessarily could not have retaliated against him for exercising such rights. (Id.)
Defendants' citation to paragraph 42 of Drdek's Complaint for this point is unpersuasive. In paragraph 42, Drdek alleges that Defendants “(1) failed to provide a designation of FMLA notice; (2) failed to inform Plaintiff of any need for a fitness for duty or other clearance at time of commencement of FMLA leave as required by federal law; (3) sought information other than related to Plaintiff's FMLA-causing health condition(s); and (4) impermissibly delayed Plaintiff's return to work.” Although Drdek alleges that Defendants took (or failed to take) certain actions in violation of the FMLA, there is an issue of fact as to whether Defendants should have known he was exercising his FMLA rights. Even if Defendants “did not treat his medical leave as FMLA leave” (ECF No. 11 at 9), that does not necessarily lead to the conclusion that they were unaware that Drdek was exercising FMLA rights and did not retaliate against him for doing so. See Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294 (3d Cir. 2012) (noting that 29 C.F.R. § 825.303(a) clearly “envisions situations where an employee can satisfy her notice obligation without providing enough detailed information for the employer to know if FMLA actually applies. Accordingly, the ‘critical test' is not whether the employee gave every necessary detail to determine if the FMLA applies, but ‘how the information conveyed to the employer is reasonably interpreted.'” (citing Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 402 (3d Cir. 2007)). Here, Drdek's Complaint details his thorough communications with Defendants regarding his medical conditions and restrictions before, during, and after his FMLA leave.
Thus, it is respectfully recommended that Defendants' Partial Motion to Dismiss be denied as to Drdek's retaliation claim.
3. J. Kossis, S. Kossis, and Farber's Individual Liability under the FMLA
In the alternative, Defendants argue that all of the individual Defendants-J. Kossis, S. Kossis, and Farber-must be dismissed because Drdek has failed to allege their supervisory role and personal involvement in his claims. (ECF No. 11 at 10-12.) Drdek contends that he has sufficiently alleged that all individual Defendants are corporate officers with “operation control” and that each of them participated in the actions giving rise his claims, though it is worth noting that much of the case law he cites precedes the Third Circuit's 2012 decision in Haybarger v. Lawrence Cnty. Adult Prob. & Parole or is at the summary judgment stage. (ECF No. 17 at 1820.)
While both sides appear to agree that an individual may be liable under the FMLA, they disagree as to the level of specificity for a pleading to survive a motion to dismiss.
An individual may be liable for violating the FMLA where he “exercises ‘supervisory authority over the complaining employee and was responsible in whole or in part for the alleged violation' while acting in the employer's interest.” Haybarger v. Lawrence Cnty. Adult Prob. & Parole, 667 F.3d 408, 417 (3d Cir. 2012) (citing 29 U.S.C. § 2611(4)(A)(ii)(I) (stating that employer includes “any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer.”) In analyzing an individual supervisor's control over the employee under the FMLA, courts look to the “economic reality” of the employment situation to determine whether “the individual supervisor carried out the functions of an employer with respect to the employee.” Id.
Courts in the Third Circuit consider any relevant factor of a supervisory relationship, including whether the individual “(1) had the power to hire and fire the employee[ ], (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.” Edelman v. Source Healthcare Analytics, LLC, 265 F.Supp.3d 534, 539 (E.D. Pa. 2017) (citing Haybarger, 667 F.3d at 418). No one factor is dispositive. Id.; see also Christopherson v. Polyconcept, N. Am., Inc., Civil Action No. 20-545, 2021 WL 3113221, at *6 (W.D. Pa. July 22, 2021).
Drdek's Complaint does not describe his relationship with J. Kossis except for referring to J. Kossis as “President, principal and primary owner-operator” of MMC. (ECF No. 1 ¶ 9.) As for S. Kossis and Farber, the Complaint identifies each as Vice Presidentswho are simply alleged to have “indirectly managed” Drdek, without further detail as to how Drdek was “indirectly managed.” (Id. ¶¶ 10-11, 19.)
There is some lack of clarity as to these Defendants' exact role within MMC; however, any distinction does not affect the outcome of this Report and Recommendation. (Compare ECF No. 1 ¶¶ 10-11 (alleging that S. Kossis and Farber are each “Vice President of Defendant's Operations” with id. ¶ 19 (alleging that S. Kossis is a “Vice President and Associate Broker” and Farber is a “Vice President of Operations.”).)
In broad strokes, the Complaint also alleges that J. Kossis, S. Kossis, and Farber individually “(a) took part in all discriminatory / retaliatory actions and/or omissions as outlined in this lawsuit; (b) orchestrated [his] discipline and/or termination throughout his employment for unlawful reasons; and (c) personally participated in the discriminatory and retaliatory decisions and actions underlying all claims in this lawsuit.” (ECF No. 17 at 18-20 (citing ECF No. 1 ¶ 12).) All of the other allegations in the Complaint discuss actions (or inactions) by the “Defendants” generally or “Defendant” MMC alone. (See ECF No. 1.)
The Complaint defines Defendant Meyers Management Co., Inc., d/b/a Meyer Management Company as “Defendant.” This creates some confusion because the Complaint refers to “Defendants' management.” (ECF No. 1 ¶¶ 24, 32, 46.) It is unclear whether this is meant to include J. Kossis, S. Kossis, and Farber. Indeed, it could be read of one of two ways: (1) J. Kossis, S. Kossis, and Farber were the managers to whom Drdek was referring (in which case, “Defendant's management” would appear more appropriate, as “Defendant” refers only to MMC) or (2) that J. Kossis, S. Kossis, and Farber (and MMC) had certain unnamed managers, thereby implying that J. Kossis, S. Kossis, and Farber are each one more step removed from the factual allegations and that the direct actions against Drdek were taken by unnamed “management.”
The Court first turns to the allegations that reference S. Kossis and Farber as Vice Presidents and “indirect managers” of Drdek. Drdek broadly alleges that all of the individual Defendants were personally involved in all discriminatory and retaliatory action, including his discipline and termination.
Courts in the Third Circuitsince Haybarger have found that the failure to address the “economic reality” factors related to the supervisor relationship (or any other relevant factors) renders a plaintiff unable to state a claim of individual liability under the FMLA. Compare Still v. Hydro Extruders, LLC, No. 3:19-CV-2089, 2020 WL 2112333, at *5 (M.D. Pa. May 4, 2020) (dismissing claims against human resources representative who worked with plaintiff to obtain FMLA leave, where complaint omitted information regarding the economic reality factors and gave no indication that defendant had the authority to terminate plaintiff's employment (or even played a significant role in plaintiff's termination)); Kaskey v. Osmose Holdings, Inc., No. 134825, 2014 WL 1096149, at *4 (E.D. Pa. Mar. 20, 2014) (dismissing claims against direct superior who “was solely and exclusively responsible for entering time” for plaintiff and did not address any of the economic reality factors); White v. Eberle & Bci Servs., Civil Action No. 12-2169 (JBS-KMW), 2013 WL 211249, at *4 (D.N.J. Jan. 17, 2013) (dismissing as “limited and conclusory” the assertion that defendant project manager had “significant control regarding [p]laintiff's FMLA-qualifying leave and in [plaintiff's suspension and then termination”); Freeman v. Phila. Hous. Auth., No. 12-1422, 2012 WL 3235323, at * 9 (E.D. Pa. Aug. 8, 2012) (dismissing general counsel who spoke with plaintiff about his return to work, informed plaintiff that he needed to see a physician, and sent a termination letter when plaintiff failed to see the physician) with Malik v. Wyo. Valley Med. Ctr., P.C., No. 3:19-CV-01547, 2020 WL 3412692, at * 3-4 (M.D. Pa. June 22, 2020) (denying motion to dismiss where defendant was a high-level manager who personally managed and oversaw plaintiff's work, had the authority to discipline and counsel plaintiff, prepared her performance-related documentation, and referred her to a regulatory body for suspicions for licensing issues, and took part in plaintiff's removal, demotion, suspension, and termination); Edelman v. Source Healthcare Analytics, LLC, 265 F.Supp.3d 534, 540 (E.D. Pa. 2017) (denying motion to dismiss where senior director of human resources supervised and controlled plaintiff's work schedule by directing her on taking leave and controlling when she could return to work and fired plaintiff, despite not alleging facts about whether defendant determined the rate and method of payment or maintained employment records).
Cases addressing the “economic reality” test in the context of a Fair Labor Standards Act claims are equally applicable because the Third Circuit in Haybarger applied the same “economic reality” standard in “analyzing an individual supervisor's control over the employee under the FLSA and the FMLA.” Haybarger, 667 F.3d at 417.
Drdek's general allegations, even when considered in connection with the roles of S. Kossis and Farber as “indirect managers” and Vice Presidents, are insufficient to adequately plead that either or both of them exercised supervisory authority over Drdek. Thus, Drdek has failed to state a claim against S. Kossis and Farber.
That leaves the allegations against J. Kossis, the President and primary owner-operator of MMC. In Perez v. Davis Design & Dev., Inc., the Court denied a motion for judgment on the pleadings based on its finding that it would be “hard to believe” that defendant, as CEO, did not have “the power to hire and fire employees, supervise employees, and supervise the maintaining of adequate employment records.” No. 13-1118, 2013 WL 6835095, at *5 (W.D. Pa. Dec. 23, 2013). Although as President, J. Kossis may be considered to have the authority to hire and fire Drdek, the Complaint here differs from that in Perez. In Perez, the complaint specifically alleged that the CEO “actively supervised and directed employment practices and has acted directly or indirectly in the interest of [the company] in relation to its employees” and was responsible for the company's policy of not paying overtime. Id. Here, there is no reference to any specific actions by J. Kossis; indeed, Drdek does not even mention J. Kossis as an “indirect manager” as he does with respect to S. Kossis and Farber. As such, the claim against J. Kossis is also subject to dismissal.
However, Drdek may be able to allege facts to sufficiently plead that J. Kossis, S. Kossis, and/or Farber were employers under the FMLA. Thus, it is respectfully recommended that Drdek's FMLA claims against J. Kossis, S. Kossis, and Farber be dismissed without prejudice and with leave to amend.
E. Conclusion
For these reasons, it is respectfully recommended that Defendants' Partial Motion to Dismiss be granted in part by dismissing without prejudice and with leave to amend the FMLA claims against J. Kossis, S. Kossis, and Farber. It is further recommended that the Partial Motion to Dismiss be denied in all other respects.
F. Notice
In accordance with the Federal Magistrates Act, 28 U.S.C. § 636(b)(1), and Fed.R.Civ.P. 72(b)(2), the parties are allowed fourteen (14) days from the date of service of this Report and Recommendation to file written objections thereto. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).