Opinion
No. 1:04CV00450.
October 26, 2004
MEMORANDUM OPINION
In her amended complaint, filed on June 29, 2004, Plaintiff has alleged two causes of action against her former employer and two individuals alleged to be co-owners of the company. Plaintiff's first cause of action is entitled "Discrimination In Violation of Public Policy" in which Plaintiff alleges that Defendants violated the public policy of North Carolina by terminating her for exercising her rights under the Federal Family and Medical Leave Act of 1993 (FMLA). Plaintiff's second cause of action is brought pursuant to the FMLA. Defendants have moved pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss Plaintiff's first claim of discrimination allegedly in violation of the public policy of North Carolina. Defendants have also moved to dismiss one of the individual defendants on the grounds that Plaintiff failed to allege any facts indicating that he was involved in Plaintiff's termination. Defendants also suggest that individual defendants are not "employers" for purposes of liability under the FMLA. Both parties recognize that the same issues were previously considered by the court in Buser v. Southern Food Servs., Inc., 73 F.Supp. 2d 556 (M.D.N.C. 1999).
In Buser, Judge Beaty held that the public policy exception to the employment-at-will doctrine is a narrow one and that there is no separate claim under North Carolina law for an alleged discharge of an employee while on a valid leave under the FMLA. As for individual liability, Judge Beaty held that the plain language of the statute indicated that individual liability may be imposed under the FMLA, and noted that the majority of courts which have reached this issue have held that individual liability does exist.
This court has found nothing that leads it to disagree withBuser. Therefore, the only remaining issue before the court is the sufficiency of the Plaintiff's allegations against Defendant Robert L. Kester. Despite the limited allegations against this Defendant in the complaint, resolution of this issue can be more thoroughly considered, if necessary, at the close of discovery.
The final matter before the court is Plaintiff's motion for a default judgment against Defendant Rose Furniture Company on Plaintiff's claim under the FMLA. This motion will be denied. Defendants' motion for attorney's fees and costs will also be denied.
An order in accordance with this memorandum opinion shall be entered contemporaneously herewith.