BOWIE v. COSTCO WHOLESALE CORPORATION, et al.

Filing 19

OPINION filed. Signed by Judge Brian R. Martinotti on 7/26/2017. (mps)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
____________________________________
:
JEFFREY BOWIE,
:
:
Civil Action No. 16-5808-BRM-LHG
Plaintiff,
:
:
v.
:
:
OPINION
COSTCO WHOLESALE
:
CORPORATION,
:
BRUCE DZENEORF, and
:
JOHN AND JANE DOES 1-10,
:
:
Defendants.
:
____________________________________:
MARTINOTTI, DISTRICT JUDGE
Before the Court is Defendants Costco Wholesale Corporation (“Costco”) and Bruce
Dezendorf’s (“Dezendorf”) 1 (collectively, “Defendants”) Motion to Dismiss the Complaint,
pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 7.) Plaintiff Jeffrey Bowie
(“Plaintiff”) opposes the motion. (ECF No. 12.) Pursuant to Federal Rule of Civil Procedure 78(a),
the Court heard oral argument on April 11, 2017. (ECF No. 16.) For the reasons set forth below,
Defendants’ Motion to Dismiss is GRANTED in part and DENIED in part.
I.

BACKGROUND
For the purpose of this Motion to Dismiss, the Court accepts the factual allegations in the

Complaint as true, considers any document “integral to or explicitly relied upon in the complaint,”
and draws all inferences in the light most favorable to Plaintiffs. In re Burlington Coat Factory

1

Defendant Bruce Dezendorf is erroneously named in the Complaint as “Bruce Dzeneorf.” (ECF
No. 7 at 1-2.) For the purpose of this Opinion, the Court will refer to him by his correct name.

1

Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997); see Phillips v. Cty. of Allegheny, 515 F.3d 224,
228 (3d Cir. 2008).
Plaintiff, who at all times relevant had a son with disabilities, began working at Costco in
October 1994 and eventually became a General Manager. (Compl. (ECF No. 1) at 3 ¶¶ 2, 4.) At
all times relevant, Dezendorf was Plaintiff’s supervisor and an employee of Costco. (Id. at 2 ¶ 3.)
Plaintiff made Defendants aware that his son was disabled each time “plaintiff made a formal
request for intermittent family leave or an accommodation.” (Id. at 3 ¶ 4.) Defendants authorized
Plaintiff’s request for an accommodation and allowed him to leave work early “to attend to his
son’s disability.” (Id. at 3 ¶ 5.) Accordingly, Plaintiff “occasionally” rearranged his schedule to
leave early to care for his son. (Id. at 3 ¶ 6.)
However, on October 21, 2014, Plaintiff contends he was terminated for leaving work early
“[o]n one occasion in October 2014 . . . to take care of his disabled child after he had obtained
proper coverage.” (Id. at 3 ¶ 7.) Plaintiff alleges Defendants terminated him because “they were
unhappy that he had left work early and it would no longer be tolerated.” (Id. at 3-4 ¶ 8.) He further
alleges he “performed to a level that met the Defendants [sic] legitimate expectations.” (Id. at 3 ¶
3.)
On September 22, 2016, Plaintiff filed a seven-count complaint, alleging: (1) a violation of
the Americans with Disabilities Act of 1990 (“ADA”) (Count One); (2) a violation of the ADA
based on associational discrimination (Count Two); (3) a violation of the New Jersey Law Against
Discrimination (“NJLAD”) (Count Three); (4) that Dezendorf aided and abetted unlawful
discrimination under the NJLAD (Count Four); (5) claims for both intentional and negligent
infliction of emotional distress (Count Five); (6) a claim for intentional interference with Plaintiff’s
employment relationship (Count Six); and (7) violations of the Family Medical Leave Act

2

(“FMLA”) and the New Jersey Family Leave Act (“NJFLA”) (Count Seven). (ECF No. 1.) On
December 20, 2016, Defendants filed a Motion to Dismiss Counts Three through Seven of
Plaintiff’s Complaint (ECF No. 7) 2 and filed a partial answer to the Complaint (ECF No. 9).
Plaintiff opposed the Motion on January 23, 2017. (ECF No. 12.) On April 11, 2017, the Court
heard oral argument. (ECF No. 16.)
II.

LEGAL STANDARD
In deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a

district court is “required to accept as true all factual allegations in the complaint and draw all
inferences in the facts alleged in the light most favorable to the [plaintiff].” Phillips, 515 F.3d at
228. “[A] complaint attacked by a . . . motion to dismiss does not need detailed factual allegations.”
Bell Atl. v. Twombly, 550 U.S. 544, 555 (2007). However, the Plaintiff’s “obligation to provide
the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain,
478 U.S. 265, 286 (1986)). A court is “not bound to accept as true a legal conclusion couched as a
factual allegation.” Papasan, 478 U.S. at 286. Instead, assuming the factual allegations in the
complaint are true, those “[f]actual allegations must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555.
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

2

Although Defendants’ brief states they are seeking partial dismissal of Plaintiff’s Complaint,
specifically as to Counts Three through Seven (ECF No. 7-1 at 1), they later argue “[t]here is no
alternative basis to attach individual liability to Dezendorf under Plaintiff’s remaining claims
under the ADA, FMA, or NJFLA” (Id. at 20). All ADA claims against Defendants are actually
asserted in Counts One and Two, not Three through Seven. Therefore, Defendants also seek to
partially dismiss Counts One and Two as to Dezendorf, and the Court will address the dismissal
of those claims as well.
3

U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 570). “A claim has facial plausibility when the
pleaded factual content allows the court to draw the reasonable inference that the defendant is
liable for misconduct alleged.” Id. This “plausibility standard” requires the complaint allege “more
than a sheer possibility that a defendant has acted unlawfully,” but it “is not akin to a ‘probability
requirement.’” Id. (citing Twombly, 550 U.S. at 556). “Detailed factual allegations” are not
required, but “more than ‘an unadorned, the defendant-harmed-me accusation” must be pled; it
must include “factual enhancements” and not just conclusory statements or a recitation of the
elements of a cause of action. Id. (citing Twombly, 550 U.S. at 555, 557).
“Determining whether a complaint states a plausible claim for relief [is] . . . a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679. “[W]here the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged—but it has not
‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
While as a general rule, a court many not consider anything beyond the four corners of the
complaint on a motion to dismiss pursuant to 12(b)(6), the Third Circuit has held “a court may
consider certain narrowly defined types of material without converting the motion to dismiss [to
one for summary judgment pursuant under Rule 56].” In re Rockefeller Ctr. Props. Sec. Litig., 184
F.3d 280, 287 (3d Cir. 1999). Specifically, courts may consider any “document integral to or
explicitly relied upon in the complaint.” In re Burlington Coat Factory Sec. Litig., 114 F.3d at
1426.

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III.

DECISION
A. Associational Discrimination under the NJLAD (Count Three)
Plaintiff alleges he “is a protected class member as defined by the NJLAD . . . due to his

disabled son” and was “unlawfully discriminated against on the basis of [that] disability” when he
was terminated. (ECF No. 1 at 5-6 ¶¶ 4-6.) Although Plaintiff liberally uses the term “Defendants”
when alleging this Count and states the Defendants “individually” and “jointly” took his son’s
disability into consideration, he also only specifically pleads:
3. Defendant, Costco [] is an “employer” as defined by the
NJLAD.
4. Plaintiff . . . is a protected class member as defined by the
NJLAD, being at all pertinent times, due to his disabled son.
(Id. at 5-6.) Because Plaintiff refers only specifically to Costco in this Count, the Court construes
this Count to be construed only against Costco. 3
Defendants construe this as a claim for associational discrimination and argue “Plaintiff’s
associational disability discrimination claim [under the NJLAD] should be dismissed because the
[NJLAD] does not recognize such a claim.” (ECF No. 7-1 at 6.) In response, Plaintiff argues
while the [NJLAD] does not expressly identify associational
discrimination it is to be construed in accordance with the principals
set forth in the ADA and is in fact to be construed more broadly and
more liberally as it affords greater protections than the Federal Act.
More importantly, the Federal Courts applying these principals have
acknowledged the existence of association disability claims under
the [NJLAD].
(ECF No. 12 at 6.) Accordingly, the Court construes Count Three as a claim for associational
discrimination under the NJLAD.

3

Nonetheless, to the extent Plaintiff asserts this cause of action against Dezendorf individually,
the claim is dismissed with prejudice for the same reasons Plaintiff fails to state a claim for
individual liability in Count Four under the NJLAD, as set forth in Section III(E)(1), infra.
5

The NJLAD prohibits “any unlawful discrimination against any person because such
person is or has been at any time disabled or any unlawful employment practice against such
person, unless the nature and extent of the disability reasonably precludes the performance of the
particular employment.” N.J.S.A. § 10:5–4.1. The elements of an NJLAD claim vary based on the
cause of action alleged. Victor v. State, 203 N.J. 383, 408 (2010) (listing the different prima facie
elements for various NJLAD causes of action based on failure to hire, discriminatory discharge,
retaliation, and hostile environment).
The NJLAD prohibits employment discrimination on the basis of a disability. Victor v.
State, 401 N.J. Super. 596, 609 (App. Div. 2008), aff’d as modified, 203 N.J. 383 (2010). In order
to establish a prima facie case of disability discrimination under the NJLAD, a plaintiff must
demonstrate:
(1) plaintiff was handicapped or disabled within the meaning of the
statue; (2) plaintiff was qualified to perform the essential functions
of the position of employment, with or without accommodation; (3)
plaintiff suffered an adverse employment action because of the
handicap or disability; and (4) the employer sought another to
perform the same work after plaintiff had been removed from the
position.
Id. Courts have also “uniformly held that the [NJLAD] . . . requires an employer to reasonably
accommodate an employee’s handicap.” Tynan v. Vicinage 13 of Superior Court, 351 N.J. Super.
385, 396 (App. Div. 2002).
Defendants take issue with Plaintiff’s ability to satisfy the first element of this claim and
argue the NJLAD does not protect employees from discrimination due to an employee’s
association with a disabled person, while Plaintiff contends such a cause of action can be
prosecuted and Defendants violated the NJLAD by terminating him due to his association with his
disabled son. (ECF No. 7-1 at 6-12 and ECF No. 12 at 10). The NJLAD prohibits “unlawful

6

discrimination against any person because such person is or has been at any time disabled.”
N.J.S.A. §§ 10:5–4.1, –12 (emphasis added). Further, it explicitly prohibits any unlawful
discrimination of a “buyer or renter because of the disability of a person residing in or intending
to reside in a dwelling after it is sold, rented or made available or because of any person associated
with the buyer or renter.” N.J.S.A. § 10:5–4.1. It does not, however, explicitly prohibit an employer
from taking an adverse employment action based upon an employee’s association with a person
with a disability. See N.J.S.A. § 10:5–12. The New Jersey Supreme Court has yet to decide whether
a claim for associational employment discrimination is cognizable under the NJLAD. However,
the New Jersey Appellate Division has recognized NJLAD claims based on association despite the
lack of statutory recognition. See O’Lone v. N.J. Dep’t of Corr., 313 N.J. Super. 249 (App. Div.
1998) (finding the plaintiff, a white male, had a right to bring suit when he was fired for refusing
to cease dating an African-American female).
In contrast to the NJLAD, the ADA explicitly recognizes associational discrimination.
Under 42 U.S.C. § 12112(b)(4), an employer is prohibited from discriminating against an
employee as a result of “the known disability of an individual with whom [the employee] is known
to have a relationship or association.” Generally, the NJLAD “has been construed in accordance
with the ADA.” Tish v. Magee-Women’s Hosp. of Univ. of Pittsburgh Med. Ctr., No. 06-820, 2008
WL 4790733, at *15 n.15 (W.D. Pa. Oct. 27, 2008) (citing Armstrong v. Burdette Tornlin Mem’l
Hosp., 438 F.3d 240, 246 n.12 (3d Cir. 2006) (“The requirements for failure to accommodate
claims under [NJLAD] have been interpreted in accordance with the [ADA].”)); Maher v. Abbott
Labs., No. 11-5161, 2013 WL 6326488, at *9 (D.N.J. Dec. 4, 2013) (stating “a plaintiff may prove
discrimination under the ADA and NJLAD through the burden-shifting framework set forth by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 [] (1973)”); Moussavian v.

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China Ocean Shipping Co. Americas Inc., No. 06-4818, 2009 WL 3074636, at *5 (D.N.J. Sept.
22, 2009) (applying the same standard for a failure to accommodate claim under the ADA and
NJLAD).
Furthermore, recent federal court decisions have concluded an association claim is
cognizable under NJLAD. See, e.g., Pascucci v. Twp. of Irvington, Irvington Police Dep’t, 46 F.
App’x 114, 117 (3d Cir. 2002) (inferring an associational cause of action exists by affirming the
district court’s dismissal of that claim where “there was no evidence that [plaintiff, who was not a
member of a protected class], was subject to a hostile work environment because of his friendship
with [members of a protected class]); Downs v. U.S. Pipe & Foundry Co., 441 F. Supp. 2d 661,
665 (D.N.J. 2006) (finding “the New Jersey Supreme court would hold that NJLAD bars
employment discrimination based upon a person’s association with a person with a disability”);
Valenti v. Maher Terminals LLC, No. 14-7897, 2015 WL 3965645, at *5 (D.N.J. June 30, 2015)
(finding the Third Circuit and this Court recognize “an associational right under the NJLAD”);
Pailleret v. Jersey Constr. Inc., No. 09–1325, 2011 WL 1485402, at *7 (D.N.J. Apr. 19, 2011)
(“The NJLAD affords protection to both disabled persons as well as individuals associated with
disabled persons.”). But see Kennedy v. Chubb Grp. of Ins. Cos., 60 F. Supp. 2d 384, 395 (D.N.J.
1999) (declining “to create a new cause of action under state law where there is no indication that
the New Jersey Supreme Court would endorse such a position”); Poveromo-Spring v. Exxon Corp.,
968 F. Supp. 219, 226-27 (D.N.J. 1997) (stating “the LAD does not provide for association based
claims”); Maher, 2013 WL 6326488, at *13 (finding “there is no indication that a failure to
accommodate claim based on an employee’s association with a disabled individual is cognizable
under the NJLAD”).

8

In Downs, the plaintiff was employed by U.S. Pipe for approximately twenty-one years.
Downs, 441 F. Supp. 2d at 662. During his employment, he received several raises, was promoted
several times, and reached the position of General Foreman. Id. The plaintiff’s wife suffered from
bipolar and manic depressive disorders that required hospitalization on more than one occasion.
Id. At some point during his employment, he requested time off to care for his ill wife. U.S. Pipe
denied the request, but the plaintiff nonetheless took the days off. Id. Shortly upon his return, he
was terminated. Id. As a result, the plaintiff filed a complaint against his employer alleging, in
part, a violation of the NJLAD. Id. U.S. Pipe filed a motion for summary judgment arguing the
NJLAD did not provide a right of action based upon any discrimination the plaintiff may have
suffered as a result of his association with his disabled wife. Id. at 663.
The Court held the plaintiff “was the ‘functional equivalent’ of a disabled person. He was
deprived of the benefits of his employment because he had to repeatedly, and with minimal notice,
take time off from work due to his wife’s disability, making him an ‘aggrieved person’ under
N.J.S.A. § 10:5-13.” Id. at 664. The Court further noted:
While both parties undertake the arduous task of statutory
interpretation by comparing the language in various sections of the
NJLAD and analyzing the legislative history, the Court is
nonetheless persuaded by the fact [] that in the eight years since
O’Lone was decided the New Jersey Supreme Court has not found
it necessary to speak on the issue. Additionally, the Third Circuit
has acknowledged that O’Lone and [Berner v. Enclave Condo.
Ass’n, Inc., 322 N.J. Super. 229 (App. Div. 1999)] stand for the
preposition that there is an associational right under NJLAD.
[Pascucci, 46 F. App’x at 117]. In the absence of any contrary
authority, this Court concludes that the New Jersey Supreme Court
would hold that NJLAD bars employment discrimination based
upon a person’s association with a person with a disability.
Id. at 665.

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Because the Third Circuit, several New Jersey District Courts, and New Jersey Appellate
Courts have acknowledged associational discrimination under the NJLAD, and because the New
Jersey Supreme Court has not found it necessary to speak on the issue, which suggests it does not
oppose the current legal landscape, the Court likewise finds the NJLAD affords protection to both
disabled persons as well as individuals associated with disabled persons. Because Defendants seek
dismissal based solely on the contention that the right Plaintiff seeks to exercise does not exist,
and they do not contend he is unable to state a prima facie claim under the NJLAD, the Court will
not rule on those issues. Accordingly, the Court DENIES Defendants’ Motion to Dismiss
Plaintiff’s NJLAD claim (Count Three). 4
B. Intentional and Negligent Infliction of Emotional Distress (Count Five)
1. Intentional Infliction of Emotional Distress
Defendants argue Plaintiff fails to allege sufficient facts to establish a claim of intentional
infliction of emotional distress because he has failed to plead facts demonstrating Defendants’
conduct was outrageous. (ECF No. 7-1 at 21-22.) Plaintiff argues his “claim for intentional
infliction of emotional distress is backed by the facts presented in the case and is a question of fact
which should properly be left to the jury.” (ECF No. 12 at 13-14.) Plaintiff’s Complaint does not
refer to any specific defendant in this Count, but instead states “Defendants’ actions as aforesaid
ground a claim by Plaintiff against Defendants for Intentional and/or Negligent Infliction of
Emotional Distress.” (ECF No. 1 at 7 ¶ 3.) Therefore, the Court construes Count Five to be against
all Defendants.

4

Again, Count Three appears to be pled solely against Costco, however, to the extent Plaintiff
asserts this cause of action against Dezendorf individually, the claim is dismissed with prejudice
for the same reasons Plaintiff fails to state a claim for individual liability in Count Four under the
NJLAD, as set forth in Section III(E)(1), infra.
10

To establish a prima facie claim for intentional infliction of emotional distress in New
Jersey, a plaintiff must show: “(1) that the defendant intended to cause emotional distress; (2) that
the conduct was extreme and outrageous; (3) that the actions proximately caused emotional
distress; and (4) that plaintiff’s emotional distress was severe.” Witherspoon v. Rent-A-Center,
Inc., 173 F. Supp. 2d 239, 242 (D.N.J. 2001) (citing Buckley v. Trenton Saving Fund Soc’y, 111
N.J. 355, 366 (1988)). “To establish extreme and outrageous conduct, a plaintiff must show
conduct ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds
of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’” Id.
(quoting Buckley, 544 N.J. at 366 (citation omitted)). One will not satisfy the above elements by
merely demonstrating a defendant acted “unjust, unfair, and unkind.” Id.
Courts have consistently acknowledged it is difficult to establish intentional infliction of
emotional distress in the employment context. See, e.g., Cox v. Keystone Carbon Co., 861 F.2d
390, 395 (3d Cir. 1988); Witherspoon, 173 F. Supp. 2d at 242; Horvath v. Rimtec Corp., 102 F.
Supp. 2d 219, 236 (D.N.J. 2000); Fregara v. Jet Aviation Bus. Jets, 764 F. Supp. 940, 956 (D.N.J.
1991); Griffin v. Tops Appliance City, Inc., 337 N.J. Super. 15, 23-24 (App. Div. 2001).
Here, Plaintiff has failed to sufficiently allege a claim for intentional infliction of emotional
distress. Plaintiff has not alleged facts demonstrating: (1) Defendants intended to cause emotional
distress; (2) Defendants’ conduct terminating him was extreme and outrageous; and (3) Plaintiff’s
emotional distress was severe. Accordingly, the Court GRANTS Defendants’ Motion to Dismiss
Plaintiff’s Intentional Infliction of Emotional Distress (Count Five) claim WITHOUT
PREJUDICE.

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2. Negligent Infliction of Emotional Distress
Defendant argues “the New Jersey Workers’ Compensation Act bars claims that employers
or co-employees negligently inflicted emotional distress.” (ECF No. 7-1 at 24 (citing Millison v.
E.I. du Pont de Nemours & Co., 101 N.J. 161, 184-96 (1985)).) At oral argument, Plaintiff
conceded the New Jersey Workers’ Compensation Act bars negligent infliction of emotional
distress claims against employers and employees. (ECF No. 16.) Accordingly, the Court GRANTS
Defendants’ Motion to Dismiss Plaintiff’s negligent infliction of emotional distress claim (Count
Five) WITH PREJUDICE.
C. Interference with Plaintiff’s Employment Relationship (Count Six)
Plaintiff’s Complaint alleges “John Does 1 through 10, as a direct result of their actions
and/or inactions, intentionally interfered with Plaintiff’s employment relationship with [Costco].”
(ECF No. 1 at 7 ¶ 2.) Defendants argue Plaintiff has not pled facts suggesting malice or establishing
that John Does 1 through 10 are third parties rather than parties to the employment contract. (ECF
No. 7-1 at 26.) Plaintiff argues “[g]iven his malicious firing and the fact that he was fired in
retaliation for having taken time off to care for his autistic son, there is interference with that
relationship by Costco.” (ECF No. 12 at 14.) Because Plaintiff refers specifically to John Does 1
through 10 in this Count, the Court construes this claim to be only against John and Jane Does 1
through 10.
Under New Jersey law, to establish a claim of tortious interference claim, a plaintiff must
prove: (1) an existing contractual relationship; (2) the defendant intentionally interfered with that
contractual relationship; (3) the interference was undertaken with malice; and (4) damages
resulting from the interference. Angrisani v. Capital Access Network, Inc., 175 F. App’x 554, 557
(3d Cir. 2006) (applying the above tortious interference factors to the plaintiff’s claim that the

12

defendant “tortuously interfered with his employment relationship”); Matrix Essentials, Inc. v.
Cosmetic Gallery, Inc., 870 F. Supp. 1237, 1247 (D.N.J. 1994); see Printing Mart-Morristown v.
Sharp Electronics Corp., 116 N.J. 739, 751-52 (1989). An employer, employee, or one of its agents
cannot interfere with its own employment contract. See Pitak v. Bell Atl. Network Servs., Inc., 928
F. Supp. 1354, 1369 (D.N.J. 1996); McDermott v. Chilton Co., 938 F. Supp. 240, 247 (D.N.J.
1995); Cappiello v. Ragen Precision Indus., Inc., 192 N.J. Super. 523, 529 (App. Div. 1984).
In this case, Plaintiff alleges “John Does 1 through 10 . . . intentionally interfered with
Plaintiff’s employment relationship with [d]efendant, Costco.” (ECF No. 1 at 7 ¶ 2.) He does not,
however, identify whether John Does 1 through 10 are employees of Costco or third parties.
Because John Does 1 through 10 may be employees of Costco and an employer cannot interfere
with its own employment contract, Plaintiff has failed to sufficiently plead a claim for tortious
interference. Further, Plaintiff’s Complaint fails to plead conduct demonstrating any of the
Defendants acted with malice. Because Plaintiff has not sufficiently pled a claim against any John
or Jane Doe—whether an employer, employee, or agent of the employer—the Court GRANTS
Defendants’ Motion to Dismiss Count Six as it applies to Defendants WITHOUT PREJUDICE,
but the claim remains to the extent John Does 1 through 10 represent third parties.
D. FMLA and NJFLA Claims (Count Seven)
Plaintiff’s Complaint alleges he “requested that he be granted [FMLA and NJFLA] time
off in order to care for his disabled son during a meeting with his superior at Costco, Bruce
Dezendorf.” (ECF No. 1 at 8 ¶ 2.) It further alleges his request for time off of work under the
FMLA was denied and he was “forced to make his own arrangement and accommodations so that
he could care for his disabled son following the denial of his request,” and was thereafter
terminated. (Id. at 8 ¶ 4.) Because Plaintiff refers to Dezendorf individually and “Defendants” in

13

Count Seven, the Court construes this claim to be against all Defendants. FMLA and NJFLA
claims specific to Dezendorf will be addressed below. See Section III(E)(3)-(4), infra.
Defendants argue Plaintiff’s FMLA and NJFLA claims should be dismissed because
Plaintiff fails to adequately plead such claims. (ECF No. 7-1 at 12.) Specifically, Defendants argue
“Plaintiff’s Complaint is devoid of any allegations establishing that he is eligible for FMLA or
NJFLA leave” because he failed to allege “he worked 1,250 hours during the last 12 months prior
to October 2014 to qualify for FMLA leave or worked 1[,]000 base hours during the last 12 months
prior to October 2014 to qualify for NJFLA leave.” (Id.) In the alternative, Defendants argue “the
Complaint offers no facts sufficient to state a plausible interference or retaliation claim.” (Id. at 14
(alteration in original).) Plaintiff argues he “clearly established that he was employed for the
statutorily necessary periods of time prior to his termination” because he was employed at Costco
since 1994. (ECF No. 12 at 10.)
The FMLA provides that “an eligible employee shall be entitled to a total of 12 workweeks
of leave during any 12-month period . . . [i]n order to care for the spouse, or a son, daughter, or
parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition. 29
U.S.C. § 2612(a)(1)(C). A plaintiff is an “eligible employee” for FMLA purposes if he was
employed “for at least 12 months by the employer with respect to whom leave is requested” and
“for at least 1,250 hours of service with such employer during the previous 12-month period.” 29
U.S.C. § 2611(2)(A). It further provides that an
employee who takes leave under section 2612 . . . shall be entitled,
on return from such leave . . . to be restored by the employer to the
position of employment held by the employee when the leave
commenced; or . . . to be restored to an equivalent position with
equivalent employment benefits, pay, and other terms and
conditions of employment.

14

29 U.S.C. § 2614(a)(1). It shall be unlawful for an employer to: (1) “interfere with, restrain, or
deny the exercise of or the attempt to exercise, any right provided under” the FMLA and (2)
“discharge or in any other manner discriminate against any individual for opposing any practice
made unlawful” by the FMLA. 29 U.S.C. § 2615.
Under the NJFLA, an employee is “entitled to a family leave of 12 weeks in any 24-month
period upon advance notice to the employer . . . [i]n the case of a family member who has a serious
health condition.” N.J.S.A. § 34:11B-4. An “employee” “means a person who is employed for at
least 12 months by an employer . . . for not less than 1,000 base hours during the immediately
preceding 12-month period.” N.J.S.A. § 34:11B-3(e). Similar to the FMLA, the NJFLA provides:
An employee who exercises the right to family leave . . . shall . . .
be entitled to be restored by the employer to the position held by the
employee when the leave commenced or to an equivalent position
of like seniority, status, employment benefits, pay, and other terms
and conditions of employment.
N.J.S.A. § 34:11B-7. It shall also be unlawful for any employer to “interfere with, restrain or deny
the exercise of, or the attempt to exercise, the right provided under [the NJFLA].” N.J.S.A. §
34:11B-9(a).
“Due to the similarity of the statutes, courts apply the same standards and framework to
claims under the FMLA and the NJFLA.” Wolpert v. Abbott Labs., 817 F. Supp. 2d 424, 437
(D.N.J. 2011) (citing Santosuosso v. NovaCare Rehab., 462 F. Supp. 2d 590, 596 (D.N.J. 2006)).
To prevail on an interference claim, a plaintiff must show: (1) he was entitled to take FMLA
and NJFLA leave and (2) the employer denied his right to do so. Lichtenstein v. Univ. of Pittsburgh
Med. Ctr., 691 F.3d 294, 312 (3d Cir. 2012); Hall-Dingle v. Geodis Wilson USA, Inc., No. 151868, 2017 WL 899906, at *4 (D.N.J. Mar. 7, 2017) (“[A] plaintiff bringing an interference claim
under the [NJFLA] must show that she was entitled to benefits and denied those benefits.”).

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“To establish a prima facie claim for retaliation under the FMLA and NJFLA, the plaintiff
must demonstrate that: (1) [he] took a FMLA/NJFLA leave; (2) [he] suffered from an adverse
employment decision; and (3) the adverse decision was casually related to [his] FMLA/NJFLA
leave.” Valenti, 2015 WL 3965645, at *3 (quoting Truesdell v. Source One Personnel Inc., No.
07-1926, 2009 WL 1652269, at *4 (D.N.J. June 9, 2009) (citations omitted)). Once the plaintiff
establishes a prima facie claim for retaliation under the FMLA and NJFLA, the claim must be
analyzed under the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) (stating that once the plaintiff establishes a prima facie case, the burden shifts
to the employer to “articulate some legitimate, nondiscriminatory reason” for its alleged unlawful
action, and if that is satisfied, the burden shifts back to the plaintiff to demonstrate the evidence
proffered by the employer was a pretext for retaliation). See Truesdell, 2009 WL 1652269, at *4.
In this case, Plaintiff has failed to allege sufficient factual matter to establish he was an
employee entitled to FMLA and NJFLA leave at the time of his termination. While he alleges he
was employed by Defendants for at least twelve months, stating he began his employment in 1994
and was terminated in 2014, he fails to allege the number of hours he worked during his
employment. Without any factual allegations regarding the total number of hours worked, his
weekly schedule, his status as a full-time or part-time employee, or any other relevant allegation,
he has not established he worked at least 1,250 hours in the 12-month period prior to his request
as required by the FMLA, 29 U.S.C. § 2611(2)(A), or 1,000 base hours during the immediately
preceding 12-month period required by the NJFLA, N.J.S.A. § 34:11B-3(e). See Rodriguez v.
JSPLTC, LLC, No. 12-6565, 2013 WL 1791145, at *3 (D.N.J. Apr. 25, 2013) (dismissing the
plaintiff’s FMLA and NJFLA claims because the plaintiff failed to allege the number of hours she
worked during her employment, and thus did not establish that she worked at least 1, 250 hours in

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the previous 12-months period before her leave request). 5 Because Plaintiff failed to allege facts
in his Complaint demonstrating his eligibility for FMLA and NJFLA leave, the Court GRANTS
Defendants’ Motion to Dismiss Count Seven of Plaintiff’s Complaint on this basis as Costco
WITHOUT PREJUDICE.
In his Supplemental Brief, Plaintiff asks that if the Court finds he did not sufficiently plead
facts demonstrating he was an employee entitled to FMLA and NJFLA leave at the time of his
termination, it provide him with the opportunity to amend the Complaint as to this issue instead of
dismissing the Count. (ECF No. 17 at 4.) Plaintiff’s request is GRANTED IN PART in that
Plaintiff may file an amended complaint addressing all deficiencies within thirty days (30) of the
accompanying Order. However, Count Seven is dismissed as stated above in the interim.
E. Dezendorf’s Individual Liability
1. Aiding and Abetting Claim under NJLAD (Count Four)
Plaintiff’s Complaint alleges Dezendorf “aided and abetted in the illegal discharge of
Plaintiff” and as a result of his “willful, knowing and intentional aiding and abetting the
discrimination [sic] against Plaintiff” in violation of the NJLAD. (ECF No. 1 at 6 ¶¶ 2-3.)
Defendant argues Plaintiff’s aiding and abetting claim under the NJLAD against Dezendorf fails
because “Plaintiff does not allege any facts to suggest the necessary elements to impose individual
liability upon Dezendorf. Plaintiff’s Complaint alleges little to nothing about Dezendorf’s role in

5

In his Opposition, Plaintiff attached an unsworn declaration stating he was a full-time employee,
worked forty hour weeks, and worked 1,250 hours the year prior to his request for leave. (ECF No.
12-1.) Because, as a general matter, the Court “may not consider matters extraneous to the
pleadings,” In re Burlington Coat Factory Sec. Litig., 114 F.3d at 1426, and the declaration is not
authenticated or sworn, the Court cannot consider it. Cf. In re Donald J. Trump Casino Sec. Litig.Taj Mahal Litig., 7 F.3d 357, 368 n.9 (“[A] court may 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.”).

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Plaintiff’s alleged unlawful termination other than that Dezendorf supervised Plaintiff and was
displeased on one instance when Plaintiff left work early.” (ECF No. 7-1 at 18.) Plaintiff argues
his Complaint sufficiently establishes Dezendorf aided and abetted Costco in violation of the
NJLAD. (ECF No. 12 at 11-13.) Because Plaintiff refers specifically to Dezendorf in this Count,
the Court construes this claim to be only against Dezendorf.
The NJLAD provides it is unlawful “[f]or any person, whether an employer or an employee
or not, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden [the act], or to
attempt to do so.” N.J.S.A. § 10:5-12(e). Such conduct may result in personal liability. Tarr, 181
N.J. at 83; see Fasano v. Fed. Reserve Bank of N.Y., 457 F.3d 274, 289 (3d Cir. 2006) (“The
[NJ]LAD permits the imposition of individual liability on an employee who has aided or abetted
barred acts.”).
To plead a prima facie case for aiding and abetting, a plaintiff must plead that:
(1) the party whom the defendant aids must perform a wrongful act
that causes an injury; (2) the defendant must be generally aware of
his role as part of an overall illegal or tortious activity at the time
that he provides the assistance; [and] (3) the defendant must
knowingly and substantially assist the principal violation.
Tarr, 181 N.J. at 84 (quoting Hurley v. Atl. City Police Dep’t, 174 F.3d 95, 129 (3d Cir. 1999));
see O’Toole v. Tofutti Brands, Inc., 203 F. Supp. 3d 458, 467 (D.N.J. 2016). To determine whether
a supervisor has provided “substantial assistance” to the principal violator, the court looks to
several factors: “(1) the nature of the act encouraged, (2) the amount of assistance given by the
supervisor, (3) whether the supervisor was present at the time of the asserted harassment, (4) the
supervisor’s relations to the others, and (5) the state of mind of the supervisor.” Tarr, 181 N.J. at
84.

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An individual can aid and abet his own conduct. O’Toole, 203 F. Supp. 3d at 467 (“[C]ourts
construe the aiding and abetting theory broadly, such that an individual supervisor can aid and abet
his own conduct.”); Mann v. Estate of Meyers, 61 F. Supp. 3d 508, 529-30 (D.N.J. 2014)
(concluding the supervisor was a proper party under the NJLAD because “an individual can be
held liable under the aiding and abetting provision even where the individual performed the acts
of discrimination himself”).
The Complaint does not allege facts giving rise to an inference that Dezendorf aided or
abetted in violation of the NJLAD. Plaintiff merely alleges Dezendorf was his supervisor, that
“[d]espite having been purportedly granted an accommodation, when Plaintiff returned to work,
he was informed by Defendants, [Costco and Dezendorf], that they were unhappy that he had left
work early and it would no longer be tolerated,” and that Defendants terminated him. (ECF No. 1
at 3 ¶¶ 3, 8.) There is no allegation Dezendorf was “generally aware of his role as part of an overall
illegal or tortious activity at the time that he provide[d] the assistance” or that he “substantially
assisted” in the alleged violation. Tarr, 181 N.J. at 84. Accordingly, the Court GRANTS
Defendants’ Motion to Dismiss all NJLAD claims against Dezendorf (Count Four) WITHOUT
PREJUDICE.
2. ADA (Counts One and Two)
Defendants argue Plaintiff’s ADA claim against Dezendorf should be dismissed because
there is no individual liability under the ADA. (ECF No. 7-1 at 20.) Plaintiff does not respond to
this argument.
There is no individual liability for damages under Title 1 of the ADA. N’Jai v. Floyd, 386
F. App’x 141, 144 (3d Cir. 2010); Wardlaw v. City of Phila. St.’s Dep’t, 378 F. App’x 222, 225
(3d Cir. 2010); Koslow v. Pa., 302 F.3d 161, 178 (3d Cir. 2002). Because individuals cannot be

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held liable under the ADA, the Court GRANTS Defendants’ Motion to Dismiss all ADA claims
(Counts One and Two) against Dezendorf WITH PREJUDICE.
3. NJFLA (Count Seven)
Defendants also move to dismiss Plaintiff’s NJFLA claim against Dezendorf on the
grounds that individual liability does not exist under the NJFLA. (ECF No. 7-1 at 20.) Plaintiff
does not respond to this argument.
There is no individual liability under the NJFLA. Fisher v. Schott, No. 13-5549, 2014 WL
6474216, at *6 (D.N.J. Nov. 19, 2014) (finding that “individual liability does not exist as a matter
of law under the NJFLA” because of “the more limited definition of ‘employer’ under the
NJFLA”); Stone v. Winter Enters., P.C., No. 12-465, 2012 WL 6155606, at *5 (D.N.J. Dec. 11,
2012) (dismissing the plaintiff’s NJFLA claim against an individual defendant because the
NJFLA’s definition of “employer” was narrow and did not include persons acting for an employer,
and the Court found no New Jersey case that imposed individual liability under the NJFLA); RossTiggett v. Reed Smith LLP, No. 15-8083, 2016 WL 4491633, at *4 (D.N.J. Aug. 25, 2016) (finding
no individual liability under the NJFLA). Because individuals cannot be held liable under the
NJFLA, the Court GRANTS Defendants’ Motion to Dismiss all NJFLA claims (Count Seven)
against Dezendorf WITH PREJUDICE.
4. FMLA (Count Seven)
Defendant argues that “while the FMLA may impose individual liability upon supervisors
. . . Plaintiff does not sufficiently allege a plausible inference or discrimination claim under the
FMLA.” (ECF No. 7-1 at 20.) Plaintiff does not respond to this argument.
The FMLA does allow for individual liability. Haybarger v. Lawrence Cty. Adult Prob. &
Parole, 667 F.3d 408, 413 (3d Cir. 2012). The FMLA defines an “employer” as “any person

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engaged in commerce or in any industry or activity affecting commerce who employs 50 or more
employees for each working day during each of 20 or more calendar workweeks in the current or
preceding calendar year” and includes “any person who acts, directly or indirectly, in the interest
of an employer to any of the employees of such employer.” 29 U.S.C. § 2611(4)(A). “Section
2611(4)(A)(ii)(I)’s inclusion of ‘any person who acts, directly or indirectly, in the interest of an
employer’ plainly contemplates that liability for FMLA violations may be imposed upon an
individual person who would not otherwise be regarded as the plaintiff’s ‘employer.’” Haybarger,
667 F.3d at 413 (quoting 29 U.S.C. § 2611(4)(A)(ii)(I)). Otherwise, that phrase adds nothing to
the definition of an employer. Id.
Although the FMLA allows for individual liability, the Court GRANTS Defendants’
Motion to Dismiss Plaintiff’s FMLA claim (Count Seven) against Dezendorf WITHOUT
PREJUDICE, because as articulated above, see Section III(D), supra, Plaintiff has failed to allege
sufficient factual matter to establish he was an employee entitled to FMLA leave at the time of his
termination. Without any factual allegations regarding the total number of hours worked, his
weekly schedule, his status as a full-time or part-time employee, or any other relevant allegation,
he has not established that he worked at least 1,250 hours in the previous 12-month period before
his request as required by the FMLA. 29 U.S.C. § 2611(2)(A); see Rodriguez, 2013 WL 1791145,
at *3.
IV.

CONCLUSION
For the reasons set forth above, Defendants’ Motion to Dismiss is GRANTED IN PART

and DENIED IN PART as follows: (1) Defendants’ Motion to Dismiss Counts One and Two as
to Dezendorf is GRANTED WITH PREJUDICE; (2) Defendants’ Motion to Dismiss Count
Three is GRANTED WITHOUT PREJUDICE as to Dezendorf and DENIED as to Costco; (3)
Defendants’ Motion to Dismiss Count Four is GRANTED WITHOUT PREJUDICE; (4)
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Defendants’ Motion to Dismiss Count Five is GRANTED WITHOUT PREJUDICE as to
Plaintiff’s claim for intentional infliction of emotional distress and WITH PREJUDICE as to
Plaintiff’s claim for negligent infliction of emotional distress; (5) Defendant’s Motion to Dismiss
Count Six is GRANTED WITHOUT PREJUDICE; (6) Defendants’ Motion to Dismiss Count
Seven is GRANTED WITH PREJUDICE as to the NJFLA claim against Dezendorf,
WITHOUT PREJUDICE as to the FMLA claim against Dezendorf, and WITHOUT
PREJUDICE as to the claims against the remaining Defendants. Plaintiff may file an amended
complaint within thirty (30) days of the Accompanying Order.

Date: July 26, 2017

/s/ Brian R. Martinotti___________
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE

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