Nicholas Malfitano May 27, 2015, 9:55am


PHILADELPHIA – On May 20, a federal judge denied a motion for summary judgment made by a property management company that claims it was not in violation of the Americans with Disabilities Act of 1990 (ADA) when it terminated its chief financial officer in 2009.

Howard M. Goldstein of Wayne filed suit in U.S. District Court for the Eastern District of Pennsylvania in July 2013, with an amended complaint one year later alleging Carlino Development Group (CDG) discriminated and retaliated against him, in violation of the ADA.

After performing seven months of outside contractor work for CDG, Goldstein was hired full-time by the company as its CFO in July 2006. Goldstein asserted his professional tenure with CDG began successfully, and resulted in him receiving glowing performance reviews and being awarded salary bonuses.

During the course of his employment as CFO, Goldstein said he became aware of alleged irregularities in the conduct of CDG’s business, including “double billing on the part of management, the concealment of construction defects from office building occupants, and the concealment of health insurance benefits from eligible employees.”

Goldstein subsequently raised concerns of these alleged questionable business practices with management.

In April 2009, Goldstein began to suffer from an advanced degenerative nerve condition in his back, which required surgery, he said. As it turned out, the initial surgery was unsuccessful and led Goldstein to walk with a pronounced limp, he said.

That June, a Reading-based physician advised Goldstein to undergo a second surgery in order to correct the condition, a concern Goldstein said he brought to his boss and company owner Peter Carlino soon afterwards.

Goldstein then claimed he was unexpectedly brought to a private meeting with Carlino and Vice-President David A. Binder, where he was abruptly told he was being “let go.” Goldstein alleges Carlino invoked the “at-will” employment rule and fired him for a supposed derogatory remark Goldstein made about him two years earlier.

A remark, Goldstein claims, was actually made by Binder. It is Goldstein’s belief the real reasons he was terminated were because of his disability and his addressing of CDG’s alleged questionable business practices.

Goldstein alleged Carlino wanted him to sign a formal Separation Agreement and leave the premises immediately. Though Goldstein complied by leaving the building, he did not sign the agreement, he says.

Goldstein later had a second surgery in February 2010, which was successful and cured him of the disability which maligned his tenure at CDG. However, the lack of ability to use CDG as a reference, Goldstein claims, has done great damage to his professional standing and made his current job search exceedingly difficult.

After filing a claim with the Equal Employment Opportunity Commission in September 2009, Goldstein reported he was authorized to file his lawsuit at the conclusion of EEOC administrative proceedings in April 2013.

CDG claimed that since it did not employ 15 individuals, as required under the ADA, that it was not liable to be considered under that law and therefore, Goldstein’s lawsuit is baseless.

Goldstein claims that CDG and a related entity, Carlino Development Group-New Morgan Management (CDG-NMM), were considered connected and combining their personnel would meet the 15-person threshold required by the ADA.

CDG motioned for summary judgment last October. Judge Mitchell S. Goldberg ruled on the lawsuit on May 20, taking into account the number of employees the company maintained in 2008 and 2009.

“There are thirteen people that both parties agree were employees of CDG in 2008 and 2009. While thirteen total persons were employed by CDG during this time period, there were never more than eleven of the agreed-upon employees working simultaneously. Therefore, it is undisputed that CDG maintained eleven agreed-upon employees for more than twenty weeks in the year/preceding year as defined by the ADA,” Goldberg said.

After examining the personnel of CDG-NMM, Goldberg said he found sufficient evidence to suggest four employees belonged to CDG-NMM and that the interconnection between the groups stretched to shared job functions, office space and insurance plans. Combining the four employees from CDG-NMM with the 11 of CDG, would meet the ADA’s 15-person threshold.

“I find that there is a genuine dispute of material fact as to whether CDG had management power of CDG-NMM employees and projects, and whether this, combined with the shared insurance, constitutes a unity of ownership and operations sufficient to warrant substantive consolidation,” Goldberg opined.

Goldberg responded by denying the defendant’s motion for summary judgment.

“A reasonable jury could conclude that the two entities were significantly intertwined, and therefore, that CDG-NMM’s four employees should be counted together with the eleven employees of CDG, satisfying the ADA’s fifteen-employee threshold. Thus, defendant’s motion for summary judgment will be denied,” Goldberg wrote.

The plaintiff is seeking damages in excess of $75,000 in this case, along with being rehired by CDG into an identical position at the time of his termination, with full salary, seniority, and benefits accruing from that date including back pay, accrued benefits, reasonable promotions and seniority; compensatory damages in an amount not less than $890,075, representing Goldstein’s lost salary from June 2009 to the present; an additional award of compensatory damages in an amount not less than $18,000, representing the value of insurance premiums paid by CDG during Goldstein’s employment; reasonable counsel fees pursuant to the ADA; and such other remedies as are necessary and proper to effectuate the remedial purpose of the ADA.

The plaintiff is represented by Richard Hans Maurer of the Law Office of Richard H. Maurer, in Philadelphia.

The defendant is represented by Walter Weir, Jr. and Brett A. Datto of Weir & Partners and Ian M. Long of Stradley Ronon Stevens & Young, also in Philadelphia.

U.S. Eastern District Court of Pennsylvania case 2:13-cv-03850

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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