Boscov's seeks dismissal of FMLA lawsuit after loss in Third Circuit

By Carrie Salls | Jan 16, 2018

READING – Boscov’s Department Store is asking the U.S. District Court for the Eastern District of Pennsylvania to dismiss a Family and Medical Leave Act complaint, months after the U.S. Court of Appeals for the Third Circuit ruled in favor of the plaintiff.

In its Dec. 22 motion to dismiss the complaint, Boscov’s said plaintiff Craig Zuber “incorrectly alleges that he was employed by Boscov’s and that the defendant is subject to the Family and Medical Leave Act.”

“Contrary to these allegations, at no time was the plaintiff employed by Boscov’s, which is a non-existent entity, or, more properly, Boscov’s Department Store LLC,” Boscov’s said. “Instead, at all times relevant herein, the plaintiff was always employed by an entity known as ADE Associates LP.”

According to the motion, ADE Associates is a real estate holding company that owned the farmers market where Zuber worked and was injured in 2014.

“While it is true that some of the documents provided to Craig Zuber during the course of his employment at ADE Associates LP were on Boscov’s letterhead, that does not convert Craig Zuber into a Boscov’s employee, and this was done only for the sake of convenience,” the motion said.

Since ADE only has 12 employees, Boscov’s said it is not covered under an FMLA provision requiring that a company have 50 employees within a 75-mile range.

According to the Third Circuit opinion, Zuber appealed a district court ruling that found that a compromise and release agreement (C&R) he reached with Boscov’s constituted a waiver of his Family and Medical Leave Act claims filed in connection with time missed as a result of an eye injury he sustained while working at a farmers market on Aug. 12, 2014.

The Third Circuit said Zuber worked for Boscov’s Inc. at a farmers market in Reading. After suffering the eye injury on-the-job on Aug. 12, 2014, Zuber filed a Workers’ Compensation claim and took two separate medical leaves.

However, the opinion said “on Sept. 10, Boscov’s fired Zuber, and, on April 8, 2015, Boscov’s and Zuber signed a C&R."

Zuber filed his lawsuit against Boscov’s on July 9, 2015, alleging that “(1) Boscov’s interfered with his FMLA rights by failing to notify him of those rights and by not designating his leave as FMLA protected; (2) Boscov’s retaliated against him for exercising his FMLA rights; and (3) Boscov’s retaliated against him for filing a workers’ compensation claim in violation of Pennsylvania common law,” the 3rd Circuit opinion said.

The Third Circuit said it disagreed with the district court ruling because the sentence of the C&R in dispute “only prohibits Zuber from bringing an additional ‘work injury claim’ suit.”

“Zuber is not bringing an additional ‘work injury claim,’ such as a workers’ compensation claim or a tort,” the Third Circuit said in its opinion. “Therefore, the C&R does not prohibit his claims.”

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