KAREN ANTONE

Plaintiff,

v.

NOBEL LEARNING COMMUNITIES,

INC., LISA REESE and KELLY

HONER 

Defendants.

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

HONORABLE JOSEPH E. IRENAS

CIVIL ACTION NO. 11-3617

(JEI/KMW)

OPINION 

APPEARANCES:

KARPF & KARPF, P.C.

Ari R. Karpf

Jeremy M. Cerutti

3331 Street Road, Suite 128

Two Greenwood Square

Bensalem, PA 19020

Counsel for Plaintiff

MORGAN, LEWIS & BLOCKIUS LLP

Terry Davon Johnson

502 Carnegie Center

Princeton, NJ 08540

Counsel for Defendants

IRENAS, Senior District Judge:

This case arises from Defendants’ allegedly illegal

termination of Plaintiff’s employment for taking a protected

medical leave of absence. The instant matter comes before the

Court on Defendants’ Motion to Dismiss for failure to state a

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claim pursuant to Fed.R.Civ.P. 12(b)(6). (Dkt. No. 12) For the 1

following reasons the Motion will be granted in part and denied

in part.

I.

The following facts are pertinent only for the purposes of

this Motion to Dismiss. Defendant Nobel Learning Communities,

Inc. employed Plaintiff Karen Antone from January 2002 through

June 2005 and again from August 2007 through her termination in

August of 2009. (Compl. ¶¶ 14-16) Defendants Lisa Reese and

Kelly Honer were Plaintiff’s supervisors. (Id. at ¶¶ 8, 9 & 16)

In 2009, Plaintiff suffered from health problems including,

but not limited to, “Cellulitis, Low CSF (cranal spinal fluid),

chronic headaches/migraines,” and complications from a prior

vascular surgery. (Id. at ¶¶ 17-18) These health problems

caused Plaintiff to suffer physical limitations such as trouble

stooping, bending and walking. (Id. at ¶ 17)

On or about May 28, 2009, Plaintiff informed Human Resources

Administrator Chris Duane that Plaintiff would need to take a

leave of absence to undergo medical treatment in the hospital. 

(Id. at ¶ 20) More than a month later, in July of 2009, Nobel

sent Antone a Family and Medical Leave Act (“FMLA”) certification

The Court has jurisdiction pursuant to 28 U.S.C. § 1331 over the

1

federal claims and supplemental jurisdiction over all state claims pursuant to

28 U.S.C. § 1367.

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form, which Antone and her physician promptly completed and

returned. (Id. at ¶ 22) Specifically, Plaintiff’s physician 2

informed Nobel that Plaintiff anticipated returning to work on

August 28, 2009. (Id. at ¶ 23) At no time did Defendants take

issue with this start date or inform Plaintiff of her rights

under the FMLA. (Id. at ¶ 28) Defendants did not even notify

Plaintiff that she was entitled to take up to twelve weeks of

FMLA protected leave.

Defendants did not further communicate with Plaintiff until

late August. (Id. at ¶ 24) At that point, Defendants informed

Plaintiff that she would be terminated and replaced because her

physician had not cleared her to work until August 28, 2009 -

eight days after her FMLA leave would expire. (Id. at ¶¶ 25-26) 

Prior to this exchange, however, Defendants had not notified

Plaintiff that her leave would expire on August 20, 2009 despite

Nobel’s knowledge that Plaintiff qualified for FMLA leave. (Id.

at ¶ 28) Indeed, the only communication between the parties

during Plaintiff’s leave was the certification and the

conversation with Chris Duane.

If not for this lack of communication, Plaintiff alleges she

would not have missed the August 20, 2009 deadline because the

last several days of Plaintiff’s recovery were merely

precautionary. (Id. at ¶ 30) In support of this contention,

All the contents of this certification were not identified.

2

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Plaintiff’s physician has submitted a certification that Antone

could have been cleared to resume work by that date had they been

informed of the August 28 deadline. (Id. at Ex. A) 

On June 23, 2011, Plaintiff filed the Complaint. On August

26, 2011, Defendants filed this Motion to Dismiss.

II.

Federal Rule of Civil Procedure 12(b)(6) provides that a

court may dismiss a complaint “for failure to state a claim upon

which relief can be granted.” In order to survive a motion to

dismiss, a complaint must allege facts that raise a right to

relief above the speculative level. Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007); see also Fed. R. Civ. P.

8(a)(2). 

While a court must accept as true all allegations in the

plaintiff’s complaint, and view them in the light most favorable

to the plaintiff, Phillips v. County of Allegheny, 515 F.3d 224,

231 (3d Cir. 2008), a court is not required to accept sweeping

legal conclusions cast in the form of factual allegations,

unwarranted inferences, or unsupported conclusions. Morse v.

Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). The

complaint must state sufficient facts to show that the legal

allegations are not simply possible, but plausible. Phillips,

515 F.3d at 234. “A claim has facial plausibility when the

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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, 129 S.Ct.

1937, 1949 (2009).

When evaluating a Rule 12(b)(6) motion to dismiss, the Court

considers “only the allegations in the complaint, exhibits

attached to the complaint, matters of public record, and

documents that form the basis of a claim.” Lum v. Bank of

America, 361 F.3d 217, 221 n.3 (3d Cir. 2004). A document that

forms the basis of a claim is one that is “integral to or

explicitly relied upon in the complaint.” Id. (quoting In re

Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.

1997)).

III.

Plaintiff alleges two claims against all Defendants and four

additional claims specifically against Nobel. Against all

Defendants, Plaintiff brings claims for interference and

retaliation in violation of the FMLA. Against Nobel, Plaintiff

alleges claims for discrimination and retaliation under both the

Americans with Disabilities Act (“ADA”) and the New Jersey Law

Against Discrimination (“LAD”).

A.

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Relevant to this case, the FMLA provides that “an eligible

employee shall be entitled to a total of 12 workweeks of leave

during any 12-month period . . . [b]ecause of a serious health

condition that makes the employee unable to perform the functions

of the position of such employee.” 29 U.S.C. § 2612(a)(1)(D). A

serious health condition is defined as a physical or mental

condition that involves: “(A) inpatient care in a hospital . . .

or (B) continuing treatment by a health care provider.” 29 3

U.S.C. 2611(11).

During the medical leave, the employer must maintain

coverage under any group health plan at equivalent levels. See

29 U.S.C. § 2614(c)(1). “After an eligible employee returns from

an FMLA leave, the employee is entitled to be reinstated to his

or her former position, or an equivalent one.” Conoshenti v.

Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 141 (3d Cir. 2004); see

also 29 U.S.C. § 2614(a)(1).

To invoke the protections of FMLA, an eligible employee has

different duties depending on whether the medical condition was

foreseeable or unforeseeable. Foreseeable medical leave, such as

births or planned surgeries, require the employee to provide the

employer with at least 30 days’ notice or, if treatment is to

begin sooner, “the employee shall provide such notice as is

Defendant does not dispute that Plaintiff was an eligible employee and

3

had a serious medical condition.

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practicable.” 29 U.S.C. § 2612(e)(2)(B). On the other hand,

“[w]hen an eligible employee needs to take FMLA leave that was

not foreseeable, ‘[t]he employee need not expressly assert rights

under the FMLA or even mention the FMLA’; rather the employee

need only notify the employer that leave is needed.” Conoshenti,

364 F.3d at 141 n.6 (quoting 29 C.F.R. § 825.303(b)). 

Here, the Court must make the inference that Antone’s leave

was not foreseeable. Therefore, the notice provided to Chris

Duane fulfills Antone’s notice duties under the statute.

Once an employee notifies an employer of an FMLA qualifying

medical leave, “the employer must notify the employee of the

employee’s eligibility to take FMLA leave within five business

days, absent extenuating circumstances.” 29 C.F.R. §

825.300(b)(1). The employer’s notice must detail “the specific

expectations and obligations of the employee and explain[] any

consequences of a failure to meet these obligations.” 29 C.F.R.

§ 825.300(c)(1). The employer bears the burden of informing the

employee of the relevant FMLA rights. See 29 C.F.R. §

825.300(c). 

Once an employer has enough information to make a

determination whether the employee’s leave is FMLA qualifying,

the employer must provide “designation notice.” 29 C.F.R. §

825.300(d). In other words, “[t]he employer must notify the

employee of the amount of leave counted against the employee’s

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FMLA leave entitlement.” 29 C.F.R. § 825.200(d)(6). 

In this case, Defendants failed to provide Antone with any

notice - whether designation or otherwise.

To protect these rights, the FMLA proscribes certain

“prohibited acts.” 29 U.S.C. § 2615. Plaintiff’s claims for

interference and retaliation invoke these protections. 29 U.S.C.

§ 2615(a).

1.

Plaintiff’s first claim is for interference with protected

FMLA rights. “It shall be unlawful for an employer to interfere 4

with, restrain, or deny the exercise of or the attempt to

exercise, any right provided under this subchapter.” 29 U.S.C. §

2615(a)(1). Specifically, failing to provide notice or

designation notice may constitute an interference claim. See 29

C.F.R. §§ 825.300(e), 825.301(e). To establish a claim,

plaintiffs must show an “impairment of their rights and resulting

prejudice.” Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81,

90 (2002). 

Defendants argue that Plaintiff received her allotted twelve

weeks of FMLA leave so there can be no interference. Defendants

further argue that Plaintiff’s physician only cleared her to

The Court will first address this claim as it pertains to Defendant

4

Nobel because Plaintiff alleges different facts against Reese and Honer.

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commence work on August 28, 2009 - eight days after Plaintiff’s

FMLA leave expired. Under the FMLA, an employer may terminate an

employee that cannot return to work and perform an essential

function of the job by the twelve week leave of absence. See

Fogleman v. Greater Hazleton Health Alliance, 122 Fed.Appx. 581,

587 (3d Cir. 2004). 

In Conoshenti, these same arguments did not persuade the

Third Circuit. 364 F.3d at 142-43. There, Plaintiff attempted

to return to work three days after his FMLA leave expired. 

However, Plaintiff’s employer had failed to provide notice to

Plaintiff detailing when the FMLA leave would expire. Plaintiff

argued that had he been notified, Plaintiff could have returned

to work in order to retain his job. “We conclude that this is a

viable theory of recovery.” Id. at 143.

The instant case raises the same issue. Plaintiff timely

notified Human Resources Director Chris Duane that she required

hospitalization. Although Nobel granted Antone the full twelve

weeks of medical leave required under the FMLA, Nobel failed to

provide timely notice and designation notice, which would have

allowed Plaintiff “to make an informed decision about structuring

[Plaintiff’s] leave . . . in such a way as to preserve the job

protection afforded by the Act.” Id. As a result, Plaintiff was

not able to structure her recovery to return to work within the

FMLA allotted schedule and thereby suffered prejudice. 

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Taking all the allegations in the Complaint as true,

Plaintiff has established a prima facie interference claim under

the FMLA. Accordingly, Defendants’ Motion will be denied as to

that claim.

2.

Plaintiff’s next claim is for retaliation. The Third 5

Circuit analyzes retaliation claims under 29 C.F.R. § 825.220(c),

which requires a plaintiff to show that: “(1) he took an FMLA

leave, (2) he suffered an adverse employment decision, and (3)

the adverse decision was causally related to his leave.” 

Conoshenti, 364 F.3d at 146. “Even though 29 C.F.R. § 825.200(c)

appears to be an implementation of the ‘interference’ provisions

of the FMLA, its text unambiguously speaks in terms of

‘discrimination’ and ‘retaliation,’ and we shall, of course,

apply it in a manner consistent with that text.” Id. at 146-47

n.9. Claims for retaliation utilize the familiar McDonnell

burden shifting framework. See generally McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973). 

Defendant does not address the first element. For the

purposes of this Motion, therefore, the Court will assume that

Nobel concedes that Antone took an FMLA leave.

Again, the Court will address only Nobel in this section.

5

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With respect to the second element, Nobel argues that

Plaintiff has failed to allege that Defendants terminated

Plaintiff. A quick glance at the Complaint, however, reveals the

frivolity of the argument. Plaintiff alleges that she was

“replaced” or “terminated” in at least four distinct paragraphs. 

(See Compl. ¶¶ 25, 28, 30 & 36)

In the alternative, Nobel argues that Antone has pled

insufficient facts surrounding the termination. The Court

disagrees. 

At this stage in the litigation, the Complaint need not

provide a detailed description of the termination. The Complaint

states that in “late August of 2009 [] Defendants expressed

Plaintiff was being replaced because she could not return to work

by August 20, 2009.” (Compl. ¶ 25) Nothing in Iqbal suggests

that Plaintiff must provide the details surrounding the exchange.

Under the McDonnell burden shifting framework, Defendants

argue that because Plaintiff could not return to work by the

August 20, 2009 deadline, Defendants had a legitimate

nondiscriminatory purpose for the termination. 

However, this argument would defeat the purpose of the

statute. Antone did not return to work by August 20, 2009 only

because Defendants failed to provide Antone with adequate notice

of her rights as required by the FMLA. Nobel’s failure to

provide notice cannot conceivably justify its decision to

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terminate Antone.

Defendant does not address the third element. Therefore,

Antone has alleged facts sufficient to establish a prima facie

retaliation claim and the Motion to Dismiss will be denied.

3.

Defendants Reese and Honer argue that individuals cannot be

held liable under the FMLA and that, even if they can be held

liable, Plaintiff has failed to allege facts sufficient to

establish a claim. 

The Third Circuit has not yet decided the issue of whether

individuals may be held liable under the FMLA. The Court need

not reach that issue, however, because Plaintiff has not alleged

facts sufficient to establish such a claim even it were valid.

The Complaint presents a problem of construction. Paragraph

One of the Complaint states that “[t]his action has been

initiated by Plaintiff against Nobel Learning Communities Inc.

(hereinafter referred to as ‘Defendant’ unless indicated

otherwise).” Paragraph Nine states that “Defendants Lisa Reese

(at all times relevant herein, a manager for Defendant) and Kelly

Honer (at all times relevant herein, a principal for Defendant)

are individual Defendants (collectively referred to herein as

‘Individual Defendants’ or by their respective names) to this

action because at all times relevant herein, they made the

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decision to terminate Plaintiff’s employment in violation of laws

specified herein (particularly the FMLA).” 

These definitions make a significant distinction between the

singular and plural use of the word “Defendant.” The singular

refers only to Nobel but the term “Defendants,” which is not

defined, supposedly refers to all three defendants.

By employing these definitions in a light most favorable to

Plaintiff, certain key allegations in the Complaint apply only to

Nobel. For example, “Defendant did not inform Plaintiff in

writing that if she failed to return by August 20, 2009, she

would be terminated from Defendant.” (Compl. ¶ 28)

In fact, very few paragraphs allege facts against

“Defendants” or Reese and Honer specifically. Paragraph 22

alleges that “Defendants” sent her a certification, but in the

same sentence, Plaintiff only returned the certification to

“Defendant.” Paragraph 25 alleges that “[d]espite having 6

returned her FMLA certification to Defendants in July of 2009,

Defendants did not contact Plaintiff and take issue with her

specified return date of August 28, 2009 until late August 2009

when Defendants expressed Plaintiff was being replaced because

she could not return to work by August 20, 2009.” The only other

allegation against Reese and Honer, apart from rudimentary

It is unclear whether this was a typographical error or Plaintiff

6

truly meant that all three defendants sent the certification but only Nobel

received the completed copy.

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identifications, states that “Defendant Individuals Reese and

Honer are liable for violations of the FMLA because they

specifically were aware of Plaintiff’s FMLA entitlements and

needs and intentionally terminated Plaintiff in contravention of

her FMLA entitlements.” (Compl. ¶ 37) 

Of these three clauses, paragraph 22 alleges that Reese and

Honer sent Antone the certification, but did not receive the

completed copy. (See Compl. ¶ 22) Paragraph 37 is a legal

conclusion that the Court is not required to accept as true. 

(See Compl. ¶ 37) Therefore, the Court must determine whether

Plaintiff has established interference and retaliation claims

based solely on paragraph 25 and the latter portion of paragraph

9, which states that Reese and Honer made the decision to

terminate Plaintiff.7

Taken alone, the facts alleged are insufficient to establish

a claim for interference or retaliation. To invoke the

protections of the FMLA, “the employee need only notify the

employer that leave is needed.” Conoshenti, 364 F.3d at 141 n.6. 

However, Plaintiff only notified Nobel. (See Compl. ¶ 21) These

threadbare allegations do not establish that Reese and Honer

received Plaintiff’s notice of leave, which would trigger their

Although it is arguable whether the blanket statement that Reese and

7

Honer made the decision to terminate Antone without providing any factual

details is a legal conclusion, the Court will accept this allegation as true

for the purposes of this Motion.

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notice requirements to Antone under the FMLA. Antone cannot 8

maintain claims under the FLMA if she did not properly invoke the

protections of the FMLA.

Plaintiff has not adequately alleged a claim for

interference or retaliation against Reese and Honer. 

Accordingly, the Motion will be granted on those claims.

B.

Next, Plaintiff alleges against only Nobel claims for

discrimination and retaliation in violation of the ADA and the

LAD. Nobel raises two arguments for dismissal. First, Antone is

not eligible for protection under the ADA and the LAD. Second,

Antone has not pled facts sufficient to establish a prima facie

retaliation claim. The ADA and LAD claims will be analyzed

together because “under the NJLAD, the New Jersey Supreme Court

frequently looks to the U.S. Supreme Court's analysis of

discrimination claims under Title VII of the Civil Rights Act of

1964.” Incorvati v. Best Buy Co., Inc., 2010 WL 4807062, *5

(citing Lehmann v. Toys ‘R’ Us, Inc., 132 N.J. 587, 600 (N.J.

1993)).

1.

The Complaint does not allege that Reese and Honer had constructive or

8

actual knowledge of Plaintiff’s medical situation due to their supervisory

positions or employment with Nobel.

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Under the ADA, a plaintiff must establish that: “(1) he is a

disabled person within the meaning of the ADA; (2) he is

otherwise qualified to perform the essential functions of the

job, with or without reasonable accommodations by the employer;

and (3) he has suffered an otherwise adverse employment decision

as a result of discrimination.” Taylor v. Phoenixville School

Dist., 184 F.3d 296, 306 (3d Cir. 1999) (quoting Gaul v. Lucent

Tech., 134 F.3d 576, 580 (3d Cir. 1998). 

A disability is defined as: “(A) A physical or mental

impairment that substantially limits one or more major life

activities of such individual; (B) a record of such an

impairment; or (C) being regarded as having such an impairment.” 

42 U.S.C. § 12102(1). “[M]ajor life activities include, but are

not limited to . . . walking, standing, lifting, bending.” 42

U.S.C. § 12102(2)(A).

Plaintiff has alleged that her health problems limited her

ability to stoop, bend and walk. (See Compl. ¶ 17) At this

stage in the litigation, these facts are sufficient to establish

that Plaintiff is disabled within the meaning of the ADA. See 42

U.S.C. § 12102(4)(A) (“The definition of disability in this

chapter shall be construed in favor of broad coverage of

individuals.”).

Defendant makes no further arguments for dismissal on the

discrimination claim. Therefore, Defendant’s Motion will be

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denied with respect to the discrimination claims under the ADA

and LAD. 

2.

With respect to the retaliation claim, the ADA provides: “No

person shall discriminate against any individual because such

individual has opposed any act or practice made unlawful by this

chapter.” 42 U.S.C. § 12203(a). Opposition includes filing

charges, testifying or otherwise objecting to protected activity. 

Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 188 (3d Cir.

2003).

To establish a claim, Plaintiff must show: “(1) protected

employee activity; (2) adverse action by the employer either

after or contemporaneous with the employee’s protected activity;

and (3) a causal connection between the employee’s protected

activity and the employer’s adverse action.” Fogleman v. Mercy

Hosp., Inc., 283 F.3d 561, 567-68 (3d Cir. 2002). “Thus, it is

unlawful for an employer to retaliate against an employee based

upon the employee’s opposition to anything that is unlawful under

the ADA.” Shellenberger, 318 F.3d at 188. The McDonnell burden

shifting framework applies to the retaliation claim. Williams v.

Philadelphia Hous. Auth. Police Dept., 380 F.3d 751, 758 (3d Cir.

2004).

While this framework suggests that the employee would have

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to voice some opposition, “[t]his would leave employees

unprotected if an employer granted the accommodation and shortly

thereafter terminated the employee in retaliation.” 

Shellenberger, 318 F.3d at 191 (quoting Soileau v. Guilford of

Maine, Inc., 105 F.3d 12, 16 (1st Cir. 1997). Therefore, an

employee that is fired for engaging in protected activity will

establish a cause of action for retaliation.

Protected activity includes requiring a reasonable

accommodation from an employer. Once an employee requests a

reasonable accommodation, “the employer must make a reasonable

effort to determine the appropriate accommodation . . . through a

flexible, interactive process that involves both the employer and

the [employee].” Greater Hazleton, 122 Fed.Appx. at 585 (quoting

29 C.F.R. Pt. 1630, App. § 1630.9, at 361). 

Here, Plaintiff’s FMLA leave is inextricably intertwined

with her rights under the ADA. According to Nobel’s

calculations, Plaintiff was entitled to take an FMLA leave of

absence up to August 20, 2009. Although FMLA may have required

no further accommodation, the ADA provides additional

entitlements. Relevant to this case, Defendant was required to

engage Plaintiff in an interactive process to determine the

extent to which Antone required a reasonable accommodation upon

her return from FMLA leave. 

Nobel did not engage in this process, however, despite

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knowing of Plaintiff’s temporary disability and anticipated

return date. Nobel made no effort to determine whether Plaintiff

could return to work by August 20 with a reasonable accommodation

or whether an additional eight day leave of absence would have

been a reasonable accommodation itself. See Conoshenti, 364 F.3d

at 151 (acknowledging that leaves of absence may constitute

reasonable accommodations under the ADA). 

Without first engaging Plaintiff in an interactive process

concerning her anticipated August 28 return date, Nobel fired

Antone. (See Compl. ¶ 25) This allegation is sufficient to show

that Nobel took an adverse employment action against Plaintiff

for engaging in protected activity - requesting a reasonable

accommodation. Accordingly, Defendants’ Motion will be denied

with respect to the retaliation claim under the ADA and LAD.

IV.

For the foregoing reasons, Defendants’ Motion will be

granted in part and denied in part. Defendants’ Motion will be

granted with respect to all claims against Defendants Reese and

Honer. In all other respects, Defendants’ Motion will be denied. 

Plaintiff will be granted leave to file a motion to amend the

Complaint within 14 days of this Opinion. See Phillips, 515 F.3d

at 245 (holding that district courts “must permit a curative

amendment unless such an amendment would be inequitable or

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futile.”). An appropriate Order accompanies this Opinion.

Date: 1/19/12

 /s/ Joseph E. Irenas 

JOSEPH E. IRENAS, S.U.S.D.J.

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