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Knidel v. T.N.Z., Inc.

United States District Court, D. Massachusetts

September 26, 2016





         Ibrahim Knidel (“Knidel”) has filed a Complaint asserting claims against T.N.Z., Inc. (“T.N.Z.”), Nouria Energy Retail, Inc. (“NER”), Nouria Energy Corporation (“NEC”), and Ziad El-Nemr (“Ziad”) alleging federal law claims for violation of: the Family and Medical Leave Act, 29 U.S.C. §2601 et seq. (“FMLA”), Title I of the Americans with Disabilities Act, 42 U.S.C. §12112 (“ADA”), and the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”). Knidel has also asserted corresponding state law claims against the Defendants for violation of: Mass.Gen. L. ch. 151B, §4 (“Chapter 151B”) and the Massachusetts Wage Law (“MWL”), Mass.Gen.L. ch. 149, §§100 and 148 and. Additionally, Knidel asserts state law claims for breach of contract and promissory estoppel. Knidel asserts that Defendants violated the FMLA by interfering with his rights thereunder (by failing to provide lawful notice of those rights and denying him time off), and by retaliating against him for exercising his rights thereunder. Knidel also asserts that Defendants discriminated against him in violation of the ADA and Chapter 151B by terminating his employment and retaliating against him because he associated with a person with a disability and/or handicap. Finally, Knidel asserts that Defendants are liable to him for breach of contract, promissory estoppel, violation of the FLSA and the MWL by failing to give him required meal breaks, failing to pay him wages to which he was lawfully entitled, and/or failing to pay him a contractually agreed to wage hike.

         This Memorandum of Decision addresses Defendants' Motion for Summary Judgment (Docket No. 40). For the reasons set forth below, that motion is granted in part, and denied, in part.

         Standard of Review

         Summary Judgment is appropriate where, “the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Carroll v. Xerox Corp., 294 F.3d 231, 236 (1st Cir. 2002) (citing Fed.R.Civ.P. 56(c)). “A ‘genuine' issue is one that could be resolved in favor of either party, and a ‘material fact' is one that has the potential of affecting the outcome of the case.” Calero-Cerezo v. U.S. Dep't. of Justice, 355 F.3d 6, 19 (1st Cir. 2004).

         When considering a motion for summary judgment, the Court construes the record in the light most favorable to the nonmoving party and makes all reasonable inferences in favor thereof. Sensing v. Outback Steakhouse of Florida, LLC, 575 F.3d 145, 153 (1st Cir. 2009). The moving party bears the burden to demonstrate the absence of a genuine issue of material fact within the record. Id., at 152. “ ‘Once the moving party has pointed to the absence of adequate evidence supporting the nonmoving party's case, the nonmoving party must come forward with facts that show a genuine issue for trial.' ” Id. (citation to quoted case omitted). “ ‘[T]he nonmoving party “may not rest upon mere allegations or denials of the [movant's] pleading, but must set forth specific facts showing that there is a genuine issue of material fact as to each issue upon which [s/he] would bear the ultimate burden of proof at trial.” ' ” Id. (citation to quoted case omitted). The nonmoving party cannot rely on “conclusory allegations” or “improbable inferences.” Id. (citation to quoted case omitted). “ ‘The test is whether, as to each essential element, there is “sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” ' ” Id. (citation to quoted case omitted).


         Knidel's Personal Background and Employment History with T.N.Z.

         Knidel married his wife Ruth Knidel (“Ruth”) in 2008. Ruth was born with an autoimmune disease, specifically bacterial rheumatic fever, limiting her ability to walk and leaving her in chronic pain. In February 2009, Ziad interviewed and hired Knidel as a cashier for T.N.Z. Knidel started working for T.N.Z. at a rate of pay of $10 per hour. Knidel worked at the Shell gas station on Rt. 20 in Auburn, Massachusetts (“Rt. 20 Shell Station”). Prior to being hired by T.N.Z, Knidel also interviewed with Ziad's father, Fouad El-Nemr (“Fouad”), who works for NER. Fouad directed the work of employees at the Rt. 20 Shell Station on a daily basis. On or about August 17, 2009, Knidel quit working for T.N.Z.. In July or August 2009, Ziad offered Knidel a raise and fifty dollars for gas if he came back to work for T.N.Z. Knidel rejected Ziad's offer and started working for Cumberland Farms. Knidel voluntarily terminated his employment with Cumberland Farms on or about June 26, 2010. He then called either Abdessamad Bayi, (“Bayi”) the Manager of T.N.Z., or Salah Bekri (“Bekri”), an employee of T.N.Z., and asked if there was an opening at T.N.Z. Knidel was re-hired as a cashier for T.N.Z. on or about August 10, 2010. He was paid $9.00 per hour. On or about April 22, 2012, Knidel's rate of pay was increased to $9.50 per hour and in May 2012, to $10.00 per hour.

         From about July 23, 2011 through on or about September 19, 2011, Knidel traveled to Morocco and did not work at T.N.Z. T.N.Z.'s vacation policy is that employees who have worked at the company for one year are entitled to one week of vacation. At the time Knidel traveled to Morocco, he had worked at T.N.Z. for less than a year and therefore, was not eligible for paid vacation and was never promised paid vacation by T.N.Z. On July 16, 2011, Ann Army, NER's Human Resource Manager (“Army”) completed an “Employee Termination Sheet” for Knidel. Army indicated that Knidel “voluntarily quit” as of July 16, 2011 and was subject to rehire. The company listed on the Employee Termination Sheet was “Nouria Energy” and the location of employment was “Route 20 Shell.” On September 19, 2011, Army filled out a “New Hire/Update Form” for Knidel which indicated that as of that date, he was rehired as a cashier at “Route 20.” There was no company listed on the New Hire/Update Form.

         Knidel recalls that he first told Ziad that his wife was pregnant around April or May 2012. Because of her pre-existing health problems, Ruth had a high-risk pregnancy. She had “vision problems, like brain water” and a machine to “bring water from her brain.” Knidel also recalls telling Ziad that the pregnancy was high risk. Ziad does not remember when or how he learned of Ruth's pregnancy. On one occasion, Ruth called Knidel at work concerned she was in labor. After failed attempts to reach Ziad, Knidel had a co-worker cover his shift. Ziad warned him not to leave work again without first calling him, which made Knidel fear for his job. During the week of October 21 -27, 2012, Knidel took a one-week paid vacation from T.N.Z. Knidel took this vacation to prepare for the birth of his child. Ziad told Knidel that if he took the week off, he would not give him time off after the child is born.

         Ziad made comments to Knidel regarding his taking his wife to doctors' appointments after work, such as “why you always have to go take your wife. My wife go by herself.” Knidel did not consider the comments made by Ziad to be discriminatory at the time they were made. Ziad became angry when Knidel took time off to take his wife to medical appointments. Despite scheduling appointments after Knidel's shift ended, Ruth was late for a couple of her appointments and missed 2-3 appointments altogether. Knidel's son was born on December 13, 2012. Ruth suffered a stroke while delivering the child which significantly limited her ability to move and walk and use her right side; she was required to use a wheelchair. Immediately after childbirth, she was transferred to another hospital (separate from her son) after which she was transferred to Fairlawn Rehabilitation Center.

         Knidel worked for T.N.Z. on Saturday, December 15, 2012. He worked that day because when he contacted Bayi three days earlier to take time off when his wife was in labor, Bayi told him he could have two days off, but that he had to work on Saturday (December 15th). Knidel spoke to Bayi on December 15th and told him that he needed time off. Bayi told Knidel that he could have time off. At the time, Knidel asked for days, not months, off of work. On Monday, December 17, 2012, Ziad and Knidel spoke over the phone and Ziad told to Knidel to take whatever time he needed. Zaid had been informed that there were complications with the birth of Knidel's son. Knidel was never advised, orally or in writing, that he may have been eligible for job protected leave. However, there was a poster at Route 20 Shell Station advising employees of their rights under the FMLA.

         In late December 2012 or early January 2013, Bayi called Knidel. During the conversation, Knidel said that he did not know when he was coming back to work, but that he would try to return as soon as his wife came home. Knidel also said that he would keep them apprised of the situation. Thereafter, two similar phone calls took place between Knidel and Bayi, the first occurring either the same week or the following week and the second occurring before Knidel s wife came home from Fairlawn Rehabilitation Center (on January 11, 2013). Knidel could not immediately return to work when Ruth returned home because she required a full-time personal care assistant (“PCA”) and at that point, the PCA was only part-time. Approximately one week after Ruth came home, Knidel called Ziad and asked for a letter stating the last day he had worked. Ziad replied that he couldn't give Knidel a letter because they had been calling him and since he never answered the phone, they presumed he quit. Ziad gave him Army's number and said to call her for a letter.

         Knidel never came back to work. On January 22, 2013, T.N.Z. changed Knidel's payroll status to voluntary termination. Knidel applied for unemployment benefits in March or April 2013. Ziad received a letter regarding Knidel s claim for unemployment benefits. Knidel was considered a good worker and good person by Bayi and a good worker by Ziad.

         Knidel's Wage Complaint

         In the Non-Payment of Wage and Workplace Complaint Form submitted to the Massachusetts Attorney General, Knidel claimed that he was owed vacation pay and he indicated there were “meal period violation[s].” Mr. Knidel was re-hired on or about August 10, 2010 and his last day of work was December 15, 2012. Knidel received a total of one week of paid vacation during his employment at T.N.Z. and was not paid for any unused vacation upon or after his separation. Knidel did not indicate non-payment of wages as a reason for filing the complaint.

         Knidel's MCAD/EEOC Charge

         In his discrimination complaint (the “MCAD/EEOC Charge”) filed with the Massachusetts Commission Against Discrimination (“MCAD”) and cross-filed with the Equal Employment Opportunity Commission (“EEOC”), Knidel named T.N.Z., Ziad, and NEC as respondents-- he did not name NER, as a respondent. In the MCAD/EEOC Charge, Knidel alleged that “Respondents terminated me because of discriminatory animus directed toward me as a result of my association with my wife and their desire to be free from their obligations under the law, including but not limited to its obligation to provide me with time off under the Family Medical Leave Act.”

         T.N.Z. and the Nouria Companies[1]

         The Operative Companies

         Ziad's brother, Tony El-Nemr (“Tony”), began operating the Route 20 Shell Station located at 310 Washington Street, Auburn, Massachusetts (“310 Washington”) starting in 1989 when he became a franchise dealer for Shell Oil. In 1989, Tony hired Ziad to work at the Route 20 Shell Station. In 1991, the business was renamed T.N.Z. Ziad bought all of the shares of T.N.Z. from Tony and only Ziad currently has ownership interest and control over T.N.Z. Ziad does not recall the year he purchased ownership of T.N.Z. from Tony, does not recall if any paperwork was exchanged to memorialize the transfer (such as a deed of sale) and does not recall whether he payed any money to Tony or Tony gave him the business. He thinks he may have bought it from Tony for $2 or $10, but doesn't remember. According to Tony, he transferred all of his stock in T.N.Z. to Ziad sometime in 2006 and received no payment in return. A stock certificate indicates that Tony transferred 100 shares in T.N.Z. to Ziad on January 4, 2006; 100 shares being all of the issued and outstanding shares. Ziad is currently the President, Treasurer, Secretary, and sole Director of T.N.Z. and has been since about 2005. T.N.Z.'s principal office is located at 310 Washington Street. Ziad is listed as the President, Treasurer, Secretary and Sole Director of TNZ on the 2013 and 2014 Annual Reports filed with the Massachusetts Secretary of State. However, the 2013 Annual Report was signed by Tony as President of TNZ and states the location of TNZ's registered office as 326 Clark Street, Worcester, Massachusetts (the 2014 Annual Report states the location of TNZ's registered office as 310 Washington Street). On November 13, 2014, Tony also signed T.N.Z.'s license renewal form and indicated he was a corporate officer of T.N.Z. T.N.Z. has eight employees; it has never had 15 or more employees.

         Tony has been the President, Treasurer, Secretary, and sole Director of NEC[2], formerly known as Tony El-Nemr Enterprises Inc., since its incorporation on January 21, 1999. The principal office is located at 326 Clark Street, Worcester, Massachusetts (“326 Clark Street”). Tony is also the President, Treasurer, Secretary, and Sole Director of NER. NER's principal office is also located at 326 Clark Street. NER operates the convenience stores and the retail gasoline locations owned by the Nouria companies. NER pays the wage for the hourly employees at the Nouria companies' retail gasoline locations across Rhode Island, Maine, Massachusetts, and New Hampshire and employs well over 50 employees within a 75 mile radius of the Route 20 Shell Stations. Ziad and T.N.Z. do not currently have ownership of any of the Nouria companies. During periods relevant to this dispute, Ziad had a ...

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