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An employee suing under New Jersey’s Law Against Discrimination (LAD) can pursue claims against not only her immediate employer but also a company that contracts for her employer’s services, as long as she satisfies the “multiple-employer” doctrine, a federal judge has ruled. U.S. District Judge Mary Cooper, on Oct. 13, denied Exxon Research & Engineering Co.’s motion to dismiss Pinkerton Security guard Christine Kurdyla’s claim of sexual harassment by an employee of the Exxon facility in Clinton, N.J., where she was assigned to work. The defendants sought dismissal under Fed. R. Civ. P. 12(b)(6), contending that Kurdyla was not an Exxon employee but an independent contractor and, as such, failed to state a claim. While Cooper acknowledged that the LAD protects only employees and does not cover independent contractors, she found that Kurdyla could proceed under the multiple-employer doctrine, which recognizes that “a plaintiff may be an employee of more than one entity.” Kurdyla v. Pinkerton Security, Civ. 00-2401. Cooper acknowledged that Kurdyla’s allegations might not be enough to prove that she was an employee of Exxon but found them “sufficient to overcome a Rule 12(b)(6) motion because they prevent the Court from concluding that it clearly appears that plaintiff can prove no set of facts in support of her claim for relief.” Kurdyla did not specifically allege that she was an Exxon employee but alleged that she worked at “Exxon/Pinkerton” and that Exxon is an employer under the LAD, is “the ultimate parent corporation of Pinkerton,” “maintains control over the operations, business and practices of Pinkerton,” and that Swiniki and other individual John Doe defendants “are employees of Pinkerton and Exxon.” Kurdyla, who began working for Pinkerton as a security guard in October 1995 when she was 18 years old, also asserted that Exxon employee Daryl Swiniki was her supervisor on a day-to-day basis and that Pinkerton guards working at Exxon received enhanced benefits from Exxon. The case contains four counts of discrimination: quid pro quo harassment, hostile environment sexual harassment, gender discrimination on account of pregnancy, and a claim under respondeat superior based on Swiniki’s conduct. Kurdyla also alleged violation of the Family and Medical Leave Act by Pinkerton for failing to reinstate her to her job after she returned from maternity leave around July 1999. That federal claim, first asserted in an amended complaint, provided the basis for Pinkerton’s removal of the action from Somerset County Superior Court, where it was originally filed, to the federal court. Both parties relied on matters outside the pleadings in their support and opposition to the motion to dismiss, but Cooper declined to treat the motion as one for summary judgment, given the early stage of discovery in the case. Kurdyla’s attorney, Karen DeSoto, calls Cooper’s decision a necessary corrective to what she describes as the recent trend by employers to limit compensation costs and accountability by filling positions with subcontracted employees, temporary employees and independent contractors. “Are we going to look out for the individual?” asks DeSoto, an associate at the Warren firm of Eric Bernstein & Associates. “Individuals are losing their rights to fancy ways of getting around the law,” she adds. DeSoto says that providing different levels of protection in the workplace based on different legal relationships can lead to anomalous situations. For example, she says, two women standing next to a water cooler might be “felt up” by the same harasser but the employer would only be liable as to one of them. James Walsh, a partner at the Chatham firm of McCusker, Anselmi, Rosen, Carvelli & Walsh who represents Exxon and Swiniki, declines to comment.

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