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May 31, 1996


The opinion of the court was delivered by: ORLOFSKY

 ORLOFSKY, District Judge:

 This matter comes before the Court on the motion of Defendant, Microwave Semiconductor Corp. ("MSC"), *fn1" for summary judgment pursuant to Fed. R. Civ. P. 56. The issue presented to the Court by Defendant's motion is whether MSC's termination of Plaintiff's employment was in violation of either the statutory or common law of New Jersey.

 In a narrower context, this case presents an issue of first impression in this District, one yet to be resolved by the Third Circuit: whether an employee who alleges that her discharge from employment at the conclusion of a ninety-day medical leave, the maximum period of medical leave allowed by her employer's medical leave of absence policy, is judicially estopped from contending that her termination was in violation of the New Jersey Law Against Discrimination, N.J.S.A. §§ 10:5-1, et seq., when at the time of her discharge she filed applications for short and long-term disability benefits stating that she was totally disabled and could not work? For the reasons which follow, this Court concludes that Plaintiff's New Jersey Law Against Discrimination claim is barred by the doctrine of judicial estoppel.

 Plaintiffs, Barbara and Romie Morris, filed the complaint in this action on July 3, 1995, in the Superior Court of New Jersey, Thaw Division, Middlesex County. By Notice of Removal, filed by Defendants in this Court on October 18, 1995, the action was removed to this Court. This Court's subject matter jurisdiction is based upon diversity of citizenship and alleged damages in excess of fifty thousand dollars, exclusive of interest and costs. See 28 U.S.C. § 1332.

 This action arises out of MSC's termination of Barbara Morris's employment on or about July 5, 1989. The complaint advances several theories upon which Ms. Morris relies in contending that her termination was violative of both New Jersey statutory and common law.

 In the First Count of the complaint, Plaintiff, Barbara Morris ("Plaintiff" or "Morris"), alleges that her employment was wrongfully terminated by the Defendants in response to her attempt to obtain benefits under the Workers' Compensation Act of the State of New Jersey. (Complaint, First Count P7). In the Second Count, Plaintiff contends that her employment was wrongfully terminated by the Defendants in violation of public policy. (Complaint, Second Count P2). Plaintiff claims in the Third Count that the Defendants unlawfully discriminated against her in violation of the New Jersey Law Against Discrimination, N.J.S.A. §§ 10:5-1, et seq. (Complaint, Third Count P2).

 Plaintiff also alleges that the termination of her employment was in violation of both oral and implied contracts of employment between the Defendants and her. (Complaint, Fourth Count P2, Fifth Count P2). In the Sixth Count, Plaintiff alleges that she has suffered damages as a result of the Defendants' negligent and intentional infliction of emotional distress. (Complaint, Sixth Count P2).

 Finally, in the Seventh Count, Romie Morris, Plaintiff's husband, seeks damages due to the alleged loss of services of his wife. (Complaint, Seventh Count P2). By Consent Order, filed on December 29, 1995, the Seventh Count of the complaint was dismissed without prejudice, and Plaintiff, Romie Morris, and Defendant, Siemens Components, Inc., were dismissed from this action without prejudice. On April 30, 1996, Defendant moved for summary judgment on the six remaining counts of Plaintiff's complaint.

 II. Facts

 The material facts of this case are largely uncontested. In March, 1982, Morris began working for MSC as a computer mounter at MSC's manufacturing plant. (Plaintiff's Answers to Defendants' First Set of Interrogatories ("Plaintiff's Answers"), attached to Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment ("Plaintiff's Mem.") as Exhibit A). Approximately seven years later, on or about April 4, 1989, Plaintiff was injured while at work. She developed cramps in her right leg and lower back, causing her severe pain. (Report and Investigation of Injury and Illness, attached to Plaintiff's Mem. as Exhibit B).

 On May 1, 1989, Plaintiff requested from MSC a medical leave of absence by preparing and signing a "Request for Medical Leave of Absence" form. On this form, Plaintiff requested that her medical leave of absence begin on April 5, 1989, and continue for an undetermined period of time. (Request for Medical Leave of Absence, attached to Defendant's Memorandum of Law in Support of its Motion for Summary Judgment ("Defendant's Mem.") as Exhibit A). The form, itself, indicated that a medical leave of absence was not to exceed a period of three months. Id.2

 As a result of her injury, Plaintiff applied for short-term disability benefits with the State of New Jersey on May 1, 1989. In her application for short-term benefits, Plaintiff certified that she became disabled on or about April 5, 1989, that she had been unable to work since April 6, 1989, and that she had not recovered as of May 1, 1989. (Ganz Cert., Exhibit 2). In support of her claim for short-term disability benefits, Plaintiff submitted a medical certificate which had been prepared and signed by Dr. Harvey Bacon on May 1, 1989. In this certificate, Dr. Bacon certified that Plaintiff had been unable to perform all the duties of her regular job since April 5, 1989, and that he was unable to determine when she would be able to return to work. (Ganz Cert., Exhibit 2).

 In May, 1989, Plaintiff also applied for workers' compensation benefits with the Zurich-American Insurance Group ("Zurich"), a third party insurance company that processed MSC's employees' claims for workers' compensation benefits. By letter dated June 2, 1989, however, Zurich advised Plaintiff "that [her claim was] non-compensable under the terms of the New Jersey Worker's [sic] Compensation Act." (Ganz Cert., Exhibit 4).

 Shortly thereafter, Plaintiff filed a petition for workers' compensation benefits with the State of New Jersey Division of Workers' Compensation on June 19, 1989. (Ganz Cert., Exhibit 5; Plaintiff's Mem., Exhibit H). The State of New Jersey Division of Workers' Compensation ruled in favor of Plaintiff on her petition and granted her workers' compensation benefits. (Ganz Cert., Exhibit 6).

 In addition to short-term disability and workers' compensation benefits, Plaintiff also applied for long-term disability benefits with MSC's long-term disability carrier on July 26, 1989. In her application, Plaintiff certified that her accident or illness was unrelated to her occupation at MSC and that she had been unable to work because of her disability since April 6, 1989. (Ganz Cert., Exhibit 13). In support of her application for long-term disability benefits, Plaintiff submitted to the insurance carrier an "Attending Physician's Statement," prepared by Dr. Laurence Rubenstein, which indicated that as of August 17, 1989, Plaintiff was totally disabled for her occupation or for any other work. (Ganz Cert., Exhibit C).

 Plaintiff's application for long-term disability benefits was approved, and she began receiving such benefits retroactive to July 5, 1989. Between July 5, 1989 and May 2, 1992, Plaintiff received a total of over $ 40,000 in long-term disability benefits. (Ganz Cert., Exhibits 3, 7, 8).

 III. Summary Judgment Standard

 A party seeking summary judgment must "show that there is no genuine issue as to any material fact and that [he or she] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56 (c). See also Hersh v. Allen Products, Co., 789 F.2d 230, 232 (3d Cir. 1986); Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983). In deciding whether there is a disputed issue of material fact the Court must view all inferences, doubts and issues of credibility in favor of the non-moving party. See Hancock Indus. v. Schaeffer, 811 F.2d 225, 231 (3d Cir. 1987) (citation omitted); Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983), cert. denied, 465 U.S. 1091, 79 L. Ed. 2d 910, 104 S. Ct. 2144 (1984). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 Moreover, Federal Rule of Civil Procedure 56(e) provides:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

 Fed. R. Civ. P. 56 (e).

 Under this rule, a defendant must be awarded summary judgment on all properly supported issues identified in its motion, except for those for which a plaintiff has provided evidence to show that a question of material fact remains. Put another way, once the moving party has properly supported its motion, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). A summary judgment movant may meet its burden by showing that the opposing party is unable to meet its burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) Nonetheless, defendant, as the moving party on the motion, bears the initial responsibility of demonstrating the absence of a genuine issue of material fact. Id.

 IV. Discussion

 The issue presently before this Court is whether MSC's termination of Plaintiff's employment was in violation of either New Jersey common law or statutory law. Plaintiff's complaint sets forth six counts, each of which will be considered in turn to determine whether each claim can withstand Defendant's motion for summary judgment. Because the Court finds that the undisputed material facts contained in the summary judgment record indicate that MSC's termination of Plaintiff's employment was ...

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