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VIERECK v. CITY OF GLOUCESTER CITY

April 11, 1997

LINDA VIERECK, Plaintiff,
v.
CITY OF GLOUCESTER CITY and JOHN HOLMAN, CITY ADMINISTRATOR, Defendants.



The opinion of the court was delivered by: IRENAS

 IRENAS, District Judge:

 Plaintiff Linda Viereck commenced this action seeking damages and equitable relief from her former employer and supervisor for their alleged violations of the Family Medical Leave Act ("FMLA"), 29 U.S.C. ยงยง 2601-54. Both parties now move the Court for summary judgment on the sole count of plaintiff's complaint. Because, as a matter of law, defendants terminated plaintiff in violation of the FMLA, the Court will deny defendants' motion for summary judgment and grant plaintiff's motion for summary judgment in part with respect to the application of plaintiff's FMLA leave. Because genuine issues of material fact remain as to plaintiff's damages and as to whether plaintiff was able to continue working upon the expiration of the leave, the Court will deny plaintiff's motion in part with respect to these issues.

 I. BACKGROUND

 Defendant City of Gloucester City ("City") hired plaintiff to work as a secretary to the city administrator on January 21, 1993. Her job responsibilities included typing, filing, and similar clerical tasks. Throughout her tenure with the City, plaintiff was an exemplary employee and had a very good attendance record. See Plaintiff's App. at 30.

 On June 30, 1994, a drunk driver struck plaintiff's automobile, injuring her neck, back, left arm, and left shoulder. Doctors at the Underwood Hospital treated these injuries on the day of the accident. The next day, plaintiff telephoned City Mayor Walter Jost, telling him about the car accident and that she had been hospitalized, giving him a brief description of her injuries, and reporting that due to her condition she would be unable to return to work for some time. See Viereck Aff. PP 25-30. *fn1" Later that day, Mayor Jost communicated plaintiff's message to her supervisor, City Administrator John Holman.

 On July 25, 1994, plaintiff informed Mayor Jost and Mr. Holman that her doctors had not given her a definite day when she could return to work. See id. at 33. On July 8, 1994, Dr. Lawrence Barr examined plaintiff for an orthopedic evaluation. Plaintiff submitted his report to the City on July 28, 1994, along with a note from Dr. Barry Herman indicating that plaintiff would remain unable to work for at least two more weeks:

 
Please be advised the Linda Viereck is under care at this office for serious injuries resulting from a [motor vehicle accident] on [June 30, 1994]. She is obtaining medical care as well. Currently she is unable to work and would not be able to return to her job for at least [two] weeks. Enclosed is Dr. Barr's report.

 Id. at 34. On August 17, 1994, plaintiff sent the City another note from Dr. Herman indicating that plaintiff's "serious injuries" prevented her from returning to work and that she should be out at least three additional weeks. See id. at 37.

 On September 15, 1994, Dr. Eric Lipnack diagnosed plaintiff with cervical, dorsal, lumber sprain and strain, possible lumbar radiculopathy, trapezium myofascitis, and post-traumatic cephaglia. See id. at 39. Dr. Lipnack also considered plaintiff "unable to return to work until further notice." Id. On September 27, 1994, Dr. Lipnack reevaluated plaintiff and again considered her unable to return to work. See id. at 41. On October 12, 1994, Dr. Herman tentatively scheduled plaintiff to be cleared to return to work as of the beginning of December. See id. at 42. On December 1, 1994, Dr. Herman wrote that plaintiff "is able to return to work as of today." Id. at 43. Plaintiff provided these notes and reports to the City throughout the course of her medical treatment. *fn2"

 Plaintiff exhausted her accumulated sick leave and vacation time by August 2, 1994. On August 17, 1994, plaintiff requested a six-month leave of absence without pay which the City denied on August 30, 1994. See id. at 36, 44-45. On August 31, 1994, plaintiff first learned of her rights under the FMLA and requested twelve weeks of unpaid leave under that Act. *fn3" By letter dated September 2, 1994, the City granted plaintiff's request for leave under the FMLA. See id. at 47. The City, however, applied the leave retroactively dating back to the first date of her absence. Accordingly, the City directed plaintiff to return to work on September 26, 1994. On September 28, 1994, when plaintiff had not yet returned to work, the City, through Mr. Holman, fired plaintiff for excessive absenteeism. Defendants later cited the need for a permanent replacement for plaintiff's position, although they admit that they did not find such replacement until February 2, 1995. See Holman Cert. P 4; Plaintiff's App. at 21. *fn4"

 II. DISCUSSION

 A. Standard for Summary Judgment


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