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Barone v. Leukemia Society of America

November 25, 1998


The opinion of the court was delivered by: Irenas, District Court



Presently before this Court is defendant's motion for summary judgment of plaintiff Rose Marie Barone's claim that the termination of her employment violated the New Jersey Family Leave Act, N.J.S.A. § 34:11B-1 et seq. ("FLA") and resulted in a breach of her contract for employment. For the reasons set forth below, defendant's motion for summary judgment is granted in part and denied in part.



Plaintiff Rose Marie Barone ("Barone") was employed at the Southern New Jersey Chapter of the Leukemia Society of America ("the Society") for twenty five years. On or about January 26, 1996, Barone was hospitalized for an acute kidney infection associated with a kidney stone. She was discharged from this initial hospitalization on January 29, 1996. At the time of her hospitalization, Barone learned that her husband had been diagnosed with terminal cancer. When Barone was released from the hospital, she contacted Paul McBride, the executive director of the Society, informed him of her condition, and told him that she could not anticipate a return date, due to her husband's terminal condition. Barone underwent surgery on March 11, 1996, to remove her kidney stone and remained in the hospital for five days.

On or about April 3, 1996, Stephanie Rouse ("Rouse"), the Director of Personnel Services in the Society, telephoned Mrs. Barone to discuss her medical condition and to advise her that she would be sending her an application for short-term disability benefits. On April 30, 1996, Rouse sent a letter to Barone requesting that she submit a medical certification regarding her condition. Rouse also sent Barone a New Jersey Disability Claim form, and requested that she complete and submit it to the New Jersey Department of Labor for processing. Barone subsequently received benefits from the New Jersey Dept. of Labor, Division of Temporary Disability Insurance, for the duration of her medical leave commencing in January of 1996.

Barone responded by letter to Rouse and included a note from Albert Carey, her personal physician, stating that Barone was currently under his care with regard to the kidney stone condition and that she would be able to return to work by July 10, 1996. During her tenure with the Society, Barone had accumulated 130 sick days, which she used during the course of her medical leave in 1996, and thereby received her regular salary up until July 26, 1996. *fn1 By correspondence dated July 23, 1996, Rouse notified Barone that she would be exhausting her sick leave as of July 26th and that she was therefore receiving her last paycheck. Rose also included an application form for long-term disability insurance. Barone consulted with Dr. Carey upon receipt of the long-term disability application. Dr. Carey advised Barone that since her own health condition had improved by late July of 1996, she was not eligible to receive long-term disability benefits. On August 7, 1996, Barone advised Rouse that she was not eligible for long-term disability and that she was considering whether "to retire or take advantage of the Family Medical Sick Leave Act." (Barone Dep.).

Barone's husband died on August 9, 1996. On the same day, she sent a note to Rouse, stating that her husband died and she planned to return to work on September 4, 1996. At no time did any agent or employee of the Society indicate to Barone that she should return back to work sooner than September 4, 1996 or that she would be terminated unless she did so. Barone received a telephone call in late August and a letter dated August 22, 1996, from Benita Shobe ("Shobe"), the Society's Vice President for Chapter Development, advising her that she had been terminated from employment. Shobe advised Barone that her duties had been reassigned. *fn2


Plaintiff filed her first complaint on May 21, 1997 and an amended complaint on January 21, 1998, requesting relief pursuant to 1) the Family and Medical Leave Act of 1993, 29 U.S.C. § 260, et seq. ("FMLA"); 2) the New Jersey Law Against Discrimination, N.J.S.A. §10:5-1, et seq. ("NJLAD"); 3) New Jersey Common law for Breach of Contract; and 4) the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. ("ADEA"). On May 18, 1998, the Society served upon plaintiff a motion for summary judgment on all four counts. On July 30, 1998, the Court dismissed all claims pursuant to the FMLA and all claims based on age discrimination under federal or state law. The Court's Order granted plaintiff leave to file a Second Amended Complaint pursuant to the New Jersey Family Leave Act, N.J.S.A. 34:11B-1 et seq. ("FLA"). *fn3 The Court retained jurisdiction pursuant to 28 U.S.C. § 1367(a). On August 14, 1998, plaintiff filed a second amended complaint asserting claims pursuant to the FLA and New Jersey common law for breach of contract. On October 29, 1998, the Society filed the instant motion for summary judgment seeking dismissal of plaintiff's FLA and contract claims. This Court holds that when an employee is on leave for the FLA-qualifying reason of caring for a sick relative, such relative dies, and the employee immediately indicates a desire to return to work, the employer has the minimal obligation to advise the employee at what point she must return to maintain her FLA protection. In this limited circumstance, an employer who fails to advise the employee on what date she must return to work to avoid foregoing her statutory right to reinstatement violates the notice provisions of the FLA. This holding is consistent with the statute itself and the regulations promulgated pursuant to its federal counterpart. See N.J.S.A. 34:11B-6; 29 C.F.R. § 825.301. Accordingly, defendant's motion for summary judgment of plaintiff's contract claims will be granted and defendant's motion for summary judgment of plaintiff's FLA claim will be denied.


Under Fed. R. Civ. P. 56(c), a court may grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The non-moving party may not simply rest on its pleadings to oppose a summary judgment motion but must affirmatively come forward with admissible evidence establishing a genuine issue of fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). The role of the court is not "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

The substantive law governing the dispute will determine which facts are material, and only disputes over those facts "that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. at 248. Where the moving party has carried its initial burden of demonstrating the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Idus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). A genuine issue for trial does not exist "unless the party opposing the motion can adduce evidence which, when considered in light of that party's burden of proof at trial, could be the basis for a jury finding in that party's favor." J.E. Mamiye & Sons, Inc. v. Fidelity Bank, 813 F.2d 610, 618 (3d Cir. 1987) (Becker, J., concurring).


Defendant argues that plaintiff has no basis for a claim under the FLA or under contract law. Defendant's FLA argument has three bases. First, defendant argues that Barone used up her FLA entitlement, since her paid leave which commenced in January, 1996, was for a combination of her and her husband's sickness and exceeded twelve weeks. Second, defendant argues that Barone has no FLA claim because she did not provide the Society with the requisite notice. Third, defendant argues that even if Barone had an FLA claim, any entitlement that she had was extinguished upon her husband's death on August 9, 1996. Neither party disputes that Barone was an "employee" of defendant Society, and that the Society itself constitutes an "employer" within the meaning of the FLA.

Plaintiff argues that where an employee is on leave to care for the serious health condition of a family member, the predicate for such leave terminates by way of the family member's death, and the employee indicates a desire to return to work, the employer is obligated to advise the employee when she must return to work so she does not lose her right to reinstatement under the FLA. In other words, plaintiff argues that on August 9, 1996, when she wrote a note informing the Society that her husband died and indicating a desire to return to work on September 4, 1996, the Society was obligated to inform her that she must return to work sooner or she would forfeit her right to reinstatement under the FLA. Because the Society failed to notify Barone of her responsibilities under the statute and the consequences of her failure to meet her FLA obligations, this Court finds that defendant violated the notice provisions of the FLA.


Plaintiff argues that she and the Society were parties to a binding, contractual employment relationship and that the Society violated its own personnel policy and the implied covenant of good faith and fair dealing by firing her. Defendant contends that plaintiff was an at-will employee who could be discharged with or without cause.

The Society's employee handbook provides:

The policies outlines in this employee handbook, as well as the handbook itself, are not intended as a contract of employment. They may be added to or changed as needed. The Society adheres to the doctrine of employment-at-will, which enables either the employee or the employer to terminate the employment relationship at any time, upon notice. The Society reserves the right to unilaterally delete, change, or add to its personnel policies at any time as it deems necessary. This Handbook supersedes and replaces any previous employee handbooks or policy statements, whether written or oral.

Plaintiff admits that her employment relationship was at-will and that no implied promise of continued employment in the Society's employee handbook may be enforced against the Society. See Woolley v. Hoffmann-La Roche, Inc. 99 N.J. 284 (1985) (holding that absent a clear disclaimer, an implied promise contained in employment manual that an employee will be fired only for cause may be enforceable against an employer even when employment is for an indefinite term and would otherwise be terminable at will).

This Court finds that even if plaintiff's employment relationship with defendant can be described as "contractual," plaintiff had no individual contract of employment with defendant which might be construed to provide continued employment or forbid termination without cause. The New Jersey Supreme Court has established employment-at-will as the prevailing doctrine in this state. See Bernard v. IMI Systems, Inc., 131 N.J. 91, 105 (1993). Absent the identification of a specific expression of public policy, an at-will employee may be discharged with or without cause. See Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 72 (1980). Although the Society's employee handbook may create binding duties and obligations between an ...

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