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Zawadowicz v. CVS. Corp.

June 12, 2000


The opinion of the court was delivered by: Brotman, District Judge.



Presently before the Court are defendant CVS Corp.'s motion for summary judgment seeking dismissal of all claims and plaintiff Jeffrey Zawadowicz's cross-motion for partial summary judgment. For the reasons set forth below, CVS's motion will be granted in part and denied in part, and plaintiff's cross-motion for partial summary judgment will be denied in total.


The plaintiff, Jeffrey Zawadowicz, brings this action against his former employer, CVS Corp., alleging he was wrongfully discharged in violation of the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et. seq. ("FMLA") and the New Jersey Family Leave Act, N.J.S.A. 34:11B-1 et. seq. ("FLA"). Plaintiff also asserts related state law claims for unlawful retaliation, breach of implied contract, breach of the implied covenant of good faith and fair dealing, and equitable estoppel.

A. Plaintiff's Position at CVS

On or about March 23, 1998, CVS hired the plaintiff to work as an "On-Line Case Picker" in the Lumberton, New Jersey Distribution Center ("LDC"). CVS ships orders from the LDC to various locations throughout New Jersey, Pennsylvania and Delaware. As an "on-line case picker", plaintiff was responsible for the timely and accurate picking of retail store orders. Later, plaintiff assumed the position of "Reach Truck Operator" in the LDC warehouse.

B. CVS's Attendance Policy

In 1995, CVS instituted an attendance policy that provided all hourly employees with an attendance bank of hours ("attendance bank"). Pursuant to this policy, at the beginning of each calendar year, plaintiff received 112 hours in his attendance bank, 56 of which are paid and the remainder are unpaid. The paid hours include five sick days (forty hours), one anniversary holiday (eight hours) and one birthday holiday (eight hours). When an employee is absent or late to work, the corresponding number of hours is deducted from his attendance bank. Absences taken pursuant to authorized leave under the FMLA are exempt from deduction from the attendance bank.

The Attendance Policy provides for progressive discipline of employees with attendance problems. Employees receive a verbal advisory when they use more than one-half of their allotted hours for the year, followed by a written warning once all allotted hours are consumed. Employees receive a second written warning when they exceed their yearly allotment by eight hours, followed by separation when they exceed this allotment by sixteen hours. *fn1 Aron Aff., Ex. K. CVS supervisors are responsible for enforcing the attendance policy.

C. Plaintiff's History of Absenteeism

After CVS instituted the Attendance Policy in 1995, plaintiff received several warnings concerning attendance problems. On April 24, 1995, plaintiff received a warning that stated in pertinent part:

A recent review of your attendance records has shown an undesirable trend which you need to correct immediately. You should be aware that failure to correct the undesirable attendance trend described below could lead to severe disciplinary action, up to and including suspension or separation from CVS. Aron Aff., Ex. H.

Thereafter, in November 1995, plaintiff again was notified in writing about poor attendance, this time cautioning that he had exceeded his attendance bank. CVS restored some hours to plaintiff's attendance bank but warned that if he exceeded this amount, he would "face further disciplinary action, and possible separation from CVS." Aron Aff., Ex. I. Despite this second warning, plaintiff exhausted his allotted hours again in December, 1995, for which a third written warning was issued. See Aron Aff., Ex. J.

D. Plaintiff's FMLA Leaves of Absence

1. FMLA Leave Prior to October, 1996

Beginning in February 1996, plaintiff applied for and was granted several leaves of absences ("LOA's") under the FMLA. Plaintiff's first LOA was for the birth of his son and covered the time period from February 8 to March 11, 1996. Aron Cert., Ex. L. Plaintiff obtained a second LOA for the period of April 13 to May 1, 1996 due to another son's injury from an automobile accident. Aron Cert., Ex. M. In addition, plaintiff received LOA's due to asthmatic complications occurring on January 25-26 and June 11 -14, 1996. Aron Aff., Ex. N. Plaintiff submitted a medical certification for each of the approved LOA's discussed above.

2. October, 1996 FMLA Leave

Plaintiff's wife, Tammy Zawadowicz, also was employed by CVS as an equipment operator. On October 17, 1996, Mrs. Zawadowicz was injured during her shift when two double-stacked pallets fell from a forklift she was operating, striking her on the back of the head. As a result of this accident, Mrs. Zawadowicz sustained injuries to her back and neck, which injuries plaintiff alleges "rendered her totally incapacitated and unable to walk." Pl.'s Opp'n Br. at 2.

To assist his wife at home, plaintiff requested a LOA on October 17, 1996. Plaintiff submitted a medical certification from Mrs. Zawadowicz's then-treating physician, Dr. Josephson, dated November 4, 1996, which stated that plaintiff's assistance was required for "basic medical, hygiene, nutritional needs, safety or transportation." Aron Aff., Ex. O. Dr. Josephson limited the time period for this assistance to "no more than 3-4 weeks" or from "October 18, 1996 to November 29, 1996." Id. CVS approved plaintiff's LOA request on November 27, 1996.

3. January 23, 1997 FMLA Leave

At the end of November, 1996, Mrs. Zawadowicz still had not recovered. On December 4, 1996, Mrs. Zawadowicz was examined by Dr. Josephson, who reported that she would be unable to return to work before March 1997.

Plaintiff, who was absent from work every day between October 18 and November 29, 1996, continued to take various, non-consecutive absences from work in December, 1996 and January 1997. In early January, 1997, plaintiff obtained a second LOA application and information packet regarding CVS's updated leave policy. This packet included information concerning employee rights pursuant to the FMLA. The packet also contained the necessary forms for obtaining an LOA and supporting medical certification.

On January 23, 1997 plaintiff submitted his LOA application to CVS, which application was signed by his wife's physician and stated the duration of her condition as "Oct. 17, 1996 [to] present." Aron Aff., Ex. P at unnumbered 2. Plaintiff requested leave on an intermittent basis, again stating "to present" as the probable duration of the leave. Id.

That same day, Chuck Martin, CVS's Human Resources Manager, notified plaintiff in writing that his leave was approved on an intermittent basis. The memorandum is a standard leave form with a space to write in the date through which leave has been approved. In this space is written the word, "intermittent." Immediately thereafter is the sentence, "Any extension to this date must be requested by submitting another "leave of Absence Request Form" and receiving approval in advance of the above date. The form also set forth the following conditions:

A. You will be required to furnish medical certification of a serious health condition.

5. While on leave, you are required to furnish the Human Resources Department with periodic reports (as appropriate for the particular leave situation) of your status and intent to return to work. If the circumstances of your leave change and you are able to return to work earlier, you are required to notify the Human Resources Department at least two business days to the date of your intention to return to work.

6. You will be required to furnish recertification relating to a serious health condition in the event you need an extension of your leave. Hildrebrand Aff., Ex. B.

Handwritten at the bottom of the first page of the memorandum is the following note, "As discussed[,] Jeff will notify me personally or via phone mail (ext. 202) if he will be absent due to wife's health condition." Id.

Plaintiff claims that the January 23, 1997 LOA ("January LOA") authorized "intermittent leave for an indefinite period in the future, up to the 26-week limit stated in CVS's Employee Handbook." Pl.'s Opp'n Br. at 4. CVS asserts that the January LOA terminated on January 23,1997, the date on which the form was signed, and therefore only approved prior absences.

E. Plaintiff's Absences after January 23, 1997

After January 23, 1997, plaintiff continued to take time off from work on an intermittent basis. Specifically, plaintiff was absent from work on the following dates:

February 7, 1997March 20, 1997May 13, 1997

February 10, 1997March 21, 1997May 14, 1997

February 11, 1997March 24, 1997May 22, 1997

February 14, 1997April 10, 1997May 23, 1997

February 20, 1997April 23, 1997June 9, 1997

February 21, 1997May 6, 1997 Comp. ¶ 14.

Of those seventeen dates, eight fell on either a Monday or Friday.

During this period of time, plaintiff typically reported his absences to the voice mail of his immediate supervisor James Lupinetti, stating that he was not coming to work and that he was taking the absence as an "unpaid day". Aron Cert., Ex. V at 294:5-17. There were occasions, however, when plaintiff did not specify that he was taking the day off as an "unpaid day". Plaintiff alleges that James Lupinetti is a good friend of his who remained apprised of Mrs. Zawadowicz's condition, and therefore it was unnecessary to always report that he was taking an "unpaid day" pursuant to the FMLA. Id. at 294:13-295:11. Moreover, there was a period of time during which James Lupinetti was out on his own leave of absence. During this time, plaintiff left messages on the supervisor "call out" line. Plaintiff does not recall to which supervisor he reported. Plaintiff admits that during this time, he never provided a reason for missing work, nor did he indicate that the absence should be credited towards any FMLA leave. Id. at 295:12-296:5.

CVS alleges that given plaintiff's history of absenteeism, it was uncertain whether plaintiff's absences were due to Mrs. Zawadowicz's back injury. *fn2

F. Plaintiff's Termination

On May 15, 1997, CVS issued a written warning to plaintiff that he had "greatly exceeded the maximum amount of allowed hours in [his] `bank'." *fn3 Aron Cert., Ex. R. On this date, John Colligan, Production Manager, provided plaintiff with a list of the dates of his absences since the beginning of the calendar year in January, 1997. Colligan advised plaintiff that a medical certification was needed for any FMLA-related absences which were to be credited to his attendance bank of hours. Aron Cert., Ex. R at 303:25-305:8.

On June 2, 1997, Colligan met with plaintiff a second time, cautioning him that failure to provide the medical certification by June 6, 1997 could result in his termination. Id. at 343:18-23. The next day, plaintiff contacted Chuck Martin, challenging the requirement for medical documentation. Id. at 344:10-15. Martin responded that CVS was entitled to periodic updates concerning plaintiff's leave and explained that the certification was necessary to determine which absences were FMLA-related and thus, needed to be ...

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