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MARRERO v. CAMBDEN COUNTY BOARD OF SOCIAL SERVICES
October 4, 2001
LIZSANDRA MARRERO, PLAINTIFF,
CAMBDEN COUNTY BOARD OF SOCIAL SERVICES, CLEMENT CARNEY, ROBERT ELLIS, SANDRA MAYERS, AND JUNIOUS COLES AND JOHN DOE DECISION MAKERS, DEFENDANTS.
The opinion of the court was delivered by: Joseph E. Irenas, U.S.D.J.
Presently before the Court is the summary judgment motion of Defendants
Camden County Board of Social Services, Clement Carney, Robert Ellis and
Sandra Mayers. Plaintiff Lizsandra Marrero, a former unit clerk in the
income maintenance unit of the Board of Social Services ("the Board"),
asserts several claims relating to the manner in which she was treated
during her tenure with the Board and to the circumstances under which she
was ultimately dismissed from her position. Plaintiff contends that she
was unlawfully subjected to disciplinary action, and was later fired,
because she exercised her constitutionally-protected rights to object to
the conditions of her employment and that her dismissal violated the
provisions of the Family and Medical Leave Act of 1993 ("FMLA"),
29 U.S.C. § 2601, et seq.. Plaintiff also asserts gender
discrimination and retaliation claims under the New Jersey Law Against
Discrimination ("LAD"), N.J.S.A. 10:5-1, et. seq., and claims for
intentional infliction of emotional distress and interference with
prospective economic advantage*fn1. This Court has jurisdiction pursuant
to 28 U.S.C. § 1331, 1367.
Because there remain issues of material fact relating to whether the
actions taken against Plaintiff in response to conduct protected by the
First Amendment and the LAD, and because Plaintiff has offered sufficient
evidence to allow a trier of fact to conclude that the Defendants
violated the notice and certification provisions of the FMLA by refusing
to consider granting her a leave of absence, summary judgment on
Plaintiff's FMLA and retaliation claims will be denied. However, because
Plaintiff has not made the required showing that the actions taken
against her would not have occurred "but for" her gender and because she
has not demonstrated the necessary elements of her tort claims, summary
judgment on those claims will be granted.
In 1978, the Camden County Board of Social Services adopted a formal
dress code policy designed to create a "positive image" for the agency.
This dress code remained in effect throughout Plaintiff's tenure with the
Board, which began in November, 1992 and ended in July, 2000.
Plaintiff's "difficulties at the workplace" began in March, 1997, when
she was first disciplined for failing to adhere to the Board's dress
policy.*fn2 (Am. Compl. at 2). Plaintiff testified at her deposition
that she responded to this action by speaking with a union
representative, who contacted Clement Carney, the Deputy Director of the
Board of Social Services, on Plaintiff's behalf. (Pl. Dep. at 76). On
September 9, 1997, that representative, Rosetta Pitts, directed a letter
to Robert Ellis, the Board's Director, informing him that the union
opposed the disciplinary action taken against Plaintiff. According to
Plaintiff, this letter was the result of a "series of correspondence"
between Pitts, Carney and Sandra Mayers, the Administrator of the Income
Maintenance Unit. On September 16, 1997, Plaintiff was again sent home
because of the way she was dressed. This action was followed by a letter
from Mayers stating that should Plaintiff again run afoul of the dress
code, more serious disciplinary action would follow.
Plaintiff alleges that things "escalated" after the 1997 incidents.
(Am. Compl. at 2). In addition to the "numerous occasions" on which she
was criticized for dressing inappropriately, Plaintiff claims that she
was the subject of inappropriate and harassing comments such as "your
panties are showing", "I can see the print of your privates" and "are you
wearing your daughter's clothes" made by Defendants and others. (Am.
Compl. at 3). In July of 1999, Plaintiff sent Defendants a Tort Claims
Notice, pursuant to N.J.S.A. § 59:8-4, claiming that "several events
occurring over the last two to three years . . . have created a hostile
work environment which has continued to the present date." (Pl. Ex.
PP). Plaintiff also claimed to have been subject to "retaliation" for
reporting an incident of sexual assault
that occurred between her and
Defendant Junious Coles.*fn3 (Id.).
Plaintiff claims that she was again sent home for violating the dress
code on July 21, 1999, the same day that Defendants received and
allegedly discussed Plaintiff's Tort Claims Notice. (Pl. Dep. at 206,
207).*fn4 According to Plaintiff, things "got worse for me after I went
to get advice from an attorney," in early 1999. (Pl. Dep. at 207).
Plaintiff stated that during 1999 she was sent home from work more
frequently and that the Board "had people watching over me", which
"result[ed] in . . . being forced to leave work due to an anxiety
reaction." (Pl. Stmt. of Mat. Facts at 18; Pl. Dep. at 207). This leave
was ultimately designated as FMLA leave and lasted six weeks. Upon
returning to work in September, 1999, rather than being reassigned to her
old job as a unit clerk, Plaintiff became a "floater", a position which
she contends was "less desirable." (Am. Compl. at 6). Plaintiff
concedes, however, that this position was equivalent to her former job as
a unit clerk in terms of responsibilities, salary and benefits and that
she was restored to her unit clerk position within two months. (Pl.
Dep. at 189).
On June 1, 2000, Plaintiff filed an action in the Superior Court of New
Jersey, alleging, inter alia, sexual harassment, gender discrimination
and retaliation in violation of the LAD and the First Amendment.
(Defendants later removed the case to this Court.)
On June 26, 2000, Plaintiff was once again called to meet with Mayers
and Carney to discuss alleged dress code violations. Plaintiff testified
that she "got upset" by the demand, left the office and did not return to
work that day. (Pl. Dep. at 187, 188).
The next day, Plaintiff called her supervisor, William Tucker and left
a voice mail message stating that she had suffered an "anxiety attack"
and would need to be placed out on leave. According to Plaintiff, she was
at that time experiencing "nervousness, crying" and an inability to work
"due to a hostile work environment." (Pl. Stmt. of Mat. Facts at 12).
At the time of her call, Plaintiff had apparently already visited her
physician, Dr. Arthur McDermott, who had recommended that she take a leave
of absence. (Pl. Dep. at 169). Plaintiff then called the Board's
personnel department, stated that she had been placed on a "sick leave" by
her doctor and requested that the appropriate forms be sent to her.
(Id. at 172). What happened next is a matter of some contention.
Plaintiff states that Clement Carney got on the phone and "in a very loud
tone of voice" told her that her leave was not accepted and "to get back
to work or . . . be terminated." (Id.). Carney, however, insists that
he simply advised Plaintiff of the proper procedure for requesting sick
leave. (Carney Dep. at 36, 37).
The forms, however, were never sent back. Instead, Carney sent her a
letter, dated July 7, stating that if Plaintiff wanted to request sick
leave, she needed to follow the procedures outlined in the Board's
employee handbook and the union collective bargaining agreement. In the
interim, the letter stated, she was considered on unauthorized leave and
would be regarded, pursuant to N.J.A.C. 4A2-6.2(b), as having resigned
not in good standing. Although Dr. McDermott ultimately did send a letter
(dated July 18) to the Board confirming his diagnosis, Plaintiff was,
after a disciplinary hearing before Defendant Ellis (which Plaintiff did
not attend), fired on July 28, 2000.
Plaintiff moved, pursuant to Fed.R.Civ.P. 15(a), to add her FMLA claims
to the Complaint and to incorporate the events of June and July into her
existing discrimination and retaliation claims. This request was granted
by the Court on October 20, 2000 and the Amended Complaint was filed on
October 25. The instant Motion for Summary Judgment was filed on August
"[S]ummary judgment is proper `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.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)
(quoting Fed.R.Civ.P. 56(c)).
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). However, "a party opposing a properly supported motion for
summary judgment may not rest upon the mere allegations or denials of his
pleading, but . . . must set forth specific facts showing that there is a
genuine issue for trial." Id. at 248 (citation omitted).
Plaintiff contends that she was suffering from a "serious health
condition" when she left work in June, 2000 and that because her
subsequent absences were protected by the FMLA, the Defendants violated
the Act by discharging her for excessive absenteeism during that period.
Defendants respond that, regardless of whether her absence was protected
by the FMLA, Plaintiff had an "independent" obligation to comply with the
Board's own sick leave notification procedures and that her failure to do
so constituted a "legitimate non-discriminatory reason for terminating
plaintiff's employment." (Def. Reply at 4).
Courts interpreting the FMLA have recognized that the Act creates two
relatively distinct causes of action. See, e.g., Bachelder v. American
West Airlines, Inc., 2001 WL 883701 (9th Cir. Aug. 8, 2001); Strickland
v. Water Works and Sewer Board of the City of Birmingham, 239 F.3d 1199
(11th Cir. 2001).
First, the FMLA makes it unlawful for an employer "to interfere with,
restrain, or deny the exercise of or the attempt to exercise" any right
provided by the Act. 29 U.S.C. § 2615(a)(1). Claims under this
provision are often referred to as "interference" claims. See
Strickland, 239 F.3d at 1207, fn. 9. In addition, the FMLA prohibits an
employer from "discharg[ing] or in any other manner discriminat[ing]
against any individual for opposing any practice made unlawful by [§
2615]." 29 U.S.C. § 2615(a)(2). Such claims are usually described as
"discrimination" claims. See Strickland, at fn. 9.
The claim asserted by the Plaintiff in this case is properly analyzed
as an interference claim under § 2615(a)(1). The crux of Plaintiff's
claim is that because she was entitled to FMLA leave in June of 2000, the
absences for which she was fired could not lawfully be considered as
grounds for dismissal. Contrary to Defendants' contentions, Plaintiff's
is not a discrimination claim. As the Seventh Circuit has noted:
the question in a discrimination case is whether the
employer treated one employee worse than another on
account of something . . . that a statute makes
irrelevant. . . . A statute such as the FMLA,
however, creates substantive rights. A firm must
honor statutory entitlements; when one employee sues,
the firm may not defend by saying that it treated all
Diaz v. Fort Wayne Foundry Corp., 31 F.3d 711, 712 (7th Cir. 1997). The
issue that Plaintiff has raised is not whether the Board applied its
five-day absence rule fairly to all its employees or whether the Board's
reasons for firing Plaintiff were pretext for retaliating against her
because of her FMLA leave. Instead, the issue is simply whether Marrero
was entitled to FMLA leave in June 2000 and whether she took the
necessary steps to inform the Board that she intended to take that
leave. Defendants' emphasis on the "legitimate, non-discriminatory" basis
for Plaintiff's termination is therefore misplaced, as the Board's
subjective intent is irrelevant to this issue.
The Board's 2000 Employee Handbook*fn5 and the contract between the
Board and the Communication Workers of America, Plaintiff's union, state
that an employee must provide a doctor's certificate for any absences in
excess of five consecutive days. However, according to the Department of
Labor's FMLA regulations, where an employee seeks "unforeseeable" medical
leave, an employer who wishes to confirm the employee's condition must
first request a medical certification from the employee and then give the
employee at least 15 calendar days in which to comply.
29 C.F.R. § 825.305. Thus, while the Board is obviously free to
impose a five-day rule for the granting of non-FMLA sick leave, where the
FMLA is implicated, the Board must afford each employee at least fifteen
days in which to provide a requested certification.*fn6
Given that § 825.305 seems to address the same notice issue as does
the Board's sick leave policy, it is difficult to see how, as the Board
contends, their policy does not diminish the protections of the FMLA. It
seems clear that, at least from the perspective of an employee suffering
through an unexpected medical emergency, a policy that provides five
days, rather than fifteen, in which to determine that the condition
necessitates extended FMLA leave, to visit a physician and to provide
documentation of that visit and the condition, clearly "diminishes" the
rights provided by the FMLA.*fn7
The issue, then, is whether the Plaintiff was entitled to FMLA leave
for her condition and whether she complied with the provisions of the
FMLA regarding obtaining that leave. See 29 C.F.R. § 825.303;
Under the FMLA, a "serious health condition" is defined as:
(a) an illness, injury, impairment, or physical or
mental condition that involves:
(1) Inpatient care in a hospital, hospice, or
residential medical care facility including any
period of incapacity . . . or any subsequent
treatment in ...