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October 4, 2001


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 20, 2001.


"[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).


Congress enacted the Family and Medical Leave Act of 1993 "to balance the demands of the workplace with the needs of families, to promote the stability and economic security of families, and to promote national interests in preserving family integrity." 29 U.S.C. § 2601(b)(1); 29 C.F.R. § 825.101. The Act entitles eligible employees to twelve unpaid workweeks of leave during "any 12-month period." 29 U.S.C. § 2612(a)(1). As it concerns this case, the Act provides leave for an employee suffering from a "serious health condition" that "makes the employee unable to perform the functions of [his or her] position," and entitles such employees to reinstatement upon their return. 29 U.S.C. § 2612 (a)(1)(D), 2614(a).

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 employees identically.
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.


Central to the purposes of the FMLA is that its provisions apply even where the entitlements created by the Act are in excess of those that an employer would be willing or able to provide on its own. 29 C.F.R. § 825.101; Victorelli v. Shadyside Hospital, 128 F.3d 184, 186 (3d Cir. 1997). To this end, the FMLA states that the rights it creates "shall not be diminished by any collective bargaining agreement or any employment benefit program or plan." 29 U.S.C. § 2652(b). Thus, the Camden County Board of Social Services' sick leave policy, and any collective bargaining agreements to which it is a party, must be considered invalid to the extent that they "diminish" the rights created by the FMLA. Simply put, where an employer's internal policies conflict with the provisions of the FMLA, the FMLA controls and an employee need only comply with the requirements of the Act to invoke its protections.

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; 825.305.

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 ...

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