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October 26, 2001


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


This matter comes before the Court on Defendant CB Richard Ellis' ("CBRE") motion to dismiss for failure to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6). CBRE sets forth three interdependent grounds upon which this Court should dismiss Plaintiff Margot Nusbaum's ("Nusbaum") complaint First, CBRE asserts that the regulations upon which Nusbaum bases her complaint are invalid because the regulations are an improper alteration of the Family and Medical Leave Act 29 U.S.C. § 2601-2654 (1999). Next, CBRE asserts that Nusbaum fails to state a cognizable claim, pursuant to the New Jersey Law Against Discrimination ("NJLAD"), for failure to provide a reasonable accommodation. Finally, CBRE asserts that Nusbaum does not assert a cognizable claim of retaliation because she was no longer entitled to leave under the FMLA. CBRE's two latter claims presume the validity of the initial attack upon the regulations promulgated in support of the FMLA. For the reasons set forth below, this Court denies CRBE's motion to dismiss Nusbaum's complaint.


Nusbaum commenced employment as a secretary/word processor for CBRE at its Iselin office on or about March 18, 1996.*fn2 Prior to March 18, 1996, Nusbaum served as a temporary employee for CBRE for. approximately five months. (Compl. ¶ 3.) In or about December of 1997, Nusbaum learned that she would require surgery because of a herniated disk*fn3 condition. It was at or about this same time that Nusbaum first notified Madeline Gallagher ("Gallagher"), the Administrative Manager for and agent of CBRE, about her need for this surgery. In mid-January 1998, Nusbaum advised Gallagher that the surgery was scheduled for March 17, 1998. At that time, Nusbaum requested medical leave and a copy of the Medical Leave of Absence Policy referred to in the "Personnel Policies" manual distributed by CBRE to its employees.*fn4 (Compl. ¶¶ 5-6.)

Nusbaum was not given the Medical Leave of Absence Policy when she requested it from Gallagher in mid-January 1998. In February, Nusbaum twice telephoned CBRE's Human Resources Department in California. The Human Resources Department advised Nusbaum that she had to obtain the "local" Medical Leave of Absence Policy from the office manager where she worked. Despite several requests, Nusbaum was never given this policy. Gallagher disregarded Nusbaum's request for medical leave until March 6, 1998. On March 6, Gallagher told Nusbaum that CBRE required a letter of explanation from Nusbaum's doctor.

Nusbaum telephoned the doctor's office and spoke with his secretary. The secretary advised Nusbaum that her employer must submit the request in writing. When Nusbaum advised Gallagher that a written request from CBRE was needed, Gallagher refused to so request. Nusbaum proceeded to type a letter for Gallagher to sign, but Gallagher tossed that letter in the trash in front of Nusbaum and requested Nusbaum's doctor's phone number. Nusbaum gave Gallagher the number in an effort to obtain her medical leave, but later that day, Gallagher told Nusbaum that she was awaiting the doctor's return call and would not process Nusbaum's request until she spoke to him. (Compl. ¶¶ 7-8, 12.)

Nusbaum immediately protested. Gallagher responded by advising Nusbaum that if the doctor did not return her call, she would not process the paperwork. Nusbaum then told Gallagher that she intended to complain to the Department of Labor because of Gallagher's refusal to process her leave information. When it became clear that Gallagher would not cooperate, Nusbaum telephoned the Woodbridge office of the Department of Labor regarding Gallagher's conduct. A few days before the surgery, Gallagher relented and stated that she would accept whatever Nusbaum's doctor submitted on Nusbaum's behalf. Gallagher asked that Nusbaum pick up a doctor's note and mail it to her. Nusbaum did so on March 16, 1998. (Compl. ¶¶ 9-11.)

After Nusbaum's surgery, she telephoned both CBRE's Iselin and California offices several times in an effort to obtain copies of her medical leave papers, the Medical Leave of Absence Policy, and to inquire about the processing of her State disability benefits. Nusbaum spoke with several employees at the California Human resources office about her concerns. On or about June 25, 1998, Nusbaum spoke with a CBRE California Human Resources staff member who assured Nusbaum that Gallagher "had taken care of" the medical leave paperwork relating to Nusbaum's position. However, neither California nor Iselin would supply Nusbaum with a copy of the paperwork. (Compl. ¶¶ 13-14.)

Nusbaum's ability to file a state disability claim was hindered by CBRE until Nusbaum contacted the State Disability Office. The State Disability Office permitted Nusbaum to file her claim via phone and fax from her home. Nusbaum's next contact with Gallagher was on June 25, 1998, when Gallagher requested that Nusbaum fax CBRE a medical update from her doctor. Nusbaum explained to Gallagher that her next doctor's appointment was not until July 6, but Gallagher insisted that the update was urgent because the long July 4th weekend was approaching. Nusbaum's doctor wrote a note that Nusbaum faxed to Gallagher on July 1, 1998. This note indicated that Nusbaum would have to remain out of work for four more weeks, and would again be evaluated on July 31, 1998. (Compl. ¶¶ 15-17.)

On July 11, 1998, Nusbaum received an overnight letter from CBRE terminating her employment. On July 14, 1998, Nusbaum telephoned Gallagher. Gallagher advised Nusbaum that she did not file a written medical leave of absence form for Nusbaum. At this time, Nusbaum requested the Medical Leave of Absence Policy ("the Policy"). Gallagher faxed Nusbaum a copy of the Policy to her home on July 14, 1998. Nusbaum never saw the document until Gallagher faxed a copy to Nusbaum's home on July 14, 1998. (Compl. ¶¶ 18-20.)

The Policy differed from the general language in the "Personnel Policies" manual in that it specifically referred to leave pursuant to the FMLA. The Policy indicated that eligible employees are able to take a total of twelve weeks of medical leave. However, the Policy also stated that "the profit center may extend a medical leave . . . up to a maximum period of absence of 39 weeks." (Compl. ¶ 21.)

Nusbaum alleges three counts against CBRE in her complaint In count 1, Nusbaum alleges that CBRE failed to designate Nusbaum's leave as Family Medical Leave Act ("FMLA") leave, even though it qualified as such a leave, in violation of 29 C.F.R. § 825.208 (1999). Nusbaum alleges that pursuant to regulations implementing the FMLA, she was entitled to twelve weeks of FMLA leave on the day she was terminated because CBRE never designated her leave as FMLA leave. Therefore, Nusbaum alleges, any leave taken did not count against her FMLA entitlement and she was unlawfully terminated. In count 2, Nusbaum alleges that CBRE's unlawful termination of her employment was grounded upon discrimination based on her handicap, in violation of the New Jersey Law Against Discrimination ("NJLAD"), N.J.STAT.ANN. § 10:5-1 through 42 (1993 & Supp. 2001). In count three, Nusbaum alleges that as a result of CBRE's actions, including — but not limited to — its failure to notify her of her FMLA rights, and her subsequent termination, CBRE unlawfully interfered with, restrained, and denied the exercise of, and/or Nusbaum's attempt to exercise, rights provided by the FMLA, in violation of the Act 29 U.S.C. § 2615 (a)(1).

CBRE alleges that count one should be dismissed because Nusbaum does not state a claim under the FMLA for "failure to designate leave." CBRE argues that the regulations, promulgated pursuant to the FMLA, upon which Nusbaum relies, are invalid because they contradict the FMLA. CBRE argues that the FMLA allows only twelve weeks of leave, does not require employers to provide notice that a leave is FMLA leave, and that allowing unlimited leave upon the employer's failure to provide FMLA notice would contradict the purpose of the FMLA statute.

CBRE alleges that count two should be dismissed, as a matter of law, because Nusbaum does not state a claim for failure to provide a reasonable accommodation under the NJLAD. CBRE contends that this claim fails because employers are not obligated to provide indefinite medical leave as a reasonable accommodation.

Lastly, CBRE alleges that count three should be dismissed because Nusbaum does not state a claim for either interference with FMLA rights or retaliatory discharge. CBRE argues that there is no cause of action for interference with FMLA rights if Nusbaum received all of the leave to which she was entitled. CBRE also argues that Nusbaum does not establish a prima facie case of retaliatory discharge under the FMLA because she was no longer protected by the FMLA when she was terminated. CBRE argues that one of the prima facie elements for FMLA retaliation is that Nusbaum must avail herself of a protected right Therefore, CBRE argues, since Nusbaum had over twelve weeks of leave, it was no longer a protected right.

Nusbaum asserts that she was unlawfully deprived of her twelve weeks of family leave under the applicable regulations because she never received the legally required notice from CBRE regarding FMLA leave. Nusbaum asserts that because of CBRE's failure to designate her leave as FMLA leave, she was fired at a tim ...

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