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Shtab v. Greate Bay Hotel and Casino

November 13, 2001


The opinion of the court was delivered by: Hon. Stephen M. Orlofsky



ORLOFSKY, District Judge

In 1993 Congress enacted the Family and Medical Leave Act to address the serious strains placed on American workers by the ever- increasing demands of the workplace. The Act sought to address problems arising from "the lack of employment policies to accommodate working parents [which] force individuals to choose between job security and parenting" and "inadequate job security for employees who have serious health conditions that prevent them from working for temporary periods." 29 U.S.C. §§ 2601 (a)(3),(4)(2000)("FMLA"). The FMLA envisions a cooperative dialogue between employers and employees through which a balance between their competing needs can be struck. This case, like most litigation arising under the FMLA, results from a breakdown of that hoped-for cooperative dialogue. It presents several questions yet to be addressed by the courts of this Circuit, namely: (1) whether a previous adverse arbitration decision precludes an aggrieved employee from subsequently pursuing his FMLA rights in a federal court; (2) to what extent is an employer obligated to allow an employee to cure a defective FMLA leave application; and, (3) whether a request that an employee modify his leave request in order to accommodate the employer's needs rises to the level of unlawful interference with an employee's rights under the Act.

On May 3, 2000, Plaintiff, Ira Shtab ("Shtab"), filed a Complaint alleging that his employer, The Greate Bay Hotel and Casino, Inc. t/a Sands Hotel & Casino, ("The Sands"), violated provisions of the Family and Medical Leave Act, 29 U.S.C. §§ 2601 et seq. Count One of Shtab's Complaint seeks damages under section 107 of the FMLA, 29 U.S.C. § 2617, for what he alleges was the Sands's unlawful discharge of him in violation of the FMLA. Count Two of Shtab's Complaint seeks damages under section 105(a)(1) of the FMLA, 29 U.S.C. § 2615(a)(1), for what he alleges was the Sands's unlawful interference with his rights under the FMLA.

Shtab has moved for summary judgment, pursuant to Fed. R. Civ. P. 56 *fn1 , arguing that: (1) the Sands violated his rights under the FMLA by denying his leave application based on discrepancies in his doctor's certification without first giving him an opportunity to cure those discrepancies; (2) the Sands further violated Shtab's rights under the FMLA by failing to notify him of the consequences of the mistakes in his medical certification; and, (3) the Sands illegally interfered with his rights under the FMLA by attempting to persuade him to delay his family leave. Shtab additionally argues, in response to the Sands's Cross- Motion for Summary Judgment on Count One of the Complaint, that the motion is premature because discovery on the wrongful discharge claim in Count One is not yet complete.

The Sands has filed a Cross-Motion for Summary Judgment arguing that: (1) Shtab's claims are precluded by a prior adjudication of identical issues in a labor arbitration; (2) Shtab's medical certification was complete, therefore the Sands was under no obligation to give him an opportunity to cure its defects; and,(3) the Sands's request that Shtab delay his FMLA leave until after the Memorial Day weekend does not rise to the level of unlawful "interference." The Sands argues, in the alternative, that if the Court finds that genuine issues of material fact warrant a denial of its Cross-Motion for Summary Judgment, then it should likewise deny Shtab's Motion for Summary Judgment because of inconsistencies in Shtab's factual arguments and legal theories.

For the reasons stated below, the Court shall deny Shtab's Motion for Summary Judgment and the Sands's Cross-Motion for Summary Judgment in all respects.


Ira Shtab was employed as a cook by the Sands from July, 1993 until February, 1998, when he was laid off because the Paradise Café Restaurant at which he worked was closed. See Pl.'s Stmt. of Material Facts at ¶¶ 3, 4; Def.'s Counter-Stmt. of Material Facts at ¶ 1. In April, 1998, while he was laid-off, Shtab's three-and-a-half year old son, Matthew Shtab, was diagnosed with autism and Shtab's wife became ill, making Shtab the primary care-giver for his son, who requires constant supervision and care. Pl.'s Stmt. at ¶ 5.

In a letter dated May 15, 1998, the Sands issued a recall notice to Shtab, which requested a response from him within seven days. Pl.'s Stmt. at ¶ 6; Def.'s Counter-Stmt. at ¶ 2. There is disagreement as to when Shtab actually received the notice, see Pl.'s Stmt. at ¶ 7; Def.'s Counter-Stmt. at ¶ 2, however, both parties agree that, in response to the notice, Shtab called the Sands Human Resource Department on May 22, spoke to the Manager of Employee Relations, Amelia Gosbin ("Gosbin"), who informed him that because he was scheduled to work on May 23, the Saturday of Memorial Day weekend, he must report to work to be processed immediately. Pl.'s Stmt. at ¶ 7; Def.'s Counter-Stmt. at ¶ 6. Upon reporting to the Human Resource Department late in the day of May 22, Shtab informed the Benefits Specialist in Charge of Family Leaves, Mary Jo Armond ("Armond"), that he was requesting family leave to begin immediately in order to care for his son. Pl.'s Stmt. at ¶ 8; Def.'s Counter-Stmt. at ¶ 7. Upon learning of Shtab's request, Gosbin asked Shtab to delay his leave until after the Memorial Day weekend; Shtab explained that he could not oblige her because he had no one to care for his son while he was at work. Pl.'s Stmt. at ¶ 9; Def.'s Counter-Stmt. at ¶ 8.

Armond gave Shtab a Leave of Absence Application form, a doctor's certification form, and the Sands's Employee Responsibilities for Leaves of Absence manual. Shtab completed the Application form, requesting leave to begin the next day, May 23, 1998, and to end June 23, 1998. He returned the form to Armond who advised him that because his leave request was not yet approved, he would have to call in to his department each day to inform the department of his absence. Pl.'s Stmt. at ¶¶ 10, 11; Def.'s Counter-Stmt. at ¶¶ 9, 10. The Employees Responsibilities manual outlined the procedures for requesting a leave of absence, specified the need for medical certification, and warned that "[f]ailure to comply with procedures may be considered an unauthorized leave of absence and may result in disciplinary action up to and including termination." The Leave of Absence Application contained similar information and warnings. Def.'s Counter-Stmt. at ¶¶ 10-12.

Shtab did not report to work on May 23, 24, or 25, but called in to his department each day, as instructed by Armond. Pl.'s Stmt. at ¶ 13; Def.'s Counter-Stmt. at ¶ 17. Shtab gave the medical certification from Dr. David Burgess, his son's physician, to Amador on May 28. Pl.'s Stmt. at ¶ 14; Def.'s Counter-Stmt. at ¶¶ 18, 19. The certification provided for intermittent leave to begin on May 28 and continue until September, 1998 and noted that additional evaluations were possible. Def.'s Counter-Stmt. at ¶ 20.

Because the medical certification did not explain Shtab's absences over the Memorial Day weekend, the Sands denied Shtab's request for leave and terminated him, effective June 3. Pl.'s Stmt. at ¶ 14, 15; Def.'s Counter-Stmt. at ¶¶ 21-23. Shtab maintains that the Sands never informed him of the precise nature of the discrepancies between the certification and his leave application. Pl.'s Stmt. at ¶ 17. Shtab was not given an opportunity to correct the certification's problems. Pl.'s Stmt. at ¶ 17; Def.'s Counter-Stmt. at ¶ 22.

Following his termination, Shtab submitted additional medical certifications from Dr. Burgess. The parties disagree about the number of certifications which were submitted. The Sands maintains that Shtab submitted three letters which contained contradictory information, Def.'s Counter-Stmt. at ¶ 24; Shtab contends that on June 16, 1998, his union representative faxed the Sands a letter from Dr. Burgess which recommended continuous leave from May 23 to September 14, 1998, Pl.'s Stmt. at ¶ 22. The Sands refused to reconsider Shtab's termination based on the new information contained in the subsequent certification(s). Pl.'s Stmt. at ¶ 23.

Shtab filed four grievances with his Union, which alleged: (1) Improper termination (Grievance No. 98-147); (2) Improper recall from lay-off (Grievance No. 98-148); (3) Improper denial of FMLA leave request (Grievance No. 98-149); and, (4) Improper denial of FMLA and untimely notice (Grievance No. 98-150). Def.'s Counter-Stmt. at ¶ 26. Those grievances proceeded to binding arbitration on June 26, 2000, before Arbitrator Ralph Colflesh, Esq., who determined that Shtab's termination was proper. Def.'s Counter-Stmt. at ¶¶ 27-32. Shtab maintains that his FMLA grievances were never arbitrated and that the subject of the arbitration was purely contractual in nature. Pl.'s Counter-Statement of Material Facts at ¶ 1.

I have jurisdiction over Shtab's claims under the FMLA, pursuant to 28 U.S.C. § 1331.


"On a motion for summary judgment, the court must determine whether the evidence shows that `there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Abraham v. Raso, 183 F.3d 279, 287 (3d Cir. 1999) (citing Fed. R. Civ. P. 56(c)). "Any factual dispute invoked by the nonmoving party to resist summary judgment must be both material in the sense of bearing on an essential element of the plaintiff's claim and genuine in the sense that a reasonable jury could find in favor of the nonmoving party." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-251 (1986)). "In opposing summary judgment, a party `must do more than simply show that there is some metaphysical doubt as to material facts,' Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), but a court should not prevent a case from reaching a jury simply because the court favors one of several reasonable views of the evidence." Abraham, 183 F.3d at 287. "[T]he judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249; see also Abraham, 183 F.3d at 287. "Thus, while the nonmoving party must present enough evidence to demonstrate a dispute is genuine, all inferences in interpreting the evidence presented by the parties should be drawn in favor of the nonmoving party." Abraham, 183 F.3d at 287 (citing Boyle v. County of Allegheny Pa., 139 F.3d 386, 393 (3d Cir. 1998)). "Cases that turn crucially on the credibility of witnesses' testimony in particular should not be resolved on summary judgment." Id.

If the nonmoving party fails to oppose the motion by written objection, memorandum, affidavits and other evidence, the Court "will accept as true all material facts set forth by the moving party with appropriate record support." Anchorage Assocs. v. Virgin Islands Bd. of Tax Rev., 922 F.2d 168, 175 (3d Cir. 1990) (quoting Jaroma v. Massey, 873 F.2d 17, 21 (1st Cir. 1989)). Even where the non-moving party has failed to establish a triable issue of fact, summary judgment will not be granted unless "appropriate." Fed. R. Civ. P. 56(e); see Anchorage Assocs., 922 F.2d at 175. Rule 56(e) of the Federal Rules of Civil Procedure requires that the case be ...

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