On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-3549-99.
Before Judges Cuff, Axelrad and Winkelstein.*fn1
The opinion of the court was delivered by: Winkelstein, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff Regina Hampton filed a complaint in this employment law case claiming her former employer, defendant Armand Corporation, wrongfully terminated her employment. She claims defendant retaliated against her for taking medical leave, thus violating the public policy which underlies the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C.A. §§ 2601 to 2654.
Plaintiff asserts that even though she did not have a viable claim under the FMLA because she was employed by defendant for less than twelve months, the FMLA nevertheless provides a clear mandate of public policy so as to support a wrongful discharge claim pursuant to Pierce v. Ortho Pharm. Corp., 84 N.J. 58 (1980). The novel question presented is whether the FMLA establishes a public policy of protecting employees whose employment has lasted less than one year against discharge for taking time off for medical reasons. In dismissing plaintiff's complaint, Judge Freeman concluded that because plaintiff was not entitled to protection under the FMLA by reason of the fact that she was employed by defendant for less than twelve months, see 29 U.S.C.A. § 2611(2)(A)(i), she could not utilize the FMLA as a source of public policy to support a wrongful discharge claim. We agree and affirm.
Because plaintiff's complaint was dismissed on summary judgment, we view the facts in a light most favorable to her. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
Defendant hired plaintiff on March 16, 1998, to serve as the executive assistant to defendant's president, Barbara Armand (Armand). Plaintiff was an at-will employee. Her duties included answering and screening phone calls, making Armand's appointments, filing, and typing correspondence and other documents. While plaintiff claims she performed all of her duties in a professional and competent manner, Armand asserts that plaintiff had difficulty with typing tasks.
On November 30, 1998, Armand sent plaintiff an interoffice memorandum in which she complained that plaintiff was unable to work a forty-hour week, and suggested that plaintiff schedule her doctors' appointments for the evenings, after work. Armand also criticized plaintiff for discrepancies on her timesheets. Armand threatened that"another incident of a similar nature [would] result in [plaintiff's] immediate termination." Plaintiff signed and dated the letter on December 1, 1998, on a line directly under a statement that said,"[p]lease sign below that you have read the above statements and understand that you will be terminated if this conduct continues."
According to Armand's deposition testimony, on December 17, 1998, plaintiff told her that she was going to have gallbladder surgery the next day and would need time off. What she understood from the conversation was that plaintiff would return to work either the afternoon of the surgery or the following day. Conversely, plaintiff testified that on December 11, 1998, the day after she learned she would need surgery, she told Armand that after the surgery she would be out of work for siX weeks.
When plaintiff returned to work on January 11, 1999, Armand told her that she had been demoted. Armand"tells me that she's demoting me because I haven't been there, I'm not reliable, she's going to give Angela [Ashley, defendant's office manager] my job effective that day...." Armand told plaintiff that she was switching plaintiff's position with Ashley's, who had started serving as Armand's executive assistant about a week after plaintiff left for surgery. Plaintiff's salary did not change as a result of the demotion.
Soon after plaintiff took over the officer manager position, most of her job duties were eliminated or given to others. She took additional time off from January 21, 1999 to January 28, 1999, because she was sick again as a result of her gallbladder surgery. On February 25, 1999, plaintiff was discharged. She claims she was fired because she missed work due to her illness and surgery. Armand claims plaintiff was terminated, along with other employees, because the business was having financial difficulties.
After being terminated, plaintiff filed suit against defendant in state court, alleging she was wrongfully discharged in retaliation for taking medical leave. Armand filed a notice of removal to the United States District Court, where Judge Simandle dismissed plaintiff's FMLA claim because she had not been an employee of defendant for one year prior to her termination. See 29 U.S.C.A. § 2611(2)(A)(i). The judge also remanded the case to state court to resolve plaintiff's remaining state law claim, that she was terminated in violation of public policy.
New Jersey recognizes a claim for wrongful termination of an at-will employee when the discharge is contrary to a clear mandate of public policy. See Pierce, supra, 84 N.J. at 72. An employee can prove a wrongful discharge claim by"show[ing] that the retaliation is based on the employee's exercise of certain established rights, violating a clear mandate of public policy." MacDougall v. Weichert, 144 N.J. 380, 393 (1996). Sources of public policy include legislation; administrative rules, regulations or decisions; and judicial decisions. Pierce, supra, 84 N.J. at 72. Whether a plaintiff has established the existence of a clear mandate of public policy is an issue of law. Mehlman v. Mobil Oil Corp., 153 N.J. 163, 187 (1998)."A salutary limiting principle is that the offensive activity must pose a threat of public harm, not merely private harm or harm only to the aggrieved employee." Id. at 188. The public policy must be"clearly identified and firmly grounded.... A vague, controversial, unsettled, and otherwise problematic ...