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April 20, 2005.


The opinion of the court was delivered by: JOSEPH IRENAS, District Judge


Presently before this Court is Defendant's motion for summary judgement and Plaintiff's cross-motion for partial summary judgement. Defendant argues that Plaintiff cannot state a claim under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq., and that Plaintiff has no cause of action under state law. Defendant's motion will be granted. Plaintiff's federal claims under the FMLA will be dismissed with prejudice. (Counts I-III, 2d Am. Compl.) Since this Court will no longer have jurisdiction over the Complaint, Plaintiff's state law claims*fn1 will be dismissed without prejudice, and may be refiled in state court. (Counts IV-V, 2d Am. Compl.)


  Plaintiff Lorraine Hill ("Plaintiff") was employed by Defendant Underwood Memorial Hospital ("UMH") in its Mobile Intensive Care Unit ("MICU") from April, 1990, through June 13, 2001.*fn2 Key to the instant motions is the timing and length of various leaves of absences requested and taken by Plaintiff.

  Plaintiff took a leave of absence from December 16, 1999, through January 1, 2000. (Pl. Stmt. of Undisputed Facts, at ¶ 6.) UMH designated that leave as FMLA leave.*fn3 By letter dated January 19, 2000, Plaintiff's supervisor, Paul Lambrecht ("Lambrecht"), Director of the MICU, informed Plaintiff that her time off from work could be counted towards available FMLA leave. Plaintiff disputes the designation as FMLA leave, but does not dispute that she in fact took seventeen days of "medical leave." (Id.)

  In early August, 2000, Plaintiff requested an intermittent leave due to emotional stress, stemming from the death of her parents. Her request also stated that she needed the time to move into her deceased parents' home. (Compl., ¶ 9.) This request was denied in writing by Lambrecht on August 8, 2000. (Id. at ¶ 10.) Lambrecht cited staffing shortages and difficulty covering shifts as the basis for his denial.

  On or about August 16, 2000, Plaintiff submitted a note from her family doctor, Dr. Reutter, stating that she would not be able to return to work until August 23, 2000. (Pl. Proposed Undisputed Facts, at ¶ 26.) Lambrecht, by letter dated August 18, 2000, requested that Plaintiff have her doctor complete a Certificate of Healthcare Provider, so that UMH could determine if Plaintiff was eligible for leave under the FMLA.

  Plaintiff was diagnosed by her doctor with a temporarily disabling Epstein Barr virus. (Compl. at ¶ 11.) The FMLA allows employers to obtain a second medical opinion for employees requesting leave, at the employer's expense. Invoking this FMLA provision, UMH made numerous attempts to arrange a visit for Plaintiff with a UMH-selected doctor. Finally, after multiple missed and canceled appointments, on November, 3, 2000, Plaintiff saw the UMH-selected physician, Dr. Brian Chernoff. (Id. at ¶ 13.) Dr. Chernoff submitted an opinion to Lambrecht. Dr. Chernoff's findings basically supported the diagnosis of Epstein Bar virus and Lambrecht approved (after the fact) Plaintiff's FMLA leave. (Pl. Proposed Undisputed Facts, at ¶ 31-32.)

  By letter dated November 14, 2000, Lambrecht advised Plaintiff that she must return to work by November 21, 2000.*fn4 (Compl. at ¶ 14.) Plaintiff complied and returned to work as a paramedic on November 21, 2000. (Id. at ¶ 15.) At that time, she had taken 98 days of FMLA leave. (Pl. Stmt. of Undisputed Facts, at ¶ 7.)

  On May 18, 2001, Plaintiff was treated by Dr. James Booner in the UMH Emergency Room for an ulcer on the heel of her left foot. (Compl. at ¶ 16.) That same day, Plaintiff went on leave due to her medical problem. (Pl. Stmt. of Undisputed Facts, at ¶ 8.) Dr. Bonner referred Plaintiff to orthopedic specialists, Drs. Hecht and Chao, to treat the ulcer. (Compl. at ¶ 17.) After consulting Dr. Hecht, Plaintiff delivered to Lambrecht sometime in June, 2001, a letter from Dr. Hecht requesting that she be placed on medical leave until approximately September 5, 2001.*fn5 (Id. at ¶ 18.)

  On or about June 13, 2001, Plaintiff's employment was terminated. Lambrecht informed her that she could reapply for employment at UMH when she was able to return to work. (Compl. at ¶ 19.)

  To treat the ulcer on her left foot, Plaintiff underwent a skin graft surgical procedure on December 10, 2001. (Id. at ¶ 20.) At some point in late January or early February, Plaintiff felt that she was ready to return to work.*fn6 She applied for positions as a paramedic and in the secretarial/clerical pool. (Id. at ¶ 22.) Plaintiff did not receive a response from UMH and subsequently re-faxed her application to UMH on February 7, 2002. (Id.) At the end of March, 2002, Plaintiff received a letter from Lambrecht in which she was informed that her application for a paramedic position in the MICU was denied. She was also told that her application would be kept on file for other positions that may open in the future. (Id. at ¶ 23.)

  On June 9, 2003, Plaintiff filed her initial complaint claiming: (1) several violations of the FMLA; (2) violations of the New Jersey Law Against Discrimination ("NJLAD"); (3) violation of an implied contract by UMH; and (4) violations of implied covenants of good faith and fair dealing associated with her implied contract.*fn7 On January 7, 2005, Defendant moved for summary judgment. Plaintiff filed her opposition ...

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