United States District Court, D. New Jersey, Camden Vicinage
May 4, 2005.
LINDA M. HOFFMAN, Plaintiff,
VERIZON NEW JERSEY INC., et al., Defendants.
The opinion of the court was delivered by: ROBERT KUGLER, Magistrate Judge
In this civil action, plaintiff Linda M. Hoffman sues
defendants Verizon New Jersey Inc. ("Verizon") and Verizon
Services Corp. under the Family and Medical Leave Act of 1993
("FMLA"), the New Jersey Family Leave Act ("NJFLA"), and the New
Jersey Law Against Discrimination ("NJLAD"). The complaint
alleges that Verizon violated the aforementioned statutes by
refusing to treat two of Hoffman's absences from work as "medical
leave," disciplining Hoffman for the absences, and retaliating
against her when she hired an attorney. This matter comes before
the Court upon (1) Verizon's motion to dismiss Hoffman's
substantive claims on grounds of (a) mootness and (b) failure to
state a claim upon which relief can be granted, and (2) Hoffman's cross-motion for attorney's fees. For the reasons expressed
below, Verizon's motion to dismiss will be granted and Hoffman's
cross-motion for attorney's fees will be denied.
I. FACTUAL BACKGROUND
At all times relevant to this case, Hoffman was employed by
Verizon New Jersey, Inc. as a facilities technician. She was
absent from work on two relevant occasions. During her first
absence November 7-12, 2003 Hoffman had the flu. During
her second absence March 25-26, 2004 she was caring for
her sick daughter.
Regarding the November 2003 absence, Hoffman originally
submitted an FMLA certification form that referred to her first
day of absence as being October 29, 2003. (Hoffman had also been
absent from work from October 29, 2003 to November 1, 2003, again
with the flu, and was accorded FMLA leave for that period.)
Verizon initially denied this request for medical leave because
it was unclear that Hoffman's certification form also related to
the November 7-12 absence.
Regarding the March 2004 absence, Hoffman originally submitted
an FMLA certification form in which her daughter's physician
stated that the daughter had been incapacitated for two days.
However, FMLA regulations provided that Hoffman was not eligible
for medical leave unless her daughter's incapacity had lasted three consecutive days or more. See 29 C.F.R. § 825.114.
After its Physician Advisor called the daughter's doctor on April
20, 2004 "to confirm the contents of the form," and after the
doctor confirmed that the incapacity had lasted two days, Verizon
denied Hoffman's request for medical leave as to the March 2004
Because Hoffman's November 2003 and March 2004 absences were
not originally approved as FMLA leave, those absences were
treated by Verizon as "chargeable" under Verizon's attendance
policy and guidelines. Those guidelines provided for five
disciplinary "steps" upon which an employee could be placed,
depending on that employee's number of chargeable absences. With
two chargeable absences, Hoffman was placed on Step 2 and
suspended from May 24, 2004 until June 4, 2004.
On May 11, 2004, Hoffman's attorney wrote to Verizon's Absence
Reporting Center ("ARC"), requesting reconsideration of the
denials of medical leave. Lynne A. Sousa, a member of Verizon's
Legal Department, received the letter on May 20, 2004. On June
30, 2004, Sousa informed Hoffman's attorney that the information
submitted by Hoffman regarding her November 2003 absence had been
overlooked, that Verizon's decision regarding that absence would
be reversed, and that the absence would be treated as FMLA leave.
Consequently, Hoffman was moved to Step 1 and, on July 30, 2004,
paid for the time she was suspended. Hoffman did not communicate further with Verizon following her
May 11, 2004 letter. Rather, she filed her Complaint, along with
a proposed Order to Show Cause, in the Superior Court of New
Jersey, Law Division, Burlington County on July 7, 2004. In a
cover letter accompanying the proposed order, Hoffman's attorney
acknowledged that Sousa's June 30, 2004 letter "apparently moots
certain factual issues raised in this litigation."
Verizon removed the action to this Court on July 26, 2004.
On July 28, 2004, Verizon sent Hoffman an FMLA certification
package "to permit her a second opportunity to provide a
correctly completed certification form" as to her March 2004
absence. Hoffman submitted to Verizon a second FMLA certification
form, dated August 13, 2004, in which her daughter's doctor
clarified that the daughter's March 2004 incapacity had lasted
for eight days, not two. On September 10, 2004, the ARC informed
Hoffman that her request for FMLA leave for her March 2004
absence had been approved. Consequently, Hoffman was removed from
Step 1, and all remaining disciplinary action against her,
i.e., a disciplinary letter in lieu of a five-day suspension,
reversed. II. ANALYSIS
"Article III's `case or controversy' requirement prevents
federal courts from deciding cases that are moot."*fn1
Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 698 (3d Cir.
1996). "If developments occur during the course of adjudication
that eliminate a plaintiff's personal stake in the outcome of a
suit or prevent a court from being able to grant the requested
relief, the case must be dismissed as moot." Blanciak,
77 F.3d at 698-99.
Having presented evidence that it has already reversed all
disciplinary action taken against Hoffman, Verizon argues that
this action should be dismissed as moot. Hoffman, whose brief
does not oppose Verizon's motion to dismiss, presents no evidence
to the contrary; rather, Hoffman acknowledges that a
determination with respect to attorney fees "will resolve this
litigation in entirety." Because Hoffman thus admits that her
"personal stake" in the outcome of this suit has been eliminated as to her claims for declaratory judgment, equitable relief, and
compensatory and punitive damages, those claims will be dismissed
as moot. Thus, the sole remaining issue in this case is Hoffman's
claim for attorney's fees under the FMLA and/or the
B. Attorney Fees and Legal Costs
The NJFLA provides that the court "may" award attorney's fees
to a "prevailing party." N.J.S.A. § 34:11B-12. There appear to be
no New Jersey cases interpreting the meaning of this particular
provision. This Court will, therefore, look to the New Jersey
courts' interpretations of other "prevailing party" fee-shifting
statutes. Verizon argues that in order to be a "prevailing party" under
New Jersey law, a plaintiff must obtain "an enforceable judgment
against the defendant, or comparable relief through a settlement
or consent decree." There is New Jersey law to support this
proposition. See Tarr v. Ciasulli, 181 N.J. 70, 85-87 (2004)
(providing dicta "for purposes of completeness and guidance in
future cases"); Davidson v. Roselle Park Soccer Federation,
304 N.J. Super. 352, 357 (Ch. Div. 1996). Under this standard,
Hoffman is not entitled to an attorney's fee under the NJFLA
because she obtained neither an enforceable judgment nor
comparable relief through settlement or consent decree.
Hoffman responds by citing various cases in which a plaintiff
was held to be a "prevailing party" because her lawsuit acted as
a "catalyst" for a desired change in the defendant's behavior.
Cf. Ashley v. Atl. Richfield Co., 794 F.2d 128 (3d Cir.
1986); Institutionalized Juveniles v. Sec'y of Pub. Welfare,
758 F.2d 897 (3d Cir. 1985); Singer v. New Jersey, 95 N.J. 487
(1984); Warrington v. Village Supermarket, Inc.,
328 N.J. Super. 410 (App.Div. 2000); N.J. Citizen Action v. Riviera
Motel Corp., 296 N.J. Super. 402 (App.Div. 1997); H.I.P. v. K.
Hovanian at Mahwah VI, Inc., 291 N.J. Super. 144 (Law Div.
1996). However, in each of these cases, the plaintiff had either
obtained an enforceable judgment against the defendant, or the
parties had entered into a consent decree and/or settlement.
Thus, none of these cases stands for the proposition that a plaintiff may be a
"prevailing party" absent some change in the legal relationship
between the parties. For this reason, and because Hoffman has
obtained neither an enforceable judgment against Verizon nor
comparable relief through settlement or consent decree, Hoffman's
motion for attorney's fees under the NJFLA will be denied.
The court in an FMLA action "shall" award a reasonable
attorney's fee and other costs "in addition to any judgment
awarded to the plaintiff." 29 U.S.C. § 2617(a)(3). Thus, the FMLA
does not provide for an attorney's fee unless the plaintiff wins
a "judgment." Cf. Buckhannon Bd. & Care Home, Inc. v. W. Va.
Dep't of Health & Human Res., 532 U.S. 598, 629 (2001)
(Ginsburg, J., dissenting) (contrasting "prevailing party"
language of fee-shifting provisions in some federal statutes with
"prescriptions that so tightly bind fees to judgments as to
exclude the application of a catalyst concept"). Because there
has been no judgment entered in this case, Hoffman is not
entitled to an attorney's fee under the FMLA.
Hoffman's brief ignores the distinction between the language of
this attorney's fee provision and the one in the NJFLA, arguing
that the FMLA mandates an award of attorney's fees to a
"prevailing party." Even if this were the case, though, Hoffman
would still not be entitled to an attorney's fee. In Buckhannon, the Supreme Court held that the term "prevailing
party" does not include "a party that has failed to secure a
judgment on the merits or a court-ordered consent decree, but has
nonetheless achieved the desired result because the lawsuit
brought about a voluntary change in the defendant's conduct."
See Buckhannon, 532 U.S. at 600. Rather, a party "prevails"
only where there is a "material alteration of the legal
relationship of the parties." See id. at 604 (emphasis
added). Though this holding specifically applied only to the
fee-shifting provisions of the Fair Housing Amendments Act and
the Americans with Disabilities Act, the Buckhannon Court
suggested that its ruling would apply to other federal
"prevailing party" fee-shifting provisions. See id. at 603 n.
4 ("We have interpreted these fee-shifting provisions
consistently, and so approach the nearly identical provisions at
issue here.") (citation omitted); see also John T. ex rel.
Paul T. v. Del. County Intermediate Unit, 318 F.3d 545, 556 (3d
Cir. 2003) (holding that Buckhannon applies to "prevailing
party" fee-shifting provision of IDEA). Because there has been no
material alteration of the legal relationship of the parties to
this case, Hoffman has not shown that she is entitled to an
attorney's fee even under her erroneous interpretation of the
3. Hoffman's Other Arguments
Because it is clear under federal and New Jersey law that Hoffman is not entitled to an attorney's fee under either
the FMLA or the NJFLA, Hoffman's "public policy" argument is
unavailing. Her "equitable estoppel" argument is unconvincing
because Hoffman's failure to obtain an enforceable judgment or
comparable relief through settlement or consent decree is
unrelated to whether Verizon should have responded earlier than
June 30, 2004 to her lawyer's May 11, 2004 letter.
For the reasons expressed above, Verizon's motion to dismiss
will be granted and Hoffman's cross-motion for attorney's fees
and costs will be denied. The accompanying Order shall issue