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August 16, 2005.

LA-Z-BOY FURNITURE GALLERIES OF PARAMUS, INC., a corporation, LA-Z-BOY INCORPORATED, a corporation authorized to do business in the State of New Jersey and RENEE GARDNER, individually, LOU COX, individually and BOB KEARNS, individually, Defendants.

The opinion of the court was delivered by: DICKINSON DEBEVOISE, Senior District Judge



  Plaintiff, Edward Fishman ("Fishman") filed his Complaint against Defendants, La-Z-Boy Incorporated ("LZB"), La-Z-Boy Furniture Galleries of Paramus, Inc. ("LZB Paramus"), Renee Gardner ("Gardner"), Lou Cox ("Cox"), and Bob Kearns ("Kearns"), in the Superior Court of New Jersey, Bergen County, on December 31, 2003, alleging: (1) unlawful retaliation under the Family and Medical Leave Act, 29 U.S.C. § 2601 ("FMLA"), and the New Jersey Family Leave Act, N.J.S.A. 34:16-1 et seq. ("NJFLA"); (2) tortious interference with Fishman's relationship with his employer against Gardner; (3) defamation against Cox and Kearns; and (4) tortious interference with Fishman's relationship with his employer against Cox and Kearns. Defendants removed the matter pursuant to 28 U.S.C. §§ 1441, 1331, and 1367 to this court. On October 25, 2004, Fishman sent Defendants a Stipulation of Dismissal for Counts 2 and 4, which have been signed by Defendants and filed with the court. Additionally, the Stipulation of Dismissal removes Gardner from the case as a defendant. Before this court, Defendants move for summary judgment on Counts 1 and 3. As well, Fishman moves to Amend his Complaint and cross-moves for partial summary judgment against Defendants on the ground that they are estopped from arguing that the FMLA does not apply. The court will grant Defendants' motion for summary judgement on Counts 1 and 3 of Fishman's Complaint and Amended Complaint. Finally, the court will grant Fishman's motion to Amend the Complaint and will deny his cross-motion for partial summary judgment on estoppel.*fn1


  The following facts, except as noted, are undisputed. Defendant LZB is a Michigan corporation and the parent company of its subsidiary, LZB Paramus. LZB Paramus is also a Michigan corporation and a wholly owned subsidiary of LZB. LZB Paramus owns two stores, one located on Route 4 East in Paramus, New Jersey and the other located in Scarsdale, New York. LZB Paramus has never employed equal to or greater than 50 employees at either location or both locations combined. Co-defendant Kearns is a resident of New York and the former General Manager for LZB Paramus.*fn2 Co-defendant Cox is a resident of New Jersey and the Store Manager of LZB Paramus. Co-defendant Gardner is a resident of New Jersey and a Sales Associate in the LZB Paramus store. Plaintiff Fishman is a resident of New Jersey and is a former employee of LZB Paramus. Amend. Complt. Count 1 ¶ 1.

  In 2001, the LZB Paramus store opened with Kearns as the General Manager.*fn3 Fishman was hired as a Sales Associate in the LZB Paramus store and began employment on September 17, 2001. Pl. Dep. at 72:22-23; Pl. Facts ¶ 4. During his employment, Fishman satisfactorily performed his duties and was compensated through sales commissions. Amend Complt. Count 1 ¶ 2. Fishman worked approximately 45 hours per week with time off on Sunday and Monday so he could spend two days straight caring for his parents. Pl. Facts ¶¶ 11,12. Fishman contends that when he returned to work his time off was moved to Friday, instead of Monday, in an effort to punish him for taking family and medical leave. Pl. Facts at § 38.

  LZB Paramus has a strict policy against employees threatening other employees with violence. Fishman was aware of this policy and understood that a threat of violence towards another employee would result in termination. Pl. Dep. at 77:1-10; Id. at 65:18-66:9. In fact, on January 9, 2002, Fishman received a disciplinary warning for engaging in a heated argument with another Sales Associate, Dominique Cassagnol ("Cassagnol"). During the argument, Cassagnol threatened to punch Fishman in the face. When Kearns learned about the threat, he immediately terminated Cassagnol. For Fishman's part in the incident, he received a written disciplinary warning and verbal counseling from Kearns and Michael Gallo, the Sales Manager. Kearns informed Fishman that his behavior represented a "serious company violation," and that "[He] will be subject to the appropriate disciplinary action again up to including termination if this type of incident happens again." Cox Cert. Ex. A.

  On March 18, 2003, Fishman asked Kearns to grant him a leave of absence to care for his ill parents. Pl. Facts ¶¶ 14,15. Kearns granted Fishman the leave of absence and directed him to fill out forms in compliance with state and Federal medical and family leave laws. At the time, Kearns was unsure if LZB Paramus was required to provide its employees with family and medical leave pursuant to state and Federal statutes due to the company's small workforce.*fn4 Nonetheless, Kearns, without seeking legal advice, decided to grant unpaid leave pursuant to the NJFLA and the FMLA. Pl. Facts ¶ 15. On April 1, 2003, Fishman began his unpaid leave and was initially scheduled to return to work on June 1, 2003. Pl. Facts ¶ 15. However, on May 15, 2003, Fishman's father underwent major surgery prompting Fishman to request an extension of his leave for one month. Id. at 17. Accordingly, Fishman contacted Cox through a letter, followed by a telephone call. Id. at 19,20. During their telephone conversation, Cox granted the requested extension and asked to meet with Fishman at the end of June to discuss his return to work.*fn5 Id. At the June meeting, Cox and Fishman agreed that he would return to work on July 1st.*fn6 Id. at 20.

  Meanwhile, on May 13, 2003, Cox and Kearns hired Gardner as part of the store's ". . . plan of searching for additional sales personnel." (emphasis added). Fishman claims that Gardner was hired purely as a replacement for his position while he was on family leave. Pl. Facts ¶ 18. However, this contention does not reflect the undisputed facts. Throughout Fishman's absence, his name remained on the LZB Paramus sales roster in anticipation of his July 1st return. As well, LZB Paramus employed the same number of active salespersons on the day Fishman returned from leave as on the day he initially took his leave.*fn7 Moreover, Fishman is unable to figure out why Cox and Kearns would want to replace him. At Fishman's deposition, he explained: ". . . I haven't quite been able to figure it out (referring to why he would be replaced). But my feeling is that they felt — and someone told me this from the store — that they felt I wasn't coming back from my Leave of Absence. And they felt they wanted a replacement." Pl. Dep. at 79:23-080:3. Nevertheless, there is no evidence in the record that either Cox or Kearns affirmatively announced that they intended to replace Fishman.

  When Fishman returned to work on July 1st, he was upset and threatened by Gardner's unfriendly behavior. Pl. Facts ¶ 25. According to Fishman, he overheard that Gardner would take bets with other employees regarding whether or not he was wearing a hairpiece. Id. at 29. As the Defendants point out, while it may not have been dignified for Gardner to act in the manner in which she did, she was not lying about the hairpiece. Even Fishman, in his deposition testimony, admitted to wearing a hairpiece while working at LZB Paramus. Additionally, the record points out that Gardner prevented Fishman from using her desk, telephone, sales book or computer because she observed Fishman regularly picking his nose. Gardner Dep. at 57:18-24; Pl. Facts ¶¶ 26, 32. Defendants note that at least one other employee, Umile, witnessed Fishman's unhygienic habit. Umile Dep. at 118:18-21. Fishman claims that the active harassment perpetrated by Gardner toward him was implicitly condoned and supported by Cox and Kearns by their inaction in remedying the problem. Pl. Facts ¶ 37.

  The incident culminating in Fishman's termination occurred on August 5, 2003 when Fishman needed to check an order for a customer approximately 10 minutes before the store closed. Id. at 33. Fishman decided to use Gardner's desk and computer because the other computers in the store were already shutdown for the evening. Id. Fishman knew that Gardner did not want him or anyone else using her desk. In fact, Fishman testified that, "I was hoping she wouldn't see me." Pl. Dep. at 139:3. When Gardner saw Fishman at her desk, she approached him offering to look up the information that he needed, and took her price book and computer away from him. Pl. Facts ¶¶ 34,35. Then Fishman, who was "fed up," grabbed the price book from Gardner and flung it across her desk, calling her a vulgar name. Fishman testified:
"You know what I did, I grabbed her book because she grabbed it from me, I grabbed it back from her and I threw it across her desk and I said `You're being an asshole' and I walked away. That's what happened. That's what got me fired." Pl. Dep. at 139:10-14. (emphasis added).
  "Startled" by the incident, Gardner left the store without reporting what happened to her superiors because she ". . . didn't want to get anybody in trouble. And . . . was willing to let things go . . ." Gardner Dep. at 69:16-20, 71:17-20; Id. at 73:21-24.

  The next day, Fishman, still upset, "bitterly" complained to Cox about the incident. Pl. Facts ¶ 37. He informed Cox of the same verison of the facts to which he testified above. Pl. Dep. at 148:7-10. Cox then asked Gardner to explain what happened, and she related to him her similar version of the events.*fn8 Within two days of the incident, Cox also asked Umile, who was also working at the time of the incident if he knew what happened. According to Umile, he was in the kitchen at the time and did not see or hear any of the altercation between Fishman and Gardner. Then Cox informed Kearns of what happened between the two, and he and Kearns decided to discuss the incident with Fishman. Fishman does not dispute that the incident occurred, but rather contends that he acted in a "composed fashion" by throwing the book and calling Gardner an "asshole." Pl. Dep. at 146:20-22. He contends that Gardner "deserved" being treated as he treated her and that it was the management's fault for not "tak[ing] care of this woman (referring to Gardner)." Id. at 157:15. On August 12, 2003, Cox and Kearns met with Fishman in Cox's office and discussed the events of August 5, 2003. Pl. Facts ¶ 38. After Fishman recounted the same rendition of the facts as he previously informed Cox of the day after the incident, Cox and Kearns agreed that his termination was appropriate. They informed Fishman of his termination at the meeting, and explained to Fishman that his behavior on August 5, 2003 was, inter alia, sexual harassment.*fn9 Pl. Facts ¶ 39. According to the Defendants, Cox and Kearns instructed Linda Anstett, the LZB Paramus controller at the time, to interview Gardner again. In that interview, Gardner reconfirmed the facts that she had previously given regarding the incident. In the Corrective Action Document, memorializing Fishman's termination, it states that LZB Paramus terminated him for "harassment, sexual harassment, [and] aggressive behavior toward Renee Gardner." (emphasis added). Cox also characterized Fishman's behavior as "insulting, harassment, [and] aggressive behavior" in the document.


  A motion for summary judgment will be granted if after drawing all inferences in favor of the moving party, "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law". FED. R. CIV. P. 56(c); Apalucci v. Agora Syndicate, Inc., 145 F.3d 630, 631 (3d Cir. 1998); Todaro v. Bowman, 872 F.2d 43, 46 (3d Cir. 1989); Davis v. Portline ...

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