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December 2, 2005.


The opinion of the court was delivered by: ROBERT KUGLER, Magistrate Judge


This matter comes before this Court on Defendant Cooper Health System's Motion for Summary Judgment on all claims of Plaintiff Vance Washington's Complaint. For the reasons set forth below, Cooper's motion will be granted in part and denied in part.


  Plaintiff Vance Washington ("Washington") is a former employee of Defendant Cooper Health System ("Cooper"). In October 1998, Cooper hired Washington as a patient care technician and a pool employee. (Pl. Dep. at 65-67). Sometime in or around September 2002, Washington requested and received a transfer to a regular, part-time position at Cooper. (See Letter from Grimes to Washington dated 9/27/02, at ¶ 1). Following the transfer, Washington was assigned to work the 7:00 a.m. to 3:30 p.m. shift; however, because of the transfer to a new position, Washington's continued employment was subject to a 90 day probationary period. (Letter from Grimes to Washington dated 9/27/02, at ¶ 1.) Washington deposed that he believed the probationary period meant only that he needed to wait 90 days for certain employee benefits; however, his supervisor, Vickie Riskie,*fn1 deposed that during the probationary period employees are not subject to Cooper's progressive discipline policy and may be removed from the staff if "they are not pulling their load." (Pl. Dep. at 88; Riskie Dep. at 107-08.)

  Cooper alleges that during his probationary period, Washington violated Cooper's attendance policies. (Def. Mem. at 18.) In a meeting, Washington and other employees were verbally warned about leaving prior to the end of their shifts. (See Pl. Dep. at 99.) Washington was also written up on July 17, 2002 for an incident relating to his attitude and attendance. (See Written Warning dated 7/17/02, attached as Exhibit F to Def. Mem.) William Chambley, the director of employee and labor relations at Cooper, deposed that for payroll purposes there is a ten minute window that allows an employee to clock in/out ten minutes early/late and still be paid for a full shift. (Chambley Dep. at 26.) However, in terms of the lateness policy, an employee is not granted that same ten minute window. (Chambley Dep. at 26.) If an employee clocks in one minute after his shift began, he will be considered late for absenteeism/disciplinary purposes. (Chambley Dep. at 26.) Similarly, Vickie Riskie deposed that all shift employees are expected to arrive on time to the hospital unit floor to which they are assigned, and they are expected to stay to the end of their shift. (See Riskie Dep. at 99.) Based on these policies and Washington's time sheets,*fn2 Cooper asserts that prior to December 4, 2002, Washington had 1 call-out absence, 14 late arrivals, and 18 early departures. (Def. Mem. at 18.)

  On December 4, 2002, Washington's fiancé, Melvina Dillard, gave birth to his daughter at Cooper.*fn3 (See Pl. Dep. at 36.) On December 6, 2004 both Ms. Dillard and the baby were discharged. (See Pl. Dep. at 47-48; Pl. Mem. at 9.) On December 8, 2002, Ms. Dillard was re-hospitalized at JFK Hospital after suffering congestive heart failure. (See Pl. Dep. at 47-48; Pl. Mem. at 9.) She was released on or about December 10, 2002. (See Pl. Dep. at 44, 48-50.) Washington did not work on December 4, 9, 10, 14, or 15 of 2002, and he worked roughly two hours of his eight hour shift on December 5. (See Pl. Mem. 7-9, 11).

  There is some dispute as to the timing and content of Washington's communications with Cooper regarding his need to miss work after the birth of his daughter. With respect to his absence on December 4, 2002, plaintiff deposed that he called the night supervisor before he was to start his shift at 7:00 a.m. and told her that his fiancé was in labor and he would not be able to work that day. (Pl. Dep. at 42-43.) Vickie Riskie deposed that she first learned of the birth on December 4 when Washington mentioned it "in passing" when he stopped in on the floor where he and Riskie worked. (Riskie Dep. at 40-41.) On December 5, Washington came to work but clocked out at 9:14 a.m. because he was exhausted and was "afraid he might injure a patient." (Pl. Dep. at 45.) Vickie Riskie deposed that she understood Washington's statement to be a threat that he might hurt patients. (See Riskie Dep. at 108.)

  The next set of Washington's disputed absences occurred on December 9 and 10, 2002. Washington deposed that on either the night of December 8 or the morning of December 9, he called Ms. Riskie and told her that his fiancé was in the hospital and he had to stay home with his daughter. (Pl. Dep. at 49.) By contrast, Riskie deposed that it was not until December 10 that Washington called her and left a message stating only that he could not work that day because his girlfriend was in the hospital. (Riskie Dep. at 42.) Riskie testified that after receiving Washington's message, she told Human Resources that Washington had called out due to the hospitalization of his girlfriend, and Human Resources advised that he was not eligible for leave on that basis. (Riskie Dep. at 118-19; Chambley Dep. at 7-9, 13.) Riskie testified that if Washington had told her that he needed that time off to care for a child, she would have relayed that information to Human Resources. (Riskie Dep. at 111.) Likewise, Chambley deposed that Washington would have been considered for leave if he had indicated that the need for leave was to care for his baby as opposed to his hospitalized girlfriend. (Chambley Dep. at 35.) In spite of these contrary assertions by Riskie and Chambley, Washington deposed that on either December 8 or 9 he did in fact tell Ms. Riskie explicitly that he needed the time off to "stay home with my baby." (Pl. Dep. at 49.)

  Washington returned to work on or about December 11, and both he and Riskie agree that, at that time, Washington advised Riskie that he needed time off on December 14 and 15. Washington deposed that he expressly stated that he "had to be home to care for my daughter," but Riskie could not recall if he stated specifically why he needed the leave. (Pl. Dep. at 53; Riskie Dep. at 51.) Ms. Riskie advised Washington that she had to check with her director, Denise Mealy, to obtain approval for the requested time off. (Riskie Dep. at 52.) Riskie told Washington she would speak with Ms. Mealy and instructed him to wait for her return. (Riskie Dep. at 52.) Ms. Mealy informed Riskie that Washington qualified for time off on December 14 and 15; however, Washington left the hospital before hearing back from Ms. Riskie regarding whether he was approved for leave. (Riskie Dep. at 52-53.) Washington did not call to follow up with Ms. Riskie or anyone at Cooper to see if he had been approved for the time off, and Ms. Riskie never contacted Washington to tell him he had been approved. (Pl. Dep. at 61; Riskie Dep. at 53). Washington did not work his scheduled shifts on December 14 and 15.

  On December 19, 2002, Ms. Riskie terminated plaintiff for excessive absenteeism and a "threat" that "he was afraid he was going to hurt someone" while working with patients. (Riskie Dep. at 38, 108). In making the decision to terminate, Ms. Riskie also considered that Washington left early on December 11 without finding out whether he was approved for leave on December 14 and 15 when she had specifically asked him to wait for her to return from speaking with other management about the issue. (Riskie Dep. at 109; Riskie Note dated 12/19/02 attached to Def. Mem. as Exhibit I.) Riskie deposed that she considered Washington's absences on December 2, 4, 5, 9, 10, 14, 15 as part of her termination decision. (Riskie Dep. at 106-09.)

  Washington then reported his termination to the Department of Labor. (Pl. Mem. at 12.) The Department of Labor ("DOL") interviewed Pat Delio, Cooper's Human Resources Manager, and issued a "Narrative Report of Investigation."*fn4 (See DOL Report, attached to Pl. Mem. as Exhibit A.) The report indicated that the DOL investigator notified Mr. Delio that Cooper was in violation of the FMLA for unlawful termination. (DOL Report at 2.) The DOL investigation terminated when Washington hired an attorney to file this suit in the hopes of receiving a greater amount of back wages. (DOL Report at 2.)

  Shortly thereafter, on April 25, 2005, Washington filed his complaint against Cooper in the present action. He asserts statutory claims pursuant to the Family and Medical Leave Act ("FMLA") and the New Jersey Family Leave Act ("NJFLA"), as well as claims for breach of contract, detrimental reliance, equitable estoppel, and unjust enrichment. (See Compl. at Counts I-IV.)


  Summary judgment is proper "if 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 judgment as a matter of law." Fed.R.Civ.P. 56(c). In deciding whether there is a disputed issue of material fact, a court must view the facts and all reasonable inferences in a light most favorable to the nonmoving party. Anderson v. Consol. Rail Corp., 297 F.3d 242, 247 (3d Cir. 2002).

  The moving party always "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the `pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the nonmoving party bears the burden of persuasion at trial, however, "the burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Id. at 325. The non-moving party "may not rest upon the mere allegations or denials of" its pleadings and must present more than just bare assertions, conclusory allegations or suspicions to establish the existence of a genuine issue of material of fact. Fed.R.Civ.P. 56(e); see Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989) (citation omitted).


  Cooper seeks summary judgment on all four counts of Washington's complaint. Count I of the complaint alleges that Cooper violated the FMLA by (1) interfering with Washington's exercise of his rights under the Act, and (2) wrongfully terminating him. See 29 U.S.C. §§ 2615(a)(1), 2615(a)(2). Count II makes similar claims under New Jersey's Family Leave Act. See N.J. Stat. Ann. § 34:11B(9). This Court will deny Cooper's motion for summary judgment as it pertains to Counts I and II because there are genuine issues of material fact that preclude finding for the defendant as a matter of law. Count III of the complaint alleges a breach of contract based upon alleged terms of employment included in Cooper's Human Resources Policies & Procedures Manual. Because Washington is an at-will employee and there is no express or implied employment contract, this Court will grant Cooper's motion for summary judgment as it pertains to Count III. Finally, Count IV asserts detrimental reliance, equitable estoppel and unjust enrichment claims based upon alleged representations made by Cooper in its Human Resources Policies and Procedures Manual and the Cooper Family and ...

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