United States District Court, D. New Jersey
December 20, 2005.
JAMES SARNOWSKI, Plaintiff,
AIR BROOK LIMOUSINE, INC., Defendant.
The opinion of the court was delivered by: DENNIS CAVANAUGH, District Judge
This matter comes before the Court upon motion by Air Brook
Limousine ("Defendant") for summary judgment pursuant to Rule 56
of the Federal Rules of Civil Procedure on all counts of the
Complaint filed by James Sarnowski ("Plaintiff"). Oral Argument
was heard regarding this matter on December 16, 2005. For the
reasons stated below, Defendant's motion is granted.
Defendant provides limousine, van and charter services.
(Plaintiff's Brief in Support of its Motion to Dismiss ("Pl.
Br.") at 4). Plaintiff worked for Defendant as a Service Manager
and as such, he was responsible for maintenance on the vehicles.
(Id.) Plaintiff claims that on or about October 25, 2002, he
became "handicapped as a result of a heart condition which
necessitated emergency quintuple bypass surgery." (Plaintiff's
Complaint ("Pl. Compl.") ¶ 14). Plaintiff returned to work after
that surgery. (Def. Br. at 5).
On April 7, 2003, Plaintiff informed his supervisor that he had
more blocked arteries and as a result, would have to continue seeing a doctor for the next
six months and start wearing a heart monitor. (Pl. Compl. ¶
28-29). Plaintiff alleges he was terminated on April 15, 2003,
due to his disability (his heart condition). (Id.) Plaintiff
alleges he was terminated in violation of the Family Medical
Leave Act of 1993, 29 U.S.C. § 2601, et seq., ("FMLA"), because
he told his supervisor he may need a leave of absence due to his
heart condition; the New Jersey Law Against Discrimination,
N.J.S.A. 10:5-1 ("LAD"), because of his disability; and the New
Jersey Conscientious Employee Protection Act, N.J.S.A. 34:19-1,
et seq., ("CEPA"), because he complained to his employer about
bus safety regulations.
A. Standard for Summary Judgment
Summary judgment is granted only if all probative materials of
record, viewed with all inferences in favor of the non-moving
party, demonstrate that there is no genuine issue of material
fact and that the movant is entitled to judgment as a matter of
law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett,
477 U.S. 317, 330 (1986). The moving party bears the burden of showing
either (1) there is no genuine issue of fact and it must prevail
as a matter of law; or (2) that the non-moving party has not
shown facts relating to an essential element of the issue for
which he bears the burden. Celotex, 477 U.S. at 331. If either
showing is made then the burden shifts to the non-moving party,
who must demonstrate facts that support each element for which he
bears the burden and must establish the existence of genuine
issues of material fact. Id. The non-moving party "may not rest
upon the mere allegations or denials of his pleading" to satisfy
this burden, Fed.R.Civ.P. 56(e), but must produce sufficient
evidence to support a jury verdict in his favor. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). B. Family Medical Leave Act
The FMLA allows employees to take up to twelve weeks of
necessary medical leave in a year without being placed in
jeopardy of losing their jobs. 29 U.S.C. § 2601. The purpose of
the FMLA is to "balance the demands of the workplace with the
needs of families . . . by establishing a minimum labor standard
for leave" that allows employees to take a "reasonable leave for
medical reasons." Churchhill v. Star Enter., 183 F.3d 184, 192
(3d. Cir. 1999). In order to bring a successful claim under the
FMLA, a plaintiff must show: (1) he is an eligible employee under
the FMLA; (2) defendant is an employer subject to the
requirements of the FMLA; (3) he was entitled to leave under the
FMLA; (4) he gave notice to the defendant of his intention to
take FMLA leave; and (5) the defendant denied him the benefits to
which he was entitled under the FMLA. Parker v. Hahnemann Univ.
Hosp., 234 F. Supp. 2d 478, 483-84 (D.N.J. 2002).
Here, Plaintiff fails to present a prima facie case because
Plaintiff never officially placed a request to take a leave from
work. While Plaintiff mentioned to his supervisor that he may
have to take time off in the future due to his heart condition,
he never officially put in a request for a leave of absence under
Defendant's FMLA policy. Plaintiff had not taken a leave from
work when he was fired, nor had he placed a formal request to do
so. Plaintiff has failed to satisfy the requirement of
establishing a prima facie case under the FMLA. Defendant's
motion for summary judgment regarding Plaintiff's FMLA claims is
C. New Jersey Law Against Discrimination
The New Jersey LAD exists to ensure that all New Jersey
citizens enjoy the civil rights guaranteed by the State
Constitution, especially in the work place. N.J.S.A. § 10:5-2.1.
Because the overarching goal of the LAD is to rid society of
discrimination, the New Jersey Supreme Court has advised courts to liberally construe its provisions.
Dale v. Boy Scouts of America, 160 N.J. 562 (1999). Although
the LAD's protections have been broadly interpreted, the LAD does
not prevent an employer from terminating or changing the
employment of any person the employer reasonably believes is
unable to perform the duties necessary for the job. Viscik v.
Fowler Equipment Company, Inc., 173 N.J. 1, 13 (2002)
In order to receive coverage under the LAD for disparate
treatment, a plaintiff must first establish a prima facie case of
discrimination. Viscik v. Fowler Equipment Company, Inc.,
173 N.J. 1, 12 (2002). The New Jersey Supreme Court has adopted the
burden-shifting framework set forth by the Supreme Court of the
United States in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Under this framework, a plaintiff has the burden to show:
(1) that he or she belongs to a protected class; (2) applied for
or held a position for which he or she was objectively qualified;
(3) was not hired or was terminated from that position; and (4)
that the employer sought to, or did fill the position with a
similarly-qualified person. Anderson v. Exxon Co., U.S.A.,
89 N.J. 483, 493 (1982). This framework is not to be applied too
rigidly and courts must adjust it to meet the particular
circumstances at hand. Viscik, 173 N.J. at 13.
Plaintiff has failed to establish a prima facie case under this
framework. First, Plaintiff has failed to demonstrate that he
fits the statutory definition of "handicapped" under the LAD.
Plaintiff claims he is handicapped due to his heart surgery and
his subsequent blocked arteries. (See Pl. Compl.). The LAD
defines handicapped as an infirmity "which prevents the normal
exercise of any bodily or mental functions." N.J.S.A. 10:5-5(g).
The LAD goes on to list two categories of handicaps, physical and
non-physical. N.J.S.A. § 10:5-5(q). A disability due to a heart condition would be characterized as a physical handicap
because it impacts a person's physical, rather than mental
capabilities. Although heart disease is a physical condition, it
is not one that is readily apparent because one cannot tell a
person has blocked arteries from merely looking at him, as one
can tell a person with a missing limb is physically handicapped.
Where the existence of a plaintiff's alleged handicap is not
readily apparent, the plaintiff must produce expert medical
evidence indicating such a handicap exists. Clowes v. Terminix
Int'l, Inc., 109 N.J. 575, 591-93 (1988). The use and strength
of objective medical testimony therefore plays a crucial role
during a court's determination of whether a plaintiff is
handicapped. Viscik, 173 N.J. at 16.
Plaintiff has not put forth any expert medical evidence
indicating he is handicapped. Neither this Court, nor Defendant,
disputes Plaintiff has heart problems. However, the fact that
Plaintiff must wear a heart monitor and have heart surgery does
not automatically place him in the protected class of those with
disabilities. Furthermore, Plaintiff never requested an
accommodation for his alleged disability. Due to Plaintiff's
failure carry his burden of proving he is disabled, he cannot
show that he should receive protection under the LAD. Defendant
is therefore entitled to summary judgment regarding Plaintiff's
D. Conscientious Employee Protection Act
When a plaintiff brings a CEPA claim, a court must "identify a
statute, regulation, rule, or public policy that closely relates
to the complained of conduct." Dzwonar v. McDevitt,
177 N.J. 451, 463 (2003). The plaintiff has the burden of proving he held
an objectionably reasonable belief that such a violation has
occurred. Id. If a plaintiff fails to carry his burden the
court must enter judgment for the defendant. Courts should look to Federal
and State Constitutions, federal and state laws, administrative
rules, regulations and decisions, the common law and specific
judicial decisions for sources of public policy. McDougall v.
Weichert, 144 N.J. 380, 391 (1996). Courts have found that
plaintiffs filed valid CEPA claims when defendants have violated
established public policy. Abbamont v. Piscataway Township Bd.
of Ed., 138 N.J. 405, 410 (1994).
Here, Plaintiff claims CEPA was violated because he reported
violations of the Department of Transportation Regulations to
Defendant. The first alleged violation he reported occurred when
he notified his supervisor there was an electrical problem with
one of the buses during a rainstorm. After investigating the
matter, his supervisor determined a serious problem did not exist
and the bus in question could continue on its route. It appears
that the electrical problem dealt with the bus's lights, which
again began working after one hour. Also, the bus's high beam
lights never stopped working. The second violation occurred when
Plaintiff reported a fifth tire on a bus was flat and both the
dispatcher and bus driver determined the bus could successfully
complete its trip to Atlantic City. The trip was completed and
the problem was rectified.
Plaintiff claims he was wrongfully terminated for his is
whistle-blowing activity in violation of CEPA. However, this is
not whistle-blowing activity protected under CEPA. CEPA prevents
employers from firing employees because they are reporting the
employer's illegal activity to a higher authority. Here,
Plaintiff and his supervisor disagreed over the way certain
mechanical bus problems should be addressed. Plaintiff has failed
to articulate any clearly mandated public policy that was violated. Therefore, CEPA is not
triggered and Defendant is entitled to summary judgment regarding
Plaintiff's CEPA claim.
For the reasons stated, it is the finding of this Court that
Defendant's motion for summary judgment is granted. An
appropriate Order accompanies this Opinion.
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