The opinion of the court was delivered by: Lifland, District Judge
Plaintiff Mary Delgado ("Delgado") brings this one-count diversity action against defendant LA Weight Loss Centers, Inc. ("LAWL") for wrongful discharge in violation of New Jersey public policy, as first recognized by the New Jersey Supreme Court in Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58 (1980). Delgado alleges that LAWL terminated her employment either in retaliation for exercising her statutory rights to benefits pursuant to the Temporary Disability Benefits Law ("TDBL"), N.J.S.A. § 43:21-25 et seq, or in an attempt to avoid its obligation to pay such temporary benefits. LAWL moves for summary judgment. For the reasons expressed herein, LAWL's motion is denied.
LAWL is a company that offers weight reduction plans and coaching to clients in more than 650 weight loss centers nationwide. Delgado began her employment with LAWL on August 12, 2002 as a weight loss counselor at its Matawan, New Jersey Center (the "Matawan Center"). It is undisputed that Delgado was an at-will employee whose terms, conditions, and existence of employment could be changed at any time by LAWL for any reason, with or without prior notice.
In November 2002, Delgado was promoted to the position of manager of the Woodbridge, New Jersey Center (the "Woodbridge Center"). There is evidence not presently disputed by LAWL that under her management, the Woodbridge Center's revenue increased, and as a result of her hard work at the Woodbridge Center, Delgado won an award for Most Improved Store.
During her seven months as manager of the Woodbridge Center, Delgado had several different supervisors, including Jennifer Dowell, Marion Leone, and Sheryl Reynolds. Ms. Reynolds stated in her Certification that "Ms. Delgado was an extremely hard worker and was very dedicated to L.A. Weight Loss and her clients. On one particular occasion, I recall her insisting on being at work two (2) days after she had gallbladder surgery." (Certificate of David Zatuchni, Esq., Ex. K.) That surgery took place in April 2003.
Sometime around June 2003, Stephanie Rose ("Rose") became Delgado's new Area Supervisor. At about that same time, Delgado requested and received a transfer to the Edison, New Jersey Center (the "Edison Center"). The Edison Center was within Rose's supervisory territory. Because of staffing shortages, Delgado continued to assist with the Woodbridge Center and commuted between the Woodbridge and Edison facilities on a regular basis.
Delgado claims that her professional relationship with Rose was contentious and caused her great stress and anxiety. Delgado contends that Rose made petty, critical, and demeaning remarks on a regular basis, and that these remarks caused her to become physically ill with diarrhea and stomach pain, as well as to suffer anxiety, mental pain and suffering, humiliation and embarrassment. Delgado's co-workers testified that Delgado was often observed crying at work. Delgado confided in a co-worker that she wanted to see a doctor because she was not feeling well; another co-worker noticed a drop in Delgado's weight, presumably resulting from her stressful environment and physical ailments.
On July 25, 2003, Delgado arrived at the Edison Center for work, but she claims she felt unwell. Delgado testified at her deposition that she had several phone conversations with Rose throughout the morning and early afternoon concerning various matters, including her sickness. During one such conversation, Rose informed Delgado that she was going to be moved back to the Woodbridge Center as Manager. LAWL states that during this conversation, "Rose informed Delgado that she was going to be reassigned back to the Woodbridge Center because she was not 'pulling the numbers,' or maintaining acceptable sales figures, at the Edison Center." (Defendant's Statement of Undisputed Facts, ¶ 32.) At her deposition, Delgado testified about her reaction to the news of her impending transfer:
I asked her why. And she said because Diane [Rizzio] wants it that way. And I said, really? I want to hear it from Diane. And she said, no, you can't hear it from Diane. Diane asked me to tell you. And I said, Stephanie, I don't understand why. What did I do wrong? And she said, you're not pulling the numbers. And I said, don't you think it's been a little hard on me, Stephanie, to pull the numbers, running two stores, that number one store I'm not getting paid for. Over here, the number two store, I have no employees. So how can you guys come to that determination when I have no help? I said, Stephanie, I am sick today, I am not feeling well, and I need to go home.
(Zatuchni Cert., Ex. C at 151:15-18.) In LAWL's Statement of Undisputed Facts, LAWL described Delgado's conversation with Rose in ¶ 34 as follows: "Delgado says that she was not feeling well that day and attempted to discuss her need to leave work with Rose, who did not have time to speak with her about it but promised to call her back." (Def.'s Statement of Undisputed Facts, ¶ 34.)
I pause here momentarily to declare my displeasure with the presentation of LAWL's ¶ 34 in its Statement of Undisputed Facts. Local Civil Rule 56.1 states, "On motions for summary judgment, each side shall furnish a statement which sets forth material facts as to which there exists or does not exist a genuine issue." The purpose of a " L. Civ. R. 56.1 Statement," as it is known, is to "narrow the issues before the District Court, and it has come to be relied upon by the Court as a vital procedural step." L. Civ. R. 56.1 cmt. 2.
It is clear on its face that LAWL submitted a statement of undisputed facts. As noted above, ¶ 34 states "Delgado says that she was not feeling well that day and attempted to discuss her need to leave work with Rose, who did not have time to speak with her about it but promised to call her back." It is inconceivable that the Court should have to suffer the ambiguity caused by LAWL's use of the word "says" in this sentence, coupled with the structure of the sentence which suggestively relates "says" to each of three critical facts. Webster's Dictionary defines the verb "say" as, inter alia, "(1) to utter aloud: speak; . . . (3) to state positively: declare; . . . (5) to report or maintain: allege." WEBSTER'S II NEW RIVERSIDE UNIVERSITY DICTIONARY 1040 (1984). Shall ¶ 34 therefore be read to mean that Delgado "alleges" certain facts -- facts which by its word choice and sentence structure LAWL appears to dispute? Or, in keeping with the "undisputed" nature of the Statement, shall ¶ 34 be interpreted as: (1) it is undisputed that Delgado says (i.e., spoke aloud or declared) she was not feeling well that day; (2) it is undisputed that Delgado attempted to discuss her need to leave work with Rose; and (3) it is undisputed that Rose did not have time to speak to her about it, but promised to call her back? In keeping with the summary judgment standard, the Court concludes that this latter interpretation of ¶ 34 of LAWL's Statement of Undisputed Facts correctly accords Delgado all favorable inferences drawn from the evidence.
Continuing on, at her deposition, Delgado testified that she waited for Rose to call her back to no avail. Finally, Delgado called Rose a second time. Delgado claims Rose said, "Mary, I'm on the phone, I can't talk to you right now. I'll call you back." (Zatuchni Cert., Ex. C at 151:19-22.) According to Delgado, no such return call occurred. After waiting an hour, at approximately 2:00 p.m., Delgado called Rose again to discuss her illness and her need to leave work. Delgado testified that Rose said, "Mary, I really don't have time to talk to you." (Id. Ex. C at 151:24 to 152:3.) This time, according to her testimony, Delgado said, "Stephanie, I'm really sick and I'm leaving. Okay. I'm leaving Lori the keys to the store and I'm leaving. All right. I'll give you a call . . . you've got my cell phone number." (Id., Ex. C at 152:3-7.)*fn1 Here, LAWL states "Delgado alleges that she called Rose several times, but has not produced any evidence to substantiate that claim other than her own testimony." (Def.'s Statement of Undisputed Facts, ¶ 35.) At trial, the jury will hear Delgado's testimony and will weigh it accordingly. For the purpose of this Motion, the Court views the evidence in the light most favorable to Delgado.
Delgado testified that after telling Rose she was leaving the Edison Center because she was sick, she "left the keys for Lori [Gilfoy], told her I was leaving, I wasn't feeling well and I left." (Zatuchni Cert., Ex. C at 152:12-14.) Delgado explained that she left her keys behind "because we only had one set of keys between the Woodbridge and Edison stores" (Id. at 152:9-12); therefore, Lori Gilfoy ("Gilfoy") would need the keys to close the Center at the end of the day. (See id. at 119:16 -120:4.)
LAWL asserts two reasons for its decision to terminate Delgado's employment: "she abandoned her position without proper notice and even if she had not done so, she failed to comply with reporting in procedures for each day of her absence." (Def.'s Memorandum in Support of Summary Judgment 21.) LAWL's employee handbook sets forth the following "Reporting In" procedure for the reporting of illness:
If you expect to be late for work or are unable to report for work because of illness or other unavoidable cause, you must attempt to speak personally via telephone with your immediate supervisor not less that (1) hour prior to your schedule starting time. If you are going to be late for work, you are required to provide your supervisor a reason for and the expected length of your delay. In the event you are unable to report for work, you must furnish your supervisor with the reason for and the expected duration of your absence. If you are unable to speak personally with your supervisor, you must report your absence or lateness in accordance with the instructions established by your supervisor.
If your absence continues for more than one (1) day, you are required to contact your supervisor on a daily basis until the probable duration of your absence is established unless you provide a written statement from your health care provider indicating how long you are to be absent from work. You will be expected to return to work on the stated date, unless you give your immediate supervisor a written change of return to work prepared by your health care provider which describes the reason for this change.
Your absence from work for a period of (2) consecutively-scheduled work days without properly reporting in constitutes an abandonment of your employment with the Company and is considered to be your voluntary resignation from our employ.
(Certification of Deena B. Beard, Esq., Ex. B) (emphasis added). The record does not contain any instructions established by Rose in the event that an employee she supervised was unable to speak personally with her. Furthermore, a fair reading of this "Reporting In" procedure suggests that it does not even apply in the situation where an employee is already at work, but must leave because she is sick.
LAWL's employee handbook further provides specific "Sick Leave" procedures for reporting sick days:
To qualify for paid Sick Leave benefits to cover an absence from work due to reasons described in this Policy, you must inform your supervisor in accordance with the procedures set forth in the Policy entitled Reporting In
If you expect your absence to extend beyond one (1) day, you must continue to report in daily as discussed in Reporting In unless you provide your supervisor with a written statement form your health care provider indicating how long you are to be absent from work
. . . [T]wo (2) episodes of unexcused absence not associated with an approved Leave of Absence which occur in any rolling twelve (12) month period may be grounds for discharge from our employ.
LA Weight Loss Centers may require written certification from either your or your family member's health care provider or a health care provider designated by the Company as proof of your inability to work due to your own illness or injury . . . for:
* All absences of three (3) consecutive work days or longer;
* All unscheduled absences which fall on a Friday or a ...