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Rauch v. Drazin and Warshaw


March 19, 2008


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1418-03.

Per curiam.


Telephonically argued December 20, 2007

Before Judges Lisa, Lihotz and Simonelli.

Plaintiff, Susan Rauch, was a legal secretary for defendant, Drazin and Warshaw. Upon being diagnosed with work-related carpal tunnel syndrome, plaintiff filed a claim against defendant under the Workers' Compensation Act. N.J.S.A. 34:15-1 to -142. About a year later, defendant terminated plaintiff's employment. Plaintiff filed a three-count complaint alleging retaliatory discharge in violation of the Workers' Compensation Act, specifically N.J.S.A. 34:15-39.1, the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and the Family and Medical Leave Act (FMLA), 29 U.S.C.A. §§ 2601-2654. The trial court dismissed the count under the Workers' Compensation Act on summary judgment. The remaining counts were the subject of a jury trial. The court dismissed the LAD claim by way of a directed verdict. The jury returned a no cause for action verdict on the FMLA count. Plaintiff's new trial motion was denied.

Plaintiff argues on appeal that she presented sufficient evidence to withstand summary judgment on her Workers' Compensation Act retaliation claim, that her LAD claim should have gone to the jury because she established a prima facie case of disability discrimination, and that the trial court's jury charge under the FMLA was erroneous and led to the no cause verdict on that claim. Plaintiff further argues that in ruling upon the new trial motion, the trial judge exhibited bias towards her, which tainted his decision on the motion as well as certain trial rulings. Finally, plaintiff argues that the trial court erred in excluding evidence relating to a medical note issued by Dr. Paul Friedman. We reject these arguments and affirm. Plaintiff's last two arguments, pertaining to alleged bias by the trial court and the note by Friedman, lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We discuss fully plaintiff's other arguments.


Plaintiff began working for defendant in 1998. She worked directly for attorney Richard A. Amdur, Jr., along with another secretary, Pauline Parker. In November 2000, plaintiff began experiencing problems with her wrists and hands. She discussed this with her primary care physician, Dr. Frank C. Alario, who referred plaintiff to a physiatrist, Dr. Khang. After performing an EMG in February 2001, Khang diagnosed plaintiff with bilateral carpal tunnel syndrome and bilateral ulnar nerve neuropathy. This diagnosis was confirmed by a neurologist, Dr. Vicki Rab.

For the next several months, plaintiff attended physical therapy three times a week after work. She began wearing wrist braces to work. Defendant provided various accommodations, including a wrist rest, a new chair, and a new shelving system on which to place her files so she did not have to pick them up off of the floor.

On April 20, 2001, plaintiff advised Dennis A. Drazin, a partner in the firm, that she intended to file a workers' compensation claim. She advised she had met with an attorney for that purpose and, in her memo to Drazin said, "I will do my best to continue working because my job is very important to me."

Plaintiff filed a workers' compensation claim on May 2, 2001. In August 2001, defendant's compensation insurance carrier referred plaintiff to Dr. Christopher D. Johnson, who examined plaintiff and wrote several reports regarding her progress on August 21, 2001, October 11, 2001, and February 5, 2002. Johnson recommended that plaintiff take "rest periods of at least five minutes every half an hour, to stretch, and not to lift anything over maybe five or ten pound[s] tops." He also ordered an ergonomic assessment, which would insure that plaintiff's keyboard and chair were at the appropriate levels.

In January 2002, Johnson referred plaintiff for physical therapy at a facility in Tinton Falls. Plaintiff was unable to schedule her appointments after work at that facility, as a result of which she had morning appointments beginning at 8:30 a.m. and would arrive at work late at 10:00 a.m. Drazin worked along with the compensation carrier in an effort to have plaintiff paid for time lost at work due to her physical therapy, and he also made arrangements to make up for her lost time. Thus, plaintiff's work schedule was adjusted as a further accommodation.

On February 20, 2002, plaintiff suffered a back and neck injury during her physical therapy. On February 25, 2002, plaintiff went to work and "was not feeling well." She prepared a memorandum addressed to Amdur and Parker indicating what needed to be done on each file. The memo stated:


On that date, Alario provided a medical note excusing plaintiff from work because of back and hand pain, and stating that she could return to work on April 1, 2002. Plaintiff went out on disability on February 26, 2002. Alario completed a medical certificate for disability on February 27, 2002, specifying April 1, 2002 as the expected return to work date.

On March 10, 2002, plaintiff experienced flu-like symptoms, which developed into bronchitis ten days later. On March 25, 2002, Alario wrote a note, revising plaintiff's return date to April 4, 2002 and stating, "The above patient is being treated for back and hand pain." Plaintiff never presented this note to defendant. Alario referred plaintiff to Friedman, a pulmonary specialist.

On March 25 or 26, 2002, plaintiff contacted Amdur to inform him of the extended disability leave. Amdur was in trial, and plaintiff spoke to Parker, informing her she would be out until April 4, 2002. Parker testified that plaintiff informed her she would be out for an additional week. Upon receiving the message, Amdur contacted plaintiff and, according to him, plaintiff advised that her leave would be extended an additional ten days. Amdur said he considered that information "alarming" and that he was "getting pressure from Pauline Parker, [he] was getting pressure from Dennis Drazin about the work that's not being done, and that was cause for concern." Amdur was also concerned about plaintiff returning on "light duty." After this conversation, Amdur met with the managing attorney at the firm, Thomas DiChiara, to discuss plaintiff's "serious absenteeism issue" and the fact that she would be returning on "light duty."

According to plaintiff, Amdur contacted her on March 28, 2002, and informed her that DiChiara and Drazin would not hold her job open for her any longer. On April 3, 2002, plaintiff received a letter from DiChiara notifying her that her employment was being terminated because of thirty-six unexcused absences over the past three years "excluding Holidays, Vacation and Sick/Personal days and your recent disability [period]." The letter further stated that "[m]ost recently, you were expected to return on April 1, 2002 from disability, but informed Mr. Amdur, that, due to Bronchitis, you would be out for approximately a 1-week period and that even when you returned it would be on a limited and restricted basis."

On March 27, 2003, plaintiff filed this action.


On September 29, 2005, Judge Perri granted partial summary judgment to defendant, dismissing plaintiff's retaliation claim under the Workers' Compensation Act. The judge found that plaintiff failed to establish a causal connection between the filing of her workers' compensation claim and her subsequent termination from employment. The judge explained:

Accepting plaintiff's allegations as true, as required under [Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520, 540 (1995)], she sustained a work related injury to her wrists, and filed a worker's compensation claim. Approximately one year elapsed between the decision to file the worker's compensation claim and the employer's decision to terminate plaintiff's employment, during which time the defendant employer made accommodations to the plaintiff so that she could attend physical therapy and make up the time she missed from work.

It was only later after an extended absence due to a related back injury when plaintiff advised that she would be out additional time due to the flu and bronchitis, that her employment was terminated.

Plaintiff suggests that the mere filing of a worker's compensation claim and a subsequent termination is sufficient to establish the requisite causal connection necessary to survive a motion for summary judgment on a claim of retaliatory firing.

This is not however, the law. In [Hampton v. Armand Corp., 364 N.J. Super. 194, 201 (App. Div. 2003)], the Court noted that New Jersey does not have a "public policy against terminating an employee for taking sick leave." Rather the public policy as enunciated in the Family Medical Leave Act and the worker's compensation statute, is to "protect employees against retaliatory and discriminatory conduct in specific situations."

It is incumbent upon the plaintiff to point to some circumstance or action on the part of the employer that would give rise to the claim of retaliatory conduct. [See Lally v. Copygraphics, 85 N.J. 668 (1981)], where the employee advised the employer of the intention to file a worker's compensation claim and was told that if she did so she would be fired.

While the Court acknowledges that such explicit statements by an employer may not always be found, the plaintiff in this matter has [not] been able to point to any facts that would suggest an animus occasioned by the filing of the worker's compensation claim. Defendant was insured at the time of the loss. And turned the matter over to its insurance carrier for handling.

Defendant's only role after the tender of the claim was to provide information as required by the insurance carrier. Indeed, it was the defendant who attempted to intercede on the plaintiff's behalf when the worker's compensation carrier would not pay for plaintiff's physical therapy.

Plaintiff's absences for physical therapy and work place change requests were accommodated, and it was only after it was reported to the employer that plaintiff would be out an extra ten days after she had already been out 36 days over a period of three years, in excess of her allotted holidays, vacation, sick time and time associated with her disability, that the decision was made to terminate her employment.

Accordingly, the Court finds that plaintiff has failed to produce any credible evidence of retaliatory conduct from which a reasonable fact finder could conclude that plaintiff was fired in contravention of the law. Summary judgment is therefore granted in favor of the defendant and the third count of the complaint is dismissed.

Plaintiff argues there was a sufficient causal connection between the filing of the workers' compensation claim and plaintiff's termination to show defendant violated N.J.S.A. 34:15-39.1. Plaintiff refers to a number of events that occurred in 2002, immediately preceding her termination, that would allow a jury to make the necessary causal connection. Specifically, plaintiff refers to "Amdur's apparent unwillingness to continue the 'light duty' accommodation, although plaintiff had worked under that accommodation prior to her having to stop work," "Amdur's apparent belief that plaintiff would thenceforth be unable to work 'as before' due to the compensation injury described as carpal tunnel syndrome," and "the fact that plaintiff was actually still on leave due to her work-connected injuries at the time of termination on 3/28/02, with original leave set to expire on 4/1/02." Plaintiff claims the judge wrongly weighed the evidence as a trier of fact, without according favorable inferences to plaintiff. We do not agree.

On appeal, we apply the same standard that governs trial courts in reviewing summary judgment motions. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). A motion for summary judgment should be granted "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 challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). In order to determine whether there is a genuine issue of material fact, that precludes summary judgment, the trial court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non- moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill, supra, 142 N.J. at 540. The motion must be granted only when the evidence is so one-sided that there is only one reasonable outcome. Ibid. If no genuine issue exists then we must decide whether the trial court's ruling on the law was correct. Prudential, supra, 307 N.J. Super. at 167.

N.J.S.A. 34:15-39.1 provides, in relevant part,

It shall be unlawful for any employer or his duly authorized agent to discharge or in any other manner discriminate against an employee as to his employment because such employee has claimed or attempted to claim workmen's compensation benefits from such employer . . . .

"To make a prima facie case for a retaliatory discharge the employee must prove: (1) that he [or she] made or attempted to make a claim for workers' compensation; and (2) that he [or she] was discharged in retaliation for making that claim." Galante v. Sandoz, Inc., 192 N.J. Super. 403, 407 (Law Div. 1983), aff'd, 196 N.J. Super. 568 (App. Div. 1984). "Although the timing of a discharge may be significant, it, alone, cannot raise an inference of causation sufficient to establish a prima facie case of retaliation." Morris v. Siemens Components, Inc., 928 F. Supp. 486, 493 (D.N.J. 1996). "In fact, 'without any specific evidence showing [a] plaintiff's discharge was in retaliation for his having filed for workers' compensation benefits, [a] defendant's motion for summary judgment must be granted.'" Id. at 493-94 (quoting Mallon v. Prudential Prop. & Cas. Ins. Co., 688 F. Supp. 997, 1011 (D.N.J. 1988)).

In Galante, supra, 192 N.J. Super. at 407-08, the Law Division awarded summary judgment in favor of the employer because the "employee failed to offer even a scintilla of proof that his termination predicated upon [excessive absenteeism] was a retaliatory move on the part of his supervisors." The court noted that "the termination occurred approximately eight months after the accident and claim were filed." Id. at 408. His immediate supervisor . . . did not even know he had filed a workers' compensation claim, and thought that the employee had filed for benefits after he left the defendant's employ." Ibid. The court stated, "The fact that a substantial number of those absences were attributable to a work related injury does not prove a discriminatory discharge on the part of his supervisors . . . ." Id. at 411. The court added,

Of course, if an employee were fired after one instance of a work related injury, such an eventuality would smack more of a retaliatory response by the employer . . . . As the instances of absence begin to multiply, the likelihood of evidence supporting a retaliatory firing may begin to dissipate substantially. There will be cases where the line between a retaliatory and non-retaliatory firing will not be bright and clear. In those instances summary relief may not be an appropriate vehicle to dispose of the case. In that event, the proceeding may result in a full blown trial where the credibility of the parties can be assessed and gauged by the fact finder. [Id. at 411-12.]

However, in Cerracchio v. Leeds, 223 N.J. Super. 435, 442-44 (App. Div. 1988), we determined that the plaintiff established prima facie that he was discharged for exercising his rights under the workers' compensation statutes. There, the plaintiff notified his employer on August 13, 1984, that he filed a workers' compensation claim after he was hospitalized for chlorine gas poisoning that occurred on the job. Id. at 438. When he returned to work he was told by his employer, "you don't work here anymore." Id. at 440. The plaintiff was informed that he had been terminated as of August 13, 1984 because he failed to notify the employer that he was not coming to work that day. Ibid. Considering the evidence most favorably to the plaintiff, we concluded "[p]laintiff's evidence as to how [his employer] treated him after his accident, including the reference to his 'cases' and the statement that he would still be working if he was not a 'troublemaker,' along with legitimate inferences, could sustain a judgment that he was fired for filing the workers' compensation claim." Id. at 443.

The facts in this case are similar to those in Galante and support the grant of summary judgment in favor of defendant. As highlighted by Judge Perri, a one-year time period had elapsed between plaintiff's decision to file for her workers' compensation claim and defendant's decision to terminate her. This is unlike the facts in Cerracchio, where plaintiff was terminated the same day he notified his employer of his injury and his workers' compensation claim.

Also, the plaintiff here, like in Galante, failed to offer even a scintilla of proof that her termination, predicated upon her excessive absenteeism, was a retaliatory move on the part of defendant. There were no facts to suggest an animus occasioned by the filing of the workers' compensation claim. Indeed, as noted by Judge Perri, defendant attempted to contact the carrier to pay for plaintiff's time out for physical therapy and approved plaintiff's modified work schedule to accommodate for her therapy.

No reasonable factfinder could find that plaintiff was terminated in retaliation for filing a workers' compensation claim.


We next address the LAD claim. Trial was conducted before Judge Mullaney and a jury. At the conclusion of plaintiff's case, defense counsel moved for dismissal of the LAD claim because plaintiff was accommodated by defendant and her request for extended leave was in relation to her bronchitis, not the carpal tunnel syndrome. Defense counsel also argued that plaintiff was not entitled to punitive damages under the LAD because there was no proof that defendant's conduct was malicious, willful and wanton or egregious.

Judge Mullaney granted defendant's motion with respect to punitive damages but reserved decision on the LAD claim until the defense concluded presentation of its case. When all of the evidence was in, the judge dismissed the LAD claim, finding that defendant made reasonable accommodations for plaintiff's carpal tunnel syndrome. He said:

On the LAD count, I find that there was no action at all by the defendants to discriminate against the plaintiff. The law requires them to have reasonable accommodations made when somebody suffers a physical defect. Now, I have heard no testimony whatsoever that these people did not accommodate her. I've heard testimony about splints. I've heard testimony about breaks. . . .

[T]hey put some kind of shelving in to ease the lifting of files. Facilitated a chair with some kind of arm rest on it. If there was an atmosphere where they were not going to accommodate the plaintiff's complaints there would be testimony about it. There would be things that would have been put in the record here other than what's in here.

They gave her time off. They let her go to the doctor. I don't know what more a busy law firm would be expected to do. I therefore find that they did and well accommodate the plaintiff and I'm going to grant the motion on the LAD count.

Plaintiff argues that there was sufficient evidence to show that her termination resulted from disability discrimination. She claims the trial court ignored the testimony by Amdur regarding his belief that plaintiff would be able to work only part-time and would be unable to do the job because of her carpal tunnel syndrome. According to plaintiff, Amdur testified that she "couldn't do anywhere near full capacity in terms of her work." Plaintiff further asserts that in cases involving mixed motives, the plaintiff only needs to "demonstrate that an impermissible or discriminatory reason was a motivating factor for the adverse employment decision, [then] the burden would shift to the employer to prove that it would have made the same decision even without the unlawful motive." (citing Myers v. AT & T, 380 N.J. Super. 443, 457 (App. Div. 2005), certif. denied, 186 N.J. 244 (2006)). Plaintiff argues she was terminated because of Amdur's "consideration of the perceived inability of plaintiff to perform her job upon her return."

To prove otherwise, plaintiff claims the burden shifted to defendant to prove that it reasonably arrived at the opinion that plaintiff was unqualified for the job. According to plaintiff, this required defendant to carefully inform its doctors of the job requirements and obtain an informed medical opinion.

"In the case of motions for involuntary dismissal, the test is, as set forth in [Rule] 4:37-2(b) . . ., whether 'the evidence, together with the legitimate inferences therefrom, could sustain a judgment in . . . favor' of the party opposing the motion . . . ." Dolson v. Anastasia, 55 N.J. 2, 5 (1969).*fn1

If, accepting as true all the evidence which supports the position of the party opposing the motion and "according him [or her] the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ, the motion must be denied." Ibid. The court "is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the party opposing the motion." Id. at 5-6.

The LAD prohibits employment discrimination on the basis of a disability. Potente v. County of Hudson, 187 N.J. 103, 110 (2006). Specifically, N.J.S.A. 10:5-4.1 prohibits any unlawful discrimination against any person because such person is or has been at any time handicapped or any unlawful employment practice against such person, unless the nature and extent of the handicap reasonably precludes the performance of the particular employment.

The New Jersey Administrative Code (Code) further defines the role of an employer in ensuring that a disabled person is not disadvantaged in the workplace. Jones v. Aluminum Shapes, Inc., 339 N.J. Super. 412, 421 (App. Div. 2001). This role includes providing "reasonable accommodations." Ibid. N.J.A.C. 13:13-2.5(b) provides that

[a]n employer must make a reasonable accommodation to the limitations of an employee or applicant who is a person with a disability, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of its business. The determination as to whether an employer has failed to make reasonable accommodations will be made on a case-by-case basis.

Examples of reasonable accommodations may include: "[j]ob restructuring, part-time or modified work schedules" or "[j]ob reassignment and other similar actions." N.J.A.C. 13:13-2.5(b)(1)(i) and (iv). "Reasonable accommodations" may also include a limited leave of absence. Malone v. Aramark Servs., Inc., 334 N.J. Super. 669, 681 (Law Div. 2000). However, under the LAD "excessive absenteeism need not be accommodated even if it is caused by a disability otherwise protected by the Act." Id. at 675. Further, an employer can be excluded from providing accommodations where an employer reasonably determines that an employee, because of a handicap, cannot presently perform the job even with accommodation. N.J.A.C. 13:13-2.8(a); see also, Svarnas v. AT & T Commc'ns, 326 N.J. Super. 59, 75 (App. Div. 1999).

In Svarnas, supra, at 62-63, the plaintiff, a telephone operator, was terminated from her employment with AT&T after twenty-two years of service. The company's stated reason was the plaintiff's excessive absenteeism. Id. at 63. Following her dismissal, the plaintiff sued the company under the LAD, claiming discrimination because of her asthma condition and for suffering from bodily injuries sustained in a motor vehicle accident. Ibid. The plaintiff claimed that the company used her absenteeism as a pretext for its unwillingness to accommodate her part-time work schedule and her desire for a smoke-free work environment. Ibid. The trial court granted summary judgment in favor of AT&T and the plaintiff appealed. Ibid.

We affirmed, finding that the plaintiff failed to show that she was performing her job at a level that met her employer's expectations. Id. at 71. We agreed with the trial court that no accommodation was required because the plaintiff was not otherwise qualified to do her work, "[t]hat is, she could not be so qualified because she was not there." Id. at 72. We noted that "[h]er absences were due to a host of illnesses, not simply her claimed disabilities or asthma and the car-accident-related injuries." Id. at 77. Also, "there [was] not one shred of evidence that [the] defendants' conduct was motivated by discriminatory animus." Id. at 82. "There [was] nothing in the record from which a reasonable factfinder could conclude that AT&T fabricated plaintiff's excessive absenteeism as the excuse for firing her to hide the fact that it did not want to employ individuals with asthma or accident-related injuries." Ibid.

The facts in this case are similar to those in Svarnas. Plaintiff's absences were due to a host of illnesses, not simply her claimed disability of carpal tunnel syndrome. Also, plaintiff could only work restricted hours and on "light duty," an indication that she was not presently able to meet the requirements of her job. Finally, the record here, like in Svarnas, does not show that defendant's conduct was motivated by discriminatory animus or that defendant fabricated plaintiff's excessive absenteeism.

Indeed, defendant was very accommodating. To assist with plaintiff's carpal tunnel syndrome, plaintiff wore hand splints to work, new shelving was installed and a new chair and arm rest were provided for plaintiff. Her work schedule was modified to allow for physical therapy in the morning hours. It was not until plaintiff informed defendant that her leave of absence was being extended for problems unrelated to her disability that defendant became concerned and plaintiff was terminated. Defendant was not required to accommodate plaintiff's excessive absenteeism or an extended leave that would impose an undue hardship. Malone, supra, 334 N.J. Super. at 675; Svarnas, supra, 326 N.J. Super. at 75-76.

Plaintiff's argument that the burden shifted to defendant under the McDonnell Douglas*fn2 framework is misplaced. There are two distinct categories of disability discrimination claims: "(1) 'a claim alleging discrimination . . . including a failure to reasonably accommodate an employee's known disability' and

(2) 'a claim for disparate treatment discrimination, i.e., treating a disabled employee differently . . . because of his [or her] disability.'" Viscik v. Fowler Equip. Co., Inc., 173 N.J. 1, 19 (2002) (quoting Seiden v. Marina Assocs., 315 N.J. Super. 451, 462 (Law Div. 1998)). The second is the case in which the McDonnell Douglas framework applies. See Viscik, supra, 173 N.J. at 20 ("This was a pretext case, not a reasonable accommodation case and the law clearly distinguishes between those theories."). Because plaintiff's theory was failure to provide reasonable accommodations and was alleged as such in the complaint, these arguments do not apply.

We find no error in the dismissal of plaintiff's LAD claim.


Finally, we address plaintiff's FMLA claim. Plaintiff argues that her orthopedic and pulmonary conditions constituted serious health conditions, entitling her to twelve weeks under the FMLA with the promise of return to her employment position. Plaintiff claims that Judge Mullaney erred for failing to charge the jury that she had met the requirements of proving a "serious health condition." She further claims that the judge erred for failing to instruct the jury that her reoccurring bronchitis/asthma was in the nature of an emergency situation, which did not require advance written notice under the FMLA. Finally, she claims that the jury should have been instructed that the combination of illnesses or injuries constituted a "serious health condition."

The jury found that plaintiff failed to prove "by the preponderance of the evidence that the plaintiff had a serious health condition which entitled her to leave under the [FMLA]."

"A jury is entitled to an explanation of the applicable legal principles and how they are to be applied in light of the parties' contentions and the evidence produced in the case." Rendine v. Pantzer, 276 N.J. Super. 398, 431 (App. Div. 1994), modified by, aff'd by, 141 N.J. 292 (1995) (internal quotations and citation omitted). A jury charge must correctly state the applicable law, outline the jury's function and be clear in how the jury should apply the legal principles charged to the facts of the case at hand. Velazquez v. Portadin, 163 N.J. 677, 688 (2000). "An incorrect jury charge, however, constitutes reversible error only if the jury could have come to a different result had it been correctly instructed." Viscik, supra, 173 N.J. at 18. Upon review, the appellate court "must consider the language surrounding an alleged error in order to determine its true effect." Ibid.

Under the FMLA, a "serious health condition" is defined as "an illness, injury, impairment, or physical or mental condition that involves . . . inpatient care in a hospital . . . or . . . continuing treatment by a health care provider." 29 U.S.C.A. § 2611(11). Continuing treatment by a health care provider includes "[a] period of incapacity (i.e., inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefor, or recovery therefrom) of more than three consecutive calendar days . . . ."

29 C.F.R. §825.114(a)(2)(i). An employee is unable to work if a health care provider "finds that the employee is unable to work at all or is unable to perform any one of the essential functions of the employee's position . . . ." 29 C.F.R. §825.115.

Accordingly, Judge Mullaney instructed the jury "[f]or purposes of the FMLA, a serious health condition is an illness, injury, impairment or physical or mental condition that involves a period of incapacity, inability to work of more than three consecutive days including any subsequent treatment or period of incapacity relating to the same condition." He continued by instructing that a serious health condition for purposes of the FMLA, is one which renders the employee unable to perform the functions of her job.

An employee is unable to perform the functions of the position where a health care provider finds that the employee is unable to work at all or is unable to perform any one of the essential functions of the employee's position.

Judge Mullaney's instruction regarding a "serious health condition" for purposes of the FMLA was in accordance with the applicable statutory and regulatory provisions. Indeed, the jury was instructed twice on the definition of a serious health condition under the FMLA.

Plaintiff was not entitled to an instruction that she satisfied this element of her claim as a matter of law because there was a factual dispute as to whether plaintiff's bronchitis/asthma prevented her from performing the functions of her job. Dr. Alario's note, which extended plaintiff's leave of absence, indicated it was in response to her back and hand pain. It was not clear as to whether plaintiff needed additional time off from work for her bronchitis/asthma condition or her disability related injury. There was also a dispute as to how many additional days plaintiff needed off for her illness. Because these factual disputes remained, plaintiff was not entitled to an instruction that she suffered from a "serious health condition" as a matter of law.

Plaintiff's argument that the jury should have been instructed that her illness was in the nature of an emergency was rendered moot by the jury's finding that there was insufficient proof that plaintiff suffered from a "serious health condition." As the verdict sheet indicates, the jury was instructed to consider the issue of notice only if it found that plaintiff had a serious health condition. Because the jury found in the negative, it was not required to decide the remaining issues at trial. We have no occasion to discuss the issue further.

We find no error in the jury instructions. Affirmed.

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