United States District Court, D. New Jersey
For Plaintiff: Ari R. Karpf, Esq., Karpf, Karpf & Virant, Esqs., Bensalem, PA.
For Defendant: Robyn F. McGrath, Esq., Sweeney & Sheehan, Westmont, NJ.
HON. JEROME B. SIMANDLE, United States District Judge.
The federal Family and Medical Leave Act grants eligible employees up to twelve weeks of medical leave in a year without losing their jobs. In this case, Plaintiff Maureen Thurston alleges that her former employer, Foulke Management Corp., d/b/a Cherry Hill Triplex, violated her rights under the Family and Medical Leave Act, 29 U.S.C. § 2601, (" FMLA" ), when it terminated her position after she took FMLA leave to have surgery on her Achilles tendon. In her Complaint, Plaintiff asserts three Counts: (1) that Defendant interfered with rights she was entitled to under the FMLA (the " interference" claim); (2) that Defendant retaliated against her for exercising her rights under the FMLA (the " retaliation" claim); and (3) that Defendant wrongfully terminated Plaintiff in violation of the New Jersey Law Against Discrimination,
N.J. Stat. Ann. § 10:5-12 (" NJLAD" ). Plaintiff seeks lost compensation and benefits, damages, other equitable relief, and attorney fees as a remedy. 
Presently before the Court is Defendant's motion for summary judgment pursuant to Fed.R.Civ.P. 56 [Docket Item No. 11], which challenges all Counts of Plaintiff's complaint. With regard to Counts One and Two, Defendant asserts that Plaintiff exceeded the twelve weeks of protected leave the FMLA provides and consequently cannot avail herself of the FMLA's protections. Count Three alleges that defendant violated the NJLAD in terminating Plaintiff because she had a disability, real or perceived. Because Plaintiff does not claim that she is or was disabled, the primary issue to be decided as to Count Three is whether for the purposes of summary judgment Plaintiff has produced sufficient evidence to show that Defendants perceived her as disabled and terminated her because of that perceived disability.
For the reasons stated herein, this Court will deny Defendant's motion as to Count Two because genuine issues of material fact exist as to whether Defendant retaliated against Plaintiff for exercising her FMLA rights. The Court will grant Defendant's motion with respect to Count One and Three because Count One fails as a matter of law, and because Plaintiff has failed to establish a prima facie case of unlawful discrimination under the NJLAD.
Plaintiff Maureen Thurston began working for Defendant on February 10, 2004 as a bookkeeper and was employed in that position until her dismissal in November of 2005. (Compl. P 12.) Plaintiff was supervised directly by Patricia Warren, Defendant's office/accounting manager, during her entire period of employment with Defendant. (Thurston Dep. at 14, Pl.'s Opp'n Br. Ex. A.) On June 6, 2005, Plaintiff verbally informed Warren that she required a medical leave of absence for a necessary surgery on her Achilles tendon. (Forrest Dep. at 35, Pl.'s Opp'n Br. Ex. B.) Plaintiff testified that her doctor informed her that the surgery would require approximately twelve weeks of leave; however, if her foot required an anchor the leave could possibly be longer. (Thurston Dep. at 18.) The employer granted the leave which began on July 13, 2005, and the surgery was performed on July 14, 2005 at Summit Surgical in Voorhees, New Jersey. (Thurston Dep. at 19.)
Pursuant to the notice requirements of the FMLA, Defendant mailed Plaintiff a cover letter and United States Department of Labor (" DOL" ) form in order to provide Plaintiff with confirmation that she was taking FMLA leave and also providing the required notice of her rights, obligations, and any consequences of failure to follow the requirements associated with FMLA leave. ( Id. Ex. C.) The cover letter and FMLA form specified that Plaintiff was taking leave for an " unspecified amount of time" and required Plaintiff to furnish Defendant with bi-weekly reports on her condition and anticipated date of return. ( Id. ) The parties dispute the date said notice was received by Plaintiff. Dona Forrest, Defendant's Human Resources manager in charge of processing employee FMLA leave at the time of the incident, testified that she mailed the forms on Friday, July 13, 2005 and that Plaintiff likely received them the following Monday or Tuesday.
(Forrest Dep. at 40.) However, Plaintiff asserts that she did not receive the forms until " the end of July, I don't remember the exact date." (Thurston Dep. at 32.)
Defendant's leave policy and the FMLA notice Plaintiff received after her surgery contained statements explaining that FMLA leave is only available for a maximum of twelve weeks in a twelve-month period. ( Id. at Ex. D. & Ex. C.) However, Plaintiff asserts that she did not understand this temporal limitation on FMLA leave or that exceeding twelve weeks could result in termination. (Thurston Dep. at 26.) Plaintiff further stated in her deposition that following her surgery on July 14, 2005 she contacted Defendant through Warren, her supervisor, and informed her " that the doctor had put the anchor in my foot and that I was going to be out probably longer than the twelve-week period. And she told me just to keep in contact with Dona." ( Id. at 40.) Moreover, Plaintiff further alleges that in said conversation Warren told her to " take whatever time I needed to get recovered." ( Id. at 56.)
Defendant admits that this conversation " may" have occurred, but disputes the substance of the call, asserting that Plaintiff did not communicate a date of return. (Def.'s Answer PP 16-21.) Warren testified that she never was contacted by Plaintiff and did not have the conversation with Plaintiff on July 14, 2005. (Warren Dep. at 65-66, Pl.'s Opp'n Br. Ex. L.) However, Plaintiff has submitted phone records which show that she contacted Defendant on July 14, August 2, 23, September 7, 20, October 28, November 16 and 21. (Pl.'s Opp'n Br. Ex. F.)
On November 25, 2005, Plaintiff received a letter dated November 23, 2005, informing her that her position had been terminated because she exceeded the twelve weeks of leave allowed by the FMLA, failed to keep in contact with Defendant, and failed to provide documentation during the additional six weeks of leave. (Pl.'s Opp'n Br. Ex. G.) 
Plaintiff filed this Complaint against Defendant on August 16, 2006 [Docket Item No. 1]. After a lengthy period of pretrial discovery, Defendant filed the instant motion for summary judgment, to which the Court now turns [Docket Item No. 11].
A. Summary Judgment Standard of Review
Defendant has moved for summary judgment as to all Counts pursuant to Rule 56, Fed.R.Civ.P. A court may grant summary judgment when the materials of record " 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); see Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983). A dispute is " genuine" if " the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is " material" only if it might affect the outcome of the suit under the applicable rule of law. See Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id. 
On Defendant's motion for summary judgment, the Court must view the evidence in the light most favorable to Plaintiff. Yet the non-moving party must come forward with some admissible evidence: " Although entitled to the benefit of all justifiable inferences from the evidence, the nonmoving party may not, in the face of a showing of a lack of genuine issue, withstand summary judgment by resting on mere allegations or denials in the pleadings; rather, that party must set forth 'specific facts showing that there is a genuine issue for trial.'" United States v. 717 S. Woodward St., 2 F.3d 529, 533 (3d Cir. 1993) (quoting Fed.R.Civ.P. 56(e)).
B. Claims Under the FMLA (Counts I & II)
The FMLA was enacted to provide up to twelve weeks of leave for workers whose personal or medical circumstances necessitate that they take time off from work in excess of what their employers are willing to provide. See 29 U.S.C. § 2601, et seq. ; see also Victorelli v. Shadyside Hosp., 128 F.3d 184, 186 (3d Cir. 1997) (citing 29 C.F.R. § 825.101).  Employees who take FMLA leave are entitled to certain protections. See 29 U.S.C. § 2614. For example, an employee's leave cannot be denied, his or her health benefits must be maintained and, upon return from leave, he or she must be restored to the same, or an equivalent, position. See id. To protect these rights, employers are prohibited from engaging in certain prohibited acts. See 29 U.S.C. § 2614. First, § 2615(a)(1) makes it unlawful for " any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided" under the FMLA. Id. at § 2615(a)(1) (a so-called " interference" claim). Second, § 2615(b) makes it unlawful for " any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful" under the FMLA. Id. at § 2615(b)(a so-called " retaliation" claim). For the reasons discussed below, the Court will deny Defendant's motion for summary judgment as to Count One & Two but will grant summary judgment on Count Three.
1. Plaintiff's Interference Claim
Interference claims are " based on the prescriptive sections of the FMLA
which create substantive rights for eligible employees." Parker v. Hahnemann Univ. Hosp., 234 F.Supp.2d 478, 485 (D.N.J. 2002) (citing Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 159 (1st Cir. 1998)). An interference claim is " not about discrimination" and therefore, a burden-shifting analysis, such as that which courts employ under McDonnell Douglas and its progeny, is not required. Callison v. City of Phila., No. 03-3008, at *11 (E.D. Pa. 2004 Mar. 31, 2004). Rather, " these prescriptive rights 'set floors for employer conduct.'" Parker, 234 F.Supp.2d at 485 (quoting Hodgens, 144 F.3d at 159.)
The Department of Labor has promulgated regulations regarding interference claims, stating that " any violation of the [FMLA] or of these regulations constitutes interfering with, restraining, or denying the exercise of rights provided by the [FMLA]." 29 C.F.R. § 825.220(b). " Interference" includes " [a]ny violations of the Act or of these regulations." Id. To prevail on an FMLA interference claim, the employee merely needs to show she was entitled to benefits under the FMLA and that she was denied them. Parker, 234 F.Supp. at 485. She does not need to show that the employer treated other employees more or less favorably, and the employer cannot excuse its action by offering a legitimate business reason as justification. Id. (citing Hodgens, 144 F.3d at 159). This action is merely about whether the employer provided its employee the entitlements and protections guaranteed by the FMLA. Id.
In this case, Defendant does not dispute that Plaintiff was eligible for medical leave under the FMLA. Defendant's Statement of Uncontested Material Facts includes a stipulation that Plaintiff was " granted her FMLA leave for up to twelve (12) weeks pursuant to 29 U.S.C.A. § 2612(a)(1). (Def.'s Mot. for Summ. J., Statement of Uncontested Material Facts at P 8.) Moreover, it is undisputed that Plaintiff's leave exceeded the twelve weeks permitted by the FMLA. (Thurston Dep. at 34.) Therefore, Defendant argues that Plaintiff's interference claim fails as a matter of law because she was not entitled to reinstatement because her leave exceeded twelve weeks. See Katekovich v. Team Rent-A-Car of Pittsburgh, Inc., 36 Fed.Appx. 688, 690 (3d Cir. 2002) (holding that an employer may terminate an employee if the employee is unable to return to work after the twelve weeks of FMLA leave). Thus, as a matter of law, the Defendant argues that Defendant was within its legal right to terminate Plaintiff because at the time Plaintiff was terminated, the FMLA no longer afforded Plaintiff the right to return to her previous job or a comparable position.
Plaintiff asserts in response that her interference claim has merit, and should survive summary judgment, because Defendant interfered with her FMLA rights when Defendant failed to provide all the required individualized notice to which she was entitled concerning FMLA rights, obligations, and limitations. Specifically, Plaintiff contends that Defendant failed to notify her of the possibility of termination if she failed to return after the twelve weeks had expired, and misled and prejudiced Plaintiff by granting her an extension of leave and not informing her that she was revoking her FMLA protections. See Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135, 142 (3d Cir. 2004).
The Court finds, for the reasons set out below, that the notice Plaintiff received regarding her FMLA rights and obligations was sufficient as a matter of law, and consequently, summary ...