The opinion of the court was delivered by: Irenas, Senior District Judge
Presently before the Court are Defendant's Motion for Summary Judgment (Docket No. 23), and Plaintiff's Cross-Motion for Summary Judgment (Docket No. 25). The Court has reviewed the submissions of the parties, and for the reasons set forth below, both Defendant's Motion for Summary Judgment and Plaintiff's Cross-Motion for Summary Judgment will be denied.*fn1
This case arises out of Plaintiff Agnes Theodossiou's termination by Defendant Commerce Bank, N.A. ("Commerce") in the months following her return from maternity leave. Plaintiff was hired by Commerce as an Assistant Vice President and Operations Manager for the Residential Mortgage Department in Commerce's Mount Laurel, New Jersey office on December 27, 2004. Her starting salary was $100,000 per year. (Pl. Dep. at 48-49, 61).
Plaintiff became pregnant at some point in early 2005, and advised Commerce as such in the spring or early summer of 2005. (Pl. Dep. at 125-127.) On October 12, 2005, Plaintiff requested a leave of absence under the Family and Medical Leave Act ("FMLA") for the impending birth of her child. (Def. Ex. 8.) Commerce denied her request for FMLA leave by letter dated October 18, 2005, because she had not yet completed one year of employment with the company as required by the FMLA. (Def. Ex. 9.) However, Plaintiff was granted "Emergency Medical Leave" ("EML") as provided for under Commerce's leave of absence policy. (Id.) Her EML began on November 1, 2005.
Plaintiff gave birth on December 13, 2005. (Pl. Dep. at 134.) Beginning December 27, 2005, while she was still on EML, Plaintiff became eligible for, and was granted, leave under the FMLA and the New Jersey Family Leave Act ("NJFLA"). (Def. Ex. 11.)
During Plaintiff's leave, Commerce decided to undertake a reorganization of it's Residential Mortgage Department. (Greenberg Dep. at 27, 57-61.) Steven Greenberg, the new Managing Director of Residential Mortgage, and Michael Copley, the Senior Vice-President of Retail Lending were primarily responsible for the reorganization. (Id.) Though it is not clear precisely when the final determination was made, as of late-April 2006, it was likely that the position of "Operations Manager" would be eliminated as part of the restructuring. (Greenberg Dep. at 85-88; Id. at Ex. P-67.) While discussions and plans regarding the reorganization were ongoing during Plaintiff's leave and shortly after her return, the plan was not implemented or made public to Commerce employees until June 6, 2006. (Id.; Pl. Dep. at 190.)
Plaintiff returned to work at Commerce on May 2, 2006. (Pl. Dep. at 175.) When she returned, she allegedly asked Greenberg what she should be doing and he sent her to the Quality Control Department to update records where information was missing. (Pl. Dep. at 182-188.) When asked if she could return to her old job, Greenberg allegedly told her to "hang on, do something, and I'll let you know." (Id. at 188.) Additionally, Plaintiff testified at her deposition that someone else was occupying the cubicle that had once been hers, and she was assigned to an "employee cubicle" (as distinct from a "managerial cubicle"). (Id. at 187.)
However, Brian Tyson, who started as the Director of Residential Mortgage Operations on May 15, 2006, testified that he also gave Plaintiff some special projects, and that the work she was doing with the Quality Control Department was within the scope of the Operations Manager position. (Tyson Dep. at 70-72.) Furthermore, Defendant claims, and Plaintiff does not deny, that Plaintiff received the same salary upon her return as when she left. (Def. R. 51 Stat. ¶ 24.)
After the restructuring was announced on June 6, 2006, Plaintiff was informed that her position was being eliminated and she would have 60 days to try to secure another position with Commerce, but was unable to do so. (Def. R. 51 Stat. ¶ 29.) She was ultimately terminated on August 7, 2006. (Def. Ex. 19.)
Plaintiff filed the instant Complaint on August 31, 2008. Count I of the Complaint alleges common law breach of contract.*fn2 Count II of the Complaint alleges that Commerce violated the FMLA because Plaintiff was not restored to her original job or an equivalent position upon her return from leave, and because Defendant discriminated against her for exercising her rights under the FMLA, 29 U.S.C. § 2601 et seq. Count III alleges a violation of the New Jersey Family Leave Act ("NJFLA"), N.J. Stat. Ann. § 34:11B-1, et seq., for the same conduct. Finally, Count IV alleges a violation of the New Jersey Law Against Discrimination ("NJLAD"), N.J. Stat. Ann. § 10:1-1 et seq., because Defendant discriminated against her for taking maternity leave.*fn3
"[S]ummary 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 a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed. 2d 265 (1986) (quoting Fed. R. Civ. P. 56(c)). In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir.1986).
"'With respect to an issue on which the non-moving party bears the burden of proof, 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.'" Conoshenti v. Public Serv. Elec. & Gas, 364 F.3d 135, 145-46 (3d Cir.2004) (quoting Celotex ). The role of the Court is not "to weigh the evidence and determine the truth of the matter, but to determine whether there ...