The opinion of the court was delivered by: Hillman, District Judge
This matter comes before the Court on Defendant's Motion for Summary Judgment on Plaintiff's claims for retaliation and discrimination. For the reasons expressed below, Defendant's Motion for Summary Judgment motion will be granted in part and denied in part.
Plaintiff, Sharon Garrett, was employed by Defendant, AtlantiCare Health System, Inc. ("AtlantiCare"), as an Administrative Secretary for over ten years prior to being terminated in February 2007. While working at AtlantiCare, Plaintiff reported to Lorraine Thayer, who was the Clinical Director of Ambulatory Care. Plaintiff had satisfactory performance evaluations in March 2004, March 2005, and March 2006. In 2006, Plaintiff took protected FMLA leave from October 2d to December 25th to recover from a broken ankle which required surgery.
Due to the absence of Plaintiff, Thayer hired temporary employees to perform Plaintiff's duties. One temporary employee, Charlotte Miller, stood out to Thayer as an asset. Specifically, Thayer described Miller as self-directed and hard working, with excellent secretarial skills. Defendant asserts that during the time temporary employees were performing Plaintiff's duties, deficiencies in Plaintiff's work came to the attention of Thayer. Specifically, Defendant asserts that Thayer found that some minutes were not completed and those that were completed had inaccuracies. Moreover, Defendant asserts that purchase orders were out of date, the petty cash was not reconciled, and the filing system was disorganized and unrecognizable. Defendant alleges that Thayer had not been aware of these performance issues prior to the time Plaintiff went out on leave.
On December 29, 2006, Marida Tindell, AtlantiCare's Leave Administrator, notified Plaintiff by letter that her FMLA leave had been exhausted and that "although the law does not require it AtlantiCare is granting you an unprotected leave of absence" of twelve weeks, on the condition that her medical condition warranted it. (See Cert. of Sarah Beth Johnson, Exhibit H.) The letter specified, "an unprotected leave of absence means that a job is not being held for you" and "a job is not guaranteed at AtlantiCare." (Id.) The letter also informed Plaintiff of her rights if her pre-leave position was filled upon her return and she was terminated. In that scenario, pursuant to company policy, Plaintiff had a six-month period to be reinstated in a new position within the company and her original hire date would be used for seniority purposes.
Approximately one month later, on January 23, 2007, Amy Bird-Bailey, a member of AtlantiCare's Human Resources Department, posted Plaintiff's position as open on AtlantiCare's intranet system so that candidates could apply and be interviewed. This action was taken after it was determined by Thayer that a permanent employee was needed to fill Plaintiff's position because the position now reported to two directors. Pursuant to company policy an employee's position is typically posted for rehiring as soon as the employee begins his or her unprotected leave of absence. At the time the position was posted, Defendant alleges that Thayer wanted to hire Miller.
Within a week, on January 29, 2007, Plaintiff notified Tindell that she was able to return to work on February 1, 2007. In accordance with Tindell's instructions in her December 29, 2006 letter, Plaintiff provided a "return to work" certification from her doctor. Upon hearing that Plaintiff was medically cleared to return to work, Thayer set up a meeting with Plaintiff. On February 2, 2007, Plaintiff met with Thayer and Bird-Bailey. In the meeting, Thayer informed Plaintiff that while she was out on leave, her work was found to be inadequate and corrections needed to be made. Thayer told Plaintiff she could reapply for her position and they could discuss how to make the necessary corrections. Thayer brought a memorandum she had prepared for her own use to the meeting, listing the above mentioned performance issues she had discovered with Plaintiff's work.
The parties dispute whether this memo constituted discipline. Whatever it was, it was apparently insufficient, standing alone, to preclude Defendant from rehiring Plaintiff, as Thayer invited Plaintiff to reapply for her pre-leave position during the meeting. She also told Plaintiff they were considering offering the position to Miller. Plaintiff stated that she was not going to reapply for the position, exclaiming:
"why would I reapply for a job that I was doing for ten years." (Cert. of Johnson, Exhibit A.)
At the end of the meeting, Bird-Bailey provided Plaintiff with her business card and instructed Plaintiff to contact her if she wanted help in finding a position within AtlantiCare. During the meeting, Bird-Bailey noticed that Plaintiff was "limping badly." However, Defendant asserts that Bird-Bailey did not doubt that Plaintiff was able to return to work.
Plaintiff never contacted Bird-Bailey for help. Rather, Plaintiff sent Tindell a letter with another copy of her medical clearance documentation. In the letter, Plaintiff stated that "I plan to actively seek another position within AtlantiCare; however, I'm still interested in my former position at the Health Plex, should it become available." (Cert. of Johnson, Exhibit N.) Tindell did not take any action with regard to the letter. Tindell said she did not take any action because the letter expressed that Plaintiff had talked with Thayer and Bird-Bailey, and she assumed that Plaintiff had mentioned the same information to them.
Sandy Festa, Administrative Director of the Health Plex, was also copied on the letter. Festa did not contact Plaintiff either, but did send an email to Bird-Bailey and Tindell. In her email, Festa stated that Plaintiff was still interested in her former position and asked Bird-Bailey if she needed a copy of the letter. Bird-Bailey claims she never received that communication. Furthermore, Thayer asserts that she never became aware that Plaintiff was interested in her pre-leave position.
Sometime in the middle of February, a meeting was held between Bird-Bailey and Miller regarding the open administrative position. The parties dispute whether this meeting constituted a formal job interview. Soon after the meeting Miller was offered the position. Due to personal reasons, Miller did not accept the position. The position was ultimately filled by another individual on March 30, 2007.
In the meantime, on February 20, 2007, Tindell sent Plaintiff an email notifying her that she was being administratively terminated from her employment with AtlantiCare. On February 22, 2007, Tindell followed that up with a letter notifying Plaintiff of her termination. Why these communications were sent at the time they were sent remains a bit of a mystery. Tindell explained that once an employee returns from unprotected leave and is not reinstated into that position or another position they are ultimately terminated. The letter specifically stated that "your position was filled, prior to your medical clearance on February 1, 2007 and your employment was terminated with AtlantiCare effective that date." (Cert. of Johnson, Exhibit K.)
Defendant acknowledges that this statement is false. It is false in two ways. First, Plaintiff's position was not filled before February 1st - in fact it had not even been filled when the letter was sent in late February. Nor does it make sense that Plaintiff was terminated as of February 1st since Defendant had met with Defendant's representatives the next day and was invited to reapply for her former position. Tindell claims she believed that the position had been filled at that time because that was the typical reason that an employee on unprotected leave was terminated. Ultimately, Plaintiff did apply and interview for other positions within AtlantiCare but was never hired.
Plaintiff filed a two-count Complaint against Defendant, claiming that her termination violated the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2614(a)(1), and the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-1, et seq. ...