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Marshall v. Township of Galloway

April 26, 2010

MICHELLE D. MARSHALL, PLAINTIFF-APPELLANT,
v.
TOWNSHIP OF GALLOWAY AND BETH MCCANN, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Atlantic County, No. L-3881-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 1, 2009

Before Judges Wefing, Messano and LeWinn.

Plaintiff Michelle D. Marshall appeals from a trial court order granting defendants' motion for summary judgment and dismissing her complaint with prejudice. After reviewing the record in light of the contentions advanced on appeal, we reverse that order and remand this matter for further proceedings.

In December 2003, plaintiff was hired by defendant Township as a clerk in the office of the Township's Construction Official. Her direct supervisor was defendant Beth McCann, who served as Technical Assistant to the Construction Official.

In May 2004, plaintiff took pregnancy leave in connection with the birth of her child. Immediately after that birth, plaintiff began to experience shortness of breath, and she was diagnosed with congestive heart failure. She returned to work in or about the second week of July 2004. On August 18, 2004, while at work, plaintiff was stricken with severe chest pain and was rushed to the hospital by ambulance. McCann accompanied her to the hospital.

Plaintiff alleged that she expressed concern to McCann about whether her job would be in jeopardy because of her absence from work. She said that McCann repeatedly assured her that she should not worry about that but rather concentrate on getting better. Plaintiff alleged that she told McCann that her doctor wanted her to remain out of work at least through September 14, 2004 and inquired whether McCann wanted a note from her doctor to that effect. Plaintiff said that McCann assured her that she did not have to provide a doctor's note at that point.

Plaintiff also alleged that McCann told her on August 24, 2004, that she did not have to bring in a doctor's note immediately because she could first use her sick time and vacation time. Plaintiff further alleged that on August 27, 2004, she faxed a doctor's note to the Township, advising that plaintiff was to remain out of work until September 14, 2004.

On that same day, August 27, plaintiff received two letters from the Township. The first letter advised her that she was being terminated for being out of work "beyond the allowable time given to an employee without some sort of doctor[']s note or written request from you, which is in violation of Township Personnel Policy." The letter was signed by defendant McCann.

The second letter was also signed by McCann. It stated that although plaintiff had faxed a doctor's note, "it was not received within the permitted 5 day period required. Due to the current workload and the fact it would create an extreme hardship within the department we cannot hold your position for that length of time." Plaintiff expressed her dismay to McCann, noting that she was left without health insurance for herself or her baby.

Defendants disputed portions of those factual allegations. In particular, defendants contended that they had made a number of efforts to contact plaintiff after August 18, and had been unsuccessful in reaching her. According to the record before us, the Township has yet to fill plaintiff's slot in the office.

In May 2006, plaintiff filed suit, alleging that her termination was unlawful, that the Township had not made an effort to accommodate her disability, and that her termination was a ...


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