The opinion of the court was delivered by: Linares, District Judge
This matter comes before the Court on Plaintiff's motion for summary judgment filed by Defendant City of Plainfield. Plaintiff alleges, inter alia, that Defendant interfered with the rights guaranteed to her by the Family and Medical Leave Act of 1993, 29 U.S.C. 2601, et. seq., (the "FMLA") by suspending her while on leave and ultimately terminating her employment. The Court has considered the parties submissions and decides this matter without oral argument pursuant to Rule 78 of the Federal Rules of Civil Procedure. For the reasons set for below, Count I of Plaintiff's Complaint, Interference with FMLA Leave, is dismissed for lack of subject-matter jurisdiction; and, Defendant's motion for summary judgment as to the remaining count, retaliation pursuant to 42 U.S.C. § 1983, is granted.
Plaintiff Jadwiga Warwas is a licensed health officer and medical doctor. Second Amended Complaint ("Compl.") ¶ 3. Defendant City of Plainfield hired Plaintiff as a Manager of the Health Division on October 1, 2003. Brief in Support of Motion for Summary Judgment in Favor of Defendant ("Def. Brief") ¶ 1. At the time of her hiring, Plaintiff was employed by the City of Paterson as a part-time Quality Assurance Coordinator and by the Passaic Health Department as an Epidemiologist. ( Compl. ¶ 14.) Upon acceptance of Defendant's offer, Plaintiff resigned her position with the Passaic Health Department, but retained her job with the City of Paterson because, according to Plaintiff "that position did not require her presence in Paterson and had flexible work hours." (Id. ¶ 14.) Rather, Plaintiff's position with the City of Paterson only required her to respond to medical inquiries that were e-mailed to her home computer. (Id. ¶ 16.)
On July 24, 2006, Plaintiff's primary care physician, Eugene M. DeSimone, M.D. faxed a note to Karen Dabney, personnel director for the City of Plainfield, indicating the Plaintiff had a personal health problem and would be unable to work from July 24, 2006 until August 8, 2006.*fn1
(Def. Brief ¶ 2.) In the health certificate, Dr. DeSimone indicated that Plaintiff was "restricted to home and could not work/attend school." (Id. ¶ 4.) In response, Ms. Dabney sent a letter to Plaintiff confirming receipt of her doctor's note and attaching a copy of a notice advising Plaintiff of her rights under the FMLA. (Id. ¶ 3.) Defendant's FMLA leave policy requires employees who have accumulated sick leave or vacation to exhaust same before the City will convert the FMLA leave to unpaid status. (Compl. ¶ 13.)
During her leave, Plaintiff was paid a total of $8,211, which represented 178.5 hours of sick time. (Def. Brief at Ex. 5.) However, throughout her leave, Plaintiff was also working for the City of Paterson as a Quality Assurance Coordinator. (Id. ¶ 7.) Plaintiff's work records from Paterson indicate that between July 24, 2006 and August 29, 2006 Plaintiff worked 109 hours. (Id. at Ex. 6.) Defendant maintains that Plaintiff never informed the City of Plainfield of her employment with Paterson, nor did she request Defendant's consent to accept additional employment. (Id. at ¶ 9.) However, Plaintiff contends that this information was provided to Defendant in her resume that she supplied to Defendant and was discussed in her second interview with Plainfield. See Certification of Stephen E. Klausner ("Klausner Cert.") at Ex. K,p. 204.
Pursuant to Section 11:11-2 of the Plainfield Municipal Code,(a) Employees shall not accept outside employment or engage in outside business activities without the prior and continued approval of the Department Director. Applications for permission to accept outside employment shall be made in writing to the employee's division head who shall forward the same with his recommendation to the Department Director.
(b) The application shall set forth pertinent information concerning the type of employment to be engaged in, the name and address of the prospective employer, and the hours of such employment
(c) No application for permission to accept outside employment or engage in outside business activities shall be approved by the Department Director if, in his judgment, there is any reasonable probability that:
(1) Such outside employment will interfere with an employee's performance or compromise and employee's position with the City through a conflict of interest; or,
(2) If such employment shall exceed twenty (20) hours per week See Def. Brief at Ex. 7. Defendant alleges that, at the time of Plaintiff's hire, the Employee Handbook in effect stated:
Outside employment or engaging in outside business without the prior and continued approval of the department director is prohibited. Applications for permission to accept outside employment shall be made in writing to the division who will forward same with a recommendation to the department director.
See Def. Brief at Ex. 8. Plaintiff testified that she was never provided with a copy of the municipal code in its entirety nor a copy of the original handbook. (Klausner Cert. at Ex. K. p.76.) Ms. Dabney testified that the original handbook contained the Ordinance and was provided to Dr. Warwas at her employment orientation (Klausner Cert. at Ex. K, p. 58); however, Plaintiff testified that she never attended an orientation. (Klausner Cert. at Ex. X, p. 76.)
On March 15, 2004, Defendant adopted a revised Employee Handbook. (Def. Brief ¶12.) With respect to the outside employment, the revised ...