UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
February 24, 2011
MICHAEL J. MATTHEWS, JR. PLAINTIFF,
THE NEW JERSEY INSTITUTE OF TECHNOLOGY, ET AL.,
The opinion of the court was delivered by: Honorable Joseph E. Irenas
IRENAS, Senior District Judge
Plaintiff Michael Matthews, Jr. initiated this poorly drafted and factually muddled action against his employer, the City of Atlantic City ("the City"), and several of its employees, alleging a series of statutory and common law claims.*fn1 Following this Court's decisions pursuant to a Motion to Dismiss and Motion to Amend the Complaint, and after Plaintiff's voluntary dismissal of certain claims against specific Defendants, the claims that remain include violations of the Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-1 et. seq., the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-1 et seq., and the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601-2654.
All of the remaining Defendants*fn2 have now moved for summary judgment, and in so doing, have made an effort in their brief to precisely identify the various claims and legal theories Plaintiff now asserts.
Plaintiff began his employment with the City in 1980 as a mechanic, and from 1997 until 2001 was employed as a Data Processing Programmer in the City's Management Information Systems Department ("MIS"). (Pl's Stat. of Facts ¶ 1.) In 2001, Plaintiff was provisionally promoted to Senior Data Processing Systems Programmer ("SDPSP"). (See Pl's Ex. 11.)
In early 2005, the City outsourced the work being performed by MIS to the New Jersey Institute of Technology ("NJIT") and its director Ernest Muro pursuant to several contracts. (See Pl's Exs. 12-19.) Shortly thereafter, Plaintiff voiced objections to: the waste of City resources and money,. . . the [alleged] breaking of contracts by NJIT which resulted in double payments and litigation where the City had to buy out contracts already entered into with Gateway Computer Services and then having to pay Dell Computer Services, . . . the lack of oversight created within IT Department and . . . statements and comments *fn3 made about [Plaintiff] by Mr. Ernest Muro. (Amended Compl. Count One ¶ 12.)
On April 28, 2005, Plaintiff met with Defendant Domenic Cappella, Business Administrator, who informed him that he was being transferred from MIS to the Radio Shop due to tensions between Plaintiff and Muro. (Defs' Stat. of Facts ¶ 23.) Plaintiff was told that he would maintain his salary and his provisional SDPSP title and would be able to utilize his talents in a different department. (Id.; see also Pl's Ex. 22(transcript of meeting) at 13:10-23; 16:15-23; 45:15-17.) Plaintiff agreed to the transfer because he was not going to be able to work with Muro. (Pl's Ex. 20 (Pl's dep.) at 62:18-24.)
Plaintiff's transfer was effective June 8, 2005, and for approximately eight months following his transfer, Plaintiff maintained his salary and SDPSP title.*fn4 (Defs' Stat. of Facts ¶ 26; Pl's Ex. 25.) However, on January 27, 2006, Plaintiff was demoted from his provisional SDPSP title to his permanent Data Processing Programmer title with a corresponding 11% salary reduction.*fn5 (See Pl's Ex. 26.)
According to Defendants, Plaintiff was demoted immediately after Mayor Robert Levy took office, pursuant to the common practice for an incoming administration to remove City employees from their provisional titles.*fn6 (See Defs' Stat. of Facts ¶¶ 28-29.) Plaintiff, however, alleges that his transfer to the Radio Shop, along with the demotion and corresponding salary reduction, were in retaliation for the objections he voiced regarding NJIT and Muro. (Pl's Br. in Opp. at 64-68; Amended Compl. Count One ¶9.)
Plaintiff also made complaints about dust particles in connection with the installation and wiring of a PA system, which began around March 2008. (Defs' Stat. of Facts ¶¶ 47-48; Pl's Ex. 43.) This project involved removing ceiling tiles and running wires between electronic equipment located throughout the building. (Defs' Stat. of Facts ¶ 47.) Shortly after beginning work on the PA project, Plaintiff, who allegedly suffers from asthma, began to have respiratory problems due to particles on the ceiling tiles. (Id. ¶ 48; Pl's Stat. of Facts ¶ 35.)
Plaintiff expressed his health and safety concerns to his immediate supervisor, Defendant Richard Sooy, who gave him permission to contact the City Health Department. (Defs' Stat. of Facts ¶ 48.) Plaintiff spoke to Domenic Colella, a Registered Environmental Health Specialist in the Atlantic City Division of Health, Environmental Health Unit ("ACDH-EHU").*fn7 (Id. ¶ 49.)
According to Plaintiff, despite doctor's notes about his asthma, he was repeatedly assigned to the PA project and he was given no more than 28 days of a "light-duty" schedule.*fn8 (Amended Compl. Count 2 ¶ 10, 13.) In addition, City Communications Chief, Defendant Donna Gaskill, allegedly "refused to consider specific accommodations for Plaintiff in order to allow him to perform the work in a way which would not impact his own health."*fn9 (Pl's Opp. Br. at 73.)
On April 7, 2009, the New Jersey Department of Labor and Workforce Development, Office of Public Employees' Occupational Safety and Health ("NJDLWD") conducted a scheduled inspection of the Radio Shop ("PEOSH inspection"). (Id. ¶ 58.) The parties agree that Plaintiff's only involvement with the PEOSH inspection was that he accompanied the inspector throughout the premises, as directed by Defendant Sooy. (Id. ¶¶ 59-60.)
On May 4, 2009, Plaintiff received a written reprimand for failing to retrieve and properly store Radio Shop equipment from City Hall as directed by Defendant Sooy. (Defs' Stat. of Facts ¶44.)
On October 14, 2009, Plaintiff submitted a discrimination complaint to NJDLWD, alleging that the May 4, 2009 written reprimand was in retaliation for his involvement with the PEOSH inspection. (Glickman Cert., Ex. 14.) In his discrimination complaint, Plaintiff explained:
I mentioned [to a co-worker] that it was pretty ironic that within a week or two weeks (since the light covers had been missing) the inspection took place. Sooy then remarked "yeah....ironic" in an accusing, sarcastic tone toward me.
Then realizing that Sooy was obviously blaming me for the inspection, I reminded Sooy that the inspector had previously stated to Sooy and myself that other city facilities are also being inspected and not just the Radio Shop (trying to reason with Sooy that it wouldn't have been my doing that the Radio Shop was inspected since the Radio Shop was not the only place that had been inspected.
Sooy responded that he had yet to find anybody else where the inspector was at. (Id. at 8 of 9.)*fn10
In May 2010, following the expiration of the contracts between NJIT
and the City, Plaintiff submitted applications for positions in the
now de-privatized MIS which were allegedly ignored.*fn11
(Amended Compl. Count One ¶ 12.)
On March 4, 2009, Plaintiff filed a Complaint in this action in the Superior Court of New Jersey, Law Division, Atlantic County. Defendants removed the case to this Court on April 30, 2009.
On March 23, 2010, this Court granted in part and denied in part NJIT and Muro's Motion to Dismiss. On June 15, 2010 this Court granted Plaintiff's Motion to Amend the Complaint. Plaintiff filed an Amended Complaint on June 28, 2010 that did not include any claims against NJIT or Muro. Subsequently, Plaintiff filed a stipulation of dismissal as to NJIT and Muro.
On October 15, 2010, the remaining Defendants filed the instant Motion for Summary Judgment.
"[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 (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, 477 U.S. at 323). The role of the Court is not "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
As previously noted, the Amended Complaint is not entirely clear as to the claims asserted, but it appears that Plaintiff alleges violations of CEPA, NJLAD, and FMLA.*fn12
CEPA prohibits employers from taking retaliatory action against any employee who reports, or threatens to report what the employee reasonably believes is an illegal activity in the workplace. N.J.S.A. § 34:19-3(a). CEPA also protects from retaliation an employee who objects to or refuses to participate in a policy or practice which the employee reasonably believes "is incompatible with a clear mandate of public policy concerning the public health, safety or welfare or protection of the environment." N.J.S.A. § 34:19-3(c).
To establish a prima facie case of retaliation under CEPA, a plaintiff must show that: (1) he reasonably believed that his employer's conduct was in violation of a law, rule, or regulation, or was contrary to a clear mandate of public policy;
(2) the employee performed a whistleblowing activity as described in N.J.S.A. § 34:19-3; (3) his employer took an adverse employment action against him; and (4) a causal connection exists between the plaintiff's whistleblowing activity and the adverse employment action. Maimone v. Atlantic City, 188 N.J. 221, 230 (2006); Caver v. City of Trenton, 420 F.3d 243, 254 (3d Cir. 2005).
During oral argument, Plaintiff clarified that he is bringing a hostile work environment CEPA claim based on: (1) the alleged belief by Defendant Sooy that Plaintiff requested the PEOSH inspection of the Radio Shop; and (2) Plaintiff's health and safety complaints made in connection with the PA installation project.*fn13 The Court will consider each of these alleged protected activities in turn.*fn14
The alleged belief by Defendant Sooy that Plaintiff requested the PEOSH inspection cannot be the basis of a CEPA claim because it does not constitute whistle-blower activity under the statute.*fn15
CEPA requires that Plaintiff show that he disclosed, threatened to disclose, objected to or refused to participate in an activity, policy or practice that the employee reasonably believed was illegal or contrary to public policy. See N.J.S.A. § 34:19-3. Here, Plaintiff testified that he "did not have anything to do with the inspection occurring" and he does not allege that he performed any whistleblowing activity at all in connection with the PEOSH inspection. (Glickman Cert., Ex. 7 at 53:3-56:24.) Plaintiff's only involvement with the inspection was to walk the inspector through the premises, as instructed by Defendant Sooy. This does not constitute whistleblower activity.
Since Plaintiff has not alleged that he disclosed, threatened to disclose, objected to or refused to participate in an activity, policy or practice he believed was illegal or unethical, summary judgment will be granted to Defendants on this claim.*fn16
Plaintiff's next asserted basis for a CEPA claim concerns complaints about potentially harmful particles in the ceiling tiles that he made to Defendant Sooy, Defendant Gaskill, and the City Health Department in connection with the PA installation project. Plaintiff claims that he was retaliated against when his 2010 applications for employment with MIS as a Management Information Systems Specialist, Senior Technician, Principal Technician, Network Administrator, and Director of Data Processing were allegedly ignored.*fn17 (See Amended Compl. ¶ 12; Pl's Ex. 4.)
Defendants move for summary judgment arguing that Plaintiff did not perform whistleblower activity and that he has not proven that he suffered an adverse employment action as a result of his complaints.
The evidence supports a finding that Plaintiff reasonably believed that the PA installation project exposed employees to asbestos or other potentially harmful particles, in violation of law and public policy.*fn18 (See Pl's Ex. 41 March 11, 2008 Memo.) Plaintiff reported his concerns to Defendant Sooy, Defendant Gaskill, and the City Health Department, which constitutes whistleblowing activity.*fn19 In addition, the fact that Plaintiff's applications for employment in the deprivatized MIS department were ignored suggests a failure to promote, which is recognized by New Jersey courts as an adverse employment action. See Regan v. City of New Brunswick, 305 N.J. Super. 342 (App. Div. 1997), partially abrogated on other grounds, Dzowonar v. McDevitt, 177 N.J. 451 (2003). Finally, the evidence supports a causal connection because of Defendants' awareness of Plaintiff's complaints and filing of the instant action coupled with the close proximity of time between Plaintiff's protected activity and Defendant's apparent failure to consider his employment applications.
Viewing the evidence in the light most favorable to Plaintiff, there is a genuine issue of material fact as to whether Plaintiff was passed over for employment in MIS because of his whistleblower activity. Accordingly, Defendants' Motion for Summary Judgment will be denied on this claim.
The NJLAD prohibits employment discrimination on the basis of a disability "unless the nature and extent of the disability reasonably precludes the performance of the particular employment." N.J.S.A. § 10:5-4.1.
Plaintiff clarified at oral argument that his NJLAD claim is based on Defendants' alleged failure to engage in the interactive process to determine the need and availability of a reasonable accommodation for Plaintiff's asthma. Defendants argue that they are entitled to summary judgment because Plaintiff is not disabled within the meaning of the NJLAD and that they did not violate the NJLAD.*fn20
To establish that an employer failed to participate in the interactive process, an employee must prove that: "(1) the employer knew about the employee's disability; (2) the employee requested accommodations or assistance for his disability; (3) the employer did not make a good faith effort to assist the employee in seeking accommodations; and (4) the employee could have been reasonably accommodated but for the employer's lack of good faith." Victor v. State, 401 N.J. Super. 596, 613 (App. Div. 2008).
Here the evidence establishes that Defendants were aware of Plaintiff's asthma*fn21 and that Plaintiff requested reasonable accommodations in the form of protective gear and time off from the PA installation project and from work generally.*fn22 The record is unclear as to whether Plaintiff ever received the protective gear he requested, and there is evidence that Defendants questioned the legitimacy of Plaintiff's accommodation requests and sought to discipline him for an alleged chain of command violation stemming from them. (See Pl's Ex. 44 (email dated March 10, 2008)). In addition, it appears that Defendants made it difficult for Plaintiff to take time off and never acted on his November 4, 2009 FMLA request. (See Glickman Cert. Ex. 7 at 50:14-51:15).
Viewed in the light most favorable to Plaintiff, the Court finds that there is a question of material fact regarding whether Defendants made a good faith effort to assist Plaintiff in seeking accommodations for his asthma. Accordingly, Defendants' Motion for Summary Judgment will be denied with respect to Plaintiff's NJLAD claim for failure to engage in the interactive process.*fn23
The FMLA protects an employee's right to family and medical leave from his job.*fn24 29 U.S.C. § 2612; Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 401-02 (3d Cir. 2007). A cause of action exists where an employer interferes with an employee's exercise of FMLA rights. See 29 U.S.C. § 2615(a)(1); Callison v. City of Philadelphia, 430 F.3d 117, 119 (3d Cir. 2005). Interference with an employee's rights includes an employer's failure to advise the employee of his rights under the FMLA. Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135, 142-43 (3d Cir. 2004). Under the interference theory, "the employee need not show that he was treated differently than others [and] the employer cannot justify its actions by establishing a legitimate business purpose for its decision." Callison, 430 F.3d at 119-20.
Plaintiff's interference claim is based on (1) Defendants' alleged failure to advise Plaintiff of his FMLA rights, (2) the requirement that Plaintiff obtain a medical certification and fitness for duty exam, and (3) the alleged denial of Plaintiff's FMLA leave. (Pl's Opp. Br. at 76-77.) The Court will consider each of these claims in turn.
Plaintiff claims that Defendants failed to advise him of his rights under the FMLA.*fn25
To prevail on an interference claim based on a failure to advise, the employee must show prejudice by "establish[ing] that this failure to advise rendered him unable to exercise that right in a meaningful way, thereby causing injury." Conoshenti, 364 F.3d at 143. When the plaintiff has not presented any evidence that he could have made a different choice had the company informed him of his FMLA rights, he has not made a showing of prejudice. Id. at 145.
Here, Plaintiff's claim fails for two reasons. First, the record demonstrates that Plaintiff was advised of his FMLA rights. Plaintiff testified in his deposition that employees in the Human Resources Department explained to him the procedure for applying for FMLA leave sometime in 2009, and that prior to that time, he had never sought FMLA leave. (Glickman Cert., Ex. 7 at 49:11-51:14.)
Second, assuming Plaintiff was unaware of his FMLA rights in 2008, he has not met his burden of showing prejudice. There is no evidence that Plaintiff would have done anything differently had he been informed of his FMLA rights in 2008. The evidence demonstrates that Plaintiff took paid leave for occasional doctor's visits in 2008.*fn26 There is no evidence to support an inference that Plaintiff sought in 2008 any leave in addition to what he took or that any additional leave was medically necessary.
Accordingly, summary judgment will be granted to Defendants on Plaintiff's FMLA interference claim for failure to advise.
Plaintiff's next claim is that Defendants interfered with his FMLA rights by requiring him to obtain a medical certification and a fitness for duty exam.
First, requiring a medical certification is expressly permitted by the FMLA. See 29 C.F.R. § 825.305(a).
Second, Plaintiff has not presented evidence of any injury resulting from the fitness for duty exam or the medical certification, and courts have refused to recognize an FMLA interference claim in the absence of any injury. Lynch v. Matthews Int'l, 2010 WL 2640597, at *6 (W.D.Pa. June 29, 2010). The "mere violation of a right created by the Act is not in itself actionable and nominal damages are therefore not available." Hayduk v. City of Johnstown, 580 F.Supp. 2d 429, 482-83 (W.D.Pa. 2008)(citing Conoshenti, 364 F.3d at 143).
There is no evidence to support a conclusion that plaintiff forfeited any of his FMLA rights or lost any wages, salary, employment benefits or other compensation as a result of the fitness for duty exam or the medical certification.*fn27
Accordingly, summary judgment will be granted to Defendants on this claim.
Finally, Plaintiff claims that Defendants interfered with his FMLA rights when they failed to take any action on Plaintiff's November 2009 request for FMLA leave.
To prove an FMLA interference claim, "the employee only needs to show that he was entitled to benefits under the FMLA and that he was denied them." Sommer v. The Vanguard Group, 461 F.3d 397, 399 (3d Cir. 2006). Interference includes "not only refusing to authorize FMLA leave, but discouraging an employee from using such leave." 29 C.F.R. § 825.220(b).
Pursuant to the FMLA and related regulations, "when an employee
provides notice of the need for FMLA leave, the employer shall provide
the employee with notice detailing the specific expectations and
obligations of the employee and explaining any consequences of a
failure to meet these obligations." 29 C.F.R. § 825.301(b)(1). An
employer interferes with the exercise of FMLA rights if it fails to
provide the employee who gives notice of
the need for FMLA leave written notice detailing the specific
expectations and obligations and resulting consequences. See 29 U.S.C.
§ 2615(a)(1); Parker v. Hahnemann Univ. Hosp., 234
F.Supp.2d 478, 483 (D.N.J. 2002).
Here, Plaintiff sought FMLA leave for his asthma in November 2009 by completing a FMLA certification and submitting forms to the City. See supra note 24; Pl's Ex. 52 (FMLA Certification); Glickman Cert. Ex. 7 at 50:14-51:15. Viewed in the light most favorable to Plaintiff, the evidence demonstrates that Plaintiff provided notice to Defendants that he was seeking FMLA leave and they failed to take any action on Plaintiff's request. Plaintiff has thus created a genuine issue of material fact as to whether Defendants, in failing to act on Plaintiff's FMLA request, interfered with his rights. Accordingly, Defendants' Motion for Summary Judgment will be denied on this claim.
For the reasons stated above, Defendants' Motion for Summary Judgment will be granted in part and denied in part. Defendants' Motion will be denied with respect to Plaintiff's (1) CEPA claim based on complaints made in connection with the PA project, (2) NJLAD claim based on Defendants' failure to engage in the interactive process, and (3) FMLA interference claim based on Defendants' failure to act on Plaintiff's November 2009 FMLA request. An appropriate Order accompanies this Opinion.
JOSEPH E. IRENAS, S.U.S.D.J.