August 17, 2011
MARGARET MATEJIK, PLAINTIFF-APPELLANT,
STATE OF NEW JERSEY; STATE OF NEW JERSEY DEPARTMENT OF TREASURY, DIVISION OF ADMINISTRATION HUMAN RESOURCES; AND THE OFFICE OF THE NEW JERSEY ATTORNEY GENERAL, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, L-1419-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 6, 2011
Before Judges Grall, C.L. Miniman and LeWinn.
Plaintiff Margaret Matejik was formerly employed by defendant New Jersey Department of Treasury (Department) and is now employed by the State's Office of Information Technology. She appeals from a grant of summary judgment in favor of the Department and a denial of her motion for partial summary judgment.*fn1
Plaintiff contends that the evidential materials submitted on cross-motions for summary judgment warranted judgment in her favor on her claim that the Department interfered with her exercise of rights under the federal Family and Medical Leave Act (FMLA), 29 U.S.C.S. §§ 2601 to 2119, and precluded an award of judgment in the Department's favor on her claim that it retaliated against her for exercising her rights under the FMLA, and discriminated against her based on disability in violation of New Jersey's Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42.*fn2 We conclude that the Department was not entitled to summary judgment and reverse.
The basic material facts are not in dispute. Plaintiff was hired by the State in 1999 and by January 2004 she was the supervisor of personnel records and the intermittent-payroll processing unit in the Department.*fn3 This case involves the period between January 2004 and November 2006, during which plaintiff's annual performance ratings were "exceptional."
In January 2004, there was a separate unit for regular payroll processing, which plaintiff did not supervise. At that time, she was suffering from migraine headaches that sometimes lasted for a day and other times for as many as fourteen days. Plaintiff sought treatment from her primary-care doctor and was referred to two different neurologists before returning to the care of her primary doctor. In the end, her primary doctor continued her on the medication both neurologists had prescribed. Plaintiff told her supervisor, Deborahann Westwood, and the head of the leave management unit, Lori Haggerty, about her condition.
While there are some factual disputes about plaintiff's conduct in the work place in 2004 and 2005, there is no dispute that plaintiff cried at work and on one occasion said she would like to "blow up the State House." During a subsequent meeting with Westwood and Douglas Ianni, of human resources, plaintiff explained that she was kidding. After that meeting, Westwood did not believe that plaintiff intended to do harm to the State House or any state employee.
Plaintiff later wrote an email to both Westwood and Ianni in which she stated, it "is very sad to me that someone took me seriously" and "I now know that I cannot trust those that I work with." Three days later, Ianni sent plaintiff a memo advising her that her remark was contrary to the Department's policy on work place violence and had to be taken seriously in present-day circumstances. He further explained that in accordance with departmental policy, he had scheduled an appointment for her with the Employee Advisory Service (EAS), which she missed due to her absence from work.
In his memo, Ianni raised other issues about plaintiff's conduct in the work place - her acting as if she were "miserable" and complaints received from a different division of the Department about plaintiff's dealings with members of its staff. He indicated that she was expected to conduct business in a professional and civil manner. Further, referencing plaintiff's report of stress she was experiencing because of her obligation to care for her ailing mother, Ianni reminded plaintiff of her option to take family leave or possibly seek a reduced work schedule.
In the final paragraphs of the memo, Ianni noted that based on plaintiff's email, he was confident that she understood the seriousness of her remark and "hopeful that it was an isolated event." He further clarified his position on her assertion that she could not trust her co-workers by stating, "[T]his is not an issue of trust between you and your co-workers. . . . [T]his matter was appropriately brought to my attention for action."
Westwood and plaintiff received that memo. Thereafter, plaintiff went to EAS once and was given a reference for services. Westwood and Ianni considered that matter closed. Subsequent emails, however, reflect that plaintiff complained about co-workers not liking her and about being held to a higher standard than others. Other emails indicated that co-workers complained about plaintiff. On March 14, 2006, Westwood advised plaintiff that she was questioning herself about whether plaintiff belonged in a supervisory position. Plaintiff responded by noting that Westwood did not want to hear what she had to say and always thought plaintiff was the problem.
On March 24, 2006, Ianni again sent a memo counseling plaintiff. This time he referenced what he believed was her insubordination and her conduct tending to alienate herself. He again recommended that she see EAS. Plaintiff asked Westwood to schedule an appointment with EAS but then cancelled it because she did not "feel" she "needed to go and . . . was not going to have somebody force [her] hand." About one week later, plaintiff called Westwood at her home on the weekend and told her she was going see a lawyer about harassment at work.
From April 11 through April 26, 2006, plaintiff was on medical leave she requested because of her migraines. Her primary-care doctor gave her a note dated April 10, 2006, indicating that she was under his care from April 11 through 24 and would be able to return to work on April 25. Plaintiff called Westwood at home on April 25 and reported that she had a virus and would not be able to come back to work until April 27. Westwood approved that extension of plaintiff's leave, and plaintiff reported for work on April 27.
On May 2, 2006, plaintiff visited Westwood's office as many as ten times. With an email to Allison Snyder, the Department's administrator of employee relations, and Ianni the next day, Westwood informed them that: plaintiff interrupted Westwood's meeting with another employee to leave slips on Westwood's desk; asked for assistance in completing a form; arrived crying with a "bright red" face to complain about other employees not "treat[ing] her right"; and stood in her doorway at the end of the day with two shopping bags "full of stuff" to say good bye. In Westwood's view, this behavior within four business days of plaintiff's return from leave was "extremely concerning" and disruptive. On the same day, Snyder stated that she had witnessed plaintiff's stomping back and forth the previous day, and that two other employees had observed plaintiff's "red and angry expression." Snyder was notified that another employee asked to deal with someone other than plaintiff because plaintiff was "always nasty."
Westwood, Ianni and Snyder met to discuss plaintiff's conduct, and they decided to refer her for an evaluation of her fitness for duty. Westwood suggested using Jonathan L. Rapaport, Ph.D. Since 2001 or 2002, the Department had used his services for employees who lived in the "Central Jersey/Mercer County area." Consistent with "normal practice," Westwood contacted Rapaport to explain the purpose of the examination, to advise him that she was forwarding documents including emails and plaintiff's performance evaluations, and to summarize the documents' contents.
On May 9, 2006, plaintiff was told to report to Rapaport for an independent medical examination. The next day, plaintiff went to the agency nurse crying and complaining of a migraine headache and job-related stress. She told the nurse that she had been to the emergency room the night before and was given "IV medications."
On May 11, 2006, plaintiff advised Westwood that she would keep her appointment with Rapaport. On May 15, 2006, plaintiff requested leave through June 12. A note from her primary doctor dated May 15 indicates that she would be under his care for headaches and anxiety until June 12 and would be able to return to work on June 13. On May 16, Westwood approved the request.
Rapaport completed his report on May 20, 2006, while plaintiff was on leave. Based on testing and a clinical interview, he was of the opinion that plaintiff was highly anxious, hypervigilant, evasive, socially alienated and extremely defensive. She had low self-worth and "many characteristics" common in people who "subsequently commit suicide."
Rapaport also reported that Topamax, the drug prescribed for her migraines, is an anti-seizure medication commonly used for Bipolar Disorder and mood stability. In his opinion, plaintiff was either depressed or suffering from Bipolar or Cyclothymic Disorder and was unfit for duty. Rapaport recommended intensive psychotherapy, possibly with medication, and treatment by a neurologist to address her migraine headaches. He suggested a follow-up evaluation after three months.
The Department decided to act on Rapaport's opinion while plaintiff was still on leave. In a letter dated May 30, 2006, Westwood advised plaintiff that she and Ianni wanted to meet with her to discuss Rapaport's findings. On June 2, they met, and plaintiff was allowed to review Rapaport's conclusions and recommendations. An email from Westwood summarizing the meeting indicates that plaintiff expressed her disagreement with the expert's report and indicated that the Department was requiring her to take the summer off.
On June 6, 2006, six days before plaintiff's requested leave was to expire, Ianni sent her a letter giving notice that her leave had been extended until September 12, 2006. Ianni referred to Rapaport's report, but he did not indicate that she had been deemed unfit for duty or that she could challenge that determination. He directed plaintiff to confirm monthly her receipt of the treatment recommended by Rapaport. He further advised plaintiff that she must submit to a second evaluation before returning to work. Because her paid leave would be exhausted by June 13, Ianni informed her that he had approved her application to use leave time donated by other employees. Ianni directed plaintiff to complete a leave-request form, the same form she had completed to request leave on other occasions; he explained that if she did not do so her leave could result in her absence being deemed "unauthorized."
Plaintiff saw a psychiatrist and a psychologist. On June 14, 2006 the psychiatrist wrote: "The patient has anxiety over her job. She is not suicidal and may be able to return to work." On June 22, the psychologist indicated that plaintiff denied depression and suicidal thoughts. In the psychologist's opinion, plaintiff was "open, articulate, intelligent and well oriented," and there was no reason for her to be out of work. On June 23, plaintiff forwarded those documents to Westwood and indicated she was ready to return to work.
On July 3, 2006, Westwood notified plaintiff she had sent the reports to Rapaport. She did not actually send them until July 10, when Rapaport returned from vacation. Westwood later explained that she did not want to send the confidential reports until Rapaport was there to take them.
In any event, on July 3, 2006, Westwood sent an email to Snyder about getting a third opinion on plaintiff's status. She wrote:
I'm in a pickle in that I have a great eval [sic] by a psychologist that puts an employee off duty as unfit, however, my employee has now produced medical [sic] from her psychiatrist claiming she is fit to RTW- [without] any treatment. We know she is not well and we want to send her for a third and final eval-the tie breaker so to speak. I'm having a hard time finding anyone that [sic] has been tried and tested. Can any of you help with the name of someone you have may have used that gave you a thorough report? . . .
On July 17, 2006, Westwood told plaintiff that Rapaport did not agree with the findings of her doctors and that she was scheduling an evaluation with a different doctor due to plaintiff's refusal to see Rapaport. But plaintiff agreed to see Rapaport, and Westwood scheduled an appointment for July 25. On that date, plaintiff told Westwood she was on vacation and could not see Rapaport until July 31. The appointment was rescheduled for August 1, and plaintiff attended. On August 8, Rapaport reported that plaintiff had made significant progress and advised that she was sufficiently stable to return to work.
Plaintiff returned to work on August 23, 2006. By that date, plaintiff had exhausted her FMLA leave. When she returned, she was advised that her intermittent payroll unit and the regular payroll unit had been merged and that the merged unit was under the supervision of Lorie Costanzo.
According to Westwood, she and Ianni began discussing a possible merger of these units in early 2006. It was done based on "operational need, reduced staffing, the inability to back fill, and the shrinking intermittent payroll." Westwood met with plaintiff and plaintiff's only subordinate and explained the organizational change. Plaintiff was told that she would report to Costanzo, not Westwood, and would continue to supervise her subordinate. Plaintiff asked for a written explanation, which she received on September 13. There is no dispute that plaintiff retained the same title, salary and benefits.
According to Snyder, plaintiff was initially calmer but quickly returned to her old behaviors. Snyder believed plaintiff was still mentally unstable.
Plaintiff requested a transfer and accepted a position in the Office of Information Technology in November 2006. Her pay, benefits, and title were not changed, but she no longer had any supervisory duties. According to plaintiff, she "was willing to take whatever [she] needed to do to get out of Treasury" and believed that the transfer to the Office of Information Technology was her only option.
When reviewing an order on summary judgment, this court must consider the evidence in the light most favorable to the non-moving party and determine whether the moving party was entitled to judgment as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). When the evidence is not sufficiently one-sided to compel the conclusion that the moving party must prevail, an order granting summary judgment must be vacated and an order denying summary judgment must be affirmed. Id. at 533.
Applying those standards, we conclude that neither party was entitled to summary judgment on plaintiff's claim that the Department's delay of her return from FMLA leave from the date it received her June 23, 2006 request to return to work until August 23, 2006 interfered with her rights under the FMLA.
We begin by summarily rejecting the Department's argument that this claim must be dismissed because plaintiff was on an "involuntary leave of absence," not FMLA leave, after June 6, 2006. The record provides no support for that factual assertion. It is flatly refuted by the terms of the June 6, 2006 letter sent to plaintiff, which advises her that her "leave of absence has been extended through September 11, 2006" and directs her to fill out a leave-request form, the same form plaintiff completed when she requested medical leave on May 15, 2006.
That said, there is no dispute that the FMLA applies in this case. Its "central provision guarantees eligible employees 12 weeks of leave in a 1-year period following certain events" one of which is "a disabling health problem." Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 86, 122 S. Ct. 1155, 1160, 152 L. Ed. 2d 167, 175 (2002); see 29 U.S.C.S. § 2612(a)(1). In addition, the FMLA provides rights at the end of FMLA leave; "[u]pon the employee's timely return, the employer must reinstate the employee to his or her former position or an equivalent." Ragsdale, supra, 535 U.S. at 88, 122 S. Ct. at 1160, 152 L. Ed. 2d at 175; see 29 U.S.C.S. § 2614(a)(1). Section 2615(a)(1) of the FMLA makes it unlawful for an "employer to interfere with, restrain or deny the exercise of or the attempt to exercise any right provided" in the FMLA, "and violators are subject to consequential damages and appropriate equitable relief." Ragsdale, supra, 535 U.S. at 86-87, 122 S. Ct. at 1160, 152 L. Ed. 2d at 175 (internal quotations omitted).
A claim alleging violation of section 2615(a)(1) "is typically referred to as an 'interference' claim." Sommer v. Vanguard Group, 461 F.3d 397, 399 (3d Cir. 2006) (quoting Callison v. City of Philadelphia, 430 F.3d 117, 119 (3d Cir.), cert. denied, 546 U.S. 876, 126 S. Ct. 389, 163 L. Ed. 2d 174 (2005)). To establish an interference claim, a plaintiff need not prove discriminatory intent. See, e.g., Kauffman v. Fed. Express Corp., 426 F.3d 880, 884 (7th Cir. 2005).
Plaintiff argues that the Department's delay of her return between the time of her request and submission of letters from a psychologist and psychiatrist indicating that she could return interfered with her rights under the FMLA. Specifically, she claims the Department required her to use more leave than necessary and denied her the right to return at the end of her leave.*fn4
Although the FMLA does not expressly limit the right to return to work to those employees who are fit to work at the end of their FMLA leave, the federal regulations include that limitation.*fn5 29 C.F.R. § 825.214(b) (2006) provides:
If the employee is unable to perform an essential function of the position because of a physical or mental condition, including the continuation of a serious health condition, the employee has no right to restoration to another position under the FMLA. However, the employer's obligations may be governed by the Americans with Disabilities Act (ADA).*fn6
To effectuate that limitation based on fitness for duty, the regulations permit an employer "to seek fitness-for-duty certification only with regard to the particular health condition that caused the employee's need for FMLA leave."
29 C.F.R. § 825.310(c) (2006). The regulation also limits the proof of fitness to return to work that an employer may require. It states, "The certification itself need only be a simple statement of an employee's ability to return to work." Ibid. It further provides that the employer's "health care provider . . . may contact the employee's health care provider with the employee's permission, for purposes of clarification of the employee's fitness to return to work." Ibid. Moreover, "[n]o additional information may be acquired, and clarification may be requested only for the serious health condition for which FMLA leave was taken." Ibid.
The regulation also addresses an employer's right to delay the employee's return while it satisfies itself that the employee is fit for work. It provides, "The employer may not delay the employee's return to work while contact with the health care provider is being made." Ibid.
There is one circumstance in which the employer may delay return, and that is when the employee is responsible for the delay. Employers who will require a fitness-for-duty certification must request it in the initial notice of rights and obligations they must give employees who request FMLA leave.
29 C.F.R. § 825.310(e) (2006); see also 29 U.S.C.S. § 2614(a)(4) (making it clear that ad hoc and no-notice requests are impermissible by limiting the right to request such proof to employers that have "a uniformly applied practice or policy that requires each . . . employee to receive certification from the health care provider of the employee that the employee is able to resume work"). If the employer has met that obligation and the employee has not complied, then "an employer may delay restoration until the employee submits the certificate." 29 C.F.R. § 825.312(c) (2006).
There is no question that the Department delayed plaintiff's return to work under circumstances not authorized by the FMLA. The first notice was given in Ianni's letter of June 6, 2006; it was not given pursuant to a uniform policy; and it requested confirmation of fitness for duty by independent medical examination, not simple certification.
The Department argues, however, that it falls within an exception to the FMLA's restrictions with respect to certifications of fitness. The Department relies on 29 U.S.C.S. § 2114(a)(4), the provision authorizing an employer with a uniform policy to require a "certification from the health care provider . . . that the employee is able to resume work." That section also states "that nothing in this paragraph shall supersede a valid State or local law or a collective bargaining agreement that governs the return to work of such employees." Ibid.
The Department relies on a regulation that authorizes a state agency to compel an employee returning from medical leave to submit to an independent examination as a condition of return to work, N.J.A.C. 4A:6-1.4(a), (g).*fn7 We agree with the Department that Congress's broadly stated reservation of room for operation of state law and collective bargaining agreements precludes a finding that the Department violated the FMLA by demanding an independent medical examination as a condition of plaintiff's return to work. We see no ambiguity in section 2114(a)(4) that would permit a different interpretation.
The question remains whether an employer relying on a state law must comply with it to avoid liability for a violation of the FMLA. In our view, section 2114(a)(4) cannot be reasonably understood to provide a safe harbor for an employer who has not complied with the state law "that governs the return to work of such employees." The regulation at issue here requires the state agency to "set the date of the examination to assure that it does not cause undue delay in the employee's return to work." N.J.A.C. 4A:6-1.4(g)(2).
Whether a state agency's delay is "undue" is a question of fact. The pertinent facts are the date plaintiff made her request to return; the date it was received by her employer; the date the employer sought to schedule the evaluation; plaintiff's unavailability and its impact on the scheduling; and the time that lapsed between the fitness determination and the first date the employer permitted plaintiff to report for work. The evidence relevant to those facts is largely testimonial and not so one-sided as to permit a grant of summary judgment in favor or either party. Brill, supra, 142 N.J. at 540. Accordingly, on plaintiff's claim that the Department interfered with her right under the FMLA to return to work, we affirm the order denying her summary judgment and reverse the order granting the Department summary judgment on this claim.
In contrast, we conclude that the Department was entitled to summary judgment on plaintiff's claim of retaliation. Section 2115(b) makes it unlawful to in any "manner discriminate against any individual because such individual . . . has filed any charge" related to the FMLA.
Plaintiff claims that the Department's ordering of an independent medical examination was retaliatory. There is nothing in the record that would permit a jury to reasonably conclude that the evaluation her employer required her to undergo or her employer's delay in reinstating her was done in retaliation for plaintiff's use of FMLA leave. The arguments presented are without sufficient merit to warrant any additional discussion in a written opinion. R. 2:11-3(e)(1)(E).
We turn to consider plaintiff's claim that the Department was not entitled to summary judgment on her LAD claim, which was that her employer discriminated against her on its perception that she had a disabling mental condition.
"The New Jersey Law Against Discrimination (LAD), among other things, prohibits employers from discriminating against employees based upon disability or perceived disability." Myers v. A T & T, 380 N.J. Super. 443, 452 (App. Div. 2005), certif. denied, 186 N.J. 244 (2006). Proof that discrimination based on that perception led to an adverse employment action is required. Ibid.
This record would permit a jury to find that plaintiff's employer perceived her to be disabled and took adverse action to exclude her from the work place because of that perception. Westwood's email requesting a second independent medical evaluation of plaintiff upon receipt of positive reports from plaintiff's doctors provides evidence that the Department perceived plaintiff as disabled. Westwood wrote, "We know that she is not well and we want to send her for a third and final eval - the tie-breaker so to speak." She went on to request the name of someone "tried and tested" to evaluate plaintiff's condition. On that evidence alone, a jury could infer that the delay in plaintiff's return to work was caused by her employer's refusal to accept her evidence of her condition, and that the delay in scheduling an independent examination was an adverse employment consequence attributable to discriminatory motive. There was additional evidence to support that conclusion - for example, the letter informing plaintiff that her leave had been extended, even though she had not made a request. The Department's evidence of a legitimate reason for its action was not so one-sided as to compel reasonable jurors to accept it or to conclude that plaintiff failed to meet her burden of proof of establishing that the employer's explanation reason was a pretext. Brill, supra, 142 N.J. at 533.
Affirmed in part; reversed in part; and remanded for further proceedings on plaintiff's claimed violations of 29 U.S.C.S. § 2115(a)(1) and the LAD.