On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1618-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Graves, and Waugh.
Plaintiff Donna Brooks appeals an order of the Law Division granting summary judgment in favor of defendants State of New Jersey (State) and the New Jersey Motor Vehicle Commission (MVC). She contends that the motion judge erred in dismissing her claims under the federal Family and Medical Leave Act (FMLA), 29 U.S.C.A § 2601 to § 2654, and the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49. We reverse the dismissal of Brooks's claims of retaliatory demotion and discharge under the FMLA and LAD, as well as her claims of discriminatory demotion and discharge under the LAD. We affirm the dismissal of her claim for interference with her FMLA rights.
We discern the following facts and procedural history from the record on appeal.
Brooks started working for the State of New Jersey in 1988. In December 2003, she was provisionally promoted to the title of Personnel Assistant 4 (PA4), with an annual salary of $49,184.09. At that time, she was working at the Department of the Treasury (Treasury). As a PA4, Brooks was expected to function as a professional without the need for constant supervision and direction. She was advised that "[i]n order to gain permanent status in this title, you must file for and pass the examination and be recommended for appointment." She was further advised that she "continue[d] to have permanent status in [her former] title Technical Assistant Personnel [(TAP)], and ha[d] a right to return to that title if [she was] not appointed permanently to the [PA4] title."
On January 9, 2006, Brooks transferred from Treasury to MVC's human resources section. She retained the provisional title she received while working at Treasury. Brooks was initially assigned to assist Desiree Hardwick, who had been the coordinator of MVC's personnel evaluation system (PAR/PES) since 2005. Brooks's primary duties included ensuring that employee evaluations were entered into the PAR/PES database correctly and in a timely manner (within three days to two weeks of their receipt). She was also assigned to work with MVC management and the Department of Personnel (DOP) to address problems and provide training concerning the evaluation process, as necessary. In addition, Brooks was expected to assist on an as-needed basis with pension and benefits applications, as well as with payroll and time-keeping.
According to Brooks, there was an extensive backlog in the PAR/PES assignment when she arrived at MVC. After Hardwick was transferred to another assignment, Brooks took over as the PAR/PES coordinator.*fn1 She maintains that she spoke to her then manager, MaryBeth Longo, about her need for additional training, but that Longo was unresponsive. Longo denied that Brooks made such a request.
Brooks suffers from sickle cell disease, a condition causing intermittent debilitating episodes of pain that often require bed rest or hospitalization. During calendar year 2006, Brooks took twenty-seven days of medical leave pursuant to the MVC's leave policy. In 2006, MVC's personnel policy with respect to FMLA leave contained the following provision:
1. NJ Motor Vehicle Commission employees who have been employed for one year are eligible for leave under [FMLA] . . . .
2. The (FMLA) provides twelve (12) weeks of leave in a twelve-month (12) period for the employee's own serious health condition . . . . Employees are considered eligible for FMLA if they have worked a minimum of 1250 hours immediately before the requested leave date. . . .
7. FMLA . . . may be taken consecutively, or on an intermittent or reduced work schedule. . . .
Brooks began her first FMLA leave on May 30, 2006, and was out of work through June 30, 2006. On July 17, she started her second FMLA leave, which lasted through August 31, 2006. On December 4, Brooks took a third FMLA leave and remained out of work through January 19, 2007. Consequently, although the FMLA authorized only twelve weeks (sixty days) of leave per year, Brooks received fifteen weeks and three days (a total of seventy-eight days) of FMLA leave over the course of seven months in 2006, plus an additional three weeks (fifteen days) in January 2007. During 2006, she worked 117 complete days, between twenty-three and twenty-four weeks, at MVC.
While Brooks was out on her third FMLA leave, her new unit supervisor,
Tania Morgan, and Longo's successor as her manager, Donna Ingram,
concluded that the PAR/PES program was in disarray.*fn2
Morgan found evaluations dating back to 2004 that had not
been entered into the computer or filed. Morgan and Ingram arranged
for Marlene Mizsak, a PA4 who had served as the PAR/PES coordinator
between 2003 and 2005, to assume the coordinator role in January 2007.
When Brooks returned from her FMLA leave on January 22, 2007, she was
reassigned to work primarily in payroll, although she was still
required to assist with PAR/PES data entry.
According to Mizsak, the PAR/PES program was backlogged in January 2007. She trained Brooks and several other employees to help her with data entry. Mizsak did not have any problems with Brooks's performance, although she claimed that Brooks had difficulty coordinating her work assignments and characterized her as the slowest of her trainees at data entry.
Between January and March 2007, Ingram, Morgan, and Robin Liebeskind, MVC's Director of Human Resources, held several meetings regarding Brooks's performance at the level of a PA4. According to Ingram, no one held Brooks accountable for work that was not completed when she was ill, but "when she was here, it didn't appear that she understood or had done the things that you expect [sic] her to do as part of the coordinating group for the PAR/PES program." Ingram concluded that Brooks was not meeting deadlines, taking appropriate initiative, or performing the "coordinating" aspect of the job. Morgan, however, believed that Brooks was successfully performing her revised duties when she returned from her leave in January 2007.
According to Ingram, Liebeskind gave her and Morgan the option of rescinding Brooks's provisional appointment or working with her to help her improve, and they decided to rescind the provisional appointment. Liebeskind confirmed that Morgan and Ingram made the decision to return Brooks to her prior title.
Morgan, however, asserted that Liebeskind actually made the decision. Morgan also maintained she would have made Brooks's PA4 title permanent.
According to Ingram, Liebeskind also asked her to "feel out" whether there was any truth to the rumor that Brooks was considering retiring on disability. Ingram subsequently spoke to Brooks on March 1, 2007, and advised her that, if she chose to retire at that time, her retirement benefits would be calculated in accordance with her provisional status as a PA4. Brooks, however, maintains that Ingram advised her that, if she did not voluntarily retire on disability, she was going to be demoted because she took too many leaves and the MVC needed someone who would be present at work. Ingram denied issuing such an ultimatum.
The day after her conversation with Ingram, Brooks requested a meeting with Liebeskind. At the meeting, she told Liebeskind that Ingram had issued an ultimatum to her. Liebeskind advised her that no one was trying to force her to retire, but that the decision had been made to return her to her permanent title based upon her inability to work at the PA4 level, at which she was being compensated. According to Brooks, Liebeskind "hinted around" that the MVC "need[ed] somebody here all year . . . long to do [her] job." When Brooks complained that she had not received sufficient training on the PAR/PES system to perform her job successfully, Liebeskind replied that she had been given plenty of time to learn the job or to ask for assistance.
Mizsak retired on March 1, 2007. Morgan directed Brooks to "take the lead" with respect to the PAR/PES program on a temporary basis. Shortly thereafter, another employee was assigned to serve as the new PAR/PES coordinator.
On March 14, Brooks met with Morgan to review her interim evaluation for the period August 1, 2006, to July 31, 2007. Morgan evaluated Brooks as a PA4 and awarded her eighteen out of thirty points, which gave her an interim performance rating of "commendable." Had she received three fewer points, she would have been deemed "unsatisfactory."
Morgan justified her rating of Brooks as follows:
[Brooks's] supervision changed effective November 17, 2006. [Brooks] is primarily responsible for maintaining, and entering PAR/PES within specified time frames. She was also assigned to coordinate the statewide Toy and Coat Drive. On December 4, 2006, she went on medical leave and was unable to coordinate either program and see them through to completion. While [Brooks] was on leave it was discovered that PAR/PES dating back to the 2004 cycle were neither entered nor filed. This resulted in deadlines not being met and issues not being resolved. It does not appear that a significant amount of progress or effort had been made to organize and maintain the PAR/PES program efficiently. [Brooks] was also assigned to coordinate [the] 2006 Toy and Coat Drive during the last two weeks of November. She demonstrated motivation in gathering information from the statewide Coordinator, ensuring that dates, timeframes and flyers, were confirmed and coordinated, however, shortly after being assigned to coordinate the drives [Brooks] went out on medical leave. When [Brooks] returned from leave, it seemed that [she] had difficulty coordinating work assignments with the new PAR/PES coordinator which hindered progress in developing an effective PAR/PES maintenance system. One incident occurred on February 28, 2007 that involved [Brooks's] telling the PAR/PES coordinator to do the work herself. On February 29, 2007, the PAR/PES coordinator went on medical leave leaving [Brooks] to take the lead in the PAR/PES program. She was instrumental in training three of her co-workers, and assisting with getting the PARS organized and developing a filing system. She also expressed an interest in assuming other duties and assisting with special programs. [Brooks] expressed on February 22, 2007 . . . that on average 100 PARS could be entered daily. [Brooks] is being held accountable to ensuring that she and others in our team are entering at least 75 PARS daily, once they are fully trained. In the past two weeks [Brooks's] attitude and motivation levels have drastically increased. She is very cooperative and appears to recognize her role in the success of the PAR program. She has inquired with DOP on several occasions to assist in solving inquiries and problems, and has made positive contributions to the Team thus far.
According to Morgan, Liebeskind had urged her to give Brooks a negative review because she had received reports that Brooks was not getting her work done and that she was constantly on the phone and leaving early. Liebeskind wanted these items reflected in Brooks's review. Morgan, in contrast, believed that her interim review of Brooks was fair. Nevertheless, she acknowledged that she had spoken to Brooks about her excessive phone usage. Ingram approved the interim review prepared by Morgan.
In mid-March 2007, Brooks learned that she had passed the civil service examination for the PA4 position and that she was one of the top three candidates.*fn3 In a memorandum dated March 29, 2007, however, Ingram officially notified Brooks that she was being returned to her prior permanent title of TAP, effective April 14, 2007. Brooks's salary was adjusted downward to $51,994.95.*fn4 MVC did not hire anyone to fill the PA4 position that had been held by Brooks on a provisional basis.
Ingram and Liebeskind insisted that Brooks was not actually demoted, because she had never been made permanent in the title PA4. Nevertheless, Morgan asserted that it was unusual for an employee in a provisional title who had passed the requisite exam not to be made permanent.
Brooks experienced another acute pain episode and was out of work from May 7 to June 8. Although she applied for FMLA leave for that period, her request was denied because MVC took the position that she had exceeded her FMLA entitlement, having ...