The opinion of the court was delivered by: Hon. Joseph H. Rodriguez
This matter is before the Court on Defendant's motion for summary judgment. Oral argument on the motion was heard on September 14, 2011, and the record of that proceeding is incorporated here. For the reasons expressed on the record, and those outlined below, Defendant's motion will be granted in part and denied in part.
Plaintiff Dina Sottile is a former employee of Defendant Church Healthcare, LLC d/b/a Innova Health & Rehab. She brings claims against her former employer pursuant to the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 ("FMLA"), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e and the Pregnancy Discrimination Act Amendment, 42 U.S.C. § 2000e (k), and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 ("ADA").
Plaintiff was hired in July of 1999 as a Social Worker at the Mount Laurel Nursing and Rehabilitation Center. She applied to work as a Social Worker for Defendant on January 1, 2003, having been referred by the Mount Laurel Nursing and Rehabilitation Center when that facility declared bankruptcy and Defendant took over its location via an asset sale. On or about February 1, 2003, Plaintiff was named Director of Social Services at Defendant's Mount Laurel facility.
On December 6, 2004, Defendant provided Plaintiff with a letter indicating that she was eligible for twelve weeks of unpaid FMLA leave effective from November 18, 2004 through February 18, 2005. Plaintiff has testified that the leave occurred when she had first been diagnosed with Crohn's disease. (Sottile Dep., p. 21.)
In or about August 2007, Plaintiff was offered a promotion to Assistant Administrator at the Defendant's Mount Laurel Facility. (Sottile Dep., p. 24.) She also served as Interim Administrator at the Defendant's Deptford facility for about four months, while Defendant searched for an Administrator for that location. (Id., p. 29.) Plaintiff's Employee Performance Evaluation from February 1, 2006 to February 1, 2007 rated her as competent, at an acceptable level, sometimes exceeding expectations. (Murphy Decl., Ex. B; Myzal Dep., p. 20-21.) Her supervisor has characterized her performance as "very good." (Myzal Dep., p. 18.)
In or about May of 2008, Defendant decided to implement a reduction in force to effect cost savings. (Myzal Aff., ¶ 8.) On or about June 12, 2008, Defendant's Operations Manager, Marc Myzal, asked Plaintiff to accept a temporary position at the Deptford facility, where she would be performing social work, but would have the title of Assistant Administrator "to save face, . . . being that months before, [Plaintiff] was [Deptford's] Administrator." (Sottile Dep., p. 36; Myzal Dep., p. 46, 48.) Her salary was to remain the same. (Id., p. 37.) Sottile has testified that Myzal represented to her that the temporary stint in Deptford would be followed by a transfer to the position of Administrator at Defendant's Hammonton facility. (Id., p. 38.) She acknowledges that there was no formal offer for the Hammonton position, but there were "discussions." (Id., p. 45.) Myzal has confirmed that the two discussed Plaintiff being targeted to be promoted to Administrator of Hammonton. (Myzal Dep., p. 49, 56.) Further, Myzal testified that he did, in fact, offer Plaintiff the Administrator position at the Hammonton facility. (Myzal Dep., p. 98.) Plaintiff was also informed at the time that the position of Assistant Administrator in Mount Laurel was to be eliminated. (Sottile Dep., p. 65; Myzal Dep., p. 57, 102, 105.) Myzal has testified, in addition, that at the time of his discussions with Plaintiff regarding the temporary position in Deptford, Defendant was not contemplating terminating Plaintiff's employment. (Myzal Dep., p. 48, 103-04.)
Initially, it appeared to Myzal that Plaintiff was not interested in Defendant's proposal because she did not want the position in Hammonton. (Myzal Dep., p. 51, 83, 107-08.)*fn1 On June 13, 2008, however, Plaintiff sent an e-mail to Myzal with the subject, "Deptford," indicating that she would "accept the transfer as Assistant Administrator." (Schlesinger Decl., Ex. M; Murphy Decl., Ex. E; Sottile Dep., p. 42-43.) Myzal in turn e-mailed Drew Barile, stating, "Dina Sottile has decided that she wants to be with us, and will be at Deptford as of Monday AM to perform the social service functions until our issue is resolved. She and I will speak about Hammonton again later today, I did not have the time to further that conversation this morning." (Schlesinger Decl., Ex. N; Murphy Decl., Ex. F.)
The same day, Drew Barile, Defendant's CEO, sent an e-mail to Myzal, Scott Piotti, CFO, and Ron Singer, Director of Financial Operations, copying Lisa Kelly, a marketing manager, and Michelle Meier of Human Resources. He wrote, "Scott finalize your RIF with Marc and get it to me. We are accelerating this for next week. I am finished talking. The [follow] through from the leadership in this portfolio is horrible. I will be adding some others once you are done. I want it today." (Schlesinger Decl., Ex. X.) Barile followed up with another e-mail on Wednesday, June 18, 2008: "1. Add one assistant administrator - this is an immediate RIF. 2. Replacing Gloria was and is not an option so remove it from the sheet. 3. Where are Marc's reductions? Nursing Managers at Deptford. 4. 400K is not enough, I want some higher paid people gone. 5. Where is the consolidation of the services plan?" (Schlesinger Decl., Ex. X.) At the time, there was only one Assistant Administrator in all of Defendant's facilities -- Plaintiff Dina Sottile. (Myzal Dep., p. 62, 66-67; Barile Dep., p. 45-46.)
On Monday, June 16, 2008, Plaintiff informed Myzal that she would not be in work because she was not feeling well, and she would be heading to her doctor's office that afternoon. (Schlesinger Decl., Ex. P; Murphy Decl., Ex. G.) That evening, Plaintiff notified Myzal that she would be out of work for one week per her doctor's orders "due to recurrent colitis." (Id.) On Wednesday, June 18, 2008, Plaintiff and Myzal exchanged e-mails; Myzal wanted to know how Plaintiff was feeling and whether there was any chance she could be at the Deptford facility prior to the next Monday. Plaintiff stated that on her doctor's instructions, the earliest she would be back would be the next Wednesday. (Murphy Decl., Ex. I.) At that time, Plaintiff was almost three months pregnant, but had not yet informed anyone at work. (Sottile Dep., p. 53.)
There are handwritten notes in the record, identified as having been taken by Meier, from "6/23 - RIF meeting." Under "Mt. Laurel," there are three entries, "A. 1 unit mgr.; B. Dolores; C. Dina." (Schlesinger Decl., Ex. Y; Murphy Decl., Ex. U.) On a page captioned "6/24 - Regional," there is a notation, "Layoffs happening on Friday." (Id.) Myzal has testified, "The organization was going through a reduction in force and one of the line items for reduction in force was the elimination of the assistant administrator position. That position was -- the plan was brought forth by me and some other individuals who developed the plan and was agreed to by the organization." (Myzal Dep., p. 12.) Myzal has testified that as of June 24th, the decision was made to lay off the Plaintiff, and the decision actually had been made June 18. (Myzal Dep., p. 69-70.)
Myzal has submitted an affidavit in support of Defendant's summary judgment motion, stating that Plaintiff was identified as an employee subject to the RIF at the June 23, 2008 meeting. (Myzal Aff., ¶ 34-35.) The reasons were that (1) the position of Assistant Administrator was being eliminated, and (2) "Plaintiff expressed discontent with regard to holding the title Temporary Director of Social Services . . . because the move constituted a demotion and made her feel uncomfortable." (Id., ¶ 36-39.) Defendant's position is that Plaintiff rejected the promotion to Administrator at Hammonton. "Had she accepted the Administrator title, she would have not been terminated as part of the reduction in force." (Def.'s Response to Pl.'s Interrogs., #7.)
On Tuesday, June 24, 2008, Plaintiff e-mailed Myzal and Adriane Dumas, Human Resources Director of Mount Laurel, "I had 2 follow up doctor appointments this week. I am not able to return to work to date. I will be out of the office until at least 7/7/08. I will be dropping off my paperwork on Thursday to Adriane. Any questions let me know." (Schlesinger Decl., Ex. R; Myzal Dep., p. 30.) Myzal forwarded Plaintiff's e-mail to Michelle Meier and Drew Barile with a note stating, "We need to discuss how I handle this lay off." (Schlesinger Decl., Ex. S; Murphy Decl., Ex. J.) Meier advised, "If we are eliminating the position, fmla doesn't really come into play." (Schlesinger Decl., Ex. T.) Barile added, "FMA is not an issue, the rules are clear." (Id.)
On Wednesday, June 25, 2008 Myzal wrote to Plaintiff, asking whether she could meet him in Mount Laurel that Friday, June 27. (Schlesinger Decl., Ex. U; Murphy Decl., Ex. K.) Plaintiff replied, "No, I am not feeling well. I will be having someone drop off my paperwork to work tomorrow. You can always call me." (Id.) Plaintiff's fiancé hand delivered her doctor's notes to Adriane Dumas the following day, June 26. (Sottile Dep., p. 60.) The record contains a doctor's note from Gastroenterologists Limited dated June 16, 2008 stating, "Dina Sottile was seen today. I have advised her to remain out of work for 1 week because of recurrent colitis in association with pregnancy." (Schlesinger Decl., Ex. V; Murphy Decl., Ex. H.) There is also a note from Cherry Hill Gynecology Associates, P.A. dated June 23, 2008. It reads, "[Dina Sottile] has been advised to stop working effective 6/23/08 - 7/7/08 due to pregnancy complications." (Id.) Plaintiff was not provided with any documentation regarding her FMLA rights at that time.
Myzal called Plaintiff on Friday, June 27, 2008, and informed her that her position with the Defendant company was being terminated, that she no longer had a position with the company. (Sottile Dep., p. 64-67; Myzal Dep., p. 82.) Plaintiff received termination paperwork in the mail the next day. (Id., p. 66.) On June 27, 2008, Myzal e-mailed Barile, Piotti, Meier, and others, stating, "All planned RIF actions with the exception granted at Deptford*fn2 took place." (Schlesinger Decl., Ex. AA.)
In describing the reduction in force, Scott Piotti recalled that three people*fn3 out of 600 of Defendant's employees were laid off for a savings of approximately $150,000 to $175,000. (Piotti Dep., p. 15-16.)*fn4 In determining who to terminate, he decision-makers looked at "job responsibilities," "performance," "different departments and how they were performing," and "market strategy, positions, and where we were against other competitors." (Id., p. 16.) Finally, Piotti has testified, "We had discussions probably in late May, early June regarding eliminating [the position of Assistant Administrator] as part of the overall savings, due to a number of factors. One of which, in the marketplace there isn't that position, typically in these types of nursing homes. Number 2, we've had assistant administrators in the past in other facilities, which we didn't have any longer. However, given at the time the value of Dina Sottile's employment and the fact that we helped her get her LHNA, which is a Licensed Home Administrator's license, we came up with a different scenario that we would still eliminate this position because it's not a position that's in the marketplace and one we could have, and that we were going to offer her another position within the organization." (Piotti Dep., p. 21-22.) To this end, Piotti believed Myzal offered Plaintiff the Administrator's position in Hammonton, as was discussed by Defendant's upper management. (Id., p. 22-23.) Piotti understood from Barile's June 18th e-mail that Plaintiff did not accept the permanent position in Hammonton; therefore, Defendant went ahead with eliminating her Assistant Administrator position, resulting in her termination. (Piotti Dep., p. 31-32.)
Plaintiff filed a claim for temporary disability benefits on June 30, 2008. The claim, certified by Plaintiff's gynecologist, described Plaintiff's disability as "Crohn's Disease in pregnancy, Chronic Diarrhea." (Schlesinger Decl., Ex. W.) In the section of the disability form completed by the employer, Dumas wrote on July 2, 2008, that Plaintiff was terminated because her position was eliminated. (Id.) Nonetheless, Plaintiff received temporary disability benefits up until after she gave birth on December 15, 2008. (Sottile Dep., p. 68-69.) Plaintiff then collected unemployment compensation from January until May of 2009. (Sottile Dep., p. 70.) In May of 2009, Plaintiff obtained employment as a clinical intake coordinator; she was still employed as of the date of her deposition, September 21, 2010. (Sottile Dep., p. 72-73.)
Plaintiff filed a Charge of Discrimination with the EEOC in October, 2008. After receiving a Notice of Right to Sue from the EEOC, Plaintiff brought suit in the United States District Court for the Eastern District of Pennsylvania, alleging that she was wrongfully terminated (1) without FMLA leave, (2) due to her pregnancy, (3) because of her gender, (4) in violation of the ADA, and (5) in violation of the New Jersey Law Against Discrimination (due to her ...