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Tapal Sarker v. Trump Entertainment Resorts

October 1, 2012

TAPAL SARKER,
PLAINTIFF,
v.
TRUMP ENTERTAINMENT RESORTS, INC. D/B/A TRUMP PLAZA HOTEL AND CASINO, DEFENDANT.



The opinion of the court was delivered by: Hon. Joseph H. Rodriguez

MEMORANDUM OPINION & ORDER

This matter is before the Court on Defendant's motion for summary judgment. Because credibility determinations are necessary to resolve this matter, Defendant's motion will be denied.

Background

Plaintiff Tapal Sarker is a former employee of Defendant Trump Entertainment Resorts, Inc. d/b/a Trump Plaza Hotel and Casino. He brought suit against his former employer pursuant to the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 ("FMLA"), alleging that he was terminated in violation of the Act.

Plaintiff was hired by Defendant on May 1, 2006 as a Bar Helper. (Rudley Cert., Ex. A.) He was approved for personal leave of absence from January 2, 2009 to March 16, 2009 to visit family members in Bangladesh. (Compl., Ex. A; Rudley Cert., Ex. C.) Plaintiff alleges that on March 12, 2009, he faxed Defendant a Certification of Health Care Provider form, dated March 10, 2009, indicating that Plaintiff had been diagnosed with enteric fever, and would not be able to return to work until May 10, 2009. (Compl., Ex. B.) The form was signed by Dr. Shanka Greeb Sarker, M.B.B.S., General Physician. (Id.) Apparently in response, on March 18, 2009, Defendant mailed a letter to Plaintiff's home address in Atlantic City stating that company policy required Plaintiff to submit, within 15 days, "a Certification of Health Care Provider form, completed in full" in support of his request for an extension of leave. (Compl., Ex. C.) The letter from Defendant's Benefit Office further stated, "if your department does not receive the above requested documentation by April 1, 2009, and absence(s) or tardiness is subject to disciplinary action . . . ." (Compl., Ex. C.) A March 17, 2009 letter from Defendant addressed to Plaintiff's Atlantic City address purported to remind Plaintiff that his leave of absence was set to expire on March 29, 2009, and he would be expected to return to work on April 1, 2009. (Compl., Ex. D; Rudley Cert., Ex. B.) On April 9, 2009, Defendant sent a letter to Plaintiff's Atlantic City address indicating that Defendant had not heard from Plaintiff, and was therefore terminating his employment as a voluntary resignation effective March 28, 2009. (Compl., Ex. E.) Plaintiff alleges that he received the April 9, 2009 letter on May 6, 2009. (Compl., ¶ 13.)*fn1

In seeking summary judgment, Defendant argues that Plaintiff was terminated for failure to return to work after a period of approved personal leave of absence; he was not approved for FMLA leave because Defendant suspected his request was fraudulent. Citing to a computer printout labeled "Complete Reservation Transaction in Respect of Tapal Sarker," (Rudley Cert., Ex. E), Defendant has argued that "Plaintiff purchased an airline ticket with a departure date of January 1, 2009 and a return date of May 1, 2009." (Stmt. Facts, ¶ 4.) Defendant also takes issue with the circumstance that Plaintiff had taken a Medical Provider Certification form, as well as Defendant's Benefits Office fax number, with him to Bangladesh. (Id., ¶5-6.)

Discussion

A. Summary Judgment Standard

"Summary judgment is proper if there is no genuine issue of material fact and if, viewing the facts in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law." Pearson v. Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56 (a). The Court will enter summary judgment in favor of a movant who shows that it is entitled to judgment as a matter of law, and supports the showing that there is no genuine dispute as to any material fact by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . admissions, interrogatory answers, or other materials." Fed. R. Civ. P. 56 (c)(1)(A).

An issue is "genuine" if supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In determining whether a genuine issue of material fact exists, the court must view the facts and all reasonable inferences drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.;

Maidenbaum v. Bally's Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J. 1994). Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Andersen, 477 U.S. at 256-57. "A nonmoving party may not 'rest upon mere allegations, general denials or . . . vague statements . . . .'" Trap Rock Indus., Inc. v. Local 825, Int'l Union of Operating Eng'rs, 982 F.2d 884, 890 (3d Cir. 1992) (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991)). Indeed, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.

Celotex, 477 U.S. at 322. That is, the movant can support the assertion that a fact cannot be genuinely disputed by showing that "an adverse party cannot produce admissible evidence to support the [alleged dispute of] fact." Fed. R. Civ. P. 56(c)(1)(B); accord Fed. R. Civ. P. 56(c)(2).

In deciding the merits of a party's motion for summary judgment, the court's role is not to evaluate the evidence and decide 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). Credibility determinations are the province of the ...


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