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Jim A. Yahaya v. Maxim Health Care Services Inc; John Doe Decision Makers (Plural 1-10

December 12, 2012

JIM A. YAHAYA, PLAINTIFF,
v.
MAXIM HEALTH CARE SERVICES INC; JOHN DOE DECISION MAKERS (PLURAL 1-10; AND JOHN DOE OWNERS AND OPERATORS (PLURAL 1-10), DEFENDANTS.



The opinion of the court was delivered by: Hon. Jerome B. Simandle

OPINION

SIMANDLE, Chief Judge

I. INTRODUCTION

This matter is before the Court on the motion of Defendant Maxim Health Care Services, Inc. ("Maxim") for summary judgment. [Docket Item 29.] Plaintiff Jim A. Yahaya ("Plaintiff" or "James Majeed") filed opposition. [Docket Item 32.]

The instant action arises out of the Defendant's removal of Plaintiff from the work schedule and subsequent termination from Maxim as a Home Health Aide. The Plaintiff, who was born in Ghana and lives in the United States, claims that he suffered adverse employment actions because of his race and national original in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1, et seq. ("NJLAD"). Defendant Maxim argues it is entitled to summary judgment because the evidence conclusively shows that Plaintiff was removed from the work schedule as a Home Health Aide because he did not have a valid Employment Authorization Card from the United States Citizenship and Immigration Services ("USCIS"). Further, Maxim argues it had legitimate, non-discriminatory reasons to terminate the Plaintiff when he began making false statements about his supervisors to other employees at Maxim.

The Plaintiff also brings a claim under the Consolidated Omnibus Budget Reconciliation Act ("COBRA"), 29 U.S.C. § 1161, et seq., alleging that Maxim failed to timely notify him of his rights to extend health care coverage under COBRA when he was terminated. Maxim argues summary judgment is appropriate to dismiss this claim because Plaintiff did not have health insurance benefits at Maxim at the time of his termination. The Plaintiff argues that genuine issues of material fact exist which prevent summary judgment. Specifically, Plaintiff maintains that he applied for health benefits a month prior to his termination and therefore whether he was entitled to receive notice under COBRA is a question for the jury.

Finally, Maxim argues that all claims against the fictitious defendants should be dismissed since discovery is complete and the Plaintiff has failed to name any of the John Does. The Plaintiff does not oppose this aspect of Maxim's motion for summary judgment.

For the reasons discussed below, the court will grant Maxim's motion for summary judgment. The court concludes that the Plaintiff has not raised a genuine dispute of material fact regarding his discrimination claim under the NJLAD. In addition, the Plaintiff has not presented evidence from which a jury could find that he was receiving health benefits through Maxim at the time of his termination; therefore, he is not considered a covered employee under COBRA who is entitled to notice. Finally, as the Plaintiff has not named his John Doe defendants and does not oppose summary judgment with regard to these fictitious parties, the court will dismiss these counts.

II. BACKGROUND

Plaintiff is a native of Ghana and has lived in the United States since 1988, becoming a Permanent Resident of the United States in 2009. (Def.'s Ex. B and Pl.'s Ex. A, Deposition of Jim Majeed-Yahaya, January 20, 2012 ("Pl. Dep.") at 11:1-23.) Plaintiff began his employment with Defendant Maxim in 2003 and worked as a Home Health Aide. (Pl. Dep. at 22:1-12; 31:4-15.)

As a Home Health Aide, Plaintiff was responsible for assisting patients with various needs at the patient's home, including shaving and showering the patient, dressing the patient, cooking, cleaning, doing laundry and other daily living tasks. (Pl. Dep. at 33:21-34:11; 37:15-20.)

Plaintiff worked primarily in Maxim's Atlantic County Northfield Office which was run by Robert "Bob" Moran from 2005 through Plaintiff's termination in 2008. (Pl.'s Dep. at 28:21-30:21; 33:6-20.) In addition to Bob Moran, the Northfield Office consisted of a head nurse and front office employees, including Amanda Andrilla, who worked primarily in Human Resources. (Pl.'s Dep. at 35:20-25; 47:12-14.) Amanda Andrilla began working with Maxim in 2005 or 2006, according to the Plaintiff. (Pl.'s Dep. at 62:11-14.)

As a Home Health Aide, the Plaintiff would receive patient assignments based on his availability to work. Specifically, the head nurse would receive patient assignments and instruct the front office to call Maxim's Home Health Aides to determine who was available to work the assignment. (Pl.'s Dep. at 35:20-25.) It is unclear whether Bob Moran, the head nurse or the front office employees made the decision of which Home Health Aide was assigned to which patient. (Pl.'s Dep. at 36:4-7.) The front office employees gradually changed over the course of Plaintiff's employment with Maxim from 2003 to 2008 due to employee turnover.

(Pl.'s Dep. at 43:18-45:13.)

During his employment with Maxim, Plaintiff would typically see an average of four patients a day. (Pl.'s Dep. at 34:25-35:3.) From 2003 to Plaintiff's termination in 2008, Plaintiff was assigned to one patient in Stanley Holmes Village which is located in a poverty-stricken area. (Pl.'s Dep. at 52:13-53:1.) The Plaintiff could not recall how long he worked with this patient, but estimated that he spent approximately one to two months at this assignment around July 2008. (Pl.'s Dep. at 51:24-52:19; 53:23-54:2.) The front office employee who called Plaintiff about the Stanley Holmes Village assignment was Amanda Andrilla. (Pl.'s Dep. at 55:14-17.) While working on the assignment in Stanley Holmes Village, the Plaintiff was assigned to see other patients as well which were not located in poverty-stricken areas. (Pl.'s Dep. at 60:12-6:8.)

The Plaintiff complained to Amanda Andrilla about working in Stanley Holmes Village and explained the conditions he observed and how he did not like working in the area. (Pl.'s Dep. at 52:6-19.) Plaintiff testified in his deposition that Amanda replied "that's what we have and that is part of the job, okay, you can drop that case, so I have to go ahead and do it." (Pl.'s Dep. at 52:10-12.) Plaintiff eventually stopped working the Stanley Holmes Village assignment after one to two months and the Plaintiff speculated that "something happened, you know, between the clients and the office." (Pl.'s Dep. at 53:16-18.) There is no evidence that Plaintiff was assigned to poverty-stricken areas again.

When receiving an assignment, Home Health Aides like the Plaintiff had the option of declining an assignment. (Pl.'s Dep. at 38:7-16.) Plaintiff never declined an assignment and testified that it was because "if you turn a job down they don't usually, you know, like to call you, so you have to take whatever they say." (Pl.'s Dep. at 38:14-16.)

In addition to the Stanley Holmes assignment, Plaintiff had several other issues with Amanda Andrilla while working at Maxim. At some point between 2005 and 2008, the Plaintiff had an issue with his check because he did not receive payment for his overtime. He spoke to Amanda about it and she responded by saying "I'm here working for Maxim, not working for someone like you." (Pl.'s Dep. at 14-19.) Plaintiff testified during his deposition that he did not believe the check incident related to his race or national origin. (Pl.'s Dep. at 119:8-18.)

Amanda Andrilla also told Plaintiff that she did not like the way Plaintiff talked and that "in America we don't speak like that." (Pl.'s Dep. at 115:15-16; 116:4-6.) There is no evidence in the record of when these statements happened or in what context they were made.

Further, Amanda Andrilla worked primarily in the Human Resources Department of Maxim and was responsible for verifying that Plaintiff had the proper work authorization card from United States Citizenship and Immigration Services ("USCIS"). To comply with federal immigration laws, an employer must verify that an employee is eligible to work in the United States. (Def.'s Statement of Facts ¶ 15; Def.'s Ex. D, U.S. Dep't of Homeland Security Handbook for Employers.") One acceptable form of employment eligibility verification is an Employment Authorization Card (Form I-766) issued by the USCIS. (Def.'s Statement of Facts ¶ 16; Def.'s Ex. D.) Once an Employment Authorization Card has expired, an employee can apply for an extension of his work authorization. However, a receipt notice that the employee has applied for an extension of the Employment Authorization Card is not sufficient to establish eligibility to work in the United States. (Def.'s Statement of Facts ¶ 18;

Def.'s Ex. D.) Specifically, the handbook issued by USCIS states: "A receipt indicating that an individual has applied for initial work authorization or for an extension of expiring work authorization is NOT acceptable proof of employment eligibility[.]..." (Def.'s Ex. D at 6.)

Plaintiff worked at Maxim by presenting an Employment Authorization Card. Each year, the Employment Authorization Card expired and it was Plaintiff's responsibility to renew it. (Pl.'s Dep. at 63:13-64:3.) Plaintiff's card expired prior to renewal twice while working at Maxim, first in 2007 and again in 2008. In 2007, Plaintiff's Employment Authorization Card expired on August 10, 2007. (Pl.'s Ex. C.) Amanda Andrilla asked the Plaintiff about his card in 2007 but his card had expired. The Plaintiff instead brought Amanda a "working number"*fn1 which, according to the Plaintiff, was acceptable in the previous years to Maxim and his other prior employers, but Amanda would not accept it. Instead, she told the Plaintiff he needed to renew his card. (Pl.'s Dep. at 68:19-69:14.)

A meeting was held on September 19, 2007 with Amanda Andrilla, Plaintiff, Craig Colardeau, a Maxim recruiter, and Jamie Recabo, Maxim's corporate attorney who participate via conference call, to address Plaintiff's expired Employment Authorization Card. (Def.'s Reply Ex. D, Meeting invitation dated September 19, 2007; Def.'s Reply Ex. E, Email from Craig Colardeau to Amanda Andrilla re: James Majeed on September 19, 2007 at 3:23PM.) At this meeting, it was found that Plaintiff was not eligible to work since his work authorization card expired. Jamie Recabo concluded that although Plaintiff reapplied for his work authorization card in August, he would not be permitted to work until Maxim received his new authorization card or other acceptable documentation from immigration services.

(Def.'s Reply Ex. E.) Consequently, Amanda Andrilla removed Plaintiff from the work schedule. (Pl.'s Dep. at 68:18-69:24.)

Plaintiff testified that Mr. Recabo asked during the meeting if Plaintiff was given an employment number from Immigration and Plaintiff answered in the affirmative. Plaintiff testified that Jamie Recabo put him back on the schedule after being shown the his I-797 receipt notice. (Pl.'s Dep. at 71:2-21.) Plaintiff testified in his deposition that he was put back on the schedule without having received his renewed Employment Authorization Card. (Pl.'s Dep. at 71:17-24.) The Plaintiff paid to renew his card on September 27, 2007 and was given a USCIS receipt number. (Pl.'s Ex. E.) Plaintiff testified that he went to the Immigration Office with his receipt and an immigration officer wrote "Renewal Allowed to Work" on the paper and circled the telephone number for National Customer Service for Maxim to call with questions. (Pl.'s Dep. at 75:15-76:16; Pl.'s Ex. E.) The Plaintiff also testified that he gave this document to Maxim and this allowed him to be put back on the schedule. (Pl.'s Dep. at 75:15-76:16.)

However, there is no evidence in the record that Plaintiff was assigned any patients until he received his renewed Employment Authorization Card in December 2007. There is also no evidence in the record of any Maxim employee who was allowed to work with an I-797 receipt notice in lieu of a valid Employment Authorization Card. Thus, there is no evidence that Plaintiff was treated in a disparate manner concerning the Employment Authorization Card compared with others employed by the Defendant.

Maxim's records indicate that the Plaintiff was taken off the schedule on September 14, 2007 and was not put back on the work schedule until December 5, 2007, after Plaintiff received his new Employment Authorization Card. (Def.'s Ex. L, Plaintiff's Worker Schedule Report.) Plaintiff's new Employment Authorization Card was valid from November 20, 2007 through November 19, 2008. (Def.'s Ex. G.)

One year later, Plaintiff's card was expiring again. Plaintiff applied to renew his Employment Work Authorization card on September 19, 2008. On September 22, 2008, Amanda Andrilla reminded the Plaintiff that he was required to have a valid Employment Work Authorization card to remain on the schedule. (Def.'s Reply Ex. F, Sept. 22, 2008 Worker Logging Report entry; Pl.'s Dep. at 78:3-16.) On September 26, 2008, Plaintiff was issued an I-797 receipt notice by USCIS which evidenced that he had applied to renew his Employment Authorization Card. (Pl.'s Dep. at 80:4; Def.'s Ex. H.) Plaintiff provided a copy of this form to Amanda. (Pl.'s Dep. at 80:1-19.) At the bottom of the I-797C form, it states:

This receipt notice provides notification of the date that your application/petition was received by USCIS.

This receipt notice does NOT grant any immigration status or benefit. You may not present this receipt notice as evidence that you have been granted any immigration status or benefit. (Def.'s Ex. H, I-797C Notice of Action, September 26, 2008.) At the time Plaintiff received the I-797 receipt notice, his Employment Authorization Card had not yet expired and so he continued to work at Maxim. (Def.'s Ex. G.)

On November 12, 2008, Amanda Andrilla contacted via email Craig Kile, Maxim's Human Resources Manager, to inquire about Plaintiff's ability to work if his Employment Authorization Card expired. ...


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