Fred Shahrooz Scampato, Esq., LAW OFFICE OF FRED SHAHROOZ SCAMPATO, Westfield, New Jersey.
David Rostan, Esq., Florham Park, New Jersey., Attorneys for Plaintiff.
Edward J. Kologi, Esq., Michael S. Simitz, Esq. KOLOGI SIMITZ, COUNSELORS AT LAWF Linden, New Jersey Attorneys for Defendant Dennis Kobitz.
Allen C. Roth, Esq., ROTH D'AQUANNI, LLC, Springfield, New Jersey. Attorneys for Defendant Union County Board of Elections.
DICKINSON R. DEBEVOISE, District Judge.
This matter arises out of the discipline and ultimate termination of Plaintiff Rose Bravo's employment with the Union County Board of Elections (the "BOE"). On April 20, 2012, Ms. Bravo filed a Complaint in New Jersey Superior Court against Union County, the BOE, and Dennis Kobitz, asserting claims under the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2651(b) et seq. and New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-1 et seq. The Complaint was removed to this Court on May 11, 2012, pursuant to 28 U.S.C. § 1446(b). On December 6, 2012, Ms. Bravo filed an Amended Complaint with additional factual allegations in support of her claims.
The Union County Board of Elections and Mr. Kobitz now move for Summary Judgment in their favor on all of Ms. Bravo's claims, while Ms. Bravo moves for Summary Judgment in her favor on her claim for FMLA interference. For the reasons set forth below, Defendants' motion is granted with respect to Ms. Bravo's NJLAD claims, in their entirety, and her FMLA claims, as they relate to her sinus surgery in 2011, but denied with respect to her other FMLA claims. Ms. Bravo's motion is denied in its entirety.
Ms. Bravo was employed by the BOE as a computer terminal operator and elections clerk from September 11, 1999 through December 31, 2011. During that time, she suffered from post-traumatic stress disorder ("PTSD"), fibromyalgia, asthma, and sinus disease. These ailments made it difficult for her to perform her work and required certain accommodations and leaves of absence.
On December 15, 2006, Ms. Bravo discovered her supervisor's dead body at work on the second floor of the BOE building, which resulted in PTSD and a short leave of absence. Sometime in 2007, Ms. Bravo asked to be moved to another work site. This request was denied because the BOE only had one building. Instead, she was moved to the first floor. Four months later, she was moved back to the second floor, at her own request, because she did not like the work environment on the first floor.
Ms. Bravo remained on the second floor from 2007 to 2009, at which point she was moved back to the first floor along with several other BOE employees. Ms. Bravo did not enjoy working on the first floor in large part because she did not have a phone at her desk until 2011. Between 2009 and 2011, Ms. Bravo's supervisors spoke to her on a number of occasions about the quality and speed of her work.
Mr. Kobitz is the BOE's administrator. In this capacity, he manages the BOE's day-to-day operations and holds the power to recommend that an employee be reappointed or not reappointed. However, only the BOE Commissioners have the authority to reappoint or not reappoint an employee.
At some point, Ms. Bravo asked Mr. Kobitz to leave the BOE and be transferred to a different position with Union County. Mr. Kobitz told Ms. Bravo that she could not be transferred because she was employed solely by the BOE, not Union County, and that she would instead have to apply for a new position. Ms. Bravo made similar requests of Union County human resources personnel but was told she was not eligible to be transferred.
Mr. Kobitz is also in charge of administering the Union County FMLA policy to BOE employees and enforcing it. However, he admitted in deposition to having neither read the policy, nor consulted it in deciding whether to grant FMLA leave to a BOE employee. See (Rostan Cert., Ex. 6.) Under the policy, Union County and BOE employees can take up to twelve weeks of unpaid leave for, among other things, "a period of incapacity of more than three consecutive calendar days that involves either treatment two or more times by a healthcare provider or treatment by a healthcare provider on at least one occasion which results in a regimen of continuing treatment such as physical therapy or a medication regimen." (Rostan Cert., Ex. 3.)
Sometime in 2009 or 2010, Joanne Arena, the BOE's deputy administrator, and Mr. Kobitz reviewed Ms. Bravo's and three other BOE employees' attendance records and believed they were suffering from attendance issues. In 2010, Ms. Bravo was entitled to 26 sick days-15 allotted to her for that year and 11 having been carried over from 2009. Between January 1, 2010 and June 30, 2010, Ms. Bravo took 12.5 sick days. She then took 32 days of leave from June 30, 2010 through August 27, 2010 to care for her mother who was undergoing surgery. Ms. Bravo's attendance record indicates that thirty and one-half of those days were "FMLA with pay" that counted against her allotted sick and vacation days. (Simitz Cert., Ex. D.) The remaining one and a half days were "FMLA w/o pay" and were not applied against her allotted sick or vacation days. (Id.) According to Ms. Bravo, Mr. Kobitz told her that in order to take leave to care for her mother, she would have to exhaust all of her remaining sick and vacation time and then use FMLA leave to cover the remainder.
According to Defendants, Ms. Bravo then took five unpaid sick days that same year after returning from FMLA leave. The record shows that Ms. Bravo's pay was deducted for those five days, but fails to indicate that they were in fact sick days. See (Simitz Cert., Ex. H.)
Sometime between September 14, 2010 and September 23, 2010, Mr. Kobitz called Terry Pacheco, a Union County human resources officer, to complain that Ms. Bravo had used up all of her sick time. He noted that she had previously been warned about her use of sick time and therefore wanted to discipline her. On December 21, 2010, at the BOE Commissioners' annual meeting, Mr. Kobitz recommended that Ms. Bravo and the three other individuals he previously discussed with Ms. Arena be placed on probation for the following year due to inadequate attendance. Consequently, they were placed on probation for that reason for 2011.
The Union County Disciplinary Action Manual allows for progressive discipline of chronic or excessive absenteeism. See (Rostan Cert., Ex. 1.) Under the manual, what constitutes chronic or excessive absenteeism "depends on the circumstances of the individual case." (Id.) "Accurate documentation must be maintained in order to prevail on this charge." (Id.) "Each manager and or supervisor is required to maintain accurate and current time records." (Id.)
Sometime in 2011, Ms. Bravo asked Mr. Kobitz if she could purchase vacation time because she had used her vacation days to take FMLA leave in 2010. Mr. Kobitz refused her request and told her that no one was allowed to purchase vacation time for 2011. However, Ms. Bravo learned that two other BOE employees had been allowed to purchase vacation time. Claudia Martins of the Union County Personnel Department testified that Ms. Bravo was not allowed to purchase vacation time in 2011 because she was an "abuser of time." (Simitz Cert., Ex. Y.) She further testified that Mr. Kobitz has discretion to grant or deny a BOE employee's request to purchase vacation time. (Id.)
On May 12, 2011, Ms. Bravo was suspended for two days because she had used more than half of her annual sick days. She did not appeal or otherwise challenge the suspension. Sometime in the middle of 2011, John DeSimone, Chairman of the Board of Elections, told Ms. Bravo that her attendance was suffering and that she might not be reappointed for the following year.
In July 2011, Ms. Bravo told Mr. Kobitz that she needed to take days off for sinus surgery. Mr. Kobitz responded: "You know you're on probation and it doesn't, you know, it doesn't look good. You were starting to do better." (Rostan Cert., Ex. 11.) Ms. Bravo told Mr. Kobitz that she was tired of being sick all of the time but really needed the surgery. Thus, Mr. Kobitz allowed her to take time off for the surgery, which took place from August 26, 2011 through September 2, 2011. Ms. Bravo returned to work on September 5, 2011.
On September 6, 2011, Mr. Kobitz sought major discipline against Ms. Bravo, pursuant to N.J.S.A. 40A:9-25, and decided that he was going to recommend that she not be reappointed for the following year. That same day, a Notice of Disciplinary Charges, signed by Mr. Kobitz, was issued to Ms. Bravo, stating that she had exceeded her 15 sick days and that Mr. Kobitz recommended that she be suspended without pay for a period of 15 days. See (Simitz Cert., Ex. M.)
Ms. Bravo retained counsel to represent her in the matter, and, in late 2011, she and Defendants entered into a settlement agreement. The agreement provides that Ms. Bravo would accept a penalty of six suspension days without pay, serving four of those days without pay at the discretion of Union County and remaining free of the other two days if she incurred no further discipline for a one-year period. See (Simitz Cert., Ex. O.) In exchange, Ms. Bravo agreed ...