United States District Court, D. New Jersey
JOSEPH H. RODRIGUEZ, District Judge.
This matter is before the Court on cross-motions for summary judgment on the sole remaining count of Plaintiff's Complaint. Upon agreement of the parties, only Count Five alleging violation of the Family Medical Leave Act ("FMLA") has survived discovery. The Court has considered the submissions of the parties pursuant to Fed.R.Civ.P. 78(b), and for the reasons set forth here, Defendant's motion for summary judgment will be granted and Plaintiff's motion for summary judgment will be denied.
Plaintiff Walter Radlinger has sued his former employer Defendant Camden County for wrongful termination in violation of the FMLA. Plaintiff was employed as a corrections officer at the Camden County Corrections Facility from June 24, 2000 until he was terminated on July 12, 2012.
In March of 2011, Eric Taylor, Warden of Camden County Correctional Facility, approved Plaintiff's request for intermittent leave during the period of March 10, 2011 to September 10, 2011. Walters Cert., Ex. F. On May 24, 2011, however, Plaintiff was notified that he had exhausted his entitlement to FMLA leave as he had taken a total of twelve weeks of leave in the previous twelve months. Id . Defendant advised Plaintiff, therefore, that he would be subject to discipline for any future sick days taken, which would be characterized as absent without leave ("AWOL"). Id . Accordingly, Plaintiff's absences on May 25, 26, 27, 30, 31, and June 1 were characterized as AWOL and he was subject to discipline. Walters Cert., Ex. C. Plaintiff was served with a Notice of Disciplinary Action dated June 15, 2011, and the parties subsequently entered into a Settlement Agreement and Release whereby, in lieu of termination, Plaintiff agreed to accept a ninety-day staggered suspension and a one-year probationary period. Gray Cert., Ex. F; Walters Cert, Ex. B. The Agreement also provided, "If any abuse of sick leave policy, FMLA, or any other absenteeism and/or lateness policy violations occur the Employer will be seeking termination." Id., p. 2.
On March 16, 2012, Plaintiff submitted an application for FMLA leave from February 11, 2012 through February 22, 2012. Gray Cert., Ex. H; Walters Cert, Ex. E, N. The application was accompanied by a certification signed by Dr. Carl Vitola, who wrote that Plaintiff was unable to perform his job functions for the period indicated due to a kidney stone, but he was cleared to return to work at the time the application was completed. Id . On March 22, 2012, Plaintiff was notified that his FMLA leave request for February 11 through February 22, 2012 was approved. Gray Cert., Ex. G; Walters Cert, Ex. F. The approval letter was signed by Lt. John Vernon. Id . Plaintiff also used sick time on February 27, March 20, 21, 24, 25, and 31, for a total of 15 sick days in 2012, the maximum allowed. Id . See also Taylor Dep., Gray Cert., Ex. A, Walters Cert., Ex. M, p. 24-25. "[A]nything thereafter he would be absent without leave... [u]nless it was designated as FMLA." Taylor Dep., Gray Cert., Ex. A, Walters Cert., Ex. M, p. 25.
Plaintiff called out sick on June 4 and June 24, 2012, during his probationary period, and on July 8 and 9, 2012. Gray Cert., Ex. Y; Walters Cert., Ex. C. On July 12, 2012, at the direction of the Warden, Plaintiff was served by disciplinary officer Sgt. Earl W. O'Connor with a Preliminary Notice of Disciplinary Action (31-A) signed by Deputy Warden Fosler. Gray Cert., Ex. I; Walters Cert, Ex. G, H; Gray Cert., Ex. C, Blackwell Dep., p. 17; Ex. T, Taylor Dep., p. 22; Ex. U, O'Connor Dep., p. 21-35. The Notice indicated that Plaintiff was suspended with the possibility of termination effective July 11, 2012 for absences without leave on June 5, June 24, July 8, and July 9. Id . The document also noted that the majority of Plaintiff's sick time was "adjacent to approved time off creating patterns of abuse." Id.
The following day, on July 13, 2012, Plaintiff submitted an application for intermittent FMLA leave signed by Dr. Carl Vitola. Gray Cert., Ex. G; Walters Cert, Ex. J. The doctor indicated on the form that Plaintiff had suffered from kidney stones since 2007, most recently from June 5 through July 9, 2012. Id . When symptomatic, Plaintiff was unable to perform his job functions, but was cleared to return to work with no restrictions on July 13, 2012 due to passage of third kidney stone. Id . Plaintiff maintains that he had not exhausted his entitlement to FMLA leave at that time, and therefore applied for FMLA leave to convert the alleged absences without leave into FMLA days, using available non-sick leave time.
The July 13, 2012 application was denied on August 23, 2012 by Lt. James Blackwell, Director of Human Resources. Gray Cert., Ex. J; Walters Cert, Ex. L; Taylor Dep., Gray Cert., Ex. A, Walters Cert., Ex. M, p. 16. The denial letter stated:
On Thursday, July 12, 2012, you were served with a 31a and subsequently suspended pending removal due to abuse of sick time. On Friday, July 13, 2012 you went to your treating physician, had a FMLA certification filled out and then hand delivered the FMLA application/certification to Deputy Warden Fosler outside of the facility that same morning. As you submitted the FMLA request in an untimely manner and after you were suspended pending removal, a review and subsequent processing of your request at this point and time would be moot, as the need for leave no longer exists; however a review of the FMLA paperwork you submitted reveals the following:
Your FMLA application/certification was submitted (38) days after the first recorded absence (AWOL) on June 5, 2012, without previous indication of your need for leave or reason for the delay.
As such, even if your request was not moot, your attempt to cover your absences as FMLA retroactive to June 5, 2012 would not have been approved.
Gray Cert., Ex. J; Walters Cert, Ex. L.
The record indicates that a disciplinary hearing was conducted on August 28, 2012 and resulted in a September 2, 2012 recommendation to the Warden that Plaintiff be terminated. Gray Cert., Ex. Y. An undated Final Notice of Disciplinary Action indicates that Plaintiff was terminated effective July 12, 2012. Walters Cert., Ex. I. While the September 2 recommendation acknowledged that retroactively granting FMLA leave was "a common Facility practice, " (Gray Cert., Ex. Y), ...