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Fitzgerald v. Shore Memorial Hospital

United States District Court, D. New Jersey

March 13, 2015


Decided March 12, 2015.

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For Plaintiff: Richard Steven Swartz, Esq., Daniel Ari Horowitz, Esq., SWARTZ SWIDLER LLC, Society Hill Office Park, Cherry Hill, NJ.

For the Defendant: Richard J. Defortuna, Esq., Donna M. Candelora, Esq., PAISNER LITVIN LLC, Bala Cynwyd, PA.


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JEROME B. SIMANDLE, Chief United States District Judge.


The Family Medical Leave Act (" FMLA" ), 29 U.S.C. § 2601, allows employees to take up to twelve weeks of medical leave in a year without losing their jobs and prohibits employers from interfering with an employee's FMLA rights. In this case, Plaintiff Shawn Fitzgerald, who was employed by Defendant Shore Memorial Hospital as a nurse, alleges that Defendant violated her rights under the FMLA and under the New Jersey Law Against Discrimination (" NJLAD" ) when it terminated her on April 22, 2011, five days after she missed work to see a doctor about her heart problems. In addition, Plaintiff asserts FMLA claims against Defendant for disciplining Plaintiff in 2009 for an absence covered by the FMLA; denying Plaintiff leave in August 2010 to visit a sick aunt; closely " tracking" Plaintiff's attendance upon her return from FMLA leave in September 2010; and requiring Plaintiff to provide a doctor's note each time Plaintiff took an FMLA-related absence. Lastly, Plaintiff asserts that she was discriminated against on the basis of race and subject to a hostile work environment, in violation of the NJLAD.

Presently before the Court is Defendant Shore Memorial Hospital's motion for summary judgment, which challenges all Counts of Plaintiff's complaint. [Docket Item 23.] For the reasons set forth below, the Court will deny Defendant's motion with respect to the disability discrimination and retaliation claims arising out of Plaintiff's termination. The Court will grant Defendant's motion with respect to all other claims.


A. The Family Medical Leave Act

Congress passed the FMLA in 1993 in an attempt " to balance the demands of the workplace with the needs of families." 29 U.S.C. § 2601(b)(1). The FMLA allows " employees to take reasonable leave for medical reasons." Id. § 2601(b)(2). However, it also requires that all such leave be taken " in a manner that accommodates the legitimate interests of employers," Id. § 2601(b)(3).

FMLA-eligible employees are allowed to take twelve weeks of leave during any twelve-month period. Leave is covered under the FMLA if an employee has a " serious health condition that makes the

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employee unable to perform the functions" of his or her job. Id. § 2612(a)(1)(D). Employees are also eligible for leave in order to care for a parent of the employee if the parent has a serious health condition. Id. § 2612(a)(1)(C). Following this period of leave, an employee is entitled to be restored to his or her original position or its equivalent. Id. § 2614(a)(1).

The FMLA allows for " intermittent leave," defined as " leave taken in separate blocks of time due to a single qualifying reason," when medically necessary. 29 C.F.R. § 825.202(a). Federal regulations note that intermittent leave " may include leave of periods from an hour or more to several weeks." Id. § 825.202(b)(1). Examples of intermittent leave may include leave taken for medical appointments or for regular medical treatments. Id.

Under the FMLA, employers may not deny leave to employees who qualify, nor may they retaliate against employees who exercise their rights under the FMLA.

B. Summary Judgment Record

The Court begins with the summary judgment record.

Plaintiff Shawn Fitzgerald is an African American nurse who was employed by Defendant Shore Memorial Hospital (" Shore" ) from 2005 to April 2011. (Def. Statement of Material Facts (" SMF" ) ¶ 2.) She suffers from hypertension and Wolff-Parkinson-White Syndrome (" WPW" ), a congenital heart condition which symptoms include episodes of rapid heart rate. (Dec. 9, 2013 Fitzgerald Dep. [Docket Item 30] 5:18-24; Pl. Statement of Material Facts (" Counter SMF" ) ¶ 41-43). Prior to her employment with Defendant, Plaintiff worked for 18 years as a licensed practical nurse.

1. Defendant's Time and Attendance Guideline

Shore's Time and Attendance Guideline (" Guideline" ) applies to all employees, including nurses. (Time and Attendance Guideline, Def. Ex. 20 [Docket Item 23-5]; SMF ¶ 28.) Plaintiff testified at deposition that she was familiar with the hospital's attendance policy and understood how it worked.

According to the Guideline, employees who violate the attendance policies will accrue attendance infractions, or " incidents," over a rolling 12-month period, measuring back from the date of the most recent incident. An employee who accumulates four incidents within 12 months receives verbal counseling. If she continues to accumulate infractions, she receives written counseling for each incident after the fifth, up to eight incidents. An employee who receives nine attendance infractions within 12 months, " resulting in a counseling that includes the verbal, the first, second and third written counseling," is subject to termination. (Time and Attendance Guideline 3-4.) ( Id. at 3-4.)

Incidents may be accumulated in several ways. Failure to report to work and failure to contact one's supervisor before the start of one's shift is a " no call/no show" and counts as an incident. Two " events of lateness" or leaving early qualifies as a single incident. Up to three consecutive days of " unscheduled absence" defined as an absence without prior approval from one's supervisor, also counts as a single incident, " unless a physician's note is supplied." ( Id. at 1-2.)

The Guideline defines an " absence" as " [a]ny time the employee is not available, regardless of reason, to report to their scheduled work shift." An employee who has approval to take leave under the FMLA qualifies for a " scheduled absence" " as long as proper notification and verification

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is provided to their manager." ( Id. at 1-2.)

2. Defendant's FMLA Protocol

Decisions to approve or reject FMLA leave requests were made by the director of benefits and employee health at Shore, Kathleen Nunzi. (Nunzi Dep., Pl. Ex. I [Docket Item 26-13] 12:23-13:8.) Nunzi sometimes made the determination after consulting with others, including individuals in Human Resources who gathered the employee documents. (Id. 13:8-23.)

The FMLA allows employees to care for parents who have a serious health condition. Nunzi stated that she would approve FMLA leave only for a biological or adopted parent. (Id. 30:3-9.) Margaret Griggs, an employee in Human Resources who processes FMLA requests, testified that if an employee was requesting leave to take care of someone who was not a parent, the employee would need to provide some additional proof that the family member was covered under the FMLA. (Griggs Dep., Pl. Ex. J [Docket Item 26-14] 20:21-22:24.)

According to Griggs and Shore's vice president of human resources, Alan Beatty, Shore typically asked employees who were on intermittent FMLA leave to supply a doctor's note if they went to the doctor but did not require it if the employee did not visit a doctor. (Beatty Dep., Pl. Ex. G [Docket Item 26-11] 79:2-8; Griggs Dep., Pl. Ex. J [Docket Item 26-14] 32:14-33:1.)

3. Plaintiff's Employment at Shore

On March 22, 2008, Defendant approved Plaintiff's request for a one-year period of intermittent FMLA leave for issues related to her WPW Syndrome and hypertension. (SMF ¶ 52; Dec. 19 Fitzgerald Dep. 19:15-19.) In the leave approval section of the form, it stated, " Please submit Dr's note to Human Resources for each incidence of illness related to leave." (Mar. 2007 Leave Request, Def. Ex. 27 [Docket Item 23-6].) Plaintiff's leave period expired March 21, 2009, and in September 2008, Plaintiff applied for and was approved for another one-year period of intermittent FMLA leave for the same medical conditions. (SMF ¶ 58; Dec. 19 Fitzgerald Dep. 19:20-24.) This form did not ask her to submit a doctor's note for each day she took leave. Plaintiff's intermittent leave period expired September 9, 2009. (Sept. 2008 Leave Request, Def. Ex. 30 [Docket Item 23-6]).

Between September and December of 2009, Plaintiff accrued three incidents of unexcused absence and was issued oral counseling. (SMF ¶ 70; Dec. 2009 Counseling Notice, Def. Ex. 38.) The counseling notice indicated that she had also accumulated an unexcused absence for March 6-7 of that year, while Plaintiff was on approved FMLA leave. Plaintiff contends that these absences were covered under her approved intermittent FMLA leave period, which expired March 22, 2009. (Counter SMF ¶ 59.)

Plaintiff did not reapply for intermittent FMLA leave after it expired. She did, however, apply for FMLA leave for approximately one month from February to March of 2010 to care for Ernestine Reed, which Plaintiff identified as her " mother" in her leave request. (February 2010 Leave Request, Def. Ex. 41 [Docket Item 23-8].)

Reed was actually Plaintiff's aunt. Plaintiff testified that Reed had raised Plaintiff since Plaintiff was a child and had " signed every paper for [Plaintiff] from Kindergarten up until [Plaintiff] was out of school." (Aug. 7, 2013 Fitzgerald Dep. [Docket Item 26-5] 83:15-18.) Plaintiff further testified that when she was 12, she was named as Reed's child during Reed's divorce. (Id. 83:21-84:1.)

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Plaintiff's leave request to care for her " mother" was initially denied because she did not supply documentation to show that Reed was Plaintiff's mother. (Griggs Email, Def. Ex. 40 [Docket Item 23-8].) After she attached a New Jersey State Application for Family Leave Benefits, in which she checked that Reed, the care recipient, was a parent, Plaintiff's leave request was approved. (NJ Family Leave Benefits Application, Def. Ex. 42 [Docket Item 23-8].)[1]

Approximately four months later, on August 30, 2010, Plaintiff requested a second FMLA leave to care for Reed. (August 2010 Leave Request, Def. Ex. 53 [Docket Item 23-9]; SMF ¶ 76.) Defendant denied Plaintiff's leave request when it became unsure of Plaintiff's relationship to Reed. Plaintiff's supervisor, Annemarie Guerrieri, noted that during a phone conversation that same day to discuss Plaintiff's leave request, Plaintiff stated that Reed was not her biological mother and referred to Reed as her aunt, adoptive mother, and step-mother. (Guerrieri File Memo, Def. Ex. 49 [Docket Item 23-8].) Guerrieri " was not quite sure what the relationship was between [Reed] and [Plaintiff]," and called Human Resources to inform them of the situation. (Id.) Nunzi, who approved all FMLA leave requests, asked Plaintiff for documentation showing Plaintiff's relationship to Reed. (Nunzi Dep. 28:12-29:6.) Plaintiff offered to provide report cards from school showing that Reed had raised her. (Aug. 7 Fitzgerald Dep. 112:13-20; Nunzi Dep. 90:24-91:7.)[2]

Plaintiff did not ultimately provide the report cards. She did not return to work the next day, which was August 31. On September 1, she provided a doctor's note which excused her from work from August 26 to September 9, due to hypertension, anxiety, depression, and hyperlipidemia. She subsequently provided a second doctor's note extending her leave to September 22. (Physician's Notes, Def. Exs. 56-57 [Docket Item 23-9].) On September 10, Plaintiff submitted a formal request for FMLA leave from August 26 through September 22. (Sept. 2010 Leave Request, Def. Ex. 48 [Docket Item 23-8].) Defendant approved her leave request. Plaintiff extended her leave a third time due to her medical condition and returned to work on September 29. (Physician's Note, Def. Ex. 59 [Docket Item 23-9].)

Between September 28, 2010 and February 26, 2011, Plaintiff accrued several " incidents" for unexcused absences in October and November of 2010 and January and February of 2011. She received three Counseling Notices for a total of four Notices within the trailing twelve-month period. (SMF ¶ ¶ 86-92.) She received her third Counseling Notice on March 2, 2011, one and a half months before she was ultimately terminated. Plaintiff then asked Nunzi whether she was going to be fired. Nunzi told her that it was a possibility but that she " probably will be suspended because [she had] no other write-ups for any behavior" in her file. (Dec. 9 Fitzgerald Dep. 52:22-53:7.)

4. Plaintiff's Termination on April 22, 2011

While at work on April 13, 2011, Plaintiff reported to her supervisor that she

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thought her heart was " beating abnormally." (Arb. Tr., Pl. Ex. B [Docket Item 26-6] 282:6-12.) She received permission from her supervisor to leave work and go to the emergency room at AtlantiCare Regional Medical Center. She was told that she was " in bigeminy" and that an EKG and stress test would be administered. (Id. 284:19-24.) She went back to the hospital the next day, April 14, for various tests. She was treated by Dr. Sujood Ahmend, who noted impressions of chest pain, ventricular bigeminy, dyspnea on exertion, WPW, hyperlipidemia, obesity, and hypertension, and recommended additional testing and a follow-up visit in several weeks. (Ahmed Letter, Pl. Ex. L [Docket Item 26-16].) Due to her heart condition, Plaintiff voluntarily cancelled her shifts for April 14 and 16 and was not required to report to work. (SMF ¶ 97.) She was not scheduled to work on April 15. Plaintiff was supposed to work on April 17, but called the hospital to tell them that she was sick. Plaintiff " was still having the abnormal heart rhythm" and was feeling short of breath that day. (Arb. Tr. 286:13-24.)

The parties dispute what happened next. Plaintiff came into work on April 18th to attend a mandatory training session. According to Plaintiff, she gave Guerrieri a doctor's note that day to explain her absence. The note, signed by a nurse practitioner, Jean Stern, whom plaintiff claims works for Dr. Ahmad, stated, " Please excuse from work on 4/17/11 above 2° arrhythmia." (Doctor's Note, Pl. Ex. R [Docket Item 26-22].) Plaintiff also asserts that she told Guerrieri that day that she " would have more papers for [Guerrieri] when [Plaintiff] came back" to work, and that Guerrieri stated that that was " okay." (Dec. 9 Fitzgerald Dep. 57:13-16; Arb. Tr. 287:17-288:7.) Defendant denies having received any note from Plaintiff and asserts that the only explanation it received for Plaintiff's April 17th absence was a phone call in which Plaintiff stated that she was " sick," with no further explanation. (SMF ¶ ¶ 98-101; Counter SMF ¶ ¶ 81-85; Resp. to Counter SMF ¶ 83.)

Plaintiff's next scheduled day of work was April 22, 2011. She was terminated that day. An April 22 termination notice from Laura Kennedy, Director of Labor Relations at Shore, states that Plaintiff was terminated " due to Time and Attendance related issues." ...

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