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Pizzo v. Lindenwold Board of Education

United States District Court, D. New Jersey

March 31, 2015


Matthew D. Miller, Esq., Swartz Swidler, LLC, Cherry Hill, NJ, Attorney for Plaintiff.

Timothy R. Bieg, Esq., Madden & Madden, P.A., Haddonfield, NJ, Attorney for Defendant.


JEROME B. SIMANDLE, Chief District Judge.


The Family Medical Leave Act ("FMLA" or "Act") provides employees with up to twelve weeks of unpaid leave per year for certain family and medical reasons. See 29 U.S.C. § 2612(a)(1). In this case, Plaintiff Colleen Pizzo ("Plaintiff") claims that she was fired by her former employer, Defendant Lindenwold Board of Education ("Defendant"), for attempting to take FMLA-protected leave in March 2013. She claims that her termination violated the FMLA and the New Jersey Law Against Discrimination ("NJLAD"). Defendant has moved for summary judgment on all claims [Docket Item 16] and Plaintiff has moved for partial summary judgment on the claim of FMLA interference [Docket Item 17].

For the reasons set forth below, the Court will grant summary judgment for Defendant on Plaintiff's claims of interference and retaliation under the FMLA, and Plaintiff's claim of discrimination under the NJLAD. Summary judgment will be denied on Plaintiff's claims of failure to accommodate and retaliation for failure to accommodate under the NJLAD.


A. Factual Background[1]

Plaintiff Colleen Pizzo was hired by Defendant Lindenwold Board of Education as a custodian on or about September 2001. (Pizzo Dep., Pl.'s Counter Statement of Material Facts ("Counter SMF") Ex. G [Docket Item 25-2], 30:13-14.) She suffered from "bipolar depression" during her employment with Defendant. (Mar. 9, 2013 Medical Records, Pl.'s Counter SMF Ex. F [Docket Item 25-2].) In 2012, Plaintiff's condition was exacerbated by the death of her girlfriend and co-worker in February of that year. (Pizzo Dep. 49:12-50:13.) She missed several consecutive days of work in June 2012 due to her condition. (Attendance Record, Pl.'s Counter SMF Ex. I.) On June 26, 2012, Plaintiff filed a formal FMLA leave request seeking FMLA leave beginning June 19th of that year and ending on July 30. Defendant approved her leave request in full, including for the retroactive dates in her request. (FMLA Request Form, Pl.'s Counter SMF Ex. D; July 25, 2012 Letter to Pl., Pl.'s Counter SMF Ex. J.) While she was out, Plaintiff requested an extension of her leave to September 10, 2012. (Doctor's Notes, Pl.'s Counter SMF Ex. H.)

Defendant's FMLA policy, which was available to employees on its website as well as in hard copy at its main office, states that an employee's twelve-month FMLA cycle begins "after the request for leave."[2] (FMLA Policy, Def.'s Statement of Material Facts ("SMF") Ex. B [Docket Item 16-2], at 1; Huder Dep., Pl.'s Counter SMF Ex. C, 39:22-40:19.) Defendant claims, however, that its policy language does not accurately depict its actual business practice with regards to FMLA-leave allocation. Vickie Scates, one of Defendant's employees who oversees pension and benefits, testified that rather than measuring twelve months forward from the date an employee requests leave, Defendant's customary practice was to calculate its FMLA cycle by measuring twelve months forward from the date an employee begins leave. (Scates Dep., Def.'s SMF Ex. G, 14:15-15:14.)

By letter dated September 7, 2012, Kathleen Huder, the School Business Administrator, informed Plaintiff that her twelve weeks of yearly FMLA leave would exhaust on September 10, 2012. Huder testified that she calculated the date by counting twelve weeks from the date Plaintiff began her leave of absence on June 19th, rather than the date she requested leave on June 26th. (Huder Dep. 72:9-73:1.) The letter also stated, "As of August 20, 2012, you have expired all sick, vacation and personal time as well." (Sept. 7, 2012 Letter, Pl.'s Counter SMF Ex. K.) At deposition, Plaintiff stated that she agreed with the letter's statement that her sick, vacation, and personal time had been exhausted. (Pizzo Dep. 69:7-70:5.) Plaintiff returned to work on September 10, 2012. (Pizzo Dep. 68:1-3.)

Following her return to work, Plaintiff continued to miss work, albeit sporadically, undisputedly due to her mental illness. She missed five days of work in December 2012 and January 2013 combined, as well as three days of work in February 2013. (See Attendance Record.) Huder testified at deposition that Plaintiff was not terminated for these absences because she provided doctor's notes for these absences and Defendant was trying to work with her. (Huder Dep. 83:16-84:21.) She stated that Defendant did not automatically fire employees who were absent from work for a day when they had no more leave time left. She explained, "We want our employees to come to work and do their job and feel better and we were hoping that that would be the case [with Plaintiff]. So that's why - it's not automatic day one, dock, you're done." (Id. 84:1-4.)

Plaintiff was ultimately fired after she accumulated eight more absences in March 2013. She missed work from March 11th to March 15th and submitted a doctor's note excusing her absence due to "work related stress."[3] (Doctor's Notes, Pl.'s Counter SMF Ex. H.) Plaintiff understood that at the time she missed work, she had exhausted all her FMLA and sick leave. (Pizzo Dep. 122:21-123:13.) Huder checked Plaintiff's records and saw that Plaintiff was not eligible for FMLA-covered leave. (Huder Dep. 93:7-24.) On March 12th, Plaintiff submitted a request for a "sick bank"[4] for "work-related stress." (Request for Sick Bank, Pl.'s Ex. L [Docket Item 25-2].) Huder recommended denying Plaintiff's sick bank request "due to [Plaintiff's] abuse of attendance over the years." (Huder Dep. 68:16-18; 70:19-24.) Plaintiff's request was discussed at Defendant's board meeting on March 27, 2013 and was ultimately denied. (Termination Letter, Pl.'s Counter SMF Ex. M [Docket Item 25-2].) The following week, Plaintiff missed work on March 18th and 19th and submitted another doctor's note excusing her absences. (Doctor's Notes, Pl.'s Counter SMF Ex. H.)

Plaintiff returned to work on March 20th but called out of work again on March 21st. That day, Plaintiff had a telephone conversation with her supervisor, Jerome Juvennelliano. According to Juvennelliano, Plaintiff stated that she was "not coming in anymore." Juvennelliano told Plaintiff, "Okay. You have to get a doctor's note, " but Plaintiff responded, "No. I am not coming in anymore." (Juvennelliano Dep., Def.'s SMF Ex. M [Docket Item 16-2] 18:16-24.)[5] Juvennelliano spoke with Huder and relayed what Plaintiff said. Huder testified, "When I saw Jerome later that day, I reviewed it with him again and I said, This is what she said? And he said, Yes. So I made sure that the communication that I was relayed was accurate." (Huder Dep. 94:17-24.) Defendant did not reach out to Plaintiff to confirm her statement.

Plaintiff asserts that she called out sick on March 21st because "of [her] depression and anxiety" and intended to go back to work on April 2nd. She states that she told Juvennelliano over the phone that she "was calling out sick" and that her doctor would fax a letter to Defendant. She specifically testified that she did not tell Juvennelliano the specific condition she had; she "just told him [she] was calling out sick." (Pizzo Dep., Pl.'s Counter SMF Ex. G, 129:15-21.) Although Plaintiff admits that she did not tell Juvennelliano when she would be returning to work, she did not recall saying that she would be out indefinitely. She asserts that she asked her physician, Dr. Frank Murphy, for a note excusing her from work for that time period but her doctor never sent the note. (Pizzo Dep. 125:16-126:25.)

Plaintiff had a medical visit with Dr. Henry T. Dombrowski on March 21st. According to his medical records, Plaintiff arrived "tearful and emotionally upset." Dr. Dombrowki noted that Plaintiff "has worked in housekeeping with [Defendant] for 13 years" and that she "clashes with her boss and has been out of work." Dr. Dombrowski noted that he was not comfortable treating Plaintiff's psychiatric problems and "suggested that returning to her current employer and work situation is likely to be problematic in the future if she clashes with her boss." (Dombrowski record, Supplemental Def. Ex. [Docket Item 28-1].)

Plaintiff did not return to work after that phone call.[6] Huder testified that because Plaintiff had called saying "that she would be out indefinitely, you know, that basically brought me to the decision that we need people to come to work and we need to finalize our employment with her." (Huder Dep. 84:9-15.) She further testified that the decision to terminate Plaintiff was made "because [Plaintiff] had been out for so many days and because she represented to us that basically, I'm out and I don't know when I'm coming back. That is specifically why in this case it ended in termination." (Id. 85:2-7.)

Defendant fired Plaintiff by phone and by letter dated March 28, 2013. The letter stated that Defendant was terminating Plaintiff's employment "as [Plaintiff] has exhausted all accrued time and FMLA and [has] given notice that she will be out indefinitely." (Termination Letter, Pl.'s Counter SMF Ex. M.)

Prior to her termination, Plaintiff had never been disciplined by Defendant for her absences, other than single attempt in February 2013 which Defendant later retracted. (Pizzo Dep. 128:4-23.)

On April 8, 2013, more than a week after Plaintiff's termination, Defendant received a letter from Plaintiff's physician, Dr. Murphy, dated March 28, 2013. The letter explained that Plaintiff "attempted to return to work on March 20, but was unable to perform her duties due to her medical condition." The letter further advised that Plaintiff needed to take a leave of absence "[d]ue to her medical condition and level of symptoms." The letter did not contain a return-to-work date but requested leave for an indefinite period of time. (Dr. Murphy Letter, Pl.'s Ex. P [Docket Item 25-2].)

B. Procedural History and Parties' Arguments

Plaintiff filed her Complaint on June 11, 2013 [Docket Item 1]. She brings claims against Defendant for interference and retaliation under the FMLA as well as discrimination, retaliation, and failure to accommodate under the NJLAD. (Compl. ¶¶ 25-59.) This Court exercises subject matter jurisdiction over Plaintiff's federal and state law claims under 28 U.S.C. § 1331 and 28 U.S.C. § 1367(a).

Plaintiff asserts that her March 2013 absences were covered under the FMLA, and that Defendant encroached upon her rights by firing her for attempting to take an FMLA-protected leave of absence. (Id. at ¶¶ 26-38.) Plaintiff also claims that she is disabled within the meaning of the NJLAD, and that Defendant failed to accommodate her disability, retaliated against her for ...

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