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Podurgiel v. Acme Markets Inc.

United States District Court, D. New Jersey

May 21, 2018

GREGORY PODURGIEL, Plaintiff,
v.
ACME MARKETS, INC., Defendants.

          MEMORANDUM AND ORDER

          PETER G. SHERIDAN, U.S.D.J.

         This matter comes before the Court on a motion for summary judgment brought by Defendant, Acme Markets, Inc. ("Acme") (ECF No. 45) and Plaintiff Gregory Podurgiel's motion for partial summary judgment. (ECF No. 49).

         I.

         Plaintiff filed his Complaint against Acme on April 21, 2016 alleging Defendant's violation of the Family and Medical Leave Act ("FMLA") and the New Jersey Law Against Discrimination ("NJLAD"). Plaintiff avers in his Complaint that he was terminated from employment due to his disability, his need for accommodations for his disability, and/or for taking FMLA protected absences, in violation of the FMLA and NJLAD. (Complaint, ¶l).

         Gregory Podurgiel (hereinafter "Plaintiff or "Podurgiel") was hired by the Greater Atlantic and Pacific Tea Company (hereinafter "A&P") in 1999 as a butcher. (Deposition of Gregory Podurgiel (hereinafter Podurgiel Dep.) 9:3-14, attached hereto as Exhibit 1. Pl. SOF ¶1.)

         Over the course of his employment, Plaintiff worked at several A&P grocery stores, and was a full-time employee at each store. (Podurgiel Dep. 12:16-13:2; SOF ¶2). Throughout the course of his employment with A&P, Plaintiff was a member of the United Food Commercial Workers Local 464A.

         In 2014, Plaintiff began working at the grocery store located in Wall Township New Jersey (hereinafter the "Wall Township Store") where he remained until September 2015. Joan Perez was the store manager at the Wall Township store, and Ernest Lawrence (hereinafter "Ernie Lawrence") served as the Assistant Store Manager, or "co-manager." During the 2015 calendar year, Plaintiff earned $47, 354.37 in wages.

         2015 Leave of Absence

         Plaintiff suffers from chronic mastoiditis media in his right ear. In or around August 2015, Plaintiffs physician recommended that he undergo surgery to treat the same. Thereafter, Plaintiff notified both Store Manager Perez and Assistant Store Manager Lawrence of his medical condition and his need for leave in order to undergo surgery. (PL SOF ¶l 1).

         On September 7, 2015, Plaintiff submitted a Family and Medical Leave Act (FMLA) Request Form that he had downloaded from the State of New Jersey website to A&P Human Resources. Plaintiff testified that he received oral confirmation that his request for leave was approved. (Podurgiel Dep. 21:16-23). Also, on September 7, 2018, Plaintiff submitted to A&P a New Jersey State Disability form completed by his physician, Dr. Laura Downey. Following his surgery, Plaintiff submitted a certification from his doctor verifying his medical condition, that he had undergone surgery, and confirming an anticipated leave of absence from September 8, 2015 until November 8, 2015. (PL SOF ¶I5.) Following his surgery, Plaintiff required regular follow up with his surgeon for purposes of monitoring his condition. During a visit on October 26, 2015, Plaintiffs physician identified an anticipated return to work date on November 9, 2016. However, thereafter during a visit on November 9, 2015, Plaintiffs physician advised Plaintiff that he should remain out of work until November 16, 2015. Accordingly Dr. Downey provided Plaintiff with a clearance to return to work on November 16, 2015. According to Plaintiff, he handed a copy of his November 16, 2015 clearance to return to work to Assistant Store Manager Ernie Lawrence on November 9, 2015.

         In mid-October, 2015, while out on medical leave, Acme, who acquired A&P, held an employee orientation for the Wall Township store employees in order to review the new Acme policies and procedures. (Lawrence Dep. at 19:5-21, attached as Exhibit 7. Pl. SOF ¶39). Plaintiff was directed, by Store Manager Joan Perez, to participate in that employee orientation program at the Wall Township Grocery Store and attended. (Podurgiel Dep. at 32:10-14, 33.i 1-22) (See also Lawrence Dep. at 22:3-6 confirming Plaintiffs attendance at orientation). Pl. SOF ¶ 40).

         Acme's Acquisition of A&P's Wall Township Store

         During the time period when Plaintiff was out on medical leave, A&P declared bankruptcy. Following A&P's bankruptcy filing, Defendant Acme Markets submitted a bid to purchase 76 of A&P's stores, including the Wall Township store where Plaintiff was employed. On July 19, 2015, the agreement to transfer the ownership of 71 A&P stores, including the Wall Township store, to Acme stores was memorialized in an Asset Purchase Agreement (hereinafter "the Purchase Agreement"). Pursuant to the Purchase Agreement, Acme agreed to offer employment to all "covered employees" of A&P. (Purchase Agreement at Sec. 6.4 (ACME00052), attached as Exhibit 7. Pl. Opp. and Pl. SOF ¶25.)

         According to Plaintiff, the Purchase Agreement defined "covered employees" as "an employee of A&P or any of its subsidiaries at the time of applicable closing, whose duties relate primarily to the operation of any of the Stores, excluding any such employees who are on short-term disability, long-term disability or any other approved leave of absence as of the applicable Closing." Purchase Agreement at Section 1.1 (ACME 00011), attached as Exhibit 8 Pl. SOF ¶26 Following the execution of the Purchase Agreement, Defendant's agents visited all grocery stores Acme acquired via the purchase Agreement. (Dosenbach Deposition at 25:2-10, attached as Exhibit 2; Mitch Schafer Deposition (hereinafter "Schafer Deposition") at 23:15-21). During these visits, Acme agents communicated to the store employees that they would become Acme associates. (Schafer Dep. at 23:15-21) Defendant also engaged in negotiations with unions when present at the stores they acquired. (Dosenbach Dep. at 20:17-20, 30:7-9; Pl. SOF ¶31.) Thereafter, Defendant entered into Memorandums of Understanding with said unions which set forth their agreements as related to the terms and conditions of employment between the union members and Defendant at each store. In August, 2015, the Memorandum of Agreement between Acme and the Wall Township store union, identifies that Acme agreed to accept all wage, hour and terms and conditions of employment set forth in the previously negotiated collective bargaining agreement (CBA) between the Union and A&P. (ECF No. 49-11) That is, according to Plaintiff, the CBA entered into between A&P and the Union in November 2008 remained in effect at the Acme acquired the Wall Township store, and that all Wall Township employees who were in non-management positions under A&P were members of the Union.

         Store Transition

         Between November 3 and November 6, 2015, the Wall Township store underwent a three-day transition, and reopened to the public on November 6, 2015.

         During the transition, the store's signage was changed from A&P to Acme, all A&P products were removed from the shelves; new cash registers and computers were installed. In addition, Acme implemented a different merchandizing strategy that included larger produce, bakery, and floral departments. Acme canceled A&P vendor and meat supply contracts, and also added some new vendors. The advertising strategy also changed.

         Store Employee Transition

         According to Dan Dosenbach, Acme Vice President of Human Relations, Acme was facing "a chaotic situation" regarding the transfer of employees from A&P to Acme. (Dosenbach dep. at 45). During the transition, all of the employee files were removed from the store. (Perez Dep. at 29:1-18. Pl. SOF ¶ 42.)

         According to Dosenbach, Acme did not make formal offers of employment to the A&P employees. Rather, Acme required A&P employees to complete employment applications that were then entered into its computer system prior to the transfer of ownership. (Dosenbach Dep. 27:9-22-26:13; Pl. SOF ¶50). This was done in order to verify the start date and seniority date for each employee. Joan Perez remained the Store Manager, and Ernie Lawrence remained the Assistant Store Manager at the Wall Township store. (Pl. SOF ¶ 53.) Melissa English is a manager of training and development at Acme, and she performs a variety of human resources function for Acme. Ms. English reports to Dan Dosenbach, V.P. of Human Resources. Ms. English testified that during the transition, she "volunteered to help with the Express Hires" because there was not enough administrative staff to process all of the employees. (English Dep. at 48)

         Acme utilizes a computer system known as the "MMS" system which allows store managers and human resources personnel to access employee information such as an employee's hire and seniority dates. (Lawrence Dep. 19:5-22; Pl. SOF ¶ 54.) Managers and assistant managers have access to the MMS system, but only Acme human resources personnel have access in order to activate a new "express hire" in the system. (Lawrence Dep. at 37:9-14).

         Plaintiffs attempt to return to work

         According to Plaintiff, throughout his FMLA leave of absence, he contacted the Wall Township store regularly to "check-in" (Lawrence Dep. at 21:9-15, stating "I know he checked in quite often ... "). (Pl. SOF ¶57).

         Prior to his anticipated return to work date, Plaintiff contacted store manager Joan Perez who advised him that because of the transition from A&P to Acme, he would need to submit a new return to work note from his physician. Thereafter, on or about November 9, 2015, Plaintiff submitted a return to work note directly to Assistant Store Manager Lawrence. As noted above, the note stated that Plaintiff could return to work on November 16, 2015.

         According to store manager Ernie Lawrence, he forwarded Plaintiffs note to Acme's human resources department in order to receive clearance to return to work, but advised Plaintiff that he could not return to work because he was "not in the system." (Lawrence Dep. 28:18-29:19). On November 12, 2015, Lawrence testified that he reached out to Acme Human Resources Agent Melissa English to inquire why Plaintiff had not been added to the MMS system, but received no response. (Pl. SOF ¶62).

         On Monday, November 16, 2015, Plaintiff reported to work, whereupon he was advised that he "wasn't on the schedule." (Podurgiel Dep. at 45:5-12, 49:25-50:12; Pl. SOF ¶64.) According to Plaintiff, the following week he contacted the store by telephone to inquire when he could return to work, but was again told that he was not on the schedule. (Podurgiel Dep. at 49:1-23; Plaintiffs Phone Records, attached ECF No. 52-18.) He also visited the store in person and spoke with Joan Perez who advised him that she could not resolve the issue until the district manager returned from vacation. Following his attempted return to work on November 16, 2015, Plaintiff called and his cell phone records indicate that over 15 calls were made to the Wall Township Grocery Store between November 17, 2015 and December 14, 2015.

         Plaintiff also contacted representatives of the Union during this time period. Plaintiff called and his cell phone records indicate that more than 25 calls were made to the Union between November, 2015 and February, 2016.

         Around early December 2015, Plaintiff sent a letter to Defendant's Human Resources Vice President Dan Dosenbach detailing his difficulty procuring reinstatement at the Wall Township Grocery Store. On Plaintiffs behalf, on December 7, 2015, Nick Rando, agent for the Union, also contacted Dosenbach to advise as to the issue with Plaintiffs ability to return to work. At deposition, Mr. Dosenbach testified that Acme's position is that employees who were out on leave of absence from a store Acme acquired are presumed to be employees but that will be confirmed when the employee returns to work with paperwork that supports the return and that the leave was appropriate. (Dosenbach Dep. at 31-32; Def. SOF ¶ 62).

         Plaintiff also contacted A&P Human Resources Manager Mitch Schafer. On December 28, 2015, Shaffer contacted Acme Human Resources on Plaintiffs behalf advising of Plaintiff s difficulty returning to work. At deposition, Schafer was asked what his understanding was as to whether Plaintiff was eligible to be hired once he was released by his doctor. Schafer testified "he was an employee of the store that was acquired by Acme" and that "[associates that were working for the A&P that Acme acquired would become Acme associates." (Schafer Dep. at 21).

         Following Shaffer's communication, Acme Associate Relations Manager Stacy Slate confirmed to Shaffer that Plaintiff was eligible to return to work. (Acme Internal Communications at ACME00095, attached as Exhibit 12. Pl. SOF ¶ 77).

         At deposition, Melissa English, manager of training and development testified:

Q. As of November 9th what was your understanding as to what would occur with regard to employees at an A&P which was acquired by Acme but who were out on a leave of absence at the time of acquisition?
A. I would have needed to be told that the medical, you know that the medical approval to return to work was there and that as far as ~ and then we'd need A&P to verify that they were in fact previously employed at this location that we acquired.
Q. So was it your understanding they would be entitled to reemployment at the Acme store?
A. Yes, yes. As long as A&P verified, you know, yes this person was in a ...

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