United States District Court, D. New Jersey
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
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.
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).
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
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.
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.
Leave of Absence
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).
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.
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).
Acquisition of A&P's Wall Township Store
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.)
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
November 3 and November 6, 2015, the Wall Township store
underwent a three-day transition, and reopened to the public
on November 6, 2015.
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
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
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)
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
attempt to return to work
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
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.
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).
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.
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.
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).
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).
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).
deposition, Melissa English, manager of training and
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 ...