United States District Court, D. New Jersey, Camden Vicinage
SWIDLER, LLC By: Daniel A. Horowitz, Esq. Attorneys for
JACKSON LEWIS P.C. By: John K. Bennett, Esq. R. Shane Kagan,
Esq. Attorneys for Defendant.
RENÉE MARIE BUMB, UNITED STATES DISTRICT JUDGE
Rachel O'Donnell asserts that her former employer,
Defendant BH Media Group, Inc., doing business as the Press
of Atlantic City, violated her rights under the Family
Medical Leave Act, “FMLA, ” 29 U.S.C. § 2601
et seq., and New Jersey law, when it allegedly failed to
properly apprise her of her rights to leave time before and
after the birth of her child, and then allegedly pretextually
eliminated her position while she was on maternity
moves for summary judgment. For the reasons stated herein,
the motion will be granted in part and denied in part.
FACTUAL AND PROCEDURAL BACKGROUND
The leave time taken by O'Donnell
time Plaintiff Rachel O'Donnell became pregnant with her
second child in late 2013, she had been employed by
Defendant, the Press of Atlantic City, for five years.
(Defendant's Statement of Undisputed Material Facts,
“DSUMF, ” ¶¶ 9, 12, 24) At the time,
she was working full-time as one of two Circulation Sales
Executives in the Circulation Department. (DSUMF ¶ 10)
O'Donnell's projected due date was June 17, 2014.
(DSUMF ¶ 42)
Thursday, February 20, and Friday, February 21, 2014,
O'Donnell took two days off from work because her father
was undergoing surgery. (DSUMF ¶ 14) The next day,
Saturday, O'Donnell went to AtlantiCare Behavioral Health
complaining of extreme anxiety. (DSUMF ¶ 16) On Monday,
O'Donnell returned to AtlantiCare and spoke with a social
worker; she did not go to work that day. (DSUMF ¶ 17-19)
O'Donnell also did not go to work on Tuesday, February
25, because she returned to AtlantiCare to be evaluated by a
psychiatrist. (DSUMF ¶ 20) O'Donnell's primary
care physician faxed a doctor's note to Defendant stating
that O'Donnell would be able to return to work on Friday,
February 28, 2014. (DSUMF ¶ 22) In response, Nancy
Sonnie, Defendant's Payroll and Human Resources
Administrator, sent O'Donnell a letter confirming that
O'Donnell's leave “beginning on February 24,
2014” was FMLA leave. (Def. Ex. 3) On February 26,
2014, O'Donnell's psychiatrist faxed a doctor's
note to Defendant stating,
This is to confirm that Rachel Odonnell [sic] is currently
engaged in Adult Intervention Services with AtlantiCare since
02/22/14. Ms. Odonnell [sic] was seen by me today- 02/25/14.
She is unable to work due to illness. Her expected date of
return to work is 03/17/14.
(Def. Ex. 3)
following week, on March 4, 2014, while O'Donnell was
still out on FMLA leave, she emailed Sonnie. (Def. Ex. 3) The
email's subject line was “Maternity
benefits.” (Id.) O'Donnell inquired,
“Nancy, my doctor wanted me to ask you if me filling
out the FMLA forms now and the disability I am [sic] now will
affect my maternity disability. I don't think so but he
wanted me to follow up with you on it.” (Id.)
Minutes later, Sonnie responded by email, “[y]ou are
using the FMLA protection now, so you would have less when
you went out on maternity. But for the job protection you
have to fill it out now and then.” (Id.)
Minutes after that, O'Donnell further questioned,
“[b]ut I am still entitled to the maternity benefits of
4 weeks before and 8 weeks after regardless right? FMLA after
that will depend on how many weeks I have left from my
disability now? If that makes sense?”
(Id.) Minutes after that, Sonnie responded:
You can be out a total of 6 months under disability so yes
you should be fine there.
FMLA you get a total of 60 business days of job protection,
so you are using some now, and you will use some later.
Then if you wanted you could take an additional 12 weeks to
care for the baby.
You are using the piece that we supplement (11 weeks), so you
won't have as much when you go out on maternity.
Hope this helps.
March 14, 2014, O'Donnell's psychiatrist faxed
Defendant a doctor's note extending her leave to April
30, 2014. (Def. Ex. 3) Thereafter, on April 22, 2014,
O'Donnell's obstetrician provided a note stating that
O'Donnell “will be out of work until after delivery
of child.” (Id.)
gave birth on her due date, June 17, 2014. (DSUMF ¶ 47)
Thereafter, O'Donnell provided Defendant a doctor's
note stating that O'Donnell had delivered by cesarean
section and “will be able to return to work without
restrictions 8/12/14.” (Pl. Ex. M)
1, 2014, O'Donnell emailed Nancy Sonnie to tell Defendant
that she planned on returning to work on Monday, August 11,
2014. (Pl's Ex. BB)
Events at The Press of Atlantic City while O'Donnell
was on Leave
Friday, March 28, 2014, a little over a month after
O'Donnell began her FMLA leave, Danielle Daly, Director
of Human Resources at the Press of Atlantic City, emailed an
HR representative at Defendant's headquarters and copied
Nancy Sonnie. The email's “Subject” was
“FMLA issue.” (Pl. Ex. N) The email stated:
Hi Roshelle- we have an FMLA/term situation want to get your
Rachel O'Donnell works in Cir as a Sales Executive.
She's pregnant & due in mid-June. Her plan is to stay
out of work until after the baby arrives.
• She's been out on STD since 2/24/14 on mental
health issue • Her current RTW date is 4/30 (but we
don't anticipate her returning until after the baby is
• Her FMLA will end on 5/16 if she doesn't return on
4/30. If she returns on 4/30 then she'll have 12 days
remaining of FMLA protection.
• Once the baby arrives she's eligible for 12 weeks
of job protection under NJFLA to care for the baby. The
department has been struggling to get the work done. She is
one of two people in this position (the other person was just
hired on 3/24/14).
What are your thoughts on terminating her employment once her
(Pl. Ex. N)
following Monday, April 2, 2014, approval was given to
temporarily place Jessica Harvard in O'Donnell's
position, effective April 15, 2014. (Pl's Ex. O)
Defendant's “Employee Status Change Form”
indicates that Harvard's “new business title”
was “Circulation Sales Executive (temp)” and that
the “Person Replaced” was “Rachel
O'Donnell- currently out on leave.” (Id.)
week later, on April 22, 2014-- the same day Nancy Sonnie
received O'Donnell's obstetrician's note stating
that O'Donnell would be out of work through her
delivery-- Defendant again internally discussed
O'Donnell's situation. Mark Blum, the Publisher of
the Press of Atlantic City inquired of Daly, via email,
“[s]o can [O'Donnell's] position be replaced
since we're talking about sometime in September before
she comes back?” (Pl. Ex. P) Daly responded by writing
the following email to Roshelle at corporate headquarters,
and copying Blum:
Rachel O'Donnell who's out on a mental illness (we
discussed this on 3/28). She's now out on maternity
leave, see [doctor's] note below. Her FMLA will expire on
5/15. Her tentative delivery date is 6/17/14.
She would get at least 8 weeks of disability (depending on
complications) after the baby is born. Then she has the
option of taking NJFLA (the NJFLA doesn't start until
after she's released from her disability) for up to an
additional 12 weeks to bond with the baby, this could be
anywhere from 8/12-11/4.
From 5/15 to 8/12 she will have no job protection under
FMLA/NJFLA. What's your opinion about terminating her
employment so we can replace her position?
(Pl. Ex. P)
22, 2014, one week after O'Donnell's FMLA leave time
had been exhausted, Defendant posted a job opening for
“Circulation Department Sales Executive.” (Pl.
Ex. Q) The posting was removed one week later. (Id.)
There is no evidence in the record that anyone was hired for
the posted position.
this time, the Director of the Circulation Department
proposed to Publisher Blum four main staffing changes in the
Circulation Department. (Def. Ex. 11) Three of the four changes
proposed moving or hiring individual people. (Id.)