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Caruso v. Bally's Atlantic City

United States District Court, D. New Jersey

September 27, 2019


          David Mikel Koller KOLLER LAW LLC Attorney for Plaintiff

          Amy Elizabeth Rudley Russell L. Lichtenstein Justin A. Britton COOPER LEVENSON, P.A. Attorneys for Defendant




         The Family Medical Leave Act (hereinafter “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 Nicole Caruso (hereinafter “Plaintiff”), who was employed by Defendant Bally’s Atlantic City (hereinafter “Defendant”) as a bartender, alleges that Defendant violated her rights under the FMLA and under the New Jersey Family Leave Act (hereinafter “NJFLA”) when it terminated her on February 9, 2016 and May 30, 2017, both occurring shortly after she missed work, due to migraine headaches.

         Presently before the Court is Defendant’s motion for summary judgment [Docket Item 45], which challenges all Counts of Plaintiff’s Amended Complaint [Docket Item 22]. Plaintiff opposes the motion. (See Pl.’s Opp’n [Docket Item 49].) For the reasons set forth below, the Court will deny Defendant’s motion for summary judgment as to Counts 1 and 2 and grant Defendant’s motion for summary judgment as to Count 3. Plaintiff’s NJFLA retaliation claim will be dismissed.


         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. at § 2601(b)(2). However, it also requires that all such leave be taken “in a manner that accommodates the legitimate interests of employers.” Id. at § 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 employee unable to perform the functions” of his or her job. Id. at § 2612(a)(1)(D). Following this period of leave, an employee is entitled to be restored to his or her original position or its equivalent. Id. at § 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. at § 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. 29 U.S.C. § 2615.

         B. Factual Background

         Plaintiff Nicole Caruso was hired by Defendant Bally’s Atlantic City as a bartender in or around the Spring of 2010. (See Am. Compl. [Docket Item 22], ¶ 13; see also Answer to Am. Compl. [Docket Item 26], ¶ 13.) She suffered from migraines during her employment with Defendant. (Am. Compl. [Docket Item 22], ¶ 15.) By January 2016, Plaintiff’s condition had escalated to the point that she needed to take time off from work. (Id. at ¶ 16.)

         The same month, Ashley Joas (hereinafter “Joas”), a manager for Defendant issued Plaintiff three separate disciplinary actions. (Joas Dep., Pl’s Ex. B [Docket Item 49-4], 89:19-22.) Aware that Plaintiff was on FMLA leave, Joas issued Plaintiff a write-up for using obscene language and creating an unhealthy workplace environment, (id. at 77:12-18), for using her cell phone at work, (id. at 81:17-23), and for failing to use appropriate language and tone while addressing her managers. (Id. at 85:25-86:7.) Plaintiff complained that the separate disciplinary actions were excessive and Joe Procopio, a labor relations representative for Defendant, informed Joas that she should have issued a single write-up that addressed all of Plaintiff’s misconduct. (Id. at 90:23-25, 93:4-6.) Joas testified that she issued each discipline separately “to make sure that each one was clear” but “could have put them all into one document.” (Id. at 89:16-18.) Joas told Procopio that she would comply with his instruction in the future. (Id. at 93:7.)

         On January 12, 2016, Plaintiff took FMLA leave in response to her migraines and subsequently applied for intermittent leave pursuant to the FMLA. (Am. Compl. [Docket Item 22], ¶¶ 17-18.) In late January, Defendant notified Plaintiff that her request was approved through December 26, 2016. (Id. at ¶ 19.)

         Plaintiff returned to work from her initial period of FMLA leave on February 2, 2016. (Id. at ¶ 21.) Plaintiff alleges that, during a shift on February 5, 2016, after invoking her intermittent FMLA leave, Joas stated to Plaintiff: “You just can’t up and leave anytime you want because of FMLA.” (Id. at ¶ 23.) Plaintiff testified in her deposition that, before ending her shift for that night, and noticing that sour mix was “curling in [an alcoholic] drink” that she had made, Plaintiff suspected that the mix had gone bad. (Pl.’s Dep., Def.’s Ex. A [Docket Item 45-1], 81:15-82:21.) Plaintiff then transferred the drink from a glass container into a plastic cup, assertedly in order to alert her manager about the spoiled mix. (Pl.’s Dep., Ex. A [Docket Item 35-1], 85:17-19, 95:4-8.)[1] Plaintiff placed the cup in the back bar, but a manager had not been informed of the expired sour mix until after Plaintiff was suspended. (Id. at 95:4-10.)

         Another bartender, Stephanie Mills (hereinafter “Mills”), notified Joas that Plaintiff “was drinking behind the bar.” (Joas Dep., Pl.’s Ex. B [Docket Item 49-4], 107:13-14.) Mills, who may have been required to cover Plaintiff’s shifts at times while Plaintiff utilized FMLA leave, (Edley Dep., Pl.’s Ex. A [Docket Item 49-4], 45:16-18), did not get along with Plaintiff. (Joas Dep., Pl.’s Ex. B [Docket Item 49-4], 25:23-26:3.) Joas examined the cup and, realizing that the drink was a specialty cocktail, took a sample of it in another cup and delivered it to her direct supervisor, Jerry Beaver. (Id. at 107:15-19.) Plaintiff acknowledges that, to confirm her suspicions about the sour mix, she took a sip of the drink from the plastic cup. (Pl.’s Dep., Def.’s Ex. A [Docket Item 45-1], 95:11-23.) Plaintiff claims that she then determined that the drink was indeed bad and thereafter proceeded to dispose of it down the sink, which, being off-camera, was not caught in the surveillance video provided to the Court. (Id. at 78:23-79:1, 82:21-82:1, 95:13-15.)

         Plaintiff testified at her deposition that she was well aware that employees may and have been fired for drinking on the job, (Pl.’s Dep., Def.’s Ex. A [Docket Item 45-1], 74:7-12), but that this was not the case here. (Id. at 124:17.) She contends that her action was “part of the bartender’s job” and that “bartenders take sips of drinks all the time to see if it was bad.” (Id. at 124:19-22.) However, just as Plaintiff was getting ready to end her shift early pursuant to her intermittent FMLA leave, she was approached by members of Defendant’s security team and Jerry Beaver (hereinafter “Beaver”), Defendant’s Director of Food and Beverage. (Am. Compl. [Docket Item 22], ¶ 27.) Beaver informed Plaintiff that she was being suspended pending investigation for drinking on the job. (Id. at ΒΆ 28.) Plaintiff alleges that Joas, along with Stephanie ...

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