PIZZO v. LINDENWOLD BOARD OF EDUCATION

Filing 31

OPINION. Signed by Chief Judge Jerome B. Simandle on 3/31/2015. (drw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

COLLEEN PIZZO,

HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action
No. 1:13-cv-03633 (JBS/JS)

v.
LINDENWOLD BOARD OF EDUCATION,

OPINION
Defendant.

APPEARANCES:
Matthew D. Miller, Esq.
Swartz Swidler, LLC
1878 Marlton Pike East, Suite 10
Cherry Hill, NJ 08003
Attorney for Plaintiff
Timothy R. Bieg, Esq.
Madden & Madden, P.A.
108 Kings Highway East, Suite 200
PO Box 210
Haddonfield, NJ 08033
Attorney for Defendant
SIMANDLE, Chief Judge:
I.

INTRODUCTION
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.
II.

BACKGROUND

A. Factual Background1
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

1

The facts are drawn from the statements and counterstatements of
facts filed in connection with Defendant’s motion for summary
judgment, Plaintiff’s motion for partial summary judgment, and as
Defendant’s subsequent supplemental submission [Docket Items 28,
30].
2

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.

2

Additionally, Defendant points out that it has FMLA posters up
at all of its schools. (Def.’s SMF, ¶¶ 20, 21). However, Defendant
does not purport that these posters state Defendant’s specific
FMLA leave-calculation method.
3

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

4

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

3

Plaintiff testified that her work related stress was caused by
supplies and other items disappearing at work, as well as issues
with the new principal in the building. (See Pizzo Dep., Pl.’s
Counter SMF Ex. G, 111:8-113:7.)
5

“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

4

A sick bank is a mechanism in which other employees can donate
their unused paid sick days to the sick employee. Defendant permits
its employees to apply for a sick bank upon exhausting all of their
paid sick days.
5 Plaintiff does not appear to dispute this. (See Pl.’s Resp. to
Def.’s SMF [Docket Item 25-3] ¶ 44) (“Plaintiff admits that this
was Supervisor Juvennelliano’s testimony.”).
6

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

7

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

6

A few days after her phone call to Juvennelliano, Plaintiff
called Scates asking when her benefits would “term” or cease.
(Pizzo Dep. 132:8-16.) Plaintiff testified that she called to ask
when her benefits would end due to her inability to cover the
deductions required so that she could get health insurance at the
appropriate time. (Pizzo Dep. 132:7-133:12.)
8

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

9

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
requesting a reasonable accommodation, and fired her on the
basis of her disability. (Id. at ¶¶ 40–59.)
Defendant filed a motion for summary judgment on all
counts. Plaintiff filed a cross-motion for summary judgment on
her FMLA interference claim.
With respect to the FMLA claims of interference and
retaliation, Defendant argues that terminating Plaintiff did not
violate the FMLA because she had no remaining FMLA benefits in
by March 21, 2013. (Def.’s Summ. J. Br. [Docket Item 16-1], at
8.) Defendant argues that, according to its policies with
regards to leave-calculation, Plaintiff’s twelve-month FMLA
cycle began when she took her leave of absence on June 19, 2012
and did not replenish until June 2013. (Id. at 12, 13.) Since
Plaintiff had already used twelve weeks of leave in the summer
of 2012, she had no available leave time to cover her prolonged

10

absences in March 2013. (Id.) Defendant additionally argues that
Plaintiff’s FMLA claims must be dismissed because Plaintiff gave
insufficient notice that she was invoking her FMLA rights.
In opposition to Defendant’s motion and in support of her
own motion for partial summary judgment on the FMLA interference
claim, Plaintiff contends that she was entitled to FMLA leave in
March 2013. She claims that Defendant failed to adopt a method
of leave-calculation because its policy language does not
perfectly mirror any of the methods prescribed by the
regulations. (Pl.’s Opp. Summm. J. [Docket Item 25], at 8–10;
Pl.’s Partial Summ. J. Br. [Docket Item 17-1], at 8-9.)
Plaintiff argues that this discrepancy, according to §
825.200(e), is akin to not choosing a leave-calculation method
at all, and entitles her to use the prescribed method which
provides the best outcome for her. (Id.) Under the “calendar
year” method found in § 825.200(b)(1), Plaintiff’s available
leave would have replenished in January 2013. Thus, she would
have had available FMLA leave in March 2013, and Defendant
violated her rights under the FMLA by terminating her.
Alternatively, Plaintiff argues that even if Defendant properly
chose a leave-calculation method, it did not provide its
employees, Plaintiff included, with sufficient notice of its
choice of methods. (Pl.’s Opp. Summ. J., at 10-11.)

11

With regards to the NJLAD claims, Defendant argues summary
judgment is warranted because Plaintiff could not perform the
duties of her employment, even with a reasonable accommodation.
(Def.’s Summ. J. Br., at 13, 14–15.) Defendant also asserts that
it had no discriminatory intent. (Id. at 15.)
Plaintiff contends in opposition that she requested two
alternative accommodations, both of which were reasonable: a
leave of absence and a sick bank. (Pl.’s Opp. Summ. J., at 1718.) She argues that Defendant discriminated and retaliated
against her by firing her because of her disability and because
she sought an accommodation. (Id.)
III. STANDARD OF REVIEW
Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). A dispute is considered “genuine” if “the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). Furthermore, a fact is only “material” if it might
affect the outcome of the suit under the applicable rule of law.
Id. At summary judgment, the Court views the evidence in favor
of the nonmoving party and extend any reasonable inferences to

12

be drawn from that evidence to that party. Hunt v. Cromartie,
526 U.S. 541, 552 (1999).
This standard remains unchanged when the Court is presented
with cross-motions for summary judgment. See United States v.
Kramer, 644 F. Supp. 2d 479, 488 (D.N.J. 2008). The Court must
consider the cross-motions independently and “view the evidence
on each motion in the light most favorable to the party opposing
the motion.” Id. (citing Williams v. Phila. Housing Auth., 834
F.Supp. 794, 797 (E.D. Pa. 1993), aff’d, 27 F.3d 560 (3d Cir.
1994)).
IV.

DISCUSSION

A. Plaintiff’s FMLA claims
The express purpose of the FMLA is “to balance the demands
of the workplace with the needs of families” by establishing a
minimum labor standard for leave for certain family and medical
reasons. 29 U.S.C. § 2601(b)(1); Churchill v. Star Enters., 183
F.3d 184, 192 (3d Cir. 1999). 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. 29
U.S.C. § 2612(a)(1)(D). If an employee is eligible, he or she is
entitled to twelve weeks of leave during a given twelve-month
period, as well as reinstatement to his or her original position
or its equivalent. Id. § 2614(a)(1). Employers may not deny

13

leave to employees who qualify, nor may they retaliate against
employees who exercise their rights under the FMLA. Id. §
2615(a)(1).
Although the FMLA allows employees to take reasonable leave
for medical reasons, it also requires that all such leave be
taken “in a manner that accommodates the legitimate interests of
employers.” Id. § 2601(b)(3). Accordingly, employers have some
discretion in determining when their employees’ twelve-month
benefit period begins. Specifically, federal regulations give
employers four choices for calculating their yearly FMLA cycle:
(1)

The calendar year;

(2)

Any fixed 12–month leave year, such as a fiscal
year, a year required by State law, or a year
starting on an employee’s anniversary date;

(3)

The 12–month period measured forward from the
date of any employee’s first FMLA leave [taken
pursuant to 29 C.F.R. § 825.200(a)]; or,

(4)

A “rolling” 12–month period measured backward
from the date an employee uses any FMLA leave as
described in [29 C.F.R. § 825.200(a)].

29 C.F.R § 825.200(b)(1)–(4) (emphasis added). Employers
retain the flexibility to choose which calculation method
to apply as long as they apply it consistently and
uniformly to all employees. Id. § 825.200(d)(1).
Importantly, if an employer fails to select one of the
regulations’ appropriated methods, “the option that

14

provides the most beneficial outcome for the employee will
be used.” § 825.200(e).
29 U.S.C. § 2615(a)(1) of the FMLA prohibits an employer
from “interfer[ing] with, restrain[ing], or deny[ing] the
exercise of or the attempt to exercise, any right” that it
guarantees. “Interference” includes “[a]ny violations of the
[FMLA] or of these [FMLA] regulations.” 29 C.F.R. § 825.220(b).
To assert a claim for interference under the FMLA, an employee
need only to show that “he was entitled to benefits under the
FMLA and that he was denied them.” Callison v. City of
Philadelphia, 430 F.3d 117, 119 (3d Cir. 2005) (citing 29 U.S.C.
§§ 2612(a), 2614(a)). “An interference action is not about
discrimination, it is only about whether the employer provided
the employee with the entitlements guaranteed by the FMLA.” Id.
at 120.
While § 2615(a)(1) prohibits interference with employees'
FMLA rights, § 2615(a)(2) prohibits employers from
discriminating against employees who have taken FMLA leave. 29
U.S.C. § 2615(a)(2). Section (a)(2) prohibits an employer “from
discriminating against an employee . . . for having exercised or
attempted to exercise FMLA rights.” 29 C.F.R. § 825.220(c). An
employer also cannot use the taking of FMLA leave as “a negative
factor in employment actions, such as hiring, promotions or

15

disciplinary actions.” Id.; see also Hodgens v. Gen. Dynamics
Corp., 144 F.3d 151, 159–60 (3d Cir. 1998). To establish a claim
of discrimination under § 2615(a)(2), a plaintiff must first
establish a prima facie case of discrimination by demonstrating
that: (1) she availed herself of a protected right under the
FMLA; (2) she suffered an adverse employment action; and (3) the
adverse action was causally related to the plaintiff’s FMLA
leave. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135,
146-47 (3d Cir. 2004).
Once a prima facie case has been established, the burden
shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for the adverse action. Moore v. City
of Philadelphia, 461 F.3d 331, 342 (3d Cir. 2006); Krouse v. Am.
Sterilizer Co., 126 F.3d 494, 500–01 (3d Cir. 1997). The burden
then shifts back to the plaintiff, who must show that the
employer's proffered explanation was pretext and that the
employer's real reason for retaliating against her was because
she took FMLA-protected leave. Hodgens, 144 F.3d at 161;
Thurston v. Cherry Hill Triplex, 941 F.Supp.2d 520, 532 (D.N.J.
2008).
“[F]iring an employee for a valid request for FMLA leave
may constitute interference with the employee's FMLA rights as
well as retaliation against the employee.” Erdman v. Nationwide

16

Ins. Co., 582 F.3d 500, 509 (3d Cir. 2009); see also
Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294 (3d
Cir. 2012).
Plaintiff seeks summary judgment on her interference claim,
arguing that her absence on March 21, 2013 was FMLA-protected,
and that her termination for that absence therefore violated
§ 2615(a)(1). Defendant moves for summary judgment against
Plaintiff’s claims of interference and retaliation, arguing that
Plaintiff had exhausted her FMLA leave by March 2013 and that no
reasonable jury could find that Defendant interfered with or
deprived Plaintiff of any FMLA-protected right.
1. The Court will grant summary judgment in Defendant’s
favor on Plaintiff’s FMLA interference claim

The parties do not contest that Plaintiff was terminated on
March 28, 2013 for her absence on March 21st, but they sharply
dispute whether Plaintiff’s absence on March 21st was protected
under the FMLA. That question in turn hinges on which of the
four methods of leave calculation set forth in 29 C.F.R §
825.200(b)(1)–(4) should be used to calculate Plaintiff’s
entitlement to leave.
The evidence is not so clearly one-sided such that a jury
must find in favor of one party. A reasonable jury could find,
based on Vickie Scates’ testimony, that Defendant measured the

17

twelve-month period from the date the employee begins leave and
therefore adopted the “looking forward” leave calculation
specified in § 825.200(b)(3). Under that calculation,
Plaintiff’s absences in March 2013 would not have been FMLAprotected, and a reasonable jury could therefore find that
Defendant did not deny her any entitlement under the FMLA.
A reasonable jury could also disregard Scate’s testimony in
favor of Defendant’s official FMLA policy, which clearly states
that the twelve-month FMLA cycle begins “after the request for
leave.” A reasonable juror could conclude, particularly when
viewing the evidence in light most favorable to Plaintiff, that
by promulgating a written policy which does not conform to any
of the specified methods under § 825.200(b), Defendant “failed
to select one of the [specified] options,” and Plaintiff must be
given the benefit of the most beneficial leave outcome. 29
C.F.R. § 825.200(e) (stating that “[i]f an employer fails to
select one of the options in paragraph (b) . . . for measuring
the 12-month period for the leave entitlements . . ., the option
that provides the most beneficial outcome for the employee will
be used.”). Under § 825.200(b)(1), the “calendar method,”
Plaintiff would be entitled to twelve weeks of leave beginning
each new calendar year. Plaintiff’s FMLA-related absences in

18

2012 would not count towards her leave in 2013, and her March
21, 2013 absence would therefore be covered by the FMLA.
If Plaintiff’s interference claim turned solely on whether
she was entitled to benefits under the FMLA on March 21st,
summary judgment would be inappropriate for either party.
However, in order to invoke the FMLA’s protection for an
interference claim, Plaintiff must also show that she gave
sufficient notice to her employer that she was requesting leave
under the FMLA. In this case, the Court agrees with Defendant
that Plaintiff’s notice was inadequate to alert Defendant that
she was invoking her FMLA rights. (Def. Mot. for Summ. J.
[Docket Item 16-1] at 10.)
29 C.F.R. § 825.303(b) requires an employee to provide
“sufficient information for an employer to reasonably determine
whether the FMLA may apply to the leave request.” 29 C.F.R. §
825.303(b); see also Lichtenstein v. University of Pittsburgh
Medical Center, 691 F.3d 294, 303 (3d Cir. 2012); Brenneman v.
MedCentral Health Syst., 366 F.3d 412, 421 (6th Cir. 2004)
(“[T]he critical test for substantively-sufficient notice is
whether the information that the employee conveyed to the
employer was reasonably adequate to apprise the employer of the
employee's request to take leave for a serious health condition
that rendered him unable to perform his job.”). Moreover, when

19

leave is requested for an FMLA-qualified reason which the
employer has previously allowed, the employee “must specifically
reference either the qualifying reason for leave or the need for
FMLA leave.” 29 C.F.R. § 825.303(b). Significantly, the FMLA
regulations provide that “[c]alling in “sick” without providing
more information will not be considered sufficient notice to
trigger an employer's obligations under the Act.” 29 C.F.R. §
825.303(b).
Plaintiff provided no notice that would be acceptable under
§ 825.303. On the morning of March 21st, Plaintiff called her
supervisor, Jerome Juvennelliano, to tell him she would not be
coming in. She stated that she told Juvennelliano that she “was
calling out sick.” At deposition, Plaintiff was asked
specifically whether she told Juvennelliano about her medical
condition or “what was going on requiring [her] to miss work.”
She responded, “No, I just told him I was calling out sick.”
Plaintiff also admitted that she never told Juvennelliano the
date on which she would be returning to work. Juvennelliano
recalled Plaintiff telling him only that she was “not coming
in.” He did not recall Plaintiff giving any more detail. There
is no evidence in the record that Plaintiff conveyed to
Defendant that her sickness was due to depression or another
serious illness which may be protected under the FMLA.

20

Nor is there any evidence that Defendant received other
notice from Plaintiff in the days after March 21st. Plaintiff
did not return to work after that day and she specifically
testified that her physician never sent her employer a doctor’s
note about her ailment. Although Defendant eventually received a
letter from Dr. Murphy excusing Plaintiff for her absence, the
letter was dated March 28th, the same day Plaintiff was fired,
and was not received by Defendant until April 8th.
In short, giving Plaintiff the benefit of all favorable
inferences, the only information Defendant received from
Plaintiff about her March 21st absence before it fired her was
Plaintiff’s statement that she was “calling out sick.” Such an
explanation is not enough as a matter of law to convey to
Defendant that Plaintiff was suffering from a serious medical
illness, nor was it enough to trigger Defendant’s obligation to
ask for additional information. 29 C.F.R. § 825.303(b). Compare
Lichtenstein, 691 F.3d at 304 (finding that plaintiff gave
sufficient notice of her intention to take FMLA-qualified leave
when she told employer that she was unable to come to work; was
in the emergency room; and her mother had been brought to the
hospital via ambulance) and Viereck v. City of Gloucester City,
961 F. Supp. 703, 707 (D.N.J. 1997) (holding the plaintiff's
notice to her employer sufficient under the FMLA because

21

“[a]lthough plaintiff did not mention the FMLA by name at that
time, she described the nature and extent of her injuries to
[her employer], informed him that she had been hospitalized, and
told him that she would be unable to return to work for some
time due to her medical condition”) with Satterfield v. Wal–Mart
Stores, Inc., 135 F.3d 973, 978–81 (5th Cir. 1998) (rehearing
and rehearing en banc denied) (holding, as a matter of law, that
an employee's statement that she “was having a lot of pain and .
. . wouldn't make it in to work that day” provided insufficient
notice to her employer under the FMLA); Ireland v. Borough of
Haddonfield, at *4-5 & n.5 (D.N.J. Sept. 1, 2006) (plaintiff did
not provide sufficient notice to employer of intention to take
FMLA-qualified leave when he failed to articulate the nature of
his serious medical condition); see also Sherrod v. Pa. Gas
Works, 57 Fed. App’x 68, 72-73 (3d Cir. 2003) (notice was not
given given where employee failed to sufficiently explain her
reasons for the leave so as to allow her employer to determine
that her request was covered by the FMLA).
Because no reasonable factfinder could conclude that
Plaintiff gave sufficient notice that she was taking FMLAprotected leave on March 21st, the Court will grant summary
judgment in Defendant’s favor on Plaintiff’s claim of
interference under the FMLA. Plaintiff’s motion for partial

22

summary judgment on the interference claim will accordingly be
denied.
2. Summary judgment will be granted for Defendant on the
claim of retaliation under the FMLA
Summary judgment is warranted in Defendant’s favor on
Plaintiff’s claim of FMLA retaliation. First, as noted above, no
rational jury could find that Plaintiff provided Defendant with
sufficient notice to trigger her FMLA rights.
Additionally, Defendant has proffered a legitimate, nonretaliatory reason for Plaintiff’s termination which Plaintiff
has failed to rebut. Defendant asserts that it fired Plaintiff
because it did not know when Plaintiff would be returning to
work, and the evidence supports that Plaintiff left on March
21st with no firm return date. Juvennelliano testified that
Plaintiff told him that she was “not coming in anymore.”
Although Plaintiff asserts that she told Juvennelliano that she
was merely “sick,” she nevertheless admitted at deposition that
she did not tell Juvennelliano when he could expect her back at
work. Additionally, the March 21st medical record from Dr.
Dombrowski indicates that Plaintiff was having difficulties with
her supervisor at work, and his advice to Plaintiff that
returning to work would be “problematic” suggests that Plaintiff
was contemplating an indefinite leave for non-medical reasons.
Likewise, Katherine Huder testified that her understanding from
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speaking with Juvennelliano was that Plaintiff had said she
would be out “indefinitely.” She further testified that while
Defendant could be flexible with employees about taking sick
days when they had used up their leave – and indeed, had been
flexible with Plaintiff with respect to her absences in early
2013 – Plaintiff’s phone call on March 21st indicated that this
was not Plaintiff’s situation, and Plaintiff’s uncertain return
date was the reason why she was fired. (See Huder Dep. 85:2-7
(“[S]he 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.”).)
Plaintiff has supplied no evidence demonstrating that
Defendant’s proffered legitimate, nondiscriminatory reason was
pretextual. Plaintiff’s only argument for pretext is that her
absence was for medical reasons and was clearly protected by the
FMLA. But, as the Court has already explained, no reasonable
jury could find that Defendant was even aware that Plaintiff was
invoking her FMLA rights. Plaintiff’s argument is also
undermined by the fact that both parties believed at the time
that Plaintiff was not entitled to any more FMLA leave. Indeed,
Plaintiff testified that she believed that she had exhausted all
of her FMLA leave in March 2013. (See Pizzo Dep. 123:10-13.) To
discredit the defendant’s reasons, the plaintiff “cannot simply

24

show that the employer’s decision was wrong or mistaken,” since
the factual dispute at issue is not whether the employer was
competent, but whether discriminatory animus motivated the
adverse decision. Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir.
1994). No reasonable jury could find that Defendant terminated
Plaintiff for attempting to take FMLA leave to which it believed
she was entitled. Because Plaintiff has not otherwise met her
burden of showing that Defendant’s proffered explanation is
unworthy of credence, the Court will grant summary judgment and
dismiss Plaintiff’s claim of retaliation under the FMLA.
B. The NJLAD claims
The New Jersey Law Against Discrimination (“NJLAD”)
prohibits employers from discriminating against employees on the
basis of disability. Section 10:5–12(a) makes it unlawful for an
employer to discriminate against an individual because of that
person's disability. N.J.S.A. § 10:5–12(a). Section 10:5-12(d)
of the NJLAD prohibits retaliation against an employee because
that employee “has opposed any practices or acts forbidden under
[the NJLAD] or because that person has filed a complaint,
testified or assisted in any proceeding under [the NJLAD.]”
N.J.S.A. § 10:5–12(d); Cortes v. Univ. of Med. & Dentistry of
N.J., 391 F.Supp. 2d 298, 314 (D.N.J. 2005).

25

Plaintiff makes three claims under the NJLAD: she claims
that she was terminated because of her disability; that
Defendant failed to accommodate her disability; and that
Defendant retaliated against her for requesting an
accommodation.
1. Summary judgment is warranted on Plaintiff’s claim of
discriminatory discharge
To prove a claim of discriminatory discharge under the
NJLAD, a plaintiff must prove that (1) she was in a protected
class; (2) she was otherwise qualified and performing the
essential functions of the job; (3) she was terminated; and (4)
the employer thereafter sought a similarly qualified individual
for the job. Victor v. State, 203 N.J. 383, 409 (2010) (internal
citations omitted).
The burden-shifting framework used in the FMLA retaliation
context also applies here. Once the plaintiff establishes a
prima facie case of discrimination, the burden shifts to the
defendant to show a legitimate non-discriminatory reason for its
actions. Dixon v. Rutgers, The State Univ. of N.J., 541 A.2d
1046, 1051 (N.J. 1988) (citing McDonnell Douglas, 411 U.S. at
807). The burden then shifts back to the plaintiff to prove that
the defendant’s proffered reason was merely a pretext for
discrimination. Id. The plaintiff may meet this burden by
showing that a discriminatory reason more likely motivated the
26

employer than the employer’s proffered non-discriminatory reason
or by showing that the employer’s proffered explanation is
unworthy of credence. Bergen Comm’l Bank v. Sisler, 157 N.J.
188, 211 (N.J. 1999) (citing Murray v. Newark Housing Auth., 709
A.2d 340 (N.J. Super. Ct. Law Div. 1998)).
The parties do not dispute that Plaintiff was disabled
within the meaning of the NJLAD due to her diagnosis for
“bipolar depression” or that she was fired due to her March 21st
absence, which Plaintiff asserts was for “depression and
anxiety.” Plaintiff also argues that she was qualified to
perform the essential functions of her job. Plaintiff had no
disciplinary record, had not been disciplined for her absences
leading up to March 21st, and nothing in the evidence suggests
that Defendant was unsatisfied with Plaintiff’s work
performance. However, Plaintiff has not set forth any evidence –
and the Court can find none in the record – nor even argued that
Defendant sought a similarly qualified individual for the job
after Plaintiff was fired. Thus, Plaintiff has not satisfied the
prima facie case for disability discrimination.
The Court must also grant summary judgment because
Defendants have proffered a legitimate, nondiscriminatory reason
for Plaintiff’s termination which Plaintiff has failed to rebut.
As the Court has already explained above, Plaintiff’s own

27

testimony and the testimonies of Juvennelliano and Huder suggest
that Plaintiff was ultimately terminated because Defendant did
not know when Plaintiff would be coming back to work. Although
Plaintiff testified that she had been planning to return on
April 2, nothing in the record suggests that the date was
communicated to Defendant. Defendant’s impression at the time,
and why it chose to terminate Plaintiff, was that Plaintiff’s
absence was indefinite. Plaintiff argues that one of Defendant’s
stated reasons for Plaintiff’s termination was that she had
exhausted her sick leave,7 but that alone does not raise an
inference of discriminatory animus. Moreover, Plaintiff fails to
note that the termination letter also stated that it was firing
Plaintiff because of Plaintiff’s statement that she would be out
“indefinitely.” Even viewed in light most favorable to
Plaintiff, no reasonable juror could find that Defendant’s
proffered reason for terminating Plaintiff’s employment was
pretext for discrimination. Accordingly, the Court will grant
summary judgment on Plaintiff’s claim of discriminatory
termination.
2. The Court will deny summary judgment on Plaintiff’s NJLAD
claims of failure to accommodate and deny summary
7

In Plaintiff’s termination letter, Defendant had written that
Plaintiff was being fired because she had exhausted her FMLA and
sick leave and had given notice that she would be out
indefinitely.
28

judgment on Plaintiff’s claim of retaliation for failure
to accommodate
Failure to accommodate “is one of two distinct categories
of disability discrimination claims ... the other being
disparate treatment discrimination.” Victor v. State, 952 A.2d
493, 501 (N.J. Super. Ct. App. Div. 2008). Under the NLJAD, an
employer must “make a reasonable accommodation to the
limitations of an employee or applicant who is a person with a
disability, unless the employer can demonstrate that the
accommodation would impose an undue hardship.” N.J. Admin. Code
tit. 13, § 13–2.5; see also Soules v. Mt. Holiness Mem’l Park,
808 A.2d 863, 867 (N.J. Super Ct. App. Div. 2002); Barboza v.
Greater Media Newspapers, 2008 WL 2875317, at *2 (D.N.J. July
22, 2008). Under New Jersey Law, a reasonable accommodation may
take the form of a temporary leave of absence. See N.J. Admin.
Code 13:13–2.5(b)(1)(ii); Santiago v. Cnty. Of Passaic, 2009 WL
483159, at *6 (N.J. Super. Ct. App. Div. Feb. 27, 2009).
A prima facie case of failure to accommodate requires proof
that (1) the plaintiff was disabled within the meaning of the
NJLAD; (2) was qualified to perform the essential functions of
the job, with or without accommodation; and (3) she suffered an
adverse employment action because of the handicap. Bosshard v.
Hackensack Univ. Med. Ctr., 783 A.2d 731, 739 (N.J. Super. Ct.
App. Div. 2001). In addition, the plaintiff must establish
29

several elements that go to the second factor of the prima facie
case. To show that an employer failed to participate in the
interactive process, and thereby has failed to provide
reasonable accommodations, a disabled employee must demonstrate:
(1) the employer knew about the employee’s disability; (2) the
employee requested accommodations or assistance for her
disability; (3) the employer did not make a good faith effort to
assist the employee in seeking accommodations; and (4) the
employee could have been reasonably accommodated but for the
employer’s lack of good faith.” Tynan v. Vicinage 13 of Super.
Ct., 798 A.2d 648, 657 (N.J. Super. Ct. App. Div. 2002). Once a
request for accommodation is made, both parties have a duty to
assist in the search for an appropriate reasonable
accommodation. Tynan, 798 A.2d at 657.
Plaintiff contends that she requested two reasonable
accommodations which Defendant denied: a leave of absence on
March 21st and a sick bank on March 12th. (Pl. Opp. Summ. J. 1718.)
First, with respect to the alleged request for a leave of
absence, Plaintiff did not in fact request a leave of absence
prior to her termination. She merely called in “sick” on March
21st without further explanation and without any request that a
reasonable juror could construe as a request for a leave of

30

absence. See Armstrong v. Burdette Tomlin Memorial Hosp., 438
F.3d 240, 247 (3d Cir. 2006) (noting that employee requested
accommodation when she “made her handicap known and announced
her desire for assistance”); Tynan, 798 A.2d at 656–67 (noting
that while an employee may use “plain English and need not
mention the ADA or any other legal source requiring
accommodation,” she must “ ‘make clear’ “that assistance is
desired for her disability) (quoting Jones v. United Parcel
Serv., 214 F.3d 402, 408 (3d Cir.2000)). Indeed, the record is
undisputed that Plaintiff did not mention her disability at all
in her phone call to Defendant. Although Plaintiff’s doctor
requested a leave of absence by letter dated March 28th,
Defendant did not receive this letter until more than a week
after firing Plaintiff. No reasonable jury could find that
Plaintiff made a clear request for a leave of absence for her
bipolar depression prior to being terminated, and the Court
finds that Plaintiff’s failure to accommodate claim on this
theory must be dismissed.
However, there is evidence from which a reasonable jury
could conclude that Defendant failed to accommodate Plaintiff
for her disability when it denied her request for a sick bank. A
reasonable jury could find that Plaintiff made a clear request
for assistance for her disability when she asked Defendant on

31

March 12th for sick bank time for her “work-related stress.” She
then submitted doctor’s notes related to her subsequent
absences. Rather than engage Plaintiff in an interactive process
to find an acceptable accommodation, Defendant never
communicated with Plaintiff regarding her sick bank request or
her doctor’s notes, and denied her request with no explanation
on March 28, 2013, the same day it fired her. A reasonable jury
could therefore find that Defendant’s failure to communicate
with Plaintiff was a bad faith response to Plaintiff’s request
for an accommodation. See Church v. Sears Holding Corp., 2014 WL
2115020, at *12 (D.N.J. May 21, 2014) (noting that acting in
good faith may be demonstrated by helping the other party
determine what specific accommodations are necessary and
communicating with the other party, by way of initiation or
response) (citing Taylor v. Phoenixville Sch. Dist., 184 F.3d
296, 313 (3d Cir. 1999)). The fourth prong is also satisfied.
Although an employee is not entitled to an indefinite amount of
leave, the end of which an employer cannot foresee, see Nusbaum
v. CB Richard Ellis, Inc., 171 F. Supp. 2d 377, 388 (D.N.J.
2001), the grant of a short amount of sick bank would not have
been an unreasonable accommodation. See Linton v. L’Oreal USA,
2009 WL 838766, at *8 (D.N.J. Mar. 27, 2009) (denying summary
judgment on failure to accommodate claim where there was some

32

evidence that employer could have granted employee a “short
extension of leave” on Defendant’s eight-week injury). Because a
reasonable jury could find that Plaintiff requested an
accommodation by seeking some sick bank time for her disability
and Defendant failed to communicate with Plaintiff regarding her
sick bank request before terminating her employment, the Court
will deny summary judgment on Plaintiff’s claim of failure to
accommodate.
Finally, Plaintiff argues that Defendant terminated her
because she requested a reasonable accommodation, which
constitutes retaliation under the NJLAD. The NJLAD makes it
unlawful “[f]or any person to take reprisals against any person
because he has opposed any practices or acts forbidden [under
the Act] . . . or because he has filed a complaint, testified or
assisted in any proceeding [under the Act].” N.J.S.A. 10:5–
12(d). To establish a prima facie case of retaliation, Plaintiff
must demonstrate by a preponderance of the evidence that (1) she
engaged in protected activity – here, a request for a reasonable
accommodation; (2) she suffered an adverse action; and (3) a
causal connection exists between the protected activity and the
adverse action. Romano v. Brown & Williamson Tobacco Corp., 665
A.2d 1139, 1142 (N.J. Super. Ct. App. Div. 1995). Retaliation
claims under the NJLAD are analyzed under the same burden-

33

shifting framework used for claims under the FMLA. See Lawrence
v. Nat'l Westminster Bank New Jersey, 98 F.3d 61, 70 (3d Cir.
1996); Thurston v. Cherry Hill Triplex, 941 F.Supp.2d 520, 534–
35 (D.N.J. 2008).
Plaintiff has shown a prima facie case of retaliation: she
engaged in protected activity by making a request for a sick
bank on March 12th, and she was terminated 16 days later on
March 28th, the same day she was notified that her request for a
sick bank was denied. Defendant argues that “the undisputed
reason” for Plaintiff’s termination was her “excessive
absenteeism in the month leading up to her removal.” (Def. Mot.
for Summ. J. [Docket Item 16-1] 17.) Defendant also argues that
there is no close temporal proximity between Plaintiff’s
protected activity and her termination because Plaintiff did not
request and was not eligible to take leave in March. Defendant
argues that the only “protected activity” in this instance was
the leave Plaintiff was entitled to take in the summer of 2012,
and nearly one-year gap between the protected activity and
Plaintiff’s termination does not establish any temporal
proximity. (Id.; Def. Reply in Support of Mot. for Summ. J.
[Docket Item 26] 4-5.)
The Court is not persuaded by Defendant’s reasoning. As
Plaintiffs have argued, for purposes of the NJLAD, the protected

34

activity Plaintiff engaged in here was her request for a sick
bank, which qualified as a request for a reasonable
accommodation. Plaintiff made the request on March 12th and was
terminated 16 days later. Such “close temporal proximity
qualifies as unusually suggestive timing” and is evidence of a
causal connection between Plaintiff’s request and her
termination. See Farrell v. Planters Lifesavers Co., 206 F.3d
271, 285 (3d Cir. 2000) (finding that time of three to four
weeks between protected activity and termination was
“suggestive” of retaliation in Title VII retaliation context);
Bryson v. Regis Corp., 498 F.3d 561, 571 (6th Cir. 2007)
(employee who was notified of her termination three months after
requesting FMLA leave and the day she was scheduled to return to
work established a causal connection); LaFranco v. Avaya Inc.,
2009 WL 2850747, at *9 (N.J. Super. Ct. App. Div. 2009) (noting
that temporal proximity alone is sufficient to establish a
causal link under the NJLAD).
Moreover, there is some evidence that Defendant’s proffered
nondiscriminatory reason for firing Plaintiff – Plaintiff’s
absenteeism from work and her purported statement that she would
be taking indefinite leave – was pretext. Here, Plaintiff
requested a sick bank for her disability and never heard back
about whether her request would be granted until the day she was

35

fired. The fact that Defendant failed to engage with Plaintiff
about her request, never bothered to respond to Plaintiff’s
request until she was fired, gave no explanation for why it was
denying Plaintiff’s request, and terminated Plaintiff only two
weeks after she asked for sick bank is sufficient to raise a
genuine issue of fact as to whether the true reason for
Plaintiff’s termination was retaliation for requesting a
reasonable accommodation for her disability under the NJLAD.
V.

CONCLUSION

For the foregoing reasons, the Court will grant summary
judgment on Plaintiff’s claims of interference and retaliation
under the FMLA, and Plaintiff’s claim of discriminatory
discharge under the NJLAD. Summary judgment will be denied on
Plaintiff’s claim of failure to accommodate and retaliation
under the NJLAD with respect to Plaintiff’s request for a sick
bank. An accompanying Order will be entered.

March 31, 2015
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

36