DENSON v. ATLANTIC COUNTY DEPARTMENT OF PUBLIC SAFETY
Filing
50
OPINION FILED. Signed by Magistrate Judge Joel Schneider on 9/27/16. (js)
[Doc. No. 43]
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
RHONDA DENSON,
:
:
Plaintiff, :
:
v.
:
:
ATLANTIC COUNTY DEPARTMENT
:
OF PUBLIC SAFETY,
:
:
Defendant. :
______________________________:
Civil No. 13-5315 (JS)
OPINION
This Opinion addresses whether plaintiff Rhonda Denson makes
out viable FMLA interference and retaliation claims and, if yes,
whether the claims are barred by the statute of limitations. The
Court finds that fact questions exist as to whether plaintiff’s
claims are viable. However, plaintiff’s claims are barred by the
statute of limitations.
This matter is before the Court on the “Motion for Summary
Judgment” (“Motion”) filed by defendant Atlantic County Department
of Public Safety. [Doc. No. 43]. Plaintiff opposes defendant’s
motion. See Plaintiff’s Opposition (“Pl.’s Opp’n”) [Doc. No. 45].
The
Court
also
received
defendant’s
reply
to
plaintiff’s
opposition. See Defendant’s Reply (“Def.’s Reply”) [Doc. No. 47].
The Court exercises its discretion to decide defendant’s motion
1
without oral argument. See Fed. R. Civ. P. 78; L. Civ. R. 78.1. 1
For the reasons to be discussed defendant’s motion will be granted.
BACKGROUND
Plaintiff is a Corrections Officer who works at defendant’s
Atlantic
County
Justice
Facility.
The
terms
of
plaintiff’s
employment are controlled by a Collective Bargaining Agreement
(“CBA”)
between
defendant
and
plaintiff’s
union.
This
matter
involves disciplinary action taken by defendant against plaintiff
in response to plaintiff’s absences from work on December 2 and 3,
2010. Plaintiff disputes the basis for discipline and argues that
since her absences were permissible under the Family and Medical
Leave Act of 1993, 29 U.S.C. § 2601 et seq., (“FMLA”), her
discipline should have been revoked.
On
November
30,
2010,
plaintiff
contacted
a
member
of
defendant’s prison operations staff to find out if she had any
available time off. See Defendant’s Statement of Facts (“Def.’s
SOF”) ¶ 14 [Doc. No. 43-1]; Plaintiff’s Supplemental Statement of
Facts (“Pl.’s SOF”) ¶ 14 [Doc. No. 45-3]. 2 The reason plaintiff
inquired about the availability of time off was because she wanted
to attend her aunt’s funeral which was scheduled on December 3,
1
Pursuant to 28 U.S.C. § 636(c), the parties consented to the
jurisdiction of this Court to hear the case. Reference Order [Doc.
No. 16].
2 The Court will consider “Plaintiff’s Response to Defendant’s
Statement of Material Facts” [Doc. No. 45-4] and “Plaintiff’s
Supplemental Statement of Facts” [Doc. No. 45-3].”
2
2010. Deposition of Rhonda Denson (“Denson Dep.”) at 76:16-21 [Doc.
No. 43-4]. Plaintiff was told she did not have any available time
off. Id. at 76:22-24.
On
December
2,
2010,
plaintiff
called
Stacey
Harper
of
defendant’s operations staff to indicate she was not coming to
work. Def.’s SOF ¶ 15; Pl.’s SOF ¶ 15. The parties dispute exactly
what plaintiff said to Harper. Defendant asserts plaintiff told
Harper the reason for her absence was “comp in lieu of.” Def.’s
SOF ¶ 15. Plaintiff maintains she told Harper “sick in lieu of.”
Pl.’s SOF ¶ 15. Plaintiff acknowledges that when defendant’s
employees take sick leave “in lieu of” they must submit a doctor’s
note explaining the reason for their absence. Denson Dep. at 79:715.
Later on the morning of December 2, 2010, Captain Giberson of
defendant’s operations staff called plaintiff at home to inquire
about the reason for her absence. Id. at 77:21-78:6, 79:2-6.
Plaintiff stated she was not feeling well and was going to see a
doctor.
Id.
at
79:5-6.
Subsequently,
plaintiff
went
to
the
emergency room at Inspira Medical Center where she complained of
breathing trouble. 3 Id. at 81:18-19, 85:2-4. While at Inspira
plaintiff was treated by a doctor who prescribed Prednisone and
instructed her not to return to work until December 6, 2010. Pl.’s
3
Plaintiff refers to Inspira Medical Center as “Underwood.” Denson
Dep. at 81:18-19.
3
SOF ¶ 3. The morning of December 3, 2010, plaintiff called out
sick again. Plaintiff also faxed a supporting doctor’s note to
defendant and informed defendant that she would be applying for
FMLA leave. Id. ¶ 19; Def.’s Resp. to Pl.’s SOF ¶ 19 [Doc. No. 471]. Plaintiff admits that later on December 3, 2010, she left her
home and attended her aunt’s funeral. Pl.’s SOF ¶ 67; Def.’s SOF
¶ 22. Plaintiff did not call her shift commander or another
supervisor to inform him or her that she was leaving her residence.
Plf.’s Resp. to Def.’s SOF ¶ 24 [Doc. No. 45-4]; Def.’s SOF ¶ 24.
Plaintiff returned to work on December 7, 2010. Pl.’s SOF ¶
4. Upon returning to work plaintiff submitted her FMLA application.
Id. ¶ 31. The same day defendant issued two disciplinary notices
to plaintiff for her alleged unauthorized absences. Id. ¶¶ 22, 23;
Def.’s
SOF
Disciplinary
¶¶
17,
18;
Hearing).
Def.’s
After
she
Brief
was
Exhibit
issued
D
her
(Notices
of
disciplinary
notices plaintiff submitted several different FMLA applications to
Deputy Warden Cohen which were denied. Pl.’s SOF ¶ 61; Def.’s SOF
at ¶¶ 19, 20. The primary reason for the denials was that plaintiff
did not comply with the requirement that her doctor review her job
description and identify which of her core job functions were
impacted by her diagnosis. See Pl.’s SOF ¶¶ 57-59; Def.’s Resp. to
Pl.’s SOF ¶ 57. On each occasion after plaintiff’s FMLA application
was denied, Cohen prepared a memo to plaintiff advising her how to
correctly complete her FMLA paperwork. See Def.’s Reply Exhibits
4
A-E [Doc. No 47-2]. For example, plaintiff’s application was denied
because she failed to submit the job description she was given to
use. Def.’s Reply Exhibits A, B.
One of the parties’ primary disputes centers on defendant’s
“job
description”
requirement.
That
is,
defendant
required
plaintiff to include with her FMLA application a job description
reviewed by her doctor. Plaintiff avers the requirement was not
specifically set forth in defendant’s written FMLA policy and was
uniquely applied to her. In addition, plaintiff argues the job
description requirement was created out of whole cloth to frustrate
her FMLA application. See Pl.’s SOF at && 56-59. Defendant does
not dispute the job description requirement was not specifically
set forth in its written policy. Deposition of Deputy Warden
Geraldine Cohen (“Cohen Dep.”) at 41:19-42:3 [Doc. No. 45-8].
However, Cohen testified the prison started the job description
requirement because an FMLA application requires the applicant to
provide her doctor with an accurate description of her job duties
so she can be properly evaluated for FMLA leave. Id. at 36:20-23,
38:18-39:18. Cohen also testified the job description requirement
existed since at least as early as April 2010, when Cohen was
promoted to Deputy Warden and began reviewing FMLA applications.
Id. at 37:12-18.
Under defendant’s practice FMLA applications originate in the
operations department. Id. at 32:20-21; Deposition of Captain
5
Giberson
(“Giberson
Dep.”)
at
60:7-10
[Doc.
No.
45-14].
The
operations department is responsible for providing FMLA paperwork
to employees who request information about the FMLA, including the
employee’s job description, as well as giving employees verbal
instructions on completing the application. Cohen Dep. at 32:2033:3; Giberson Dep. at 59:24-60:10. At all relevant times Cohen
oversaw the operations department and took an active role in the
resolution of FMLA applications. See Cohen Dep. at 219:6-11,
223:14-226:1. When Cohen had questions about the processing of
FMLA applications she contacted an attorney in the Atlantic County
Law Department, Susan Gross, Esquire. Id. at 39:19-40:13; Susan
Gross Deposition (“Gross Dep.”) at 9:8-17 [Doc. No. 49-1].
On
January
13,
2011,
defendant
granted
plaintiff’s
FMLA
application retroactive to December 2, 2010. Pl.’s SOF at ¶ 61;
Def.’s Resp. to Pl.’s SOF ¶ 61. However, defendant did not withdraw
the disciplinary actions against plaintiff, asserting that even
though plaintiff was retroactively granted FMLA leave, she still
violated defendant’s job requirements that had been collectively
bargained by her union. Def.’s Brief at 9. Plaintiff was issued a
one day suspension because she did not provide all of the requested
information when she was asked on December 2, 2010 why she called
out. Pl.’s SOF ¶ 24; Def.’s Resp. to Pl.’s SOF ¶ 24. Pursuant to
defendant’s FMLA policy, “[a]n employee must provide sufficient
information to the County to establish an FMLA/FLA qualifying
6
reason for the requested leave.” Def.’s Brief Exhibit H ¶ 12(c).4
Plaintiff was suspended three days because she left her home on
December 3, 2010 to attend her aunt’s funeral without telling
defendant she was leaving her house after calling out sick. Pl.’s
SOF ¶ 25; Def.’s Brief Exhibit D. When calling out sick defendant’s
policy required employees to remain at their residence or other
approved location. Id. Exhibit G. Defendant’s Notices of Minor
Disciplinary Action are attached to defendant’s Brief as Exhibit
D. Plaintiff did not grieve or appeal her discipline, nor did
plaintiff request PERC arbitration. Def.’s SOF ¶¶ 17, 18; Plf.’s
Resp. to Def.’s SOF ¶¶ 17, 18.
Plaintiff initiated this suit by way of complaint on August
2, 2013. The crux of plaintiff’s complaint is her accusation that
defendant interfered with her FMLA rights and retaliated against
her for exercising her FMLA rights. Compl. ¶¶ 74, 77 [Doc. No. 11]. Plaintiff complains that although she was ultimately granted
FMLA for her absences on December 2 and 3, 2010, defendant should
not
have
required
applications.
Id.
her
¶¶
to
fill
49-56,
74.
out
multiple
Plaintiff
corrected
also
argues
FMLA
the
discipline defendant imposed for her work rule violations on
December 2 and 3, 2010, was in retaliation for her FMLA request.
Id. ¶ 77.
4
The information required under the defendant’s work rules is more
extensive than the notice required under the FMLA.
7
Defendant argues plaintiff was not entitled to FMLA leave and
that she fraudulently sought leave. Defendant also argues that
regardless of whether plaintiff was eligible for FMLA leave, her
call outs and subsequent conduct violated its work rules, thereby
subjecting
her
to
discipline.
In
addition,
defendant
argues
plaintiff did not provide adequate notice of her intention to
exercise
her
FMLA
rights.
Importantly,
defendant
argues
plaintiff’s case is barred by the statute of limitations.
Plaintiff argues defendant’s motion should be denied because
there are disputed material facts as to her interference and
retaliation claims. Plaintiff also argues she provided adequate
notice of her intention to exercise her FMLA rights. Pl.’s Opp’n
at 1-2. In addition, plaintiff argues the statute of limitations
has not expired because defendant engaged in a “willful” violation
of her FMLA rights. Id. at 24.
For the reasons to be discussed, the Court finds that there
are disputed issues of material fact as to whether plaintiff
presents viable FMLA interference and retaliation claims. However,
defendant’s motion will still be granted because plaintiff’s claim
is barred by the applicable two year statute of limitations. The
Court denies plaintiff’s request to apply a three year statute of
limitations.
The
Court
finds
that
violations were not willful.
8
defendant’s
alleged
FMLA
DISCUSSION
1. Summary Judgment Standard
Pursuant
to
Fed.
R.
Civ.
P.
56,
summary
judgment
is
appropriate where the court is satisfied that “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any . . . demonstrate the absence
of a genuine issue of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986) (internal citations omitted). Summary
judgment is not appropriate if the dispute about a material fact
is “genuine,” that is, if the evidence is such that a reasonable
jury could return a verdict in favor of the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
materiality
of
a
fact
turns
on
whether
under
the
governing
substantive law a dispute over the fact might have an effect on
the outcome of the suit. Id. The court must view all evidence and
draw all reasonable inferences in the light most favorable to the
non-moving party. See Startzell v. City of Phila., 533 F.3d 183,
192 (3d Cir. 2008) (citation omitted).
The moving party bears the initial burden of informing the
court of the basis for its motion and demonstrating the absence of
a genuine issue of material fact. Celotex, 477 U.S. at 322-23.
Once the burden is met, the burden shifts to the non-moving party
to “set forth specific facts showing that there [are] . . . genuine
factual issues that properly can be resolved only by a finder of
9
fact because they may reasonably be resolved in favor of either
party.” Anderson, 477 U.S. at 250. The party opposing summary
judgment may not “rest upon mere allegation[s] or denials of [her]
pleading,”
but
must
set
forth
specific
facts
and
present
affirmative evidence demonstrating that there is a genuine issue
for
trial.
Additionally,
Id.
“if
at
the
256-57;
Fed.
non-moving
R.
Civ.
party’s
P.
evidence
56(c)(1)(A).
‘is
merely
colorable, . . . or is not significantly probative, . . . summary
judgment may be granted.’” Trap Rock Indus., Inc. v. Local 825,
Int’l Union of Operating Engineers, AFL-CIO, 982 F.2d 884, 890-91
(3d Cir. 1992) (quoting Gray v. York Newspapers, Inc., 957 F.2d
1070, 1078 (3d Cir. 1992)).
2. FMLA
The FMLA is designed to “balance the demands of the workplace
with the needs of families.” 29 U.S.C. § 2601(b)(1). It permits
“employees to take reasonable leave for medical reasons” so long
as the leave is taken “in a manner that accommodates the legitimate
interests of employers.” 29 U.S.C. § 2601(b)(2)-(3). In order to
accommodate the employer’s needs an employee taking FMLA leave
must
provide
“adequate
notice
of
their
need
for
leave.”
Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 301
(3d Cir. 2012) (citing 29 U.S.C. § 2612(e)). If the need for leave
is sudden or unforeseeable, employees are obligated to notify their
employer “as soon as practicable,” 29 C.F.R. § 825.303(a), and
10
“provide sufficient information for an employer to reasonably
determine whether the FMLA may apply.” Id. at 301; 29 C.F.R. §
825.303(b).
There are different justifications for taking leave under the
FMLA, including the birth of a child, the need to care for a close
relative,
or
the
applicant’s
own
health
issues.
29
U.S.C.
§
2601(b)(2). To be eligible for leave the applicant must have or be
caring
for
Lichtenstein,
someone
691
F.3d
with
a
at
304.
“serious
A
health
“serious
health
condition.”
condition”
involves “inpatient care in a hospital” or “continuing treatment
by a health care provider.” 29 U.S.C. § 2611(11).
An employee who qualifies for FMLA leave is entitled to “12
work weeks of leave during any 12-month period.” 29 U.S.C. §
2612(a)(1). Where an employer violates an employee’s FMLA rights,
the employee may bring a claim directly against the employer. See
29 U.S.C. § 2617. There are two types of claims under the FMLA,
referred to as “interference” and “retaliation” claims. Callison
v. City of Phila., 430 F.3d 117, 119 (3d. Cir. 2005).
To prove an interference claim plaintiff must show she is:
(1) an employee who is entitled to FMLA benefits and (2) her
employer denied those benefits. Id. (citing 29 U.S.C. §§ 2612(a),
2614(a)). In other words, plaintiff must show that defendant
“interfer[ed] with, restrain[ed], or den[ied] the exercise” of her
FMLA rights. 29 U.S.C. § 2615(a)(1).
11
To prove a retaliation claim plaintiff must show: (1) she
stated her intention to take FMLA leave, (2) she suffered an
adverse employment action, and (3) the adverse employment action
was
causally
related
to
her
decision
to
take
FMLA
leave.
Lichtenstein, 691 F.3d at 301. The touchstone of this analysis is
whether
an
employer
“discriminate[d]
against
any
individual”
merely for the exercise of her FMLA rights. 29 U.S.C. § 2615(a)(2);
see also Lichtenstein, 691 F.3d at 301-302.
A. Notice
The Court’s analysis begins with a determination as to whether
plaintiff gave defendant adequate FMLA notice. Plaintiff argues
she supplied adequate FMLA notice by telling defendant she was
“sick in lieu of.” Plaintiff argues this notified defendant she
was ill when she called out sick on December 2, 2010. Pl.’s SOF ¶
15. Defendant counters by asserting that plaintiff actually said
“comp in lieu of,” a statement which fails to give any indication
that plaintiff requested FMLA leave. Plaintiff also alleges she
told defendant on December 3, 2010 she intended to apply for FMLA
leave. Pl.’s SOF ¶ 19.
A
relevant
case
to
the
parties’
notice
dispute
is
Lichtenstein, supra. In Lichtenstein, the plaintiff, a psychiatric
technician, brought suit against her employer hospital network and
direct supervisor alleging they interfered with her FMLA rights
and retaliated against her for asserting her rights. 691 F.3d at
12
296. The conflict between the plaintiff and the defendants began
shortly after the plaintiff was hired in September 2007. Id. Over
the
subsequent
months,
the
plaintiff
was
tardy
or
absent
on
numerous occasions. Id. The plaintiff’s supervisor resolved to
fire her on December 30, 2007, after the plaintiff showed up late
for a shift and left early. Id. at 297. However, the plaintiff
left for vacation on December 31, 2007, intending to return on
January 3, 2008. Id.
The plaintiff did not return to work on January 3, 2008. Id.
at 298. Rather, because the plaintiff’s mother had fallen seriously
ill that morning, she called the defendants and informed them that
she was unable to attend work because she needed to care for her
sick mother. Id. at 298-99. The plaintiff returned to work on
January 7, 2008. Id. at 299. The supervisor intended to fire the
plaintiff the next day. Id. However, on the morning of January 8,
2008, the plaintiff requested leave to care for her mother. Id.
The defendants moved ahead with the plaintiff’s termination on
January 10, 2008. Id. at 307. The district court granted the
defendants’ motion for summary judgment on the ground that the
plaintiff did not give adequate notice of her intent to invoke her
FMLA rights. Id. at 296.
On appeal the Third Circuit reversed the grant of summary
judgment, holding that the plaintiff’s statement that she needed
to take leave to care for her mother created a fact question as to
13
whether she gave adequate FMLA notice. Id. at 303. The Court
stated, “[h]ow the employee’s notice is reasonably interpreted is
generally a question of fact, not law.” Id. (citations omitted).
Considering the low bar set for notice in Lichtenstein, and
the Third Circuit’s holding that notice is a matter of fact in
most circumstances, the Court rejects defendant’s argument that as
a matter of law plaintiff did not give it adequate notice of her
intent to exercise her FMLA rights. Plaintiff alleges she told
defendant she was “sick in lieu of” and that she intended to take
FMLA leave. This evidence is sufficient to create a fact question
as to whether plaintiff gave defendant adequate FMLA notice.
B. Interference Claim
Having denied defendant’s notice defense, the Court will
analyze plaintiff’s interference claim. As stated above, it is
unlawful to interfere with or restrain FMLA rights. 29 U.S.C. §
2615(a)(1). Interference is established where an employee entitled
to FMLA benefits is denied the benefits by her employer. Callison,
430 F.3d at 119. Here, plaintiff was not denied FMLA leave because
she was retroactively given FMLA leave for her December 2 and 3,
2010 absences. Nevertheless, a fact question exists as to whether
defendant
interfered
with
plaintiff’s
FMLA
rights.
Plaintiff
argues she was interfered with because she had to re-submit her
FMLA application multiple times due to the “job description”
requirement.
Plaintiff
claims
defendant
14
only
applied
this
requirement to her. Plaintiff supports this claim by pointing to
the
fact
the
defendant’s
job
description
FMLA
policy.
requirement
Although
is
listed
argues
defendant
not
the
in
job
description requirement applied to everyone, the fact that this
was
not
listed
in
defendant’s
written
policy
creates
a
fact
question. A jury must decide whether all employees were subject to
the same non-written job description requirement as applied to
plaintiff. Accordingly, a fact question exists as to whether
defendant interfered with plaintiff’s FMLA rights. 5
C. Retaliation Claim
Because
concerns,
FMLA
and
discrimination
retaliation
leave
is
retaliation
by
employers
claims
using
intrinsically
is
concerned
against
the
tied
to
employment
with
potential
employees,
principles
courts
of
assess
employment
discrimination law. Lichtenstein, 691 F.3d at 301-02. Accordingly,
courts employ the burden-shifting framework of McDonnell Douglas
Corp.
v.
Green,
411
U.S.
792
(1973),
to
determine
whether
discrimination occurred. See Lichtenstein, 691 F.3d at 302. Under
the McDonnell Douglas framework an employee bears the initial
burden of demonstrating a prima facie case. 411 U.S. at 802. To
establish a prima facie case an employee must identify record
5
To the extent plaintiff argues defendant interfered with her FMLA
rights by refusing to withdraw the discipline imposed for her
alleged work rule violations on December 2 and 3, 2010, the issue
is discussed infra.
15
evidence
supporting
each
element
of
a
retaliation
claim.
Lichtenstein, 691 F.3d at 302. If the employee establishes a prima
facie claim, the burden shifts to the employer to “articulate some
legitimate, nondiscriminatory reason” for the adverse employment
actions taken against the employee. McDonnell Douglas, 411 U.S. at
802.
The
employer’s
burden
to
proffer
a
legitimate
non-
discriminatory reason for an adverse employment action is minimal.
Lichtenstein, 691 F.3d at 302. If and when the burden is met the
employee
has
an
opportunity
to
disprove
the
employer’s
“articulated legitimate reasons” for any adverse employment action
using “direct or circumstantial” evidence. Fuentes v. Perskie, 32
F.3d 759, 764 (3d Cir. 1994).
As noted, plaintiff has the initial burden of establishing a
prima facie case. Namely, plaintiff must prove she gave notice of
her
intention
to
take
FMLA
leave,
she
suffered
an
adverse
employment action, and the adverse employment action was causally
related to her decision to apply for FMLA leave. Lichtenstein, 691
F.3d at 302. Plaintiff claims she suffered an adverse employment
action by virtue of the fact she was disciplined for taking FMLA
leave on December 2 and 3, 2010.
The Court finds fact questions must be resolved to decide
plaintiff’s retaliation claim. First, the Court has already ruled
a fact question exists as to whether plaintiff gave adequate FMLA
notice. The same is true for whether plaintiff suffered an adverse
16
employment action. Defendant argues plaintiff’s discipline was
related
to
its
job
requirements
and
work
rules
that
were
collectively bargained for by plaintiff’s union, and not because
of anything having to do with the FMLA. However, plaintiff argues,
and the Court finds, a fact question exists as to whether plaintiff
should have been disciplined for only one day instead of two, and
whether the requirements to stay at home and notify defendant when
leaving home applied to her.
As to the third requirement to prove a retaliation claim,
causation,
the
“temporal
proximity”
of
plaintiff’s
purported
invocation of FMLA rights to the disciplinary actions levied
against plaintiff creates “’an inference of causality’” which
“‘defeat[s] summary judgment.’” Lichtenstein, 691 F.3d at 307
(quoting LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d
217, 232 (3d Cir. 2007)). Accordingly, a fact question exists as
to whether plaintiff was retaliated against because she exercised
her FMLA rights. 6
6
Defendant argues its motion should be granted because plaintiff
committed fraud. This is plainly a fact question. Plaintiff argues
she was absent from work because she was ill. This is supported by
her hospital visit and medical records, including a doctor’s note
directing plaintiff not to return to work until December 6, 2010.
Defendant argues plaintiff’s illness excuse was a subterfuge and
plaintiff really wanted to attend her aunt’s funeral. This creates
a fact question not resolvable in the context of a motion for
summary judgment. Further, to the extent plaintiff argues
defendant retaliated against her by requiring her to submit
multiple FMLA applications, the issue is discussed supra.
17
3. Statute of limitations
In general, claims for relief under the FMLA must be brought
within two years of “the date of the last event constituting the
alleged violation for which the action is brought.” 29 U.S.C. §
2617(c)(1). However, where a plaintiff can show that an employer
willfully violated her FMLA rights, the statute of limitations is
extended to three years. 29 U.S.C. § 2617(c)(2). To make a showing
of
willfulness
an
employee
must
show
that
the
employer’s
interference or retaliation was knowingly in violation of the
FMLA’s statutory protections or the employer acted with reckless
disregard for the same. Scheidt v. Donahoe, C.A. No. 13-836 (JAP),
2014 WL 6991982, at *5 (D.N.J. Dec. 10, 2014); Durham v. Atl. City
Elec. Co., C.A. No. 08-1120 (RBK/AMD), 2010 WL 3906673, at *9
(D.N.J. Sept. 28, 2010).
In
Scheidt,
the
plaintiff
contended
that
his
employer
willfully violated his FMLA rights because the manager denied his
FMLA application even though he provided two different letters
stating he was eligible for FMLA benefits. 2014 WL 6991982, at *5.
Nevertheless, the court rejected plaintiff’s argument that the
employer acted willfully. Id. The court reasoned that simply
showing that the employer received plaintiff’s letters did not
prove the employer acted with “knowledge or reckless disregard” of
whether its conduct constituted a FMLA violation. Id. The court
18
explained
the
denial
could
“easily
[be]
explained
by
a
mere
administrative error.” Id.
Plaintiff’s FMLA application was granted on January 13, 2011,
and the discipline which forms the basis for her retaliation claim
was handed down on December 7, 2010. Pl.’s SOF ¶¶ 22, 23, 61;
Def.’s SOF ¶¶ 17, 18. Thus, under 29 U.S.C. § 2617(c)(1), the
latest plaintiff could have filed her complaint under the two-year
statute of limitations was January 13, 2013. Plaintiff filed her
complaint on August 2, 2013. Therefore, even if plaintiff can prove
a FMLA violation, her case may only proceed if the three-year
statute of limitations applies. This requires plaintiff to show
that defendant willfully violated her FMLA rights. See 29 U.S.C.
§ 2617(c)(1)-(2).
Plaintiff’s arguments as to willfulness are not convincing.
In
the
first
instance
plaintiff
argues
defendant
willfully
interfered with her FMLA rights by repeatedly requiring her to resubmit her applications. Plaintiff argues Deputy Warden Cohen knew
the alleged deficiencies were not required and that defendant knew
plaintiff was eligible for FMLA leave the minute she applied.
Pl.’s Opp’n at 25. The problem with plaintiff’s argument is that
it is not supported by evidence. No evidence exists to show that
defendant “made up” the job description requirement. There is also
no
evidence
to
support
plaintiff’s
contention
that
defendant
intentionally mishandled plaintiff’s paperwork. To the contrary,
19
Cohen testified the prison started the job description policy so
a doctor could properly evaluate an applicant for FMLA leave. See
Cohen Dep. at 38:14-17, 40:9-13.
Cohen also testified defendant
had a policy requiring FMLA applicants to submit a job description
that was reviewed by the doctor diagnosing the FMLA’s predicate
“serious health condition.” Id. at 36:20-23; 38:18-39:18. This
testimony rebuts plaintiff’s contention that Cohen knew there was
no written job description requirement. Pl.’s Opp’n at 25; see
also
Cohen
Dep.
at
37:12-18
(defendant’s
job
description
requirement existed since as early as April 2010).
While plaintiff disputes certain aspects of defendant’s FMLA
policy, and what precisely she may have been told by whom and when,
she
does
not
genuinely
or
credibly
dispute
that
defendant’s
policies required the submission of a job description along with
an FMLA application. Plaintiff also does not dispute that defendant
had
established
procedures
for
processing
FMLA
applications
through its operations department. While plaintiff may not agree
with defendant’s requirements, there is no question defendant
provided
a
reasonable
justification
for
its
job
description
policy. The fact that defendant’s formal written policy had not
yet been updated does not show willfulness. Plaintiff has not
presented any evidence, for example, that Cohen fabricated her
testimony or that only plaintiff had to give her doctor a job
description.
Moreover,
defendant’s
20
Assistant
County
Counsel
testified that defendant’s FMLA policies did not necessarily have
to be in writing. Gross Dep. at 22:15-17.
The Court disagrees with plaintiff that a fact question exists
as
to
willfulness
because
she
had
to
re-submit
her
FMLA
applications. Plaintiff does not contest the fact that she did not
comply with the instructions she was given to fill out the required
FMLA paperwork. Plaintiff does not even contest that on at least
one occasion she did not submit the job description she was given
to
use.
While
requirements,
plaintiff
they
were
did
not
not
agree
unreasonable
with
or
defendant’s
arbitrary
and
capricious. The fact that plaintiff asked for FMLA leave does
not
excuse her from complying with defendant’s paperwork requirements,
especially since they were not unduly burdensome or unreasonable.
Rather than interfering with plaintiff’s FMLA application,
the evidence shows that defendant tried to assist plaintiff. This
is directly contrary to plaintiff’s argument that defendant acted
willfully. It is of course true that plaintiff had to re-submit
her FMLA application a number of times. However, in and of itself
this
does
repeatedly
not
show
instructed
willfulness,
plaintiff
especially
how
to
since
properly
defendant
submit
her
paperwork. See Def.’s Reply at 2-4. The evidence shows defendant
had
a
policy
which
not
only
accepted
and
processed
FMLA
applications, but actually facilitated successful applications by
employees. Giberson Dep. at 60:7-10. For example, Cohen sent
21
plaintiff corrective memos instructing her on the proper method
for submitting an FMLA application. Def.’s Reply Exhibits A-E. The
Court agrees with defendant that it repeatedly gave plaintiff a
“roadmap” regarding how to correctly fill out her paperwork. Def.’s
Reply at 2. The fact that this was done is plain evidence that
defendant did not act to willfully interfere with plaintiff’s FMLA
rights.
Plaintiff also argues defendant’s willfulness is shown by the
fact that it did not withdraw the discipline it imposed after
plaintiff called out sick on December 2 and 3, 2010. The Court
rejects this argument. Plaintiff was not disciplined for taking
FMLA leave. Instead, plaintiff was disciplined because she did not
follow defendant’s work rules and requirements. The Court agrees
with
defendant
that
plaintiff’s
“discipline
had
to
do
with
[plaintiff] failing to call out properly and [plaintiff] leaving
her place of confinement to attend an aunt’s funeral.” Id. at 8.
Plaintiff does not dispute that even though she called out sick
she attended her aunt’s funeral and failed to inform defendant she
was leaving her home. Plaintiff also does not dispute the fact
that she did not completely respond to defendant’s questions when
she was asked why she was calling out on December 2, 2010. As noted
by defendant, “[b]y refusing to call out properly and inform
[defendant] of the reason for the call out, [plaintiff] violated
22
the rules of the Atlantic County Justice Facility. The collectively
bargained discipline measures were instituted.” Id. at 6.
Plaintiff argues defendant misinterpreted its work rules and
should not have disciplined her. Even if this is true, which the
Court is not finding, this does not change the fact there is no
evidence defendant acted willfully. No evidence exists to show
defendant knowingly misapplied its work rules or that defendant
intended to punish plaintiff for taking FMLA leave. There also is
no evidence defendant’s interpretation of its work rules was
unreasonable or arbitrary and capricious. In fact, the opposite is
true as demonstrated by the fact plaintiff never appealed her
discipline. Plaintiff is hard pressed to argue defendant is not
permitted to verify her absences if she is on paid leave but not
if she takes FMLA leave. Pl.’s Resp. to Def.’s SOF ¶ 24. The best
plaintiff
can
do
is
to
show
that
perhaps
defendant
made
an
administrative error. As noted in Scheidt, the mere occurrence of
an administrative error does not show willfulness. 2014 WL 6991982,
at *5. Moreover, it was not unreasonable for defendant to count
plaintiff’s work rule violations as two violations rather than
one.
This
is
true
because
plaintiff
was
cited
for
violating
different rules on different days. Further, even if an employer
acts unreasonably, which is not the case here, willfulness is not
proven in the absence of a showing of recklessness.
23
McLaughlin v.
Richland Shoe Co., 486 U.S. 128, 133 (1988). No such evidence
exists here.
Simply put, there is no basis to conclude defendant’s initial
denials of plaintiff’s FMLA applications were done with knowledge
that the denials were improper or with reckless disregard of
plaintiff’s FMLA rights. Nor is there evidence that defendant’s
failure to withdraw plaintiff’s relatively minor discipline was
willful. Thus, plaintiff’s claims are barred by the applicable
two-year statute of limitations. 7
7
Plaintiff’s complaint contains three counts. Count III asks the
Court to declare section 9.06 of defendant’s employee manual null
and void and permanently enjoin defendant from disciplining
plaintiff for a failure to comply with the employee manual. Compl.
¶ 82. According to plaintiff the offending provision requires
employees to provide advance notice of any litigation filed with
any court of law. Plaintiff has never addressed Count III in the
case and has failed to provide the Court with any evidence to
support her request for declaratory judgment and injunctive
relief. Therefore, the Court denies plaintiff’s request for
extraordinary relief and will enter summary judgment on Count III.
See Nat’l R.R. Passenger Corp. v. Pa. Pub. Util. Comm’n, 342 F.3d
242, 259 n.14 (3d Cir. 2003) (noting that a party who fails to
adequately brief her claim waives that claim); Reynolds v. Wagner,
128 F.3d 166, 178 (3d Cir. 1997) (“[A]n argument consisting of no
more than a conclusory assertion . . . (without even a citation to
the record) will be deemed waived.”); see also Fed. R. Civ. P.
56(e)(3) (permitting the Court to grant summary judgment in the
absence of supporting facts so long as the movant is entitled to
summary judgment). Further, since plaintiff abandoned Count III by
never pursuing the claim in the case, the Court will exercise its
discretion to deny plaintiff’s requested relief. See In re
Fireman’s Ass’n., 443 N.J. Super. 238, 252 (App. Div. 2015)(court
has discretion to deny declaratory relief).
24
CONCLUSION
In conclusion, plaintiff has demonstrated that there are fact
questions that need to be resolved in order to decide plaintiff’s
FMLA interference and retaliation claims. However, plaintiff filed
this lawsuit after the applicable two-year statute of limitation
expired. While the FMLA allows for an extension of the statute of
limitations
where
an
employer
willfully
denies
an
FMLA
application, there is no evidence of a willful denial. Therefore,
plaintiff’s claims are barred by the statute of limitations and
summary
judgment
will
be
granted
in
defendant’s
favor.
appropriate Order will be separately entered.
s/ Joel Schneider
JOEL SCHNEIDER
United States Magistrate Judge
Dated: September 27, 2016
25
An
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