BARNES v. VIBRA HEALTHCARE, LLC

Filing 13

OPINION. Signed by Judge Noel L. Hillman on 5/26/2015. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________
FLORA BARNES,
Plaintiff,

Civil No. 14-5678 (NLH/KMW)

v.
OPINION
VIBRA HEALTHCARE, LLC,
Defendant.
__________________________________
APPEARANCES:
Matthew S. Wolf, Esquire
Melissa A. Schroeder, Esquire
Matthew S. Wolf, Esquire, LLC
2nd Floor, Unit B
1236 Brace Road
Cherry Hill, New Jersey 08034
Attorneys for Plaintiff
Brian D. Pagano, Esquire
Burns White LLC
1800 Chapel Avenue West
Suite 250
Cherry Hill, New Jersey 08002
Attorneys for Defendant
HILLMAN, District Judge:
In this action, Plaintiff, Flora Barnes, alleges that her
former employer, Defendant Vibra Healthcare LLC, 1 doing business

1

Defendant notes that its correct name is “92 Brick Road
Operating Company, LLC d/b/a Marlton Rehabilitation Hospital,”
and was improperly named in the complaint as “Vibra Healthcare
1

as Marlton Rehabilitation Hospital, interfered with her rights
under the Family and Medical Leave Act (hereafter, “FMLA”), 29
U.S.C. § 2601 et seq., when she took maternity leave.

Defendant

moves to dismiss the complaint pursuant to Fed. R. Civ. P.
12(b)(6) or, in the alternative, for summary judgment pursuant
to Fed. R. Civ. P. 56, asserting that Plaintiff fails to state a
claim under the FMLA because she is not an “eligible employee”
as defined by the FMLA. 2

Defendant also seeks dismissal of

Plaintiff’s claim for wrongful termination under New Jersey
state law.

Plaintiff opposes the motion with respect to her

FMLA claim but does not contest dismissal of her state law
claim.
The Court has considered the submissions of the parties and
decides this matter pursuant to Fed. R. Civ. P. 78.

For the

following reasons, Defendant’s motion to dismiss will be granted
in part and denied in part.

LLC d/b/a Marlton Rehabilitation Hospital.” (Certification of
Counsel in Supp. of Def.’s Mot. to Dismiss Pl.’s Compl. with
Prejudice for Failure to State a Claim [Doc. No. 5-1] ¶ 2.)
2

Defendant filed two motions to dismiss on the same date.
Counsel for Defendant subsequently sent the Court a letter
withdrawing the first motion [Doc. No. 4] and asking that the
Court decide the second motion [Doc. No. 5]. (Letter from Brian
D. Pagano, Esq. [Doc. No. 11], Nov. 4, 2014.) Accordingly,
Defendant’s first motion will be denied as moot, and this
Opinion addresses only the second motion filed by Defendant.
2

I.

BACKGROUND
Plaintiff alleges that she was employed by Defendant as a

Licensed Practical Nurse at the Marlton Rehabilitation Hospital
for four years, working from 7:00 A.M. to 3:00 P.M. every
Friday, Saturday and Sunday.

(Compl. ¶ 3.)

Plaintiff became

pregnant in 2013 and, on or around June 5, 2013, took a leave of
absence due to her pregnancy.

(Id. ¶¶ 4, 5.)

Plaintiff gave

birth on October 22, 2013 via caesarian section.

(Id. ¶ 6.)

Plaintiff was then advised by her obstetrician on December 3,
2013 that she would not be able to return to work until December
17, 2013.

(Id. ¶ 7.)

On December 6, 2013, Plaintiff contacted Joanne Cernava,
the Director of Human Resources, seeking to extend her
disability leave by two weeks because she had delivered via
caesarian section.

(Id. ¶ 8.)

Plaintiff left a message for

Cernava at that time and eventually spoke with her on December
9, 2013.

(Id. ¶¶ 8-12.)

During the conversation, Cernava

purportedly advised Plaintiff that her position had been given
to someone else because Plaintiff was only allowed twelve weeks
of leave under the FMLA, which time had expired.

(Id. ¶ 18.)

Plaintiff contends that she was unaware that her twelve weeks of
FMLA leave had expired or that her job was in jeopardy, as she
was allegedly under the impression that her disability benefits

3

and FMLA coverage only started once her child was born.

(Id. ¶¶

19, 21.)
Although Plaintiff’s position was no longer available, she
was offered a shift from 3:00 P.M. to 11:00 P.M. or the
opportunity to work on a per diem basis, but Plaintiff contends
she was unable to accept either position.

(Id. ¶¶ 24, 25.)

Plaintiff subsequently applied for baby bonding leave to
continue a source of income, and received a letter of approval
on December 21, 2013.

(Id. ¶ 34.)

Plaintiff has not, however,

returned to work at Marlton Rehabilitation Hospital.

(Id. ¶

35.)
Defendant now moves to dismiss this action on the threshold
issue of whether Plaintiff was an “eligible employee” under the
FMLA, arguing that Plaintiff did not meet the requirement that
an employee must work 1,250 hours in the twelve month period
preceding medical leave.

(Mem. of Law in Supp. of Def.’s Mot.

to Dismiss Pl.’s Compl. with Prejudice for Failure to State a
Claim [Doc. No. 5-3], at 10.)

In support, Defendant submits the

affidavit of its Human Resources Director, Cernava, which states
that Plaintiff worked 1,095.5 hours from May 25, 2012 to May 25,
2013, and 1,075.5 hours between June 5, 2012 and June 4, 2013.
(Aff. of Joanne Cernava [Doc. No. 5-6] ¶¶ 6-7.)

These hours

were determined by reference to a report generated by Marlton
Rehabilitation Hospital’s time clock/payroll system, and the
4

data was derived from Plaintiff’s time clock swipes.

(Id. ¶ 6.)

Defendant has also submitted the report of hours worked from May
25, 2012 to May 25, 2013, which report demonstrates that
Plaintiff worked 1,095.5 hours during the designated time
period.

(Certification of Counsel in Supp. of Def.’s Mot. to

Dismiss Pl.’s Compl. with Prejudice for Failure to State a Claim
[Doc. No. 5-1], Ex. D.)
Plaintiff contests the calculation of her hours and submits
her own affidavit to challenge the report submitted by
Defendant.

(Br. in Opp. to Mot. to Dismiss [Doc. No. 10]

(hereafter, “Pl.’s Opp. Br.”), at 2.)

Plaintiff represents that

the time clock did not always work, and managers on occasion had
to sign off on the hours worked by employees.

(Aff. of Flora

Barnes [Doc. No. 10-1] (hereafter, “Barnes Aff.”) ¶¶ 2-3.)
Plaintiff thus contends that the time clock swipe system may not
account for all of the hours that Plaintiff worked.

(Id. ¶ 3.)

Further, Plaintiff asserts that “[u]pon filing this lawsuit, it
was [her] belief that [she] worked in excess of 1,250 hours”
because she recalled working on average more than twenty-four
hours per week.

(Id. ¶ 4.)

Plaintiff also represents in her

affidavit that she was told by Cernava that she was approved for
FMLA leave when she filled out her FMLA paperwork on June 5,
2013.

(Id. ¶ 5.)

5

Defendant acknowledges in its reply papers that the initial
affidavit submitted by Cernava contained inaccurate information.
(See Reply Br. in Response to Pl.’s Br. in Opp. to the Mot. to
Dismiss of Def. [Doc. No. 12] (hereafter, “Def.’s Reply Br.”),
at 2.)

Defendant has provided a second affidavit from Cernava

in which she confirms Plaintiff’s statement that the time clock
system was not always accurate.
[Doc. No. 12-1] ¶ 5.)

(Second Aff. of Joanne Cernava

Cernava asserts, however, that she now

obtained a different report that includes adjustments for time
clock errors.

(Id. ¶ 6.)

According to Cernava, the report

demonstrates that Plaintiff worked 1,103 hours for the time
period June 2, 2012 to June 2, 2013, and 1,092.5 hours during
the calendar year 2012.

(Id.)

The report, therefore,

purportedly demonstrates that Plaintiff did not work 1,250 hours
during the relevant time period.
II.

JURISDICTION
Plaintiff brings this action against Defendant asserting

claims under the FMLA and New Jersey state law.

The Court has

jurisdiction over Plaintiff’s federal claim under 28 U.S.C. §
1331.

The Court exercises supplemental jurisdiction over

Plaintiff’s state law claim pursuant to 28 U.S.C. § 1367.

6

III. STANDARD OF REVIEW
Defendant moves for dismissal of the complaint for failure
to state a claim upon which relief can be granted pursuant to
Fed. R. Civ. P. 12(b)(6) or, alternatively, for summary judgment
pursuant to Fed. R. Civ. P. 56.
A.

Fed. R. Civ. P. 12(b)(6)

In considering whether a plaintiff’s complaint fails to
state a claim under Fed. R. Civ. P. 12(b)(6), the Court must
accept all well-pleaded allegations in the complaint as true and
view them in the light most favorable to the plaintiff.

Evancho

v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005); see also Phillips
v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008) (“[I]n
deciding a motion under Fed. R. Civ. P. 12(b)(6), [a district
court is] . . . required to accept as true all factual
allegations in the complaint and draw all inferences from the
facts alleged in the light most favorable to” the plaintiff).
In addition to the facts alleged in the pleadings, the Court may
also consider on a motion under Rule 12(b)(6) the documents
attached to the pleadings as exhibits and matters of public
record.

Guidotti v. Legal Helpers Debt Resolution, 716 F.3d

764, 772 (3d Cir. 2013).

The Court may also consider

“‘undisputedly authentic documents if the complainant's claims
are based upon these documents[.]’”

Id. (quoting Mayer v.

Belichick, 605 F.3d 223, 230 (3d Cir. 2010)).
7

If any other

matters outside the pleadings are presented to the court, and
the Court does not exclude those matters, a Rule 12(b)(6) motion
will be treated as a summary judgment motion pursuant to Rule
56.

Fed. R. Civ. P. 12(d).
In this case, as noted above, Defendant submitted two

affidavits and time records in support of its motion, and
Plaintiff submitted her own affidavit in opposition to the
motion.

These documents are not referred to in the pleadings,

attached to the pleadings, or matters of public record.
Moreover, while the evidence submitted relates to Plaintiff’s
FMLA claim, the claim is not based on these documents.
Therefore, the Court may not consider the affidavits and time
records on a motion to dismiss under Rule 12(b)(6).

If the

Court utilizes the documents in deciding the motion, the motion
must be decided under the standards applicable to Fed. R. Civ.
P. 56.
B.

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” and that the moving party is entitled to
a judgment as a matter of law.

Celotex Corp. v. Catrett, 477

U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)
8

(citing Fed. R. Civ. P. 56).

An issue is “genuine” if it is

supported by evidence such that a reasonable jury could return a
verdict in the nonmoving party’s favor.

Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d
202 (1986).

A fact is “material” if, under the governing

substantive law, a dispute about the fact might affect the
outcome of the suit.

Id.

“In considering a motion for summary

judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence;
instead, the non-moving party's evidence ‘is to be believed and
all justifiable inferences are to be drawn in his favor.’”
Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir.
2004)(citing Anderson, 477 U.S. at 255, 106 S. Ct. 2505).
Initially, the moving party bears the burden of
demonstrating the absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323, 106 S. Ct. 2548 (“[A] party seeking
summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of ‘the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.”); see also
Singletary v. Pa. Dept. of Corr., 266 F.3d 186, 192 n.2 (3d Cir.
2001) (“Although the initial burden is on the summary judgment
9

movant to show the absence of a genuine issue of material fact,
‘the burden on the moving party may be discharged by ‘showing’ - that is, pointing out to the district court -- that there is
an absence of evidence to support the nonmoving party’s case’
when the nonmoving party bears the ultimate burden of
proof.”)(citing Celotex, 477 U.S. at 325, 106 S. Ct. 2548).
Once the moving party has met this burden, the nonmoving
party must identify, by affidavits or otherwise, specific facts
showing that there is a genuine issue for trial.
U.S. at 324, 106 S. Ct. 2548.

Celotex, 477

A “party opposing summary

judgment ‘may not rest upon the mere allegations or denials of
the . . . pleading[s.]’”
232 (3d Cir. 2001).

Saldana v. Kmart Corp., 260 F.3d 228,

For “the non-moving party[ ] to prevail,

[that party] must ‘make a showing sufficient to establish the
existence of [every] element essential to that party’s case, and
on which that party will bear the burden of proof at trial.’”
Cooper v. Sniezek, 418 F. App’x 56, 58 (3d Cir. 2011) (citing
Celotex, 477 U.S. at 322, 106 S. Ct. 2548).

Thus, to withstand

a properly supported motion for summary judgment, the nonmoving
party must identify specific facts and affirmative evidence that
contradict those offered by the moving party.
U.S. at 257, 106 S. Ct. 2505.

10

Anderson, 477

IV.

ANALYSIS
The FMLA was enacted to “balance the demands of the

workplace with the needs of families” and to “entitle employees
to take reasonable leave for medical reasons, for the birth or
adoption of a child, and for the care of a child, spouse, or
parent who has a serious health condition[.]”

29 U.S.C. § 2601.

The Act requires certain employers to provide “eligible
employees” with up to twelve weeks of leave per 12-month period
for a number of reasons, including “the birth of a son or
daughter of the employee and in order to care for such son or
daughter.”

29 U.S.C. § 2612(a)(1)(A).

An employee is an

“eligible employee” under the FMLA if the employee has been
employed for at least twelve months by the employer, and has
worked at least 1,250 hours “during the previous 12-month
period.”

29 U.S.C. § 2611(2)(A).

The question presented on this motion is whether Plaintiff
has met the hour requirement to qualify as an “eligible
employee” under the FMLA.

The documents submitted by Defendant

appear to demonstrate that Plaintiff did not work the requisite
number of hours to qualify as an “eligible employee” under the
FMLA, but Plaintiff challenges the calculation of hours in the
records submitted by Defendant. 3

3

(Pl.’s Opp. Br. 4.)

Plaintiff

Plaintiff, relying on 29 C.F.R. § 825.200, argues that the
twelve-month period can be calculated using various methods, and
11

also argues that regardless of the number of hours worked, the
doctrine of equitable estoppel precludes Defendant from relying
on eligibility under the FMLA as a defense.

(Id.)

The Court concludes that there is enough of a factual
dispute at this time that the Court declines to convert the
motion to one for summary judgment.

It is not clear that the

payroll records submitted by Defendant include all of the hours
that Plaintiff worked.

Defendant acknowledges that Cernava’s

first affidavit and the payroll records submitted with the
original motion did not accurately set forth the number of hours
that Plaintiff worked.
Defendant also acknowledges that the time clock -- upon
which the number of hours worked is calculated -- did not keep
accurate time records, and Defendant submitted another affidavit
of Cernava that purports to include the correct calculation of

that Defendant has not demonstrated that it utilized the proper
twelve-month period in calculating Plaintiff’s hours. (Pl.’s
Opp. Br. 4-5.) Plaintiff, however, relies on the wrong
regulation. Because an employee is entitled under the FMLA to
twelve weeks of leave during any twelve-month period, the
employer can choose a method for determining the twelve-month
period in which the twelve weeks of leave occurs. Such period
may include, for example, a calendar year, a fiscal year, or a
year starting on the employee’s anniversary date. 29 C.F.R. §
825.200. This regulation does not address the manner of
calculating hours for purposes of employee eligibility under the
FMLA. To qualify as an “eligible employee” under the FMLA, an
employee must work 1,250 hours during “the 12–month period
immediately preceding the commencement of the leave.” 29 C.F.R.
§ 825.110.
12

hours worked.

Cernava is not the custodian of the records

attached to her affidavit, and she cannot state that such
records account for every hour that Plaintiff worked.

For

instance, while Plaintiff contends that managers had to sign off
on an employee’s hours when the time clock did not work, Cernava
does not explain in her affidavit how these hours were entered
into the payroll system.

There is no assurance that every hour

that was recorded manually has been included in the records
provided to the Court.
The fact that Defendant, in connection with its own motion,
has submitted inconsistent versions of the number of hours
worked by Plaintiff demonstrates that Defendant maintains
various versions of its payroll records.

It appears, therefore,

that at this time there is a genuine issue of material fact as
to the number of hours that Plaintiff worked in the twelve
months immediately preceding her leave.

Plaintiff should be

entitled to discovery to determine whether the payroll records
submitted with Cernava’s second affidavit include all of the
hours that Plaintiff worked.

Given this need for additional

discovery, the Court at this time declines Defendant’s request
to convert the motion to dismiss to one for summary judgment
with respect to Count One.
In so finding, the Court notes that Plaintiff raised an
equitable estoppel argument in her opposition papers.
13

The Court

recognizes that the United States Court of Appeals for the Third
Circuit has upheld in the application of equitable estoppel to
an FMLA claim, albeit in a non-precedential opinion.

Leese v.

Adelphoi Village, Inc., 516 F. App’x 192, 193 (3d Cir. 2013)
(holding that district court “correctly concluded that equitable
estoppel is available in the FMLA context[.]”).

In order to

prevail on an equitable estoppel theory, a party must show “(1)
a misrepresentation by another party; (2) which [she] reasonably
relied upon; (3) to [her] detriment.”

United States v. Asmar,

827 F.2d 907, 912 (3d Cir. 1987); see also Leese, 516 F. App’x
at 193 (citing Asmar, 827 F.2d at 912).
In the case cited by Plaintiff in support of her estoppel
theory, the plaintiff filed an action claiming, inter alia,
retaliation and interference under the FMLA when she was
terminated after taking FMLA-protected leave.

Leese v. Adelphoi

Village, Inc., No. 1:10-CV-0813, 2012 WL 2049460, at *1 (M.D.
Pa. June 6, 2012), aff’d, 516 F. App’x 192 (3d Cir. 2013).

The

defendants moved for summary judgment on the ground that the
plaintiff was not an “eligible employee” under the FMLA because
the employer did not employ the requisite minimum number of
employees, 4 but the plaintiff argued that the defendants were

4

Under the FMLA, an “eligible employee” does not include “any
employee of an employer who is employed at a worksite at which
such employer employs less than 50 employees if the total number
14

equitably estopped from raising FMLA eligibility as a defense
because they had represented to the plaintiff that she was an
FMLA eligible employee.

Id. at *4.

The district court

concluded that the defendants were not equitably estopped from
raising ineligibility as a defense because the plaintiff was not
terminated as a result of her decision to take FMLA leave but,
rather, for her poor job performance.

Id. at *5.

Here, Plaintiff alleges in the complaint that she was told
she was entitled to FMLA leave and that she took leave based on
that representation.

(Compl. ¶¶ 18, 41.)

Plaintiff then

alleges that her position was given away because she exceeded
the twelve weeks of leave allowed under the FMLA.

(Id. ¶ 18.) 5

Plaintiff avers, however, that she was “under the impression”
that her FMLA coverage did not begin until her child was born,
that Defendant failed to advise Plaintiff of the date by which
she had to return to work, and that Defendant failed to give
Plaintiff accurate information designating leave as FMLA leave.
(Id. ¶¶ 21, 45, 46.)

This case is therefore unlike Leese,

because here Plaintiff’s job was not given to another person for
a reason unrelated to taking FMLA leave, such as poor job

of employees employed by that employer within 75 miles of that
worksite is less than 50.” 29 U.S.C. § 2611(2)(B).
5

Specifically, Plaintiff took leave beginning on June 5, 2013 and
did not seek to return to work until December 17, 2013, more
than twenty-seven weeks later. (Compl. ¶¶ 5-7.)
15

performance.

The applicability of the equitable estoppel

doctrine under the circumstances presented here appears to be
intertwined with the merits of Plaintiff’s FMLA interference
claim.

See, e.g., Sinacole v. iGate Capital, 287 F. App’x 993,

at 995-96 (3d Cir. 2008) (where plaintiff did not work 1,250
hours before taking leave but employer failed to notify her of
same, plaintiff argued that employer interfered with FMLA rights
because she could have delayed leave under FMLA until she worked
enough hours to become eligible); Santosuosso v. NovaCare
Rehabilitation, 462 F. Supp. 2d 590, 598 (D.N.J.
2006)(“Plaintiff should not lose her FMLA protection for taking
a leave longer than 12 weeks when her employer gave her the
permission to do so.”).

Because the parties have not adequately

briefed the applicability of the equitable estoppel doctrine
under the facts of this case, the Court will not address it at
this time.
Finally, Defendant has also moved to dismiss Count Two of
the complaint.

Plaintiff states in her opposition brief that

she does not contest dismissal of this count.

Accordingly,

Defendant’s motion to dismiss will be granted in part.
V.

CONCLUSION
For the reasons expressed above, Defendant’s motion to

dismiss will be granted in part and denied in part.

16

The motion

to dismiss will be denied insofar as Defendant seeks dismissal
of Count One, and the Court will not convert the motion to one
for summary judgment. 6

The motion to dismiss with respect to

Count Two of the complaint will be granted as unopposed.
An Order consistent with this Opinion will be entered.

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

Date: May 26, 2015
At Camden, New Jersey

6

This decision is without prejudice to either party moving, in a
manner consistent with Fed. R. Civ. P. 56 and L. Civ. R. 56.1,
for full or partial judgment on any issue, including the ones
addressed in this Opinion.
17