MCGUIGAN v. APPLIANCE REPLACEMENT, INC. et al
OPINION FILED. Signed by Judge Robert B. Kugler on 9/26/16. (js)
NOT FOR PUBLICATION
(Doc. No. 33)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civil No. 14-7716 (RBK/JS)
APPLIANCE REPLACEMENT, INC.,
KUGLER, United States District Judge:
This matter comes before the Court on Defendant Appliance Replacement d/b/a MultiHousing Depot’s (“Defendant”) Motion for Summary Judgment pursuant to Federal Rule of
Civil Procedure 56 (Doc. No. 33). The subject of this motion is Plaintiff Christopher
McGuigan’s (“Plaintiff”) Complaint, in which he alleges Defendant unlawfully retaliated against
him for exercising rights under the Family Medical Leave Act (“FMLA”) and the New Jersey
Law Against Discrimination (“LAD”). For the reasons stated herein, Defendant’s Motion for
Summary Judgment will be GRANTED IN PART and DENIED IN PART.
Defendant Appliance Replacement, Inc. is a company that engages in the trucking,
cabinet shop, and windows and doors businesses. Pl.’s Counterstatement of Undisputed Material
Facts (“Pl.’s SMF”) ¶ 1.1 Plaintiff began working for Defendant in 2012 in the position of
Windows Technical Sales. Id. ¶ 9. Plaintiff’s job duties consisted of going to jobs, bringing back
scopes, counting and measuring, meeting with customers, following up with customers to close
jobs, bringing sales, attending trade shows, and working with installation crews. Id. ¶ 10.
Plaintiff’s supervisor was Sandy Cornell (“Cornell”), manager of the Windows and Doors
department. Id. ¶ 5. Edward Bell (“Bell”) is an owner of the company. Id. ¶ 7.
The parties do not dispute that Plaintiff received two disciplinary actions prior to his
leave. On February 12, 2014, Plaintiff received a written warning from Cornell for incorrectly
measuring windows on the Windsor Arms property. Def.’s Statement of Undisputed Material
Facts (“Def.’s SMF”) ¶ 27–28. On March 7, 2014, Plaintiff received another reprimand for using
the company credit card to make a personal purchase of alcohol. Id. ¶ 29; Pl.’s SMF ¶ 19–20. At
some point before Plaintiff went on leave, Cornell also discovered that Plaintiff had sent an
inaccurate quote for a project at Sussex House. Def.’s SMF ¶ 25. Plaintiff was not placed on a
performance improvement plan or suspension following these incidents. Pl.’s SMF ¶ 15. Bell
stated that he did not believe Plaintiff’s unauthorized use of the company credit card supported
termination. Id. ¶ 21.
Plaintiff claims that on June 2, 2014 his back snapped while at work. Def.’s SMF ¶ 4;
McGuigan Dep. at 38; Reganato Dep. at 68–69; Matthew Bell Dep. at 17–18. Plaintiff informed
Human Resources, Arlene Reganato, of the injury, and Reganato instructed him to speak with
the company’s workers’ compensation doctor. Pl.’s SMF ¶ 29. A referring physician placed him
on FMLA leave. Id. ¶ 32.
To the extent the parties agree on particular facts, the Court will cite Defendant’s Statement of
Undisputed Material Facts and Plaintiff’s Counterstatement of Undisputed Material Facts in
support. For disputed facts, the Court will rely on the record.
The parties dispute whether Plaintiff was replaced upon going on leave.2 Plaintiff claims
that Defendant hired Eric Skare to replace him. According to Reganato, Cornell and Bell stated
that Skare would be taking over Plaintiff’s position and job responsibilities, with the exception of
sales. Reganato Dep. at 99–101. Defendant states that it hired Skare into a new position of Field
Technical Support. Cornell Dep. at 22.
Within ten days after Plaintiff began medical leave, Cornell spoke with Reganato about
whether Plaintiff could work from home during his leave. Pl.’s SMF ¶ 41. When Reganato
responded that Plaintiff did not have a home office, Cornell expressed surprised, as Plaintiff had
left work early on many occasions to work from home. Cornell Dep. at 26. Plaintiff contests that
he was ever instructed to set up a home office and testified he did not leave work early to work at
home. McGuigan Dep. at 116–17. At this point, Cornell mentioned terminating Plaintiff for the
first time, saying to Reganato, “You know what, I don’t want him back.” Pl.’s SMF ¶ 38.
Reganato responded that Defendant could not terminate Plaintiff while he was on FMLA leave,
to which Cornell responded, “[B]ut assuming he’s going to come back at one point, what do we
do then?” Id. ¶ 42.
The same day or one day after, Cornell spoke to Bell, an owner of the company,
regarding Plaintiff’s performance issues. Id. ¶ 43–44. Cornell told Bell that he believed Plaintiff
was lying to him and could not be trusted. Id. ¶ 44. Cornell said, “I don’t want him back. . . . I
Plaintiff’s Counterstatement of Undisputed Material Facts, in many instances, responds to
Defendant’s factual statements only by stating that it objects on the basis that the statement was
“not material to the arguments made in Defendant’s Motion for Summary Judgment.” Local
Civil Rule 56.1 plainly requires the opposing party to “address each paragraph of the movant’s
statement, indicating agreement or disagreement.” Any statement not disputed is deemed
undisputed for the purposes of the summary judgment motion. Here, this objection of Plaintiff’s
does not contain any indication of agreement or disagreement, and thus fails to create a dispute
of material fact. Accordingly, the Court will regard such facts as undisputed for the purposes of
think enough is enough.” Id. Bell responded that Cornell could not fire Plaintiff while Plaintiff
was on leave. Id. Cornell asked Bell what the company should do if and when Plaintiff returns
from leave, to which Bell instructed Cornell to speak with the company’s attorney. Id. ¶ 45–46.
Defendant claims that Plaintiff’s performance issues continued to surface while he was
on leave. Cornell testified that, in one instance, a client informed him that Plaintiff had
misquoted a project at Woodbury Arms. Cornell Dep. at 36–37. Cornell estimated that he
uncovered a total of about five misquotes. Id. at 35. Before Plaintiff returned, Cornell spoke
again with Bell about Plaintiff, but now about eliminating his position. Pl.’s SMF ¶ 51–52. Two
weeks prior to Plaintiff’s return, Cornell asked Reganato, “What am I going to do with him
because I’m not putting him out in the field?” Id. ¶ 53.
On August 4, 2014, Plaintiff returned to work for Defendant. Id. ¶ 54. During his first
week back, he was reissued a company car and phone. Def.’s SMF ¶ 20–21. Plaintiff told Cornell
that he was “ready to hit the ground running” and meet with customers. Pl.’s SMF ¶ 58. Cornell,
however, asked Plaintiff to stay at his desk. Def.’s SMF ¶ 44. Plaintiff claims that Cornell forced
him to review old files rather than return to his previous job duties. McGuigan Dep. at 5;
Reganato Dep. at 137. Defendant claims that Cornell asked Plaintiff to call customers listed in a
stack of paperwork and obtain the status of those projects. Cornell Dep. at 54. During Plaintiff’s
first three days back, Defendant asserts, Plaintiff did not review the paperwork or do any work.
Id. at 57.
On August 6, 2014, Plaintiff’s third day back, Defendant claims that Cornell learned the
company lost a job that Plaintiff worked on before he took leave. Id. at 59–60. Cornell stated he
had asked Plaintiff to correct certain errors on the project prior to his leave but Plaintiff had not
done so. Id. at 64. Following this discovery, Cornell called the owner of the property, who
contradicted the explanation Plaintiff had proffered for the error. Id. at 64–68. It was at this
point, Cornell testified, that the final decision was made to eliminate Plaintiff’s position. Id. at
116–17. That afternoon, Cornell met with Plaintiff to discuss his job performance. Pl.’s SMF ¶
60. When Plaintiff asked Cornell if he was going to fire him, Cornell said no. Id. During this
same conversation, Cornell also said he was building a case to fire him, according to Plaintiff.
McGuigan Dep. at 48.
Cornell later testified that the following day, August 7, 2014, was when he made the
decision to terminate Plaintiff. Pl.’s SMF ¶ 67. Cornell and Bell discussed eliminating Plaintiff’s
position and then informed Reganato. Id. ¶ 61. Reganato told Bell that she believed termination
was a poor decision, considering Plaintiff had just returned from FMLA leave and was never
terminated for similar performance issues prior to leave. Id. ¶ 62. In response, Bell instructed her
to speak with the company attorney, which she did. Id. ¶ 63–64. On August 8, 2014, Reganato
drafted a record of termination which stated that Plaintiff’s termination would be effective
August 11, 2014 due to elimination of his position and performance. Id. ¶ 79–81; Reganato Dep.
Ex. 6. On August 11, 2014, Reganato and Cornell called Plaintiff to inform him of his
termination. Pl.’s SMF ¶ 83–84. They told him the company was downsizing and eliminating his
Bell testified that he was solely responsible for the decision to eliminate Plaintiff’s
position and that he did so for cost reasons. Def.’s SMF ¶ 63. He stated that he did not take
performance into account. Id. ¶ 62. Matthew Bell, another owner of the company, testified that
Plaintiff’s termination was not due to financial problems. Pl.’s SMF ¶ 77. Reganato testified that
Bell told her the reason was both financial and because termination is what Cornell wanted. Id. ¶
65. Cornell stated that Plaintiff was terminated both because of performance and because his
position was eliminated. Id. ¶ 68.
Plaintiff filed a Complaint in the Superior Court of New Jersey, Camden County on
November 5, 2014. Defendant timely filed a Notice of Removal invoking the Court’s jurisdiction
under 28 U.S.C. § 1331 on December 11, 2014 (Doc. No. 1). Plaintiff’s Complaint alleges
disability discrimination under the LAD, N.J.S.A. § 10:5–1, et seq., perception of disability
discrimination under the LAD, retaliation under the LAD, retaliation under the FMLA, 28 U.S.C.
§ 2601, et seq., and wrongful discharge under common law. On January 14, 2016, Defendant
filed the present Motion for Summary Judgment. Plaintiff agreed to dismissal of its LAD
discrimination and common law wrongful discharge claims, and only the FMLA and LAD
retaliation claims remain. Pl.’s Opp’n Br. at 3 n.1.
The Court should grant a motion for summary judgment when the moving party “shows
that there is no genuine dispute as to any material fact and that the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). An issue is “material” to the dispute if it could alter the
outcome, and a dispute of a material fact is “genuine” if “a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (“Where the
record taken as a whole could not lead a rational trier of fact to find for the non-moving party,
there is no ‘genuine issue for trial.’”) (quoting First Nat’l Bank of Az. v. Cities Serv. Co., 391
U.S. 253, 289 (1968)). In deciding whether there is any genuine issue for trial, the court is not to
weigh evidence or decide issues of fact. Anderson, 477 U.S. at 248. Because fact and credibility
determinations are for the jury, the non-moving party’s evidence is to be believed and
ambiguities construed in its favor. Id. at 255; Matsushita, 475 U.S. at 587.
Although the movant bears the burden of demonstrating that there is no genuine issue of
material fact, the non-movant likewise must present more than mere allegations or denials to
successfully oppose summary judgment. Anderson, 477 U.S. at 256. The non-moving party must
at least present probative evidence from which the jury might return a verdict in his favor. Id. at
257. Where the non-moving party fails to “make a showing sufficient to establish the existence
of an element essential to that party’s case, and on which that party will bear the burden of proof
at trial,” the movant is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317,
FMLA Retaliation Claim
FMLA retaliation claims that are based on circumstantial evidence are analyzed under the
McDonnell Douglas burden-shifting framework. Ross v. Gilhuly, 755 F.3d 185, 193 (3d Cir.
2014).3 Under this framework, the plaintiff must first establish a prima facie case of
discrimination under the FMLA: (1) she exercised her right to FMLA-qualifying leave, (2) she
suffered an adverse employment action, and (3) the adverse action was causally related to her
invocation of rights. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05 (1973). If the
plaintiff successfully establishes a prima facie case, the defendant must articulate a legitimate,
non-discriminatory reason for the adverse employment action. Id. Then, the burden shifts back to
When FMLA retaliation claims are based on “direct evidence,” they are assessed under the
mixed-motive framework set forth in Price Waterhouse. Lichtenstein v. Univ. of Pittsburgh Med.
Ctr., 961 F.3d 294, 302 (3d Cir. 2012) (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 276–
77 (1989)). Plaintiff has presented no such direct evidence in this case, nor has he argued that
this case should be decided under the Price Waterhouse mixed-motive framework.
the plaintiff to prove, by a preponderance of the evidence, that the articulated reason was a
pretext for retaliation. Id.
In regards to the present Motion, Defendant does not contest that Plaintiff exercised his
right to FMLA-qualifying leave and suffered an adverse employment action. See Def.’s Br. at
14–16. Thus, the Court turns to whether there is a causal relationship between the adverse action
and invocation of rights, whether Defendant had a legitimate, non-discriminatory reason, and
whether Plaintiff has established that reason is pretextual.
Establishing a causal relationship between an employee’s decision to take FMLA leave
and an adverse employment event requires proof of the employer’s retaliatory intent. Retaliation
need not be the sole reason motivating the adverse employment decision; rather, it will suffice
for the plaintiff to show that the retaliatory animus was “a determinative factor,” i.e., that “the
action would not have been taken but for [the] protected activity.” Culler v. Shinseki, 840 F.
Supp. 2d 838, 846 (D.N.J. 2011) (citing LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d
217, 231–32 (3d Cir. 2007)). Stated another way, the court’s inquiry is whether the proffered
evidence “suffice[s] to raise the inference” that the plaintiff's request for FMLA leave was
causally related to the adverse employment action in question. See LeBoon, 503 F.3d at 232.
The Third Circuit has noted that there are two main methods of raising such an inference.
Abramson v. William Paterson Coll. of N.J., 260 F.3d 265, 288 (3d Cir. 2001). First, where there
exists “unusually suggestive” timing between the leave request and the adverse employment
action, such circumstance may be sufficient to establish causation. LeBoon, 503 F.3d at 232.
Second, causation may be established based on a period of “intervening antagonism.” Id. To
make this determination, courts consider “a broad array of evidence.” Id. Importantly, it is
incumbent upon the employee to demonstrate that the antagonistic behavior began after the
FMLA request was made. Compare Randler v. Kountry Kraft Kitchens, No. 11-474, 2012 WL
6561510, at *12 (M.D. Pa. Dec. 17, 2012) (rejecting plaintiff’s causation argument in part
because the alleged antagonistic behavior towards plaintiff was “not markedly different from the
incidents [the plaintiff] experienced prior to her” engaging in protected activity) with Abramson,
260 F.3d at 289 (crediting plaintiff's evidence of ongoing antagonism in light of evidence of
plaintiff’s superior’s “change in demeanor after [plaintiff engaged in protected activity]”).
Finally, in addition to these two primary methods, inconsistencies or discrepancies in the
employer’s articulated reasons for terminating the employee may be sufficient to support an
inference of causation. LeBoon, 503 F.3d at 232; Abramson, 260 F.3d at 290. When considering
any circumstantial evidence of causation, the court is to lend “a careful eye to the specific facts
and circumstances encountered.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279 n.5 (3d
Plaintiff argues that a causal connection exist between his decision to take FMLA leave
and an adverse employment event because the timing was unusually suggestive. The Third
Circuit has found timing to be unusually suggestive where seven days transpired between a
plaintiff invoking her right to leave and termination. Lichtenstein v. Univ. of Pittsburgh Med.
Ctr., 961 F.3d 294, 307 (3d Cir. 2012). Here, Plaintiff argues that he was replaced immediately
upon going on leave. Defendant’s Human Resources department, Reganato, testified that another
employee, Skare, replaced Plaintiff when Plaintiff went on leave. Plaintiff’s supervisor, Cornell,
stated that he did not intend to reassign Plaintiff his previous job responsibilities in the field
when Plaintiff returned. Plaintiff in fact was not permitted to reenter the field in the week he
worked before his termination. Defendant disputes this characterization. Defendant asserts that it
did not replace Plaintiff when he went on leave because Skare only took over some of Plaintiff’s
responsibilities and not his sales duties.
Plaintiff asserts that, in the alternative, Defendant decided to terminate him about ten
days after he went on leave. Cornell stated in his deposition that he told Reganato, “I don’t want
[Plaintiff] back,” within ten days after Plaintiff’s leave began. Shortly after, Cornell also spoke to
Bell regarding Plaintiff and said, “I don’t want him back. . . . I think enough is enough.” Both
Reganato and Bell told Cornell that he could not fire Plaintiff while Plaintiff was on leave. In
response, Cornell asked what action he could take when Plaintiff’s leave ended. Defendant
disputes that it decided to terminate Plaintiff while he was on leave. It claims that Cornell did not
have the power to fire Plaintiff and was merely suggesting termination to Bell during their
conversations about Plaintiff. According to Cornell, Defendant made the final decision to
eliminate Plaintiff’s position during Plaintiff’s first week back at work. Defendant argues that
this contention is supported by Defendant reissuing to Plaintiff a company car and phone upon
Construing factual disputes in a light most favorable to Plaintiff, the Court finds that a
reasonable jury could conclude that Plaintiff’s invoking of FMLA leave is causally connected to
his termination. Plaintiff has proffered evidence such as testimony from Defendant’s Human
Resources department, Skare’s job responsibilities, and Plaintiff’s assignments upon his return
that suggest Plaintiff was replaced upon going on leave. Defendant has presented testimony that
contests that Skare replaced Plaintiff, asserting that Skare did not take over all of Plaintiff’s
responsibilities. Such evidence, however, present a dispute of material fact over the credibility of
Plaintiff’s versus Defendant’s characterizations of Skare’s role. Factual disputes that are material
are for the factfinder to resolve, and not for this Court to dispose on summary judgment.
Furthermore, there is no dispute that Plaintiff’s supervisor, within ten days of leave,
stated, “I don’t want him back.” Defendant claims that Cornell had no authority to terminate
Plaintiff and that Bell made the final decision to eliminate Plaintiff’s position after Plaintiff
returned to work. However, Plaintiff notes that Bell in several instances recognized Cornell’s
authority to fire Plaintiff. Cornell stated that Bell said to him, “[Y]ou can’t fire Chris while he is
out on FMLA,” Cornell Dep. at 30, and Reganato testified that Bell explained Plaintiff’s position
was eliminated because that was what Cornell wanted. Defendant also argues that it did not make
the final decision to fire Plaintiff until his first week back. However, Plaintiff presented evidence
that Reganato and Bell repeatedly precluded Plaintiff from being fired while on leave and
Cornell in response inquired what action he could take when Plaintiff returned. Such material is
sufficient for a reasonable finder of fact to conclude that Defendant decided to terminate Plaintiff
within ten days of him invoking leave, even if Defendant did not execute termination until after
leave ended. As such, the Court finds that Plaintiff has established a causal connection between
Plaintiff’s FMLA leave and termination, and a prima facie case, for the purposes of this Motion.
Defendant’s Legitimate, Non-Discriminatory Reason
Plaintiff does not contest that Defendant has articulated a legitimate, non-discriminatory
reason for its decision to terminate Plaintiff. There is no dispute that Plaintiff had documented
performance issues: he received a write-up for incorrectly measuring windows, he was
reprimanded for using the company credit card to purchase alcohol, and clients reported
problems with a number of his assigned jobs. Defendant also presented testimony that Plaintiff’s
position was eliminated. Thus, this Court finds that Defendant has made a showing of a
legitimate, non-discriminatory reason for terminating Plaintiff. The burden shifts back to
Plaintiff to demonstrate that Defendant’s reason was pretextual.
Plaintiff’s Evidence of Pretext
To establish pretext, the plaintiff must show more than that the defendant’s reason for her
termination was wrong or mistaken. Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994). She is
required to prove that the defendant’s articulated non-retaliatory reason is either: (1) a post hoc
fabrication designed to camouflage intentional retaliation or (2) not the motivation behind the
defendant’s decisions. Id. at 764. To do this, the plaintiff must “demonstrate such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in [the defendant’s] proffered
legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy
of credence, and hence infer that [the defendant] did not act for [the asserted] non-discriminatory
reasons.” Id. at 765 (internal citations and quotations omitted) (quoting Ezold v. Wolf, Block,
Schorr & Solis-Cohen, 983 F.2d 509, 533 (3d Cir. 1992)). The Third Circuit has considered
factors such as: “the defendant’s credibility, the timing of an employee’s dismissal, and the
employer’s treatment of the employee.” Josey v. John R. Hollingsworth Corp., 996 F.2d 632,
638–39 (3d Cir. 1993).
In Plaintiff’s case, Plaintiff argues that Defendant’s reason for terminating him was
pretextual because Cornell had been aware of Plaintiff’s performance issues but did not fire him
until after he elected FMLA leave. The Third Circuit has found evidence for pretext where the
defendant was aware of performance problems by the plaintiff but did not take adverse action
until the plaintiff invoked medical leave. Lichtenstein, 691 F.3d at 310–11. Here, three months
elapsed between Plaintiff’s two formal reprimands and when he went on leave. During that
interim, Defendant did not place Plaintiff on a performance plan, suspend him, or discuss
terminating him. Cornell testified that the first time he discussed terminating Plaintiff was within
ten days after Plaintiff’s leave. Defendant explains the timing by countering that Plaintiff’s major
mistakes did not surface until after his leave began. Defendant admits, however, that it did know
of a number of Plaintiff’s performance problems prior to his leave. Cornell was aware of errors
Plaintiff had made in the Windsor Court and Sussex House projects. Matthew Bell, another
owner of the company, heard of “significant mistakes” that Plaintiff had made before Plaintiff
went on leave, that dated back nine months and possibly as early as 2012. Matthew Bell Dep. at
14. Human Resources, Reganato, questioned why Plaintiff was being terminated following leave
when he had had performance issues before. Such evidence is enough for a rational factfinder to
conclude that Defendant knew that Plaintiff generally had performance problems prior to his
leave but did not decide to terminate him until after he chose to take leave. Defendant may
nonetheless show at trial that its termination decision was not pretextual. However, Plaintiff has
furnished enough evidence of a pretext to survive summary judgment.
Plaintiff additionally posits that Defendant’s reasons for terminating Plaintiff have been
inconsistent and therefore are not worthy of credence. Defendant’s position is that Plaintiff was
fired both because of poor performance and because the position was eliminated. Cornell
testified that Plaintiff was terminated for those “[t]wo reasons,” Cornell Dep. at 25, and Matthew
Bell stated similarly, Matthew Bell Dep. at 10. That testimony is directly contradicted by Edward
Bell, who said that he was the person who decided to eliminate Plaintiff’s role and he did so only
because of cost. When asked if his decision factored in Plaintiff’s job performance, Bell
responded that he “did not take any of it into consideration.” Bell Dep. at 16. This testimony is
additionally inconsistent with Reganato’s account that Edward Bell stated Plaintiff’s position
was eliminated in part because of Cornell’s wishes. The Court finds that Plaintiff has identified
instances where Defendant offered contradictory explanations for terminating Plaintiff.
Confronted with such evidence, a reasonable finder of fact could rationally find Defendant’s
reasons unworthy of credence. Thus, Plaintiff has established pretext, and the Court denies
summary judgment for the FMLA retaliation claim.
LAD Retaliation Claim
When analyzing a retaliation claim under the LAD, the court employs the same three-step
burden-shifting analysis that it uses to evaluate a discrimination claim. Marrero v. Camden
County Bd. of Social Serv., 164 F. Supp. 2d 455, 473 (D.N.J. 2001); see McDonnell Douglas,
411 U.S. at 802–05. Under the first step of this framework, the plaintiff must establish a prima
facie case of retaliation by showing that: “(1) plaintiff was in a protected class; (2) plaintiff
engaged in protected activity known to the employer; (3) plaintiff was thereafter subjected to an
adverse employment consequence; and (4) that there is a causal link between the protected
activity and the adverse employment consequence.” Victor v. State, 4 A.3d 126, 141 (N.J. 2010).
Once the plaintiff establishes the prima facie elements of retaliation, then the defendant must
provide legitimate, non-retaliatory reasons for the employment decision. Romano v. Brown &
Williamson Tobacco Corp., 665 A.2d 1139, 1142 (N.J. Super. Ct. App. Div. 1995). At that point,
the plaintiff has to burden to present evidence of the employer’s discriminatory motive to
demonstrate that the legitimate reasons articulated by the employer were merely a pretext for
discriminatory intent. Id.
Defendant argues that Plaintiff has failed to demonstrate the first element of a prima facie
case for retaliation under the LAD, that Plaintiff was a member of a protected class. The LAD
protects against discrimination on the basis of disability. N.J.S.A. 1:5–4.1. To show that a
plaintiff has a disability, the New Jersey Supreme Court has required a plaintiff to present
competent and legal medical evidence. Clowes v. Terminix Int’l, Inc., 538 A.2d 794, 805 (N.J.
1988). Competent and legal medical evidence need not be medical expert testimony, and
testimony by the plaintiff’s treating physician can suffice. Sarnowski v. Air Brooke Limousine,
Inc., 510 F.3d 398, 404 (3d Cir. 2007). In this case, Plaintiff has failed to proffer any medical
evidence showing that Plaintiff suffered from a disability. The New Jersey Superior Court,
Appellate Division has found evidence of FMLA leave alone to not be sufficient to show the
plaintiff was disabled. DiPasquale v. Hackensack Univ. Med. Ctr., No. A-3930-12T4, 2014 WL
7511626, at *3 (N.J. Super. Ct. App. Div. Jan. 13, 2015) (referring to trial judge’s ruling). Given
the lack of any medical evidence in the record, this Court must dismiss Plaintiff’s retaliation
claim under the LAD.
For the reasons expressed above, Defendant’s Motion for Summary Judgment will be
DENIED as to the FMLA retaliation claim and GRANTED as to the LAD and wrongful
s/ Robert B. Kugler
ROBERT B. KUGLER
United State District Judge
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