SWEET v. COUNTY OF GLOUCESTER et al
OPINION. Signed by Judge Renee Marie Bumb on 6/15/2016. (tf, )
NOT FOR PUBLICATION
[Docket No. 26]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civil No. 15-282 (RMB/AMD)
COUNTY OF GLOUCESTER, et al.,
Saul J. Steinberg
David W. Sufrin
Zucker, Steinberg & Wixted, P.A.
415 Federal Street
Camden, NJ 08103
Attorneys for Plaintiff
Christine P. O’Hearn
Christopher Albert Reese
Brown & Connery, LLP
360 Haddon Avenue
P.O. Box 539
Westmont, NJ 08108
Attorneys for Defendants
BUMB, UNITED STATES DISTRICT JUDGE:
This matter comes before the Court upon the Motion for
Summary Judgment filed by Defendants County of Gloucester (the
“County”) and Wayne Wurtz (“Wurtz” and, together with the
County, the “Defendants”) [Docket No. 26].
For the reasons set
forth below, the Court will grant the motion with respect to the
Family Medical Leave Act (“FMLA”) interference claim and decline
to exercise supplemental jurisdiction over the remaining state
The remaining state law claims will be remanded to
the Superior Court of New Jersey, Law Division, Gloucester
This dispute arises from the discipline imposed upon
Plaintiff John Sweet (the “Plaintiff” or “Sweet”) by his
supervisor Defendant Wurtz at the Mosquito Control Commission in
As the Defendants note, Plaintiff has failed to comply
with District of New Jersey Local Rule of Civil Procedure
56.1(a), which provides in relevant part:
On motions for summary judgment, the movant shall furnish a
statement which sets forth material facts as to which there
does not exist a genuine issue, in separately numbered
paragraphs citing to the affidavits and other documents
submitted. . . . The opponent of summary judgment shall
furnish, with its opposition papers, a responsive statement
of material facts, addressing each paragraph of the
movant's statement, indicating agreement or disagreement
and, if not agreed, stating each material fact in dispute
and citing to the affidavits and other documents submitted
in connection with the motion; any material fact not
disputed shall be deemed undisputed for purposes of the
summary judgment motion. . . . Each statement of material
facts shall be a separate document (not part of a brief)
and shall not contain legal argument or conclusions of law.
D.N.J. L. Civ. R. 56.1(a) (emphasis added).
Plaintiff did not furnish a responsive statement of
material facts, as required. Therefore, the Court may deem the
material facts included in Defendants’ Statement of Undisputed
Material Facts [Docket No. 26-1] as undisputed and rely upon
those facts as appropriate. Nonetheless, the Court, in an
abundance of caution, has also relied upon the exhibits of
record to establish the material facts underlying this matter.
the County of Gloucester for allegedly discriminatory reasons.
Plaintiff was originally hired by the County in January
2006 as a building maintenance worker in the County’s Buildings
and Grounds Department.
Sweet Dep. Tr. 44:18-45:13 [Docket No.
26-6, Ex. A]; 1/3/2006 Letter [Docket No. 26-7, Ex. B].
2011, Plaintiff was transferred to his current role as a
Mosquito Extermination Inspector.
[Docket No. 26-9, Ex. D].
While employed as a Mosquito
Extermination Inspector, Plaintiff’s supervisor was Defendant
Sweet Dep. Tr. 133:21-24 [Docket No. 26-10, Ex. E].
A Mosquito Extermination Inspector is required to prepare
clear and accurate reports and keep essential records and files.
New Jersey Civil Service Commission Job Description for Mosquito
Extermination Inspector [Docket No. 26-11, Ex. F]; Sweet Dep.
Tr. 139:24-141:19 [Ex. E].
Likewise, New Jersey Department of
Environmental Protection regulations mandate that clear and
accurate records are kept regarding the application of
pesticides by Mosquito Extermination Inspectors.
384:3-11 [Ex. E].
Sweet Dep. Tr.
Plaintiff understands and admits that
accurate recordkeeping is a crucial part of his job as a
Mosquito Extermination Inspector.
Id. at 278:14-18.
Specifically, as a Mosquito Extermination Inspector, Sweet
is required to complete a worksheet at the end of each shift
documenting his work during that shift.
Id. at 216:1-9.
also required to complete section cards that pertain to
particular job locations and document the pesticides sprayed at
each particular location over the course of the mosquito season.
Id. at 216:10-217:24.
Over the course of his employment as a Mosquito
Extermination Inspector, Plaintiff has been disciplined on
several occasions, generally for failure to accurately and
timely complete his recordkeeping and reporting requirements.
See, e.g., 3/26/2012 Disciplinary Memorandum [Docket No. 26-14,
Ex. I]; 7/12/2012 Letter [Docket No. 26-17, Ex. L]; 4/29/2013
Disciplinary Memorandum [Docket No. 26-33, Ex. BB].
Plaintiff suffers from attention deficit disorder, anxiety
disorder, and occasional severe cluster headaches.
8/7/2012 Heist Certification [Docket No. 26-22, Ex. Q].
Plaintiff alleges that he informed the Deputy County
Administrator, Gerald White, of his disabilities in 2010.
Dep. Tr. 295:18-296:3 [Ex. E].
He did not, however, provide any
documentation of the disabilities at that time or request any
Id. at 301:1-12, 303:17-19.
Plaintiff informed Defendant Wurtz of his disabilities for
the first time after receiving a disciplinary memorandum on May
Id. at 302:17-303:15.
He also submitted a doctor’s
note from Dr. Jon S. Heist, dated May 25, 2012, to his employer
which reads in its entirety: “John is presently under my care
Attention Deficit Disorder.”
5/25/2012 Heist Note [Docket No.
26-19, Ex. N].
On May 21, 2012, Plaintiff applied for intermittent FMLA
leave for the first time.
[Docket No. 26-20, Ex. O].
5/21/2012 Notice of Eligibility
As part of his application for FMLA
leave, Plaintiff submitted a certification from his doctor, Dr.
Heist, which stated that Plaintiff is “unable to perform any job
function during flare up” of his cluster headaches.
Heist Certification [Ex. Q].
Dr. Heist also noted that
Plaintiff “only needs reduced schedu[le] during flare ups 1-2
times per month lasting 1-5 days.”
Plaintiff’s request for
intermittent FMLA leave was approved by the County on August 21,
2012 for a period of sixty-three days, effective August 7, 2012.
8/21/2012 Letter [Docket No. 26-23, Ex. R].
In or around October 2012, Plaintiff was charged with
insubordination and excessive absenteeism for failing to report
for mandatory overtime on five dates in August and September
Sweet Dep. Tr. 154:13-22, 165:4-13 [Ex. E].
subsequently filed a grievance against his supervisor, claiming
that he could not be forced to work overtime because of his
right to intermittent FMLA leave.
The grievances were
ultimately settled and, as a result, the disciplinary matters
related to his failure to report for overtime in August and
September 2012 were “voided and removed from the [Plaintiff’s]
2/21/2013 Memorandum [Docket No. 26-24, Ex.
S]; see also Sweet Dep. Tr. 154:13-155:9 [Ex. E].
not suspended from work and did not incur any monetary damages
as a result of these disciplinary charges being brought against
See Sweet Dep. Tr. 156:21-157:18 [Ex. E].
Plaintiff was never forced to work overtime.
Id. at 155:19-24,
Plaintiff claims, however, that he lost sleep and
suffered from depression as a result of these disciplinary
actions being brought against him, although they were ultimately
settled in his favor.
Id. at 157:17-25, 176:25-177:6.
On May 29, 2013, Plaintiff once again applied for
intermittent FMLA leave.
5/29/2013 Notice of Eligibility
[Docket No. 26-25, Ex. T].
Plaintiff submitted an additional
certification from Dr. Heist, in which Dr. Heist notes that
Plaintiff “only needs reduced schedule for flare ups approx. 12x per mo 1-2 days” and that “during flare ups the pt is
incapacitated due to HA.”
No. 26-27, Ex. V].
6/13/2013 Heist Certification [Docket
Sweet’s request was approved on August 1,
2013 for a period of sixty-three days, effective August 7, 2013.
8/1/2013 Letter [Docket No. 26-28, Ex. W].
Plaintiff next applied for intermittent FMLA leave on July
7/11/2014 Notice of Eligibility [Docket No. 26-29,
Dr. Heist’s certification submitted in support of
Plaintiff’s request for FMLA leave once against stated that
Plaintiff was “unable to perform any job function during flare
7/17/2014 Heist Certification [Docket No. 26-31, Ex. Z].
His request was approved for up to sixty-three days, effective
August 7, 2014 and ending on August 7, 2015.
[Docket No. 26-32, Ex. AA].
On June 19, 2013, Plaintiff requested, via his union,
accommodations for his disability.
Specifically, he requested
that Wurtz go over Plaintiff’s assignments with him each morning
and that Wurtz review Plaintiff’s paperwork at the end of each
day to identify and correct any errors.
[Docket No. 26-35, Ex. DD].
The County agreed to implement the
first request for accommodation immediately.
however, refused to implement Plaintiff’s second request for
accommodation, explaining that “[t]he proposed reasonable
accommodation of reviewing and correcting errors after
identified by a Supervisor would require a fundamental change to
the nature of the employment, thereby making the accommodation
The County offered to “explore other
accommodations with [him]” and suggested certain alternatives.
Plaintiff did not respond to this invitation.
Tr. 290:18-291:20 [Ex. E].
After the County implemented Plaintiff’s first request for
accommodation, Plaintiff was charged with destruction of county
property in October 2013, 10/21/2013 Disciplinary Memorandum
[Docket No. 26-36, Ex. EE], and with failure to follow palm scan
procedures in March 2014.
3/6/2014 Disciplinary Memorandum
[Docket No. 26-38, Ex. GG].
He did not receive any discipline
as a result of either charge.
10/29/2013 Memorandum [Docket No.
26-37, Ex. FF]; 3/20/2014 Memorandum [Docket No. 26-39, Ex. HH].
In August 2014, Plaintiff was charged with operating a
county vehicle in a careless manner and other related
8/19/2014 Disciplinary Memorandum [Docket No. 26-
40, Ex. II].
Plaintiff was suspended for five days without pay,
although the suspension was reduced to a one day suspension
after Plaintiff filed a grievance.
1/9/2015 Hearing Officer
Decision [Docket No. 26-42, Ex. KK].
In April 2015, Plaintiff
was charged with insubordination, inability to perform duties,
and neglect of duty because he did not have his pesticide
license on him while working.
[Docket No. 26-43, Ex. LL].
4/29/2015 Disciplinary Memorandum
He was suspended for three days.
5/7/2015 Memorandum [Docket No. 26-44, Ex. MM].
Based upon these facts, Plaintiff filed this action against
Defendant Wurtz and the Defendant County.
In the Amended
Complaint, Plaintiff asserts the following six claims against
the Defendants: (1) disability discrimination in violation of
the New Jersey Law Against Discrimination (“LAD”); (2) failure
to provide reasonable accommodations in violation of the LAD;
(3) supervisory liability under the LAD; (4) discriminatory
harassment/hostile workplace in violation of New Jersey state
law; (5) intentional infliction of emotional distress; and (6)
interference with rights under the FMLA.
[Docket No. 1, Ex. C],
SUMMARY JUDGMENT STANDARD
Summary judgment shall be granted 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.”
Civ. P. 56(a).
A fact is “material” if it will “affect the
outcome of the suit under the governing law[.]”
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A dispute is
“genuine” if it could lead a “reasonable jury [to] return a
verdict for the nonmoving party.”
When deciding the existence of a genuine dispute of
material fact, a court’s role is not to weigh the evidence; all
reasonable “inferences, doubts, and issues of credibility should
be resolved against the moving party.”
Meyer v. Riegel Prods.
Corp., 720 F.2d 303, 307 n. 2 (3d Cir. 1983).
However, a mere
“scintilla of evidence,” without more, will not give rise to a
genuine dispute for trial.
Anderson, 477 U.S. at 252.
a court need not adopt the version of facts asserted by the
nonmoving party if those facts are “utterly discredited by the
record [such] that no reasonable jury” could believe them.
Scott v. Harris, 550 U.S. 373, 380 (2007).
In the face of such
evidence, summary judgment is still appropriate “where the
record . . . could not lead a rational trier of fact to find for
the nonmoving party[.]”
Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
The movant “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.”
Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P.
Then, “when a properly supported motion for summary
judgment [has been] made, the adverse party ‘must set forth
specific facts showing that there is a genuine issue for
Anderson, 477 U.S. at 250 (citing Fed. R. Civ. P.
The nonmovant’s burden is rigorous: it “must point to
concrete evidence in the record”; mere allegations, conclusions,
conjecture, and speculation will not defeat summary judgment.
Orsatti v. New Jersey State Police, 71 F.3d 480, 484 (3d Cir.
1995); accord Jackson v. Danberg, 594 F.3d 210, 227 (3d Cir.
2010) (citing Acumed LLC v. Advanced Surgical Servs., Inc., 561
F.3d 199, 228 (3d Cir. 2009) (“[S]peculation and conjecture may
not defeat summary judgment.”)).
A. Family and Medical Leave Act
The FMLA, 29 U.S.C. §§ 2601 et seq., requires state
employers, among others, to provide “12 workweeks of leave” for
the following reasons: (A) because of the birth of a child of
the employee and in order to care for such child; (B) because of
the placement of a child with the employee for adoption or
foster care; (C) in order to care for the spouse, son, daughter,
or parent of the employee, if such relative has a serious health
condition; and (D) because of a serious health care condition
that makes the employee unable to perform the function of the
position of such employee.”
29 U.S.C. § 2612(a)(1).
grants an employee a private right of action against an employer
for violations of the FMLA.
29 U.S.C. § 2617(a)(2)(A).
focus of the Plaintiff’s FMLA claim is section D, termed the
self-care provision, which provides leave to employees because
of a serious health care condition.
29 U.S.C. § 2612(a)(1)(D).
The principal objectives of the FMLA are to “balance the
demands of the workplace with the needs of families” and “to
entitle employees to take reasonable leave for medical reasons.”
Callison v. City of Phila., 430 F.3d 117, 119 (3d Cir. 2005)
(quoting 29 U.S.C. § 2601(b)(1) and (2)).
“The FMLA contains
two relatively distinct types of provisions.
First, it creates
a series of prescriptive substantive rights for eligible
employees, often referred to as the ‘entitlement’ or
‘interference’ provisions which set floors for employer conduct.
. . . Additionally, the FMLA provides protection against
discrimination based on the exercise of these rights, often
referred to as the ‘discrimination’ or ‘retaliation’
Id. (internal citations omitted).
i. Plaintiff’s Articulated Claim
Throughout the course of this litigation, Plaintiff Sweet
has continuously pursued an FMLA interference claim, not an FMLA
In his brief in opposition to the
Defendants’ motion for summary judgment, however, Plaintiff, for
the first time, appears to assert an FMLA retaliation claim.
his opposition brief, Plaintiff argues that he has established a
prima facie case for a retaliation claim under the FMLA.
Opp. Br. at 13 [Docket No. 29].
Yet, no FMLA retaliation claim
is pled in the Plaintiff’s Amended Complaint [Docket No. 1, Ex.
Rather, under the heading “Violation of Medical Leave Act,”
Plaintiff alleges facts tracking the elements of an FMLA
See id. at ¶¶ 63-65 (“64. Plaintiff
requested leave to cope with these conditions pursuant to the
laws stated above.
Defendant, County of Gloucester, denied
65. Plaintiff therefore has sustained damages as a
result of Defendant’s, County of Gloucester, violation of the
provisions of the law.”).
“A plaintiff may not amend his complaint through arguments
in his brief in opposition to a motion for summary judgment.”
Bell v. City of Phila., 275 F. App’x 157, 160 (3d Cir. 2008)
(internal citations and quotations omitted); accord Com. of Pa.
ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir.
1988) (“It is axiomatic that the complaint may not be amended by
the briefs in opposition to a motion to dismiss.”).
attempt to recast his FMLA interference claim as an FMLA
retaliation claim through argument in his opposition brief is
improper and insufficient.
Plaintiff’s Amended Complaint fails
to plead an FMLA retaliation claim.
This Court will not permit
Plaintiff to add or substitute causes of action through legal
argument in his opposition brief.
ii. Abandonment of FMLA Interference Claim
As a preliminary matter, it appears that the Plaintiff has
abandoned his FMLA interference claim, in favor of an improperly
asserted FMLA retaliation claim.
See supra at 12-13.
in his opposition to the Defendants’ Motion for Summary Judgment
does the Plaintiff address his FMLA interference claim, let
alone argue why it should not be dismissed.
Hence, the Court
finds that by failing to address the FMLA interference claim at
all in his opposition brief, Plaintiff has abandoned the FMLA
interference claim as set forth in his Amended Complaint.
Fischer v. G4S Secure Sols. USA, Inc., 614 F. App’x 87, 91 n. 3
(3d Cir. 2015) (affirming district court’s determination that
plaintiff abandoned claim by failing to address it at all in
opposition to motion for summary judgment and noting that “[i]t
is a well-settled rule that a party opposing a summary judgment
motion must inform the trial judge of the reasons, legal or
factual, why summary judgment should not be entered.
If it does
not do so, and loses the motion, it cannot raise such reasons on
appeal.”); see also McKenna v. Portman, 538 F. App’x 221, 224 n.
5 (3d Cir. 2013) (“Although their Amended Complaint seeks relief
under the First, Fourth, Fifth, Sixth, and Fourteenth
Amendments, in their briefs both before this Court and the
District Court, Plaintiffs only oppose the dismissal of their
Fifth and Fourteenth Amendment claims and essentially concede
all remaining claims.”).
For this reason, summary judgment shall be granted on the
FMLA interference in favor of the Defendants and the claim shall
Mindful of the preference for adjudicating
disputes on their merits, however, the Court will nonetheless
address the substance of the Plaintiff’s FMLA interference
See Krupski v. Costa Crociere S. p. A., 560 U.S. 538,
550 (2010); In re Princeton Office Park, L.P., 2016 WL 2587974,
at *3 n. 3 (3d Cir. May 5, 2016).
iii. FMLA Interference Claim
Section 2615(a)(1) of the FMLA provides, “[i]t shall be
unlawful for an employer to interfere with, restrain, or deny
the exercise of or the attempt to exercise, any right provided
under this subchapter.”
29 U.S.C. § 2615(a)(1).
To succeed on
an FMLA interference claim, Plaintiff must show that “he was
entitled to benefits under the FMLA and that he was denied
Callison, 430 F.3d at 119.
“An interference action is
not about discrimination, it is only about whether the employer
provided the employee with the entitlements guaranteed by the
Id. at 120.
As such, the familiar McDonnell-Douglas
burden-shifting analysis used in employment discrimination
matters is not applicable.
Sommer v. The Vanguard Grp., 461
F.3d 397, 399 (3d Cir. 2006).
For Plaintiff Sweet to prevail on his interference claim,
he must prove that “(1) [he] was entitled to FMLA benefits; (2)
[his employer] violated § 2615 by ‘interfering with,
restraining, or denying [his] exercise of FMLA rights;’ and (3)
[he] was prejudiced by the interference.”
Scofienza v. Verizon
Pennsylvania, Inc., 307 F. App’x 619, 621 (3d Cir. 2008)
(quoting Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89
The Supreme Court in Ragsdale held that the FMLA “provides
no relief unless the employee has been prejudiced by the
535 U.S. at 89.
The Third Circuit has reiterated
that a plaintiff “must demonstrate that he suffered prejudice as
a result of the employer’s violation of the” FMLA.
Virgin Island Water & Power Auth., 470 F. App’x 72, 77 (3d Cir.
2012) (citing Ragsdale, 535 U.S. at 89).
“Prejudice occurs when
the employer’s failure to advise the plaintiff of [his] FMLA
rights rendered [him] unable to exercise the right to leave in a
meaningful way, thereby causing injury.”
Lupyan v. Corinthian
Colleges Inc., 761 F.3d 314, 318-19 (3d Cir. 2014) (internal
quotations and modifications omitted) (citing Ragsdale, 535 U.S.
at 89; Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135,
143 (3d Cir. 2004)).
In sum, “mere technical FMLA violations
are not actionable.”
Bravo v. Union Cty., 2013 WL 2285780, at
*9 (D.N.J. May 23, 2013) (citing Ragsdale, 535 U.S. at 89).
The parties do not dispute that Plaintiff was entitled to
This is clear from the fact that the County
approved each request for intermittent FMLA leave submitted by
See 8/21/2012 Letter [Ex. R]; 8/1/2013 Letter
[Ex. W]; 7/28/2014 Letter [Ex. AA].
What’s more, it is
undisputed that Plaintiff was not denied any of the FMLA
benefits to which he was entitled.
In fact, Plaintiff admitted
during his deposition that the County has granted each of his
requests for FMLA intermittent leave.
Sweet Dep. Tr. 174:24-
175:1 [Ex. E] (“Q.
Every time you’ve requested [FMLA
intermittent leave], it has been granted?
Defendants correctly identify that “Plaintiff’s only claim
is that he was told at one point that he could not use his
intermittent FMLA leave to be excused from mandatory overtime.”
Defs. Br. at 28 [Docket No. 26-2].
Defendants refer to the
October 2012 disciplinary charges against the Plaintiff for
insubordination and excessive absenteeism after he failed to
report for five mandatory overnight shifts in August and
Sweet Dep. Tr. 154:13-22, 165:4-13 [Ex. E].2
The Court notes that any FMLA claim arising from these
disciplinary charges may likely be barred as duplicative or
under the doctrines of res judicata or collateral estoppel.
“Claim preclusion bars suit when three elements are present: (1)
a final judgment on the merits in a prior suit involving (2) the
same parties or their privies and (3) a subsequent suit based on
the same cause of action.” Davis v. Wells Fargo, 2016 WL
3033938, at *4 (3d Cir. May 27, 2016) (internal quotations
omitted). Collateral estoppel or issue preclusion, on the other
hand, “bars successive litigation of an issue of fact or law
actually litigated and resolved in a valid court determination
essential to the prior judgment, even if the issue recurs in the
context of a different claim.” Nat’l Med. Imaging, LLC v.
Ashland Funding LLC, 2016 WL 1743475, at *3 (3d Cir. May 3,
2016) (citing Taylor v. Sturgell, 553 U.S. 880, 892 (2008)).
Collateral estoppel bars a claim if “(1) the identical issue was
previously adjudicated; (2) the issue was actually litigated;
(3) the previous determination was necessary to the decision;
and (4) the party being precluded from relitigating the issue
was fully represented in the prior action.” Id. at *3 (quoting
Howard Hess Dental Labs. Inc. v. Dentsply Int’l, Inc., 602 F.3d
237, 247-48 (3d Cir. 2010))
The Supreme Court has “long favored application of the
common-law doctrines of collateral estoppel (as to issues) and
res judicata (as to claims) to those determinations of
administrative bodies that have attained finality.” Astoria
An essential element of any FMLA interference claim is that
the defendant employer interfered with, restrained, or denied
Plaintiff’s exercise of FMLA rights.
Scofienza, 307 F. App’x at
621 (quoting Ragsdale, 535 U.S. at 89).
It is unclear from the
record whether Plaintiff was told before or after he used his
intermittent FMLA leave that this leave could not be used to
excuse him from the mandatory overtime shifts.
inference, however, is that the statement was made after he
exercised his FMLA rights because he took the leave at issue.
Even if the statement was made prior to Plaintiff’s use of
intermittent FMLA leave from mandatory overtime, the Plaintiff
Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 107 (1991).
Yet without the benefit of the “Letter of Agreement” referenced
in the February 21, 2013 Letter setting forth that Plaintiff’s
grievances have been settled and the disciplinary charges voided
and removed from his personnel file [Ex. S], the Court is unable
to fully assess the preclusive effect of the County’s
determination or the settlement between the parties. See
Toscano v. Connecticut Gen. Life Ins. Co., 288 F. App’x 36, 38
(3d Cir. 2008) (“The express terms of a settlement agreement,
not merely the terms of the judgment, determine the bounds of
preclusion after a settlement. . . . Judicially approved
settlements are considered final judgments on the merits for the
purposes of claim preclusion.”). Additionally, neither party
has addressed this issue.
What is clear to the Court, however, is that the Plaintiff
challenged the disciplinary charges instituted against him on
the basis that he properly exercised his rights to FMLA
intermittent leave during the overtime shifts at issue and that
Plaintiff was successful at the administrative level. To allow
him to once again challenge the propriety of the disciplinary
charges, this time in federal court, would run counter to wellestablished preclusion doctrines by granting Plaintiff a second
bite at the proverbial apple. See Valenti v. Mitchell, 962 F.2d
288, 296 (3d Cir. 1992).
has presented the Court with no evidence that he was deterred by
In fact, the record demonstrates that the
Plaintiff was not deterred by the statement: he exercised his
right to take FMLA intermittent leave and did not report for the
five overtime shifts at issue.
There is no evidence or even
allegation that Plaintiff was forced to work those overtime
shifts: it is undisputed that he did not work these shifts.
the final analysis, without any evidence that the Plaintiff was
deterred from exercising his FMLA rights, the Court finds that,
regardless of when this statement was conveyed to the Plaintiff,
the statement did not “interfer[e] with, restrain, or deny”
Plaintiff’s exercise of his FMLA rights, as required to
establish an FMLA interference claim.
Ragsdale, 535 U.S. at 89.
Furthermore, Plaintiff readily admitted in his deposition
that he has never been forced to work overtime since his initial
request for FMLA benefits was granted and has never been denied
a request for FMLA leave.
171:24-172:8 [Ex. E].
Sweet Dep. Tr. 155:19-24, 170:5-20,
Additionally, even after the disciplinary
charges were brought against him, Plaintiff continued to take
intermittent FMLA leave and to decline overnight shifts without
Id. at 170:5-15, 172:10-17, 174:3-12.
It is possible
that the disciplinary charges brought against the Plaintiff for
exercising his FMLA rights could have supported an FMLA
retaliation claim, but the Plaintiff has not asserted such a
claim in his Amended Complaint.3
They do not, however, give rise
to an FMLA interference claim as Plaintiff’s exercise of his
FMLA rights has not been hampered in any way.
For this reason,
too, summary judgment shall be granted in favor of the
Defendants on Plaintiff’s FMLA interference claim.
To the extent that Defendants’ statement regarding
Plaintiff’s use of FMLA leave to be excused from these five
overtime shifts or the resulting disciplinary charges instituted
against him once he did not report for mandatory overtime duty
could be considered “interfering with, restraining, or denying
[Plaintiff’s] exercise of FMLA rights,” see Ragsdale, 535 U.S.
at 89, Plaintiff has demonstrated no prejudice that he suffered
that can be remedied by the FMLA.
See Capilli v. Whitesell
Const. Co., 271 F. App’x 261, 267 (3d Cir. 2008) (affirming
grant of summary judgment on FMLA interference claim where
employer’s interference did not result in any prejudice to
plaintiff); Yansick v. Temple Univ. Health Sys., 297 F. App’x
111, 113 (3d Cir. 2008) (same).
The Court has already rejected Plaintiff’s improper
attempt to recast his FMLA interference claim as an FMLA
retaliation claim through argument in his opposition brief. See
supra at 12-13. The Plaintiff is bound by his Amended Complaint
and cannot attempt to amend his complaint once again through his
brief. Bell, 275 F. App’x at 160; Zimmerman, 836 F.2d at 181.
The Court in no way expresses a ruling or determination as to
whether these charges could have in fact given rise to an FMLA
retaliation claim, had one been properly pled.
Ultimately, the disciplinary actions were resolved in
Plaintiff’s favor and the charges were voided and removed from
his personnel file.
Id. at 154:13-155:9; 2/21/2013 Memorandum
Plaintiff was not forced to work overtime and admits
that he was never denied a request for FMLA leave.
Tr. 155:19-24, 170:5-20, 171:24-172:8 [Ex. E].
not suspended from work or demoted.
He did not lose wages or
benefits, or suffer any other monetary loss as a result of the
The only harms
Plaintiff claims occurred due to the charges are that he lost
sleep every other night while the charges were pending and that
he suffered depression as a result of the charges.
156:4-11, 157:17-25, 176:25-177:6.
However, Plaintiff did not
see a doctor for any mental health concerns during this time.
Id. at 158:1-2.
Plaintiff has never been diagnosed with any
mental health disorders related to the disciplinary charges or
any other workplace stressors and is not taking medication for
depression or insomnia.
Id. at 159:11-13, 314:1-316:1, 325:11-
In any case, any emotional damages suffered by the
Plaintiff are not compensable under the FMLA. See Brown v.
Nutrition Mgmt. Servs. Co., 370 F. App’x 267, 274 (3d Cir. 2010)
(noting that, while the Third Circuit has not yet directly held,
“the parties’ conclusion [that emotional distress, pain and
suffering, and punitive damages are not recoverable under the
FMLA] is supported by the statutory text of the FMLA and the
decisions of our sister courts of appeals.”) (relying on 29
Additionally, Plaintiff’s willingness to exercise his FMLA
rights has in no way been chilled as a result of the
In fact, he has continued to exercise his
FMLA rights by taking FMLA leave regularly.
See Id. at 174:3-
175:12 (testifying that Plaintiff used nineteen FMLA days
between August 2012 and June 2013, approximately sixteen FMLA
days in 2013, and approximately ten FMLA days in 2014).
At most, the disciplinary charges rise to the level of a
“mere technical violation” that is not actionable under the FMLA
since the Plaintiff has failed to demonstrate prejudice.
2013 WL 2285780, at *9 (citing Ragsdale, 535 U.S. at 89).
this reason, too, the Plaintiff’s FMLA interference claim fails.
U.S.C. § 2617(a); Farrell v. Tri-Country Metro Transp. Dist. Of
Or., 530 F.3d 1023, 1025 (9th Cir. 2008); Brumbalough v. Camelot
Care Ctrs., Inc., 427 F.3d 996, 1007-08 (6th Cir. 2005)). The
FMLA provides that an employer who interferes with an employee’s
FMLA rights is liable for damages equal to “(I) any wages,
salary, employment benefits, or other compensation denied or
lost to such employee by reason of the violation; or (II) in a
case in which wages, salary, employment benefits, or other
compensation have not been denied or lost to the employee, any
actual monetary losses sustained by the employee as a direct
result of the violation, such as the cost of providing care[.]”
29 U.S.C. § 2617(a)(1)(A)(i); see also Ragsdale, 535 U.S. at 89
(“§ 2617 provides no relief unless the employee has been
prejudiced by the violation: The employer is liable only for
compensation and benefits lost ‘by reason of the violation,’ for
other monetary losses sustained ‘as a direct result of the
violation,’ and for ‘appropriate’ equitable relief, including
employment, reinstatement, and promotion.”) (quoting 29 U.S.C. §
2617(a)(1)(A) and (B)).
B. Remaining State Law Claims
Having granted summary judgment in favor of the Defendants
on Plaintiff’s only federal law claim, and with this Court’s
subject matter jurisdiction premised on federal question
jurisdiction, this Court must determine whether it will exercise
supplemental jurisdiction over Plaintiff’s remaining state law
See Kalick v. Nw. Airlines Corp., 372 F. App’x 317, 322
(3d Cir. 2010).
“Absent extraordinary circumstances,
‘jurisdiction [over claims based on state law] should be
declined where the federal claims are no longer viable.’”
(quoting Shaffer v. Bd. of Sch. Dirs. Of Albert Gallatin Area
Sch. Dist., 730 F.2d 910, 912 (3d Cir. 1984)).
extraordinary circumstances are evident here, this Court
declines to exercise supplemental jurisdiction over Plaintiff’s
state law claims.5
See Kalick, 372 F. App’x at 322; Hunter v.
Rowan Univ., 2007 WL 1038760 (D.N.J. Mar. 30, 2007), aff’d, 299
F. App’x 190 (3d Cir. 2008).
This matter was removed to this
Court from the Superior Court of New Jersey, Law Division,
Accordingly, the remaining state law claims
will be remanded to the Superior Court of New Jersey, Law
Division, Gloucester County.
The remaining state law claims require an in depth
analysis of applicable New Jersey law.
For the reasons set forth above, this Court will grant the
Motion for Summary Judgment as to the FMLA interference claim
(Count VI of the Amended Complaint) in favor of the Defendants.
The Court declines to exercise supplemental jurisdiction over
all remaining state law claims.
The remaining state law claims
will be remanded to the Superior Court of New Jersey, Law
Division, Gloucester County.
An appropriate Order will issue
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
Dated: June 15, 2016
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