VANALLEN v. PRINT ART INC.

Filing 25

OPINION. Signed by Judge Renee Marie Bumb on 4/11/2017. (dmr)

[Dkt. Nos. 18 and 20]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
MICHAEL J. VAN ALLEN,
Plaintiff,

Civil No. 15-5983 (RMB/AMD)
OPINION

v.
PRINT ART INC.,
Defendant.

Plaintiff Michael Van Allen (“Plaintiff”) filed the within
action against Defendant Print Art Inc., d/b/a Omega High Impact
Print Solutions (“Defendant”), alleging violations of the Family
and Medical Leave Act (“FMLA”) and the New Jersey Law Against
Discrimination (“NJLAD”).

Specifically, Plaintiff asserts that

Defendant violated the FMLA when, in January 2014, Defendant
failed to provide Plaintiff the FMLA-mandated notification of
his right to take a job-protected leave in response to his
notice that he was suffering from a serious medical condition.
Plaintiff further asserts that Defendant then failed to
designate Plaintiff’s FMLA-qualifying absences as same, and
instead fired Plaintiff due to his absences which were FMLAprotected and NJLAD-qualifying.
Defendant has filed a Motion for Summary Judgment [Dkt. No.
18] asserting that Plaintiff’s FMLA claims and NJLAD claims must

1

fail because the medical condition suffered by Plaintiff in
January 2014 did not constitute a serious health condition under
the FMLA or a disability under NJLAD.

Furthermore, Defendant

asserts that it did not deny Plaintiff any benefits under the
FMLA because Plaintiff failed to provide adequate notice to
Defendant that he was suffering from a potentially FMLAqualifying condition.

Plaintiff has disputed these arguments,

and in addition to filing an opposition to Defendant’s Motion
for Summary Judgment, Plaintiff has also cross-moved for partial
summary judgment [Dkt. No. 20].1

For the reasons set forth

below, both motions are denied.
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).

Fed. R.

A fact is “material” if it will “affect the

outcome of the suit under the governing law . . . .”
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Anderson

A dispute is

“genuine” if it could lead a “reasonable jury [to] return a
verdict for the nonmoving party.”

Id.

When deciding the

existence of a genuine dispute of material fact, a court’s role
is not to weigh the evidence: all reasonable “inferences,

Defendant did not file an opposition to Plaintiff’s
motion, nor did Defendant file a reply brief in regard to its
own motion.
1

2

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).
Defendant is in the business of providing commercial
printing, art, and advertising for clients all along the East
Coast of the United States.
Facts (“DSUF”) ¶ 2.

Def.’s Statement of Undisputed

On November 20, 2013, Defendant hired

Plaintiff as a warehouse worker and delivery driver.

Id.

Plaintiff’s job responsibilities required him to stage, load,
deliver, and document all products scheduled for delivery on a
daily basis for Defendant.

Given this nature of employment,

Plaintiff was also required to have a clean driving history.
Id. ¶ 3.
Defendant’s employee attendance policy expressly stated
excessive call-outs from work would result in employee
discipline.

Excessive call-outs are defined as three (3) or

more unscheduled absences from work during a sixty (60) day
period.

Id. ¶ 5.

Between January 1, 2015 and January 21, 2015

(Plaintiff’s termination date), Plaintiff had a total of five
(5) unscheduled call-outs from work.

Id. ¶ 6.

Plaintiff avers that on January 19, 2015, he began to
“suffer from a serious rash appearing on his arms, neck, and
back.”
¶ 33.

Plaintiff’s Counterstatement of Material Facts (“CSMF”),
On that day, at 5:08 a.m., Plaintiff sent a text to his

3

supervisor, Joseph Fernandez, stating “Joe, my son has off of
school for the MLK holiday.

I am going to take the day, to

spend it with him, and drive him home – as he stayed the extra
night with me.

I will be in tomorrow at 7 a.m.”

DSUF ¶ 13.

The next day, January 20, 2015, at 5:40 a.m., Plaintiff sent a
text message to Fernandez stating, “Joe, I tried to leave you a
voicemail, but the system wouldn’t allow it.
emergency last night and got no sleep.

I had a family

I will have to use

another pto day unfortunately . . . so I can get some rest.

You

can call me if you’d like, otherwise I will be in tomorrow.”
Id. ¶ 36.

As is evident from the texts, Plaintiff did not

mention a rash in either text.
During the course of the day on January 20, 2015, Plaintiff
contends that he attempted to seek medical attention for his
medical condition.

Id. ¶ 37.

Plaintiff was able to secure an

appointment at MedCom with a new physician on Wednesday, January
21, 2015.

Id. ¶ 38.

Later, on the same day, January 20, 2015, at 1:30 p.m.,
Plaintiff sent a text message to Fernandez stating, in part,
“Joe, I tried to get an emergency apt. with my doctor, however,
she is on vacation.
eyes, neck.
itching.

I broke out in rashes all over my arms,

It has caused me to lose sleep from intense

I have an apt with her the week I’m on vacation to

address this & my sleep apnea/breathing.

4

Until then I’ll have

to suffer through it.
39.

I tried my best to be seen today.”

Id. ¶

Approximately one-and-one-half hours later, on January 20,

2015, Plaintiff sent a text message to Supervisor Fernandez
stating: “Okay Joe, my doctors [sic] office called me back.
They can get me in at 2:30 tomorrow.

I have to be seen.

I will

have the doctor provide me with a note for the days I’ve been
out.”

Id. ¶ 40.

Defendant terminated Plaintiff’s employment on

January 21, 2015, due to excessive absenteeism.

DSUF ¶ 24.

FMLA Interference
Plaintiff has moved for summary judgment on his FMLA
Interference claim, arguing no disputed facts exist.

In

opposition, Defendant has also moved for summary judgment as to
the FMLA interference claim because: (1) Plaintiff failed to
provide adequate notice to it; and (2) Plaintiff did not suffer
from a “serious health condition” as defined under the FMLA.
The FMLA declares it “unlawful for any employer to interfere
with, restrain, or deny the exercise of or the attempt to
exercise, any right provided” in the FMLA.
2615(a)(1).

29 U.S.C. §

Such a claim is typically referred to as an

“interference” claim, and is acknowledged to “set floors for
employer conduct.”
Cir. 2005).

Callison v. Phila, 430 F.3d 117, 119 (3d

To assert an interference claim, the employee must

show that he was entitled to benefits under the FMLA and that he
was denied them.

Id. at 119 (citing 29 U.S.C. §§ 2612(a),

5

2614(a)).

To invoke rights under the FMLA, an employee must

provide adequate notice to his employer about his need to take
leave.

29 U.S.C. § 2612(e)(2).

In doing so, the employee “need

not expressly assert rights under the FMLA or even mention the
FMLA.”

29 C.F.R. § 825.303(b).

When the leave is unforeseeable, the employee’s obligation
is to “provide sufficient information for an employer to
reasonably determine whether the FMLA may apply to the leave
request.”

Id. (emphasis added).

stringent standard.

This is not a formalistic or

Sarnowski v. Air Brooke Limousine, Inc.,

510 F.3d 398, 402 (3d Cir. 2007).

“[W]here the employer does

not have sufficient information about the reason for an
employee’s use of leave, the employer should inquire further of
the employee . . . to ascertain whether leave is potentially
FMLA-qualifying.”

29 C.F.R. § 825.301(a).

The “‘critical test’

is not whether the employee gave every necessary detail to
determine if the FMLA applies, but ‘how the information conveyed
to the employer is reasonably interpreted.’”

Lichtenstein v.

Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 303 (3d Cir. 2012).
As to Defendant’s first argument, the evidence is
sufficient to establish a genuine dispute as to whether
Plaintiff gave adequate notice.

Plaintiff advised his

supervisor on January 20, 2015 that he tried to get an emergency
appointment with the doctor and that he had broken out in rashes

6

all over.

One-and-one-half hours later, Plaintiff advised that

he had a doctor’s appointment the next day and would provide a
doctor’s note for the days off.

Although Plaintiff’s complaints

to his employer were vague and sometimes (but not always)
entirely non-suggestive of any request for FMLA leave, the
interpretation of all of the communications is exactly that: a
matter of interpretation.

It is not appropriately resolved at

summary judgment, be it through Plaintiff’s motion for summary
judgment or Defendant’s.

See Lichtenstein, 691 F.3d at 303

(“How the employee’s notice is reasonably interpreted is
generally a question of fact, not law.”).

As such, Plaintiff’s

motion for partial summary judgment is denied because he has not
established his right to relief on this disputed element of his
claim.
Turning to Defendant’s second argument in favor of summary
judgment as to this claim, under the FMLA, a “serious health
condition” is defined as “an illness, injury, impairment, or
physical or mental condition that involves-- (A) inpatient care
in a hospital, . . .
care provider.”

or (B) continuing treatment by a health

29 U.S.C. § 2611(11).

A serious health

condition involving continuing treatment by a health care
provider includes any one or more of the following:
(a)

. . . A period of incapacity of more than three
consecutive, full calendar days, and any
subsequent treatment or period of incapacity

7

relating to the same condition, that also
involves:
(1) Treatment two or more times, within 30 days
of the first day of incapacity, unless
extenuating circumstances exist, by a health care
provider, by a nurse under direct supervision of
a health care provider, or by a provider of
health care services . . . under orders of, or on
referral by, a health care provider; or
(2) Treatment by a health care provider on
at least one occasion, which results in a
regiment of continuing treatment under the
supervision of the health care provider.
. . . .
29 C.F.R. § 825.115(a)(1)-(2).
Defendant contends that there is nothing in the record to
suggest that Plaintiff was incapacitated for three or more days
due to his condition.

Plaintiff never went to an emergency room

or urgent care center to seek treatment.

See generally Seigle

v. Provident Mut. Life Ins. Co., 871 F. Supp. 238, 246 (E.D. Pa.
1994) (suggesting minor illnesses are not meant to be protected
by the FMLA); Phinizy v. Pharmacare, 569 F. Supp. 2d 512, 522
(W.D. Pa. 2008) (“Rather, [the plaintiff] suffered from a type
of minor illness lasting for a few days, which Congress sought
to exclude from FMLA coverage”).
Although the jury may very likely conclude that Plaintiff –
who had taken January 19, 2015, off to spend time with his son
and made no mention of his rash – did not suffer from a serious
health condition, this is a genuine dispute of fact that cannot

8

be resolved at the summary judgment stage with the record before
the Court.

See generally Victorelli v. Shadyside Hosp., 128

F.3d 184, 190 (3d Cir. 1997) (“A factfinder may be able
reasonably to find that [the plaintiff] suffers from something
more severe than a ‘minor ulcer’ and as such is entitled to FMLA
As such, Defendant’s motion for summary judgment

protection.”).

as to this claim is also denied.2
FMLA Retaliation
To succeed on an FMLA retaliation claim, a plaintiff must
establish that: (1) he exercised his rights under the FMLA; (2)
there was an adverse employment action; and (3) a causal
connection exists between his protected activity and
termination.

See Conoshenti v. Pub. Serv. Elect. & Gas Co., 364

F.3d 135, 146 (3d Cir. 2004).

If the plaintiff meets the prima

facie burden, a rebuttable presumption of unlawful retaliation
arises and the burden shifts to the defendant to articulate a
legitimate, non-discriminatory reason for the plaintiff’s
termination.

If the defendant then satisfies its burden, the

burden reverts to the plaintiff to show that the proffered
reason for the termination was a pretext for retaliation.

See

Id.

Plaintiff’s motion for partial summary judgment, had it
not been denied because notice is disputed, would additionally
be denied because the nature of Plaintiff’s condition is
disputed.
2

9

Although Defendant’s brief purports to dispute Plaintiff’s
ability to establish a prima facie case, the arguments contained
therein go to pretext.

Def.’s Br. 7-8.

Defendant contends that

it terminated Plaintiff for two reasons: reliability, excessive
absenteeism, and “ly[ing] to Defendant in obtaining the job in
the first place.”

Id.

As Defendant points out, Plaintiff

called out of work five times within a 60-day period.

Defendant

also avers that Plaintiff lied to it in obtaining his job in the
first place by failing to disclose his prior DUI conviction.
There is nothing in the record, however, that demonstrates this
fact was known to Defendant at the time of the firing.

Thus,

Defendant’s inconsistent, after-the-fact justification (failure
to disclose DUI conviction) is sufficiently inconsistent to
create a genuine issue as to whether the reason given by
Defendant for Plaintiff’s termination was pretextual.

As such,

summary judgment on this ground is not appropriate.
NJLAD Failure to Accommodate and Discrimination Claims
With regard to Plaintiff’s NJLAD claims, Defendant argues
that Plaintiff is not “disabled” as defined under the NJLAD.3

An amendment to the NJLAD “replaced statutory references
to a ‘handicap’ with the term ‘disability.’” Russo v. Chico’s
FAS, Inc., Civ. No. 10-1624 (MLC), 2011 WL 4901357, at *7, n.5
(D.N.J. Oct. 14, 2011) (citing 2003 N.J. Sess. Law Serv. Ch. 180
(Assembly 3774 (West)); State v. Dixon, 933 S.2d 978, 984 (N.J.
App. Div. 2007) (noting that “handicap” as it was defined was
“essentially the same” to the “disability” definition).
3

10

Under the NJLAD, a disability is defined as any “physical
disability, infirmity, malformation or disfigurement which is
caused by bodily injury . . . which prevents the normal exercise
of any bodily or mental functions or is demonstrable, medically
or psychologically, by accepted clinical or laboratory
diagnostic techniques.”

N.J. Stat. § 10:5-5(q).

NJLAD’s

definition of disability is very broad and does not require that
a disability restrict any major life activities to any degree.
Enriquez v. West Jersey Health Systems, 342 N.J. Super. 501,
519, 777 A.2d 365 (App. Div. 2001); see also Viscik v. Fowler
Equip. Co., 173 N.J. 1, 16 (2002) (“The term ‘handicapped’ in
LAD is not restricted to ‘severe’ or ‘immutable’ disabilities
and has been interpreted as significantly broader than the
analogous provisions of the Americans with Disabilities Act.”);
Failla v. Passaic, 146 F.3d 149, 153-54 (3d Cir. 1998) (jury’s
conclusion that plaintiff, who suffered from a back injury, was
not disabled within the meaning of the ADA was not inconsistent
with its finding that he had a “handicap” under the NJLAD).
There exists a genuine issue of whether Plaintiff suffered
a disability within the meaning of NJLAD.

Again, although it is

quite likely that a jury will conclude that Plaintiff’s rash was
a medical condition that did not rise to the definition of a
disability within the purview of NJLAD for the reasons set forth
by Defendant – the day off Plaintiff spent with his son, the

11

late dated doctor’s note, and the lack of medical documentation
– these are facts that must be weighed by a jury and it
therefore remains a disputed material fact.

Summary judgment on

these claims is therefore not appropriate.4
CONCLUSION
Accordingly, for the foregoing reasons Defendant’s Motion
for Summary Judgment [Dkt. No. 18] and Plaintiff’s Motion for
Partial Summary Judgment [Dkt. No. 20] are both denied.

Defendant’s argument that Plaintiff did not suffer an
adverse employment action “because” of his purported disability,
but rather his absenteeism, is not meritorious at summary
judgment. In addition to being made without citation to any
authority and no reply briefing in response to Plaintiff’s
arguments, it is well-established that a request for leave of
absence can be a request for accommodation under the NJLAD.
Dinardo v. Medco Health Solutions, Inc., Civ. No. 14-5716, 2016
WL 2994092, *2 (D.N.J. May 24, 2016). If a disabled employee
reasonably requests a leave of absence and the employer
terminates him because a leave of absence runs contrary to the
employer’s business philosophy “where punctuality and
reliability [are] paramount to the success of [the] business,”
the employer has failed to accommodate. Whether Plaintiff truly
requested an accommodation is not an argument discussed by
Defendant and, as noted, Defendant declined the opportunity to
file a reply brief.
Additionally, Defendant’s argument that Plaintiff was not
qualified for his position because he missed work, without more
– and Defendant argues nothing more – is insufficient.
Defendant cites no case law to support the broad theory that
solely because an employee misses work due to a disability, the
employee is not qualified for the job because the broad notion
of “punctuality” is important to the employer. Def.’s Br. at
10-11; Joseph v. N.J. Transit Rail Ops. Inc., 586 F. App’x 890,
892 (3d Cir. 2014) (employee must be “otherwise” qualified to
perform the essential functions of the job).
4

12

s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

Dated: April 11, 2017

13