DEMENT v. TOWNSHIP OF HADDON et al

Filing 26

OPINION. Signed by Judge Robert B. Kugler on 11/17/2016. (dmr)

NOT FOR PUBLICATION

(Doc. Nos. 19, 20, 21)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
_____________________________________
:
JASON DEMENT,
:
Plaintiff,
:
:
Civil No. 15-6107 (RBK/KMW)
v.
:
TOWNSHIP OF HADDON;
:
MARK CAVALLO; and
:
JOHN DOES 1-10,
:
OPINION
Defendants.
:
____________________________________ :
KUGLER, United States District Judge:
This matter comes before the Court on Defendant Township of Haddon (“the
Township”)’s Motion to Dismiss of (Doc. No. 19) and Defendant Mark Cavallo (“Cavallo”)’s
Amended Motion to Dismiss (Doc. No. 21). In his First Amended Complaint, Plaintiff Jason
DeMent (“DeMent”) asserts eight claims, including seven under the New Jersey Law Against
Discrimination (“NJLAD”) and one claim under federal law, namely the Family and Medical
Leave Act (“FMLA”). For the reasons stated herein, Defendants’ Motions to Dismiss will be
GRANTED IN PART as to Count 6.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY1
This suit concerns circumstances surrounding DeMent’s employment with the Haddon
Township Police Department, where he actively served as a police officer from April 2004 until
his suspension on June 12, 2015. First Amended Compl. (“FAC”) ¶ 10 (Doc. No. 18). DeMent

1. On a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must
“accept all factual allegations as true and construe the complaint in the light most favorable to
the Plaintiff.” Phillips v. Cty. Of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). Accordingly, for
purposes of this motion, the Court adopts and accepts as true the facts as pled in the Complaint.
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suffers from Stargardt’s Disease, a condition that causes the gradual deterioration of his visual
acuity. Id. ¶ 12. For much of his tenure with the Township’s police department, DeMent’s
condition had no impact on his ability to perform his duties successfully. Id. ¶ 14. DeMent
consistently received excellent performance reviews prior to his suspension. Id. ¶ 11.
On June 12, 2015, DeMent met with Defendants to inform them of his condition and his
ability and desire to continue serving as a police officer. Id. ¶ 24. DeMent requested that
Defendants accommodate him with modified work duty until he could undergo treatment in a
clinical trial on a future date. Id. ¶ 25. DeMent previously performed periods of light duty
because of an unrelated injury and believed that he could be useful to the department in such a
capacity again.2 Although he was adamant that he was able and willing to perform such light
duty, he did inform Defendants that a medical leave of absence may be necessary in the future so
he could undergo treatment in a clinical trial. Id. ¶ 28. Defendants declined to afford DeMent
modified work duty and suspended him without pay on June 12, 2015. Id. ¶¶ 30-31. DeMent
began using the paid time off (“PTO”) that he had previously accrued. Id.
Shortly thereafter, DeMent met with Dr. Carl D. Regillo (“Dr. Regillo”), a physician at
Wills Eye Hospital. Id. ¶ 32. Dr. Regillo confirmed that DeMent could continue working but
should refrain from driving at night or in unfamiliar areas and also expressed the possibility that
future stem cell treatment could improve his vision acuity. Id. ¶¶ 33-34. DeMent provided Dr.

2. Around December 2012, Plaintiff injured his shoulder on the job and had to undergo multiple
surgeries. He received modified work duty for various periods from December 2012 to March
2014, totaling approximately nine months. His duties included “walk-in reports, phone calls,
warrant committals, arrest processing, report purging, car titles, [o]rdinance enforcement, vehicle
maintenance, equipment grants, agency training of new officers, and firearm investigations.”
Compl. ¶¶ 15-16.
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Regillo’s findings to Defendants, but they again declined to allow him to return to work with
modified duties. Id. ¶¶ 35-36.
DeMent continued to request that he be allowed to return to work with temporary
accommodations, Id. ¶¶ 37-42, but Defendants were concerned that providing DeMent with
accommodations would require them to do so for every officer who thereafter was injured off
duty. Id. ¶ 43. On August 5, 2015, Defendants informed Plaintiff that he was being placed on
involuntary FMLA leave immediately and would be terminated after October 28, 2015. Id. ¶ 47.
During his tenure with the Haddon Township Police Department, Plaintiff was allegedly
sexually harassed by Defendant Cavallo. Id. ¶¶ 40, 51, 57. Cavallo’s treatment of Plaintiff
included inappropriate touching, sexual advances, and inappropriate text messages. Id. Plaintiff
believes that he was ultimately denied accommodations because he did not reciprocate Cavallo’s
sexual advances. Id. ¶¶ 51, 58.
On August 10, 2014, Plaintiff filed the instant suit against the Township and Chief
Cavallo. Compl. (Doc. No. 1). Plaintiff filed his First Amended Complaint on February 29, 2016.
In his FAC, Plaintiff brings multiple claims under the New Jersey Law Against Discrimination,
including claims for sexual harassment (Count One), failure to provide reasonable
accommodations (Count Two), wrongful termination because of his disability (Count Three),
wrongful termination because of the perception of his disability (Count Four), retaliation for
alleging discrimination based on his disability (Count Five), wrongful termination because of his
complaints of sexual harassment (Count Seven), and refusal to provide accommodations because
of his complaints of sexual harassment (Count Eight). He also brings a claim for interference and
wrongful discharge/retaliation/discrimination under the Family and Medical Leave Act (Count
Six).

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Defendants moved to dismiss Counts Two through Eight of Plaintiff’s FAC under
Federal Rule of Civil Procedure 12(b)(6) on March 14, 2016. Having been briefed by the parties,
the issues are now ripe for the Court’s review.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss an action for failure to
state a claim upon which relief can be granted. When evaluating a motion to dismiss, “courts
accept all factual allegations as true, construe the complaint in the light most favorable to the
plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff
may be entitled to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)
(quoting Phillips, 515 F.3d at 233)). In other words, a complaint is sufficient if it contains
enough factual matter, accepted as true, to “state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). It is not for courts to decide at this point whether the moving party will succeed on the
merits, but “whether they should be afforded an opportunity to offer evidence in support of their
claims.” In re Rockefeller Ctr. Props., Inc., 311 F.3d 198, 215 (3d Cir. 2002). Yet, while
“detailed factual allegations” are unnecessary, a “plaintiff’s obligation to provide the ‘grounds’
of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (alteration
in original) (citations omitted).
To make this determination, a court conducts a three-part analysis. Santiago v.
Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010). First, the court must “tak[e] note of the
elements a plaintiff must plead to state a claim.” Id. (quoting Iqbal, 556 U.S. at 675). Second, the
court should identify allegations that, “because they are no more than conclusions, are not

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entitled to the assumption of truth.” Id. (quoting Iqbal, 556 U.S. at 680). Finally, “where there
are well-pleaded factual allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement for relief.” Id. (quoting Iqbal, 556 U.S. at 680).
This plausibility determination is a “context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. A complaint cannot
survive where a court can infer only that a claim is merely possible rather than plausible. Id.
III. DISCUSSION
A. Violations of the Family and Medical Leave Act (Count Six)
The FMLA is meant, in part, “to entitle employees to take reasonable leave for medical
reasons.” 29 U.S.C. § 2601(b)(2). As such,
the FMLA 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. Eligible employees “shall be entitled to a
total of twelve workweeks of leave during any twelve-month period” if the
employee has a “serious health condition that makes the employee unable to
perform the functions of such employee.” 29 U.S.C. § 2612(a)(1)(D). Following
a qualified absence, the employee is entitled to be reinstated to the former
position or an alternate one with equivalent pay, benefits and working
conditions. 29 U.S.C. § 2614(a)(1).
Figueroa v. Merritt Hospitality, LLC, No. 11-1807, 2011 WL 4389585, at *3 (D.N.J.
Sept. 21, 2011) (quoting Callison v. City of Phila., 430 F.3d 117, 119 (3d Cir. 2005)
(internal citation omitted)).
Involuntary Leave Claim
To state an involuntary leave/interference claim, “a plaintiff must plead that: (1) she was
an eligible employee under the FMLA; (2) the defendant-employer was subject to the
requirements of the FMLA; (3) she was entitled to leave under the FMLA; (4) she gave notice to
the defendant of her intention to take FMLA leave; and (5) she was denied the benefits to which

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she was entitled under the FMLA.” Figueroa, 2011 WL 4389585, at *3 (citing Weisman v.
Buckingham Twp., No. Civ. A. 04-cv-4719, 2005 WL 1406026, at *4 (E.D. Pa. June 14, 2005)).
In other words, “[t]o succeed on an interference claim, a plaintiff must demonstrate that he or she
was entitled to and denied some benefit under the FMLA.” Erdman v. Nationwide Ins. Co., 582
F.3d 500, 508 (3d Cir. 2009) (alteration in original) (quoting Erdman v. Nationwide Ins. Co., 510
F. Supp. 2d 363, 370 n.4 (M.D. Pa. 2007)).
DeMent’s FMLA interference claim is summarized as follows:
[b]y forcing Officer DeMent into an FMLA leave and by stating that no
other accommodation or time off would be provided, Defendants interfered with
Plaintiff’s entitled right to take a protected medical leave when he actually
required it in the future, i.e. when he underwent the stem cell transplant
procedure(s).

FAC ¶ 46. In other words, DeMent raises an “involuntary leave” claim, which the Third Circuit
has not yet recognized as a cause of action.3 See Figueroa, 2011 WL 4389585, at *3 (declining
to address the involuntary leave claim in light of other pleading deficiencies). Other Circuit
Courts have addressed FMLA claims under an involuntary-leave theory. For example, the Sixth
Circuit in Wysong v. Dow Chemical Co., noted that an involuntary leave claim is “really a type
of interference claim” which “ripens only when and if the employee seeks FMLA leave at a later
date, and such leave is not available because the employee was wrongfully forced to use FMLA
leave in the past.” 503 F.3d 441, 449 (6th Cir. 2007); see also, Walker v. Trinity Marine Prods.,
Inc., 721 F.3d 542, 544-45 (8th Cir. 2013) (“In our view, if forced leave can amount to
interference with a right provided under the FMLA, it can do so only if the employer’s action

3. The Court notes that there are no apparent cases addressing this matter from the Third Circuit
since the Figueroa Court conducted a similar search in 2011. Defendants also note that the Third
Circuit has not recognized such a claim. See Twp.’s Br., at 16 (Doc. No. 19-1).
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prevents the employee from using benefits to which she is entitled under the Act.”); Grace v.
Adtran, Inc., 470 Fed. App’x. 812, 814 n.3 (11th Cir. 2012) (noting that appellant failed to
demonstrate a ripe FMLA claim based on the holding in Wysong).
Like the court in Figueroa, the Court finds that it need not address the viability of
DeMent’s “involuntary leave” claim because he has not successfully plead the aforementioned
elements of an interference claim. DeMent has not plead that he was denied the benefits to which
he was entitled under the FMLA because, in notifying Defendants that he may need future
FMLA leave, he was not requesting a specific future leave. “At most [he] was anticipating . . .
the likelihood of needing to request FMLA leave in the future sometime.” Figueroa, 2011 WL
4389585, at *3. In sum, despite DeMent’s alleged unsavory treatment at the hands of
Defendants, he has not sufficiently plead that the alleged involuntary leave interfered with any of
his rights under the FMLA.
Furthermore, even under the test articulated in the Sixth Circuit, DeMent has not plead a
ripe claim for involuntary leave. First, he has not plead that he does not suffer from a serious
health condition, so it is not clear that his employer forced him to take leave in the absence of a
serious health condition. Second, even if his limitations are not considered a serious health
condition, his claim has not ripened because he has not been denied FMLA leave at a later date
as a result of his involuntary leave.
Wrongful Termination/Retaliation/Discrimination
As a threshold matter, Plaintiff argues that Defendant has failed to raise an argument to
dismiss his amended FMLA as to wrongful termination based on discrimination and retaliation
and that it would be unfair for Defendants to make an argument regarding this portion of the
claim for the first time in their reply brief. Pl.’s Opp’n Br., at 19-20 (Doc. No. 23); FAC ¶ 163.

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Defendants correctly note that they did, in fact, address the FMLA wrongful
termination/retaliation claim in their initial motion to dismiss. Twp.’s Reply Br., at 8-9 (Doc. No.
24); Twp.’s Br., at 2, 15.
Unlike FMLA interference claims, the Third Circuit has addressed the requirements to
make out a FMLA retaliation claim.4 The Third Circuit has stated that a plaintiff must prove that
“(1) []he invoked h[is] right to FMLA-qualifying leave, (2) []he suffered an adverse employment
decision, and (3) the adverse action was causally related to h[is] invocation of rights.”
Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 301-02 (3d Cir. 2012) (citing
Erdman, 582 F.3d at 508-09 (modifying Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d
135, 146 (3d Cir. 2004))). The Court finds the comparison between the instant case and Erdman
instructive. The plaintiff’s claims in Erdman, which also raised both interference and retaliation
claims under the FMLA, are notably different from DeMent’s claims. The Erdman plaintiff
submitted paperwork to request FMLA leave to which she was entitled, but was fired before the
leave was scheduled to begin. The Third Circuit held that “firing an employee for a valid request
for FMLA leave may constitute interference with the employee’s FMLA rights as well as
retaliation against the employee.” 582 F.3d at 509. Here, DeMent received FMLA leave—albeit
involuntarily—and was not terminated prior to taking his leave. As discussed above, Plaintiff did
not invoke his right to FMLA-qualifying leave, but rather, told his employer that FMLAqualifying leave would be requested in the future.

4. The Court notes that discrimination and retaliation are two names for the same claim in the
FMLA context. See Medley v Cty. of Montgomery, No. 12-1995, 2012 WL 2912307, at *1 n.1
(E.D. Pa. July 17, 2012). The Court also notes that wrongful termination is a means of retaliation
under the FMLA. See Capilli v. Whitesell Const. Co., 271 Fed. App’x 261, 264-65 (3d Cir. 2008)
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Accordingly, the Court dismisses DeMent’s FMLA claim as to both interference and
discrimination/retaliation/wrongful discharge.
B. State Law Claims
The Third Circuit has held that “where the claim over which the district court has original
jurisdiction is dismissed before trial, the district court must decline to decide the pendent state
claims unless considerations of judicial economy, convenience, and fairness to the parties
provide an affirmative justification for doing so.” Hedges v. Musco, 204 F.3d 109, 123 (3d Cir.
2000) (quoting Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995)).
Plaintiff’s sole claim under federal law has been dismissed, and there is no affirmative
justification for this Court to retain supplemental jurisdiction over the state law claims this early
in the litigation. As such, the Court declines to exercise supplemental jurisdiction pursuant to 28
U.S.C. § 1367(c)(3). Counts One through Five and Counts Seven and Eight are therefore
dismissed without prejudice.
IV. CONCLUSION
For the reasons stated herein, Defendant Township of Haddon’s Motion to Dismiss (Doc.
No. 19) and Defendant Mark Cavallo’s Amended Motion to Dismiss (Doc. No 21) are
GRANTED IN PART as to Count Six. Count Six is DISMISSED. Counts One, Two, Three,
Four, Five, Seven, and Eight are DISMISSED WITHOUT PREJUDICE. All Counts against
John Doe Defendants 1-10 are DISMISSED WITHOUT PREJUDICE.

Dated:

11/17/2016

s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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