CARUSO v. BALLY'S ATLANTIC CITY

Filing 65

OPINION. Signed by Judge Noel L. Hillman on 9/27/2019. (tf, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

NICOLE CARUSO,
HONORABLE NOEL L. HILLMAN
Plaintiff,
v.

Civil Action
No. 16-05021 (NLH/KMW)

BALLY’S ATLANTIC CITY a/k/a
CAESARS ENTERTAINMENT CORP.,
OPINION
Defendant.

APPEARANCES
David Mikel Koller
KOLLER LAW LLC
2043 Locust Street
Suite 1B
Philadelphia, PA 19103
Attorney for Plaintiff
Amy Elizabeth Rudley
Russell L. Lichtenstein
Justin A. Britton
COOPER LEVENSON, P.A.
1125 Atlantic Avenue
Third Floor
Atlantic City, NJ 08401
Attorneys for Defendant

HILLMAN, District Judge:
I.

INTRODUCTION

The Family Medical Leave Act (hereinafter “FMLA”), 29
U.S.C. § 2601, allows employees to take up to twelve weeks of

medical leave in a year without losing their jobs and prohibits
employers from interfering with an employee’s FMLA rights.

In

this case, Plaintiff Nicole Caruso (hereinafter “Plaintiff”),
who was employed by Defendant Bally’s Atlantic City (hereinafter
“Defendant”) as a bartender, alleges that Defendant violated her
rights under the FMLA and under the New Jersey Family Leave Act
(hereinafter “NJFLA”) when it terminated her on February 9, 2016
and May 30, 2017, both occurring shortly after she missed work,
due to migraine headaches.
Presently before the Court is Defendant’s motion for
summary judgment [Docket Item 45], which challenges all Counts
of Plaintiff’s Amended Complaint [Docket Item 22].
opposes the motion.

Plaintiff

(See Pl.’s Opp’n [Docket Item 49].)

For

the reasons set forth below, the Court will deny Defendant’s
motion for summary judgment as to Counts 1 and 2 and grant
Defendant’s motion for summary judgment as to Count 3.
Plaintiff’s NJFLA retaliation claim will be dismissed.
II.

BACKGROUND
A. The Family Medical Leave Act

Congress passed the FMLA in 1993 in an attempt “to balance
the demands of the workplace with the needs of families.”
U.S.C. § 2601(b)(1).

29

The FMLA allows “employees to take

reasonable leave for medical reasons.”

Id. at § 2601(b)(2).

However, it also requires that all such leave be taken “in a

2

manner that accommodates the legitimate interests of employers.”
Id. at § 2601(b)(3).
FMLA-eligible employees are allowed to take twelve weeks of
leave during any twelve-month period.

Leave is covered under

the FMLA if an employee has a “serious health condition that
makes the employee unable to perform the functions” of his or
her job.

Id. at § 2612(a)(1)(D).

Following this period of

leave, an employee is entitled to be restored to his or her
original position or its equivalent.

Id. at § 2614(a)(1).

The FMLA allows for “intermittent leave,” defined as “leave
taken in separate blocks of time due to a single qualifying
reason,” when medically necessary.

29 C.F.R. § 825.202(a).

Federal regulations note that intermittent leave “may include
leave of periods from an hour or more to several weeks.”
§ 825.202(b)(1).

Id. at

Examples of intermittent leave may include

leave taken for medical appointments or for regular medical
treatments.

Id.

Under the FMLA, employers may not deny leave to employees
who qualify, nor may they retaliate against employees who
exercise their rights under the FMLA.

29 U.S.C. § 2615.

B. Factual Background
Plaintiff Nicole Caruso was hired by Defendant Bally’s
Atlantic City as a bartender in or around the Spring of 2010.
(See Am. Compl. [Docket Item 22], ¶ 13; see also Answer to Am.

3

Compl. [Docket Item 26], ¶ 13.)

She suffered from migraines

during her employment with Defendant.
22], ¶ 15.)

(Am. Compl. [Docket Item

By January 2016, Plaintiff’s condition had

escalated to the point that she needed to take time off from
work.

(Id. at ¶ 16.)

The same month, Ashley Joas (hereinafter “Joas”), a manager
for Defendant issued Plaintiff three separate disciplinary
actions.

(Joas Dep., Pl’s Ex. B [Docket Item 49-4], 89:19-22.)

Aware that Plaintiff was on FMLA leave, Joas issued Plaintiff a
write-up for using obscene language and creating an unhealthy
workplace environment, (id. at 77:12-18), for using her cell
phone at work, (id. at 81:17-23), and for failing to use
appropriate language and tone while addressing her managers.
(Id. at 85:25-86:7.)

Plaintiff complained that the separate

disciplinary actions were excessive and Joe Procopio, a labor
relations representative for Defendant, informed Joas that she
should have issued a single write-up that addressed all of
Plaintiff’s misconduct.

(Id. at 90:23-25, 93:4-6.)

Joas

testified that she issued each discipline separately “to make
sure that each one was clear” but “could have put them all into
one document.”

(Id. at 89:16-18.)

Joas told Procopio that she

would comply with his instruction in the future.

(Id. at 93:7.)

On January 12, 2016, Plaintiff took FMLA leave in response
to her migraines and subsequently applied for intermittent leave

4

pursuant to the FMLA.

(Am. Compl. [Docket Item 22], ¶¶ 17-18.)

In late January, Defendant notified Plaintiff that her request
was approved through December 26, 2016.

(Id. at ¶ 19.)

Plaintiff returned to work from her initial period of FMLA
leave on February 2, 2016.

(Id. at ¶ 21.)

Plaintiff alleges

that, during a shift on February 5, 2016, after invoking her
intermittent FMLA leave, Joas stated to Plaintiff: “You just
can’t up and leave anytime you want because of FMLA.”
23.)

(Id. at ¶

Plaintiff testified in her deposition that, before ending

her shift for that night, and noticing that sour mix was
“curling in [an alcoholic] drink” that she had made, Plaintiff
suspected that the mix had gone bad.
[Docket Item 45-1], 81:15-82:21.)

(Pl.’s Dep., Def.’s Ex. A

Plaintiff then transferred

the drink from a glass container into a plastic cup, assertedly
in order to alert her manager about the spoiled mix.

(Pl.’s

Dep., Ex. A [Docket Item 35-1], 85:17-19, 95:4-8.) 1 Plaintiff
placed the cup in the back bar, but a manager had not been
informed of the expired sour mix until after Plaintiff was
suspended.

(Id. at 95:4-10.)

1

Defendant also provided four hours of surveillance video
recordings in support of its motion for summary judgment, in a
CD referred to as “Exhibit B.” As the video is not necessary to
decide the present motion, and as Defendant refers only
generally to the four hours of video, without providing the
Court with a specific timestamp containing allegedly relevant
evidence Court will not refer to the video further in this
opinion.
5

Another bartender, Stephanie Mills (hereinafter “Mills”),
notified Joas that Plaintiff “was drinking behind the bar.”
(Joas Dep., Pl.’s Ex. B [Docket Item 49-4], 107:13-14.)

Mills,

who may have been required to cover Plaintiff’s shifts at times
while Plaintiff utilized FMLA leave, (Edley Dep., Pl.’s Ex. A
[Docket Item 49-4], 45:16-18), did not get along with Plaintiff.
(Joas Dep., Pl.’s Ex. B [Docket Item 49-4], 25:23-26:3.)

Joas

examined the cup and, realizing that the drink was a specialty
cocktail, took a sample of it in another cup and delivered it to
her direct supervisor, Jerry Beaver.

(Id. at 107:15-19.)

Plaintiff acknowledges that, to confirm her suspicions about the
sour mix, she took a sip of the drink from the plastic cup.
(Pl.’s Dep., Def.’s Ex. A [Docket Item 45-1], 95:11-23.)
Plaintiff claims that she then determined that the drink was
indeed bad and thereafter proceeded to dispose of it down the
sink, which, being off-camera, was not caught in the
surveillance video provided to the Court.

(Id. at 78:23-79:1,

82:21-82:1, 95:13-15.)
Plaintiff testified at her deposition that she was well
aware that employees may and have been fired for drinking on the
job, (Pl.’s Dep., Def.’s Ex. A [Docket Item 45-1], 74:7-12), but
that this was not the case here.

(Id. at 124:17.)

She contends

that her action was “part of the bartender’s job” and that
“bartenders take sips of drinks all the time to see if it was

6

bad.”

(Id. at 124:19-22.)

However, just as Plaintiff was

getting ready to end her shift early pursuant to her
intermittent FMLA leave, she was approached by members of
Defendant’s security team and Jerry Beaver (hereinafter
“Beaver”), Defendant’s Director of Food and Beverage.
Compl. [Docket Item 22], ¶ 27.)

(Am.

Beaver informed Plaintiff that

she was being suspended pending investigation for drinking on
the job.

(Id. at ¶ 28.)

Plaintiff alleges that Joas, along

with Stephanie Mills and Randy Panckeri, two of Plaintiff’s coworkers, were tasting tequila during the same shift yet were not
disciplined.
allegation.

(Id. at ¶ 30-31.)

Defendant denies this

(Answer to Am. Compl. [Docket Item 26], ¶ 31.)

On February 9, 2016, Cori Edley, the Beverage Operations
Manager for Defendant (hereinafter “Edley”) called Plaintiff,
notifying her that she had been terminated.
Item 22], ¶ 33.)

(Am. Compl. [Docket

Plaintiff filed a grievance with her union

shortly afterwards.

(Id. at ¶ 35.)

A grievance settlement

agreement was signed on December 14, 2016, (see Grievance
Settlement Agreement, Def.’s Ex. C [Docket Item 45-1]), and
Plaintiff returned to work on or around December 20, 2016.
Compl. [Docket Item 22], ¶ 36.)

7

(Am.

Subsequently, on May 20, 2017, Plaintiff was working a
bartending shift.

(Id. at ¶ 37.) 2 Plaintiff claims that only one

other bartender, Maya, 3 was scheduled for the shift and that Maya
had taken a 45-minute break during the incident in question.
(Am. Compl. [Docket Item 22], ¶ 35.)
allegation.

Defendant denies this

(Answer to Am. Compl. [Docket Item 26], ¶ 35.)

During Maya’s alleged break, a table of six customers sat down
to be served.

(Am. Compl. [Docket Item 22], ¶ 35.)

Plaintiff

testified that she was instructed to provide complimentary
drinks by the Beverage Manager, John Dougherty (hereinafter
“Dougherty”).

(Id. at ¶ 41.)

Despite the enumerated policies

on ringing up items at the bar, (see Check and Cash Handling
Procedures, Def.’s Ex. D [Docket Item 45-1]), Plaintiff
testified that Dougherty instructed Plaintiff not to ring up the
complimentary drinks before the drinks were served, saying that
he would “take care of it.”
Item 49-4], 213:23-24.)

(Pl.’s Dep., Pl.’s Ex. C [Docket

Plaintiff asserts that the customers

who received the complimentary drinks tipped her $40, which she

2

Based on the chronological flow of the Amended Complaint and on
other documents submitted in connection with the present motion,
the Court will assume that the shift in question here occurred
in May 2017, rather than in May 2016, as stated in the Amended
Complaint.
3

The last name of this individual is not indicated in the
record. Therefore, the Court will refer to her simply by her
first name: “Maya.”
8

split with a waitress named “Tiffany,” who had assisted
Plaintiff while Maya was on break.

(Am. Compl. [Docket Item

22], ¶ 42-43.)
Plaintiff contends that she utilized her intermittent FMLA
leave the next day, May 21, 2017.

(Id. at ¶ 44.)

She alleges

that, on the same day, she received a text message from
Dougherty stating, “Stop pulling FMLA on the new girl!!!!!!”
(Id. at ¶ 45.)

Plaintiff returned to work on May 22 and 23

without issue.

(Id. at ¶ 46.)

On May 26, Edley summoned

Plaintiff to her office where Plaintiff met with Edley and the
Shop Steward, Tammy Brennan (hereinafter “Brennan”).
47.)

(Id. at ¶

With Defendant’s Surveillance Director present, Plaintiff

was shown a surveillance video of her May 20, 2017 shift.
at ¶ 51.)

(Id.

Edley then suspended Plaintiff pending an

investigation of “some questionable transactions” (Edley Dep.,
Pl.’s Ex. A [Docket Item 49-4], 117:14.)

Edley testified that

the delay in addressing the incident was due to not having been
notified until after Plaintiff had departed for the night on May
20, as well as “[t]he director of security [being] off Sunday
[and] Monday and [Plaintiff]’s days off that week [being]
Wednesday [and] Thursday.”

(Id. at 114:19-24.)

On May 30, 2017, Edley contacted Plaintiff, informing her
that she was terminated from employment.
Item 22], ¶ 53.)

(Am. Compl. [Docket

While the termination letter does not specify

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the nature of the incidents, (id. at ¶ 55), Defendant has stated
that the termination was due to “various violations of Bally’s
policies including those relating to recording transactions and
cash handling.”

(Answer to Am. Compl. [Docket Item 26], ¶ 52.)

In her deposition, Edley indicated that Plaintiff’s alleged
infractions included “[g]iving patrons alcoholic beverages and
not ringing them into the point of sale system, inaccurately
ringing for products given out . . . , [and] giving cans of beer
[that cost] $6.50 and only charging draft prices.”

(Edley Dep.,

Pl.’s Ex. A [Docket Item 49-4], 119:11-17; see also Incident
Report, Def.’s Ex. E [Docket Item 45-1].)

Defendant further

alleges that the $40 “tip” given to Plaintiff was
inappropriately pocketed and “should have been inputted in the
register.”

(Edley Dep., Pl.’s Ex. A [Docket Item 49-1], 183:16-

18.)
C. Procedural History
Plaintiff now claims that both of her terminations, in
February 2016 and May 2017, constituted unlawful interference
with her FMLA rights.

(Am. Compl. [Docket Item 22], ¶ 57.)

She

also contends that she was fired as a form of retaliation for
invoking her FMLA leave, with her alleged violations of company
policy serving as merely a pretext.
50], 19-20.)

10

(Pl.’s Opp’n [Docket Item

Plaintiff filed her Amended Complaint [Docket Item 22], on
August 31, 2017.

Count 1 of the Amended Complaint alleges

interference with Plaintiff’s FMLA rights.
Item 22], ¶ 58-68.)

Count 2 alleges discrimination/retaliation

in violation of the FMLA.
80.)

(Am. Compl. [Docket

(Am. Compl. [Docket Item 22], ¶ 69-

Count 3 claims retaliation in violation of the NJFLA.

(Am. Compl. [Docket Item 22], ¶ 81-91.)

Plaintiff seeks all

available equitable relief, including reinstatement of job
position, full restoration of all leave and health benefits, any
additional unpaid leave up to the maximum permitted by the FMLA,
and costs related to the instant action against Defendant.
Defendant filed an Answer to the Amended Complaint [Docket Item
26], on November 2, 2017.
On September 21, 2018, Defendant filed the instant motion
for summary judgment [Docket Item 45].

Plaintiff has filed an

opposition brief and Defendant has filed a brief in reply.

The

matter is now ripe for review.
III. JURISDICTION
The Court has subject matter jurisdiction over this action
under 28 U.S.C. § 1331, because Counts 1 and 2 allege violations
of a federal statute.

The Court has supplemental jurisdiction

over Plaintiff's state-law claim that arises out of the same
case or controversy, pursuant to 28 U.S.C. § 1367.

11

IV.

STANDARD OF REVIEW

At summary judgment, the moving party bears the initial
burden of demonstrating that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.

Fed. R. Civ. P. 56(a); accord Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986).

Once a properly supported

motion for summary judgment is made, the burden shifts to the
non-moving party, who must set forth specific facts showing that
there is a genuine issue for trial.

Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 250 (1986).
A factual dispute is material when it “might affect the
outcome of the suit under the governing law,” and genuine when
“the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.”

Id. at 248.

The non-moving

party “need not match, item for item, each piece of evidence
proffered by the movant,” but must present more than a “mere
scintilla” of evidence on which a jury could reasonably find for
the non-moving party.

Boyle v. Cty. of Allegheny, 139 F.3d 386,

393 (3d Cir. 1998) (quoting Anderson, 477 U.S. at 252).
In evaluating a motion for summary judgment, the Court must
view the evidence in the light most favorable to the non-moving
party, here the plaintiff, and must provide that party the
benefit of all reasonable inferences.

Scott v. Harris, 550 U.S.

372, 378 (2007); Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d Cir.

12

2014).

However, any such inferences “must flow directly from

admissible evidence [,]” because “‘an inference based upon [ ]
speculation or conjecture does not create a material factual
dispute sufficient to defeat summary judgment.’” Halsey, 750
F.3d at 287 (quoting Robertson v. Allied Signal, Inc., 914 F.2d
360, 382 n.12 (3d Cir. 1990); citing Anderson, 477 U.S. at 255).
V.

DISCUSSION

An employer may be sued under the FMLA for interfering with
an employee's FMLA rights, as well as for retaliating against an
employee who exercises rights under the FMLA.

Lupyan v.

Corinthian Colleges Inc., 761 F.3d 314, 318 (3d Cir. 2014).
“[F]iring 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.”

Erdman v. Nationwide Ins.

Co., 582 F.3d 500, 509 (3d Cir. 2009). Plaintiff asserts both
interference and retaliation claims.
A. FMLA Retaliation
The FMLA prohibits employers from discriminating against
employees who have taken FMLA leave, and also prohibits
employers from using an employee’s utilization of FMLA leave as
a negative factor in employment actions, such as hiring,
promotion, or disciplinary actions.

29 U.S.C. § 2615(a)(2); 29

C.F.R. § 825.220(c); see also Hodgens v. Gen. Dynamics Corp.,
144 F.3d 151, 159–60 (1st Cir. 1998).

13

To establish a

retaliation claim under the FMLA, a plaintiff must first
establish a prima facie case of retaliation by demonstrating
that: (1) she availed herself of a protected right under the
FMLA; (2) she suffered an adverse employment action; and (3) the
adverse action was causally related to the plaintiff's FMLA
leave.

Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135,

146 (3d Cir. 2004).
Once a prima facie case has been established, the burden
shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for the adverse action.

Moore v. City

of Philadelphia, 461 F.3d 331, 342 (3d Cir. 2006) (quoting
Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500–01 (3d Cir.
1997)).

If the defendant is successful in articulating a

legitimate, nondiscriminatory reason for the adverse action, the
burden then shifts back to the plaintiff, who must show that the
employer’s proffered reason is only pretext and that the
employer’s real reason for the adverse action was to retaliate
against the employee for taking FMLA leave.

Hodgens, 144 F.3d

at 161; Thurston v. Cherry Hill Triplex, 941 F.Supp.2d 520, 532
(D.N.J. 2008).
In this case, the parties agree that Plaintiff meets the
first two elements of the FMLA retaliation analysis, as
“[P]laintiff invoked her right to FLMA-qualifying leave numerous
times throughout the course of her employment with [Defendant]”

14

and “was terminated from her employment with [Defendant].”
(Def.’s Br. [Docket Item 45], 4.)

However, Defendant argues

that Plaintiff fails to make a prima facie case because she
cannot establish causation.

(Id. at 3-4.)

Therefore, the

Court’s attention must first turn to the third prong of
Plaintiff’s initial burden: whether the adverse action was
causally related to Plaintiff’s FMLA leave.
To demonstrate the third prong of her prima facie case,
Plaintiff “must point to evidence sufficient to create an
inference that a causative link exists between her FMLA leave
and her termination.”

Lichtenstein v. Univ. of Pittsburgh Med.

Ctr., 691 F.3d 294, 307 (3d Cir. 2012) (citing Farrell v.
Planters Lifesavers Co., 206 F.3d 271, 279–81 (3d Cir. 2000)).
Causation may be shown “through temporal proximity between the
protected activity and the adverse employment action; an
intervening pattern of antagonism; or the evidence taken as a
whole.”

Bartos v. MHM Corr. Servs., Inc., 454 F. App’x 74, 78–

79 (3d Cir. 2011) (citing Farrell, 206 F.3d at 280–81; Kachmar
v. SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997)).
When the “temporal proximity” between the protected activity and
adverse action is “unduly suggestive,” this “is sufficient
standing alone to create an inference of causality and defeat
summary judgment.”

LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n,

15

503 F.3d 217, 232 (3d Cir. 2007) (citing Clark County School
Dist. V. Breeden, 532 U.S. 268, 273-74 (2001)).
Here, Plaintiff was suspended on February 5, 2016, just
three days after returning from FMLA leave, and terminated on
February 9, 2016, only seven days after returning from FMLA
leave.

(Am. Compl. [Docket Item 22], ¶ 32-33.)

Plaintiff also

requested FMLA leave on the night of the first incident,
February 5, 2016.
84:8-16.)

(Pl.’s Dep., Pl.’s Ex. C [Docket Item 49-4],

With regards to the second adverse action, Plaintiff

was suspended on May 26, 2017, five days after utilizing her
intermittent FMLA, and then terminated on May 30, 2017.

(Am.

Compl. [Docket Item 22], ¶ 53; Pl.’s Opp’n [Docket Item 49],
11.)

“‘Although there is no bright line rule as to what

constitutes unduly suggestive temporal proximity,’ the temporal
proximity in this case is in the realm of what [the Third
Circuit] and others have found sufficient at the prima facie
stage.”

Lichtenstein, 691 F.3d at 307 (quoting LeBoon, 503 F.3d

at 233) (finding seven days to be unduly suggestive); see also
Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989) (finding
two days unduly suggestive); Seeger v. Cincinnati Bell Tel. Co.,
681 F.3d 274, 283 (6th Cir. 2012) (three weeks).
Defendant argues that the frequency of Plaintiff’s use of
FMLA leave without incident undermines the demonstration of
temporal proximity because “to allow the consideration of

16

temporal proximity in this particular matter would allow this
plaintiff an inference of FMLA retaliation on every single day,
no matter the circumstances, from 2012 forward.”
[Docket Item 52], 2.)

(Def.’s Reply

But, given the extended length of

Plaintiff’s leave from January to February of 2016, just prior
to her first suspension and multiple incidents of discipline
shortly after the protected activity, the Court disagrees.

The

need for frequent use of FMLA leave should not deprive a
plaintiff of a path to making a prima facie case for causation.
Indeed, it may well be the repeated use of FMLA leave that
prompts retaliation by some employers who may not retaliate
against an individual use of FMLA leave.
Additionally, Plaintiff was disciplined several days after
receiving a text from her supervisor, Dougherty, instructing her
to “[s]top pulling FMLA” on Plaintiff’s new coworker.
¶ 45.)

(Id. at

The close proximity between Dougherty’s disapproval of

Plaintiff’s invocation of her FMLA rights and Plaintiff’s
termination is unduly suggestive.

Therefore, the Court finds

that Plaintiff has established a causal connection between her
taking FMLA leave and the adverse employment actions and, hence,
Plaintiff has established a prima facie case of FMLA
retaliation.
Defendant contends that there was a legitimate,
nondiscriminatory reason for suspending and terminating

17

Plaintiff in February 2016 and May 2017: Plaintiff had violated
company policy by consuming alcohol while on the job and had
violated “a number of check processing procedures,”
respectively.

(Def.’s Br. [Docket Item 45], 10.)

Plaintiff

testified that she was well aware that employees may and have
been fired for drinking on the job.
[Docket Item 45-1], 74:7-12.)

(Pl. Dep., Def.’s Ex. A

Moreover, Plaintiff acknowledges

certain check procedures that need to be followed while serving
drinks.

(Id. at 151:19-25.)

Firing an employee solely for

defying company policy is not unlawful under the FMLA.

Thus,

Defendant has met its burden of articulating a legitimate,
nondiscriminatory reason for terminating Plaintiff.
The Court now addresses whether Plaintiff has shown that
Defendant’s proffered reason was pretext for FMLA retaliation.
To show pretext, Plaintiff must point to some evidence, direct
or circumstantial, from which a factfinder could reasonably (1)
disbelieve the employer's articulated legitimate reason; or (2)
believe that retaliatory animus was more likely than not a
motivating or determinative cause of the employer's conduct.
Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994); Simpson v.
Kay Jewelers, Div. Of Sterling, Inc., 142 F.3d 639, 644 (3d Cir.
1998).

Plaintiff need not demonstrate that her FMLA leave was

“the sole or most important factor upon which the employer
acted,” but rather merely “a negative factor in [adverse]

18

employment actions.”

Lichtenstein, 691 F.3d at 301 (quoting 29

C.F.R. § 825.220(c)).

Taking all reasonable inferences in the

light most favorable to Plaintiff, as the nonmoving party, the
Court finds that a reasonable jury could conclude that
retaliatory animus was a negative factor contributing to
Defendant’s adverse employment action against Plaintiff.
With regard to Plaintiff’s first suspension and
termination, a reasonable “jury could infer intervening
antagonism between Plaintiff’s assertion of [FMLA] rights and
her suspensions and terminations.”
13.)

(Pl.’s Br. [Docket Item 49],

During Plaintiff’s shift on February 5, 2016, Joas accused

Plaintiff of drinking on the job, which led to her termination
several days later.
107:15-19.)

(Joas Dep., Pl.’s Ex. B [Docket Item 49-4],

According to Beaver, while Joas was not the sole

decision-maker regarding Plaintiff’s first termination, “she
would have definite input.”
Item 49-4], 46:22-23.)

(Beaver Dep., Pl.’s Ex. D [Docket

In January 2016, a month before the

first termination, Joas had issued Plaintiff three separate
disciplinary actions.
4], 89:19-22.)

(Joas Dep., Pl’s Ex. B [Docket Item 49-

Aware that Plaintiff was on FMLA leave, Joas

issued Plaintiff a write-up for using obscene language and
creating an unhealthy workplace environment, (id. at 77:12-18),
for using her cell phone at work, (id. at 81:17-23), and for

19

failing to show proper language and tone while addressing
management.

(Id. at 85:25-86:7.)

Plaintiff complained of the excessive discipline and Joe
Procopio, Defendant’s labor relations representative, agreed
that Joas should have issued a single write-up that addressed
all of Plaintiff’s misconduct.

(Id. at 93:5-7.)

jury could infer animus from Joas’ conduct.

A reasonable

Plaintiff further

alleges that during her February 5, 2016 shift, Joas told
Plaintiff that she “just can’t up and leave anytime you want
because of FMLA.” 4 (Am. Compl. [Docket Item 22], ¶ 23.)
Furthermore, Edley, who was a direct decision-maker in
Plaintiff’s termination in February 2016, “testified that
Plaintiff’s use of intermittent leave posed an inconvenience for
Defendant, because ‘in any operation, if an employee has to
leave early, it may very well impact the operation.’” (Def.’s
Br. [Docket Item 45], 25 (quoting Edley Dep., Pl.’s Ex. A
[Docket Item 49-4], 36:17-22).)
A reasonable jury could find that Plaintiff’s “misconduct”
was an acceptable and routine aspect of any bartender’s work or
that it was only one factor taken in connection with her
utilization of FMLA leave that motivated Defendant’s adverse

4

The Court notes that, while asserted in the Amended Complaint,
this allegation does not appear in Plaintiff’s opposition brief
or in her statement of facts.
20

employment action against Plaintiff.

Based on the record,

viewed in the light most favorable to Plaintiff, a reasonable
jury could conclude that the sip Plaintiff took from the
allegedly-spoiled drink served as pretext and that Defendant
considered Plaintiff’s use of FMLA leave at least as a negative
factor in its decision to terminate her.
When viewed in the same light, a reasonable jury could
further find that Plaintiff’s May 2017 termination was, at least
in part, similarly motivated.

Edley was also involved in the

decision to terminate Plaintiff for the second time.

Moreover,

on May 21, 2017, in between Plaintiff’s alleged policy
violations related to mishandled transactions and her
termination, Plaintiff claims to have utilized her intermittent
FMLA.

(Am. Compl. [Docket Item 22], ¶ 44.)

That same day,

Plaintiff received a text message from Dougherty telling her to
“[s]top pulling FMLA on the new girl!!!!!!” (Id. at ¶ 45.)

This

text message strongly suggests open disapproval of Plaintiff’s
utilization of FMLA leave.
Defendant argues that this text message “is at best a mere
stray comment” because it was sent “in the context of a
discussion regarding the seniority list and voluntary days off
taken by other employees, as well as the training of the new
bartender.”

(Def.’s Br. [Docket Item 45], 12-13.)

Defendant

further contends that the text does not preclude the granting of

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the motion for summary judgement because “[t]he author of this
text was not involved in the decision to terminate the plaintiff
and was not aware of the specific details of the termination.”
(Id.)

This Court disagrees with Defendant’s reasoning.

As

established in the above discussion of Joas’ role in Plaintiff’s
first dismissal, “[u]nder our case law, it is sufficient if
those exhibiting discriminatory animus influenced or
participated in the decision to terminate.”

Abramson v. William

Patterson Coll. of N.J., 260 F.3d 265, 286 (3d Cir. 2001); see
also McKenna v. City of Philadelphia, 649 F.3d 171, 179 (3d Cir.
2011) (holding that “a reasonable jury could conclude that [a
supervisor’s] animus bore a direct and substantial relation to
[the employee’s] termination”).
Here, in investigating the May 2017 incident that led to
Plaintiff’s termination, Edley testified that she had “asked
[Dougherty] if he had comped any beverages for [Plaintiff] that
day, and he said, he did not.”
Item 49-4], 114:6-8.)

(Edley Dep., Pl.’s Ex. A [Docket

However, Plaintiff alleges that Dougherty

had given such an instruction, telling Plaintiff not to ring up
the complimentary drinks, assuring Plaintiff that he would “take
care of it when he gets in.”
Item 49-4], 213:23-24.)

(Pl.’s Dep., Pl.’s Ex. C [Docket

Given the text message and the totality

of the evidence viewed in the light most favorable to the
Plaintiff, a reasonable jury could find that Plaintiff’s

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testimony on the matter is more credible than that of Dougherty
or of Edley.
A reasonable jury could further find that Dougherty had
instructed Plaintiff not to ring up the drinks and then later
misrepresented these events, motivated, at least in part, by his
disapproval of Plaintiff’s use of FMLA leave.

Such a jury could

further find that this was a proximate cause of Plaintiff’s
ultimate termination, reasoning that Plaintiff may not have been
disciplined had Dougherty informed Edley of his instruction to
Plaintiff.

See Staub v. Proctor Hosp., 562 U.S. 411, 422 (2011)

(explaining that “[s]ince a supervisor is an agent of the
employer, when he causes an adverse employment action the
employer causes it; and when discrimination is a motivating
factor in his doing so, it is a ‘motivating factor in the
employer's action’”).
Accordingly, Plaintiff has established the requisite
pretext to defeat Defendant’s motion for summary judgment with
regards to Count Two, Plaintiff’s FMLA Retaliation claim.
B. FMLA Interference
29 U.S.C. § 2615(a)(1) of the FMLA prohibits an employer
from “interfer[ing] with, restrain[ing], or deny[ing] the
exercise of or the attempt to exercise, any right” that it
guarantees.

“Interference” includes “[a]ny violations of the

[FMLA] or of these [FMLA] regulations.”

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29 C.F.R. § 825.220(b).

An interference claim under § 2615(a)(1) is “not about
discrimination, it is only about whether the employer provided
the employee with the entitlements guaranteed by the FMLA.”
Callison v. City of Philadelphia, 430 F.3d 117, 120 (3d Cir.
2005).

To prevail on an FMLA interference claim, an employee

need only show that (1) she was entitled to benefits under the
FMLA; and (2) she was denied them.

Lichtenstein, 691 F.3d at

312; Sommer v. The Vanguard Group, 461 F.3d 397, 399 (3d Cir.
2006).

The interference inquiry is merely about whether the

employer provided its employee with the entitlements and
protections guaranteed by the FMLA.

Hodgens v. Gen. Dynamics

Corp., 144 F.3d 151, 159 (1st Cir. 1998).
Here, the parties stipulate that Plaintiff was entitled to
benefits under the FMLA, leaving the Court with the matter of
whether Defendant interfered with Plaintiff’s ability to
exercise her FMLA rights.

Defendant contends that Plaintiff is

unable to establish a claim of FLMA interference because she “is
unable to establish that any FMLA benefits were denied to her.”
(Def.’s Br. [Docket Item 45], 2.)

Although Defendant did not

deny any of Plaintiff’s requests for FMLA leave, except when
Plaintiff’s request paperwork was incomplete, (Pl. Dep., Def.’s
Ex. A [Docket Item 45-1], 48:16-49:3.), the Third Circuit has
repeatedly held “that firing an employee for a valid request for
FMLA leave may constitute interference with the employee’s FLMA

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rights as well as retaliation against the employee.”

Erdman,

582 F.3d at 509; see also Lichtenstein, 691 F.3d at 312 (holding
that “[b]y terminating [the plaintiff’s] employment for having
invoked her right to FMLA leave, [the defendant] unlawfully
interfered with her rights in violation of 29 U.S.C.
§ 2615(a)(1)”).

It follows that, for the reasons set forth in

the retaliation analysis above, Plaintiff has met her burden at
this stage in the litigation.

Accordingly, Defendant’s motion

for summary judgement will be denied with regard to Count One,
Plaintiff’s FMLA interference claim.
C. NJFLA Retaliation
Plaintiff contends in Count Three of her Amended Complaint
that Defendant violated her rights under the NJFLA by suspending
and terminating her twice.

Defendant challenges this claim as a

matter of law, asserting that the “[a]ct does not provide any
leave or entitlement for leave as a result of employee’s own
health condition.”

(Def.’s Br. [Docket Item 45], 14.)

Rather,

Defendant contends that NJFLA only confers benefits in cases of
a family member’s serious health condition or for purposes of
caring for a newly born or adopted child.
(a) and (b).

See NJSA § 34:11B-4

The Court agrees, finding that Plaintiff’s claim

is inapplicable to the statute.

Plaintiff had exercised her

right to FMLA leave as a result of Plaintiff’s own migraines,
not due to the medical needs of a family member.

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Plaintiff

fails to address Defendant’s argument relating to NJFLA in her
opposition brief regarding the present motion.
Pl.’s Br. [Docket Item 45].)

(See generally

Therefore, summary judgment will

be granted in favor of Defendant on Count Three, Plaintiff’s
NJFLA retaliation claim.
VI.

CONCLUSION

For the foregoing reasons, the Court will deny Defendant’s
motion for summary judgment as to Counts 1 and 2 of Plaintiff’s
Amended Complaint [Docket Item 22] and grant Defendant’s motion
for summary judgment as to Count 3.

An accompanying Order will

be entered.

September 27, 2019
Date

s/ Noel L. Hillman
NOEL L. HILLMAN
U.S. District Judge

At Camden, New Jersey

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