BOLES v. WALMART STORES, INC.

Filing 47

OPINION. Signed by Judge Jose L. Linares on 3/26/14. (gmd, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

BARRY BOLES,

Civil Action No. 12-1762 (JLL)
Plaintiff,
OPINION

V.

WAL-MART STORES, INC.
Defendant.
LINARES, District Judge.
This matter comes before the Court by way of Defendan Walt
Mart Stores, Inc.
(“Defendant or Wal-mart”)’s motion for summary judg
ment, and Plaintiff Barry Boles
(“Plaintiff’ or “Boles”)’s cross-motion for partial summary
judgment. The Court has considered
the submissions made in support of, and in opposition to,
each party’s respective motion, and
decides this matter without oral argument pursuant to Fede
ral Rule of Civil Procedure 78. For
the reasons set forth below, Defendant’s motion is gran
ted in part and denied in part, and
Plaintiff’s cross-motion is denied.
1.

FACTUAL BACKGROUND’
A.

General Background

l

Only those facts the Court deems relevant to resolving
the instant motions for summary judgment are set forth
herein. Unless otherwise noted, the Court considers
these facts to be undisputed. Additionally, any statement
that is
not specifically denied with a proper citation to the record
in a responsive Rule 56.1 statement is considered to be
admitted. See Loc. Civ. R. 56.1. Finally, the Court
will disregard all legal arguments included in any Rule 56.1
statement, including evidentiary objections to the Court’
s consideration of certain facts. See Loc. Civ. R. 56.1
(noting that Rule 56.1 statements “shall not contain legal
argument or conclusions of law.”) (emphasis added).

I

This action stems from Plaintiff’s claims of workplace discrimination resulti
ng from his
termination of employment following a medical leave of absence. In
or about 2001, Wal-mart
employed Plaintiff as a backroom associate at a store located in Linden
, New Jersey. (Def.
Statement of Undisputed Material Facts (“Def. SUMF”) at 6.) Throug
hout the course of his
¶
employment, Plaintiff worked in various departments and was eventually
transferred to a Wal
mart store located in Quincy, Florida where he was promoted to suppor
t manager. (Id. at ¶J 7,
8.)
In 2010, Plaintiff was transferred back to the Linden, New Jersey locatio
n where he
commenced his training to become an Assistant Manager. (Id. at
¶ 9.) In or about February
2011, Plaintiff received another promotion, and assumed the position
of overnight assistant
manager at a Wal-mart store in Union, New Jersey. (Id. at 10.)
As an overnight assistant
¶
manager, Plaintiffs responsibilities included ensuring that the store
was ready for opening each
morning. (Id. at ¶ 11.)
B.

Plaintiffs Job Performance

Based on the record before the Court, it is apparent that Plaintiff’s
job performance was
satisfactory at least through 2011. Indeed, it is undisputed that he receive
d multiple promotions,
(see Def SUMF at ¶J 8-10), and received various performance-b
ased awards, (see P1.

Supplemental Statement of Undisputed Material Facts (“P1. Supp.
SUMF”) at ¶J 4, 7.)
Shortly after Plaintiff began working at the Wal-mart store in Union,
he asked his direct
supervisor, Michael Ciechalski (“Ciechaiski”), for permission
to take a one-week vacation in
June 2011. (DeL SUMF at ¶ 12.) Ciechalski denied Plaintiffs
request because three other
assistant managers had already been pre-approved for vacatio
ns during this time. (Id. at ¶ 13.)
According to Defendant, Plaintiffs job performance became noticea
bly deficient following the
2

denial of his request for vacation. (Id. at 14.) Consequently, Plainti
ff received a written
¶
reprimand (i.e., a Coaching Report) on or about April 25, 2011. (Id.
at ¶ 15.)
The Coaching Report describes various deficiencies in Plaintiff’s perform
ance. It states:
On April 23, 2011, the store was not properly zoned, the back
room was neither cleaned nor organized and sixty-nine pallets
were on the floor. Signage was not properly executed and the floor
conditions were poor. In overall [sic], the store was not ready for
morning business and up to company standards and expectations
.This is not acceptable.. .On April 4, 2011 and April 22, 2011,
you were given specific notes detailing what tasks needed to be
completed by the end of the shift.
2
(Weisbrot Cert., Ex. G.) The Coaching Report also admonished Plainti
ff for failing “to provide
the necessary leadership to teach, coach, and train his associates,”
and advised him to “take the
necessary steps to improve on his job performance.” (Id.) Furthermore,
it warned him that
“[t]he next level of action if [his] behavior continue[d] could includ
e termination.” (Id.)
Defendant claims that on April 29, 2011, four days after receiving the
Coaching Report,
Plaintiff walked out of his duty location without receiving authorization
or notifying either of his
shift managers. (DeL SUMF. at ¶ 20.) In an email dated April 29,
2011, Ciechalski notified
Market Human Resources Manager Quwad McDonald (“McDonald”
) that Plaintiff had left work
without either notifying any of the shift managers, or completing
his overnight responsibilities.
(Id. at ¶ 21.) During his deposition, Plaintiff denied having left
work, and further denied having
failed to complete his assigned tasks. (P1. Resp. SUMF at 20.)
¶
C.

Wal-mart’s Federal Medical Leave Act and Personal Leave of
Absence Policies

Wal-mart maintains a Family Medical Leave Act (“FMLA”) policy
which grants eligible
employees up to twelve weeks of unpaid, job-protected leave
each year for specified family and
2

During his deposition, Plaintiff testified that the statements contain
ed in the Coaching Report were not true. (See,
e.g., P1. Responsive Statement of Undisputed Material Facts
(“P1. Resp. SUMF”) at ¶J 14-18.) There is no dispute,
however, that Plaintiff received the Coaching Report and refused
to sign it. (See P1. Resp. SUMF at 19.)

3

medical reasons. (Def. SUMF at ¶ 28.) Employees seeking to use
FMLA leave are required to
provide: (1) thirty-days notice of the need to take FMLA leave when
the need is foreseeable; (2)
medical certifications supporting the need for leave due to a serious
health condition affecting
the employee or an immediate member of his/her family; and (3) period
ic reports during FMLA
leave regarding the employee’s status and intent to return to work.
(Id. at ¶ 29j Upon return
3
from FMLA leave, an employee must be restored to his or her origina
l job, or to an equivalent
job with equivalent pay, benefits, and other employment terms and condit
ions. (Id. at ¶ 30.)
In addition to the FMLA policy, Wal-mart also maintains a Person
al Leave of Absence
(PLOA) policy, which allows an employee to take leave for any special
circumstance that does
not qualify for leave under any other federal or state law. (Id. at
¶ 31.) The PLOA policy
requires employees seeking to extend their leave beyond the time
initially requested to submit
another Request for Leave Form and a new Certification Form to
a human resources
representative. (Id. at ¶ 32.)
There is no dispute that Wal-mart’s policy is to provide employees
requesting FMLA
leave both a Notice of Eligibility and a Notice of Designation within
five days of the leave
request. (Def SUMF at ¶J 33-34.) The Notice of Eligibility notifie
s employees of their general
eligibility for leave, and the Notice of Designation advises emplo
yees whether they have been
approved for FMLA leave and how much FMLA time will be
used while they are on leave. (Id.)
D.

Plaintiffs Medical Issue and His Leave of Absence

On or about May 8, 2011, Plaintiffs wife noticed a large blister
on Plaintiffs lower leg.
(P1. Supp. SUMF at ¶ 11.) Plaintiff then went to the emergency
room to obtain treatment. (Id. at
En his responsive Rule 56.1 statement, Plaintiff disputes the
accuracy of Defendant’s representation of what is
required of employees under Wal-mart’s FMLA and person
al leave of absence policy without a proper citation to
the record in violation of Local Civil Rule 56.1. Accordingly,
the Court deems Defendant’s assertion in Paragraph
29 of its Rule 56.1 statement to be undisputed. See Loc.
Civ. R. 56.1.

4

¶ 12.) The emergency room physician advised Plaintiff to seek further treatment from his own
physician, as he did not know what caused the blister. (Id. at 13.) The emerge
ncy room
¶
physician also gave Plaintiff a note stating that he could return to work in
two days. (See id. at ¶
14; Def Resp. to P1. Supp. SUMF atJ 14.)
On May 9, 2011, Plaintiff visited Dr. Gail Mautner (“Dr. Mautner”) a boardcertified
dermatologist. (P1. Supp. SUMF at ¶ 15.) During the visit, Dr. Mautner
observed a large blister
on Plaintiff’s lower leg, and punctured it. (Id. at 16.) This resulted in a large
ulceration on
¶
Plaintiff’s leg. (id.) During her deposition, Dr. Mautner testified that she
considered Plaintiffs
condition to be dangerous because wounds on the lower leg are known to heal
poorly due to lack
of circulation, and such wounds are vulnerable to infection and necrosis. (Id.
at ¶ 17.)
On May 10, 2011, Plaintiff’s wife sent a fax to Ciechaiski enclosing a discha
rge summary
from the emergency room stating that Plaintiff had been treated on
May 8, 2011. and that he

could return to work in two days. (Def. SUME at

¶ 25.) The fax also enclosed a note from Dr.

Mautner, stating that she had seen Plaintiff on May 9, 2011 and that he
could return to work on
May21, 2011. (Id. atJ26.)
On the same date that Plaintiffs wife sent the fax to Ciechalski (May 10,
2011),
Ciechaiski sent an email to McDonald to inform him that Plaintiff had not
reported to work in
two days without notifying any of his supervisors. (Id. at 22.) In that
email, Ciechaiski
¶
informed McDonald that two days prior, an assistant manager had called
Plaintiff to inquire
about his whereabouts. (Id. at ¶ 23.) In relevant part, Ciechalski’s email
states:
I just wanted to bring to your attention that Barry [i.e., Plaintiff]
has not been to work the past 2 days. On Sunday, ASM Bob called
him to see why he was running late. He informed Bob he wasn’t
coming to work due to some blisters he had on his person. I was
not aware of this.. .Last night he never called a member of
management but text [sic] a Support Manager telling them [sic] he
5

would be out for 2 weeks. We just received paperwork. One page
came from the Emergency Room saying he could return to work in
2 day’s [sic]. A 2nd note came from the Dermatologist / Cosmetic
Surgery Office saying he needed to be out until the 21St.
.One
note. Saturday into Sunday he and Jarreaux had another terrible
performance and he [i.e., Plaintiff] told one of the Suppo
rt
Managers he wanted to make sure he could not be coached again.
.

(id. at

.

2324. quoting Weisbrot Cert, Ex. l.)

On May 12, 2011, Defendant contacted Plaintiff and advised him
that he would need to
complete a Leave of Absence packet inasmuch as he was going
to miss more than three days of
work. (Id. at ¶ 35.) After Plaintiff informed Defendant that he would
be unable to retrieve the
packet, Defendant sent it to him via Federal Express. (Id. at 36.)
¶
On May 19. 2011, two days before Plaintiffs scheduled return
to work in accordance
with Dr. Mautner’s note, Defendant reached out to Plaintiff
to inquire about the status of his
leave of absence paperwork. (Id. at 38.) Plaintiff informed
Defendant that he had received the
¶

paperwork, and would submit it to the market office. (Id. at
¶ 39.)
On May 20, 2011, Plaintiff visited Dr. Mautner again. (P1. Supp.
SUMF at

¶ 29.)

On or

about May 24, 2011, Dr. Mautner faxed a certification to Defend
ant in which she estimated that
Plaintiff would not be able to return to work for one month
. (See McDonald Depo. Ex. H.)
Defendant claims that it could not process Dr. Mautner’s
certification because, among other
reasons, it was unsigned and did not have a specific return to
work date. (Def. Resp. to P1. Supp.
SUMF at ¶ 31.) Furthermore, Defendant maintains that it
did not send Plaintiff either a Notice of

In his responsive Rule 56.1 statement, Plaintiff dispute
s these facts, but provides no citation to the record as
required under Local Civil Rule 56.1. Accordingly, the
assertions in Paragraphs 22-24 of Defendant’s Rule 56.1
statement are deemed admitted. See Loc. Civ. R. 56.1.
‘

6

Eligibility or Notice of Designation upon receiving Dr. Mautner’s certification
because said
certification could not be processed. (See id. at 33)5
¶
Defendant did eventually generate a Notice of Eligibility on July 15, 2011.

(See

McDonald Depo. Ex. N.) Three days later, on July 18, 2011, Ciechalski wrote
an email to
McDonald inquiring why Plaintiffs employment could not be termin
ated “at this time.”
(McDonald Depo. Ex. P.) In response, McDonald stated that “[t]erminating [Plaint
iff] would be
a violation of company policy.” (Id.)
Although there is a dispute both as to when Plaintiff properly submit
ted the leave
paperwork to Defendant, and whether Defendant provided a timely Notice
of Eligibility and
Notice of Designation to Plaintiff, there is no dispute that Plaintiff submit
ted the leave
paperwork to Defendant’s satisfaction on July 27, 2011. (Id. at

¶ 40; P1. Resp. SUMF at ¶ 42.)

On this date, Plaintiff submitted to Defendant a request for leave from June22
to September 10,
2011. (See Weisbrot Cert., Ex.

6
Q.) One day prior, on July 26, 2011, Dr. Mautner had also

submitted a certification to Defendant stating that she expected Plaintiff
to return to work in
October/November 2011. (See McDonald Depo, Ex. K.)
Ultimately, Defendant retroactively approved FMLA leave from May
9, 2011 through
July 3 1, 2011, and approved personal leave from August 1, 2011 through
September 29, 2011.
(Def. SUMF at

¶ 44; P1. Resp. SUMF at ¶ 44.) According to Defendant’s files, a Notice of

Designation was generated on August 18, 2011. (P1. Supp. SUMF at

¶ 59.) Plaintiff claims that

he never received the Notice of Designation from Defendant, and Defend
ant does not dispute

Defendant claims that it made repeated calls to Plaintiff regarding his failure
to return the necessary paperwork, but
that Plaintiff never returned any of its calls. (Def. Resp. to P1. Supp.
SUMF atJ 33.)
6

Approximately two weeks prior, on or about July 13, 2011, Plainti
ff submitted a request for personal leave without
specifying a return to work date. (See Weisbrot, Ex. U.)

7

this fact with a proper citation to the record. (Id. at 60; Def. Resp. to P1. Supp.
SUMF at ¶ 60.)
¶
The Notice of Designation states that Plaintiff’s leave is approved from May
9, 2011 through
September 29, 2011, and that “[a]11 leave taken for this reason will be designated
FMLA leave.”
(McDonald Depo. Ex. 0.) That same document, however, contains small text
within a box
entitled “Type of Leave Approved” stating the following:
05/09/2011—7/31/2011 FMLA-SHC-Paid
08/01/2011—08/06/2011 Personal-SHC-Paid
08/07/2011—09/29/2011 Personal-SHC-Unpaid (MHRM’s
approval needed)
Expected return to work date: 9/30/2011
—

—

(McDonald Depo., Ex. 0.) Nowhere on the Notice of Designation is there
any warning that
Plaintiff’s failure to return to work by September 30, 2011 would result in termin
ation. (P1.
Supp. SUMF at

¶

67.)

Plaintiff denies being aware that his failure to return to work by

September 30, 2011 could result in termination. (Id. at 68.)
¶
Plaintiff claims that nobody from Wal-mart contacted him to discuss his
need for leave
through November 2011. (P1. Supp. SUMF at

¶

58.) Defendant, on the other hand, maintains

that it endeavored to contact Plaintiff to no avail, in spite of the fact that
it was under no
obligation to do so. (Def. Resp. to P1. Supp. SUMF at 58.)
¶
During her deposition, Dr. Mautner testified that Plaintiff’s medical condit
ion required
“leg elevation” twenty-four hours a day. (See Weisbrot Cert., Ex. X,
Mautner Depo. Tr. at
61:19-20; 81:22-23.) Plaintiff has acknowledged that he never asked Defend
ant to accommodate
him and his injury.

(See Weisbrot Cert., Ex. F, Boles Depo. Tr. at 195:1-3.)

He has also

acknowledged that he never informed Defendant that he could
work with a reasonable
accommodation because he claimed to have “never had a chance to talk
to [Defendant].” (Id. at
196-97.)

8

F.

Plaintiffs Termination

Defendant claims that after Plaintiff failed to return to work on september 30,
2011, as
scheduled, Defendant began investigating Plaintiffs whereabouts, and made
various attempts to
contact him. (Def. SUMF at
160.)

¶J 50,

51;

see also Weisbrot Cert., Ex. V, McDonald Depo. Tr. at

Defendant further maintains that nearly a month passed without successfully locatin
g

Plaintiff. (Id. at ¶ 52.)
Plaintiff disputes Defendant’s assertion that it was investigating, or was unawa
re of, his
whereabouts. (P1. Resp. SUMF at

¶

50.) Specifically, Plaintiff maintains that Defendant knew

that Dr. Mautner had certified his need for leave until November 2011 and points
out that he sent
McDonald a text message at some point in or around September 2011 stating
that his physician
had not yet cleared him to return to work, and suggesting that he might receive medica
l clearance
in October 2011. (P1. Supp. SUMF at ¶ 75)7
Plaintiff met with Dr. Mautner on October 17, 2011. (P1. Supp. SUMF at

¶ 78.) Upon

examining Plaintiff, Dr. Mautner found that his wound had finally closed
and advised him that
he could return to work in one week.

(Id. at

¶f 79.) On October 24, 2011, Plaintiff reported to

work, and attempted to begin his regular shift.

(Id. at

¶

83.)8

When he reported to work,

however, Plaintiff was unable to log into the Wal-mart computer system.
(Id. at ¶ 86.) Plaintiff
reported this problem to Ciechaiski, who advised him that he would have
to speak to McDonald,
and that until he did so, he should go home. (Id. at 87.)
¶

‘

During his deposition. McDonald denied having received this text
message. (Def. Resp. to P1. Supp. SUMF at ¶
75.)
8

As of this time, Plaintiffs position remained vacant and had not been filled.
(P1. Supp. SUMF at ¶ 84.)
Additionally, there is no dispute that Defendant continued to pay Plainti
ffs salary through the end of October 2011.
(Id. at 85.)

9

Plaintiff claims that in accordance with Ciechalski’s instruction, he returned home
and
called the market office to obtain clarification on his return to work, but was not
able to reach
anyone. (Id. at

¶J

88-89.) On or about October 28, 2011, Plaintiff received a letter from Wal

mart dated October 27, 2011, notifying him that his employment had been termin
ated. (Id. at

¶

90.) This letter states:
This is notification of your termination from the company effective
Tuesday, October 25, 2011 for failure to return from LOA before
expiration. LOA time requested was extended on multiple
occasions due to your unique circumstances. Walmart understands
when family and medical issues necessitate time away from work,
however, you are responsible to meet eligibility requirements each
time you take FMLA leave regarding submission of medical
paperwork.
This action was considered as per the administration
of rules and regulations governing Walmart’s FMLA policy.
(Weisbrot Cert., Ex. W.)
Plaintiff maintains that if he had known that his failure to return to work by
September
30, 2011 would result in his termination, he would have explored alternatives
to return to work
earlier for the sake of keeping his job. (See P1. Supp. SUMF at
¶ 105-08.)
IL

PROCEDURAL BACKGROUND

On or about February 3, 2012, Plaintiff filed a three-count complaint in state
court, which
Defendant removed to this Court on or about March 21, 2012. (CM/E
CF No. 1.) On March 12,
2013, Plaintiff filed an amended complaint asserting the following claims
: (1) retaliation for
requesting and taking extended medical leave in violation of the New
Jersey Law Against
Discrimination (“NJLAD”); (2) disability discrimination in violation
of the NJLAD; (3) failure
to provide a reasonable accommodation by failing to provide an extens
ion to Plaintiffs leave,
and failing to engage in the interactive process in violation of the NJLAD
; and (4) interference

10

with FMLA rights on account of Defendant’s failure to inform Plaintiff of his
FMLA rights, the
manner in which his leave would be calculated, and when his leave would expire.
On December 15, 2013, Defendant moved for summary judgment as to all counts
in
Plaintiff’s amended complaint. On January 15, 2014, Plaintiff filed a respon
se to Defendant’s
motion, and cross-moved for summary judgment as to his failure to accom
modate claim. On
January 30, 2014, Defendant filed a reply brief.
III.

JURISDICTION
This Court has jurisdiction over this matter pursuant to 28 U.S.C.

IV.

§ 1331 and 1367.

LEGAL STANDARD

“Summary judgment should be granted only ‘if the pleadings, the discovery
and
disclosure materials on file, and any affidavits show that there is no genuin
e issue as to any
material fact and that the movant is entitled to judgment as a matter of law.” Bende
r v. Tip. of
Monroe, 289 Fed. Appx. 526-526-27 (3d Cir. 2008) (quoting Fed. R. Civ.
P. 56(c)).

On a

summary judgment motion, the moving party must first show that there is no
genuine issue of
material fact. Celotex Corp. v. Cartrett, 477 U.S. 317, 323 (1986). The burden
then shifts to the
non-moving party to present evidence that a genuine issue of material fact compe
ls a trial. Id. at
324. The non-moving party must offer specific facts that establish a genuin
e issue of material
fact; the non-moving party may not simply rely on unsupported assertions,
bare allegations, or
speculation. See Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 252
(3d Cir. 2010). The
Court must consider all facts presented and the reasonable inferences drawn
from them in the
light most favorable to the non-moving party. See Pa. Coal Ass ‘n v. Babbit
t, 63 F.3d 231, 236
(3d Cir. 1995).
V.

DISCUSSION

11

The Court will now proceed to address the propriety of granting summary judgm
ent as to
each of Plaintiffs claims.
A.

Propriety of Granting Summary Judgment as to Plaintiff’s Retaliation Claim
under the NJ LAD

Discrimination claims under the NJ LAD generally follow the burden shiftin
g framework
set forth in McDonnell Douglas Cotp. v. Green, 411 U.S. 792 (1973). See
Victor v. Siute, 203

N.J. 33. 408 (2010). Under that framework, the plaintiff bears the initial burden
of cstahhshing
a prima ficie case of discrimination.

McDonnell Douglas, 411 U.S. at 802.

If a plaintiff

establishes a prima /icie case, the burden then shifts to the employer
to articulate some
legitimate, nondiscriminatory reason for its action. Id. If the employer
meets this burden, the
plaintiff must then show that the employer’s articulated reason is
a mere pretext fbr
discrimination, Id. at 804.
a.

Plaintiff’s Prima Facie Case

“[Tjhe prima facie elements of a retaliation claim under the [NJ]LAD require
s [sic) [a)
plaintiff to demonstrate that: (1) plaintiff was in a protected class; (2)
plaintiff engaged in
protected activity known to the employer; (3) plaintiff was thereafter
subjected to an adverse
employment consequence; and (4) that there is a causal link between the
protected activity and
the adverse employment consequence.” Victor, 203 N.J. at 409. Here, there
is no dispute either
that Plaintiff was in a protected class on account of a disability or that
he was subject to an
adverse employment action when he was terminated. Only the second and
fourth elements are in
dispute. Therefore, the Court will proceed to consider the extent to which
Plaintiff has satisfied
these elements of his prima facie retaliation claim.
1.

Protected Conduct

In relevant part, the NJLAD prohibits discrimination because of disabil
a
ity. N.J.S.A.
12

10:5-3. The anti-retaliation provision of the NJLAD forbids:

any person to take reprisals against any person because that person
has opposed any practices or acts forbidden under this act or
because that person has filed a complaint, testified or assisted in
any proceeding under this act or to coerce, intimidate, threaten or
interfere with any person in the exercise or enjoyment of, any right
granted or protected by this act.
N.J.S.A. 10:5-12(d).
Here, Plaintiff’s NJLAD retaliation claim is premised entirely on his allegation
that
Defendant retaliated against him for “requesting accommodation [in the form
of extended
medical leave] and taking advantage of Defendant’s accommodation of his handic
ap by
terminating him for taking extended medical leave.” (See Am. Compi. at
¶J 23, 27.) Defendant
argues that it is entitled to summary judgment as to Plaintiff’s retaliation claim becaus
e, among
other reasons, Plaintiff cannot satisfy the first element of his prima facie
case, that is, that he
engaged in protected activity. Specifically, Defendant argues that “taking medica
l leave does not
constitute protected activity that would support a retaliation claim under the NJLAD
.” (Def. Br.
at 6.) In so doing, Defendant largely relies on this Court’s holding in Wagon v.
er Medco Health
Solutions, Inc., No. 06-5 167, 2009 U.S. Dist. LEXIS 21773 (D.N.J. Mar. 18, 2009)
(Linares, J.).
In that case, this Court held that the “taking of medical leave

.

.

.

is not a protected

activity under the NJLAD” because “[t]he language of the statute does not
embrace” the taking
of medical leave. Wagoner, 2009 U.S. Dist. LEXIS 21773, at *17. In that
same case, however,
the Court suggested that courts had not clearly resolved whether the taking
or requesting of
medical leave is protected activity under the NJLAD. See id. at * 16; compa
re DiMare v. Metlife
Ins. Co., No. 07-4268, 2008 U.S. Dist. LEXIS 43093, at *7 (Brown,
J.) (“Plaintiff fails to
provide any persuasive authority to persuade the Court that a medica
l leave of absence is
protected activity under the NJLAD”) (cited in Wagoner, 2009 U.S. Dist.
LEXIS 21773, at * 16),
13

with 1’/usbaum v. CR Richard Ellis, Inc., 171 F. Supp. 2d 377, 388 (D.N.J. 2001) (Greenaway, J.)
(“[Plaintiffs] complaint clearly alleges that she engaged in protected activity [under the NJLAD]
when she sought a leave of absence.

.

.

for medical reasons.”) (cited in Wagoner, 2009 U.S. Dist.

LEXIS 21773, at *16.).
A further review of both the case law and the language of the NJLAD’s anti-retaliation
provision now compels this Court to conclude that the requesting and taking of medical leave are
protected activities under the NJLAD. The anti-retaliation provision of the NJLAD specifically
prohibits employers from interfering with “any right granted or protected by [the NJLAD].”
N.J.S.A. 10:5-12(d). A disabled employee’s right to a reasonable accommodation is one such
right.

See, e.g., Victor, 203 N.J. at 412 (“Affording persons with disabilities reasonable

accommodation rights is consistent with the [NJ]LAD’s broad remedial purposes.”). Moreover,
a reasonable accommodation can take the form of a temporary leave of absence.

See N.J.

Admin. Code 13:13-2 .5(b)( I )(ii); see also Santiago v. Cnly. ofPassaic, No. A-3 599-06T 1, 2009
N.J. Super. Unpub. LEXIS 441, at *13 (App. Div. 2009) (observing that New Jersey courts
“have indicated that a leave of absence may constitute a reasonable accommodation under
the
[NJ]LAD.”) (citing cases). Accordingly, it necessarily follows that when a disabled employee
requests and then takes a temporary medical leave of absence, said employee avails himself of
a
right that is “granted or protected by [the NJLAD],” and thus engages in protected conduct.
See
N.J.S.A. 10:5-12(d)

Interpreting the NJLAD’s anti-retaliation provision as embracing the requesting and
taking of medical leave is consistent with the weight of authority interpreting the anti-retaliatio
n
provision of the Americans with Disabilities Act (“ADA”), which is nearly identical to
that of

14

the NJLAD. Indeed, most courts that have considered the issue have held
9
that the ADA’s antiretaliation provision embraces requests for leave as protected conduct.
Lassiter-Ware, Inc., No. 11-1074, 2013 U.S. Dist. LEXIS 116375, at

*

See, e.g., Brown v.

(M.D. Fla. Aug. 16,

2013) (observing that the plaintiff “engaged in protected activity under the
ADA by requesting a
one-month leave of absence as a reasonable accommodation.”); Guinup
v. Petr-All Petroleum
Corp., 786 F. Supp. 2d 501, 514 (N.D.N.Y. 20H) (“[T]aking medical
leave is a protected
activity within the meaning of the ADA.”); Jordan v. Sch. Dist. of Phila.,
No. 11-27 12, 2012
U.S. Dist. LEXIS 74034, at *22 (E.D. Pa. May 29, 2012) (“Even if [the plainti
ffs] requests for
leave exceeded the scope of what is required under the ADA, she noneth
eless engaged in
protected activity if she had a reasonable, good faith belief that she was entitle
d to request this
accommodation.”) (citations omitted); Bernhard v. Brown & Brown of
Lehigh Valley, Inc., 720

F. Supp. 2d 694, 703 (E.D. Pa. 2010) (“[Plaintiffs] request for additional
leave is protected
activity under the ADA.”); Dove v. Cmty. Educ. Ctrs., Inc., No. 12-4384,
2013 U.S. Dist. LEXIS
170081, at *63 (E.D. Pa. Dec. 2, 2013) (“[N]umerous courts have recogn
ized that a request for a
leave of absence for medical treatment may constitute a request for a reason
able accommodation
under the ADA” and thus constitutes a protected activity).
Because the NJLAD entitles a disabled plaintiff to a reasonable accom
modation which
may take the form of a temporary leave of absence, this Court holds
that Plaintiff engaged in
protected conduct when he requested and took medical leave.
2.

Causal Link

The anti-retaliation provision of the ADA provides that “[nb person
shall discriminate against any individual
because such individual has opposed any act or practice made unlawf
ul by [the ADA] or because such individual
made a charge. under [the ADA]
[and that] [i]t shall be unlawful to coerce, intimidate, threaten, or interfe
re
with any individual in the exercise or enjoyment of, or on accoun
t of his or her having exercised or enjoyed, or on
account of his or her having aided or encouraged any other individ
ual in the exercise or enjoyment of any right
granted by [the ADA].” 42 U.S.C. § 12203.
.

.

.

.

.

15

In arguing that there is no causal link between Plaintiff’s protect
ed conduct and his
termination, Defendant argues that “the record evidence is
conclusive that Plaintiff’s
employment was terminated as a consequence of his refusal to come
to work for a month after
his promised return to work date without any justifiable or sustain
able basis.” (Def. Br. at 7-8.)
This argument misses the mark because it does not go to Plainti
ff’s prima facie claim, but to
Defendant’s burden of articulating a legitimate nondiscriminatory
reason for terminating Plaintiff
under the McDonnell Douglas framework.
More importantly, it is apparent to the Court that there are genuine
issues of material fact
as to whether there is a causal link between Plaintiff’s having requested
and taken medical leave,
and his termination. Two examples suffice to illustrate this point.
First, Ciechaiski—Plaintiff’s direct supervisor—sent an email to
McDonald on July 18,
2011, while Plaintiff was on leave, inquiring about the possibility
of terminating Plaintiff. (See
McDonald Depo. Ex. P.) There is no dispute that as of the date
of Ciechalski’s email, Defendant
was aware of Plaintiff’s need for FMLA leave, as Defendant genera
ted a Notice of Eligibility
informing Plaintiff of his eligibility for FMLA leave only three
days prior, on July 15, 2011.
Based on these facts, a reasonable jury could find that Defendant’s
motivation for terminating
Plaintiff was his need for medical leave.
Second, based on the totality of the evidence in the record, a
reasonable jury could find
that the timing of Plaintiff’s termination—only three days after
he attempted to return to work—
is suggestive of retaliation. The Court is mindful that “the
close temporal proximity between a
protected act and an adverse employment action, alone, is
insufficient to raise an inference of
retaliation.” See, e.g., carvaiho v. Aircraft Serv. Int’l, Inc.,
No. 12-2430, 2013 U.S. Dist. LEXIS
145279, at *29..*3o (D.N.J. Oct. 8, 2013) (citations omitted)
(emphasis added); see also Young v.
16

Hobart West Group, 385 N.J. Super. 448, 467 (App. Div. 2005) (“[T]he mere fact that [an]
adverse employment action occurs after [the protected activity] will ordinarily be insufficient
to
satisfy the plaintiff’s burden of demonstrating a causal link between the two.”) (quoting Krouse
v. Am. Sterilizer co., 126 F.3d 494, 503 (3d Cir. 1997)). However, when other facts in
the record

could lead a reasonable jury to find a causal connection between protected activity
and an
adverse employment decision, as is the case here, it is appropriate to consider the extent to which
the temporal proximity between the protected activity and the adverse employment action
is
suggestive of discriminatory animus on the part of the employer. See, e.g., Jalil v. Avdel
Corp.,
873 F.2d 701, 708 (3d Cir. 1989) (holding that based on “[a]n objective review of the record
,”
plaintiff set forth sufficient evidence of a causal connection between protected act of filing
claim
with the Equal Employment Opportunity Commission and termination of employment
“by the
circumstance that the discharge followed rapidly, only two days later, upon [the emplo
yer’s]
receipt of notice of’ the plaintiffs claim.); see also Rosenfeld v. Canon Bus. Solutio
ns, Inc., No.
09-4 127, 2011 U.S. Dist. LEXIS 115415, at *51 (D.N.J. Sept. 26, 2011) (holdin that
g
plaintiff
offered “plausible evidence of causation [in connection with NJLAD retaliation claim]
on two
grounds: temporal proximity 4 ongoing antagonism due to his handicap.”) (emphasis
added).
For the reasons set forth above, the Court holds that Plaintiff has come forwar
d with
sufficient evidence to establish the elements of his prima facie claim of retaliat
ion under the
NJ LAD. Accordingly, the Court must proceed to consider whether Defendant has
articulated a
legitimate nondiscriminatory reason for terminating Plaintiff, and whether there is
any evidence
in the record to suggest that any such reason is a pretext for discrimination.
b.

Defendant’s Legitimate, Nondiscriminatory Reason for Terminating Plainti
ff and
Evidence of Pretext

Defendant claims that it terminated Plaintiff for job abandonment. (See, e.g., Def. Br.
at
17

9.)

For purposes of deciding this summary judgment motion, the Court will assum
e that

Defendant has met its burden under the McDonnell Douglas framework of articul
ating a
legitimate, nondiscriminatory reason for terminating Plaintiff. McDonnell Douglas.
411 U.S. at
802. ‘fheretbre, the Court must consider whether there is any evidence in the record
to suggest
that Defendant’s proffered reason for terminating Plaintiff is pretextual. See id.
Construing the facts in the record in the light most favorable to Plaintiff compe
ls this
Court to c(nclude that a reasonable jury could find that Defendant’s articulated
reason thr
terminating Plaintiff is a pretext for discrimination.

The Court will provide two illustrative

examples of disputed issues of material fact that preclude this Court from holdin
g, as a matter of
law, that Plaintiff has failed to set forth any evidence of pretext.
First, there is a genuine issue of material fact as to whether Plaintiff was aware that
his
leave expired on September 29, 2011.

Plaintiff denies having ever received the Notice of

Designation from Defendant stating the date of expiration of his leave, and Defend
ant does not
dispute this fact with a proper citation to the record. (Id. at 60; Def. Resp.
to P1. Supp. SUMF
¶
at

¶ 60.) Additionally, it is undisputed that Defendant continued to pay Plaintiff his salary even

after his leave expired. (P1. Supp. SUMF at 85.) Based on these facts,
a reasonable jury could
¶
believe that Defendant purposely kept Plaintiff in the dark as to when he was
expected to return
to work to later justify his termination.
Second, there is a dispute as to whether at some point in September 201.1,
Plaintiff sent
McDonald a text message suggesting that Dr. Mautner might clear him to
return to work after his
visit of October 12, 2011. (Compare P1. Supp. SUMF at
SUMF at

¶ 75, with Def. Resp. to P1. Supp.

¶ 75.) Should a jury believe that Plaintiff did, in fact, send McDonald this text

message, it could also reasonably believe that Defendant had notice
that Plaintiff intended to
18

return to work, and thus had no basis to terminate him for job abandonment.
Because there are sufficient facts in the record that could lead a reasonable jury to find
both that Plaintiff has established a prima fade case of retaliation under the NJLAD and
,
that
Defendant’s articulated reason for terminating him is pretextual, it would be inappropriate
for the
Court to grant summary judgment as to Plaintiff’s retaliation claim in favor of Defend
ant.
Accordingly, insofar as Defendant moves for summary judgment as to Plaintiff’s retaliat
ion
claim under the NJLAD, the motion is denied.
B.
Discrimination Claim under the NJ LAD

to

Plaintiff sjjkilit

Defendant argues that Plaintiff cannot establish a prima ficie case of disabil
ity
discrimination because he cannot satisfy the second element of a disability discrimination
claim.
namely, that he was performing at a level that met Defendant’s expectations. The Court
agrees.
There is no dispute that two weeks before Plaintiff discovered the blister on his leg,
he
was reprimanded for his unsatisfactory job performance. The Coaching Report
Plaintiff received

on April 25, 2011 describes various examples of Plaintiffs deficient job perform
ance, including
a failure to complete assigned tasks on April 4 and 22, 201 1, and an inability “to provid
e the
necessary leadership to teach, coach, and train his associates.” (Weisbrot
Cert., Ex. G.)

The

Coaching Report also advised Plaintiff to “take the necessary steps to improv
e on his job
performance” and warned that “[t]he next level of action if [his] behavi
or continues” could
include termination. (hi.) Four days after Plaintiff received the Coaching
Report, Plaintiffs
supervisor informed the Market Human Resources Manager that Plaintiff
had left work without
either notifying any of the shift managers, or completing his overnight respon
sibilities. (Def.
SUMF. at ¶ 20.)
It is clear that before Plaintiff ever discovered his blister and requested and
took medical
19

leave, Defendant did not consider his job performance satisfactory. Thus, any dispute
as to
whether Plaintiff was actually performing satisfactorily is not relevant to whethe
r any
performance deficiencies served as a pretext to discriminate against Plaintiff on accoun
t of any
disability.
The Court notes that Plaintiff denies that his job performance was ever deficient.
Plaintiff’s bare conclusory denial, however, is insufficient to create a genuine issue
of material
fact as to whether he was meeting Defendant’s legitimate performance expectations.
See Betts,
621 F.3d at 252. In his opposition brief, Plaintiff fails to point to any evidence sugges
ting that he
had been performing his job at a level meeting Defendant’s legitimate expect
ations prior to
taking leave. n fact, Plaintiff merely glosses over his prima facie burden in a single paragr
aph,
(see P1. Oppn. Br. at 18), and devotes extensive space in his brief to argue that
Defendant’s

justification for terminating his employment (i.e., that he abandoned his job) is pretext
ual, (id. at
16-21).
This argument misses the mark.

Under the McDonnell Douglas framework, Plaintiff

bears the initial burden of setting forth sufficient facts to support a reasonable finding
that he has
established all the elements of a prima facie case of disability discrimination
. See McDonnell
Douglas, 411 U.S. at 802. Plaintiff’s conclusory assertion that “[hje was qualifi
ed to perform the
job as there is no allegation that he was terminated for poor performance,” (see
P1. Oppn. Br. at
18), is insufficient to create a genuine issue of material fact as to whether his
performance met
Defendant’s legitimate expectation.

See Betts, 621 F.3d at 252.

Accordingly, insofar as

Defendant moves for summary judgment as to Plaintiff’s disability discrim
ination claim, the
motion is granted.
C.

Propriety of Granting Summary Judgment as to Plaintiff’s Claim for Failure
to
Provide a Reasonable Accommodation and Failure to Engage in the Interactive
20

Process in Violation of the NJLAD
In a “failure to accommodate case of disability discrimination, a plainti
ff must first
present the prima facie elements required in any [NJ]LAD disability discrimination
claim, that is:
(1) plaintiff was disabled within the meaning of the statute; (2) plaintiff was
qualified to perform
the essential functions of the position of employment; and (3) plaintiff suffere
d an adverse
employment action because of the disability.” Victor v. State, 401 N.J. Super.
596, 614 (2008).
If “there is a claim that the employer failed to engage in an interactive
process concerning
accommodation, that argument goes to the second factor of the prima
flicie case.” Linton v.
L ‘Oreal USA, No. 06-5080, 2009 U.S. Dist. LEXIS 25357, at *7 (D.N.J
. Mar. 27, 2009)
(Linares. .1.) (citing Victor, 401 N.J. Super. at 614).
To show that an employer failed to participate in the interactive proces
s, a disabled
employee must demonstrate: (1) the employer knew about the employee’s
disability; (2) the
employee requested accommodations or assistance for her disability;
(3) the employer did not

make a good faith effort to assist the employee in seeking accommodat
ions; and (4) the
employee could have been reasonably accommodated but for the emplo
yer’s lack of good faith.”
Tynan v. Vicinage 13 of Superior court, 351 N.J. Super, 385, 400-01
(App. Div. 2002). “The

burden is first upon the employee to request assistance, and then upon
the employer to come up
with potential accommodations.” Linton, 2009 U.S. Dist. LEXIS 25357, *8
at
(citing Tvnan, 351

N..J. at 400).

“While there are no magic words to seek an accommodation, the
employee,

however, must make clear that.

.

.

assistance [is desired] for his or her disability.” Tynan, 351

N.J. Super. at 400 (alteration in original) (citation and internal quotati
on marks omitted).
Here. Plaintiffs failure to accommodate claim is largely premised
on his allegations that:
(1) “Defendant failed to engage in the ‘interactive process’ and unilate
rally imposed a return date
21

that was not consistent with Plaintiffs doctor’s recommendations in violation of
the NJLAD;”
and (2) Defendant unreasonably failed to accommodate Plaintiff by authorizing
a reasonable
extension of Plaintiffs leave,” and failing to “return{j him to his open positio
n.” (See Am.
Coinpi. at ¶i 33-34. 37.)

The Court construes Plaintiffs failure to accommodate claim as

asserting two alternative theories as to the second element of his prima
1icie case—(a) that
Defendant failed to provide a reasonable accommodation in connection with Plainti
ff’s request
frr leave until September 10, 2011, and (b) that Plaintiff failed to engage in
the interactive
process in connection with Plaintiffs purported request for leave until October/Nove
mber 2011.
See, eg., Linton, 2009 U.S. Dist. LEXIS 25357, at *8; see also Mickens v. Lowe
Cos., No. 076148, 2010 U.S. Dist. LEXIS 66071, at *6 (D.N.J. July 2,2010).
a.

Plaintiffs Claim that Defendant Failed to Provide a Reasonable Accommodat
ion
mConnection with his
through September 1 QIl

Although the parties dispute when, exactly, Plaintiff requested leave, there is
no dispute
that on July 27. 2011, Plaintiff filed a proper request for FMLA leave from June22
to September
10, 2011.

(Dcf SUMF at

¶

40; P1. Resp. SUMF at

¶

42.) Approximately one day prior to

Plaintiff’s request of July 27, 2011, Defendant received a certification from
Dr. Mautner stating
that Plaintiff suffered from leg ulcers and could return to work in Octobe Novem
r/
ber 2011.

(See McDonald Dep. Ex. K.)
Defendant appears to argue that it is entitled to summary judgment as to Plainti
ff’s failure
to accommodate claim because: (1) Plaintiff never requested leave beyond
twelve weeks of
FMLA leave and (2) New Jersey law does not require an employer to grant
a leave of absence as
a reasonable accommodation. Plaintiff, on the other hand, largely argues
that he is entitled to
summary judgment as to his failure to accommodate claim because
Defendant failed to return
him to his open position when he was medically cleared to return to work.
22

Defendant’s arguments in support of its motion are unpersuasive
for two reasons. First,

while the argument that Plaintiff did not request leave beyond
twelve weeks of FMLA leave is
relevant to Plaintiffs theory that Defendant failed to engage
in the interactive process—a theory
that is discussed infra—it does not otherwise address the
essential elements of a failure to

accommodate claim. Second, Defendant’s assertion that New
Jersey law does not require it to
provide a leave of absence as a reasonable accommodation
is wrong as a matter of law. As
discussed in Section V.A.a. 1, supra, New Jersey law
recognizes that a reasonable
accommodation may take the form of a temporary leave
of absence. See, e.g., N.J. Admin. Code

13:l3-2.5(b)(l)(ii); see also Santiago, 2009 N.J. Super.
Unpub. LEXIS 441, at *15 (observing
that “whether or not a leave of absence was a reasonable
accommodation

.

.

.

is a jury question)

(emphasis in original). Thus, it follows that a failure to extend
a disabled employee’s leave of

absence for a finite period of time can, indeed, subject an emplo
yer to liability for failure to
provide a reasonable accommodation. See N.J. Admin.
Code l3:13-2.5(h)(l)(ii); Santiago, 2009
N.J. Super. Unpub. LEXIS 441,10
Plaintifrs argument that he is entitled to summary judgm
ent because Defendant failed to
restore him to his open position once he was medically
cleared to work is also unpersuasive.
Even if the Court were to agree that Defendant’s failure
to restore Plaintiff to his open position

weighs in favor of a finding that Defendant failed to reason
ably accommodate him, Plaintiff has
‘°

It bears mentioning that Defendant’s reliance on Conoshenti
v. Public Serv. Elec. & Gas Co., 364 F.3d 135 (3d
Cir. 2004) for the proposition that an employer is catego
rically not required to extend an employee’s leave of
absence to provide a reasonable accommodation is mispla
ced. In Conoshenti, the Third Circuit “decline[d) to hold
that a temporary leave of absence must be granted under the
NJLAD” because “requiring [the plaintiff’s employ
erl
to grant [the plaintiff] a leave of absence as an accommodati
on following his FMLA leave would not have enabled
him to presently perform his job,” as required by the New
Jersey Administrative Code. 364 F.3d at 150. At the time
that Conoshenti was decided, “the New Jersey Administrativ
e Code provide[ed] an exception to an employer’s
obligation to provide a reasonable accommodation” when
the employee could not “presently perform the job even
with reasonable accommodation.” Id. (quoting N.J. Admin
. Code 13:2.8(a)). As the Appellate Division noted in
Santiago, however, “the precedential weight of Conoshenti
was dissolved by amendment of [the New Jersey
Administrative Codel to remove the word ‘presently’ in connec
tion with a disabled individual’s ability to perform
his or her job in order to clarify that a leave of absenc
e was a form of reasonable accommodation in employment
under the {NJJLAD.” 2009 N.J. Super. Unpub. LEXIS 441, *14.
at

23

not explained how a consideration of the third essential element of his failure to accommodate
claim entitles him to summary judgment as to this claim. That is. PlaintilT has failed to set forth
any reason that should compel the conclusion that he “suffered an adverse employment action

hc’

of his disability.” See, e.g., Victor, 401 NJ. Super. at 614 (emphasis added). In any

event, as discussed in Section V .A.a.2. .supra. there are genuine issues of material fact as to
whether Plaintiff was terminated because of his disability. Thus. it would he Inappropriate for
this Court to hold—as a matter of law—that Defendant failed to reasonably accommodate
PlaintilY in connection with his request [‘or leave until September 10. 2011 by refusing to
reasonably extend PlaintifPs leave.

For the foregoing reasons. Defendant’s motion and Plaintiffs cross-motion are denied
insofar as each motion seeks summary judgment as to Plaintitis failure to accommodate claim to
the extent that this claim is premised on Defendants purported

Ihilure to reasonably

accommodate Plaintiff in connection with his request for leave until September 10, 2011.
h.

Plainti [‘Ps Claim that Detindant Failed to Engage in the Interactive Procçs

Defendant argues that it is entitled to summary judgment as to Plaintiffs failure to
accommodate claim insofar as this claim is premised on its purported failure to engage in the
i nteractn e process because, among other reasons. Plaintiff never requested any accommodation,
(Sec Def. Br. at 16-17.)

Plaintiff, on the other hand, suggests that Dr. Mautner’s July 2011

certification of Plaintiff’s need for leave through October /November 2011 amounted to a request
for leave through that date, which triggered Defendant’s obligation to engage in the interactive
process. (P1. Br. at 11-16.)
Here, there is no legitimate dispute that Plaintiff himself, never requested any
accommodation beyond medical leave through September 10, 2011. The record demonstrates

24

that in the request for leave that Plaintiff submitted to Defendant on July 27, 2011, he agreed “to
return to work on September 10, 2011.” (See Weisbrot Cert. Ex.

Q.)

Defendant approved this

request for leave. (Def. SUMF at ¶ 44; P1. Resp. SUMF at 44.)
¶
During his deposition, Plaintiff acknowledged that while he was on leave, he neither
asked Defendant to accommodate his injury in any way, nor informed Defendant that he could
work with a reasonable accommodation. (See Weisbrot Cert., Ex. F, Boles Depo. Tr. at 195:13;
196-97.) Therefore, the question this Court must address is whether a physician’s certification
suggesting that an employee requires leave beyond the date the employee requested amounts to
a
request for leave through that time.

This Court previously addressed this very question in

Linton.

In that case, an employee brought an NJLAD failure to accommodate claim against his
employer for terminating him after he attempted to return to work following medical leave.
Linton, 2009 U.S. Dist. LEXIS 25357, at *2..*5. After the employer granted the emplo
yee’s

initial request for leave, the employee submitted a series of notes from his physician to
his
employer indicating that the employee would remain on leave beyond the expiration
of his
approved leave. Id. at *3,

*

1 0* 11. The notes, however, did not contain any specific requests

for an extension of leave. Id. at *3,

*

1 0* 11. In opposing summary judgment, the employee

argued that “the series of notes from {his physician) provided sufficient notice that he
required
some additional accommodation due to his continued inability to return to work.”
id at

*

11.

This Court rejected the employee’s argument, reasoning that “to interpret the
type of form
supplied by the physician.

.

.

as a request for accommodation on behalf of an employee would

have the result of shifting the burden to begin the interactive accommodation proces
s to the
employer.” Id. at *11 *12. Specifically, this Court held that “{s)omething more is require
d of an
25

employee under the NJLAD than merely apprising her employer that she
is still injured to start
the interactive process; the employee must at least arguably seek assista
nce to survive summary
judgment.” Id. at *16.
Here, Dr. Mautner’s certification does not make any explicit or implic
it request for an
accommodation. Like the notes of the physician in Linton, Dr. Mautner’s
certification states that
Plaintiff could return to work at a date subsequent to the expiration of his
approved leave, but
does not request that Plaintiff’s leave be extended beyond the time he, himsel
f, requested. As
neither Plaintiff nor Plaintiff’s physician made so much as an arguab
le request for leave to be
extended until October 2011, Defendant’s obligation to engage in the
interactive process was
never triggered. See Linton, 2009 U.S. Dist. LEXIS 25357, at *16..*17.
Because the record is devoid of any evidence suggesting that Plaintiff
made any clear
request for leave through October/November 2011, the Court will grant
summary judgment in
Defendant’s favor as to Plaintiff’s failure to accommodate claim insofar
as this claim is premised
on Defendant’s purported failure to engage in the interactive process. To
the extent Plaintiff’s
cross-motion for summary judgment as to his failure to accommodat
e claim is premised on
Defendant’s failure to engage in the interactive process, Plaintiff’s cross-m
otion is denied.
D.

Propriety of Granting Summary Judgment as to Plaintiff’s FMLA
Interference
Claim

The FMLA entitles employees to a maximum of twelve weeks
of leave per year to
address “a serious health condition that makes the employee unable to
perform the functions of
the position of such employee.” 29 U.S.C.

§ 26 12(D). “After an eligible employeeH returns

from FMLA leave, the employee is entitled to be reinstated to his
or her former position or an
equivalent one.” Conoshenti, 364 F.3d 135 (3d Cir. 2004). To
protect these substantive rights,
Defendant does not dispute that Plaintiff was an eligible employee within
the meaning of the FMLA.

26

the FMLA makes it “unlawful for any employer to interfere with, restrain, or deny the exercise
of or the attempt to exercise, any right provided under [the FMLA].” 29 U.S.C.

§ 2615(a)(l).

Department of Labor (“DOL”) “regulations impose upon the employer obligations to
communicate with employees regarding their rights under the FMLA.” Conoshenti, 364 F.3d at
142,

Under these regulations, “[w]hen an employee requests FMLA leave, or when the

employer acquires knowledge that an employee’s leave may be for an FMLA-qualifying reason,
the employer must notify the employee of the employee’s eligibility within five business days,
absent extenuating circumstances.” 29 C.F.R.

§ 825.300(b)(l). The DOL regulations also

require employers to “provide written notice detailing the specific expectations and obligations
of the employee and explaining any consequences of a failure to meet these obligations.” 29
C.F.R.

§ 825.300(c)(l). Finally, DOL regulations make “[t]he employer.

.

.

responsible in all

circumstances for designating leave as FMLA-qualifying, and for giving notice of the
designation to the employee” within five business days of having “sufficient information to
determine whether the leave is being taken for an FMLA-qualifying reason” unless there are
extenuating circumstances. 29 C.F.R.

§ 825.300(d)(1).

An employer’s failure to comply with the notice requirements set forth in the DOL
regulations “may constitute an interference with, restraint, or denial of the exercise of
an
employee’s FMLA rights,” subjecting the employer to liability. 29 C.F.R.

§ 825.300(e). When,

as in this case, an FMLA interference claim is premised on an employer’s failure to provid
e

timely notice, the plaintiff must show that the employer’s failure to provide notice resulted in
an
“impairment of [his] rights and resulting prejudice.” Ragsdale v. Wolverine World Wide,
fnc.,
535 U.S. 81, 90 (2002): see also Conoshenii, 364 F.3d at i43 (observing that a plainti
ff may

“show an interference with his right to leave under the FM LA, within the meaning of 29
U.S.C.
27

§

2615(a)(l). if he is able to establish that his failure to advise rendered him unable to exercise

that right in a meaningful way, thereby ç sin in/urv.”) (emphasis added).
Here, Plaintiffs FMLA interference claim is largely premised on his contentions that: (a)
Defendant failed to send him either the Notice of Eligibility and Notice of Designation follow
ing
his request for leave, and (b) even if Defendant had, in fact, sent him a Notice of Design
ation,

that notice did not clearly inform him when his FMLA leave expired. (See Def. Oppn. Br.
at 2324.)

A thorough review of the record compels this Court to conclude that there is a genuine
issue of material fact as to whether Plaintiff received the Notice of Eligibility and Notice
of
Designation, as was his right under the FMLA. Whereas Plaintiff claims that he did not receive
these notices. Defendant claims that he did. (See P1. Supp. SUMF at

Supp. SUMF at

¶

¶

60; Def. Resp. to P1.

60.) At the summary judgment stage. the Court’s task is not to determine

which version of the facts is accurate, but whether there is a genuine factual dispute
for a jury to

resolve. With respect to whether Plaintiff received the notices to which he was entitle
d, such a
dispute exists.

Additionally, even if Defendant had, in fact, sent Plaintiff the Notice of Design
ation,
there is a question of fact as to whether that document gave proper notice of FM
LA-designated
leave, as required under 29 C.F.R.

§

825.300(d)(l).

The Notice of Designation states that

Plaintiffs leave was approved from May 9, 2011 through September 29,
2011, and that “[a]l1
leave taken for this reason will be designated FMLA leave.” (McDonald
Depo. Ex. 0.) That
same document, however, contains small text within a box entitled “Type
of Leave Approved”
stating the following:
05/09/2011—7/31/2011 FMLA-SHC-Paid
08/01/2011—08/06/2011 Personal-SHC-Paid
—

—

28

08/07/20 1 l—09/29/201 1 Personal-SHC-Unpaid (MHRM’s
approval needed)
Expected return to work date: 9/30/2011
—

(McDonald Depo., Ex. 0.)
Based on the contents of the Notice of Designation, it would be inappropriate for this
Court to conclude that the Notice of Designation gave adequate notice of FMLA-designated
leave. The extent to which the Notice of Designation properly designated FMLA-leave raises a
factual issue for a jury to resolve.
Having determined that there are genuine issues of material fact both as to whether
Plaintiff received the notices to which he was entitled and the adequacy of such notices, the
Court must now consider the prejudice element of Plaintiffs FMLA interference
claim.

Defendant argues that even if it failed to properly notify Plaintiff of his FMLA-designated leave,
Plaintiff suffered no resulting prejudice as he took his full twelve weeks of FMLA leave and was
paid. (See Def. Reply Br. at 12.) This argument is unpersuasive.
In conoshenti, the Third Circuit held that a reasonable jury could find that an ernployers
failure to properly notify the plaintiff of the expiration date of his FMLA-leave
prejudiced him
insofar as it precluded him from making an “informed decision about structuring his
leave and,..

his plan ot recovery, in such a way as to preserve the job protection afforded by the {FML
A].”

See 364 F.3d at 143. Like the plaintiff in conoshenti, Plaintiff claims that had he known that his
job was not protected after July 31, 201 1-—--the date his FMLA leave expired—he would have
explored alternative arrangements to retain his job. If a jury were to find that Defendant
failed to
give Plaintiff proper notice, it could also reasonably find that Plaintiff’s consequent inabili
ty to
make an inthrmed decision as to how to structure his leave amounted to prejudice.

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Because there are genuine issues of material fact as to: (a) whether Plaintiff received
the
notices to which he was entitled, (b) the adequacy of these notices, and (c) the extent to
which
Defendant’s purported failure to provide Plaintiff proper notice caused frejudice, it would
be
inappropriate for this Court to grant summary judgment as to Plaintiffs FMLA interference
claim in Defendant’s favor.

Accordingly, insofar as Defendant has moved for summary

judgment as to Plaintiff’s FMLA interference claim, the motion is denied.
VI.

CONCLUSION

For the reasons set forth above, Defendant’s motion for summary judgment is granted in
part and denied in part.

Specifically, Defendant’s motion is granted as to Plaintiff’s: (a)

disability discrimination claim, and (b) failure to accommodate claim to the extent that this claim
is premised on Defendant’s purported failure to engage in the interactive process. Defendant’s
motion is denied as to Plaintiff’s: (a) retaliation claim; (b) failure to accommodate claim to the
extent that this claim is premised on Defendant’s purported failure to provide a reasonable
accommodation in connection with Plaintiff’s request for leave until September 10, 2011; and (c)
FMLA interference claim.

Plaintiff’s cross-motion for summary judgment is denied.

appropriate Order follows.

Dated

5,;

4’ of March, 2014

7*

JOSE L. LINARES
U.S. DISTRICT JUDGE

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An