KANCHERLA v. LINCOLN EDUCATIONAL SERVICES CORPORATION et al
Filing
68
OPINION. Signed by Judge Kevin McNulty on 2/15/18. (DD, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
SANDEEP KANCHERLA,
Civ. No. 14-7784 (KM)
Plaintiff,
V.
OPINION
LINCOLN TECHNICAL INSTITUTE,
INC., JOHN DOES 1-5, JANE DOES
1-3, and ABC CORPS. 1-10
(fictitious names representing one
or more unknown defendants)
Defendants.
KEVIN MCNULTY, U.S.D.J.:
The plaintiff, Sandeep Kancherla, is a former employee of defendant
Lincoln Technical Institute, Inc. (“Lincoln”). Kancherla contends that Lincoln
should be liable under the Family Medical Leave Act (“FMLA”) for retaliation
and interference, 29 U.S.C. § 2615(a)(1),(2), and liable under the New Jersey
Law Against Discrimination (“NJLAD”) for discrimination and retaliation,
N.J.S.A. 10:5—12(a), (d).
Now before the Court is Lincoln’s motion for summaty judgment as to all
claims under both counts. For the reasons discussed below, Lincoln’s motion is
for the most part denied. It is granted as to Count 1, to the extent Count 1
asserts an interference claim under the FMLA. I also grant Lincoln’s request to
strike Kancherla’s demand for punitive damages under the FMLA.
1
TABLE OF CONTENTS
4
4
Background
A. Procedural History
B. Relevant Facts
1. Kancherla’s Employment with Lincoln
2. Relationship between Lincoln and CUnet
i.
Purchase Orders: “Billing to Budget”
Monthly Invoices and the Client Services
ii.
Agreement
3. Kancherla’s Internal Complaints
4. Lincoln’s Audit of CUnet
5. Kancherla’s FMLA leave
6. Lincoln’s Internal Investigation
7. Lincoln’s Decision to Terminate Kancherla
C. Disputed Facts
1. Violation of Lincoln’s Policies
Marketing Department Internal Control Review
i.
Summary
Lincoln’s Integrity Assurance Program- Code of
ii.
Business Ethics and Conduct
Lincoln’s General Conduct Guidelines
iii.
5
5
5
6
7
7
7
8
9
11
12
12
13
14
14
14
2. Other disputed issues
II.
Legal Standard
14
III.
Discussion
A. FMLA Interference and Retaliation Claims (Count 1)
1. FMLA Interference Claim
2. FMLA Retaliation Claim
Ability to Return to Work
i.
McDonnell Douglas Burden-Shifting Framework
ii.
16
16
17
18
18
20
21
a) Kancherla’s prima fade case of retaliation
bJ Lincoln’s legitimate non-discriminatory reason
for dismissal and Kancherla’s proof of
25
pretext
B. NJLAD Disability Discrimination and Retaliation Claims (Count
2)
1. NJLAD Discriminatory Discharge Claim
‘3
27
28
i.
ii.
Kancherla’s prima facie case of discriminatory
30
discharge
naton reason for
Lincoln’s legitimate non-discrimi
30
dismissal and Kancherla’s proof of pretext
2. NJLAD Retaliation Claim
31
C. Compensatory Damages and the After-Acquired Evidence
Doctrine
D. Punitive Damages
34
E. Backpay
IV.
32
35
36
Conclusion
3
Background’
A. Procedural History
On December 15, 2014, Kancherla filed his original Complaint
(Compi., ECF no. 1). On February 1, 2017, Kancherla filed an Amended
Complaint against Lincoln Technical Institute, Inc. (“Lincoln”) and fictitious
defendants.2 (AC, ECF no. 46). The Amended Complaint asserts claims of
interference and retaliation under FMLA, 29 U.S.C. § 2615(a)(1),(2);
discrimination and retaliation under NJLAD, N.J.S.A. 10:5—12(a),(d); and for
hostile work environment under NJLAD, N.J.S.A. 10:5-12(a). On March 28,
2017, Kancherla and Lincoln filed a stipulation of dismissal with prejudice of
the third, hostile work environment count (ECF no. 51).
On June 20, 2017, Lincoln filed a motion for summary’ judgment. (ECF
no. 55). On August 14, 2017, Kancherla filed papers in in opposition. (ECF no.
61). On August 21, 2017, Lincoln filed papers in reply. (ECF no. 62)
Record items cited repeatedly will be abbreviated as follows:
“AC” = Amended Complaint (ECF no. 46)
“Def. Br.” = Brief in Support of Defendant Lincoln’s Motion for Summary
Judgment (ECF no. 55)
“P1. Opp.” = Plaintiff Kancherla’s Opposition to Defendant Lincoln’s Motion for
Summary Judgment (ECF no. 61)
“Def. Reply” = Reply Brief in Further Support of Defendant Lincoln’s Motion for
Summary Judgment (ECF no. 62)
Defendant Lincoln Educational Sen’ices Corporation, erroneously named as a
defendant in the original complaint, was terminated from the case.
On August 29, 2017, Judge Hammer granted Lincoln’s motion to seal
documents in support of its motion for summary judgment. (ECF no. 63). Some of the
exhibits are therefore sealed, or are cited in their redacted form.
2
4
B. Relevant Facts4
I. Kancherla’s Employment with Lincoln
On June 15, 2009, Plaintiff Kancherla began at-will employment as an
Internet Marketing Manager for defendant Lincoln at its West Orange, New
Jersey location. (DSMF ¶‘j 5, 7). Lincoln is a subsidiary of Lincoln Educational
Services, which is “an educational institution with a network of 20 campuses in
14 states offering diploma, degree, and certificate programs in various skill
trades.” (Id. at
¶
4). Kancherla’s job responsibilities included managing the
Internet budget, engaging in web media buying, setting up campaigns for web
banner display advertising, overseeing current web vendors, and managing
activities and communication of status and results. (Id. at
¶
19). During most
of his tenure at Lincoln, Kancherla reported to Mark Enea (“Enea”), the
Director of Digital Marketing. (Id. at
¶
18). However, in May and June 2013,
Kancherla reported to Don Alava (“Alava”), Vice President of Digital Marketing.
(Id.)
As for Enea, he reported to Alava. (Id.)(citing ECF no. 55-3, Exh. I at
14:24 to 15:10, 20:7 to :11). Alava, in turn, reported to Piper Jameson
(“Jameson”), the Chief Marketing Officer. (Id.)
2. Relationship between Lincoln and CUnet
In 2003, CUnet, LLC (“CUnet”) was retained by Lincoln as a third-party
vendor who would “provide internet lead management services, generat[e}
internet traffic and leads with the intent to increase student acquisition at
Lincoln’s campuses nationwide.” (Id.
¶1J
21, 23). See also (PSSMF
¶
1); (ECF no.
For purposes of this motion, I consider Defendant Lincoln’s Statement of
Undisputed Material Facts (“DSMF”)(ECF no. 55-2), Plaintiff Kancherla’s Responsive
Statement of Undisputed Material Facts (“RSMF”)(ECF no. 61-5), Plaintiff Kancherla’s
Supplemental Statement of Undisputed Material Facts (“PSSMF”)(ECF no. 6 1-7),
Defendant Lincoln’s Response to Plaintiff Kancherla’s Supplemental Statement of
Undisputed Material Facts (“DRSSMF”)(ECF no. 62-2), and Defendant Lincoln’s Reply
to Plaintiff Kancherla’s Responsive Statement of Undisputed Material Facts
(“DRRSMF”) (ECF no. 62-1) pursuant to Local Rule 56.1, as well as the deposition
testimony and documentary evidence. Facts not contested are assumed to be true.
4
5
61-2, Exh. C at 19:1 to :3). In particular, CUnet managed affiliates or pay per
lead vendors who would “host and manage internet sites that capture[dj leads
or potential students for Lincoln.” (PSSMF
¶
2). Cunet delivered those captured
leads to Lincoln, and also had its own internet sites which captured leads for
Lincoln. (Id.)
In the beginning of the Lincoln-CUnet relationship, Enea was responsible
“for writing monthly purchase orders on Lincoln’s behalf to be sent to CUnet
and for approving monthly invoices received from CUnet for payment.” (Id. at
¶
3)(citing ECF no. 61-2, Exh. C at 23:4 to :23, 24:14 to 25:7, 125:7 to 126:10;
ECFno. 61-2, Exh. Dat 11:13 to 14:24). Subsequently, Egbavwe (known as
“Jeff’) Pela assumed that responsibility. (Id.) In 2012, Kancherla took over
Pela’s role and became responsible for managing Lincoln’s account with CUnet,
while Kimberly Kelly (“Kelly”), the Senior Vice President of Client Services for
CUnet, and Joanne Malek (“Malek”), the Senior Account Executive for CUnet,
were responsible for managing the account on behalf of CUnet. (DSMF at ¶‘j
20, 27, 29).
i.
Purchase Orders: “Billing to Budget”
The Lincoln Marketing Department had an internal procedure for
allocating funding for “obtain[ing] lead generation services from third-party
vendors,” like CUnet. (Id. at
¶
31). Kancherla would prepare monthly purchase
orders based on Lincoln’s annual budget for “services to be provided by CUnet
in the following month.” (PSSMF ¶ 14). See also (DSMF ¶ 36). The purpose of
the purchase order was “to provide a budget for the spend for a particular
vendor for that month across different brands, schools, toward different
initiatives that [Lincolni haldi running with other vendors.”’ (DSMF ¶
35)(quoting ECF no. 59-5, Exh. B at 192:7 to :15).
Specifically for CUnet, the purchase order identified a dollar amount
which “served as CUnet’s budget to.
.
.
spend for each campus for that
particular month to deliver leads.” (PSSMF at ¶ 15). Kancherla would sign the
purchase orders; however, depending on the amount of the purchase order,
6
other Lincoln employees, like Enea and Jameson, would also sign off on the
purchase order. (Id. at
¶
14).
Once the purchase order was signed, Kancherla would e-mail it to Malek,
thereby providing her with an allocated budget which was separated into
categories for different campuses. (DSMP at
¶
36). CUnet would then “‘place
the buys in order to get the lead flow set up. They would place money in their
system, by vendor, and they would use that amount of money by campus as
their guide.”’ (Id.flquoting ECF no. 61-2, Exh. C at 30:5 to :12).
This process— Cunet billing Lincoln for the entire amount of money in
the allocated budget—is referred to as “billing to budget.” It is to be
distinguished from CUnet’s billing Lincoln for leads actually delivered, which is
referred to as “billing to actual.” (ECF no. 55-4, Exh. L at 22:3 to :7, 30:16 to
31:16).
ii.
Monthly Invoices and the Client Services Agreement
Under the Client Services Agreement between Lincoln and CUnet, CUnet
was required to “invoice Lincoln on a monthly basis for management fees based
on the actual spend paid to 3rd party internet vendors” under the Agreement.
(ECF no. 59-6, Exh. C). Accordingly, Malek issued monthly invoices to Lincoln
for services rendered to Lincoln by CUnet. (DSMF
¶
30).
3. Kancherla’s Internal Complaints
Kancherla called Lincoln’s Employee Assistance Program hotline on
two occasions: in the fall of 2012 and on or about May 17, 2013. (Id. at ¶ 131;
ECF no. 55-6, Exh. U.)
4. Lincoln’s Audit of CUnet
Internal audits of vendors are conducted on a quarterly basis. (DSMF
53). Jameson would select a single vendor in each quarter to audit for
compliance. (Id.) In early May 2013, Jameson notified Lincoln’s Marketing
¶
A report was generated concerning the May 2013 call. A copy of this report was
submitted by Lincoln. See ECF no. 55-6, Exh. U. However, neither party has provided
a copy of a report associated with the call Kancherla made in the fall of 2012. It is
unclear whether such a report exists for that call.
7
Department that she would be conducting an internal audit of CUnet that
quarter. (Id. at
¶
52).
On May 29, 2013, Kancherla sent Malek an e-mail with the subject line
“Ninja.” (Id. at
¶
54 (citing ECF no. 55-6, Exh. 5)) The e-mail chain discussed
CUnet’s balance. (Id.)
5. Kancherla’s FMLA Leave
Lincoln has a FMLA policy which allows eligible employees up to twelve
weeks of unpaid family leave in a twelve-month period. (Id. at
¶
44) (citing ECF
no. 55-3, Exh. C at 3 1-33). Leave may be granted for “a serious health
condition6 that makes the employee unable to perform his/her job.”7 (Id.)(citing
ECF no. 55-3, Exh. Cat 3 1-33). On or about June 6, 2013, Kancherla
contacted Lincoln’s Benefits Department and requested FMLA leave due to his
anxiety and depression.8 (Id. at
¶
47). Lincoln granted Kancherla’s FMLA
request, and sent him a letter asking him to complete and return a
“Certification of Health Care Provider for Employee’s Serious Health Condition”
form. See (ECF no. 55-5, Exh. R).
Five days later, on June 11, 2013, Alava e-mailed Lincoln’s Human
Resources Department, asking how long Kancherla would be absent. (PSSMF
¶
35) (citing ECF no. 6 1-3, Exh. M). Lincoln’s Human Resources replied that “[p]er
the Attending Physician’s Statement”, Kancherla’s doctor estimated that
The Employee Handbook defines “serious health condition” as “an illness,
injun’, impairment, or physical or mental condition that requires inpatient care or
continuing medical treatment or supervision by a healthcare provider.” (ECF no. 5 1-3,
Eth. C at 32).
6
As stated in the Employee Handbook, employees seeking to request FMLA leave
must make requests “in writing, unless such notice is impossible, thirty] days prior to
the need for leave.” (DSMF at ¶ 44). If a thirty-day notice is not possible, “the employee
must provide notice as soon as practicable and generally must comply with Lincoln
Educational Services’ call-in procedure.” (Id.) Upon applying for leave, an employee
must “provide proof of placement or certification from the health care provider
supporting the need for family/medical leave.” (Id.)
Kancherla did not communicate his leave of absence to Enea, Jameson, or
Alava. (DSMF at ¶ 49).
8
8
Kancherla would be able to return to work on July 30, 2013. (Id.) Alava
forwarded that e-mail to Jameson and Peter Tahinos. (Id.) The next day, Enea
e-mailed Lincoln’s Internet Marketing Team and the vendors who worked with
Kancherla, informing them that Kancherla “xviii be on short term, approved
leave of absence from Lincoln until 7/30/ 13.” (Id. at
¶
36)(citing ECF no. 61-3,
Exh. GJ.
6. Lincoln’s Internal Investigation
After Kancherla took his FMLA leave, Enea notified Malek from CUnet
that he would be the main point of contact while Kancherla was out. (DSMF ¶
56)(citing ECF no. 55-4, Exh. L at 47:19 to 48:6). On or about June 21, 2013,
Malek forwarded an e-mail chain to Enea which included e-mails between
Malek and Kancherla regarding the June 2013 budget for CUnet. (Id. at¶
58)(citing ECE no. 59-6, Exh. E).
According to Malek, she had a conversation with Enea in which she
informed Enea about Lincoln’s “pig bank.” (Id. at ¶ 59) (quoting ECF no. 55”
4, Exh. L at 52:7 to :24). Malek used the terms “piggy bank” and “ninja budget
interchangeably to describe a fund held by CUnet which included 1) extra
money remaining from CUnet’s practice of “billing to budget” rather than
“billing to actual”, and 2) money that CUnet had received from Lincoln to
was
prepay CUnet for its services. (Id. at 23:1 to :4, 81:15 to :22). This fund
carried over on a month-to-month or quarterly basis. (ECF no. 55-4, Exh. L at
[either] because
22:3 to :7). Malek testified that Enea “sounded surprised.
he just didn’t know about it or he didn’t know how much was in there at the
.
.
time.” (Id.flciting ECF no. 55-4, Exh. L at 52:11 to :15).
At some point9, Enea went to the office of his supervisor, Alava, and
informed Alava about the “piggy bank.” (Id. at
¶
60)(citing ECF no. 55-4, Exh. K
Malek,
at 59:7 to :17). Alava and Enea subsequently had a conference call with
who described the fund as a prepaid fund. (Id. at 9 60-61)(citing ECF no. 55The parties dispute the exact timing of when Enea alerted Alava. (DSMF ¶
60);(RSMF ¶ 60); (DRRSMF ¶ 60).
9
9
4, Exh. K at 59:7 to :17, 13:13 to 14:2; ECF no. 55-3, Exh. I at 41:24 to 44:23;
ECF no. 55-4 at 86:1 to :24). In their depositions, Kancherla, Enea, Alava, and
Malek, essentially agreed that “when the actual services provided in a month
totaled less than the purchase order amount, [Kancherlaj would direct CUnet
to ‘bill to budget’ and retain these excess monies in a ‘ninja budget’ or ‘piggy
55bank’ rather than return the money to Lincoln.” (Id. at ¶j62)(citing ECF no.
5, Exh. Pat 146:11 to :21; ECF no. 55-4, Exh. K at 9:19 to :19, 59:21 to 60:22;
ECF no. 55-3, Exh. I at 45:15 to :24; ECF no. 55-4, Exh. L at 25:5 to :21, 29:15
to 32:8, 78:3 to :20, 87:3 to :9).
Relying on information he learned from Malek, Enea testified that
not
“CUnet was invoicing for the exact amount of the purchase order [but] had
been delivering all of the leads that were promised according to the purchase
order. Some of those monies were being set aside in a credit, in a fund.”’ (Id. at
¶63)(quoting ECF no. 55-4, Exh. K at 60:17 to :22). Moreover, according to
Malek, “[c]onversely, in the instance [Kancherla] directed her to ‘bill to budget’
and the invoiced amount was higher than the purchase order amount,
[Kancherlaj would direct Malek to take the residual amount from the ‘piggy
bank.” (Idj(citing ECF no. 55-4, Exh. L at 33:19 to :24; 78:3 to :20).
‘pigi bank’
“Malek created a separate spreadsheet to monitor th[e].
.
maintained by CUnet.” (Id. at
¶
.
66)(citing ECF no. 55-3, Exh. I at 44:24 to
at
45:14). Malek’s supervisor forwarded the spreadsheet to Enea and Alava. (Id.
83)(citing ECF no. 55-4, Exh. K at 15:16 to 16:13, 63:11 to :23; Exh. L at
¶
54:8 to :20). Alava then provided the data he received from CUnet to Jameson.
(Id. at S4flciting Exh. I, ECF no. 55-3 at 20:22 to 2 1:7, 39:9 to :13). Upon
¶
learning this information, Jameson directed Enea and Alava “[tjo go back and
t
work with [Lincoln’s] marketing analyst to investigate and audit the accoun to
see what they.
.
.
could find.” (Id. at
¶
85)(citing ECF no. 55-5, Exh. 0 at 28; 11
to :16). Lincoln’s Marketing Department then conducted an internal
investigation. (Id. at ¶ 86flciting ECF no. 55-5, Exh. Oat 25:5 to :13).
According to Jameson, Enea and Alava had a second meeting with her, where
10
they informed her that “‘they had audited the purchase orders to the invoices,
and that [Lincoln] had overpaid [CUnet], along with printouts of [Kancherla]
currently working during his FMLA period.”’ (Id.)(quoting ECF no. 55-5, Exh. 0
at 34:8 to :12).
Jameson testified that she then conveyed that information to Lincoln’s
Chief Executive Officer (“CEO”) and Chief Financial Officer (“CFO”), and that
the CFO instructed her to order Lincoln’s Internal Audit Department to
conduct an independent audit. (Id. at
¶31
89-90)(citing id. at 44:19 to 45:10,
45:24 to 46:3, 116:23 to 117:5). The Audit Department later orally informed
Jameson that its investigation matched the Marketing Department’s findings.
(Id. at
¶
92)(citing ECF no. 55-5, Exh. 0 at 59:3 to :7). Jameson informed
Lincoln’s CEO and CFO of the Audit Department’s findings. (Id. at
93)(citing
¶
ECF no. 55-5, Exh. 0 at 60:1 to 61:16).
7. Lincoln’s Decision to Terminate Kancherla
Based on the investigatory findings, Jameson recommended to Ace from
Lincoln’s Human Resources Department that Lincoln terminate Kancherla’s
employment. (Id. at
¶
115)(citing ECF no. 55-5, Exh. Oat 22:2 to 23:7, 61:17 to
62:10, 63:17 to :23, 98:2 to :6). Ace agreed with Jameson’s recommendation.
(Id.)
Thereafter, an internal termination transmittal form was signed by Alava
on June 27, 2013, and signed by Jameson, Moore, and Ace on June 28, 2013.
(ECF no. 55-3, Exh. F). As the “Reason for Termination,” the form states the
following:
that
During a meeting on Monday, June 24, CUnet told Lincoln.
[Kancherla] had instructed them to invoice [Lincoln] amounts that
were different from actual expenses that [Lincoln] incurred for the
month, which is contrary to department procedure. They further
shared that these requests had been ongoing for numerous months.
A document provided by CUnet verified that [Lincoln] had been
overpaying CUnet over a number of months and that [Kancherla]
had signed the documents.
.
.
*November 2012: [Lincoln] had a credit of $30,346.75 with CUnet.
11
*December 2012: [Lincolnl incurred $249,966.10 affiliate campaign
costs but was invoiced an additional $105,182.81. Cumulative
overpayment became $135,529.56.
*Janualy 2013: [Lincoln] incurred $541,346.38 affiliate campaign
costs but was invoiced an additional $42,251.65. Cumulative
overpayment increased to $177,781.20.
*Februaly 2013: [Lincoln] incurred $553,987.50 affiliate campaign
costs but was invoiced an additional $9,645.03. Cumulative
overpayment became $187,426.23.
*March 2013: [Lincoln] incurred $521,712.13 affiliate campaign
costs but was invoiced an additional $36,756.89. Cumulative
overpayment grew $224,183.12.
[Kancherla] did not share this information with his direct supervisor
nor other Marketing executives. As a result of [Kancherlaj’s
instructions to CUnet, $224,183 were withheld from the
department’s efforts to achieve its Q 1 objectives. As a result of these
actions, [Kancherla] jeopardized [Lincoln’s] business.
(Id.)
Kancherla received a letter of termination dated July 2, 2013, stating
that his termination was effective June 28, 2013. (RSMF
(DRRSMF
¶
¶
2, 6, 119);
6).
C. Disputed Facts
Although much is in dispute between Kancherla and Lincoln, the disputes
that are essential can be distilled to a few core issues.
1. Violation of Lincoln’s policies
First, the parties dispute one central legal issue: whether Kancherla was
terminated for a legitimate non-discriminatory and non-retaliatory business
reason, i.e., violation of Lincoln’s guidelines and policies regarding advance
billing.
According to Lincoln, Kancherla was terminated for violating (i) Lincoln’s
Marketing Department Internal Control Review Summary; (ii) Lincoln’s Integrity
Assurance Program- Code of Business Ethics and Conduct; and (iii) Lincoln’s
General Conduct Guidelines. (DSMF
¶f
97-98)(citing ECF no. 55-5, Exh. 0 at
25:5 to :13, 57:2-6, 69:17 to 70:24, 104:5 to 106:25).
Kancherla disputes the existence of the “policies and procedures” that
allegedly prohibited his actions with CUnet, and disputes Lincoln’s
12
interpretation of the Client Services Agreement. (DSMF
¶
37);(RSMF ¶j 37, 96,
98, 111)(citingECFno. 61-2, Exh. Cat 35:20 to 36:4, 61:7 to :18, 70:15 to
71:2, 72:23 to 73:25); (DRRSM
¶
37). He also disputes Lincoln’s denial that it
knew of his allegedly prohibited actions. He adds that his management of
CUnet including prepays and “billing to budget,” merely continued the
practices of his predecessor, Pela. (RSMF
¶J
70, 74, 107, 101, 110; PSSMF
¶1
4-6,9, 14-31; DRSSMF ¶14-6,9, 11, 14-31).
i.
Marketing Department Internal Control Review Summary
Lincoln alleges that Kancherla violated Control Number 4 of its 2012
Marketing Department Internal Control Review Summary (the “Review
Summary”). That document, says Lincoln, required Kancherla “to evidence
review and confirm services were performed.” (Id. at
¶
100)(citing ECF no. 55-5,
Exh. 0 at 71:4 to :14, 85:2 to :19; ECE no. 59-6, Exh. D). In Lincoln’s telling,
the Review Summan’ was in place during Kancherla’s tenure, and it dictated
that employees were not permitted “to ‘bill to budget’ and retain these monies
for future use.” (DRRSMF
¶
26; see also DRRSMF
‘
32.)
Kancherla, on the other hand, asserts that when he was terminated, the
Review Summary did not exist. Indeed, he says, Lincoln had no written policy
regarding the purchase order and invoicing process. (RSMF
no. 6 1-2, Exh. C at 35:20 to 36:4). See also (PSSMF
¶
¶
100)(citing ECF
26). In particular, “there
was no written policy or procedure at Lincoln that prohibited directing a vendor
to invoice for the amount of a purchase order, which was greater than the
value of the services actually provided, and allowing the vendor to retain the
overage in a prepaid account or fund.” (PSSMF
¶
27). Specifically addressing
the “bill to budget” practice, Kancherla maintains that “jt]here was no written
policy at Lincoln that prohibited Lincoln from requesting that CUnet ‘bill to
budget’ and retain the amount above the actual services rendered in a credit or
reserve fund to be used against services to be provided in the future,” (RSMF
26)(citing ECF no. 61-2, Exh. C at 61:7 to :18, 70:15 to 71:2).
13
¶
Lincoln’s Integrity Assurance Program- Code of Business
Ethics and Conduct
Lincoln alleges that Kancherla violated its Code of Business Ethics and
Conduct. (DSMF 102). Kancherla disputes this and characterizes it as a legal
ii.
¶
argument, not a factual one for purposes of Rule 56.1. (RSMF
Lincoln’s General Conduct Guidelines
iii.
¶
102).
Lincoln alleges that Kancherla violated its General Conduct Guidelines,
located in Lincoln’s Employee Handbook, by “violat[ingj clear Lincoln policy
which prohibited employees from directing or carrying over monies beyond
(DSMF ¶ 103)(citing ECF
quarters ‘because [Lincoln! is a public company.
.
.“‘
no. 55-3, Exh. I at 28:14 to :17, 68:19 to :22). Kancherla disputes this and
maintains that no such policy existed. (RSMF ¶ 103)(citing ECF no. 61-2, Exh.
C at 72:23 to 73:25). See also (PSSMF ¶ 29).
Lincoln also alleges that it was not “permissible under Lincoln policy to
bill Lincoln for ‘prepays’ for services not rendered in that month.” (DSMF ¶
105)(citing ECF no. 55-4, Exh. M at 39:14 to :18, 40:1 to :14). Kancherla
disputes this and maintains no such policy existed at the time. (RSMF
l05)(citing ECF no. 61-2, Exh. C at 61:7 to :18, 70:15 to 71:2).
¶
2. Other disputed issues
Second, the parties dispute the content of Kancherla’s calls to Lincoln’s
hotline, and whether those calls alleged discriminatory treatment by Enea.
(DSMF
9
13 1-37; RSMF
9
13 1-37).
Third, the parties dispute when Kancherla was able to return to work.
(DSMF 48)(citing ECF no. 55-5, Exh. Q); (RSMF ¶j 48, 51)(citing ECF no. 61-
¶
3, Exh. M); DRSSMF
II.
¶
34).
Legal Standard
Federal Rule of Civil Procedure 56(a) provides that the court should grant
summary judgment “if the movant shows that there is no genuine dispute as to
any material fact and that the movant is entitled to judgment as a matter of
law.” Fed. I?. Civ. P. 56(a); see also Anderson a Liberty Lobby, Inc., 477 U.s.
242, 248 (1986); Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir.
14
2000). In deciding a motion for summary judgment, a court must construe all
facts and inferences in the light most favorable to the nonmoving party. See
Hayes v. Harvey, 874 F,3d 98, 103 (3d Cir. 2017). The moving party bears the
burden of establishing that no genuine issue of material fact remains. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322—23 (1986). “[W]ith respect to an
the burden
issue on which the nonmoving party bears the burden of proof.
.
.
on the moving party may be discharged by ‘showing’—that is, pointing out to
the district court—that there is an absence of evidence supporting the nonmoving party’s case.” Celotex, 477 U.S. at 325.
Once the moving party has met that threshold burden, the non-moving
party “must do more than simply show that there is some metaphysical doubt
as to the material facts.” Matsushita Elec. Indus. Co., Ltd. u. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). The opposing party must present actual evidence
that creates a genuine issue as to a material fact for trial. Anderson, 477 U.S.
at 248; see also Fed. R. Civ. P. 56(c) (setting forth types of evidence on which
rely to support its assertion that genuine issues of
nonmoving
party
must
material fact exist). “[Ujnsupported allegations
.
.
.
and pleadings are
insufficient to repel summary judgment.” Schoch v. First Fid. Bancorporation,
912 F.2d 654, 657 (3d Cir. 1990); see also Gleason v. NonvestMortg., Inc., 243
F.3d 130, 138 (3d Cir. 2001) (“A nonmoving party has created a genuine issue
of material fact if it has provided sufficient evidence to allow a jury to find in its
favor at trial.”). If the nonmoving party has failed “to make a showing sufficient
to establish the existence of an element essential to that party’s cases, and on
which that party will bear the burden of proof at trial,
.
.
.
there can be ‘no
genuine issue of material fact,’ since a complete failure of proof concerning an
essential element of the nonmoving party’s case necessarily renders all other
facts immaterial.” Katz v. Aetna Cas. & Stir. Co., 972 F.2d 53, 55 (3d Cir. 1992)
(quoting
Celotex, 477 U.S.
at
322—23).
In deciding a motion for summary judgment, the court’s role is not to
evaluate the evidence and decide the truth of the matter but to determine
15
whether there is a genuine issue for trial. Anderson, 477 U.S. at 249.
Credibility determinations are the province of the fact finder. Big Apple BMW
Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
The summary judgment standard, however, does not operate in a
vacuum. “[ljn ruling on a motion for summary judgment, the judge must view
the evidence presented through the prism of the substantive evidentiary
burden.” Anderson, 477 U.S. at 254. That “evidentiaiy burden” is discussed in
the following sections.
Discussion
III.
Lincoln moves for summary judgment on all claims in the Amended
Complaint. In Section III.A, infra, I will consider Lincoln’s motion as to Count 1,
the FMLA retaliation and interference claims. In Section III.B, infru, I will
consider Lincoln’s motion as to Count 2, the NJLAD disability’ discrimination
and retaliation claims. For the reasons discussed below, Lincoln’s motion will
be for the most part denied, but granted in part.
A. FMLA Jnterference and Retaliation Claims (Count 1)
The FMLA provides, in relevant part, that eligible employees are entitled
to 12 work weeks of leave during any 12—month period due to an employees
own “serious health condition1° that makes the employee unable to perform the
functions of the position of such employee.” 29 U.S.C.
§
2612(a)(l)(D). After this
period of leave, an employee is entitled to he restored to his or her original
position or its equivalent.” Id.
§
26l4(a)(1).
The term “serious health condition” is defined as “an illness, injury,
impairment, or physical or mental condition that involves (A) inpatient care in a
hospital... or (B) continuing treatment by a health care provider.” 29 U.S.C. §
2611(11).
10
However, as recognized by former Chief Judge Jerome B. Simandle, “this
entitlement to restoration is a qualified one.” Morro v. 130MB Casino LLC, 112 F. Supp.
3d 260, 281 (D.N.J. 2015). The EMLA does not entitle a restored employee to “any
right, benefit, or position of employment other than any right, benefit, or position to
which the employee would have been entitled had the employee not taken the leave.”
29 U.S.C. § 26l4(a)(3)(B).
II
16
To protect those rights, Section 2615 of the FMLA prohibits an employer
from engaging in certain acts. Section 2615(a)(1), known as the “interference”
provision, provides that when an employee invokes his or her rights granted
under the FMLA, an employer may not “interfere with, restrain, or deny the
exercise of or attempt to exercise” those rights. 29 U.S.C.
§ 2615(a)(1). See
Callison v. City of Philadelphia, 430 F.3d 117, 119 (3d Cir. 2005). Moreover,
Section 2615(a)(2), known as the “retaliation” provision, states that an
employer may not “discharge or in any other manner discriminate against any
individual for opposing any practice made unlawful by this subchapter.” 29
U.S.C.
§ 2615(a)(2). See Callison, 430 F.3d at 119. Pursuant to Section 2617,
an employee can bring a civil action against an employer who violates Section
2615. See 29 U.S.C.
§ 2617.
In Count 1 of the Amended Complaint, Kancherla alleges
(1) that Lincoln interfered with his attempt to exercise his rights under
the FMLA by terminating his employment (AC
¶C
33-37), and
(2) that Lincoln retaliated against him for taking FMLA leave by
terminating his employment. (Id.)
1. FMLA Interference Claim
Kancherla’s FMLA interference claim and his retaliation claim are
premised on the same allegation: that Lincoln wrongfully terminated him while
he was out on FMLA leave. (Id.) Some cases have held that such facially
duplicative interference and retaliation claims may not be pursued
simultaneously. See Kumar v. Johnson & Johnson, Inc., No. CIV.A. 12-779
MAS, 2014 WL 5512549, at *11 n.8 (D.N.J. Oct. 31, 2014); Yamamoto u.
Panasonic Corp. of N. Am., No. CIV.A. 12-2352 JLL, 2013 WL 3356214, at
11 (D.N.J. July 2, 2013); see also Lichtenstein v. Univ. of Pittsburgh Med. Ctr.,
691 F.3d 294, 314 n.25 (3d Cir. 2012) (suggesting in dictum that redundant
retaliation and interference claims may be dismissed). Others have suggested,
in dictum, that a redundant claim need not necessarily be dismissed. See
17
Erdman u. Nationwide Ins. Co., 582 F.3d 500, 509 (3d Cir. 2009); see also
Beese v. Meridian Health Sys., Inc., 629 F. App’x 218, 223 n.3 (3d Cir. 2015).
Here, retaliation is clearly the better fit, and the interference claim adds
little if anything to the analysis. Kancherla appears to concede that his
interference claim is redundant, and urges that the Court consider his FMLA
claim to be one for retaliation. I will therefore grant Lincoln’s motion for
summary judgment to the extent of dismissing Count l’s interference claim
under the FMLA. The substance of the action should be unaffected.
2. FMLA Retaliation Claim
i.
Ability to Return to Work
Lincoln asserts that Kancherla’s FMLA retaliation claim should be
dismissed because Kancherla would have been unable to return to work at the
conclusion of his twelve weeks of FMLA leave. (DeL Br. at6 to 8). It relies on
language from the Third Circuit’s non-precedential 2002 opinion in Katekovich
u. Team Rent A Car of Pittsburgh, Inc., 36 F. Appx 688 (3d Cir. 2002). (Id. at 6
to 7). That Court stated that “if an employer terminates an employee during the
twelve weeks [of FMLA leave] but the employee would not have been able to
return to work at the end of the twelve weeks in any event, the employer has
not violated the FMLA.” 36 F. Appx at 690—9 1 (citing Cehrs v. Northeast Ohio
Alzheimer’s Research Center, 155 F.3d 775, 784-85 (6th Cir. 1998)).
The parties agree that Kancherla’s FMLA leave started on June 6, 2013,
and that Kancherla was terminated about three weeks later, on June 28, 2013.
(DSMF 47; RSMF ¶‘j 2, 6, 119, 47; DRRSMF ¶ 6). They dispute whether, if he
¶
had not been dismissed, Kancherla would have been able to return to work at
the conclusion of his FMLA twelve-week leave on August 29, 2013.
Lincoln points to a U.S. Department of Labor FMLA Certification form
from Kancherla’s doctor, dated June 25, 2013 (about three days before
Kancherla’s dismissal). In that USDOL form, the doctor described the duration
of Kancherla’s condition as “indefinite.” (Def. Reply at 5; ECF no. 55-5, Exh.
Thus, says Lincoln, the only information it had at the time indicated that
18
Q).
Kancherla would not be able to return. Lincoln also cites a New Jersey
Department of Labor form completed by Kancherla’s doctor much later, on
October 29, 2013 (i.e., almost five months after Kancherla’s termination). (See
ECF no. 55-6, Exh. X) According to Lincoln, the NJDOL form demonstrates
that Kancherla would not have been fit to return to work until January 2,
2014, about three months after the expiration of his twelve weeks of FMLA
leave. (Def. Br. 8 (citing DSMF
¶
51); ECF no. 55-6, Exh. X).
Kancherla responds that, at the time of his termination, Lincoln did
indeed have information that Kancherla would return to work before the end of
his twelve-week FMLA period—specifically by July 30, 2013. (P1. Br. 1 (citing
PSSMF
35)). Recites a June 11,2013 e-mail in which Lincoln’s Human
¶
Resources Department confirmed to Alava that Kancherla’s doctor estimated a
return-to-work date of July 30, 2013)2 See (PSSMF ¶ 35flciting ECF no. 61-3,
Exh. M). A New Jersey Department of Labor form completed by Kancherla’s
doctor on June 25, 2013 also indicates July 30, 2013 as an estimated return
date. (ECF no. 55-6, Exh. X).’
Kancherla adds that his mental condition was “exacerbated” by the
termination on June 28, 2013. Thus it was only after the termination that his
doctor estimated that he would not be prepared to resume work until January
2014. (RSMF 123 (citing ECFno. 55-5, Exh. Pat 114:21 to 115:9). Lincoln,
Lincoln asserts that under Katekovich, it is immaterial whether at the time of
Kancherla’s termination, it “had information” that Kancherla would return to work
during the twelve-week FML period. (Def. Reply 4). In stating “but the employee
would not have been able to return to work at the end of the twelve weeks in any
36 F. Appx at 690, the Katekovich Court did not specify the exact contours
event
of its conclusion. Moreover, post -Katekovich case law has not explicitly explained the
relevance of an employer’s knowledge or possession of information regarding an
employee’s date of return to work. Because I find that summary judgment is
inappropriate given the genuine issue of material fact as to whether Kancherla was
able to return to work at the end of his FMLA leave, I will reserve discussion of the
issue.
13
Lincoln maintains that there is no evidence that it “received the certification
submitted to the NJ Department of Labor” which indicated that Kancherla would
return to work before the expiration of his FMLA leave. (Def. Reply at 5 to 6).
12
,
19
Rancherla says, did not receive any information that Kancherla would be
unable to return to work within the FMLA period “until after it terminated his
employment (and likely not until this litigation).” (P1. Br. at 1 to 2)(citing
Anderson v. DSMN.V, 589 F. Supp. 2d 528, 537 n.y (D.N.J. 2008)).
There is a material issue of fact as to Kancherla’s ability, or not, to return
to work at the end of his FMLA leave, and whether Lincoln had
contemporaneous information that would have justified its termination
decision on that basis. Lincoln’s motion for summary judgment on the Count 1
FMLA retaliation claim, insofar as it is based on inability to return to work, will
therefore be denied.’4
I therefore proceed to analyze the evidence of retaliation.
ii.
McDonnell Douglas Burden-Shifting Framework
FMLA retaliation claims based on circumstantial evidence are assessed
under the burden-shifting framework established in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973).’5 Lithtenstein, 691 F.3d at 302. In this case,
Kancherla’s claim is based on circumstantial evidence. Accordingly, to succeed
on his claim, he has the initial burden of establishing the prima fade case. Id.
If he is able to make this showing, the burden of production shifts to Lincoln to
“articulate some legitimate, non-discriminatory reason” for its decision. Id.
In Cehrs, the Sixth Circuit opinion cited by Katekouich, it was undisputed that
the plaintiff was unable to return to work on the day her FML4 leave would have
ended. 155 F.3d at 778. Similarly, in Katekovich, the employee had not presented
evidence that she could return to work within twelve weeks. 36 F. Appx at 691. In
Morro v. DQMB Casino LLC, 112 F. Supp. 3d 260 (D.N.J. 2015), cited by Lincoln, it was
likewise undisputed that the employees was unable to return to work after the twelve
nothing in the record
weeks of FMLA leave. 112 F. Supp. 3d at 281 (stating
supports that [the plaintiff-employee] would have been able to return to work in July,
once her twelve weeks of FMLA leave were exhausted. Nor does Plaintiff argue
*23
otherwise.”). See also Smith a UBS Fin. Sews., Inc., 2006 U.S. Dist. LEXIS 70551,
(D.N.J. 2006) (undisputed that plaintiff was unable to return to work until nearly two
months after his FMLA leave expired).
‘4
“.
.
.
In contrast, claims relying on direct evidence of retaliation use the less taxing
mixed-motive framework set forth in Price Waterhouse a Hopkins, 490 U.S. 228, 27677 (1989).
15
20
(quoting McDonnell Douglas, 411 U.S. at 802). If Lincoln meets this “minimal
burden”, Kancherla must then point to some direct or circumstantial evidence
from which a fact finder could “reasonably
...
disbelieve [Lincoln’sl articulated
legitimate reasons.” Id. (quoting Fuentes u. Perskie, 32 F.3d 759, 764 (3d Cir.
1994)).
Lincoln’s motion here focuses on the first McDonnell Douglas element.
Lincoln argues that Kancherla has not met his initial burden of establishing a
prima fade case of retaliation sufficient to shift the burden to Lincoln to justify
the dismissal.
a) Kancherla’s prima facie case of retaliation
To establish a prima fade case of retaliation under the FMLA, a plaintiff
must prove that: (1) he invoked his right to FMLA benefits; (2) he suffered an
adverse employment action; and (3) adverse employment action was causally
related to his invocation of FMLA rights. Lichtenstein, 691 F.3d at 302;
Conoshenti v. Public Sew. Elec. & Gas Co., 364 F.3d 135, 146 (3d Cir. 2004). As
noted above, the prima facie burden is fairly minimal. Lincoln challenges the
second and third prima facie elements, arguing that Kancherla’s termination
was not an “adverse employment action,” and was not “causally related” to his
invocation of FMLA rights. (Def. Br. 11 to 15). Reading the record in the light
most favorable to Kancherla, I must reject Lincoln’s contentions and find
sufficient evidence to support a prima facie case of retaliation.
The first element is not contested. Kancherla took leave under the FMLA.
Regarding the second element, in the context of FMLA retaliation, an
adverse employment action must be one that “alters the employee’s
compensation, terms, conditions, or privileges of employment, deprives him or
her of employment opportunities, or adversely affects his or her status as an
employee.” Budhun
ii.
Reading Hosp. & Med. Ctr., 765 F.3d 245, 257 (3d Cir.
2014) (citing Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir.
1997)). The Third Circuit has not yet decided whether the FMLA analysis
should incorporate the lower standard for “adverse employment action” that
21
the Supreme Court has adopted in Title VII retaliation claims. Id. at 257 n.6
(citing Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53
(2006)). Under the more relaxed Burlington standard, “‘a plaintiff must show
that a reasonable employee would have found the challenged action materially
adverse,’ such that the action well might have dissuaded a reasonable worker
from taking a protected action.” Id. (quoting Burlington, 548 U.S. at 68). Here,
however, the “adverse action” is dismissal, i.e., firing, which is adverse in
anybody’s book. Thus the precise standard probably does not matter here.’6
Lincoln asks this Court to read into the “adverse action” element a
requirement that “‘[ijn order to show that termination was adverse, Plaintiff
needs to present evidence indicating that
...
[hej could have performed
...
[his]
job duties at the time of
Fhis] termination.” (Def. Br. 11 to 12)(quoting Smith,
2006 WL 2668203, at *3 (quoting Dogmanits v. Capital Blue Cross, 413 F.
...
Supp. 2d 452, 462 (E.D. Pa. 2005)(citing Alzfano v. Merck & Co., Inc., 175 F.
Supp. 2d 792, 795 (E.D. Pa. 2001)). Lincoln’s argument is not wholly without
support. Some courts in our Circuit have indeed held that in order to show an
adverse employment decision, a plaintiff needs to present evidence indicating
that he could have performed his job duties at the time of his termination. See
Smith, 2006 WL 2668203, at *3; Dogmanits, 413 F. Supp. 2d at 463; Abfano,
175 F. Supp. 2d at 795. (Actually, the issue must be Kancherla’s ability to
As Judge Kugler has noted, “[wihile the Third Circuit has never squarely held
that this ‘materially adverse’ standard applies in the context of an FMLA retaliation
claim, it has suggested that, were it necessary to address the issue, it would so hold.”
*4 (D.N.J. June 27, 2013) (citing
Incorvati a Best Buy Co., 2013 WL 3283956, at
*5 (3d Cir. Feb. 15,
Kasper u. County of Bucks, No. 12—2504, 2013 WL 563342 at
standard applies in the FMLA
2013) (assuming, “arguendo, that the Burlington
context”); DiCampli a Konnan Communities, 257 F. App’x 497, 500—0 1 (3d Cir. 2007)
(applying the Burlington standard to an FMLA claim without further discussion)). Most
recently, in Wells v. Retinovitreous Assocs., Ltd., 702 F. App’x 33,36 n.14 (3d Cir.
2017), the Third Circuit noted that the District Court should have applied the
Burlington standard to plaintiffs retaliation claims under the Americans with
Disabilities Act (“ADA”), the FMLA, and the Pennsylvania Human Relations Act
(“PHRA”). Called upon to decide the issue, I would make the plaintiff-friendly
assumption that the Burlington standard applies, and analyze Kancherla’s retaliation
claim under that standard.
16
...
99
return at the end of the FMLA period, not his ability to return during that
this
period, which is when the dismissal occurred.) However, other courts in
17 At
Circuit have declined to fallow suit, and I am persuaded by that authority.
a
any rate, for the reasons stated above, Kancherla’s ability to return to work is
disputed factual issue.
Here, Kancherla alleges that his taking FMLA leave resulted in the
termination of his employment with Lincoln. It is undisputed that Kancherla
was terminated while out on FMLA leave. Being fired is surely an “adverse
gton
employment action.” I find that Kancherla’s termination satisfies the Burlin
standard, and that the second element of the prima facie case of retaliation
under the FMLA is satisfied.
See McDonald v. SEIU Healthcare Pennsylvania, No. 1:13-CV-2555, 2014WL
4672493, at *17 (M.D. Pa. Sept. 18, 2014)(”[a]pplying the ratio decidendi of Budhun”
her
and rejecting defendants’ claim that the plaintiffs “inability to return to work after
erse for the purposes of
FMLA leave, standing alone, render[edj her termination nonadv
0,
her retaliation claim.”); Donald v. Se Pennsylvania Transp. Auth., No. CIV.A. 13-044
plaintiffs
2014 WL 3746520, at *6 (E.D. Pa. July 29, 2014)(concluding that
facie
termination constituted an adverse employment action in the context of a prima
CIV.A. 10-05562,
case of retaliation under the FMLA); Fleck v. WILMAC Corp., No.
2011 WL 1899198, at 9 (ED. Pa. May 19, 2011)choos[ing} not to follow Akfano line
as it appears to conflate the FMLA’s prescriptive right to restatement
of reasoning.
, No.
and proscriptive right against retaliation.”); Castellani v. Bucks Cty. Municipality
*6 (E.D. Pa. Aug. 27, 2008), affd, 351 F. Appx
CIV.A.07-1198, 2008 WL 3984064, at
FMLA
774 (3d Cir. 2009)(holding that because there was no dispute that plaintiff took
ff had satisfied the
leave and was subsequently discharged from employment, plainti
courts
first two elements of a prima facie case of retaliation, and recognizing that other
ions applicable to
have noted that Smith, Dogmanits, and Alfano “conflate the regulat
interference and retaliation claims under the FMLA in holding that a plaintiffs
inability to return to work precludes finding an adverse action for purposes of a
524 n.4
retaliation claim.”); Chapman v. UPMC Health Sys., 516 F. Supp. 2d 506,
ding that
(W.D. Pa. 2007) (rejecting defendant’s reliance on Dogmanits and conclu
FMLA
termination from employment qualifies as an adverse employment action in an
2007 WL
retaliation case); Keim v. Nat’l R.R. Passenger Corp., No. CIV.A. 05-CV-4338,
“rely
2155656, at *7 n.6 (E.D. Pa. July 26, 2007)(stating that Dogmanits and Alifano
e the
on case law and language from substantive FMLA cases and appear to conflat
proscriptive and prescriptive inquiries”).
17
.
.
23
With respect to the third element of the prima facie case for FMLA
retaliation, according to Lincoln, the temporal proximity between Kancherla’s
request for FMLA leave and Lincoln’s termination of Kancherla is insufficient to
create an inference of causation. (Def. Br. 14 to 15). Kancherla, on the other
hand, maintains that his termination less than three weeks into his FMLA
leave is “unduly suggestive” timing that establishes a causal connection
between his request for FMLA leave and his termination. (P1. Opp. 7 to 10).
The Third Circuit has cautioned that in determining whether a causal
link exists between the protected activities and a plaintiffs termination, courts
should turn “a careful eye to the specific facts and circumstances
encountered.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279 n.5 (3d Cir.
2000). “To demonstrate a causal connection, a plaintiff generally must show
‘either (1) an unusually suggestive temporal proximity between the protected
activity and the allegedly retaliatory action, or (2) a pattern of antagonism
coupled with timing to establish a causal link.”’ Budhun, 765 F.3d at 258
(quoting Lauren W. ex rel. Jean 11/ v. DeFlaminis, 480 F.3d 259, 267 (3d Cir.
2007)). See LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 232 (3d
Cir. 2007)(holding that “[wjhere the temporal proximity- between the protected
activity and the adverse action is ‘unusually suggestive,’ it is sufficient
standing alone to create an inference of causality and defeat summary
judgment.”).
Although the Third Circuit has been “reluctant to infer a causal
connection based on temporal proximity alone,” the standard for “unusually
suggestive” temporal proximity at the pñmafacie stage is not a high one.
Budhun, 765 F.3d at 258 (citing Weston v. Pennsylvania, 251 F.3d 420, 431 (3d
Cir, 2001)). In one case, the Third Circuit treated the plaintiffs termination
three months after requesting FMLA leave, on the day she was scheduled to
return to work, as sufficiently suggestive. Id. at 258 (citing Bryson v. Regis
Corp., 498 F.3d 561, 571 (6th Cir. 2007)). See Farrell v. Planters LVesavers Co.,
206 F.3d 271, 285 (3d Cir. 2000) (finding that time of three to four weeks
24
between protected activity and termination was “suggestive” of retaliation in
Title VII retaliation context). And “proximity” is not really the operative concept
when, as here, the termination was simultaneous, i.e., when it occurred during
the FMLA leave.
In this case, on June 6, 2013, Kancherla informed Lincoln of his
intention to take FMLA leave. (DSMF
¶
47). About three weeks later on June
28, 2013, while Kancherla was still out on leave and had approximately 9
weeks of FMLA leave remaining, Lincoln terminated Kancherla. (RSMF
119; DRRSMF
¶
¶f
2, 6,
6). Reinforcing Kancherla’s temporal-proximity argument is
his additional evidence that Lincoln’s claims that he violated existing policy
were pretextual. The causation element of a prima fade case is therefore
satisfied.
At this summary judgment stage, viewing the facts in the light most
favorable to the plaintiff, I find that Kancherla has satisfied his “minimal”
burden of establishing a prima facie case for his FMLA retaliation claim.
b) Lincoln’s legitimate non-discriminatory reason for dismissal
and Kancherla’s proof of pretext
The parties do not focus on the second and third elements of the
McDonnell Douglas burden-shifting analysis: Lincoln’s proof of a legitimate non
discriminatory reason for dismissal, and Kancherla’s responding proof that the
proffered reason was a pretext. I nevertheless discuss them.
Lincoln proffers that Kancherla’s termination was based on his violation
of Lincoln’s policies and procedures, specifically (1) Control 4 of Lincoln’s
Marketing Department Internal Controls Summary, (2) Lincoln’s lAP
—
Code of
Business Conduct, (3) Lincoln’s General Conduct Guidelines, and 4) the Client
Agreement Services Agreement between CUnet and Lincoln. (DSMF
¶
96-118).
That citation of evidence would satisfy Lincoln’s fairly minimal burden of
production at the second step of the McDonnell Douglas analysis. See
Lichtenstein, 691 F.3d at 302 (stating that defendants burden is minimal).
25
At the third step, the burden would shift to Kancherla to demonstrate
that Lincoln’s stated reason is merely pretext for discrimination. Burton u.
Telefiex Inc., 707 F.3d 417, 426 (3d Cir. 2013). The plaintiff can do that in
either of two ways: (1) he can discredit defendants proffered reason; or (2) he
can offer evidence that discrimination was more likely than not a motivating or
determinative factor in the adverse action. Fuentes, 32 F.3d at 764. To meet
that burden, the plaintiff may rely on direct or circumstantial evidence.
If the plaintiff relies on the first method (discrediting the defendant’s
proffered reasons), he faces a demanding standard: he must present evidence
that allows a factfinder “reasonably to infer that each of the employer’s
was either a post hoc fabrication or
proffered non-discriminatory reasons
...
otherwise did not actually motivate the employment action (that is, the
proffered reason is a pretext).” Id. (internal quotations and citations omitted).
The plaintiff “must show such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proffered legitimate reasons
for its action that a reasonable facthnder could rationally find them unworthy
of credence, and hence infer that the employer did not act for [the asserted]
non-discriminatory reasons.” Iadimarco u. Runyon, 190 F.3d 151, 166 (3d Cir.
1999) (internal quotations omitted).
If the plaintiff relies on the second method (evidence that discrimination
was a motivating factor), he can provide the required evidence in at least three
unlawful
ways: “by showing that the employer in the past had subjected him to
discriminatory treatment, that the employer treated other, similarly situated
persons not of his protected class more favorably, or that the employer has
discriminated against other members of his protected class or other protected
categories of persons.” Fuentes, 32 F.3d at 765.
Here, Kancherla does not dispute that he engaged in the alleged
misconduct, i.e., the advance billing on the CUnet account. He raises a triable
issue, however, as to whether Lincoln truly had a policy in place prohibiting
such conduct, and whether it was the true reason for his dismissal.
26
Specifically, he maintains that at the time of his termination, 1) Lincoln’s 2012
Marketing Department Internal Controls Summary was not in place; 2) “there
was no written policy or procedure that prohibited directing a vendor to invoice
for the amount of a purchase order, which was greater than the value of the
services actually provided, and allowing the vendor to retain the overage in a
prepaid account or fund”, and 3) “there was no written policy or procedure at
Lincoln that prohibited carrying credits or prepaid amounts with a vendor from
one quarter to another.” (P1. Brf. 14 to 15 (citing PSSMF
¶
26, 27, 29)).
Kancherla also asserts that it was common practice for Lincoln to direct
CUnet, and other third-party vendors, to retain Lincoln’s money for future
endeavors. Lincoln’s Marketing Department, he says, was aware of how he
dealt with the CUnet account. (Id. at 15 to 19 (citing PSSMF
¶J
4, 6, 9, 11, 30;
ECF no. 61-2, Exh. D at 33:15 to :19).
This evidence is summarized in more detail at Section I.C, supra. My role
here is not to evaluate the credibility of that evidence but only to determine
whether it genuinely places relevant facts in issue. Anderson, 477 U.S. at 24849. Viewing the record and drawing all reasonable inferences in the light most
favorable to Kancherla, I find there is a genuine issue of material fact as to
whether Lincoln’s proffered reasons for its decision to terminate Kancherla
were the true reasons, or whether they were a pretext for retaliation on the
basis of his exercise of his rights under the FMLA.
I will therefore deny Lincoln’s summary judgment motion on the claim of
FMLA retaliation in Count 1.
B. NJLAD Disability Discrimination and Retaliation Claims
(Count 2)
“The NJLAD prohibits unlawful discrimination against an individual with
respect to terms and conditions of employment because of various traits and
characteristics, including, but not limited to, race, religion, age, sex and
disability.” Davis v. Supervalu, Inc., CIV. 13—414 JBS/JS, 2013 WL 1704295, at
*4 (D.N.J. Apr.19, 2013) (citing N.J.S.A. 10:5—12(a)). The NJLAD also makes it
unlawful to 1) “take reprisals against any person because that person has
27
opposed any practices or acts forbidden under” the act or “because he has filed
a complaint, testified or assisted in a proceeding” under the Act, or 2) “coerce,
intimidate, threaten or interfere with any person in the exercise or enjoyment
of.
.
.
any right granted or protected” by the Act. N.J.S.A. 10:5—12(d).
In Count 2 of the Amended Complaint, Kancherla alleges that Lincoln
violated the NJLAD by 1) terminating his employment because of his disability,
2) failing to provide him with a reasonable accommodation, and 3) failing and
refusing to engage in the interactive process with him. (AC
¶ 42). He further
alleges that Lincoln retaliated against him for taking his disability leave by
terminating his employment. (Id.)
The parties’ arguments on summary judgment focus on Kancherla’s
NJLAD discriminatory discharge claim and retaliation claim. I will therefore
limit my discussion of Count 2 to those claims. In Section III.B. 1, infra, I will
consider Lincoln’s motion as to Kancherla’s NJLAD discriminatory discharge
claim, and in Section 111.6.2, infra, I will consider Lincoln’s motion as to
Kancherla’s NJLAD retaliation claim.
1. NJLAD Discriminatory Discharge Claim
Under the NJLAD, to establish aprimafacie case of disability
discrimination for discriminatory discharge, a plaintiff must demonstrate that:
“(1) [he] is the member of a protected class, specifically that [he] has or is
perceived to have a disability as defined by the NJLAD; (2) [he] was otherwise
qualified to perform the essential functions of the job, with or without
reasonable accommodation by the employer; (3) [he] experienced an adverse
employment action; and (4) the employer sought someone else to perform the
same work, or did fill the position with a similarly-qualified person.”8
Lincoln erroneously maintains that under the NJLAD, to establish a prima fade
case of disability discrimination for discriminatory discharge, Kancherla must prove
that the “(a) he was disabled within the meaning of the law; (b) he was performing in
the position from which he was terminated; (c) he suffered an adverse employment
action; and (d) the adverse employment action occurred under ‘circumstances that
give rise to an inference of discrimination.’” (Def. Br. 17)(citing Zive v. Stanley Roberts,
18
28
te
Tourtellotte v. Eli Lilly & Co., 636 F. App’x 831, 848 (3d Cir. 2016)(footno
all four
omitted)(citing Victor a State, 203 N.J. 383, 409 (2010)). “Satisfaction of
Id.
elements of a prima fade case creates a presumption of discrimination.”
the
(citing Andersen v. Exxon Co., U.S.A., 89 N.J. 483, 492-93 (1982)). Once
the
elements of a prima facie case are satisfied, as for a FMLA retaliation claim,
NJLAD claim will proceed within the McDonnell Douglas framework. Id. (citing
Viscik v. Fowler Equip. Co., 173 N.J. 1, 13 (2002); Andersen, 89 N.J. at 493).
In the particular context of a disability discrimination claim, the New
Jersey Supreme Court has emphasized that “[d]isability discrimination claims
are different from other kinds of discrimination claims, for several reasons”:
t of
[tihat is, for claims of disability discrimination, the first elemen
class, requires
the prima facie case, that plaintiff is in a protected
plaintiff to demonstrate that he or she qualifies as an individual with
a disability, or who is perceived as having a disability, as that has
been defined by statute. The second element requires plaintiff to
demonstrate that he or she is qualified to perform the essential
functions of the job, or was performing those essential functions,
either with or without a reasonable accommodation.
Id. at 410 (footnote omitted).’9
Inc., 182 N.J. 436, 457-58 (2005); Cuozzo v. Davis-Standard, LLC, 2012 U.S. Dist.
LEXIS 33659, at *9 (D.N.J. March 13, 2012); Victor, 203 N.J. at 409-10).
It maintains that Kancherla cannot establish element (d) because Kancherla
animus.”
has “not identified any comments or conduct suggesting a discriminatory
sh the
(Def. Br. 18) Lincoln’s arguments do not relate to an element required to establi
prima fade case, the issue here.
19
The NJLAD defines “disability” thus:
physical or sensory disability, infirmity, malformation, or disfigurement
y
which is caused by bodily injury, birth defect, or illness including epileps
and other seizure disorders, and which shall include, but not be limited
to, any degree of paralysis, amputation, lack of physical coordination,
blindness or visual impairment, deafness or hearing impairment,
muteness or speech impairment, or physical reliance on a service or guide
dog, wheelchair, or other remedial appliance or device, or any mental,
psychological, or developmental disability, including autism spectrum
disorders, resulting from anatomical, psychological, physiological, or
neurological conditions which prevents the typical exercise of any bodily
or mental functions or is demonstrable, medically or psychologically, by
29
Kancherla’s prima fade case of discriminatory discharge
i.
In the context of a prima facie case of discriminatory discharge, Lincoln
does not really address the first, second, and fourth elements, La, membership
in a protected class, qualifications for the job, or whether it filled the position
with a similarly qualified person. Rather, Lincoln challenges the third element,
an “adverse employment action.” (Def. Br. 17 to 18). It reiterates its argument,
initially presented as to Kancherla’s FMLA retaliation claim, that Kancherla’s
termination was not adverse because Kancherla was unable to return to work
after his FMLA leave. (Id. at 17 (citing Point I(D)(i) of Def. Br.). In the context of
FMLA retaliation, that argument failed, see Section III.A.2.i, supra. For similar
reasons, the argument fails in the NJLAD context.
The NJLAD does not define “adverse employment action,” but “(ajn
adverse employment action is easily satisfied by evidence of a failure to hire or
by a firing.” Victor v. State, 401 N.J. Super. 596, 615 (App. Div. 2008), affd as
modified, 203 N.J. 383 (2010). Accordingly, I find that Kancherla’s termination
satisfies the “adverse action” element of the prima facie case of discriminatory
discharge under the NJLAD. Furthermore, because Lincoln does not dispute
Kancherla’s satisfaction of the other elements of the prima facie case, I
conclude that Kancherla has met his burden of establishing a prima facie case
for his NJLAD discriminatory’ discharge claim.
ii.
Lincoln’s legitimate non-discriminatory reason for dismissal and
Kancherla’s proof of pretext
In the context of Count 2, the NJLAD discriminatory discharge claim,
Lincoln’s argument are confined to Kancherla’s alleged inability to establish a
prima facie case of discrimination; Lincoln does not address steps two and
accepted clinical or laboratory diagnostic techniques. Disability shall also
mean AIDS or HIV infection.
N.J. Stat. Ann. § 10:5-5(q).
30
three of the McDonnell Douglas framework. I therefore address them only
briefly.
For the same reasons stated in section III.A.2.ii.b, supra, I find that
Lincoln has satisfied its burden of production by providing a non-retaliatory
explanation for Kancherla’s termination.20
As discussed in section III.A.2.ii.b, supra, however, viewing the record
erla,
and drawing all reasonable inferences in the light most favorable to Kanch
n’s
I find that there is a genuine issue of material fact as to whether Lincol
for
proffered reasons for its decision to terminate Kancherla were a pretext
discrimination.
I will therefore deny Lincoln’s motion for summary judgment on
Kancherla’s NJLAD disability discrimination claim in Count 2.
2. NJLAD Retaliation Claim
I move to the component of Count 2 that alleges retaliation for
Kancherla’s exercise of rights under the NJLAD.
To establish a retaliation claim under the NJLAD, a plaintiff must
suffered
demonstrate “(1) that [he) engaged in a protected activity; (2) that [hel
tion
an adverse employment action; and (3) that there was a causal connec
v.
between the protected activity and the adverse employment action.” Davis
under
City of Newark, 417 F. App’x 201, 202 (3d Cir. 2011). Retaliation claims
-shifting
the NJLAD are analyzed under the familiar McDonnell Douglas burden
. 2015).
framework. Bertolotti v. AutoZone, Inc., 132 F. Supp. 3d 590, 605 (D.N.J
burden of
Accordingly, once a prima facie case for retaliation is established, the
the
production shifts to the employer to articulate a legitimate reason for
N.J. Super.
adverse employment action. Woods—Pirozzi v. Nabisco Foods, 290
that a
252, 274 (App. Div. 1996) (citation omitted). “Plaintiff must then show
actions.” Id.
retaliatory intent, not the proffered reason, motivated defendants
I assume that Lincoln would proffer the same legitimate non-discriminatory
erla’s FMLA
reason for terminating Kancherla that it provided in the context of Kanch
retaliation claim.
20
31
As to the prima facie case, Lincoln reiterates an argument it made in the
context of Kancherla’s FMLA retaliation claim. It challenges the third prima
fade element, arguing that Kancherla is unable to establish that his
termination was causally related to his invocation of FMLA rights. (DeL Br.
21)(citing Point I(D)(i) of Def. Br.). I reject this argument for the reasons set
forth in section IlI.A.2.ii.a, supra.
As stated in section III.A.2.ii.b, supra, Lincoln has satisfied its burden of
production by providing a non-retaliatoiw explanation for Kancherla’s
termination.2’
As discussed in section III.A.2.ii.b, supra, viewing the record and drawing
all reasonable inferences in the light most favorable to Kancherla, there is a
genuine issue of material fact as to whether Lincoln’s proffered reasons for its
decision to terminate Kancherla are a pretext for discrimination.
I will therefore deny Lincoln’s motion for summary judgment on
Kancherla’s NJLAD retaliation claim in Count 2.
C. Compensatory Damages and the After-Acquired Evidence
Doctrine
Kancherla seeks compensatory damages on his FMLA22 and
NJLAD claims. (See AC, Count 1, Prayer for Relief, A.; Count 2, Prayer for
Relief, A. and B.). Lincoln argues that if this Court does not grant its motion for
summary judgment, it should apply the after-acquired evidence doctrine and
I assume that Lincoln would provide the same legitimate non-discriminaton’
reason for terminating Kancherla that it provided in the context of Kancherla’s FMLA
retaliation claim.
22
In the Prayer for Relief of his FMLA claim, Kancherla does not use the specific
phrase “compensatory damages,” but his Amended Complaint states that he seeks
“damages pursuant to 29 U.S.C. §2617 (a)(1)(A)(i).” (AC, Count 1, Prayer for Relief, A.).
That section of the FMLA specifically allows recovery of compensatory damages for any
wages, salary, employment benefits, or other compensation lost by reason of the
violation. See 29 U.S.C. § 2617(a)(l)(A). For the purposes of my consideration of this
motion, I will consider that Kancherla is seeking recovery of compensatory’ damages of
the type specified in the FMLA.
21
32
limit the scope of compensatory- damages that Kancherla may recover. (Del Br.
37 to 39).
Lincoln submits a copy of Kancherla’s 2009 employment application, in
which he stated that he concluded his prior employment with Garden State
Apartments, LLC (“GSA”) in January 2009. (ECF no. 55-3, Exh. G). According
to Lincoln, during its internal audit, it learned that Kancherla “knowingly
concealed” his ownership interest in GSA, and continued employment with
GSA during his tenure with Lincoln. (Id. at 37 to 38 (citing DSMF ¶ 86 to 88,
151 to 164)). The application “expressly provide[s] for termination in the
instance any information [is] found to be ‘false, misleading, or incomplete in
any respect.”’ (Id. at 38 (citing DSMF
¶1J
151 to 157)). Kancherla, however,
argues that 1) he did not engage in misrepresentation or falsification on his
employment application, 2) during the interview process, he orally informed
Lincoln about his outside employment, 3) Lincoln was aware of his outside
employment and consulting activities during his employment, and 4) Lincoln
admitted that those activities would not have been a reason for his termination
if they did not present a conflict of interest. (P1. Br. 22 to 26) (citing PSSMF ¶
38-43,47 to 48; ECF no. 61-2, Exh. Cat 82:24 to 83:13, 84:7 to 85:5; ECF no.
61-2, Exh. A at 67:1 to 92:20).
“Where an employer seeks to rely upon after-acquired evidence of
wrongdoing, it must first establish that the wrongdoing was of such severity
that the employee in fact would have been terminated on those grounds alone if
the employer had known of it at the time of the discharge.” McKennon v.
Nashville Banner Pub. Co., 513 U.S. 352, 362—63 (1995)(emphasis added). At
this, the summary judgment stage, I find that there are genuine issues of
material fact as to the application of the after-acquired evidence doctrine. I
cannot use it to preclude the claim for compensatory damages. The issue
remains open for determination at trial, if necessary.
33
D. Punitive Damages
Kancherla seeks, in part, punitive damages on his FMLA and NJLAD
claims. (AC, Count 1, Prayer for Relief, F.; Count 2, Prayer for Relief, C.).
Lincoln argues that if this Court does not grant summary judgment on those
counts, it should strike the demand or limit Kancherla’s damages. (Def. Br. 39
to 40).
Lincoln first asserts that Kancherla’s prayer for punitive damages under
NJLAD should be stricken because there is no evidence of egregious conduct.
(Id. at 39 (citing Rendine v. Pantzer, 141 N.J. 292, 3 13-14 (1995); Hurley v. AtL
City Police Dept, 174 F.3d 95, 124 (3d Cir. 1999)). Second, it argues that
punitive damages are not available under the FMLA, and therefore, Kancherla
is not entitled to such damages for his FMLA-related claims. (Id. (citing
Zawadowicz v. Cl/S. Corp., 99 F. Supp. 2d 518, 540 (D.N.J. 2000)).
To recover punitive damages pursuant to the NJLAD, the New Jersey
Supreme Court has established two prerequisites: the offending conduct must
be “especially egregious;” and there must be “actual participation in or willful
indifference to the wrongful conduct on the part of upper management.”
Rendine, 141 N.J. at 314. The Rendine Court further noted:
[tjo warrant a punitive award, the defendants conduct must have
been wantonly reckless or malicious. There must be an intentional
wrongdoing in the sense of an “evil-minded act” or an act
accompanied by a wanton and wilful disregard of the rights of
another.... The key to the right to punitive damages is the
wrongfulness of the intentional act.
Id. (citations omitted).
It is well-established that “[tihe issue of punitive damages is a fact
question which should be decided by a jury.” Domm u. Jersey Printing Co., Inc.,
871 F.Supp. 732, 739 (D.N.J. 1994); see also Weiss v. Parker Hannfan Corp.,
747 F.Supp. 1118, 1135 (D.N.J. 1990) (“[T]he decision whether to award
punitive damages is solely within the discretion of the finder of fact, and it may
choose to deny punitive damages even though intentional or malicious behavior
is evident.”)
34
Kancherla concedes, however, that punitive damages are not available
under the FMLA as a matter of law. See P1. Brf. 26. I will strike Kancherla’s
demand for punitive damages in Count 1. See Zawadowicz, 99 F. Supp. 2d at
540. As for punitive damages under the NJLAD, I agree with Kancherla that
this fact-sensitive issue is not suitable for resolution on summary judgment.
The motion is denied without prejudice to renewal at the close of Kancherla’s
case or at the close of all the evidence.
E. Backpay
Kancherla also seeks, in part, compensatory damages on his NJLAD
count “in the form of back pay, front pay, and compensation for lost benefits[.]”
(AC, Count 2, Prayer for Relief, A.). Lincoln maintains that Kancherla is not
“entitled” to back pay for June 6, 2013 through January 2, 2014 because he
was unable to work during that time. (Def. Br. 39 to 40 (citing Bnim v. Extreme
Builders, 2010 U.S. Dist. LEXIS 57294, *6 (D.N.J. June 9, 2010)(report and
recommendation of Magistrate Judge)).
Back pay under the NJLAD is among the forms of “equitable damages”
available to the aggrieved. Lehmann v. Toys ‘1?’ Us, Inc., 132 N.J. 587, 617
(1993). See also N.J. Stat. Ann.
§ 10:5-13 (stating, in part, “[a]ll remedies
available in common law tort actions shall be available to prevailing plaintiffs.
These remedies are in addition to any provided by this act or any other
statute.”). The New Jersey Supreme Court has recognized that “[tjhe basic
purpose of awarding back pay is to make the discriminatee whole by
reimbursement of the economic loss suffered, though it also should
correlatively discourage and deter unlawful discrimination.” Goodman v.
London Metals Exch., Inc., 86 N.J. 19, 34—35 (1981). Ordinarily back pay
accrues from the date of discharge to the date of the decision and is reduced by
interim earnings. Id. at 34.
At this early stage, I will not consider whether Kancherla can recover
back pay for the period of June 6, 2013 through Januanr 2, 2014. 1 have
already found that the date Kancherla could have returned to work is in
35
dispute on this record. Should Kancherla prevail on an NJLAD claim, he might
be entitled to back pay for some period. That issue will be determined with the
benefit of a factual record and fact finding; it is not ripe for decision now. See
Gilmore v. Macy’s Retail Holdings, 2009 WL 305073 (D.N.J. 2009) (finding that
the jury should determine liability and compensatory damages under NJLAD,
after which the Court would decide whether to award the equitable remedy of
back pay).23
The motion for summary judgment as to back pay pursuant to the
NJLAD is denied, without prejudice to renewal of these contentions at or after
trial.
Conclusion
IV.
For the foregoing reasons, Lincoln’s motion for summary judgment (ECF
no. 55) is for the most part denied, but granted in part. The motion for
summary judgment is granted for Lincoln as to Count 1, to the extent it asserts
an interference claim under the FMLA. The motion for summary judgment is
otherwise denied. Lincoln has not carried its burden of showing that no
genuine issue of material fact exists. Triable issues of material fact remain.
I grant Lincoln’s request to strike Kancherla’s demand for punitive
damages under the FMLA.
An Order will be entered in accordance with this Opinion.
Dated: February 15, 2018
on. Kevin Mc*ulty/
United States DistribtJjzdge
Bmm, supra, relied upon by Lincoln, does not address back pay in the context
of NJLAD.
23
36
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