HALL-DINGLE v. GEODIS WILSON USA, INC. et al

Filing 35

OPINION. Signed by Judge Stanley R. Chesler on 3/7/17. (cm )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
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MARY HALL-DINGLE,
Plaintiff,
v.
GEODIS WILSON USA, INC.; LISA
MASCARO; and JOHN DOES 1-10,
Defendants.

Civil Action No. 15-1868 (SRC)
OPINION

CHESLER, District Judge
This matter comes before the Court upon the motion for summary judgment by
Defendant Geodis Wilson USA, Inc. (“Geodis”) [Docket Entry 21]. Plaintiff Mary Hall-Dingle
(“Ms. Dingle”) opposes the motion [Docket Entry 24]. The Court has considered the parties’
submissions and proceeds to rule without oral argument, pursuant to Federal Rule of Civil
Procedure 78. For the reasons set forth below, the Court will deny Defendant’s motion for
summary judgment.
I.

BACKGROUND

This action arises out of the October 16, 2013 termination of Plaintiff Mary Hall-Dingle
(“Ms. Dingle”) from her employment with Defendant company Geodis Wilson USA, Inc.
(“Geodis”). Plaintiff began working for Defendant in May 2012. (Statement of Material Facts
[hereinafter SMF], ¶ 1; Plaintiff’s Responsive Statement of Material Facts, ¶ 1). She was
terminated after taking two consecutive leaves of absences – one to recover from her own injury
and the other to care for her son’s injury. (SMF, ¶¶ 7, 39; PRSMF, ¶¶ 7, 39).

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A. PLAINTIFF’S FIRST LEAVE OF ABSENCE
Plaintiff first requested leave in April 2013 because shoulder pain prevented her from
working. (SMF, ¶¶ 6-7; PRSMF, ¶¶ 6-7; Rosen Cert. Ex. 18). In order to request this leave,
Plaintiff spoke with Lisa Mascaro (“Ms. Mascaro”), Geodis’ Human Resources Benefits
Specialist, on the phone and faxed doctors’ notes to Ms. Mascaro. (Mascaro Dep. 11:9-12, Jan.
27, 2016; Rosen Cert. Ex. 12). In the fax, dated April 11, 2013, Plaintiff indicated that she was
submitting doctors’ notes until her next doctor’s appointment, when she would provide more
paperwork to confirm her absences. (Rosen Cert. Ex. 12). Ms. Mascaro sent back a letter dated
April 16, 2013, explaining Plaintiff’s right to a leave of absence under the federal Family and
Medical Leave Act (“FMLA”) and enclosing forms for a physician to fill out so that Plaintiff
could be granted FMLA leave. (Rosen Cert. Ex. 13). One of the forms was the standard
Department of Labor Certification of a Health Care Provider form used for employees taking
FMLA leave. (Rosen Cert. Ex. 16). On April 23, 2013, Plaintiff responded with a fax attaching
more doctors’ notes and emergency room paperwork and stating that she would have her doctor
fill out the forms that Ms. Mascaro sent. (Rosen Cert. Ex. 14).
Ms. Mascaro sent back a letter with the subject line “RE: Unscheduled and unjustified
absences” on April 24, 2013. (Wall Cert. Ex. 8). The letter listed a timeline of Plaintiff’s
absences and times where Geodis had no proof that she was under a physician’s care. (Wall
Cert. Ex. 8). It also stated:
If we do not receive any documentation that you were under a physician’s care we will
have no other option but to terminate your employment due to job abandonment. Also, to
date, we have not received any FMLA paperwork protecting your current position. The
company has accommodated your absences from April 1, 2013 thru [sic] the present.
Due to the needs of the business your work will need to be distributed accordingly per
company discretion.

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(Wall Cert. Ex. 8). After receiving this letter, Plaintiff presented the required paperwork.
(Rosen Cert. Ex. 17). Defendant granted Plaintiff FMLA leave for a period of April 5, 2013
through June 28, 2013. (SMF, ¶ 7; PRSMF, ¶ 7; Rosen Cert. Ex. 17). On June 28, 2013,
Plaintiff requested an additional four weeks of medical leave because of continued shoulder pain.
(SMF, ¶ 11; PRSMF, ¶ 11; Rosen Cert. Ex. 18). Defendant granted this request as well. (SMF,
¶ 12; PRSMF, ¶ 12).
B. PLAINTIFF’S NEXT LEAVE OF ABSENCE
One week before Plaintiff was scheduled to return to work, on July 28, 2013, Plaintiff’s
son was in a car accident. (SMF, ¶¶ 16-17; PRSMF, ¶¶ 16-17). Plaintiff called her supervisor,
Patricia Vargas (“Ms. Vargas”), on August 2, 2013 and left a voicemail, informing her of the
accident. (Dingle Dep. 45:23-25, 123:6-15, Jan. 20, 2016). On August 5, 2013, Plaintiff emailed
Ms. Vargas and Ms. Mascaro, indicating that she could not return to work that day. (SMF, ¶ 18;
PRSMF, ¶ 18; Wall Cert. Ex. 9). The email stated that her son had been in a “deadly car
accident, and I don’t feel he is ready to be left alone at this time. According to the hospital, it
will be another week or two before he will be feeling better.” (SMF, ¶¶ 18-19; PRSMF, ¶¶ 1819; Wall Cert. Ex. 9). Nobody from Defendant company responded to the email. (Wall Cert.
Ex. 10; Mascaro Dep. 101:11-102:9).
After Defendant did not respond to her August 2nd voicemail or August 5th email,
Plaintiff called and left two voicemails for Ms. Mascaro on August 23rd and 26th. (SMF, ¶ 20;
PRSMF, ¶ 20; Wall Cert. Ex. 9). Plaintiff again received no reply, so she wrote an email to Ms.
Mascaro on August 29th, stating that she expected to return to work on September 9, 2013,
because wires were being removed from her son’s jaws on September 6, 2013. (SMF, ¶ 20;
PRSMF, ¶ 20; Wall Cert. Ex. 9).

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Defendant’s first response to Plaintiff was a letter dated September 4, 2013, almost one
month after Plaintiff initially contacted Defendant about her son’s accident. (Wall Cert. Ex. 12).
In Defendant’s letter, which was entitled “Re: Continued Leave of Absence”, Ms. Mascaro wrote
that “apparently your son was involved in a car accident” and that Plaintiff needed to “provide us
with detailed information about your son’s serious health condition, i.e. we need a medical
certification attesting this situation.” (SMF, ¶ 24; PRSMF, ¶ 24; Wall Cert. Ex. 12). The letter
did not state whether Plaintiff could return to work, even though the letter acknowledged that
Plaintiff told Defendant that she could return on Monday, September 9. (Wall Cert. Ex. 12).
Plaintiff responded with a phone call, voicemail, and an email on September 6, 2013, asking Ms.
Mascaro to “call or e-mail and left [sic] me know if I can return to work on Monday.” (Wall
Cert. Ex. 13). Geodis’s Human Resources Manager, Juan Egas, responded, asking Plaintiff to
“urgently provide us with answers to the letter mailed to you by Lisa [Mascaro] and we ask that
you refrain from contacting the Branch until you hear back from the Human Resources
Department. Should you have any questions, please call me directly.” (Wall Cert. Ex. 14). He
did not respond to Plaintiff’s request to return to work on September 9th. (Wall Cert. Ex. 14).
On September 11, 2013, Ms. Mascaro sent a letter asking again for “detailed information
about your son’s serious health condition, i.e. we need a medical certification attesting this
situation” and asking for Plaintiff to “contact us” by September 20, 2013. (Rosen Cert. Ex. 24).
Plaintiff responded by faxing a newspaper article about her son’s accident and medical bills.
(Wall Cert Ex. 15, 16). Ms. Mascaro responded that “[t]he document (newspaper article) that
you provided is not considered ‘medical certification’ that would require your extended absence
from work. Will you be able to provide documentation from your son’s physician stating his
‘serious health condition’ at the time of accident?” (Wall Cert. Ex. 15). Plaintiff responded the

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same day, stating that she did not “have any medical document, the only thing I have is $70,000
worth of medical bills” and that she did not “know what ‘medical certification you need.’” (Wall
Cert. Ex. 15). She wrote that her son “left the hospital with a broken jaw, bruised chest, knee,
hip, ankle and on crutches under pain medication . . .” (Wall Cert. Ex. 15).
On September 24, 2013, Ms. Mascaro responded and attached a medical certification
form for Plaintiff to fill out. (SMF, ¶ 33; PRSMF, ¶¶ 24-33). According to Plaintiff, this was the
first time that Ms. Mascaro attached a form. (PRSMF, ¶¶ 24-33). The form provided was a
standard Department of Labor form entitled “Certification of Health Care Provider for Family
Member’s Serious Health Condition (Family and Medical Leave Act).” (Wall Cert. Ex. 16).
Below that heading, the words “New Jersey Family Leave Act” were added. (Wall Cert. Ex. 16).
Plaintiff alleges that this was the first time that Defendant referred to the New Jersey Family
Leave Act (“NJ FLA”) in its communications with Plaintiff after her son’s accident. (PRSMF, ¶
33). Ms. Mascaro gave Plaintiff fifteen days, until October 9, 2013, to complete the form and
return it to the Human Resources Department. (Wall Cert. Ex. 16).
Plaintiff responded by fax on October 8, 2013, with a partially completed certification
form. (PRSMF, ¶¶ 34-35; Wall Cert. Ex. 17). She completed the section of the form that the
employee is to fill out, but did not complete the section that a physician is to complete, instead
submitting three doctors’ notes. (PRSMF, ¶¶ 34-35; Wall Cert. Ex. 17). One note was from the
Practice Administrator in the Trauma Division of Cooper University Physicians Department of
Surgery, and it indicated that John Dingle “was brought to Cooper University Hospital on
7/28/13 via helicopter for injuries sustained in a motor vehicle crash. He will follow-up with an
oral maxilla-facial surgeon within the next two weeks. Please excuse him from work during this
time frame of 7/28/13 until approximately 8/12/13.” (Wall Cert. Ex. 17). The other notes were

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from a doctor at Cooper Oral and Maxillofacial Surgeons, certifying that John Dingle had
appointments on August 14, 2013, and September 6, 2013 and that Plaintiff accompanied him to
those appointments. (Wall Cert. Ex. 17). Defendant never contacted Plaintiff indicating that her
submission was insufficient.
Defendant sent Plaintiff a termination letter dated October 16, 2013. (Wall Cert. Ex. 18).
Defendant claims that Plaintiff was terminated because she failed to provide the required
completed form to substantiate her eligibility for leave. (SMF, ¶ 37; Wall Cert. Ex. 18).
Defendant argues that the certification requirement, along with a description of NJ FLA and
FMLA policies, was outlined in Defendant’s employee handbook and the New Jersey addendum
to the handbook. (SMF, ¶¶ 2, 3; PRSMF, ¶¶ 2, 3). According to Defendant, Plaintiff received a
hard copy of the handbook when she began her employment and was able to access the
information on Defendant’s intranet site called “FreightNet”. (Egas Dep. 27:14-22, Apr. 28,
2016). Plaintiff, on the other hand, argues that FreightNet was inaccessible to employees who
were already out on leave. (Egas Dep. 27:14-22). She also claims that Defendant should have
notified her that the doctor’s notes she provided to certify her son’s serious injury were
insufficient. Plaintiff points to the New Jersey addendum to Defendant’s employee handbook,
which states that “[t]he Company shall inform employees if submitted medical certification are
incomplete or insufficient and provide employees at least seven calendar days to cure
deficiencies.” (Wall Cert. Ex. 6).

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Plaintiff’s Complaint asserts that Defendant interfered with Plaintiff’s right to take leave
under the NJ FLA and retaliated against Plaintiff in violation of both the FMLA and the NJ
FLA. 1 Defendant moves for summary judgment.
II.

LEGAL STANDARD

Summary judgment is appropriate under Federal Rule of Civil Procedure 56(c) when the
moving party demonstrates that there is no genuine issue of material fact and the evidence
establishes the moving party’s entitlement to judgment as a matter of law. Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). A factual dispute is genuine if a reasonable jury could
return a verdict for the non-movant, and it is material if, under the substantive law, it would
affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “In
considering a motion for summary judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence; instead, the non-moving party’s
evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor.’” Marino v.
Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).
“When the moving party has the burden of proof at trial, that party must show
affirmatively the absence of a genuine issue of material fact: it must show that, on all the
essential elements of its case on which it bears the burden of proof at trial, no reasonable jury
could find for the non-moving party.” In re Bressman, 327 F.3d 229, 238 (3d Cir. 2003)
(quoting United States v. Four Parcels of Real Prop., 941 F.2d 1428, 1438 (11th Cir. 1991)).
“[W]ith respect to an issue on which the nonmoving party bears the burden of proof . . . the
burden on the moving party may be discharged by ‘showing’—that is, pointing out to the district
1

Plaintiff voluntarily dismissed Counts Four and Five of her original Complaint and withdrew
all claims against Ms. Mascaro without prejudice. This motion therefore concerns Counts One,
Two, and Three of Plaintiff’s Complaint.
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court—that there is an absence of evidence to support the nonmoving party’s case.” Celotex,
477 U.S. at 325.
Once the moving party has satisfied its initial burden, the party opposing the motion must
establish that a genuine issue as to a material fact exists. Jersey Cent. Power & Light Co. v.
Lacey Twp., 772 F.2d 1103, 1109 (3d Cir. 1985). The party opposing the motion for summary
judgment cannot rest on mere allegations and instead must present actual evidence that creates a
genuine issue as to a material fact for trial. Anderson, 477 U.S. at 248; Siegel Transfer, Inc. v.
Carrier Express, Inc., 54 F.3d 1125, 1130-31 (3d Cir. 1995). “[U]nsupported allegations . . . and
pleadings are insufficient to repel summary judgment.” Schoch v. First Fid. Bancorporation,
912 F.2d 654, 657 (3d Cir. 1990); see also FED. R. CIV. P. 56(e) (requiring the nonmoving party
to “set out specific facts showing a genuine issue for trial”). “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.” Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138 (3d Cir. 2001).
If the nonmoving party has failed “to make a showing sufficient to establish the existence
of an element essential to that party’s case, 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. & Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992) (quoting Celotex,
477 U.S. at 322-23).
III.

ANALYSIS
A. INTERFERENCE CLAIM

Plaintiff’s first Count of the Complaint alleges that Defendant interfered with her right to
take NJ FLA leave to care for her seriously injured son. The New Jersey Family Leave Act

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allows eligible employees to take off up to twelve weeks in any 24-month period to care for a
family member’s serious health condition without being terminated upon return. N.J.S.A. §
34:11B-3(g). Under New Jersey law, if an employee first takes FMLA leave for the employee’s
own disability, and subsequently takes NJ FLA leave to care for a family member’s serious
health condition, the two terms of leave run consecutively. Cluney v. Mon-Oc Fed. Credit
Union, No. A-4472-04T5, 2006 WL 2128985, at *14 (N.J. Super. Ct. App. Div. Aug. 1, 2006)
(citing N.J.A.C. § 13:14-1.6(b)(2)). An employer may not “interfere with, restrain or deny the
exercise of, or the attempt to exercise, the rights provided” in the NJ FLA, or “withhold the
benefits provided for under” the NJ FLA. N.J.S.A. § 34:11B-9(a).
The Third Circuit has stated that Courts should analyze interference claims under the NJ
FLA in the same way as they analyze interference claims under the FMLA. Fraternal Order of
Police, Lodge 1 v. City of Camden, 842 F.3d 231, 245 n. 65 (3d Cir. 2016). Thus, a plaintiff
bringing an interference claim under the NJ FLA must show that she was entitled to benefits and
denied those benefits. Robbins v. U.S. Foodservice, Inc., No. 11-4599, 2012 WL 3781258, at *5
(D.N.J. Aug. 30, 2012) (citing Parker v. Hanhemann Univ. Hosp., 234 F.Supp.2d 478, 485
(D.N.J. 2002)). The employer’s actions must make the employee “unable to exercise that right
in a meaningful way, thereby causing injury” in order for the interference claim to succeed.
Fraternal Order of Police, Lodge 1, 842 F.3d at 246 n. 72. 2 Defendant argues that Plaintiff
cannot make a claim for interference under the NJ FLA because she never proved that she was

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Because “[a]n interference action is not about discrimination, [but . . .] only about whether the
employer provided the employee with the entitlements guaranteed” under the Act, courts do not
apply the McDonnell-Douglas burden-shifting analysis to interference claims. Sommer v. The
Vanguard Grp., 461 F.3d 397, 399 (3d Cir. 2006) (internal citations omitted).
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entitled to benefits. Plaintiff responds that she was entitled to benefits and only did not
substantiate her leave because Defendant interfered with her ability to do so. 3
Courts have found interference of FMLA rights when an employer fails to advise an
employee of his rights to a leave of absence after the employee has notified the employer of
qualifying circumstances, and the failure to advise prejudices the employee. Conoshenti v. Pub.
Serv. Elec. & Gas Co., 364 F.3d 135, 143 (3d Cir. 2004), holding modified by Erdman v.
Nationwide Ins. Co., 582 F.3d 500 (3d Cir. 2009). New Jersey law, like federal law, requires an
employer to inform the employee of her NJ FLA rights and obligations when the employee has
informed the employer of her need to take leave to care for a seriously ill family member. See
D'Alia v. Allied-Signal Corp., 260 N.J. Super. 1, 10 (App. Div.1992) (holding that once an
employee provides enough information that “reasonably apprise[s]” the employer that the
employee needs time off for a family member’s serious health condition under the Act, “[i]t is
incumbent upon the employer to apprise the employee of his or her rights and to effectuate

3

Defendant argues that Plaintiff’s interference claim fails because it is duplicative of Plaintiff’s
retaliation claim. Defendant argues that Plaintiff bases both his claims on the fact that “Geodis
allegedly terminated Plaintiff’s employment because she sought to take NJ FLA leave.” (D.
Mov. Br. at 28). Although a plaintiff may be precluded from bringing both an interference and
retaliation claim where the interference claim “is so clearly redundant to the retaliation claim”
and is “in form and substance . . . a claim for retaliation,” a plaintiff may bring an interference
claim if she claims that benefits were actually withheld or cut short. Lichtenstein v. Univ. of
Pittsburgh Med. Ctr., 598 F. App'x 109, 113-14 (3d Cir. 2015); Kohler v. TE Wire & Cable LLC,
No. 14-3200, 2016 WL 885045, at *10 (D.N.J. Mar. 8, 2016), reconsideration denied, No. 143200, 2016 WL 1626956 (D.N.J. Apr. 25, 2016). Here, Plaintiff makes the claim that her NJ
FLA benefits were intentionally withheld and that Defendant interfered with her ability to
receive NJ FLA benefits by failing to advise her of her NJ FLA rights and failing to allow her to
cure her deficient certification. In contrast, her retaliation claim is that Defendant retaliated
against her for her extended absence and thus terminated her. Thus, at the summary judgment
stage, taking all inferences in the light most favorable to the Plaintiff, the Court finds that a
reasonable jury could see Plaintiff’s interference and retaliation claims as two separate claims
that are not duplicative. Thus, Plaintiff can proceed with both her interference and retaliation
claims.
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them.”). Thus, New Jersey courts would likely also find that an employer interferes with an
employee’s NJ FLA rights if it fails to advise the employee of NJ FLA rights after being
informed of the employee’s qualifying circumstances.
Plaintiff argues that Defendant failed to advise her of her NJ FLA rights and obligations.
Plaintiff provides evidence that Defendant did not refer to the NJ FLA in its communications to
Plaintiff at all, until it mentioned the “New Jersey Family Leave Act” on the certification form it
provided to Plaintiff on September 24, 2016. Moreover, Plaintiff presents evidence that the form
simply noted the name of the Act, but the form did not explain what Plaintiff’s rights and
obligations were under the NJ FLA. According to Plaintiff, Defendant did not provide this form
until nearly two months after Plaintiff had informed Defendant of her need to care for her son,
weeks after she had stated that she was willing to come back to work, and after Plaintiff had
indicated that she did not know what medical certification form Defendant needed. Defendant,
on the other hand, argues that it advised Plaintiff of her NJ FLA rights in its handbook. Plaintiff
responds that she was unable to access the handbook on Defendant’s intranet site when she was
already on leave. Thus, there is a genuine issue of material fact as to whether Defendant
provided sufficient, timely notice to Plaintiff of her NJ FLA rights.
Regarding the prejudice element of the interference claim, a jury could find that Plaintiff
was prejudiced by the lack of notice, because she did not completely fill out her medical
certification form and perhaps she would have if she knew it was part of an NJ FLA leave
application. After all, when she was informed that she could take FMLA leave for her earlier
shoulder injury, she did complete the forms. Because she did not complete the medical
certification form for her NJ FLA leave, her benefits were withheld and she was terminated.
Thus, there is enough to raise a genuine issue of material fact that Defendant failed to advise

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Plaintiff of her rights and obligations under the NJ FLA and that Plaintiff was prejudiced as a
result.
Courts have also found interference with FMLA rights when an employer fails to advise
the employee of a deficiency in a certification and fails to provide the employee seven days to
cure the deficiency. Hansler v. Lehigh Valley Hosp. Network, 798 F.3d 149, 155-56 (3d Cir.
2015) (citing 29 C.F.R. § 825.305(b)) (requiring an employer to allow an employee seven days
to cure defects in an incomplete certification for medical leave under the FMLA). Although
Plaintiff does not point to a New Jersey regulation or case that shows that the NJ FLA includes
an opportunity to cure provision like the FMLA does, Defendant admits that “[w]here the NJ
FLA is silent on an issue or fails to define a term, courts have found that the ‘FMLA and its
regulations have been deemed instructive’ under those circumstances, even though the NJ FLA
preceded the FMLA.” (D. Mov. Br. at 22 n.11) (citing Zawadowicz v. CVS Corp., 99 F. Supp.
2d 518, 532 (D.N.J. 2000) (finding FMLA regulations instructive regarding employee notice
issues that were not detailed in the NJ FLA).
Moreover, New Jersey Courts would likely find that an employer is required to provide
the opportunity to cure a deficient NJ FLA certification in a situation such as this one for two
reasons. First, although Defendant added in the words “New Jersey Family Leave Act” on the
certification form it provided to Plaintiff, Defendant provided Plaintiff with a Department of
Labor certification form that is provided to employees requesting federal FMLA leave. Thus, if
an employer receives an incomplete or insufficient certification form of this type, the employee
is required to inform the employee of deficiencies and provide seven days for the employee to
cure any deficiencies under the FMLA. See 29 C.F.R. § 825.305(b). Second, Defendant’s
handbook specifically indicates that Defendant’s policy was to allow the opportunity to cure

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deficient certifications. In the “New Jersey Addendum to the Geodis Employee Handbook”,
Defendant provides that “[t]he Company shall inform employees if submitted medical
certification are incomplete or insufficient and provide employees at least seven calendar days to
cure deficiencies.” (Wall Cert. Ex. 6). 4 Thus, New Jersey courts would likely find that an
employer interferes with NJ FLA rights if it fails to provide the opportunity to cure a deficiency
especially when, as here, the employer provides a standard FMLA form and has a policy of
allowing an opportunity to cure.
Here, Plaintiff provides evidence that Defendant failed to inform Plaintiff of deficiencies
in her certification and did not allow her time to fix it. According to Plaintiff, Plaintiff submitted
a partially filled out form, along with a note from the Practice Administrator in the Trauma
Division of Cooper University Physicians Department of Surgery, and excuse slips filled out by
a doctor at Cooper Oral and Maxillofacial Surgeons. The notes certified the date that John
Dingle was brought to the hospital via helicopter for injuries after a motor vehicle crash and that
he needed to see an oral maxilla-facial surgeon within two weeks. If Defendant found the
FMLA certification form incomplete, Defendant was required under FMLA law and its own
handbook to provide an opportunity to cure those deficiencies. 5 A jury could reasonably find
4

Defendant argues that the employee handbook policy is not binding because of a disclaimer.
But, regardless of whether the handbook created a binding contract, it laid out Defendant’s
policy of providing an opportunity to cure.
5

Defendant claims that Plaintiff’s certification was neither incomplete nor insufficient, but that
she submitted no certification from a health care provider at all and thus Defendant did not need
to provide her the opportunity to cure. Under the FMLA:
A certification is considered incomplete if the employer receives a certification, but one
or more of the applicable entries have not been completed. A certification is considered
insufficient if the employer receives a complete certification, but the information
provided is vague, ambiguous, or non-responsive. The employer must provide the
employee with seven calendar days (unless not practicable under the particular
circumstances despite the employee's diligent good faith efforts) to cure any such
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that Plaintiff was prejudiced because she was not given the opportunity to cure her certification
form and thus she was terminated. Taking Plaintiff’s evidence as true, Defendant failed to
advise her of her NJ FLA rights and failed to allow her to cure a deficiency in her certification,
causing her prejudice. Thus, this Court denies Defendant’s motion for summary judgment on
Plaintiff’s NJ FLA interference claim.
B. RETALIATION CLAIMS
Next, Defendant moves for summary judgment on Plaintiff’s two retaliation claims – one
under the NJ FLA and the other under the FMLA. Our courts apply the three-step McDonnell

deficiency. If the deficiencies specified by the employer are not cured in the resubmitted
certification, the employer may deny the taking of FMLA leave, in accordance with §
825.313. A certification that is not returned to the employer is not considered incomplete
or insufficient, but constitutes a failure to provide certification.
29 C.F.R. § 825.305. Here, Plaintiff returned a partially completed certification form in which
she filled out the section for employees to complete. She did not fill out the section which a
physician was to complete. Instead, she returned health care provider notes. The notes provided
much of the information required for a medical certification to be sufficient under the NJ FLA.
Under N.J.S.A. § 34:11B-4:
An employer may require that any period of family leave be supported by certification
issued by a duly licensed health care provider or any other health care provider
determined by the director to be capable of providing adequate certification. Where the
certification is for the serious health condition of a family member of the employee, the
certification shall be sufficient if it states: (a) the date on which the serious health
condition commenced; (b) the probable duration of the condition; and (c) the medical
facts within the provider’s knowledge regarding the condition.
N.J.S.A. § 34:11B-4 (emphasis added). New Jersey law does not require that a specific form be
filled out and simply states that if a duly licensed health care provider certifies to certain
information, it is sufficient. Here, Plaintiff submitted notes from physicians including some, if
not all, of the required information of a sufficient certification under New Jersey law. Thus,
when considering the partially completed form along with the notes, a reasonable jury could find
that Plaintiff submitted a certification, even if it was incomplete. Thus at the summary judgment
stage, a reasonable jury could find that Defendant had to provide Plaintiff with the opportunity to
cure.

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Douglas burden-shifting framework, used in various other employment discrimination contexts,
to both NJ FLA and FMLA retaliation claims. Dieng v. Computer Sci. Corp., No. 14-5381, 2016
WL 885389, at *10 (D.N.J. Mar. 8, 2016); Parker, 234 F.Supp.2d at 488 (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 800-06 (1973)). The Supreme Court has summarized the
framework as follows:
The Court in McDonnell Douglas set forth a burden-shifting scheme for discriminatorytreatment cases. Under McDonnell Douglas, a plaintiff must first establish a prima facie
case of discrimination. The burden then shifts to the employer to articulate a legitimate,
nondiscriminatory reason for its employment action. If the employer meets this burden,
the presumption of intentional discrimination disappears, but the plaintiff can still prove
disparate treatment by, for instance, offering evidence demonstrating that the employer's
explanation is pretextual.
Raytheon Co. v. Hernandez, 540 U.S. 44, 50 (2003) (citations omitted).
1. STEP ONE
Under this framework, the Court’s first step is to analyze whether Plaintiff has
established a prima facie case of unlawful retaliation. Raytheon Co. v. Hernandez, 540 U.S. at
50 (citations omitted). To do so, a plaintiff must show that: (1) she invoked her right to leave
under both the FMLA and NJ FLA, (2) she suffered an adverse employment action, and (3) the
adverse action was casually related to the plaintiff’s exercise of her rights under both the FMLA
and NJ FLA. Dieng, 2016 WL 885389, at *10; Hansler, 798 F.3d at 158-59; Erdman, 582 F. 3d
at 508-09. Defendant does not contest that Plaintiff easily shows the second element, an adverse
employment action, because she was terminated. But, Defendant contests the first and third
factors.
Under the first factor, the Court finds that Plaintiff has submitted sufficient evidence that
she invoked her rights under both the FMLA and NJ FLA to raise a contested issue of fact for the
jury. Under the FMLA, Defendant does not dispute that Plaintiff took leave between April 5,

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2013 through June 28, 2013 and that Defendant granted her an additional four weeks of leave.
Thus, a jury could easily find that Plaintiff makes a prima facie showing of the first factor under
her FMLA retaliation claim. Under the NJ FLA, a jury could also find that Plaintiff invoked her
rights when she notified Defendant that she was caring for her adult son who had a serious
medical condition. See D'Alia, 260 N.J. Super. at 9-10 (holding that “[t]he Act does not require
employees to have an encyclopedic knowledge of their legal rights in order to invoke the benefits
of family leave and job protection” and “there are no magic words that must be used” in a
request for NJ FLA leave; if an employee “reasonably apprise[s]” the employer that he needs to
take leave to care for a serious health condition of a family member, the employer must grant all
the rights accorded). See also Erdman, 582 F. 3d at 508-09 (holding that in presenting a
retaliation claim under the FMLA, a plaintiff must only show that she invoked her rights, not that
she actually commenced leave). There is evidence that Plaintiff reasonably apprised Defendant
of her need to take off to care for her son in both her August 2, 2013 voicemail and her August 5,
2013 email. Thus, a reasonable jury could conclude that Plaintiff makes a sufficient prima facie
showing of the first factor – that Plaintiff invoked her rights.
Plaintiff also provides enough evidence to raise a contested issue of fact for the jury as to
the third prima facie element: a causal connection between her leave and termination.
“Establishing a causal relationship between an employee’s decision to take FMLA leave and an
adverse employment event requires the employee to raise an inference of retaliatory intent on the
employer’s part. Retaliation need not be the sole reason motivating the adverse employment
decision; rather, it will suffice for the plaintiff to show that the retaliatory animus was ‘a
determinative factor,’ i.e., that ‘the action would not have been taken but for [the] protected
activity.’” Apatoff v. Munich Re Am. Servs., 2014 U.S. Dist. LEXIS 106665, at *28-29 (D.N.J.

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Aug. 1, 2014) (citing Culler v. Shinseki, 840 F. Supp. 2d 838, 846 (M.D. Pa. 2011) (citing
LeBoon v. Lancaster Jewish Cmty. Ctr. Ass'n, 503 F.3d 217, 231-32 (3d Cir. 2007)). One way
to show a causal connection between the leave request and the adverse employment action is by
showing that there is “unusually suggestive” timing that “create[s] an inference of causality”.
Apatoff, 2014 U.S. Dist. LEXIS 106665, at *28-29 (citing LeBoon, 503 F.3d at 232 (citing Clark
County School Dist. v. Breeden, 532 U.S. 268, 273-74 (2001)). The Third Circuit has also held
that “circumstantial evidence of a ‘pattern of antagonism’ following the protected conduct can
also give rise to the inference [of a causal connection].” Kachmar v. Sungard Data Sys., 109 F.
3d 173, 177 (3d Cir. 1997) (citing Robinson v. Southeastern Pa. Transp. Auth., 982 F.2d 892,
895 (3d Cir. 1993). “These are not the exclusive ways to show causation, as the proffered
evidence, looked at as a whole, may suffice to raise the inference.” Id.
Plaintiff has demonstrated enough evidence, when looked at as a whole, that a jury could
reasonably find that Plaintiff was terminated for taking both her FMLA leave and NJ FLA leave.
First, Plaintiff presents evidence from which a trier of fact could infer that Defendant showed
hostility toward Plaintiff for taking FMLA leave from the outset. One example of this occurred
after Plaintiff sent Lisa Mascaro faxes on April 11th and 23rd with doctors’ notes and emergency
room paperwork and indicated that she was submitting these documents until she could get more
documents filled out at her next doctor’s appointment. (Rosen Cert. Ex. 12, 14). Ms. Mascaro
did not wait for Plaintiff’s next appointment but sent a letter with the subject line “RE:
Unscheduled and unjustified absences” on April 24, 2013. (Wall Cert. Ex. 8). From the subject
line itself, a jury could infer that Ms. Mascaro believed Plaintiff’s absence for her shoulder injury
was “unjustified.” The language of the rest of the letter also constitutes evidence demonstrating
frustration. For example, the letter includes sentences such as: “The company has

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accommodated your absences from April 1, 2013 thru [sic] the present. Due to the needs of the
business your work will need to be distributed accordingly per company discretion.” (Wall Cert.
Ex. 8). Thus, the evidence can be viewed as showing that Plaintiff’s FMLA absence was causing
frustration to the company and that Defendant was developing antagonism toward Plaintiff.
Additionally, Plaintiff presents evidence from which a jury could infer that Defendant
conflated Plaintiff’s FMLA leave for her personal shoulder injury with her NJ FLA leave to care
for her son and that Defendant terminated her because of frustration over her two long
consecutive absences. The first example in which a jury could find that the company conflated
Plaintiff’s leaves appears in Juan Egas’s deposition as the corporate representative. There, he
stated that the company did not provide new forms for Plaintiff when she requested her leave to
care for her son because “Ms. Dingle was on medical leave altogether. So if we see this as one
single process, there’s really no designation, . . . we comply with the procedure, because we sent
this at the beginning of the process, at the beginning of her medical leave.” (Egas Dep. 84:2086:16). This statement may be viewed as showing that the company confused the two leaves,
one based on the FMLA and the other on the NJ FLA, as “one single process”. A trier of fact
could also infer that Defendant conflated Plaintiff’s leaves based on the three letters that
Defendant sent to Plaintiff after Plaintiff requested leave to care for her son because each letter
was entitled “Continued Leave of Absence”. (Wall Cert. Ex. 12; Rosen Cert. Ex. 24; Wall Cert.
Ex. 16). Defendant argues that Plaintiff cannot show temporal proximity between her
termination and her FMLA leave because she was not fired until three months after her FMLA
leave ended, but a jury could find from these examples that Defendant saw her absences as one
continuous leave that included both her FMLA and NJ FLA leave.

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Egas’s testimony also can be viewed by a trier of fact as evidence of developing
antagonism toward Plaintiff for taking consecutive leaves. In his deposition, he stated: “[W]e
granted her with leave and her extended leave started to pose some hardship for the company.
So we needed to restructure the department as a consequence of her absence and other people
were receiving, you know, they were picking up the slack of the work. . . . [H]er responsibilities
were distributed amongst other team members creating unnecessary work for the other people.”
(Egas Dep. 68:24-69:15; 92:8-94:12). Similarly, Lisa Mascaro in her deposition noted: “I can’t
speak for the branch but I’m sure that is a hardship for the branch because they have to distribute
the work to other employees which then they become disgruntled that they have to take on
additional responsibilities, and at the end of the day it’s the business and the branch that’s
suffering.” (Mascaro Dep. 114:14-20). Based on these statements, a trier of fact could infer that
Defendant developed antagonism toward Plaintiff because of her lengthy absence, which
included both her FMLA leave and her NJ FLA leave. Thus, when the Court looks at Plaintiff’s
evidence as a whole, as it must, Plaintiff adequately establishes a triable issue on causation. In
sum the Court finds that Plaintiff has submitted evidence from which a reasonable jury could
find that Plaintiff 1) invoked her rights under the FMLA and NJ FLA, 2) was adversely affected
by an employment decision, and 3) that there was a causal connection between the FMLA leave
and her termination, and the NJ FLA leave request and her termination.
2. STEP TWO
After Plaintiff establishes a prima facie case of retaliation, “[t]he burden then shifts to the
employer to articulate a legitimate, nondiscriminatory reason for its employment action.”
Raytheon Co. v. Hernandez, 540 U.S. 44, 50 (2003) (citations omitted). The employer’s burden
of production at this step in the analysis is a light one. Fuentes v. Perskie, 32 F.3d 759, 763 (3d

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Cir. 1994). “The employer satisfies its burden of production by introducing evidence which,
taken as true, would permit the conclusion that there was a nondiscriminatory reason for the
unfavorable employment decision. The employer need not prove that the tendered reason
actually motivated its behavior, as throughout this burden-shifting paradigm the ultimate burden
of proving intentional discrimination always rests with the plaintiff.” Id. Here, Defendant has
articulated a legitimate reason for having fired Plaintiff— she never submitted substantiating
documentation as to her NJ FLA leave—and have indeed come forward with evidence including
letters and communications in support of Defendant’s decision to terminate Plaintiff on that
basis. Their minimal burden of production has been met.
3. STEP THREE
Thus, the Court turns back to Plaintiff, who continues to bear the burden of persuasion on
the retaliation claim and must now offer evidence demonstrating that the articulated reason is
pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142–143 (2000). To
defeat summary judgment, “the plaintiff must point to some evidence, direct or circumstantial,
from which a factfinder could reasonably either (1) disbelieve the employer’s articulated
legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than
not a motivating or determinative cause of the employer’s action.” Fuentes, 32 F.3d at 764.
To rebut Defendant’s position that Plaintiff’s termination was based on her failure to
provide a complete certification, Plaintiff points to evidence that Defendant did not provide her
with the certification form it was requesting until September 24, 2013, and never gave her the
opportunity to cure the certification form. From this, a jury could infer that Defendant may not
have wanted Plaintiff to produce a completed certification form. To bolster this inference,
Plaintiff submits evidence supporting her contention that Defendant gave her difficulty in taking

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FMLA leave from the outset, never told Plaintiff about her NJ FLA rights, and did not respond to
Plaintiff’s request to come back to work. In addition, Plaintiff brings evidence that Defendant
may have been motivated to terminate Plaintiff because her absences were causing frustration to
the company. Plaintiff points to Mr. Egas’s words that Plaintiff’s leaves were “creating
unnecessary work” and Ms. Mascaro’s words that her leaves caused employees to be
“disgruntled” and caused the branch to suffer. Thus, a reasonable trier of fact could infer that
Defendant developed antagonism toward Plaintiff. See Apatoff, 2014 U.S. Dist. LEXIS 106665,
at *34-37 (holding that if a jury could reasonably conclude the employer showed antagonism and
was “happy to terminate Plaintiff because her FMLA leave was inconvenient for them”, then
there is a genuine issue of material fact as to whether to believe the employer’s alleged legitimate
reason for terminating the employee). In sum, whether Plaintiff’s termination was retaliatory or,
rather, based on legitimate nondiscriminatory reasons is a triable issue of fact. Accordingly,
Defendant’s motion for summary judgment as to the NJ FLA and FMLA retaliation claims will
be denied.
IV.

CONCLUSION

For the foregoing reasons, the Court will deny Defendant’s motion for summary
judgment. An appropriate Order will be filed herewith.
s/ Stanley R. Chesler
STANLEY R. CHESLER
United States District Judge
Dated: March 7, 2017

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