PODURGIEL v. ACME MARKETS INC.
Filing
60
MEMORANDUM and ORDER granting in part and denying in part 45 Motion for Summary Judgment ; granting in part and denying in part 49 Motion for Summary Judgment; Count 1 is dismissed as to orientation; and Counts II, III, IV and V are dismissed in their entirety. Signed by Judge Peter G. Sheridan on 5/21/2018. (km)
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
)
)
Civil Action No:
16-cv-02262 (PGS)(TJB)
GREGORY PODURGIEL,
Plaintif
V.
)
)
)
)
)
MEMORANDUM AND
ORDER
ACME MAETS, NC.,
Defendants.
This matter comes before the Court on a motion for summary judgment brought by
Defendant, Acme Markets, Inc. (“Acme”) (ECF No. 45) and Plaintiff Gregory Podurgiel’s motion
for partial summary judgment. (ECF No. 49).
I.
Plaintiff filed his Complaint against Acme on April 21, 2016 alleging Defendant’s violation
of the Family and Medical Leave Act (“FMLA”) and the New Jersey Law Against Discrimination
(“NJLAD”). Plaintiff avers in his Complaint that he was terminated from employment due to his
disability, his need for accommodations for his disability, and/or for taking FMLA protected
absences, in violation of the FMLA and NJLAD. (Complaint, ¶1).
Gregory Podurgiel (hereinafter “Plaintiff” or “Podurgiel”) was hired by the Greater
Atlantic and Pacific Tea Company (hereinafter “A&P”) in 1999 as a butcher. (Deposition of
Gregory Podurgiel (hereinafter Podurgiel Dep.) 9:3-14, attached hereto as Exhibit 1. P1. SOF ¶1.)
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Over the course of his employment, Plaintiff worked at several A&P grocery stores, and was a
full-time employee at each store. (Podurgiel Dep. 12:16-13:2; SOF ¶2). Throughout the course
of his employment with A&P, Plaintiff was a member of the United Food Commercial Workers
Local 464A.
In 2014, Plaintiff began working at the grocery store located in Wall Township New Jersey
(hereinafter the “Wall Township Store”) where he remained until September 2015. Joan Perez
was the store manager at the Wall Township store, and Ernest Lawrence (hereinafter “Ernie
Lawrence”) served as the Assistant Store Manager, or “co-manager.”
During the 2015 calendar year, Plaintiff earned $47,354.37 in wages.
2015 Leave of Absence
Plaintiff suffers from chronic mastoiditis media in his right ear. In or around August 2015,
Plaintiff’s physician recommended that he undergo surgery to treat the same. Thereafter, Plaintiff
notified both Store Manager Perez and Assistant Store Manager Lawrence of his medical condition
and his need for leave in order to undergo surgery. (P1. SOF ¶11).
On September 7, 2015, Plaintiff submitted a Family and Medical Leave Act (FMLA)
Request Form that he had downloaded from the State of New Jersey website to A&P Human
Resources. Plaintiff testified that he received oral confirmation that his request for leave was
approved. (Podurgiel Dep. 21:16-23). Also, on September 7,2018, Plaintiff submitted to A&P a
New Jersey State Disability form completed by his physician, Dr. Laura Downey. Following his
surgery, Plaintiff submitted a certification from his doctor verifying his medical condition, that he
had undergone surgery, and confirming an anticipated leave of absence from September 8,2015
until November 8, 2015. (P1. SOF ¶15.) Following his surgery, Plaintiff required regular follow
up with his surgeon for purposes of monitoring his condition. During a visit on October 26, 2015,
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Plaintiffs physician identified an anticipated return to work date on November 9, 2016. However,
thereafter during a visit on November 9, 2015, Plaintiffs physician advised Plaintiff that he should
remain out of work until November 16, 2015. Accordingly Dr. Downey provided Plaintiff with a
clearance to return to work on November 16, 2015. According to Plaintiff, he handed a copy of
his November 16, 2015 clearance to return to work to Assistant Store Manager Ernie Lawrence on
November 9, 2015.
In mid-October, 2015, while out on medical leave, Acme, who acquired A&P, held an
employee orientation for the Wall Township store employees in order to review the new Acme
policies and procedures. (Lawrence Dep. at 19:5-21, attached as Exhibit 7. P1. SOF ¶39). Plaintiff
was directed, by Store Manager Joan Perez, to participate in that employee orientation program at
the Wall Township Grocery Store and attended. (Podurgiel Dep. at 32:10-14, 33:11-22) (See also
Lawrence Dep. at 22:3-6 confirming Plaintiffs attendance at orientation). P1. SOF
¶ 40).
Acme’s Acquisition of A&P’s Wall Township Store
During the time period when Plaintiff was out on medical leave, A&P declared bankruptcy.
Following A&P’s bankruptcy filing, Defendant Acme Markets submitted a bid to purchase 76 of
A&P’s stores, including the Wall Township store where Plaintiff was employed. On July 19, 2015,
the agreement to transfer the ownership of 71 A&P stores, including the Wall Township store, to
Acme stores was memorialized in an Asset Purchase Agreement (hereinafter “the Purchase
Agreement”). Pursuant to the Purchase Agreement, Acme agreed to offer employment to all
“covered employees” of A&P. (Purchase Agreement at Sec. 6.4 (ACME00052), attached as
Exhibit 7. P1. Opp. and P1. SOF ¶25.)
According to Plaintiff, the Purchase Agreement defined “covered employees” as “an
employee of A&P or any of its subsidiaries at the time of applicable closing, whose duties relate
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primarily to the operation of any of the Stores, excluding any such employees who are on shortterm disability, long-term disability or any other approved leave of absence as of the applicable
Closing.” Purchase Agreement at Section 1.1 (ACME 00011), attached as Exhibit 8 P1. SOF ¶26
Following the execution of the Purchase Agreement, Defendant’s agents visited all grocery
stores Acme acquired via the purchase Agreement. (Dosenbach Deposition at 25:2-10, attached as
Exhibit 2; Mitch Schafer Deposition (hereinafter “Schafer Deposition”) at 23:15-21).
During
these visits, Acme agents communicated to the store employees that they would become Acme
associates. (Schafer Dep. at 23:15-21) Defendant also engaged in negotiations with unions when
present at the stores they acquired. (Dosenbach Dep. at 20:17-20, 30:7-9; P1. SOF ¶31.)
Thereafter, Defendant entered into Memorandums of Understanding with said unions which set
forth their agreements as related to the terms and conditions of employment between the union
members and Defendant at each store. In August, 2015, the Memorandum of Agreement between
Acme and the Wall Township store union, identifies that Acme agreed to accept all wage, hour
and terms and conditions of employment set forth in the previously negotiated collective
bargaining agreement (CBA) between the Union and A&P. (ECF No. 49-11) That is, according
to Plaintiff, the CBA entered into between A&P and the Union in November 2008 remained in
effect at the Acme acquired the Wall Township store, and that all Wall Township employees who
were in non-management positions under A&P were members of the Union.
Store Transition
Between November 3 and November 6, 2015, the Wall Township store underwent a three
day transition, and reopened to the public on November 6,2015.
During the transition, the store’s signage was changed from A&P to Acme, all A&P
products were removed from the shelves; new cash registers and computers were installed. In
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addition, Acme implemented a different merchandizing strategy that included larger produce,
bakery, and floral departments. Acme canceled A&P vendor and meat supply contracts, and also
added some new vendors. The advertising strategy also changed.
Store Employee Transition
According to Dan Dosenbach, Acme Vice President of Human Relations, Acme was
facing a chaotic situation” regarding the transfer of employees from A&P to Acme. (Dosenbach
dep. at 45). During the transition, all of the employee files were removed from the store. (Perez
Dep. at 29:1-18. P1. SOF ¶42.)
According to Dosenbach, Acme did not make formal offers of employment to the A&P
employees. Rather, Acme required A&P employees to complete employment applications that
were then entered into its computer system prior to the transfer of ownership. (Dosenbach Dep.
27:9-22-26:13; P1. SOF ¶50). This was done in order to verify the start date and seniority date for
each employee.
Joan Perez remained the Store Manager, and Ernie Lawrence remained the
Assistant Store Manager at the Wall Township store. (P1. SOF ¶53.) Melissa English is a manager
of training and development at Acme, and she performs a variety of human resources function for
Acme. Ms. English reports to Dan Dosenbach, V.P. of Human Resources. Ms. English testified
that during the transition, she ‘volunteered to help with the Express Hires” because there was not
enough administrative staff to process all of the employees. (English Dep. at 48)
Acme utilizes a computer system known as the ‘MMS” system which allows store
managers and human resources persoimel to access employee information such as an employee’s
hire and seniority dates. (Lawrence Dep.19:5-22; P1. SOF ¶54.) Managers and assistant managers
have access to the MMS system, but only Acme human resources personnel have access in order
to activate a new “express hire” in the system. (Lawrence Dep. at 37:9-14).
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Plaintiffs attempt to return to work
According to Plaintiff, throughout his FMLA leave of absence, he contacted the Wall
Township store regularly to “check-in” (Lawrence Dep. at 21:9-15, stating “I know he checked in
quite often.
.
.
“).
(P1. SOF ¶5 7).
Prior to his anticipated return to work date, Plaintiff contacted store manager Joan Perez
who advised him that because of the transition from A&P to Acme, he would need to submit a
new return to work note from his physician. Thereafter, on or about November 9, 2015, Plaintiff
submitted a return to work note directly to Assistant Store Manager Lawrence. As noted above,
the note stated that Plaintiff could return to work on November 16, 2015.
According to store manager Ernie Lawrence, he forwarded Plaintiffs note to Acme’s
human resources department in order to receive clearance to return to work, but advised Plaintiff
that he could not return to work because he was “not in the system.” (Lawrence Dep. 28:18-29:19).
On November 12, 2015, Lawrence testified that he reached out to Acme Human Resources Agent
Melissa English to inquire why Plaintiff had not been added to the MMS system, but received no
response. (P1. SOF ¶62).
On Monday, November 16, 2015, Plaintiff reported to work, whereupon he was advised
that he “wasn’t on the schedule.” (Podurgiel Dep. at 45:5-12, 49:25-50:12; P1. SOF ¶64.)
According to Plaintiff, the following week he contacted the store by telephone to inquire when he
could return to work, but was again told that he was not on the schedule. (Podurgiel Dep. at 49:123; Plaintiffs Phone Records, attached ECF No. 52-18.) He also visited the store in person and
spoke with Joan Perez who advised him that she could not resolve the issue until the district
manager returned from vacation. Following his attempted return to work on November 16, 2015,
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Plaintiff called and his cell phone records indicate that over 15 calls were made to the Wall
Township Grocery Store between November 17, 2015 and December 14, 2015.
Plaintiff also contacted representatives of the Union during this time period. Plaintiff
called and his cell phone records indicate that more than 25 calls were made to the Union between
November, 2015 and February, 2016.
Around early December 2015, Plaintiff sent aletterto Defendant’s Human Resources Vice
President Dan Dosenbach detailing his difficulty procuring reinstatement at the Wall Township
Grocery Store.
On Plaintiff’s behalf, on December 7, 2015, Nick Rando, agent for the Union,
also contacted Dosenbach to advise as to the issue with Plaintiffs ability to return to work.
At
deposition, Mr. Dosenbach testified that Acme’s position is that employees who were out on leave
of absence from a store Acme acquired are presumed to be employees but that will be confirmed
when the employee returns to work with paperwork that supports the return and that the leave was
appropriate. (Dosenbach Dep. at 3 1-32; Def. SOF ¶62).
Plaintiff also contacted A&P Human Resources Manager Mitch Schafer. On December
28, 2015, Shaffer contacted Acme Human Resources on Plaintiffs behalf advising of Plaintiffs
difficulty returning to work. At deposition, Schafer was asked what his understanding was as to
whether Plaintiff was eligible to be hired once he was released by his doctor. Schafer testified “he
was an employee of the store that was acquired by Acme” and that “[a]ssociates that were working
for the A&P that Acme acquired would become Acme associates.” (Schafer Dep. at 21).
Following Shaffer’s communication, Acme Associate Relations Manager Stacy Slate
confirmed to Shaffer that Plaintiff was eligible to return to work. (Acme Internal Communications
at ACME00095, attached as Exhibit 12. P1. SOF ¶77).
At deposition, Melissa English, manager of training and development testified:
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Q.
As of November 9th what was your understanding as to what would
occur with regard to employees at an A&P which was acquired by Acme
but who were out on a leave of absence at the time of acquisition?
A.
1 would have needed to be told that the medical, you know that the
medical approval to return to work was there and that as far as and then
wed need A&P to verify that they were in fact previously employed at this
location that we acquired.
--
Q.
So was it your understanding they would be entitled to reemployment
at the Acme store?
A.
Yes, yes. As long as A&P verified, you know, yes this person was in a
purchased location.
(English Dep. at 58.)
On November 18, 2015, Melissa English entered Podurgiel into the Acme HR system
called ‘PeopleSoft.” (English Dep. at 63-64 & 68; English Dep. Ex. P-4/Acme 0100). This was
the first situation when Ms. English had to address a situation where an A&P employee had been
out on disability. (English Dep. at 62; Def. SOF ¶78).
At deposition, Ms. English said that she
would have expected someone to be informed that she had entered Podurgiel into the HR system
on November 18, 2015 given all the email traffic back-and-forth, but she does not remember if
that step was taken. (English Dep. at 65; Def. SOF ¶84).
According to Plaintiff, at no time did Store Manager Lawrence receive communication
from any agent of Acme that Plaintiff had been re-entered into the system, and was eligible to
return to work. (Lawrence Dep. at 34:15-35:14, 38:37:25-38:6; P1. SOF ¶78).
Included with the Statement of Undisputed Facts are a series of emails that addressed
Plaintiffs employment status. They include the following:
On November 4, 2015, Ms. English received an email with the subject line “employees
that are not in system for 780 Wall” and the content of the message included the headline
“the following are out on disability and will be returning” followed by the names of Shawn
Williams and Podurgiel. (Acme 0051). Def. SOF ¶68.
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On November 6, 2015, English responded that that she could not enter three emplo
yees
into the system, including Podurgiel, because “{w]e are not hiring any Full-Timers
unless
they are department heads.” Ms. English asked for the store to review the information
with
other management and get back to her. (Acme 0049.) Def. SOF ¶70
On November 9, 2015, Lawrence replied to Ms. English and wrote “Melissa, Receiv
ed
doctors note for Gregory Podurgiel. It states that he can return to work on the 16th
of
November. Any decision on what course we will take with his employment? Do you
need
the doctor’s note faxed to you?” (Acme 0049.) Def. SOF ¶74.
On November 10, 2015 Ms. English forwarded Mr. Lawrence’s message to Steve
Moyer and Stacy Slate, who were associate relations managers in the Acme
Human
Resource Department: “Can you advise on this A&P person return to work? They
were on
leave when the store employees were transferred?” (Acme 0048-0049.) Def. SOF
¶75
Mr. Moyer responded via email on November 10, 2015: “If Gregory Podurgiel was
in
the store that transitioned to the Acme and was out on leave prior to the live date,
I would
think he is able to transition into the new Acme 780? However, can anyone tell
you when
he went out of work? I can’t wonder why his information wasn’t on the store file
that was
loaded into People Soft in the first place? Wouldn’t it be easiest instead of Expres
s hire on
him, to have him apply online and get in the system that way?” (Acme 0048.)
Def. SOF
¶76
In response, Ms. English reached out via email to Mitch Schaffer to determine
“should Gregory Podurgiel have been part of the transfer to Acme for the Wall,
NJ store?
I’m not really sure how we are handling transfers of people who were on disabil
ity at the
time of the transition?” (Acme 0047-48; English Dep. at 6 1-62.) Def. SOF ¶77
On November 10, 2015 Mr. Schaffer replied: “He has been an Associate for
15 years and
has been out on an authorized medical leave of absence since September. Joan
the Store
Director did not ask for an additional Meat Cutters so my assumption is she
will need him
when he is ready to return.” (Acme 0047.) Def. SOF ¶79
On November 11, 2015 Dan Dosenbach, Acme’s Vice President of Human Resour
ces
wrote: “The position that Acme has taken and been confirmed by the Union
is that
employees out on a leave of absence from a store we acquired are presum
ed to be
employees, but will be confirmed when the employee returns to work with paper
work []
but supporting the return and that the leave of absence was appropriate. Emplo
yee[s] on
leave of absence from closing stores should not be transferred into an
Acme store[j.”
(Acme 0047.) Def. SOF ¶80
At 5:31 PM on December 28, 2015, Schafer wrote an email to Ms. Slate and
stated that Podurgiel was out on a medical leave of absence, has since receive
d full duty
release from his doctor, and that Podurgiel told Mr. Schafer that Podurgiel
was having
trouble coming back to work. (Acme 0097.) Def. SOF ¶85
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At 6:41 PM on December 28, 2015. Ms. Slate forwards Mr. Schafer’s email to
Ms. English and asks her to “express hire” Podurgiel. (Acme 0096.) Def. SOF ¶86
At 9:03 PM on December 28, 2015, Ms. English responds to the email thread and
asks, “Could this be the same person as Gregory Podurgiel from 780? Employee ID
3487745. Hired 11/16/15 as an express hire. I remember this was a person who came back
from leave. He’s in as a full time meat associate.” (Acme 0096.) Def. SOF ¶90
At 10:58 PM on December 28, 2015, Ms. Slate responds to Ms. English’s 9:03
PM message to confirm that it was the same associate. (Acme 0095.) Def. SOF ¶91
At 7:22 AM on December 29, 2015, Ms. English writes back to the email thread and states:
“The store gave me the impression he was already back hence the express hire was entered
over a month ago so he’s good to go. Mary Pinskis team will have to update his seniority
in the system.” (Acme 0095.) Def. SOF ¶92
At 7:38 AM on December 29, 2015, Mr. Schafer sent the following text message to
Podurgiel: “Greg, you should be ok to return please call Joan. Thanks.” (Schafer Dep. at
25-26; Acme 0052.) Def. SOF ¶93
Podurgiel did not respond to Mr. Schafer’s text message of December 29, 2015. (Schafer Dep. at
29-30; Def. SOF ¶84.
Plaintiff has stipulated that he is not seeking back pay after the date of the
text message, December 29, 2015. It is unclear why Podurgiel did not respond or return to work.
Plaintiff filed a Complaint before this Court on April 21, 2016. There he alleged the
following Claims: (I) Violations of the Family and Medical Leave Act (Interference); (II) Violations
of the Family and Medical Leave Act (Retaliation); (III) Violations of the New Jersey Law Against
Discrimination
(NJLAD)(Disability/Perceived
Disability);
(IV)
Violations
of
NJLAD
(Discrimination); Violations of NJLAD (Failure to Hire).
On February 15, 2018 Defendant filed a motion for Summary Judgment. Also on February
15, 2018, Plaintiff filed a motion for partial summary judgment.’
Both parties filed their motions incorrectly, so mLch so that while there are two motions, the docket lists
five motions pending. It appears that parties filed declarations and statements of undisputed material facts as
separate motions. [See ECF Nos. 45, 46, 47, 48, 49].
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In its motion to dismiss, Defendant argues that Plaintiff fails to meet the requirements of
prima facie claims under FMLA, and that Acme is not a successor in interest employer under the
FMLA. Further, Defendant argues that Plaintiff has also failed to meet the prima facie requirements
for his NJLAD claims. Plaintiff’s motion for partial summary avers that Acme does meet the FMLA
broad definition of successor-in-interest, and is liable to Plaintiff for any FMLA violations.
‘I.
Summary judgment is appropriate under Fed. R. Civ. P. 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, 32223 (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. Indais. Crating Co., 358 F.3d 241, 247 (3d
Cir. 2004) (quoting Anderson, 477 U.S. at 255).
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
carmot 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). [Ujnsupported allegations.
.
.
and pleadings
are insufficient to repel summary judgment.” Schoch v. First Fidelity Bancorp., 912 F.2d 654,
11
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657 (3d Cir. 1990); see also Fed. R. Civ. P. 56(e) (requiring nonmoving party to set forth specific
facts showing that there is a genuine issue for trial”). Moreover, only disputes over facts that might
affect the outcome of the lawsuit under governing law will preclude the entry of summary
judgment. Anderson, 477 U.S. at 247-48. If a court determines, after drawing all inferences in
favor of [the non-moving party], and making all credibility determinations in his favor “that no
reasonable jury could find for him, summary judgment is appropriate.” Alevras v. Tacopina, 226
Fed. App’x. 222, 227 (3d Cir. 2007).
III.
First, the Court reviews whether Defendant is considered a successor-in-interest of A&P
and thus should be held liable for the alleged FMLA violations. The FMLA defines an “employer’
as follows:
(A) In general. The term “employer”(I) means any person engaged in commerce or in any industry or activity affecting
commerce who employs 50 or more employees for each working day during each
of 20 or more calendar workweeks in the current or preceding calendar year;
(ii) includes(I) any person who acts, directly or indirectly, in the interest of an employer to any
of the employees of such employer; and
(II) any successor in interest of an employer;
(iii) includes any “public agency”, as defined in section 3(x) of the Fair Labor
Standards Act of 1938 (29 U.S.C. 203(x)); and
(iv) includes the General Accounting Office [Government Accountability Office]
and the Library of Congress.
29 U.S.C.
§ 2611 (4)(A)(i)-(iv). Section (A)(ii)(II) is of interest in the present matter. Defendant
argues that the Bankruptcy Court held that Acme was not a continuation or substantial continuation
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of A&P and thus should not be considered a successor-in-interest under the FMLA. See In re Trans
World Airlines, 322 F.3d 283 (3d Cir. 2003) (allowing defendant to sell the property “free and
clear” from the alleged EEOC claims in the case based on the language of the Bankruptcy Court’s
opinion.) As cited in the Statement of Undisputed Material Facts submitted by Defendant, the
bankruptcy court’s decision stated in paragraph 15:
Except with as expressly set forth in the Purchase Agreement, the Buyer and its
successors and assigns shall have no liability for any Claim... whether known or
unknown as of the Closing Date, now existing or hereafter arising
whether
derivatively, vicariously, as a transferee or successor or otherwise
...
(SOF ¶8b).
Acme argues that Mr. Podurgiel’s claim did not arise until November 9 or November 16,
2015 when he was denied the right to resume work, so the prior bankruptcy court finding was not
an issue at that time. ‘Successor liability under the FMLA,
[...]
corporate law.” Cobb v. Contract Transp.. Inc., 452 F.3d 543, 551
derives from labor law, not
th
6
(
Cir. 2006). The definition
and standards are thus applied in an equitable manner. Id. This Court has previously held that the
standards utilized in determining the successor-in-interest question in FMLA cases must be
interpreted through the employee’s viewpoint. Vanderhoofv. Life Extension Inst., 988 F. Supp.
507, 513 fn 2 (D.N.J. 1997)(citing to Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27,
43, 96 L. Ed. 2d 22, 107 S. Ct. 2225 (1987)).
29 C.F.R.
§
825.107 provides further guidance to the Court in answering the question of
successorship, stating,
[Ijn determining whether an employer is covered because it is a “successor in
interest” to a covered employer, the factors used under Title VII of the Civil Rights
Act and the Vietnam Era Veterans’ Adjustment Act will be considered. However,
unlike Title VII, whether the successor has notice of the employee’s claim is not a
consideration. Notice may be relevant, however, in determining successor liability
for violations of the predecessor.
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The factors to be considered include:
(1) Substantial continuity of the same business operations;
(2) Use of the same plant;
(3) Continuity of the work force;
(4) Similarity ofjobs and working conditions;
(5) Similarity of supervisory personnel;
(6) Similarity in machinery, equipment, and production methods;
(7) Similarity of products or services; and
(8) The ability of the predecessor to provide relief.
(b) A determination of whether or not a successor in interest exists is not determined
by the application of any single criterion, but rather the entire circumstances are to
be viewed in their totality.
Here, Acme substantially continued the same business operations as A&P with only a short
interruption to change the signage and the interior of the store to conform to other Acme
stores.
The store did not change location and assured continuity of the work force in their Purcha
se
Agreement, where Acme agreed to offer employer to all “covered employees” of A&P.
(Exhibit
8. P1. SOF ¶25.) There were no drastic changes made to the management team at the store. Perez
remained the Store Manager and Lawrence remained the Assistant Store Manager. Basica
lly, the
same work was being carried out, i.e., shelves, scanning and preparing meat for sale. Vande
rhoof
988 F. Supp. at 514. The products and services remained similar as Acme continued to operate
the store as a supermarket. In light of the above, the Court finds that Defendant is a succes
sor-ininterest of A&P.
Next the Court reviews whether the other elements required to meet a prima facie case
under FMLA have been met by Plaintiff.
Plaintiff raises two claims in connection with the FMLA: interference and retaliation.
Some
courts have held that facially duplicative interference and retaliation claims may not
be pursued
simultaneously. See Kumar v. Johnson & Johnson, Inc., No. CIV.A. 12-779 MAS, 2014
U.S. Dist.
LEXIS 154650, 2014 WL 5512549, at *11 n.8 (D.N.J. Oct. 31, 2014); Ya,namoto v.
Panasonic
14
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Corp. ofN. Am., No. CIV.A. 12-2352 JLL, 2013 U.S. Dist. LEXIS 93244, 2013 WL 3356214, at
*
10-11 (D.N.J. July 2,2013); see also Lichtenstein v. Univ. ofPittsburgh 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 Erdman
i’.
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). In the interest of
comprehensiveness, the Court reviews both.
FMLA Claim I (Interfere)
Plaintiff argues that Defendant interfered with his right to take FMLA leave on two
occasions: first, by asking him to attend the orientation session held in October 2015, and second
by failing to timely reinstate him once his leave ended. (Compl., ¶1J49-50).
The FMLA finds it “unlawful for any employer to interfere with, restrain, or deny the
exercise of or the attempt to exercise, any right provided” in the FMLA. 29 U.S.C.
§ 2615(a)(1).
In order to assert an interference claim, Plaintiff must show that he was entitled to benefits under
the FMLA and that he was denied them. Callison v. Phila, 430 F.3d 117, 119 (3d Cir. 2005) (citing
29 U.S.C.
§ 26 12(a), 2614(a)). Furthermore, Plaintiff must establish that this denial prejudiced
him. Sco/Ienza v. Verizon Pennsylvania, Inc., 307 Fed. Appx. 619, 621 (3d Cir. 2008) (quoting
Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89, 122 S. Ct. 1155, 152 L. Ed. 2d 167
(2002)). “Prejudice occurs when the employer’s failure to advise the plaintiff of [his] FMLA rights
render[s] [him] unable to exercise the right to leave in a meaningful way, thereby causing injury.”
Lupyan v. Corinthian Colleges Inc., 761 F.3d 314, 3 18-19 (3d Cir. 2014) (internal quotations and
modifications omitted). Nevertheless, “mere technical FMLA violations are not actionable.” Bravo
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v. Union Cry., 2013 U.S. Dist. LEXIS 73379, 2013 WL 2285780, at *9 (D.N.J. May 23, 2013)
(citation omitted).
With regard to the orientation session, Defendant argues that Acme could only request
A&P to permit Acme employees to visit the store. However, Acme could not demand A&P
employees’ presence because it had not taken over the store yet. Plaintiff was asked to attend the
orientation session by the store director and meat department manager, not by an Acme
employee. (SOF ¶43-45). Defendant argues that asking Podurgiel to attend the orientation
session constituted “de minimis contact” that did not interfere with Plaintiff’s FMLA leave.
In O’Donnel v. Passport Health Cornnnins., Inc. 561 Fed. Appx. 212, 218 (3d Cir., 2014),
the Defendant had apparently contacted Plaintiff during her leave to ask about the status of a
decision to switch position, a salary request, as well as to acknowledge that O’Donnell was on
medical leave. In O’Donnel, the Court held that the contact with Plaintiff was de minimis
because they did not require Plaintiff to perform work to benefit the company “and did not
materially interfere with her leave” Id. Further, the 0 ‘Donnell court stated that “the contacts
were aimed only at retaining [Plaintiff] as an employee, and there is no evidence showing that
[Defendant] in any way hampered or discouraged [Plaintiff 5] exercise of [Plaintiffs] right to
medical leave, or attempted to persuade her to return from her leave early.” Id.
The same reasoning applies in the present case. Plaintiff was not asked to perform work,
nor was he discouraged from exercising his right to medical leave. Plaintiff was asked to attend a
meeting about his relationship to a new employer rather than communicate on the phone. The
attendance at the orientation session still appears to be de minimis breach of FMLA leave in light
of all the circumstances. Moreover, it is also unclear whether attendance at the meeting was a
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mandatory obligation or a voluntary action of Podurgiel.
Thus, based on the facts and the
0 ‘Donnell rationale, this claim should be dismissed.
Plaintiff’s second argument is that Acme breached FMLA by failing to reinstate Podurgiel
about five weeks earlier. Defendant argues that Acme did not fail to reinstate Mr. Podurgiel, but
that the delay occurred during the upheaval caused by the chaotic transition and was unrelated to
his FMLA leave. On the other hand, Plaintiff asks for damages up until the date when he was
asked to return to work, December 29, 2015. The record shows that Plaintiff was apparently re
entered into the system via “express hire” “over a month” before December 29, 2015. (See Def.
SOF ¶92.) That is, on November 18, 2015, Melissa English entered Podurgiel in the Acme Human
Resources system. As such, Acme management could have acted on Podurgiel’s reinstatement
request at that time.
Pursuant to 29 C.F.R. 825.107(c),
When an employer is a successor in interest, employees’ entitlements are the same
as if the employment by the predecessor and successor were continuous
employment by a single employer. For example, the successor, whether or not it
meets FMLA coverage criteria, must grant leave for eligible employees who had
provided appropriate notice to the predecessor, or continue leave begun while
employed by the predecessor, including maintenance of group health benefits
during the leave and job restoration at the conclusion of the leave.
A reasonable jury should assess whether the employee invoked his right to return to work, and
whether the employer’s delay in processing Mr. Podurgiel’s employee records interfered with this
right. As such, summary judgment is denied on Count I as to both Plaintiff’s and Defendant’s
motion.
FMLA Claim II (Retaliation)
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, 93 5. Ct.
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1817, 36 L. Ed. 2d 668 (1973). Kancherla v. Lincoln Tech. Inst., Inc., 2018 U.S. Dist. LEXIS
25456, *26 (D.N.J. Feb. 15, 2018). The framework consists of three steps. First, a plaintiff must
present sufficient evidence to support a prima facie case of discrimination. Sr. Mary’s Honor Ctr.
v. Hicks. 509 U.S. 502, 506 (1993). Once the plaintiff establishes a prima facie case, the burden
of production then shifts to the defendant, who must articulate a legitimate, nondiscriminatory
reason for its actions. Id. at 507; Burdine, 450 U.S. at 254; McDonnell Douglas, 411 U.S. at 802.
If the defendant satisfies this burden, the reviewing court must proceed to the third step. At this
stage, the burden of production shifts back to the plaintiff who must come forward with admissible
evidence showing that the defendants” articulated, nondiscriminatory reasons were not the true
reasons for the adverse action, but merely a Apretext for discrimination.” Hicks, 509 U.S. at
507-08; Burdine, 450 U.S. at 253.
To succeed on an FMLA retaliation claim, a plaintiff must establish that: (1) he exercised
his rights under the FMLA; (2) there was an adverse employment action; and (3) a causal
connection exists between his protected activity and termination. See Conoshenti
i
Pub. Serv.
Elect. & Gas Co., 364 F.3d 135, 146 (3d Cir. 2004). If the plaintiff meets the prima facie burden,
a rebuttable presumption of unlawful retaliation arises and the burden shifts to the defendant to
articulate a legitimate, non-retaliatory reason for the plaintiffs termination. If the defendant then
satisfies its burden, the burden reverts to the plaintiff to show that the proffered reason for the
termination was a pretext for retaliation. Id.
Plaintiff alleges that “Defendant retaliated against [him] by firing him/not continuing his
employment/refusing to hire him for having taken FMLA-qualifying leave.” (Compl. ¶54).
Although Plaintiff clearly exercised his rights under the FMLA, he was not tired, and he was
eventually rehired.
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[I]n 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.”
Kancherla v. Lincoln Tech. Inst., Inc., 2018 U.S. Dist. LEXIS 25456, *28 (Feb 15, 2018) (quoting
Budhun v. Reading Hosp. & Med. Ctr., 765 F.3d 245, 257 (3d Cir. 2014). “The Third Circuit has
not yet decided whether the FMLA analysis should incorporate the lower standard for “adverse
employment action” that 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, 126 S. Ct. 2405,
165 L. Ed. 2d 345 (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). Under Burlington an adverse employment action is defined
as a “significant change in employment status, such as hiring, firing, failing to promote,
reassignment, or a decision causing a significant change in benefits.” Burlington Indus. Inc. v.
Ellerth, 524 U.S. 742, 749. 3 (1998).
The process leading to Plaintiffs rehire was less than efficient, and was characterized as
general chaos associated with the transition; however, Plaintiff failed to show that there was an
adverse action.
The Court finds that Plaintiff failed to meet the prima facie requirements for this claim.
Thus, Summary Judgment is granted in favor of Defendant on Count II.
NJLAD Claims (Claims III, IV, V)
The NJLAD prohibits employment discrimination on the basis of disability or perceived
disability. To succeed on a discriminatory discharge claim under the NJLAD, Plaintiff must “show
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that the prohibited consideration
.
.
.
played a role in the decision making process and that it had
a determinative influence on the outcome of that process. Bergen Commer. Bank v. Sisler, 157 N.J.
188, 207, 723 A.2d 944 (1999). Discriminatory discharge claims under the NJLAD are also
analyzed under the familiar burden-shifting framework set forth in McDonnell Douglas Corp. v.
Green, 411 US. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Joseph v. New Jersey Transit Rail
Operations Inc., 586 Fed. Appx. 890, 892 (3d Cir. 2014) (citing Viscik v. Fowler Equip. Co., 173
N.J 1, 13-14, 800 A. 2d 826 (2002,),); See also Battaglia v. United Parcel Servs., Inc., 214 N.J. 51 8,
546, 70 A.3d 602 (2013) (“All LAD claims are evaluated in accordance with the United States
Supreme Court’s burden-shifting mechanism.”)
a.
CLAIM III Violations ofthe New Jersey Law Against Discrimination (‘NJLA D)
(Disability/Perceived Disability)
To establish a prima facie case of discriminatory discharge due to a disability in violation
of the NJLAD, a plaintiff must establish: “(1) that he is a member of a protected class [i.e. that he
was disabled or perceived to be disabled]; (2) that he was otherwise qualified and performing the
essential functions of the job; (3) that he was terminated; and (4) that the employer thereafter
sought similarly qualified individuals for the job who were not members of his protected class.”
Joseph, 586 Fed. Appx. at 892 (citation omitted); Grande v. Saint Clare’s Health Sys., 230 N.J. 1,
18, 164 A.3d 1030, 1039 (2017).
Defendant argues that Plaintiff failed to meet the prima facie requirements for this claim
because he has failed to show that he suffered an adverse employment action because of his
disability. As noted above, the delay in adding Podurgiel to the active roster is an adverse action
under this circumstance.
Defendant also argues that they did not seek a similarly qualified
individual after they failed to immediately re-hire Plaintiff.
Acme had since the beginning showed an intention of re-hiring Plaintiff Plaintiff was
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technically terminated, as where all other A&P employees due to the ownership transition;
however, Podurgiel was not terminated because of his disability. There was a delay in his
paperwork.
Thus, the Court finds that the central requirement of “termination” or adverse action
because of disability has not been met. Even assuming there was evidence of an adverse action,
Plaintiff would fail to meet the McDonnell test because Defendant has provided evidence that the
delay in rehiring Plaintiff was simply cause by the chaos of the transition, a legitimate,
nondiscriminatory reason. Hicks, 509 U.S. at 507. Plaintiff has failed to set forth any evidence
that Defendant’s reasons were a pretext.
The same reasoning applies to Count IV and V where Plaintiff alleged that Defendant’s
actions were guided by retaliatory motive and that he was not rehired because of his disability.
Again, Plaintiff shows no evidence of adverse action. A separate analysis on these counts would
be redundant.
The Court finds that this Count should be dismissed, along with Count IV and V, for the
same reasons.
In conclusion, Plaintiffs Motion for Partial Summary Judgment is granted in part,
specifically to the successor-in-interest argument, and denied in part. Defendant’s Motion for
Summary Judgment is denied in part, as to Claim I (interference for failure to timely reinstate) and
granted as to Claim I (orientation), II, III, IV, V.
ORDER
THIS MATTER having been opened to the Court by Defendant’s motion for summary
judgment (ECF No. 45) and Plaintiffs motion for partial summary judgment (ECF No. 49); and
the Court having fully considered the submissions in support thereof, and any opposition thereto;
and having considered the arguments of counsel; and for good cause shown;
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IT IS on this
A1
•
2r day of May, 2018,
ORDERED that Defendant’s motion for summary judgment (ECF No. 45) is granted in
part and denied in part; and it is further,
ORDERED that Plaintiffs motion for partial summary judgment (ECF No. 49) is granted
in part and denied in part; and it is further;
ORDERED that Count 1 is dismissed as to orientation; and it is further
ORDERED that Counts II, III, IV and V are dismissed in their entirety.
(
PETER ci SHERIDAN, U.S.D.J.
22
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