STEPHANIE CLUNEY et al. v. MON-OC FEDERAL CREDIT UNION, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4472-04T54472-04T5

STEPHANIE CLUNEY and

DARRELL MARKOWSKI,

Plaintiffs-Appellants,

v.

MON-OC FEDERAL CREDIT UNION and

LORRAINE LYNCH, both individually

and in her corporate capacity,

Defendants-Respondents.

 

Argued: March 27, 2006 - Decided:

Before Judges Fall, C.S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket Number OCN-L-479-03.

Kevin E. Barber argued the cause for appellants (Niedweske Barber, attorneys; Mr. Barber, of counsel, and Christopher W. Hager, on the brief).

James L.A. Pantages argued the cause for respondents (Stein, McGuire, Pantages & Gigl, attorneys; Mr. Pantages and Janet S. Bayer, of counsel and on the brief).

PER CURIAM

In this wrongful discharge action alleging violations of the federal Family and Medical Leave Act (FMLA), 29 U.S.C.A. 2601 to 2654, the New Jersey Family Leave Act (NJFLA), N.J.S.A. 34:11B-1 to -16, the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, New Jersey wage laws, and violations of public policy, plaintiffs Stephanie Cluney and Darrell Markowski appeal from an order entered on April 11, 2005, dismissing their claims against defendants Mon-Oc Federal Credit Union and Lorraine Lynch, Mon-Oc's Human Resources Manager. The following factual and procedural history is relevant to our consideration of the arguments advanced on appeal.

Plaintiff Cluney began working for Mon-Oc as a personal computer support technician on December 29, 2000. Timothy Doran was Mon-Oc's Systems Manager and Cluney's supervisor. He appraised her performance in June 2001 as over-all above meeting standards, but half way between meeting standards and needing improvement in attendance and dependability. Ken Sherman, Cluney's co-worker, complained that she was often absent, late for work or gone early, which required him to work longer hours.

In or about the fall of 2001, Cluney informed Lynch that she was pregnant, and Lynch advised her that pursuant to the State Temporary Disability Benefits Law, N.J.S.A. 43:21-25 to -42, she was entitled to six weeks of state temporary disability for a vaginal birth or eight weeks for a Caesarian birth and, if she was eligible, followed by FMLA leave.

Mon-Oc's "Employee Handbook" described FMLA leave and stated: "Employees are eligible if they have worked for a covered employer for a total of at least 12 months; and have worked at least 1250 hours over the previous 12 months . . . " The Handbook also explained temporary disability leave, and stated that an employee could be eligible for both concurrently. The Handbook also promised that employees returning to work by the expiration of their three-month FMLA leave would be reinstated to the same or an equivalent position.

Cluney was out of work from November 2, 2001, to December 27, 2001, due to bleeding during her pregnancy. She was also unable to work as of May 9, 2002, also due to pre-term bleeding. On June 29, 2002, through a vaginal delivery, Cluney gave birth to her daughter Madyson. Plaintiff Darrell Markowski is Madyson's father, and he and Cluney had cohabited prior to and after Madyson's birth; they subsequently married. Cluney and Madyson were released from the hospital after a two-day stay. Cluney's physician estimated that she would be able to return to work on August 6 or August 10, 2002. According to her physician, Cluney remained disabled through October 18, 2002, and received state disability benefits, apparently through October 13, 2002.

Doran evaluated Cluney's performance in June 2002, although she was out on leave at that time. This evaluation was similar to her first one, except Doran stated that she needed improvement in attendance and reliability.

On August 6, 2002, Madyson was having gaps in and difficulty with her breathing, and plaintiffs took her to the hospital. Madyson had a "life threatening event" from reflux, was admitted for four days; she was then released with medication and an apnea monitor.

According to an e-mail from Ken Sherman to Tim Doran and Doran's supervisor, Dawn Sontag, Vice-President of Branch Operations, Cluney had called on August 9, 2002, and stated that she could not return to work at the end of August because of Madyson's health problems.

In her deposition, Cluney stated that she had called Lynch in August and explained her situation. Lynch testified in depositions that she was aware that Cluney's baby had a serious medical condition from Sherman's e-mail, but did not follow up on it, because this "was just one more odd thing happening to Stephanie." Pamela Clark, Mon-Oc's Vice President of Accounting and Human Resources, believed that Cluney was a hypochondriac and was imitating another employee whose baby had a monitor.

Lynch sent Cluney a form, which she completed on August 6, 2002, requesting family or medical leave from August 12 to September 16, due to the birth of her child. On August 14, Lynch, without calculating Cluney's work hours but assuming that they were sufficient to meet the eligibility requirement, approved Cluney's requested leave "to be counted against your annual FMLA leave entitlement."

However, Cluney had actually worked only 970.25 hours from August 10, 2001, to August 10, 2002. Lynch testified in her deposition that she used the time period from August 2001 to August 2002, not October to October, to determine Cluney's eligibility for protected leave, despite evidence that defendants calculated her hours of work from October 2001 to October 2002, when her state temporary disability ended. However, Cluney did not have the required work hours on either date, but defendants admitted that she did have, for the period of May 9, 2001 to May 9, 2002, 1468.5 work hours.

On September 16, 2002, when Cluney called to extend her leave, and again on October 1, Lynch informed Cluney that she had made a mistake in approving plaintiff's FMLA leave, because Cluney had not worked "the required number of hours in the past 12 months." At that time, Lynch explained to Cluney that she did not have "the guarantee" of job protection, but that "we weren't out looking to replace her."

According to Cluney, toward the end of August or early September 2002, Lynch began to threaten to terminate her.

Cluney also asked Lynch whether defendants were treating her the same as other employees who needed maternity leave, and Lynch responded that "it was none of my business how they calculated other employees." Lynch claimed that she used "the same methodology" to calculate eligibility for all Mon-Oc employees. In an e-mail memo of October 15, 2002, Cluney told Lynch and Doran that she had a release note from her family doctor to return to work on October 21, 2002. Cluney acknowledged that Lynch advised her that she was not eligible for leave under either the FMLA of the NJFLA, but asked to return to work on November 4, 2002.

In a letter to Cluney dated October 16, 2002, Lynch replied:

We are in receipt of your email which was sent to our office requesting additional time-off from the date of your anticipated disability release of October 21, 2002 until November 4, 2002.

Mon-Oc Federal Credit Union agrees to allow you to return to work on Monday, November 4, 2002. We wish to advise you, however, that your repeated absences from the Credit Union have created a hardship on the Credit Union and its operations. You are, therefore, advised that the Credit Union can no longer leave your position vacant due to business necessity.

If you fail to appear on November 4, 2002 or in the event of repeated absences in the future, which will no longer be tolerated, you will be terminated from your position.

Cluney did not return to work on November 4 because she had the flu; she saw her doctor, obtained a doctor's note, and called, asking Lynch for "a sick day that I had accumulated." In her deposition testimony, Cluney recalled that an administrative assistant had advised her that she had accumulated sick leave as of November 2002. According to Cluney, Lynch responded that she was terminated because of "excessive absenteeism."

According to Lynch, Cluney did not talk to either her or Doran on November 4; rather, Cluney called and left a message for Lynch, but Lynch did not return her call. A note apparently made on November 4, 2002, from Sherman to Doran related that Cluney had called at 8:00 a.m. to say that she was sick and would not be in.

In an e-mail at the end of the day on November 4, Lynch told Doran that Cluney had "left a message that she would try to come in tomorrow." In that e-mail, Lynch informed Doran that she had talked to Mon-Oc's attorney, who had asked: "Would you fire anyone else who didn't return from a leave because they were sick for one day?" On the next morning, November 5, 2002, Doran responded to Lynch's e-mail and stated: "Yes, I would fire anyone who did this, who has Stephanie's record." Doran told Lynch that Cluney's attendance problem was "becoming a hardship for the credit union" and concluded: "We are not terminating her for this single incident, but for her over-all attendance record and her lack of dependability, of which this is only the most startling demonstration."

In his deposition Doran confirmed that Cluney's absence was becoming a hardship because for nearly five months he was working with only Sherman and a new employee "who wasn't up to speed." However, Jane Wittman-Roll, Vice-President of Marketing and Branch Administration of Mon-Oc, admitted in her deposition that it was over a year after plaintiff's termination before a replacement was hired.

According to Lynch, Cluney called on November 5 and said that she was feeling better but needed another seven to ten days to take care of Madyson. Lynch was upset and did not allow her to explain the problem. Cluney denied saying that Madyson was sick on November 5.

Doran, together with Lynch and Sontag, made the decision to terminate Cluney. Doran was not familiar with the FMLA and was not involved in approving Cluney's leave.

Contrary to his November 5, 2002 e-mail to Lynch, Doran testified in a deposition that he terminated Cluney not "because of her overall record," but "for not returning to work when required to," or the following day, and not documenting good cause for her absence. According to Doran, Cluney failed to communicate to him her reason for being absent.

Doran admitted that he did not give Cluney an opportunity to present a doctor's note for her November 4 absence, because she "was expected back in work," but he also asserted that he had given her "plenty of chances" to demonstrate good cause for her November 4 absence.

Doran discussed Cluney's excessive absences when he evaluated her performance, but did not discipline her beyond a verbal warning. Doran considered Lynch's October 16, 2002 letter to Cluney a written warning, but Lynch said that Cluney had never received a written warning for excessive absenteeism.

On November 5, 2002, Lynch wrote to Cluney terminating her employment, explaining that "your repeated absences and your inability to appear on November 4th and again on November 5th have created a hardship on the organization." In her deposition, Lynch explained that she and Doran were frustrated and felt that Cluney was taking advantage of Mon-Oc's generosity.

Maria Cainzos, another Mon-Oc employee, was given maternity leave consisting of disability beginning on May 1, 2002, and then consecutive family leave from September 17, 2002, to December 10, 2002. Defendants initially asserted that Cainzos's family leave was under the FMLA, but later stated that it was under the NJFLA. Cainzos had worked 874.5 base hours from September 17, 2001 to September 17, 2002.

Plaintiff Darrell Markowski, Madyson's father, testified in a deposition that he and Cluney married in June 2003. As we have noted, he had lived with Cluney both before and after Madyson's birth, and recalled that Cluney had been worried and anxious about her threatened termination. Markowski stated that Cluney had become lethargic and distant, and stopped doing as much cleaning and cooking as she had done before, requiring Markowski to "pick up the slack."

On July 2, 2004, plaintiffs filed an amended complaint against defendants alleging that they had denied Cluney a leave of absence in violation of the FMLA (count one) and the NJFLA (count two); discriminated against Cluney on the basis of her parental status, contrary to the LAD (count three); owed Cluney payment for her accrued but unused vacation, sick and personal time (count four); negligently and intentionally inflicted emotional distress upon Cluney (count five); and had wrongfully discharged her contrary to public policy (count seven). In count six of the amended complaint, Markowski asserted a claim for loss of consortium.

Following extensive discovery, defendants moved for summary judgment, and plaintiffs moved for partial summary judgment. The motions were argued in the Law Division before Judge Edward M. Oles on March 18, 2005. The judge reserved decision, and then issued a letter opinion dated March 23, 2005, granting partial summary judgment to defendant, dismissing all counts in the amended complaint except count four Cluney's claim that she had not been compensated for all accrued and unused vacation, sick or personal time. The judge also denied plaintiffs' motion for partial summary judgment. In granting summary judgment, the judge stated, in pertinent part:

Much has been submitted to the Court as to the determination of the eligibility of the Plaintiff for the family leave, either under the Federal Statute or the New Jersey Statute. This issue is irrelevant. The Plaintiff received from the period of May 9, 2002 through November 4, 2002, 25 weeks of leave. Thus, as a matter of law, the Plaintiff has suffered no damages in relationship to whether the Defendant was correct in designating her leave under the Federal Family Leave Act of the New Jersey Family Leave Act, or the general policy of the Defendant company.

* * * *

The Third Count of the Complaint alleges that the Plaintiff was discharged as a result of her exercising her right to family leave either under the Federal Statute or the New Jersey Statute and, thus, constitutes an act of discrimination in violation of the New Jersey Law Against Discrimination which is codified in N.J.S.A. 10:5-1 et seq.

In the Brief filed by the Plaintiff in response to the Motion for Summary Judgment, Plaintiff now takes the position that although the pleadings allege parental status, they are, in fact, intending the Plaintiff to fall under the provisions of marital status as found in N.J.S.A. 10:5-12(a). Plaintiff's claim essentially is that she was discharged because she was unmarried when she gave birth to her daughter.

Our Courts have held that an employment or discharge policy based in significant part on marital status is a violation of N.J.S.A. 10:5-12(a). Slohoda v. United Parcel Services, Inc., 193 N.J. Super. 586 (App. Div. 1984)[, certif. denied, 97 N.J. 606 (1984)]. It is incumbent upon the Plaintiff to establish prima facie elements of the claim. Viscik v. Flowler Equip. Co., Inc., 173 N.J. 1 (2002). Thus, the Plaintiff must establish that she is a member of a protected class, that she was performing her job at a level that met Defendant's legitimate expectations, that she was discharged and her termination was under circumstances that would rise to an inference of discrimination.

It is the fourth element of the prima facie case that is relevant to this particular Motion. The Plaintiff, in essence, suggests that the facts that give rise to this particular inference of discrimination consist of the Defendant, Lorraine Lynch, making inquiry of the Plaintiff as to the status of child care when she was to return to work, as well as what Plaintiff describes as a harassing sequence of calls and correspondence from the Defendant Lynch regarding the Plaintiff's return to work status. Plaintiff suggests that these two events are incidents indicating preoccupation by the Defendant with her leave of absence and somehow the fact that she was not married at the time of her termination.

An inquiry by an employer about the status of daycare in the general context of employee-employer relationships is appropriate. This inquiry addresses the legitimate concerns that an employer has with respect to an employee's capabilities of attending to work and to attend to the tasks at hand without the distraction concerning the status of care of the child. It does not equate to a discriminatory question. The Plaintiff has suggested that there exists a sequence of telephone calls and correspondence from the defendant Lynch which constitutes harassment. The record that was presented to the Court consists of only one contact by Ms. Lynch to the Plaintiff and other than the November letter indicating the Plaintiff's termination, no other correspondence has been presented to the Court.

I find, as a matter of law, that the Plaintiff has failed to establish a prima facie case of discrimination based upon the marital status of the Plaintiff and, therefore, the Third Count of the Complaint is dismissed.

* * * *

Plaintiff alleges that her emotional distress is not the result of her being discharged but rather during the course of either her temporary disability or her leave, the Defendant made inquiry of her intended return date to work and threatening to terminate her employment if she did not return to work. Defendant's Motion for Summary Judgment is granted for two reasons. First, Plaintiff has not responded to this particular part of the defendant's Motion and the Court will consider it as being unopposed.

Secondly, the acts that the Plaintiff alleges constitute outrageous behavior . . . fall short of what is required by the law. In Buckley v. Trenton Sav. Fund Soc'y, 111 N.J. 355 (1988), the Court held that the conduct of the Defendant must be so outrageous in character and extreme in degree as to go beyond all bounds of decency. As previously noted in this Opinion, the Defendant's inquiry as to the date that Plaintiff would return to work is appropriate and a legitimate inquiry by an employer. The Plaintiff has failed to present any facts that would meet the criteria necessary for the imposition of liability for either intentional emotional distress or negligent emotional distress.

* * * *

Count Six of the Complaint is dismissed. It is a basic principle of law in our State that the per quod claim is a derivative claim of a spouse. Since the original Complaint has been dismissed pursuant to this Opinion, there is no derivative action. Furthermore, it is necessary for the parties to have been married in order to have a claim.

* * * *

Count Seven of the Complaint alleges that because the Family Leave Act establishes a mandate of public policy for employees to obtain family leave, a discharge of an employee for taking the family leave constitutes the public policy of our State and, therefore, permits Plaintiff to seek relief. While it is true that Federal and State Acts have established a public policy, since the Court has previously determined that there is no cause of action under the Act, therefore, Count Seven of the Complaint is dismissed, with prejudice.

On April 11, 2005, the court entered an order memorializing its decision granting summary judgment to defendants, dismissing all counts with the exception of count four. That order also memorialized the consent of the parties to dismissal of count four.

On appeal, plaintiffs present the following arguments for our consideration:

POINT ONE

THE MOTION JUDGE COMMITTED REVERSIBLE ERROR BY MISAPPLYING RULE 4:46-2 AND GRANTING RESPONDENTS SUMMARY JUDGMENT.

POINT TWO

THE SUMMARY JUDGMENT DISMISSAL OF APPELLANTS' FMLA CASE WAS ERRONEOUS AND SHOULD BE REVERSED.

POINT THREE

THE SUMMARY JUDGMENT DISMISSAL OF APPELLANT CLUNEY'S NEW JERSEY FAMILY LEAVE ACT CASE WAS ALSO ERRONEOUS AND SHOULD BE REVERSED.

POINT FOUR

APPELLANT MARKOWSKI'S PER QUOD CLAIM PRESENTS A QUESTION OF FIRST IMPRESSION THAT SHOULD NOT HAVE BEEN DISMISSED BY SUMMARY JUDGMENT.

POINT FIVE

APPELLANTS' CLAIM FOR WRONGFUL DISCHARGE IN VIOLATION OF PUBLIC POLICY WAS ALSO ERRONEOUSLY DISMISSED BY SUMMARY JUDGMENT.

I.

Plaintiffs contend the motion judge erred in ruling that Cluney's eligibility for leave under either the FMLA or the NJFLA was irrelevant because she received twenty-five weeks of leave. Plaintiffs assert that material fact issues include whether Cluney was entitled to a total of thirty weeks of leave, and whether defendants incorrectly determined that she was not eligible for FMLA leave.

According to defendants, Cluney was eligible for but failed to request FMLA leave as of both May 9, 2002, when her disability commenced, and June 29, 2002, when her child was born. They note that, instead, Cluney opted for paid, State disability benefits. Defendants reason that Cluney suffered no damages from defendants' failure to designate her leave as FMLA, because she received more than twelve weeks of leave from both of these dates. Defendants further argue that Cluney did not qualify for either FMLA or NJFLA leave when she requested them on August 12, 2002, but, notwithstanding, received leave and therefore suffered no damages.

Summary judgment is appropriate if "there is no genuine issue as to any material fact challenged and . . . the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995).

The purpose of entitling employees to family or medical leave under the FMLA is to balance workplace demands with family needs, while accommodating employers' legitimate interests, minimizing the potential for sex discrimination and promoting equal employment opportunity. 29 U.S.C.A. 2601.

An eligible employee under the FMLA is one "who has been employed -- (i) for at least 12 months by the employer . . . and (ii) for at least 1,250 hours of service with such employer during the previous 12-month period." 29 U.S.C.A. 2611(2). The 1,250 hours include only "actual hours worked." 29 C.F.R.

825.110(c) (2005).

An eligible employee is "entitled to a total of 12 workweeks of leave during any 12-month period" because of the birth and care of a baby, the care of a child with a serious health condition, or the employee's own serious health condition. 29 U.S.C.A. 2612(a). An eligible employee who takes leave is entitled to health benefits during the leave, 29 U.S.C.A. 2614(c)(1), and restoration to his or her prior position or its equivalent. 29 U.S.C.A. 2614(a)(1).

The employee must notify the employer of the need to take FMLA leave at least thirty days in advance or "as soon as practicable." 29 C.F.R. 825.302(a) (2005). "The employee need not expressly assert rights under the FMLA or even mention the FMLA," 29 C.F.R. 302(c) (2005), but must "state a qualifying reason for the needed leave." 29 C.F.R. 825.208(a)(2) (2005). "In all circumstances, it is the employer's responsibility to designate leave . . . as FMLA-qualifying, and to give notice of the designation to the employee . . . ." 29 C.F.R. 825.208(a) (2005).

The employer may not "interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this title," 29 U.S.C.A. 2615(a)(1).

The FMLA shall not be construed to discourage employers from providing more generous leave. 29 U.S.C.A. 2653. The FMLA does not supersede any state law that "provides greater family or medical leave rights." 29 U.S.C.A. 2651(b).

Plaintiffs' contentions that defendants did not use "any established method" to calculate Cluney's work hours to determine her eligibility for FMLA leave, and that the propriety of the method used was a genuine issue of material fact, are without merit. Cluney was not entitled to calculate her "1250 hours of service with such employer during the previous 12-month period," 29 U.S.C.A. 2611(2)(ii), from a date earlier than the date on which her FMLA leave would have commenced. The twelve-month period during which an employee must have worked 1,250 hours must end on the date that the FMLA leave begins, not an earlier date on which another type of leave begins.

Plaintiffs assert that there are four possible methods of establishing the twelve-month period:

An employer is permitted to choose any one of the following methods for determining the "12-month period" in which the 12 weeks of leave entitlement occurs:

(1) The calendar year;

(2) Any fixed 12-month "leave year," such as a fiscal year, a year required by State law, or a year starting on an employee's "anniversary" date;

(3) The 12-month period measured forward from the date any employee's first FMLA leave begins; or,

(4) A "rolling" 12-month period measured backward from the date an employee uses any FMLA leave . . . .

[29 C.F.R. 825.200(b) (2005).]

Plaintiffs contend that, pursuant to 29 C.F.R. 825.200(e) (2005), Cluney was entitled to select "the option that provides the most beneficial outcome" for her, because defendants failed to select one of these options. Not so.

These four methods of calculation are not for calculating the twelve-month period during which the employee must have worked 1,250 hours to be eligible for FMLA. They are relevant only to determining the twelve-month period in which the employee may take twelve weeks of FMLA leave. As the regulation states, the twelve-month period is the period "in which the 12 weeks of leave entitlement occurs." 20 C.F.R. 825.200(b) (2005).

The twelve-month period in which the employee must have worked 1,250 hours ends when the leave begins. Therefore, "[t]he determinations of whether an employee has worked for the employer for at least 1,250 hours in the past 12 months and has been employed by the employer for a total of at least 12 months must be made as of the date leave commences." 29 C.F.R. 825.110(d) (2005).

In Butler v. Owens-Brockway Plastic Prods., Inc., 199 F.3d 314, 316 (6th Cir. 1999), the court held that "the required 1250 hours of service must be computed from the date of the commencement of the leave rather than the date of the adverse action in violation of the [FMLA]," citing to 29 C.F.R. 825.110(d) (2005). See also William D. Goren, Annotation, Who Is Eligible Employee Under 101(2) of Family and Medical Leave Act (29 U.S.C.A. 2611(2)), 7(a), "Point in time at which calculation starts," 166 A.L.R. Fed. 569, 586-88 (2000) (collecting cases holding that the calculation of the required 1,250 hours starts at the time that the leave begins, rather than the time of the adverse employment action).

Even if plaintiffs had the option of utilizing another of the methods of calculation set forth in 29 C.F.R. 825.200(b) (2005), none of them supports plaintiffs' theory that Cluney was entitled to use the May 9, 2002 date when she began her State temporary disability leave as the end date of the twelve-month period during which she had to work 1,250 hours. Plaintiffs do not assert that Cluney worked 1,250 hours in a calendar year or any other type of leave year. If the operative 12-month period was "measured forward from the date any employee's first FMLA leave begins," 29 C.F.R. 825.200(b)(3) (2005), it would be impossible to determine eligibility at the time that the leave begins, because at that time it would be unknown as to how many hours the employee will work in the following year.

However, plaintiffs object to defendants' "focus on August 12, 2002 as a 'triggering event,'" stating that the only "significance of this date is its correlation to the onset of [plaintiffs'] daughter's serious health condition," and it did not "alter" or "trigger" Cluney's eligibility for leave. We disagree. August 12, 2002, was clearly the proper "trigger" date for determining Cluney's eligibility for FMLA leave because she requested FMLA leave to begin on that date.

Plaintiffs contend that Cluney's leave should have been designated as FMLA leave beginning June 20, 2002, six weeks after her "paid leave under Mon-Oc's established policy and practice available to all maternity employees for the birth of a child." However, the record on appeal does not disclose whether Cluney worked the required 1,250 hours in the twelve months ending June 20, 2002.

Nevertheless, if June 20, 2002, had been the designated date for the beginning of the FMLA leave, Cluney received the entire twelve weeks to which she would have been entitled.

Plaintiffs further argue that Cluney was entitled to a total of thirty weeks of leave, six weeks under defendants' policy, followed by twelve weeks under the FMLA, and another consecutive twelve weeks under the NJFLA. We disagree. Plaintiffs have submitted no evidence establishing that it was Mon-Oc's policy to provide these three consecutive leave periods to an employee who did not qualify for each type of leave at the time that it commenced. To the contrary, the Mon-Oc Handbook in the record states that employees were eligible for FMLA if they "have worked at least 1250 hours over the previous 12 months," and that employees could be eligible for FMLA leave "[c]oncurrently" with temporary disability.

Cluney testified in her deposition that Lynch had informed her that she was entitled to FMLA leave after her six weeks of disability only if she was eligible. Plaintiffs contend that Lynch had "misinformed" Cluney of her FMLA rights by advising that she had to be eligible for FMLA leave. However, Lynch did not misinform Cluney. Lynch was correct that only eligible employees are entitled to leave under the FMLA. See 29 U.S.C.A. 2612(a).

Plaintiffs also allege that defendants discriminated against Cluney by granting another employee, Cainzos, a more generous maternity leave. Cainzos enjoyed twenty weeks of disability, followed by twelve weeks of family leave, even though she did not have the required number of hours for either FMLA or NJFLA leave on the day that it began.

However, defendants' treatment of this one other employee is insufficient to raise a genuine fact issue regarding Mon-Oc's policy. Plaintiffs claim that defendants' policy was to allow thirty weeks of maternity leave, the total of six weeks of disability, twelve weeks under the FMLA, and twelve weeks under the NJFLA. However, Cainzos was allowed thirty-two weeks, including twenty weeks of disability and twelve weeks of FMLA or NJFLA leave. In addition, the circumstances of Cainzos' leave, including whether Mon-Oc maintained her health insurance, are not in the record. We note that the Handbook describes an extended leave without pay for good cause, available to full-time employees with at least two years of service.

Regarding plaintiffs' claim of discrimination, based on Cainzos's more favorable treatment, neither the FMLA nor the NJFLA require equal treatment of all employees; they require only a minimal amount of leave for qualified employees. The FMLA shall not be construed to discourage employers from providing more generous leave. 29 U.S.C.A. 2653.

In view of the Handbook's statement of the eligibility requirements for FMLA leave and defendants' consistent advice to Cluney that she needed to qualify, a rational factfinder could not conclude that Mon-Oc had a policy of allowing ineligible employees to take statutory family leave. Therefore, entry of summary judgment was appropriate. See Brill, supra, 142 N.J. at 540.

We also find no merit in plaintiffs' contention that defendants failed to notify Cluney of the method that they used for calculating her eligibility. Plaintiffs note that the Handbook was silent on how eligibility was calculated, but the Handbook did explain that employees were eligible for FMLA leave "if they have worked for a covered employer for a total of at least 12 months; and have worked at least 1250 hours over the previous 12 months." Cluney did not testify that Lynch told her that it was none of her business how eligibility was calculated; Cluney testified that Lynch told her that it was none of her business how other employees were treated.

Plaintiffs assert that defendants interfered with Cluney's rights under the FMLA by failing to advise her of her rights. Plaintiffs cite to Conoshenti v. PSE&G Co., 364 F.3d 135, 142-46 (3d Cir. 2004), in which the court recognized a cause of action under the FMLA for failure to notify the plaintiff-employee of his or her rights. The court concluded that summary judgment in favor of the employer was improper because there was evidence that the plaintiff might have postponed surgery in order to return to work before the expiration of his twelve-week FMLA leave, if he had been aware of his rights. Id. at 145-56.

Similarly, in Nusbaum v. CB Richard Ellis, Inc., 171 F. Supp. 2d 377, 379-80 (D.N.J. 2001), the employer failed to respond to the plaintiff's requests for information about leave that she needed for surgery.

Here, however, defendants did notify Cluney of her rights under the FMLA. Pursuant to 29 C.F.R. 825.301(a)(1) (2005), an employee handbook is an acceptable means of notification; if there is a handbook, it must include "information concerning FMLA entitlements and employee obligations." Mon-Oc's Handbook provided a detailed explanation of FMLA leave. In addition, Cluney admitted that Lynch told her about FMLA leave when Cluney informed Lynch that she was pregnant.

Plaintiffs argue that defendants failed to comply with 29 C.F.R. 825.301(b)(1), which requires that employers "provide the employee with written notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure to meet these obligations." However, although Cluney was not eligible for FMLA leave, defendants complied with this requirement.

Plaintiffs also contend that defendants interfered with Cluney's rights under the FMLA by approving her leave as FMLA leave in August 2002, and then rescinding their approval, in violation of 29 C.F.R. 825.110(d) and 825.208(a) (2005). Under 825.110(d), "[i]f the employer confirms eligibility at the time the notice for leave is received, the employer may not subsequently challenge the employee's eligibility." Under 208(a), "it is the employer's responsibility to designate leave . . . as FMLA-qualifying, and to give notice of the designation to the employee."

Plaintiffs therefore argue that defendants' rescission of their August 2002 approval of Cluney's FMLA leave was invalid under 825.110(d). Plaintiffs cite Viereck v. City of Gloucester City, 961 F. Supp. 703, 706 (D.N.J. 1997), in which the defendant-employer failed to designate the plaintiff's leave as FMLA leave in a timely manner, and the parties disagreed over "the time from which plaintiff's twelve-week period should run." Here, however, the dispute is whether Cluney was eligible for FMLA leave, not the time from which it should run.

Defendants argue that 825.110(d), prohibiting the rescission of an eligibility determination, is invalid, citing several Federal Circuit Courts of Appeals and District Courts that have reached that result. See Nikolas D. Johnson, Erroneously Conferred Eligibility Under the Family and Medical Leave Act, 26 N.C. Cent. L.J. 88 (Spring 2004) (arguing that employers should be allowed to revoke incorrect designations).

Plaintiffs changed their position in their reply brief, declining to defend the regulation, and arguing instead that "Cluney's undisputed eligibility for FMLA protection has nothing to do with respondents' rescission of the approved leave." In addition, it is unnecessary to address the validity of the regulation, because plaintiffs have failed to show that Cluney was prejudiced by defendants' rescission of their August 2002 approval of Cluney's FMLA leave.

Contrary to plaintiffs' argument, an employee claiming a violation of the FMLA must show prejudice to obtain damages. In Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 96, 122 S. Ct. 1155, 1165, 152 L. Ed. 2d 167, 181 (2002), the Court invalidated 29 C.F.R. 825.700(a), which required employers to designate leave as FMLA leave and provided that if they did not, "the leave taken does not count against an employee's FMLA entitlement."

In Ragsdale, supra, the Court held that 29 C.F.R. 825.700(a) improperly extended the twelve weeks of leave that the Act provided, rejecting the regulation's establishment of "an irrebuttable presumption that the employee's exercise of FMLA rights was impaired--and that the employee deserves 12 more weeks." 535 U.S. at 91, 122 S. Ct. at 1162, 152 L. Ed. 2d at 78. The Court explained that "[t]he challenged regulation is invalid because it alters the FMLA's cause of action in a fundamental way: It relieves employees of the burden of proving any real impairment of their rights and resulting prejudice." Ibid.

In Conoshenti, supra, 364 F.3d at 143-44, the court acknowledged that a plaintiff must show prejudice to recover damages under the FMLA. Here, as the motion judge determined, Cluney has shown no prejudice resulting from the rescission of the August 2002 determination that she was eligible for FMLA leave. She requested that her leave begin on August 12, 2002. Twelve weeks from August 12 is November 4, 2002. Therefore, defendants allowed Cluney the leave that she requested for twelve weeks.

In Ragsdale, supra, the Court emphasized that the FMLA entitled an employee to "a total of 12 workweeks of leave during any 12-month period," 29 U.S.C.A. 2612(a)(1) and no more; "the 12-week figure was the result of compromise between groups with marked but divergent interests" and must be respected. 535 U.S. at 93, 122 S. Ct. at 1164, 152 L. Ed. 2d at 179. Cluney received her required twelve weeks' leave from August 12.

Plaintiffs have also failed to show any prejudice resulting from defendants' alleged failure to inform Cluney of her rights. Unlike the plaintiffs in Conoshenti, supra, 364 F.3d at 145, and Nusbaum, supra, 171 F. Supp. 2d at 386, Cluney has submitted no evidence establishing that she might have structured her leave differently if she had the necessary information.

Therefore, the motion judge correctly concluded that Cluney had received all of the leave to which she was entitled under the FMLA.

The NJFLA was enacted "to promote the stability and economic security of families by guaranteeing jobs to wage earners" upon their return to work after the birth of a child or a family member's serious health condition. N.J.S.A. 34:11B-2. The NJFLA is similar to the FMLA, but does not cover leave for an employee's own disability. N.J.S.A. 34:11B-3(i).

An employee is entitled to twelve weeks of family leave "in any 24-month period." N.J.S.A. 34:11B-4. The term "employee" is defined as "a person who is employed for at least 12 months . . . for not less than 1,000 base hours during the immediately preceding 12-month period." N.J.S.A. 34:11B-3(e). Like the FMLA, the NJFLA guarantees employees restoration of their jobs or equivalent positions upon their return from leave, N.J.S.A. 34:11B-7, as well as the maintenance of group health insurance coverage during their leaves. N.J.S.A. 34:11B-8(a).

The NJFLA provides: "An employer shall display conspicuous notice of its employees' rights and obligations pursuant to the provisions of this act, and use other appropriate means to keep its employees so informed." N.J.S.A. 34:11B-6.

Like a request for leave under the FMLA, under the NJFLA "[i]t is incumbent upon the employer to apprise the employee of his or her rights and to effectuate them once the employee requests a leave of absence for any of the reasons provided by the Act." D'Alia v. Allied-Signal Corp., 260 N.J. Super. 1, 10 (App. Div. 1992).

Also like the FMLA, under the NJFLA an employer may not "interfere with, restrain or deny the exercise of, or the attempt to exercise, the rights provided under this act," or "withhold the benefits provided for under this act." N.J.S.A. 34:11B-9(a).

Plaintiffs claim that defendants violated the NJFLA and interfered with Cluney's rights under it by failing to (1) allow her NJFLA leave, (2) advise her of her NJFLA rights, and (3) "permit her to use any accrued paid leave in addition to her NJFLA family leave."

Regarding notice of Cluney's rights under the NJFLA, the record contains no evidence establishing whether notice was or was not posted or otherwise provided, as required by N.J.S.A. 34:11B-6. The Handbook described the FMLA in detail, but did not mention the NJFLA. However, Cluney was not prejudiced by any lack of notice because, even if her leave had been designated as NJFLA when she was eligible, she would not have been entitled to more leave than defendants provided her.

Plaintiffs cite N.J.A.C. 13:14-6.1, "Relation with other laws." Subsection (a) of this regulation provides that, when an employee takes leave "for a purpose covered by both the FMLA and the Act [NJFLA], the leave simultaneously counts against the employee's entitlement under both laws."

N.J.A.C. 13:14-6.1(b) provides that leave covered by other laws, but not the NJFLA such as the employee's own disability, covered by the FMLA, but not the NJFLA runs consecutively to NJFLA leave taken for a different purpose. As an example, subsection (b) states that an employee who takes FMLA leave because of a disability related to pregnancy or childbirth is entitled to an additional twelve-week leave under the NJFLA "to care for a seriously ill family member or newly born or adopted child." When an employee gives birth while on FMLA leave, "the intervening birth . . . does not convert the FMLA leave to leave under the [NJFLA]." N.J.A.C. 13:14-1.6(b)(2).

A FMLA leave for Cluney's disability until October 18, 2002, followed by a NJFLA leave for child care seems plausible. However, N.J.A.C. 13:14-1.6 assumes eligibility for both FMLA and NJFLA leave; it does not create or establish eligibility. If Cluney had worked the required 1,000 hours and was thus eligible for twelve weeks of NJFLA leave beginning June 29, 2002, when she gave birth, she would not have been eligible for a subsequent, consecutive twelve weeks of FMLA leave, because she had not worked the required 1,250 hours at the starting time of the second twelve-week period. Despite her lack of eligibility, defendants allowed Cluney more than twenty-four weeks of leave.

Plaintiffs' contention that Cluney was entitled to commence NJFLA leave on September 12, 2002, "upon expiration of the FMLA leave," is incorrect. Cluney was not eligible for NJFLA leave on September 12, 2002, because she had not worked for 1,000 hours "during the immediately preceding 12-month period." N.J.S.A. 34:11B-3(e)

Plaintiffs also assert that defendants violated Cluney's NJFLA rights by not allowing her to use her accrued, paid leave in addition to NJFLA leave. Plaintiffs cite N.J.A.C. 13:14-1.7, which requires employers to "treat family leave in the same manner as similar leaves of absence" regarding accrued, paid leave. Thus, if the employer has a policy of

requiring its employees to exhaust all accrued paid leave during a leave of absence, the employer may require employees to do so during a family leave. If an employer has a policy of allowing employees to take unpaid leaves without first exhausting accrued paid leave, it shall not require employees to exhaust accrued paid leave as part of the family leave.

[N.J.A.C. 13:14-1.7.]

If the employer has no established policy, the employee has the option to use accrued, paid leave as part of the family leave. N.J.A.C. 13:14-1.7. "Where an employer maintains leaves of absence which provide different policies and/or practices regarding the use of accrued paid leave, the employer shall treat family leave in the same manner as that other leave of absence which most closely resembles family leave." N.J.A.C. 13:14-1.7.

Here, the Handbook requires employees requesting FMLA leave the leave most closely resembling NJFLA leave to "first utilize all available vacation and personal days," which "will be considered as part of the 12 week total FMLA leave." Employees have the option to similarly utilize their "available sick time" as part of their FMLA leave. However, defendants admitted that "Mon-Oc did not, according to its business policy and/or practice, require Stephanie Cluney to substitute any paid leave for unpaid FMLA leave."

Regardless of its policy, Mon-Oc afforded Cluney her maximum possible accrued, paid leave, in addition to a twelve-week NJFLA leave. If Cluney's leave was designated as NJFLA leave when she was apparently eligible for NJFLA leave at the end of June 2002, she had twelve weeks plus forty-three days of leave between July 1, 2002, and November 4, 2002.

Wittman-Roll testified in her deposition that, in accordance with the Handbook, plaintiff was entitled to use her 2002 annual sick leave (six days), vacation (ten days) and personal time (three days) as of the beginning of 2002, totaling nineteen days. A chart, which Clark prepared, credited Cluney with seven and one-half days carried over from 2001. Added to her nineteen 2002 days, plaintiff was entitled to twenty-six and one-half days. She received forty-three days in addition to her twelve-week leave, if it had begun on July 1.

The Handbook actually provides that employees do not earn vacation, sick leave, or personal days while on unpaid leave, and Clark's chart reduced Cluney's earned days to account for her leave periods. In addition, Lynch and Clark testified that Cluney owed three sick days. The judge determined that there was "a genuine dispute as to the calculation of the sick days, vacation days and personal days," but, opposing defendants' motion for summary judgment, plaintiffs are entitled to a view of the evidence most favorable to them. Brill, supra, 142 N.J. at 540.

We thus conclude that the motion judge was correct that Cluney had received all of the leave under the NJFLA to which she was entitled.

II.

Plaintiffs argue that the judge erred in failing to determine that defendants had discriminated against Cluney or interfered with her rights under the FMLA by "discharging her based on FMLA protected leave." Plaintiffs also contend that Cluney's termination violated or interfered with her rights under the NJFLA. Plaintiffs assert that the reason for Cluney's termination excessive absences or failure to return to work after her leave expired was a genuine issue of material fact, precluding summary judgment. Significantly, plaintiffs do not claim that defendants retaliated against her for exercising her rights under the FMLA or the NJFLA.

Defendants counter that because Cluney "never actually received FMLA or NJFLA leave in August 2002, she cannot claim protection of the acts." They also assert that they terminated Cluney not because she exercised her statutory rights, but because she failed to return to work after her leave expired.

Plaintiffs respond that defendants changed their position on appeal and should be estopped from doing so, because defendants initially argued that they had terminated Cluney for failing to return to work after her leave ended, but on appeal contend that they terminated her for "excessive absenteeism highlighted by her failure to return to work after her leave ended." However, defendants later state in their brief that they terminated Cluney "for failing to return to work after her leave ended." We conclude that the two reasons are not substantially different, and plaintiffs do not contest that Mon-Oc would have continued Cluney's employment had she returned to work on November 4, 2002, when she was expected back.

The FMLA, in addition to prohibiting interference with or denial of rights provided under the Act, 29 U.S.C.A. 2615(a)(1), also prohibits the discharge of or discrimination against "any individual for opposing any practice made unlawful by this title." 29 U.S.C.A. 2615(a)(2). Under 29 C.F.R. 825.220(c) (2005), an employer may not discriminate against employees "who have used FMLA leave."

However, neither the FMLA nor the NJFLA protected Cluney when she was terminated on November 4 or 5, 2002, because she was not on either type of leave at that time. Contrary to plaintiffs' argument, the precise reason for Cluney's termination was thus not material.

In Conoshenti, supra, 364 F.3d at 148, the court held that an employee who "exceeded his twelve weeks of protected leave" was subject to dismissal, under a union-negotiated "Last Chance Agreement" requiring perfect attendance, "on the very first workday that he was both absent from work and no longer protected by the FMLA."

In Bachelder v. America West Airlines, Inc., 259 F.3d 1112, 1125 (9th Cir. 2001), the court explained that an employee terminated for absences that were not protected by the FMLA had no cause of action under the FMLA. Here, because Cluney was terminated for an absence that was not protected by either the FMLA or the NJFLA, she has no cause of action for discrimination or interference with her rights under either statute. Accordingly, we conclude that the motion judge did not err in failing to determine that Cluney's discharge constituted discrimination or an interference with her rights under the FMLA or the NJFLA.

III.

Plaintiffs further argue that the judge erred in dismissing Markowski's per quod claim. Plaintiffs argue that Markowski is entitled to damages for loss of consortium even though he was not married to Cluney at the time of her discharge.

Plaintiffs concede that damages for emotional distress are not available under the FMLA, but assert that they are available under N.J.S.A. 34:11B-11, which allows the remedies set forth in N.J.S.A. 10:5-17. Pursuant to N.J.S.A. 10:5-17, "a prevailing complainant may recover damages to compensate for emotional distress." Plaintiffs contend that damages for loss of consortium are different from and not dependent on damages for emotional distress.

The motion judge dismissed Markowski's per quod claim, concluding that it is a derivative claim of a spouse, and, since the complaint has been dismissed pursuant to his opinion, there could be no derivative action. Furthermore, the judge found that it is necessary for the parties to have been married in order to have a per quod claim.

Plaintiffs cite Kibble v. Weeks Dredging & Constr. Co., 161 N.J. 178, 190 (1999), in support of their contention that per quod damages are not dependent on the partner's claim. There, the Court held that a worker who entered into a workers' compensation settlement could not waive the future right of his spouse to pursue a dependency claim upon the worker's death, which was separately authorized by the Workers' Compensation Act, N.J.S.A. 34:15-13. The Court acknowledged that "a per quod claim is derivative of the injured spouse's personal injury cause of action," and said that it is also different because the damages are different. Id. at 190 (quoting Tichenor v. Santillo, 218 N.J. Super. 165, 173 (App. Div. 1987)).

In Tichenor, we held that a per quod claim should be reduced by the percentage of negligence of the injured spouse, explaining that "[a] per quod claim is only maintainable by reason of a spouse's personal injury. It depends upon and is incidental to the personal injury action. Our courts have characterized it as a derivative action, not a separate cause of action." Ibid. (citation omitted).

Thus, even assuming that an unmarried partner could interpose a per quod claim, Markowski would not be entitled to pursue such a claim when Cluney's claim, on which it is based, was dismissed. Because Cluney suffered no actionable wrong, and Markowski's per quod claim is not a separate cause of action, it must also fail.

In addition, our courts do not permit per quod claims in employment actions. In Catalane v. Gilian Instrument Corp., 271 N.J. Super. 476, 500 (App. Div.), certif. denied, 136 N.J. 298 (1994), following other jurisdictions, we concluded that, in enacting the LAD, "the Legislature did not intend to establish a cause of action for any person other than the individual against whom the discrimination was directed." Plaintiffs would be entitled only to the remedies available under the LAD. N.J.S.A. 34:11B-11.

In Collins v. OSF Healthcare Sys., 262 F. Supp. 2d 959, 963 (D. Ill. 2003), the court disallowed a husband's individual claim, based on his wife's claim for a violation of the FMLA, reasoning that the wife's action was based on the employment relationship to which the husband was not a party.

Here also, Cluney's claim was based on the employment relationship, to which Markowski was not a party. Following Catalane and Collins, we conclude that per quod claims are not permitted in employment cases.

IV.

Finally, plaintiffs contend that the judge erred in dismissing their claim for wrongful discharge in violation of public policy, pursuant to Pierce v. Ortho Pharm. Corp., 84 N.J. 58 (1980). They argue that Cluney "states a viable cause of action" under the FMLA, which establishes a clear mandate of public policy for wrongfully terminated employees.

Defendants respond that neither the FMLA nor the NJFLA is a source of public policy in support of plaintiffs' wrongful discharge claim, because the judge properly dismissed plaintiffs' claims under both statutes. We agree. Since plaintiffs have no cause of action under the FMLA or NJFLA, there is no public policy argument that would support plaintiffs' contention.

In Hampton v. Armand Corp., 364 N.J. Super. 194, 196-97 (App. Div. 2003), the plaintiff asserted a claim for wrongful discharge for taking medical leave in violation of public policy, based on the FMLA. However, the plaintiff did not have a viable claim under the FMLA because she had not been employed for twelve months. Id. at 197. We rejected her claim because "[t]he FMLA establishes a clear mandate of public policy for 'eligible employees' wrongfully terminated pursuant to its provisions," but does not establish public policy for ineligible employees. Id. at 201. We reasoned that an employee who is ineligible for relief under the FMLA should not be able to obtain relief under Pierce. Ibid. See also Conoshenti, supra, 364 F.3d at 148-50 (rejecting plaintiff's common-law wrongful discharge claim under Pierce, even though plaintiff might have been able to prove that employer violated the FMLA by failing to advise him of his rights).

Here, as in Hampton, plaintiffs may not pursue a common-law wrongful discharge claim when Cluney was not eligible for protection under the FMLA or the NJFLA because she had not worked the required number of hours. The judge properly dismissed this claim.

V.

To the extent we have not discussed further arguments advanced by plaintiffs we consider them to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.

 

The summary judgment motion was argued on March 18, 2005, and the motion judge issued a letter opinion dated March 23, 2005, dismissing all but count four of the complaint. Plaintiffs then voluntarily consented to the dismissal of count four.

To be eligible for FMLA benefits, an employee must have worked 1,250 hours during the twelve months prior to the application. 29 U.S.C.A. 2611(2). Eligibility for NJFLA benefits requires 1,000 hours. N.J.S.A. 34:11B-3(e).

A copy of the original complaint is not contained in the record on appeal.

Copies of the motions are not contained in the record on appeal.

(continued)

(continued)

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A-4472-04T5

August 1, 2006