DINARDO v. MEDCO HEALTH SOLUTIONS, INC. et al, No. 1:2014cv05716 - Document 38 (D.N.J. 2016)
Court Description: OPINION FILED. Signed by Judge Joseph H. Rodriguez on 5/24/16. (js)
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DINARDO v. MEDCO HEALTH SOLUTIONS, INC. et al Doc. 38 UNITED STATES DISTRICT COURT DISTRICT OF NEW J ERSEY GARY DINARDO, : : Plaintiff, v. Hon. J oseph H. Rodriguez Civil Action No. 14-5716 : OPINION MEDCO HEALTH SOLUTIONS, INC., : EXPRESS SCRIPTS PHARMACY, INC., as Successor to MEDCO HEALTH SOLUTIONS OF WILLINGBORO, L.L.C., and : EXPRESS SCRIPTS, INC., : Defendants. : This m atter is before the Court on Defendants’ m otion for sum m ary judgm ent. [Doc. 29.] The Court heard oral argument on the m otion on April 20 , 20 16, and the record of that proceeding is incorporated here. For the reasons place on the record that day, as well as those outlined below, the m otion will be denied. Background Plaintiff Gary DiNardo was em ployed as a power equipment operator at a Medco Health Solutions, Inc. pharm acy in Willingboro, New J ersey when Medco was acquired by Defendant Express Scripts, Inc. (“ESI”) in April 20 12. He becam e ill at work on April 18, 20 12 and ESI sent him to the hospital. (Granieri Cert., Ex. C, Pl. Dep., p. 23-24.) Plaintiff’s daughter, Carol DiNardo, also an ESI em ployee, contacted Melanie Speece, a 1 Dockets.Justia.com supervisor of ESI’s Hum an Resources department, on her father’s behalf. (Granieri Cert., Ex. D, Carol Dinardo Aff.; Granieri Cert., Ex. C, Pl. Dep., p. 26.) Carol Dinardo advised Speece that her father had suffered a stroke and had been adm itted to the hospital and she asked for instruction on how to get started on her father’s disability. (Granieri Cert., Ex. D, Carol Dinardo Aff.) At that tim e, ESI was under contract with Aon Hewitt Absence Managem ent (“Hewitt”), third party adm inistrator of ESI’s short-term disability (“STD”) and Fam ily Medical Leave Act (“FMLA”) programs. (Speece Dep., p.30 -31; Rey Cert., Ex. D, Roberson Dep., p. 11.) Speece referred Carol DiNardo to Hewitt, Plaintiff applied for STD benefits through Hewitt, and his absence from work was designated FMLA leave. Plaintiff was unable to return to work for over six m onths. He exhausted his 12-week FMLA leave on J uly 10 , 20 12 and his 26-week STD benefits on October 10 , 20 12. Plaintiff then received long term disability benefits until his return to work date of November 12, 20 12. When Plaintiff was m edically cleared to return to work on November 12, 20 12, however, he was informed that no vacant positions were available. As such, Plaintiff’s em ploym ent with ESI was term inated. Plaintiff alleges that Defendants term inated his em ployment because of his disability or perceived disability, in violation of the New J ersey Law Against Discrim ination (“NJ LAD”), N.J . Stat. Ann. § 10 :5-1, and in 2 retaliation for his request to take FMLA leave, in violation of the FMLA. Plaintiff also alleged that Defendants breached a contract to extend his disability leave to November 12, 20 12 and return him to work. Through briefing, however, Plaintiff has indicated he does not oppose the sum mary judgm ent m otion as to the breach of contract claim . (Pl. Br., p. 37.) Sum m ary J udgment Standard “Sum m ary judgment is proper if there is no genuine issue of m aterial fact and if, viewing the facts in the light m ost favorable to the non-m oving party, the m oving party is entitled to judgm ent as a m atter of law.” Pearson v. Com ponent Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 20 0 1) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56 (a). The Court will enter sum m ary judgm ent in favor of a m ovant who shows that it is entitled to judgm ent as a m atter of law, and supports the showing that there is no genuine dispute as to any material fact by “citing to particular parts of m aterials in the record, including depositions, docum ents, electronically stored inform ation, affidavits or declarations, stipulations . . . adm issions, interrogatory answers, or other m aterials.” Fed. R. Civ. P. 56 (c)(1)(A). An issue is “genuine” if supported by evidence such that a reasonable jury could return a verdict in the nonmoving party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if, under 3 the governing substantive law, a dispute about the fact m ight affect the outcom e of the suit. Id. In determ ining whether a genuine issue of m aterial fact exists, the court m ust view the facts and all reasonable inferences drawn from those facts in the light m ost favorable to the nonm oving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Initially, the m oving party has the burden of dem onstrating the absence of a genuine issue of m aterial fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the m oving party has m et this burden, the nonm oving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally’s Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J . 1994). Thus, to withstand a properly supported m otion for sum mary judgment, the nonm oving party m ust identify specific facts and affirm ative evidence that contradict those offered by the m oving party. Andersen, 477 U.S. at 256-57. “A nonm oving party m ay not ‘rest upon m ere allegations, general denials or . . . vague statements . . . .’” Trap Rock Indus., Inc. v. Local 825, Int’l Union of Operating Eng’rs, 982 F.2d 884, 890 (3d Cir. 1992) (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 50 0 (3d Cir. 1991)). Indeed, the plain language of Rule 56(c) m andates the entry of sum m ary judgment, after adequate time for discovery and upon m otion, against a party who fails to m ake a showing sufficient 4 to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. That is, the movant can support the assertion that a fact cannot be genuinely disputed by showing that “an adverse party cannot produce adm issible evidence to support the [alleged dispute of] fact.” Fed. R. Civ. P. 56(c)(1)(B); accord Fed. R. Civ. P. 56(c)(2). In deciding the m erits of a party’s m otion for sum m ary judgm ent, the court’s role is not to evaluate the evidence and decide the truth of the m atter, but to determ ine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Credibility determ inations are the province of the factfinder. Big Apple BMW, Inc. v. BMW of N. Am ., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). NJ LAD Generally New J ersey has adopted the burden-shifting fram ework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), as the starting point in circum stantial evidence discrim ination actions brought under its Law Against Discrim ination. Andersen v. Exxon Co., U.S.A., 89 N.J . 483, 492 (1982). Though the McDonnell Douglas framework is followed in cases of discrim inatory discharge, the elements of the prim a facie case are m odified 5 to fit the circum stances. Clowes v. Term inix Int’l, Inc., 10 9 N.J . 575, 596 (1998); Bell v. K.A. Indus. Services, LLC, 567 F. Supp. 2d. 70 1, 70 6 (D.N.J . 20 0 8). Failure to Accom m odate To m ake out a prima facie failure to accom m odate claim under the NJ LAD, Plaintiff m ust show that: (1) he was disabled or perceived to have a disability1; (2) he was otherwise qualified to perform the essential functions of the job, with or without reasonable accom m odation by the em ployer; (3) he suffered an adverse em ployment action because of the disability. Victor v. State, 952 A.2d 493, 50 3 (N.J . Super. Ct. App. Div. 20 0 8), aff’d as m odified, 4 A.3d 126 (N.J . 20 10 ). As to the second element, an example of a reasonable accomm odation is a leave of absence. N.J . Adm in. Code 13:132.5(b)(1)(ii). When an em ployee requests accomm odation, the employer has a duty to engage in an interactive process in an effort to assist the em ployee. J ones v. United Parcel Svc., 214 F.3d 40 2, 40 8 (3d Cir. 20 0 0 ). To show that an em ployer failed to participate in the interactive process, “the em ployee m ust show the em ployer was inform ed of the disability, the The NJ LAD refers to “handicap,” but defines handicap as a disability. Courts have used the terms interchangeably in this context. See Victor v. State, 20 3 N.J . 383, 399 (20 10 ). 1 6 em ployee requested accom m odation, the employer m ade no good faith effort to assist, and the accom m odation could have been reasonably achieved” but for the employer’s lack of good faith. Victor, 952 A.2d at 50 4 (citing Tynan v. Vicinage 13 of the Superior Court, 798 A.2d 648, 657 (N.J . Super. Ct. App. Div. 20 0 2)). “Employers can show their good faith in a num ber of ways, such as taking steps like the following: meet with the em ployee who requests an accom m odation, request inform ation about the condition and what lim itations the em ployee has, ask the em ployee what he or she specifically wants, show some sign of having considered [the] em ployee’s request, and offer and discuss available alternatives when the request is too burdensome.” Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 317 (3d Cir. 1999) (in the context of ADA and PHRA claim s). Here, Defendants argue that Plaintiff cannot show that he requested a reasonable accom modation for his disability of a leave of absence from April 19 to Novem ber 12, 20 12, so Defendants’ duty to engage in the interactive process was not triggered. Rather, Defendants assert that Plaintiff requested STD benefits and FMLA leave, which were granted, but he did not request any additional leave of absence. Plaintiff counters that because Hewitt, as Defendants’ agent, was aware of his request for a leave of absence, Defendants were on notice that Plaintiff had m ade a request for reasonable accom m odation under the LAD. 7 In addition, Plaintiff outlines the following facts in support of his position that Defendants had been provided with sufficient inform ation regarding his need for an accom m odation in the form of an extended leave of absence. As stated above, Carol DiNardo contacted Hewitt and inform ed the representative that her father had suffered a stroke and needed a leave of absence. (Granieri Cert., Ex. D, Carol DiNardo Aff.) Hewitt’s records indicate it received a call from Carol DiNardo on April 19, 20 12 regarding her father’s disability. (Granieri Cert., Ex. D, Ex. K, Hewitt internal claim notes.) ESI assigned its HR em ployee, Kimberly J ones, as the Leave of Absence, Short-Term Disability and FMLA Liaison to act between Hewitt and Plaintiff’s m anagem ent team at ESI. (Rey Cert., Ex. D, Roberson Dep., p. 14-15.) Hewitt reported to Kim berly J ones as to the status of Plaintiff’s leave of absence, short-term disability, and FMLA leave. (Id.) In a letter on Express Scripts letterhead dated April 23, 20 12, Marcie Arnett, Hewitt Case Manager, acknowledged that Hewitt had received Plaintiff’s request for Short Term Disability leave of absence to begin April 18, 20 12. (J ett Cert., Ex. A.) The letter also advised Plaintiff that his “Manager and HR Representative have been notified of the status of this leave request.” (Id.) The letter also stated: 8 If you do not return to work on the date your leave ends, your absence will be subject to the attendance provisions of company policy or your collective bargaining agreement, as appropriate, and the com pany may consider you to have voluntarily resigned your job. (Id.) Another letter on Express Scripts letterhead, also dated April 23, 20 12, inform ed Plaintiff that he was provisionally eligible for FMLA leave pending adequate m edical certification of a serious health condition. (J ett Cert., Ex. B.) This correspondence was from J en Piasecki, Leave Manager. (Id.) A letter from Arnett dated May 1, 20 12 reiterated a request for objective m edical evidence from Plaintiff’s health care provider, and again noted that Plaintiff’s HR Representative was notified of the status of his leave request. (J ett Cert., Ex. C.) On May 6, 20 12, a letter from Arnett on Express Scripts letterhead notified Plaintiff that he had been approved for benefits under Medco’s STD Plan from April 18, 20 12 through J une 6, 20 12. (J ett Cert., Ex. D.) The letter indicated that an estim ated return to work date was still needed, and advised that Plaintiff was to contact his HR Representative at least 2 business days prior to return to work to m eet security protocols. (Id.) By a letter on Express Scripts letterhead dated J une 26, 20 12, Arnett inform ed Plaintiff that he would exhaust his FMLA leave on J uly 10 , 20 12 “and will have no job protection after this period.” (J ett Cert., Ex. E.) That letter also stated: 9 If you have been approved for short-term disability benefits, you will continue to receive them even if you are no longer protected under FMLA. You are not required to return to work until it has been determ ined that you are no longer disabled. * * * If your approved leave period is longer than your available FMLA tim e, the com pany can’t assure you’ll be returned to your same or an equivalent job at the end of your leave. When you return to work at the end of your approved leave, the com pany will consider you for any available jobs that it determ ines you’re qualified to fill. If you’re not qualified for any available jobs, the com pany will term inate your em ployment. (Id.; accord J ett Cert., Ex. G.) ESI was aware that Plaintiff’s short-term disability benefits were extended through J uly 17, 20 12, (J ett Cert., Ex. F), and September 30 , 20 12, (J ett Cert., Ex. H), and then October 10 , 20 12 with a return to work date of November 12, 20 12, (J ett Cert., Ex. I), and finally through October 16, 20 12, (J ett Cert., Ex. J , K). Plaintiff was approved for long-term disability benefits to his return to work date of November 12, 20 12. (Rey Cert., Ex. D, Roberson Dep., p. 16.) Plaintiff personally spoke with Hewitt and J oe Radzavicz of ESI’s HR department in Septem ber and early October of 20 12 about his need for additional leave of absence for his medical condition. (Rey Cert., Ex. A, Pl. Dep., p. 35; Granieri Cert., Ex. R, Radzavicz Dep., p. 41; Granieri Cert., Ex. D, Ex. J , Speece Dep., p. 67.) Plaintiff advised that he was not m edically cleared to return to work on October 1, 20 12 because he needed additional leave for the im plantation of a pacem aker. (Pl. Dep., p. 35-36.) After 10 verifying Plaintiff’s condition with his m edical provider, Hewitt, on behalf of ESI, approved the additional leave of absence from October 1, 20 12 to November 12, 20 12. (Granieri Cert., Ex. B, Roberson Dep., p. 17-18, 70 .) Hewitt m em orialized its finding in writing to ESI on October 2, 20 12, noting that Plaintiff’s STD benefits were extended to October 16, 20 12 and his new return to work date would be November 12, 20 12. (Granieri Cert., Ex. O, correspondence; Ex. S, em ail; Ex. J , Speece Dep., p. 70 .) At that tim e, Hewitt also advised Plaintiff to contact ESI’s HR departm ent two days prior to his return to work, and that HR and Plaintiff’s supervisor had been notified of the status of his leave request. (Granieri Cert., Ex. H, correspondence; Ex. J , Speece Dep., p. 71.) On Friday, November 9, 20 12, Plaintiff called ESI in preparation for his Monday, Novem ber 12, 20 12 return to work date, but the call went to voicem ail, and Plaintiff left a m essage. (Rey Cert., Ex. A, Pl. Dep., p. 37-38; 10 6.) At 8 a.m. on November 12, 20 12, Plaintiff again called ESI’s HR Department about his return to work that day. (Id. at p. 37.) Melanie Speece told Plaintiff she had to “find out a few things” and would call him back. (Id.) Speece has no recollection of this phone call. (Ex. J , Speece Dep., p. 84.) When he did not receive a return phone call, Plaintiff again called HR at 4:15 p.m . on Monday, the 12th. (Pl. Dep., p. 39.) Plaintiff testified that Speece then informed Plaintiff that he was not returning to 11 work. (Id.) “After six m onths disability, you’ve been out too long; they couldn’t hold your job anym ore.” (Id.) Speece was unable to recall the details of this telephone conversation with Plaintiff. (Rey Cert., Ex. F, Speece Dep., p. 53; Granieri Cert., Ex. J , Speece Dep., p. 80 .) She advised other personnel in the HR Department of Plaintiff’s term ination from ESI and noted that the separation was due to a “failure to return from leave of absence.” (Granieri Cert., Ex. J , Speece Dep., p. 87; Ex. U, Personnel Record.) ESI em ployees approved for leaves of absence are not absent without perm ission but rather have perm ission to rem ain out of work until they are given a return to work date. (Rey Cert., Ex. D, Roberson Dep., p. 17.) So, according to ESI, Plaintiff was on an approved leave of absence from April 18, 20 12 until his return to work date of November 12, 20 12. (Id., p.18.) Im plicit in an em ployer granting “leave” is that the em ployee still has a job to return to. In this case, the Court finds a dispute of fact exists concerning Defendants’ good faith efforts to engage in the interactive process. There is evidence from which a reasonable jury could conclude that Defendants failed to accom m odate Plaintiff for his disability when they denied his request for leave until Novem ber 12, 20 12. A reasonable jury could find that Plaintiff m ade a clear request for an accom m odation in the form of 12 leaves of absence in excess of what was otherwise provided by ESI’s leave policies. He subm itted doctor’s notes related to his subsequent absences. Rather than engage Plaintiff in an interactive process to find an acceptable accom m odation, Defendants never com m unicated with Plaintiff regarding his request or doctor’s notes, and denied his request to return to work after leave the day they fired him . A reasonable jury could therefore find that Defendants’ failure to com m unicate with Plaintiff was a bad faith response to Plaintiff’s request for an accom m odation. Defendants next argue that Plaintiff was not term inated because of his disability, but because on November 12, 20 12, when he was m edically cleared to return to work, there was no position available for which he was qualified. Following the merger of ESI and Medco, reductions in the workforce at the ESI Willingboro facility were planned due to a reduction in volum e capacity as a result of client loss, geographic optimization of postage cost for the enterprise, and other factors. A reduction in force announced on Novem ber 8, 20 12 eliminated the third shift operations at the ESI Willingboro Pharm acy. Plaintiff’s power equipm ent operator position was then elim inated. Three additional power equipm ent operators were notified on J anuary 30 , 20 13 of the elim ination of their positions effective March 30 , 20 13. (Rey Cert., Ex. O.) The Willingboro facility eventually closed in the Spring of 20 15, and m any of the Willingboro 13 em ployees were transferred to a new facility in Florence, New J ersey. (Rey Cert., Ex. F, Speece Dep., p. 18 -22.) Plaintiff argues that any reduction in force did not becom e effective until March 20 13, and no other power equipm ent operators were term inated as of November 12, 20 12. In fact, no power equipm ent operators were term inated during the tim e Plaintiff was on leave – from April 18, 20 12 through November 13, 20 12. (Rey Cert., Ex. D, Roberson Dep., p. 26-27, 29.) Rather, the reduction in force for power equipment operators took place March 31, 20 13. (Id., p. 29.) In addition, ESI would typically give em ployees at least 60 -days’ notice that they were selected for an upcom ing reduction in force. (Granieri Cert., Roberson Dep., p. 33-34.) Plaintiff was given no notice. Therefore, the Court finds a genuine issue of m aterial fact as to whether Plaintiff was term inated because of his disability, rather than as part of a reduction in force. Discrim inatory Discharge In order for a plaintiff to establish a prim a facie case of discrim inatory discharge because of a handicap or disability, he m ust establish that: (1) he is disabled or perceived to have a disability; (2) he was otherwise qualified to perform the essential functions of the job, with or without reasonable accom m odation by the em ployer; (3) he was term inated; and (4) the em ployer sought to or did fill the position with a 14 sim ilarly qualified person. Victor v. State, 4 A.3d 126, 141 (N.J . 20 10 ). Once the em ployee has satisfied his burden of establishing a prim a facie case of discrim ination under the LAD, the burden of production then shifts to the em ployer to rebut the prim a facie case by “articulat[ing] some legitim ate, nondiscrim inatory reason” for its alleged unlawful action. Clowes, 10 9 N.J . at 596; see also Laresca v. AT & T, 161 F. Supp. 2d. 323, 335 (D.N.J . 20 0 1). “In order to defeat a sum m ary judgment m otion if the em ployer answers the plaintiff's prim a facie case with [a] legitim ate, nondiscrim inatory reason [ ] for its action, the plaintiff m ust point to som e evidence, direct or circum stantial, from which a fact finder could reasonably either (1) disbelieve the employer’s articulated legitim ate reasons; or (2) believe that an invidious discrim inatory reason was m ore likely than not a m otivating or determ inative cause of the em ployer’s action.” Laresca, 161 F. Supp. 2d at 335– 36; Sheridan v. E.I. DuPont de Nem ours & Co., 10 0 F.3d 10 61, 10 67 (3d Cir. 1996). In evaluating em ployment cases, the task of the Court is not to second-guess em ployment decisions, but is instead to determ ine whether the em ployment decisions were m otivated by an illegal discrim inatory purpose. Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 50 9, 525-27 (3d Cir. 1992). Thus, to establish pretext, “the plaintiff cannot sim ply show that the em ployer's decision was wrong or m istaken, since the factual 15 dispute at issue is whether discrim inatory anim us motivated the em ployer, not whether the employer is wise, shrewd, prudent, or com petent. Rather, the . . . plaintiff m ust dem onstrate such weakness, im plausibilities, inconsistencies, incoherencies, or contradictions in the em ployers's proffered legitim ate reasons for its action that a reasonable factfinder could rationally find them ‘unworthy of credence,’ and hence infer ‘that the em ployer’ did not act for [the asserted] nondiscrim inatory reasons.” Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir.1994) (internal citations om itted); Romano v. Brown & William son Tobacco Corp., 284 N.J . Super. 543, 551 (citing Fuentes, 32 F.3d at 764-65). Defendants argue that Plaintiff cannot satisfy the fourth prong of the prim a facie case because Defendants did not seek anyone to replace Plaintiff. Rather, ESI was in the process of reducing the num ber of positions in Plaintiff’s job classification. Next, Defendants argue that even if Plaintiff could establish a prima facie claim of discrim ination, he cannot show that Defendants’ reasons for his term ination were pretextual. ESI asserts that Plaintiff was term inated solely because there were no vacant positions for which he was qualified when he was medically cleared to return to work on November 12, 20 12. Again, Plaintiff has presented sufficient facts to raise a dispute as to whether his disability was the m otivating reason behind his term ination. 16 The Fam ily and Medical Leave Act Generally The Fam ily and Medical Leave Act of 1993, 29 U.S.C. § 260 1, (“FMLA”) was enacted to provide leave for workers whose personal or m edical circum stances require that they take time off from work in excess of what their em ployers are willing or able to provide. Victorelli v. Shadyside Hosp., 128 F.3d 184, 186 (3d Cir. 1997) (citing 29 C.F.R. § 825.10 1). The Act is intended “to balance the dem ands of the workplace with the needs of fam ilies . . . by establishing a m inim um labor standard for leave” that lets em ployees “take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse or parent who has a serious health condition.” Churchill v. Star Enters., 183 F.3d 184, 192 (3d Cir. 1999) (quoting 29 U.S.C. § 260 1(b)(1), (2)). The FMLA guarantees eligible em ployees 12 weeks of leave in a oneyear period following certain events: a serious m edical condition; a fam ily m ember’s serious illness; the arrival of a new son or daughter; or certain exigencies arising out of a fam ily m ember’s service in the arm ed forces. 29 U.S.C. § 2612(a)(1). Leave m ust be granted, when “m edically necessary,” on an interm ittent or part-tim e basis. § 2612(b)(1). Upon the em ployee’s tim ely return, the em ployer m ust reinstate the employee to his or her form er position or an equivalent. § 2614(a)(1). Although em ployers may 17 adopt or retain leave policies more generous than any policies that com ply with the requirements under the FMLA, 29 U.S.C. § 2653, the “rights established by the Act m ay not be diminished by any employm ent benefit program or plan,” 29 C.F.R. § 825.70 0 . The Act m akes it unlawful for an em ployer to “interfere with, restrain, or deny the exercise of” these rights, § 2615(a)(1); to discrim inate against those who exercise their rights under the Act, § 2615(a)(2); or to retaliate against those who file charges, give inform ation, or testify in any inquiry related to an assertion of rights under the Act, § 2615(b). An em ployer also cannot “use the taking of FMLA leave as a negative factor in em ploym ent actions, such as hiring, prom otions, or disciplinary actions.” Hodgens v. Gen. Dynam ics Corp., 144 F.3d 151, 159-60 (3d Cir. 1998) (quoting 29 C.F.R. § 825.220 (c)). But where an employee is discharged during a protected leave for a reason unrelated to the leave, there is no right to reinstatem ent. Conoshenti v. Public Service Elec. & Gas Co., 364 F.3d 135, 141 (3d Cir. 20 0 4) (citing 29 C.F.R. § 825.216(a)(1)). Retaliation In cases alleging retaliation in the em ployment setting, courts generally apply the fam iliar burden-shifting fram ework established in McDonnell Douglas, 411 U.S. 792. See Weston v. Pennsylvania, 251 F.3d 420 , 432 (3d Cir. 20 0 1). Again, the first step under McDonnell Douglas is 18 to establish a prim a facie case of retaliation for requesting FMLA leave. 411 U.S. at 80 2. To carry this initial burden in a retaliation case, a plaintiff m ust show that: (1) he engaged in protected activity (taking FMLA leave); (2) he suffered an adverse em ploym ent decision; and (3) the adverse decision was causally related to the leave. Conoshenti, 364 F.3d at 146-47. A causal connection m ay be established by circumstantial evidence, such as tem poral proxim ity, a pattern of antagonism , and pretext. Kachm ar v. SunGard Data Sys., 10 9 F.3d 173, 177 (3d Cir. 1997). This indirect evidence is to “be considered with a careful eye to the specific facts and circum stances encountered.” Farrell v. Planters Lifesavers Co., 20 6 F.3d 271, 279, n.5 (3d Cir. 20 0 0 ). Once a prima facie case is established, the burden of persuasion shifts back to the defendant to put forth “a legitim ate, nondiscrim inatory reason” for the employment decision. Id.; Texas Dep’t of Cm ty. Affairs v. Burdine, 450 U.S. 248, 254 (1981). If the defendant succeeds in dem onstrating that the decision was based on a non-discrim inatory reason, Plaintiff has the burden of proving by a preponderance of the evidence that the stated reason was pretextual. Burdine, 450 U.S. at 260 ; St. Mary's Honor Ctr. v. Hicks, 50 9 U.S. 50 2, 50 8 (1993). “[F]iring an em ployee for [m aking] a valid request for FMLA leave m ay constitute interference with the em ployee’s FMLA rights as well as 19 retaliation against the employee.” Erdm an v. Nationwide Ins. Co., 582 F.3d 50 0 , 50 9 (3d Cir. 20 0 9). On the other hand, an em ployer is not required to suspend its term ination proceedings just because the em ployee requests m edical leave. See, e.g., Clark County Sch. Dist., 532 U.S. at 272. “A contrary holding might im pede employers from perm issible term inations and encourage em ployees aware of an im pending term ination to attem pt to create their own ‘severance package.’” Windfelder v. The May Dep’t Stores Co., 93 Fed. Appx. 351, 355 (3d Cir. 20 0 4). Defendants argue that Plaintiff cannot m ake out a causal connection between his FMLA leave and the term ination of his em ploym ent on November 12, 20 12. Further, Defendants contend that Plaintiff cannot dem onstrate discrim inatory anim us in retaliation for him taking FMLA leave; ESI again cites to the absence of an available position for Plaintiff to fill on Novem ber 12, 20 12. While an “employer is entitled to reduce and/ or reorganize its staff,” it “m ay not use its RIF/ reorganization/ im proved-efficiency rationale as a pretext to m ask actual discrim ination or retaliation.” Hodgens v. Gen. Dynam ics Corp., 144 F.3d 151, 166 (1st Cir. 1998). Again, ESI’s corporate representative and Director of HR acknowledged that the reduction in force for power equipm ent operators took place on March 31, 20 13, (Rey Cert., Ex. D, Roberson Dep., p. 29), well after ESI failed to return Plaintiff to his 20 position. Because there exists a genuine issue of m aterial fact as to ESI’s cited reason for term ination, sum mary judgm ent will be denied. Conclusion For the reasons stated above, and in keeping with the discussion held on the record during oral argum ent, Defendants’ m otion for sum m ary judgm ent will be denied. An Order will accom pany this Opinion. Dated: May 24, 20 16 / s/ J oseph H. Rodriguez J oseph H. Rodriguez, USDJ 21
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