VELCKO v. SAKER SHOPRITES, INC., No. 3:2015cv01217 - Document 29 (D.N.J. 2016)
Court Description: MEMORANDUM AND ORDER granting in part and denying in part 18 Motion for Summary Judgment; Granting on the NJLAD hostile work environment claim; Denying as to all other claims.. Signed by Judge Peter G. Sheridan on 8/31/2016. (eaj)
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VELCKO v. SAKER SHOPRITES, INC. Doc. 29 NOT FOR PUBLICATION R E C: E I V E D UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY SEP 0 9 2016 AT 8:30 M i T. WALSH !CLERK I LAWRENCE VELCKO, JR. 607 W. Wilkes Barre Street Easton, PA 18042 Civil Action No.: 15-cv-121 { (PGS)(LHG) I I Plaintiff, I I I v. MEMORANDUM AND ORDER SAKER SHOPRITES, INC. d/b/a/ SHOPRITE BOUND BROOK 611 West Union Avenue Bound Brook, NJ 08805 Defendant. SHERIDAN, District Judge. Facts: Lawrence Velcko ("Velcko" or "Plaintiff') was hired by Saker Shoprites, Inc. ("Saker") on January 5, 2001. (Plaintiffs Statement of Facts, ("PSOF"), 1). On October 2004, Velcko was transferred to Defendant's Board Brook location. (PSOF, 2). He was a "night crew clerk" performing work such as organizing and cleaning, using power jacks, transporting1and stocking products, disposing of wrapping and cardboard, and verifying certain equipment operation. (PSOF, 3). Velcko has suffered from chronic and extreme conditions of Eczema, MRSA, i psoriasis, skin disorders, and other similar conditions for about a decade. (PSOF ,14). In 2011, I 1 I Dockets.Justia.com i after experiencing issues related to his eczema, Velcko made use of medical leave Jursuant to the Family and Medical Leave Act. (Defendant's Statement of Facts, ("DSOF") if 25). Plaintiff alleges that during the course of his employment he was subject to I discrimination and ridicule on the basis of his health condition, including being names and having other employees bet on when he would return to work. (DSOF if 29). The last time that Velcko physically worked at Saker was September 12, into the i morning of September 13, 2013. September 14th was the first day that Velcko missed time from I work due to his health conditions, and he had called out of work. He was seen by his physician I I I on September 17, who noted that his eczema had worsened, and his physician provtded a return 1 to work date of September 18. He was seen again by his physician on September 20, who I instructed Velcko to go to the hospital. (PSOF if 18). i There is a dispute as to the details of the remainder of Plaintiffs missed time, the amount I of contact Plaintiff actually had with Velcko, and as to what occurred during Plainiirrs meetings with physicians. Essentially, Defendant claims that between September 14, 2013 ld I October 13, 2014, Plaintiff kept in regular touch with Saker and provided Saker with notes and Idocuments from his physician on four occasions. (DSOF if 50). Then, after weeks without heJ.ing from I Plaintiff, Saker suspended Plaintiffs employment pending termination for job abandonment on . I October 28, 2013. (DSOF if 70). Plaintiff was sent a letter indicated that he was teJminated as of October 28, 2013, though witnesses have testified that this was a typographical and that I Plaintiff was only suspended pending termination. (DSOF ir 72). He was formally on I November 20, 2013 after meeting with Kevin Moroney, Senior Vice President of Human I Resources and Labor Relations at Saker, and the United Food and Commercial Wbrkers Union, 2 i Local 1262 ("UFCW"). (Defendant's Response to Plaintiffs Statement of Facts, ("DRPSOF") I 25), I Defendant claims that on September 24, 2013, because Plaintiff had been oJt of work for 7 or more days, he was automatically sent an Out of Work packet consisting of disability paperwork and a Family Medical Leave Act ("FMLA") return to work mldical . I I certification form; these documents had to be completed and submitted in order forl Plaintiff to receive job protected leave. (DSOF 54). Defendant claims that between and October 7, Alexis Summers ("Summers"), Saker's Benefits Manager, personally spoke wiJ Plaintiff, and ! her notes indicate that she explained in detail the procedures for excusing absence based on disability. (PSOF 55). Saker provided employees with 52 weeks of unpaid leave.lwhich was I more than the 12 weeks of unpaid leave required by the Family and Medical Leavd Act ("FMLA"). (DSOF Defendant claims that Plaintiff did not return the necessak paperwork in time to receive this benefit. (DSOF 86). Plaintiff contends that he was never provided with the appropriate FMLA forms and disputes that assertion that Summers apprised him of his rights and responsibilitiJ for receiving benefits. (PSOF 54-55). I There are additional facts indicating that Plaintiff was reinstated to his job ht a different I New Jersey Saker location in January 2014. However, based on a course of that is entirely in dispute, Plaintiff did not work at the new location, and was eventually terminat¢d for good from Saker. The Court will not delve into this issue, since it is does not affect thislmotion. Plaintiff filed a two count Complaint on February 16, 2015. In Count I, alleged I violations of the New Jersey Law Against Discrimination ("NJLAD") for 1.) discrimination/hostile work environment, 2.) retaliation and 3.) failure to accomJodate. In Count I 3 I ! I II, Plaintiff alleged violations of the FMLA for 1.) interference and 2.) retaliation. Defendant . I brought this motion for summary judgment (ECF No. 18) on May 13, 2016. In its reply brief, I I . I Defendant withdrew its motion for summary judgment as to the NJLAD retaliationjclaims that I I relate to 2014. Plaintiff has also withdrawn its motion as to the FMLA retaliation claim. The ! remaining claims are discrimination/hostile work environment and failure to under i the NJLAD, and interference under the FMLA. For the reasons stated below, DefeJdant's motion for summary judgment is granted in part and denied in part. I demonstrates that there is no genuine issue of material fact and the evidence establishes the moving party's entitlement to judgment as a matter oflaw. See Celotex Corp. v. c4trett, 477 I I U.S. 317, 322-23 (1986). A factual dispute is genuine if a reasonable jury could return a verdict i for the non-movant, and it is material if, under the substantive law, it would affect the outcome I I of the suit. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In considering a I I motion for summary judgment, a district court may not make credibility or I engage in any weighing of the evidence; instead, the non-moving party's evidencel"is to be I believed and all justifiable inferences are to be drawn in his favor." Marino v. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255). I 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. See Jersey Cent. Power & Light Co. v. Lacey Twp., 772 F .2d 1103, 1109 (3d Cir. 1985). The party opposing the motion I summary I judgment cannot rest on mere allegations and instead must present actual evidencJ that creates a genuine issue as to a material fact for trial. See Anderson, 4 77 U.S. at 248; Siegel !Transfer, Inc. i 4 I v. Carrier Express, Inc., 54 F.3d 1125, 1130-31 (3d Cir. 1995). Moreover, only disbutes over facts that might affect the outcome of the lawsuit under governing law will precluje the entry of . I summary judgment. See Anderson, 477 U.S. at 247-48. Analysis: I. FMLA Interfere nee Claim For an FMLA interference claim, an employee must only show that 1.) he entitled to I FMLA benefits and 2.) he was denied those benefits. Thurston v. Cherry Hill Trip/ix, 941 F. Supp. 2d 520, 526 (D.N.J. 2008). It is unlawful for an employer to "interfere with, 1restrain, or I deny the exercise of' these rights. 29 U.S.C. § 2615(a)(l). The employee does not need to show I that he was treated less favorably than other employees, and the employer cannot its actions by providing a legitimate business reason. Thurston, 941 F. Supp. at 526. t e FMLA provides eligible employees with 12 weeks of leave in a one-year period following certain events, including a serious medical condition. 29 U.S.C. § 2612(a)(l ). I To prevail on an FMLA interference claim, Plaintiff must establish that: "(I) [Velcko] was entitled to FMLA benefits; (2) [Saker] violated§ 2615 by 'interfering with, rektraining, or I denying [him] exercise of FMLA rights;' and (3) [Velcko] was prejudiced by the interference." I Sconjienza v. Verizon Pennslyvania, Inc., 307 Fed. App'x 619, 621 (3d Cir. 2008) l(citing Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002). The Third explains that there are notice requirements: [T]he DOL's regulations impose upon the employer obligations to communicate with employees regarding their rights under the FMLA. In particular, the regulations require employers to provide ' employees with individualized notice of their FMLA rights and obligations. Pursuant to 29 C.F.R. § 825.208(a), "[i]n all circumstances, it is the employer's responsibility to designate leave, paid or unpaid, as FMLA-qualifying, and to give notice of the designation to the employee .... " If an employer provides I 5 employees with a handbook concerning employee benefits, "the handbook must incorporate information on FMLA rights and responsibilities and the employer's policies regarding the FMLA." 29 C.F.R. § 825.301(a)(l). If the employer does not provide such a handbook, such information must be provided when an employee requests leave. 29 C.F.R. § 825.30l(a)(2). Moreover, each time the employee requests leave, the employer must, within a reasonable time thereafter-"one or two business days if feasible," "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." 29 C.F.R. § 825.301(b)(l), (c). This specific notice must include, among other things, whether "the leave will be counted against the employee's annual FMLA leave entitlement," 29 C.F.R. § 825.301(b)(l)(i), and "the employee's right to restoration to the same or equivalent job upon return from leave," 29 C.F.R. § 825.301(b)(l)(vii). Conoshenti v. Public Service Electric and Gas Co., 364 F.3d 135, 142 (3d Cir. 20t)· Defendant argues that summary judgment should be granted because any prejudice that I I Plaintiff suffered was his own fault for not timely submitted paperwork that wouldihave provided I I him with 52 weeks of leave, longer than the 12 weeks offered by the FMLA. Defeq.dant explains that under the FMLA, damages are only available for loss of "any wages, salary, e*1ployment I benefits, or other compensation denied or lost to such employee by reason of the violation." 29 U.S.C. § 2617(A)(i)(I) (emphasis added). Defendant claims that, because of this "tjy reason of' I I language, an employee must show that the FMLA violation was the proximate cause of his damages. See Breedon v. Novartis Pharms. Corp., 714 F. Supp. 2d 33, 35-36 (D.olc. 2010); I affirmed Breedon v. Novartis Pharms. Corp., 646 F. 3d 43, 49 (D.C. Cir. 2011). , Defendant asserts that Saker's alleged failure to provide him specifically dlsignated FMLA paperwork is not the proximate cause of Plaintiffs damages. Saker's benefit manager, I Summers, testified that on September 24, 2013, because plaintiff had been out of work for 7 days I or more, Plaintiff was automatically sent an "out of work" packet consisting of teJporary I disability paperwork and an FMLA return to work medical certification form. (DSOF 54). 6 Plaintiff previously admitted receipt of this ''out of work packet" form, and the evidence I indicates that it was timely received by Plaintiff. (DSOF 18-19, 71, 84-89). If completed this packet, he would have been able to receive the 52 week union leave I (DSOF 18, 54-55, 71). Plaintiff previously admitted to having received the "out of work" packet, discussed it with Summers, and had his physician fax in portions of the completed I paperwork on October 2, 2013, according to Defendant. (DSOF I 18-19, 55-58, 7l). Plaintiff I did submit all of the required paperwork by November 29, 2013, but this was after termination i had been finalized. (DSOF 84). This paperwork was dated October 2, 2013, that Plaintiff completed this earlier but had failed to submit it to Saker, according to oJendant. I I (PSOF . I 85-86). i In support of Defendant's argument, Summers testified that there is not really any difference between the medical certification form from the disability paperwork had sent him I and the medical certification form from FMLA paperwork. Summers Dep., 113: i I However, Plaintiff disputes most of these facts. In Summers' deposition, it fwas asked: "So you are saying in 2013 you did not send a certification of health care provider !form to Mr. I Velcko for 2013 ?" She said she did not. The next question was: "You only sent the short term disability health care provider information?" She said that was "correct." MoreovJ, Summers could not recall whether she sent Velcko "any type of Family Medical Leave Act information in 2013." Summers Dep. 27: 6-18. The packet that she sent did not include the FMqA. form, she I said. Summers Dep. 68: 7-12. In her deposition, Summers agreed that the "short I disability ... papers don't inform Mr. Velcko of his FMLA rights ... " Summers DeJ. 82:21-83:2. When Summers spoke on the phone with Velcko, she did not recall advising him if I his FMLA rights; she only requested that he complete the medical certification to excuse his jabsence. I I I 7 ! 89:21-90:7. Finally, Summers admitted that she did not "actually inform Mr. of his I FMLA rights in September or October of2013." 115:5-8. She said that it was "per?aps an i oversight" that Saker did not notify him of his FMLA leave rights. Summers Dep. 114:20-115:4. I Similarly, Moroney, the VP of HR, testified that nobody had sent Velcko any type bf FMLA I paperwork around this time. Maroney Dep. 37:7-10; 99:3-6. I The Court finds that there are material issues in dispute as to whether PlainLf received I adequate notice that these disability forms would result in his FMLA benefits. In Statement of I I Facts, Defendant asserts that "In order to obtain this 12 month/52 week unpaid leave, an I employee need only complete the temporary disability paperwork with medical I ("Out of Work packet") provided to employees. (DSOF, 18). Moreover, "This packet is automatically sent to employees who have been absent for 7 straight 19). Defendants have not explained why an employee would be aware that of Work ... " (DSOF the infonnation from the Out of Work packet would afford such leave. It is undisputedl that Plaintiff confirmed receipt of the Saker Employee Manual. (DSOF 13). It is also undisputld that the I manual devotes six pages to the FMLA and states that an employee may receive thpse benefits. (DSOF, 15). ! First, an employee handbook "can only satisfy the FMLA's general notice iequirements." Lupyan v. Corinthian Colleges, Inc., 761 F. 3d 314, 319 (3d Cir. 2014). Second, th¢ Out of Work packet says that "an employee must request a family leave from the Company the form I provided." Ex. 10 to Burd Cert., at 29. But this form is not included in the exhibit certification, so the Court cannot tell whether it is the same form sent to Plaintiff. Defendant's 1tatement of Facts also claims that "all of the information required within Saker's FMLA paperork is essentially the same as the information required within the Out of Work packet." (DSOF, 22). I I I I 8 ! I I But this is not evident by comparing the forms. The Out of Work Packet, provided Ito the Court, requires Plaintiff to fill out information related to his disability, but it does not explain what his I rights are. See Ex. 12 to Burt Cert. In contrast, the FMLA paperwork explains Plaihtiffs rights and responsibilities. Ex. 13 to Burt Cert. The information provided to Plaintiff not have been sufficient to apprise him of his rights under the FMLA. i Defendant also asserts that if Plaintiff had requested and received his FMLt leave, he would still have been subject to termination since his leave would have been exhatisted before he rlf ! was eligible to return to work. According to the Department of Labor regulations, the employee is unable to perform an essential function of the position because of a pqysical or I mental condition, including the continuation of a serious health _condition or an injhry or illness also covered by workers' compensation, the employee has no right to restoration tJ another I position under the FMLA." 29 CFR §825.216(c); see also Colbeburn v. Parker HJnnifin/Nichols Portland Div., 429 F.3d 325, 332 (I st Cir. 2005). Here, Plaintiff was absent I 00 days in less than I 0 months. (DSOF ,, 121-1126). This I exceeds the 12 weeks (84 days) provided by FMLA leave. Defendant claims that the doctor's note, which he provided to Saker on January 28, 2014 that cleared him to return tolwork on I November 22, 2013 (an absence of only 79 days), was not created until December[13, 2013, so Plaintiff could not have returned to work prior to that date. (DSOF 97-98). DefJndant substantiates this statement by providing a doctor's note saying that Velcko was seen on November 6, 2013, and that from September 14 through November 21 he was this doctor's I care and unable to perform his work. The note, dated December 13, 2013, says he ithat Velcko improved and may return to work. Ex. 21 to Burd Cert. However, in his deposition, Dr. Keller - I said he had not seen Plaintiff since November 6, Burd. Cert., Ex. 23; Keller Dep., 30:6-20. But 1 : 9 I this seems to contradict with the Defendant claims that backdated fitness-for-duty 1ertifications are insufficient under FMLA regulations. Burkett v. Bealieu Group, LLC, 382 F. sJpp. 2d 1376 (N.D. Ga. 2005). Moreover, according to Defendant, several witnesses testified that Plaintiff was i told to bring medical documentation with him to the Union/Shaker meetings on 2013, but he did not do so. (PSOF 26, 78-83). i However, a different note was electronically signed by Dr. Keller on 6, 2013. i I It says that he saw Velcko in his office that day, and he provided a return to work qate of I November 21, 2013. Ex. Y to Plaintiffs motion. If anything, Dr. Keller's compared with his notes presents a question of material fact on whether Velcko would be suJject to i if he had received proper FMLA leave. It is not clear exactly whdn Velcko could return to work. For these reasons, Defendant's motion for summary judgment on the FMLA claim is DENIED. II. NJLAD-discrimination/hostile work environment Defendant also seeks summary judgment on Plaintiffs NJLAD claims for I I discrimination/hostile work environment, failure to accommodate, and retaliation. 1To make out a claim for hostile work environment, a plaintiff must establish that the conduct "( 1)/ would not I have occurred but for the employee's protected status, and was (2) severe or enough to make a (3) reasonable person believe that (4) the conditions of employment have and that the working environment is hostile or abusive." Shepherd v. Hunterdon I altered Ctr., 174 N.J. 1, 24. The court should base its analysis on the "reasonaple person"!standard, and not rely on plaintiffs "subjective response" to the harassment or the defendant's i ! intent." Cutler v. Dorn, 196 N.J. 419, 431 (2008). 10 [ i I New Jersey courts have held that "[a] hostile work environment discriminaJion claim cannot be established by epithets or comments which are 'merely offensive."' Heit1man v. I Monmouth County, 321 N.J. Super. 133, 147 (App. Div. 1999). The NJLAD is intended to i be a 'general civility code' for conduct in the workplace ... Discourtesy or rudenes!s should not I be confused with ... harassment. Thus, 'simple teasing,' offhand comments, and isolated incidents (uflless extremely serious) will not amount to discriminatory changes in the 'terms land I I conditions' on employment." Id; see also Grubb v. Garbutt, 2010 WL 3516857, atl*6 (NJ. App. I Div. Sept. 3, 2010); Herman v. Coastal Corp., 348 NJ. Super. 1, 21 (App. Div.), ckrt. denied, 174 N.J. 363 363 (2002). Plaintiff claims that he was ridiculed because of his health condition, being called names and having other employees bet on when he would return to work. Velcko was dirfcted each night by Eric Boston (night crew chief), who was overseen by William Perry (grocery manager). I The highest person in charge of Plaintiffs location at nights was Thomas Chamra,1 Assistant I - Store Manager, who oversaw Velcko, Boston, and Perry. Rachel Hollander was Velcko's instore HR manager. The overall store manager responsible for everyone was JameslBoles. (PSOF I 11 ). Plaintiff claims that he was subject to discriminatory comments, which start¢d to occur multiple times per week in 2013. (PSOF ii 12). He claims that Boston repeatedly him i "Family Leave Larry" in front other employees, would tell new employees to ask family Leave I I Larry for the time off rules, and joked about betting when Velcko would call out sick, among ! other similar comments. These comments allegedly occurred two or three times a f'eek in 2013. Perry allegedly made two discriminatory remarks to Velcko about Plaintiff always being sick, I humiliated Velcko in front of others and told· him at one point in 2013 to look wh6se back, and I asked how long would he be out this time. Hollander allegedly refused to shake Vlelcko's hand in 11 I! . May 2013 by pulling away, and saying not to touch her, because she was afraid of c/atching what I he had. (PSOF 13). I Plaintiff says that he complained in February 2013 about Boston's comments and again in the summer of 2013 about discriminatory comments from Boston and Perry. (PSrF 14). Velcko allegedly complained to Boston, to Lynn Fine (Defendant's Bookkeeper), Joe Adamack, I . (Defendant's Inventor Manager), Chamra, Hollander, and Allen Karpf (another miager). Velcko allegedly expressed concerns about Perry and Boston's comments to Chamra on at least six occasions between February and the Summer of2013. (PSOF 15). Boston alllgedly I continued to make discriminatory comments until Velcko was terminated. (PSOF 16). I I I Defendant contends that no witness has corroborated any of these claims. (IDS OF 30). • I : Defendant explains that Saker's Employee Manual requires that an employee "whd feels I ) discriminated against should report such incidents to their supervisor or Human R,sources." I (DSOF if 31 ). Defendant claims that Plaintiff never made such claims about reporting . I b") when he discriminatory comments by Boston to the Equal Opportunity Commission ("EEo 1 filed a claim there shortly after his termination. (DSOF 33). In the EEOC action, Plaintiff claimed that he only reported one incident involving discrimination-he reported this incident, I involving his supervisor Perry, to Lynn Fine, Joe Admak, and Alan Karpf. 38). Also, ! when asked about his treatment by Chamra, Plaintiff said at his deposition that Chamra's 1 treatment of him had been ''fair." (DSOF if 34). Chamra denied that Plaintiff ever complained to him about disparaging or discriminatory comments. (DSOF 35). Plaintiff also said at deposition that Boston's discriminatory comments began in 2011, but his EEOC alleges that these comments did not begin until 2013. (DSOF if 36). Plaintiff at his i deposition that he waited two years before raising complaints about comments by his col i 12 I I I I workers, and he never followed up or bothered to contact human resources after allegedly I complaining to Karpf. (DSOF irir 37, 39). Plaintiff alleges that Perry called him a "liar," was I hostile, degrading and complained that Plaintiff was always sick. (DSOF ir 42). WhHe Perry confirmed that he called Plaintiff a liar, he denied having made derogatory docume:pts toward i Plaintiff or discriminating against him. (DSOF ir 44). Furthermore, in his depositiort, Plaintiff said that he liked being at the Bound Brook store. (DSOF 103 ). He also failed to Jeport harassment or discrimination during any of the three meetings with Saker and the UFCW. (DSOF ir 104). I Although Plaintiff disputes the accuracy of some of these statements, the I finds that I I Plaintiffs allegations do not rise to the level of a hostile work environment claim. cannot be I said that the comments made by the other Saker employees were severe or enough for I a reasonable person to believe that they caused a change in the terms and conditiods of I employment. See Lehmann v. Toys R. Us., Inc. 132 N.J. 587, 612 (1993). Despite the comments, I Plaintiff admits that he wanted to return to the Bound Brook location. (DSOF ir 103 ). Even I I I though Chamra did not do anything to address Plaintiffs complaints to him, said that Chamra treated him "fairly." (DSOF ir 34). Plaintiff also admits that he never contacted human I i resources about his concerns. (DSOF ir 39). While Plaintiff claims that he testified !that he [ specifically complained to Hollander, the highest manager of HR in Velcko's location, he later retracted this statement. (See Plaintiffs Ex. MM, Velcko Dep., 95:22-96:4). For reasons, ,i Defendant's motion for summary judgment is granted on the hostile work environment claim. . I III. NJLAD: failure to accommodate Defendant also argues that Plaintiff cannot meet the elements of a failure accommodate claim. Under the NJLAD, Plaintiff must show that "(l) [he] was tb and [his] I I I 13 I I I I i employer knew it; (2) [he] requested an accommodation or assistance; (3) [his] did not make a good faith effort to assist; and (4) [he] could have been reasonably accomm&dated. Bertoletti v. AutoZone, Inc., 132 F. Supp. 3d 590, 601-02 (D.N.J. 2015) citingArms;trong v. I Burdette Tomlin Mem. Hosp., 438 F.3d 240, 246 (3d Cir. 2006). j i When an employee asks for an accommodation, the employer must "engag1 the employee in the interactive process of finding accommodations." Armstrong, 4381.3d at 246. "If an 'employee could have been reasonably accommodated but for the employer's lack of good faith,' the employee will win on his failure to accommodate claim." Id. "Employerl can show their good faith in a number of ways, such as taking steps like the following: meet rth the employee who requests an accommodation, request information about the condition and what limitations the employee has, ask the employee what he or she specifically wants, lhow some sign of having considered [the] employee's request, and offer and discuss availablj alternatives when the request is too burdensome." Id. Any request that makes clear to the *603 employer that the employee seeks an accommodation is sufficient to trigger the employer's obligition to engage in the interactive process. Bertolotti, 132 F. Supp. 3d at 602-03. I I First, Defendant claims that Plaintiff never made a request for an I Second, Defendant asserts that there is sufficient evidence to establish that was provided an accommodation. According to Defendant, Velcko received the paperwork to ofutain 52 weeks of unpaid leave, he admitted to having the paperwork, he discussed the paperworK: with Ms. Summers, and his physician faxed portions of the completed paperwork on Octob:er 2, 2013. (DSOF 18-19, 55-58, 71, 84-86). In opposition, Plaintiff argues that Velcko was denied federally protected )eave under the ! FMLA, meaning he was denied a reasonable accommodation. Management was aware of I 14 I Velcko's ongoing health problems. Human resources admitted knowing that ADA Lquires . I . accommodations of medical time off from work. Maroney Dep. 26: 5-8; Summers Pep. 35: 19, I 22. Maroney testified that he would not proactively meet with Velcko to discuss I I for a company that has 8,000 employees. Maroney Dep. 132:6-18. I As stated in the FMLA leave section, it appears that there are several material issues of facts on the issue. As Plaintiff notes, courts have considered certain leaves of absJce to be a I reasonable accommodation. "[T]he federal courts that have permitted a leave of as a I i reasonable accommodation ... have reasoned ... that applying such a reasonable acctjmmodation at the present time would enable the employee to perform his essential job functions fo the near I I future." Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135, 151 (3d Cir. 2904). At this • I point, the details are still nebulous about what occurred between September and N<l>vember of I 2013. Defendant claims that the company provided documents that, if Velcko signed, would I I have provided him with a more generous leave of absence. However, it appears th*t Velcko may I never have been aware of the implications of the forms in his possession. Further, Maroney testified that he was not going to meet with Plaintiff to discuss accommodation when he I i had to oversee 8,000 employees. The Court cannot say for certain that there was appropriate interactive process, and will deny summary judgment on this issue. IV. i NJLAD-retaliation i Defendant also seeks summary judgment on Plaintiff's NJLAD retaliation To establish a prima facie retaliation claim under the NJLAD, a plaintiff must establish that "(l) that I [he] engaged in a protected activity; (2) that [he] suffered an adverse employment! action; and (3) I I that there was a causal connection between the protected activity and the adverse employment action." Davis v. City of Newark, 417 F. App 'x 20 I, 202 (3d Cir. 20 JI). Once a plma facie case 15 I for retaliation is established, the burden of production shifts to the ·employer to artibulate a legitimate reason for the adverse employment action. Gaines v. United Parcel Inc. 2014 WL 1450113, at *4 (D.N.J. Apr. 14, 2014). "Plaintiff must then show that a retaliatory intent, not I I the proffered reason, motivated defendant's actions." Id. (internal citations omitted}. In addition, I a plaintiff can only recover where a complaint was made with a "good faith belief ihat the I conduct complained of violates the NJLAD." Battaglia v. United Parcel Serv., Incl, 214 N.J. I I 518, 549, 70 A.3d 602, 620 (2013). I Defendant claims that Plaintiff cannot meet the prima facie burden there is no evidence establishing a causal link between Plaintiffs complaints and any adverse! employment I action. Plaintiff purportedly engaged in a protected activity by making verbal comblaints to his I supervisor, Chamra, and by·sending a written statement to Alan Karpf. In response, he claims . I that he was preliminarily suspended/terminated. Defendant claims that there is no that Chrunra or Karpf played any role in the acts of retaliation, because neither had anJ authority to take these adverse employment actions. (DSOF 70, 4, 12). These decisions are made at I the corporate level, according to Defendant, and there is no evidence that Plaintiff ,complained to corporate HR. (DSOF 4, 12). i I Even if Plaintiff could make out a prima facie case, V elcko cannot establisp that the i adverse action was a pretext, according to Defendant. This is because Plaintiff didlnot communicate with Saker for weeks before learning of his suspension pending in I violation of the Saker policy to personally keep the Store Manager on duty informed if absent for ! i more than one day, and keep him apprised of the expected date of return. (DSOF 63). Plaintiff admitted that he was aware of this policy, and he followed this policy during his first month of absence. (DSOF 1165, 50-56). The last doctor's note said that Plaintiff would be lieared to . I I 16 I i return to work on October 13, 2013. (SOF 56). However, Plaintiff failed to return tb work on that date and failed to advise his union representative of his status through November 6j 2013, the I date Plaintiff learned of his suspension pending termination, according to Defendarlt. (DSOF I 59, 73). Plaintiff asserts that that Saker's policy was not actually implemented. allegedly never had to call in when on medical leave in 2011 or when hospitalized in other sAuations. i Velcko Cert. 3, Ex. KK to Plaintiffs Opposition Motion; Summers Dep. 29:4-11 t Hollander I Dep. 26: 6-13; 32: 12-23; 33: 1-2. There appears to be a material question as to I Defendant had an informal policy of allowing employees to submit their physician ts notes upon returning to work. There also appears to be a material question as to whether PlainJiff spoke to I the night manager on October 14, 2013 to say he was being admitted to the sure when he would be able to return. If this is true, a reasonable jury could find and was not Plaintiff did properly notify Saker, and that Saker's reason for terminating Plaintiff was pretexthaL Therefore, Plaintiff's motion for summary judgment as to the retaliation claim is denied. V. I Liquidated damages I Finally, Defendant seeks dismissal of Plaintiffs request for liquidated The I FMLA allows for liquidated damages for violations equal to wages, salary, emploxment benefits I or other compensation denied or lost to such employee because of the violation. 21 U.S.C. 2617(a)(l)(A)(iii). The FMLA provides that these damages will not be awarded i violation was in good faith and that the employer had objectively reasonable grounds to belileve that the act or omission did not violate the FMLA. Id. Defendant contends that Plaintiff was provided documentation that would have allowed I I him to receive 52 weeks of unpaid leave; if anything, Velcko was simply not provided the - 17 I specific FMLA forms. If Plaintiff timely submitted these fonns he would have obtdined a more i I generous leave than the FMLA provides, so any violation was in good faith. As it has already determined that there are triable issues of material fact . the Court denies liquidated damages at this point. ORDER For the reasons stated herein and for good cause shown, I IT IS on this 3 1' r day of August, 2016, hereby ORDERED that Defendant's Motion for Summary Judgment [ECF No. I is i GRANTED IN PART and DENIED IN PART as follows: I Defendant's motion for summary judgment is GRANTED on the NJLAD work ! environment claim, and that claim is dismissed; and Defendant's motion for summary judgment is DENIED as to all other I I PETER G. SHERIDAN, U.S.D.J. 18
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