Opinion
CIVIL ACTION NO. 99-1282 (JBS).
August 18, 2000.
Mark Cimino, Esq., Deptford, N.J., Attorney for Plaintiff.
Stefanie W. Kohen, Esq., Litter Mendelson PC, Morristown, N.J., Attorney for Defendant.
O P I N I O N
In this wrongful termination case, plaintiff Michael J. Hess claims that his former employer Petro Heat and Power (Petro) fired him in contravention of the federal Family Medical Leave Act (FMLA), 29 U.S.C. § 2601, et seq., and the New Jersey Law Against Discrimination (NJLAD), N.J.S.A 10:5-1, et seq. Presently before the Court are the parties' cross-motions for summary judgment pursuant to Rule 56, Fed.R.Civ.P. Defendant's motion seeks summary judgment against all claims and plaintiff's cross-motion seeks to establish as a matter of law that defendant's actions did not comply with the FMLA. The main issue to be resolved is whether plaintiff, who suffers from "Irritable Bowel Syndrome", a gastrointestinal disorder characterized by painful gas and loss of bowel control, has created a genuine issue of material fact as to (1) he suffered from a "serious health condition" for FMLA purposes, and (2) whether he ever requested FMLA leave from his employer. For reasons discussed herein, the Court finds that plaintiff has not created a triable issue as to whether he is entitled to the FMLA's protections, and will enter summary judgment against all FMLA-related claims. Because summary judgment is entered against plaintiff's sole federal cause of action, the Court will decline to exercise jurisdiction over the remainder of the complaint, and this case will be remanded to the state court from which it was removed pursuant to 28 U.S.C. § 1367(c)(3).
BACKGROUND
In 1986, plaintiff began working as a service technician for Consumer Oil. In 1989, Consumer Oil was acquired by defendant Petro, and plaintiff worked as a service technician at Petro's Camden facility until his termination from employment in July 1998. (Hess Dep. at 8:21 to 9:17.) Plaintiff's employment with Petro was at will, and he was not represented by a union. (Id. at 13.)
In or about May 1998, Mr. Hess began to experience acute gastrointestinal problems which caused him to suffer from painful gas and periodic loss of bowel control. (Id. at 24:7-15.) The problem became serious enough that plaintiff soiled himself on a number of occasions. Plaintiff maintains that he spoke about his gastrointestinal problems with his field supervisor John Fletcher on two occasions, and once told him that he had soiled himself on the job. (Id. at 38:12-16.) Plaintiff states that on that one occasion Fletcher told him to go home to clean himself up and to do what it took to get back to work. There is no indication that Fletcher understood the incident to be anything other than an isolated incident. (Id. 40:15-21.) Plaintiff cannot recall any other statements he made to his supervisors that would have made them aware of a medical problem. (Id. 39:11-20.)
In or about June 1998 plaintiff saw his family doctor, who referred plaintiff to a gastroentronologist. (Id. at 21:11-12.) Plaintiff asked for and received authorization to take time off from William Barber, assistant service manager. On July 1, 1998, plaintiff saw the gastroentronologist to discuss his on-going problems, and was in the doctor's office for approximately two-and-a-half to three hours. The gastroentronologist scheduled plaintiff to return for a colonoscopy on July 29, 1998. (Id. at 24:4-5.)
About one week before this procedure was to be performed, plaintiff informed his supervisor, assistant service manager William Barber, that he needed to take time off to have the colonoscopy. During the week preceding the procedure, plaintiff also went in for pre-operative tests, including blood work and an EKG. These pre-operative tests required plaintiff to miss approximately an hour-and-a-half of work. (Id. at 23:10-13.)
After the colonoscopy, plaintiff again went back to the gastroentronologist, at which time the doctor told him the results were incomplete and that an endoscopy was required. Blood was again drawn, and the endoscopy scheduled for sometime in August 1998. (Id. at 25:18-19.) After the endoscopy was performed, plaintiff was informed that he suffers from Irritable Bowel Syndrome (IBS), a chronic gastrointestinal disorder treated primarily with over-the-counter medications such as Pepto-Bismol and improvements in diet. (Id. 26:8 to 28:17.)
As delineated above, plaintiff was fired from his job in July 1998, even before he found out that he suffered from IBS in August 1998. The events leading to plaintiff's dismissal began on Thursday, July 23, 1998. On that day, Petro branch service manager David Maier checked up on plaintiff at his work site at a home on King Street in Woodbury, N.J. at 3:50 p.m. and learned that plaintiff had already left for the day. Maier states that he randomly chose to check up on plaintiff, and that his decision to do so was not motivated by any particular suspicion of plaintiff's work habits. Maier suspected that plaintiff had left the site earlier than reported. This suspicion was later confirmed when plaintiff reported that he did not finish at the King Street site until 4:30, some 40 minutes after the time Maier noted that plaintiff was no longer at the site. (Service Ticket, Davison Cert. Ex. 3.) Plaintiff replies that, on account of his IBS, he left the King Street site to use restroom facilities off-site. (Hess Dep. at 70:10 to 71:5.)
Rather than immediately questioning Mr. Hess about what happened, Maier continued to surveil plaintiff and on Friday, July 24, 1998 twice more observed plaintiff leaving job sites early. (Maier Dep. 23:23 to 25:25.) On Monday, July 27, 1998, Maier, accompanied by Petro Branch Manager Jeffery Woosnam, again observed plaintiff leave a customer's house about one hour earlier than he later reported on the Service Ticket. (Maier Dep. at 19-33; Service Ticket, Davison Cert. Ex. 6.) Plaintiff asserts that he had left the house at the time Maier and Woosnam came by, but later returned to the house after relieving himself. (Hess Dep. at 80:11-12.) The final incident came in the afternoon of Monday, July 27, 1998, when Maier asked Mr. Barber to go observe plaintiff at his job site. Mr. Barber went to plaintiff's work site at 3:50 p.m. and found that plaintiff had already gone. Plaintiff the next day reported that he had not completed the job until 4:30 p.m. (Maier Dep. at 33-34; Service Ticket, Davison Cert. Ex. 9.)
On Tuesday, July 28, 1998, Woosnam and Maier held what they intended to be a termination meeting with plaintiff. At this meeting, Woosnam confronted plaintiff with documentation of plaintiff's falsification of time reports. In reply, plaintiff informed Woosnam and Barber for that he suffered from a bowel problem, was being treated by a specialist for this problem, and that this condition had caused him to take unauthorized leave from work sites up to 15 times. Maier states that this was the first time he had heard of an alleged bowel problem. (Maier Dep. at 38:22.) Based on plaintiff's representation that he suffered from a medical condition, Woosnam decided that rather than terminate plaintiff outright, as he had originally intended, he would suspend plaintiff pending further inquiry. (Id.)
After the meeting with plaintiff, further discussions between Woosnam, Maier, Barber and Fletcher, revealed that plaintiff had never before revealed to them that he felt that he had a serious medical condition and that none of plaintiff's supervisors were aware of such a condition. The only direct knowledge that any of plaintiff's supervisors had of plaintiff's bowel problems were plaintiff's request to Barber that he be given time off for unspecified medical tests in July 1998, and plaintiff's comments to Fletcher that he had an occasional problem controlling his bowels. (Maier Dep. at 41; Barber Dep. at 30; Fletcher Dep. at 40.)
Under the personnel policies of both Petro and its predecessor, Federal Oil, employees are prohibited from falsifying records. (See Federal Oil Policy Manual at 1, Davison Cert. Ex. 15; Petro Corporate Policy at 3, Davison Cert. Ex. 16.) Petro policy also states that falsifying time records "will result in the termination of employment." (Petro Timekeeping Policy, Davison Cert. Ex. 17.)
Based on his determination that plaintiff had willfully violated company policies against falsifying time sheets and had never before requested accommodation for any alleged disability, Woosnam decided that plaintiff should be terminated from employment at Petro. Plaintiff was so informed by letter dated July 29, 1998. (Termination Letter, Davison Cert. Ex. 13.)
Plaintiff filed suit in New Jersey Superior Court on December 3, 1999. In his complaint, plaintiff alleges that in connection with his termination defendant discriminated against him based on his handicap in violation of the NJLAD (Counts I II), breached its contractual obligations to plaintiff (Counts III IV), violated plaintiff's rights under the FMLA (Count VI), committed fraud (Count V), and intentionally inflicted emotional distress upon plaintiff (Count VII). Defendant removed to this Court on the basis of federal question jurisdiction over plaintiff's FMLA claim in Count VI pursuant to 28 U.S.C. § 1331 1441(b). (Notice of Removal Dated March 17, 1999.)
DISCUSSION
A. Summary Judgment Standard
Presently before the Court are the parties' cross-motions for summary judgment. A court may grant summary judgment only when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In deciding whether there is a disputed issue of material fact the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir. 1996); Kowalski v. L F Prods., 82 F.3d 1283, 1288 (3d Cir. 1996); Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n. 2 (3d Cir. 1983), cert.denied, 465 U.S. 1091 (1984). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
Supreme Court decisions mandate that: "[w]hen the nonmoving party bears the burden of persuasion at trial, the moving party may meet its burden on summary judgment by showing that the nonmoving party's evidence is insufficient to carry its burden of persuasion at trial." Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-330 (3d Cir. 1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1987)). However, "the nonmoving party creates a genuine issue of material fact if it provides sufficient evidence to allow a reasonable jury to find for him at trial." Brewer, 72 F.3d at 330 (citing Anderson, 477 U.S. at 248). Once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts."Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Thus, if the non-movant's evidence is merely "colorable" or is "not significantly probative," the court may grant summary judgment.Anderson, 477 U.S. at 249-50.
The standard by which the court decides a summary judgment motion does not change when the parties file cross-motions. Weissman v. United States Postal Service, 19 F. Supp.2d 254 (D.N.J. 1998). When ruling on cross-motions for summary judgment, the court must consider the motions independently, Williams v. Philadelphia Hous. Auth., 834 F. Supp. 794, 797 (E.D.Pa. 1993), aff'd, 27 F.3d 560 (3d Cir. 1994), and view the evidence on each motion in the light most favorable to the party opposing the motion, see Matsushita, 475 U.S. at 587.
B. The Sufficiency of Plaintiff's FMLA Claim
The FMLA, 29 U.S.C. § 2601, et seq., was enacted in 1993 to provide leave for workers whose personal or medical circumstances necessitate leave in excess of what their employers are willing or able to provide. Victorelli v. Shadyside Hosp., 128 F.3d 184, 186 (3d Cir. 1997) (citing 29 C.F.R. § 825.101).
In order to survive defendant's summary judgment motion against his FMLA claim, plaintiff must create a genuine issue as to whether (1) he is an eligible employee under the FMLA, as defined in 29 U.S.C. § 2611(2) (at least twelve months' employment); (2) defendant is an employer under the FMLA, as defined in 29 U.S.C. § 2611(4) (at least 50 employees); (3) he was entitled to leave under the FMLA, as defined in 29 U.S.C. § 2612(a)(1); (4) he gave notice to the defendant of his intention to take FMLA leave, as defined in 29 U.S.C. § 2612(e)(1) and 29 C.F.R. § 825.302-.303; and (5) the defendant denied him the benefits to which he was entitled under the FMLA . Spurlock v. NYNEX, 949 F. Supp. 1022, 1033 (W.D.N.Y. 1996); Belgrave v. City of New York, 1999 WL 692034, *44 (E.D.N.Y. Aug. 31, 1999), aff'd 216 F.3d 1071 (2d Cir. 2000).
The parties do not dispute that plaintiff is an eligible employee, nor that Petro is a covered employer. They depart company, however, over whether plaintiff was entitled to FMLA leave as defined in 29 U.S.C. § 2615, and whether he ever requested FMLA leave as defined in 29 U.S.C. § 2612(e)(1) and 29 C.F.R. § 825.302-.303. The court will address these issues in turn.
1. Whether Plaintiff was Eligible for FMLA Leave
The parties' first point of contention is whether, during the time period leading up to his firing, plaintiff suffered from a serious health condition that qualified him for FMLA protections. Plaintiff contends that the onset of his bowel problems in May or June 1998 created a serious health condition, and that he defendant should have accommodated his need to take frequent work breaks so that he could relieve himself. Defendant replies that plaintiff never reported to his managers that he suffered from a serious medical problem, and that he never requested accommodation prior to his firing, thus the protections of the FMLA do not apply.
Pursuant to the FMLA, 29 U.S.C. § 2654, the Secretary of Labor has promulgated regulations at 29 C.F.R. part 825 which provide guidance in interpreting the FMLA. Relevant portions of part 825 provide that a serious health condition is one that involves (1) inpatient care or (2) "continuing treatment" in connection with a chronic incapacity. 29 C.F.R. § 825.114(a).
Plaintiff here characterizes his condition as one requiring "continuing treatment". Part 825.114(a)(2) explains that continuing treatment can fit into one of five different categories: (1) inability to work for at least three days; (2) pregnancy; (3) any period of incapacity due to a chronic serious health condition that requires periodic visits to a health care provider over an extended period; (4) untreatable long-term incapacity; and (5) a period of absence to recover from multiple treatments. 29 C.F.R. § 825.114(a)(2)(i)-(v).
In this case, plaintiff asserts that his treatment for his bowel disorder qualifies as continuing treatment under categories one ((a)(2)(i)) and three ((a)(2)(iii)) above. (Pl. Br. in Opp'n to Def. Mot. at 28.) Thus, plaintiff asserts that he was incapacitated either because he missed three days of work, or suffered from a chronic serious health condition requiring periodic visits to a health care provider over an extended period.
The Court first considers plaintiff's claim under (a)(2)(i). In order to survive defendant's motion as to this claim, plaintiff must adduce evidence that continuing treatment of his illness caused him to miss three days' work.
The undisputed facts of this case are that plaintiff did not miss more than a a few hours of work due to his bowel problems, well short of the three days' absence required under (a)(2)(i). The Court disagrees with plaintiff that it is relevant whether plaintiff would have missed three days work had he not been fired. (See Pl. Br. in Opp'n to Def. Mot. at 28.) First, such argument is speculative and immaterial, and thus is inadequate to create a genuine issue of fact. See Matsushita, 475 U.S. at 587. Second, even if plaintiff's medical condition might have caused him to miss work but for his termination, plaintiff's treatment only qualifies as FMLA "continuing treatment" if it caused him to miss three days of actual work time. An illness that worsens after termination does not give rise to the inference that an employee was incapacitated while still working. See Bauer v. Dayton-Walther Corp., 118 F.3d 1101, 1112 (6th Cir. 1997). Here, plaintiff does not dispute that he missed at most four-and-a-half hours of work for treatment. Further, none of his excused absences and false reports of time on the job relate to a date when he was visiting a medical provider. Because plaintiff has not adduced evidence showing that continuing treatment caused him to miss three days' work, his claim under (a)(2)(i) fails.
The Court next turns to consider plaintiff's claim of chronic and/or episodic incapacity under (a)(2)(iii). In order to survive defendant's motion on this claim, plaintiff must point to evidence showing that suffered from a chronic serious health condition. A chronic serious health condition is one which may cause episodic incapacity and which requires periodic visits for treatment by a health care provider over an extended period. 29 C.F.R. § 825.114(a)(2)(iii).
The facts of this case show that plaintiff did go in for periodic visits to his health care provider in order to treat his bowel problem. However, it is not apparent that plaintiff's visits to his health care provider continued over a long period of time. Plaintiff experienced the onset of his IBS in May or June 1998. He first saw his family doctor in June 1998, who referred him to see a specialist on July 1, 1998. Plaintiff saw the specialist on that day, and was scheduled to come back for a colonoscopy on July 29, 1998. Plaintiff also underwent pre-operative testing prior to July 29th. At most, then, the record shows that plaintiff's continuing treatment for his bowel disorder before his termination spanned two months in 1998. Because the Court must at this stage grant all favorable inferences to the plaintiff as non-movant, however, the Court will assume that this two month period of visits to the doctor falls within the definition of continuing treatment for a chronic episodic incapacity as defined by (a)(2)(iii). Cf. Victorelli v. Shadyside Hospital, 128 F.3d 184, 189 (3d Cir. 1997) (finding evidence existed that treatment for bleeding peptic ulcer fit definition of continuing treatment for chronic serious health condition).
Nevertheless, although plaintiff has pointed to evidence tending to show that he required continuing treatment for his chronic condition, this proof is immaterial. Even assuming that plaintiff suffered from a "serious health condition" as defined by 29 C.F.R. § 825.114(a)(2)(iii), plaintiff has not shown that he was fired solely for taking time off to treat his health condition. Plaintiff's admitted instances of leaving work early had nothing to do with treatment, but, assuming plaintiff's explanation to be valid, instead had to so with plaintiff's need to relieve himself. Had plaintiff needed time off in for accommodation of his health condition, it was his duty to request such leave. Plaintiff plainly understood the process for requesting time off, as evinced by his request to Barber for time off in conjunction with testing. Moreover, it is undisputed that plaintiff was fired not only for leaving his job sites early, but for falsifying his time sheets. Thus, defendant has an uncontroverted, non-illness-related ground for firing plaintiff that would not be affected by whether or not plaintiff suffered from a serious health condition for the purposes of the FMLA. Accordingly, the Court finds that plaintiff has not created a genuine issue of material fact with respect to whether his firing violated the FMLA.
Plaintiff has failed to come forward with any evidence that his supervisors fired him on pretextual grounds. The undisputed testimony of Mr. Maier is that he randomly discovered that plaintiff was leaving work early and falsifying his time records. Moreover, there is no indication on this record that Woosnam, the chief decisionmaker in plaintiff's firing, had any prior knowledge of plaintiff's medical problems until after he had already made the decision to fire plaintiff.
Furthermore, as will be explained more fully below, even assuming that the plaintiff had succeeded in creating a genuine issue of material fact as to whether he suffered from a serious health condition, plaintiff's FMLA claim fails because he never requested FMLA leave.
2. Whether Plaintiff Requested Leave Under the FMLA
As discussed above, in order to be eligible for FMLA leave an employee must actually request such leave. Spurlock, 949 F. Supp. at 1033. The burden is placed upon the employee to bring to the employer's attention the need for leave. Even in exceptional circumstances where the need for FMLA leave is not foreseeable, "an employee should give notice to the employer of the need for FMLA leave as soon as practicable under the facts and circumstances of the particular case." 29 C.F.R. § 825.303(a). While it is not necessary that the employee invoke the FMLA by name, the request must be sufficient to impart to the employer the employee's need to take time off for a serious health condition. See Manuel v. Westlock Polymers Corp., 66 F.3d 758, 762-64 (5th Cir. 1995). Except in the most extraordinary of circumstances, the employee should give notice to his employer of the need to take leave from work "within no more than one or two working days of learning of the need for leave." Id.
The undisputed facts of this case are that plaintiff never informed his supervisors of his need or intent to take medical leave on the days he left work sites early without authorization. It is true that plaintiff has presented evidence that he mentioned to Mr. Fletcher that he had a bowel problem-related accident, and that he requested that Mr. Barber give him time off for medical testing. Notwithstanding the fact that plaintiff received authorization for his scheduled treatments, he never requested time off on the days Maier observed him leave early and falsely report a full days' work. This case is not about an employee being denied a request to attend continuing treatment, but is instead about whether an employer is justified in firing an employee who took several hours off from work and then falsified time cards in order to cover up his absences. Plaintiff was terminated only after it was established that he had left job sites significantly early (not just a few minutes) on a number of occasions. These were more than momentary absences. Also, they did not occur suddenly and unexpectedly in the middle of a job, but instead after the job had been completed and before reporting to the next job or clocking out for the day, as shown by the undisputed facts of the incidents of the incidents of July 23, 1998 at 435 King Street, and July 24, 1998 at 54 Wade Avenue and 114 Reading Avenue, and July 27, 1998 at Virginia Avenue. Plaintiff never revealed these absences nor did he request such leave or makeup the significant lost time. Although plaintiff might not have been able to foresee the need to take frequent, albeit brief breaks from work to relieve himself, it was plaintiff's responsibility to inform his employer that a health condition required him to do so, and to account for his time truthfully. At that point, Petro could have determined whether or not plaintiff's bowel problems warranted an accommodation under the FMLA.
The Court rejects plaintiff's suggestion that, because defendant's brief has not referenced any evidence concerning whether defendant ever informed its employees of their rights under the FMLA, defendant is somehow "estopped" from claiming that its actions were justified because plaintiff did not request FMLA leave until after he was suspended pending termination. The record includes a 1997 letter from Petro to plaintiff concerning plaintiff's request for FMLA leave due to a back injury. That letter explicitly sets forth plaintiff's rights and responsibilities under the FMLA. (Davison Cert. Ex. 23.) This letter establishes that plaintiff previously took advantage of his rights under the FMLA, and had prior understanding of the framework of the Act. Accordingly, plaintiff's estoppel is without merit.
There is nothing on this factual record to suggest that plaintiff was unable to timely request FMLA accommodation. Plaintiff has not pointed to evidence showing that he intended to inform his employer that he had taken several hours away from work because of his medical needs. Indeed, it was only once he was confronted with evidence that he had falsified his time cards that plaintiff divulged to his supervisors that his health problems required him frequently to leave work sites for breaks.
Under these facts and circumstances, plaintiff clearly did not report to his supervisors his need for FMLA leave or accommodation as soon as practicable. See 29 C.F.R. § 825.303(a). Plaintiff only voiced his health problem-based excuse for his absences and falsifications after Petro had already determined that he should be fired. Accordingly, plaintiff's FMLA claim fails because he has not created a genuine issue as to whether he ever requested FMLA leave.
CONCLUSION
For the reasons discussed above, the Court will grant defendant's summary judgment motion and will deny plaintiff's cross-motion. The Court having entered summary judgment against plaintiff's FMLA claims in Count VI of his complaint, the Court will decline to exercise supplemental jurisdiction over the remainder of plaintiff's state law-based causes of action pursuant to 28 U.S.C. § 1367(c)(3), and will remand this case to New Jersey Superior Court, from which it was removed. The accompanying order is entered.
O R D E R
THIS MATTER having come before the Court on the parties' cross-motions for summary judgment pursuant to Rule 56, Fed.R.Civ.P., and the Court having considered the parties's submissions;
IT IS this day of August, 2000 ORDERED as follows:
1. Defendant's motion for summary judgment is GRANTED as against plaintiff's claims in Count VI of the complaint arising under the federal Family Medical Leave Act;
2. Plaintiff's cross-motion for summary judgment in favor of his FMLA claims in Count VI is DENIED ;
3. The Court declines to exercise supplemental jurisdiction over the remainder of plaintiff's complaint pursuant to 28 U.S.C. § 1367(c)(3), and the remainder of plaintiff's complaint is REMANDED to New Jersey Superior Court, Law Division, Gloucester County, Docket No. GLO-L-336-99;
4. The present opinion addresses itself only to Count VI, and it in no way affects or disposes of plaintiff's claims in Counts I-V and VII of the complaint.