Podurgiel v. Acme Markets Inc.

BRIEF in Support

D.N.J.February 15, 2018

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY GREGORY PODURGIEL Plaintiff, v. ACME MARKETS INC. Defendant. CIVIL ACTION NO: 3:16-CV-02262 PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF HIS MOTION FOR PARTIAL SUMMARY JUDGMENT By: SWARTZ SWIDLER, LLC Manali Arora, Esq. Joshua Boyette, Esq. Date: February 15, 2018 Case 3:16-cv-02262-PGS-TJB Document 52 Filed 02/15/18 Page 1 of 36 PageID: 800 ii TABLE OF CONTENTS I. FACTUAL BACKGROUND ................................................................................................... 1 II. STANDARD OF REVIEW ...................................................................................................... 6 III. LEGAL ARGUMENT .............................................................................................................. 6 a. Plaintiff was an Eligible Employee Under the FMLA because ACME was a successor-in- interest to A&P. .......................................................................................................................... 7 i.ACME meets the FMLA’s broad definition of a successor-in-interest employer. .............. 8 ii. Application of the doctrine of successorship is consistent the Third Circuit precedent with respect to other federal employment law statutes. ................................................................ 13 iii. Acme is not freed from successor-in-interest status under the FMLA and its implementing regulations by virtue of A&P’s bankruptcy or the Sale Order issued by the bankruptcy judge. ......................................................................................................................... 15 iv. As a Successor-in-Interest, Acme is liable to Plaintiff for any FMLA violations ........... 20 b. Plaintiff was entitled to a leave of absence under the FMLA and had given notice of his intention to take same. .............................................................................................................. 22 c. Acme interfered with Plaintiff’s FMLA rights when it failed to reinstate him on November 16, 2015..................................................................................................................................... 23 d. Acme’s eventual acknowledgment that Plaintiff was entitled to reinstatement cannot cure its violation of the FMLA. ............................................................................................................. 25 IV. CONCLUSION ....................................................................................................................... 29 Case 3:16-cv-02262-PGS-TJB Document 52 Filed 02/15/18 Page 2 of 36 PageID: 801 iii TABLE OF AUTHORITIES Cases Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ................................................................... 6 Bachelder v. American West Airlines, Inc., 259 F.3d 1121 (9th Cir. 2001) .................................. 27 Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728 (1981) ..................................... 18 Barrilleaux v. Thayer Lodging Grp., Inc., No. Civ. A. No. 97-3252, 1999 WL 144110, at *4 (E.D. La. Mar. 12, 1999) .................................................................................................................... 22 Brumbalough v. Camalot, 427 F. 3d 996 (6th Cir. 2005) .............................................................. 26 Brzozowski v. Corr. Physician Servs., Inc., 360 F.3d 173 (3d Cir. 2004) .................................... 14 Budhun v. Reading Hosp. & Med. Ctr., 765 F.3d 245 (3d Cir. 2014) .................................... 23, 25 Callison v. City of Philadelphia, 430 F.3d 117 (3d Cir. 2005) ..................................................... 28 Casagrande v. OhioHealth Corp. Civ. A. No. 15-3292 (6th Cir. Dec. 20, 2016) ........................ 26 Cobain v. Destination Hotels & Resorts, 2007 WL 1589533 (E.D. Cal. June 1, 2007) ................. 8 Cobb v. Contract Transp., Inc., 452 F.3d 543 (6th Cir. 2006) ............................................. 8, 9, 21 Egan v. Delaware River Port Authority, 851 F.3d 2631 (3d Cir. 2017) ......................................... 9 Golden State Bottling Co. v. NLRB, 414 U.S. 168 (1973) ............................................................ 14 Harter v. Gaf Corp., 967 F.2d 846 (3d Cir. 1992). ......................................................................... 6 Hoge v. Honda of Am. Mfg., Inc., 384 F.3d 238 (6th Cir. 2004) .................................................. 26 In Re Christ Hospital, 2014 WL 2135942 (D.N.J. Bankr. May 21, 2014) ................................... 17 In re Torwico Electronics, 8 F.3d 146 (3d Cir. 1993) .................................................................. 19 In re Trans World Airlines¸ 322 F.3d 283 (3d Cir. 2003) ............................................................. 15 James v. Hyatt Regency Chicago, Civ. A. No. 12-1511 (7th Cir. 2013) ....................................... 26 Jolliffe v. Mitchell, 971 F. Supp. 1039, 1042 (W.D. Va. 1997). ............................................... 9, 23 Case 3:16-cv-02262-PGS-TJB Document 52 Filed 02/15/18 Page 3 of 36 PageID: 802 iv Lombardo v. Air Prod. & Chemicals, Inc., No. CIVA 05-1120, 2006 WL 1892677 (E.D. Pa. July 7, 2006) ................................................................................................................................. 9, 21 Matthews v. New Jersey Inst. Of Tech., 772 F. Supp. 2d 647 (D.N.J. 2011) .................................. 7 Moore v. Czarnowski Display Service, Inc., 2009 WL 614815 (W.D. Pa. 2009) .......................... 7 O'Connor v. PCA Family Health Plan, Inc., 200 F.3d 1349 (11th Cir. 2000) ............................. 25 Osei v. Costal Intern. Sec., Inc., 69 F. Supp. 3d 566 (E.D. Va. Nov., 19, 2014) .......................... 21 Parker v. Hahnemann Univ. Hosp., 234 F.Supp.2d 478, 484 (D.N.J. 2002) ................................. 7 Pinson v. Berkley Med. Res., Inc., Civil Action No. 03-1255, 2005 WL 3210950 (W.D. Pa, 2005) ................................................................................................................................................... 28 Rego v. ARC Water Treatment Co. of Pennsylvania, 181 F.3d 396 (3d Cir. 1999) ..................... 13 Rhoads v. F.D.I.C., 956 F. Supp. 1239 (D. Md. 1997) ................................................................. 12 Sanders v. City of Newport, 657 F.3d 772 (9th Cir. 2011) ........................................................... 25 Sinacole v. iGate Capital, 287 Fed.Appx. 993 (3d Cir. 2008) ................................................. 7, 28 Slaughter v. American Bldg. Maintenance Co., 64 F. Supp. 2d 319 (S.D.N.Y. Sept. 13, 1999). . 9, 21 Sommer v. The Vanguard Group, 461 F.3d 397 (3d Cir. 2006) ................................................... 28 Sullivan v. Dollar Tree Stores, Inc., 623 F.3d 770 (9th Cir. Sept. 27, 2010) ............................. 8, 9 Thompson v. Real Estate Mortg. Network, 748 F.3d 142 (3d Cir. 2014) ..................................... 13 Throneberry v. McGehee Desha Cty. Hosp., 403 F.3d 972 (8th Cir. 2005) ................................. 25 Vanderhoof v. Life Extension Inst., 988 F. Supp 507 (D.N.J. 1997) ............................ 9, 10, 11, 12 Waiters v. Hudson County Corr. Ctr., 2010 U.S. Dist. LEXIS 108346 (D.N.J., Oct. 2010) ......... 6 Wright v. Sandestin Investments, LLC, 914 F.Supp.2d 1273 (N.D. Fl. Dec. 12, 2012) ......... 22, 23 Young v. Wackenhut, 2013 WL 435971 (D.N.J. Feb. 1, 2013) ..................................................... 28 Case 3:16-cv-02262-PGS-TJB Document 52 Filed 02/15/18 Page 4 of 36 PageID: 803 v Statutes 11 U.S.C. § 363(f) ....................................................................................................... 15, 17, 18, 19 29 C.F.R. § 825.107 ................................................................................................................ 10, 23 29 U.S.C. § 2611 ............................................................................................................................. 8 29 U.S.C. §2612(a)(1) ..................................................................................................................... 6 29 U.S.C. §2614 .............................................................................................................................. 6 29 U.S.C. §2615(a)(1) ................................................................................................................... 27 29 U.S.C. §26159 ............................................................................................................................ 6 29 U.S.C. 2614 ................................................................................................................................ 7 Rules 29 C.F.R. 825.200 ......................................................................................................................... 22 29 CFR 825.100 .............................................................................................................................. 7 Fed.R.Civ.P. 56(c) .......................................................................................................................... 6 Case 3:16-cv-02262-PGS-TJB Document 52 Filed 02/15/18 Page 5 of 36 PageID: 804 1 Plaintiff files the instant motion seeking a determination by the Court that: (1) Defendant stands as a successor-in interest to Plaintiff’s prior employer; and that as such (2) Defendant interfered with Plaintiff’s rights under the Family and Medical Leave Act (“FMLA”) when it failed to reinstate his employment following his FMLA leave. In support of same, Plaintiff asserts as follows: I. FACTUAL BACKGROUND In connection with this brief, Plaintiff submits his Statement of Undisputed Facts and incorporates same herein by reference. Nonetheless, for purposes of highlighting those most relevant for the Court, Plaintiff asserts as follows: In November 1999, Plaintiff Gregory Podurgiel (hereinafter “Plaintiff” or “Podurgiel”) began working for The Greater Atlantic and Pacific Tea company (hereinafter “A&P”) as a butcher. Plaintiff’s Statement of Undisputed Facts (hereinafter “PSUF”) at ¶ 1. From 2014 until September 2015, Plaintiff worked full-time as a butcher at the A&P grocery store in Wall Township, New Jersey (hereinafter “the Wall Township Grocery Store”). ¶ at 2. At all times relevant hereto, Plaintiff suffered from mastoditis, a condition causing chronic tumors and infections in his inner ear bone (hereinafter “Medical Condition”). PSUF at ¶ 9. In summer 2015, Plaintiff suffered from a worsening of his Medical Condition and was ordered by his physician to undergo surgery again related to same. PSUF at ¶ 10. Plaintiff notified the Wall Township Grocery Store Manager Joan Perez and Assistant Store Manager Ernie Lawrence of his need for leave due to his Medical Condition. Id. at ¶ 11. On or about September 7, 2015, Plaintiff submitted a request for an FMLA leave of absence to A&P. Id. at ¶ 12. On or about September 8, 2015, Plaintiff underwent surgery on his ear. Id. at ¶ 14. Following his surgery, Plaintiff provided A&P with certification from his physician confirming his Medical Condition, surgery, and need Case 3:16-cv-02262-PGS-TJB Document 52 Filed 02/15/18 Page 6 of 36 PageID: 805 2 for leave related to same. Id. at ¶ 15. Plaintiff was approved for an FMLA leave of absence by A&P. Id. at ¶ 16. At the time Plaintiff began his leave, his doctor anticipated a return date of November 8, 2015. Id. at ¶ 18. Prior to his FMLA leave beginning, in or around July 2015, A&P filed for bankruptcy. PSUF at ¶ 22. Thereafter, Defendant Acme entered into an agreement with A&P to purchase 71 of its grocery stores nationwide. PSUF ¶¶ 24. The agreement was codified in an Asset Purchase Agreement (hereinafter “the Purchase Agreement”). Id. Pursuant to the Purchase Agreement, Defendant agreed to purchase a number of A&P stores and to extend offers of employment to all “covered employees” of A&P at such stores. Id. at ¶ 25. The Purchase Agreement defined covered employees as those employees of A&P who were actively employed with A&P at the date of transfer of ownership and excluded those employees on a leave of absence on the date of transfer. Id. at ¶ 26. The Wall Township Grocery Store was one of the A&P stores Defendant acquired via the Purchase Agreement. Id. at ¶ 29. Throughout Plaintiff’s employment at the Wall Township Grocery Store, all store employees of same were members of the United food and Commercial Workers Local 464A (hereinafter “the Union”). Id. at ¶ 38. Union member wages, along with employment terms and benefits, were therefore governed by a collective bargaining agreement entered into between A&P and the Union. Id. at ¶ 37. Prior to its acquisition of the Wall Township Grocery Store, Defendant entered into an agreement with the Union agreeing to offer employment to all union members employed at the stores purchased by Defendant (an agreement already established between Defendant and A&P via the Purchase Agreement), and further agreeing to provide employment under the same terms as set forth in a collective bargaining agreement between the Union and A&P. Id. at Id. at ¶¶ 31, 32, 33, and 34. Case 3:16-cv-02262-PGS-TJB Document 52 Filed 02/15/18 Page 7 of 36 PageID: 806 3 Prior to exercising ownership of the Wall Township Grocery Store, in or around October 2015, Defendant visited the store and held an employee orientation. PSUF at ¶ 39. Though he was on FMLA leave at the time, Store Manager Perez ordered Plaintiff to participate in the employee orientation. Plaintiff complied with said order. Id. at ¶ 40. At noon on November 3, 2015, A&P ceased operation of the Wall Township Grocery Store. Until the date it ceased operation, the Wall Township Grocery Store remained operational. PSUF at ¶ 41, 43. After acquiring ownership, Defendant closed the store for a two-day period for the purpose of minor re-organization such relocating store cases. Id. at ¶ 43. All inventory present under A&P management transferred to ownership of Defendant. Id. at ¶ 48. The store did not undergo any construction during this time. Id. at ¶ 46. The majority of the equipment within the store remained in place. Id. at ¶ 47. All employees at the Wall Township Grocery Store who were not on a leave of absence on the date ownership transitioned from A&P to Defendant were transferred to employment under Acme. Id. at ¶ 49, 51. The store level management team remained in place as well (Joan Perez remained the store manager and Ernie Lawrence the Assistant Store Manager). Id. at ¶¶ 52, 53. On November 6, 2015, the Wall Township Grocery Store reopened under the Acme brand. Id. at ¶ 43. Throughout his FMLA leave of absence, Plaintiff contacted his managers at the Wall Township Grocery Store to discuss the status of his Medical Condition and his return to work. PSUF at ¶ 57. On October 26, 2015, Plaintiff provided managers at the Wall Township Store with a note from his physician identifying he would be able to return to work on November 9, 2015. Id. at ¶ 18. Said note was forwarded to A&P as it was the entity operating the Wall Township Grocery Store at the time. Id. Case 3:16-cv-02262-PGS-TJB Document 52 Filed 02/15/18 Page 8 of 36 PageID: 807 4 At the time it ceased operation of the Wall Township Grocery Store on November 3, 2015, A&P removed all employee files. PSUF at ¶ 42. Accordingly, following Defendant’s acquisition of same, Store Manager Joan Perez advised Plaintiff that due to the loss of employee files, he would need to submit a new note from his doctor identifying that he was cleared to return to work. Id. at ¶ 58. On November 9, 2015, Plaintiff visited his physician to obtain said note. Id. at ¶ 59. Due to ongoing swelling in his ear, Plaintiff’s physician ordered that he remain out of work for an additional two weeks and provided him a note clearing him to return to work on November 16, 2015. Id. at ¶ 19. On the same day as he received the note (November 9), Plaintiff hand delivered same to Assistant Store Manager Ernie Lawrence. PSUF at ¶ 20, 59. Lawrence advised Plaintiff that he did not see Plaintiff in the “system” (a computer database used to identify the active employee roster at each store). Id. at ¶ 61. Accordingly, Lawrence advised Plaintiff that he would need to contact Defendant’s Human Resources to ensure he was activated in same. Id. In an effort to aid Plaintiff, Lawrence also reached out Acme Human Resources to advise that he received a note from Plaintiff clearing him to return to work. Id. at ¶ 62. Following November 9, Plaintiff contacted the Wall Township Grocery Store on several occasions to determine whether his status in the system had been remedied. PSUF at ¶¶ 65-69. Store Manager Lawrence advised Plaintiff that same was not remedied. Id. at ¶¶ 65, 69. On November 12, 2015, Lawrence reached out to Acme Human Resources to inquire as to why Plaintiff was not in the System. Id. at ¶ 62. Acme Human Resources did not respond to Lawrence’s inquiry. Id. at ¶ 63. On November 16, 2015, Plaintiff reported to work. PSUF at ¶ 66. Nonetheless, Plaintiff was turned away because he was not activated in the system. Id. at 64. In the weeks following, Case 3:16-cv-02262-PGS-TJB Document 52 Filed 02/15/18 Page 9 of 36 PageID: 808 5 Plaintiff continually contacted the Wall Township Grocery Store to determine whether the issue with his entry into the system was resolved. Each time he was told that it was not. Id. at ¶¶ 65-69. Plaintiff also attempted to procure reinstatement through the Union. Id. at ¶¶ 70-71. On December 7, 2015, Union representatives reached out to Acme’s Vice President of Human Relations on Plaintiff’s behalf. Id. at ¶ 72. Acme Human Resources managers did not respond to Store Manager Lawrence’s November 12 inquiry as to Plaintiff’s status, or the Union’s December 7 inquiry. Id. at ¶ 73. On December 11, 2015, Plaintiff himself wrote a letter to Acme’s Human Resources Department, directing same to Human Resources Vice President Daniel Dosenbach. PSUF at ¶ 74. Within same, Plaintiff described his difficulties returning to work, and identified his hopes of returning to the Wall Township Grocery Store. Id. Plaintiff did not receive a response to his letter. In a final effort, in late December 2015, Plaintiff reached out to A&P’s human resources department in hopes they could more successfully communicate directly with Acme on his behalf. PSUF at ¶ 75. On December 28, 2015, Mitch Schafer (A&P Director of Human Resources) contacted Acme’s Human Resources to advise them of Plaintiff’s ongoing difficulty returning to work. Id. at ¶ 75,76. In response to Schafer’s inquiry, Acme acknowledged that Plaintiff was in fact eligible for a return to work. Id. at ¶ 77. Nonetheless, Acme did not communicate this determination to Store Manager Lawrence or Plaintiff’s Union at any time.1 Id. at ¶ 78.. 1 Due to the difficulties that Plaintiff faced in returning to work, in late-December 2015, Plaintiff secured alternate employment. Plaintiff therefore ceased his attempts to return to work at Acme. In this instant matter, Plaintiff asserts that Defendant’s interfered with his FMLA rights when it failed to reinstate him between the dates of November 16, 2015 and December 29, 2015 (the date which Defendant acknowledged Plaintiff was “ok to return”). Case 3:16-cv-02262-PGS-TJB Document 52 Filed 02/15/18 Page 10 of 36 PageID: 809 6 II. STANDARD OF REVIEW Summary judgment is appropriate where the record is such that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) The nonmoving party must allege “more than a bald assertion, completely unsupported by evidence,” that a material fact is in dispute. Waiters v. Hudson County Corr. Ctr., 2010 U.S. Dist. LEXIS 108346 at *9, Civ. A. No. 07-421 (N.J., Oct. 2010) ; Harter v. Gaf Corp., 967 F.2d 846, 852 (3d Cir. 1992). Accordingly, mere speculation on the part of the nonmoving party is insufficient to create a genuine issue of material fact. Id. (emphasis added). Thus, a nonmoving party cannot survive summary judgment by simply asserting its speculation over the moving party’s motivation behind a certain act – the nonmoving party must come forth with competent, admissible evidence which places the material facts of the case in a genuine dispute. III. LEGAL ARGUMENT The FMLA grants eligible employees the right to take up to twelve weeks of unpaid leave per year because of a serious health condition. 29 U.S.C. §2612(a)(1) After a qualified absence, employees are entitled to return to the same position or to an equivalent position. 29 U.S.C. §2614(a)(1). To ensure the broad remedial application of the statute, the FMLA declares it “unlawful for an employer to interfere with, restrain or deny the exercise of the attempt to exercise, any right provided under this subchapter.” 29 U.S.C. §26159(a)(1); Matthews v. New Jersey Inst. Of Tech., Case 3:16-cv-02262-PGS-TJB Document 52 Filed 02/15/18 Page 11 of 36 PageID: 810 7 772 F. Supp. 2d 647, 657 (D.N.J. 2011). To establish an FMLA interference complaint, a Plaintiff must demonstrate: (1) that he was an eligible employee under the FMLA; (2) defendant was an employer subject to the requirements of the FMLA; (3) the employee was entitled to leave under the FMLA; (4) the employee gave notice to defendant of his intention to take FMLA leave; and (5) the defendant denied the employee benefits to which he was entitled under the FMLA. Parker v. Hahnemann Univ. Hosp., 234 F.Supp.2d 478, 484 (D.N.J. 2002). In the instant matter, Defendant does not dispute that it constitutes an employer within the meaning of the statute, and thus is subject to the requirements of the FMLA. As set forth below, Plaintiff is able to identify indisputable evidence in support of each element of his FMLA interference claim. a. Plaintiff was an Eligible Employee Under the FMLA because ACME was a successor-in-interest to A&P. “Eligible employees” are entitled to take FMLA leaves of absence, and are entitled to return to the same or equivalent position as they had previously held, and an employer who violates these entitlements is in violation of the FMLA. 29 CFR 825.100(a)-(c); 29 U.S.C. 2614(a)(1). An “eligible employee” is defined as one who has worked for an “employer” for at least 1250 hours during the 12-month period preceding the request for FMLA leave. In the instant matter, Plaintiff worked full-time for at least the 12-month period preceding his FMLA leave in September 2015.2 Furthermore, Plaintiff’s earnings record reveals that he 2 Though there is no basis to dispute this portion of the eligibility determination, should Defendant attempt to claim the hours and time period worked by Defendant are disputed, Defendant is estopped from asserting such a claim on the basis of the equities. See Moore v. Czarnowski Display Service, Inc., 2009 WL 614815 (W.D. Pa. 2009) (denying the defendant’s motion to dismiss a plaintiff’s FMLA claims on the basis that it had less than 50 employees because on the theory of equitable estoppel because the defendant had previously represented to the plaintiff that she would be eligible for FMLA) citing Sinacole v. iGate Capital, 2006 WL 3759744, *8 (W.D.Pa. Dec.19, 2006) (Cercone, J.) Case 3:16-cv-02262-PGS-TJB Document 52 Filed 02/15/18 Page 12 of 36 PageID: 811 8 worked well over the 1250 hour threshold during the 2015 calendar year alone.3 Thus, the issue of whether Plaintiff constitutes an “eligible employee” rests upon whether ACME is to be considered Plaintiff’s “employer” per the statute. i. ACME meets the FMLA’s broad definition of a successor-in-interest employer. The FMLA defines “employer” to include “any successor in interest of an employer.” 29 U.S.C. § 2611(4)(A). What constitutes a successor in interest under the FMLA is a legal determination for the court. See e.g Cobain v. Destination Hotels & Resorts, No. CIV. S-05- 2248FCDDAD, 2007 WL 1589533, at *8 (E.D. Cal. June 1, 2007) (“successor liability is an equitable doctrine”). In determining same, courts do not follow the strict corporate definitions of successorship, but rather are to apply a broader definition in accordance with the remedial purpose of the FMLA. See e.g. Cobb v. Contract Transp., Inc., 452 F.3d 543, 551 (6th Cir. 2006) (finding that for purposes of the FMLA, the defendant constituted a successor in interest) (“The successor liability test set . . . originates in federal labor law. Inasmuch as federal labor cases do not require a merger or transfer of assets as a precondition to the imposition of successor liability, we decline to impose such a requirement”); see also Sullivan v. Dollar Tree Stores, Inc., 623 F.3d 770, 781- 782 (9th Cir. Sept. 27, 2010) (“The inquiry is not merely whether the new employer is a ‘successor’ (predicting that Court of Appeals for Third Circuit “would apply the judicial doctrine of equitable estoppel in appropriate circumstances”), aff'd, 287 Fed. Appx. 993, 995–96 (3d Cir. Aug.5, 2008). 3 In accordance with the Collective Bargaining Agreement, as a full-time journeyman butcher, in 2015, Plaintiff was entitled to a weekly rate of $1027.80 ($1002.80 per Schedule A Section B and an additional $25 weekly rate effective March 2013 for his service years in accordance with Section 3B). Thus, Plaintiff’s hourly rate as a Butcher was $25.69. ACME00074-00075. In the 2015 calendar year, Plaintiff earned $47,354.37 from A&P. PGP00071. Divide Plaintiff’s total earnings by his hourly rate, it would show that Plaintiff worked roughly 1,843 hours in 2015. Case 3:16-cv-02262-PGS-TJB Document 52 Filed 02/15/18 Page 13 of 36 PageID: 812 9 in the strict corporate-law sense of the term. The successorship inquiry in the labor-law context is much broader”). With respect to the FMLA, the primary consideration in a determination of successorship is whether the new employer’s business is “essentially the same,” as the old employers. Sullivan v. Dollar Tree Stores, Inc., 623 F.3d 770, 781 (9th Cir. 2010) (the general thrust of the inquiry is whether the new business is “essentially the same” as the old business”). Where there is there is “substantial continuity in the operations of the employer, the services provided, the facilities used, the work environment, and the equipment used,” courts find that successorship exists. Jolliffe v. Mitchell, 971 F. Supp. 1039, 1042 (W.D. Va. 1997). The Third Circuit has held that the Department of Labor’s regulations implementing the FMLA are entitled to Chevron deference as long as the regulation sets forth a permissible construction of the statute. Egan v. Delaware River Port Authority, 851 F.3d 263, 270-271 (3d Cir. 2017). Thus, to aid in the determination of whether an employer is a successor-in-interest for purpose of determining FMLA eligibility of an employee, courts across jurisdictions, including this one, have uniformly applied the Department of Labor’s regulations setting forth an eight-factor test by which they may determine whether an employee’s service with the former employer may be applicable to the new employer for FMLA eligibility purposes. See, e.g., Vanderhoof v. Life Extension Inst., 988 F. Supp 507 (D.N.J. 1997) (determining that a defendant constituted a successor for FMLA purposes); Lombardo v. Air Prods. & Chems., Inc., Civ. A. No. 05-1120, 2006 WL 1892677 (E.D. Pa. July 7, 2006) (same); see also Sullivan v. Dollar Tree Stores, Inc., 623 F.3d 770 (9th Cir. Wash. Sept. 27, 2010); Cobb v. Contract Transp., Inc., 452 F.3d 543, 551 (6th Cir. 2006); Slaughter v. American Bldg. Maintenance Co., 64 F. Supp. 2d 319, 328 (S.D.N.Y. Sept. 13, 1999). Case 3:16-cv-02262-PGS-TJB Document 52 Filed 02/15/18 Page 14 of 36 PageID: 813 10 Per the Department of Labor regulations, the factors to be considered in determining successorship under the FMLA are: (1) substantial continuity of the same business operations; (2) use of the same plant; (3) continuity of work force; (4) similarity of jobs and working conditions; (5) similarity of supervisory personnel; (6) similarity in machinery, equipment and production methods; (7) similarity of products or services; and (8) the ability of the predecessor to provide relief. 29 C.F.R. § 825.107(a). In analyzing successorship “the failure to meet one factor is not dispositive; the factors must be viewed in their totality.” Vanderhoof, 988 F. Supp. at 518. As set forth below, a review of the undisputed facts weighs in favor of each of these factors in favor of a finding of successorship. 1. There was substantial continuity of the same business operations Under the control of A&P, the Wall Township Grocery Store operated a full-service grocer. Following ACME’s acquisition of same, there was only a brief break in service but only for the purposes of minor reorganization within the store, such as the relocating of in store cases. There was no construction within the store, and all inventory was maintained. After only a two-day close, the Wall Township Grocery Store opened as a full-service grocer within the same location as previous. That Defendant may claim to target a different clientele at the Wall Township Grocery Store does not affect the analysis related to the substantial continuity factor. Vanderhoof, 988 F. Supp. at 513 (D.N.J. 1997) (holding that targeting of a different clientele by a purchasing business does not disturb a finding of this factor in favor of successorship). Rather, the only inquiry for the court is whether the business operation was undisturbed. Id. As set forth above, this is not disputable. Accordingly, this factor weighs in favor of a finding of successorship. 2. Acme used the same plant as the predecessor employer Case 3:16-cv-02262-PGS-TJB Document 52 Filed 02/15/18 Page 15 of 36 PageID: 814 11 The location of the Wall Township Grocery Store remained unchanged following Defendant’s acquisition of same. Accordingly, this factor weighs in favor of a finding of successorship. 3. There was continuity of workforce Pursuant to the Purchase Agreement and Memorandum of Understanding between Defendant and the Union, Defendant automatically extended the employment of all of the Wall Township Grocery Store Employees. There were no reductions in force at this location. Employees were not required to participate in any interviews before receiving an offer of employment from Defendant. Rather, the only requirement upon employees to continue in their position was that they complete an “application” for employment. As a result of this practice, at the Wall Township Grocery Store, each A&P employee other than Plaintiff was provided the opportunity to continue employment. As this Court has stated, a requirement that employees complete new paperwork after an acquisition does not cause a break in continuity of workforce. Vanderhoof, 988 F. Supp. at 513 (D.N.J. 1997). It should be noted that when analyzing this factor, the Court is not to review whether there was full continuity in work force between all A&P stores that were purchased and Defendant (though Plaintiff would submit even such an analysis would weigh in his favor). Rather, the only inquiry is whether there was continuity in work force at the Wall Township Grocery Store location. See Vanderhoof, 988 F. Supp 317 at n. 3 (D.N.J. 1997) (rejecting the defendant’s argument that the court should review changes in personnel at multiple branches rather than the plaintiff’s office when analyzing this factor). Case 3:16-cv-02262-PGS-TJB Document 52 Filed 02/15/18 Page 16 of 36 PageID: 815 12 4. There was similarity of job and working conditions As set forth in the Memorandum of Understanding between Defendant and the Union, upon acquisition of the Wall Township Grocery Store, Defendant explicitly agreed to continue the terms of employment previously set forth in the collective bargaining agreement between the Union and A&P. Accordingly, there is no basis to assert that there was any change in working conditions. Furthermore, this Court has specifically stated that minor variations in the workplace such as wage and benefit policies, or changes in an employees’ number of hours, would be insufficient to prevent a finding of successorship. Vanderhoof, 988 F. Supp. 317 at 513 (D.N.J. 1997). Rather, there must be a “fundamental change” in the nature of the business for this factor to weigh against a finding of successorship. Id. Such a change did not occur here. Accordingly, this factor weighs in favor of a finding of successorship. 5. There was similarity in supervisory personnel In analyzing this factor, courts must only review whether there was a change in the manager responsible for local day-to-day operations, rather than review whether there were changes in upper management. Vanderhoof, 988 F. Supp. 317 at 513 (D.N.J. 1997). In the instant matter, Joan Perez remained the Store Manager and Ernie Lawrence remained the Assistant Store Manager. Thus, this factor weighs in favor of a finding that there remained similarity in supervisory personnel. 6. There was similarity in machinery, equipment and production methods In a non-manufacturing context, this prong is irrelevant in the consideration of successorship determinations. Vanderhoof, 988 F. Supp at 513; See also Rhoads v. F.D.I.C., 956 F. Supp. 1239, 1253–54 (D. Md. 1997) (“The factor relating to machinery, equipment and Case 3:16-cv-02262-PGS-TJB Document 52 Filed 02/15/18 Page 17 of 36 PageID: 816 13 production methods is not addressed in this opinion, as it does not appear significantly to apply in this non-manufacturing context”) aff'd in relevant part 257 F.3d 373 (4th Cir. 2001). As Defendant was not a manufacturer, this prong is not a factor to be considered. 7. There is similarity of products or services Prior to, and following acquisition by Defendant, the Wall Township Grocery Store operated as a full-service grocer. All grocery store inventory (accordingly, all products) remained in place following the transfer of ownership. Accordingly, there is no basis to assert that the products and services were not similar. This factor must weigh in favor of a finding of successorship. 8. There is no ability of the predecessor to provide relief A&P is a bankrupt entity. Furthermore, A&P did not operate the Wall Township Grocery Store in November 2015, when Plaintiff sought reinstatement of employment at same. Thus, this favor also weighs in favor of a finding of successorship. ii. Application of the doctrine of successorship is consistent the Third Circuit precedent with respect to other federal employment law statutes. Though the Third Circuit has yet to make a determination on what constitutes a successor- in-interest for FMLA purposes, in the context of employment law claims, this Third Circuit has followed other courts in ejected a strict corporate interpretation of successorship in employment contexts and instead adopting a broader common law definition. See Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 150–51 (3d Cir. 2014) (rejecting defendant’s argument that corporate successors are distinct from their predecessors and instead applying federal common law standards to impose FLSA liability to the plaintiff’s employer); see also Rego v. ARC Water Treatment Co. of Pennsylvania, 181 F.3d 396, 401 (3d Cir. 1999) (“The doctrine [of successor Case 3:16-cv-02262-PGS-TJB Document 52 Filed 02/15/18 Page 18 of 36 PageID: 817 14 liability] is derived from equitable principles, and fairness is the prime consideration in application of the doctrine. . . The policy underlying the doctrine is ‘to protect an employee when the ownership of his employer suddenly changes’”).Thus, the Third Circuit has applied successor liability to employers in Title VII contexts when the factors of (1) continuity of operations; (2) notice to the successor of the predecessor’s legal obligations; and (3) the ability of the successor to provide relief are in existence. Thompson; Rego; see also Brzozowski v. Corr. Physician Servs., Inc., 360 F.3d 173, 177–78 (3d Cir. 2004) (applying the three factor test in support of a finding of successor liability in a Title VII claim). The Third Circuit’s willingness to apply the common law federal doctrine of successor liability is based on the directive of the Supreme Court in Golden State Bottling Co. v. NLRB, 414 U.S. 168, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973). In Golden State Bottling the Supreme Court expanded the common law rule of successorship into the field of labor relations by deeming that a purchasing employer could be liable for the unfair labor practices of its predecessor. In doing so, the Supreme Court held that based in equitable principals, when a new employer acquires the assets of a predecessor and continues the business “without interruption or substantial change. . . those employees who have been retained will understandably view their job situations as essentially unaltered.” Golden State Bottling Co. v. N.L.R.B., 414 U.S. 168, 184, 94 S. Ct. 414, 425, 38 L. Ed. 2d 388 (1973). It is based upon these equitable principals the Third Circuit has accepted a common law, broad reading of the definition of a successor employer in the context of employment claims. Accordingly, it is anticipated that, if presented with the opportunity, the Third Circuit would follow the lead of other courts across jurisdictions and apply such a definition in the context of the FMLA. Case 3:16-cv-02262-PGS-TJB Document 52 Filed 02/15/18 Page 19 of 36 PageID: 818 15 iii. Acme is not freed from successor-in-interest status under the FMLA and its implementing regulations by virtue of A&P’s bankruptcy or the Sale Order issued by the bankruptcy judge. The Supreme Court, Third Circuit, and other case law demonstrate that successor-in- liability interest attaches to a federal labor law claim based on facts similar to the ones undisputed here, and FMLA’s statutory text and implementing regulations makes clear that continuity of coverage under the FMLA is determined based on continuity of operations and equitable considerations, not contracts. Despite this, Defendant has argued that the Court should ignore all such considerations, including Defendant’s undisputed post-sale conduct in which it continued the operations of A&P and hired nearly all of A&P’s employees and employed them in the exact same positions, should instead focus only on the sale of the A&P assets to Defendant, and find that the fact that the sale was consummated pursuant to a bankruptcy proceeding should preempt or displace application of the FMLA’s successor-in-interest standards. In support of this proposition, Defendant improperly relies on In re Trans World Airlines¸ 322 F.3d 283 (3d Cir. 2003) (“In re TWA”), which held that the employment discrimination claims based filed with the EEOC against TWA before the bankruptcy were extinguished by the bankruptcy court’s approval of sale of TWA’s assets “free and clear of any interest in such property” to American Airlines under 11 U.S.C. § 363(f). Several courts have addressed the determination of FMLA successor-in-interest liability in the context of one employer maintaining continuity-of-operations with a bankrupt predecessor regardless of the underlying sale of assets. For instance, in Grace v. USCAR, the plaintiff was an employee of an employment which went bankrupt, after which, another employment, which did not even acquire any of the bankrupt entities’ assets, took over the employment contract of the plaintiff. In that case, even though there was no sale of assets, the Sixth Circuit found that it was Case 3:16-cv-02262-PGS-TJB Document 52 Filed 02/15/18 Page 20 of 36 PageID: 819 16 the continuity of operations that triggered successor status under FMLA for purposes of determining eligibility for the plaintiff’s FMLA leave. 521 F.3d 655, 672-673 (2008). Likewise, in Miller v. Level 3 Communications, a court of this district found that “federal statutory mandates such as the FMLA” are not a “liability” that is assumed or not assumed in a sales transaction, and rejected an attempt by defendant to claim that the bankruptcy code preempted the FMLA and the Department of Labor’s mandates pursuant to whether an entity is an employer based on being a successor-in-interest. 2005 WL 1529419 at *8-9 (Jun. 29, 2005) (distinguishing between claims for potential violations of Title VII which could be detached from a sale of assets versus future liabilities of the sellers from the assets). Likewise, in Galarza v. Whittle-Kinard, another court of this district held that successor liability can attach even where there is a bankruptcy sale “free and clear of all claims and interests” when one of the following exceptions apply: (1) the successor expressly or impliedly assumes the liabilities; (2) there is an actual or de facto consolidation or merger of the two companies; (3) the purchaser is the mere continuation of the seller; or (4) the transaction was entered into fraudulently to escape liability. 2017 WL 4329733 (Sept. 29, 2017). In other words, like Grace and Miller, Galarza stands for the proposition that FMLA successor-in-interest analysis comes separate and apart from a preliminary assessment whether a bankruptcy sale of assets from a bankrupt debtor to a new purchaser does so free of claims and interests attached to that property. Defendant, in its motion for summary judgment filed today, suggested that the unreported bankruptcy court case In re Christ Hospital held that a sale under the bankruptcy code stands for the proposition that the sale between Defendant and A&P extinguishes Plaintiff’s claim here, because in In re Christ Hospital, an employee who had been terminated before the sale was Case 3:16-cv-02262-PGS-TJB Document 52 Filed 02/15/18 Page 21 of 36 PageID: 820 17 precluded by the sale agreement from bringing an FMLA claim based on the debtor’s violations against the purchaser. See Def. Brief. Mot. S.J., ECF Doc. 46, at 5 (citing In Re Christ Hospital, 2014 WL 2135942 (D.N.J. Bankr. May 21, 2014). Given that this matter involves the purchaser’s failure to honor Plaintiff’s FMLA leave and reinstate him, In Re Christ Hospital is wholly inapposite, a fact explicitly acknowledged by the court in distinguishing that matter from Miller, describing Miller as holding that only that the that the FMLA statute and regulation, not the sale order, determined whether the plaintiff could establish sufficient longevity in her job to file an FMLA claim against the buyer based on the buyer’s alleged discrimination. 2014 WL 2135942 at *3 (D.N.J. Bankr. May 21, 2014). However, even assuming for the sake of argument that the bankruptcy code could preempt/displace the FMLA’s independent broad statutory definition of an employer as a successor-in-interest to another employer with respect to claims that the bankrupt debtor had violated the FMLA, 11 U.S.C. § 363(f) still only permits a bankruptcy trustee to sell property free and clear of any interest in property if one or more of five conditions is met. These five conditions are: (1) applicable nonbankruptcy law permits sale of such property free and clear of such interest; (2) the entity with the interest consents; (3) such interest is a lien and the price at which such property is to be sold is greater than the aggregate value of all liens on such property; (4) such interest is in bona fide dispute; OR (5) such entity could be compelled, in a legal or equitable proceeding, to accept a money satisfaction of such interest. The first condition—whether applicable nonbankruptcy law permits the sale “free and clear” merely collapses the inquiry back onto the above analysis of whether the FMLA and federal labor successor liability common law makes Acme a successor-in-interest. Case 3:16-cv-02262-PGS-TJB Document 52 Filed 02/15/18 Page 22 of 36 PageID: 821 18 The second condition—Plaintiffs’ consent—is inapplicable, because there is no evidence that Plaintiff consented to waiving his FMLA rights or was even informed that he was waiving his FMLA rights as part of A&P’s bankruptcy or the sale to Defendant. The third condition does not apply because Plaintiff’s FMLA rights is not a lien. The fourth factor does not apply because Plaintiff’s FMLA rights were not subject to a bona fide dispute at the time of the sale or any time thereafter. Accordingly, the only option allowing a free and clear sale of A&P’s assets under 11 U.S.C. § 363(f) excluding Plaintiff’s right to FMLA leave and job restoration is whether Plaintiff could be compelled to accept a prospective money satisfaction of his right to take FMLA leave and job restoration. Plaintiff could not be so compelled, and, accordingly, the sale order did not sell A&P assets free and clear of Plaintiff’s right to FMLA leave and job restoration at the conclusion of such leave. It is axiomatic that an individual cannot prospectively waive his civil rights in exchange for consideration. See, e.g., Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 740 (1981) (“FLSA rights cannot be abridged by contract or otherwise waived”). Accordingly, Plaintiff could not be compelled to accept money in exchange for his right to be free from future racial discrimination under Title VII or his entitlement to overtime under the FLSA. Likewise, Plaintiff cannot be compelled to accept monetary payment in exchange for waiving his future right to take an FMLA leave. In re TWA is not to the contrary, because the claims at issue in In re TWA were already filed EEOC charges, for which a judge could deny injunctive relief and solely award monetary damages. In other words, once an employer violates a federal law that contains a private right of action, thereby creating a right to remedy in a claimant, a court can determine that the appropriate remedy for that harm is monetary relief as opposed to injunctive relief. Case 3:16-cv-02262-PGS-TJB Document 52 Filed 02/15/18 Page 23 of 36 PageID: 822 19 In In re TWA, the Third Circuit reasoned that the already-filed EEOC claims would have been reducible to monetary awards under a Title 7 liquidation. But a right to continued employment under FMLA is not reducible to a monetary award in a liquidation; rather, it would simply terminate once the employer went out of business without a successor. In In re Torwico Electronics, 8 F.3d 146, 150 (3d Cir. 1993), the Third Circuit held that a regulatory obligation to develop a plan to ameliorate an ongoing environmental hazard was not a “claim” in bankruptcy. Accordingly, an obligation for an entity to take affirmative action pursuant to a regulation or statutory obligation is not a claim that could be satisfied by monetary payment, and therefore, covered by 11 U.S.C. § 363(f). Defendant’s honoring Plaintiff’s FMLA leave rights is exactly that type of affirmative statutorily-mandated action. Thus, while In re TWA’s holding might have barred an FMLA claim that had either been filed or had accrued (due to an FMLA violation) while Plaintiff was still working for A&P, In re TWA does not allow the bankruptcy court to terminate Plaintiff’s FMLA rights for which he could not have been compelled to prospectively accept monetary compensation in exchange for their violation.4 Accordingly, whether Defendant is a successor-in-interest with respect to those rights is determined by federal labor common law and the FMLA and its implementing regulations, not the bankruptcy code. 4 The relevant thought experiment is this: Could a covered employer which did not wish to employ Christians file and be granted a declaratory judgment stating that in exchange for relief from the religious employment discrimination prohibitions of Title VII, it would pay any affected Christian employees their lost wages until they found alternative employment. While such an order would be economically identical to an order finding that the employer had violated Title VII but only had to pay economic damages, not reinstate the employees, the declaratory judgment would offend all our notions of justice and would be appropriately rejected by the court. In other words, there is no such thing as an “efficient breach” of civil rights laws. Case 3:16-cv-02262-PGS-TJB Document 52 Filed 02/15/18 Page 24 of 36 PageID: 823 20 Finally, the bankruptcy code does not supplant the FMLA’s successor-in-interest analysis because they are not incompatible insofar as the test for successor status occurs at different times under the bankruptcy code versus the FMLA. 11 U.S.C. § 363(f) states that, subject to the above conditions, at the time of sale the bankruptcy court can order that the assets will transfer to the purchaser free and clear of the interests and claims that derive from those assets. The FMLA’s successor-in-interest framework provides that an entity’s actions subsequent to the sale—i.e., the continuity of employment conditions and operations—can create successor-in-interest liability that the time the subject employee worked for the predecessor-in-interest must be calculating in determining whether the employee in question was eligible for FMLA leave and job restoration. Thus, had Defendant not agreed to hire all of A&P’s employees, maintain the same store and layout as A&P, maintain the same management team, and maintain the same terms and conditions of employment with the unions that represented A&P’s employees, the bankruptcy sale might have alleviated Defendant from FMLA claims asserted by A&P’s former employees based on A&P’s acts or omissions. But Defendant’s post-sale conduct, including Defendant’s entering into MOU’s with the labor unions, were independent actions Defendant took which it was not obligated to do based on the asset purchase which establish FMLA successor-in-interest coverage based on that conduct. In other words, Defendant’s actions post-sale is what created Defendant’s statutory obligation under FMLA, even if the purchase of the assets alone would not have created successor liability on the part of Defendant for A&P’s pre-petition FMLA obligations. iv. As a Successor-in-Interest, Acme is liable to Plaintiff for any FMLA violations Employers who constitute successors-in-interest must comply with the requirements of the FMLA. See e.g. Lombardo v. Air Prod. & Chemicals, Inc., No. CIVA 05-1120, 2006 WL 1892677, Case 3:16-cv-02262-PGS-TJB Document 52 Filed 02/15/18 Page 25 of 36 PageID: 824 21 at *5 (E.D. Pa. July 7, 2006). An entity’s failure to receive personnel documents, including medical documents related to an employee’s need for leave, is insufficient to negate FMLA liability. See e.g. Slaughter v. Am. Bldg. Maint. Co. of New York, 64 F. Supp. 2d 319, 328 (S.D.N.Y. 1999). Rather, as set forth by the Southern District of New York Court in Slaughter v. Am. Bldg. Maint, because a successor retains continuity in supervisory personnel, knowledge as to an employee’s Medical Condition and need for FMLA leave may be imputed to the successor employer even when the successor fails to retain medical documents following its acquisition of the business. Id. See also 29 C.F.R. § 825.107(a) (whether successor has notice of the employee’s claim is not a consideration). Based upon these principals, courts across jurisdictions, including this one, have shown a willingness to make the determination that a defendant constitutes a successor-in-interest who is subject to the requirements of the FMLA. see e.g., Osei v. Costal Intern. Sec., Inc., 69 F. Supp. 3d 566 (E.D. Va. Nov., 19, 2014) (holding that the defendant constituted a successor in interest subject to the requirements of the FMLA); Lombardo v. Air Prod. & Chemicals, Inc., No. Civ. A. No. 05- 1120, 2006 WL 1892677, at *5 (E.D. Pa. July 7, 2006) (finding that new employer constituted a successor in interest, and accordingly was required to provide plaintiff the benefits of the FMLA, provided the plaintiff could prove entitlement to FMLA benefits); Cobb v. Contract Transp., Inc., 452 F.3d 543, 556 (6th Cir. 2006) (reversing a district court order granting summary judgment to defendant on plaintiff’s FMLA claims and remanding on a determination that the defendant constitutes a successor in interest subject to the requirements of the FMLA). In fact, while it is generally unusual for courts to grant summary judgment to plaintiffs in employment claims, courts have shown a willingness to grant summary judgment in favor of plaintiffs on FMLA-liability upon a determination of successorship. See e.g., Vanderhoof (granting plaintiff’s motion for Case 3:16-cv-02262-PGS-TJB Document 52 Filed 02/15/18 Page 26 of 36 PageID: 825 22 summary judgment on the issue of plaintiff’s status as an “eligible employee”); Wright v. Sandestin Investments, LLC, 914 F. Supp. 2d 1273, 1281 (N.D. Fla. 2012) (same); Barrilleaux v. Thayer Lodging Grp., Inc., No. Civ. A. No. 97-3252, 1999 WL 144110, at *4 (E.D. La. Mar. 12, 1999) (same). Given the precedent for such a determination, and the undisputable evidence weighing heavily in favor of a finding of successorship, Plaintiff respectfully requests that this Court enter an order holding that, with respect to the Wall Township Grocery Store, Defendant constitutes “successor-in-interest” within the meaning of the FMLA, and that accordingly, Plaintiff was an “eligible employee” under same. b. Plaintiff was entitled to a leave of absence under the FMLA and had given notice of his intention to take same. To prove eligibility under the FMLA, Plaintiff must show that (1) he was entitled to take a leave of absence under the FMLA; (2) that he gave notice of his intention to take such a leave of absence; and (3) that Defendant denied him the benefits of same of the FMLA. As set forth below, factors related to Plaintiff’s entitlement to take leave, and notice related to same are easily supported by the factual record in this matter. Employees who suffer from a “serious health condition” are entitled to a leave of absence under the FMLA for up to 12 weeks during a 12 month period. 29 C.F.R. 825.200(a). Plaintiff’s Medical Condition and need for leave associated with same are well documented. Plaintiff suffered from a chronic condition for which he required surgical intervention in September 2015. PSUF at ¶¶ 9-10. This Medical Condition and need for leave were are confirmed in the medical documents as well as Physician’s Certification that Plaintiff completed for purposes of his FMLA leave. Id. at ¶¶ 11-12. Case 3:16-cv-02262-PGS-TJB Document 52 Filed 02/15/18 Page 27 of 36 PageID: 826 23 Plaintiff provided notice of his Medical Condition and intention to take an FMLA- qualifying leave of absence prior to beginning same. Id. Store Manager Joan Perez and Assistant Store Manager Ernie Lawrence admit that Plaintiff verbally notified them of his Medical Condition and need for leave associated with same. Id. at ¶ 11. Given that Perez and Lawrence were aware Plaintiff’s leave of absence was for an FMLA-qualifying event, there is reason to impute knowledge to Defendant that Plaintiff was attempting to return to work following an FMLA- qualifying leave. See e.g. Jolliffe v. Mitchell, 971 F. Supp. 1039, 1042 (W.D. Va. 1997) (imputing knowledge of employee’s need for FMLA-qualifying leaves of absence to successor employer when employee had provided management with notice of a serious medical condition prior to the change in ownership). c. Acme interfered with Plaintiff’s FMLA rights when it failed to reinstate him on November 16, 2015. The FMLA requires that “[w]hen an employer is a successor in interest, employees’ entitlements are the same as if the employment by the predecessor and successor were continuous employment by a single employer. The statute requires that a successor employer “continue leave begun while employed by the predecessor, including maintenance of group health benefits during the leave and job restoration at the conclusion of the leave.” 29 C.F.R. § 825.107(c). Thus, Defendant was required to reinstate Plaintiff to work at the Wall Township Grocery Store upon the completion of his leave, and its failure to do so constituted a denial of Plaintiff’s rights in accordance with same. See e.g. Budhun v. Reading Hosp. & Med. Ctr., 765 F.3d 245, 253 (3d Cir. 2014) (holding that an employer’s failure to return an employee to work, following the employee’s notice of her ability to return, constitutes FMLA interference); Wright v. Sandestin Investments, LLC, 914 F.Supp.2d 1273 (N.D. Fl. Dec. 12, 2012) (holding that absent an employer’s ability to Case 3:16-cv-02262-PGS-TJB Document 52 Filed 02/15/18 Page 28 of 36 PageID: 827 24 justify a lawful reason for termination, an employee who begins a leave of absence under a predecessor employee may successfully assert an FMLA interference claim against a successor employer who fails to reinstate said employee following the conclusion of FMLA leave). In a claim similar to that of Plaintiff’s, in the Northern Florida District Court a plaintiff sought to return from an FMLA leave that began under a predecessor employer by presenting a clearance to return to work to the successor employer. A review of this fact pattern provides a basis for Plaintiff’s request for summary judgment. In Wright v. Sandestin Investments, LLC, 914 F.Supp.2d 1273 (N.D. Fl. Dec. 12, 2012), the plaintiff began a maternity leave of absence in January 2010 while working for Intrawest ULC, an entity operating the Sandestin Golf and Beach Resort (“the Resort”). While on maternity leave, the defendant, Sandestin Investments, LLC, purchased the Resort. As a result of the purchase, all previous employees of the Resort under Intrawest ULC became employees of the defendant. Nonetheless, Intrawest ULC removed all employee files and the defendant was required to create a new system of employment record keeping. Following the transition of employees, the defendant began to “change the structure” of the Resort, including engaging in reductions in force of the staff. The plaintiff was one of the individuals terminated. The plaintiff filed a claim for wrongful termination in violation of the FMLA, then moved for partial summary judgment asserting the defendant interfered with her FMLA rights when it failed to reinstate her. The defendant moved for summary judgment asserting, in relevant part, that it was not subject to FMLA liability. Upon review, the court rejected the defendant’s argument, and agreed in part with the plaintiff, holding that the defendant was a successor-in-interest and therefore was subject to liability to the plaintiff as an employer under the FMLA. Sandestin, 914 F.Supp.2d at 1281 (N.D. Fl. Dec. 12, 2012). The court denied plaintiff summary judgment only on the basis that if the Case 3:16-cv-02262-PGS-TJB Document 52 Filed 02/15/18 Page 29 of 36 PageID: 828 25 defendant could prove she was the subject of a legitimate reduction-in-force, it would not be found to have violated the FMLA. Id. (“the employer will not be found to have violated the FMLA by denying reinstatement if the employer ‘demonstrate[s] that it would have discharged the employee had he not been on FMLA leave’”). In the instant matter, Defendant does not claim that it would have discharged Plaintiff had it not been for his leave. Rather, Defendant acknowledges that Plaintiff was entitled to reinstatement in full. See PSUF at ¶ 77. Thus, its failure to timely reinstate Plaintiff constitutes interference with Plaintiff’s rights under the FMLA. See e.g. Sanders v. City of Newport, 657 F.3d 772, 780–81 (9th Cir. 2011) (holding that the McDonnell Douglas burden shifting is not applicable to FMLA interference claims and that it is the employer who denies an employee reinstatement following FMLA leave has the burden of establishing an employee was not entitled to reinstatement); Throneberry v. McGehee Desha Cty. Hosp., 403 F.3d 972, 979 (8th Cir. 2005) (once an employee proves denial of reinstatement following FMLA leave, the burden is on the defendant to show the employee would have been terminated despite the leave); O'Connor v. PCA Family Health Plan, Inc., 200 F.3d 1349 (11th Cir. 2000) (same). d. Acme’s eventual acknowledgment that Plaintiff was entitled to reinstatement cannot cure its violation of the FMLA. Under the FMLA, the employer’s duty to reinstate the employee is triggered as soon as the employee provides a clearance to return to work.5 See e.g. Budhun, 765 F.3d at 253, quoting 5 Though Defendant has never asserted that Plaintiff’s clearance to return to work itself was insufficient, in accordance with the statute, any note that identifies an employee is able to return to work is deemed sufficient unless an employer has previously communicated a greater standard to the employee. Dykstra v. Florida Foreclosure Attorneys, PLLC, 183 F. Supp. 3d 1222, 1227 (S.D. Fla. 2016) (holding that an employee who submits a clearance to return to work from FMLA leave is entitled to immediate reinstatement even if the employee was unable to complete all essential functions of the job). Given that Defendant did not provide Plaintiff with any communication as to the clearance Case 3:16-cv-02262-PGS-TJB Document 52 Filed 02/15/18 Page 30 of 36 PageID: 829 26 Brumbalough v. Camalot, 427 F. 3d 996 (6th Cir. 2005) (“[O]nce an employee submits a statement from her health care provider which indicates that she may return to work, the employer's duty to reinstate her has been triggered under the FMLA”); James v. Hyatt Regency Chicago, Civ. A. No. 12-1511 (7th Cir. 2013) (same) Howard v. Inova Health Care Servs., 302 Fed. Appx. 166, 175-176 (4th Cir. Va. Dec. 5, 2008) (same). Thus, any delay in reinstating an employee to work, including even a minor delay, constitutes interference with the FMLA. See Casagrande v. OhioHealth Corp. Civ. A. No. 15-3292 (6th Cir. Dec. 20, 2016) (holding that an employer who received a return to work note in January 2013 interfered with the employee’s FMLA rights when it failed to return the employee to work until March 18, 2013); citing Hoge v. Honda of Am. Mfg., Inc., 384 F.3d 238, 250 (6th Cir. 2004) (rejecting the argument that an employer should be given a “reasonable” amount of time following the employee’s communication of a return to work ability to reinstate said employee, confirming that any failure to immediately return an employee to work following the receipt of a return to work note constitutes FMLA interference). Plaintiff’s Store Manager Ernie Lawrence admits that on November 9, 2015 he received indication that Plaintiff was able to return to work on November 16, 2015. PSUF at ¶¶ 20, 59. Nonetheless, Acme did not return Plaintiff to work following his submission of the note. Rather, due to Lawrence’s inability to see Plaintiff as active in the “system” he advised Plaintiff that he could not return until same was remedied. Id. at ¶ 61. Thereafter, Plaintiff took multiple actions to seek reinstatement. See e.g. id. at ¶¶ 64-68. Despite same, Acme did not confirm Plaintiff’s right to reinstatement to the Wall Township Grocery Store managers at any time. Accordingly, Store necessary to return from FMLA leave submitted by Plaintiff to Defendant (its submission being uncontested) must be deemed sufficient to trigger Defendant’s duty to reinstate Plaintiff. Case 3:16-cv-02262-PGS-TJB Document 52 Filed 02/15/18 Page 31 of 36 PageID: 830 27 Manager Lawrence did not schedule Plaintiff to work at the Wall Township Grocery Store at any time following Acme’s acquisition of same. Id. at ¶ 65. Though Defendant eventually acknowledged that Plaintiff was entitled to a return to work (via communication from Acme Human Resources to A&P Human Resources), same did not occur until December 29, 2015, id. at ¶ 77, at which point Plaintiff had already secured other employment. The FMLA declares it “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided” in the FMLA. 29 U.S.C. §2615(a)(1). This prohibition against “interference” is so guarded that the Department of Labor has issued a regulation that makes clear that it is a per se violation of the interference provisions of the FMLA for an employer. 29 CFR §825.220(c). Thus, in FMLA interference claims, a defendant cannot avoid liability simply because there existed legitimate reasons for its adverse actions; the only question in an FMLA interference claim is whether the defendant used an FMLA protected leave as a negative factor in discharging the employee: [T]here is no room for McDonnell Douglas type of pretext analysis when evaluating an ‘interference’ claim under this statute. The question here is not whether [Defendant] had additional reasons for the discharge, but whether [Plaintiff’s] taking of the [protected] FMLA-protected leave was used as a negative factor in her discharge. Balchelder v. American West Airlines, Inc., 259 F.3d 1112, 1131 (9th Cir. 2001) (emphasis added); see also Conoshenti v. Public Service Electric & Gas Co., 364 F.3d 135 (3d Cir. 2004). In Conoshenti, the Third Circuit adopted the per se (i.e., strict liability) holdings of Balchedler, when it comes to interference claims: The Ninth Circuit, we believe appropriately, has predicated liability in such situations on § 825.220(c) of the regulations (quoted above), which is found in a section implementing § 2615(a) of the [FMLA] that, as we have noted, makes it Case 3:16-cv-02262-PGS-TJB Document 52 Filed 02/15/18 Page 32 of 36 PageID: 831 28 unlawful to interfere with, restrain or deny any FMLA right . . . [the Ninth Circuit and the DOL were] reasonable in concluding that employers utilizing the taking of FMLA leave as a negative element in employment decisions would inevitably chill employees in exercising those rights. Conoshenti, 364 F.3d at n. 9 (3d Cir. 2004) (emphasis added). Since the Third Circuit’s 2004 decision in Conoshenti, the Third Circuit has been steadfast in holding that FMLA interference claims give rise to per se liability (i.e., strict liability), even when legitimate business reasons would have independently lead to the adverse employment action. Callison v. City of Philadelphia, 430 F.3d 117, 119-120 (3d Cir. 2005) (in an interference claim “the employer cannot justify its actions by establishing a legitimate business purpose for its decision”; rather, liability is based on the act of interference itself); see also Sinacole v. iGate Capital, 287 Fed.Appx. 993, 995 (3d Cir. 2008) (as an FMLA interference claim is “not about discrimination, a McDonnell-Douglas burden-shifting analysis is not required”); Sommer v. The Vanguard Group, 461 F.3d 397, 399 (3d Cir. 2006) (“An interference action is not about discrimination, it is only about whether the employer provided the employee with the entitlements guaranteed by the FMLA”). So too have district courts within the Third Circuit. See, e.g., Pinson v. Berkley Med. Res., Inc., 2005 U.S. Dist. LEXIS 13045 at *44, Civil Action No. 03-1255 (W.D. Pa, 2005) (“Employers are strictly liable for interfering with the FMLA rights of their employees”). Thus, while summary judgment for plaintiffs is rare in employment claims, based upon a strict interpretation of the FMLA’s requirements, this Court has shown a willingness to grant such judgment to plaintiffs for a defendant’s interference with a plaintiff’s entitlements under same. See Young v. Wackenhut, Civ. A. No. 10-2608, 2013 WL 435971, at *1 (D.N.J. Feb. 1, 2013) (D.N.J. February 2013) (Cavanaugh, J.). In Young v. Wackenhut, the court granted plaintiff summary judgment on her FMLA interference claims after a finding that the defendant failed to comply with Case 3:16-cv-02262-PGS-TJB Document 52 Filed 02/15/18 Page 33 of 36 PageID: 832 29 the FMLA’s notice requirements. Id. The plaintiff requested a maternity leave in April 2009. Though the defendant included a summary of employee FMLA rights in its employment manual, the defendant did not provide plaintiff with individualized notice following her notification of an intent to take FMLA leave. Thereafter, when the plaintiff submitted an application for FMLA leave in connection with her pregnancy, the employer failed to provide her a designation notice identifying her required return to work date. Rather, on November 30, 2009, plaintiff received a phone call from the defendant advising that her FMLA leave had been exhausted and that she needed to return with a doctors’ note. When the plaintiff did not appear for work on December 1, 2009, the defendant terminated her. Id. Though the plaintiff had taken more than 12 weeks FMLA leave at the time she was terminated, this Court held that by failing to provide appropriate notice, plaintiff was prejudiced in her ability to structure her FMLA leave. Accordingly, this Court entered summary judgment on Plaintiff’s interference claim. Id. The Court based its holding on the basis that any violation of the “prescriptive sections of the FMLA which create substantive rights for eligible employees,” constituted interference with the statute. In the instant matter, Defendant interfered with Plaintiff’s right to reinstatement following the termination of his FMLA leave, a right explicitly set forth in the statute. In accordance with same, summary judgment is warranted. IV. CONCLUSION When Acme purchased the Wall Township Grocery Store, it became a successor in interest to A&P. As such, Plaintiff was entitled to return to work following the completion of an FMLA- qualifying leave. Defendant denied Plaintiff this benefit. Following its acquisition of A&P stores, Defendant tasked store level management with ensuring that employees returning from leave were promptly reinstatement. Nonetheless, when Case 3:16-cv-02262-PGS-TJB Document 52 Filed 02/15/18 Page 34 of 36 PageID: 833 30 Plaintiff provided store level management with notification of his ability to return to work, neither Store Manager Joan Perez, nor Assistant Store Manager Ernie Lawrence, placed Plaintiff on the schedule at the Wall Township Grocery Store because they did not see Defendant in the “system.” Though Plaintiff and Store Manager Lawrence, along with Plaintiff’s Union, attempted to remedy this issue, Defendant’s own agents did not properly communicate with Store Level management as to Plaintiff’s eligibility. Thus, by failing to timely reinstate Plaintiff, Defendant denied Plaintiff the benefit to which he was entitled. This inexcusable delay is more reminiscent of a Franz Kafka story, a Dilbert cartoon, or black comedy satirizing the heartlessness of a faceless modern corporation than the actions of a company that states on its website that it has given more than $270 million in food and financial support to more than 2,300 communities, that ostensibly prides itself on improving the lives of millions of people , including people with disabilities, and claims it is committed to making a meaningful difference, neighborhood by neighborhood. See Acme – Traditions & History, available at http://www.acmemarkets.com/our-company/traditions-history (last visited February 15, 2017). Defendant hired all of Plaintiff’s co-workers; Defendant required Plaintiff to attend the new Acme orientation; Defendant told Plaintiff’s union that it would hire all union members subject to the same seniority and terms and conditions that had applied under A&P. The moral case for making Plaintiff whole is clear; the legal case is even clearer. Plaintiff is entitled to Summary Judgment due to Defendant’s failure to timely reinstate him to employment. As such, Plaintiff respectfully requests that this Court enter an order finding that (1) Acme constitutes a successor-in-interest to A&P; and that (2) Acme interfered with Plaintiff’s rights Case 3:16-cv-02262-PGS-TJB Document 52 Filed 02/15/18 Page 35 of 36 PageID: 834 31 under the FMLA when it denied him reinstatement to employment following the completion of his FMLA leave. Respectfully submitted, /s/ Joshua S. Boyette Manali Arora, Esq. Joshua Boyette, Esq. SWARTZ SWIDLER, LLC 1101 Kings Highway North, Suite 402 Cherry Hill, NJ 08034 Ph: (856) 685-7420 Fax: (856) 685-7417 Attorneys for Plaintiff DATED: February 15, 2018 Case 3:16-cv-02262-PGS-TJB Document 52 Filed 02/15/18 Page 36 of 36 PageID: 835