BOWIE v. COSTCO WHOLESALE CORPORATION

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

____________________________________

:

JEFFREY BOWIE, :

: Case No. 3:16-cv-5808(BRM)(LHG)

Plaintiff, :

:

v. :

: OPINION

COSTCO WHOLESALE :

CORPORATION, :

BRUCE DZENEORF, and :

JOHN AND JANE DOES 1-10, :

:

Defendants. :

____________________________________:

MARTINOTTI, DISTRICT JUDGE

Before this Court is Defendants Costco Wholesale Corporation (“Costco”) and Bruce

Dezendorf’s (“Dezendorf”) (collectively, “Defendants”) Motion for Summary Judgment. (ECF

No. 32.) Plaintiff Jeffrey Bowie (“Bowie”) opposes the Motion. Having reviewed the submissions

filed in connection with the Motion and having held oral argument on July 9, 2019, pursuant to

Federal Rule of Civil Procedure 78(a), for the reasons set forth below and for good cause shown,

Defendants’ Motion for Summary Judgment is GRANTED.

I. BACKGROUND

This case involves Bowie’s termination from Costco. The main question before the Court

is whether Bowie was discriminated by being terminated because he exercised his scheduling

accommodation by leaving work early and coming in late to take care of his autistic son or for

committing four Costco policy violations in a week.

A. Costco’s Corporate Structure

Costco, a Washington corporation, operates warehouses to “provide non-food items, food

items, and other merchandise and ancillary products to its ‘members.’” (ECF No. 32-2 ¶ 1 and

ECF No. 35-2 ¶ 1.) One of those warehouses is located in Brick, New Jersey (“Brick Warehouse”).

(ECF No. 32-2 ¶ 2 and ECF No. 35-2 ¶ 2.) Every Costco warehouse is operated by a general

manager, who oversees all operations at his warehouse and who is supported by two to four

assistant general managers, as well as a team of senior or staff level managers. (ECF No. 32-2 ¶¶

3, 5 and ECF No. 35-2 ¶¶ 3, 5.) The general managers report to a regional vice president, who in

turn reports to a Costco’s senior vice president. (ECF No. 32-2 ¶ 4 and ECF No. 35-2 ¶ 4.) The

senior vice president then reports to an executive vice president and chief operating officer for the

Eastern United States and Canada. (ECF No. 32-2 ¶ 4 and ECF No. 35-2 ¶ 4.)

Bruce Dezendorf (“Dezendorf”) was the General Manager of the Brick Warehouse from

August 2013 to present. (ECF No. 32-2 ¶ 3 and ECF No. 35-2 ¶ 3.)1 At all relevant times, Paul

Pulver (“Pulver”) was the Regional Vice President of the Brick Warehouse, Jeff Long (“Long”)

was the Senior Vice President, and Joe Portera (“Portera”) was the Executive Vice President and

Chief Operating Officer of the United State and Canada. (ECF No. 32-2 ¶ 4 and ECF No. 35-2 ¶

4.) Pulver, Long, and Portera work out of Costco’s regional corporate offices in Virginia. (ECF

No. 32-2 ¶ 4 and ECF No. 35-2 ¶ 4.) In addition, during the relevant time period, Jim Mack

(“Mack”), Peter Demoleas (“Demoleas”), and Bowie were Assistant General Managers at the

Brick Warehouse. (ECF No. 32-2 ¶¶ 7-8 and ECF No. 35-2 ¶¶ 7-8.)

Bowie has sole custody of his five children, one whom is autistic and disabled. (ECF No.

32-2 ¶ 10; ECF No. 35-2 ¶ 10; ECF No. 35-1 ¶ 1.) He began his employment with Costco in 1994

1 Dezendorf is legally blind. (ECF No. 32-2 ¶ 3 and ECF No. 35-2 ¶ 3.)

as a forklift operator in the Edison, New Jersey warehouse. (ECF No. 32-2 ¶ 38; ECF No. 35-2 ¶

38; ECF No. 35-1 ¶ 2.) Through a series of promotions and relocations, Bowie eventually became

an Assistant General Manager at the Brick Warehouse. (ECF No. 32-2 ¶¶ 38-40; ECF No. 35-2 ¶¶

38-40; ECF No. 35-1 ¶¶ 3-5.)

B. Costco’s Employee Agreement

In March 2013, Costco issued an Employee Agreement, which articulated Costco’s Equal

Opportunity policy that

employees should be able to enjoy a work environment free from all

forms of unlawful employment discrimination. All decisions

regarding recruiting, hiring, promotion, assignment, training,

termination, and other terms and conditions of employment will be

make without unlawful discrimination on the basis of race, color,

national origin, ancestry, sex, sexual orientation, gender identity or

expression, religion, age, pregnancy, disability, work-related injury,

covered veteran status, political ideology, genetic information,

marital status, or any other fact that the law protects from

employment discrimination.

(Ex. 10 to ECF No. 32-4 at 13.) Costco’s Employee Agreement also intends to comply with its

duty to provide reasonable accommodations to people with disabilities. (Id.) Costco maintains a

policy governing reports of harassment, discrimination, or retaliation. (Id. at 14.) Any such claims

should be reported to a manager or higher and will be investigated. (Id.) “In cases where

investigation confirms the allegations, appropriate corrective action will be taken, regardless of

whether the inappropriate conduct rise to the level of any violation of law.” (Id.) In addition,

employees will not suffer retaliation for reporting any violation of Costco’s policy or unlawful

discrimination, harassment, or retaliation. (Id. at 13.) Costco also maintains an Open-Door Policy,

meaning that an employee has “the option of contacting any Supervisor or Manager to help you

resolve problems.” (Id. at 11.) Bowie received a copy of the Costco’s Employee Agreement, and

as Assistant Manager, employees approached Bowie on a regular basis through the Open-Door

Policy. (ECF No. 32-2 ¶¶ 16, 19 and ECF No. 35-2 ¶¶ 16, 19.)

Section 7.0 of the Employee Agreement also sets forth Costco’s policies regarding the use

of the Family Medical Leave Act (“FMLA”). (Ex. 10 to ECF No. 32-4.) A Costco employee is

eligible for up to twelve work weeks of FMLA leave during a 12-month period if they have been

employed by Costco for at least twelve months and worked at least 1,250 hours during that twelve-

month period. (Id. at 44.) FMLA leave is available for the birth of a child; family care for a spouse,

child, or parent; a serious health condition, qualifying exigencies, and injured servicemember care.

(Id. at 44-45.) FMLA leave “may be taken intermittently or on a reduced schedule basis (e.g., by

working fewer days in a week or by working fewer hours in a day) only if medically necessary.”

(Id. at 45.)

To receive FMLA leave, an employee is required to submit appropriate paperwork to have

the leave approved. (Id. at 46.) A health care provider is required to certify the need for leave and

the duration for leave. (Id.) Costco’s paperwork is accessible to employees in the administrative

office and the employee intranet. (Id.) The Payroll Clerk is responsible for distributing Costco’s

FMLA forms to inquiring employees, collecting completed forms, calculating employees’ work

hours, and submitting the forms to headquarters for review and approval. (ECF No. 32-2 ¶ 24 and

ECF No. 35-2 ¶ 24.) Bowie was trained to direct employees inquiring about FMLA leave to the

payroll department. (ECF No. 35-2 ¶¶ 25-26.) Bowie applied for FMLA leave three times while

working at the Brick Warehouse when his children were born. (ECF No. 32-2 ¶ 27 and ECF No.

35-2 ¶ 27.)

Section 11.7 of the Employment Agreement sets forth Costco’s Standard of Ethics—

Managers/Supervisors. (Ex. 10 to ECF No. 32-4 at 77.) When accepting a management position,

an employee “must be committed to and demonstrate a role of honesty and forthrightness. Any

time there is the slightest doubt about an activity that could be questioned regarding honesty,

integrity or intent, you must discuss it without your Manager or Regional Vice President to remove

any doubt.” (Id.) “Managers must never engage in any activity which could raise a question

concerning their integrity.” (Id.) Bowie was aware of and understood this section of the

Employment Agreement. (ECF No. 32-2 ¶ 31 and ECF No. 35 ¶ 31.)

The Employment Agreement also set forth causes for termination in Section 11.3. (Ex. 10

to ECF No. 32-3 at 70-73.) In relevant part, causes for termination include: (1) violating company

policies prohibiting harassment or discrimination; (2) violating the manager’s standard of ethics;

(3) dishonest including, theft of any kind; (4) unauthorized entry or exit from the Costco premises;

and (5) “[e]xtending or receiving unauthorized discounts, refunds, or credits, including but not

limited to . . . [r]inging up one’s own sales or a family member’s sales.” (Id.) Prior to termination,

however,

the employment of an individual who has been employed two or

more years, the circumstances must be reviewed with a Senior Vice

President or above. Prior to terminating the employment of an

individual who has been employees five or more years, the

circumstances must be reviewed with an Executive Vice President

or above.

(Id. at 28.)

C. Bowie’s Accommodation

In 2012, Bowie utilized the Open-Door policy to speak with the former General Manager

of the Brick Warehouse, Leonard Wohlgemuth (“Wohlegemuth”), to request an accommodation

to care for his disabled son. (ECF No. 32-2 ¶ 51 and ECF No. 35-2 ¶ 51.) Specifically, he requested

to leave early or come in late to work to care for his son. (ECF No. 32-2 ¶ 52 and ECF No. 35-2 ¶

52.) Wohlgemuth approved such accommodation at least twice. (Id.) The parties dispute whether

Wohlgemuth’s approval allowed Bowie to leave early or arrive late, without requesting prior

permission from senior management. (ECF No. 32-2 ¶¶ 52-54; ECF No. 35-2 ¶¶ 52-54; ECF No.

35-1 ¶ 16; and ECF No. 36 ¶ 16.) They further dispute whether Bowie was required to file for

formal FMLA leave following their conversation. (ECF No. 32-2 ¶ 55; ECF No. 35-2 ¶ 55; ECF

No. 35-1 ¶ 17; and ECF No. 36 ¶ 17.)

In August 2013, Dezendorf became the new General Manager of the Brick Warehouse.

(ECF No. 32-2 ¶ 56 and ECF No. 35-2 ¶ 56.) Bowie informed Dezendorf of his accommodation,

that he would need to either come in late or leave early to care for his disabled son. (ECF No. 32-

2 ¶ 59 and ECF No. 35-2 ¶ 59.) Dezendorf agreed with the previous arrangement. (ECF No. 32-2

¶ 60 and ECF No. 35-2 ¶ 60.) However, Dezendorf recalls asking Bowie to notify him when he

was coming in late or leaving early, which Bowie argues was never a part of the accommodation.

(Id.) Again, after advising Dezendorf of his accommodation, he did not file for formal FMLA leave

because he was allegedly told it was unnecessary. (ECF No. 32-2 ¶ 61 and ECF No. 35-2 ¶ 61.)

Bowie utilized his informal accommodation with no issue until Dezendorf went on vacation. (ECF

No. 32-2 ¶ 62 and ECF No. 35-2 ¶ 62.)

D. Bowie Violates Costco Employee Agreement

From September 25, 2014 to October 3, 2014, Dezendorf took a vacation. When he

returned from vacation, an unidentified Costco employee notified him that Bowie had been leaving

early or arriving late while he was away. (ECF No. 32-2 ¶ 75 and ECF No. 35-2 ¶ 75.) As a result

of the complaint, Dezendorf initiated an investigation on October 7, 2014, “aimed at discovering

when Bowie was getting to and leaving work” and to investigate issues brought by another

employee Jessica Vaughn regarding Bowie’s taking of a teakettle and oatmeal without prior

purchase. (ECF No. 35-1 ¶¶ 24-25; see ECF No. 32-2 ¶ 75; ECF No. 35-2 ¶ 75.) The investigation

revealed Bowie violated Costco’s Employee Agreement.

1. Teakettle and Oatmeal Pack

On September 15, 2014, Bowie removed a teakettle and an oatmeal pack from the Brick

Warehouse sales floor without first paying for such items. (ECF No. 32-2 ¶ 64 and ECF No. 35-2

¶ 64.) At oral argument, Bowie admits both actions occurred, however, he claims it was appropriate

to take the oatmeal pack because his girlfriend had already purchased another oatmeal pack at the

Manahawkin Warehouse that she forgot to take. Therefore, he was replacing the one she forgot.

(ECF No. 32-2 ¶ 64 and ECF No. 35-2 ¶ 64.)

With respect to the teakettle, Bowie alleges “he removed the teakettle from the sale floor

for general use in the office and further explained that he had asked the Administration Manager,

Ronn Neil, to purchase the teakettle on the warehouse ‘supply card,’ and that he would verify the

purchase was completed.” (ECF No. 32-2 ¶ 66 and ECF No. 35-2 ¶ 66.) The “supply card” is a

credit card that Costco employees use to purchase merchandise that is intended for common use

within the warehouse. (ECF No. 32-2 ¶ 67 and ECF No. 35-2 ¶ 67.) However, items for use in the

warehouse must be purchased before use at a register with the supply card and with the prior

approval of a senior manager, such as a general or assistant general manager, which did not occur

in this circumstance. (ECF No. 32-2 ¶ 68 and ECF No. 35-2 ¶ 68.) Instead, Bowie stored the

teakettle between his desk and a co-worker’s desk for use by all employees prior to purchasing it

on the supply card. (ECF No. 35-1 ¶ 36; ECF No. 32-2 ¶ 93; and ECF No. 35-2 ¶ 93.) “While he

did not place the teakettle on the supply car personally, he gave the bar code to Ronn Neil, the

administration manager, and instructed him to do so.” (ECF No. 35-1 ¶ 37 and ECF No. 32-2 ¶ 93.)

At oral argument, the parties conceded Bowie eventually placed the teakettle on the supply card

after several reminders and three weeks after removing it from the sales floor.

2. Exit Through an Unauthorized Exit

The investigation, during the review of video surveillance footage from the time Dezendorf

was on vacation, revealed Bowie had exited the Brick Warehouse through the tire shop garage

doors, an unauthorized exit, with vase flowers he had purchased. (ECF No. 32-2 ¶ 76 and ECF No.

35-2 ¶ 76.) Costco members and employees are required to exit through the appropriate authorized

exit to have their receipts checked. (ECF No. 32-2 ¶ 77 and ECF No. 35-2 ¶ 77.) Bowie became

aware that was an unauthorized exit because, on July 4, 2014, Dezendorf explained to him that

exiting the Brick Warehouse through the tire shop was inappropriate. (ECF No. 32-2 ¶ 80 and ECF

No. 35-2 ¶ 80.)

3. Unauthorized Refund to Family Member

Review of the video surveillance also exposed that Bowie refunded an eight-year-old

television belonging to his brother. (ECF No. 32-2 ¶ 81 and ECF No. 35-2 ¶ 81.) On July 2, 2006,

Bowie’s wife purchased a 55-inch television, which was later returned by Bowie’s brother on

August 1, 2006 for a 60-inch television. (ECF No. 32-2 ¶ 82 and ECF No. 35-2 ¶ 82.) In September

2014, the television broke and Bowie’s brother sought a refund under the Costco “Satisfaction

Guaranteed” policy. (ECF No. 32-2 ¶ 83 and ECF No. 35-2 ¶ 83.) Therefore, Bowie’s brother

contacted Bowie, who “verified that the ‘Satisfaction Guarantee’ policy applied to the television

because it was purchased before the new 90-Day Policy was implemented.” (Id.) As such, on

September 20, 2014, Bowie arranged to return the television. (ECF No. 32-2 ¶ 84 and ECF No.

35-2 ¶ 84.) Bowie asked Daryl Geise, a Front-End supervisor to refund the television. (ECF No.

32-2 ¶ 89 and ECF No. 35-2 ¶ 89.) Geise then helped Bowie’s brother select and purchase a new

television and extended warranty. (ECF No. 32-2 ¶ 91 and ECF No. 35-2 ¶ 91.)

Bowie contends he did nothing wrong in approving the refund because the computer

verified that the television could be refunded. (ECF No. 35-2 ¶ 90.) Bowie “believed that he did

nothing wrong by issuing a $2,539.99 refund to a family member without first consulting with

Dezendorf because the refund fell under the ‘Satisfaction Guaranteed’ return policy.” (ECF No.

32-2 ¶ 97 and ECF No. 35-2 ¶ 97.) However, he understood he could not make the return, as he

was a family member and therefore, had a supervisor make the return. (ECF No. 32-2 ¶ 98 and

ECF No. 35-2 ¶ 98.) Nevertheless, Geise, as a supervisor, did not have the independent authority

to approve the refund, and it was ultimately authorized by Bowie. (ECF No. 32-2 ¶ 90 and ECF

No. 35-2 ¶ 90.)

4. Bowies Early Departures and/or Late Arrivals

The investigation confirmed the anonymous employee report that Bowie was leaving the

Brick Warehouse early and/or coming in late without informing senior management while

Dezendorf was away.2 (ECF No. 32-2 ¶ 100 and ECF No. 35-2 ¶ 100.) On October 9, 2014, after

reviewing the video footage, Dezendorf asked to speak with Bowie regarding his early departures

and late arrivals. (Id.) Bowie alleges Dezendorf accused him of “stealing company time.” (ECF

No. 35-1 ¶ 30.)3 Bowie responded by explaining that he needed to care for his son and Dezendorf

dropped the subject and moved on to another topic. (ECF No. 32-2 ¶¶ 101-106; ECF No. 35-2 ¶¶

101-106; and ECF No. 35-1 ¶ 31.)

2 Bowie maintains his prior agreement with Wohlgemuth, regarding his accommodation, did not

require him to inform senior management. (ECF No. 35-2 ¶ 101.)

3 Defendants deny ever stating that and instead contend Dezendorf merely “informed Bowie that

he received reports from other employees that Bowie left the warehouse early and/or came in late

without informing management, and requested that [Bowie] explain.” (ECF No. 36-1 ¶ 30.)

E. Bowie’s Termination

On October 9, 2014, Dezendorf sent an investigation memorandum outlining Bowie’s

policy violations to Pulver for review. (ECF No. 32-2 ¶ 109 and ECF No. 35-2 ¶ 109.) After

reviewing the investigation memorandum, Pulver asked Dezendorf to obtain a more detailed

statement from Bowie concerning his policy violations. (ECF No. 32-2 ¶ 110 and ECF No. 35-2

¶ 110.) As such, on October 10, 2014, Dezendorf provided Bowie with four handwritten questions

to answer, which Bowie did. (ECF No. 32-2 ¶ 111 and ECF No. 35-2 ¶ 111.) The questions

provided did not address Bowie’s late arrivals and early departures, as those were not included in

Dezendorf’s investigation memorandum. (ECF No. 32-2 ¶¶ 111-12 and ECF No. 35-2 ¶¶ 111-12.)

Ultimately, Pulver reviewed Bowie’s statement, an updated investigation memorandum written by

Dezendorf, investigation notes related to the anonymous complaint against Bowie, and

investigation files maintained by Costco concerning Bowie’s behavior at the Manahawkin

Warehouse. (ECF No. 32-2 ¶ 114 and ECF No. 35-2 ¶ 114.) Pulver made the decision to suspend

Bowie pending further review of the circumstances. (ECF No. 32-2 ¶ 116 and ECF No. 35-2 ¶

116.)

On October 12, 2014, Dezendorf issued Bowie an Employee Counseling Notice (“ECN”)

“for violating Costco’s Standard of Ethics, serious misconduct, dishonest including grazing,

extending or receiving unauthorized discounts, refunds, or credits, and unauthorized exit from the

warehouse.” (ECF No. 32-2 ¶ 117 and ECF No. 35-2 ¶ 117.) Ultimately, Pulver recommended that

Costco terminate Bowie’s employment and presented his recommendation to Long, who agreed to

terminate him based on his review of the circumstances. (ECF No. 32-2 ¶¶ 121, 123 and ECF No.

35-2 ¶¶ 121, 123.) In turn, Long presented the termination recommendation to Portera, who made

the ultimate decision to terminate Bowie pursuant to Section 4.8 of the Employee Agreement.

(ECF No. 32-2 ¶¶ 124-25 and ECF No. 35-2 ¶¶ 124-25.) When Pulver made the recommendation

to terminate Bowie, he had no knowledge that Bowie had a son who suffered from autism, was

unaware that Bowie had an accommodation at work to provide care for his son, and did not know

Bowie was leaving early or coming in late without advising senior management. (ECF No. 32-2

¶ 127.)

On October 21, 2014, Bowie was issued a Termination/Resignation Form, specifying his

“employment was terminated for violating the Costco’s Manager‘s Standard of Ethics (Section

11.3(5)); serious misconduct of any kind as defined by the Company (Section 11.3(10));

dishonesty (Section 11.3(21)); and unauthorized entry or exit from Company premises at points

other than those designated for employees (Section 11.3(23)).” (ECF No. 32-2 ¶ 130 and ECF No.

35-2 ¶ 130.) However, rumors in the Brick Warehouse indicated Bowie was terminated for

“leaving the building when he was supposed to have been at work.” (ECF No. 35-13 at 10:15-25.)

F. Bowie Files This Lawsuit

On September 22, 2016, Plaintiff filed a seven-count complaint, alleging: (1) a violation of

the Americans with Disabilities Act of 1990 (“ADA”) (Count One); (2) a violation of the ADA

based on associational discrimination (Count Two); (3) a violation of the New Jersey Law Against

Discrimination (“NJLAD”) (Count Three); (4) that Dezendorf aided and abetted unlawful

discrimination under the NJLAD (Count Four); (5) claims for both intentional and negligent

infliction of emotional distress (Count Five); (6) a claim for intentional interference with Plaintiff’s

employment relationship (Count Six); and (7) violations of the Family Medical Leave Act

(“FMLA”) and the New Jersey Family Leave Act (“NJFLA”) (Count Seven). (ECF No. 1.) On

December 20, 2016, Defendants filed a Motion to Dismiss Counts Three through Seven of Bowie’s

Complaint (ECF No. 7)4 and filed a partial answer to the Complaint (ECF No. 9). On April 11,

2017, the Court heard oral argument. (ECF No. 16.) On July 26, 2017, the Court granted in part

and denied in part Defendants’ Motion to Dismiss. (ECF Nos. 19-20.) Specifically,

Defendants’ Motion to Dismiss is GRANTED IN PART and

DENIED IN PART as follows: (1) Defendants’ Motion to Dismiss

Counts One and Two as to Dezendorf is GRANTED WITH

PREJUDICE; (2) Defendants’ Motion to Dismiss Count Three is

GRANTED WITHOUT PREJUDICE as to Dezendorf and

DENIED as to Costco; (3) Defendants’ Motion to Dismiss Count

Four is GRANTED WITHOUT PREJUDICE; (4) Defendants’

Motion to Dismiss Count Five is GRANTED WITHOUT

PREJUDICE as to Plaintiff’s claim for intentional infliction of

emotional distress and WITH PREJUDICE as to Plaintiff’s claim

for negligent infliction of emotional distress; (5) Defendant’s

Motion to Dismiss Count Six is GRANTED WITHOUT

PREJUDICE; (6) Defendants’ Motion to Dismiss Count Seven is

GRANTED WITH PREJUDICE as to the NJFLA claim against

Dezendorf, WITHOUT PREJUDICE as to the FMLA claim

against Dezendorf, and WITHOUT PREJUDICE as to the claims

against the remaining Defendants.

(ECF No. 19 at 21-22.)5

On August 24, 2016, Bowie filed an Amended Complaint, alleging: (1) unlawful

termination based on associational disability pursuant to the ADA and NJLAD; (2) retaliation

under the ADA; (3) unlawful interference and/or retaliation under the Family Medical Leave Act

4 Although Defendants’ brief stated they were seeking partial dismissal of Bowie’s Complaint,

specifically as to Counts Three through Seven (ECF No. 7-1 at 1), they later argued “[t]here is no

alternative basis to attach individual liability to Dezendorf under Plaintiff’s remaining claims

under the ADA, FMA, or NJFLA” (Id. at 20). All ADA claims against Defendants were asserted

in Counts One and Two, not Three through Seven. Therefore, Defendants also sought to partially

dismiss Counts One and Two as to Dezendorf.

5 At the Motion to Dismiss stage, the Court found an associational disability discrimination claim

is cognizable under the NJLAD and the parties conceded to this at the summary judgment oral

argument. Since the Court’s July 26, 2017 Opinion, other courts have also found an association

claim to be valid under the NJLAD. See Calabotta v. Phibro Animal Health Corp., No. A-1576-

17T3, 2019 WL 2619890, at *8 (N.J. Super. Ct. App. Div. June 27, 2019).

and the New Jersey Leave Act; and (4) aiding and abetting liability against Dezendorf under

NJLAD. (See ECF No. 22.) Defendants filed an Answer on September 14, 2017. ECF No. 23.) On

December 14, 2018, Defendants filed a Motion for Summary Judgment. (ECF No. 32.) Bowie

opposes the Motion. (ECF No. 35.)

II. LEGAL STANDARD

Summary judgment is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter

of law.” Fed. R. Civ. P. 56(c). A factual dispute is genuine only if there is “a sufficient evidentiary

basis on which a reasonable jury could find for the non-moving party,” and it is material only if it

has the ability to “affect the outcome of the suit under governing law.” Kaucher v. Cty. of Bucks,

455 F.3d 418, 423 (3d Cir. 2006); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). Disputes over irrelevant or unnecessary facts will not preclude a grant of summary

judgment. Anderson, 477 U.S. at 248. “In considering a motion for summary judgment, a district

court may not make credibility determinations or engage in any weighing of the evidence; instead,

the non-moving party’s evidence ‘is to be believed and all justifiable inferences are to be drawn in

his favor.’” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson,

477 U.S. at 255)); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587,

(1986); Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002). “Summary judgment may not be

granted . . . if there is a disagreement over what inferences can be reasonably drawn from the facts

even if the facts are undisputed.” Nathanson v. Med. Coll. of Pa., 926 F.2d 1368, 1380 (3rd Cir.

1991) (citing Gans v. Mundy, 762 F.2d 338, 340 (3d Cir.), cert. denied, 474 U.S. 1010 (1985));

Ideal Dairy Farms, Inc. v. John Labatt, Ltd., 90 F.3d 737, 744 (3d Cir. 1996).

The party moving for summary judgment has the initial burden of showing the basis for its

motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party bears the burden

of persuasion at trial, summary judgment is appropriate only if the evidence is not susceptible to

different interpretations or inferences by the trier of fact. Hunt v. Cromartie, 526 U.S. 541, 553

(1999). On the other hand, if the burden of persuasion at trial would be on the nonmoving party,

the party moving for summary judgment may satisfy Rule 56’s burden of production by either (1)

“submit[ting] affirmative evidence that negates an essential element of the nonmoving party’s

claim” or (2) demonstrating “that the nonmoving party’s evidence is insufficient to establish an

essential element of the nonmoving party’s claim.” Celotex, 477 U.S. at 330 (Brennan, J.,

dissenting). Once the movant adequately supports its motion pursuant to Rule 56(c), the burden

shifts to the nonmoving party to “go beyond the pleadings and by her own affidavits, or by the

depositions, answers to interrogatories, and admissions on file, designate specific facts showing

that there is a genuine issue for trial.” Id. at 324; see also Matsushita, 475 U.S. at 586; Ridgewood

Bd. of Ed. v. Stokley, 172 F.3d 238, 252 (3d Cir. 1999). In deciding the merits of a party’s motion

for summary judgment, the court’s role is not to evaluate the evidence and decide the truth of the

matter, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249.

Credibility determinations are the province of the factfinder. Big Apple BMW, Inc. v. BMW of N.

Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).

There can be “no genuine issue as to any material fact,” however, if a party fails “to make

a showing sufficient to establish the existence of an element essential to that party’s case, and on

which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322-23. “[A] complete

failure of proof concerning an essential element of the nonmoving party’s case necessarily renders

all other facts immaterial.” Id. at 323; Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir.

1992).

III. DECISION

A. Unlawful Termination Based on Associational Disability Under the ADA and

NJLAD

Defendants argue Bowie’s associational disability claims pursuant to the ADA and NJLAD

fail as a matter of law because he has not established his employment was terminated because he

was associated with his disabled son. (ECF no. 32-1 at 4.) Bowie contends there are genuine issues

of material fact as to his associational disability claim. (ECF No. 35 at 4-11.) Specifically, he

argues he performed his job to Costco’s legitimate expectations until the time of discharge and

that he was terminated for utilizing his accommodation. (Id. at 7-10.)

Under 42 U.S.C. § 12112(b)(4) of the ADA, an employer is prohibited from discriminating

against an employee as a result of “the known disability of an individual with whom [the employee]

is known to have a relationship or association.” Unlike the ADA, the NJLAD does not explicitly

recognize a claim for associational disability discrimination. N.J.S.A. § 10:5-4.1. The NJLAD,

however, has “been construed in accordance with the ADA.” Tish v. Magee-Women’s Hosp. of

Univ. of Pittsburgh Med. Ctr., No. 06-820, 2008 WL 4790733, at *15 n.15 (W.D. Pa. Oct. 27,

2008) (citing Armstrong v. Burdette Tornlin Mem’l Hosp., 438 F.3d 240, 246 n.12 (3d Cir. 2006)

(“The requirements for failure to accommodate claims under [NJLAD] have been interpreted in

accordance with the [ADA].”)); Maher v. Abbott Labs., No. 11-5161, 2013 WL 6326488, at *9

(D.N.J. Dec. 4, 2013) (stating “a plaintiff may prove discrimination under the ADA and NJLAD

through the burden-shifting framework set forth by the Supreme Court in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 [] (1973)”); Moussavian v. China Ocean Shipping Co. Ams. Inc.,

No. 06-4818, 2009 WL 3074636, at *5 (D.N.J. Sept. 22, 2009) (applying the same standard for a

failure to accommodate claim under the ADA and NJLAD).

Moreover, courts within the Third Circuit, including this Court, have concluded that an

associational disability claim is similarly cognizable pursuant to the NJLAD. See, e.g., Pascucci

v. Twp. of Irvington, Irvington Police Dep’t, 46 F. App’x 114, 117 (3d Cir. 2002) (inferring an

associational cause of action exists by affirming the district court’s dismissal of that claim where

“there was no evidence that [plaintiff, who was not a member of a protected class], was subject to

a hostile work environment because of his friendship with [members of a protected class]); Bowie

v. Costco Wholesale Corp., No. 16-5808, 2017 WL 3168985, at *4 (D.N.J. July 26, 2017); Downs

v. U.S. Pipe & Foundry Co., 441 F. Supp. 2d 661, 665 (D.N.J. 2006) (finding “the New Jersey

Supreme court would hold that NJLAD bars employment discrimination based upon a person’s

association with a person with a disability”); Valenti v. Maher Terminals LLC, No. 14-7897, 2015

WL 3965645, at *5 (D.N.J. June 30, 2015) (finding the Third Circuit and this Court recognize “an

associational right under the NJLAD”); Pailleret v. Jersey Constr. Inc., No. 09–1325, 2011 WL

1485402, at *7 (D.N.J. Apr. 19, 2011) (“The NJLAD affords protection to both disabled persons

as well as individuals associated with disabled persons.”). In fact, the parties agree both the ADA

and NJLAD recognize a claim for associational disability discrimination. (ECF No. 32-1 at 5 and

ECF No. 35 at 4-5.)

Employment discrimination claims brought pursuant to the ADA and NJLAD apply the

burden-shifting framework set forth in McDonnell Douglas. See Huggard v. Crown Bank, No. 11-

6194, 2012 WL 529548, at *3 (D.N.J. Feb. 17, 2012); Olson v. Gen. Elec. Astrospace, 966 F. Supp.

312, 315 (D.N.J. 1997). Pursuant to this framework, “a plaintiff must first make out a prima facie

case of discrimination. Upon establishing a prima facie case, the burden of production shifts to the

defendant to articulate some legitimate, non-discriminatory reason for the employee’s

termination.” Huggard, 2012 WL 529548, at *3.

To establish a prima facie case of associational discrimination under the ADA and the

NJLAD, a plaintiff must show that:

(1) he was in a protected class (i.e., an individual known to have an

association or relationship with an individual who has a known

disability); (2) he was discharged; (3) at the time of his discharge,

he was performing his job at a level that met his employer's

legitimate expectations; and (4) his discharge occurred under

circumstances that raise a reasonable inference of unlawful

discrimination.

Id. (citing Stansberry v. Air Wis. Airlines Corp., 651 F.3d 482, 487 (6th Cir. 2011)).

Although an employer is prohibited from discriminating against an employee as a result of

his association with a disabled relative, “the association provision does not obligate employers to

accommodate the schedule of an employee with a disabled relative.” Id. (quoting Erdman v.

Nationwide Ins. Co., 582 F.3d 500, 510 (3d Cir. 2009)). While refusing to make reasonable

accommodations might constitute illegal discrimination against a disabled employee, 42 U.S.C. §

12112(b)(5), “the plain language of the ADA indicates that the accommodation requirement does

not extend to relatives of the disabled.” Erdman, 582 F.3d at 510 (citing 29 C.F.R. § 1630.8,

Appendix (“It should be noted [] that an employer need not provide the applicant or employee

without a disability with a reasonable accommodation because that duty only applies to qualified

applicants or employees with disabilities.”); Den Hartog v. Wasatch Academy, 129 F.3d 1076,

1084 (10th Cir. 1997) (“[T]he plain language of [§§ 12112(b)(5)(A) and (B)]—the only two

provisions requiring ‘reasonable accommodation’ in Title I of the ADA—suggests that only job

applicants or employees, but not their relatives or associates, need be reasonably

accommodated.”); Larimer v. IBM, 370 F.3d 698, 700 (7th Cir. 2004) (“[T]he right to an

accommodation, being limited to disabled employees, does not extend to a nondisabled associate

of a disabled person.”)).

“Under the association provision, there is a material distinction between firing an employee

because of a relative’s disability and firing an employee because of the need to take time off to

care for the relative.” Id. An unlawful termination must be “motivated by the known disability of

an individual with whom an employee associates, as opposed to actions occasioned by the

association.” Id. (citation omitted). To be unlawful the termination must be motivated by the

disability rather than a plaintiff’s stated intention to miss work; “in other words, that [the plaintiff]

would not have been fired if [he] had requested time off for a different reason.” Id.

Alternatively, a defendant may also be liable under the ADA or NJLAD pursuant to a “cat’s

paw” theory of unlawful discrimination. Mason v. Se. Pa. Trans. Auth., 134 F. Supp. 3d 868, 873

(E.D. Pa. 2015). “Under this theory, an employer may be liable for employment discrimination if

the source of illegal animus was not the final employment decision-maker but rather another

employee whose animus proximately caused the adverse employment action at issue in the case.”

Id. (citing McKenna v. City of Phila., 649 F.3d 171, 178 (3d Cir. 2011)). To survive a summary

judgment motion on a subordinate bias theory,

the plaintiff must first establish a genuine issue of material fact

concerning the bias of the subordinate. It must then establish

genuine issues of material fact as to whether the proffered reason for

the employment action is pretextual, which in a subordinate bias

claim requires the plaintiff to demonstrate a causal relationship

between the subordinate's actions and the employment decision.

Id. (citation omitted). Essentially,

in a “cat’s paw” case, if the evidence is viewed under a theory of

direct discrimination, the plaintiff does not so much argue personal

bias on the part of the ultimate decision-maker, but rather that one

or more persons involved deliberately tainted the decision-making

process to bring about a discriminatory result. If the evidence is

analyzed under the McDonnell Douglass inferential standard, the

argument is not quite that the decision makers invented a pretext for

termination, but rather that they acted on the basis of a false premise

because the information on which they relied was tainted by racial

animus.

Id. at 874.

Defendants contend Bowie has failed to establish an association claim under the ADA and

NJLAD because he failed to satisfy the third and fourth prong necessary to make out a prima facie

claim. (ECF No. 32-1 at 7-21.)6 The Court agrees.

Bowie has failed to establish he was performing his job at a level that met his employer’s

legitimate expectations. In less than a week, while Dezendorf was away, Bowie admittedly

committed four different Employee Agreement policy violations. First, on September 15, 2014, he

removed a teakettle from the sales floor before the Brick Warehouse opened to the public for

communal use in the office. (ECF No. 32-2 ¶ 66 and ECF No. 35-2 ¶ 66.) He did so without first

placing the item on the warehouse supply card, in violation of known protocol. (ECF No. 32-2 ¶¶

66-70 and ECF No. 35-2 ¶ 66-70.) Under Costco’s Employee Agreement, dishonesty including

grazing is a cause for termination. (Ex. 10 to ECF No. 32-4 at 72.)

Second, on September 15, 2014, Bowie also removed an oatmeal package from the sales

floor without paying for it. Bowie’s argument that he took the package to substitute the paid-for

oatmeal pack his girlfriend left at the Manahawkin Warehouse is unpersuasive. Under Costco’s

Employee Agreement, this too is a cause for termination. (Ex. 10 to ECF No. 32-4 at 72.)

Third, on September 17, 2014, despite being told not to do so, Bowie exited the Brick

Warehouse through the tire shop with purchased merchandise. (ECF No. 32-2 ¶¶ 76, 80 and ECF

No. 35-2 ¶¶ 76, 80.) Costco members and employees are required to exit through specific

authorized exit to have their receipts checked. (ECF No. 32-2 ¶ 77 and ECF No. 35-2 ¶ 77.) Under

6 The first two prongs are not in dispute and will not be addressed by this Court.

Costco’s Employment Agreement, unauthorized entry or exit from the premises at points other

than those designated for employees is a cause for termination. (Ex. 10 to ECF No. 32-4 at 73.)

Fourth, on September 20, 2015, Bowie ultimately approved a refund of his brother’s eight-

year-old television. (ECF No. 32-2 ¶¶ 81-84 and ECF No. 35-2 ¶¶ 81-84.) While he asked Geise

to refund the television, as a supervisor, she did not have the independent authority to approve the

refund, and he ultimately approved it himself. (ECF No. 32-2 ¶¶ 90, 98 and ECF No. 35-2 ¶¶ 90,

98.) Under Costco’s Employment Agreement, extending or receiving unauthorized discounts,

refunds, or credits, including but not limited to, ringing up one’s own sales or a family member’s

sales is a cause for termination. (Ex. 10 to ECF No. 32-4 at 72.)

Any of the above violations, in isolation or combination, prevent Bowie from establishing

that he was performing his job at a level that met Costco’s legitimate expectations. Maietta v.

United Parcel Serv., Inc., 749 F. Supp. 1344, 1371 (D.N.J. 1990), aff’d, 932 F.2d 960 (3d Cir.

1991) (finding the plaintiff failed to establish a prima facie case for discrimination because he had

not established he was qualified for his job in light of his misconduct, falsifying reports). In fact,

at oral argument, Bowie conceded that he did not comply with the letter of Costco’s policies but

instead argued he complied with them in spirit. Bowie’s attempt to justify his actions is immaterial,

as he admits he violated the Employee Agreement. Accordingly, Bowie has failed to establish a

prima facie case.

Nevertheless, the Court finds Bowie has also failed to satisfy the fourth prong because he

has failed to establish that his termination occurred under circumstances that raise a reasonable

inference of unlawful discrimination. The record is devoid of any evidence indicating that Costco’s

decision to terminate Bowie was motivated by his son’s disability. Bowie’s only purported

evidence of discrimination is his belief that his termination occurred because Dezendorf was

displeased with him leaving early and/or arrived late to work to care for his disabled son while he

was on vacation. However, Dezendorf has been aware of Bowie’s son’s disability for at least a

year prior to Bowie’s termination and never had an issue accommodating Bowie’s requests to

come in late or leave early. (ECF No. 32-2 ¶¶ 56, 59-60 and ECF No. 35-2 ¶¶ 56, 59-60.) In fact,

Bowie admits he utilized his informal accommodation with no issue until Dezendorf went on

vacation. (ECF No. 32-2 ¶ 62 and ECF No. 35-2 ¶ 62.) Bowie has also failed to demonstrate that

Dezendorf or any Costco employee made a single derogatory comment concerning his disabled

son. In addition, when Pulver made the recommendation to terminate Bowie, he had no knowledge

that Bowie had a son who suffered from autism, was unaware that Bowie had an accommodation

at work to provide care for his son, and did not know Bowie was leaving early or coming in late

without advising senior management. (ECF No. 32-2 ¶ 127.)

More importantly, because Costco was not required to accommodate Bowie, Bowie must

establish the termination was “motivated by” his son’s disability, “as opposed to actions

occasioned by the association.” Id. (citation omitted). Erdman, 582 F.3d at 510. Even assuming

Costco’s termination had something to do with Bowie’s late arrivals and early departures, Bowie

has failed to demonstrate his termination was motivated by his son’s disability rather than him

leaving work early or coming in late; in other words, he has failed to demonstrate he would not

have been fired if he had left early or came in late for a different reason other than caring for his

son. See id.; Den Hartog, 129 F.3d at 1085 (recognizing that dismissal for absence or tardiness is

not actionable “even if the reason for the absence or tardiness is to care for [a disabled relative]”).

As such, Bowie has also failed to establish the fourth prong. Accordingly, Defendants’ Motion for

Summary Judgment is GRANTED as to Bowie’s unlawful discrimination claim pursuant to the

ADA and NJLAD.

B. Retaliation Pursuant to the ADA

Defendants argue Bowie cannot establish a prima facie claim of retaliation under the ADA.

(ECF No. 32-1 at 23.) Bowie argues he has established a prima facie claim for retaliation under

the ADA because he engaged in a protected activity “by utilizing his reasonable accommodation.”

(ECF No. 35 at 20.)

Pursuant to the ADA’s retaliation provision: “No person shall discriminate against any

individual because such individual has opposed any act or practice made unlawful by this chapter

or because such individual made a charge, testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing under this chapter.” 42 U.S.C. § 12203(a). To establish a

prima facie case of retaliation pursuant to the ADA, a plaintiff must show: “(1) the employee

engaged in a protected employee activity; (2) the employer took an adverse employment action

after or contemporaneous with the employee’s protected activity; and (3) a causal link exists

between the employee’s protected activity and the employer’s adverse action.” Abramson v.

William Paterson Coll. of N.J., 260 F.3d 265, 286 (3d Cir. 2001).

An employee’s request for an accommodation for his disability is a protected activity for

the purposes of § 12203(a). Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 191 (3d

Cir.2003); Merit v. Se. Pa. Transit Auth., 315 F. Supp. 2d 689, 705 (E.D. Pa. 2004), aff’d sub nom.

Merit v. Se. Pa. Transit Auth., 122 F. App’x 598 (3d Cir. 2005). Although a request for an

accommodation for one’s own disability is a protected activity, “the plain language of the ADA

indicates that the accommodation requirement does not extend to relatives of the disabled.”

Erdman, 582 F.3d at 510 (citing 29 C.F.R. § 1630.8, Appendix (“It should be noted [] that an

employer need not provide the applicant or employee without a disability with a reasonable

accommodation because that duty only applies to qualified applicants or employees with

disabilities.”); 42 U.S.C. § 12112(b)(4).

Here, Bowie argues he was retaliated against for “utilizing his reasonable accommodation.”

(ECF No. 35 at 20.) Because the ADA does not require Costco to accommodate Bowie to care for

his son, Bowie has no claim under retaliation since he did not engage in a protected activity in

requesting such accommodation. Erdman, 582 F.3d at 510; Kennedy v. Chubb Grp. of Ins. Co., 60

F. Supp. 2d 384, 396 (D.N.J. 1999) (finding Ҥ 12112(b)(4) does not mandate that an employer

provide an employee without a disability with a reasonable accommodation to enable the employee

to care for a disabled individual with whom the employees is associated” and “that the ADA does

not require [an employer] to allow plaintiff to continue to work part time because her request in

that regard is necessitated by her need to care for her disabled son”); 42 U.S.C. § 12203(a).

Accordingly, Defendants Motion for Summary Judgment as to Bowie’s retaliation claim is

GRANTED.

C. Interference and Retaliation Pursuant to the FMLA and NJFLA

The FMLA provides that “an eligible employee shall be entitled to a total of 12 work weeks

of leave during any 12-month period . . . [i]n order to care for the spouse, or a son, daughter, or

parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.”

29 U.S.C. § 2612(a)(1)(C). A plaintiff is an “eligible employee” for FMLA purposes if he was

employed “for at least 12 months by the employer with respect to whom leave is requested” and

“for at least 1,250 hours of service with such employer during the previous 12-month period.” 29

U.S.C. § 2611(2)(A). It further provides that an

employee who takes leave under section 2612 . . . shall be entitled,

on return from such leave . . . to be restored by the employer to the

position of employment held by the employee when the leave

commenced; or . . . to be restored to an equivalent position with

equivalent employment benefits, pay, and other terms and

conditions of employment.

29 U.S.C. § 2614(a)(1). It shall be unlawful for an employer to: (1) “interfere with, restrain, or

deny the exercise of or the attempt to exercise, any right provided under” the FMLA and (2)

“discharge or in any other manner discriminate against any individual for opposing any practice

made unlawful” by the FMLA. 29 U.S.C. § 2615.

Under the NJFLA, an employee is, “entitled to a family leave of 12 weeks in any 24-month

period upon advance notice to the employer . . . [i]n the case of a family member who has a serious

health condition.” N.J.S.A. § 34:11B-4. An “employee” “means a person who is employed for at

least 12 months by an employer . . . for not less than 1,000 base hours during the immediately

preceding 12-month period.” N.J.S.A. § 34:11B-3(e). Similar to the FMLA, the NJFLA provides:

An employee who exercises the right to family leave . . . shall . . .

be entitled to be restored by the employer to the position held by the

employee when the leave commenced or to an equivalent position

of like seniority, status, employment benefits, pay, and other terms

and conditions of employment.

N.J.S.A. § 34:11B-7. It shall also be unlawful for any employer to “interfere with, restrain or deny

the exercise of, or the attempt to exercise, the right provided under [the NJFLA].” N.J.S.A.

§ 34:11B-9(a).

“Due to the similarity of the statutes, courts apply the same standards and framework to

claims under the FMLA and the NJFLA.” Wolpert v. Abbott Labs., 817 F. Supp. 2d 424, 437

(D.N.J. 2011) (citing Santosuosso v. NovaCare Rehab., 462 F. Supp. 2d 590, 596 (D.N.J. 2006)).

To prevail on an interference claim, a plaintiff must show: (1) he was entitled to take FMLA

and NJFLA leave and (2) the employer denied his right to do so. Lichtenstein v. Univ. of Pittsburgh

Med. Ctr., 691 F.3d 294, 312 (3d Cir. 2012); Hall-Dingle v. Geodis Wilson USA, Inc., No. 15-

1868, 2017 WL 899906, at *4 (D.N.J. Mar. 7, 2017) (“[A] plaintiff bringing an interference claim

under the [NJFLA] must show that she was entitled to benefits and denied those benefits.”).

“To establish a prima facie claim for retaliation under the FMLA and NJFLA, the plaintiff

must demonstrate that: (1) [he] took a FMLA/NJFLA leave; (2) [he] suffered from an adverse

employment decision; and (3) the adverse decision was casually related to [his] FMLA/NJFLA

leave.” Valenti, 2015 WL 3965645, at *3 (quoting Truesdell v. Source One Personnel Inc., No.

07-1926, 2009 WL 1652269, at *4 (D.N.J. June 9, 2009) (citations omitted)). Once the plaintiff

establishes a prima facie claim for retaliation under the FMLA and NJFLA, the claim must be

analyzed under the burden-shifting framework articulated in McDonnell Douglas. See Truesdell,

2009 WL 1652269, at *4.

To invoke one’s rights under the FMLA, one must provide adequate notice to their

employer about their need to take leave. 29 U.S.C. § 2612(e)(2). An employee does not need to

“expressly assert rights under the FMLA or even mention the FMLA.” 29 C.F.R. § 825.303(b).

The employee only needs to “provide sufficient information for an employer to reasonably

determine whether the FMLA may apply to the leave request.” Id. (emphasis added). This is not a

formalistic or rigorous standard. See Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 402

(3d Cir. 2007) (stating a “liberal construction” should be given to FMLA’s notice requirement).

The FMLA provides that “where the employer does not have sufficient information about the

reason for an employee’s use of leave, the employer should inquire further of the employee . . . to

ascertain whether leave is potentially FMLA-qualifying.” 29 C.F.R. § 825.303(a). Therefore, the

test “is not whether the employee gave every necessary detail to determine if the FMLA applies,

but how the information conveyed to the employer is reasonably interpreted.” Lichtenstein, 691

F.3d at 303. “How the employee’s notice is reasonably interpreted is generally a question of fact,

not law.” Id.

First, Defendants argue Bowie cannot invoke his rights under the FMLA or NJFLA

because he failed to put them on notice that he required FMLA/NJFLA leave. (ECF No. 32-1 at

29.) The Court finds there is a genuine issue of material fact as to whether Bowie put the

Defendants on notice that he required leave. Bowie’s deposition alleges that in 2012, he utilized

the Open-Door policy to speak with Wohlgemuth to request an accommodation to care for his

disabled son. (ECF No. 32-2 ¶ 51 and ECF No. 35-2 ¶ 51.) During their discussion, Bowie

allegedly explained his son’s disability, stated he may need accommodations, and asked whether

he needed to fill out FMLA paperwork. (ECF No. 35-6 at 28:22-29:6.) Wohlgemuth explained that

Bowie did not need to request formal FMLA leave “as long as the building had coverage.” (Id. at

29:9-11.) As such, there is a genuine issue as to whether Bowie put Defendants on notice.

Next, Defendants contend Bowie’s claim for interference should be dismissed on summary

judgment as duplicative of his claim for retaliation, and because Bowie has failed to establish he

was prejudiced by the alleged interference. (ECF No. 32-1 at 33 and ECF No. 36 at 12-13.) The

Court finds Bowie’s FMLA interference claim is duplicative of his retaliation claim. Indeed,

Bowie’s interference claim is identical to his retaliation claim, and premised on the same

allegations. Kumar v. Johnson & Johnson, Inc., No. 12-779, 2014 WL 5512549, at *11 (D.N.J.

Oct. 31, 2014) (granting judgment in defendant’s favor as to plaintiff’s inference claim where her

“only claim of ‘interference’ under the FMLA [was] the same as her claim for retaliation-‘not

being returned to the same job with the same opportunities for advancement”). In fact, Bowie’s

opposition brief fails to distinguish between claims and merely argues he “clearly establish a prima

facie case of retaliatory termination, and interference under FMLA.” (ECF No. 35 at 22.) Here,

retaliation is clearly the better fit, since Bowie argues Defendants wrongfully terminated him when

he returned from FMLA leave. See Yamamoto v. Panasonic Corp. of N. Am., No. 12-2352, 2013

WL 3356214, at *11 (D.N.J. July 2, 2013); Lovland v. Emplrs. Mut. Cos. Co., 674 F.3d 806, 811–

12 (8th Cir. 2012) (affirming the district court’s conclusion that plaintiff “asserted only . . .

retaliation claims because she alleged discrimination that occurred after she took FMLA leave, not

denial of, or interference with, her leave”). Accordingly, Defendants’ Motion for Summary

Judgment as to Bowie’s interference claim is GRANTED.

Lastly, Defendants argue Bowie cannot establish a retaliation claim because the decision

to terminate him employment occurred years after his purported FMLA request. (ECF No. 32-1 at

34.) To establish a prima facie case of retaliation, Bowie must demonstrate he: (1) took FMLA

leave; (2) suffered an adverse employment decision; and (3) the adverse decision was causally

related to her leave. Palen v. Alcan Packaging, 511 F. Supp. 2d 445, 448 (D.N.J. 2007). The Court

finds there is a material issue of fact as to whether Bowie took FMLA leave. In 2012, Bowie

utilized the Open Door policy to speak with Wohlgemuth to request an accommodation to care for

his disabled son. (ECF No. 32-2 ¶ 51 and ECF No. 35-2 ¶ 51.) During their discussion, Bowie

allegedly explained his son’s disability, stated he may need accommodations, and asked whether

he needed to fill out FMLA paperwork. (ECF No. 35-6 at 28:22-29:6.) Wohlgemuth explained that

Bowie did not need to request formal FMLA leave “as long as the building had coverage.” (Id. at

29:9-11.) In August 2013, after Dezendorf became the new General Manager, Bowie informed

Dezendorf of his accommodation, that he would need to either come in late or leave early to care

for his disabled son. (ECF No. 32-2 ¶ 59 and ECF No. 35-2 ¶ 59.) Dezendorf agreed with the

previous arrangement. (ECF No. 32-2 ¶ 60 and ECF No. 35-2 ¶ 60.) Bowie utilized his informal

accommodation with no issue until Dezendorf returned from vacation. (ECF No. 32-2 ¶ 62 and

ECF No. 35-2 ¶ 62.) As such, the Court finds Bowie has established a genuine issue of material

fact as to whether he invoked his right to FMLA leave and as to whether he took FMLA leave.

The second element is not contested. Bowie was undoubtedly terminated. With respect to

the third element, Defendants argue the temporal proximity between Bowie’s request purported

request for FMLA leave and his termination are insufficient to create such an inference of

causation. (ECF No. 32-1 at 36-37.) Bowie, however, maintains that his termination less than three

weeks after Dezendorf’s investigation into his early departures and later arrivals are unduly

suggestive. (ECF No. 35 at 22-24.) The Court disagrees with Bowie.

“[E]stablishing a causal relationship between the decision to take FMLA leave and the

adverse employment decision necessarily requires proof of retaliatory intent by the employer.”

Incorvati v. Best Buy Co., No. 10-1939, 2013 WL 3283956, at *5 (D.N.J. June 27, 2013).

“Retaliation need not be the sole reason motivating the adverse employment decision; rather, it

will suffice for the plaintiff to show that the retaliatory animus was ‘a determinative factor,’

meaning in essence that ‘the action would not have been taken but for [the] protected activity.’”

Id. (quoting Culler v. Shinseki, 840 F.Supp.2d 838, 846 (D.N.J.2011)). Essentially, “the court’s

inquiry is whether the proffered evidence raises an inference that the plaintiff’s request for FMLA

leave was causally related to his termination.” Id. There are two principal methods of raising such

an inference. Abramson, 260 F.3d at 288. First, is temporal proximity, where “unusually

suggestive” timing exists between the leave request and the adverse employment action, such

circumstance may be enough to establish causation. Lamarca v. Verizon Pa., Inc., No. 09–203,

2010 WL 2044627 at *9 (W.D. Pa. May 20, 2010) (citing citation omitted). Second, causation can

be established based on a period of “intervening antagonism.” LeBoon, 503 F.3d at 232. In addition

to these two primary methods, inconsistencies or discrepancies in the employer’s reasons for

terminating the employee may be enough to support an inference of causation. Id.

Here, Bowie offers scant evidence of a casual connection between his taking leave and his

termination. Although Dezendorf returned from vacation on October 3, investigated Bowie’s

actions (early departures, late arrivals, and the unauthorized removal of a teakettle and oatmeal

package) on October 7, and Bowie was terminated on October 21, 2014, Bowie acknowledges that

on October 9, 2014, after Dezendorf reviewed the video footage and asked to speak with him

regarding his early departures and late arrivals and after Bowie explained that he had left early and

arrived late to care for his son, Dezendorf dropped the subject and moved on to another topic.

(ECF No. 32-2 ¶¶ 101-106; ECF No. 35-2 ¶¶ 101-106; and ECF No. 35-1 ¶ 31.) Moreover, it is

undisputed that neither of Dezendorf’s investigation memorandums to senior management

mentioned Bowie’s early departures or late arrivals. (ECF No. 32-2 ¶¶ 111-12 and ECF No. 35-2

¶¶ 111-12.) Instead, the temporal proximity between his termination and the investigation, which

determined Bowie violated four Employee Agreement policies, remarkably suggests he was

terminated for those violations.

Significantly, Dezendorf has been aware of Bowie’s son’s disability and FMLA leave

request for at least a year prior to Bowie’s termination and never had an issue accommodating

Bowie’s requests to come in late or leave early. (ECF No. 32-2 ¶¶ 56, 59-60 and EF No. 35-2 ¶¶

56, 59-60.) In fact, Bowie admits he utilized his informal accommodation with no issue. (ECF No.

32-2 ¶ 62 and ECF No. 35-2 ¶ 62.) As such, the Court finds there exists no “unusually suggestive”

timing between the FMLA leave and termination, considering the proximity between Bowie’s

original request for leave and termination.

Bowie has also failed to establish a pattern of ongoing antagonism. The record is devoid

of any antagonism or remarks made about him taking leave to care for his son. In addition, Bowie

points to no inconsistencies or discrepancies in Defendants’ reasons for terminating him. Even

viewing the evidence in the light most favorable to Bowie, the Court finds he has failed to establish

a causal connection necessary to sustain his FMLA retaliation claim. As such, he has failed to state

a prima facie case for FMLA retaliation, and the Court need not analyze the claim under the

burden-shifting framework articulated in McDonnell Douglas. Accordingly, Defendants Motion

for Summary Judgment as to his FMLA retaliation claim is also GRANTED.

D. Aiding and Abetting Claim Against Dezendorf

Bowie also seeks to impose individual liability on Dezendorf pursuant to the NJLAD. (ECF

No. 35 at 24-26.) The NJLAD provides it is unlawful “[f]or any person, whether an employer or

an employee or not, to aid, abet, incite, compel or coerce the doing of any of the acts forbidden

[the act], or to attempt to do so.” N.J. Stat. Ann. § 10:5-12(e). Such conduct may result in personal

liability. Tarr v. Ciasulli, 853 A.2d 921, 928 (N.J. 2004); see Fasano v. Fed. Reserve Bank of N.Y.,

457 F.3d 274, 289 (3d Cir. 2006) (“The [NJ]LAD permits the imposition of individual liability on

an employee who has aided or abetted barred acts.”).

To sustain a claim for aiding and abetting, a plaintiff must establish that:

(1) the party whom the defendant aids must perform a wrongful act

that causes an injury; (2) the defendant must be generally aware of

his role as part of an overall illegal or tortious activity at the time

that he provides the assistance; [and] (3) the defendant must

knowingly and substantially assist the principal violation.

Tarr, 181 N.J. at 84 (quoting Hurley v. Atl. City Police Dep’t, 174 F.3d 95, 129 (3d Cir. 1999));

see O’Toole v. Tofutti Brands, Inc., 203 F. Supp. 3d 458, 467 (D.N.J. 2016). However, “for a

defendant to be individually liable for aiding and abetting, the employer must also be liable under

the [NJ]LAD.” Ivan v. Cty. of Middlesex, 595 F. Supp. 2d 425, 463 (D.N.J. 2009) Because Bowie’s

underlying NJLAD claim for unlawful termination fails, there can be no claim for aiding and

abetting against Dezendorf in violation of the NJLAD. Accordingly, Defendants Motion for

Summary Judgment as to Bowie’s aiding and abetting claim is GRANTED.

IV. CONCLUSION

For the reasons set forth above, Defendants’ Motion for Summary Judgment is

GRANTED.

Date: July 22, 2019 /s/ Brian R. Martinotti___________

HON. BRIAN R. MARTINOTTI

UNITED STATES DISTRICT JUDGE