DEJESUS v. KIDS ACADEMY, INC.

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

LYDIA DEJESUS,

1:18-cv-13822-NLH-AMD

Plaintiff,

OPINION

v.

KIDS ACADEMY, INC.,

doing business as

KIDACADEMY LEARNING CENTER,

and GOLDBIL INVESTMENT CORP.,

doing business as

KIDACADEMY LEARNING CENTER,

Defendants.

APPEARANCES:

JULIA W. CLARK

ARI R. KARPF

KARPF KARPF & CERUTTI PC

3331 STREET ROAD

TWO GREENWOOD SQUARE

SUITE 128

BENSALEM, PA 19020

On behalf of Plaintiff

HILLMAN, District Judge

Plaintiff, Lydia DeJesus, filed her complaint on September

12, 2018 against Defendants, Kids Academy, Inc. and Goldbil

Investment Corp., for their alleged violations of the Americans

with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq. (Count

One), the Age Discrimination in Employment Act (“ADEA”), 29

U.S.C. § 621, et seq. (Count Two), the Family and Medical Leave

Act of 1993 (“FMLA”), 29 U.S.C. § 2601, et seq., and New Jersey

Law Against Discrimination (“NJLAD”), N.J.S.A. 10:5-1, et seq.

Defendants were served with Plaintiff’s complaint and failed to

respond. On December 3, 2018, Plaintiff requested that the

Clerk enter default against Defendants. The Clerk entered

default on December 4, 2018. Presently before the Court is

Plaintiff’s motion for default judgment.1

BACKGROUND

Plaintiff alleges the following:2 Plaintiff is a 71-year-

old female. Plaintiff was hired by Defendants as a full-time

employee in 2003, and terminated on July 8, 2018. Defendants

offer day care, pre-kindergarten and kindergarten, as well as

summer camps, through 6 locations in New Jersey: Williamstown,

1 Plaintiff previously moved for default judgment, which the

Court denied without prejudice because Plaintiff did not include

a brief or affidavit of Plaintiff explaining why she is entitled

to default judgment, on what claims she is entitled to default

judgment, the elements of those claims and how she has shown

each of those elements, the appropriate measure of damages under

those claims, and what damages she is entitled to. (Docket No.

6.) The Court granted Plaintiff leave to refile her motion to

address these deficiencies, and Plaintiff has appropriately done

so.

2 The Court summarizes the relevant facts to support Plaintiff’s

motion for default judgment from her complaint and the affidavit

filed in support of her motion. See Lurty v. 2001 Towing &

Recovery, Inc., 2019 WL 3297473, at *6 (D.N.J. 2019) (explaining

that in order to prove a plaintiff’s entitlement to default

judgment, including damages, the plaintiff, and not simply

counsel, must submit to the Court an affidavit to support her

claims). As explained below, on a motion for default judgment,

every “well-pled allegation” of the complaint, except those

relating to damages, are deemed admitted. Comdyne I. Inc. v.

Corbin, 908 F.2d 1142, 1149 (3d Cir. 1990).

Washington Township, Westampton, Mount Laurel, Cherry Hill, and

Absecon. Plaintiff was employed with Defendants at their

Westampton, New Jersey location. Plaintiff worked as both a

cook and as a teacher’s assistant as requested and scheduled.

A few years prior to Plaintiff’s termination, Plaintiff

required a medical leave of absence for back surgery. Upon

returning from back surgery and medical leave, Plaintiff was

converted from a full-time employee to a part-time employee.

Plaintiff was given no performance-based rationale for her

reduction in hours and conversion from a full-time employee to a

part-time employee, and the transition was solely based upon

Plaintiff’s need for a medical leave of absence. Other younger

and less experienced (and non-disabled) employees absorbed her

hours. As a part-time employee in her last few years of

employment, Plaintiff typically worked 23-26 hours per week.

She also continued to work as a versatile employee performing

work in Defendants’ kitchen as a cook and in classrooms as an

assistant teacher as well.

Plaintiff has a long history of health conditions, but none

of these conditions prevented Plaintiff from performing as a

cook or assistant teacher. At all times, Plaintiff was able to

perform the essential functions of her job with Defendants. Her

health conditions have included:

•

Arthritis primarily impacting her knees and back;

•

Spinal Stenosis;

•

Ankle complications (requiring surgery, screws

and a plate);

•

Cataracts surgery; and

•

Other miscellaneous health needs or complications

from the above- referenced health issues.

As a near 15-year employee, Plaintiff had always performed

her jobs extremely well without the need for any progressive

discipline or negative evaluations. Plaintiff was well liked by

parents and family of children who attended Defendants’

locations and was overall a very qualified and good employee.

During the last several years of her employment, Plaintiff

was normally supervised by two separate director-level

employees. At the time of Plaintiff’s termination, Paula

Pezzolla3 and Danielle Simmons were co-directors of Defendants’

Westampton location with Pezzolla having been employed several

years in that capacity and Simmons only having worked in that

capacity for a short time. Pezzolla and Simmons made all

decisions regarding hiring, firing and staffing within the

location where Plaintiff worked. Simmons was approximately 24-

years-old at the time Plaintiff was terminated.

3 The affidavit of service lists the co-director’s name as “Paula

Pezzolle.” (Docket No. 4 at 27.) Plaintiff’s brief and

certification refers to her as “Paula Pezzolla” and “Paula

Perzolla.” The Court will refer to her as “Paula Pezzolla.”

Plaintiff had asked for additional work or hours and

welcomed a full-time schedule. She was ignored and hours were

given to younger employees and individuals who had been much

more recently hired. Plaintiff frequently observed that the

newly hired employees, many of whom were teenagers with no prior

daycare experience, were given more hours than Plaintiff within

the last year of her employment.

Plaintiff had turned 70 years old in her last year of

employment and at times walked with a noticeable limp (or

awkward gait). She also required miscellaneous time off for

appointments or medical reasons, including knee and back

injections to treat her arthritis, but nothing significant or

frequent. Defendants’ management gave Plaintiff a very hard

time about her need for medical appointments and complained that

Plaintiff should find a way to schedule these appointments

outside of working hours. Plaintiff could have easily continued

to work for Defendants in any capacity as a part-time or full-

time employee as she was able to perform all essential functions

of the job. However, during Plaintiff’s last 1-2 months,

Defendants’ management attempted to force Plaintiff to quit.

Among other things, including being extremely hostile and openly

mean to Plaintiff, they intentionally mad Plaintiff’s schedule

tremendously difficult.

By way of example, Defendants’ management repeatedly told

Plaintiff to punch out for several-hour breaks and scheduled her

for long breaks, often up to 3 hours, between separate smaller

shifts, even though there was work that Plaintiff could and

would have performed during those gaps. Additionally, during

that same timeframe, Defendants’ management attempted to make

Plaintiff’s job more difficult by intentionally scheduling her

in rooms within the facility with children who were known to be

problematic or harder to deal with.

Plaintiff continued to do an excellent job, no matter the

job assignment given to her. However it was clear that

Defendants’ management was intentionally trying to make her job

substantially harder. Just as Plaintiff continued to work

because she loved her job despite the discriminatory and

retaliatory conversion to a part-time employee, she tolerated

Defendants’ management’s manipulation of her schedule. She did

so because she was passionate about her job and the children

around her. Plaintiff continued to do an excellent job, no

matter the job assignment given to her.

On July 6, 2018, the last day that Plaintiff worked for

Defendants, Plaintiff was confronted by Simmons and Pezzolla and

brought into a meeting. In this conversation multiple

discriminatory comments based on Plaintiff’s age and health were

made by Simmons and Pezzolla, including:

1. “You need to retire;”

2. “It is your time to retire;”

3. “You have a lot of health issues;”

4. “You appear to have continuing knee and back

problems anyway;”

5. “Use your retirement to go to the beach;”

6. “This job is too hard for you with your legs;” and

7. Simmons said, “I’m 24, and I can’t even keep up

with the kids,” implying that Plaintiff was unable

to do her job due to her age.

Simmons and Pezzolla made it clear during this meeting that

Plaintiff could no longer work for Defendants based on

Plaintiff’s age and health. Plaintiff responded that she had no

interest in leaving her job, that she loved her position and

that she would not agree to retire. Simmons and Pezzolla

insisted that Plaintiff could not work with the children,

although they provided no reason why, since Plaintiff had been

able to perform all job functions through that date.

Additionally, when Plaintiff asked if she could at least

continue to cook, as she had been doing two days per week,

Simmons and Pezzolla offered no explanation as to why Plaintiff

could not continue to at least work in that position.

Simmons and Pezzolla then informed Plaintiff that she

should think about it over the weekend and get back to them.

Simmons and Pezzolla also tried to entice Plaintiff into

quitting by assuring Plaintiff that they would not challenge

Plaintiff’s unemployment compensation if she would agree to

leave voluntarily. Plaintiff responded that her decision was

already made that she was not retiring.

That Sunday, July 8, 2018, Plaintiff received a text

message from Simmons stating: “You will not need to show up for

work tomorrow we have terminated your employment for medical

reasons. You need to file for full unemployment, there will be

no more discussion.”

Following Plaintiff’s termination from Defendants,

Plaintiff was contacted by multiple co-workers to ask Plaintiff

about her health as Defendants’ management apparently informed

staff members that Plaintiff was no longer employed with

Defendants due to her health conditions. Plaintiff was not

terminated for any performance concern, and she had not been

given any warning of any such concern in over a decade of

employment with Defendants. No management of Defendants are

physicians, nor qualified to determine if Plaintiff was

allegedly not medically fit to continue in her employment. No

physician of Plaintiff ever concluded Plaintiff was in any

manner unable to work, and Plaintiff worked with the same

medical conditions for many years. Defendants also never had

Plaintiff undergo any fitness for duty evaluations, requested

medical documents or any other information – and instead –

substituted their own discriminatory perceptions of Plaintiff

based upon her advanced age and known health diagnoses.

Plaintiff was subjected to the following adverse actions:

(a) improperly converted to part-time from full-time for taking

medical leave years before her termination; (b) denied more

hours after inquiring about additional hours in the years

leading up to her termination and was subjected to lesser hours

in many weeks given to younger or non-disabled individuals; (c)

given an intentionally difficult and manipulated schedule in her

last months of employment; and (d) terminated from her

employment for discriminatory and retaliatory reasons.

DISCUSSION

A. Subject Matter Jurisdiction

This Court has original federal question jurisdiction over

Plaintiff’s federal claims under 28 U.S.C. § 1331, and has

supplemental jurisdiction over the New Jersey state law

claim pursuant to 28 U.S.C. § 1367(a).

B. Default

The first step in obtaining a default judgment is the entry

of default. “When a party against whom a judgment for

affirmative relief is sought has failed to plead or otherwise

defend, and that failure is shown by affidavit or otherwise, the

Clerk must enter the party’s default.” Fed. R. Civ. P. 55(a).

The Clerk entered default on December 4, 2018.

C. Default Judgment

“Federal Rule of Civil Procedure 55(b)(2) authorizes courts

to enter a default judgment against a properly served defendant

who fails to a file a timely responsive pleading.” Chanel v.

Gordashevsky, 558 F. Supp. 2d 532, 535 (D.N.J. 2008) (citing

Anchorage Assoc. v. Virgin Is. Bd. of Tax Rev., 922 F.2d 168,

177 n.9 (3d Cir. 1990)). However, a party seeking default

judgment “is not entitled to a default judgment as of a right.”

Franklin v. Nat’l Maritime Union of America, 1991 U.S. Dist.

LEXIS 9819, at *3-4 (D.N.J. 1991) (quoting 10 Wright, Miller &

Kane, Federal Practice and Procedure § 2685 (1983)), aff’d, 972

F.2d 1331 (3d Cir. 1992). The decision to enter a default

judgment is “left primarily to the discretion of the district

court.” Hritz v. Woma Corp., 732 F.2d 1178, 1180 (3d Cir.

1984).

Although every “well-pled allegation” of the complaint,

except those relating to damages, are deemed admitted, Comdyne

I. Inc. v. Corbin, 908 F.2d 1142, 1149 (3d Cir. 1990), before

entering a default judgment the Court must decide whether “the

unchallenged facts constitute a legitimate cause of action,

since a party in default does not admit mere conclusions of

law,” Chanel, 558 F. Supp. 2d at 535 (citing Directv, Inc. v.

Asher, No. 03-1969, 2006 WL 680533, at *1 (D.N.J. Mar. 14,

2006)). “Three factors control whether a default judgment should

be granted: (1) prejudice to the plaintiff if default is denied,

(2) whether the defendant appears to have a litigable defense,

and (3) whether defendant's delay is due to culpable conduct.”

Chamberlain v. Giampapa, 210 F.3d 154, 164 (3d Cir. 2000);

United States v. $55,518.05 in U.S. Currency, 728 F.2d 192, 195

(3d Cir. 1984). If a review of the complaint demonstrates a

valid cause of action, the Court must then determine whether

plaintiff is entitled to default judgment.

D. Analysis

1. Whether Plaintiff has stated a valid cause of

action

Plaintiff has asserted four counts against Defendants for

violations of the ADA, ADEA, FMLA, and NJLAD. Each will be

addressed in turn, except for Plaintiff’s NJLAD claims, which

are addressed in tandem with her ADA and ADEA claims because

they apply the same analysis as her related NJLAD claims.4

a. ADA

Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101,

et seq., provides that “[n]o covered entity shall discriminate

4 Guarneri v. Buckeye Pipe Line Services Co., 205 F. Supp. 3d

606, 615 (D.N.J. 2016) (citing Joseph v. New Jersey Transit Rail

Operations Inc., 586 F. App’x 890, 892 (3d Cir. 2014) (citing

Victor v. State, 203 N.J. 383, 4 A.3d 126, 145 (2010)) (other

citations omitted) (explaining that disability discrimination

claims under the ADA and the NJLAD are analyzed under the same

framework); Monaco v. American General Assur. Co., 359 F.3d 296,

300 (3d Cir. 2004) (explaining that the elements of a prima

facie case under the ADEA and the NJLAD are the same).

against a qualified individual on the basis of disability in

regard to . . . [the] discharge of employees . . . and other

terms, conditions, and privileges of employment.” 42 U.S.C. §

12112(a). To state a prima facie cause of action for disability

discrimination, the employee must show the following: (1) the

employee was disabled; (2) she is otherwise qualified to perform

the essential functions of the job, with or without reasonable

accommodations by the employer; and (3) she has suffered an

otherwise adverse employment decision as a result of

discrimination. Id. Disability discrimination encompasses not

only adverse actions motivated by prejudice and fear of

disabilities, but also includes failing to make reasonable

accommodations for a plaintiff's disabilities. Taylor v.

Phoenixville School Dist., 184 F.3d 296, 305–06 (3d Cir. 1999).

Under the framework of McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973), after the plaintiff establishes a prima

facie case of discrimination, an inference of unlawful

discrimination is created. Willis v. UPMC Children's Hosp. of

Pittsburgh, 808 F.3d 638, 643–45 (3d Cir. 2015). Once the

plaintiff has successfully established a prima facie case

creating an inference of discrimination, the burden shifts to

the employer who must articulate a legitimate nondiscriminatory

reason for the adverse employment action. Id. (citations

omitted). This second step of McDonnell Douglas does not

require that the employer prove that the articulated legitimate,

nondiscriminatory reason was the actual reason for the adverse

employment action, but instead the employer must provide

evidence that will allow the factfinder to determine that the

decision was made for nondiscriminatory reasons. Id. (citations

omitted).

If the employer satisfies this second step, the burden

shifts back once more to the plaintiff to show, by a

preponderance of the evidence, that the employer's proffered

legitimate, nondiscriminatory reason was pretextual – that not

only was the employer's proffered reason false, but the real

reason was impermissible discrimination. Id. This can be done

in two ways: (1) by pointing to evidence that would allow a

factfinder to disbelieve the employer's reason for the adverse

employment action by showing such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the

employer's proffered legitimate reasons, or (2) by pointing to

evidence that would allow a factfinder to believe that an

invidious discriminatory reason was more likely than not a

motivating or determinative cause of the employer's action,

which can be shown by (1) the defendant having previously

discriminated against the plaintiff; (2) the defendant having

discriminated against others within the plaintiff's protected

class; or (3) the defendant has treated similarly situated

individuals more favorably. Id. (citations and quotations

omitted).

In contrast to circumstantial evidence, direct evidence of

discrimination is so revealing of discriminatory animus that it

is unnecessary to rely on the McDonnell Douglas burden-shifting

framework. Anderson v. Wachovia Mortgage Corp., 621 F.3d 261,

269 (3d Cir. 2010). Once a plaintiff produces such evidence,

the defendant has the burden of producing evidence to show that

it would have made the same decision in the absence of

discriminatory animus. Id. (citation omitted). To qualify as

direct evidence, the evidence must be such that it demonstrates

that the decision-makers placed substantial negative reliance on

an illegitimate criterion in reaching their decision. Id.

Direct evidence must satisfy two requirements: (1) the evidence

must be strong enough to permit the factfinder to infer that a

discriminatory attitude was more likely than not a motivating

factor in the defendant's decision; and (2) the evidence must be

connected to the decision being challenged by the plaintiff.

Id. (citations omitted). Moreover, any statements made by a

defendant’s employees must be made at a time proximate to the

challenged decision and by a person closely linked to that

decision. Id. (citation omitted). These requirements are a

high hurdle for plaintiffs. Id. (citation omitted).

Accepting Plaintiff’s alleged facts as true, Plaintiff has

established a prima facie case of disability discrimination

under the ADA.

(1) During Plaintiff’s employment, she was disabled with

the impairments of arthritis primarily impacting her knees and

back, spinal stenosis, ankle complications (requiring surgery,

screws and a plate), cataracts surgery, other miscellaneous

health needs or complications, and she walked with a noticeable

limp during the last year of her employment.

(2) Plaintiff states that she otherwise qualified to

perform the essential functions of the job. See 42 U.S.C. §

12111 (“The term ‘qualified individual’ means an individual who,

with or without reasonable accommodation, can perform the

essential functions of the employment position that such

individual holds or desires.”); cf. Shiring v. Runyon, 90 F.3d

827, 831 (3d Cir. 1996)(“One of the essential functions of a

mail carrier is to physically deliver the mail to the people

along the route. In his deposition, Shiring concedes that this

was impossible for him to do. No amount of accommodation on the

part of the Postal Service would have made this possible. Thus,

Shiring was not otherwise qualified for the position of PTF

letter carrier.”).

(3) Plaintiff was terminated relative to her disabilities.

At the July 6, 2018 meeting with her managers, they stated, “You

have a lot of health issues,” “You appear to have continuing

knee and back problems anyway,” and “This job is too hard for

you with your legs.” In the July 8, 2018 text message, her

manager stated, “You will not need to show up for work tomorrow

we have terminated your employment for medical reasons. You

need to file for full unemployment, there will be no more

discussion.” Plaintiff also claims that prior to her

termination, she was regularly harassed due to her disabilities.

Because Plaintiff has established a prima facie case of

discrimination under the ADA, the burden shifts to Defendants to

articulate a legitimate business reason for Plaintiff’s

termination. Defendants have failed to appear in the action and

no legitimate business reason for Plaintiff’s termination has

been proffered. Plaintiff has therefore stated a viable ADA

discrimination claim.5

b. ADEA

The Age Discrimination in Employment Act (“ADEA”) prohibits

terminating a person’s employment due to their age. 29 U.S.C. §

623(a)(1). To establish a prima facie case of age

discrimination, Plaintiff must demonstrate: (1) that she is at

least 40 years old; (2) that she suffered an adverse employment

action; (3) that she was qualified for the position she was

5 This finding also establishes Plaintiff’s disability

discrimination claim under the NJLAD. See, supra, note 4.

terminated from; and (4) either (a) that she was “replaced by

another employee who was sufficiently younger so as to support

an inference of a discriminatory motive” or (b) “facts which ‘if

otherwise unexplained, are more likely than not based on the

consideration of impermissible factors.’” Willis v. UPMC

Children’s Hosp. of Pittsburgh, 808 F.3d 638, 644 (3d Cir. 2015)

(quoting Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 352

(3d Cir. 1999)).

Once the plaintiff satisfies a prima facie case, the

framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973), supra, applies. Ultimately, to succeed on an ADEA

claim, a plaintiff must establish, by a preponderance of the

evidence, that age was the “but-for” cause of the adverse

employment action. Gross v. FBL Fin. Servs., Inc., 557 U.S.

167, 177–78 (2009).

Accepting Plaintiff’s alleged facts as true, Plaintiff has

established a prima facie case of age discrimination under the

ADEA.

(1) Plaintiff was 70 years old at the time of her

termination.

(2) Plaintiff was terminated.

(3) As determined above with regard to Plaintiff’s ADA

violation claim, Plaintiff was qualified for her position. See

Lawrence v. National Westminster Bank New Jersey, 98 F.3d 61, 69

(3d Cir. 1996) (explaining that the prima facie case for an ADEA

claim - including whether someone is “otherwise qualified” for

the position - is similar to the prima facie case for an ADA

claim).

(4) Plaintiff’s managers specifically referenced her age in

the meeting on July 6, 2018. They stated, “You need to retire,”

“It is your time to retire,” “Use your retirement to go to the

beach,” and “I’m 24, and I can’t even keep up with the kids,”

implying that Plaintiff was unable to do her job due to her age.

Additionally, Plaintiff frequently observed that the newly hired

employees, many of whom were teenagers with no prior daycare

experience, were given more hours than Plaintiff within the last

year of her employment.

Because Plaintiff has established a prima facie case of

discrimination under the ADEA, the burden shifts to Defendants

to articulate a legitimate business reason for Plaintiff’s

termination. Defendants have failed to appear in the action and

no legitimate business reason for Plaintiff’s termination has

been proffered. Plaintiff has therefore stated a viable ADEA

discrimination claim. Plaintiff has therefore stated a viable

ADA discrimination claim.6

c. FMLA

6 This finding also establishes Plaintiff’s age discrimination

claim under the NJLAD. See, supra, note 4.

The FMLA prohibits employers from discriminating against

employees who have taken FMLA leave, and also prohibits

employers from using an employee’s utilization of FMLA leave as

a negative factor in employment actions, such as hiring,

promotion, or disciplinary actions. 29 U.S.C. § 2615(a)(2); 29

C.F.R. § 825.220(c). Following FMLA leave, an employee is

entitled to be reinstated to the former position or an alternate

one with equivalent pay, benefits and working conditions. See

id. § 2614(a)(1).

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). Such a claim is typically referred to as an

“interference” claim. Sommer v. The Vanguard Group, 461 F.3d

397, 398-99 (3d Cir. 2006). To assert an interference claim,

“the employee only needs to show that he was entitled to

benefits under the FMLA and that he was denied them.” Sommer,

461 F.3d at 399 (citation omitted). “An interference action is

not about discrimination, it is only about whether the employer

provided the employee with the entitlements guaranteed by the

FMLA.” Id. (citation omitted).

An FMLA retaliation claim presents a different analysis.

The FMLA regulations provide:

An employer is prohibited from discriminating against

employees or prospective employees who have used FMLA

leave. For example, if an employee on leave without pay

would otherwise be entitled to full benefits (other than

health benefits), the same benefits would be required to be

provided to an employee on unpaid FMLA leave. By the same

token, employers cannot use the taking of FMLA leave as a

negative factor in employment actions, such as hiring,

promotions or disciplinary actions; nor can FMLA leave be

counted under “no fault” attendance policies.

29 C.F.R. § 825.220(c).

To establish a prima facie case of retaliation under the

FMLA, a plaintiff must show that: (1) she took FMLA leave, (2)

she suffered an adverse employment decision, and (3) the adverse

decision was causally related to her leave. Lepore v. Lanvision

Systems, Inc., 113 F. App’x 449, 452, 2004 WL 2360994, *2 (3d

Cir. 2004) (citing Conoshenti v. Public Service Electric & Gas

Co., 364 F.3d 135 (3d Cir. 2004)). Temporal proximity that is

“unduly suggestive” satisfies the causation element of a

plaintiff’s prima facie case at the summary judgment stage.

Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279-80 (3d

Cir. 2000)); see also Thomas v. Town of Hammonton, 351 F.3d 108,

114 (3d Cir. 2003) (quoting Estate of Smith v. Marasco, 318 F.3d

497, 512 (3d Cir. 2003) (“Even if timing alone could ever be

sufficient to establish a causal link, . . . the timing of the

alleged retaliatory action must be unusually suggestive of

retaliatory motive before a causal link will be inferred.”)).

Using time to satisfy the causation element of the prima facie

case, however, requires consideration “with a careful eye to the

specific facts and circumstances encountered.” Farrell, 206

F.3d at 279 (citing Kachmar v. SunGard Data Sys., 109 F.3d 173,

178 (3d Cir. 1997)). “There is clearly a difference between two

days and nineteen months.” Id. (citations omitted); see also

Williams v. Philadelphia Housing Authority Police Dept., 380

F.3d 751, 760 (3d Cir. 2004) (holding that two months was not

“unduly suggestive”); Thomas, 351 F.3d at 114 (holding that

three weeks was not “unduly suggestive”). If the timing of the

events is not “unduly suggestive,” the plaintiff can still show

a causal link with other circumstantial evidence, such as

evidence of ongoing antagonism or inconsistent reasons for

terminating the employee. Id. at 280-81 (citing cases).

Once a plaintiff makes out a prima facie case, the usual

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) burden

shifting framework is implicated. Id. (citing Weston v.

Pennsylvania, 251 F.3d 420, 432 (3d Cir. 2001)).

Plaintiff asserts both an interference claim and a

retaliation claim. Accepting Plaintiff’s factual allegations as

admitted, Plaintiff has stated a prima facie case for both FMLA

violation claims.

For her FMLA interference claim, Plaintiff claims that

Defendants are a qualifying employer under the FMLA, she was

entitled to FMLA leave and had utilized FMLA leave, but

Defendants: failed to provide Plaintiff with required written

eligibility notifications of her FMLA rights within 5 days from

being her taking medical leave, see 29 CFR § 825.300(b)(1);

failed to provide Plaintiff with written FMLA designation

notices within 5 days from her being on medical leave, see id. §

825.300(b)(2); failed to provide Plaintiff with required written

rights and responsibilities notices within 5 days from her being

on medical leave, see id. § 825.300(c)(1)(i)-(vii); and failed

to provide written FMLA designation notices for a leave, see id.

§ 825.300(d)(1)-(6). Defendants also interfered with

Plaintiff’s right and entitlement to reinstatement to the same

or similar position when it converted her to a part-time

employee immediately following the leave Plaintiff took for back

surgery.

For her FMLA retaliation claim, Plaintiff took FMLA leave,

she was terminated, and her termination was caused by her use of

FMLA leave. Specifically, when Plaintiff returned from back

surgery, she was immediately converted to a part-time employee,

while other employees who did not use FMLA leave received more

hours. Defendants also harassed Plaintiff and gave her a hard

time for needing to take time off for medical appointments

during the year leading up to her termination, and at times

Plaintiff did not go to appointments because of this dissuasion.

Defendants also terminated Plaintiff directly because of her

medical issues and need to take FMLA leave.

At this point, it is Defendants’ obligation to articulate a

legitimate business decision for their actions, but their

failure to appear in the case results in no such reason being

proffered. Plaintiff has stated viable claims for FMLA

interference and retaliation.

2. Whether Plaintiff is entitled to a default

judgment

Because it has been determined that Plaintiff has stated

viable causes of action for violations of the ADA, ADEA, FMLA

and NJLAD, it must be determined whether Plaintiff is entitled

to a default judgment. As stated above, prior to entering

judgment on the counts where a valid cause of action has been

established, three factors must be considered: (1) prejudice to

the plaintiff if default judgment is not granted; (2) whether

the defendant has a meritorious defense; and (3) whether the

defendant’s delay was the result of culpable misconduct.

Chamberlain, 210 F.3d at 164.

a. Prejudice to plaintiff

Plaintiff will be prejudiced absent a default judgment

because Defendants’ failure to respond to Plaintiff’s claims

leaves Plaintiff with no other means to vindicate her claims.

b. Existence of meritorious defense

“A claim, or defense, will be deemed meritorious when the

allegations of the pleadings, if established at trial, would

support recovery by plaintiff or would constitute a complete

defense.” Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863,

869-70 (3d Cir. 1984); accord $55,518.05 in U.S. Currency, 728

F.2d at 195; Feliciano, 691 F.2d at 657; Farnese v. Bagnasco,

687 F.2d 761, 764 (3d Cir. 1982). Here, it is axiomatic that

the Court cannot consider Defendants’ defenses because

Defendants have failed to respond to this action. See

Prudential Ins. Co. of America v. Taylor, No. 08-2108, 2009 WL

536403, at *1 (D.N.J. 2009) (“[B]ecause Ms. Ducker has not

answered or otherwise appeared in this action, the Court was

unable to ascertain whether she has any litigable defenses.”);

Santiago v. Lucky Lodi Buffet Inc., 2016 WL 6138248, at *3

(D.N.J. 2016) (in an motion for default judgment, finding that

“in the absence of any responsive pleading and based upon the

facts alleged in the Complaint, Defendants do not have a

meritorious defense”).

c. Whether Defendants’ delay is the result of

culpable conduct

Defendants’ delay appears to be the result of culpable

conduct. “Culpable conduct is dilatory behavior that is willful

or in bad faith.” Gross v. Stereo Component Sys., Inc., 700

F.2d 120, 123 (3d Cir. 1983). Plaintiff served Defendants with

her complaint on November 6, 2018, they failed to respond, and

they have never appeared since. Plaintiff’s counsel’s affidavit

in support of default represents that Defendants are not minors,

they are not incompetent, and they have not been engaged in

military service. Therefore, Defendants’ failure to appear in

the action can be deemed willful. See, e.g., Santiago, 2016 WL

6138248, at *3 (finding that “Defendants acted culpably as they

have been served with the Complaint and Defendants are not

infants, otherwise incompetent, or presently engaged in military

service”).

Consequently, because the Court has found that Plaintiff

will be prejudiced if default judgment is not granted,

Defendants do not have a meritorious defense, and Defendants’

failure to appear in this case is the result of their culpable

misconduct, judgment shall be entered in Plaintiff’s favor on

her ADA, ADEA, FMLA, and NJLAD claims.

3. Damages

In order to determine what damages Plaintiff is entitled to

for her judgment against Defendants, the Court may “conduct

hearings or make referrals - preserving any federal statutory

right to a jury trial - when, to enter or effectuate judgment,

it needs to . . . determine the amount of damages.” Fed. R.

Civ. P. 55(b)(2); cf. Fed. R. Civ. P. 55(b)(1) (“If the

plaintiff's claim is for a sum certain or a sum that can be made

certain by computation, the clerk - on the plaintiff's request,

with an affidavit showing the amount due - must enter judgment

for that amount and costs against a defendant who has been

defaulted for not appearing and who is neither a minor nor an

incompetent person.”); Jonestown Bank and Trust Co. v. Automated

Teller Mach., Services, Inc., 2012 WL 6043624, *4 (M.D. Pa.

2012) (citing 10 James Wm. Moore, et al., Moore's Federal

Practice § 55.32[2][c] (Matthew Bender ed. 2010) (“[T]he

‘hearing’ may be one in which the court asks the parties to

submit affidavits and other materials from which the court can

decide the issue.”)).

a. Back pay and front pay

Plaintiff seeks an award of back pay and front pay for her

all of her claims. Plaintiff contends she is entitled to back

pay damages stemming from her July 8, 2018 termination, as well

as her illegal conversion to a part-time employee following her

medical leave. Such damages are available under the ADEA, ADA,

FMLA and NJLAD. See Eshelman v. Agere Systems, Inc., 554 F.3d

426, 440 n.7 (3d Cir. 2009) (“The ADA incorporates the remedies

provided for in Title VII of the Civil Rights Act of 1964,”

which include front and back pay); Blum v. Witco Chemical Corp.,

829 F.2d 367, 373–74 (3d Cir. 1987) (citations omitted) (“Back

pay coupled with reinstatement is the preferred remedy to avoid

future damages in ADEA cases. The relevant time period for

calculating an award of back pay begins with wrongful

termination and ends at the time of trial. . . . In calculating

a front pay award, the jury must consider the expected future

damages caused by defendant's wrongful conduct from the date of

judgment to retirement. A plaintiff, of course, has a duty to

mitigate damages, and his new salary will be deducted from the

old to avoid a windfall award.”); Churchill v. Star Enterprises,

183 F.3d 184, 193 (3d Cir. 1999) (citing 42 U.S.C. §§ 2000e et

seq.) (FMLA provides for back pay and front pay or

reinstatement); Andujar v. General Nutrition Corporation, 2018

WL 1087494, at *10 (D.N.J. 2018) (citing Goodman v. London

Metals Exchange, 86 N.J. 19, 34, 429 A.2d 341 (1981)) (other

citations omitted) (explaining that back pay and front pay are

recoverable under the NJLAD).

Plaintiff is entitled to back pay and front pay for

Defendants’ violations of the ADA, ADEA, FMLA and NJLAD.7

b. Compensatory, punitive and liquidated

damages

Plaintiff also seeks damages for pain, suffering,

inconvenience, mental anguish, and loss of enjoyment of life

7 Plaintiff is entitled to a single recovery for her front pay

and back pay, despite Defendants’ violation of four statutes.

As discussed below, Plaintiff is required to provide

supplemental briefing to support her request for other damages,

which should include an explanation as to how those damages are

calculated when several statutes have been violated.

that she experienced as a consequence of Defendants terminating

her employment due to her age and disability. Plaintiff also

seeks punitive damages and liquidated damages because she was

directly told that she was terminated due to her age and

disability or perceived disability. Plaintiff concedes that

traditional compensatory damages and punitive damages are not

available under the ADEA and FMLA, but they are available under

the ADA and NJLAD. See Blunt v. Lower Merion School Dist., 767

F.3d 247, 272 (3d Cir. 2014) (citations omitted) (explaining

that compensatory damages under the ADA are available where

there is a showing of intentional discrimination based on a

deliberate indifference standard); Gagliardo v. Connaught

Laboratories, Inc., 311 F.3d 565, 573 (3d Cir. 2002) (citing 42

U.S.C. § 1981a(b)(1)) (“Punitive damages are available under the

ADA when ‘the complaining party demonstrates that the respondent

engaged in a discriminatory practice . . . with malice or with

reckless indifference.’”); Andujar, 2018 WL 1087494 at *10

(citing Goodman v. London Metals Exchange, 86 N.J. 19, 34, 429

A.2d 341 (1981)) (other citations omitted) (emotional distress

damages are recoverable under the NJLAD); Stowell v. Black Horse

Pike Regional School District, 2019 WL 6044937, at *10 (D.N.J.

2019) (citations omitted) (“The NJLAD permits recovery of

punitive damages in cases where two elements are met: ‘the

offending conduct must be especially egregious; and there must

be actual participation in or willful indifference to the

wrongful conduct on the part of upper management.’”).

With regard to liquidated damages, such damages are

available under the ADEA and FMLA. An award of liquidated

damages under the FMLA is compensatory in nature, while

liquidated damages under the ADEA are considered punitive. Akin

to compensatory damages under the ADA, in order to be entitled

to liquidated damages under the FMLA, the defendant’s violation

must not have been done in good faith. Similar to punitive

damages under the ADA and NJLAD, in order to be entitled to

liquidated damages under the ADEA, a defendant’s violation must

be willful. See Starceski v. Westinghouse Elec. Corp., 54 F.3d

1089, 1102 (3d Cir. 1995) (under the ADEA, permitting pre-

judgment interest, which are compensatory damages, and

liquidated damages, which are punitive in nature, but in order

to recover punitive damages, the defendant’s conduct in

violating the ADEA must be willful); Punter v. Jasmin Intern.

Corp., 2014 WL 4854446, at *6 (D.N.J. 2014) (citing Starceski,

54 F.3d At 1102) (explaining that under the FMLA, prejudgment

interest is not available to parties who are awarded liquidated

damages for unpaid wages under the FLSA because “both serve the

same purpose, namely to compensate employees for losses caused

by delayed receipt of wages they are due”); Velcko v. Saker

Shoprites, Inc., 2016 WL 4728106, at *8 (D.N.J. 2016) (citing 29

U.S.C. 2617(a)(1)(A)(iii)) (explaining that the FMLA allows for

liquidated damages for violations equal to wages, salary,

employment benefits or other compensation denied or lost to such

employee because of the violation, but the FMLA provides that

these damages will not be awarded if the violation was in good

faith and that the employer had objectively reasonable grounds

to believe that the act or omission did not violate the FMLA).

Accepting as true that Defendants specifically terminated

Plaintiff because of her age and her disability or perceived

disability, Plaintiff is entitled to back pay and front pay.

Further accepting as true that Defendants’ actions were

intentional and not performed in good faith, Plaintiff has also

met the standard for an award of compensatory damages for

Defendants’ violation of the ADA and NJLAD, and for liquidated

damages under the FLSA. Plaintiff should provide to the Court a

supplemental certification, with evidentiary support and

citation to the relevant statutory provisions and caselaw, to

establish the back pay, front pay, and liquidated damages she is

entitled to.

With regard to punitive damages under the ADA and NJLAD,

and liquidated damages under the ADEA, the Court cannot

determine, based on Plaintiff’s current motion, whether such

damages should be awarded on the facts presented here.

Plaintiff should provide a supplemental brief with citation to

the relevant statutory provisions and caselaw to support her

claim for damages which are punitive in nature. See, e.g., D.B.

v. Bloom, 896 F. Supp. 166, 171 (D.N.J. 1995) (where a plaintiff

who had been denied dental services because of his HIV status

sought default judgment against the dentist for ADA and NJLAD

violation claims, awarding compensatory and punitive damages,

and citing several comparable cases for support) (citing Smith

v. Wade, 461 U.S. 30, 54 (1983) (“Punitive damages are awarded

in the jury's discretion ‘to punish [the defendant] for his

outrageous conduct and to deter him and others like him from

similar conduct in the future.’ Restatement (Second) of Torts §

908(1) (1977). The focus is on the character of the

tortfeasor’s conduct - whether it is of the sort that calls for

deterrence and punishment over and above that provided by

compensatory awards. If it is of such a character, then it is

appropriate to allow a jury to assess punitive damages . . .

.”).

c. Attorney’s fees

Under the ADA, ADEA, FMLA, and NJLAD, Plaintiff is entitled

to reasonable attorney’s fees and costs. See Diaz v. Saucon

Valley Manor Inc., 579 F. App’x 104, 110 (3d Cir. 2014)

(“Under the FMLA and the ADA, a prevailing party is entitled to

reasonable attorneys’ fees and costs.”) (citing 29 U.S.C. §

2617(a)(3) (“The court in such an action shall, in addition to

any judgment awarded to the plaintiff, allow a reasonable

attorney's fee, reasonable expert witness fees, and other costs

of the action to be paid by the defendant.”); 42 U.S.C. § 12205

(“In any action . . . the court or agency, in its discretion,

may allow the prevailing party . . . a reasonable attorney's

fee, including litigation expenses, and costs . . . .”);

Spinetti v. Service Corp. Intern., 324 F.3d 212, 216 (3d Cir.

2003) (citing 29 U.S.C. §§ 626(b), 216(b)) (explaining that the

ADEA permits an award of attorney's fees and costs to a

prevailing party); Abrams v. Lightolier Inc., 50 F.3d 1204, 1221

(3d Cir. 1995) (citing N.J.S.A. 10:5-27.1) (“Under the NJLAD,

reasonable attorneys’ fees are available to a prevailing

plaintiff as part of costs.”).

Plaintiff’s counsel will be directed to provide the Court

with a certification of attorney’s fees and costs, with citation

to the applicable statutory provisions and caselaw to support

Plaintiff’s request for attorney’s fees and costs.

CONCLUSION

After deeming admitted every well-pled allegation in

Plaintiff’s complaint, Plaintiff has established her prima facie

cases against Defendants for their violation of the ADA, ADEA,

FMLA, and NJLAD. Judgment as to liability against Defendants in

Plaintiff’s favor on all counts in her complaint will be

entered. With regard to damages, Plaintiff has also established

her entitlement to damages in the form of back pay, front pay,

compensatory damages. She has also established that she is

entitled to attorney’s fees and costs. As set forth above,

Plaintiff will be granted leave to provide supplemental

submissions to quantify the amount of damages and counsel’s fees

and costs.

With regard to Plaintiff’s request for punitive damages,

Plaintiff has not met her burden to establish the imposition of

those type of damages based on her current motion. In addition

to her submission with regard to her other damages, Plaintiff

may provide additional briefing to support her request for

punitive damages.

An appropriate Order will be entered. A final judgment

will be entered after the Court considers Plaintiff’s

supplemental submissions.

Date: April 21, 2020 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.