MARSH v. ENPRO INDUSTRIES, INC.

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

TIMOTHY MARSH, 1:17-cv-6939-NLH-KMW

Plaintiff, OPINION

v.

GGB, LLC,

Defendant.

APPEARANCES:

TIMOTHY STEVEN SEILER

ARI R. KARPF

KARPF KARPF & CERUTTI PC

3331 STREET ROAD, SUITE 128

TWO GREENWOOD SQUARE

BENSALEM, PENNSYLVANIA 19020

Attorneys for Plaintiff.

RALPH R. SMITH, III

CAPEHART & SCATCHARD

8000 MIDATLANTIC DRIVE, SUITE 300-S

P.O. BOX 5016

MOUNT LAUREL, NEW JERSEY 08053

Attorneys for Defendant.

HILLMAN, District Judge

The Family Medical Leave Act (hereinafter, the “FMLA”), 29

U.S.C. § 2601, allows eligible employees to take up to twelve

weeks of medical leave per year without risk of losing their

jobs. Caruso v. Bally’s Atl. City, No. 16-5021, 2019 WL

4727912, at *1 (D.N.J. Sept. 27, 2019) (Hillman, J.).

Additionally, the FMLA expressly prohibits employers from

interfering with an employee’s use of their FMLA rights. See

Id.

In this case, Timothy Marsh (“Plaintiff”), a former

employee of GGB, LLC (“Defendant”), alleges Defendant violated

the FMLA and interfered with his FMLA rights when it terminated

his employment. Plaintiff also alleges that Defendant’s actions

violated the Americans with Disabilities Act (the “ADA”), 42

U.S.C. § 12101, et seq., and the New Jersey Law Against

Discrimination (“NJLAD”), N.J. Stat. Ann. (“N.J.S.A.”) 10:5-1,

et seq.

This matter comes before the Court on Defendant’s motion

for summary judgment (ECF No. 33). For the reasons that follow,

Defendant’s motion will be granted.

BACKGROUND

The Court takes its facts from the parties’ statements of

material fact submitted pursuant to Local Civil Rule 56.1(a).

The Court notes disputes where appropriate.

Defendant is in the business of manufacturing bearings. In

early 2010, Defendant hired Plaintiff through a temporary

staffing agency for a non-permanent role. In August of 2010,

Defendant brought Plaintiff on as a permanent employee and

tasked him with setting up and operating machinery in the

manufacturing process. (ECF No. 34 (“Def. SOMF”) at ¶¶3-4).

Plaintiff was also expected to manage certain materials and

conduct safety checks on the shop floor.

Unfortunately, Plaintiff suffers from anxiety and major

depression and experiences panic attacks and other disabling

episodes that often make it difficult for him to attend work.

See (ECF No. 37-1 (“Pl. SOMF”) at ¶¶9-10). For these

disabilities, Plaintiff requested and received leave benefits

under the FMLA, and beginning on September 26, 2011, Plaintiff

began utilizing FMLA leave, on and off, until he was terminated

in October of 2016. See (ECF No. 37-9) (FMLA employee leave

tracking report summarizing Plaintiff’s leave utilization).

Defendant maintains a robust absenteeism policy to handle

its employees’ excused and unexcused absences. For excused

absences taken pursuant to the FMLA, employees are provided with

specific instructions regarding how to use and report such

leave. See (Pl. SOMF at ¶13). The process contains two steps.

First, Plaintiff was expected to call a third-party FMLA

administrator’s leave hotline1 to indicate he would be absent

1 Plaintiff’s FMLA leave requests were handled by Defendant’s

third-party FMLA administrator. (Pl. SOMF at ¶11; see Def. SOMF

at ¶19) (the “third party administrator handled all aspects of

an employee’s application for FMLA leave. All required

paperwork for obtaining approval was handled by the third[-

]party administrator, including the making of all approval

decisions”). While Plaintiff admits this fact in part and

from work and was invoking use of his FMLA leave allotment.

(Def. SOMF at ¶18). Second, when Plaintiff was going to be

absent, for any reason, he was expected to call a hotline

maintained by Defendant so Defendant could manage staffing and

track attendance. (Def. SOMF at ¶15). Plaintiff was aware of

these requirements and complied with them. (Pl. SOMF at ¶13)

(“In calling out for FMLA, Mr. Marsh would both call into

Defendant’s third party FMLA administrator, as well as

Defendant’s own hotline to report that his absence, stating that

he was using the day, or part of the day, under the FMLA.”).

Under Defendant’s absenteeism policy, one major difference

between excused and unexcused absences is that employees are

assessed a certain number of points associated with unexcused

absences from work.2 (Def. SOMF at ¶¶7-8, 11, 13). Employees

denies it in part, Plaintiff’s denial is simply an attempt to

supplement the fact asserted and does not, in any way, disprove

it. As such, the Court will accept this fact over Plaintiff’s

objection.

2 FMLA leave time falls within Defendant’s excused leave policy,

for which no points are assessed, and Plaintiff was, in fact,

not assessed points during periods of FMLA leave. (Def. SOMF at

¶13). Plaintiff argues, without citation to the record, that

Defendant failed to excuse all of Plaintiff’s absences “that

were caused by his disabilities.” (ECF No. 37-2 at ¶13). Our

Local Civil Rules require opponents of summary judgment to

furnish “a responsive statement of material fact[], addressing

each paragraph of the movant’s statement, indicating agreement

or disagreement and, if not agreed, stating each material fact

in dispute and citing to the affidavits and other documents

submitted in connection with the motion[.]” L. Civ. R. 56.1(a).

are assessed a single point for being excessively tardy or

absent. (Def. SOMF at ¶10). Accrual of nine points under

Defendant’s absenteeism policy results in automatic termination,

without exception or flexibility.3 (Def. SOMF at ¶¶27-28). When

an employee reached seven absence points, they received a

written warning advising them they were nearing the nine-point

mark. (Def. SOMF at ¶29). The written warning outlined each

instance where a point was assessed. (Def. SOMF at ¶30). Once

an employee received nine points, however, termination was

mandatory under Defendant’s policy. (Def. SOMF at ¶28).

Separate from his FMLA leave, Plaintiff was absent from

work on a number of additional, non-FMLA excused occasions, the

Plaintiff has not cited to any authority in support of his

assertion.

Additionally, the Court recognizes a difference between “approved

FMLA time” and absences “caused by [Plaintiff’s] disabilities[,]”

a distinction that will be discussed further, infra. Finding that

Plaintiff’s denial of this fact does not comply with Local Civil

Rule 56.1(a) and is not otherwise supported by the record, the

Court resolves this dispute against Plaintiff not because it is

immaterial but because the assertion is not supported by admissible

evidence.

3 Plaintiff contests this fact. Plaintiff admits that

Defendant’s human resources manager testified consistent with

this fact but denies “that Defendant’s witnesses are credible.”

(ECF No. 37-2 at ¶28). While Plaintiff attempts to manufacture

credibility issues, Plaintiff cites no evidence suggesting that

termination was not automatic after accrual of nine points. As

such, the Court accepts this fact as unrebutted as no record

evidence contradicts it.

last of which occurred in October of 2016. On October 5, 2016,

Plaintiff called out of work and attempted to invoke his FMLA

leave. (Def. SOMF at ¶32). Unfortunately, Plaintiff had

already exhausted his FMLA leave allotment, and this absence

was, therefore, unexcused under Defendant’s leave policy. (Def.

SOMF at ¶33). Because this absence was not excused, Plaintiff

received a point for it. See (Def. SOMF at ¶34). That point

assessment brought Plaintiff to nine total points for unexcused

absences. (Id.). Defendant’s human resource manager was

alerted to the point accrual and presented the matter to the

human resources team for resolution. (Def. SOMF at ¶35).

Thereafter, a meeting was held with Plaintiff and two

representatives from Plaintiff’s union. (Def. SOMF at ¶37). At

that meeting, Plaintiff was informed he was being terminated for

excessive absenteeism under Defendant’s unexcused absenteeism

policy. (Def. SOMF at ¶38). During this meeting, Plaintiff

received a written notice outlining all instances of point

accrual and noting his termination. (Def. SOMF at ¶39).

Defendant discussed the notification with Plaintiff and “went

over the occurrences that resulted in Plaintiff reaching 9

points[.]” (Def. SOMF at ¶40). Plaintiff told Defendant that

“at least two of the absences were due to his disabilities” and

asked whether there was “anything that could be done regarding

th[ose] attendance points”4 including “removing them from his

record.”5 (Pl. SOMF at ¶83). Defendant was not willing to make

an exception and stood firm on its decision. See (Pl. SOMF at

¶¶84-86).

Plaintiff’s complaint contains three counts, which

Plaintiff then sub-divides into various sub-counts. The first

count alleges FMLA interference and FMLA retaliation claims.

Count two alleges Defendant violated the ADA by discriminating

against Plaintiff on the basis of his disability, failing to

accommodate him, and retaliating against him.6 Count three

4 Plaintiff suggested during this meeting that he thought he had

additional FMLA leave time remaining. Defendant advised

Plaintiff that if he believed he had FMLA leave time remaining,

he could contact the third-party FMLA administrator and, if

true, Defendant would correct the situation. (Def. SOMF at

¶43).

5 The parties disagree about whether Plaintiff ever requested an

accommodation due to his disabilities. Defendant asserts that

Plaintiff never sought any type of reasonable accommodation for

his disabilities during this termination hearing or the absence-

reporting phone calls leading up to it. (Def. SOMF at ¶46).

Plaintiff argues that he did, citing to his own statement of

material facts in which Plaintiff essentially says his

notification that two of the nine points resulted from his

disabilities and asking that they be removed from his record was

a request for accommodation. (Pl. SOMF at ¶¶79-86). Whether

such a request constitutes a request for reasonable

accommodations will be discussed further, infra.

6 Plaintiff also alleged hostile work environment claims but has

stated his intention to abandon those claims. (ECF No. 37 (“Pl.

Br.”) at 7, n.1). As such, the Court will not assess these claims

further.

alleges Defendant violated the NJLAD by discriminating against

Plaintiff on the basis of his disability, failing to accommodate

Plaintiff, and retaliating against Plaintiff.7

DISCUSSION

I. Subject Matter Jurisdiction

This Court exercises subject matter jurisdiction pursuant

to 28 U.S.C. §§ 1331 and 1367.

II. Legal Standard

Summary judgment is appropriate where the Court is

satisfied that “‘the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits if any,’ . . . demonstrate the absence of a genuine

issue of material fact” and that the moving party is entitled to

7 Plaintiff also presents a number of additional facts he

suggests are relevant, including those relating to (1) an

incident in which Plaintiff was reprimanded for taking an

unscheduled break (which Plaintiff represents he took because he

was having a panic attack) for which Plaintiff was reprimanded

for not telling his supervisor he needed time off, and (2) a

change in duties where Plaintiff was asked to pack bearings

instead of helping to create them. See gen. (Pl. SOMF at ¶¶33-

76). Plaintiff categorizes these facts as “animosity following

and relating to [Plaintiff’s use] of FMLA leave.” See (Pl. SOMF

at ¶¶32-33). While Plaintiff suggests these facts are relevant,

he does not rely on them in his brief in any substantial manner.

Instead, Plaintiff focuses this Court’s attention almost

exclusively on facts surrounding Plaintiff’s termination. A

detailed recitation of these additional proffered facts,

therefore, is unwarranted as they do not affect the outcome of

Defendant’s motion.

a judgment as a matter of law.” Celotex Corp. v. Catrett, 477

U.S. 317, 322-23 (1986) (citing Fed. R. Civ. P. 56).

An issue is “genuine” if it is supported by evidence such

that a reasonable jury could return a verdict in the nonmoving

party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). A fact is “material” if, under the governing

substantive law, a dispute about the fact might affect the

outcome of the suit. Id. “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)

(citing Anderson, 477 U.S. at 255).

Initially, the moving party bears the burden of

demonstrating the absence of a genuine issue of material fact.

Celotex, 477 U.S. at 323 (“[A] party seeking summary judgment

always bears the initial responsibility of informing the

district court of the basis for its motion, and identifying

those portions of ‘the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any,’ which it believes demonstrate the absence

of a genuine issue of material fact.”); see Singletary v. Pa.

Dep’t of Corr., 266 F.3d 186, 192 n.2 (3d Cir. 2001) (“Although

the initial burden is on the summary judgment movant to show the

absence of a genuine issue of material fact, ‘the burden on the

moving party may be discharged by []showing[]--that is, pointing

out to the district court—–that there is an absence of evidence

to support the nonmoving party’s case’ when the nonmoving party

bears the ultimate burden of proof.” (citing Celotex, 477 U.S.

at 325)).

Once the moving party has met this burden, the nonmoving

party must identify, by affidavits or otherwise, specific facts

showing that there is a genuine issue for trial. Celotex, 477

U.S. at 324. A “party opposing summary judgment ‘may not rest

upon the mere allegations or denials of the . . . pleading[s].’”

Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001). For

“the non-moving party[] to prevail, [that party] must ‘make a

showing sufficient to establish the existence of [every] element

essential to that party’s case, and on which that party will

bear the burden of proof at trial.’” Cooper v. Sniezek, 418 F.

App’x 56, 58 (3d Cir. 2011) (citing Celotex, 477 U.S. at 322).

Thus, to withstand a properly supported motion for summary

judgment, the nonmoving party must identify specific facts and

affirmative evidence that contradict those offered by the moving

party. Anderson, 477 U.S. at 257.

ANALYSIS

I. Plaintiff’s FMLA Allegations

“An employer may be sued under the FMLA for interfering

with an employee’s FMLA rights, as well as for retaliating

against an employee who exercises rights under the FMLA.”

Caruso, 2019 WL 4727912, at *5 (citing Lupyan v. Corinthian

Colleges Inc., 761 F.3d 314, 318 (3d Cir. 2014)). “[F]iring an

employee for a valid request for FMLA leave may constitute

interference with the employee’s FMLA rights as well as

retaliation against the employee.” Id. (quoting Erdman v.

Nationwide Ins. Co., 582 F.3d 500, 509 (3d Cir. 2009)).

Plaintiff asserts both an FMLA retaliation and FMLA

interference claim. While the two are certainly related, and

while Plaintiff addresses them jointly in his briefing, the

Court will address each claim separately because they are

governed by differing legal standards.

a. Summary Judgment Is Appropriate On Plaintiff’s FMLA

Interference Claim

Defendant argues that Plaintiff requested and received all

FMLA benefits owed to him by law and exhausted those benefits

without interference. As such, Defendant argues, summary

judgment is appropriate. Plaintiff disagrees.

29 U.S.C. § 2615(a)(1) prohibits an employer from

“interfer[ing] with, restrain[ing], or deny[ing] the exercise of

or the attempt to exercise, any right” that it guarantees. To

prevail on an FMLA interference claim, an employee “must show

(1) she was entitled to take FMLA leave on [the date it was

sought for], and (2) [the employer] denied her right to do so.”

Lichtenstein v. Univ. of Pittsburg Med. Ctr, 691 F.3d 294, 312

(3d Cir. 2012) (citing Callison v. City of Philadelphia, 430

F.3d 117, 119 (3d Cir. 2005)); Sommer v. The Vanguard Group, 461

F.3d 397, 399 (3d Cir. 2006). The interference inquiry is

merely about whether the employer provided its employee with the

entitlements and protections guaranteed by the FMLA. Caruso,

2019 WL 4727912, at *8 (citing Hodgens v. Gen. Dynamics Corp.,

144 F.3d 151, 159 (1st Cir. 1998)); Callison, 430 F.3d at 120.

While Plaintiff does not clearly articulate his theory of

alleged interference, Plaintiff’s complaint strongly suggests

his focus is on Defendant’s assessment of an absenteeism point

for absences occurring in October of 2016.8 Plaintiff argues

that “it may constitute both an interference violation and/or

retaliation to terminate an employee for requesting FMLA leave.”

(Pl. Br. at 18). Plaintiff avers that he “was terminated in

8 A review of Plaintiff’s brief reveals that the term

“interference” appears only seven times, all of which appear

over the course of a single paragraph. This demonstrates the

lack of support Plaintiff provides for his FMLA interference

claim and leaving the Court to speculate on some level as to the

exact theory advanced by Plaintiff.

retaliation for requesting and utilizing leave and/or

accommodations under the ADA and FMLA.” (Pl. Br. at 20).

Lastly, Plaintiff argues he “was terminated just one day after

engaging in protected activities under both the FMLA and ADA by

utilizing approved medical leave on October 10, 2018 because of

a flareup related to his disabilities.” (Pl Br. at 23).

Despite Plaintiff’s averment that he was fired after

invoking protected FMLA leave during October of 2016, the record

proves that Defendant’s October 2016 leave was not protected by

the FMLA because Plaintiff had exhausted all of his available

FMLA leave by that time. Essentially, Plaintiff sought to draw

from a dry well, rendering his leave unprotected. See Coker v.

McFaul, 247 F. App’x 609, 620 (6th Cir. 2007) (quoting Manns v.

ArvinMeritor, Inc., 291 F. Supp. 2d 655, 660 (N.D. Ohio 2003))

(“Once an employee exceeds his . . . FMLA leave, additional

leave . . . is not protected[.]”); see also Smith v. Medpointe

Healthcare, Inc., 338 F. App’x 230, 233–34 (3d Cir. 2009)

(affirming district court’s grant of summary judgment in favor

of defendant-employer on an FMLA interference claim where

plaintiff was found to have taken absences beyond those

permitted by FMLA, and where those non-protected absences

triggered the employer’s stated absenteeism policy, compelling

termination). Because Plaintiff cannot establish that he was

entitled to FMLA leave for the dates in October 2016 he invoked

such leave, he cannot establish Defendant interfered with his

FMLA rights. See Lichtenstein, 691 F.3d at 312.

Relevantly, an employer’s decision not to grant extended,

unprotected leave, is not an interference with FMLA rights; said

differently, Defendant cannot be found to interfere with

Plaintiff’s attempts to use time he did not have. See Coker,

247 F. App’x at 620; Smith, 338 F. App’x at 233–34. Because

Plaintiff has not presented evidence suggesting he was entitled

to the leave he sought, the Court will grant summary judgment on

Plaintiff’s FMLA interference claim.

b. Summary Judgment Is Appropriate On Plaintiff’s FMLA

Retaliation Claim

“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.” Caruso, 2019 WL 4727912,

at *5 (citing 29 U.S.C. § 2615(a)(2); 29 C.F.R. § 825.220(c)).

“To establish a retaliation claim under the FMLA, a plaintiff

must first establish a prima facie case of retaliation by

demonstrating that: (1) she availed herself of a protected right

under the FMLA; (2) she suffered an adverse employment action;

and (3) the adverse action was causally related to the

plaintiff’s FMLA leave.” Id. (citing Conoshenti v. Pub. Serv.

Elec. & Gas Co., 364 F.3d 135, 146 (3d Cir. 2004)).

Once a plaintiff has established a prima facie case, the

burden shifts to the defendant to articulate a legitimate,

nondiscriminatory reason for the adverse action. Moore v. City

of Philadelphia, 461 F.3d 331, 342 (3d Cir. 2006); Krouse v. Am.

Sterilizer Co., 126 F.3d 494, 500–01 (3d Cir. 1997). If the

defendant is successful in articulating a legitimate,

nondiscriminatory reason for the adverse action, the burden then

shifts back to the plaintiff, who must show that the employer’s

proffered reason is only pretext and that the employer’s real

reason for the adverse action was to retaliate against the

employee for taking FMLA leave. Id. (citing Hodgens, 144 F.3d

at 161; Thurston v. Cherry Hill Triplex, 941 F. Supp. 2d 520,

532 (D.N.J. 2008)).

To demonstrate the third prong of a prima facie case,

Plaintiff “must point to evidence sufficient to create an

inference that a causative link exists between her FMLA leave

and her termination.” Lichtenstein, 691 F.3d at 307 (citing

Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279–81 (3d

Cir. 2000)).

Plaintiff fails to state a prima facie claim for FMLA

retaliation for the same reasons his interference claim fails:

he has not shown he was retaliated against for invoking a

protected right because the FMLA leave time he sought to use had

already been exhausted.9 See Coker, 247 F. App’x at 620; Smith,

338 F. App’x at 233–34. On that basis alone, Plaintiff’s claim

must fail. Nonetheless, even if Plaintiff could be deemed to

state a prima facie claim, Defendant has articulated a

legitimate, non-discriminatory basis for terminating Plaintiff,

which Plaintiff has not adequately rebutted: excessive,

unprotected absenteeism.

Defendant has a clear attendance policy, which Plaintiff

violated by recording excessive, unexcused, non-FMLA protected

absences. The record contains ample evidence of Defendant’s

policy and Plaintiff’s accumulation of absentee points under the

otherwise neutral policy. On this record, the Court is

satisfied Defendant has sufficiently expressed a legitimate,

non-discriminatory basis for terminating Plaintiff. Indeed, the

Third Circuit, like several of its sister circuits throughout

the country, has found that termination due to excessive,

9 For this same reason, the Court is not convinced Plaintiff has

adequately satisfied the third prong of the analysis, which

requires he prove a causal link between the protected FMLA

activity and his termination. See Lichtenstein, 691 F.3d at

307. Because Plaintiff’s activity – invoking leave time he did

not have – is not a protected activity, there can be no

causative link between his termination and a protected activity.

unexcused, non-FMLA absences is enough to warrant a finding in

Defendant’s favor. Smith, 338 F. App’x at 234 (“Medpointe had

just cause to terminate Smith’s employment because Smith’s non-

FMLA leave violated its absence policy”); Johnson v. Vintage

Pharm., Inc., 185 F. App’x 798, 799–800 (11th Cir. 2006)

(affirming grant of judgement where employer provided full FMLA

benefits and the plaintiff was excessively absent above and

beyond the time provided by the FMLA); Coker, 247 F. App’x at

620 (quoting Manns, 291 F. Supp. 2d at 660) (“There is no

regulatory or statutory authority to impose upon an employer the

obligation to provide [family medical leave] in excess of the

12–week period under these circumstances. ‘Once an employee

exceeds his twelve work weeks (or sixty workdays) of FMLA leave,

additional leave in the twelve month period is not protected by

the FMLA, and termination of the employee will not violate the

FMLA.’”).

The next step in the analysis, then, is for Plaintiff to

offer proof that Defendant’s proffered reason for termination is

pretextual. See Moore, 461 F.3d at 342; Krouse, 126 F.3d at

500–01. Plaintiff has not carried that burden. There is no

record evidence to suggest that Plaintiff was terminated for

anything other than his accumulation of points sufficient for

termination under Defendant’s clearly stated and uniformly

applied policy. Therefore, Defendant is entitled to judgment as

a matter of law on this claim.

II. Plaintiff’s ADA/NJLAD Allegations

a. Summary Judgment Is Appropriate On Plaintiff’s

Disability Discrimination Claims

“Disability discrimination claims under the ADA and the

NJLAD are analyzed under the same framework.” Stewart v. Cty.

of Salem, 274 F. Supp. 3d 254, 259 (D.N.J. 2017) (Hillman, J.)

(citing Guarneri v. Buckeye Pipe Line Services Co., 205 F. Supp.

3d 606, 615 (D.N.J. 2016); Joseph v. New Jersey Transit Rail

Operations Inc., 586 Fed. App’x. 890, 892 (3d Cir. 2014); Victor

v. State, 4 A.3d 126, 145 (N.J. 2010)). To state a prima facie

cause of action for disability discrimination, Plaintiff must

show he: (1) was disabled; (2) is otherwise qualified to perform

the essential functions of the job, with or without reasonable

accommodations by the employer; and (3) suffered an otherwise

adverse employment decision as a result of discrimination. Id.

(citing Guarneri, 205 F. Supp. 3d at 615). 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.10

10 For the reasons to be discussed, infra, this Court finds

Plaintiff’s reasonable accommodations claims fail. Because

Plaintiff’s reasonable accommodations claims fail, so too must

Plaintiff’s disability discrimination claims to the extent they

Taylor v. Phoenixville School Dist., 184 F.3d 296, 305–06 (3d

Cir. 1999) (discussing ADA); Gavin v. Haworth, Inc., No. 15-180,

2016 WL 7325474, *6 (D.N.J. Dec. 16, 2016) (discussing NJLAD).

“It should not require saying that generally attendance is

a requirement of a job. Not surprisingly, courts are in

agreement on this point.” Waggoner v. Olin Corp., 169 F.3d 481,

483 (7th Cir. 1999) (citing Tyndall v. National Educ. Ctrs., 31

F.3d 209 (4th Cir. 1994); Santiago v. Temple Univ., 739 F. Supp.

974, 979 (E.D. Pa. 1990), aff’d, 928 F.2d 396 (3d Cir. 1991)

(“attendance is necessarily the fundamental prerequisite to job

qualification”); Tumbler v. American Trading & Prod. Corp., No.

96-8566, 1997 U.S. Dist. LEXIS 6119, *4-5 (E.D. Pa. May 2, 1997)

(citations omitted) (“In addition to possessing the skills

necessary to perform the job in question, an employee must be

willing and able to demonstrate these skills by coming to work

on a regular basis. . . . Therefore, a regular and reliable

level of attendance is a necessary element of most jobs”);

Rogers v. International Marine Terminals Inc., 87 F.3d 755 (5th

Cir. 1996); Nesser v. Trans World Airlines, Inc., 160 F.3d 442

(8th Cir. 1998)).

rely upon an alleged failure to provide reasonable

accommodations.

In Miller v. University of Pittsburgh Medical Center, 350

Fed. Appx. 727 (3d Cir. 2009), the Third Circuit found that

“[a]ttendance can constitute an essential function under the

ADA[.]” Id. at 729. Certainly, “[c]ommon sense dictates that

regular attendance is usually an essential in most every

employment setting; if one is not present, he is usually unable

to perform his job.” Id. (quoting Jovanovic v. In–Sink–Erator

Div. of Emerson Elec. Co., 201 F.3d 894, 899–900 (7th Cir.

2000)). In Miller, the appellant-plaintiff’s job description

required her to assist with surgical procedures in a hospital.

Based on that role, the Third Circuit found it “evident that

attendance is an essential element of this position.” Id. The

Third Circuit found that because the plaintiff had not provided

evidence of a reasonable accommodation that would enable her to

perform her essential, on-scene functions, affirmation of a

district court’s grant of summary judgment in favor of an

employer-defendant was warranted. Id.

Like the plaintiff-appellant in Miller, Plaintiff’s job

duties require him to be in attendance and on a factory floor,

physically handling machinery in the manufacturing process.

Therefore, regular attendance – when not otherwise excused – is

undoubtedly an inherent qualification of Plaintiff’s job

description.

Because attendance is key to Plaintiff’s job duties, and

because Plaintiff’s history of unexcused absenteeism indicates

an inability to attend work on a regular basis when not

otherwise excused, the Court cannot find Plaintiff is qualified

for the job he occupied. See, e.g., Miller, 350 Fed. Appx. at

729; Santiago, 739 F. Supp. at 979. Additionally, for the

reasons to be discussed below, Plaintiff has not provided

evidence that he requested a reasonable accommodation that would

permit him to otherwise carry out his on-the-floor obligations.

Defendant is therefore entitled to summary judgment on this

claim.

b. Summary Judgment Is Appropriate On Plaintiff’s Failure

to Accommodate Claims

“The failure to accommodate is one of two distinct

categories of disability discrimination claims[.]” Rich v.

State, 294 F. Supp. 3d 266, 278 (D.N.J. 2018) (quoting Tynan v.

Vicinage 13 of Superior Court, 798 A.2d 648, 655 (N.J. Supt. Ct.

App. Div. 2002)). The elements of failure to accommodate claims

under the NJLAD and the ADA are so similar that the two may be

addressed together. Id. (citing Armstrong v. Burdette Tomlin

Mem’l Hosp., 438 F.3d 240, 246 n.12 (3d Cir. 2006)).

To establish a prima facie case of failure to accommodate,

Plaintiff must establish the following factors: (1) Plaintiff

was handicapped or disabled within the meaning of the statutes;

(2) Plaintiff was qualified to perform the essential functions

of the position of employment, with or without accommodation;

(3) Plaintiff suffered an adverse employment action because of

the handicap or disability; and (4) Defendant sought another to

perform the same work after Plaintiff had been removed from the

position. McQuillan v. Petco Animal Supplies Stores, Inc., No.

13-5773, 2014 WL 1669962, *6 (D.N.J. Apr. 28, 2014); Armstrong,

438 F.3d at 246; Tynan, 798 A.2d at 657.

Plaintiff fails to state a prima facie case for retaliation

under the ADA and the NJLAD. Plaintiff’s failure to accommodate

claim fails for at least two reasons. First, Plaintiff has not

shown he was qualified to perform the essential functions of his

position of employment. As this Court discussed in greater

detail, supra, because Plaintiff’s job duties required him to

operate machinery from the shop floor, and because Plaintiff

cannot establish an ability to regularly attend work when not

otherwise excused, he cannot establish he is qualified for the

role he held. See, e.g., Santiago, 739 F. Supp. at 979

(“attendance is necessarily the fundamental prerequisite to job

qualification”); Tumbler, 1997 U.S. Dist. LEXIS 6119, at *4-5

(“a regular and reliable level of attendance is a necessary

element of most jobs”); Miller, 350 Fed. Appx. at 729 (“regular

attendance is . . . essential”).

Plaintiff nonetheless argues he requested a reasonable

accommodation during his termination meeting – removal of

absenteeism points – and that request was inappropriately

rejected without due consideration. Specifically, Plaintiff

argues that he

requested assistance for [his] disabilities . . . ,

“asking whether there was anything that could be done

regarding these points, including removing them from

my record, as the same we[re] due to conditions as

opposed to general call-outs.” In response,

[Defendant] failed entirely to engage in the

interactive process or accommodate Mr. Marsh for even

just one day past his FMLA leave entitlement, which is

all that would have been required to preserve his

employment[.]

(Pl. Br. at 16).

Plaintiff directs this Court to a line of cases suggesting

extended periods of leave for medical treatment may be deemed a

request for reasonable accommodation. See (ECF No. 37 at 14).

Those cases generally hold that “[a] leave of absence for

medical treatment may constitute a reasonable accommodation

under the ADA.” See Conoshenti v. Public Serv. Elec. & Gas Co.,

364 F.3d 135, 151 (3d Cir. 2004) (“[T]he federal courts that

have permitted a leave of absence as a reasonable accommodation

under the ADA have reasoned . . . that applying such a

reasonable accommodation at the present time would enable the

employee to perform his essential job functions in the near

future.”); Shannon v. City of Philadelphia, No. 98-5277, 1999

U.S. Dist. LEXIS 18089, 1999 WL 1065210, at *6 (E.D. Pa. Nov.

23, 1999) (“Viewing the evidence in the light most favorable to

[plaintiff], the court finds that a reasonable jury could

conclude that [plaintiff’s] request for an additional three

months of unpaid leave for medical treatment was a reasonable

accommodation.”).

These cases, however, are easily distinguishable.

Plaintiff did not request an accommodation so he could obtain

additional medical treatment; instead, he requested - after

being placed on notice of his termination for excessive,

unexcused absenteeism - that Defendant retroactively excuse

otherwise unexcused absences so he could keep his job. Such

requests are, the Court finds, inherently different. Plaintiff

does not explain how receiving such a benefit would help him

accomplish his employment tasks in the “near future” and this

Court finds that he cannot so prove. See Conoshenti, 364 F.3d

at 151. On that basis alone, Defendant is entitled to summary

judgment on this claim.

Moreover, Plaintiff has not established Defendant sought

another to perform the same work after plaintiff had been

removed from the position. For these reasons, Plaintiff’s

failure to accommodate claims fail.

c. Summary Judgment Is Appropriate As To Plaintiff’s

Retaliation Claims

The ADA and NJLAD make it unlawful to retaliate against or

intimidate any individual because he or she has opposed any act

or practice made unlawful by the ADA or NLJAD. 42 U.S.C. §

12203; N.J.S.A. 10:5–12(d), (e); Krouse, 126 F.3d at 502

(citations and internal quotation marks omitted) (“Unlike a

plaintiff in an ADA discrimination case, a plaintiff in an ADA

retaliation case need not establish that he is a qualified

individual with a disability.”). To prove a prima facie case of

retaliation under the ADA or the NJLAD, the plaintiff must

demonstrate by a preponderance of the evidence that (1) he

engaged in a protected activity; (2) he suffered an adverse

action; and (3) a causal connection exists between the protected

activity and the adverse action. Krouse, 126 F.3d at 500.

“If an employee establishes a prima facie case of

retaliation under the ADA, the burden shifts to the employer to

advance a legitimate, non-retaliatory reason for its adverse

employment action.” Krouse, 126 F.3d at 500 (citation omitted).

The Third Circuit explains that the employer’s burden at this

stage is “relatively light: it is satisfied if the defendant

articulates any legitimate reason for the [adverse employment

action]; the defendant need not prove that the articulated

reason actually motivated the [action].” Id. at 500-01 (quoting

Woodson v. Scott Paper Co., 109 F.3d 913, 920 n.2 (3d Cir.

1997), cert. denied, 118 S. Ct. 299, 139 L. Ed. 2d 230 (1997)).

If the employer satisfies its burden, “the plaintiff must be

able to convince the factfinder both that the employer’s

proffered explanation was false, and that retaliation was the

real reason for the adverse employment action.” Id. at 501

(citing Woodson, 109 F.3d at 920 n.2). It is on the plaintiff

to prove that retaliatory animus played a role in the employer's

decision-making process and that it had an effect on the outcome

of that process. Id. (citing Woodson, 109 F.3d at 931-35). The

burden of proof remains at all times with the plaintiff. Id.

(citing Woodson, 109 F.3d at 920 n.2.

To obtain summary judgment, the employer must show that the

trier of fact could not conclude, as a matter of law, “(1) that

retaliatory animus played a role in the employer’s decision[-

]making process and (2) that it had a determinative effect on

the outcome of that process.” Krouse, 126 F.3d at 501. This

may be accomplished by establishing a plaintiff’s inability to

raise a genuine issue of material fact as to either: “(1) one or

more elements of the plaintiff’s prima facie case or, (2) if the

employer offers a legitimate non-retaliatory reason for the

adverse employment action, whether the employer’s proffered

explanation was a pretext for retaliation.” Id. (citations

omitted).

As to Plaintiff’s prima facie case, Plaintiff argues he

engaged in a protected activity by “taking medical leaves of

absence and requesting FMLA for his disabilities on numerous

occasions, including, but not limited to, on October 10, 2016.”

(ECF No. 37 at 19). As for the adverse action requirement,

Plaintiff alleges he “was terminated in retaliation for

requesting and utilizing leave and/or accommodations under the

ADA and FMLA.” (ECF No. 37 at 20). The problem with Plaintiff’s

theory, as this Court previously explained, is that (1) the

record proves Defendant offered Plaintiff, and Plaintiff used,

all available FMLA leave guaranteed by law, and (2) Plaintiff’s

termination followed documented accrual of unexcused, non-FMLA

protected absences. While the Court hesitates to conclude

Plaintiff proved a prima facie case of retaliation, again, this

Court finds the issue easily disposed of by seeing the analysis

through to the end.

As this Court previously concluded, Defendant has set forth

a non-pretextual basis for terminating Plaintiff: excessive,

unexcused absenteeism. The record fully supports that position.

Turning the inquiry back to Plaintiff, as this Court must, the

Court finds Plaintiff unable to present evidence suggesting that

stated basis for termination was pretextual. As such, summary

judgment is appropriate on Plaintiff’s retaliation claims.

CONCLUSION

For the reasons expressed above, Defendant’s motion for

summary judgment (ECF No. 33) will be granted in its entirety.

A separate Order will be entered and this matter will be marked

by the Clerk as closed.

Date: April 23, 2020 s/ Noel L. Hillman

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