SCHLATER v. ARTHRITIS, RHEUMATIC & BACK DISEASE ASSOCIATES, P.A.

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

DEBORAH SCHLATER,

1:18-cv-09778-NLH-KMW

Plaintiff,

v. OPINION

ARTHRITIS, RHEUMATIC & BACK

DISEASE ASSOCIATES, P.A.,

Defendant.

APPEARANCES:

DAVID M. EISEN

MICHAEL D. HOMANS

HOMANS PECK LLC

2 PENN CENTER

1500 JOHN F. KENNEDY BOULEVARD

SUITE 520

PHILADELPHIA, PA 19102

On behalf of Plaintiff Deborah Schlater

LAWRENCE BRENT BERG

MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN

15000 MIDLANTIC DRIVE

SUITE 200

PO BOX 5429

MT. LAUREL, NJ 08054

On behalf of Defendant Arthritis, Rheumatic & Back Disease

Associates, P.A.

HILLMAN, District Judge

Plaintiff Deborah Schlater filed this suit against her

former employer, Defendant Arthritis, Rheumatic & Back Disease

Associates, P.A. (“ARBDA”), alleging a variety of violations of

the Family and Medical Leave Act (“FMLA”) and New Jersey’s Law

Against Discrimination (“NJLAD”). Defendant subsequently moved

for summary judgment, (ECF No. 33), which Plaintiff has opposed.

(ECF No. 38). For the reasons expressed below, Defendant’s

motion will be denied.

Background

The Court takes its facts from the parties’ statements of

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

Defendant is a rheumatology practice with six offices located

throughout New Jersey. On February 27, 2017, Defendant hired

Plaintiff as Clinical Operations Director. (ECF No. 33-2 (“Def.

SOMF”) at ¶ 3).

Plaintiff suffers from a debilitating neurological

condition, which began to worsen in the fall of 2017 until, by

January of 2018, it prevented Plaintiff from standing, sitting

down, or walking for long periods of time and caused Plaintiff

to begin walking with a cane. (ECF No. 38-2 (“Pl. Supp. SOMF”)

at ¶¶ 16-17). That fall, ARBDA’s Managing Partner, Dr. Adrienne

Hollander, treated Plaintiff for her disability and worsening

symptoms, (Id. at ¶ 15),1 and by January of 2018, ARBDA’s CEO,

1 Defendant “Denie[s] as stated” this statement of fact, but cites

to no evidence in the record to dispute the statement or the

supporting evidence Plaintiff has cited. Accordingly, the Court

will accept this fact as admitted for the purposes of this

motion. See Local Civil Rule 56.1(a) (providing that the movant

shall respond to each paragraph of a supplemental statement of

disputed material facts by “indicating agreement or disagreement

and, if not agreed, stating each material fact in dispute and

Director of Human Resources, and other employees were aware of

Plaintiff’s disability. Id. at ¶¶ 16-17. During this time

period, Plaintiff began working from home on certain days, and

began coming to work earlier and leaving earlier than

Defendant’s standard office hours so as to avoid getting stuck

in traffic; the parties dispute whether these practices were

related to Plaintiff’s disability. (Def. SOMF at ¶ 7; Pl. Supp.

SOMF at ¶ 27).

Plaintiff continued these practices until a January 9, 2018

meeting with ARBDA CEO Charles Haberkern and Director of Human

Resources Elaine Piontkowski. In that meeting, Haberkern

informed Plaintiff that, going forward, she was no longer

allowed to work from home on any days or to work adjusted hours.

Instead, she was required to be in the office during normal

office hours, and if she could not make it to the office, she

would have to take a vacation day. Haberkern stated that this

decision was being made because Plaintiff’s job as Director of

Operations could not be done remotely. (Def. SOMF at ¶ 14).

Three weeks later, on February 1, Plaintiff requested

medical leave by email to Piontkowski. The email attached a

doctor’s note excusing Plaintiff from work “indefinitely” as she

was “in the progressive of being evaluated for” a condition

citing to the affidavits and other documents submitted in

connection with the motion....”).

named “progressive lumbosacral radiculopathy,” which rendered

her unable to drive or sit for more than thirty minutes. The

email also stated that Plaintiff had a further appointment with

a neurosurgeon upcoming on February 5. (Def. SOMF ¶ 5).

On February 5, Plaintiff informed Piontkowski by email that

the neurosurgeon had referred her to another specialist, but

that she did not yet have a return-to-work date:

“On a personal note, the neurosurgeon referred me for more

imaging tests and for a separate specialist consult. I

have to wait for a preauth and an appt with the specialist.

So I don’t have a specific return date, and I wish I did.

But I’m still unable to walk, sit, stand, drive for [sic]

more than 10 minutes. The cane no longer helps as both my

feet are in constant pain.” (Pl. Ex. 19).

Plaintiff then emailed Piontkowski again on February 12,

informing her of health insurance related delays in her testing

and treatment, stating that she would keep Piontkowski updated

on her status, and requesting that Piontkowski let Plaintiff

know “[i]f you have any questions or if I need to know anything

regarding my time out of work.” (Pl. Ex. 20). The next day,

February 13, Plaintiff followed up with a specific request

related to the FMLA and extended leave:

“Can you please advise me on what you need from me for my

current, extended leave, or what, if anything, I need to do

at this point, e.g. FMLA form, physician attestation?

Because I’m presently physically unable to work, I want to

make certain I’m following ARBDA and/or state/federal

requirements for extended leave or FMLA.” (Pl. Ex. 21).

Piontkowski responded, ignoring Plaintiff’s requests

regarding information on FMLA leave, and informing her that

ARBDA did not offer extended leave and that she had no paid time

off remaining. The email further requested, for the first time,

that Plaintiff provide ARBDA an expected return-to-work date by

4:00 PM on February 19, six days later, but did not state that

failure to do so could result in termination. (Pl. Supp. SOMF

at ¶ 60, 74; Pl. Ex. 21). That same day, Plaintiff again

requested information about FMLA leave; in her response,

Piontkowski, for the second time, did not acknowledge the

request, providing only information regarding state benefits.

See (Pl. Supp. SOMF at ¶¶ 61-62; Pl. Ex. 21).2

Three days later, on February 16, Plaintiff emailed both

Piontkowski and Haberkern, noting that her doctor was in the

process of trying to get her seen for future testing “asap” and

stating that “[a]s soon as I have more conclusive diagnostic

and treatment information I will let you know, and hopefully

2 Defendant again “Denie[s] as stated” this description of the

relevant email conversation, but cites to no evidence in the

record showing that Defendant addressed Plaintiff’s requests for

FMLA leave, that Defendant had previously mentioned the need for

a return date, or that Defendant warned Plaintiff regarding the

potential consequences. Defendant’s response to these

paragraphs, and many other paragraphs, of Plaintiff’s

supplemental statement of facts similarly includes legal

argument regarding the sufficiency of Plaintiff’s evidence,

which is prohibited by Local Civil Rule 56.1(a). For these

reasons, the Court will accept these facts as admitted for the

purposes of this motion.

that info will provide me with an expected return date.” (Pl.

Ex. 23).

The February 19 deadline came and passed with no further

update or estimated return date provided by Plaintiff. Finally,

the following day, February 20, Piontkowski contacted Plaintiff

to set up a phone call between the two of them and Haberkern.

On that call, Haberkern informed Plaintiff that because she had

failed to provide the return date by the deadline provided by

Piontkowski, Defendant had terminated her employment. (Def.

SOMF at ¶ 21; Pls. Supp. SOMF at ¶ 77).

Plaintiff thereafter filed the operative Amended Complaint,

alleging five separate yet related claims: (1) FMLA retaliation;

(2) interference with Plaintiff’s FMLA rights; (3) disability

discrimination under the NJLAD; (4) NJLAD failure to

accommodate; and (5) NJLAD retaliation. (ECF No. 3).

Discussion

A. Subject Matter Jurisdiction

The 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 claims

pursuant to 28 U.S.C. § 1367(a).

B. Legal Standards Governing Motions for Summary Judgment

Summary judgment is appropriate where the Court is

satisfied that the materials in the record, including

depositions, documents, electronically stored information,

affidavits or declarations, stipulations, admissions, or

interrogatory answers, demonstrate 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. Celotex Corp. v.

Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(a).

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. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir.

2004)(quoting Anderson, 477 U.S. at 255).

Initially, the moving party has the burden of demonstrating

the absence of a genuine issue of material fact. Celotex Corp.,

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.”). 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.

Id. 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 256-57. A party opposing summary

judgment must do more than just rest upon mere allegations,

general denials, or vague statements. Saldana v. Kmart Corp.,

260 F.3d 228, 232 (3d Cir. 2001).

C. Analysis

1. Plaintiff's FMLA Claims

“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

v. Bally’s Atlantic City, No. 16-05021 (NLH/KMW), 2019 WL

4727912, at *5 (D.N.J. Sept. 27, 2019) (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 an FMLA

interference claim. While Plaintiff addresses them jointly in

her complaint, the Court will address each claim separately

because they are governed by differing legal standards.

a. FMLA Retaliation Claim

Plaintiff first alleges that her termination constitutes

illegal retaliation against her for attempting to invoke her

FMLA rights. (ECF No. 3 at ¶ 49). “FMLA retaliation claims are

analyzed under the lens of employment discrimination law and

claims based on circumstantial evidence are evaluated under the

burden-shifting framework” of McDonnell Douglas Corp. v. Green,

411 U.S. 792 (U.S. 1973). Fiorentini v. William Penn Sch.

Dist., 665 Fed. App'x 229, 236 (3d Cir. 2016) (citing

Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 302

(3d Cir. 2012)).

Under the McDonnell Douglas framework, “a plaintiff must

first establish a prima facie case of discrimination. If the

plaintiff succeeds, the defendant must articulate a legitimate,

nondiscriminatory reason for the adverse employment action. The

burden then shifts back to the plaintiff to prove, by a

preponderance of the evidence, that the articulated reason was a

mere pretext for discrimination.” Capps v. Mondelez Global,

LLC, 847 F.3d 144, 152 (3d Cir. 2017) (quoting Ross v. Gilhuly,

755 F.3d 185, 193 (3d Cir. 2014)).

“To state a prima facie case for FMLA retaliation, a

plaintiff must show that: (1) she invoked her FMLA rights; (2)

she suffered an adverse employment action; and (3) the adverse

action was causally related to the plaintiff’s exercise of her

FMLA rights.” Fiorentini, 665 Fed. App'x at 236. Defendant

does not dispute that Plaintiff has satisfied the first two

elements, since she expressed her intent to take FMLA leave and

was terminated. Instead, it argues that Plaintiff cannot

establish that her termination was causally related to her

invoking of the FMLA.

To establish a prima facie case of causation, 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. “Where the

‘temporal proximity’ between the protected activity and adverse

action is ‘unduly suggestive,’ it is sufficient standing alone

to create an inference of causality and defeat summary

judgment.” LeBoon v. Lancaster Jewish Cmty. Ctr. Ass'n, 503 F.3d

217, 232 (3d Cir.2007) (internal quotations omitted). When the

temporal proximity is insufficient, the court asks whether “the

proffered evidence, looked at as a whole, may suffice to raise

the inference.” Id. (quoting Farrell v. Planters Lifesavers

Co., 206 F.3d 271, 284 (3d Cir. 2000)).

The Court finds that Plaintiff has met her burden to show

causation at this stage in the litigation. Plaintiff’s

termination occurred six days after first expressing her

intention to invoke her right to FMLA leave, and one week prior

to the date she would have become eligible for twelve weeks of

FMLA-protected leave. The close temporal proximity between not

only her request and her firing, but also her firing and the

date on which she would have become eligible, is “unduly

suggestive” and creates an inference of causality. Nuness v.

Simon & Schuster, Inc, 325 F. Supp. 3d 535, 563 (D.N.J. 2018)

(finding two weeks between protected activity and termination

was unduly suggestive).

Even were it not, evidence shows that ARBDA’s first request

for a return to work date came in an email directly responding

to Plaintiff’s request for information about FMLA leave, and did

not tell Plaintiff that failure to provide a date could result

in termination. (Pls. SOMF at ¶ 60). Piontkowski’s response

email further ignored Plaintiff’s request for information about

FMLA, and when Plaintiff followed-up a second time asking that

she be provided guidance on the FMLA leave policy, Piontkowski

again ignored the request and provided only information on state

benefits. (Pl. Ex. 21). This evidence is more than sufficient

to demonstrate a factual dispute as to the element of causation,

and therefore a prima facie case of retaliation.

The burden then shifts to the employer to offer a

legitimate, nondiscriminatory reason for Plaintiff’s

termination. Capps, 847 F.3d at 152. “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. Instead, the

employer must provide evidence that will allow the factfinder to

determine that the decision was made for nondiscriminatory

reasons.” Willis v. UPMC Children's Hosp. of Pittsburgh, 808

F.3d 638, 644 (3d Cir. 2015) (citing Fuentes v. Perskie, 32 F.3d

759, 763 (3d Cir. 1994)).

Defendant presents Plaintiff’s failure to provide a return

to work date by the February 19 deadline as the legitimate,

nondiscriminatory reason for her termination. According to

Defendant, Plaintiff “didn’t respond to ARBDA’s inquiries”

regarding a return date, and “[h]ad Plaintiff simply provided

ARBDA with a timeframe for her return, she would not have been

terminated.” (ECF No. 33-1 at 13). This failure, Defendant

argues, “depriv[ed] ARBDA of its ability to make critical

decisions regarding staffing adjustments and reassignment of

duties.” (ECF No. 42 at 25). Haberkern, Dr. Hollander, and

Piontkowski all testified that the sole reason for Plaintiff’s

termination was her failure to provide a return date by the

February 19 deadline so ARBDA could begin “plan[ning] to move

forward” with staffing and planning, (Defs. SOMF at ¶¶ 10-11),

and the parties agree that Haberkern told Plaintiff on the

February 20 call that her failure to provide a return date was

the reason for her termination. As Defendant’s burden at this

stage is “minimal,” it has sufficiently alleged a legitimate,

nondiscriminatory reason. Lichtenstein, 691 F.3d at 302.

Finally, the burden shifts one last time back to Plaintiff

to demonstrate that Defendant’s proffered nondiscriminatory

reason was pretext. To do this, Plaintiff “must demonstrate

such weaknesses, implausibilities, inconsistences,

incoherencies, or contradictions in the employer's proffered

legitimate reasons for its action” to allow a reasonable

factfinder to determine that the reasons were simply pretext for

discriminatory or retaliatory action. Fuentes, 32 F.3d at 765.

Here, Plaintiff has presented more than sufficient evidence

for a factfinder to reasonably make that determination. First,

as described above, Plaintiff has shown not only the unduly

suggestive timing of her termination, but also the fact that

Defendant did not request a return-to-work date until

immediately after Plaintiff first raised the possibility of

taking FMLA leave, and never mentioned that the failure to

provide a return date by the deadline could result in

termination. Similarly, Defendant’s claim that Plaintiff

“didn’t respond to ARBDA’s inquiries” regarding a return date is

supported by no citation to the record; in fact, this claim is

contradicted by the available evidence, which shows that on

February 16, three days after the request and three days before

ARBDA’s chosen deadline, Plaintiff emailed Piontkowski and

Haberkern to inform them that her attempt to seek a diagnosis

had been delayed by insurance issues, but she hoped to have a

return date soon and would keep them updated. (Pl. Ex. 23).

At the same time, Defendant itself had failed to respond to

multiple requests from Plaintiff for information regarding FMLA

leave, despite the fact that they are required to “notify the

employee of the employee’s eligibility to take FMLA leave within

five business days” of the request, 29 C.F.R. § 825.300(b)(1),

and the fact that her FMLA eligibility was apparently already on

the minds of ARBDA’s Executive Committee. Although Plaintiff

had not raised the possibility of taking FMLA leave until her

email to Piontkowski on February 13, contemporaneous notes and

deposition testimony show that ARBDA’s Executive Committee had

discussed her eligibility for FMLA leave in a meeting eleven

days earlier on February 2. Handwritten notes taken at the

meeting by Piontkowski include the comments “Feb 27th” and “3

month” under Plaintiff’s name — which a factfinder could

reasonably determine referred to the undisputed date on which

Plaintiff would become eligible for FMLA leave and the amount of

legally-protected leave the FMLA would grant her at that time.

(Pl. Ex. 18; Pl. Ex. 4 at 133:6-13, 21-24). Dr. Hollander

confirmed that Plaintiff’s upcoming eligibility for FMLA leave

was discussed at the February 2 meeting. (Pl. Ex. 13 at 183:20-

185:13). This lack of communication on a known issue further

coincides with Plaintiff’s testimony that, as her disability

worsened in the months leading up to her request and

termination, her treatment at the hands of her managers had

changed and become more hostile. (Pl. Supp. SOMF at ¶¶ 34-41).3

In fact, despite Defendant’s claim that it terminated

Plaintiff so it could move forward with planning and staffing,

evidence in the record shows that ARBDA had reassigned her job

duties on the first day of her initial leave, February 1, 2018,

and those reassignments stayed in place for almost a full year.

(Pl. Ex. 9 at 151:15-152:9) (Haberkern testimony stating that

3 Defendant argues that a number of allegations made by

Plaintiff, including this one, are “self-serving bare assertions

[and] conclusory allegations” that cannot suffice to establish

genuine issues of material fact sufficient to defeat summary

judgment. (ECF No. 42 at 21-23). Defendant is correct that

“conclusory, self-serving affidavits are insufficient to

withstand a motion for summary judgment.” Kirleis v. Dickie,

McCamey & Chilcote, P.C., 560 F.3d 156, 161 (3d. Cir. 2009).

However, “self-serving affidavits pointing to specific facts can

create a genuine issue of material fact sufficient to survive

summary judgment.” Paladino v. Newsome, 885 F.3d 203, 209 (3d

Cir. 2018) (citing Kirleis, 560 F.3d at 161–62). As such, the

Court will consider those self-serving statements that

sufficiently point to specific facts. Here, Plaintiff describes

specific behavior by Defendant and changes in her treatment, all

matters within her personal knowledge; accordingly, the Court

considers this testimony in its analysis.

ARBDA did not hire the new employee who took on Plaintiff’s

duties until 2019). Finally, Plaintiff also points to evidence,

in the form of deposition transcripts, that ARBDA’s Executive

Committee members had contradicted each other regarding the

exact reason for Plaintiff’s termination: despite Defendant’s

claim that Plaintiff was fired purely for her failure to provide

a return date by February 19, Dr. Michael Schuster testified

that he believed Plaintiff was terminated because “she wasn’t

doing the job that we hired her for,” was “having some

difficulty with the standard operating procedure documents,” and

wasn’t “reaching out to other offices to make sure that they

were following the procedures and developing the procedures of

the Voorhees office.” (Pl. Ex. 28 at 21:15-18, 22:23-23:11).

Taken as a whole and viewed in the light most favorable to

the nonmovant, the evidence in the record is sufficient to allow

a reasonable factfinder to decide that Defendant’s proffered

nondiscriminatory reason was in fact pretext. Accordingly,

Plaintiff has met her burden at this stage of the litigation,

and Defendant’s motion for summary judgment of her FMLA

retaliation claim will be denied.

b. FMLA Interference Claim

Plaintiff also claims that her termination constituted

illegal interference with her FMLA rights. (ECF No. 3 at ¶ 49).

The FMLA prohibits an employer from “interfer[ing] with,

restrain[ing], or deny[ing] the exercise of or the attempt to

exercise,” an employee’s right to FMLA-covered leave. 29 U.S.C.

§ 2615(a)(1). To prevail on her interference claim, Plaintiff

need only demonstrate that “(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, 691 F.3d at 312

(citing Callison v. City of Philadelphia, 430 F.3d 117, 119 (3d

Cir. 2005)). Importantly, “[b]ecause the FMLA [interference

claim] is not about discrimination, a McDonnell Douglas burden-

shifting analysis is not required.” Capps, 847 F.3d at 155

(quoting Sommer, 461 F.3d at 399).

Here, Plaintiff has plainly carried her burden at this

stage in the litigation. Defendant does not dispute that it is

an employer subject to the FMLA, that Plaintiff communicated her

desire to take FMLA-protected leave, or that Plaintiff was

terminated. Instead, Defendant presents a series of other

arguments.

First, it claims that “Plaintiff was not eligible for FMLA

leave, having been employed for less than a year.” (ECF No. 33-

1 at 6). However, as Plaintiff notes, multiple courts in this

district faced with this question have previously found that “a

pre-eligible employee ha[s] a cause of action if an employer

terminates her in order to avoid having to accommodate that

employee with rightful FMLA leave rights once that employee

becomes eligible.” Shreve v. New Jersey Motor Vehicle Comm'n,

Case No. CV-157957-MAS-LHG, 2016 WL 5334661, at *4 (D.N.J. Sept.

22, 2016) (quoting Corral v. Hersha Hosp. Mgmt., Inc., Case No.

12-CV-02375 DRD, 2012 WL 4442666, at *9 (D.N.J. Sept. 24,

2012)); see also Corral, 2012 WL 4442666 at *10 (“[P]re-eligible

employees are entitled to covered rights and attempts to

exercise such rights, including the right to foreseeable future

leave once eligibility is gained.”). The Court reaches the same

conclusion.

Defendant next argues that summary judgment should be

granted because the “FMLA does not provide employees with a

right against termination for a reason other than interference

with rights under the FMLA.” (ECF No. 33-1 at 23-25).

Defendant argues that Plaintiff’s termination was unrelated to

interference with her FMLA rights and instead was because she

failed to provide a return to work date by the deadline set by

Defendant and thereby “depriv[ed] ARBDA of its ability to make

critical decisions regarding staffing adjustments and

reassignment of duties.” (ECF No. 42 at 25).

However, the Court finds that sufficient evidence has been

presented to demonstrate a genuine dispute of material fact as

to the actual reason for Plaintiff’s termination. As described

above in the Court’s analysis of Plaintiff’s retaliation claim,

evidence in the record shows (1) the timing of her termination,

six days after giving notice of her intent to take FMLA leave

and one week prior to her becoming eligible, (2) Defendant’s

failure to acknowledge or respond to her request for information

regarding FMLA leave, despite having discussed it in an

Executive Committee meeting prior to her request, and (3) that

Defendant never provided her with the FMLA information they are

statutorily required to provide within five business days of a

request, or informed her that termination was a potential

consequence of failing to provide a return date by the deadline.

The Court finds this evidence is sufficient to present a genuine

factual dispute as to the reason for Plaintiff’s termination.

Finally, Defendant very briefly argues that it has not

violated the FMLA because Plaintiff would not have been able to

return to work at the end of the twelve weeks. (ECF No. 33-1 at

5; ECF No. 42 at 25). However, despite its argument that “the

record amply supports” this claim, the only evidence Defendant

points to is the fact that Plaintiff’s surgeon “did not

indicate” that she was medically cleared to return to work in

April 2019 — a point entirely undermined by the fact that the

surgeon’s notes do not reference Plaintiff’s ability to work one

way or the other. (Def. Ex. P). Accordingly, Defendant has not

supported its argument with evidence in the record, and has not

met its burden to demonstrate the lack of a factual dispute

regarding whether Plaintiff would have been able to return to

work. Defendant’s motion for summary judgment of Plaintiff’s

FMLA interference claim will therefore be denied.

2. Plaintiff’s NJLAD Claims

Plaintiff also brings three related claims under the NJLAD,

for disability discrimination, failure to accommodate, and

retaliation. The Court will address these claims in that order.

a. Disability Discrimination Claim

Plaintiff’s first NJLAD claim is that Defendant

discriminated against her by firing her because of her

disability. To state a prima facie case of discriminatory

discharge under the NJLAD, Plaintiff must demonstrate that: (1)

she is a member of a protected class; (2) she was otherwise

qualified and performing the essential functions of the job; (3)

she was terminated; and (4) the employer thereafter sought

similarly qualified individuals for the job who were not members

of her protected class. Joseph v. New Jersey Transit Rail

Operations Inc., 586 Fed. Appx. 890, 892 (3d Cir.2014) (citing

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

the establishment of a prima facie case, NJLAD discrimination

claims proceed under the same McDonnell Douglas burden-shifting

framework described above. Viscik v. Fowler Equip. Co., 800

A.2d 826, 833 (N.J. 2002).

Defendant’s only argument regarding Plaintiff’s prima facie

case is that Plaintiff has not demonstrated that she was

qualified and able to perform the job to ARBDA’s expectations,

because she “was unable to perform the essential functions of

the job.” (ECF No. 33-1 at 10). Defendant’s argument, at its

core, is that “[t]he essential functions of her job required

that Plaintiff be on site” during standard office hours, and

accordingly Plaintiff could not adequately perform her job if

she needed to work from home at times or work adjusted hours.

(ECF No. 42 at 30-31); see also (ECF No. 33-1 at 8-11).

While “consideration [is] given to ‘the employer's judgment

as to what functions of a job are essential,’” the assessment as

to what constitutes an essential function is a factual

determination made on a case-by-case basis. Melton v. Resorts

Int'l Hotel, Inc., No. 11–6449, 2014 WL 5341929, at *4 (D.N.J.

Oct. 20, 2014). Although Defendant’s claim that Plaintiff’s

presence in the office during ARBDA’s standard office hours was

an essential function of her position is accordingly due some

weight in the Court’s analysis, a review of the record shows

that Plaintiff has put forth sufficient contradictory evidence

to show a genuine factual dispute on this issue.

In support of its argument, Defendant relies on the

deposition testimony of ARBDA CEO Charles Haberkern, Managing

Partner Dr. Adrienne Hollander, and Partner Dr. Arielle Silver,

who all stated their opinion that Plaintiff’s job could not be

adequately performed out of office or during non-standard hours,

as well as the testimony of Dr. Silver and notes of Haberkern

stating that other employees had complained that Plaintiff was

not in the office. (Def. SOMF at ¶ 15-17); (Def. Ex. I).

However, the testimonies of Haberkern and Dr. Silver also

undercut ARBDA’s argument on this point. Haberkern himself

acknowledged that many of Plaintiff’s job duties could be done

outside of the office and outside of normal business hours, (Pl.

Ex. 9 at 65:11-68:21), and Dr. Silver admitted twice that parts

of Plaintiff’s job could be done remotely. (Def. SOMF at ¶ 17).

In fact, Dr. Silver went even further, suggesting unprompted

that if sitting in traffic was difficult for Plaintiff due to

her disability, “she could have just come in earlier and left

the times there wasn’t traffic.” (Def. Ex. F at 55:5-56:3).

While Dr. Silver went on to suggest that Plaintiff should have

stayed later until traffic had died down rather than leave

early, her testimony at the very least contradicts Defendant’s

argument that anything other than standard office hours would be

unworkable for Plaintiff’s position.

Additional evidence in the record supports Plaintiff’s

argument. The original job description for Plaintiff’s position

as drafted by ARBDA does not mention any requirement for face-

to-face interactions or that she be “on site” during all

business hours, and none of the “Essential Functions” listed are

described in ways that would imply they could not be done by an

individual working from home at times. (Def. Ex. B). See

Bisker v. GGS Info. Servs., Inc., No. 1:cv-07-1465, 2010 WL

2265979, at *4 (M.D. Pa. June 2, 2010) (holding that genuine

dispute existed when job “description [did] not specify that

face-to-face interaction is either necessary or imperative”).

While the description of the “Physical Environment and Working

Conditions” suggests that in-person presence and an ability to

sit or stand for long periods of time and lift objects are

important, it also explicitly states that “[r]easonable

accommodations may be made to enable individuals with

disabilities to perform the essential functions.” (Def. Ex. B).

Plaintiff, based on her own experience, attests that

“[m]ore than half of [her] job could be done on her computer

from home or before or after work hours,” (Pl. Supp. SOMF at ¶

12), and that, contrary to the assertions of Defendant, she “was

not a ‘floor manager’ directing the work of others, but a

higher-level director responsible for policy, planning and

process,” all of which could be done remotely or outside of

standard office hours. (ECF No. 38 at 17 (citing Pl. Ex. 11 at

¶ 4)). Plaintiff also oversaw operations and personnel at six

different sites, meaning that her oversight of employees outside

of the office she was based in was often done remotely. (Pl.

Supp. SOMF at ¶ 11). Finally, Plaintiff testified that she had

frequently worked from home over the previous eleven months with

the permission of her former supervisor Brian Smith and Betty

Grimmett – the latter directly due to her disability – and had

received positive feedback and a bonus for her work. (Pl. Supp.

SOMF ¶¶ 4-7, 12-13).

Unlike other cases in which courts in this circuit have

previously found that in-person attendance was an essential

function of the job, Plaintiff has put forth sufficient evidence

to allow a reasonable factfinder to decide that she could

perform the essential functions of her job while working

adjusted hours and from home part time. See, e.g. Miller v.

University of Pittsburgh Medical Center, 350 Fed. Appx. 727 (3d

Cir. 2009) (holding that position that required employee to

assist with surgical procedures necessarily required her to be

present at the hospital); Marsh v. GGB, LLC, No. 1:17-cv-6939-

NLH-KMW, 2020 WL 1951643, at *7 (D.N.J. Apr. 23, 2020) (holding

that plaintiff’s job, which involved “physically handling

machinery in the manufacturing process,” required him to be in

the factory). The Court accordingly finds that Plaintiff has

met her burden of demonstrating a prima facie case.

With Plaintiff’s prima facie case shown, the analysis moves

into same McDonnell Douglas framework applied above. Shinn v.

FedEx Freight, Inc., 783 Fed. Appx. 229, 234 (3d. Cir. 2019).

As both sides’ arguments on the next two steps of this analysis

are identical to their arguments for the FMLA retaliation claim,

the Court’s analysis is similarly identical. Although Defendant

has proffered a legitimate, nondiscriminatory reason for the

termination, Plaintiff’s failure to provide a return date,

Plaintiff has similarly provided sufficient evidence to

demonstrate the existence of a genuine dispute of material fact

as to whether Defendant’s reason was pretext. Accordingly,

Defendant’s motion for summary judgment on Plaintiff’s NJLAD

discrimination claim will be denied.

b. NJLAD Failure to Accommodate Claim

Plaintiff also claims that Defendant violated the NJLAD by

failing to reasonably accommodate her disability. The NJLAD

requires employers to “make a reasonable accommodation to the

limitations of an employee [] who is a person with a disability,

unless the employer can demonstrate that the accommodation would

impose an undue hardship.” Stewart v. County of Salem, 274 F.

Supp. 3d 254, 260 (D.N.J. 2017) (quoting N.J. Admin. Code tit.

13, § 13–2.5(b)). “To prevail on a failure to accommodate

claim, a plaintiff must first present the prima facie elements

required in any disability discrimination claim.” Fitzgerald v.

Shore Memorial Hosp., 92 F.Supp.3d 214, 237 (D.N.J. 2016).

As shown above in the Court’s NJLAD discrimination claim

analysis, Plaintiff has presented evidence sufficient to

establish the basic prima facie discrimination elements. Once a

plaintiff has established those elements, she must then “show

that [her] employer failed to participate in the interactive

process” by establishing four additional elements. Tourtellotte

v. Eli Lilly and Co., 636 Fed. Appx. 831, 849 (3d Cir. 2016)

(quoting Victor, 4 A.3d at 140–41). Those elements are that:

“1) the employer knew about the employee's disability; 2) the

employee requested accommodations or assistance for his or her

disability; 3) the employer did not make a good faith effort to

assist the employee in seeking accommodations; and 4) the

employee could have been reasonably accommodated but for the

employer's lack of good faith.” Id. Defendant’s sole argument

for summary judgment is that Plaintiff did not in fact request a

reasonable accommodation for her disability.

There is no specific formula by which an employee correctly

requests a reasonable accommodation. The request may be made

orally or in writing, and the NJLAD does not require the

employee to specifically use the words “reasonable

accommodation:” the employee need only “clearly express[] a

desire for assistance based on a disability, [and then] the

employer is obliged to engage in an interactive process to

attempt to fashion an appropriate reasonable accommodation.”

Dennis v. County of Atlantic City, 863 F. Supp. 2d 372, 380

(D.N.J. 2012) (citing Boyce v. Lucent Technologies, 2007 WL

1774267 (N.J. Super. Ct. App. Div. June 21, 2007)).

Plaintiff’s Complaint claims that she expressed her need

for accommodation or assistance in two ways: (1) by requesting

an extended leave of absence beyond the two weeks she had taken

at the time of her request; and (2) by requesting the ability to

work from home part-time when her disability worsened.4

Defendant argues that Plaintiff never made any such requests.

Turning to the first accommodation request, Defendant

initially appears to argue that extended leave does not qualify

as a reasonable accommodation at all. (ECF No. 33-2 at 8-11).

However, the NJLAD explicitly lists “leaves of absence” as an

example of a “reasonable accommodation.” N.J. Admin. Code

13:13-2.5(b)(1)(ii). Accordingly, Defendant’s reliance on the

holding to the contrary in Conoshenti v. Public Serv. Elec. &

Gas Co., 364 F.3d 135 (3d. Cir. 2004), is misplaced. See

Santiago v. Cnty. of Passaic, No. A–3599–06T1, 2009 WL 483159,

4 In their briefing, both parties further address an additional

possible accommodation: an adjustment of Plaintiff’s hours so

that she could arrive at work earlier in the morning and leave

earlier in the afternoon. However, a review of the Amended

Complaint reveals that Plaintiff did not plead any facts or

claims regarding having made such a request. “New theories of

liability set forth in responsive papers to a motion for summary

judgment are generally considered too late and thus, do not

create genuine issue[s] of material fact to preclude summary

judgment.” Cohen v. BH Media Group, Inc, 419 F. Supp. 3d 831,

861 n.10 (D.N.J. 2019). Accordingly, while Plaintiff may raise

it as a possible accommodation that would have allowed her to

perform her job duties for other elements of her claims, the

Court will not address this theory as part of its analysis of

whether she requested an accommodation.

at *5–8, (N.J. Super. Ct. App. Div. Feb. 27, 2009) (describing

legislative amendments overruling the Conoshenti holding).

Defendant then argues that Plaintiff did not in fact make

any clear request for an extended leave. In support of this

argument, Defendant does not point the Court to any

contradictory evidence, but rather to the case of Linton v.

L'Oreal USA. In Linton, the plaintiff missed several months of

work with an injury, during which time he provided his employer

with doctors’ notes stating that he must stay on leave. No. 06–

5080 (JLL), 2009 WL 838766, at *1–2 (D.N.J. Mar. 27, 2009). The

court held that the notes, on their own, were insufficient to

show a request for accommodation; instead, “[s]omething more is

required of an employee . . . than merely apprising her employer

that she is still injured to start the interactive process for

seeking an accommodation; the employee must arguably seek

assistance to survive summary judgment.” Id. at 6.

Were doctors’ notes the sum of Plaintiff’s evidence, the

Court might agree that she has not met her burden. However, in

addition to doctors’ notes and emails to Piontkowski expressly

discussing her inability to work due to her disability, see (Pl.

Exs. 17 and 19), Plaintiff also provides an email exchange

between her and Piontkowski from February 13, 2018. In her

initial email, Plaintiff made explicit her desire to take

extended leave to accommodate her disability:

Can you please advise me on what you need from me for my

current, extended leave, or what, if anything, I need to do

at this point, e.g. FMLA form, physician attestation?

Because I’m presently physically unable to work, I want to

make certain I’m following ARBDA and/or state/federal

requirements for extended leave or FMLA. (Pl. Ex. 21).

In response to this email, Piontkowski requested a return

to work date and told Plaintiff that “I am confirming that you

have no accrued time off left and we do not offer extended

leave. You are currently in an unpaid status.” Id. Plaintiff

then requested information regarding FMLA leave again, stating

“I have no idea of the length of my absence until I see yet

another surgical specialist later this week. So I need the

information in case my absence is extended.” Id.

At this stage, therefore, the record shows that Plaintiff

had exhausted her accrued time off and had made clear to ARBDA’s

Director of Human Resources that she was not yet able to return

to work and was seeking information about extended leave. The

Court finds that this exchange is sufficient to allow a

reasonable factfinder to find that Plaintiff had “clearly

expresse[d] a desire” for an accommodation for her disability.

Defendant next argues that “Plaintiff never made a request

of ARBDA to . . . work full time from home in order to

accommodate her medical condition.” (ECF No. 42 at ¶ 50). The

main evidence Defendant puts forth is the deposition testimony

of Haberkern and Dr. Hollander, who both repeatedly stated that

they understood Plaintiff’s desire to “work[] from home . . .

did not have anything to do with her back condition. It was for

accommodating her for the traffic.” (Pl. SOMF ¶ 12; Def. Ex. G

85:19-86:5); see also (Pl. SOMF ¶ 13; Def. Ex. G 55:18-56:5;

Def. Ex. E 152:23-153:18).

However, Defendant’s own statement of facts claims

elsewhere that “ARBDA had been providing Plaintiff with

accommodations for months, such as . . . occasionally allow[ing]

her to work from home.” (Def. SOMF ¶ 7). Defendant also

highlights testimony from ARBDA Partner Dr. Silver expressly

admitting that she knew of Plaintiff’s worsening disability and

stating that ARBDA had allowed Plaintiff to work from home at

times as an accommodation for it. Id. at ¶ 9. As Defendant’s

own evidence contradicts its argument, it has not met its burden

as movant of demonstrating the lack of any dispute of material

fact on this element.

Even if Defendant had met its burden, Plaintiff has

separately put forth sufficient evidence to avoid summary

judgment. First, she testified that in the fall of 2017, she

had “multiple conversations with Betty [Grimmett, ARBDA’s

Practice Administrator,] about working from home as [her

disability] got progressively worse,” and that Grimmett told her

it was fine for her to work from home. (Pl. Ex. 8 at 120:16-

121:1). Second, Piontkowski testified that she was aware that

“at times, [Plaintiff] stayed home and worked from home because

of her health condition.” (Def. Ex. H at 123:6-12). Finally,

the evidence shows that at the time Defendant made the decision

to forbid Plaintiff from working from home, its decisionmakers

were aware of Plaintiff’s disability and worsening condition:

Haberkern acknowledged that by January he was aware of

Plaintiff’s condition and had seen her walking with a cane, (Pl.

Ex. 9 at 47:22-48:17), and Dr. Hollander’s testimony shows that

she had reviewed Plaintiff’s medical records, was aware of her

worsening conditions, and had treated Plaintiff for her back

pain. (Pl. Ex. 13 at 72:15-19, 74:13-75:24; 206:21-207:3).

The Court finds that this evidence is sufficient to allow a

reasonable factfinder to determine that Plaintiff had “clearly

express[ed] a desire” for accommodation or assistance for her

disability. Dennis, 863 F.Supp.2d at 380. Therefore,

Defendant’s motion for summary judgment on Plaintiff’s NJLAD

failure to accommodate claim will be denied.

c. NJLAD Retaliation Claim

Finally, Plaintiff alleges that ARBDA violated the NJLAD by

retaliating against her “for requesting a reasonable

accommodation for her disability.” (ECF No. 3 at ¶ 62).

Plaintiff’s NJLAD retaliation claim is again governed by the

familiar McDonnell Douglas framework. Tourtellotte, 636 Fed.

Appx. at 841–42 (citing Viscik v. Fowler Equip. Co., 800 A.2d

826, 833 (N.J. 2002)). To state a prima facie case for

retaliation under the NJLAD, Plaintiff must show that she (1)

engaged in protected activity, (2) suffered an adverse

employment action, and (3) that there was a causal connection

between the protected activity and the adverse employment

action. Nuness v. Simon & Schuster, Inc, 221 F. Supp. 3d 596,

605 (D.N.J. 2016).

Defendant’s only arguments for summary judgment on this

claim are that Plaintiff cannot demonstrate causation, and that

Defendant had a legitimate, non-retaliatory reason for

terminating her. As the Court has already found above,

Plaintiff has put forth sufficient evidence to demonstrate

material factual disputes regarding both causation and

Defendant’s proffered reason being pretext. Accordingly, the

Court will also deny Defendant’s motion for summary judgment on

Plaintiff’s NJLAD retaliation claim.

Conclusion

For the reasons expressed above, Defendant’s motion for

summary judgment [ECF No. 33] will be denied.

An appropriate Order will be entered.

Date: September 29, 2020 s/ Noel L. Hillman

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