WRAITH v. WAYFAIR, INC.

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

GILBERT WRAITH,

Plaintiff,

Civil Action No. 20-6054 (ZNQ) (DEA)

v.

OPINION

WAYFAIR, INC., et al.,

Defendants.

QURAISHI, District Judge

THIS MATTER comes before the Court upon a Motion for Summary Judgment filed by

Defendants Wayfair Inc. and Wayfair LLC (collectively, “Defendants”). (“Motion”, ECF No. 29.)

Defendants filed a Brief in Support of their Motion (“Moving Br.”, ECF No. 29-1) and a Statement

of Material Facts (“SMF”, ECF No. 29-35.) Plaintiff Gilbert Wraith (“Plaintiff”) filed a Brief in

Opposition to Defendants’ Motion (“Opp’n”, ECF No. 32) along with his Answer to Defendants’

SMF (“Answer to SMF”, ECF No. 32-5) and Counter Statement of Material Facts (“CSMF”, ECF

No. 32-4). Defendants filed an Answer to Plaintiff’s CSMF (“Answer to CSMF”, ECF No. 36) as

well as a Reply to Plaintiff’s Opposition. (“Reply”, ECF No. 35.)

The Court has carefully considered the parties’ submissions and decides the Motion

without oral argument pursuant to Federal Rule of Civil Procedure 78 and Local Civil Rule 78.1.

For the reasons set forth below, the Court will GRANT Defendants’ Motion for Summary

Judgment.

I. BACKGROUND AND PROCEDURAL HISTORY

A. THE PARTIES

Defendants are companies with offices and facilities located at 48 Station Road, Cranbury,

New Jersey. Plaintiff is Defendants’ former employee that was employed as a Warehouse

Associate.

B. PROCEDURAL HISTORY

This action was removed to this Court on May 19, 2020, from the Superior Court of New

Jersey, Middlesex County. (ECF No. 1.) The Complaint alleges that Defendants violated the New

Jersey Workers’ Compensation Act (“WCA”), New Jersey Law Against Discrimination

(“NJLAD”), and New Jersey Paid Sick Leave Law (“PSLL”) following Plaintiff’s on-the-job

injury to his rotator cuff. (See generally, “Compl.”, ECF No. 1.) The deadline to complete fact

discovery was July 30, 2021. (ECF No. 18.) The parties engaged in mediation that proved

unsuccessful. Thereafter, on June 27, 2022, Defendants filed the instant Motion for Summary

Judgment. No Motion to Dismiss was ever filed.

C. UNDISPUTED FACTS

Plaintiff is a 37-year-old man who began his employment at Defendants’ warehouse

facility located in Cranbury, New Jersey on October 1, 2019. (SMF ¶ 1; Answer to SMF ¶ 1.)

Plaintiff was employed as a Warehouse Associate earning $16.50 per hour. (Id.; Id.) The job

description for the Warehouse Associates states that associates must “be comfortable repeatedly

lifting up to 75 pounds unassisted and maneuvering product 150+ pounds unassisted or via team

life,” and “be able to work on warehouse floor 8 hours a day or more.” (Id. ¶ 2; Id. ¶ 2.) At

orientation, Plaintiff received and acknowledged Defendants’ Employee Handbook, as well as the

Company’s Code of Business Conduct and Ethics. (Id. ¶ 4; Id. ¶ 4.)

The Wayfair Employee Guide–Warehouse Addendum contains a Paid Time Off (“PTO”)

and Unpaid Time Off (“UPTO”) policy for warehouse workers such as Plaintiff. (Id. ¶ 6; Id. ¶ 6.)

Level 1 Non-Exempt Warehouse Employees with less than 1 year of service accrue 6.66 hours of

PTO per month from January through December. (Id. ¶ 7; Id. ¶ 7.) Additionally, all Level 1 Non-

Exempt Warehouse Employee receive a total of 24 hours of unpaid time off per calendar year for

pre-scheduled and approved unpaid time off. (Id. ¶ 8; Id. ¶ 8.)

On Monday, February 3, 2020, Plaintiff suffered an injury to the rotator cuff of his right

shoulder. (CSMF ¶ 2; Answer to CSMF ¶ 2.) Plaintiff reported his workers’ compensation injury

to Defendants. (Id. ¶ 3; Id. ¶ 3.) According to Plaintiff, his shoulder “just stopped working, it was

extremely painful . . . [and he] couldn’t lift [his] shoulder.” (Id. ¶ 4; Id. ¶ 4.) The injury occurred

when Plaintiff was sliding a box from a trailer onto a pallet. (Id. ¶ 5; Id. ¶ 5.) By February 5,

2020, Plaintiff had “limited ability to drive” and could not “reach for anything more than a foot

away from [his] body[]”, or hold “any weight” with his right arm. (SMF ¶ 16; Answer to SMF ¶

16.)

Following his injury, Plaintiff was examined by a doctor who instructed Plaintiff that he

not work. (CSMF ¶ 14; Answer to CSMF ¶ 14.) Plaintiff’s workers’ compensation claim for

benefits was filed and approved by Defendants on February 6, 2020. (Id. ¶ 19; Id. ¶ 19.) On

February 7, 2020, Plaintiff returned to the same doctor for a follow-up visit wherein he was referred

for an MRI. (Id. ¶¶ 17, 21; Id. ¶¶ 17, 21.) After the follow-up visit, Plaintiff returned to the

warehouse with his medical paperwork and provided it to Jasmeet Kaur (“Kaur”), the Talent

Management Associate. (Id. ¶ 18; Id. ¶ 18; SMF ¶ 22; Answer to SMF ¶ 22.) After Plaintiff shared

the doctor’s note, Kaur sent an email providing Plaintiff with his Notice of Eligibility and Rights

& Responsibilities under the Family and Medical Leave Act, informed Plaintiff that he was

ineligible due to his brief service time, and provided Plaintiff with the balance of paid time off and

unpaid time. (SMF ¶ 22; Answer to SMF ¶ 22.) The email states that, as of February 7, 2020,

Plaintiff had 9.56 hours of paid time off (including paid sick leave) and 3 days of unpaid time off

remaining. (Id. ¶ 23; Id. ¶ 23.) Between February 4 and February 14, 2020, Plaintiff exhausted

his remaining paid time off (including his paid sick leave), as well as his 3 days of unpaid time off.

(Id. ¶ 28; Id. ¶ 28.)

On Thursday, February 13, 2020, Plaintiff had an MRI taken of his shoulder, and on Friday,

February 14, 2020, received confirmation that he had a rotator cuff injury. (CSMF ¶ 30; Answer

to CSMF ¶ 30.) Plaintiff was later additionally diagnosed on February 27, 2020 with shoulder

impingement syndrome and received steroid shots for treatment. (Id. ¶ 31; Id. ¶ 31.)

At the same time, Defendants had positions available that did not require heavy lifting such

as “running”1 and “scanning”2, often referred to as “light duty”. (Id. ¶¶ 43‒44, 49; Id. ¶¶ 43‒44,

49.) Warehouse associates such as Plaintiff labor share, rotating through these various duties, and

relocate to where there is work to be done. (Id. ¶ 50; Id. ¶ 50.) Warehouse associates may scan

for an entire day—in fact, Defendants have employed employees who “did nothing but scanning.”

(Id. ¶¶ 51‒52; Id. ¶¶ 51‒52.) Defendants have also had employees out with injuries and then return

after they have recovered from those injuries. (Id. ¶ 53; Id. ¶ 53.) Defendants received

approximately 20 light duty requests in the past two years, some of which were granted. (Id. ¶ 54;

Id. ¶ 54.) Light duty assignments have also included sorting of boxes, counting, sweeping of the

buildings, and removal of garbage. (Id. ¶ 55; Id. ¶ 55.)

1 The runner position consisted of operating a machine that moved products back and forth. (CSMF ¶ 43; Answer to

CSMF ¶ 43.)

2 Scanning occurs once boxes are removed from tailers and scanned into the system. (Id. ¶ 48; Id. ¶ 48.)

On February 18, 2020, Defendants terminated Plaintiff’s employment. (Id. ¶ 62; Id. ¶ 62.)

At the time of his termination, Plaintiff was informed that he was eligible for re-hire when he was

able to return. (SMF ¶ 41; Answer to SMF ¶ 41.) On May 4, 2020, Plaintiff visited MidJersey

Orthopaedics and was cleared to return to full activities. (Id. ¶ 46; Id. ¶ 46.) Plaintiff never

contacted Defendants or Talent Management to inquire about getting his old job back. (Id. ¶ 47;

Id. ¶ 47.)

II. JURISDICTION

The Court has original jurisdiction over Plaintiff’s claims under 28 U.S.C. § 1332 because

there is complete diversity of citizenship and the amount in controversy exceeds $75,000.00.

III. LEGAL STANDARD

A “court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). “Only disputes over facts that might affect the outcome of the suit under the

governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). A material fact raises a “genuine” dispute “if the evidence is such

that a reasonable jury could return a verdict for the nonmoving party.” Williams v. Borough of W.

Chester, 891 F.2d 458, 459 (3d Cir. 1989) (quoting Anderson, 477 U.S. at 248).

“In evaluating the evidence, the Court must consider all facts and their logical inferences

in the light most favorable to the non-moving party.” Rhodes v. Marix Servicing, LLC, 302 F.

Supp. 3d 656, 661 (D.N.J. 2018) (citing Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002)).

“While the moving party bears the initial burden of proving an absence of a genuine dispute of

material fact, meeting this obligation shifts the burden to the non-moving party to ‘set forth specific

facts showing that there is a genuine [dispute] for trial.’” Id. (quoting Anderson, 477 U.S. at 250).

“Unsupported allegations, subjective beliefs, or argument alone . . . cannot forestall

summary judgment.” Read v. Profeta, 397 F. Supp. 3d 597, 625 (D.N.J. 2019). “Thus, if the

nonmoving party fails ‘to make a showing sufficient to establish the existence of an element

essential to that party’s case, . . . there can be no genuine issue of material fact.’” Id. (quoting Katz

v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992) (quotation marks omitted)). “In

considering the motion, the Court ‘does not resolve factual disputes or make credibility

determinations.’” Rhodes, 302 F. Supp. 3d at 661 (quoting Siegel Transfer, Inc. v. Carrier

Express, Inc., 54 F.3d 1125, 1127 (3d Cir. 1995)).

IV. DISCUSSION

A. NJLAD: DISABILITY DISCRIMINATION AND FAILURE TO

ACCOMMODATE

1. Disability Discrimination

Defendants first seek summary judgment on Plaintiff’s NJLAD disability discrimination

and failure to accommodate claims. (Moving Br. at 12‒24.) Specifically, Defendants argue that

Plaintiff has not established a prima facie case of disability discrimination (id. at 13) and Plaintiff

never requested an accommodation for his disability (id. at 20).

The NJLAD prohibits an employer from discriminating in the “terms, conditions, or

privileges of employment” on the basis of a person’s disability, N.J. Stat. Ann. § 10:5-12(a),

“unless the handicap precludes the performance of employment,” Failla v. City of Passaic, 146

F.3d 149, 153 (3d Cir.1998) (citing N.J. Stat. Ann. § 10:5-4.1). To state a prima facie cause of

action for disability discrimination under the NJLAD, the employee must prove (1) he is disabled

or perceived to be disabled within the meaning of the NJLAD; (2) he was otherwise qualified to

perform the essential functions of the job, with or without reasonable accommodation by the

employer; (3) he suffered an adverse employment action; and (4) the employer sought someone

else to perform the same work after he left. Muller v. Exxon Research & Eng’g Co., 345 N.J.

Super. 595, 602 (N.J. Super. Ct. App. Div. 2001)) (citing Clowes v. Terminix Int’l, Inc., 109 N.J.

575, 538 (N.J. 1988)).

It is undisputed that Plaintiff’s rotator cuff injury rendered him disabled within the meaning

of the NJLAD. The crux of the parties’ dispute is whether Plaintiff was otherwise qualified to

perform the essential functions of the job, with or without a reasonable accommodation by the

employer. Under the NJLAD, an employer must “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). However, the NJLAD “permits an employer to

terminate an employee who is unable to perform the job because the employee’s disability in fact

impedes job performance.” Andersen v. Exxon Co. USA, 89 N.J. 483, 496-97 (1982)); see also

Zive v. Stanley Roberts, Inc., 182 N.J. 436, 446 (2005) (recognizing that the NJLAD “prevents

only unlawful discrimination against disabled individuals; it does not prevent the termination or

change of employment of any person who ‘is unable to perform adequately the duties of

employment[.]’” (citation omitted)); Svarnas v. AT&T Commc’n, 326 N.J. Super. 59, 73 (App.

Div. 1999) (“nothing in the LAD is construed to prevent the termination of any person who in the

opinion of the employer, reasonably arrived at, is unable to perform adequately the duties of

employment.”)

Here, Defendants argue that Plaintiff was unable to perform the functions of a Warehouse

Associate enumerated in the job description and Employee Handbook. (Moving Br. at 14.)

Defendants also cites Plaintiff’s medical records from his doctors’ notes stating that Plaintiff “may

not return to work” following his injury. Plaintiff, on the other hand, does not dispute his doctors’

notes but instead argues that Defendants could have accommodated his injury by placing him on

“light duty,” which was less physically demanding than his initial Warehouse Associate position.

(Opp’n at 14‒16.)

“Whether a particular function is essential is a factual determination that must be made on

a case by case basis.” Skerski v. Time Warner Cable Co., 257 F.3d 273, 279 (3d Cir. 2001) (quoting

EEOC Interpretive Guidance on Title I of the Americans with Disabilities Act, 29 C.F.R. pt. 1630,

App. 1630.2(n) (2000)). The term “essential functions” is defined as:

(1) In general. The term essential functions means the fundamental

job duties of the employment position the individual with a

disability holds or desires. The term “essential functions” does not

include the marginal functions of the position.

(2) A job function may be considered essential for any of several

reasons, including but not limited to the following:

(i) The function may be essential because the reason the

position exists is to perform that function;

(ii) The function may be essential because of the limited

number of employees available among whom the performance of

that job function can be distributed; and/or

(iii) The function may be highly specialized so that the

incumbent in the position is hired for his or her expertise or ability

to perform the particular function.

(3) Evidence of whether a particular function is essential includes,

but is not limited to:

(i) The employer's judgment as to which functions are

essential;

(ii) Written job descriptions prepared before advertising or

interviewing applicants for the job;

(iii) The amount of time spent on the job performing the

function;

(iv) The consequences of not requiring the incumbent to

perform the function;

(v) The terms of a collective bargaining agreement;

(vi) The work experience of past incumbents in the job;

and/or

(vii) The current work experience of incumbents in similar

jobs.

29 C.F.R. § 1630.2(n).

When considering these factors with the parties’ arguments and proof in support of those

arguments, Defendants have shown there is no genuine dispute as to any material fact that Plaintiff

was otherwise qualified to perform the essential functions of the job, with or without reasonable

accommodation by the employer. First and foremost, it is undisputed that Plaintiff’s job

description includes that Warehouse Associates “[m]ust be comfortable repeatedly lifting up to 75

pounds unassisted and maneuvering product 150+ pounds unassisted or via team lift” and must

“be able to work on warehouse floor 8 hours a day or more.” (SMF ¶ 2; Answer to SMF ¶ 2; “Pl.

Dep.”, Ex. AA, 18:10-15, 19:14-22, “Job Description”, Ex. B, at 1.) Plaintiff’s medical records

demonstrate that he could not perform these essential functions of his job. Indeed, every medical

record Plaintiff provided between February 4 and May 3 states that he “may not return to work”

or was totally disabled, and none of them indicated an estimated return to work date. (Silverman

Cert., “Dr. Notes”, Exs. L, N, R, T, U, V). Beyond Plaintiff’s doctors’ notes, Plaintiff’s own

deposition testimony establishes that he could not grab “anything more than one foot away from

[his] body” (Pl. Dep. 110:5-13), lift “more than ten pounds” (id. 110:20-111:12), or lift weight

more than a cell phone (id. 115:23-116:4). Plaintiff’s testimony and contemporaneous documents

memorialize that this pain “felt like [his] arm being ripped out of [his] shoulder [and was]

[p]robably the worst feeling [he] ever had,” causing him to be “unable to work due to this pain.”

(Id. 115:14-22). Even though Plaintiff requested to be placed on light duty, it is abundantly clear

that Plaintiff was not qualified to complete the required tasks included in his job description, even

with the accommodation of indefinite light duty. See, e.g., Stewart, 274 F. Supp. 3d at 262 (citing

Raspa v. Office of Sheriff of County of Gloucester, 191 N.J. 323, 338 (N.J. 2007) (holding that,

because “the description of the position of county corrections officer was controlling” and the

“plaintiff’s disability. . . required indefinite light duty”, it “would prevent him from performing

that particular job.” Therefore, the “plaintiff, as a matter of law, was not qualified as a county

corrections officer.”)); Grau v. Ahs Hosp. Corp., Civ. No. 3959-15T1, 2017 WL 2391520, at *6

(N.J. App. Div. June 2, 2017) (affirming grant of summary judgment where a plaintiff was unable

to perform the essential duties of her job given that “because of her shoulder injury, plaintiff could

no longer lift, push, or pull the amount of weight necessary to complete her assigned tasks.”); see

also Domurat v. Ciba Specialty Chemicals Corp., 353 N.J. Super. 74, 92 (App. Div. 2002) (stating,

“[n]othing in the LAD protects employees from termination if they are not performing the essential

functions of the employer’s legitimate expectations.”). Accordingly, the Court will grant

Defendants’ Motion for Summary Judgment with respect to Plaintiff’s disability discrimination

claim.

2. Failure to Accommodate

Defendants next seek summary judgment on Plaintiff’s failure to accommodate claim.

(Moving Br. at 19.) Specifically, Defendants argue that Plaintiff never requested an

accommodation, Plaintiff could nevertheless not perform the essential functions of the job with or

without a reasonable accommodation, there were no available positions that would otherwise

accommodate Plaintiff, and indefinite medical leave would be unreasonable. (Id. 20‒24.)

Plaintiff, on the other hand, argues that Defendants could have reasonably accommodated his

disability through medical leave or light duty. (Opp’n at 16.)

In order to prevail on a failure to accommodate claim under the NJLAD, a plaintiff must

establish four elements: (1) he was disabled and his employer knew it; (2) he requested an

accommodation or assistance; (3) his employer did not make a good faith effort to assist; and (4)

he could have been reasonably accommodated. Armstrong v. Burdette Tomlin Mem. Hosp., 438

F.3d 240, 246 (3d Cir. 2006) (citing Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 317-320 (3d

Cir. 1999); Tynan v. Vicinage 13, 351 N.J. Super. 385 (2002)). While there are no magic words

to seek an accommodation, the employee “must make clear that . . . assistance [is desired] for his

or her disability.” Tynan, 351 N.J. Super. at 400 (App. Div. 2002) (quoting Jones v. United Parcel

Serv., 214 F.3d 402, 408 (3d Cir. 2000)). In Tynan, the Appellate Division held “[w]e agree that

under the law, an employee must request an accommodation . . . .” Id. at 399 (emphasis added).

Further, to show that an employer failed to participate in the interactive process, a disabled

employee must demonstrate: (1) the employer knew about the employee’s disability; (2) the

employee requested accommodations or assistance for his 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. at 400-01

(citing Taylor, 184 F.3d at 319-20).

Here, the only two reasonable accommodations argued by the parties are “light duty” and

medical leave. Importantly, it is undisputed that Plaintiff never provided a timeline for which he

would require either light duty or medical leave. On the contrary, the only information provided

by Plaintiff was his doctor notes that stated Plaintiff “May Not Return to Work,” and no date was

provided by which Plaintiff was expected to return to work. (Dr. Notes, Exs. L, N, R, T, U, V).

“[T]he phrase ‘reasonable accommodation’ refers to the duty of an employer to attempt to

accommodate the physical disability of the employee, not to a duty on the part of the employer to

acquiesce to the disabled employee’s requests for certain benefits or remuneration.” Jones v.

Aluminum Shapes, Inc., 339 N.J. Super. 412, 426 (App. Div. 2001). As the Appellate Division

has stated:

the [NJ]LAD does not require an employer to create a permanent

part-time position for a disabled employee if no suitable full-time

position exists. Nor does the [NJ]LAD require an employer to create

a permanent light-duty position to replace a medium-duty one.

Rather, an employer must simply make all reasonable

accommodations to an employee returning from disability leave and

allow the employee a reasonable time to recover from his injuries.

Muller, 345 N.J. Super. at 608.

As explained above, the Court has already held that—given Plaintiff’s inability to provide

an expected timeline for his recovery—indefinite light duty is not a reasonable accommodation.

Raspa, 191 N.J. at 338 (holding that “indefinite light . . . was not reasonable under the [NJ]LAD.”).

Moreover, New Jersey courts and courts in the Third Circuit have consistently held that

“indefinite leave is not recognized as a reasonable accommodation.” Fogleman v. Greater

Hazleton Health All., 122 Fed. Appx. 581, 586 (3d Cir. 2004); Svarnas, 326 N.J. Super. at 79 (“an

indefinite unpaid leave is not a reasonable accommodation, especially where the employee fails to

present evidence of the expected duration of [his] impairment.”); Potash v. Hunterdon Med. Ctr.,

Civ. No. 1133-08T3, 2009 WL 2253167, at *6 (App. Div. Jul. 30, 2009) (affirming grant of

summary judgment on failure to accommodate claim where the record established that the plaintiff

was not able to perform the duties of her job function when terminated and would not be able to

perform such duties for a long period of time). Plaintiff’s doctors’ notes that simply state that

Plaintiff “May Not Return to Work” are demonstrative of an indefinite leave of absence, an

accommodation that employers are not expected to make. See Pizzo v. Lindenwold Bd. of Educ.,

Civ. No. 13-3633, 2015 WL 1471943, at *11 (D.N.J. Mar. 31, 2015) (granting employer summary

judgment because, according to the plaintiff’s doctor’s note, her absence would be indefinite and

an indefinite medical leave is not a reasonable accommodation); see also Cartagena v. Temple

Univ. Hosp., 389 F. Supp. 3d 341, 349 (E.D. Pa. 2019) (finding that a doctor’s note requiring the

plaintiff to remain out of work without an expected return date constitutes indefinite leave and is

not a reasonable accommodation).

In sum, the NJLAD does not require an employer to accommodate an employee with light-

duty assignments, indefinite part-time work schedules, elimination of essential job function or

creation of new position. See Muller, 345 N.J. Super. at 606. Although Plaintiff argues that

Defendants did not engage in the interactive process, an employer is not obligated to engage in an

interactive process and to accommodate a disabled employee where the employee’s “disability

reasonably precludes the performance of the particular employment.” Raspa, 191 N.J. at 337

(quoting N.J.S.A. 10:5-4). Thus, Plaintiff’s assertion that Defendants did not engage in an

interactive process is misplaced because the Court has found that Plaintiff’s injury precluded his

performance of his particular employment. Accordingly, the Court will grant Defendants’ Motion

for Summary Judgment with respect to Plaintiff’s failure to accommodate claim.

B. WORKERS’ COMPENSATION

Defendants next seek summary judgment on Plaintiff’s workers’ compensation retaliation

claim. (Moving Br. at 25.) Specifically, Defendant argue that there is no evidence that they

discharged Plaintiff for applying for or seeking workers’ compensation benefits but instead,

quickly worked with Plaintiff to ensure that his injury was properly reported and to provide him

with workers’ compensation benefits. (Id.) Plaintiff on the other hand argues that Defendants

violated the anti-retaliatory provisions of the workers’ compensation law by discharging him

following his injury, while on leave. (Opp’n at 22‒23.) Specifically, Plaintiff argues that

Defendants violated N.J.S.A. 34:15-39.1 which provides that “[i]t shall be unlawful for any

employer or his duly authorized agent to discharge or in any other manner discriminate against an

employee as to his employment because such employee has claimed or attempted to claim

workmen’s compensation benefits from such employer . . . .” (Id. at 22.)

To state a prima facie case for a claim of workers’ compensation retaliation, Plaintiff must

prove (1) that he made or attempted to make a workers’ compensation claim, and (2) that he was

discharged or discriminated against in retaliation for making the claim. See Cerracchio v. Alden

Leeds, Inc., 223 N.J. Super. 435, 442-43 (App. Div. 1988). In applying this provision, courts

require a causal nexus between the workers’ compensation claim and the employee’s discharge.

See Carter v. AFG Indsts., Inc., 344 N.J. Super. 549, 557 (N.J. Super. Ct. Law Div. 2001).

Here, it is undisputed that Plaintiff made a workers’ compensation claim, satisfying the

first element. A dispute arises, however, as to whether he was discharged or discriminated against

in retaliation for making the claim. Here, Plaintiff specifically points to two instances that he

claims are evidence of Defendants’ retaliation against his workers’ compensation claim. Namely,

that Ms. Kaur, a human resources representative, told him that “workers’ comp is NOT a protected

leave” (CSMF ¶ 24; ECF No. 32-3, “Pl. Decl.”, ¶ 11) and that when he requested to work on light

duty, his supervisor told him that there was no light duty available (CSMF ¶¶ 9‒13). Following

these incidences, “he knew this from the way this was told to him, that they were not there to

comfort him, but rather ‘if you’re useless to us, you’re gone.’” (Id. ¶ 13.) Defendants argue there

is no such nexus and summary judgment should be granted. Defendants explain that Plaintiff was

terminated because Defendants limit leaves of absence to Level 1 Non-Exempt Warehouse

Employees—such as Plaintiff—to 6.66 hours of PTO per month from January through December

(SMF ¶ 7; Answer to SMF ¶ 7) and a total of 24 hours of unpaid time off per calendar year for pre-

scheduled and approved un-paid time off (Id. ¶ 8; Id. ¶ 8). Plaintiff was discharged after he

exhausted his time off.

To oppose summary judgment, the non-movant must set forth specific facts showing that

a genuine issue of material fact exists. It is well-settled that the non-movant cannot satisfy this

duty through speculation or conclusory allegations. Ridgewood Bd. of Educ. v. N.E. for M.E., 172

F.3d 238, 252 (3d Cir. 1999). Accord GE Com. Distrib. Fin. Corp. v. Great Cove Marina, Inc.,

Civ. No. 05-4661, 2008 WL 4513607, at *1 (D.N.J. Sept. 30, 2008) (“the non-moving party cannot

rely on unsupported assertions, bare allegations, or speculation to defeat summary judgment”). In

addressing an attempt to defeat a workers’ compensation claim by summary judgment, courts in

this district have observed that “speculative allegations are insufficient to establish a causal

connection between an employee’s claim for worker compensation benefits and his termination.”

Gomez v. Con-Way Cent. Exp. Inc., Civ. No. 06-5352, 2009 WL 799243, at *12 (D.N.J. Mar. 24,

2009) (quoting Griesbaum v. Aventis Pharmaceuticals, Civ. No. 04-1726, 2006 WL 2796160, at

*5 (M.D. Pa. Sept. 25, 2006)).

Plaintiff theorizes that Defendants violated the Workers’ Compensation Act by not giving

him light duty, telling him that “workers’ comp is NOT a protected leave” and ultimately

terminating him two weeks after his injury. However, Plaintiff sets forth no facts that could create

a genuine issue as to whether Defendants discriminated against him because of his workers’

compensation claim. See id. at *13 (holding that no genuine issue of material fact existed where

the plaintiff only theorized that the defendant retaliated against him but had no record to support

his claim).

All the correspondence and oral communications between the parties were discussed

above. Nowhere is there any document or remark by Defendants showing that it was acting against

Plaintiff for filing a workers compensation claim. Id. Plaintiff sets forth no facts whatsoever

suggesting that Defendants retaliated to terminate him in light of his workers’ compensation claim.

Id. Plaintiff offers speculation, but provides no evidence to support his contention. Id. (granting

summary judgment because the plaintiff relied solely on speculation in his workers’ compensation

retaliation claim). In fact, it is undisputed that Defendants actually helped Plaintiff to ensure that

his injury was properly reported and to provide him with workers’ compensation benefits. (SMF

¶ 15; Answer to SMF ¶ 15; Pl Dep., 58:3-13; ECF No. 29-31, “Weber Dep.”, 61:17-62:4;

Silverman Cert., Ex. M).

Plaintiff’s argument that Kaur’s email is evidence of retaliatory animus is also

unpersuasive. New Jersey courts have consistently held that workers’ compensation is not a

protected leave and have specifically rejected the argument that an “employer had a duty to hold

[employees with workers’ compensation claims] job open until [they] were able to return to work.”

Malone v. Aramark Services, Inc., 334 N.J. Super. 669, 676 (N.J. Sup. Ct. 2000) (citing Galante

v. Sandoz, 192 N.J. Super. 403 (Law Div. 1983), aff’d 196 N.J. Super. 568 (App. Div. 1984).

Lastly, Plaintiff maintains that he was terminated for filing a workers’ compensation claim.

The communications between Plaintiff and Defendants do not support this proposition.

Defendants clearly articulated its policy to Plaintiff (SMF ¶ 22; Answer to SMF ¶ 22) that leaves

of absence were limited to 6.66 hours of PTO per month from January through December (id. ¶ 7;

id. ¶ 7) and a total of 24 hours of unpaid time off per calendar year for pre-scheduled and approved

un-paid time off (id. ¶ 8; id. ¶ 8). It is undisputed that, between February 4 and February 14, 2020,

Plaintiff exhausted his remaining paid time off (including his paid sick leave), as well as his 3 days

of unpaid time off. (Id. ¶ 28; Id. ¶ 28.) Pursuant to his doctors’ notes, Plaintiff also failed to

provide Defendants with an expected return date. Nothing in the record creates a genuine issue of

material fact as to whether Defendants acted in a retaliatory nature to discharge Plaintiff. Plaintiff

offers only speculation to rebut Defendant’s evidence which is not enough to overcome

Defendants’ Motion. Accordingly, the Court will grant Defendants’ Motion for Summary

Judgment with respect to Plaintiff’s workers’ compensation retaliation claim.

C. PSLL

Finally, Defendants seek summary judgment on Plaintiff’s PSLL retaliation claim.

(Moving Br. at 27.) Plaintiff argues that “the timing and temporal proximity between [his taking

sick leave and being discharged] could lead to an inference that Plaintiff was terminated in

retaliation for requesting or using his earned sick leave.” (Opp’n at 26.) Defendants counter that

Plaintiff utilized his full paid-time-off during the week of February 7 through February 14, as well

as his 3 days of unpaid time off, and there is no evidence that he was ever denied any paid sick

leave, or that he was terminated because he took this time off from work in accord with the statute.

(Moving Br. at 28.) It should be clear that Plaintiff does not dispute that Defendants abided by

New Jersey’s PSLL, but rather, that Defendants retaliated against him for using his sick leave by

discharging him.

The PSLL requires an employer to provide earned sick leave to each employee working

for the employer in the state. N.J.S.A. 34:11D-2(a). The PSLL further requires that “[f]or every

30 hours worked, the employee shall accrue one hour of earned sick leave.” Id. This rate of

accrual equates to 5.33 hours per month. The PSLL also provides that no employer shall take

retaliatory personnel action or discriminate against an employee because the employee requests or

uses earned sick leave. N.J.S.A. 34: 1 ID-4.

Plaintiff once again cites no evidence that could create a genuine issue of material fact as

to whether Defendants discriminated against him because of his sick leave. Plaintiff relies on the

same theories used to support his workers’ compensation retaliation claim which the Court has

already held are insufficient to defeat Defendants’ Motion. Ridgewood Bd. of Educ., 172 F.3d at

252 (holding that a non-movant cannot satisfy the duty to set forth specific facts showing that a

genuine issue of material fact exists through speculation or conclusory allegations). Because

Plaintiff has not set forth any facts or evidence to support his retaliation claim, the Court will grant

Defendants’ Motion for Summary Judgment with respect to Plaintiff’s PSLL retaliation claim.

V. CONCLUSION

For the reasons stated above, the Court will GRANT Defendants’ Motion for Summary

Judgment. An appropriate Order will follow.

Date: July 12, 2023

s/ Zahid N. Quraishi

ZAHID N. QURAISHI

UNITED STATES DISTRICT JUDGE