HOGAN v. FIDELITY BROKERAGE SERVICES, LLC

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

SALLY HOGAN,

Plaintiff,

Civil Action No. 22-6759 (MAS) (RLS)

MEMORANDUM OPINION

FIDELITY BROKERAGE SERVICES, LLC,

et al.,

Defendants.

SHIPP, District Judge

This matter comes before the Court upon Defendants Fidelity Brokerage Services LLC

(“Fidelity”), Fidelity Personal and Workplace Advisors LLC, Gerasimos Melissaratos, and Jon

Strohl’s (collectively, “Defendants”) Motion for Summary Judgment. (ECF No. 39.) Plaintiff Sally

Hogan (“Plaintiff”) opposed (ECF No. 41), and Defendants replied (ECF No. 44). The Court has

carefully considered the parties’ submissions and reaches its decision without oral argument under

Federal Rule of Civil Procedure 78(b) and Local Civil Rule 78.1(b). For the reasons below,

Defendants’ Motion for Summary Judgment is granted in part and denied in part.

L BACKGROUND

The following facts are drawn from the Statement of Undisputed Material Facts (““SUMF”)

(SUMF, ECF No. 39-1), Response to the Statement of Undisputed Material Facts (““RSUMF’”)

(RUSMF, ECF No. 41-1 at 1-24), and Counterstatement of Material Facts “(CMF”) (CMF, ECF

No. 41-1 at 24-53), and are undisputed by the parties unless otherwise noted. !

A. Plaintiff's Employment at Fidelity and FMLA Leave

Plaintiff was hired by Fidelity as a financial consultant in June 2020, and worked at

Fidelity’s Princeton, New Jersey, investor center (the “Branch”), until she was terminated on

October 1, 2022.7 (SUMF 4 8, 91, 97.) During her employment, Plaintiff directly reported to two

supervisors. (/d. § 11.) From her start date until approximately March 2022, Plaintiff reported to

Defendant Jon Strohl (“Strohl”) who served as Vice President, Branch Leader. Ud.) From

approximately March 2022 until her date of termination, she reported to Defendant Gerasimos

Melissaratos (“Melissaratos”) who served as Assistant Branch Manager. (Jd. § 11.)

On multiple occasions during her employment at Fidelity, Plaintiff requested leave to care

for her daughter, who suffered from malnutrition, weight loss, and low heart rate due to an eating

disorder, anorexia nervosa. (CMF §{ 39-43.) As a result of her condition, Plaintiff's daughter was

hospitalized several times, including in November 2020, May 2020 and summer of 2021. (CMF

' While Plaintiff submitted a Counterstatement of Material Facts with her opposition papers,

Defendants failed to file a response to this Counterstatement. Thus, for the purposes of this motion,

the material facts set forth in the Counterstatement are deemed undisputed. L. Civ. Rule 56.1

(“[t]he movant shall respond to any such supplemental statement of disputed material facts as

above, with its reply papers” and “[elach statement of material facts shall be a separate

document”); V.C. ex rel. v. Target Corp., 454 F. Supp. 3d 415, 419 n. 3 (D.N.J. 2020) (“Local

Civil Rule 56.1(a) deems a movant’s statement of material facts undisputed where a party does not

respond or file a counterstatement.”); see also Citadel Wellwood Urb. Renewal, LLC v. Borough

of Merchantville, No. 21-16700, 2023 WL 8184314, at *3 n.2 (D.N.J. Nov. 22, 2023), aff'd, No.

23-3239, 2024 WL 4200582 (3d Cir. Sept. 16, 2024) (deeming facts alleged in plaintiff's

counterstatement as true given defendants’ failure to submit a response); Harley v. City of

Woodbury, No. 18-170, 2020 WL 1284433, at *1 n.1 (D.N.J. Mar. 18, 2020) (same).

2 While Plaintiffs effective termination date was October 1, 2022, she was placed on

administrative leave on September 27, 2022, and notified of her termination on September 28,

2022. (SUMF fi 91, 97; CMF ff 124-128.)

20, 39, 41, 42.) Plaintiff first requested leave to care for her daughter in October 2020. (SUMF

{| 98.) Although she was not eligible for leave under the Family and Medical Leave Act (“FMLA”)

at that time, Fidelity approved her leave request under its own leave policies, which permits

employees to take up to 12 weeks of time off in their first year of employment, as though they

were eligible for leave under the FMLA. (Ud. § 99.) In her first year of employment, Plaintiff took

a total of 29 hours of intermittent leave pursuant to these policies. (Ud. § 104.) Plaintiff became

eligible for FMLA leave on June 29, 2021. Ud. 4] 105.) Between August 20, 2021, and her date of

termination, Plaintiff took 40 hours of intermittent leave, as well as approximately three months

of consecutive FMLA leave from June 13, 2022 to September 2, 2022. (id. FF 106, 108.)

B. Investigation of Plaintiff's TLO Activity and Subsequent Termination

Under certain circumstances, a financial consultant at Fidelity can temporarily “lock out”

a customer in Fidelity’s database, which results in the financial consultant receiving exclusive

financial credit for the customer’s deposits and transactions for 180 days. (SUMF ff 21, 22.)

Because these temporary lockouts (“TLO”) are conditioned on the financial consultant investing

time and effort into the client, Fidelity requires a financial consultant have a “value-added

conversation” with the client before entering a TLO and add notes regarding the conversation into

Fidelity’s customer relationship management system, Salesforce.? (/d. □□ 28, 30.) One of

Melissaratos’s responsibilities was to review TLOs taken by financial consultants on a weekly

basis to ensure they contained notes in Salesforce to justify the TLO. (/d. ¥ 47.) Plaintiff was

ultimately terminated following an internal investigation which concluded she had engaged in

3 A financial consultant can complete a TLO of a client if either: (1) the client’s account is over

$500,000, a financial relationship was offered to the client, and the client declined it; or (2) the

account is less than $500,000 and the client qualifies for a financial consultant’s book of business,

but the financial consultant had a value-added conversation with the client. (CMF 96, n.10.)

improper activity regarding TLOs. Ud. {{] 46-85.) The Court briefly summarizes the events leading

up to her termination.

In April 2022, two weeks after Plaintiff informed Melissaratos about an upcoming request

for FMLA leave, Melissaratos told Plaintiff's colleague that he was “not sure about [Plaintiffs]

commitment” and that she “[didn’t] seem fully engaged.” (CMF 76.) In May 2022, during an

individual meeting with Plaintiff, Melissaratos told her that her use of FMLA leave was becoming

a “chronic problem.” (Jd. J 73.) Around this time, he made additional comments to Plaintiff

including:

“TY ]Jou’re going out on leave again?”

“TW ell, how much time are you going to be out[?]”

“[Y Jou’re taking more FMLA leave[.]”

“[Y ]ou’re using a lot of FMLA leave.”

(id. § 74.)

Plaintiff states these comments made her feel “horrible, guilty, [and] frustrated,” and

discouraged her from taking leave. (/d. § 75.) Plaintiff also experienced numerous administrative

issues when attempting to request FMLA leave. (/d. 51, 52.) For example, Plaintiff requested

FMLA leave prior to April 2022, but did not receive a response from the third-party administrator

of FMLA leave, Sedgwick, until May 17, 2022. Ud. ¢ 52.) In that belated response, Sedgwick

stated she needed to submit FMLA certification by May 12, 2022, five days prior to Plaintiff's

receipt of the e-mail message. U/d. § 53.) Plaintiff complained to Fidelity’s Human Resources

“ Melissaratos denied making this statement during his deposition. (See Defs.’ Moving Br. Ex. 10

at 214:17-23, ECF No. 39-2.) However, as Defendants failed to dispute this fact as alleged in the

Counterstatement, the Court assumes these facts as true for the purposes of this motion. (See

generally CMF); Citadel Wellwood Urb. Renewal, LLC, 2023 WL 8184314, at *3 n.2.

Department regarding these issues, and Fidelity failed to resolve them. (/d.) Fidelity’s Employee

Relations Director, Ann Marie Rogers (“Rogers”), further testified to having received complaints

from other employees regarding Sedgwick’s handling of FMLA requests. (/d. 55.)

On May 10, 2022, Plaintiff informed Melissaratos that she needed to take additional

intermittent FMLA leave because her daughter “[was] not doing well.” Ud. §§ 59, 78.) Melissaratos

forwarded Strohl an e-mail message from Sedgwick regarding Plaintiffs leave request, to which

Strohl responded, “Interesting.” Ud. { 80.) Plaintiff's leave request was ultimately approved, and

Plaintiff was permitted to take intermittent FMLA leave until April 5, 2023. Ud. § 62.)

The day after Plaintiff informed Melissaratos of her May leave request, on May 11, 2022,

Melissaratos reached out to Fidelity’s compensation unit and asked it to look into Plaintiffs use

of temporary lock outs (“TLO”) over the past 120 days. Ud. { 79.) The compensation department

reviewed Plaintiff's TLO activity and concluded her activity was not an “outlier.” Ud. § 91; see

Pl.’s Opp’n Br. Ex. Y “Ex. Y”), ECF No, 41-26.)

On June 2, 2022, Plaintiff informed Strohl and Melissaratos that she would again need to

take additional FMLA leave because her “daughter had a setback that require[d] [she] take a leave

of absence for a couple of weeks.” (CMI § 64.) On June 29, 2022, while Plaintiff was on leave,

Melissaratos messaged Rogers on Microsoft Teams with a “question in terms of leave[s] of

absence,” and asked her whether there was a “maximum” or a “point to where [Fidelity] no longer

need[ed] to guarantee [Plaintiffs] position.” (PI.’s Opp’n Br. Ex. W (“Ex. W”), ECF No. 41-24;

CME 4 82.) In the same conversation, Melissaratos added there was an issue “regarding a TLO as

well.” (Ex. W at 2.) Rogers offered to speak with him the next day. (Ex. W at 2; Pl.’s Opp’n Br.

Ex. S (Ex. 8”), ECF No. 41-20.) In her meeting notes from June 30, 2022, Rogers wrote that

Melissaratos told her Plaintiff's leave was “hurting the branch.” (CMF 4 84-85; Ex. S; see also

PI.’s Opp’n Br. Ex. L (“Ex. L”) at 96:06-13, ECF No. 41-13 (testifying that she “recall[ed]”

Melissaratos telling her “he thought [Plaintiff's] leave was hurting the branch’”).) She also noted

that Melissaratos had expressed concern regarding Plaintiff's TLO activity, and Rogers discussed

with him about possibly “checking in with . . . investigations” to see if this issue should be

investigated further. (Ex. S at 2-3; CMF 86.)

Sometime between June 29, 2022 and July 18, 2022, while Plaintiff was on leave, a formal

investigation was initiated into Plaintiff's TLO activity.° Fidelity assigned two investigators from

its Internal Investigations Team to examine Plaintiff’s TLO activity from March 1, 2022, to June

10, 2022. (SUMF 4] 65, 66.) The investigators reviewed Plaintiff's Salesforce notes, phone

records, Zoom logs, electronic communications, calendar, and customer account look up

information. Ud. J 67.)

Plaintiff, who was on leave at this time, extended her leave until September 6, 2022, to

provide additional care for her daughter. (CMF {§ 65-68.) During her leave, Plaintiff kept Strohl

and Melissaratos informed of her daughter’s condition, her requests for additional leave, and her

expected return date. Ud. {J 69-70.)

Plaintiff returned to work on September 6, 2022. (SUMF § 109.) On or about September

13, 2022, Melissaratos met with Plaintiff and “yelled at and berated” her, stating “you can’t come

back to work and not do anything,” and repeating that Plaintiff's FMLA leave was a “chronic

problem.” (CMF f 117-119.) During this meeting, Melissaratos did not mention any issue

The parties dispute the exact date the investigation began, and at whose direction the investigation

was initiated. While Defendants submit the investigation was initiated by Rogers on July 18, 2022,

(SUMF {ff 63, 64), Plaintiff asserts the investigation was initiated by Melissaratos on June 29,

2022, when he informed Rogers of the purported issue regarding Plaintiff's TLO activity, and later

followed up with Rogers on July 15, 2022, to ensure Plaintiff would be investigated. (RSUMF

q 64.)

regarding Plaintiff's TLO activity, even though Fidelity was actively investigating this issue during

this time. (/d. 4 120; see SUMF 4 64-85.) In fact, prior to September 27, 2022, Defendants never

issued Plaintiff any verbal or written warnings regarding her TLOs. (CMF § 167.)

On September 23, 2022, Plaintiff requested to take September 26, 2022 off as intermittent

FMLA leave, and informed Strohl and Melissaratos of her request. (id. § 123.) On September 27,

2022, the investigators examining Plaintiff's TLO activity called Plaintiff to interview her. (SUMF

{ 74.) This interview was the first time Defendants had spoken to Plaintiff about the investigation

into her TLO activity. (CMF {ff 112, 124.) During the call, Plaintiff denied wrongdoing, said she

had been following her managers’ directives regarding the TLO process, and informed the

investigators of her belief that she was being “singled out.” (CMF {J 125-127.) At the conclusion

of the call, Plaintiff was placed on administrative leave. (CMF § 128.) The next day, Defendants

informed Plaintiff that she was being terminated for her purportedly improper TLO activity, with

a termination date of October 1, 2022. (SUMF 4 97, 98.)

Defendants maintain that Plaintiff's termination was proper and due to her violations of

their TLO policy. Specifically, they state that of the 70 TLOs Plaintiff had entered from March to

June 2022, (see CMF {| 156), the investigators identified nine TLOS that “potentially” violate the

TLO policy (SUMF 69). Of these nine TLOs, Defendants identified one TLO that was entered

without Plaintiff, nor her planning consultant, having had any interaction with the customer.

(SUMF § 73). Plaintiff disputes these conclusions and further denies having ever violated the TLO

policy. (RSUMF 9 69-73, 75-78, 80, 82-85, 89.)

C, The Form U5

As a broker dealer, Fidelity has a duty to submit a Form U5 to the Financial Industry

Regulatory Authority (“FINRA”) when terminating an individual’s registrations with the

company. (SUMEF § 93.) On the Form U5, Fidelity provided the reason for Plaintiff's termination

as “Discharged.” (/d. § 94.) Fidelity also provided the following explanation for Plaintiff's

termination:

Concerns that employee recorded credit for customer interactions,

which can impact compensation, without having had the required

interaction with the customers to earn such credit. Discharge did not

result from a customer complaint or from any sales practice

violation or concern.

(id. 4 95.)

Fidelity also answered “Yes” to Question 7F(1) on the Form U5, which asks:

Did the individual voluntarily resign from your firm, or was the

individual discharged or permitted to resign from your firm, after

allegations were made that accused the individual of (1) violating

investment-related statutes, regulations, rules or industry standards

of conduct?

Ud. 4] 95-96.)

Fidelity also stated on the required Disclosure Reporting Page that the “Termination Type”

was “Discharged” and that the allegation made was:

That employee recorded credit for customer interactions, which can

impact compensation, without having had the required interaction

with the customers to earn such credit. Discharge did not result from

a customer complaint or from any sales practice violation or

concern.

4 97.)

Plaintiff alleges that these statements are false and defamatory. (CMF § 175.) Since

Plaintiff's termination, Plaintiff has applied for many financial services positions but has not

received any due to the language on her Form US. (/d. § 178.) In addition, at least two job offers

Plaintiff received following her termination, including from Charles Schwab and TIAA, were

rescinded because of the statements made on her Form US. Ud. § 176.)

D. Procedural Background

Plaintiff brings interference and retaliation claims under the FMLA and the New Jersey

Family Leave Act (““NJFLA”), discrimination claims under the Americans with Disabilities Act

(“ADA”) and the New Jersey Law Against Discrimination (“NJLAD”), and a defamation claim

under New Jersey law. (ECF No. 9.) Following the close of fact discovery on June 21, 2024,

Defendants filed the instant motion seeking summary judgment in their favor on all of Plaintiff's

claims. (See generally Defs.” Moving Br., ECF No. 39.) The parties having briefed the issues

thoroughly, Defendants’ Motion for Summary Judgment is now ripe for resolution.

UU. LEGAL STANDARD

Federal Rule of Civil Procedure 56(a) provides that a court should 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); see also Anderson v. Liberty Lobby,

Inc., 477 US. 242, 247-48, (1986); Kreschollek v. 8. Stevedoring Co., 223 F.3d 202, 204 (3d Cir.

2000). In deciding a summary judgment motion, a court must construe all facts and inferences in

the light most favorable to the nonmoving party. See Boyle v. County of Allegheny, 139 F.3d 386,

393 (3d Cir. 1998). The moving party bears the burden of establishing that no genuine dispute of

material fact remains. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “[W]ith respect

to an issue on which the nonmoving party bears the burden of proof... 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.” Jd. at 325.

Once the moving party has met that threshold burden, the nonmoving party “must do more

than simply show that there is some metaphysical doubt as to material facts.” Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The opposing party must present

actual evidence that creates a genuine dispute as to a material fact for trial. Anderson, 477 U.S. at

247-48; see also Fed. R. Civ. P. 56(c) (setting forth types of evidence on which the nonmoving

party must rely to support its assertion that genuine disputes of material fact exist). If the

nonmoving party has failed “to make a showing sufficient to establish the existence of an element

essential to that party’s case, and on which that party will bear the burden of proof at trial[,].. □

‘there can be no genuine [dispute] of material fact,’ since a complete failure of proof concerning

an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.”

Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 n.5 (3d Cir. 1992) (quoting Celotex, 477 U.S. at

322-23).

In deciding a summary judgment motion, the Court’s role is not to evaluate the evidence

and decide the truth of the matter but to determine whether there is a genuine dispute for trial.

Anderson, 477 U.S. at 249-250. Credibility determinations are the province of the fact finder. Big

Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). The summary

judgment standard, however, does not operate in a vacuum. “[I]n ruling on a motion for summary

judgment, the judge must view the evidence presented through the prism of the substantive

evidentiary burden.” Anderson, 477 U.S. at 254.

I. DISCUSSION

Defendants move for summary judgment on all of Plaintiff's claims. (See generally Defs.’

Moving Br.) The Court considers each of Plaintiff’s claims in turn.

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A. Plaintiff's Retaliation Claims Under the FMLA/NJFLA

As a threshold matter, because the parties agree that the same legal standards and analysis

apply to claims brought under the FMLA and NJFLA, all references by the Court to the FMLA

apply equally to the NJFLA, and the Court’s holdings as to Plaintiff's FMLA claims apply equally

to the NJFLA claims. (Defs.’ Moving Br. 17, ECF No. 39; Pl.s’ Opp’n Br. 5, ECF No. 41); see

Wolpert v. Abbott Labs., 817 F. Supp. 2d 424, 437 (D.N.J. 2011) (“Due to the similarity of the

statutes, courts apply the same standards and framework to claims under the FMLA and the

NJFLA.”); Santosuosso v. NovaCare Rehab., 462 F. Supp. 2d 590, 596 (D.N.J. 2006) (same).

To prevail on a retaliation claim under the FMLA, a plaintiff must prove that (1) she

invoked her right to FMLA-qualifying leave; (2) she suffered an adverse employment decision;

and (3) the adverse action was causally related to her invocation of rights. See Erdman vy.

Nationwide Ins. Co., 582 F.3d 500, 508-09 (3d Cir. 2009). Because FMLA retaliation claims

require proof of the employer’s retaliatory intent, courts have assessed these claims through the

lens of employment discrimination law. Lichtenstein y. Univ. of Pittsburgh Med. Ctr., 691 F.3d

294, 302 (3d Cir. 2012). Accordingly, FMLA retaliation claims based on circumstantial evidence

have been assessed under the burden-shifting framework established in McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973), while claims based on direct evidence have been assessed under

the mixed-motive framework set forth in Price Waterhouse v. Hopkins, 490 U.S. 228, 276-77

(1989) (O’Connor, J., concurring). See Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135,

147 Gd Cir. 2004). A plaintiff faces a “much more onerous burden” under the McDonnell Douglas

framework than under Price Waterhouse. Beese vy. Meridian Health Sys. Inc., No. 11-7505, 2014

WL 3519124, at *4 (D.N.J. July 16, 2014), aff'd, 629 F. App’x 218 (3d Cir. 2015).

11

While Plaintiff urges the Court to apply the mixed-motive framework of Price Waterhouse

on the grounds that Melissaratos’s disparaging comments constitutes “direct evidence” of

retaliation, (PI.’s Opp’n Br. 10-12), the Court need not reach this question because Plaintiff's

retaliation claim readily survives summary judgment under the more onerous McDonnell Douglas

standard. See Lichtenstein, 691 F.3d at 302 (holding that whether the case could proceed under a

mixed-motive instruction was irrelevant because the case could proceed under “the more taxing

McDonnell Douglas standard’), Accordingly, this Court proceeds by analyzing Plaintiff's FMLA

retaliation claim under the burden-shifting framework of McDonnell Douglas.

Under the McDonnell Douglas standard, Plaintiff has the initial burden of establishing a

prima facie case. To do so, she must point to evidence in the record sufficient to create a genuine

factual dispute about each of the three elements of her retaliation claim—i.e., (1) invocation of an

FMLA right; (2) termination; and (3) causation. /d. at 302. Once Plaintiff has established this prima

facie case, the burden of production shifts to Fidelity, the employer, to “articulate some legitimate,

nondiscriminatory reason” for its decision. McDonnell Douglas Corp., 411 U.S. at 802. If Fidelity

meets this minimal burden, Plaintiff “must point to some evidence, direct or circumstantial, from

which a factfinder could reasonably . . . disbelieve [Fidelity’s] articulated legitimate reasons.”

Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994),

After consideration, the Court concludes that Plaintiff has adduced sufficient facts to make

out a prima facie retaliation claim. It is undisputed that Plaintiff meets the first two elements of a

prima facie claim, as Plaintiff took FMLA leave and was eventually terminated. (SUMF f 97, 98,

106, 108.) With respect to the third prong of causation, it is undisputed that Plaintiff was informed

of her termination on September 28, 2022, five days after requesting intermittent FMLA leave on

September 23, 2022, and twenty-one days after returning from a consecutive FMLA leave on

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September 6, 2022. (CMF 4] 131-132.) It is well settled that “[w]hen the ‘temporal proximity’

between the protected activity and adverse action is ‘unduly suggestive,’ this ‘is sufficient standing

alone to create an inference of causality and defeat summary judgment.’” Lichtenstein, 691 F.3d

at 307 (quoting LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 232 (3d Cir. 2007)).

Here, the short duration between Plaintiff's leaves of absence and termination can provide an

evidentiary basis from which an inference of retaliation can be drawn. See Fasold vy. Just., 409

F.3d 178, 190 (3d Cir. 2005) (finding that a period of “less than three months” between employee’s

protected activity and termination constituted temporal proximity and was sufficient to defeat

defendant’s motion for summary judgment).

The Court need not rely on temporal proximity alone because Plaintiff has also presented

sufficient circumstantial evidence from which a reasonable factfinder could infer a causal

connection between Plaintiff’s leaves of absence and her termination. See Woodson v. Scott Paper

Co., 109 F.3d 913, 920-21 (3d Cir. 1997) (“[A] plaintiff can [also] establish a link between his or

her protected behavior and subsequent discharge if the employer engaged in a pattern of

antagonism in the intervening period.”); White v. Sch. Dist. of Phila., No. 05-92, 2008 WL

2502137, at *7 (E.D. Pa. June 19, 2008), aff'd, 326 F. App’x 102 (3d Cir. 2009) (“The main factors

in determining a causal link between a protected activity and an adverse employment action are

timing and a pattern of antagonism between the two.”).

In the months preceding her termination, Melissaratos made disparaging comments about

Plaintiff's leave, including calling it a “chronic problem,” stating she was “using a lot of FMLA

leave,” and questioning how long her leave would be. (CMF 9§ 73, 74.) In addition, Melissaratos

made both requests that Defendants look into Plaintiff's TLO activity shortly after Plaintiff had

informed him of her need to take leave. Ud. { 91; Ex. Y.) When Melissaratos raised Plaintiff's

13

TLO activity as an issue for the second time on June 30, 2022, he simultaneously expressed

frustration with Plaintiff's leave, stating her leave was “hurting the branch” and asking Rogers if

there was a “maximum” regarding leaves of absence, or a “point to where [Fidelity] no longer

need[ed] to guarantee [Plaintiff's] position.” (Ex. W; see Ex. L at 96:06-13; CMF 82.) A

factfinder could thus find a causal link from the pattern of antagonism established in the record,

especially considering these antagonisms occurred at the same time Defendants chose to

investigate Plaintiff's purported misconduct. See Alred v. Eli Lilly & Co., 771 F. Supp. 2d 356,

371 (D. Del. 2011) (denying summary judgment on retaliation claim and holding that an inference

of causation may be drawn from the “series of antagonisms” in the record).

Fidelity has set forth a legitimate and nondiscriminatory reason for Plaintiff's

termination—her purportedly improper TLO activity. (Def.’s Moving Br. 23); McDonnell

Douglas Corp. v. Green, 411 U.S. at 802. The burden then shifts to Plaintiff, who must “point to

some evidence, direct or circumstantial, from which a factfinder could reasonably . . . disbelieve

[Fidelity’s] articulated legitimate reasons.” Fuentes, 32 F.3d at 764.

Here, Plaintiff has adduced sufficient evidence of pretext to rebut Fidelity’s legitimate

explanation for her termination. While Defendants insist Plaintiff violated the TLO policy between

March and June 2022 (Defs.’ Moving Br. 12), Defendants had conducted an initial review in May

2022, analyzing Plaintiff's TLO activity over the preceding four months, and had concluded her

activity was not an “outlier.” (Ex. Y.) Nonetheless, one month later, Melissaratos again asked to

investigate Plaintiff's TLO activity over the preceding four months. (Ex. W; Ex. S; CME 4 82;

SUMF {ff 65, 66.) While this later investigation concluded Plaintiff violated the TLO policy,

Defendants offer no explanation for the contradictory results reached by these two independent

reviews. (See CMF § 91; Ex. Y.) Further, Plaintiff received satisfactory job ratings throughout her

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employment at Fidelity, (CMF §[ 18-25), and Melissaratos never raised Plaintiff's TLO activity

as an issue between March and June 2022 when the purported TLO violations occurred, despite

having reviewed TLOs on a weekly basis, and having had individual meetings with Plaintiff to

discuss her performance. (CMF ff 104, 105, 110, 111.) It is also undisputed that while Plaintiff

was immediately terminated for purportedly improper TLO activity without prior disciplinary

warnings or corrective action, Melissaratos did not discipline or report other financial consultants

who failed to insert adequate notes for their TLOs, and instead afforded them corrective action.

(CMF ff 110-114); see Bello v. Spring Creek Rehab. & Health Care Ctr., No. 11-1268, 2012 WL

12893871, at *4 (M.D. Pa. June 28, 2012) (holding evidence of similarly situated employees who

were not terminated for the same conduct was adequate to establish a reasonable inference of

pretext for FMLA retaliation claim), Rk. & R. adopted sub nom., No. 11-1268, 2012 WL 12903153

(M.D. Pa. July 24, 2012).

Plaintiff has thus pointed to sufficient evidence from which a factfinder could disbelieve

Defendants’ articulated reason for Plaintiff’s termination. Abramson v. William Paterson Coll. of

260 F.3d 265, 289 (3d Cir. 2001) (denying summary judgment on FMLA retaliation claim

because plaintiff demonstrated defendant’s proffered reasons for his termination were

° Defendants further argue that it is “undisputed that independent investigators with no knowledge

of the reason for Plaintiffs leave or her leave history established incontrovertibly that Plaintiff had

violated the TLO policy” and “other employees [at Fidelity] have taken leaves of absence under

the FMLA and/or NJFLA ... and remained employed without issue.” (Defs.” Moving Br. 25, 29.)

These arguments are unavailing. Contrary to Defendants’ assertions, Plaintiff disputes that the

investigators were independent and had no knowledge of Plaintiff's leave during their

investigation. (RUSMF § 68.) Further, while it may be true that other employees have taken FMLA

leave and not suffered an adverse employment action, the undisputed record establishes that other

financial consultants who committed a similar infraction to Plaintiff—ie., failing to insert

adequate notes for their TLOs—were not disciplined or reported. (CMF § 110-114); Miller v.

Aramark Healthcare Support Servs., 555 F. Supp. 2d 463, 471 (D. Del. 2008) (denying summary

judgment on FMLA retaliation claim in part because “other [employees in plaintiffs role] were

not disciplined for similar infractions”).

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“inconsistent,” and “coupled with the ongoing antagonism in the record,” the record contained

“ample proof” from which a factfinder could find retaliation) (internal quotation marks omitted)).

Accordingly, summary judgment on Plaintiff?’s FMLA retaliation claim is denied.

B. Plaintiff’s Interference Claims Under the FMLA/NJFLA

In addition to retaliation, Plaintiff alleges Fidelity interfered with her rights under the

FMLA by: (1) discouraging her from taking FMLA leave; and (2) terminating her before she could

take additional leave that she was approved to take until April 5, 2023. (CME § 62.) To prevail on

an FMLA interference claim, Plaintiff must establish: “(1) [she] was an eligible employee under

the FMLA; (2) the defendant was an employer subject to the FMLA’s requirements; (3) [she] was

entitled to FMLA leave; (4) [she] gave notice to the defendant of [] her intention to take FMLA

leave; and (5) [she] was denied benefits to which . . . she was entitled under the FMLA.” Capps v.

Mondelez Glob., LLC, 847 F.3d 144, 155 (3d Cir. 2017) (emphasis added) (quoting Ross v. Gilhuly,

755 F.d 185, 191-92 (3d Cir. 2014)).

Defendants argue that Plaintiff's FMLA interference claim fails as a matter of law because

Fidelity never denied Plaintiff's requests for FMLA leave and thus Plaintiff was never “denied” a

benefit to which she was entitled. (Defs.” Moving Br. 17-20.)

It is undisputed that Plaintiff was always granted leave when she requested it during her

employment at Fidelity. (SUMF § 111.) However, interference with the exercise of an employee’s

FMLA rights includes not only refusing to authorize FMLA leave, but also “discouraging an

employee from using such leave.” Majewski v. Fischi, 372 F. App’x 300, 305 (3d Cir. 2010)

(emphasis added) (quoting 29 C.F.R. § 825.220(b) (2009)); see also Dilorio v. Neshaminy Manor,

319 F. App’x 115, 117 Gd Cir. 2009) (“The FMLA prohibits an employer from interfering with,

restraining or denying an employee his rights under the FMLA.”) (citing 29 U.S.C. § 2615(a)(1)).

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To show an employer discouraged an employee from taking FMLA leave, employees must

show that the employer took some affirmative step, such as pressuring them to take leave at another

time, see Williams v. Shenango, Inc., 986 F. Supp. 309, 320-321 (W.D. Pa. 1997), criticizing them

for taking too much FMLA leave, see Grosso v. Fed. Express Corp., 467 F. Supp. 2d 449, 464

(E.D. Pa. 2006), or proposing they work from home instead of taking FMLA leave, see Butler v.

IntraCare Hosp. N., No. H-05-2854, 2006 WL 2868942, at *4 (S.D. Tex. Oct. 4, 2006); Hilborn

v. Cordaro, No. 06-0223, 2007 WL 2903453, at *7 (M.D. Pa. Sept. 28, 2007) (summarizing cases

where courts found viable FMLA interference claims based on the theory that an employer

“discourage[d]” an employee from taking leave).

The Court concludes a reasonable factfinder could find Defendants interfered with

Plaintiff's rights by “chilling” Plaintiff's desire to take FMLA leave, or by preventing her from

taking future leave that she was approved to take. Erdman, 582 F.3d at 509 (preemptively firing

an employee before she commences leave “may constitute interference with the employee’s

FMLA rights as well as retaliation); Kimes v. Univ. of Scranton, 126 F. Supp. 3d 477, 501 (M.D.

Pa. 2015) (internal quotation marks omitted) (quoting Grosso, 467 F. Supp. 2d. at 463) (“TA]

plaintiff may have an actionable FMLA interference claim where the employer takes any action

that could chill desire to take FMLA leave, even when the employee takes the leave.”).

Here, it is undisputed that Plaintiff was approved to take leave until April 5, 2023, but was

terminated in 2022 before she could exhaust this approved leave. (CMF 4 62, 131; SUMF § 91.)

In addition, Plaintiffs immediate supervisor, Melissaratos, made disparaging comments to her

regarding her leave on multiple occasions, including calling her leave a “chronic problem” twice,

and stating she was “using a lot of FMLA leave.” (CMF §§ 73, 74, 119.) As a result of these

comments, Plaintiff felt “horrible, guilty, frustrated,” and discouraged from taking leave. Ud. J 75.)

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Plaintiff also faced multiple administrative hurdles when requesting leave, which were not

resolved despite Plaintiff reporting these issues to the Human Resources department. (/d.

51-55.)

Defendants rely on Fraternal Order of Police v. City of Camden, 842 F.3d 231 Gd Cir.

2016), to argue that a supervisor’s disparaging comments are insufficient evidence to establish an

interference claim. (Defs.’ Reply Br. 3-4, ECF No. 44.) Defendants’ reliance on this authority is

misplaced. The plaintiff in Fraternal Order of Police was not terminated from his employment,

but rather based his interference claim solely on a few “insensitive . . . reprimands” from

supervisors regarding his leave requests. 842 F.3d at 245-46. The Court found that the few

reprimands he suffered were “on their own” insufficient to support relief under the FMLA because

these actions did not “occur in tandem with actual harm.” /d. at 246. Here, however, Plaintiff was

harmed as she was terminated from her employment prior to exhausting her approved leave, and

the record also establishes multiple reprimands and administrative hurdles that discouraged

Plaintiff from taking further leave. (See CMF {J 51-55, 73-75, 119.) Taken together, these

comments and actions establish sufficient injury and create a dispute of material fact as to whether

Defendants’ actions unlawfully interfered with Plaintiff's FMLA rights.’ See Grosso, 467 F. Supp.

2d at 464 (denying defendant’s motion for summary judgment on FMLA interference claim where

plaintiff's employer told him he was taking too much leave and employee was subsequently

’ Capps, Shedden, and Ross which Defendants cite, each differ from the instant case. The plaintiffs

in these cases did not allege they were discouraged from taking FMLA leave; instead, they only

claimed that their FMLA rights were impeded by virtue of their termination. See Capp, 847 F.3d

at 155-156; Shedden v. Port Auth. of N.Y. & N.J., No. 20-17063, 2024 WL 278568, at *4 (D.N.J.

Jan, 25, 2024); Ross, 755 F.3d at 192 n.11 (3d Cir. 2014) (holding plaintiff waived the argument

that he was “discouraged” from taking FMLA leave because he did not raise this argument in his

opening brief, and in any event, this argument was unsupported by the record).

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terminated); Shtab v. Greate Bay Hotel & Casino, Inc., 173 F. Supp. 2d 255, 268 (D.N.J. 2001)

(finding employer’s request that plaintiff delay FMLA leave until after busy holiday weekend

sufficient to permit reasonable person to conclude that employee’s rights under FMLA were

chilled).® Accordingly, Defendants’ Motion for Summary Judgment on Plaintiff's interference

claims is denied.

C. Plaintiff's Disability Discrimination and Retaliation Claims Under the

ADA/NJLAD

The Court turns next to Defendants’ motion for summary judgment on Plaintiffs disability

discrimination claims.? Defendants argue under the McDonnell Douglas framework, Plaintiff

cannot establish a prima facie case of discrimination, and that even if she could, she cannot

establish pretext to rebut Fidelity’s legitimate, non-discriminatory reason for Plaintiffs

termination. (Defs.’ Moving Br. 31-33.)

The ADA contains an “association provision” that prohibits “excluding or otherwise

denying equal jobs or benefits to a qualified individual because of the known disability of an

individual with whom the qualified individual is known to have a relationship or association.”

Erdman, 582 F.3d at 510 (quoting 42 U.S.C. § 12112(b)(4)). While the Third Circuit has not

Defendants also argue that Plaintiff's interference claim fails as a matter of law because “the

undisputed record establishes that Fidelity terminated Plaintiff's employment for legitimate

reasons unrelated to her FMLA leave.” (Defs.’ Moving Br. 19-20.) Given the Court’s conclusion

that a reasonable factfinder could find Defendants unlawfully terminated Plaintiff in retaliation for

taking FMLA leave, this argument fails.

While Defendants generally submit that Plaintiffs complaint be dismissed “in its entirety,”

(Dets.’ Moving Br. 40), Defendants only address Counts I-IV of Plaintiff's Amended Complaint

in their moving papers and fail to discuss Count V (discrimination under the ADA) (see id).

Because courts assess discrimination claims under the NJLAD and ADA using the same legal

standards and frameworks, see Tucker v. Concrete, No. 22-1026, 2024 WL 1485992, at *12

(D.N.J. Apr. 5, 2024), and Count III and Count V are premised on the same facts and allegations,

the Court applies Defendants’ arguments regarding Plaintiff's NJLAD claim to Plaintiff's ADA

claim, and considers these claims and arguments together.

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enunciated its own prima facie test for associational discrimination, it has persuasively cited the

following standard:

(1) the plaintiff was “qualified” for the job at the time of the adverse

employment action; (2) the plaintiff was subjected to adverse

employment action; (3) the plaintiff was known by his employer at

the time to have a relative or associate with a disability; [and] (4) the

adverse employment action occurred under circumstances raising a

reasonable inference that the disability of the relative or associate

was a determining factor in the employer’s decision.

Dodson vy. Coatesville Hosp. Corp., 773 F. App’x 78, 83 (3d Cir. 2019) (non-precedential).

Defendants move for summary judgment as to Plaintiff’s ability to prove the first and

fourth elements of her prima facie case. (Defs.” Moving Br. 31-33.) The Court agrees with

Defendants that Plaintiff cannot establish the fourth element of her prima facie case. '°

Courts have determined that, to satisfy the fourth element of an associational discrimination

claim, a plaintiff must demonstrate that the adverse employment decision was based on

“unfounded stereotypes and assumptions arising from the employee[’s] relationship[]” with a

disabled individual. Tyson v. Access Servs., 158 F. Supp. 3d 309, 314 (E.D. Pa. 2016). Importantly,

the Court must consider whether Plaintiff has produced sufficient evidence from which a

reasonable jury could adduce that Defendants terminated Plaintiff “because of her daughter[’s] . .

. disability.” Erdman, 582 F.3d at 510. In other words, the ADA’s association provision makes a

“material distinction between firing an employee because of a relative’s disability and firing an

employee because of the need to take time off to care for the relative.” Jd. As such, Plaintiff must

show that Defendants terminated her based on her daughter’s disability as opposed to her

absenteeism and inability to attend work. /d.

Because the Court finds that Plaintiff cannot prevail on the fourth element of a prima facie

associational disability claim, the Court need not reach whether Plaintiff can prevail on the first

element of a prima facie associational disability claim.

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The record presented here is devoid of evidence suggesting that Defendants’ decision to

terminate Plaintiff was motivated by her daughter’s disability or “unfounded stereotypes.” Tyson,

158 F. Supp. at 314. Defendants knew about Plaintiffs daughter’s disability for at least two years

before Plaintiff was fired. (CMF §[ 44.) From October 2020 through September 2022, Plaintiff was

approved for and took various leaves without any adverse action from Defendants. (CMF {fj 44-49,

59-70); see Erdman, 582 F.3d at 511 (denying ADA associational discrimination claim where the

record established that the defendant “was aware of [plaintiff's daughter’s] disability for many

years before [plaintiff] was fired”).

Plaintiff contends that Defendants’ comments, including Melissaratos’s comment about

Plaintiff not being “fully engaged” and calling her leave a “chronic problem,” give rise to an

inference of associational disability discrimination. (PI.’s Opp’n Br. 35.) These comments, without

more, cannot sustain an associational disability claim. Here, as in Erdman, “[t]he most [Plaintiff]

can hope to show is that [she] was fired for requesting time off to care for [her daughter] (on the

basis of [her] FMLA claim), not because of unfounded stereotypes or assumptions on

[Defendants’] part about care required by disabled persons.” Erdman, 582 F.3d at 511.

Thus, although Plaintiff may be able to sustain an FMLA claim that Defendants fired her

for requesting time off to care for her daughter, she cannot sustain an associational discrimination

claim, which requires a finding that Defendants fired her because of unfounded stereotypes or

assumptions Defendants had about the care disabled persons require. Beird v. Lincoln Univ, 487

Supp. 3d 270, 282 (E.D. Pa. 2020) (“[I]f [dJefendant was singling [p]laintiff out for her time

off, rather than for her or her family members’ disabilities, the proper claim is one for FMLA

retaliation, not associational disability discrimination”); Tucker, 2024 WL 1485992, at *11-12

(granting summary judgment in favor of defendant on plaintiff's associational disability

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discrimination claims because the evidence, at most, could only show plaintiff was fired for

absenteeism, not because of unfounded stereotypes or assumptions about the care required by

plaintiff's disabled son). Accordingly, the Court grants summary judgment in favor of Defendants

as to Plaintiff’s associational discrimination claims.

D. Defamation

Defendants argue that Plaintiff's defamation claim fails as a matter of law because: (1) the

content on Plaintiff's FINRA Form U5 is truthful; and (2) regardless of the truth of the content,

Plaintiff cannot assert a viable defamation claim because content on a Form U5 is afforded an

absolute or qualified privilege. (See Defs.’ Moving Br. 34-40.)

Defendants’ first contention—that the content on the Form U5 is truthful—readily fails.

Assuming the facts alleged in the Counterstatement as true, Plaintiff “did not violate any

investment-regulated statutes, regulations, rules or industry standards of conduct,” and her Form

US falsely states that she did. (CMF {J 174-75; see also RSUMF $f 89, 93-97.)

Defendants next argue that Plaintiff's defamation claim fails as a matter of law because

statements made on a Form U5 are afforded either a conditional or absolute privilege. (Defs.’

Moving Br. 39.) An absolute privilege wholly immunizes the publisher from liability and arises in

the “narrow context of statements made in the course of judicial, administrative, or legislative

proceedings.” Kadetsky v. Egg Harbor Twp. Bd. of Educ., 82 F. Supp. 2d 327, 344 (D.N.J. 2000).

A conditional, or qualified, privilege applies to a broader range of situations, specifically when a

“statement is made for a common interest shared between the publisher and the recipient.” Jd.

While the Third Circuit has declined to directly resolve “whether conditional or absolute

privilege applies to statements made on a Form US,” it has endorsed at least applying a conditional

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privilege to such statements when evaluating a party’s arguments at summary judgment.'' Preston

v. Fid. Brokerage Servs., No. 20-1612, 2022 WL 964001, at *3-4 (3d Cir. Mar. 30, 2022)

(affirming district court’s application of conditional privilege to statements made on a Form U5

but otherwise declining to address whether conditional or absolute privilege applies to a Form U5).

The Court follows the approach in Preston to apply “the most plaintiff-friendly standard in

evaluating the parties’ summary judgment arguments” and assumes a conditional privilege to

content on a Form US. Preston, 2022 WL 964001, at *3.!?

Under New Jersey law, communications that are protected by a conditional privilege are

not actionable unless Plaintiff can demonstrate that Defendants “abuse[d] the privilege.” Afiriyie

v. Bank of Am., N.A., No. A-1595-10T2, 2013 WL 451895, at *11 (N.J. Super. Ct. App. Div. Feb.

2013). “Abuse of privilege” can be demonstrated by showing the statement was made for “some

improper motive,” or if the speaker “knew the statement to be false or acted in reckless disregard

of its truth or falsity.” Afiriyie, 2013 WL 451895, at *11 (citing Feggans v. Billington, 677 A.2d

771, 777 (App. Div. 1996); see also Restatement (Second) of Torts §§ 599-600, 603-05 (1977).

'! In declining to resolve whether qualified or absolute privilege applies to statements made on a

Form U5, the Third Circuit noted that “[o]nly four states have provided absolute privilege to form

U5 defamation: California, Colorado, Massachusetts, and New York.” Preston, 2022 WL 964001,

at n.5.

Plaintiff's Amended Complaint, Plaintiff admits that content on a Form US should be afforded

a “condition{al] privilege” because employers submit this form pursuant to a “legal requirement

and public interest.” (Am. Compl. 67, ECF No. 9.) In Plaintiff's opposition brief, however,

Plaintiff asserts for the first time that content on a Form U5 should not be subject to any privilege.

(Pl.’s Opp’n Br. 37.) “It is well-settled that [a] plaintiff may not amend [the] complaint through

arguments in [a] brief.” Cheeseman v. Baxter Healthcare Corp., No. 08-4814, 2009 WL 1351676,

at *4 (D.N.J. May 13, 2009) (quoting Frohner v. City of Wildwood, No. 07-1174, 2008 WL

5102460, at *9 (D.N.J. Dec.1, 2008)). The Court thus relies on Plaintiffs representations in its

Amended Complaint and disregards Plaintiff's contention that statements made on a Form U5

should not be subject to any privilege.

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Especially where credibility is an issue, “the question of whether the [conditional] privilege was

abused is normally a jury question.” Afiriyie, 2013 WL 451895, at *11.

In this case, the Court finds sufficient evidence exists from which a reasonable factfinder

could conclude that Defendants made the statements on Plaintiff's Form U5 for “some improper

motive” or “knew the statement to be false or acted in reckless disregard of its truth or falsity.”

Afiriyie, 2013 WL 451895, at *11. It is undisputed that Melissaratos—who made disparaging

comments to Plaintiff regarding her leave—was involved in publishing the content on Plaintiff's

Form US, and specifically “reviewed and approved [the] language.” (CMF § 174.) It is further

undisputed that prior to the second investigation into Plaintiff's TLO activity, Defendants had

conducted a recent and prior review and determined Plaintiff was not an “outlier” in terms of TLO

activity. (CMF § 91; Ex. Y.) Nonetheless, Defendants present no evidence to suggest they

attempted to reconcile these contradictory results or discuss with Plaintiff their concerns regarding

her TLO activity until the day she was placed on administrative leave. (CMF §§ 124, 129-130.)

When the investigators finally approached Plaintiff to discuss this issue on September 27, 2022,

she denied all wrongdoing and expressed concerns of being improperly “singled out.” (CMF

125-127.) At the conclusion of the call and without further investigation, however, Plaintiff was

placed on administrative leave and notified of her termination the next day. (CMF ff 128, 131.)

The Court finds Plaintiff has made sufficient allegations to overcome the conditional

privilege at summary judgment. Afiriyie, 2013 WL 451895, at *11 (applying conditional privilege

and denying summary judgment on defamation claim where two witnesses testified the publisher

of the statement had knowledge the statement was false, and while the publisher denied these

allegations, the evidence “supported a conclusion that... [defendant] acted with reckless disregard

as to the truth or falsity of her statement”); Lutz, 586 A.2d at 289 (applying conditional privilege

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and denying summary judgment on defamation claim because the court could not conclude as a

matter of law that the publisher’s statement was “an accurate portrayal” and the “question of [the

publisher’s] credibility” was appropriately left for a jury to decide); see also Galarneau y. Merrill

Lynch, Pierce, Fenner & Smith Inc., 504 F.3d 189, 202 (1st Cir. 2007) (affirming jury verdict of

defamation concerning false statements made on a Form U5 where conditional privilege applied

and employer made the false statement with either knowledge of the falsity or recklessly

disregarded its falsity). Accordingly, summary judgment as to Plaintiff's defamation claim is

denied.

IV. CONCLUSION

Viewing the facts in the light most favorable to Plaintiff and drawing all reasonable

inferences in her favor, the Court finds that there are genuine disputes of material fact as to

Plaintiffs interference and retaliation claim under the FMLA (Count I), interference and retaliation

claim under the NJFLA (Count IL, and defamation claim (Count IV). The Court finds that no

genuine dispute of material fact exists as to Plaintiff's discrimination claims under the NJLAD

(Count IID) and ADA (Count V). For the foregoing reasons, Defendants’ Motion for Summary

Judgment is granted in part and denied in part. The Court will issue an order consistent with this

Memorandum Opinion.

ld isp —

UNITED STATES DISTRICT JUDGE

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