Entrekin v. Fisher Scientific Inc., Civil Action No. 00-4363 (MLC) (D. N.J. 6/11/2001), Civil Action No. 00-4363 (MLC)

CourtU.S. District Court — District of New Jersey
Writing for the CourtCooper
Decision Date11 June 2001
Docket NumberCivil Action No. 00-4363 (MLC)

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Civil Action No. 00-4363 (MLC)
United States District Court, D. New Jersey.
June 11, 2001.

Richard P. Flaum DiFrancesco, Kunzman, Coley, Yospin, Bernstein & Bateman, PC Warren, NJ, Attorney for Plaintiff.

David E. DeLorenzi Gibbons, Del Deo, Dolan, Griffinger & Vecchione, PC Newark, NJ, Attorney for Defendant.


COOPER, District Judge.

This matter comes before the Court on the motion of plaintiff Patricia Entrekin ("Entrekin") to remand the above-captioned case to the Superior Court of New Jersey, Somerset County ("Superior Court"). Defendant Fisher Scientific Inc. ("Fisher Scientific") had filed a notice to remove this case from the Superior Court to this Court. Entrekin seeks the remand of this action on the grounds that Fisher Scientific removed this action from the Superior Court in an untimely fashion. Specifically, plaintiff argues that defendant had notice, more than thirty days prior to removal, that the amount in controversy met the $75,000 threshold requirement for federal diversity jurisdiction. Entrekin also requests an award of counsel fees and costs incurred in connection with this motion. For the reasons expressed in this Memorandum Opinion, Entrekin's motion to remand and request for counsel fees and costs are denied.


Entrekin filed the Verified Complaint1 in this matter in the Chancery Division of the Superior Court on or about May 23, 2000. (Verified Compl.; Aff. of Richard P. Flaum, Esq., filed 10-31-00 ("Flaum Aff.") ¶ 2.) Fisher Scientific filed its Notice of Removal on September 1, 2000. (Notice of Removal filed 9-1-00 ("Notice of Removal"), no. 1-1 on the docket.) Fisher Scientific sought removal based on 28 U.S.C. § 1441 and 28 U.S.C. § 1446, asserting that this Court has original diversity jurisdiction over the action pursuant to 28 U.S.C. § 1332. (Id. ¶ 1.) According to the Notice of Removal, "[Entrekin], residing at Raritan, New Jersey, commenced this action by filing a four (4) count Verified Complaint, dated May 22, 2000, in the [Superior Court], against, [Fisher Scientific], a Delaware corporation with its principal office in Hampton, New Hampshire."2 (Id. ¶ 2.) It is necessary in this section to describe in some detail the pleadings, papers and events in the state court proceedings. According to the Verified Complaint, Entrekin commenced her employment with Fisher Scientific on December 12, 1975. (Verified Compl. ¶¶ 1-2.) The Verified Complaint provides a quite extensive review of Entrekin's employment history, particularly her past periods of disability generally due to mental health problems, and, in some cases, tardive dyskinesia, and the alleged knowledge of these periods of disability possessed by Fisher Scientific, which permitted her to return to work without any reduction in pay or loss of benefits after each period. (Verified Compl. ¶¶ 1-21.) Beginning on or about October 12, 1993, Entrekin purportedly began treatment with her current physician, Dr. Susan Peet Rowley ("Dr. Rowley"). (Id. ¶ 13.)

Turning to Entrekin's most important allegations, Entrekin alleges that she worked at Fisher Scientific from September of 1997 to January of 1999, when she again suffered serious mental health problems and went out on disability. (Id. ¶¶ 22-23.) Allegedly, this period of disability occurred, as in the past, with Fisher Scientific's knowledge and consent. (Id. ¶ 24.) Entrekin claims that in or around August of 1999, certain medication changes significantly improved her condition and that, in November of 1999, Dr. Rowley assigned certain tasks in order to assess whether or not she could return to work. (Id. ¶¶ 25-27.) Dr. Rowley allegedly cleared Entrekin for work in December of 1999. (Id. ¶ 28; see also Verified Compl. Ex. A: Evaluation of Patricia Entrekin by Susan P. Rowley, M.D., for 1/99 to 12/99 at 3.) Entrekin asserts that Dr. Rowley concluded that Entrekin had returned to her baseline because of a psychological evaluation performed by Dr. Howard Mangel on December 12, 1997 and a comparison between the tasks Entrekin was able to complete in December of 1999 with the tasks she was able to perform when previously examined by Dr. Mangel. (Verified Compl. ¶¶ 29-30; see also Compl. Ex. B: Letter from Howard R. Mangel, Ed.D., dated 12-12-97.)

Although Dr. Rowley allegedly cleared Entrekin to return to full-time employment, the Verified Complaint states that she recommended that Fisher Scientific permit Entrekin to work half-days as a transition period. (Verified Compl. ¶¶ 30-31.) Entrekin claims that Fisher Scientific followed Dr. Rowley's earlier requests without question. (Id. ¶ 32.) Fisher Scientific, however, allegedly required that Entrekin return to work on a full-time basis, and Dr. Rowley therefore allegedly furnished Fisher Scientific with a note stating that Entrekin could return to full-time work without restrictions. (Id. ¶ 33; see also Verified Compl. Ex. C: Prescription Blank signed by S.P. Rowley.) Entrekin alleges that she contacted Fisher Scientific on or about December 6, 1999 and Fisher Scientific required Entrekin to be evaluated by its physicians, Priority Medical Care. (Verified Compl. ¶¶ 33-34.) After this evaluation, Priority Medical Care purportedly provided full clearance for Entrekin to return to work on December 8, 1999 without restrictions. (Id. ¶ 35; see also Verified Compl. Ex. D: Priority Medical Care Return to Work Evaluation.)

When Entrekin attempted to return to work, however, Fisher Scientific allegedly told her that Priority Medical Care had in fact added restrictions. (Verified Compl. ¶ 36.) Entrekin allegedly requested information regarding these restrictions, but Fisher Scientific supposedly refused to provide such information. (Id. ¶ 37.) Entrekin asserts that, if she had been able to return to work on December 8, 1999, she would have received the reinstatement of all benefits after twenty one days of work, four weeks of accrued vacation after one week of work, and full reinstatement, presumably to her position. (Id. ¶ 38.)

Plaintiff claims that approximately three weeks after her attempt to return to work, Deborah Sawidzial ("Sawidzial"), a human resources coordinator for Fisher Scientific, dispatched a certified letter to Entrekin stating that she was not permitted to return to work and that Entrekin must be evaluated by Dr. David Gallina ("Dr. Gallina"). (Id. ¶ 39; see also Verified Compl. Ex. H: Letter from Deb Sawidzial dated 12-28-99 ("Sawidzial Letter") at 1-2.3) Sawidzial allegedly further required the release of Entrekin's medical records to Dr. Gallina. (Verified Compl. ¶ 40; Sawidzial Letter at 2; Verified Compl. Ex. H: Authorization to Release Medical Information from Patricia Entrekin dated 1-4-00.4) Although Entrekin allegedly wanted Dr. Gallina's examination to occur immediately, the examination was scheduled for February 8, 2000 and did not actually occur until March 8, 2000. (Verified Compl. ¶¶ 40-41.) Entrekin states that Fisher Scientific informed her that, because of Dr. Gallina's findings, she could not return to work. (Id. ¶ 41.) According to the Verified Complaint, Fisher Scientific has refused to provide a copy of Dr. Gallina's report after numerous requests. (Id. ¶ 42.) Entrekin alleges that Fisher Scientific informed her that another evaluation was needed, reiterated that she could not return to work, and told her that, if she did return to work within fourteen weeks, approximately June 14, 2000, her employment would be terminated.5 (Id. ¶ 43; see also Verified Compl. Ex. G: Letter from Susan Peet Rowley, M.D., dated 4-14-00.)

Entrekin alleges that Fisher Scientific's refusal to allow Entrekin to return to work even though she obtained clearance from her treating physician constitutes a violation of the New Jersey Law Against Discrimination ("NJLAD"). (Id. ¶ 44) She claims that, as a result of Fisher Scientific's conduct, "Entrekin has been deprived of her position at Fisher [Scientific], has not received any pay since December 1999, is not entitled to any benefits for any current company sponsored disability, will be terminated from her position and will lose all of her benefits which are related to employment at Fisher [Scientific]." (Id. ¶ 45.)

Entrekin's Verified Complaint contains four counts. Count One alleges that Fisher Scientific committed handicap discrimination in violation of the NJLAD because of the above conduct. (Id. ¶ 47.) Specifically, Entrekin alleges that Fisher Scientific refused to permit Entrekin to return to work when she was cleared to do so without restrictions, the sole basis for this refusal was Entrekin's handicap protected by the NJLAD, and such discrimination would not have occurred in the absence of this handicap. (Id. ¶¶ 47-51.) Count Two claims that Fisher Scientific retaliated against Entrekin for her exercise of civil rights and opposition to its harassing conduct in violation of New Jersey's public policy, specifically alleging that Entrekin's termination constitutes retaliation in violation of public policy. (Id. ¶¶ 54-55.) In Count Three, Entrekin alleges that Fisher Scientific's "extreme and outrageous" conduct was designed to and did, either intentionally or recklessly, cause Entrekin to suffer extreme emotional distress. (Id. ¶ 58.) Finally, Count Four states that Fisher Scientific subjected Entrekin to acts of reprisal in violation of the NJLAD. (Id. ¶ 61.) These acts of reprisal were allegedly taken in response to Entrekin's periods of disability protected under the NJLAD and known and approved by Fisher Scientific. (Id. ¶ 62.) The alleged acts of reprisal or retaliation are: (1) the refusal to allow Entrekin to return to work as permitted by Entrekin's treating physician, (2) the denial of pay, (3) the loss of current benefits, (4) the refusal to cease and desist all discriminatory conduct, and (5) the threat of termination if Entrekin fails...

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