Fitzgerald v. Shore Mem'l Hosp., Civil No. 12–6221 JBS/AMD.

CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
Citation92 F.Supp.3d 214
Docket NumberCivil No. 12–6221 JBS/AMD.
PartiesShawn Y. FITZGERALD, Plaintiff, v. SHORE MEMORIAL HOSPITAL d/b/a Shore Medical Center, Defendant.
Decision Date12 March 2015

92 F.Supp.3d 214

Shawn Y. FITZGERALD, Plaintiff
SHORE MEMORIAL HOSPITAL d/b/a Shore Medical Center, Defendant.

Civil No. 12–6221 JBS/AMD.

United States District Court, D. New Jersey.

Signed March 12, 2015.
Filed March 13, 2015.

92 F.Supp.3d 220

Richard Steven Swartz, Esq., Swartz Legal LLC, Cherry Hill, NJ, and, Daniel Ari Horowitz, Esq., Swartz Swidler LLC, Society Hill Office Park, Cherry Hill, NJ, for the Plaintiff.

Richard J. Defortuna, Esq., Donna M. Candelora, Esq., Paisner Litvin LLC, Bala Cynwyd, PA, for the Defendant.


SIMANDLE, Chief Judge:


The Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2601, allows employees to take up to twelve weeks of medical leave in a year without losing their jobs and prohibits employers from interfering with an employee's FMLA rights. In this case, Plaintiff Shawn Fitzgerald, who was employed by Defendant Shore Memorial Hospital as a nurse, alleges that Defendant violated her rights under the FMLA and under the New Jersey Law Against Discrimination (“NJLAD”) when it terminated her on April 22, 2011, five days after she missed work to see a doctor about her heart problems. In addition, Plaintiff asserts FMLA claims against Defendant for disciplining Plaintiff in 2009 for an absence covered by the FMLA; denying Plaintiff leave in August 2010 to visit a sick aunt; closely “tracking” Plaintiff's attendance upon her return from FMLA leave in September 2010; and requiring Plaintiff to provide a doctor's note each time Plaintiff took an FMLA-related absence. Lastly, Plaintiff asserts that she was discriminated against on the basis of race and subject to a hostile work environment, in violation of the NJLAD.

Presently before the Court is Defendant Shore Memorial Hospital's motion for summary judgment, which challenges all Counts of Plaintiff's complaint. [Docket Item 23.] For the reasons set forth below, the Court will deny Defendant's motion with respect to the disability discrimination and retaliation claims arising out of Plaintiff's termination. The Court will grant Defendant's motion with respect to all other claims.


A. The Family Medical Leave Act

Congress passed the FMLA in 1993 in an attempt “to balance the demands of the workplace with the needs of families.” 29 U.S.C. § 2601(b)(1). The FMLA allows “employees to take reasonable leave for medical reasons.” Id. § 2601(b)(2). However, it also requires that all such leave be taken “in a manner that accommodates the legitimate interests of employers,” Id. § 2601(b)(3).

FMLA-eligible employees are allowed to take twelve weeks of leave during any twelve-month period. Leave is covered under the FMLA if an employee has a “serious health condition that makes the

92 F.Supp.3d 221

employee unable to perform the functions” of his or her job. Id. § 2612(a)(1)(D). Employees are also eligible for leave in order to care for a parent of the employee if the parent has a serious health condition. Id. § 2612(a)(1)(C). Following this period of leave, an employee is entitled to be restored to his or her original position or its equivalent. Id. § 2614(a)(1).

The FMLA allows for “intermittent leave,” defined as “leave taken in separate blocks of time due to a single qualifying reason,” when medically necessary. 29 C.F.R. § 825.202(a). Federal regulations note that intermittent leave “may include leave of periods from an hour or more to several weeks.” Id. § 825.202(b)(1). Examples of intermittent leave may include leave taken for medical appointments or for regular medical treatments. Id.

Under the FMLA, employers may not deny leave to employees who qualify, nor may they retaliate against employees who exercise their rights under the FMLA.

B. Summary Judgment Record

The Court begins with the summary judgment record.

Plaintiff Shawn Fitzgerald is an African American nurse who was employed by Defendant Shore Memorial Hospital (“Shore”) from 2005 to April 2011. (Def. Statement of Material Facts (“SMF”) ¶ 2.) She suffers from hypertension and Wolff–Parkinson–White Syndrome (“WPW”), a congenital heart condition which symptoms include episodes of rapid heart rate. (Dec. 9, 2013 Fitzgerald Dep. [Docket Item 30] 5:18–24; Pl. Statement of Material Facts (“Counter SMF”) ¶ 41–43). Prior to her employment with Defendant, Plaintiff worked for 18 years as a licensed practical nurse.

1. Defendant's Time and Attendance Guideline

Shore's Time and Attendance Guideline (“Guideline”) applies to all employees, including nurses. (Time and Attendance Guideline, Def. Ex. 20 [Docket Item 23–5]; SMF ¶ 28.) Plaintiff testified at deposition that she was familiar with the hospital's attendance policy and understood how it worked.

According to the Guideline, employees who violate the attendance policies will accrue attendance infractions, or “incidents,” over a rolling 12–month period, measuring back from the date of the most recent incident. An employee who accumulates four incidents within 12 months receives verbal counseling. If she continues to accumulate infractions, she receives written counseling for each incident after the fifth, up to eight incidents. An employee who receives nine attendance infractions within 12 months, “resulting in a counseling that includes the verbal, the first, second and third written counseling,” is subject to termination. (Time and Attendance Guideline 3–4.) (Id. at 3–4.)

Incidents may be accumulated in several ways. Failure to report to work and failure to contact one's supervisor before the start of one's shift is a “no call/no show” and counts as an incident. Two “events of lateness” or leaving early qualifies as a single incident. Up to three consecutive days of “unscheduled absence” defined as an absence without prior approval from one's supervisor, also counts as a single incident, “unless a physician's note is supplied.” (Id. at 1–2.)

The Guideline defines an “absence” as “[a]ny time the employee is not available, regardless of reason, to report to their scheduled work shift.” An employee who has approval to take leave under the FMLA qualifies for a “scheduled absence” “as long as proper notification and verification

92 F.Supp.3d 222

is provided to their manager.” (Id. at 1–2.)

2. Defendant's FMLA Protocol

Decisions to approve or reject FMLA leave requests were made by the director of benefits and employee health at Shore, Kathleen Nunzi. (Nunzi Dep., Pl. Ex. I [Docket Item 26–13] 12:23–13:8.) Nunzi sometimes made the determination after consulting with others, including individuals in Human Resources who gathered the employee documents. (Id. 13:8–23.)

The FMLA allows employees to care for parents who have a serious health condition. Nunzi stated that she would approve FMLA leave only for a biological or adopted parent. (Id. 30:3–9.) Margaret Griggs, an employee in Human Resources who processes FMLA requests, testified that if an employee was requesting leave to take care of someone who was not a parent, the employee would need to provide some additional proof that the family member was covered under the FMLA. (Griggs Dep., Pl. Ex. J [Docket Item 26–14] 20:21–22:24.)

According to Griggs and Shore's vice president of human resources, Alan Beatty, Shore typically asked employees who were on intermittent FMLA leave to supply a doctor's note if they went to the doctor but did not require it if the employee did not visit a doctor. (Beatty Dep., Pl. Ex. G [Docket Item 26–11] 79:2–8; Griggs Dep., Pl. Ex. J [Docket Item 26–14] 32:14–33:1.)

3. Plaintiff's Employment at Shore

On March 22, 2008, Defendant approved Plaintiff's request for a one-year period of intermittent FMLA leave for issues related to her WPW Syndrome and hypertension. (SMF ¶ 52; Dec. 19 Fitzgerald Dep. 19:15–19.) In the leave approval section of the form, it stated, “Please submit Dr.'s note to Human Resources for each incidence of illness related to leave.” (Mar.2007 Leave Request, Def. Ex. 27 [Docket Item 23–6].) Plaintiff's leave period expired March 21, 2009, and in September 2008, Plaintiff applied for and was approved for another one-year period of intermittent FMLA leave for the same medical conditions. (SMF 558; Dec. 19 Fitzgerald Dep. 19:20–24.) This form did not ask her to submit a doctor's note for each day she took leave. Plaintiff's intermittent leave period expired September 9, 2009. (Sept. 2008 Leave Request, Def. Ex. 30 [Docket Item 23–6] ).

Between September and December of 2009, Plaintiff accrued three incidents of unexcused absence and was issued oral counseling. (SMF ¶ 70; Dec. 2009 Counseling Notice, Def. Ex. 38.) The counseling notice indicated that she had also accumulated an unexcused absence for March 6–7 of that year, while Plaintiff was on approved FMLA leave. Plaintiff contends that these absences were covered under her approved intermittent FMLA leave period, which expired March 22, 2009. (Counter SMF ¶ 59.)

Plaintiff did not reapply for intermittent FMLA leave after it expired. She did, however, apply for FMLA leave for approximately one month from February to March of...

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