Kenney v. Meadowview Nursing and Convalescent Center

• Citation: 706 A.2d 295,308 N.J.Super. 565
• Parties: Donna KENNEY, Plaintiff/Appellant, v. MEADOWVIEW NURSING AND CONVALESCENT CENTER, Defendant/Respondent.
• Decision Date: 03 March 1998
• Court: New Jersey Superior Court – Appellate Division

Page 565

308 N.J.Super. 565

706 A.2d 295

Donna KENNEY, Plaintiff/Appellant, v. MEADOWVIEW NURSING AND CONVALESCENT CENTER, Defendant/Respondent.

Superior Court of New Jersey,

Appellate Division.

Submitted Jan. 27, 1998.

Decided March 3, 1998.

S. Robert Freidel, Jr., Turnersville, for plaintiff/appellant.

Angelini, Viniar & Freedman, for defendant/respondent (Robert F. Cuva, Woodbury, on the brief).

Before Judges PRESSLER, WALLACE and CARCHMAN.

The Opinion of the Court was delivered by

WALLACE, J.A.D.

In this action under the Family Leave Act (Act) and the Law Against Discrimination (LAD), plaintiff appeals from the grant of summary judgment in favor of defendant dismissing her complaint. On appeal, plaintiff essentially contends that it was error to dismiss her complaint because she established a prima facie case that she qualified for Family Leave benefits. We find merit to plaintiff's contention and reverse.

I

Plaintiff Donna Kenney began her employment with defendant Meadowview Nursing and Convalescent Center in 1988 as a licensed practical nurse. On November 21, 1993, plaintiff was injured at work. In her claim petition seeking workers' compensation benefits, plaintiff stated she tore a ligament in her left arm and shoulder while cranking a bed. Defendant's answer to the claim petition revealed that plaintiff returned to work January 7, 1994, and that she was paid temporary disability of $3,601.92 at the weekly rate of compensation of $382.30. Plaintiff's compensation claim was settled and an order approving settlement was entered on August 23, 1995. As a result, plaintiff received temporary disability pay for the period of November 21, 1993, through January 7, 1994, totaling $3,601.92.

Plaintiff returned to work in January 1994. She was pregnant at that time. She requested information concerning the benefits she was entitled to receive under defendant's Family Leave policy. On March 17, 1994, plaintiff wrote to her supervisor, Alice DelRossi:

As per our discussion on Friday, March 11, 1994, I still have questions and concerns which I feel have not been completely addressed. Since I had been informed that I was not eligible for a Family Medical Leave, I have not been informed as to what amount of time I am permitted to be absent from work after I have my baby, and what it will be classified as.

Also, as per my letter of March 1, 1994, I continue to be concerned about job security. Therefore, I am requesting several things from you in writing. First, I would like to be informed specifically the exact amount of time I am permitted to be absent after the birth of my baby. Second, the date I would have to return in order to maintain my current position on the 7pm to 7am half weeks on Worker's Compensation will have on any leave I require after giving birth.

I have reviewed my employee handbook thoroughly, and can find nothing that prohibits me from using accrued vacation time prior to an unpaid leave. If there is such a policy, I would appreciate a copy to add to my handbook.

When I was first approached by Pat Bacon on February 24, 1994, I requested a letter from her documenting the date that my medical coverage would be terminated as well as information on COBRA which would allow me to pay for my own coverage. I still do not have this information.

I plan to send a copy of this letter to Jane Greenburg. Thank you for your expedient attention to this matter.

Plaintiff was later informed by DelRossi that she did not qualify for Family Leave benefits because she had not worked the required 1,000 hours during the previous twelve months. Defendant claimed that plaintiff had only worked 974 hours and that she was not entitled to receive any credit for the time she was paid workers' compensation benefits, approximately 360 hours. Plaintiff stopped working for medical reasons during her pregnancy on or about March 27, 1994. ¹

The meager facts provided by the parties do not reveal when plaintiff wished to return to work. However, that information is not necessary to decide this appeal.

In October 1995, plaintiff filed her complaint herein. She alleged that defendant had terminated her in violation of the Act, denied her rights under the Act, and violated the Act by not reinstating her to her former position. Plaintiff also alleged a violation of LAD and alleged that her termination violated the implied and/or expressed employment contract contained in defendant's employment manuals, policies, and procedures. Defendant filed an answer denying all allegations. Following the completion of discovery, defendant filed a motion for summary judgment. Plaintiff then filed a cross-motion for summary judgment.

As noted, discovery had been completed. It does not appear, however, that either party submitted certifications, affidavits, admissions ² or answers to interrogatories in support of its respective motion for summary judgment. Apparently, both parties relied on the facts set forth in the briefs. In that regard, defendant provided the additional facts that plaintiff applied to be rehired in June 1994 but that there were no openings due to a hiring freeze at the facility following a reduction in Medicaid funding. Further, defendant noted that in mid-1994, a reduced staffing pattern was implemented and bonus hours were eliminated. The next employee hiring did not occur until August 1994.

The motion judge, after noting that plaintiff had submitted no competent legal evidence under R. 1:6-6, concluded that defendant's motion was in effect unopposed. The judge ruled that even assuming there was appropriate opposition, under the rule, plaintiff failed to meet the 1,000 hours requirement under the Act because she only worked 974 hours. At that point, plaintiff's counsel argued that he viewed it as a legal question, "whether or not the 1,000 hours that are required under the Family Leave Act excludes time and when you're on worker's compensation." He further argued that if one counts the period that plaintiff received Worker's Compensation, that she had more than the required 1,000 hours. Unfortunately, the judge did not address this argument in granting summary judgment in favor of defendant.

II

Initially, we note that pursuant to R. 4:46-2(a), a motion for summary judgment "shall be served with briefs, a statement of material facts and with or without supporting affidavits." Thus, a moving party is required not only to support the motion with a brief, but also with a statement of material facts set forth in separately numbered paragraphs "with a citation to the portion of the motion record establishing the fact or demonstrating that it is uncontroverted." Ibid. Moreover, the motion may be denied without prejudice for failure to file the required statement of material facts. R. 4:46-2(a). The response to the motion should include a statement either admitting or disputing the facts asserted in the movant's statement. R. 4:46-2(b). Further, the opposing party may include additional material facts as to which there exists a genuine issue. Ibid.

If there is no genuine issue as to any material fact challenged, the judge may grant the judgment sought, so long as to the moving party is entitled to judgment as a matter of law. In any event, the judge is required to find the facts and state its conclusions in accordance with R. 1:7-4. See R. 4:46-2(c).

Unfortunately, neither party fully complied with R. 4:46-2. Despite the failure to comply with R. 4:46-2(a), we are satisfied that this case was ripe for summary judgment. The material facts were not disputed. The critical issue was whether plaintiff had sufficient hours to qualify for Family Leave benefits. We turn now to that issue.

In D'Alia v. Allied-Signal Corp., 260 N.J.Super. 1, 614 A.2d 1355 (App.Div.1992), we set forth a description of the Act and its legislative history. As part of that review, we explained that the Legislature acted "to promote the economic security of families by guaranteeing jobs to wage earners who chose to take a period of leave upon the birth ... of a child or serious health condition of a family member." Id. at 6, 614 A.2d 1355 (citing N.J.S.A. 34:11B-2). Further, we recited key portions of the Act and noted that leave may be denied only where: (1) the employee falls into a narrow category of highly salaried individuals, N.J.S.A. 34:11B-4h(1); (2) denial is necessary to prevent "substantial and grievous economic injury" to the employer's operation, N.J.S.A. 34:11B-4h(2); and (3) timely notice is given to the employee, N.J.S.A. 34:11B-4(3). D'Alia, supra, 260 N.J.Super. at 7, 614 A.2d 1355. In addition, we stressed that the Act provides job security by requiring that the employee " 'be restored by the employer ... to the position held when the leave commenced or to an equivalent position of like seniority, status, employment benefits, pay and other terms and conditions of employment.' N.J.S.A. 34:11B-7." Ibid. Nevertheless, we noted that the Act provided for an exception where during the leave period a reduction in force has occurred and the employee would have lost his or her job in any event, "but that the employee retains all rights to a recall that he or she would have had if leave had not been taken." Ibid.

It is undisputed that defendant had a Family Leave Plan as part of its employment benefits that was consistent with the Act. Further, it is undisputed that plaintiff gave advance notice to the defendant of her...