A Union County, N.J., employee who experienced post-traumatic stress disorder after discovering her supervisor's dead body at work can advance Family and Medical Leave Act retaliation and interference claims against the county, the U.S. District Court for the District of New Jersey held May 23 (Bravo v. Union Cnty., D.N.J., No. 2:12-cv-02848, 5/23/13).
Rose Bravo raised an issue of fact that the county board of elections retaliated against her for taking FMLA leave, the court decided, because she was placed on probation and her reappointment was denied after she requested leave to care for her mother and to obtain treatment for her PTSD, anxiety, and depression.
As Judge Dickinson R. Debevoise wrote, “employers may not consider FMLA leave, paid or unpaid, as a basis on which to discipline their employees.”
The court granted summary judgment to the county defendants, however, on Bravo's New Jersey Law Against Discrimination claims because it found that she was not treated differently than nondisabled employees and that she never requested a reasonable accommodation under the state anti-discrimination law.
The BOE hired Bravo as a computer terminal operator and elections clerk Sept. 11, 1999.
On Dec. 15, 2006, Bravo discovered her supervisor's dead body on the second floor of the BOE building. Bravo immediately began treatment with the county's employee assistance program.
An EAP counselor diagnosed Bravo with PTSD as a result of the incident, and she took a short leave of absence.
Dennis Kobitz, BOE administrator, is in charge of administering and enforcing the county's FMLA policy.
In 2010, Bravo alleged that Kobitz told her she would have to exhaust all her remaining sick and vacation days before using FMLA leave as requested to care for her mother who was undergoing surgery.
Bravo was entitled to 26 sick days for that year. She took 12.5 personal sick days, and she took 32 days of leave to care for her mother.
The BOE recorded 30 and one-half of the days spent caring for Bravo's mother as “FMLA with pay,” which counted against her allotted sick and vacation days; and the remaining one and one-half days as “FMLA w/o pay,” which was not counted against her allotted sick and vacation days.
On Dec. 21, 2010, Kobitz recommended to the board that Bravo and three other employees be placed on probation the following year for inadequate attendance. All four employees were placed on probation for 2011.
Bravo at some point asked Kobitz if she could purchase vacation time because she had used her vacation days to take FMLA leave the previous year. Kobitz denied her request, even though he had permitted two other BOE employees to purchase vacation time.
The board suspended Bravo May 12, 2011, because she had used more than half of her annual sick days.
Two months later, Bravo requested time off for sinus surgery.
Kobitz told her, “You know you're on probation and it doesn't, you know, it doesn't look good.”
Kobitz ultimately allowed her to take the time off.
The day after Bravo returned to work, Kobitz issued her a notice of disciplinary charges, stating that she had exceeded her 15 sick days for the year and recommending that she be suspended without pay for 15 days.
In October 2011, Bravo was diagnosed with continued PTSD, anxiety, and depression from the 2006 incident. Her doctor recommended immediate inpatient hospitalization or intensive outpatient treatment.
Bravo informed Kobitz that she required FMLA leave.
Kobitz responded, “You are on probation,” and “I don't know what's going to happen with your reappointment.”
“Do what you have to do but I'm just telling you that you are in jeopardy,” he added.
Kobitz failed to provide Bravo with required FMLA paperwork, until her attorney demanded it via letter.
Bravo's FMLA request was approved shortly thereafter, and she took leave starting Oct. 31.
On Dec. 6, while Bravo was on FMLA leave, Kobitz recommended to the BOE commissioners that she not be reappointed for the following year based on her attendance problems and poor work performance.
The commissioners acted on Kobitz's recommendation, and Bravo's employment with BOE was terminated Dec. 31.
Bravo filed an amended complaint against the county, BOE, and Kobitz Dec. 6, 2012. She alleged interference and retaliation under the FMLA and disabilities discrimination under the NJLAD.
The county defendants moved for summary judgment on all claims.
The court denied summary judgment to the defendants on Bravo's FMLA retaliation claim regarding the decision to place her on probationary status for 2011.
“A reasonable jury could find that her probation was related to her 2010 FMLA leave because she was placed on probation for excessive use of sick leave during the 2010 year,” Debevoise wrote.
The court rejected the defendants' contention that probation is not an adverse employment action under the FMLA. “There can be little doubt that receiving probation for taking excessive sick leave, including FMLA leave, would dissuade a reasonable employee from taking FMLA leave in the future,” Debevoise said.
The defendants claimed there was no evidence to support the charge that BOE commissioners took Bravo's FMLA leave into account in imposing probation because the commissioners were not made aware that Bravo had taken FMLA leave, but the court disagreed.
“In imposing probation,” Debevoise said, “the Commissioners relied on the recommendation of Mr. Kobitz--who knew that Ms. Bravo had taken FMLA leave--and the information he provided in support of his recommendation.”
As the court noted, Kobitz is responsible for maintaining attendance records and presenting those records to the BOE commissioners when recommending disciplinary action for absenteeism.
“Thus,” Debevoise concluded, “a reasonable jury could find that, as a practical matter, Defendants took Ms. Bravo's FMLA leave into account when imposing probation.”
“To hold otherwise would allow employers to concoct a disciplinary mechanism that allows them to penalize FMLA leave with impunity,” she added.
Because Bravo would not have exceeded her 26 days of allotted sick leave without having taken FMLA leave, the court ruled that a reasonable juror could find that the defendants put her on probation in part because of her use of FMLA leave.
The court also advanced Bravo's claim that the denial of her request to purchase vacation time was retaliatory, because the county denied her request allegedly because of her probation status, which the court found may have been based in part on her taking FMLA leave.
The defendants argued that Bravo's FMLA interference claim failed because she suffered no damages, but the court disagreed.
“To be sure,” Debevoise said, “mere technical FMLA violations are not actionable.”
“However,” she added, “courts in this Circuit have found that discouraging an employee from taking FMLA leave may result in prejudice by inhibiting the employee from asserting their FMLA rights in the future.”
The court found that Bravo alleged that Kobitz made statements in response to her FMLA requests that would inhibit her from exercising her leave rights in the future: he told her she had to use her own accrued time rather than FMLA leave; he informed her that her reappointment for the following year was not looking good and was in jeopardy; and he said it was not a good time for her to go out on FMLA leave.
A reasonable jury could find Kobitz also prejudiced Bravo by failing to timely provide her with FMLA paperwork, the court added.
“Indeed,” Debevoise noted, “she suffered a two-week delay in receiving treatment and even had to have a lawyer send a threatening letter to Mr. Kobitz in order to receive her FMLA paperwork at all.”
“This, too, could inhibit her from exercising her FMLA rights in the future,” Debevoise concluded.
The court advanced Bravo's FMLA retaliation claim based on her non-reappointment for 2012.
The defendants contended that the commissioners did not know that Bravo was on FMLA leave at the time of her non-reappointment, but the court found this argument unavailing.
“[W]hile the BOE Commissioners may not have had knowledge that … Ms. Bravo was out of FMLA leave at the time they decided to not reappoint her, they relied substantially on the recommendation of Mr. Kobitz--who knew she was out on FMLA leave--and the information he provided in support of his recommendation,” Debevoise observed.
“Thus,” she said, “Mr. Kobitz's statement to Ms. Bravo at the time she requested FMLA leave that her reappointment was not looking good and was in jeopardy, combined with the decision to not reappoint her while she was out on FMLA leave and Mr. Kobitz's role in reaching that decision, would allow a reasonable jury to infer direct evidence of retaliation.”
The court granted summary judgment to the defendants on Bravo's NJLAD claims because it found that she failed to raise an issue of fact for disparate treatment or failure to accommodate under the state law.
Bravo's disparate treatment claim failed, the court said, because she did not point to any similarly situated employees who did not receive discipline and she did not provide evidence that the county hired someone to fill her position after her non-reappointment.
“Even if Ms. Bravo had made a prima facie case of disparate treatment,” Debevoise wrote, “she cannot show that Defendants' legitimate, non-discriminatory reason--excessive and chronic absenteeism--for disciplining her and ultimately terminating her employment was a pretext to discriminate against her on the basis of her disabilities.”
The court also rejected Bravo's failure-to-accommodate claim, finding that her request to purchase vacation time was not a recognizable request for disabilities accommodation under the NJLAD.
Fred Shahrooz Scampato in Westfield, N.J., and David Rostan in Florham Park, N.J., represented Bravo. Allen C. Roth of Roth D'Aquanni in Springfield, N.J., represented the county, and Edward J. Kologi and Michael S. Simitz in Linden, N.J., represented Kobitz.
By Anne A. Marchessault
Text of the opinion is available at http://www.bloomberglaw.com/public/document/BRAVO_v_UNION_COUNTY_et_al_Docket_No_212cv02848_DNJ_May_11_2012_C.
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