Opinion
Civil No. 01-3263 (JBS).
December 23, 2003
Michelle J. Douglass, Esquire, BARKER DOUGLASS SCOTT, PC, Linwood, New Jersey, Attorney for Plaintiff Chris Council.
Russell L. Lichtenstein, Esquire, Michelle Oakes Muskett, Esquire, COOPER PERSKIE APRIL NIEDELMAN WAGENHEIM LEVENSON, PA, Atlantic City, New Jersey, Attorneys for Defendant Trump Plaza Hotel and Casino Resorts.
OPINION
Plaintiff, an African American male suffering from diverticulitis, worked in the Food and Beverage Department of the Trump Plaza Hotel and Casino in Atlantic City, New Jersey from 1984 until November 15, 2000. In this lawsuit, plaintiff alleges that the Trump Plaza, through its Vice President of Food and Beverage, Steven Prakash, harassed him, and eventually terminated his employment, because of his race, his disability, and his exercise of rights under the Family and Medical Leave Act (FMLA).
The present cross-motions for summary judgment require the Court to determine whether there remains any material question of fact regarding the four claims asserted by plaintiff, namely the claims of hostile work environment in violation of the New Jersey Law Against Discrimination (NJLAD), discriminatory discharge in violation of the NJLAD, denial of entitlement under the FMLA, and retaliation in violation of the FMLA.
The Court has considered the cross-motions and, for the following reasons, will deny both parties' motions as to the NJLAD hostile environment and discriminatory discharge claims and the FMLA retaliation claim. The Court will also deny plaintiff's motion regarding the FMLA entitlement claim and will deny defendant's motion regarding the FMLA entitlement claim in part to the extent plaintiff asserts an entitlement to thirty-five days of leave in August 2000, but will grant it in part to the extent plaintiff asserts an entitlement to twelve weeks of leave in August 2000. Thus, remaining in this case are plaintiff's hostile work environment, discriminatory discharge, and retaliation claims, as well as his claim that he was denied thirty-five days of leave that he was entitled to.
I. BACKGROUND
In April 1984, plaintiff Chris Council, an African American, was hired by defendant, the Trump Plaza Hotel and Casino ("Trump Plaza"), for employment in its Food and Beverage Department. (Facts ¶ 1; Douglass Cert., Ex. D, Council I Dep. at 30:2-4.) Over the years, he held several managerial positions, eventually becoming the manager of the Broadway Buffet in July 1998. (Id. at 33:1-39:12.) Also in 1998, plaintiff sought treatment for diverticulitis, a condition that would require him to take leave under the FMLA in 1998 for a hernia operation and in 1999 for a colectomy to remove his large intestines. (Muskett Cert., Exs. O, P; Douglass Cert., Ex. B at ¶ 9.)
The events at issue in this suit date from September 1996, when Steven Prakash began his employment as Vice President of Trump Plaza's Food and Beverage Department, to November 15, 2000, when Mr. Prakash informed plaintiff that his employment was terminated because his position at the Broadway Buffet was being eliminated. (Pl. Facts ¶ 2; Douglass Cert., Ex. H.) Plaintiff asserts that Mr. Prakash eliminated the position because he intended to "establish a mostly white or non-minority management team within the Food and Beverage Department" and because he was "annoyed" that plaintiff was planning to take another FMLA leave in December 2000. (Id., Ex. A, Council Aff. ¶ 5; id., Ex. E, Council II Dep. at 16:4-20.) Trump Plaza, though, asserts that the decision to terminate plaintiff's employment was the result of a "purely operational" decision to eliminate the position and was a necessary cost-cutting measure. (Id., Ex. C, Berard Dep. at 61:19-62:6.) Trump Plaza does not dispute that its former employee, Mr. Prakash, could be a "harsh, difficult and nasty individual," but asserts that he was not discriminatory as he "was nasty to many employees of all different races, nationalities and genders." (Def. Br. at 13.)
A. Plaintiff's Medical Concerns
By 1998, plaintiff required treatment for diverticulitis, the "inflammation of diverticulum in the digestive tract." (See Douglass Cert., Ex. B at ¶ 9.) In April 1998, plaintiff was required to undergo incisional hernia surgery for complications from the disease, and took FMLA leave from April 2, 1998, the date of surgery, through June 4, 1998. (Id. at ¶¶ 9-10; Douglass Cert., Ex. J at 5-7; Muskett Cert., Ex. O.)
Plaintiff suffered a diverticulitis attack in September 1999 for which he was hospitalized on September 12th. (Douglass Cert., Ex. B at ¶ 12.) He did not take FMLA leave, and returned to work on September 24, 1999. (Id.) He then informed Mr. Prakash that his doctor recommended that he undergo a "total colectomy" to remove his large intestines. (Id.) Plaintiff took FMLA leave for the colectomy from December 3, 1999 through January 21, 2000. (Douglass Cert., Ex. A, Council Aff. ¶ 3; id., Ex. B at ¶ 13;id., Ex. J at 8-10; Muskett Cert., Ex. P.)
Plaintiff continued to suffer from diverticulitis and, in 2000, scheduled FMLA leave for December for another hernia operation. (Douglass Cert., Ex. A, Council Aff. ¶ 7; id., Ex. C, Berard Dep. at 66:2-14.) Plaintiff's employment was terminated in November 2000, so he never was able to take the December leave. In the end, he did not in fact have the surgery. (Id., Ex. E, Council II Dep. at 53:4-10.)
B. Alleged Discriminatory Comments and Behavior
Plaintiff says that he noticed a more discriminatory atmosphere after Prakash became his supervisor in 1996 and that he eventually came to understand that Prakash "was annoyed with me for my medical leaves" and that he did not "like the fact that a black man was in a position of power or leadership." (Douglass Cert., Ex. A, Council Aff. ¶ 5; id., Ex. E, Council II Dep. at 16:4-20, 35:2-23.) Plaintiff bases this assertion on the following three circumstances.
First, plaintiff says that Prakash made certain discriminatory comments. During a March 2000 meeting, plaintiff says that Prakash told him that he was "big, black and threatening" and was "mean because [he] was sick." (Id. at 26:3-24.) Mr. Berard, Manager of Employee Relations, testified that he and Mr. Prakash scheduled the March 2000 meeting because employees had been complaining "about Chris's demeanor . . . that he was being mean to the employees; that he was unapproachable; that they saw him as threatening; that the union believed he was retaliating against the employees because they were complaining about the schedule." (Douglass Cert., Ex. C, Berard Dep. at 5:12-6:10; 81:17-82:25.) Mr. Prakash prepared an interoffice memo after the meeting, which states that it was "to informally discuss how his real and perceived lack of communication skills/approachability/accessibility is currently having a negative impact on a very `delicate' Broadway Buffet service staff." (Muskett Cert., Ex. F.) Prakash wrote that:
The record includes a September 1998 grievance in which an employee complained that "Chris Council has cut the hours of senior employees to less than 30 hours," and a June 1999 grievance in which an employee complained that "Chris insinuates that I am stupid [and] act[s] very unprofessional and disrespectful." (Muskett Cert., Ex. S.)
We closed the meeting by assuring Chris that we were there to help and support him, but that if he didn't make the necessary improvements the situation may become irreversibly negative and that we would be forced to take stronger action including perhaps removing Chris from his position as manager of the buffet or perhaps transferring him.
(Id.) Plaintiff insists that he was not told during the meeting that his job was threatened in any way. (Douglass Cert., Ex. A, Council Aff. ¶ 3a). Moreover, plaintiff says that he had consistently been reported as a very approachable supervisor. In his previous evaluations, he was described as "very dedicated and hard working," as having "excellent guest relations skills," as being "adept at addressing personnel problems and motivating his staff," as "accessible, concerned with individuals," as "deserving of the loyalty and respect given him by his staff," and as "respected for [his] kindness and support." (Id., Ex. M.)
The memorandum was placed in plaintiff's file, but he was not given a copy until it was produced during this litigation, which plaintiff asserts was contrary to standard procedure. (Douglass Cert., Ex. A, Council Aff. ¶ 3a.)
Plaintiff says that Prakash also "made various references to my apparel when I was wearing dark colored shirts," which he felt were intended to "highlight or draw attention to my skin color" because he never mentioned the color of any other manager's clothing. He also testified that Prakash did nothing when he told him that a server at the Broadway Buffet had referred to him as a "nigger." (Douglass Cert., Ex. A, Council Aff. ¶ 5a, b; id., Ex. E, Council II Dep. at 21:25-25:10.) Plaintiff also testified that Prakash "badgered him" about his eating habits, saying "`Did your doctor allow you to eat that,' or `You're eating again,'" and that he "[q]uestioned me about how long I was in the bathroom . . . [and] about, `Oh, did you get a second opinion from the doctors, do you have to do this.'" (Id. at 27:11-25.)
Second, plaintiff says Prakash tried to create a reason for his termination, by giving him increasingly lesser performance evaluations. From 1986 through 1997, plaintiff received merit increases in the range of 4.5 to 12 percent, at an average of 5.7 percent. (Douglass Cert., Ex. A, Council Aff. ¶ 2a.; id., Ex. M.) After his first FMLA leave in 1998, he received a 4 percent increase for 1998 and 1999, and after his second FMLA leave, he received a 3 percent increase for 2000. (Id.) Also, prior to his first FMLA leave, Prakash evaluated plaintiff on February 20, 1998, and stated that he was "an excellent Manager and a loyal Trump Plaza Employee who is well liked by his subordinates, peers, and supervisors." (Id. at 1998.) After plaintiff's first leave, in a February 20, 1999 evaluation, Mr. Prakash wrote that "Chris is a pleasure to work with and I'm proud to have him on my team." (Id. at 1999.) In the next review, though, written after plaintiff had taken leave for the colectomy, Prakash wrote that plaintiff needed to show improvement and gave him a "satisfactory" rating, instead of his prior "very good" and "outstanding" ratings. (Id. at 2000.) Plaintiff says that Prakash also began to "relentlessly pick on me regarding my appearance, the appearance of my staff, and the appearance of the restaurant," blaming plaintiff "for conditions within the restaurant which were not within my control or were attributable to the responsibility of other managers." (Id., Ex. A, Council Aff. ¶ 3b.)
Third, plaintiff says that Prakash was especially caustic to African American managers, but that he "seemingly had a very good rapport" with white male managers. (Id. ¶ 5h, i.) Mr. Berard, though, says that complaints about Prakash were not isolated to those in the minority. Instead, he testified that "just about everybody who reported to [Prakash] at one time or another" complained to Employee Relations about Prakash because "they didn't like the way that he spoke to them. He was mean. He was abrasive . . . he didn't support them . . . [he was] short-tempered . . . he was nitpicking." (Douglass Cert., Ex. C, Berard Dep. at 90:17-93:5.) Mr. Berard says that the employees did not come to him with official complaints, but instead needed to "vent" about their boss who, though "not violating the law, [was] just completely out of line." (Id. at 95:7-96:8.)
Marilyn Fenderson, Beverage Manager, also testified that her relationship with Prakash was "very rocky, very emotional, and a nightmare . . . he [was] a tyrant . . . all my work was scrutinized." (Douglass Cert., Ex. C, Fenderson Dep. at 12:2-13, 130:21-132:2.) She also testified that Prakash "was always degrading" to Robert Maniruzzman, an executive steward originally from Bangladesh, though she found him to be "a very professional, sincere manager." (Douglass Cert., Ex. C, Fenderson Dep. at 151:1-152:5.) Mr. Vaillette agreed that Prakash was "difficult to work with because . . . he would build you up and then break you down systematically." (Douglass Cert., Ex. F, Vaillette Dep. at 44:20-45:1.)
C. New Assistant Manager
Plaintiff says that Prakash then "handpicked" a white healthy male, Matthew Vaillette, to work at the Buffet so he could eventually take plaintiff's job. (Douglass Cert., Ex. E, Council II Dep. at 11:7-17.) Mr. Vaillette was transferred to the Broadway Buffet on April 24, 2000 to work as its Assistant Manager. (Id., Ex. A, Council Aff. ¶¶ 4; id., Ex. C, Berard Dep. at 53:1-4; id., Ex. K.)
According to plaintiff, Mr. Vaillette "began to assume duties of a Restaurant Manager." (Id., Ex. A, Council Aff. ¶ 4a.) Soon after his transfer, Mr. Vaillette met with Mr. Berard in Employee Relations because "he felt that he wasn't being paid commiserate with the work he was doing, and basically he thought that he was carrying [plaintiff] and that he deserved more money for it." (Id., Ex. C, Berard Dep. at 46:4-7.) Vaillette told Mr. Berard that he was doing the scheduling, the interaction with employees, and was "maintaining the peace between the front and the back of the house." (Id. at 46:10-47:12.)
Mr. Vaillette was then given the scheduling responsibilities that had been plaintiff's. (Id. at 50:17-51:4.) Scheduling had been a constant issue among the staff at the Broadway Buffet because its customer volume was not steady, and because a contract provision required that senior staff be scheduled with "the most straight time hours customarily scheduled in the department," which left the less-senior employees with few hours of work at off-peak times. (Id. at 47:1-24.) Mr. Berard testified that he received complaints that plaintiff was not scheduling the proper number of hours, and though no written grievances were ever filed, he felt that placing Mr. Vaillette in charge of scheduling may "help alleviate the problem." (Id. at 47:1-16, 51:1-4.) Plaintiff was unhappy with the change and told Mr. Berard that "they took the scheduling away from me. They gave it to Matt. . . . I think they're trying to get rid of me." (Id. at 64:11-18.) Mr. Berard says that he assured plaintiff that the scheduling had been given to Mr. Vaillette to "alleviate the conflict that appeared to be going on between the union [and] Chris" and "to give Matt some experience with doing schedules." (Id. at 65:1-10.)
Plaintiff says that Prakash and McNellis then began to "bypass [him as] restaurant manager and interact almost exclusively with the assistant manager," Mr. Vaillette. (Douglass Cert., Ex. A, Council Aff. ¶ 4a.) Mr. Vaillette attended every other Food and Beverage management meeting in plaintiff's stead, and addressed operational and purchasing issues which plaintiff had generally handled in the past as restaurant manager. (Id.; Douglass Cert., Ex. E, Council II Dep. at 11:7-17.) Mr. Vaillette testified that during 2000, his job duties were the "same as Chris's," and included "ordering, payroll . . . room cleanliness, the food presentation, . . . making the menus, dealing with other departments like cashiering," and "supervising the employees." (Id., Ex. F, Vaillette Dep. at 21:15-22:18.) Mr. Violette told the Beverage Manager, Marilyn Fenderson, that he felt that he was "being put in a position" which made him feel "awkward" because he "felt that Steven [Prakash] and Robert [McNellis] were using him to fire Chris . . . [and] he didn't want to be a part of it." (Id., Ex. C, Fenderson Dep. at 158:12-22.)
D. Plaintiff's termination
On November 15, 2000, plaintiff was told that his employment was terminated because his position was being eliminated. Mr. Berard, Manager of Employee Relations, testified that he and Mr. Prakash had begun thinking about reorganizing the Broadway Buffet at the "end of September, beginning of October" in a manner that would eliminate the need for a restaurant manager. (Id., Ex. C, Berard Dep. at 22:1-25:16.) Another Trump Plaza restaurant, the Westside Cafe, had this altered organization, in which "the chef in the back of the house really assumes overall control of the room with some assistance from the assistant managers in the front of the house and his assistant chefs in the back of the house." (Id. at 25:14-2.) At the Broadway Buffet, this change in structure would mean that Chef John Brown, who was currently in charge of the back of the house, would be placed in charge of both the back and the front of the house, and plaintiff, who was currently in charge of the front of the house, would be let go. (Id. at 41:4-20, 56:4-7.) Mr. Vaillette, who was currently the assistant manager of the Broadway Buffet, would remain as the assistant manager but would report to Chef Brown instead of to plaintiff. (Id. at 41:21-25.)
Mr. Berard told Mr. Prakash that there were no problems in making this structure change because "from an employer relations standpoint, it was strictly a position elimination . . . the position that Chris held, which is the Broadway Buffet restaurant manager, that job would go away . . . there wasn't a situation where we had two people and I was gonna have to do a file review and then make a recommendation back to the department of who should go under our policies or not. It was a strict position elimination." (Id. at 26:15-27:14.)
Mr. Prakash, Mr. Berard and the Director of Food and Beverage, Robert McNellis, met with plaintiff on November 15, 2000, (id. at 40:2-12), and gave him a letter advising him that "it has been determined that the position of Restaurant Manager in the Broadway Buffet is being eliminated. Consequently, your last day of work will be November 15, 2000," (Muskett Cert., Ex. C). Plaintiff was informed that he would be "eligible to apply for any open position for which you are qualified," and that, if he applied for, and obtained, such a position within thirty days, he would be "reinstated with your original date of hire and be eligible for benefits without a waiting period." (Id.; Douglass Cert., Ex. C, Berard Dep. at 76:14-77:10.) It was the first time that plaintiff heard that his position was being eliminated. (Id., Ex. D, Council I Dep. at 14-16:11.) He did not apply to other positions within the Trump organization. (Id. at 17:11-20:4.)
Mr. Berard testified that the reason to eliminate plaintiff's position had nothing to do with "the way that he performed or didn't perform his job duties." (Douglass Cert., Ex. C, Berard Dep. at 61:19-62:6.) Mr. Vaillette testified that Mr. McNellis told him that "they had made the decision to lay Chris off because of monetary issues." (Id., Ex. F, Vaillette Dep. at 18:11-16.)
Plaintiff, though, argues that economics could not have been the reason for his termination. First, he says that the Broadway Buffet was making a profit in 2000 when he was terminated based on the Financial Statements for Trump Plaza's Food and Beverage Department. (Id., Ex. A, Council Aff. ¶ 6.) In 1999, when plaintiff was the Restaurant Manger, and prior to Mr. Vaillette's transfer, the Food and Beverage Department had a net income of $32,914,000; in 2000, the Department had a net income of $32,147,000; and in 2001, the Department had a net income of $29,868,000. (Id. ¶ 6a; Douglass Cert., Ex. Q.)
In 1999, the Department reported revenues of $50,342,000 and costs of $17,428,000; in 2000, the Department reported revenues of $42,693,000 and costs of $10,546,000; in 2001, the Department reported revenues of $39,849,000 and costs of $9,981,000. (Douglass Cert., Ex. A, Council Aff. ¶ 6a; id., Ex. Q.)
Second, he asserts that his position was not actually eliminated, because Mr. Vaillette became the Broadway Buffet manager in all but name. (Id., Ex. A, Council Aff. ¶ 6.) It is undisputed that no person became the "manager" of the Broadway Buffet, (id., Ex. C, Berard Dep. at 53:17-21; id., Ex. F, Vaillette Dep. at 28:11-19), but Mr. Vaillette, as assistant manager of the Broadway Buffet, was joined immediately after plaintiff's termination by an additional assistant manager. On November 15, 2000, the same day that plaintiff was fired, Mr. McNellis submitted a formal request to add the assistant manager position to the Broadway Buffet. (Id., Ex. A, Council Aff. ¶ 6;id., Ex. I.) Mr. Vaillette was given a three-percent pay raise in April 2001 because he "took over mgr duties," (id., Ex. L), and he testified that after plaintiff's termination, his job duties increased in volume, but were the same duties he had done when plaintiff was manager, (id., Ex. F, Vaillette Dep. at 24:13-21).
Mr. Vaillette testified that his duties did lessen when Chef John Brown began to oversee the budgeting of the Buffet and when the new assistant manager was assigned to work with him, as they could "split the duties evenly." (Douglass Cert., Ex. F, Vaillette Dep. at 24:22-26:2.)
Third, plaintiff asserts that Mr. Prakash had reason to terminate his employment in November 2000 because he knew that plaintiff would be taking another FMLA leave in December 2000. (Id., Ex. A, Council Aff. ¶ 7a.) Plaintiff had contacted Mr. Berard in August 2000 to "inquire whether I was eligible to take a Leave of Absence for a hernia operation which was recommended by my Colorectal Surgeon," (Id. ¶ 7; Douglass Cert., Ex. C, Berard Dep. at 66:2-14; id., Ex. G; id., Ex. E, Council II Dep. at 33:9-24), and Mr. Berard informed him that he would not be eligible for a full leave until December 2000, (id., Ex. A, Council Aff. ¶¶ 3, 7; id., Ex. C, Berard Dep. at 67:1-11). Plaintiff says he asked Mr. Prakash to approve additional leave time prior to December 2000, but that Mr. Prakash seemed annoyed by my request so I dropped my request" and told Prakash that he would "wait until December when I would become entitled to the full 12 weeks under the FMLA." (Id., Ex. A, Council Aff. ¶ 7; id., Ex. E, Council II Dep. at 34:3-10; id., Ex. C, Berard Dep. at 105:16-20.)
Plaintiff says that he has since learned that Mr. Berard's calculations were incorrect and that he did have rights to leave prior to December 2000. (Douglass Cert., Ex. A, Council Aff. ¶ 7a.) He says that Mr. Berard told him that he was only eligible for 27-days leave prior to December, and that he needed additional time because his doctor predicted a four-to-six week recuperation. (Id.) This Court will consider the FMLA entitlement claim based on this calculation infra, section II(D).
Mr. Berard, though, testified that the decision to eliminate plaintiff's position occurred before Mr. Prakash learned of plaintiff's intent to take leave, "so therefore the fact that Chris was now gonna take a leave of absence didn't have an impact." (Id. at 105:19-106:12, 107:18-109:17.) Plaintiff, though, testified that he first made his need for additional surgery and FMLA leave known in August 2000, (Douglass Cert., Ex. E, Council II Dep. at 33:9-24), and Mr. Berard testified that Mr. Prakash first talked to him about eliminating the position in the "end of September, beginning of October," (id., Ex. C, Berard Dep. at 22:1-25:16).
E. Procedural History
Plaintiff filed a Complaint with this Court on July 11, 2001, and an Amended Complaint on July 30, 2001, asserting claims of hostile work environment and discriminatory discharge based on race and disability in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1, et seq., and violation of, and interference with, his rights under the Family and Medical Leave Act, 29 U.S.C. § 2601, et seq. (Complaint; Amended Complaint.) Following discovery, the parties filed the present cross-motions for summary judgment on March 25, 2003.
II. DISCUSSION
Presently before the Court are the parties' cross-motions for summary judgment. Defendant Trump Plaza seeks summary judgment in its favor on all of plaintiffs' claims, asserting that plaintiff has not presented proof which shows: (1) that he was part of a hostile work environment, (2) that his position was eliminated because of his race or disability, (3) that he denied FMLA leave to which he was entitled, or (4) that he was retaliated against because he exercised his right to FMLA leave. Plaintiff, on the other hand, seeks summary judgment in his favor on all claims, asserting that there is no question that (1) he was subjected to a hostile work environment due to his race and disability, (2) his position was eliminated because of his race and disability, (3) he was denied leave to which he was entitled because defendant told him that he was not eligible for leave in August 2000, and (4) he was retaliated against for his use of FMLA leave when defendant terminated his employment.
The Court has considered the arguments of the parties and finds, for the following reasons, that material questions of fact remain as to plaintiff's NJLAD hostile work environment and discriminatory discharge claims, as to plaintiff's FMLA retaliation claim, and as to plaintiff's entitlement claim based on his right to thirty-five days of leave in August 2000, and the Court will deny the motions as to such claims. The Court will grant summary judgment in part in defendant's favor, though, to the extent that plaintiff bases his entitlement claim on his entitlement to twelve-weeks of leave in August 2000 because there is no question that he was not entitled to twelve-weeks of leave at that time.
A. Summary Judgment Standard for Cross-Motions
Summary judgment is appropriate when the record "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A dispute is "genuine" if "the evidence is such that a reasonable jury could not return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if it might affect the outcome of the suit under applicable rule of law. Id.
In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party; "the nonmoving party's evidence `is to be believed, and all justifiable inferences are to be drawn in his favor.'" Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Liberty Lobby, 477 U.S. at 255). The nonmoving party "may not rest upon the mere allegations or denials of" its pleading and must present more than just "bare assertions, conclusory allegations or suspicions" to show the existence of a genuine issue. Fed.R.Civ.P. 56(e);Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250.
The standard by which the court decides a summary judgment motion does not change when the parties file cross-motions.Weissman v. United States Postal Serv., 19 F. Supp. 2d 254 (D.N.J. 1998). When ruling on cross-motions for summary judgment, the court must consider the motions independently, Williams v. Philadelphia Hous. Auth., 834 F. Supp. 794, 797 (E.D. Pa. 1993),aff'd, 27 F.3d 560 (3d Cir. 1994), and view the evidence on each motion in he light most favorable to the party opposing the motion. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
B. NJLAD Hostile Work Environment Claim
N.J.S.A. § 10:5-4 provides:
All persons shall have the opportunity to obtain employment, and to obtain all the accommodations, advantages, facilities, and privileges of any place of public accommodation, publicly assisted housing accommodation, and other real property without discrimination because of race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, familial status, sex or source of lawful income used for rental or mortgage payments, subject only to conditions and limitations applicable alike to all persons. This opportunity is recognized as and declared to be a civil right.
To establish a claim for hostile work environment in violation of the New Jersey Law Against Discrimination (NJLAD), a plaintiff must show that:
(1) the complained-of conduct which would not have occurred but for the employee's status in a protected class;
(2) the complained-of conduct was severe or pervasive; and
(3) a reasonable individual in the protected class would also believe that the conditions of employment were altered by the conduct and that the working environment is hostile or abusive.Lehman v. Toys `R' Us, Inc., 132 N.J. 587, 603-4 (1993); see also Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990). Defendant asserts that plaintiff has failed to present proof here of "severe or pervasive conduct" as he has only shown a few "stray comments." (Def. Br. at 24-26.)
To determine whether alleged conduct is sufficiently serious and pervasive to support a hostile work environment claim, the Court should consider "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance."Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). Courts should not view individual incidents in a vacuum, but should instead consider the totality of the circumstances. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1083 (3d Cir. 1996); Vance v. Southern Bell Tel and Tel. Co., 863 F.2d 1503, 1510 (11th Cir. 1989). Courts also need to "filter out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes . . . simple teasing, offhand comments, and isolated incidents (unless extremely serious)." Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (citing Oncale v. Sundowner Offshore Services, Inc. 523 U.S. 75, 80 (1998)).
Here, plaintiff has alleged that he was subjected to a hostile work environment based on his race and on his disability. This Court finds that material questions of fact remain as to these hostile work environment claims because plaintiff has presented evidence from which a reasonable factfinder could conclude that Mr. Prakash created a hostile work environment for plaintiff by making discriminatory remarks about his race and disability and by lessening his job responsibilities.
Mr. Prakash was known for his abrasive personality and his degrading comments. (See Douglass Cert., Ex. C, Fenderson Dep. at 12:2-13, 130:21-132:2 (describing Prakash as "tyrant"); id., Ex. F, Vaillette Dep. at 44:20-45:1 (explaining that Prakash would "break you down systematically"); id., Ex. C, Berard Dep. at 90:17-93:5 (testifying that "just about everybody" who reported to Prakash complained to employee relations about him)). There is evidence that some of these degrading comments were directed at plaintiff and his race and disability. With regard to plaintiff's disability, there is evidence that Mr. Prakash systematically and relentlessly "badgered" plaintiff about the time he spent in the bathroom and the food he ate, though plaintiff had no control over the time he needed to care for his colostomy bag. (Douglass Cert., Ex. E, Council II Dep. at 21:25-27:25; see also, id., Ex. A, Council Aff. ¶ 3b; id. Ex. F, Vaillette Dep. at 44:20-45:1.) With regard to plaintiff's race, there is evidence that Mr. Prakash told him he was "big, black and threatening," though his evaluations had reported him to be "a pleasure to work with," and that he taunted plaintiff for his choice of dark shirts because of his dark skin. (See Douglass Cert., Ex. E, Council II Dep. at 21:25-26:24.)
It is not the comments alone in this case, though, which require the Court to deny summary judgment on this claim. If the comments were the only discriminatory behavior alleged, then a reasonable factfinder might find it difficult to escape the conclusion that the comments were "isolated incidents . . . [c]asual comments, or accidental or sporadic conversation" which are not sufficient to sustain a hostile work environment claim, rather than "a steady barrage of opprobrious" comments. See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997);Snell v. Suffolk County, 782 F.2d 1094, 1103 (2d Cir. 1986);see also West v. Philadelphia Elec. Co., 45 F.3d 744 (3d Cir. 1995). Here, though, plaintiff has pointed to evidence that he was subjected to discrimination that pervaded his daily life as Mr. Prakash systematically stripped him of job duties.
Plaintiff, though described in his performance reviews as an "adept," "dedicated," "hard working," accessible" supervisor with "excellent guest relations skills," was increasingly and "relentlessly pick[ed] on . . . for conditions within the restaurant which were not within my control or were attributable to the responsibility of other managers," (Douglass Cert., Ex. A, Council Aff. ¶ 3b), and was denied job responsibilities. For example, Mr. Prakash transferred Mr. Vaillette to the Broadway Buffet, assigned to him plaintiff's scheduling duties, and began to "bypass [plaintiff who was the] restaurant manager and interact almost exclusively with the assistant manager," Mr. Vaillette. (See Douglass Cert., Ex. K; id., Berard Dep. at 50:17-51:4; id., Ex. A, Council Aff. ¶ 4a.) Mr. Vaillette soon attended management meetings, addressed operational and purchasing issues, and complained that he felt that Mr. Prakash and Mr. McNellis "were using him to fire Chris." (See id., Ex. E, Council II Dep. at 11:7-17; id., Ex. C, Fenderson Dep. at 158:12-22; id., Ex. F, Vaillette Dep. at 21:15-22:18.)
A reasonable factfinder may conclude that Mr. Prakash's comments combined with these job changes did not create a hostile work environment. Defendants have pointed to legitimate reasons for the changes, such as conflicts between plaintiff and the Union with respect to scheduling. (Muskett Cert., Ex. S.) Still, there is sufficient evidence here to raise material questions of fact as to whether plaintiff was subjected to a hostile work environment because of his race and disability. Therefore, this Court will deny the parties' motions for summary judgment as to the hostile work environment claims.
C. NJLAD Discriminatory Discharge Claim
For discriminatory discharge claims under the NJLAD based on indirect or circumstantial evidence of discrimination, New Jersey courts have adopted the McDonnell Douglas burden shifting approach utilized for discriminatory discharge claims asserted under Title VII of the Civil Rights Act of 1964, codified at 42 U.S.C. § 2000(a)(1). Goodman v. London Metals Exchange, Inc., 86 N.J. 19, 31 (1981) (citing Peper v. Princeton Univ. Board of Trustees, 77 N.J. 55, 81-84 (1978)); see McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Under the McDonnell Douglas framework, the initial burden is on the plaintiff to establish a prima facie case of discriminatory discharge. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); Sheridan v. E.I. Dupont de Nemours and Co., 100 F.3d 1061 (3d Cir. 1996). To do so, the plaintiff must show:
(1) he is a member of a protected class,
(2) he was performing his job at a level that met his employer's legitimate expectations,
(3) he was terminated, and
(4) he was replaced.
Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 596 (1988).
If the plaintiff fails to establish this prima facie case, the defendant case is entitled to summary judgment. Jalil v. Avdel Corp., 873 F.2d 701, 707 (3d Cir. 1989); Stinson v. Delaware River Port Auth., 935 F. Supp. 531, 539 (D.N.J. 1996),aff'd without op., 124 F.3d 188 (3d Cir. 1997).
Once a plaintiff has established a prima facie case, the burden of production shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the discharge. Hicks, 509 U.S. at 506-07; Burdine, 450 U.S. at 253;McDonnell-Douglas, 411 U.S. at 802-03. The defendant satisfies this burden by introducing evidence which, if taken as true, would permit a trier of fact to conclude that unlawful discrimination was not the reason for the discharge. Burdine, 450 U.S. at 254-56, n. 8. The employer need not prove that the proffered reason actually motivated its behavior, as long as it presents evidence which raises a genuine issue of material fact as to whether it discriminated against the plaintiff. Id. at 254 n. 7.
If the employer is able to meet its burden of producing a legitimate, nondiscriminatory reason for plaintiff's discharge, the burden of production shifts back to the plaintiff, who must show by a preponderance of the evidence that the employer's proffered explanation for the discharge is pretextual and that the employer's true motivation was discriminatory. McDonnell Douglas, 411 U.S. at 804-05; Burdine, 450 U.S. at 253, 256; Hicks, 509 U.S. at 507-08. The plaintiff may defeat a motion for summary judgment as to this prong "by either (1) discrediting the proffered reasons, either circumstantially or directly, or (2) adducing evidence, whether circumstantial or direct, that discrimination was more likely than not a motivating or determinative cause of the adverse employment action."Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994) (emphasis in original). If the plaintiff shows sufficient evidence "to discredit the defendant's proffered reasons, to survive summary judgment the plaintiff need not also come forward with additional evidence of discrimination beyond his or her prima facie case."Id.; see also Sheridan, 100 F.3d 1065-72. The plaintiff can discredit an employer's explanation by demonstrating "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence and hence infer that the employer did not act for [the asserted] nondiscriminatory reasons." Fuentes, 32 F.3d at 765 (emphasis in original).
1. Prima facie case
Plaintiff has submitted sufficient evidence from which a reasonable factfinder could decide that he has satisfied the elements of a prima facie case of race and disability discrimination. The first three prongs are clear. It is undisputed that he is a member of protected classes as he is an African American who suffers from a disability. There is also ample evidence that he was performing his job at a level that met his employer's expectations. He was described in his evaluations as "dedicated," "hard-working," "accessible," "deserving of loyalty and respect," and as "an excellent manager." (Douglass Cert., Ex. M.) Mr. Berard testified that his discharge had nothing to do with the "way that he performed or didn't perform his job duties." (Id., Ex. C, Berard Dep. at 61:19-62:6.) It is also clear that plaintiff's employment was terminated on November 15, 2000. (Muskett Cert., Ex. C.)
Defendant, though, asserts that plaintiff has not presented evidence to satisfy the fourth prong of the inquiry because "the position of Restaurant Manager of the Broadway Buffet was removed from the job compendium," meaning that plaintiff "was never replaced at all." (Def. Br. at 16.) There is evidence that Chef John Brown, who had been in charge of the back of the house, assumed control of the front of the house, the area that plaintiff had managed, through a general restructuring, (Douglass Cert., Ex. C, Berard Dep. at 41:4-20, 56:4-7), and it is undisputed that no one was named "manager" of the restaurant. However, there is also evidence that Mr. Vaillette, a healthy white male, assumed plaintiff's manager position in fact, though not in name. Mr. Vaillette received a pay raise because he "took over mgr duties" and was joined by an assistant manager whose position was requested the same day that plaintiff's position was eliminated. (Id., Ex. L; id., Ex. I.) Thus, there is a question of fact as to whether plaintiff has established the fourth prong of the prima facie case. For purposes of this motion, the evidence he has presented is sufficient to sustain his burden of showing that he was.
2. Legitimate non-discriminatory reason
Defendant has countered plaintiff's prima facie case with proof of a legitimate non-discriminatory reason for plaintiff's discharge, namely that plaintiff's position was eliminated as a cost-cutting measure.
An employer satisfies his burden of articulating a legitimate, nondiscriminatory reason for the discharge by introducing evidence which, taken as true, would permit a trier of fact to conclude that unlawful discrimination was not the reason for the discharge. Burdine, 450 U.S. at 254-56 and n. 8. The employer does not need to prove that the proffered reason was the actual motivation for its behavior as long as there is evidence from which a reasonable jury could conclude that it was. Id. at 254 n. 7; Sheridan, 100 F.3d at 1070.
Here, defendant has articulated that plaintiff's position was eliminated as a cost-cutting measure. Mr. Berard testified that Mr. Prakash approached him in September or October 2000 to discuss an altered structure at the Broadway Buffet to reduce costs by eliminating the need for a restaurant manager. (Douglass Cert., Ex. C, Berard Dep. at 22:1-25:2.) Trump Plaza, from an operations standpoint, had operated at a loss during 1999, and though the Food and Beverage Department had made a profit during 1999, defendant asserts that the "company wide effort to reduce costs" still affected the Food and Beverage Department. (Id., Ex. Q; Muskett Cert., Ex. N.) As a result, there is evidence that "the Food and Beverage Department determined that the high volume, self-service restaurants, like the Buffet, as compared to the gourmet style restaurants, did not require a manager to maintain good customer service and operate efficiently." (Id.) This is sufficient evidence to support defendant's burden of pointing to a legitimate non-discriminatory reason for the employment action for the purposes of these cross-motions for summary judgment.
The Trump Plaza 1999 financial statement shows a loss from operations of $74,992,000 and a gain from the Food and Beverage Department of $32,914,000. (Douglass Cert., Ex. Q.)
3. Evidence of pretext
Finally, this Court finds that plaintiff has raised a question of fact as to whether defendant's asserted legitimate, nondiscriminatory reason for plaintiff's discharge is pretextual because he has pointed to evidence from which a reasonable factfinder could "find the proffered legitimate reasons unworthy of belief." See Sheridan, 100 F.3d at 1072.
First, plaintiff has presented evidence which shows that Mr. Prakash, who made the decision to eliminate plaintiff's position, was aware of, and commented about, plaintiff's race and disability. At the March 2000 meeting, plaintiff testified that Mr. Prakash referred to both his race and his disability, stating that he was "big, black and threatening" and that he was "mean because he was sick." (Douglass Cert., Ex. E, Council II Dep. at 26:3-24.) He also testified that Prakash made a comment to "highlight [his] skin color" and "badgered him" about eating and using the bathroom. (Id. at 21:25-25:10; 27:11-25.)
Second, there is evidence that the Food and Beverage Department generated more income when plaintiff was employed than when he was not. When employed in 1999, the Department generated $32,914,000; when not employed in 2001, the Department generated $29,868,000. (Douglass Cert., Ex. Q.)
Third, there is evidence that Mr. Prakash turned the management duties of the Broadway Buffet over to Mr. Vaillette in all but name. There is evidence that Mr. Vaillette told a co-employee prior to plaintiff's termination that he "felt that Steven [Prakash] and Robert [McNellis] were using him to fire Chris." (Id., Ex. C, Fenderson Dep. at 158:12-22.) Mr. Vaillette testified that he took over many of plaintiff's scheduling and operational duties prior to plaintiff's discharge and that he retained them after the discharge; (id., Ex. F, Vaillette Dep. at 21:15-24:21); indeed, after plaintiff's discharge, Mr. Vaillette was given a raise because he "took over mgr duties," (id., Ex. L). There is also evidence that plaintiff's position may not have been eliminated in its entirety. Mr. Vaillette remained assistant manager of the Broadway Buffet, and was joined by another assistant manager, whose job was created due to a request filed the day that plaintiff was fired. (Id., Ex. I.)
Thus, there is evidence that calls into doubt defendant's asserted reason for plaintiff's discharge. Plaintiff has pointed to sufficient race-oriented and disability-oriented circumstances from which a reasonable factfinder could conclude that he was discharged from employment because of either his race or his disability. A reasonable factfinder could also conclude that plaintiff was fired for legitimate reasons, but at this stage, it is sufficient to recognize that there are questions of fact which preclude entry of summary judgment in favor of either party. Thus, this Court will deny both motions for summary judgment as to the NJLAD discriminatory discharge claims based on plaintiff's race and disability.
D. FMLA Entitlement claim
Plaintiff next argues that there is no question that he was denied rights under the FMLA because (1) he was entitled to twelve-weeks of leave in August 2000, but was told that he was not, and (2) in the alternative, he was entitled to thirty-five days of leave in August 2000, and was denied them when he was told that he was only eligible for 27 days of leave.
Eligible employees are entitled to up to twelve weeks of unpaid leave per year because of a serious health condition, a need to care for a close family member with a serious health condition, or a birth, adoption, or placement in foster care of a child.Hodgens v. Gen'l Dynamics Corp., 144 F.3d 151, 159 (1st Cir. 1998) (citing 29 U.S.C. § 2612(a)(1)). An employee is also entitled to intermittent leave when medically necessary, 29 U.S.C. § 2612(b), and to return after a qualified absence to the same position or to an equivalent position, 29 U.S.C. § 2614(a)(1). These prescriptive rights "set floors for employer conduct." Hodgens, 144 F.3d at 159. An employee can thus allege that an employer has violated the FMLA because he was denied the entitlements due him under the Act. 29 U.S.C. § 2615(a)(1).
29 U.S.C. § 2615(a)(1) provides:
[i]t shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise any right provided in this subchapter.
To sustain an entitlement claim under the FMLA, the plaintiff must show that:
(1) he is an eligible employee under the FMLA,
(2) defendant is an employer subject to the requirements of the FMLA,
(3) he was entitled to leave under the FMLA,
(4) he gave notice to the defendant of his intention to take FMLA leave, and
(5) the defendant denied him the benefits to which he was entitled under the FMLA.Parker v. Hahnemann, 234 F. Supp. 2d 478, 483-84 (D.N.J. 2002) (citing cases). The plaintiff need not show that the employer treated other employees more or less favorably because the claim depends on whether the employer provided its employee with the entitlements guaranteed by the FMLA, not whether the employer discriminated against the employee. See Parker, 234 F. Supp. 2d at 484 (citing Hodgens, 144 F.3d at 159).
Here, defendant has not disputed the first two factors, that plaintiff was an eligible employee or that it is an employer subject to the FMLA. Questions of fact remain as to the fourth factor, whether plaintiff provided notice of his intention to take leave in August 2000, as plaintiff testified that he asked Mr. Berard for leave in August 2000, (Douglass Cert., Ex. A, Council Aff. ¶ 7; id., Ex. E, Council II Dep. at 34:3-10), and as Mr. Berard testified that plaintiff did not ask for leave in August 2000, but instead simply inquired as to his eligibility for leave, (id., Ex. C, Berard Dep. at 66:2-14). Questions of fact also remain as to the fifth factor, whether plaintiff was denied leave as it is clear that he did not take leave in August 2000, but it is unclear whether he did not take leave because he chose not to or because Mr. Prakash was annoyed by his request and asked him to put off the leave.
The dispute on the present motion, however, centers on the third factor, whether plaintiff was eligible for leave in August 2000. If he was not eligible, he has no entitlement claim even if the questions of fact on the other prongs are resolved in his favor; if he was eligible, or if there is a question about his eligibility, then summary judgment must be denied because questions of fact remain as to his entitlement claim.
1. Eligibility for twelve weeks of leave
There is no question that plaintiff was not eligible for twelve weeks of leave in August 2000, so this Court will grant defendant's motion for summary judgment in part as to the twelve-week entitlement claim.
Defendant computes time available for leave pursuant to the "Individual Year Plan," as its "Family Leave Information Sheet" states:
The individual Leave Year Method will be used to determine the twelve (12) month period the employee is entitled to leave. Under this method, the period is measured from the time the employee's first Family Leave begins.
(Douglass Cert., Ex. R.) Plaintiff thus asserts that his leave year should be measured from April 2, 1998, the date that his first Family Leave began. (Pl. Reply at 5.) According to his calculation, he received twelve weeks of leave each year on April 2nd, meaning that he was eligible for twelve weeks of leave on April 2, 2000, and was therefore entitled to take twelve weeks of leave in August 2000.
The problem with plaintiff's computation is that 29 C.F.R. § 825.200(b)(3) provides that the leave period is computed under this method each time the employee's leave begins, as it states, in pertinent part:
(b) An employer is permitted to choose any one of the following methods for determining the "12-month period" in which the 12 weeks of leave entitlement occurs:
(1) The calendar year;
(2) Any fixed 12-month "leave year," such as a fiscal year, a year required by State law, or a year starting on an employee's "anniversary" date;
(3) The 12-month period measured forward from the date any employee's first FMLA leave begins; or,
(4) A "rolling" 12-month period measured backward from the date an employee uses any FMLA leave . . .
(c) Under methods in paragraphs (b)(1) and (b)(2) of this section an employee would be entitled to up to 12 weeks of FMLA leave at any time in the fixed 12-month period selected. An employee could, therefore, take 12 weeks of leave at the end of the year and 12 weeks at the beginning of the following year. Under the method in paragraph (b)(3) of this section, an employee would be entitled to 12 weeks of leave during the year beginning on the first date FMLA leave is taken; the next 12-month period would begin the first time FMLA leave is taken after completion of any previous 12-month period. Under the method in paragraph (b)(4) of this section, the "rolling" 12-month period, each time an employee takes FMLA leave the remaining leave entitlement would be any balance of the 12 weeks which has not been used during the immediately preceding 12 months . . .
(emphasis added). Thus, where an employer chooses to determine the twelve-month period "from the date any employee's first FMLA leave begins," as defendant has done here, the employee is entitled to 12 weeks of leave during the year that begins on the first date FMLA leave is taken. Here, therefore, plaintiff was entitled to 12 weeks of leave between April 2, 1998 and April 2, 1999. Then, the "next 12-month period would begin the first time FMLA leave is taken after completion of any previous 12-month period." 29 C.F.R. § 825.200(c). Here, the next time plaintiff took FMLA leave was December 3, 1999, (Muskett Cert., Ex. P), so his "next 12-month period" was from December 3, 1999 through December 3, 2000. Therefore, plaintiff was not eligible for twelve weeks of leave until December 2000, as he was told, and cannot sustain an entitlement claim based on defendant's statement that he was not eligible for a full leave period until December 2000. The Court will thus grant defendant's motion in part to the extent that plaintiff claims an entitlement violation based on the calculation of his twelve-week leave period.
Plaintiff argues that the Court should not consider this regulation because it was not expressly referenced in the policy. The Court finds that the regulation was encompassed by defendant's policy which tracked the language of the regulation. (See Defendant's policy stating "the period is measured from the time the employee's first Family Leave begins;" see also 29 C.F.R. § 825.200(b)(3) stating "[t]he 12-month period measured forward from the date any employee's first FMLA leave begins.") Thus, the Court will consider the regulation and its application to defendant's calculation of leave.
Plaintiff argues that this Court should not apply 29 C.F.R. § 825.200(b)(3), but should instead apply 29 C.F.R. § 825.200(b)(2) because it "most resembles" defendant's policy. This Court disagrees. Section (b)(2) applies when an employer chooses a "fixed 12-month `leave year,' such as a fiscal year, a year required by State law, or a year starting on an employee's `anniversary' date." It is clear here, though, that defendant's policy not only "most resembles" the language of section (b)(3), but includes the language of section (b)(3). Thus, section (b)(3) applies.
The Court has considered plaintiff's argument that it must apply the regulation section that is most beneficial to the employee. The regulation does provide that:
If an employer fails to select one of the options in paragraph (b) of this section for measuring the 12-month period, the option that provides the most beneficial outcome for the employee will be used . . .29 C.F.R. § 825.200(e). Here, however, option (b)(3) still applies because the employer has selected it as its option.
2. Eligibility for thirty-five days of leave
Plaintiff has presented proof that he was eligible for thirty-five days of leave in August 2000. Plaintiff used seven weeks of leave between December 3, 1999 and January 21, 2000 for his colectomy, (Muskett Cert., Ex. P), which left him with five weeks, or thirty-five days, of leave remaining in August 2000.
Plaintiff has thus presented proof of the third prong of the FMLA entitlement test, and this Court will deny summary judgment as to the claim. The Court notes, though, that plaintiff's claim is far from clear, because of the remaining prongs of the test.
First, there is a question as to whether plaintiff was in fact told that he was only eligible for 27 days of leave. Mr. Berard remembers that he asked when he would next be eligible for twelve-weeks of leave, and cannot remember if he told him the specific number of days that were then-available.
Second, there is a question about whether plaintiff actually requested thirty-five days of leave. Mr. Berard does not remember such a request, but plaintiff certified that he asked Mr. Prakash to approve leave in addition to his then-available 27 days, but that Mr. Prakash asked him to "think about putting it off" and "seemed annoyed" about his request. (Id. at ¶ 7.)
Third, there is evidence that plaintiff's surgery was not affected by his leave availability. Plaintiff has certified that he needed surgery which required a four to six week recuperation, i.e. 28 to 42 days of leave time, (id. ¶ 7), and that he thought that he could not take leave with just 27 days available because it was not enough time for even the minimum amount of recuperation, (id. at ¶ 7a). On the other hand, plaintiff has not clearly testified that he would have taken leave had he known that he had thirty-five days; instead, he has simply certified that the knowledge "may have influenced my decision to schedule the surgery before December 2000." (Douglass Cert. ¶ 7a.)
Based on these questions of fact, this Court will deny the parties' motions as to plaintiff's thirty-five day entitlement claim.
E. FMLA Retaliation Claim
Plaintiff also has asserted an FMLA retaliation claim, alleging that defendant violated the FMLA by terminating his employment because of his use of FMLA leave.
FMLA retaliation claims are based on the "proscriptive rights" of the FMLA which prevent an employer from discriminating against an employee who has taken FMLA leave. 29 U.S.C. § 2615(a)(2); 29 C.F.R. § 825.220(c). The issues in such claims are similar to those raised in cases alleging other types of employment discrimination, Hodgens, 144 F.3d at 160, so are considered under the burden-shifting framework established inMcDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-06 (1973).See Parker, 234 F. Supp. 2d at 488.
29 U.S.C. § 2615(a)(2) provides:
It shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.
29 C.F.R. § 825.220(c) provides, in part:
An employer is prohibited from discriminating against employees or prospective employees who have used FMLA leave. For example . . . employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions . . .
This burden-shifting framework was described in length supra, section II(C). For FMLA cases, the plaintiff establishes a prima facie case of retaliation by showing (1) he availed himself of a protected right under the FMLA; (2) he was adversely affected by an employment decision; and (3) there is a causal connection between the employee's protected activity and the employer's adverse employment action. See Hogdens, 144 F.3d at 161. The burden then shifts to the employer "to articulate some legitimate, nondiscriminatory reason for the employee's [termination]." U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714 (1983); McDonnell Douglas, 411 U.S. at 802. If the employer does so, the burden shifts back to the plaintiff to show that the employer's stated reason for terminating him was a pretext for terminating him as retaliation for his use of protected FMLA leave. Aikens, 460 U.S. at 715.
Here, there are questions of fact regarding plaintiff's claim that he was terminated because he took FMLA leave. Plaintiff has presented proof which a reasonable factfinder could conclude satisfies his prima facie case. First, "he availed himself of a protected right under the FMLA" by taking FMLA leave from April 3, 1998 through June 4, 1998 and from December 3, 1999 through January 21, 2000. (Muskett Cert., Exs. O, P.) Second, he was adversely affected by defendant's decision to eliminate his position and thereby terminate his employment. Third, there may be a causal connection between the employee's protected activity and the employer's adverse employment action as the employment decision was made by Mr. Prakash, who had repeatedly "badgered" plaintiff about his disability and who had learned that plaintiff would be taking another FMLA leave in December 2000. (See Douglass Cert., Ex. E, Council II Dep. at 16:4-20, 33:9-24;id., Ex. C, Berard Dep. at 22:1-25:16 (showing request for leave in August 2000 and discussion about position elimination in September or October 2000); but see id., Ex. C, Berard Dep. at 105:19-109:17 (testifying that decision to eliminate position was made prior to plaintiff's request for leave)). Based on this proof, a reasonable factfinder could conclude that Mr. Prakash terminated plaintiff's employment because he disapproved of his use of FMLA leave.
The defendant has also come forward with a legitimate, nondiscriminatory reason for eliminating plaintiff's position. As explained supra, section II(C), there is proof from which a reasonable factfinder could conclude that plaintiff's position was eliminated as a cost-cutting measure.
Finally, plaintiff has presented sufficient proof to raise a genuine question regarding whether plaintiff's position was eliminated as a pretext for retaliation based on his use of FMLA leave. There is evidence that Mr. Prakash, who made the decision to eliminate plaintiff's position, seemed "annoyed" by plaintiff's request for FMLA leave and asked him to "think about putting it off." (Douglass Cert., Ex. A, Council Aff. ¶ 7.) There is also evidence that Mr. Prakash made the elimination decision within one or two months of the time that plaintiff first made Mr. Prakash aware of his need for FMLA leave for additional surgery. (Douglass Cert., Ex. E, Council II Dep. at 16:4-20, 33:9-24; id., Ex. C, Berard Dep. at 22:1-25:16). There is also evidence that the position was not actually eliminated, but that instead, two assistant managers performed the functions previously performed by one manager and one assistant manager. (Id., Ex. F, Vaillette Dep. at 21:15-24:21; id., Ex. I.)
Therefore, because material questions of fact remain, this Court will deny both parties' motions for summary judgment as to the FMLA retaliation claim.
III. CONCLUSION
For the foregoing reasons, this Court will deny plaintiff's motion for summary judgment as to all claims and will deny defendant's motion for summary judgment as to all claims except the twelve-week FMLA entitlement claim, for which this Court will grant summary judgment in defendant's favor.
The accompanying Order is entered.
ORDER
THIS MATTER having come before the Court on the cross-motions of the parties for summary judgment, [Docket Items 13-1, 16-1]; the Court having considered the parties' submissions; for the reasons set forth in the Opinion of today's date;
IT IS this day of December, 2003, hereby
ORDERED that the motion for summary judgment of defendant Trump Plaza Hotel and Casino Resorts, [Docket Item 13-1], be, and hereby is, GRANTED IN PART as to FMLA entitlement claim based on twelve weeks of leave, and DENIED IN PART as to NJLAD hostile work environment claim, the NJLAD discriminatory discharge claim, the FMLA retaliation claim, and the FMLA entitlement claim based on thirty-five days of leave; and
IT IS FURTHER ORDERED that the cross-motion for summary judgment of plaintiff Chris Council, [Docket Item 16-1], be, and hereby is, DENIED.