Opinion
CIVIL ACTION NO. 96-1774 (JBS)
Filed: December 3, 1999
Cassandra M. Menoken, Esq., Washington, DC, Attorney for PlaintiffPro Hac Vice.
John J. Murphy, III, Esq., Stradley, Ronon, Stevens Young, LLP Cherry Hill, N.J., Attorney for Defendants/Cross-Claim Defendants Delaware Valley Business Forms, Inc. and Nicholas Bozzi John T. McNamara, Esq., Attorney for Defendant/Cross-Claimant Standard Forms, Inc.
OPINION
I. Introduction
The parties in this employment discrimination case have been at odds with each other since the spring of 1994, long before this lawsuit was initiated in mid-May of 1996. The parties have continuously disputed the claims that plaintiff has stated, both as to what claims have been alleged and what evidence exists to support those claims, several times changing their minds as to what arguments have been proposed, leading most substantially to a sixty-page opinion from this Court on September 23, 1998 and a memorandum Order on February 26, 1999, as well as a host of other orders and numerous settlement conferences.
As explained in detail in the February 26, 1999 Order, the plaintiff originally brought claims against defendants Standard Forms, Inc. ("SFI") and Delaware Valley Business Forms, Inc. ("DVBF"), as well as individual defendant Nicholas Bozzi and PEMCOR, which is no longer a defendant in the case, alleging various violations of the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq, and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq. SFI cross-claimed against DVBF and Bozzi for indemnification. After the September 23, 1998 Opinion and the February 26, 1999 Order, only four issues remained to be decided at trial: plaintiff's claims against DVBF and Bozzi based on wrongful termination under the FMLA, plaintiff's claim against DVBF for discriminatory discharge based on disability under the ADA, plaintiff's claim against SFI for failure to reinstate under the FMLA, and SFI's claim for indemnification against DVBF and Bozzi for claims arising prior to May of 1995. (02/26/99 Order at ¶ 13.)
As a result of various discussions with the parties in which this Court participated after February 26, 1999, on May 10, 1999 this Court sent the parties a letter offering the parties an opportunity to renew motions for summary judgment on various issues. In response, plaintiff has asked this Court to grant summary judgment to it on its claims under the FMLA (either against DVBF or SFI), to reverse its earlier decision granting summary judgment to DVBF on plaintiff's ADA claim for failure to accommodate and instead grant summary judgment in plaintiff's favor on that claim, and to reconsider an earlier decision denying plaintiff's motion to admit his sister, Cassandra Menoken, Esquire, pro hac vice. DVBF has filed a motion asking the Court to grant it summary judgment on plaintiff's ADA claim for discriminatory discharge. SFI has filed a motion in limine seeking to limit the evidence of damages which plaintiff may present.
Though the time for reconsideration has long past, this Court will nonetheless reconsider these motions because there has been substantial confusion among all of the parties as to the claims in the case. For the reasons expressed herein, the Court will grant some of the motions and deny some of the motions, leaving this case in the following posture: plaintiff has won his FMLA claim against SFI, and all that needs to be decided is the amount for which SFI is liable to plaintiff (which cannot go beyond plaintiff's lost wages from May 1994 to May 1995, plus interest, plus liquidated damages in an amount equal to the sum of the two previously mentioned amounts, plus attorneys fees, but which may also include equitable relief such as reinstatement), and whether DVBF and Bozzi must indemnify SFI for that amount. In the remaining proceedings, Cassandra Menoken may represent plaintiff pro hac vice, so long as she does not act as a witness for him, and thus while she cannot recover attorneys fees for any unauthorized work which she did in the past on plaintiff's behalf, she may recover for future work if otherwise authorized by law; also, the requirement that plaintiff retain local counsel will be waived due to plaintiff's financial hardship. The following discussion will elaborate upon this Court's reasoning in reaching these determinations.
II. Discussion
A. Summary Judgment Standard
A court may grant summary judgment when the materials of record "show 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). 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. See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080-81 (3d Cir. 1996). 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." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
Supreme Court decisions mandate that: "[w]hen the nonmoving party bears the burden of persuasion at trial, the moving party may meet its burden on summary judgment by showing that the nonmoving party's evidence is insufficient to carry its burden of persuasion at trial." Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-330 (3d Cir. 1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1987)). However, "the nonmoving party creates a genuine issue of material fact if it provides sufficient evidence to allow a reasonable jury to find for him at trial." Brewer, 72 F.3d at 330 (citing Anderson, 477 U.S. at 248). Once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts."Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Thus, if the non-movant's evidence is merely "colorable" or is "not significantly probative," the court may grant summary judgment.Anderson, 477 U.S. at 249-50.
B. Plaintiff's Motions
1. FMLA Claims
Plaintiff first asks this Court to grant plaintiff summary judgment on his FMLA claims against SFI, DVBF, and Bozzi. In this Court's September 23, 1998 Opinion, this Court denied summary judgment for the defendants on plaintiff's FMLA claims against them for discharge and discriminatory failure to rehire because plaintiff's twelve weeks of FMLA leave time did not expire until the end of May 1994 (09/23/98 Slip Op. at 29), after DVBF had gone out of business and SFI had begun to operate from the Moorestown facility. This Court then ordered defendants to show cause why this Court should not enter summary judgment on plaintiff's behalf on the FMLA claims. (Id. at 31, 32.) As noted in the February 26, 1999 Order, this Court agreed with defendants that summary judgment for the plaintiff would be inappropriate because there was a debate as to whether DVBF ever told SFI that plaintiff was due back to work; while plaintiff's name appeared on a handwritten list of DVBF employees, his name did not appear on the final list of DVBF employees, and the defendants debate who created the final list.
Plaintiff now asks this Court to grant summary judgment in his favor on the FMLA claims because it does not matter who created the final list — plaintiff was not on it and was not given his full twelve weeks of protection. Plaintiff contends that SFI is the successor-in-interest to DVBF and thus is responsible to him; the defendants, plaintiff says, can work out liability for the situation between themselves.
Plaintiff is seeking relief against both SFI and DVBF for discharge/failure to rehire under 29 U.S.C. § 2615(a)(1). Because § 2615(a)(1) of the FMLA states that it "shall be unlawful" for an employer to deny or attempt to deny exercise of an FMLA-protected right, § 2615(a)(1) is governed by a strict liability standard.Williams v. Shenango, Inc., 986 F. Supp. 309, 317-18 (W.D.Pa. 1997). This Court has already found that plaintiff was not afforded twelve weeks of FMLA leave. The only question is who is to be held strictly liable for that error.
In the September 23, 1998 Opinion, this Court correctly stated that plaintiff was seeking relief against SFI for failure to rehire in May 1994 (as opposed to his other FMLA claim against SFI for discriminatory discharge under 29 U.S.C. § 2615(a)(2) [Second Amended Compl. ¶ 37] in May 1996) under § 2615(a)(1) [Second Amended Compl. ¶ 36]. (09/23/98 Slip Op. at 32.) This Court also applied a § 2615(a)(1) analysis to plaintiff's claims against DVBF and Bozzi and, in fact, ordered DVBF and Bozzi to show cause why this Court should not enter judgment in plaintiff's favor on plaintiff's § 2615(a)(1) claims against them [Second Amended Compl. ¶ 33]. Twice in that same section, however, this Court referred to § 2615(a)(2) (09/23/98 Slip Op. at 25); both times were simply typographical errors, and the correct reference should have been to § 2615(a)(1). In any case, to the extent to which plaintiff may have been alleging that DVBF and Bozzi intentionally discriminated against him in violation of § 2615(a)(2) of the FMLA [Second Amended Compl. ¶ 35], that discrimination claim would be judged under the McDonnell Douglas — Burdine burden shifting test, discussed infra with regard to the ADA claims against DVBF. ( See also 09/23/98 Slip Op. at 50-52.) The ADA analysis would apply equally to any discrimination claim brought under the FMLA.
a. DVBF and Bozzi
Here, DVBF had gone out of business by the time that plaintiff was ready to return to work. Obviously, then, DVBF and Mr. Bozzi could not have fulfilled their otherwise existing obligation to place plaintiff in his old position. For that reason, this Court will deny plaintiff's motion for summary judgment on his FMLA claim against DVBF and Bozzi. Further, although DVBF and Bozzi have not cross-moved for summary judgment on this ground, it is well-recognized that the court may deny the movant's summary judgment motion and grant summary judgment against the movant if, upon the undisputed facts proffered by the movant, the opposing party (here DVBF) is entitled to judgment as a matter of law.See 10a Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Federal Practice and Procedure, § 2720 (1998). See also Banks v. Lackawanna County Comm'rs, 931 F. Supp. 259, 363 n. 7 (M.D.Pa. 1996); Weil Ceramics Glass, Inc. v. Dash, 618 F. Supp. 700, 716 (D.N.J. 1985), rev'd in part, vacated in part on other grounds, 878 F.2d 659 (3d Cir. 1989);DeFelice v. Philadelphia Bd. of Educ., 306 F. Supp. 1345 (E.D.Pa. 1969),aff'd per curiam, 432 F.3d 1358 (3d Cir. 1970).
Here, plaintiff has not been officially given a notice of motion for summary judgment by DVBF and Bozzi on this point, but the facts relevant to the § 2615(a)(1) claim as it stands against DVBF and Bozzi — that plaintiff was not given his full twelve weeks of FMLA protected leave and that DVBF could not itself provide plaintiff with the benefit of that leave because it went out of business — are clear and the law of the matter has been fully briefed and has been fully considered both by the parties and by the Court. It cannot be said, despite the lack of official notice of motion, that entry of summary judgment for DVBF and Bozzi on this point would come as a complete surprise to plaintiff. In fact, this Court is giving plaintiff the specific relief for which he has asked; plaintiff argued that this Court need only find that either DVBF or SFI is liable, not both, and, as explained below, this Court finds that SFI is liable under § 2615(a)(1), and that DVBF and Bozzi are not. Thus, this Court will enter summary judgment for defendants DVBF and Bozzi on the FMLA claim.
b. SFI
As this Court stated in the February 26, 1999 Order when discussing plaintiff's ADA claim against SFI for discriminatory failure to reinstate, there is no evidence in the Asset Purchase Agreement or otherwise that SFI was required to hire all of DVBF's employees. Thus, if plaintiff had been actively working for DVBF at the time of the sale of assets to SFI and SFI had chosen not to hire him for some nondiscriminatory reason, plaintiff would have no cause of action against SFI because SFI was not bound to hire him. However, that SFI was not required to hire all of DVBF's employees under the Asset Purchase Agreement does not mean that SFI is not strictly liable to plaintiff under § 2615(a)(2) as DVBF's successor-in-interest.
The fact that SFI was not required to hire all of DVBF's employees would be more relevant to rebutting a charge of discriminatory failure to reinstate under § 2615(a)(2) of the FMLA or under the ADA, 42 U.S.C. § 12112, for a charge of discrimination (as opposed to a strict liability offense) under either the FMLA or the ADA would be governed by the McDonnell Douglas — Burdine test. As explained fully in this Court's September 23, 1998 Opinion at pages 50-52, because SFI was not legally bound to hire all of DVBF's employees and had filled all of its positions at the time that it received word that plaintiff sought to be reinstated, plaintiff could not establish a prima facie case of discrimination under § 12112 of the ADA. Though plaintiff did not allege a claim against SFI for discriminatory failure to reinstate under § 2615(a)(2), any such claim would likewise fail under the McDonnell Douglas — Burdine test.
As this Court discussed on page 13 in the September 23, 1998 Slip Opinion, and as Judge Politan discussed in Vanderhoof v. Life Extension Institute, 988 F. Supp. 507, 512 (D.N.J. 1997), the FMLA defines the term "employer" to include "any successor-in-interest of any employer. . . ." 29 U.S.C. § 2611 (4)(A)(ii)(II). The FMLA itself provides no explanation of the term "successor-in-interest"; however, the Department of Labor has issued regulations which address its meaning. 29 C.F.R. § 825.107. While the regulations are not binding, they do provide a list of eight factors (none of which is dispositive) which courts should weigh in determining if an employer is a successor-in-interest:
The Court discussed successor-in-interest liability in the context of plaintiff's argument that PEMCOR was liable to him as a successor-in-interest to DVBF.
(1) substantial continuity of the same business operations;
(2) use of the same plant;
(3) continuity of the work force;
(4) similarity of jobs and working conditions;
(5) similarity of supervisory personnel;
(6) similarity in machinery, equipment and production methods;
(7) similarity of products or services; and
(8) the ability of the predecessor to provide relief.
29 C.F.R. § 825.107. See also Vanderhoof, 988 F. Supp. at 513 (citing Rhoads v. FDIC, 956 F. Supp. 1239, 1252-54 (D.Md. 1997)).
In the instant case, all eight factors indicate that SFI is DVBF's successor-in-interest. SFI assumed DVBF's lease rights to the Moorestown warehouse and began selling business forms to DVBF's former customers from that warehouse (see 09/23/98 Slip Op. at 6), using the same machinery and equipment. SFI's supervisory personnel included Rich Wilcynski and Lorrain Herman, supervisors at DVBF. DVBF, the predecessor, could not provide relief in terms of a job because it was no longer in business. Finally, SFI substantially continued DVBF's workforce. Though, as in Vanderhoof, DVBF's employees technically ceased to be employees of EHG after the acquisition by SFI, SFI had intended to hire DVBF's employees and in fact did immediately hire the vast majority of DVBF's workers after it took over (09/23/98 Slip Op. at 7). Therefore, SFI is DVBF's successor-in-interest.
See Vanderhoof , 988 F. Supp. at 513 (referring to the argument that the work force did not continue because the employees ceased to work for the predecessor company when it went out of business as "tenuous" in light of the fact that all of the workers were rehired by the successor). If DVBF still owed plaintiff FMLA protection at the time that DVBF sold its assets to SFI and if SFI is DVBF's successor-in-interest, then SFI is legally responsible for DVBF's unfulfilled obligation which DVBF could no longer itself fulfill. That SFI hired most of DVBF's Moorestown workers, even though it did not have to, is only one of the many factors that indicates that SFI is successor-in-interest to DVBF. Compare with id .
Because SFI is DVBF's successor-in-interest, and because plaintiff's FMLA leave with DVBF had not expired when DVBF sold its assets, for the purposes of § 2615(a)(1), SFI was bound to fulfill DVBF's duty to rehire plaintiff if he was ready to return to work before the end of May.
The Court recognizes, as it stated on page 55 of the September 23, 1998 Slip Opinion, that Section 2.2 of the Asset Purchase Agreement between SFI and DVBF states that "SFI has not assumed any liabilities of DVBF for "violations of labor or employment laws or regulations" by DVBF prior to the date of the April 18, 1994 closing. Additionally, the Court recognizes that Section 8.2 of the Asset Purchase Agreement states that DVBF and its shareholders would indemnify SFI for damages, expenses, liabilities, etc. arising from "any liabilities or obligations of the shareholders or company to employees or former employees of the shareholders or companies. . . ." While these provisions affect SFI's claim for indemnification by DVBF, they have no bearing on SFI's liability to plaintiff because while a party may contract with another for indemnification if held responsible to a third party, that party may not contract away a third party's right to recover damages for injury.
SFI argues that should not be held liable both because it did not receive plaintiff's request to be rehired from Bozzi until the beginning of June 1994 and because DVBF left plaintiff's name off of the final employee list upon which SFI based its decisions as to whom to hire after the asset purchase. However, besides the fact that it is far from established that it was DVBF who left plaintiff's name off of the list, employers are liable for even unintentional violations of § 2615(a)(1). While a court may consider an employer's good faith in failing to comply with the FMLA when assessing damages, see 29 U.S.C. § 2617(a)(1)(A)(iii), good faith is not a defense to liability under § 2615(a)(1); "even unintentional violators are still liable. . . ." Williams v. Shenango, 986 F. Supp. at 318.
As discussed infra , § 2617 of the FMLA provides that an employer who violates § 2615(a)(1)(A) shall be liable to the employee for lost wages and interest, as well as an amount equal to the sum of lost wages and interest as liquidated damages. However, that same provision provides the court may choose not to hold the employer liable for paying liquidated damages if the court finds that the employer acted in good faith.
Because this Court cannot consider SFI's alleged good faith in determining strict liability under 29 U.S.C. § 2615(a)(1), this Court will grant summary judgment to the plaintiff on plaintiff's claim against SFI for failure to rehire under § 2615(a)(1) of the FMLA.
This Court notes that SFI's good faith, if proven at trial, affects the amount of damages available to plaintiff under the FMLA. Moreover, SFI's allegation that it acted in good faith because it was DVBF who left plaintiff's name off of the final list could, if proven, lead to indemnification of the damages by DVBF to SFI. In the September 23, 1998 Opinion, this Court granted partial summary judgment to SFI on its claim for indemnification by DVBF, holding that DVBF must pay SFI's costs of defending claims arising prior to May 1995. Remaining in the case, however, is SFI's claim for indemnification against DVBF and Bozzi for any damages which SFI might be ordered to pay plaintiff on claims arising prior to May of 1995. ( See February 26, 1999 Order at ¶ 13(d).) Though this Court is holding SFI liable for its own violation of 29 U.S.C. § 2615(a)(1) in late May of 1994, rather than for any violation of labor laws which DVBF committed prior to April 18, 1994 (thus making Section 2.2 of the Asset Purchase Agreement, discussed supra at note 5, inapplicable), DVBF could still be liable for indemnifying SFI for the amount for which SFI is liable to plaintiff, by force of Section 8.2 of the Asset Purchase Agreement, discussed supra at note 5. Section 8.2 would hold DVBF liable for indemnifying the amount SFI is required to pay plaintiff if the amount is "incurred in connection with or arising out of or resulting from . . . (4) any liabilities or obligations of the shareholders or [DVBF] to employees or former employees of the shareholders or companies." If SFI convinces the finder of fact at trial that DVBF left plaintiff's name off of the final, typed list of DVBF employees and that SFI would have hired plaintiff if his name had been on the final, typed employment list, thus avoiding SFI's now-existing duty to pay damages to plaintiff for violation of 29 U.S.C. § 2615(a)(1), then DVBF will be responsible to pay SFI for the amount for which SFI is responsible to pay plaintiff. This dispute about who left plaintiff's name off of the final, typed list, however, has no bearing on SFI's liability to plaintiff, but rather is a battle that must be fought only between SFI and DVBF/Bozzi.
2. ADA Claim
Second, plaintiff asks this Court to grant summary judgment to him on his claim against DVBF under 42 U.S.C. § 12112(b)(5)(A) for failure to accommodate under the ADA, arguing that DVBF violated the ADA by failing to reasonably accommodate plaintiff's physical limitations due to his brain injury by giving him more than the twelve weeks of leave required by the FMLA. This Court squarely addressed this issue in the September 23, 1998 Opinion, granting summary judgment to DVBF on this claim because DVBF's duty to accommodate had not yet arisen because plaintiff had not requested accommodations. (09/23/98 Slip Op. at 47.) As this Court explained in that Opinion, numerous circuit and district courts have held that an employee does have the duty to inform his or her employer of the need for accommodation. (Id. at 47-48.) This duty goes beyond simply making an employer aware of an employee's disability, but rather requires an employee to make his or her employer aware of the employee's specific limitations. (Id. at 48. This Court found that defendant was not aware of the full extent of plaintiff's limitations, that plaintiff was not even cleared to come back to work until May 16, 1994, and that plaintiff never even discussed the need for accommodations with his doctor, much less with DVBF. This Court concluded that plaintiff had not sufficiently made DVBF aware of the need for accommodation and thus granted summary judgment to DVBF.
This includes the Fifth, Seventh and Eighth Circuits, as well as the Northern District of California, the Northern District of Illinois, and the Southern District of Georgia. (09/23/98 Slip Op. at 47-48.)
This Court specifically relied upon the opinion in Taylor v. Principal Financial Group, Inc . , 93 F.3d 155 (5th Cir. 1996), in which the Fifth Circuit noted that the ADA requires accommodation of limitations, not disabilities per se . Id . at 165.
Plaintiff now argues that this Court should reverse its earlier decision granting summary judgment to DVBF on plaintiff's claim of failure to accommodate under the ADA and instead grant summary judgment to plaintiff on that same claim because "it is clear that employees are not required to use `magic words' when requesting accommodation. . . ." (Pl.'s Br. Supp. Mtn. Partial Summ. J. at 5.) In support of this assertion that no "magic words" are required, plaintiff cites to Corbett v. National Products Co, No. 94-2652, 1995 WL 133614 (E.D.Pa. March 27, 1995), and Schmidt v. Safeway, Inc., 864 F. Supp. 991 (D.Or. 1994). Both cases, however, are distinguishable.
As the District of Maine explained in Watkins v. J S Oil Co., Inc., 977 F. Supp. 520 (D. Maine 1997), in both Corbett and Schmidt, the effects of the plaintiffs' disabilities (alcoholism) were likely to be eradicated by successful completion of treatment programs for which leaves "of definite and limited duration" were required. Id. at 526. Though the plaintiffs in both Corbett and Schmidt did not use the "magic words" of "I need leave to attend this treatment program as an ADA accommodation," both plaintiffs made their employers aware that they were going to treatment for specific amounts of time because of the effects of their disabilities on their lives. The district court in Watkins distinguished Corbett and Schmidt by finding that the Watkins plaintiff had essentially demanded "indefinite leave," rather than a specific accommodation which would not cause an undue hardship on the employer, because the plaintiff failed to "provide his employer with any information regarding his ability to return." Id.
Likewise, in the instant case, until the day in May 1994 when plaintiff Menoken indicated that he was ready to return to work, plaintiff never made DVBF aware that he would need more than twelve weeks of leave in order to overcome his limitations. To the contrary, between early January 1994, when DVBF became aware that plaintiff had been injured, at which time it was unclear when or even whether plaintiff would be able to return to work (Bozzi Decl. ¶ 5), and May 1994, when plaintiff's vocational specialist called Lorrain Herman to arrange for Menoken's return to work (G. Menoken Decl. ¶ 21), DVBF's only contact with plaintiff concerned discussions about medical benefits and vacation pay. According to the evidence before this Court, never once during that time did plaintiff ever make DVBF aware that he would need more than twelve weeks of leave or that he had specific limitations requiring accommodation.
This Court thus reaffirms its earlier ruling that DVBF's duty to accommodate never arose because plaintiff did not request an accommodation. Plaintiff's motion for summary judgment on its claim against DVBF on its claim for failure to accommodate under 42 U.S.C. § 12112(b)(5)(A) will be denied.
3. Renewed Motion for Pro Hac Vice Admission of Cassandra Menoken, Esq.
SFI, in its brief in opposition to plaintiff's motions, and plaintiff, in his reply brief in support of his motions, both devote some time to discussing whether SFI is liable for failure to accommodate. However, while the Second Amended Complaint alleges that SFI violated 42 U.S.C. § 12112 "in its failure to reinstate Plaintiff upon learning of his status as a former employee of DVBF" [Second Amended Compl. ¶ 41], the Second Amended Complaint does not allege a claim against SFI for failure to accommodate. Rather, in addition to plaintiff's claim against SFI for retaliatory discharge based on events in May of 1996 (on which this Court granted SFI summary judgment in the September 23, 1998 Opinion), plaintiff charged SFI with discriminatory failure to reinstate under § 12112. This Court addressed that claim and found that plaintiff could not establish a prima facie case of discrimination under the McDonnell Douglas — Burdine test. (09/23/98 Slip Op. at 50-51.) To any extent to which plaintiff might have been attempting to allege a claim against SFI for failure to accommodate him as DVBF's successor-in-interest under 42 U.S.C. § 12112(b)(5)(A), SFI still would have been entitled to summary judgment because plaintiff did not request accommodations for specific limitations from either DVBF or SFI.
On September 29, 1997, Magistrate Judge Robert B. Kugler entered an order denying a motion to admit plaintiff's sister, Cassandra Menoken, Esquire, pro hac vice pursuant to L. Civ.R. 101.1(c). Though this Court mistakenly signed a pro hac vice admission Order on October 1, 1997 because this Court was uninformed that it was actually an appeal of Judge Kugler's Order, this Court vacated the October 1, 1997 Order on October 3, 1997, and upheld Judge Kugler's Order on appeal in an October 23, 1997 Memorandum Order.
In his September 29, 1997 Order, Judge Kugler determined that Ms. Menoken is prohibited from acting as plaintiff's counsel under Rule 3.7(a) of the New Jersey Rules of Professional Conduct (which is applicable through L. Civ.R. 103.1(a)) because she is, by plaintiff's own admission, a necessary witness. This Court upheld those determinations in the October 23, 1997 Memorandum Order and additionally noted that even if the Court waived Local Civil Rule 103.1(a) and admitted Ms. Menoken to the New Jersey bar pro hac vice, she would be disqualified as counsel under RPC 3.7(a).
Plaintiff now seeks, yet again, to have Ms. Menoken admitted to the New Jersey bar pro hac vice, arguing that she is not a necessary witness because her testimony is not likely to be crucial to any material issue of fact raised in this matter. SFI has commented that it has
become clear, that the charade of Mr. Menoken [sic] pro se status in this matter should be put to an end. While plaintiff continues to submit all papers to this court as his status of a pro se litigant, it is clear that it is Cassandra Menoken and not her brother who is preparing the arguments and briefs submitted to this court. Nonetheless, it is continuously argued that Mr. Menoken is being taken advantage of by "two seasoned counsel". It is for this reason that SFI has elected not to oppose Cassandra Menoken's motion seeking reconsideration of the court's prior order denying her admission, pro hac vice, despite the fact that she had previously been identified as a witness in those proceedings.
(SFI Reply Br. Supp. Mtn. Limine at 2-3.)
This Court is prepared at this time to grant plaintiff's motion for reconsideration and admit Cassandra Menoken pro hac vice upon several important conditions. In doing so, this Court notes that it is waiving the L. Civ.R. 101.1(c) local counsel requirement because to fail to do so would work a hardship on plaintiff who appears to be unable to retain competent counsel. However, having admitted Ms. Menoken to the New Jersey bar for the purposes of this case, this Court cannot waive Ms. Menoken's duty subject to New Jersey's Rules of Professional Conduct, including RPC 3.7(a). RPC 3.7(a) provides in relevant part that a lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.
RPC 3.7(a). Here, Ms. Menoken has sworn that she was only a necessary witness (one who has "crucial information . . . which must be divulged," see Universal Athletic Sales Co. v. American Gym, Recreational Athletic Equip. Corp., Inc., 546 F.2d 530, 531 n. 21 (3d Cir. 1976)) to facts which the defendants do not contest, and thus she is no longer a necessary witness. (C. Menoken Decl. ¶¶ 15-16.) This Court accepts Ms. Menoken's representations, but additionally notes that because she is bound by RPC 3.7(a), she is prohibited from acting as a witness for plaintiff in any further proceedings, except as to uncontested issues and disputes regarding the value of legal services.
Therefore, from today's date, Cassandra Menoken will therefore be admitted pro hac vice, and the accompanying Order sets forth her obligations in greater detail.
Because Cassandra Menoken was not admitted pro hac vice prior to this time, and because any work she may have done prior to this time would violate New Jersey law and the local rules and the orders of this Court prohibiting the unauthorized practice of law, plaintiff cannot recover attorney's fees for work Cassandra Menoken may have done up until this time. He may only recover reasonable attorney's fees for work done by attorneys who were authorized to practice law in this jurisdiction, not for work that he himself did or that persons not authorized to practice law in this jurisdiction might have done.
C. DVBF's Motion for Partial Summary Judgment
DVBF has moved this Court for partial summary judgment in its favor on plaintiff's claim against DVBF for discriminatory discharge under § 12112(b)(1) of the ADA. In the September 23, 1998 Opinion, this Court denied summary judgment for DVBF on this issue only because DVBF had not really addressed the issue. While DVBF had asked the Court for summary judgment on all of the claims against it, DVBF did not specifically respond to the plaintiff's ADA discriminatory discharge claim, and thus this Court was constrained to find that DVBF had given no legitimate, nondiscriminatory reason for the adverse action taken against plaintiff in April of 1994 (leaving his name off of the list). Now, DVBF asks the Court to revisit this issue, providing the Court with reasons why plaintiff's ADA discriminatory discharge claim cannot stand. More specifically, DVBF argues that while it is unclear whether or not DVBF left plaintiff's name off of a final employee list, the evidence is clear that it did not fire him.
Though the time for reconsideration, again, has long past, it would be unfair for this Court to adjudicate plaintiff's late motions for reconsideration while simultaneously refusing to consider defendants' late motions for reconsideration. Upon review, this Court finds that DVBF is correct that summary judgment must be granted in its favor.
As explained in the September 23, 1998 Opinion, ADA discriminatory discharge claims are analyzed under the McDonnell Douglas — Burdine shifting burdens framework. (See 09/23/98 Slip Op. at 44-45 (citing Olson v. General Elec. Astrospace, 101 F.3d 947 (3d Cir. 1996).) Under this framework, the plaintiff must make out a prima facie case, showing that plaintiff was in a protected category, that an adverse employment action was taken, and causality. (09/23/99 Slip Op. at 45.) If plaintiff makes out a prima facie case, the defendant must offer a legitimate, nondiscriminatory reason for the adverse action, giving rise to plaintiff's burden to show that the proffered reason is a pretext for discrimination. (Id.) It is now clear to the Court, upon another look at the entire factual record before the Court, that plaintiff cannot sustain his burdens under this test.
In the September 23, 1998 Opinion, this Court stated that DVBF did not dispute that plaintiff was in a protected category because he was disabled or that the adverse employment decision occurred. (Id.) This Court then found that a jury could find causation because it was undisputed that DVBF was aware of plaintiff's injury and yet kept him off of the list. (Id.) Because DVBF did not specifically address the ADA discriminatory discharge claim and thus did "not even attempt to meet its burden" of coming forward with a legitimate, nondiscriminatory reason for having "effectively fired" plaintiff, this Court denied summary judgment for DVBF on this ground. (Id. at 45-46.)
DVBF has now addressed the ADA discriminatory discharge claim. Upon re-review of the record in light of DVBF's recent arguments to the Court, as well as in light of other rulings this Court has made in the instant opinion, this Court has determined that it erred when it stated that a reasonable factfinder could conclude that DVBF took an adverse employment action against plaintiff. It is now clear that regardless of whether it was DVBF or SFI which typed up the final employment list without plaintiff's name, plaintiff was a DVBF employee right up until the day that DVBF went out of business. Though a jury could find that DVBF is liable to SFI for indemnification if it finds that DVBF did not make SFI aware of plaintiff's status, plaintiff was a DVBF employee up until the end. Several witnesses for DVBF, including Nicholas Bozzi, James Gowing, and Lorraine Herman all stated that DVBF kept plaintiff's job open until the time that DVBF went out of business with the asset sale. (Bozzi Suppl. Decl. ¶ 2 ("DVBF continued to hold Menoken's position open and did not otherwise seek to fill his position from the time it learned of his injury in January, 1994 through the date of the sale of DVBF's assets to SFI on April 18, 1994"); Gowing Decl. ¶¶ 3-4, 7 ("At no time up to and including the time of closing did DVBF ever fire or otherwise discharge Menoken."); Herman Decl. ¶ 2-5 ("DVBF continued to hold Menoken's position open in the warehouse through the date of the closing with SFI on April 18, 1994. At no time did DVBF ever fire Menoken from his position.").) Plaintiff's employment with DVBF ended the same way that all other DVBF employees' employment ended: with the signing of the Asset Purchase Agreement. Because SFI was not legally bound to hire any DVBF employees, the fact that other employees were ultimately hired by SFI but that plaintiff was not, does not mean that plaintiff was fired even if DVBF failed to give SFI notice of plaintiff's status as a DVBF employee at the time of the sale.
Other than conjecture and speculation, plaintiff has no evidence to contradict the evidence that DVBF did not fire him. Moreover, even if this Court could say that plaintiff made out a prima facie case, it is also clear that DVBF has come forward with a legitimate, nondiscriminatory explanation for its behavior: DVBF did not believe that it had fired plaintiff, but, at the most, made a mistake when it accidentally left plaintiff's name off of the final, typed list when it went out of business. Plaintiff has no evidence from which a reasonable factfinder could find that this reason (that this was an accident) is pretextual. Therefore, this Court will now grant summary judgment to DVBF on plaintiff's claim of discriminatory discharge under 42 U.S.C. § 12112(b)(1).
Section 12112(b)(1) is neither a strict liability cause of action nor a disparate impact cause of action; there is no violation of it in the absence of intentional discrimination. Though the McDonnell Douglas — Burdine framework is designed for cases in which there is not direct evidence of discrimination, the ultimate question to be determined is still whether the employer intended to discriminate when it took a certain action. Here, DVBF representatives have signed sworn statements that they did not fire plaintiff, but rather kept his job open. Additionally, the evidence of record indicates that DVBF acted under the belief that they had gone beyond the leave required by the FMLA by keeping plaintiff's job open until April 18, 1994 because DVBF believed that plaintiff's FMLA leave ended on March 31, 1994. Though DVBF is incorrect that the FMLA leave period ended on March 31, 1994, this is certainly further evidence of a legitimate, nondiscriminatory reason for the adverse employment action: DVBF accidentally caused the adverse employment action to occur when it miscalculated plaintiff's FMLA leave time. After the close of discovery and countless dealings between the parties on these issues, plaintiff ultimately has come forward with no evidence that this is pretextual. In short, plaintiff has come forward with no evidence of discriminatory intent.
C. SFI's Motion in Limine
SFI has filed a motion in limine asking this Court to preclude evidence of damages by plaintiff in excess of the statutory limits of damages under the FMLA and the ADA. As no ADA claims remain in the case, this Court need not address SFI's argument that damages for violations of 42 U.S.C. § 12112 et seq. are limited to $50,000. This Court need only address the appropriate cap on damages for violations of 29 U.S.C. § 2615(a)(1).
The FMLA provides that an employer who violates the Act may be subject to the following damages:
(I) any wages, salary, employment benefits, or other compensation denied or lost to such employee by reason of the violation; or
(II) in a case in which wages, salary, employment benefits, or other compensation have not been denied or lost to the employee, any actual monetary losses sustained by the employee as a direct result of the violation, such as the cost of providing care, up to a sum equal to 12 weeks of wages or salary for the employee.29 U.S.C. § 2617(a)(1)(A). In addition to those damages, the employer is liable for "the interest on the amount described [above] calculated at the prevailing rate" and for liquidated damages in an amount equal to the sum of the damages plus the interest. Id. The Court may, if it so chooses, reduce the amount of liability to just the damages and the interest if it finds that the employer acted in good faith and had reasonable ground to believe that its conduct was not in violation of the statute. Id. at § 2617(a)(1)(A)(iii). Additionally, the Court may order other appropriate equitable relief, such as employment, reinstatement, or promotion. Id. at § 2617(a)(1)(B).
Though plaintiff sought to recover amounts beyond simple damages and liquidated damages under his ADA claims, such as the cost of finding another job or relocation expenses, or general or consequential damages, he has noted that he has never expressed an intention to seek anything other than lost wages and liquidated damages in connection with his FMLA claim. Plaintiff's decision is in accordance with the law, for plaintiff would not be entitled under § 2617(a)(1)(A)(I), supra, to recover such out-of-pocket expenses in any case. See, e.g., Nero v. Industrial Molding Corp., 167 F.3d 921, 930 (5th Cir. 1999) (recovery is limited to losses "indicative of a quid pro quo relationship between an employer and an employee"); Dawson v. Leewood Nursing Home, Inc., 14 F. Supp.2d 828, 833 (E.D.Va. 1998) ("other compensation" does not include medical damage caused by the stress of an FMLA violation); Lloyd v. Wyoming Valley Health Care System, 994 F. Supp. 288, 290-91 (M.D.Pa. 1998) ("other compensation" involves some sort of quid pro quo arrangement with employer).
This Court holds that plaintiff is not entitled to recover more than, at the outside, one year's worth of his yearly salary, plus interest, and liquidated damages of an amount equal to one year's salary plus interest. That, in addition to equitable relief such as reinstatement (for which plaintiff asked in his prayer for relief), if this Court so chooses, and attorneys fees and costs, if they have accrued, is the maximum amount which he can recover for SFI's violation of the FMLA. 29 U.S.C. § 2617(a)(1)(B) (3).
This Court notes that in the settlement offer letter which plaintiff attached as Exhibit A to his brief in opposition to the defendants' motions and to which both plaintiff and SFI have referred in their briefs, plaintiff indicated that he was seeking damages during the last five years. (As both parties rely on this exhibit, this Court assumes that they have waived Fed.R.Evid. 408 for this purpose; otherwise, that rule would preclude mention of positions taken during settlement negotiations with exceptions not here relevant.) On the facts of this case, plaintiff is not entitled to recover for such a broad scope of time. Here, SFI's violation of 29 U.S.C. § 2615(a)(1) occurred in late May of 1994. Throughout the following year, SFI made offers of employment to plaintiff, conditioned upon a release of claims against SFI. (SFI Br. Supp. Summ. J. Ex. K.) In May of 1995, SFI made an offer of employment that was not conditioned upon a release of claims; plaintiff accepted that offer and began to work for SFI on May 30, 1995. As of May 30, 1995, when plaintiff began to be paid by SFI, SFI's liability for lost wages from the failure to reinstate in May of 1994 ended. That plaintiff lost his job with SFI on May 10, 1996 does not mean that SFI became liable once again for lost wages from the FMLA violation; to hold otherwise would be to punish SFI despite the fact that this Court held in the September 23, 1998 Opinion that plaintiff lacked evidence to support his claim for retaliatory discharge in May of 1996. Therefore, plaintiff would be limited to recovering lost wages from late May of 1994, when he sought to be reinstated, until May 30, 1995, when he began to be paid by SFI. Of course, plaintiff would be entitled to recover interest on those lost wages.
Therefore, SFI's motion in limine will be granted and plaintiff shall be precluded from introducing evidence at trial "beyond his past lost wages" for the year between May of 1994 and May of 1995, as well as such evidence as is relevant to his claim for liquidated damages for that period (not exceeding one year's salary plus interest) arising from SFI's allegedly deliberate act in violation of the FMLA.
III. Conclusion
As a result of this Opinion, this Court will issue an order which does the following. First, this Court will grant plaintiff's motion for summary judgment for liability against defendant SFI under 29 U.S.C. § 2615(a)(1), the amount of damages to be determined at trial. Second, this Court will deny plaintiff's motions for summary judgment against defendants DVBF and Bozzi under 29 U.S.C. § 2615(a)(1) (2) and enter summary judgment for DVBF and Bozzi on those claims. Third, this Court will deny plaintiff's motion for summary judgment on his ADA claim for failure to accommodate against defendant DVBF, and the Court's prior grant of summary judgment for DVBF on this ground stands. Fourth, this Court will grant plaintiff's motion to admit Cassandra Menoken, Esquire pro hac vice, provided of course that she is subject to the local rules, is ineligible for any fee for services performed before today's date, cannot appear as a witness for plaintiff, and must abide by the provisions stated in the accompanying Order. Fifth, this Court will grant defendant DVBF's motion for summary judgment on plaintiff's ADA claim for discriminatory discharge. Sixth, this Court will dismiss as moot that aspect of defendant SFI's motion in limine which asks the Court to limit the evidence of damages available for an ADA violation, but will grant SFI's motion in limine to the extent to which it asks this Court to limit evidence for liability for FMLA violations to lost wages between May 1994 and May 1995 and interest, provided that plaintiff may still be able to recover liquidated damages, equitable relief such as reinstatement, and attorneys fees. Only two issues remain to be decided in this case: the amount for which SFI is liable to plaintiff under the FMLA (which cannot go beyond the cap explained above) and whether DVBF and Bozzi must indemnify SFI for any part of that amount. The accompanying Order is entered.
ORDER
This matter having come before the Court upon plaintiff's motions for summary judgment on his claims against defendant Standard Forms, Inc. ("SFI") under 29 U.S.C. § 2615(a)(1), for summary judgment on his claims against defendants Delaware Valley Business Forms ("DVBF") and Nicholas Bozzi under 29 U.S.C. § 2615(a)(1) (2), for summary judgment on his claim against DVBF under 42 U.S.C. § 12112(b)(5)(A), and for an order admitting Cassandra Menoken, Esquire, pro hac vice; upon defendant DVBF's motion for summary judgment on plaintiff's claim against DVBF under 42 U.S.C. § 12112(b)(1); and upon defendant SFI's motion in limine precluding evidence of damages beyond the statutory limit of damages; and the Court having considered the parties' submissions; and for the reasons expressed in an Opinion of today's date;
IT IS this day of December 1999 hereby
ORDERED that plaintiff's motion for summary judgment on his claims against defendant Standard Forms, Inc. ("SFI") under 29 U.S.C. § 2615(a)(1) be, and hereby is, GRANTED; and it is
ORDERED that plaintiff's motion for summary judgment on his claims against defendants Delaware Valley Business Forms ("DVBF") and Nicholas Bozzi under 29 U.S.C. § 2615(a)(1)(2) be, and hereby is, DENIED; and it is
ORDERED that plaintiff's motion to admit Cassandra Menoken, Esquire,pro hac vice be, and hereby is, GRANTED; and Cassandra Menoken, Esq., a member of the bar of the District of Columbia, is permitted to appearpro hac vice in the above-captioned matter pursuant to L. Civ.R. 101.1(c), United States District Court for the District of New Jersey and the requirement for local counsel is hereby waived due to plaintiff's hardship; and Cassandra Menoken, Esq., shall pay the annual fee to the New Jersey Lawyers' Fund for Client Protection pursuant to L. Civ.R. 101.1(c)(2) in accordance with New Jersey Court Rule 1:28-2(a) within twenty (20) days from the date of the entry of this order; and Cassandra Menoken, Esq., shall be bound by the Local Civil and Criminal Rules of the United States District Court for the District of New Jersey, including, but not limited to the provisions of L. Civ.R. 103.1(a),Judicial Ethics and Professional Responsibility, and L. Civ.R. 104.1,Discipline of Attorneys; and Cassandra Menoken, Esq., shall be precluded from testifying as a witness at the trial of this case in which she is trial counsel; and Cassandra Menoken, Esq. shall be deemed to have agreed to take no fee in any tort case in excess of the New Jersey State Court Contingency Fee Rule, Rule 1:21-7, as amended, and shall be eligible for no fee for services heretofore performed because any such services constitute the unauthorized practice of law in this jurisdiction; and it is
ORDERED that defendant DVBF's motion for summary judgment on plaintiff's claim against DVBF under 42 U.S.C. § 12112(b)(1) be, and hereby is, GRANTED; and it is
ORDERED that defendant SFI's motion in limine precluding evidence of damages beyond the statutory limit of damages be, and hereby is,GRANTED, and plaintiff is precluded from offering evidence of damages beyond one year's lost salary from May 1994 to May 1995, plus interest and attorneys' fees and costs, provided that he may also seek equitable relief such as reinstatement.