State News : New Jersey

Colleen Pizzo worked as a custodian for the Lindenwold Board of Education in Camden County, New Jersey.  She went out of work beginning June 19, 2012 for depression.  She filed the formal FMLA request on June 26, 2012.  The Board approved the leave beginning June 19, 2012.  While she was out, Pizzo requested an extension of her FMLA leave until September 10, 2012.

The Board policy stated that an employee’s twelve-month FMLA cycle begins “after the request for leave.”  However, in actual practice, the Board used a method measuring FMLA forward from the date an employee actually began leave. In this case, the difference was about seven days between the date Pizzo left work and the date she requested FMLA leave. The Board advised Pizzo that her 12 weeks of FMLA leave would expire on September 10, 2012.  The Board also advised Pizzo that she used up all sick, vacation and personal leave time as of August 20, 2012.

Pizzo returned to work but continued to miss work sporadically due to her depression.  She missed five days of work in December 2012 and January 2013 combined.  She missed three days of work in February 2013.  The Board did not terminate Pizzo for these additional absences.  However, after Pizzo accumulated eight more absences in March 2013, the Board terminated her employment on March 28, 2013.  Before the termination occurred, Pizzo submitted a request for a “sick bank” for “work-related stress.” The Board denied her sick bank request (where employees donate their unused paid sick days to another employee) due to past abuse of attendance over the years. 

The circumstances regarding termination are important.  Pizzo called out sick on March 21, 2012 and told her supervisor that her doctor would fax a letter to the Board.  She did not say anything about what specific condition she had and did not say when she would return to work.  The supervisor said Pizzo told him she would be out indefinitely, but Pizzo denied this in her law suit.  The Board made the decision to terminate employment partly because Pizzo said she would be out indefinitely and partly because of excessive use of sick time. Prior to her termination, Pizzo had never been disciplined for her absences.  After termination occurred, the Board received a letter from Pizzo’s doctor stating that Pizzo requested leave for an indefinite period of time.

Pizzo sued alleging violations of the FMLA and NJLAD.  The Board filed a motion for summary judgment on all of Pizzo’s claims.  The federal court found that the Board’s FMLA policy was equivocal in stating on the one hand that FMLA begins after a request for leave but in practice starting FMLA at the beginning of leave.  However, the court felt summary judgment was appropriate for the Board because Pizzo failed to give sufficient notice to her employer that she was requesting leave under the FMLA in March 2013.  Merely calling out sick is not sufficient for FMLA notice. 

Nor is there any evidence that Defendant received other notice from Plaintiff in the days after March 21^st.  Plaintiff did not return to work after that day and she specifically testified that her physician never sent her employer a doctor’s note about her ailment.  Although Defendant eventually received a letter from Dr. Murphy excusing Plaintiff for her absence, the letter was dated March 28^th, the same day Plaintiff was fired, and was not received by Defendant until April 8^th.

The court held that calling out sick did not provide enough information to the Board that Pizzo was suffering from a serious medical illness. Nor did the phone call provide enough information to trigger the Board’s obligation to ask for additional information to determine if the absence was FMLA protected. Similarly, because the Board had no idea that Pizzo was invoking her FMLA rights, the court dismissed the claim for FMLA retaliation as well.

One other interesting aspect of this case pertained to the request of Pizzo for a sick bank. Pizzo argued that the failure of the Board to consider this request violated the New Jersey Law Against Discrimination.  Failure to make reasonable accommodation constitutes a potential violation of the law.  The court denied the Board’s request for summary judgment on this claim because the court believed that a reasonable jury could find that the Board failed to accommodate Pizzo when it denied her request for a sick bank, where other employees donate their unused paid sick time.   The court noted that the request for a sick bank was made on March 12, 2013, a mere 16 days before her termination.  Pizzo never heard back from the Board and never had a chance to even discuss her request with the Board prior to her termination.  This issue was therefore permitted to go to a jury.

This case is important for employers for a number of reasons.  First, it is aNew Jersey federal court case that deals with key provisions of the FMLA, particularly the quality of notice that must be given by employees for an employer to know that absences from work are FMLA protected.  Second, it is one of the few published FMLA cases pertaining to school boards.  Third, it deals with issues pertaining to measuring the FMLA period and problems when there is inconsistency between a written policy and the actual implementation of the policy.  In this case, Pizzo was arguing she was entitled to more FMLA time because technically her request for leave was not transmitted until a week after she went out of work.  Finally, the case also deals extensively with the requirements on employers to engage in an interactive dialogue when dealing with reasonable accommodation requests. 

 This decision is very well written and easy to follow.  Readers who are interested can request a copy from the undersigned. The cite isPizzo v. Lindenwold Bd. Of Educ., No. 1:13-cv-03633 (D. N.J. March 31, 2015).

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.