Week Ending 3/28/14: Boles v. Wal-Mart

Alan Schorr’s Employment Case of The Week ending March 28, 2014

Boles v. Wal-Mart Stores, Inc., 12-1762 (JLL) , 2014 U.S. Dist. LEXIS 41926 (D.N.J., March 26, 2014)

Summary judgment motions in disability discrimination cases are always white-knuckle events for plaintiffs in Federal Court, so it is newsworthy when there is a denial of summary judgment in District Court. This case is a mixed bag, with summary judgment properly denied on counts for retaliation for using leave and FMLA, but with the court clearly erring in dismissing the disability discrimination count.

Barry Boles worked for Walmart for 10 years where he was eventually promoted to a support manager in Florida and then an assistant manager in New Jersey. In May 2011, Mr. Boles developed a large blister and ulceration on his leg that his physicians feared would lead to an infection. The ulceration required his leg to be raised 24 hours a day and his physicians placed him out on disability. The disability continued to be extended, eventually through October. There was considerable dispute over whether Mr. Boles kept in touch with Walmart. Boles produced text messages showing that he kept in touch. Walmart denied that Mr. Boles kept in touch and insisted that they tried, to no avail, to reach him.

When Mr. Boles reported for work in October he was sent home. A few days later he received this letter:

This is notification of your termination from the company effective
Tuesday, October 25, 2011 for failure to return from LOA before
expiration. LOA time requested was extended on multiple
occasions due to your unique circumstances. Walmart understands
when family and medical issues necessitate time away from work,
however, you are responsible to meet eligibility requirements each
time you take FMLA leave regarding submission of medical
paperwork. This action was considered as per the administration
of rules and regulations governing Walmart’s FMLA policy.

Mr. Boles filed suit in State court in February 2012. The defendants removed to Federal Court based upon Federal jurisdiction on the FMLA claim. Unfortunately, these types of claims end up in Federal Court because the FMLA claims are so obvious that it is difficult to omit them from the Complaint, and all employers want to be in Federal Court because it is a far more favorable venue than State Court.

The Court denied summary judgment on the LAD retaliation claim. Importantly, the Court found that requesting disability leave is a protected activity under the NJ Law Against Discrimination, and therefore, if an employer terminates the employee for requesting leave, it can constitute a violation of N.J.S.A. 10:5-12(d). The Court also denied summary judgment on Mr. Boles’s FMLA claim, finding that the employer’s alleged failure to notify the employee of his return to work date could violate the FMLA.

The news was not all good for Mr. Boles. Judge Linares completely misconstrued the elements of the disability claim and clearly erred in granting summary judgment. Without citing any supporting case law, Judge Linares ruled that a disability discrimination plaintiff must demonstrate, as the second prong of the prima facie analysis, that he was performing up to his employer’s expectations. New Jersey Courts have consistently held that the question of the quality of the plaintiff’s performance should not be addressed in the prima facie analysis, but rather in the later analysis of pretext. For purposes of the prima facie analysis, “all that is necessary is that the plaintiff produce evidence showing that she was actually performing the job prior to the termination.” Zive v. Stanley Roberts, Inc., 182 N.J. 436, 454 (N.J. 2005); see also Greenberg v. Camden County Vocational & Technical Schools, 310 N.J. Super. 189, 202 (App. Div. 1998). By Judge Linares own findings of fact, Mr. Boles should have satisfied the second prong because he was actually performing his job prior to termination.

Nevertheless, it is unlikely that the plaintiff will appeal the improper grant of summary judgment on disability, since he can now go to trial on his LAD and FMLA claims. The important legal point in this opinion, however, is that a request for accommodation or leave is a protected act under the LAD, even in Federal Court.

Plaintiff’s attorney: Colin M. Page, Joshua Adam Ben-Asher, Colin M. Page & Associates.

Defendant’s attorney: N. Ari Weisbrot, Fox Rothschild, LLP.

Judge: Jose L. Linares, U.S.D.J.

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