Alan Schorrs Employment Case of The Week ending August 1, 2014
Apatoff v. Munich Re Am. Servs., 2014 US Dist. LEXIS 106665 (D.N.J., August 1, 2014)
The District Court of New Jersey this week denied summary judgment to a Defendant who terminated an employee while out on FMLA due to the employers claimed belief that the employee was faking her medical condition. The Court also gave guidance on the criteria for barring expert medical testimony in denying the Defendants motion to bar this testimony.
Elaina Apatoff was an accounting analyst for Munich Re for 13 years. In November 2010, she applied for Family Medical Leave in order to treat what the physician diagnosed as an asthma condition. The leave was granted by the employer. After the leave was granted, the employer received a report from someone (who they could not remember) that Ms. Apatoff was seen shopping. The employer hired a private investigator who filmed Plaintiff engaged in similar activities as was reported, as well as moving from her old home into a new home, which involved carrying boxes. The employer concluded that Ms. Apatoff was abusing her FMLA leave and terminated her.
Ms. Apatoff filed suit alleging violation of the NJLAD and FMLA. Ms. Apatoff alleged that her physicians had removed her from work because they were concerned that the workplace stress was exacerbating her symptoms and because of concerns that a workplace allergen was causing her shortness of breath. She alleged that her physicians had actively encouraged her to exercise as much as possible and that the activities viewed by the investigator were completely consistent with her physicians instructions. Her physicians testimony and records supported those claims.
The Defendants summary judgment motion was based upon their claim that even if they were incorrect, they held an honest belief that Ms. Apatoff was abusing her FMLA leave, and therefore they were still entitled to summary judgment. There actually is case law supporting an honest belief defense, but here the Judge differentiated between the facts of those cases permitting an honest belief test and this case.
The Court pointed out that here the Defendants never spoke with Ms. Apatoffs physicians to determine whether her activities were inconsistent with her medical instructions. Additionally, there were e-mails between management of the Defendant expressing glee, including happy face emoticons and exclamation marks at the thought of terminating Ms. Apatoff. The Court held that these factors could be found as evidence that the decision-makers were happy to have any reason to terminate Ms. Apatoff. Accordingly, summary judgment was denied on the FMLA and LAD discrimination claims.
The Court also addressed a defense motion to strike the report and testimony of Plaintiffs expert medical witness. The Court conducted an extremely detailed analysis of the report, which the Defendants claimed was not reliable. The Court ultimately found that while the report might be subject to attack by Defendants expert, that in and of itself did not render the report inadmissible. The motion to strike was thus denied. Plaintiffs claim for punitive damages under the FMLA (but not LAD) was dismissed because the FMLA does not provide for punitive damages. The Court also dismissed Plaintiffs reasonable accommodations claim, hostile work environment claim, and post-termination retaliation claim for allegedly interfering with Plaintiffs unemployment. The plaintiff had also filed for summary judgment on Defendants' counterclaim alleging that Mrs. Apatoff fraudulently took FMLA leave. Due to the same issues of material fact that caused the denial of defendants' summary judgment motion, plaintiff's motion was also denied. The remainder of the claims will proceed to trial.
This case is helpful and instructive in cases where the employer disputes the employees reason for taking disability leave and takes action against the employee because of that belief.
Plaintiffs Counsel: Alan H. Schorr and Zachary R. Wall, Alan H. Schorr & Associates, P.C.
Defendants Counsel: Aaron Van Nostrand, Michael J. Slocum, Robert H. Bernstein, Greenberg Traurig LLP.
Judge: Robert B. Kugler, U.S.D.J.
Opinion by: Patterson.