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finding that plaintiff did not establish a prima facie case of disability discrimination where the record did "not show that any doctor ha[d] diagnosed McCoy's condition"
Summary of this case from Photis v. Sears Holding Corp.Opinion
Civil Action No. 2.02-1313.
September 12, 2003
Alan L. Krumholz, Esq., KRUMHOLZ DILLON. P.A., Jersey City, NJ, Attorneys for Plaintiff.
Samuel J. Samaro, Esq., PASHMAN STEIN, Hackensack, NJ, Attorneys for Defendants.
OPINION
Plaintiff LaShawn McCoy ("McCoy") brought this action against her former employer Port Liberte Condominium Association ("Port Liberte") and the outside company that supervised security at Port Liberte, Applied Property Management Company, Inc. ("Applied") (collectively, "Defendants"). She alleged that her termination by Defendants on November 26, 2001 constituted (1) a violation of the Family Medical Leave Act, 29 U.S.C. § 2612(a)(1)(D), (2) a violation of the New Jersey Family Leave Act, N.J.S.A. § 34:11B-1, et seq., (3) a violation of the New Jersey Law Against Discrimination, N.J.S.A. § 10:5-4.1, and (4) wrongful interference with prospective economic advantage. Defendants have moved for summary judgment as to all claims. For the reasons discussed below, summary judgment is granted as to all of the state law claims. Genuine issues of material fact regarding whether McCoy ever experienced any period of incapacity due to her abdominal pain, and whether she has a chronic serious health condition that caused the incapacity, however, preclude summary judgment on the Family Medical Leave Act claim.
FACTUAL BACKGROUND
Port Liberte hired McCoy as a security guard in May, 2000. McCoy was an at-will employee. By September, 2001, McCoy had been reprimanded "maybe three times" for being late to work. [Deposition of LaShawn McCoy, 24]. Defendants claim that by September, 2001 McCoy had also been written up once for missing work and once for leaving work early without permission, but McCoy denies that these incidents occurred.
Hereafter, "DM."
In October, 2001, Applied replaced Kilby Management as the company that supervised security at Port Liberte. With this transition came a change in Port Liberte's policy governing employee absences and tardiness. Shortly after Applied replaced Kirby — on October, 19, 2001 — Applied's Vice President for Security Ray Ryan ("Ryan") sent a memo to all Port Liberte security staff stating "[i]f you are sick or need to request time off, it must be done in a timely manner (at least one shift prior notice) by calling 876-9066 and requesting Johnny Callaway be contacted." On November 2, 2001, Ryan sent another memo which instructed that "to request any time off or to call in sick, supervisor Johnny Callaway must be contacted first at pager 201-219-0740. If he does not respond in a reasonable amount of time, then page me at 201-422-1817." McCoy confirms that she received Ryan's memos and was aware that after Applied took over supervision of security, employees "had to call into the office or had to page one of the security supervisors." [DM, 52].
Defendants produced what they alleged were copies of these memos, but McCoy, though she concedes that the memos were distributed, refused to admit the authenticity of the copies Defendants produced.
Defendants claim that during the five weeks Applied supervised her — from October 19, 2001 until her termination on November 26, 2001 — McCoy was late for work at least five times. Defendants have produced a memo from Applied's Senior Vice President Leigh Ann Carr to Ryan dated November 27, 2001 that details these instances of tardiness. McCoy neither admits nor denies the authenticity of this memo or the accuracy of the information contained in it.
On November 26, 2001, McCoy was scheduled to begin her shift at 8:00 a.m. At around 4:00 a.m. that morning, however, McCoy awoke with a pain in her lower abdomen. She had experienced similar pains periodically since 1994, and sought medical attention because of them, but no doctor had ever told her the pains were attributable to a single, persistent condition.
At around 7:00 a.m., McCoy's fiancé Perry Wooding ("Wooding") drove McCoy to the Emergency Room at Greenville Hospital. While waiting to be seen by a doctor at Greenville, McCoy asked Wooding to call into work for her and report that she was in the hospital and so would not be able to start her shift on time. Wooding called the gatehouse at around 11:00 a.m. — three hours after McCoy's shift was to have begun. Port Liberte fired McCoy that day citing "unexcused absence and tardiness."
McCoy claims that Wooding first had tried to call and page Callaway and Ryan respectively (as Ryan's memo had instructed ill employees to do), and only resorted to calling the gatehouse when the men did not call him back.
In the Emergency Room, doctors examined McCoy and performed blood tests, urinalysis and x-rays of McCoy's abdomen. McCoy was discharged after several hours with a diagnosis of "possible cystitis," and given an antibiotic and medication for pain.
In an affidavit, McCoy stated the Emergency Room doctor told her that she would need to "stay in bed for three to four days." McCoy made no mention of this, however, in her deposition or her responses to Defendants' interrogatories, and the hospital records indicate nothing about whether or for how long doctors advised McCoy to stay out of work. In her deposition, McCoy states that she is not sure whether, had she not been terminated, she "would have been able to work after two days, after three days."
The Emergency Room doctor advised McCoy to follow up with a private physician in 2-3 days. McCoy did not see her private physician — Dr. Pagulayan — until March 15, 2002. This visit apparently was not the "follow up" appointment the Emergency Room doctor had suggested because, when told of McCoy's November 26, 2001 visit to the Emergency Room, Dr. Pagulayan stated that she "did not even know that [McCoy] was in the hospital." [Deposition of Dr. Sylvia Pagulayan, 31]. Dr. Pagulayan stated in a deposition that McCoy's failure follow up in a timely manner in November of 2001 was not an isolated incident. "The problem," she stated, "is that this patient doesn't come back . . . I keep on giving her referrals and referrals and referrals."
Hereafter, "DP."
PROCEDURAL HISTORY
On February 8, 2002, McCoy brought suit against Defendants in the New Jersey Superior Court. She claimed that her discharge by Defendants constituted (1) a violation of the Family Medical Leave Act, (2) a violation of the New Jersey Family Leave Act, (3) a violation of the New Jersey Law Against Discrimination, and (4) wrongful interference with prospective economic advantage.
Defendants filed a Notice of Removal to this Court on March 22, 2002. The case was referred to compulsory arbitration on May 22, 2002. The arbitration proceedings culminated in a hearing that was held on October 31, 2002. In an award filed December 4, 2002, the Arbitrator issued findings in favor of McCoy with respect to her Family Medical Leave Act claims, but dismissed her New Jersey statutory and common law claims.
The Arbitrator also recommended that Defendants be sanctioned pursuant to L. Civ. R. 201.1(f)(3) for failure to participate meaningfully in the arbitration process, but this Court rejected that recommendation on February 10, 2003.
Defendants then requested a trial de novo, and papers were submitted to this Court. Defendants have now moved for summary judgment.
STANDARD OF REVIEW
Summary judgment will be granted if the record establishes that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
Rule 56(c) imposes a burden on the moving party simply to point out to the district court that there is an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has met this burden, the burden then shifts to the opposition to "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The evidence need not be in a form that would be admissible at trial. Celotex, 477 U.S. at 324. However, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts."Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
At the summary judgment stage, the court's function is not to weigh the evidence and determine the truth of the matter, but rather to determine whether there is a genuine issue for trial.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Id. at 247. In determining whether there exists a material issue of disputed fact, however, the facts and the inferences to be drawn from the facts are to be viewed in the light most favorable to the nonmoving party. Pollock v. American Tel. Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986).
In addition to being genuine, the disputed facts must be material, as determined by the substantive law. Anderson, 477 U.S. at 248. Debate over extraneous issues will not suffice; "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id.
DISCUSSION
I. The Family Medical Leave ActMcCoy claims Defendants violated the Family Medical Leave Act ("FMLA") when they fired her. The FMLA allows eligible employees to take twelve weeks of unpaid leave during any twelve-month period under a variety of circumstances, including when the employee has "a serious health condition that makes the employee unable to perform the functions of [her] position." 29 U.S.C. § 2612 (a)(1)(D). The central question before the Court is whether McCoy's abdominal pain was a "serious health condition" within the meaning of the FMLA.
The language of the FMLA provides little guidance on the meaning of the phrase "serious health condition," but regulations promulgated by the Department of Labor are more expansive on this point. Specifically, 29 C.F.R. § 825.114 provides, in pertinent part, that
For the purposes of FMLA, " serious health condition" entitling an employee to FMLA leave means "an illness, injury, or physical or mental condition that involves . . . (2) Continuing treatment by a health care provider.
(emphasis added).
A plaintiff may demonstrate that she had a serious health condition that involves continuing treatment in one of five ways, only two of which are relevant here. First, she may demonstrate that she suffered
(i) A period of incapacity . . . of more than three consecutive calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:
(A) Treatment two or more times by a health care provider, by a nurse or physician's assistant under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or
(B) Treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider . . .
(emphasis added).
Alternately, she may demonstrate that she suffered
(iii) Any period of incapacity or treatment for such incapacity due to a chronic serious health condition. A chronic serious health condition is one which:
(A) Requires periodic visits for treatment by a health care provider, or by a nurse or physician's assistant under direct supervision of a health care provider;
(B) Continues over an extended period of time (including recurring episodes of a single underlying condition); and
(C) May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).
(emphasis added).
To demonstrate that she has suffered a serious health condition under the FMLA, then, a plaintiff must demonstrate either that she suffered (1) incapacity requiring absence from work for more than three days and subsequent treatment or period of incapacity relating to the same condition, or (2) a period of incapacity or treatment for such incapacity due to a chronic serious health condition. Defendants argue that McCoy has offered sufficient evidence to demonstrate neither.
* * * * * *
A. "A period of incapacity . . . of more than three consecutive calendar days" and subsequent treatment relating to the same condition
The test McCoy must fulfill under 29 C.F.R. § 825.114(a)(2)(i) is two-pronged: first, she must show that she suffered "a period of incapacity of more than three consecutive calendar days;" second, she must show that she subsequently received continued, supervised treatment relating to the same condition." See, e.g., Caldwell v. Holland of Texas, Inc., 208 F.3d 671, 674 (8th Cir. 2000); Haefling v. United Parcel Service, Inc., 169 F.3d 494, 499 (7th Cir. 1999); Murray v. Red Kap Industries, Inc., 124 F.3d 695, 698 (5th Cir. 1997).
The regulations define "incapacity" as "inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefor, or recovery therefrom." 29 C.F.R. § 825(a)(2)(i). McCoy claims that "it is evident that [she] had sustained, on 11/26/01 and thereafter, a period of incapacity of three or more consecutive days." McCoy, however, has offered no admissible evidence in support of this conclusion. Most notably, McCoy has not placed in the record any professional opinion about the fact or length of McCoy's incapacity. The Emergency Room records contain no indication of whether or for how long the doctor who treated McCoy there thought she should stay at home from work and refrain from other regular activities, and that doctor has not been deposed. Thus, the only opinion that appears in the record about the length of McCoy's incapacity is her own.
McCoy stated in both an affidavit and her brief that an unnamed Emergency Room doctor told her that she would need to "stay in bed for three to four days." This statement is hearsay that would be inadmissible at trial, and this Court thus cannot consider it on a motion for summary judgment. Because the alleged out-of-court statement is offered for its truth, it is hearsay. FED. R. EVID. 801(c). See also Murray v. Red Cap Industries, 124 F.2d at 698 (characterizing plaintiff's testimony that her doctor told her to stay home from work as long as she felt weak as "immaterial, conclusory, and/or hearsay"). As it does not appear — and as McCoy does not allege — that the statement is covered by any of the exceptions to the hearsay exclusion rule, the statements would not be admissible at trial, Fed.R.Evid. 802, and the court thus cannot consider it on a motion for summary judgment. Philbin v. Trans. Union Corp., 101 F.3d 957, 961 n. 1 (3d Cir. 1996).
The Court of Appeals has not addressed the question of whether a plaintiff's own judgment about her condition, uncorroborated by a professional medical assessment, is sufficient to create a fact question about whether a plaintiff suffered the 4-day or longer incapacity required by 29 C.F.R. § 825.114(a)(2)(i). Almost all of the other courts that have addressed this issue, however, have held that a plaintiff's diagnosis of her own condition in the absence of a doctor's opinion is insufficient to prove the requisite incapacity . See, e.g., Cavin v. Honda of America Mfg, Inc., No.C2-00-400, 2002 WL 484521, at *19 (S.D. Ohio Feb. 22, 2002) ("[t]he majority of the case law indicates that, in most circumstances, unless a health care provider has examined the employee and instructed the employee not to work, summary judgment is appropriate"); Bell v. Jewel Food Store, 83 F. Supp. 2d 951, 959 (N.D. Ill. 2000) ("[w]hile he claims that he was unable to do anything, [plaintiff]'s own statement is not enough to establish he was incapacitated: [plaintiff] must provide evidence from a medical professional or health care provider that he was unable to work."); Austin v. Haaker, 76 F. Supp. 2d 1213, 1221 (D. Kan. 1999) ("an employee must present specific evidence that he or she suffers from a serious health condition, and cannot rely on his own assessment of his health");Joslin v. Rockwell International Corporation, 8 F. Supp. 2d 1158, 1160 (N.D. Iowa 1998) ("[t]he only testimony in the record suggesting that the plaintiff was unable to work was from the plaintiff herself. Such testimony is not enough to prove incapacitaiton"); Olsen v. Ohio Edison Company, 897 F.Supp. 1028, 1037 (M.D. Tenn. 1995) ("in order to show that he or she was `required' to miss work for more than three days, a plaintiff employee must show that he or she was prevented from working because of the injury or illness based on a medical provider's assessment of the claimed condition. It does not mean that, in the employee's own judgment, he or she should not work, or even that it was uncomfortable or inconvenient for the employee to have to work. Rather, it means that a `health care provider' has determined that, in his or her professional medical judgment, the employee cannot work (or could not have worked) because of the illness"); Brannon v. OshKosh B'Gosh, Inc., 897 F.Supp. 1028, 1037 (M.D. Tenn. 1995) ("plaintiff's own testimony that she was `too sick to work' is . . . insufficient to prove that her absence was necessary").
A small minority of courts have found that a plaintiff's own statement that she was incapacitated for more than three days alone creates a genuine issue of material fact on that issue. InRankin v. Seagate, for example, the Eighth Circuit held that a plaintiff's testimony that she was "too sick to work," combined with evidence that she told her nurse practitioner she had been suffering from the same symptoms for a week prior to seeking treatment and medical records confirming that conversation were "sufficient to create a genuine issue of material fact regarding [plaintiff's] incapacity." 246 F.3d 1145, 1148-49 (8th Cir. 2001). Similarly, in Marchisheck v. San Mateo County, the Ninth Circuit held that a party's statement about the length of his own incapacity alone — even in the face of evidence that he was not incapacitated — was enough to create a genuine issue of material fact. 199 F.3d 1068, 1071 (9th Cir 1999).
In Marchisheck, a doctor's report stated that the plaintiff's son (the sick party in question there) was "alert and oriented" and "feeling remarkably well," and did not recommend any restriction of the boy's activities. The boy reported, however, that he "just did not and could not do anything for four days or five days after." The court held that "[n]otwithstanding the stronger evidence to the contrary, his declaration creates a disputed issue of fact and precludes summary judgment on the issue of `incapacity.'" 199 F.3d 1068, 1071 (9th Cir 1999).
Without a doctor's statement that she was incapacitated for more than three days after November 26, 2001, McCoy cannot fulfill the first requirement of 29 C.F.R. § 825.114(a)(2)(i) as the majority of courts have interpreted it. Moreover, McCoy cannot fulfill the regulation's first requirement even under the more lenient interpretation articulated in Rankin andMarchisheck because she has not been unequivocal in her own statements about the length of her incapacity. Though in her brief McCoy stated that "it is evident that [she] had sustained . . . a period of incapacity, of three or more consecutive days," in her deposition McCoy stated that she was " not sure whether [she] would have been able to work after two days, after three days." [DM, 65].
Because McCoy has offered insufficient evidence to fulfill the first prong of the test under both the more stringent and the less stringent interpretations of 29 C.F.R. § 825.114(a)(2)(i), then, McCoy has failed to preserve a genuine issue of material fact that she suffered "a period of incapacity . . . of more than three consecutive calendar days."
McCoy and Defendants disagree as to whether there is a question of fact whether McCoy can fulfill the second prong of 29 C.F.R. § 825.114(a)(2)(i)'s test — that she received subsequent treatment relating to same condition. Because McCoy has failed to fulfill the first prong of the test, however, her success or failure at fulfilling the second prong is irrelevant.See, e.g., Haefling v. United Parcel Service, Inc., 169 F.3d 494, 499 (7th Cir. 1999) (identifying the question of whether a plaintiff can prove a period of incapacity requiring absence from work work for more than three days as a "threshold demonstration"); Martyszenko v. Safeway, Inc., 120 F.3d 120, 122-23 (8th Cir. 1997) (FMLA requires a showing of incapacity); Cavin v. Honda of America Mfg., No.C2-00-400, 2002 WL 484521 at *17 (S.D. Ohio Feb. 22, 2002) (same). Plaintiff cannot rely on 29 C.F.R. § 825.114(a)(2)(i) to establish a claim under the Family Medical Leave Act.
B. "Any period of incapacity . . . due to a chronic serious health condition"
McCoy argues that even if she cannot prove she suffered from a serious health condition by meeting the standard in 29 C.F.R. § 825.114(a)(2)(i), she can prove she suffered from a serious health condition by demonstrating that she suffered a "period of incapacity . . . due to a chronic serious health condition" as defined by 29 C.F.R. § 825.114(a)(2)(iii). With 29 C.F.R. § 825.114(a)(2)(iii), Congress evinced its intent "not simply to protect those whose condition causes continual incapacity," but also "to protect those who are occasionally incapacitated by an ongoing medical problem." Victorelli v. Shadyside Hospital, 128 F.3d 184, 190 (3rd Cir. 1997).
Defendants argue that McCoy cannot show that she suffered a "period of incapacity . . . due to a chronic serious health condition" because she cannot even establish that she was ever incapacitated by her abdominal pain for any period of time at all. Courts have indeed required a showing of some incapacity in the context of claims under 29 C.F.R. § 825.114(a)(2) (iii).Martyszenko v. Safeway, Inc., 120 F.3d 120, 122 (8th Cir. 1997) (plaintiff failed to make the requisite showing of incapacity where doctor examined plaintiff's son and "found no . . . problems"); Marchisheck v. San Mateo County, 199 F.3d 1068, 1075 (9th Cir. 1999) (plaintiff failed to make the requisite showing of incapacity where plaintiff offers "no evidence whatsoever" demonstrating that her son suffered an inability to perform regular daily activities).
While for the reasons discussed in the preceding section, McCoy did not demonstrate that a genuine issue of material fact existed as to whether she experienced an incapacity of more than three days as required by § 825.114(a)(2)(i), a genuine issue of material fact does exist as to whether she experienced any period of incapacity due to her abdominal pain.
At several places in the record McCoy claims that her abdominal pain put her temporarily "out of commission." To take just one example, an episode of abdominal pain that occurred when McCoy was living in South Carolina placed her in the hospital for "a couple of days." [DM, 35]. Similarly, McCoy testified that on November 26, 2001
I woke up feeling the pain . . . it felt constantly when you leaning over with your knees. [sic] I got up, laid back down and I rocked and rocked and rocked and I was in pain.
Unlike the plaintiffs in Martyszenko and Marchisheck, whose doctors gave them clean bills of health, McCoy's condition was serious enough to warrant the Emergency Room doctor's prescription of antibiotics and pain killers, and advice that she follow up with a private doctor in 2-3 days. While these facts, combined with McCoy's testimony certainly do not prove that McCoy experienced a period of true incapacity, they do preserve a genuine issue of material fact on this point.
The visit to and treatment at the Emergency Room would not even be necessary to prove incapacity for the purposes of 29 C.F.R. 825.114(a)(2)(iii) as 825.114(e) specifically states that "[a]bsences attributable to incapacity under (a)(2) . . . (iii) qualify for FMLA leave even though the employee . . . does not receive treatment from a health care provider during the absence."
Defendants next contend that McCoy cannot establish that her health condition is chronic because she provides no physician's opinion linking the several isolated instances of abdominal pain she has experienced in the past. Though the record certainly shows that McCoy has complained of lower abdominal pain on various occasions since 1994, it is true that no medical professional has at any point linked those incidents and diagnosed McCoy with a chronic condition. In fact, during her deposition McCoy's regular physician resisted McCoy's lawyer's repeated promptings to link McCoy's various instances of abdominal pain, and actually stated at one point that "in between [visits to the doctor McCoy is] normal . . . [s]o I presume that this pain is not an ongoing thing" DP, 34]. These facts, however, do not categorically rule out the possibility that a reasonable jury could find that McCoy suffers from a chronic condition.
For instance,
McCoy's attorney: Doctor, according to my notes of your testimony, she has complained about abdominal pain since as early as I believe 1996 and 1998 certainly, May 26th, '98 and she continued complaining about that problem through 2001 off and on when she saw you and through 2002.
Have you ever arrived at a diagnosis of what was causing the abdominal pain?
Dr. Pagulayan: I referred her to a GYN. I never got a feedback from the GYN people, but the problem is this patient doesn't come back. So I do not know what the progress is, I do not know what the results with the consultations are, and I don't — if you noticed, I keep on giving her referrals and referrals and referrals.
McCoy's attorney: Well, did you develop any working diagnosis?
Dr. Pagulayan: At one time she had a urinary tract infection with me . . .
[DP, 32-33]
To show a chronic serious medical condition, 29 C.F.R. § 825.114(a)(2) (iii) requires that (1) the plaintiff have made multiple visits to her doctor, (2) the plaintiff's condition have existed for three years, and (3) the plaintiff's periods of incapacity have been episodic rather than continuous. The regulation on its face does not indicate that a condition, in order to qualify as "chronic," must have been diagnosed as such by a doctor.
The Court of Appeals did not interpret 29 C.F.R. § 825.114(a)(2)(iii) to require a professional diagnosis of "chronic" on the one occasion it applied that regulation. InVictorelli v. Shadyside Hospital, a hospital terminated the plaintiff employee after she missed work to see a doctor. 128 F.3d 184 (3rd Cir. 1997). The doctor in Victorelli determined that the plaintiff was suffering from a "flare-up" of what he had earlier diagnosed as incurable peptic ulcer disease, a condition for which he had been treating the plaintiff consistently. The court held that the plaintiff was suffering from a chronic serious health condition because she fulfilled the three criteria of 29 C.F.R. § 825.114(a)(2)(iii). InVictorelli, the plaintiff's disease had been diagnosed by a doctor as chronic but the court did not indicate that this diagnosis was a necessary prerequisite to the disease qualifying as a chronic.
Other courts have found questions of fact regarding whether a condition was chronic in the absence of a professional diagnosis to that effect. See, e.g., Mann v. Mass. Correa Electric, J.V., No. 00 CIV. 3559 (DLC), 2002 WL 88915, at *8 (S.D.N.Y. January 23, 2002) (plaintiff produced sufficient evidence to raise a question of fact that she suffered from a chronic condition in the absence of a doctor's diagnosis where she showed that her back pain that started in the mid-1990's was recurrent, and "had involved periodic visits to a doctor and occasional periods of incapacity").
Courts that have held that a condition is not chronic have usually done so not because of the absence of a professional diagnosis, but because the condition failed to meet one of the regulatory criteria. See, e.g., Bauer v. Dayton-Walther Corporation, 910 F. Supp. 306, 310 (E.D. Ky. 1996) (plaintiff's rectal bleeding was not a chronic serious health condition because plaintiff "sought medical attention on only one occasion due to his condition").
A rule that sufferers of recurrent health problems are not protected by the FMLA unless a doctor specifically has labeled their condition "chronic" would make legal protection dependent on the opportunity and ability of doctors to draw a connection between incidents of pain before the sick party's employment is terminated, or doctors' use of a "magic word" — "chronic" — on medical charts. Such a rule arbitrarily would deprive many terminated employees who are worthy of the FMLA's protection of that protection just because their condition — for whatever reason — had not yet been diagnosed as chronic.
McCoy testified that she has complained of and sought medical attention for lower abdominal pain on at least 6 occasions since 1994. In between 1992 and 1994 she had "real bad pains like I experience now" on account of which she spent a couple of days in a hospital in South Carolina. [DM, 34-35]. In 1996 she "got this sharp pain that shot in the bottom of [her] stomach" for which she went to see Dr. Pagulayan for the first time. [DM, 38] Since then she has seen several other doctors for similar abdominal pain, including a gynecologist to whom Dr. Pagulayan referred her [DP, 32], and a Dr. Kahn. [DM, 43; DP, 33].
McCoy describes her abdominal pain this way:
It's just pain that comes and sometimes it's sharp pain that will come and take your breath away for a second and it will go away and you'll be all right for a couple hours and then you'll probably get those pains again later on and sometimes it's all day you got this pain, this pain that bends you over where you can't stand up.
And sometimes I'll go to the doctor and Sylvia will give me some medicine or I'll just take the medicine that I already have in my cabinet and lay down and just deal with that because it had got just to be too much where you going back and forth to the doctor and taking all these medications and can't nobody tell you what's wrong with you. It got to be real nerve wrecking [sic] where it got to a point where it just don't make no sense.
[DM, 45-46].
While it is a distinct possibility — especially given Dr. Pagulayan's expression of doubt that McCoy's abdominal pains are all attributable to the same ongoing condition — that McCoy's abdominal pain has many separate sources, it is also possible that hers is a persistent, chronic condition within the meaning of 29 C.F.R. § 825.114(a)(2)(iii) that has yet to be diagnosed. Drawing all inferences in favor of McCoy, there exists at least a question of fact as to whether she fulfills the criteria of 29 C.F.R. 825.114(a)(2)(iii) for identifying a "chronic serious health condition." Summary judgment for Defendants on the Family Medical Leave Act claim must be denied. II. The New Jersey Family Leave Act
Port Liberte also argues that McCoy's medical reports "are not limited to treatment for abdominal pain and do not establish a pattern that could, even from a lay perspective, be viewed as consistent with a chronic condition" (letter from Samuel J. Samaro dated July 2, 2003). Clearly, however, the fact that McCoy has been treated for conditions unrelated to her abdominal pain does not preclude the possibility that a jury could find she has a chronic abdominal condition. While it is true that Dr. Pagulayan treated her for conditions as disparate as acute tonsilitis, Trichomonas vaginitis, and an allergic reaction to dog flea bites, it is also true that the record shows McCoy complained of abdominal pain at various points over the course of her treatment by Dr. Pagulayan and earlier.
McCoy asserted in her complaint that Port Liberte violated the New Jersey Family Leave Act ("NJFLA") N.J. STAT. ANN. §§ 34:11B-1 et seq. when it discharged her. This claim must fail because the NJFLA covers only employees who take leave to care for family members, and not those who take leave on account of their own medical problems. III. New Jersey Law Against Discrimination
McCoy apparently concedes this point in her brief when she writes "Admittedly, under the facts developed during discovery, the provisions of New Jersey's statute, N.J.S.A. 34:11B-1, et seq. would not be applicable, as defendants have not cited any reasons for termination which would be attributable to time lost for reasons of heath of any family member of the plaintiff, nor any reasons directly attributable to the ill health of plaintiff, herself."
McCoy also alleges that when Port Liberte fired her it violated the New Jersey Law Against Discrimination ("NJLAD"). The NJLAD prohibits employment discrimination against any person who "is or has been at any time handicapped" unless the handicap precludes the performance of employment. N.J. STAT. ANN. § 10:5-4.1.
The threshold inquiry in a handicap-based discrimination case is whether the plaintiff in question fits the statutory definition of "handicapped." Viscik v. Fowler Equipment Company, Inc., 800 A.2d 826, 834 (N.J. 2002).
The NJLAD defines "handicapped" as
suffering from physical disability, infirmity, malformation or disfigurement which is caused by bodily injury, birth defect or illness including epilepsy, and which shall include, but not be limited to, any degree of paralysis, amputation, lack of physical coordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment or physical reliance on a service or guide dog, wheelchair, or other remedial appliance or device.
As discussed at length above, the record does not show that any doctor has diagnosed McCoy's condition, or even affirmed that she has any persistent condition at all, as opposed to merely periodic abdominal pain caused from time to time by various unrelated ailments. "Regardless of what category of handicap . . . is invoked by a plaintiff, each and every element of the statutory definition must be satisfied." Viscik, 800 A.2d at 835. McCoy has not offered evidence to prove any element of the statutory definition — i.e., that she is "suffering from a disability, infirmity, malformation or disfigurement," and that the condition is "caused by bodily injury, birth defect or illness." All she has offered is her own description of her pain, and the visits to the doctor that it has prompted. While this may be enough to raise preserve a fact question regarding whether she experienced "any period of incapacity" under 29 C.F.R. 825.114(a)(2)(iii), it is not enough to preserve a fact question on the issue of whether she is handicapped. McCoy has thus failed to establish a prima facie case of unlawful discrimination under the NJLAD.
McCoy observes that courts often have found injured and ill workers to be "handicapped" under the NJLAD. In every case that she cites for this proposition, however, the worker plaintiff had at least been diagnosed with the condition he or she sought to demonstrate was a handicap. See Panettieri v. C.V. Hill Refrigeration, 388 A.2d 630 (N.J. App. Div. 1978) (doctor's testimony that plaintiff had suffered a heart attack); Jansen v. Food Circus Supermarkets, Inc, 541 A.2d 682 (N.J. 1988) (note from an epilepsy sufferer's treating neurologist confirming the epilepsy diagnosis and the medication that was controlling the condition); Troxell v. New Jersey Turnpike Authority, 92 N.J Admin. 2d 5 (1991) (part of plaintiff's lung was removed after malignant tumor was found on it); Gimello v. Agency Rent-a-Car Systems, 594 A.2d 264, 268 (N.J. App. Div. 1991) (obese plaintiff's treating physician testified about his obesity); Rogers v. Campbell Foundry Co., 447 A.2d 589, 590 (N.J. App. Div. 1982) (pre-employment physical examination disclosed a hilar shadow on plaintiff's lung).
Even if McCoy had been diagnosed with the condition from which the Greenville Hospital Emergency doctor thought she "possibly" suffered — cystitis — she would likely not qualify as "handicapped" under the NJLAD. The NJLAD definition of "handicapped" is broad and encompasses more than, for example, the definition of "disability" under the Americans with Disabilities Act. Failla v. City of Passaic, 146 F.3d 149, 154 (3d Cir. 1998). It does not, however, encompass any and all medical conditions. Cystitis is another term for a bladder infection. It is not readily apparent that a bladder infection is a handicap, and McCoy has offered no evidence to support the assertion that it is, despite the fact that "[w]here the existence of a handicap is not readily apparent, expert medical evidence is required." Viscik, 800 A.2d at 835. For this reason, too, she fails to establish a prima facie case of unlawful discrimination under the NJLAD.
IV. Interference with Economic Advantage
Finally, McCoy alleges that when it discharged her, Applied tortiously interfered with her business relation with her employer. To establish a prima facie case for tortious interference, New Jersey courts require a plaintiff to fulfill four requirements.
First, the complaint "must allege facts that show some protectable right — a prospective economic or contractual relationship. Although the right need not equate with that found in an enforceable contract, there must be allegations of fact giving rise to some `reasonable expectation of economic advantage.'" Second, "the complaint must allege facts claiming that the interference was done intentionally and with `malice.' . . . [M]alice is defined to mean that the harm was inflicted intentionally and without justification or excuse." Third, "the complaint must allege facts leading to the conclusion that the interference caused the loss of the prospective gain. A plaintiff must show that `if there had been no interference[,] there was a reasonable probability that the victim of the interference would have received the anticipated economic benefits.'" (citations omitted). Fourth, "the complaint must allege that the injury caused damage.MacDougall v. Weichert, 677 A.2d 162 (1996) (citations omitted). Defendants argue that McCoy does not raise a genuine issue of material fact regarding the second requirement — that Applied acted maliciously, without justification or excuse. Indeed, McCoy offers no evidence whatsoever that would demonstrate that Applied terminated her for any reason other than for excessive absenteeism. McCoy denies that she had been late as often as defendants claim, but offers no evidence to prove that Applied acted with malicious motive when it terminated her. As no genuine issue of material fact exists on this question, defendants are entitled to summary judgment on McCoy's interference with economic advantage claim.
Conclusion
For the reasons stated above, Defendants' motion for summary judgment will be granted with respect to McCoy's NJFLA claim, her NJLAD claim, and her interference with economic advantage claim. The motion will be denied with respect to McCoy's Family Medical Leave Act claim. An appropriate order will be entered.