Family Medical Leave Case Summary

Lackman v Recovery Services of New Jersey, Inc.

Leave taken under the Family and Medical Leave Act (FMLA) is supposed to be taken to care for a serious medical or military-related situation. People in these situations are allowed to take leave without fear of losing their job or being otherwise punished for exercising their rights.
However, some employees abuse this federal protection and take leave not to deal with a serious personal situation, but to pursue a personal business or other line of work.

This was the case with Lackman v. Recovery Services of New Jersey, Inc., where Albert Lackman was seen working as a real estate agent while on FMLA leave from his employer Lighthouse at Mays Landing (Recovery Services), a drug rehabilitation center.

Case background

Working as a director of educational services for Lighthouse, Lackman began complaining about insomnia, stress and anxiety in August 2005.
Lackman would later argue that he requested FMLA leave to seek treatment for these conditions. He would go on to argue that Lighthouse denied this request and then gave him a bad performance review weeks later.

In early September 2005, Lighthouse did grant Lackman 30 days of FMLA leave. As part of the medical validation for leave, Lighthouse received documentation from Lackman’s healthcare provider that said he wasn’t able “to perform work of any kind.”

Lighthouse then extended Lackman’s leave twice – each time for a 30-day period. This led to Lackman going through the entire 12-week period of job-protected leave afforded by the FMLA.

Meanwhile, management at Lighthouse knew Lackman had been working part-time as a real estate agent and began to suspect that their educational services director was not using his leave to seek treatment for stress and anxiety – but to sell real estate at his other job.

The company decided to hire a private investigator who subsequently set up an appointment with Lackman to view his real estate offerings. In October 2005, Lackman showed the private investigator several different properties. The investigator later reported that Lackman appeared to be a “healthy, upbeat and an enthusiastic salesman”.

When Lackman finally did come back to work for Lighthouse on November 30.2005, he met with the company’s human resources director, Linda Canale, who told him management was aware of his activities as a real estate agent, despite a medical form saying he could not “perform work of any kind.”

Lackman was then terminated on that first day back.

District Court decision

In his US District Court argument, Lackman said he approached Linda Canale in August 2005 and requested a leave of absence for his insomnia and anxiety issues. He said this request was denied – a violation of his FMLA rights.

While an employee can request for time off under FMLA without having to specifically ask for “FMLA leave”, they must make their employer aware of the possibility that the requested leave may fall under the auspices of FMLA. If the employee doesn’t request for leave or doesn’t inform their employer of their medical condition to qualify for leave, they cannot later establish that their employer interfered with their FMLA rights.

While Lackman said he requested leave in August 2005, the court, based on Lackman’s own deposition, found that he did not meet the requirement for proper FMLA notification. In his deposition, Lackman merely stated that he was feeling “stressed out” and wanted to meet with a physician regarding his symptoms.

Lackman admitted that when he finally did meet with his physician in late August – he was indecisive about a course of action. The court also pointed out that Lackman did not have a history of stress and anxiety that might have the possibility of an FMLA-covered leave.

The court noted that “feeling stressed out” is commonly heard in the workplace and doesn’t mean a “qualifying condition” for FMLA leave. The district court also said that Lackman was able to adequately make his case for FMLA leave clear in October, and therefore should have been able to do so in August.

Lackman also argued that a poor performance review was “retaliation” for his FMLA leave request, but since he did not properly convey his need for leave in August, it would be improper to conclude that Lighthouse retaliated against the leave request, the court said.

Lackman also made the case that because Lighthouse fired him on the day he returned, this was evidence that he was being fired for taking FMLA leave. However, the court said, both parties agree that Lackman was fired, in part, for working as a real estate agent. Also, Lackman asked for and took his first 30 days of leave and was given a 30-day extension of leave prior to Lighthouse deciding to fire him.

Lighthouse also granted Lackman a second extension of leave after it made a decision to fire him and then waited for him to come back to work before letting him know of his termination. These actions show that Lighthouse respected Lackman’s right to FMLA leave and discredits the notion that the timing of Lackman’s firing is evidence of retaliation, the court said.

Finally, Lackman argued that Lighthouse simply wanted to get rid of him because of his leave and used the private investigator’s findings as a pretext. He argued that the inability to work designation applied only to the first 30-day leave period. However, the court said, realizing that the designation had changed wasn’t the company’s responsibility, and furthermore Lighthouse was well within its rights to assume that not being able to do work of “any kind” also applied to working as a real estate agent.

Case study takeaways

This case study is a good example of a company taking all the right steps in handling a delicate leave situation. Lighthouse was able to show that Lackman was not adhering to the conditions on which his leave was based. The company also extended his leave even after making the decision to fire him. The extension further supported their official termination and didn’t cost them anything since firing Lackman would have been the same as extending his unpaid leave.


Civil No. 06-2016 (RMB). (D.N.J. Nov 29, 2006)

Decided November 29, 2006
Civil No. 06-2016 (RMB).
United States District Court, D. New Jersey, Camden Vicinage.

Andrew M. Moskowitz, Esquire, Deutsch Atkins, P.C., Hackensack, New Jersey, Attorney for Plaintiff Albert R. Lackman.
Robert M. Smolen, Esquire, Swartz, Campbell LLC, Mount Laurel, New Jersey, Attorney for Defendant Patricia L. Borelli.


RENEE BUMB, District Judge

THIS MATTER comes before the Court upon a motion to dismiss the Complaint pursuant to Federal Rule Civil Procedure 12(b)(1) and12(b)(6) filed by Defendants Patricia Borelli and Borelli Investigations. For the reasons set forth below, Defendants’ *22 motion will be granted in part and denied in part.

I. Background

Defendant Recovery Services of New Jersey, Inc., doing business as the Lighthouse at Mays Landing (“Lighthouse”), is a alcohol and a residential drug treatment facility located in Mays Landing, New Jersey. Plaintiff Albert R. Lackman was the Director of Educational Services at Lighthouse until he was terminated on November 30, 2005.

In or about August 2005, due to problems he was experiencing with insomnia, depression and anxiety, Plaintiff requested permission to take a leave of absence. (Complaint at ¶ 7.) Plaintiff alleges that his request for leave was denied, and a few weeks later Lighthouse gave Plaintiff an unduly negative and unfair performance evaluation. (Compl. at ¶ 9.)

The Lighthouse subsequently permitted Plaintiff to take a thirty-day medical leave commencing on September 4, 2005. (Compl. at ¶ 11.) Plaintiff and his health care provider completed a written form wherein Plaintiff stated that he was unable to perform “work of any kind.” (See Ex. B to Def. Brief; Compl. at ¶ 12.) Lighthouse also allowed Plaintiff to extend that leave twice for thirty days, at the end of September and repeatedly at the end of October 2005. (SeeCompl. at ¶¶ 11 and 13.)

While Plaintiff was out on leave granted by Lighthouse, *33 Lighthouse began to suspect that, despite Plaintiff’s certification that he could not work, Plaintiff was working as a real estate agent. Plaintiff contends that Lighthouse knew he worked as a part-time real estate agent. Lighthouse decides to confirm that Plaintiff was working, and therefore hired a private investigator, Defendant Patricia Borelli of Borelli Investigations. (Compl. at ¶ 26; Def. Brief at 3-4.)

Defendant Borelli arranged to observe whether Plaintiff could work. On October 23, 2005, she called Ocean City Realty, where Plaintiff was supposedly working and asked for the Plaintiff. She was given his cell phone number and left a message. (Compl. at ¶ 26.) Plaintiff returned the message and gave several property descriptions to Defendant Borrelli, who in turn informed Plaintiff that she wanted to look at three properties. On October 14, 2005, Defendant Borelli met with Plaintiff and, under the pretense that she was interested in purchasing real estate, looked at five condominium properties. (See Complaint at ¶¶ 27-28.) After that, Defendant Borelli prepared a report for Lighthouse in which she stated that Plaintiff “appeared to be healthy, upbeat and an enthusiastic salesman.”

On November 30, 2005, Plaintiff returned to work at the Lighthouse. On that date, he met with Linda Canale, Lighthouse’s Director of Human Resources, and Peter Pacinelli, Lighthouse’s *44 Chief Financial Officer. During this meeting, Canale and/or Pacinelli accused Plaintiff of “actively” working as a real estate agent during his medical leave. (See Complaint at ¶¶ 16-17.) On that date, Lighthouse terminated Plaintiff’s employment. (Id.) On January 1, 2006, Plaintiff’s dental and prescription medication coverage was terminated. (Compl. at ¶ 31.)

II. The Complaint

The Complaint holds a total of 6 Counts, two against Lighthouse (Counts One and Two) and four against Defendants Borelli and Borelli Investigations (Counts Three through Six). Count One alleges a violation of the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq.; Count Two alleges a claim based on a violation of the COBRA, 42 U.S.C. §§ 300bb-5(a); 300bb-2(3).

The four remaining Counts against Defendants Borelli and Borelli Investigations allege solely state law claims. Count Three alleges that Defendants tortiously interfered with Plaintiff’s economic advantage; Count Four alleges that Defendant Borelli engaged in fraud; Count Five alleges that Defendant Borelli defamed Plaintiff; and Count Six alleges that Defendant Borelli committed negligent misrepresentation. These state law claims against Defendants Borelli and Borelli Investigations stem from the Lighthouse’s hiring of Defendant Borelli, as discussed *55 above. See Compl. at ¶ 26.

III. Analysis

Defendants Borelli and Borelli Investigations argue, initially, that this Court should decline to exercise supplemental jurisdiction over Defendant Borelli’s state law claims pursuant to 28 U.S.C. § 1367(b). Additionally, Defendants argue that Plaintiff’s state law claims should be dismissed pursuant to Federal Rule Civil Procedure 12(b)(6) for failure to state a claim. Finally, Defendants argue that discovery should be stayed pending the resolution of these motions.

Section 1367(a) of Title 28 of United States Code, provides that, subject to stated exceptions:

[I]n any civil action of which the district court has original jurisdiction, the district court would have supplemental jurisdiction over other claims that are related to the claims in the action within original jurisdiction that form part of the same case or controversy under Article III of the United States Constitution.

Section 1367(c) allows that the district courts can decline to exercise supplemental jurisdiction over the claim under subsection (a) if: one, the claim raises a novel or complex issue of State law, two, the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, three, the district court has dismissed all claims over which it has original jurisdiction or four, in exceptional circumstances, where there are other compelling reasons for declining jurisdiction.

Section 1367(a)’s grant of “supplemental jurisdiction” was intended to broaden the pre-existing scope of what had previously been termed “pendent” jurisdiction. Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995). Section 1367(c), on the other hand, was intended to simply codify pre-existing pendent jurisdiction law concerning such instances in which district courts are authorized to decline to hear a state claim.Id.

In relevant part, the “substantially predominates” standard found in section 1367(c)(2) comes directly from the opinions of the Supreme Court in United Mine Workers v. Gibbs, 383 U.S. 715 (1966). The Supreme Court in Gibbs explained the pendent jurisdiction doctrine as below:

It has been reconginzed continuously that pendent jurisdiction to be the doctrine of discretion, not of the rights of plaintiff’s. Its validation lies when considering the judicial fairness, economy, and convenience to litigants; if these are not present a federal court should hesitate to exercise jurisdiction over state claims, even though bound to apply state law to them. (citation omitted) Needless decisions of state laws should be avoided both to support the justice between parties by allowing for them to have surer-footed reading of the applicable law, and as a matter of comity.

Federal court recognizes the vast latitude to decide the ancillary questions of the state law doesn’t imply that it has to tolerate a litigant’s effort to force upon it what is in effect only a state law case. When it appears that a state claim constitutes the real case, to which the federal claim is only an appendage, the state claim could fairly be dismissed.

Gibbs, 383 U.S. at 726-27 (internal citations and footnotes *77 omitted).
In short, section 1367(c)(2) “was fashioned as an exception to the operation of the doctrine of pendent jurisdiction — a doctrine seeking to promote judicial convenience, economy, and fairness to litigants by litigating in one case all claims that arise out of the same core of operative facts.”West Mifflin, 45 F.3d at 789. Section 1367(c)(2)’s authority should be invoked only where there is an important countervailing interest to be served by relegating state claims to the state court. This will normally be the case only where allowing the claims in the district court be litigated accurately describe as to allow a federal tail to wag what is in substance a state dog.

The issue to decide is whether the state claims alleged here at this court can be said to “substantially predominate” over the FMLA and COBRA claims. While it is true that the state claims, in this case, outnumber the federal claims, the number of claims in the Complaint is not controlling under the “substantially predominate” standard. Id. Rather, the question is whether or not the state law claims appear from the Court’s point of view to “substantially predominate” over the distinct federal issues.

A close reading of the Complaint reveals that the state law issues substantially predominate, both in terms of proof and *88 scope of the issues raised. Plaintiff alleges two federal claims, only one of which marginally touches on the alleged conduct of Defendant Borelli. First, Plaintiff alleges in Count One a violation of the FMLA. Plaintiff alleges that Defendant Lighthouse retaliated against him for requesting medical leave initially. This conduct, however, predates any alleged involvement on the part of Defendants Borelli and Borelli Investigations. In addition, Plaintiff alleges that he was given an unduly negative performance evaluation. This evaluation also predates any alleged involvement by Defendants Borelli and Borelli Investigations. Additionally, Plaintiff alleges that the Defendant violated COBRA by failing to give him 60 days to elect continuation of his health coverage. These allegations do not involve any set of facts involving Defendants Borelli and Borelli Investigations.

Thus, much of the evidence the Plaintiff would seek to introduce supporting his state claims wouldn’t be relevant to the federal claims, that is, whether the Lighthouse violated the FMLA or COBRA, but concerns solely the question of whether or not Defendant Borelli, acting as a private investigator, violated several state laws.1 This is not a case where the same acts *99 alleged violate parallel federal and state laws or where the common nucleus of operative facts is obvious. See Lyon v. Whisman, 45 F.3d 758, 761 (3d Cir. 1995). Quite to the contrary, the state law claims go well beyond the FMLA and COBRA claims.

Plaintiff asserts that Defendant Borelli may be called as a witness in the federal case against Lighthouse. While that may be true, the jury will not be saddled with evidence concerning the state law claims.

Of course, this Court recognizes that pendent jurisdiction is more appropriate where there is the possibility of duplicating the recovery of damages. See Sparks v. Hershey, 661 F.2d 30 (3d Cir. 1981). That is not a problem in this case because Plaintiff seeks separate recovery from Lighthouse and Defendants Borelli and Borelli Investigations for different causes of action.

In short, a reading of the Complaint reveals that this is the unusual case where the Plaintiff is attempting to impose upon this Court what is in effect a state law case against Defendants Borelli and Borelli Investigations. Permitting litigation of these claims would allow a “federal tail to wag a state dog.” The state law claims of defamation, tortious interference with economic advantage, and fraud, involve issues of state law interpretation and application and are not straightforward negligence claims based on the same facts as the FMLA and COBRA claims. Cf. West Mifflin, 45 F.3d at 790 (“we believe it will be the rare case, at least, where the addition of straightforward negligence claims based on the same facts as the constitutional claims will cause the state issues to substantially predominate.”) Allowing these separate state claims to proceed *1010 will not be fair to the parties: Defendants Borelli and Borelli Investigations will be forced to defend themselves in a federal employment lawsuit; Defendant Lighthouse’s federal employment dispute with Plaintiff will become something more than that. For this Court to exercise supplemental jurisdiction, then, would run contrary to principles of judicial economy, convenience and fairness. Id. In short, this Court finds that the state issues will substantially predominate within the meaning of Section 1367(c)(2).

IV. Conclusion

For the reasons set forth above,

THIS COURT WILL DECLINE jurisdiction over state law claims pursuant to 28 U.S.C. § 1367(c)(2) and, because this Court has declined to exercise supplemental jurisdiction over the state law claims, the Court will GRANTDefendants’ motion to dismiss on these grounds. Defendants’ remaining motions will DENIED as moot. An Order will accompany this Opinion.