SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-4671-96T2
DONNA KENNEY,
Plaintiff/Appellant,
v.
MEADOWVIEW NURSING AND
CONVALESCENT CENTER,
Defendant/Respondent.
___________________________________________________________________
Submitted: January 27, 1998 - Decided: March 3, 1998
Before Judges Pressler, Wallace and Carchman.
On appeal from the Superior Court of New
Jersey, Law Division, Camden County.
S. Robert Freidel, Jr., attorney for
appellant.
Angelini, Viniar & Freedman, attorneys for
respondent (Robert F. Cuva, on the brief).
The Opinion of the Court was delivered by
WALLACE, JR., J.A.D.
In this action under the Family Leave Act (Act) and the Law
Against Discrimination (LAD), plaintiff appeals from the grant of
summary judgment in favor of defendant dismissing her complaint.
On appeal, plaintiff essentially contends that it was error to
dismiss her complaint because she established a prima facie case
that she qualified for Family Leave benefits. We find merit to
plaintiff's contention and reverse.
Plaintiff Donna Kenney began her employment with defendant Meadowview Nursing and Convalescent Center in 1988 as a licensed practical nurse. On November 21, 1993, plaintiff was injured at work. In her claim petition seeking workers' compensation benefits, plaintiff stated she tore a ligament in her left arm and shoulder while cranking a bed. Defendant's answer to the claim petition revealed that plaintiff returned to work January 7, 1994, and that she was paid temporary disability of $3,601.92 at the weekly rate of compensation of $382.30. Plaintiff's compensation claim was settled and an order approving settlement was entered on August 23, 1995. As a result, plaintiff received temporary disability pay for the period of November 21, 1993, through January 7, 1994, totaling $3,601.92.
Plaintiff returned to work in January 1994. She was pregnant at that time. She requested information concerning the benefits she was entitled to receive under defendant's Family Leave policy. On March 17, 1994, plaintiff wrote to her supervisor, Alice DelRossi:
As per our discussion on Friday, March 11, 1994, I still have questions and concerns which I feel have not been completely addressed. Since I had been informed that I was not eligible for a Family Medical Leave, I have not been informed as to what amount of time I am permitted to be absent from work after I have my baby, and what it will be classified as.
Also, as per my letter of March 1, 1994, I continue to be concerned about job security. Therefore, I am requesting several things from you in writing. First, I would like to be
informed specifically the exact amount of time
I am permitted to be absent after the birth of
my baby. Second, the date I would have to
return in order to maintain my current
position on the 7pm to 7am half weeks on
Worker's Compensation will have on any leave I
require after giving birth.
I have reviewed my employee handbook
thoroughly, and can find nothing that
prohibits me from using accrued vacation time
prior to an unpaid leave. If there is such a
policy, I would appreciate a copy to add to my
handbook.
When I was first approached by Pat Bacon on
February 24, 1994, I requested a letter from
her documenting the date that my medical
coverage would be terminated as well as
information on COBRA which would allow me to
pay for my own coverage. I still do not have
this information.
I plan to send a copy of this letter to Jane
Greenburg. Thank you for your expedient
attention to this matter.
Plaintiff was later informed by DelRossi that she did not
qualify for Family Leave benefits because she had not worked the
required 1,000 hours during the previous twelve months. Defendant
claimed that plaintiff had only worked 974 hours and that she was
not entitled to receive any credit for the time she was paid
workers' compensation benefits, approximately 360 hours. Plaintiff
stopped working for medical reasons during her pregnancy on or
about March 27, 1994.See footnote 1
The meager facts provided by the parties do not reveal when
plaintiff wished to return to work. However, that information is
not necessary to decide this appeal.
In October 1995, plaintiff filed her complaint herein. She
alleged that defendant had terminated her in violation of the Act,
denied her rights under the Act, and violated the Act by not
reinstating her to her former position. Plaintiff also alleged a
violation of LAD and alleged that her termination violated the
implied and/or expressed employment contract contained in
defendant's employment manuals, policies, and procedures.
Defendant filed an answer denying all allegations. Following the
completion of discovery, defendant filed a motion for summary
judgment. Plaintiff then filed a cross-motion for summary
judgment.
As noted, discovery had been completed. It does not appear,
however, that either party submitted certifications, affidavits,
admissionsSee footnote 2 or answers to interrogatories in support of its
respective motion for summary judgment. Apparently, both parties
relied on the facts set forth in the briefs. In that regard,
defendant provided the additional facts that plaintiff applied to
be rehired in June 1994 but that there were no openings due to a
hiring freeze at the facility following a reduction in Medicaid
funding. Further, defendant noted that in mid-1994, a reduced
staffing pattern was implemented and bonus hours were eliminated.
The next employee hiring did not occur until August 1994.
The motion judge, after noting that plaintiff had submitted no
competent legal evidence under R. 1:6-6, concluded that defendant's
motion was in effect unopposed. The judge ruled that even assuming
there was appropriate opposition, under the rule, plaintiff failed
to meet the 1,000 hours requirement under the Act because she only
worked 974 hours. At that point, plaintiff's counsel argued that
he viewed it as a legal question, "whether or not the 1,000 hours
that are required under the Family Leave Act excludes time and when
you're on worker's compensation." He further argued that if one
counts the period that plaintiff received Worker's Compensation,
that she had more than the required 1,000 hours. Unfortunately,
the judge did not address this argument in granting summary
judgment in favor of defendant.
Initially, we note that pursuant to R. 4:46-2(a), a motion for summary judgment "shall be served with briefs, a statement of material facts and with or without supporting affidavits." Thus, a moving party is required not only to support the motion with a brief, but also with a statement of material facts set forth in separately numbered paragraphs "with a citation to the portion of the motion record establishing the fact or demonstrating that it is uncontroverted." Ibid. Moreover, the motion may be denied without prejudice for failure to file the required statement of material
facts. R. 4:46-2(a). The response to the motion should include a
statement either admitting or disputing the facts asserted in the
movant's statement. R. 4:46-2(b). Further, the opposing party may
include additional material facts as to which there exists a
genuine issue. Ibid.
If there is no genuine issue as to any material fact
challenged, the judge may grant the judgment sought, so long as to
the moving party is entitled to judgment as a matter of law. In
any event, the judge is required to find the facts and state its
conclusions in accordance with R. 1:7-4. See R. 4:46-2(c).
Unfortunately, neither party fully complied with R. 4:46-2.
Despite the failure to comply with R. 4:46-2(a), we are satisfied
that this case was ripe for summary judgment. The material facts
were not disputed. The critical issue was whether plaintiff had
sufficient hours to qualify for Family Leave benefits. We turn now
to that issue.
In D'Alia v. Allied-Signal Corp.,
260 N.J. Super. 1 (App. Div.
1992), we set forth a description of the Act and its legislative
history. As part of that review, we explained that the Legislature
acted "to promote the economic security of families by guaranteeing
jobs to wage earners who chose to take a period of leave upon the
birth . . . of a child or serious health condition of a family
member." Id. at 6 (citing N.J.S.A. 34:11B-2). Further, we recited
key portions of the Act and noted that leave may be denied only
where: (1) the employee falls into a narrow category of highly
salaried individuals, N.J.S.A. 34:11B-4h(1); (2) denial is
necessary to prevent "substantial and grievous economic injury" to
the employer's operation, N.J.S.A. 34:11B-4h(2); and (3) timely
notice is given to the employee, N.J.S.A. 34:11B-4(3). D'Alia,
supra, 260 N.J. Super. at 7. In addition, we stressed that the Act
provides job security by requiring that the employee "`be restored
by the employer . . . to the position held when the leave commenced
or to an equivalent position of like seniority, status, employment
benefits, pay and other terms and conditions of employment.'
N.J.S.A. 34:11B-7." Ibid. Nevertheless, we noted that the Act
provided for an exception where during the leave period a reduction
in force has occurred and the employee would have lost his or her
job in any event, "but that the employee retains all rights to a
recall that he or she would have had if leave had not been taken."
Ibid.
It is undisputed that defendant had a Family Leave Plan as
part of its employment benefits that was consistent with the Act.
Further, it is undisputed that plaintiff gave advance notice to the
defendant of her desire to take Family Leave. What is disputed is
whether plaintiff met the definition of an employee under the Act.
The goal in statutory construction is to determine the intent
of the Legislature and to "make sense of a statute." Strasenburgh
v. Straubmuller,
146 N.J. 527, 539 (1996). Under the Act, employee
"means a person who is employed for at least 12 months by an
employer, with respect to whom benefits are sought under this act,
for not less than 1,000 base hours during the immediately preceding
12-month period." N.J.S.A. 34:11B-3(e). Although base hours are
not defined in the Act, the regulations under the Act define base
hours as "an employee's regular hours of work excluding overtime,
for which an employee receives compensation." N.J.A.C. 13:14-1.2.
Defendant contends that the period plaintiff was unable to work as
a result of her job-related injury should not count towards her
base hours. In our view, defendant's interpretation takes too
narrow a view of the term base hours. It is clear that the plain
meaning of the term employee does not exclude compensation that an
employee receives for her regular work hours for a work-related
injury, nor does it expressly include such compensation.
Another fundamental principle of statutory construction is
that "statutes . . . relat[ing] to the same matter or subject must
be read in pari materia." City of Clifton v. Passaic County Bd. of
Taxation,
28 N.J. 411, 421 (1958). We note that both the Act and
the Workers' Compensation Act, are included in Section 34 of our
statutes. Under N.J.S.A. 34:15-39.1, it is "unlawful for any
employer or his duly authorized agent to discharge or in any other
manner discriminate against an employee as to his employment
because such employee has claimed or attempted to claim workmen's
compensation benefits from such employer . . ." An obvious purpose
of this statute is to ensure that an employee injured on the job is
not treated differently because he or she claims workers'
compensation benefits for that injury.
We are convinced that the Legislature did not intend to
exclude an employee from receiving benefits under the Act merely
because a portion of the required 1,000 base hours were compensated
as a result of a work-related injury. Thus, the Act should be
harmonized with the Workers' Compensation Act which requires
compensation for work-related injuries and prohibits discrimination
against an employee for claiming such benefits. See F & W
Associates v. County of Somerset,
276 N.J. Super. 519, 525-26 (App.
Div. 1994). Further, the Act must be read consistent with its
purpose to provide employees with certain benefits where Family
Leave is requested. In our view, it would violate the strong
legislative mandate under the Act and the Workers' Compensation Act
to exclude the regular hours for which plaintiff was compensated
while she was out on temporary disability for her work-related
injury in counting the regular hours required under the Act.
Consequently, we conclude that base hours under the Act include the
regular hours for which an employee is paid workers' compensation
benefits.
This conclusion necessarily leads to the result that plaintiff
qualified for Family Leave benefits under the Act. Because she was
denied those benefits, plaintiff should have been granted summary
judgment on this issue.
Based on our holding that plaintiff satisfied the 1,000 base hours required by the Act, plaintiff is entitled to receive the benefits and protection of the Act. N.J.S.A. 34:11B-7 provides:
An employee who exercises the right to family leave under section 4 of this act shall, upon the expiration of the leave, be entitled to be restored by the employer to the position held
by the employee when the leave commenced or to
an equivalent position of like seniority,
status, employment benefits, pay and other
terms and conditions of employment. If during
a leave provided by this act, the employer
experiences a reduction in force or layoff and
the employee would have lost his position had
the employee not been on leave, as a result of
the reduction in force or pursuant to the good
faith operation of a bona fide layoff and
recall system including a system under a
collective bargaining agreement where
applicable, the employee shall not be entitled
to reinstatement to the former or an
equivalent position. The employee shall
retain all rights under any applicable layoff
and recall system, including a system under a
collective bargaining agreement, as if the
employee had not taken the leave.
Plaintiff essentially argues that defendant's comments
regarding a reduction in work force were pre-textual. Defendant
denies this assertion and argues that even if plaintiff had been
entitled to benefits under the Act, her position would not have
been available when she was medically released to return to work
because of the reduction in work force resulting from the medicaid
cuts. Unfortunately, both parties raise factual assertions in this
appeal that were not properly included in the motion and cross-motion for summary judgment below. See R. 4:46-2. Consequently,
we will not consider those factual assertions. In other words, the
parties failed to present a statement of material facts to enable
the motion judge to decide as a matter of law whether defendant
complied with N.J.S.A. 34:11-B-7, and/or whether the actions of
defendant violated this statute and/or the LAD.
The summary judgment order is reversed and the matter is
remanded to the Law Division for further proceedings.
Footnote: 1In plaintiff's statement of facts, she claims she was terminated on or about April 14, 1994. Defendant disputes this and asserts that plaintiff took this leave of absence for the birth of her child on March 29, 1994. While this date is disputed, it is not a material factual dispute. Footnote: 2Although the record does not readily show that defendant submitted admissions below, the motion judge did state that plaintiff did not reply to defendant's request for admissions. Plaintiff's counsel, however, disputed that and stated plaintiff had indeed responded to defendant's request for admissions.