Skip to main content

View more from News & Articles or Primerus Weekly

By Thomas Paschos

Thomas Paschos & Associates, P.C.

Haddonfield, NJ

In Kelley v. AmerisourceBergen Corp., 2009 WL 3127752 (E.D. Pa. September 29, 2009) (slip copy), Plaintiff, Susan Kelley, brought an action against Defendant AmerisourceBergen Corporation, charging violations of the Family and Medical Leave Act (FMLA). AmerisourceBergen brought a Motion for summary Judgment, which the District Court granted in its favor and against Plaintiff Kelley. In so doing, the District Court held that an employer may terminate an employee while that employee is on FMLA approved leave, where there is no evidence that the reason for the termination was the taking of leave, and where the employee, had she not been on leave, would have been terminated.

Plaintiff, Susan Kelley, began her employment with AmerisourceBergen as an inventory clerk/slot info clerk on June 5, 2006. At or about that same time, several other employees were also hired for similar positions. While Kelleys performance initially met the requirements of the position, beginning in January 2007, Kelley was reprimanded on several occasions for lateness, and received a mixed performance review in May 2007.

In August 2007, on her final day of vacation, Kelley contacted her supervisor at AmerisourceBergen, requesting two additional vacation days because her father had become seriously ill. She also requested, and was provided with, the necessary paperwork to take Family and Medical Leave. Within one week, Plaintiffs father passed away. While leaving the funeral home, Kelleys mother fell and injured her ankle. Kelley contacted AmerisourceBergen to request an extension of the FMLA leave in order to care for her mother. Due to the emergent nature of the request, Kelley was given verbal approval, and thereafter submitted all necessary paperwork. The FMLA leave was later approved through September 6, 2007.

On August 14, 2007, while still on leave, Kelleys supervisor contacted Kelley and requested that she come to the office for a meeting. When Kelley stated she could not come, the supervisor advised that a letter would be sent explaining what was to be discussed at the meeting. On August 16, 2007, correspondence was sent to Kelley, stating that her position had been eliminated, and her employment with AmerisourceBergen was terminated effective August 16, 2007. The termination package also included severance documents, including a standard form release that stated in exchange for severance pay, Kelley would release any and all claims of employment discrimination. Several days later, Kelley contacted the AmerisourceBergen corporate office, complaining that she was terminated because of her FMLA leave. However, she never requested an explanation for her termination, and at no time was she told that her Leave was the cause for her termination.

Kelleys position was not filled after her termination. Additionally, in the year following Kelleys termination, 18 other employees were terminated from AmerisourceBergen.

The District Court noted the McDonnell Douglas burden-shifting framework applies to an FMLA claim such as this. Under such a framework, the Plaintiff bears the burden of establishing a prima facia case of discrimination. Once the prima facia case has been established, the burden then shifts to the Defendant to articulate a legitimate, non-discriminatory reason for the adverse employment action. Should Defendant meet its burden, Plaintiff must then prove that the reason offered by the Defendant was a pretext for the discrimination.

In this instance, the District Court noted that Kelley could not support her FMLA termination/ retaliation claim, because she provided no evidence to show that her termination was causally related to her having taken FMLA leave. Further, the District Court noted that even if Ms. Kelley could make out her claim, she presented no evidence to establish that the legitimate reason offered by AmerisourceBergen were pre-text, those reasons being a slow-down in work resulting in a reduction in force, combined with Ms. Kelleys poor performance and prior corrective actions. In ruling in favor of AmerisourceBergen, the District Court stated This right to reinstatement [at the end of FMLA Leave] is qualified by a statutory directive that it does not entitle a restored employee to a right, benefit or position to which the employee would not have been entitled had the employee not taken the leave.

Accordingly, the District Court affirmed that an employee may be terminated while on Family and Medical Leave, so long as the reason for termination is not the taking of the leave, and the employee would have otherwise been terminated had the employee not been on leave.


Where a Claim Has Been Brought Under a Statute Containing a Fee Shifting Component, A Defendant is Not Entitled to An Award of Fees Under Rule 4:58, The Offer-of-Judgment Rule, But Is Entitled to Consideration of Plaintiffs Rejection of Offer in Calculation of Fee Award to Plaintiff

In Best v. C&M Door Controls, Inc., --- N.J. ---, --- A.2d ----, 2009 WL --- (October 14, 2009), Plaintiff Thomas Best brought an action against Defendant C&M Door Controls, Inc., charging violations of the Conscientious Employee Protection Act (CEPA) and the Prevailing Wage Act (PWA). Following a jury verdict in Plaintiffs favor as to the PWA, the parties each sought counsel fees and costs. The trial court denied fees and costs to Defendant C&M, and granted fees and costs to Plaintiff Best, although the Court limited the amount recoverable. Both parties appealed. The Appellate Division upheld the trial courts ruling. Plaintiff sought, and was granted, certification to appeal to the New Jersey Supreme Court. The Supreme Court held that although a defendant cannot be awarded fees under Rule 4:58, the offer-of-judgment rule, in a case involving a statute containing a fee-shifting provision, such as CEPA or the PWA, a trial judge, in calculating fees awarded to plaintiff, may take the rejection by plaintiff of such offers into consideration.

Plaintiff, Thomas Best, was employed by Defendant, C&M Door Controls, Inc. During the course of his employment, Best made a complaint to C&M that he had been underpaid as to work falling within the PWA. Thereafter, Best was terminated. Best brought suit against C&M, for violations of the PWA and CEPA. During the course of litigation, Best made an offer of judgment in the amount of $100,000, including fees, in accordance with New Jersey Rule of Civil Procedure 4:58. C&M made two separate counter-offers in accordance with Rule4:58, in the amount of $15,000 and $25,000, which Best rejected. The jury entered a no-cause finding as to the CEPA claim, but awarded Best $2,600 as to the PWA claim.

Following the trial, Best sought counsel fees of $122,000 plus costs from C&M under the fee shifting provisions of the PWA, and C&M sought counsel fees and costs under Rule 4:58, because the jury verdict was less than 80% of C&Ms offer of judgment. The trial court denied fees and costs to C&M, finding that such an award would contravene public policies. The court did award fees to Best under the PWA, but limited same to fees accrued up to the time of the offer of judgment, and then further limited that award by 40%, citing to Bests limited success in the matter.

Both parties appealed. The Appellate Division reversed and remanded as to C&Ms claim for fees related to the PWA claim, finding that the PWA was intended to benefit both employers and employees, and so would not be undermined by the application of Rule 4:58. The Appellate Division also reversed and remanded the award of fees to Best under the PWA, finding that the trial judge failed to make specific findings regarding the 40% reduction in fees. However, the Appellate Division affirmed the trial courts decision to limit the award to Best to fees accrued prior to the offer of judgment.

Best petitioned for, and was granted, certification to appeal to the New Jersey Supreme Court. C&M did not cross-appeal. The Supreme Court found that C&M was not entitled to fees and costs as provided by Rule 4:58, because neither CEPA nor the PWA allows for an employer to receive an award of fees except in a very narrow set of circumstances where the court finds that the litigation itself was frivolous, lacking in any basis in law or fact. However, the Supreme Court noted that Rule 4:58-3(c), in seeking to reconcile the offer-of-judgment rule with fee shifting, does allow for consideration, in calculating the award of fees to a plaintiff, of the reasonableness of the offer of judgment, the unreasonableness of a rejection of such an offer, and the reasonableness of the fee award in totality. Accordingly, the Supreme Court remanded the matter for recalculation of the fee award to Best, taking into consideration Bests failed CEPA claim, the reasonableness of Bests rejection of the offer of judgment, and the reasonableness of the award in totality.

For more information about Thomas Paschos & Associates, P.C., visit