In Moore v. County of Camden, 20 WH Cases 2d 1369 (D.N.J. 2013), a New Jersey federal district ruled declined to dismiss and set for trial a Dispatch Managers Claim that he was retaliated against after he presented his health issues.
Moore began working at Camden County Communication Center in 1996 and was promoted to Administrative Chief in 2008. In September 2009, Moore was diagnosed with leukemia; the Director requested he take time off to “get his head together” and Moore planned to take two weeks in November. The Director claims that in late November, Moore said he was worried he could not perform his job. Moore denies this happened and rebuts that he was on leave at the time.
On December 7, 2009, Moore submitted a request for FMLA leave and two days later, he was demoted to his prior position as Administrative Captain. He incurred a pay reduction from $80,000 annually, to $62,000 annually and requested a transfer to Operations for the overtime.
Moore began FMLA leave in February 2010 and in April his physician requested a position with less exposure to people. Moore requested transfer away from the moldy operations room and back to Administrative Captain position, which has its own office. The Director denied the request and attempted to accommodate Moore by “offering hand sanitizer, facemask, gloves, and regular cleaning of the work environment;” Moore says this was inadequate and brought suit.
The court considers whether three issues may go to trial. (1) Whether the County demoted Moore as retaliation for invoking rights under the FMLA. (2) Whether the County violated New Jersey Law Against Discrimination (LAD) when it demoted Moore. (3) Whether the County’s failure to transfer Moore to an alternative position violated LAD?
To sustain a claim of FMLA retaliation, the court ruled Moore must show (1) that he engaged in protected activity under the FMLA, (2) that he suffered an adverse employment action, and (3) that action was “causally related” to Moore exercising his FMLA rights. If he makes this “prima facie case,” then the burden shifts to the Center to show it had a legitimate reason to demote him.
The Center did not challenge the first element, as Moore clearly engaged in protected activity by requesting FMLA leave. Moore then suffered an adverse employment action because he was financially injured by his demotion and revocation of his former title as Chief. Lastly, because he was demoted two days after his request for leave, Moore established a basic causal relation. CCCC could rebut by showing it had a legitimate or “non-pretextual” reason for demoting Moore; the supervisor says he demoted Moore because of their conversation in November, but the court concludes this is an issue for the jury for three reasons:
(1) The close temporal proximity between [Moore’s] request for leave and his demotion; (2) [Director’s] opinion of [Moore’s] abilities … noted that [Moore] was able to “perform his duties” as Acting Chief; and (3) most importantly, [Moore’s] denial that he ever expressed an inability to perform his job.
Moore’s demotion qualifies for New Jersey’s LAD statute because he raised issues on all four elements. (1) That he is a member of a protected class because he has leukemia. (2) He is qualified and able to perform the essential functions of the position because of the supervisor’s own report that said Moore is competent3) Moore suffered an adverse employer action from his demotion and (4) it is causally connected because he was demoted after he was diagnosed.
New Jersey’s state law against discrimination also protects against discriminatory failures to transfer if Moore can meet a few more elements. (1) There was a vacant, funded position is shown by the current Captain’s willingness to transfer from the position, (2) the position was at or below the level of Moore’s former job is shown because Moore was demoted to that job, and (3) that Moore was qualified to perform the essential duties of the job with reasonable accommodation
