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Hampton v. Armand Corporation11/18/2003
e demotion.
Soon after plaintiff took over the officer manager position, most of her job duties were eliminated or given to others. She took additional time off from January 21, 1999 to January 28, 1999, because she was sick again as a result of her gallbladder surgery. On February 25, 1999, plaintiff was discharged. She claims she was fired because she missed work due to her illness and surgery. Armand claims plaintiff was terminated, along with other employees, because the business was having financial difficulties.
After being terminated, plaintiff filed suit against defendant in state court, alleging she was wrongfully discharged in retaliation for taking medical leave. Armand filed a notice of removal to the United States District Court, where Judge Simandle dismissed plaintiff's FMLA claim because she had not been an employee of defendant for one year prior to her termination. See 29 U.S.C.A. § 2611(2)(A)(i). The judge also remanded the case to state court to resolve plaintiff's remaining state law claim, that she was terminated in violation of public policy.
New Jersey recognizes a claim for wrongful termination of an at-will employee when the discharge is contrary to a clear mandate of public policy. See Pierce, supra, 84 N.J. at 72. An employee can prove a wrongful discharge claim by"show that the retaliation is based on the employee's exercise of certain established rights, violating a clear mandate of public policy." MacDougall v. Weichert, 144 N.J. 380, 393 (1996). Sources of public policy include legislation; administrative rules, regulations or decisions; and judicial decisions. Pierce, supra, 84 N.J. at 72. Whether a plaintiff has established the existence of a clear mandate of public policy is an issue of law. Mehlman v. Mobil Oil Corp., 153 N.J. 163, 187 (1998)."A salutary limiting principle is that the offensive activity must pose a threat of public harm, not merely private harm or harm only to the aggrieved employee." Id. at 188. The public policy must be"clearly identified and firmly grounded.... A vague, controversial, unsettled, and otherwise problematic public policy does not constitute a clear mandate." MacDougall, supra, 144 N.J. at 391-92. Unless an employee at-will identifies a clear, specific expression of public policy, that employee may be discharged with or without cause. Pierce, supra, 84 N.J. at 72.
Here, plaintiff claims the FMLA establishes the public policy needed to support her cause of action. She argues that the FMLA prohibits an employer from discharging an employee for taking medical leave, which is what defendant did to her. Plaintiff claims she was retaliated against for taking medical leave, and was demoted and ultimately fired. Consequently, she asserts that Judge Freeman erred when he dismissed her complaint for want of a public policy violation. What plaintiff's position fails to consider, however, is that the policy expressed by the FMLA -- that an employee is entitled to reasonable medical leave -- applies only to"eligible employees," those who have worked for the employer for at least twelve months. See 29 U.S.C.A. § 2611(2)(A)(i).
For an employer to terminate an"eligible employee" for taking reasonable medical leave is a violation of the FMLA. See 29 U.S.C.A. § 2601(2); 29 U.S.C.A. § 2615(a)(2). An"eligible employee" under the FMLA is"entitled to a total of 12 workweeks of leave during any 12-month period... ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C.A. § 2612(a)(1)(D).
In enacting the FMLA, Congress"intended that workers should be able to return to their jobs after leave for a serious health condi
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