Trainer Injured at Health Club Shed Her Employee Status and Was Not Covered at the Time of Her Fall

Mary Patterson worked for The Atlantic Club as a personal trainer, training clients from 6:00-7:00 a.m., from 8:00-11:00 a.m., and from 12:00-3:00 p.m.  She was injured at 11:15 a.m. when she tripped and fell, breaking her wrist on the premises.  The Atlantic Club denied the claim asserting that she was not in the course of her employment at that specific point in time.

There were various facts in dispute, but the parties agreed that Patterson’s 11:00 a.m. client did not show up for her training session.  Further, the parties agreed that Patterson was not wearing her uniform at the time of her injury, namely a black trainer shirt.  She said she had taken it off due to the heat.  Patterson claimed that she was returning exercise bands which she planned to use for her 11:00 a.m. client when she tripped and fell. Her employer argued that she was working out when she was injured.

There was conflicting evidence on whether petitioner punched out at 11:00 a.m. A time card entered into evidence showed that Patterson punched out at 11:00 a.m.  However, petitioner’s former manager testified that he altered Patterson’s time card, at the employer’s request, to indicate that she had punched out and was not working at the time of her injury.  The Judge of Compensation found this evidence to be unreliable for a number of reasons.  First, the former manager had been fired some time after this event for submitting time cards for compensation for personal training sessions with a person who was deceased. Further, the time card was shown not to have been changed for about two weeks.

The general manager of the health club, Kathy Guibord, testified that Patterson may not have punched out at the time of the accident.  However, petitioner told Guibord that she was working out on her own and was not training anyone when she was injured. Guibord noticed that petitioner was in her workout clothes at the time of her injury.

The Judge of Compensation viewed the issue of punching out on the time card as insignificant.  He instead focused on the detail that petitioner was out of her uniform.  “[S]he changed out of her uniform and into her personal clothes because she was on her personal time and no longer working.” The Judge of Compensation dismissed the case, holding that petitioner failed to prove her injury occurred during the course of work.

The Appellate Division affirmed the dismissal of this case:

Patterson has simply not met her burden. . . . She was not wearing the required uniform while she alleged she was waiting for her client.  Guibord testified Patterson told her immediately after the incident that she had been working out on her own when she fell and broke her wrist.  Given the judge’s credibility findings, which we review deferentially, his ultimate conclusion does not appear to be arbitrary, capricious, or unreasonable.

Petitioner made an interesting argument on appeal.  She maintained that there was a mutual benefit to her employer in her working out even if it was for herself.  She contended that employees were affirmatively encouraged to work out at the club in order to increase the employer’s business.  Unfortunately for petitioner, this issue had not been raised in the trial in the Division of Workers’ Compensation.  Seldom will an appeals court address an issue not raised in the original trial. Furthermore, the witnesses Patterson relied on to establish this point were found by the Judge of Compensation to be lacking in credibility.

This case is useful for practitioners in that it shows that not all injuries at work are compensable.  The holding here was that the activity which led to petitioner’s injury was personal and not part of her job duties.  The case can be found at Patterson v. The Atlantic Club, A-0657-12T1 (App. Div. July 11, 2013).

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This blog article was researched and written by John H. Geaney, a member of the executive committee and equity partner at the law firm of Capehart Scatchard. The content of the this article is intended to provide general information on the topic presented, and is offered with the understanding that the author is not rendering any legal or professional services or advice. This article is not a substitute for legal advice. Should you require such services, retain competent legal counsel.

Trainer Injured at Health Club Shed Her Employee Status and Was Not Covered at the Time of Her Fall

HIV Positive Employee Shows Enough Evidence to Defeat Employer’s Motion for Summary Judgment

Winning on summary judgment on fact sensitive ADA cases can be quite difficult as seen in Croy v. Blue Ridge Bread, Inc. d/b/a Panera Bread, 28 ADA Cases 414, (W.D. Va. No. 3:12-cv-00034, July 15, 2013).

Mark Croy worked for Blue Ridge Bread (hereinafter BRB) as a café worker. In 2008, he received a promotion in the marketing department.  He received a formal write-up on March 14, 2009 for failing to properly prepare for an in-store event and a second write-up on May 21, 2009 for failing to update a store’s Facebook page in a timely manner.  He received a third write-up on December 28, 2009 for using an inappropriate tone in a phone call with his supervisors.  He also repeatedly failed to submit Product Request Forms which led to shortages in product.

Notwithstanding these deficiencies, Croy had a performance review in 2009 that resulted in a “meets expectation” assessment.  He also claimed that he was told in 2010 that his performance was excellent and he would be getting a large bonus.

In February 2011, Croy began to experience flu-like symptoms and needed time off to see a doctor.  He worked reduced hours for several days. He was given a preliminary diagnosis of HIV on March 10, 2011.  He sent a Facebook message that same day to one of his supervisors stating that he went to an infectious disease specialist and there were strong indications that he had a virus like HIV.  He said that over the next few weeks he had numerous conversations with two supervisors advising them of his HIV diagnosis.

On March 14, 2011, Croy returned to his regular schedule. He said his supervisor asked him to provide a doctor’s note stating that he was physically able to return to work.  However, on March 24, 2011, Croy applied for a disability insurance policy through BRB.  On March 25, 2011 Croy presented a note from his doctor stating that he was able to return to work full-time without any restrictions.  The note said nothing about his medical condition.

BRB denied that it was aware of the HIV diagnosis.  At most, the company said it had been made aware of the possibility of such a diagnosis.

On March 29, April 4, and April 8, Croy once again failed to submit Product Request Forms.  Croy admitted his mistake:  “No questions . . . I screwed it up. I am just at a lost at [sic] my mind the past few weeks.  Too much going on I guess and too much distraction . . . I am sorry to let you and the department down like this, but I view it as a temporarily distracted and worried time in my life that will not be repeated.

Pursuant to the company’s three strike policy, Croy’s employment was terminated.  The company claimed that after the termination, in mid-April 2011, Croy then advised for the first time that he was HIV positive. Croy sued under the ADA, claiming that BRB terminated his employment because of his HIV positive status.

The company made a motion for summary judgment and argued that Croy had repeatedly been written up for violations, particularly in 2009, and repeatedly failed to submit Product Request Forms.  According to the company, this was the sole reason for his termination.  The Court did not accept this position. “While Croy admits to some performance errors during his nearly five-year tenure with BRB, he was never told he was in danger of losing his job until the March 28, 2011 write-up.  His most recent performance review indicated that he was meeting expectations, and he had recently been told that he was doing an excellent job and would be receiving a substantial bonus in the coming year.

In a key point of the decision, the Court noted that the company had never formally disciplined Croy until close in time to his diagnosis. “By the defendant’s own admission, Croy had made similar mistakes numerous times in the past and had never been formally disciplined.  Additionally, Croy reports that a number of his co-workers, including his supervisors Jackson and Perpetua, also failed to properly submit PRFs and were not disciplined for their mistakes. The court believes that Croy has at least established a genuine question of fact as to whether he was meeting BRB’s expectations.

The Court observed that Croy had not been perfectly clear regarding his diagnosis.  In fact, in one place on his disability application he had denied having had any diagnosis of HIV in the past seven years.  Nonetheless, the Court said that there was a significant dispute whether Croy had told his two supervisors about his diagnosis before he was fired. “Although the defendant can dispute this version of events at trial, it cannot do so at summary judgment where the plaintiff’s testimony must be credited.  Moreover, it is undisputed that, at the very least, Croy told his supervisors of a preliminary diagnosis of HIV, as documented in the March 10, 2011 Facebook message he sent to Jackson.

It is important to understand this decision merely allowed the case to proceed to trial, meaning that a jury could ultimately conclude either that the company terminated Croy for purely performance reasons or that the company improperly terminated him on account of his HIV status.  In analyzing what went wrong for BRB, the case shows why a company not only needs to document deficiencies on the job but also take progressive discipline if the problem recurs.  The failure of the company to put Croy on notice that his job was in danger when he made repeated mistakes in prior years came back to hurt the company’s chances in its motion for summary judgment.

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This blog article was researched and written by John H. Geaney, a member of the executive committee and equity partner at the law firm of Capehart Scatchard. The content of the this article is intended to provide general information on the topic presented, and is offered with the understanding that the author is not rendering any legal or professional services or advice. This article is not a substitute for legal advice. Should you require such services, retain competent legal counsel.

HIV Positive Employee Shows Enough Evidence to Defeat Employer’s Motion for Summary Judgment

Appellate Division Affirms Decision That a Motion for Past Benefits Should Not Be the Subject of a Motion Trial

Caitlin Wilson was injured on September 8, 2011 when she dropped a heavy frame on her foot while in the employment of respondent Studio I, Inc. She received $420 per week from September 14, 2011 to October 24, 2011 in temporary disability benefits.  Her doctor advised that she could work light duty at the end of this period, but she did not return to work at this time.  She did return part-time from November 15 – 26, 2011.  She claims the respondent then told her not to return to work until she could work full-time.  Petitioner was paid $339.43 in temporary disability benefits for the period she worked part-time.

Respondent claimed that petitioner was authorized to return to work with restrictions on October 14, 2011.  It tried to accommodate the restrictions which actually increased over the next two months, but petitioner either did not arrive at work, arrived late or did not perform her job even with accommodations.  Respondent further claimed that petitioner stopped coming to work entirely without producing any medical note.  She resigned from the company on February 9, 2012 because she was moving. It was undisputed that petitioner returned to work on February 10, 2012.

On January 13, 2012 petitioner filed a motion for medical and temporary disability benefits.  She argued that her wage was miscalculated and that she was entitled to temporary disability benefits from October 25, 2011 to November 14, 2011.  She maintained that her temporary disability benefits should have continued until February 3, 2012.   She also argued that when she filed the motion in January, 2012, she was not working at that time and was, in her view, entitled to temporary disability benefits.  Therefore, in her view, it did not matter that she later returned to work on February 10, 2012. She argued that she was entitled to a decision on her motion at that time.

The Judge of Compensation, Honorable Philip A. Tornetta, denied the motion because the claim concerned past periods of temporary disability and was contested by respondent.  The Judge relied on N.J.A.C. 12:235-3.2(a).

Motions for temporary disability and/or medical benefits shall evidence that petitioner is currently temporarily totally disabled and/or in need of current medical treatment.  Where only past periods of temporary total disability and/or medical expenses are claimed by petitioner, such issues should be presented at pretrial for resolution or trial and not by motion under this section.

The Appellate Division reviewed the appeal and affirmed Judge Tornetta’s decision.  It said, “in this matter an incorrect determination of past temporary benefits can be remedied by a retroactive award of benefits.  Thus, this appeal is interlocutory.”   It relied on Della Rosa v. Van-Rad Contracting Co. Inc., 267 N.J. Super. 290, 294 (App.Div. 1993).  “A serious injustice might occur if a respondent were required to pay an award for temporary disability and medical services and then be unable to obtain the return of its monies in the event of reversal.  It would also be a matter of concern to petitioner to receive such payments with the prospect of possible repayment being required.”

The case can be found at Wilson v. Studio I, Inc., d/b/a/ Venture Photography, A-0117-12T4 (App. Div. August 8, 2013).  It is a useful case for practitioners in clarifying whether a motion for medical and temporary disability benefits should be heard early in the case or held to the end of the case when all issues will be decided.

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This blog article was researched and written by John H. Geaney, a member of the executive committee and equity partner at the law firm of Capehart Scatchard. The content of the this article is intended to provide general information on the topic presented, and is offered with the understanding that the author is not rendering any legal or professional services or advice. This article is not a substitute for legal advice. Should you require such services, retain competent legal counsel.

Appellate Division Affirms Decision That a Motion for Past Benefits Should Not Be the Subject of a Motion Trial

Failure to Provide FMLA Notice Dooms Employer’s Effort to Terminate Employee for Excessive Use of Leave

The case of Young v. Wackenhut Corporation, 2013 U.S. Dist. LEXIS 14414 (D. N.J. Feb. 1, 2013) demonstrates the importance of providing required FMLA notice to eligible employees.

Jacqueline Young, a Payroll Specialist, advised her employer, The Wackenhut Corporation (hereinafter “TWC”), of her interest in maternity and FMLA leave in November 2008, when she first found out that she was pregnant.  On April 30, 2009, she sent the HR Director an email regarding her “maternity and FMLA leave.”  She supplied the HR Director with leave of absence forms and a doctor’s note putting her out of work.  She went out on maternity leave on June 12, 2009.

TWC did not provide any notices as required under the FMLA.  This turned out to be the key fact in the case.  Specifically, the company did not provide the FMLA Eligibility Notice, the Rights and Responsibility Notice, and the Designation Notice.  Instead after months of leave, company representatives called Young on November 30, 2009 and told her that her leave had expired and that she needed to return to work.  This was the first time that TWC reached Young, although Young had called and emailed the company before this date.  The company also told Young that it would need a return-to-work note from her doctor.  On December 1, 2009, the company terminated Young’s employment for failing to provide a return-to-work note and for exhausting her FMLA leave.

Young sued under the FMLA and argued that the company violated her rights under the FMLA because she was never informed that she had to return to work by November 19, 2009, nor provide a doctor’s note.  The District Court first noted that the company failed to provide Young with “individualized notice” as required by the FMLA.  It rejected the company’s argument that an employer’s inclusion of a summary of an employee’s rights in an employee manual constitutes “sufficient notice.” Even though all employees had access to an employee handbook both online and at the HR office, the court held 29 C.F.R. 825.300 specifically requires compliance with the Eligibility Notice, Rights and Responsibility Notice and Designation Notice. The employer is also required to advise on designation whether it will require a return-to-work note.

TWC argued that even if it had not complied with FMLA notices, plaintiff could not prove any real prejudice to her.  The company maintained that Young took more than her allowed 12 weeks of leave and should not be able to advance an FMLA claim.  Young countered that had she gotten the appropriate notices up front, she would have known her expected return-to-work date and she could have avoided termination.  The court said, “TWC’s argument ignores the fact that the November 30, 2009 telephone call between Plaintiff and Winter Lemon and Doris Wallace was the first time Plaintiff was formally told by TWC that her FMLA leave time had been exhausted.” 

The Court relied on prior New Jersey case law, particularly Conoshenti v. Public Serv. Elec. & Gas Co., 365 F.3d 135, 143 (3d Cir. 2004) for the proposition that an employee has a right to make an informed decision about structuring leave time and planning recovery so as to preserve job protection.

This case is consistent with recent FMLA amendments which allow employers to retroactively designate FMLA time, but only where such designation does not prejudice the rights of the employee.  In this case, the employer’s failure to provide individualized notice created the initial problem; the subsequent attempt by the employer to retroactively designate time off on maternity leave failed since the employee had a strong argument that had she received notice promptly, she could have structured her leave so as to return to work by November 19, 2009.  Most importantly, the case underscores why it is so crucial for employers to utilize appropriate FMLA notice forms.  Having an FMLA policy in an employee manual and online is wise but it cannot substitute for specific notice requirements.

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This blog article was researched and written by John H. Geaney, a member of the executive committee and equity partner at the law firm of Capehart Scatchard. The content of the this article is intended to provide general information on the topic presented, and is offered with the understanding that the author is not rendering any legal or professional services or advice. This article is not a substitute for legal advice. Should you require such services, retain competent legal counsel.

Failure to Provide FMLA Notice Dooms Employer’s Effort to Terminate Employee for Excessive Use of Leave