                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-19-2008

Baker v. Hunter Douglas Inc
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-5149




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                                                   NOT PRECEDENTIAL
                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                              _______________

                                    No: 06-5149
                                  _______________

                                  CAROL BAKER,

                                           Appellant

                                           v.

                              HUNTER DOUGLAS INC.
                                 _______________

                    On Appeal from the United States District Court
                             for the District of New Jersey
                               (D.C. No. 045-cv-02105)
                     District Judge: Honorable William H. Walls
                                   _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  March 7, 2008

            Before: BARRY, JORDAN, and HARDIMAN, Circuit Judges.

                                (Filed: March 19, 2008)
                                   _______________

                             OPINION OF THE COURT
                                 _______________

JORDAN, Circuit Judge.

      Carol Baker appeals from the District Court’s December 20, 2006 entry of final

judgment, pursuant to Federal Rule of Civil Procedure 54(b), following a March 28, 2006

opinion and order granting summary judgment to Hunter Douglas, Inc. (“Hunter
Douglas”) on four of the five counts of Baker’s Complaint. For the reasons set forth

below, we will affirm.

I.     Background

       Because we write solely for the parties, we presume the reader’s familiarity with

the background of the case and recite only a limited version of the facts. Baker began

working in the Marketing Department of Hunter Douglas in March 1997. In June 2002,

she became a Senior Administrator for Cooperative Advertising, and was responsible for

processing cooperative (“co-op”) claims made by third-party dealers who incurred

advertising costs relating to Hunter Douglas products. Despite her best efforts, it soon

became impossible for Baker to keep up with her work. As a result, Hunter Douglas

contracted with a claim processing company in January 2003 for assistance with the co-op

claims. Baker transferred responsibility for the claims to that company while completing

work on unprocessed claims from 2002.

       Unfortunately, the transfer was, in her words, a “complete disaster” and Baker

soon became overwhelmed by the amount of work, suffering what she described as a

“nervous breakdown.” (App. at A-6.) After seeing a physician, on June 5, 2003, Baker

sent an e-mail to her supervisors explaining her mental state and requested “2 months off

to get my head screwed back on so I can think straight again.” (Id. at A-7.) One of her

supervisors asked if she could finish the work week (June 5, 2003 was a Thursday) and

work one additional week so that the company could find a replacement. Baker then met



                                             2
with the Director of Payroll Benefits who provided her with a copy of Hunter Douglas’s

FMLA 1 policy. Baker was informed that her leave under FMLA was limited to 12 weeks.

Her FMLA leave began on June 16, 2003 and ended on September 5, 2003. She also

applied for and received short term disability benefits beginning at the same time as her

FMLA leave.2

         On September 5, 2003, the last day of her FMLA leave, Baker returned to Hunter

Douglas to discuss with her supervisors the possibility of returning to work part-time.

She did not have the requisite certification from her doctor permitting her to return to full-

time work. Her supervisors were unavailable that day, so Baker left phone messages for

them. One of Baker’s supervisors returned her call on September 15, 2003 and referred

her to the Director of Payroll Benefits. On September 19, 2003, the Director of Payroll

Benefits informed Baker that there were no part-time or full-time positions available at

Hunter Douglas, and, when asked by Baker, told her that she was, in effect, being

terminated.

         Baker filed a Complaint in the United States District Court for the District of New

Jersey on May 5, 2004. The Complaint set forth claims that Hunter Douglas failed to

reinstate her in her previous job or a comparable one and interfered with her taking

advantage of federally available leave pursuant to FMLA (Counts One and Two), that, in


  1
      “FMLA” stands for the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq.
  2
      As of March 27, 2006, Baker was also receiving long-term disability benefits.


                                              3
violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-12 (“NJLAD”),

Hunter Douglas discriminated against her because of her alleged disability and failed to

accommodate her disability (Counts Three and Four), and that Hunter Douglas was

equitably estopped from terminating her employment (Count Five). Hunter Douglas

moved for summary judgment on all counts. On March 28, 2006, the District Court

granted the motion as to Counts One, Three, Four and Five, but held that a material issue

of fact prevented summary judgment on Count Two. On December 20, 2006, the District

Court granted Baker’s motion pursuant to Federal Rule of Civil Procedure 54(b) for final

judgment on the four claims she lost. This appeal followed.3

II.    Discussion

       Baker argues that Hunter Douglas violated FMLA by interfering with her rights

under that statute and failing to reinstate her to her previous position. She also argues that

the District Court erred in granting summary judgment against her on her claim under

NJLAD because factual issues existed as to whether Hunter Douglas could have provided

her with a reasonable accommodation and whether such an accommodation would have

constituted an undue hardship on the company. Finally, Baker argues that factual issues

existed as to whether Hunter Douglas was estopped from terminating her employment.

  3
    The District Court had subject matter jurisdiction over Baker’s FMLA claims pursuant
to 28 U.S.C. § 1331 and subject matter jurisdiction over her state law claims pursuant to
28 U.S.C. § 1367. We exercise jurisdiction pursuant to 28 U.S.C. § 1291. Our review of
the District Court’s grant of summary judgment is plenary. Sarnowski v. Air Brooke
Limousine, Inc., 510 F.3d 398, 401 (3d Cir. 2007).


                                              4
       With respect to Count One, that Hunter Douglas violated FMLA by failing to

reinstate her in her job after she returned from FMLA leave, the District Court found that

the “primary issue” was whether Baker could perform the essential functions of her

former position upon the expiration of her FMLA leave, and it noted that “reasonable

accommodation is inapplicable in the context of an FMLA claim.” (App. at A-13 (citing

29 C.F.R. § 825.214(b) and Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 384 (3d Cir.

2002)).

       The District Court held that Baker had the burden to establish that she was able to

work on a full-time, rather than part-time, basis in order to demonstrate her ability to

perform the essential functions of her former job. See, e.g., Tardie v. Rehabilitation

Hosp., 168 F.3d 538, 544 (1st Cir. 1999) (plaintiff’s inability to work fifty to seventy

hours per week as hospital administrator constituted a failure to perform essential

function of the job); Hatchett v. Philander Smith College, 251 F.3d 670, 676-77 (8th Cir.

2001) (Under FMLA, “an employee who could not otherwise perform the essential

functions of her job, apart from the inability to work a full-time schedule, is not entitled to

intermittent or reduced schedule leave ... .”). The Court then found that Baker failed to

meet that burden because she never obtained a certification from her doctor that

confirmed her “current ability to resume the duties of [her] job,” as required by Hunter

Douglas’s FMLA policy. (App. at A-15 to A-16.) Further, as of September 2, 2003,

Baker on multiple occasions had indicated her desire to return to work on a part-time



                                              5
basis only. Finally, the District Court found that Baker’s receipt of short-term disability

benefits judicially estopped her from asserting that she was able to perform the essential

functions of her job as of September 5, 2003.

       The District Court found that, “[b]ecause the FMLA does not provide for a

reasonable accommodation and the record indicates that [Baker] was unable to return to

work full-time at the conclusion of her FMLA leave on September 5, 2003,” Hunter

Douglas was entitled to summary judgment on Count One of Baker’s Complaint. (App.

at A-19.) We agree with the Court’s reasoning and its conclusion that there were no

material issues of fact that precluded summary judgment on Baker’s claim that Hunter

Douglas violated FMLA by failing to reinstate her in her job after she returned from

leave. We will therefore affirm the District Court’s grant of summary judgment on Count

One.

       To the extent Baker’s arguments can be viewed as pertaining to Count Two, the

FMLA interference claim, we cannot review that aspect of them because the District

Court denied summary judgment on that claim and it has not yet proceeded to trial.

       As to Count Three, alleging disability discrimination under NJLAD, it is difficult

to discern from Baker’s appellate brief whether she is still challenging the District Court’s

grant of summary judgment to Hunter Douglas.4 Assuming that she is, we agree with the

  4
   A plaintiff has the burden of establishing a prima facie case of discriminatory
discharge under the NJLAD by proving that (1) she is handicapped, (2) she was
performing her job satisfactorily, (3) she was dismissed from her position, and (4)
similarly situated individuals who were not handicapped were retained by defendant. See

                                             6
District Court’s conclusion that Baker could not perform her former job satisfactorily due

to her inability to return to work on a full-time basis. See Svarnas v. AT&T

Communications, 740 A.2d 662, 673 (N.J. Super. App. Div. 1999) (“[E]ven an employee

whose job performance is more than adequate when she is working will not be considered

qualified for the job unless the employee is also willing and able to come to work on a

regular basis.”) (citations omitted). We will therefore affirm the District Court’s grant of

summary judgment to Hunter Douglas on Count Three.

       Count Four claims that Hunter Douglas violated NJLAD by failing to reasonably

accommodate Baker by allowing her to work part-time or as part of a job share

arrangement. Hunter Douglas argued it was entitled to summary judgment because it is

per se unreasonable to require an employer to allow part-time work for a full-time

position. The District Court agreed, finding that Baker’s “inability to work a full-time

work schedule, which was a crucial part of the job’s requirements, precludes an

accommodation that would have sacrificed anything less than full-time work.” (App. at

A-23); see, e.g., Donahue v. Consolidated Rail Corp., 224 F.3d 226, 230 (3d Cir. 2000)

(providing a reasonable accommodation does not require creation of a new job); Muller v.

Exxon Research and Eng’g Co., 786 A.2d 143, 150 (N.J. Super. App. Div. 2001) (under

NJLAD, “an indefinite part-time work schedule” is not a reasonable accommodation).



Maher v. N.J. Transit Rail Ops., Inc., 593 A.2d 750, 763 (N.J. 1991) (setting forth the
elements of discriminatory harassment, transfer, or discharge under New Jersey law).
The parties disputed only the second prong of this test.

                                             7
The District Court also found that Baker’s request that Hunter Douglas allow her to share

her duties with another employee is not a reasonable accommodation under NJLAD.

       The District Court recognized that, under the NJLAD, Hunter Douglas had a

“general duty ... to make a reasonable effort to determine appropriate accommodations,”

which is often referred to as the “interactive process.” (App. at A-26 to A-27.) An

employer must “‘make a good-faith effort to seek accommodations.’” (Id. at A-28

(quoting Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 317 (3d Cir. 1999).) The

District Court rejected Baker’s argument that Hunter Douglas acted in bad faith because

there was a two week delay between the time she approached her supervisors to ask them

about working part-time and when the Director of Payroll addressed her request. The

District Court found that there was no evidence that the delay was the result of bad faith

on Hunter Douglas’s part, and that, in any event, no other positions, either full-time or

part-time, were “available anywhere in [Hunter Douglas’s] New Jersey offices ... and this

fact was communicated to [Baker].” (App. at A-28 to A-29.) Finally, the District Court

referred to its prior analysis under FMLA pertaining to Count One of Baker’s complaint

and stated that Baker “cannot prove that she could perform the essential functions of the

job of overseeing the processing of co-op claims with or without a reasonable

accommodation, and therefore she cannot explain the inconsistent positions taken with

regard to her NJLAD claim [that she could return to work] and her receipt of short-term

disability benefits.” (App. at A-30.)



                                             8
       Again, we agree with the District Court’s reasoning and conclusion that there were

no material issues of fact that would preclude summary judgment on Baker’s claim that

Hunter Douglas violated the NJLAD by failing to provide her with reasonable

accommodations. We will therefore affirm the District Court’s grant of summary

judgment on Count Four.

       Finally, Baker’s arguments pertaining to Count Five, the equitable estoppel claim,

are unavailing. In order to succeed on a claim of equitable estoppel, Baker had to prove

that she detrimentally relied on representations made by her supervisors and that these

representations caused her not to return to work as required by Hunter Douglas’s FMLA

policy. Cf. Hooven v. Exxon Mobil Corp., 465 F.3d 566, 572 n.4 (3d Cir. 2006) (plaintiff

must establish detrimental reliance to sustain an equitable estoppel claim under ERISA);

see also Barone v. Leukemia Soc. of Am., 42 F. Supp. 2d 452, 464 (D.N.J. 1998)

(detrimental reliance is an essential element of a claim for equitable estoppel under New

Jersey law). The District Court found that Baker could not demonstrate detrimental

reliance because she “fail[ed] to establish that she was able to perform the essential

functions of her job, with or without an accommodation,” making it impossible for her to

prove that she “could have returned to work ... but didn’t because of [her supervisors’]

statements that caused her to believe that she did not need to return.” (App. A-37.) We

agree with the District Court’s conclusion that there was no issue of material fact with




                                             9
regard to Baker’s inability to return to work full-time following her FMLA leave, and we

will therefore affirm the grant of summary judgment to Hunter Douglas on Count Five.

III.   Conclusion

       For the foregoing reasons, the District Court’s March 28, 2006 opinion and order

and December 20, 2006 entry of final judgment will be affirmed.




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