1

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

Jeanette FAZIO,

Plaintiff,

v.

NEW JERSEY TURNPIKE AUTHORITY,

Defendant.

 

 

Civ. No. 11-3789

OPINION

THOMPSON, U.S.D.J.

This matter has come before the Court on Defendant New Jersey Turnpike Authority‘s 

(NJTA) Motion to Dismiss [docket # 5] for failure to state a claim and upon Plaintiff Jeanette 

Fazio‘s Cross-Motion to Amend the Complaint [7]. The Court has decided these motions upon 

the submissions of the parties and without oral argument pursuant to Fed. R. Civ. P. 78(b). For 

the following reasons Defendant‘s motion will be denied and Plaintiff‘s motion will be granted.

I. BACKGROUND

The Court accepts as true for the purposes of deciding this motion all of the well-pleaded 

facts of the Plaintiff‘s Amended Complaint. See Fowler v. UPMC Shadyside, 578 F.3d 203, 

210–11 (3d Cir. 2009).

Plaintiff Jeanette Fazio is a former employee of NJTA. (Am. Compl. ¶ 5). While 

employed at NJTA in 2007, Fazio was diagnosed with a panoply of mental diseases or defects by 

Dr. Ronald L. Kamm, which included Bipolar Disorder, Major Depressive Disorder, Panic 

Disorder, Anxiety Disorder, Seasonal Affective Disorder, Mental Confusion, and ―somnolence 

of unknown origin.‖ (Id. ¶ 6). Dr. Kamm was selected as Fazio‘s treating physician by 

Defendant. (Id.). As a result of this diagnosis, Fazio was placed out of work by NJTA on 

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temporary disability. (Id. ¶ 7). During the course of 2007, Fazio was under treatment for all of 

these medical conditions. (Id.). Then, in September 2008, Dr. Kamm determined that Fazio was 

well enough to return to work. (Id.). He recommended that Plaintiff remain at the Keyport toll 

location and be permitted to work the 2 p.m. to 10 p.m. shift in order to accommodate Plaintiff‘s 

mental conditions. (Id.). 

In March 2010, however, Plaintiff was again placed out of work by NJTA due to her 

mental afflictions. (Id. ¶ 8). All of Plaintiff‘s previous diagnoses continued. (Id.). Dr. Kamm at 

this time recommended that Ms. Fazio adjust her pharmacological treatment and continue to see 

a social worker. (Id.). Two months later, in May 2010, Dr. Kamm ―made a finding that Ms. 

Fazio‘s Recurrent Depressive Disorder and her Anxiety Disorder had both worsened since 

April.‖ (Id.). Dr. Kamm continued to keep Plaintiff out of work until July of 2010. (Id.). 

During this time period, Dr. Kamm reported each evaluation and treatment of Fazio to the 

Defendant. (Id.). 

Also occurring in March of 2010, Plaintiff applied for leave under the Family and 

Medical Leave Act. (Id. ¶ 9). But in May of that year, Defendant contacted Plaintiff to demand 

that Plaintiff return to work. (Id. ¶ 10). At that time, Fazio informed the Defendant that she was 

out of work due to the disability, ―requested an opportunity to take the necessary steps to receive 

her necessary treatment[,] and [further requested] to preserve and protect her continued 

employment with [NJTA].‖ (Id.). NJTA ignored these requests and ―made no effort to even 

discuss [P]laintiff‘s condition, treatment, or [the] requested and necessary accommodations with 

[P]laintiff or any of her treating professionals.‖ (Id.). Defendant brought disciplinary charges 

against Fazio in July 2010 because of her absence from work. (Id. ¶ 11). On July 12, 2010, 

Fazio ―expressly asked to keep her job,‖ and ―[h]er treating therapist also advised [D]efendant 

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that [P]laintiff did not want to lose her position.‖ (Id. ¶ 12). Finally, on July 29, 2010, 

Defendant terminated Plaintiff‘s employment. (Id. ¶13). 

Based on these events Plaintiff has brought suit under three separate statutes. First, 

Plaintiff brings suit under the Americans with Disabilities Act of 1990 (―ADA‖), 42 U.S.C. 

§12101, et seq., on the basis of discrimination, failure to accommodate, and retaliation for asking 

for reasonable accommodation. Second, claims are brought under the New Jersey Law Against 

Discrimination (NJLAD), N.J.S.A. 10:5-1, et seq., on the basis of discrimination and failure to 

provide reasonable accommodation. Finally, Plaintiff brings claims under the Family and 

Medical Leave Act of 1993 (―FMLA‖), 29 U.S.C. § 2611, et seq., for improperly denying her 

leave and for retaliating against her for seeking to take leave under the FMLA.

II. LEGAL STANDARD

a. Leave to Amend

It has been the accepted and encouraged policy that courts should liberally grant leave to 

amend pleadings when justice so requires. See Fed. R. Civ. P. 15(a); see also Foman v. Davis,

371 U.S. 178, 182 (1962); Dole v. Arco Chem. Co., 921 F.2d 484 (3d Cir. 1990). The 

determination of a motion to amend falls within the discretion of the trial court and is guided by 

Fed. R. Civ. P. 15(a). Foman v. Davis, 371 U.S. 178, 182 (1962). 

When the movant‘s request to amend is ―a proper subject of relief, he ought to be 

afforded an opportunity to test his claim on the merits.‖ Id. Therefore, before dismissing a 

complaint under Rule 12(b)(6), ―a district court must permit a curative amendment, unless an

amendment would be inequitable or futile.‖ Phillips v. Cnty. of Allegheny, 515 F.3d 224, 236 

(3d Cir. 2008) (citing Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002)). An 

amended complaint is ―futile‖ if it would still fail to state a claim for relief under the Rule 

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12(b)(6) standard. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 

1997). 

In this case, Plaintiff has cross-moved to amend her Complaint. Defendant, however,

argues that portions of the proposed Amended Complaint still fail to state a claim. Therefore, the 

Court must determine whether the Amended Complaint fails to state a claim upon which relief 

may be granted. 

b. Motion to Dismiss

On a motion to dismiss for failure to state a claim, a ―defendant bears the burden of 

showing that no claim has been presented.‖ Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 

2005). When considering a Rule 12(b)(6) motion, a district court should conduct a three-part 

analysis. Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). ―First, the court must  ̳take note 

of the elements a plaintiff must plead to state a claim.‘‖ Id. (quoting Ashcroft v. Iqbal, --- U.S. ---

, 129 S. Ct. 1937, 1947 (2009)). Second, the court must accept as true all of a plaintiff‘s wellpleaded factual allegations and construe the complaint in the light most favorable to the plaintiff. 

Fowler v. UPMC Shadyside, 578 F.3d 203, 210–11 (3d Cir. 2009). But, the court should 

disregard any conclusory allegations proffered in the complaint. Id. Finally, once the wellpleaded facts have been identified and the conclusory allegations ignored, a court must next 

determine whether the ―facts are sufficient to show that plaintiff has a  ̳plausible claim for 

relief.‘‖ Id. at 211 (quoting Ashcroft v. Iqbal, 129 S. Ct. at 1949). This requires more than a 

mere allegation of an entitlement to relief. Id. ―A complaint has to  ̳show‘ such an entitlement 

with its facts.‖ Id. A claim is only plausible if the facts pleaded allow a court reasonably to infer 

that the defendant is liable for the misconduct alleged. Id. at 210 (quoting Iqbal, 129 S. Ct. at 

1948). Facts suggesting the ―mere possibility of misconduct‖ fail to show that the plaintiff is 

entitled to relief. Id. at 211 (quoting Iqbal, 129 S. Ct. at 194).

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III. DISCUSSION

There are three separate counts contained in the Amended Complaint, all of which raise 

separate and distinct legal issues. Initially, Defendant argued that all three counts of the 

Complaint must be dismissed for various reasons. In its reply brief, however, Defendant has 

conceded that several of the defects in Plaintiff‘s original Complaint have been rectified in the 

proposed Amended Complaint. (Def.‘s Reply Br. 1). In its reply brief, Defendants now argue 

that Plaintiff‘s proposed amendments would be futile, in part, for two reasons. First, Defendant 

argues that Plaintiff‘s retaliation claims under the ADA in Count I of the Amended Complaint 

must be dismissed because she has failed to exhaust her administrative remedies. Second, 

Defendant argues that Plaintiff‘s FMLA claims, even as amended, must be dismissed because 

she ―failed to plead facts plausibly showing that [she] was entitled to the benefits under the 

FMLA which allegedly were denied.‖ (Id. 6). The Court will address each of these arguments in 

turn.

a. Count I- ADA Claims

In order to state a prima facie claim for relief under the ADA, a plaintiff must allege that 

he or she (1) has a ―disability,‖ (2) that he or she is a ―qualified individual‖ under the act, and (3) 

he or she has suffered an ―adverse employment decision‖ as a result of the ―disability.‖ Skerski 

v. Time Warner Cable Co., 257 F.3d 273, 278 (3d Cir. 2001) (quoting Deane v. Pocono Med. 

Ctr., 142 F.3d 138, 142 (3d Cir. 1998) (en banc)). In order for a plaintiff to bring a claim under 

the ADA, however, he or she must first exhaust the administrative remedies by filing a ―charge‖ 

with the Equal Employment Opportunity Commission (EEOC). See 42 U.S.C. § 2000e-5(b); 42 

U.S.C. § 12117(a); see also Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006). 

Failure to exhaust administrative remedies requires a district court to dismiss ADA claims on a 

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defendant‘s motion brought pursuant to Fed. R. Civ. P. 12(b)(6). See generally Buck, 452 F.3d 

256.

In paragraph 21 of the Amended Complaint, Plaintiff states that ―Ms. Fazio has filed a 

Charge of Discrimination with the US [sic] [EEOC]‖ in regard to the facts at issue in this case. 

(Compl. ¶ 21). Because the Charge of Discrimination is referred to in the proposed Amended 

Complaint, and because it is a vital part of Plaintiff‘s ADA cause of action, it is properly 

considered by the Court on a motion to dismiss for failure to state a claim. See Pension Benefit 

Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) (―[A] court may 

consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion 

to dismiss if the plaintiff's claims are based on the document.‖ (citations omitted)); see also

Ruddy v. U.S.P.S., No. 11-1906, 2011 U.S. App. LEXIS 25797, *8 (3d Cir. Dec. 23, 2011) (―A 

court may also consider  ̳any matters incorporated by reference or integral to the claim, items 

subject to judicial notice, matters of public record, orders, and items appearing in the record of 

the case.‘‖ (quoting Buck, 452 F.3d at 260)). Defendant argues that a retaliation claim was not 

―fairly within the scope‖ of the EEOC complaint in this case; instead, only discrimination claims 

were addressed by the EEOC.

As support for its argument, Defendant relies on Waiters v. Parsons, 729 F.2d 233 (3d 

Cir. 1984). There, the United States Court of Appeals for the Third Circuit addressed whether a 

plaintiff must re-exhaust his or her administrative remedies for actions by an employer that occur 

subsequent to the filing of an EEOC complaint alleging age discrimination. The court held that 

―[t]he relevant test in determining whether [a plaintiff is] required to exhaust her administrative 

remedies . . . is whether the acts alleged in the subsequent Title VII suit are fairly within the 

scope of the prior EEOC complaint, or the investigation arising therefrom.‖ Waiters, 729 F.2d at 

237. Specifically within the context of the ADA, the Third Circuit has stated that an ―ensuing 

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suit is limited to claims that are within the scope of the initial administrative charge.‖ Williams 

v. E. Orange Cmty. Charter Sch., 396 F. App‘x 895, 897 (3d Cir. 2010) (citing Antol v. Perry, 82 

F.3d 1291, 1296 (3d Cir. 1996)). The scope of an initial administrative charge is ―defined by the 

scope of the EEOC investigation which can reasonably be expected to grow out of the charge of 

discrimination . . . .‖ Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398 (3d Cir. 1976) 

(citing Gamble v. Birmingham S. R.R. Co., 514 F.2d 678 (5th Cir. 1975); Sanchez v. Standard 

Brands, Inc., 431 F.2d 455 (5th Cir. 1970)), cert. denied, 429 U.S. 1041 (1977), reh’g denied, 

430 U.S. 911 (1977). This standard is directed toward what the EEOC should reasonably 

investigate based on the facts presented to it, and it ―does not necessarily preclude a plaintiff 

from asserting a claim for the mere failure to check a box on an EEOC Charge Form . . . .‖ 

Barzanty v. Verizon Pa., Inc., 361 F. App‘x 411, 414 (3d Cir. 2010); see also Howze v. Jones & 

Laughlin Steel Corp., 750 F.2d 1208, 1212 (3d Cir. 1984).

Upon review of the Charge of Discrimination, (Lidon Cert., Ex. A), it appears to the 

Court that Plaintiff‘s retaliation claim under the ADA is within its scope. Although the same 

essential facts that appear in the Amended Complaint are contained in the Charge of 

Discrimination, Defendant seems to argue that because Plaintiff did not check the box for 

―retaliation‖ on her EEOC charge, this claim was not properly within the scope of the EEOC 

investigation. The Court does not agree. Because the facts contained in the EEOC charge and 

the Amended Complaint are substantially the same, it is fair to say that the EEOC would 

reasonably be expected to investigate whether Defendant retaliated against Plaintiff for taking 

leave—even if Plaintiff did not specifically mention the word retaliation or check the correct 

box. As a district court in the Western District of Pennsylvania has stated, the standard 

announced by the Third Circuit ―does not preclude a plaintiff from asserting a claim for failing to 

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check a box on the EEOC form . . . .‖ Bonant v. Monark Student Transp. Corp., No. 10-1654, 

2011 U.S. Dist. LEXIS 112619, *6 (W.D. Pa. Sept. 30, 2011). 

Moreover, the Third Circuit has held that it is an abuse of discretion not to permit leave to 

amend in a situation nearly identical to the facts of this case. In Howze v. Jones & Laughlin 

Steel Corp., the Third Circuit held that a retaliation claim based on substantially the same facts as 

those investigated by the EEOC was fairly within the scope of the initial administrative 

proceeding. Howze, 750 F.2d at 1212. Importantly, ―[w]hether the actual EEOC investigation 

uncovered any evidence of retaliation is of no consequence.‖ Id. An EEOC charge or the 

subsequent investigation does not set ―an outer limit on the scope of the civil complaint,‖ but 

rather, additional charges may be adjudicated ―if they are reasonably within the scope of the 

claimants [sic] original charges and if a reasonable investigation by the EEOC would have 

encompassed the new claims.‖ Id. Because the EEOC charge and the proposed amended 

complaint were based on the same set of facts, and because the proposed amendment sought to 

assert only a new theory of liability (i.e., retaliation for activities on behalf of the J&L Black 

Caucus, as opposed to merely discrimination on the basis of race), it was an abuse of discretion 

for the district court to deny leave to file an amended complaint to include the alternate theory. 

Id.

For these reasons, Plaintiff has properly exhausted her administrative remedies, and she 

has therefore properly stated a claim under the ADA. 

b. Count III- FMLA Claims

There are two main theories of liability under the FMLA raised in this case. First, 

Plaintiff argues that she was improperly denied leave under the FMLA. Second, Fazio argues 

that she was retaliated against for requesting to take FMLA leave. Firing an employee for 

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validly requesting FMLA leave may be the basis for either theory of liability. Erdman v. 

Nationwide Ins. Co., 582 F.3d 500, 509 (3d Cir. 2009).

To state a claim for improper denial of leave under 29 U.S.C. § 2615(a)(1) of the FMLA, 

a plaintiff must allege only (1) that he or she was entitled to benefits under the FMLA and (2) 

that he or she was denied those benefits. Callison v. City of Philadelphia, 430 F.3d 117, 119 (3d 

Cir. 2005) (citing 29 U.S.C. §§ 2612(a), 2614(a)), cert. denied, 546 U.S. 876 (2005). In order to 

state a claim for retaliation, a plaintiff ―must show that (1) he invoked his right to FMLA 

benefits, (2) he suffered an adverse employment decision, and (3) the adverse decision was 

causally related to his invocation of his rights.‖ Hayduk v. City of Johnstown, 386 F. App‘x 55, 

59–60 (3d Cir. 2010) (citing Erdman, 582 F.3d at 509; Conoshenti v. Pub. Serv. Elec. & Gas 

Co., 364 F.3d 135, 146 (3d Cir. 2004)).

In its reply brief, Defendant argues that the Amended Complaint does not adequately 

plead facts plausibly showing that Fazio was entitled to leave under the FMLA. If this is true, 

both of Plaintiff‘s theories of liability under the FMLA must be dismissed. See Hayduk, 386 F. 

App‘x at 60. In order to establish that she was entitled to benefits under the FMLA, Plaintiff 

must show that she is an ―eligible employee‖ as defined under 29 U.S.C. § 2611(2) and that she 

took leave ―for the intended purposes of leave‖ as defined under 29 U.S.C. § 2614(a)(1). Parker 

v. Verizon Pa., Inc., 309 F. App‘x 551, 563 (3d Cir. 2009). Specifically, Defendant contends that 

Plaintiff has not pled sufficient facts that make a plausible showing that she was an ―eligible 

employee‖ pursuant to § 2611(2)(A)(ii).

As defined under the FMLA, an ―eligible employee‖ is ―an employee who has been 

employed (i) for at least 12 months by the employer with respect to whom leave is requested; 

and (ii) for at least 1,250 hours of service with such employer during the previous 12-month 

period.‖ 29 U.S.C. § 2611(2)(A) (emphasis added). After reviewing the Amended Complaint, 

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the Court has determined that the following allegations are all of the well-pleaded facts contained 

in the Amended Complaint that are pertinent to whether Plaintiff was an ―eligible employee‖: (1)

Plaintiff was employed with Defendant in September 2008 when she resumed work from a 

previous leave of absence, (Compl. ¶ 7); (2) Plaintiff‘s treating physician recommended that she 

be permitted to work the 2 p.m. to 10 p.m. shift upon her return to work in September 2008, so 

that difficulty in awakening did not impact her job punctuality, (id. ¶ 7); (3) Plaintiff was 

employed by Defendant in March 2010 when she was again placed on leave due to her numerous 

mental conditions, (id. ¶ 8); (4) Plaintiff was employed with NJTA for all periods relevant to the 

Amended Complaint, (id. ¶¶ 1–2, 17); and (5) Plaintiff had taken FMLA leave on previous 

occasions, (id. ¶ 28). The Court ignores Plaintiff‘s contention in paragraph 28 of the Amended 

Complaint that ―Ms. Fazio is a protected  ̳employee‘ . . . for purposes of applying the [FMLA]‖ 

because this statement is a legal conclusion. See Fowler v. UPMC Shadyside, 578 F.3d at 210–

11.

Taking these facts into consideration, the Court determines that Plaintiff has not validly 

pled that she was an ―eligible employee‖ under the FMLA. To begin with, the fact that Plaintiff 

returned to work in September 2008 and remained an active employee at least until March 2010 

satisfies the Court that she was plausibly employed for at least twelve months prior to asking for 

FMLA leave. Plaintiff, however, has not satisfied the second requirement under § 2611(2)(A). 

The proposed Amended Complaint has one glaring omission: an allegation that Plaintiff worked 

1,250 hours from the period of March 2009 through March 2010. 

The fact that Plaintiff had previously been granted leave under FMLA, along with the 

fact that she worked for twelve consecutive months from March 2009 through March 2010, 

makes it possible that Plaintiff worked for at least 1,250 hours in that twelve month period. This 

is further evidenced by the fact that Plaintiff‘s treating physician suggested that Fazio be placed 

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on the 2 p.m. to 10 p.m. shift—a full eight-hour work day. Moreover, because no mention is 

made in the Amended Complaint that the amount of hours Plaintiff worked per week was any 

different between the period before her first FMLA leave and the twelve-month period preceding 

the March 2010 request, it is possible to infer that Plaintiff worked the number of hours required 

to take a second FMLA leave. The question, however, is whether it is reasonable for the Court 

to do so. Although these facts make Plaintiff‘s claim that she is an ―eligible employ‖ possible, 

whether this contention is ―possible‖ is not the standard; Plaintiff‘s claims must be ―plausible.‖ 

The plausibility standard of Iqbal does not require total certainty. Instead, it is ―a contextspecific task that requires the reviewing court to draw on its judicial experience and common 

sense.‖ Iqbal, 129 S. Ct. at 1950. The Court, however, cannot engage in mere guesswork. 

It would be total conjecture on the part of the Court to infer that because Fazio worked 

the required number of hours to take FMLA leave during a previous twelve-month period that 

she must have continued to work the same number of hours during a second twelve-month 

period. Cf. Ingrassia v. Cnty. of Sullivan, 262 F. Supp. 2d 116, 119–20 (S.D.N.Y. 2003) 

(requiring plaintiff to amend a complaint that alleged 1,250 hours worked in the previous 

calendar year, but did not allege 1,250 hours worked in the specific 12-month period at issue). 

Taken together, the facts alleged in the Amended Complaint do not ―nudge[] [Plaintiff‘s] claims 

against [NJTA]  ̳across the line from conceivable to plausible.‘‖ Fowler, 578 F.3d at 212 

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). It is not clear to the Court, 

however, that Plaintiff could not make a proper allegation if given a chance to amend. 

Therefore, the appropriate course of action is to permit Plaintiff an opportunity to make the 

required changes to her proposed Amended Complaint before officially filing it with the Court. 

See Ingrassia, 262 F. Supp. 2d at 120.

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IV. CONCLUSION

For the foregoing reasons, Plaintiff will be granted leave to file within 20 days an

Amended Complaint rectifying the defects as discussed above. An appropriate order will follow.

/s/ Anne E. Thompson

ANNE E. THOMPSON, U.S.D.J.

Date: January 10, 2012

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