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January 16, 1935
CAMPBELL, District Judge.
This case comes before this court on a motion made by defendant to dismiss the complaint herein, under rule 113 of the Rules of Civil Practice of the state of New York, on the ground that this action has no merit, for the reason that the policy which is the subject-matter of this action lapsed without value for the nonpayment of a premium due thereon, September 19, 1932.
So much of rule 113 of the Rules of Civil Practice of the state of New York as is necessary for consideration reads as follows:
"1. To recover a debt or liquidated demand arising on a contract express or implied in fact or in law, sealed or not sealed. * * *
"The complaint may be dismissed or answer may be struck out and judgment entered in favor of either party on motion upon the affidavit of a party or of any other person having knowledge of the facts, setting forth such evidentiary facts as shall, if the motion is made on behalf of the plaintiff, establish the cause of action sufficiently to entitle plaintiff to judgment, and if the motion is made on behalf of the defendant, such evidentiary facts, including copies of all documents, as shall fully disclose defendant's contentions and show that his denials or defenses are sufficient to defeat plaintiff, together with the belief of the moving party either that there is no defense to the action or that the action has no merit, as the case may be, unless the other party, by affidavit or other proof, shall show such facts as may be deemed by the judge hearing the motion sufficient to entitle him to a trial of the issues. If upon such motion made on behalf of a defendant it shall appear that the plaintiff is entitled to judgment, the judge hearing the motion may award judgment to the plaintiff, even though the plaintiff has not made a cross motion therefor."
This procedure is available to litigants in the federal courts by virtue of the Conformity Act (28 USCA § 724). Mac-Namara & Wadbrook Trading Co. v. Royal Ins. Co. (D.C.) 288 F. 985; Maslin v. Columbian Nat. Life Ins. Co. (D.C.) 3 F. Supp. 368; S.M. Hess & Bro. v. Small (D.C.) 288 F. 995.
The facts as set forth in the moving papers are undisputed, and the answering affidavits raise no issue of fact and the question before this court therefore is solely one of law.
The facts briefly stated are as follows:
Policy No. 948,181 was issued by defendant, Massachusetts Mutual Life Insurance Company, to one Adolph H. Mayers, in the sum of $25,000, on the 19th day of March, 1930. The annual premium payable for this policy was $1,821, and the first premium payable for this policy was $1,821, which was paid in cash at the time of issuance. In his application the assured, Adolph H. Mayers, which application is made a part of the policy, elected (a) to pay the premium on this policy annually in advance (No. 16 of application); (b) to have dividends applied in reduction of premium (17 of application); (c) extended term insurance as the nonforfeiture provision (18 of application). The original beneficiary at the time of the issuance of this policy was the insured's wife, Pauline Mayers. On May 6, 1930, at the request of the insured, the beneficiaries were duly changed to Pauline Mayers, the wife, and Sadie Millard, William Mayers, Natalie Green, Arthur Mayers, Bertram Mayers, and Sidney Mayers, children of the insured, equally. The plaintiff is one of the beneficiaries named, and brings this action against the defendant for what he alleges is his share of the $25,000 policy, which he contends the company should have kept in force up to and after April 1, 1934, the date of the insurer's death.
Plaintiff in his complaint recites certain provisions of the policy without quoting them, in paragraphs fourth, fifth, and sixth, and in the seventh paragraph alleges that the assured duly paid the premiums on said policy for a period of two years and six months, and that the assured made default in payment of the quarterly premium due on the 19th day of September, 1932. In paragraphs eighth and ninth the plaintiff charges that the defendant "wrongfully gave notice to the assured that said policy lapsed without any value whatsoever therein remaining for the benefit of the assured," and that as a consequence of this notice the assured was induced and led to believe that all his rights and benefits to said policy ceased and terminated upon the assured's default in payment of the premium due in Suptember, 1932, and also led the assured to believe that the selection by him of participating extended term insurance as the automatic nonforfeiture option in case of default would be idle and futile, thus wrongfully preventing and/or dissuading said assured from making a selection of participating extended term insurance as the nonforfeiture option as aforesaid. By the ninth paragraph he further alleged that by reason of the foregoing, the defendant waived the requirement that the assured select participating extended term insurance, and that accordingly no election of participating extended term insurance in case of default in the payment of premiums was necessary, and that said option became theretofore technically operative without further act on the part of the assured on the 19th day of September, 1932, the due date of the premium in default.
These allegations of paragraphs eighth and ninth require no extended consideration in the face of the application which became part of the policy of insurance, as the assured had chosen by 15 of the application automatic premium loan, by 17 of the application that dividends be applied in reduction of premiums, and by 18 of the application extended term insurance as the nonforfeiture provision desired.
Therefore the only question vital to this case which need be considered is whether upon the failure to pay the premium due September 19, 1932, the policy lapsed without value.
This is a question to be determined by the terms of the policy.
For the purpose of this motion, the following facts are conceded:
That policy No. 948,181, dated March 19, 1930, was issued by the defendant insuring one Adolph H. Mayers, in the sum of $25,000.
That premiums were duly paid on this policy for two and one-half years, that is, until September 19, 1932.
That the insured Adolph H. Mayers borrowed from the defendant on said policy from time to time to pay a portion of these premiums until September 19, 1932, when the insured was indebted to the defendant for such loans with interest in the sum of $1,999.44, and as of October 20, 1932, the last day of grace, said insured was indebted to the defendant in the sum of $2,009.
That the cash surrender value of the said policy on September 19, 1932, and on the last day of grace, was the sum of $2,009.
That by No. 18 of the application, the insured chose extended term insurance as his nonforfeiture provision in case of default in payment of premium.
That neither the premium nor any part thereof due on September 19, 1932, was paid.
That the insured died on or about April 1, 1934.
Plaintiff contends that defendant was obliged to use the full cash surrender value of the policy without deduction of loans to purchase extended term insurance as of September 19, 1932, and that if this had been done the insurance so extended would have been in force on April 1, 1934, when the insured died, and plaintiff as a beneficiary would have been entitled to his share thereof. Defendant on the contrary contends that the policy lapsed without value on September 19, 1932, with the possible exception of the sum of $9.56, which was the net cash surrender value on September 19, 1932, which would have purchased extended insurance but for a few days, and that on the last day of grace there was no cash surrender value as the cash surrender value on that day was $2,009, and the indebtedness to the defendant for loans on said policy was $2,009.
In the policy we find the following provision: "If any premium ia not paid before the expiration of the grace period, and if no provision for automatic payment is then applicable, the policy will lapse and the Company's liability, if any, shall be as set forth hereinafter (See Non-Forfeiture Provisions)."
The premium due September 19, 1932, was never paid. Therefore the policy must have lapsed unless it was kept alive by the nonforfeiture provisions of the policy which allow the insured three options in case of default and which options are inserted in life insurance policies pursuant to statutes in various states, that of the commonwealth of Massachusetts being chapter 175, § 144, G.L. (Ter. Ed.), and that of the state of New York being section 88 of the New York Insurance Law, chapter 28 of the Consolidated Laws.
As the assured elected in his application the option of extended term insurance, that is the only one that requires consideration, and as to that the policy provides in the second paragraph of options in case of default: "* * * The extended term insurance shall continue the insurance in force from the due date of the premium in default for its original amount and any outstanding paid-up additions less any indebtedness to the Company hereon, but without the right to loans."
The fourth paragraph of options in case of default provides: "The value stated in the accompanying table are for even years. If there are outstanding paid-up additions to the policy, the values will be increased, but if there is any indebtedness to the Company hereunder, the said values will be diminished. If the default occurs after a fractional part of the current year's premium has been paid, the values will be proportionately adjusted."
In the first paragraph of the nonforfeiture provision, under basis of premiums and reserves, it is provided: "The premium and reserves under this policy are based upon the American Experience Table of Mortality and interest at the rate of three per cent. per annum."
In the note at the foot of the tables we find this provision: "The values in the above table are based upon the American Experience Table of Mortality and interest at the rate of three per cent. per annum. * * * The paid-up value, or extended insurance value, at the end of any policy year, is the mathematical equivalent of the cash value."
It is also to be noted that at the top of the table of values, the headings of the tables are paid-up insurance or cash value or extended term insurance.
I have considered the argument of the plaintiff with care, especially in view of the fact that he contends that the argument here made on his behalf was not made in the case of Massachusetts Mut. Life Ins. Co. v. Jones (C.C.A.) 44 F.2d 540.
Extended term insurance is defined in 14 R.C.L. pages 990 and 991, as follows: "Statutes now exist in several jurisdictions providing that on default in the payment of premiums after a policy has been in force a certain time, the policy shall not lapse but shall continue in force for a time either stated or equal to the amount of term insurance that the reserve applicable to the policy, taken as a single premium, will purchase, or shall become a paid-up policy for the amount of paid-up insurance which such reserve would purchase."
And again, at page 995, we find: "While it has sometimes been held that in computing the sum available for extension purposes the amount of loans on the policy cannot be deducted, the better view seems to be that from the net reserve should be deducted policy loans and the surplus used as a single premium. * * *"
In this case we have no concern with dividend accumulations, as there were none under this policy.
In construing this policy, as all other instruments, it must be read as an entire instrument to ascertain its meaning. All of the clauses with reference to the nonforfeiture provisions have a close relation to each other and must be read together. It hardly seems possible that all the provisions could be placed in one clause, and it is only by attempting to set each clause by itself, without relation to any of the others, that the contention of ambiguity can even be raised.
It is clear to me that a change in the cash value changes the other values, as the cash value is the basis for the other values, and constitutes the single net premium for the purchase either of paid-up insurance or extended term insurance.
I find that the proper construction of the policy is, first, that the indebtedness against the policy is to be deducted from the face of the policy if there is extended term insurance, thereby decreasing the amount of the risk; second, that the indebtedness due to the company on the policy must be deducted from the amount of the cash surrender value, which is the same as the amount available for the purchase of extended term insurance, and extended term insurance shall be purchased only for the time which the difference between the cash surrender value and the indebtedness to the company on the policy will purchase.
In the instant case the indebtedness to the company on September 19, 1932, when the premium became due, was $1,999.44, the cash surrender value was $2,009, and the balance of $9.56 would have purchased extended term insurance for only a few days. On the thirty-first day after September 19, 1932, to wit, October 20, 1932, the last day of grace, the cash surrender value was $2,009, and the indebtedness on the policy was $2,009.
The insured died April 1, 1933, and the cash surrender value or the reserve, less the indebtedness on the policy from which extended term in surance could have been purchased, was insufficient to have purchased extended term insurance to the date of the death of the insured.
Plaintiff also contends that the following clause of the policy applies, and that the notice required there not having been given, prevents the avoidance of the policy by defendant:
"Failure to repay a policy loan or premium loan, or to pay interest thereon, shall not avoid the policy unless the total indebtedness thereon including accrued interest shall equal or exceed the loan value at the time of such failure, nor until thirty-one days after notice has been mailed by the Company to the last-known address of insured and of any assignee of record at the Home office of the Company."
This clause has nothing whatever to do with this case. Mills v. National Life Ins. Co., 136 Tenn. 350, 189 S.W. 691; Neighbors v. Union Central Life Ins. Co., 17 Tenn. App. 612, 69 S.W.(2d) 618, at page 620.
The company has not, nor does it now claim that the policy was avoided by failure to repay a policy or premium loan, but simply by reason of failure to pay a premium when due. This is in entire accord with that provision of the policy which provides: "If any premium is not paid before the expiration of the grace period, and if no provision for automatic payment is then applicable, the policy will lapse and the Company's liability, if any, shall be as set forth hereinafter. (See Non-Forfeiture Provisions.)"
The plaintiff argues at length in an effort to show ambiguity in the terms of the policy.
Sufficient to say, I find none.
The cases cited by plaintiff on that point require no consideration.
See Williams v. Union Central Life Ins. Co., 291 U.S. 170, at page 180, 54 S. Ct. 348, 352, 78 L. Ed. 711, 92 A.L.R. 693, in which the Supreme Court by Mr. Chief Justice Hughes said: "As there is no ambiguity in the provisions under consideration, there is no occasion for resort to the familiar principle that equivocal words should be construed against the insurer. While it is highly important that ambiguous clauses should not be permitted to serve as traps for policyholders, it is equally important, to the insured as well as to the insurer that the provisions of insurance policies which are clearly and definitely set forth in appropriate language, and upon which the calculations of the company are based, should be maintained unimpaired by loose and ill-considered interpretations."
My construction of the policy in this case is sustained by the great weight of authority. Hawthorne v. Bankers' Life Co., 63 F.2d 971 (C.C.A. 8); Bach v. Western States Life Ins. Co., 51 F.2d 191 (C.C.A. 10); Pacific Mut. Life Ins. Co. v. Davin, 5 F.2d 481 (C.C.A. 4).
Every question raised on this argument was decided adversely to the plaintiff's contention by the Circuit Court of Appeals of the Fourth Circuit on exactly the same type of policy, issued by the same company, in Massachusetts Mut. Life Ins. Co. v. Jones, 44 F.2d 540, and I am in entire accord with the reasoning and decision in that case, and will follow it.
The point has also been passed upon adversely to plaintiff's contention in Moss v. AEtna Life Ins. Co. (C.C.A. 6th Circuit) 73 F.2d 339, opinion by Circuit Judge Simons, November 7, 1934.
The same question has been decided adversely to plaintiff's contention in the New York state courts. Schultz v. State Mutual Life Assurance Company of Worcester, Mass., 153 Misc. 246, 274 N.Y.S. 601, affirmed 242 App. Div. 614, 271 N.Y.S. 1062.
The plaintiff is not entitled to any recovery against the defendant herein.
The defendant's motion is granted and the complaint dismissed, with costs to the defendant against the plaintiff.
Settle order on notice.
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September 28, 2012
TANYA FURRY,PLAINTIFFv.LEHIGH VALLEY HEALTH SYSTEM, ET AL., DEFENDANTS
In this employment discrimination case, Plaintiff Tanya Furry alleges that Defendants Lehigh Valley Health System t/a Lehigh Valley Hospital ("LVH") and Gerry Kresge violated her disability and leave rights under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA") ("Count I"), the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. ("FMLA") ("Count II"), and the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq. ("PHRA") ("Count III").
The parties filed cross motions for summary judgment. Defendants seek
summary judgment on Count I's termination-based ADA claim, arguing it
is both time barred and deficient for lack of a disability.*fn1
Plaintiff seeks partial summary judgment on Counts I and II.
Regarding Count I, Plaintiff contends she has presented direct
evidence of discrimination under the ADA. Regarding Count II,
Plaintiff contends LVH denied her reinstatement under the FMLA. For
the following reasons, I will grant Defendants'
motion as to Counts I and III, grant in part and deny in part
Defendants' motion as to Count II,*fn2 and deny
Plaintiff's motion.
Gerry Kresge, LVH's director of security, interviewed and hired Tanya Furry as a security officer in March 2005. (Doc. No. 44*fn3 , ¶ 1.) Throughout her employment at LVH, Furry reported to Kresge. (Id. at ¶ 2.)
A. FMLA Leave Procedure at LVH
Jeri Lemanek was employed by LVH Health Network as the disability case manager in 2008. (Doc. No. 42*fn4 at ¶ 2.) Lamenek was responsible for considering the medical necessity of a person's need for leave and request for disability benefits. (Id. at ¶ 3.) The different types of medical leave that an LVH employee may qualify for are FMLA leave, non-FMLA medical leave, personal leave, intermittent family medical leave, and military leave. (Id. at ¶ 5.)
To pursue FMLA leave, an employee must obtain and complete an FMLA request packet, which includes an instruction sheet, an employee request, and a physician's certification. (Id. at ¶ 11.) Once the completed packet is provided to LVH's Employee Health department, Lemanek determines whether the employee's request is medically supported. (Id. at ¶ 7.) In-patient hospitalization automatically qualifies an employee for FMLA leave. (Id. at ¶ 10.)
An employee returning from FMLA leave may be required to undergo a fitness-for-duty examination. (Id. at ¶¶ 18, 20.) The decision to require a fitness-for-duty examination may be made by Lemanek, Director of Employee Health Carol Guanosky, an Employee Health nurse, or a disability counselor. (Id. at ¶ 21.) The criteria for making that decision relates to the reason the person is out of work. (Id. at ¶ 22.) An employee who has been out of work for an orthopedic condition, recent surgery, or mental health issue must undergo a fitness-for-duty evaluation in Employee Health, in addition to providing a release by the employee's personal physician. (Id.) Employee Health does not necessarily review an employee's personal physician's release prior to referring the employee for a fitness-for-duty examination. (Id. at 24.)
Employee Health physicians, whom LVH contracts through Health Works, conduct fitness-for-duty examinations in the Employee Health office. (Id. at ¶ 27.) The fitness-for-duty practitioner determines whether someone is able to resume the essential functions of their job upon returning to work. (Id. at ¶ 36.) The fitness-for-duty practitioner is empowered to order an employee not to return to work regardless of what the personal physician's release said. (Id. at ¶ 35.)
B. Furry's First FMLA Leave
LVH granted Furry FMLA medical leave for depression and anxiety from August 30, 2006, through December 11, 2006. (Doc. No. 44 at ¶ 5.) In January 2007, upon Furry's return from her first FMLA leave, LVH assigned Furry, at Kresge's request, to a receptionist position. (Id. at ¶ 6.) Furry was satisfied with her receptionist position and suffered no adverse consequences from taking FMLA leave in 2006. (Id. at ¶¶ 7-8.)
C. Furry's Second FMLA Leave
In October 2007, Furry requested and received her second FMLA medical leave. (Id. at ¶ 9.) Cheryl Brunovsky, an LVH disability counselor, approved Furry's request by letter dated October 26, 2007. (Id. at ¶ 10.) Furry was out on her second FMLA medical leave from October 10, 2007, to November 15, 2007. (Id. at ¶ 11.) Furry's clinical psychologist, Dr. Janice E. Cunningham, released Furry to return to work without restrictions beginning November 14, 2007. (Id. at ¶ 12.)
D. Approved Medical and Grief Leave
On March 18, 2008, Furry suffered a miscarriage. (Id. at ¶ 13.) That same day, Furry gave her supervisor, John Hess, a doctor's note stating that "suction dilation and curettage" surgery was scheduled for later that afternoon and that Furry would be absent for medical reasons until March 26, 2008. (Id. at ¶ 14.) LVH granted this medical leave request, and Furry never requested or sought FMLA leave for her miscarriage or surgery. (Id. at ¶¶ 15-16.) On March 21, 2008, Furry's uncle, who was also an LVH employee, died. (Id. at ¶ 17.) Kresge gave Furry three days off so she could grieve and attend her uncle's funeral. (Id. at ¶ 18.) Furry's attendance record indicates that she was absent on March 16, 17, 19, 20, and 21. Furry returned to her "normal schedule" on March 24, 2008, which was her last day of work at LVH. (Id. at ¶ 19.) Ms. Furry's attendance record indicates that she did not work thereafter, but does indicate why. (Doc. No. 42 at ¶ 41.)
E. The Return to Work Clearances
On or about April 7, 2008, Furry telephoned Kresge to ask for the next day off to visit her Ob/Gyn. (Doc. No. 44 at ¶ 20.) Kresge told Furry that, because of her miscarriage, she was too emotional to return to work and that she should speak with someone in Employee Health. (Id. at ¶ 21.) Kresge told Furry not to come to work the next day (the day of her Ob/Gyn appointment), but Kresge did not tell Furry how long she should be off work. (Id. at ¶ 22.) When the April 7 telephone conversation between Kresge and Furry occurred, Furry had not been to work at LVH for two weeks.*fn5 (Id. at ¶ 23.)
Furry visited her Ob/Gyn on April 8, underwent an exam, and was told everything was fine. (Id. at ¶ 25.) According to Lemanek, Furry was scheduled to undergo a fitness-for-duty evaluation at Employee Health on April 9, which Furry did not attend.*fn6 (Doc. No. 42 at ¶ 42.) On April 10, Furry claims that Jeanne Hoover, an LVH human resources consultant, told Furry she needed to submit three return-to-work notes to Employee Health before she could return to LVH. (Doc. No. 44 at ¶ 26.) The notes were to be provided by her family physician, Ob/Gyn, and mental health provider. (Id.) Hoover denies ever requiring Furry to submit a return-to-work note. (Doc. 48, Ex. 1. at ¶¶ 3-4.)
Furry's Ob/Gyn released Furry to return to work without restriction on April 8. (Doc. No. 44 at ¶ 27.) On April 11, Dr. Farbowitz, Furry's family physician, also released Furry to return to work without restriction. (Id. at ¶ 28.) However, Dr. Cunningham, Furry's mental health provider, refused to provide Furry with a return-to-work note.*fn7 (Id. at ¶ 29.)
F. The May 2, 2008, Employee Health Visit
On May 2, 2008, Furry visited Employee Health to provide the return-to-work notes from her Ob/Gyn and family physician and "to tell them what was going on." (Id. at ¶ 30.) Furry admits to feeling and appearing very upset during her meeting with the Employee Health physician because of her miscarriage, her uncle's death, and from being out of work. (Id. at ¶ 32.) Given Furry's emotional state, the Employee Health physician told Furry she would not be permitted to return to work without a note from Dr. Cunningham. (Id. at ¶ 34.) On May 5, 2008, Cheryl Brunovsky wrote to Furry conditionally approving a medical leave of absence retroactive to April 14, 2008. (Id. at ¶ 36.) Enclosed with this FMLA conditional approval letter was an FMLA medical certification form that Furry needed Dr. Cunningham to complete within 15 days. (Id.) Dr. Cunningham never completed, and Furry never provided, the FMLA medical leave certification form. (Id. at ¶ 37.)
G. The Termination Letter
On June 6, Jeanne Hoover wrote to Furry stating that LVH still had not received "medical documentation" to support Furry's "continued absence." (Doc. No. 44, Ex. C.) Based on this letter, Furry understood that if she failed to provide either a return-to-work note or the FMLA leave documents to Employee Health by June 13, 2008, LVH would terminate her employment. (Id. at ¶ 40.) On June 12, Furry telephoned Jeri Lemanek and complained that Dr. Cunningham refused to provide either a return-to-work note or FMLA leave certification. (Id. at ¶ 41.) Lemanek extended the deadline to June 18, by which time Furry was required to (1) supply Employee Health with a return to work clearance from Dr. Cunningham, (2) supply Employee Health with FMLA leave certification from Dr. Cunningham, or (3) have Dr. Cunningham contact the Employee Health Physician directly to discuss Furry's status. (Id. at ¶ 42.)
Furry never provided to Employee Health either a return-to-work note or FMLA leave certification from Dr. Cunningham. (Id. at ¶ 45.) On June 20, Hoover wrote to Furry terminating Furry's employment since she was "unable to provide [LVH] with the appropriate documentation to support [her] continued absence from work." (Doc. No. 42, App. 1, Ex. 15.)
Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A factual dispute is "material" only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For an issue to be "genuine," a reasonable fact-finder must be able to return a verdict in favor of the non-moving party. Id.
A party moving for summary judgment always bears the initial burden of informing the Court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing relevant portions of the record, including depositions, documents, affidavits, or declarations, or showing that the materials cited do not establish the absence or presence of a genuine dispute, or showing that an adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c). Summary judgment is therefore appropriate when the non-moving party fails to rebut the moving party's argument that there is no genuine issue of fact by pointing to evidence that is "sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322; Harter v. GAF Corp., 967 F.2d 846, 852 (3d Cir. 1992).
Under Rule 56 of the Federal Rules of Civil Procedure, the Court must draw "all justifiable inferences" in favor of the non-moving party. Anderson, 477 U.S. at 255. The Court must decide "not whether . . . the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented." Id. at 252. The nonmoving party cannot avert summary judgment with speculation or conclusory allegations, such as those found in the pleadings, but rather, must present clear evidence from which a jury can reasonably find in its favor.
Ridgewood Bd. of Educ. v. N.E. for M.E., 172 F.3d 238, 252 (3d Cir. 1999). Finally, in reviewing a motion for summary judgment, the Court does not make credibility determinations and must view facts and inferences in the light most favorable to the party opposing the motion. Siegel Transfer v. Carrier Express, 54 F.3d 1125, 1127 (3d. Cir. 1995).
A. ADA and PHRA Claims (Counts I and III)*fn8
Furry alleges LVH terminated her in violation of the ADA. LVH moves for summary judgment on two grounds. First, LVH argues that Furry's claim is time barred. Second, LVH argues that Furry is not disabled within the meaning of the ADA. Furry also moves for summary judgment, contending she has presented direct evidence of discrimination.
1. Timeliness of Plaintiff's Charge
In a deferral state, the ADA provides that a plaintiff must file a charge with the EEOC within 300 days "after the alleged unlawful employment practice occurred." 42 U.S.C. § 2000e-5(e)(1). Pennsylvania is a deferral state. Watson v. Eastman Kodak Co., 235 F.3d 851, 854 (3d Cir. 2000). Thus, Furry was required to file her charge with the EEOC within 300 days of the adverse employment action.
The parties dispute when exactly the adverse employment action occurred and consequently when the statute of limitations on Furry's ADA claim began running. LVH argues that Furry's ADA claim accrued when she received a notice of termination, not when her employment actually ceased. (Doc. No. 44 at 10.) According to LVH, this occurred on June 12, 2008, when Furry received Hoover's June 6 letter. Because Furry waited until April 9, 2009, to file her EEOC charge-301 days after she received Hoover's letter-LVH reasons that her ADA claim is time barred. Furry counters that the statute of limitations on her ADA claim only began running when her termination became inevitable. (Doc. No. 47 at 9.) Under this standard, Furry's ADA claim accrued at the earliest on June 18, 2009, the date by which Plaintiff was required to supply Employee Health with either a return-to-work note or an FMLA leave certification from Dr. Cunningham, thereby bringing her filing within the 300-day deadline. Both parties rely on Delaware State College v. Ricks, 449 U.S. 250 (1980), for their respective propositions.
In Ricks, plaintiff Ricks, a professor at Delaware State College, was denied tenure and offered a one-year "terminal" contract, which he accepted. 449 U.S. at 253. Ricks subsequently filed an EEOC charge of questionable timeliness, and the critical issue became when his cause of action accrued. Ricks contended that his claim accrued on the final date of his terminal contract. The Court rejected this argument. Focusing on the precise date of the unlawful employment action, rather than the final date of employment, the Court observed that "termination of employment at Delaware State is a delayed, but inevitable, consequence of the denial of tenure." Id. at 258. Accordingly, "the limitations periods commenced to run when the tenure decision was made and Ricks was notified." Id. at 259.
The Third Circuit discussed Ricks in Watson, 235 F.3d 851. There, Kodak terminated plaintiff Watson's employment as an account executive, although it left open the possibility that he could continue with the company if he found a different position within a month. Watson failed to find another position, was terminated, and filed an EEOC charge. The court, applying Ricks, held that Watson's claim accrued when he received notice of his termination from the account executive position, despite "the possibility of continued employment in another position." 235 F.3d at 855. "As a matter of law, notice of an 'operative decision' of termination is not equivocal merely because it was 'given . . . in advance of a designated date on which employment terminated.'" Id. at 856 (quoting Chardon v. Fernandez, 454 U.S. 6, 8 (1981)).
In the present case, Furry's termination of employment with LVH was not a "delayed but inevitable result" of Hoover's June 6 letter. See id. at 852-53 ("[A]n adverse employment action occurs, and the statute of limitations therefore begins to run, at the time the employee receives notice of that action and termination is a delayed but inevitable result.") (emphasis added). The letter informed Furry that "[i]f Employee Health does not receive updated documentation from your physician by next Friday, June 13, 2008, then we can no longer support your absence and your employment with [LVH] will be terminated as of that date." (Doc. No. 44, Ex. C.) Lemanek later extended this deadline to June 18.
LVH's contention that Hoover's letter rendered Furry's termination "certain" and her continued employment with LVH "speculative" is simply not accurate. (Doc. No. 44 at 13.) Although Furry reasonably "understood" Hoover's letter to be a "termination" letter, the letter did not, in fact, terminate Furry's employment or render her termination inevitable. The speculative possibility of continued employment in Watson followed the plaintiff's conclusive termination from the account executive position. 235 F.3d at 857 ("The letter stated that 'as of January 1, 1997 you are no longer in the Account Executive position.'"). Likewise, in Ricks, the Court made clear that it considered the plaintiff's denial of tenure and his termination to be one and the same. 449 U.S. at 258. In contrast, Hoover's June 6 letter rendered Furry's termination anything but inevitable. The letter clearly indicated that Furry had until June 13 (later extended to June 18) to supply the necessary documentation related to her absence. If she supplied the documentation, she could continue working at LVH; if she did not, she would be terminated.
Accordingly, the date of the "alleged unlawful employment practice" was, at the earliest, June 18, 2008, the date by which Furry was required to produce medical documentation or be terminated. Her filing with the EEOC on April 9, 2009, occurred 295 days later, within the 300-day statute of limitations required by the ADA. Furry's charge was therefore timely filed.
2. Proving Discrimination Under the ADA*fn9
The ADA prohibits discrimination "against a qualified individual with a disability." 42 U.S.C. § 12112(a).
A plaintiff may advance an ADA disparate treatment claim by presenting direct or circumstantial evidence of discrimination. Where a plaintiff produces only circumstantial evidence, courts apply the three-step burden-shifting framework detailed in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Shaner v. Synthes, 204 F.3d 494, 500 (3d Cir. 2000). In the first step, a plaintiff must establish a prima facie case of discrimination.*fn10 Id. If the plaintiff does so, the burden shifts to the defendant employer to articulate a legitimate, non-discriminatory reason for the challenged action. Id. If the defendant makes this showing, the burden shifts back to the plaintiff, who must produce "some evidence, direct or circumstantial, from which a factfinder would reasonably either: (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action." Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994). In contrast, where a plaintiff produces direct evidence, the McDonnell Douglas framework does not apply. See Keys v. City of Philadelphia, CIV.A. 04-0766, 2005 WL 3234847 (E.D. Pa. Nov. 29, 2005). To qualify as direct evidence, "the evidence must be such that it demonstrates that the 'decisionmakers placed substantial negative reliance on an illegitimate criterion in reaching their decision.'" Walden v. Georgia-Pac. Corp., 126 F.3d 506, 513 (3d Cir. 1997) (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989)) (O'Connor, J., concurring).
Regardless of a plaintiff's method of proof, direct or circumstantial, a "threshold requirement in a disability discrimination case under the ADA is that the plaintiff be a 'qualified individual with a disability.'" Krensavage v. Bayer Corp., 314 F. App'x 421, 425 (3d Cir. 2008). The ADA defines a "qualified individual with a disability" as a person "with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires."
42 U.S.C. § 12111(8). The ADA further defines a "disability" as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual; (B) a record of such impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2).
Furry does not contend she is actually disabled under § 12102(2)(A); rather, she alleges she has a "record of" and was "regarded as" having a disability under § 12102(2)(B) and (C). LVH contends Furry is not disabled under either section. I agree with LVH. Because I find that Furry is not "disabled" within the meaning of the ADA, I will grant LVH's motion as to Counts I and III and deny Furry's as to the same.
1. "Record of" Disability
A person has a "record of" disability under the ADA if that person "has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities." 29 C.F.R. § 1630.2(k). "'A plaintiff attempting to prove the existence of a record of disability still must demonstrate that the recorded impairment is a disability within the meaning of the ADA.' Thus, like proof of a disability itself, a record of disability demands evidence of a substantial limitation in the performance of a major life activity."*fn11 Merit v. Se. Pennsylvania Transit Auth., 315 F. Supp. 2d 689, 701 (E.D. Pa. 2004) (quoting Tice v. Ctr. Area Transp. Auth., 247 F.3d 506, 513 (3d Cir. 2001)). Furry suffers from depression, a mental impairment under the ADA. See Bennett v. Unisys Corp., 2:99CV0446, 2000 WL 33126583, at *4 (E.D. Pa. Dec. 11, 2000). The only issue is whether her depression substantially limited a major life activity.
Furry identifies only one major life activity that she contends her depression substantially limited: thinking. (Doc. No. 47 at 15.) As support, she points solely to her "repeated absences from work" and "periods of leave."*fn12 (Id. at 16.) Furry otherwise cites no record evidence and only one case in support, Taylor v. Phoenixville Sch. Dist., 184 F.3d 296 (3d Cir. 1999).
In Taylor, the Third Circuit first identified thinking as a major life activity. There, plaintiff Taylor suffered from severe bipolar disorder, which, even when treated, left her prone to "paranoia[,] . . . impaired concentration[,] and memory problems." Id. at 308-09. Based on these symptoms, the court held that a reasonable jury could conclude Taylor's ability to think was substantially impaired. Other courts in this Circuit that have sent the ability-to-think issue to the jury faced plaintiffs with equally serious symptoms.
In Cambria v. Ass'n of Flight Attendants, AFL-CIO, CIV.A.03-CV-5605, 2005 WL 1563343 (E.D. Pa. June 30, 2005), for instance, the plaintiff "testified that she has suffered suicidal thoughts, eaten pesticide, and attempted suicide as a result of her mental impairment. Plaintiff also testified that she was like a 'zombie' and 'could not function' at times." Id. at *11. Furthermore, in Bennett, 2000 WL 33126583, the plaintiff "testified that when she returned from disability leave, her thoughts were distorted and that she had difficulty concentrating. She misunderstood assignments and in one instance produced a document that generally did not make any sense." Id. at *7; see also Nawrot v. CPC Int'l, 277 F.3d 896, 905 (7th Cir. 2002).
Here, Furry alleges no such symptoms. Neither Furry nor her clinical psychologist, Dr. Janice Cunningham, testified that Furry's depression limited-much less substantially limited-her ability to think. The most the record reveals is that, when asked how her depression affected her, Furry stated it left her "moody," with "low self-esteem," and with a desire "to be by [her]self." (Furry Dep. 163.) Although Furry "does not have to show an utter inability to think in order to survive a summary judgment motion," Bennett, 2000 WL 33126583, at *7, the symptoms described by Furry do not alone substantially limit one's ability to think compared to an average person in the general population. Moreover, that Furry at one time took approved FMLA leave for a serious health condition does not satisfy her burden of demonstrating a disability under the ADA. See Ellis v. Mohenis Services, Inc., CIV. A. 96-6307, 1998 WL 564478, at *5 (E.D. Pa. Aug. 24, 1998).
Based on this evidence, no reasonable jury could conclude that she was substantially limited in performing the major life activity of thinking and, consequently, that she is disabled under § 12102(2)(B).
2. "Regarded as" Having a Disability
To prevail under the ADA's "regarded as" prong, a plaintiff must demonstrate either that (1) despite having no impairment at all, the employer erroneously believes that the plaintiff has an impairment that substantially limits major life activities; or (2) the plaintiff has a non-limiting impairment that the employer mistakenly believes limits major life activities. Tice v. Ctr. Area Transp. Auth., 247 F.3d 506, 514 (3d Cir. 2001) (citing Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999)). An employee must do more than show he was regarded as "somehow disabled." Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 381 (3d Cir. 2002). Rather, the relevant inquiry is whether the employer perceived the employee as disabled within the meaning of the ADA.*fn13
Eshelman v. Agere Sys., Inc., 554 F.3d 426, 434 (3d Cir. 2009).
In support of her motion for summary judgment, Furry points primarily to a May 23, 2008, email exchange between Kresge and Lemanek:
LEMANEK: Tanya Furry has tentatively scheduled a RTW visit for Tues.
5/27/08 at 2:00pm. I'd tell you to smile, but your face might break.
KRESGE: My guess is the mrs.softee [sic] group will let her extend the FMLA or maybe we will find out she is really insane. Do you want me there for the interview?
LEMANEK: [T]o diagnose insanity would mean to find that there is a brain- what are the chances?
(Doc. No. 42, App. Vol. 1, Ex. 11.) Furry contends Lemanek's "brain" comment is evidence that Lemanek regarded Furry as "substantially mentally impaired." (Doc. No. 43 at 22.) Kresge also allegedly told Furry that she "cr[ied] too much" and was "too emotional," "unstable," a "basket case," and a "looney bin." (Furry Dep. at 44-47). Finally, Furry points to Kresge's April 7, 2008, instruction that she visit Employee Health before returning to LVH because she was "too emotional to be at work."*fn14 (Doc. No. 51 at 4; Furry Dep. at 73.)
LVH contends in its motion for summary judgment that the comments by Lemanek and Kresge suggest only that they viewed Furry as unintelligent and overly emotional, not that she was disabled within the meaning of the ADA. (Doc. No. 48 at 12.) LVH further contends that Kresge's April 7 request that Furry visit Employee Health was proper under the ADA and does not indicate that LVH regarded Furry as disabled. (Doc. No. 44 at 17-18.)
Lemanek's "brain" comment does not raise a genuine factual dispute over whether she perceived Furry as limited in her ability to think. First, although Furry now alleges in her briefing that Lemanek regarded her as mentally impaired, Furry testified that Kresge was the only person at LVH whom she believed regarded her as mentally impaired. (Furry Dep. at 245.) Furthermore, while Furry urges that Lemanek's email indicates Lemanek literally believed Furry "did not have a brain" (Doc. No. 43 at 22), the comment, at most, reflects Furry's perceived intelligence, not her ability to think. Although at the time of the email Lemanek was apparently aware that Furry was suffering from a mental health condition (Lemanek Dep. at 95), Furry has not alleged that Lemanek's email comment was made in reference to her depression or any other perceived impairment. Without additional evidence indicating that Lemanek treated Furry as though she was disabled, Lemanek's mere "name-calling" does not alone raise a genuine issue of material fact on the matter.*fn15 See Costello v. Mitchell Pub. Sch. Dist. 79, 266 F.3d 916, 919 (8th Cir. 2001).
As for Kresge's comments, while he obviously considered Furry to be overly emotional, "[e]motional volatility or imbalance is . . . not a 'substantially limiting' mental impairment under the ADA." Mickens v. Polk County Sch. Bd., 430 F. Supp. 2d 1265, 1274 (M.D. Fla. 2006). Moreover, Kresge's remarks about Furry's emotional state do not suggest he perceived her thinking ability to be limited. In fact, Furry's testimony reveals the opposite:
Q. Are you contending that Gerry Kresge believed that because of your mental impairment you could not do your job?
A. No.
Q. Did he ever say that to you?
Q. In fact, he told you on more than one occasion that he thought you did a good job?
A. Yes.
Q. And he gave you good performance reviews, correct?
A. That I know of.
Q. And he thought that you should have passed the security test so that you could have stayed as a security officer, correct?
A. Yes. (Furry Dep. at 246.) Given Kresge's admitted confidence in Furry's ability to perform her job, no reasonable jury could conclude that he perceived Furry as substantially limited in her ability to think.
Nor does Kresge's request that Furry visit Employee Health suggest that he regarded her as disabled. Under the ADA, "[a] covered entity may require a medical examination (and/or inquiry) of an employee that is job-related and consistent with business necessity." 29 C.F.R. § 1630.14(c). "[A] request for an [independent medical examination] that complies with the statutory restrictions [in § 1630.14(c)] will never, in the absence of other evidence, be sufficient to demonstrate that an employer 'regarded' the employee as substantially limited in a major life activity." Tice v. Ctr. Area Transp. Auth., 247 F.3d 506, 515 (3d Cir. 2001); see also Parker v. Port Auth. of Allegheny County, 90 F. App'x 600, 604 (3d Cir. 2004) ("Requiring an employee to 'submit a medical release and be cleared by [her] physician' is not evidence that an employer regards the employee as disabled.") (quoting Somers v. City of Minneapolis, 245 F.3d 782, 788 (8th Cir. 2001)). Lower courts in this Circuit have further held that "curbing excessive absenteeism[] and ensuring that employees are emotionally . . . fit to perform their duties illustrate the types of justifications that qualify as business necessities." Pennsylvania State Troopers Ass'n v. Miller, 621 F. Supp. 2d 246, 252 (M.D. Pa. 2008); see also Behanna v. Monongahela Valley Hosp., CIV.A. 09-0241, 2010 WL 4340961, *7 (W.D. Pa. Oct. 22, 2010); Scott v. Allied Waste Services of Bucks-Mont, CIV.A. 10-105, 2010 WL 5257643, *5 (E.D. Pa. Dec. 23, 2010).
The record reveals that Kresge had a reasonable basis for directing Furry to Employee Health and that the Employee Health physician was justified in requiring Furry to obtain a return-to-work note from Dr. Cunningham. As of the April 7 phone call, Furry had been absent from work for two weeks, without explanation, after returning from leave for one day following her miscarriage and her uncle's death. Furry admits she was emotional on the call. (Furry Dep. at 187.) Furry further admits that she was tearful and upset during her visit with the Employee Health visit on May 2. (Furry Dep at 98-99.) Given the recent traumatic events in Furry's life, her inexplicable absenteeism, and her emotional state, Kresge's request that Furry visit Employee Health and the subsequent requirement that she be cleared by Dr. Cunninghan were job-related and consistent with business necessity and do not suggest that LVH regarded her as disabled under the ADA. See Tice 247 F.3d at 515-16.
Having carefully considered the evidence, I find that Furry has failed to demonstrate she is disabled under the ADA. Accordingly, summary judgment will be entered in favor of LVH on Counts I and III.
B. FMLA Claim (Count II)
The parties filed cross motions for summary judgment on Count II's FMLA claim. Defendants argued Furry's FMLA claim is time barred under the governing two-year statute of limitations. As Furry's Brief in Opposition correctly observes, the FMLA claim is timely in light of Rule 6 of the Federal Rules of Civil Procedure. In their Reply, Defendants withdrew their summary judgment argument that the FMLA claim is time barred. Because Furry does not oppose the dismissal of Defendants Brunkovsky and Hoover, those individual defendants are dismissed. Therefore, all that remains is Furry's motion for summary judgment against LVH and Kresge ("LVH Defendants") on Count
Furry asserts a claim for interference under the FMLA. Under the FMLA, "it shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter." 29 U.S.C. § 2615(a)(1). To prevail on an interference claim, a plaintiff must show (1) he was an eligible employee under the FMLA, (2) defendant was an employer subject to the requirements of the FMLA, (3) he was entitled to leave under the FMLA, (4) he gave notice to the defendant of his intention to take FMLA leave, and (5) the defendant was denied benefits to which he was entitled under the FMLA. Lombardo v. Air Products & Chemicals, Inc., CIVA 05-1120, 2006 WL 1892677, at *3 (E.D. Pa. July 7, 2006).
Furry's motion for summary judgment must be denied because a genuine issue of material fact exists regarding whether she provided LVH with adequate notice of her intention to take FMLA leave. Whether an employee's notice was adequate is generally a question of fact. Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 11-3419, 2012 WL 3140350, at *7 (3d Cir. Aug. 3, 2012). Furry contends in her Second Amended Complaint that she requested FMLA leave in April 2008 due to her miscarriage. In her deposition, however, she repeatedly denied that she ever requested FMLA leave for her miscarriage. (Furry Dep. at 83, 105-06, 244, 287-89, 305-06.) At one point, she expressly repudiated the allegations in her complaint:
Q: Your complaint in paragraph 21 before you says, quote, In April 2008, plaintiff, that's you, requested FMLA leave supported by your obstetrician because of a miscarriage.
A. My obstetrician never wanted me out of work, so I -- this isn't accurate. Q: Do you know why there is an inaccurate allegation in your complaint? A: No, I don't. (Furry Dep. at 134-35.) Furthermore, Furry successfully requested FMLA leave twice before and admitted that she knew how to obtain FMLA leave documents. (Id. at 305-06.) This is not to say that Furry's request for time off without mentioning the FMLA was necessarily insufficient to constitute adequate notice, see Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 402 (3d Cir. 2007), only that this determination is properly left to a jury. Plaintiff's motion for summary judgment on Count II is therefore denied.
For the foregoing reasons, Defendants' motion for summary judgment as to Counts I and III is granted, Defendants' motion as to Count II is granted in part and denied in part, and Plaintiff's motion for partial summary judgment is denied.
An appropriate Order follows.
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Radware's (RDWR) "Hold" Rating Reaffirmed at Oppenheimer Holdings Inc.
Radware Ltd. (NASDAQ:RDWR)'s stock had its "hold" rating restated by Oppenheimer Holdings Inc. in a note issued to investors on Monday.
A number of other equities analysts have also weighed in on RDWR. Zacks Investment Research upgraded Radware from a "sell" rating to a "buy" rating and set a $12.00 price target for the company in a research report on Wednesday, July 6th. Imperial Capital reiterated an "outperform" rating and issued a $15.00 price target on shares of Radware in a research report on Monday, July 25th. Finally, DA Davidson set a $15.00 price target on Radware and gave the company a "buy" rating in a research report on Monday. Four analysts have rated the stock with a hold rating and five have given a buy rating to the company's stock. The stock has a consensus rating of "Buy" and an average target price of $15.43.
Radware (NASDAQ:RDWR) traded down 0.40% on Monday, hitting $12.54. 210,818 shares of the stock were exchanged. The company's 50-day moving average is $13.56 and its 200-day moving average is $12.17. The company has a market cap of $551.06 million, a PE ratio of 660.00 and a beta of 1.22. Radware has a 52 week low of $9.98 and a 52 week high of $16.66.
Radware (NASDAQ:RDWR) last issued its quarterly earnings results on Tuesday, July 26th. The company reported $0.06 EPS for the quarter, beating analysts' consensus estimates of $0.05 by $0.01. The company had revenue of $49.60 million for the quarter, compared to analyst estimates of $49.57 million. Radware had a return on equity of 2.04% and a net margin of 0.42%. The company's quarterly revenue was down 11.4% compared to the same quarter last year. During the same period last year, the company earned $0.23 earnings per share. On average, analysts predict that Radware will post $0.33 earnings per share for the current year.
A number of large investors have recently made changes to their positions in RDWR. Credit Agricole S A increased its stake in Radware by 392.1% in the first quarter. Credit Agricole S A now owns 184,960 shares of the company's stock worth $2,188,000 after buying an additional 147,374 shares during the period. Goldman Sachs Group Inc. increased its stake in Radware by 1.1% in the first quarter. Goldman Sachs Group Inc. now owns 1,723,472 shares of the company's stock worth $20,389,000 after buying an additional 18,406 shares during the period. Geode Capital Management LLC increased its stake in Radware by 104.5% in the first quarter. Geode Capital Management LLC now owns 32,276 shares of the company's stock worth $381,000 after buying an additional 16,490 shares during the period. Renaissance Technologies LLC increased its stake in Radware by 338.5% in the first quarter. Renaissance Technologies LLC now owns 121,900 shares of the company's stock worth $1,442,000 after buying an additional 94,100 shares during the period. Finally, Bank of New York Mellon Corp increased its stake in Radware by 14.3% in the second quarter. Bank of New York Mellon Corp now owns 39,233 shares of the company's stock worth $442,000 after buying an additional 4,907 shares during the period. 63.27% of the stock is owned by hedge funds and other institutional investors.
About Radware
Radware Ltd. is a provider of cyber security and application delivery solutions. The Company's solutions incorporate Distributed Denial of Service protection, Web application firewall (WAF) and Application Delivery Controllers (ADC) technologies to enable its customers to provide cyber-attack mitigation solutions for a range of applications.
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The architecture and cuisine of this section of the state, not to mention the bakeries. Is some of the best experiences of Newark.
The Portuguese have out a part of Newark for their very own. Fantastic restaurants, bars, Fresh Bakery on each corner, vibrant lifestyle and people. Ferry Street is the Centre of the Ironbound. U almost forget your in Newark.....
I think the friendliest people from Portugal and Brazil settled here. Very nice to walk around and visit the cafes and shops.
Strong Portuguese and Brazilian influence. Many Brazilian barbecue places. In Ferry Street you can find many Brazilian restaurants that serve "caipirinha (brazilian lemon drink), churrasco (meat skewer), and many other delicious foods. Brazilia is a great restaurant to start off! Streets are busy and parking is a little difficult unless you park in the restaurants' parking lots. Casa Nova is...
The neighborhood was interesting. Portugese very commonly spoken. The easiest way to get there was by taxi, but it was about half price to use train and it did not take muck longer.
Take the train to New Jersey Penn station and walk up the road!
Managed to find a T-mobile store here for prepaid Internet, which had been impossible...
The ironbound section of newark nj is a popular place if you want to eat good European food. The streets are full of great Portuguese, Brazilian, Spanish restaurants. If you want a good meal than the ironbound section of newark nj is the place to be.
The Ironbounf is a congestive place to ride around in. If you know the area you can find some great places to eat and shop! The food is great and there are so many restaurants to choose from. Krug's being one of the best places to get food and drinks!
There is an abundance of great Portuguese restaurants in the Ironbound section of Newark. You can find parking at one of the local restaurants or with a minimal search on the street. Just avoid trying to park on Ferry and instead ride down the side streets off of Ferry. Plenty of parking in a strip mall area on Ferry and...
If you like Portuguese cuisine and influence this is a good spot. There are many good places to eat that are Portuguese food. Just keep your eyes open and take a chance and you will probably be happy.
The ironbound is a very charming place to visit with a variety of stores and restaurants. Selected with the brazilians and Portuguese culture in the area.
Have 4 hours to kill between flights (allowing time to get to gates, etc.) at EWR. Is there a quick & easy way to get to Ironbound neighborhood?
Hi Larry
About Newark NJ Ironbound area, do you know what the popular Portuguese hard liquor drink is?
I had it once and I thought it tasted like brandy.
Would you know, or know someone who might know where to buy it?
About $15 a liter?
See all questions


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ESPN "It is now widely known as "The Block," and Golden State Warriors forward Andre Iguodala has heard about it countless times. "Believe me, I hear it all the time," he told ESPN in an exclusive interview centered on "The Block." The iconic scene took place at Oracle Arena in Game 7 of the 2016..." October 28
The Score "Apparently, the Golden State Warriors were refreshing their Twitter feeds Monday just like the rest of the basketball world in anticipation of Kevin Durant's free-agent announcement. Among them, Warriors guard Andre Iguodala, who now has a second MVP teammate after Durant announced on The..." July 04
The Score "It would take a pretty severe injury to keep Andre Iguodala out of Game 7 of the NBA Finals. Given that reality, Golden State Warriors head coach Steve Kerr fully expects his forward to play Sunday, and without a minutes limit. "It's Game 7," Kerr told reporters Saturday. "He's Andre..." June 18
Sportsnaut "Golden State Warriors forward Andre Iguodala is on track to play without restricted minutes in Game 7, despite dealing with a painful back injury a few days ago. Head coach Steve Kerr told the media Saturday that Iguodala is "progressing well," and that he will play, noting, "It's Game 7. He's..." June 18
Pro Basketball Talk "It's one of the attempts to discredit Stephen Curry and the Warriors: He's just a system player and they're just a system team. It's a silly argument to defend. "You go with any system that had success, you have to have the right guys in that system," the Warriors' Andre Iguodala said..." June 18


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Michael is simply the best tradesperson I have ever come across. He is honest, reliable, clean, a true gentleman and an amazing tiler. I have used Michael in two houses and he has always done a brilliant job. I cannot recommend him highly enough. I am a perfectionist and ..
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Angela's A-List: Free Events For November 24-30CBS 11 News assignment editor Angela Madison handpicks a list of free events that are taking place all around DFW, including a number of activities planned for the holidays.
NTTA Halts Most Tollway Construction For The HolidaysIf you're planning to travel for the holidays, your journey just got easier. The NTTA has a gift for drivers! You still have to pay for rides on area tollways, but the rides might be less of a headache.
Take A Seat At The Cowboys Training TableChef Jeff Moschetti collaborates with a nutritionist to serve tasty, healthy grub for America's Team.
Cowboys Offer Inside Look At 'The Star' In FriscoCharlotte Jones Anderson, executive vice president and chief brand officer for the Cowboys, shows off the team's stunning new practice facilties and headquarters at The Star in Frisco.
Angela's A-List: Free Events For November 10-16CBS 11 News assignment editor Angela Madison handpicks a list of free events that are happening all around North Texas, including a number of activities planned in honor of Veterans Day.
Frisco Man Found Guilty Of Murdering His Ex-WifeEx-husband, 64-year-old Robert Moses, was found guilty of murder and sentenced to life in prison. Anna was found dead at her home in January 2015 when she did not show up for work.
Getting To Polls Difficult For Disabled McKinney ResidentsMany disabled residents in McKinney are still without transportation since the city canceled its contract with a Sherman paratransit service last year. That is making early voting more challenging for those who cannot walk or drive.
Dallas Cowboys Return To Practice Following Bye WeekThe Cowboys are back from the bye and riding high at 5-1 ... hoping more help is on the way.
Case Of The Missing Mailbox Solved And Resolved!Imagine going outside to check your mail only to find your mailbox is no longer there.
JCPenney Holding Career Fair At 15 DFW StoresJCPenney is hosting a career fair at 15 stores across North Texas on Tuesday in hopes of finding a group of 1,400 new employees, both seasonal and permanent, along with salon stylist associates.
Crews Break Ground On 'Frisco Station' Office ParkA new development broke ground between the Dallas North Tollway and The Star in Frisco on Tuesday, and city officials have high hopes for the upcoming 'Frisco Station' office park.
Frisco ISD Delays New School OpeningsThe Frisco ISD is looking into more ways to save money after delaying the opening of four new schools for a year. The decision was made during a board meeting held Monday night.


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Marsalforn Hotels
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Marina Street | Marsalforn Bay
0.4 miles from city center
(545 Reviews)
Rabat Road
0.3 miles from city center
(331 Reviews)
Qbajjar Road
0.3 miles from city center
(118 Reviews)
Valley Road
0.3 miles from city center
(81 Reviews)
2, Michalengelo Refalo Street
0.3 miles from city center
(17 Reviews)
Qolla Street
0.1 miles from city center
(8 Reviews)
Triq Il Qolla s Safra, Zebbug Gozo
0.2 miles from city center
(0 Reviews)
2 Michelangelo Refalo Street
0.2 miles from city center
(15 Reviews)
Rabat Road
0.4 miles from city center
(0 Reviews)
Qolla Street
0.1 miles from city center
(111 Reviews)
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Weather forecast for Marsalforn
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Tuesday 6Min 17 °CMax 20 °C
Wednesday 7Min 16 °CMax 21 °C
Thursday 8Min 17 °CMax 18 °C
Friday 9Min 17 °CMax 18 °C


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Centrally located in the heart of the city, these Wellington apartments make a great accommodation option for both business and leisure guests. Many of Wellington's tourist attractions and amenities can be reached on foot and the train station and ferry port are just 15 minutes' walk away.
Each apartment comes well equipped with everything you could need during your stay. The fully fitted kitchens enable you to enjoy the flexibility of self catering and the lounge and bedrooms are a relaxing retreat after a busy day exploring the New Zealand capital city.
This exciting city has plenty of attractions to enjoy during your stay, many of which can be walked to from these apartments. Less than 5 minutes down the road you can hop on the Wellington Cable Car, which will whisk you to The Wellington Skyline. Here you can enjoy spectacular views of the city and coastline. Enjoy a scenic descent through the Wellington Botanic Gardens and stop for a coffee at the Picnic Cafe. From here you can wander through the city centre to the Te Papa Museum, which is a must-see whilst staying in Wellington. The Victoria University of Wellington campus is also accessible on foot from this property.
Wellington International Airport is just 10 minutes' drive away and the train station is just under 15 minutes' walk from these apartments. The Cook Strait Ferry Terminals are also within walking distance.
Combined living and sleeping area with queen size bed, kitchenette and private shower room.
Sleeps 2 | Bathrooms 1 | Breakfast type: Room Only
This apartment features a queen size bed, living area with kitchen and a private bathroom.
Sleeps 2 | Bathrooms 1 | Breakfast type: Room Only
This apartment features two queen size beds, living area with kitchen and a private bathroom.
Sleeps 4 | Bathrooms 1 | Breakfast type: Room Only
If you would like to enquire about availability for this apartment, or to get more information please click here
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Riviere Ans Lyon by M. Luce
browse these categories for related items...
Directory: Fine Art: Paintings: Oil: N. America: Pre 1930: Item # 80957
Directory: Fine Art: Paintings: Oil: N. America: Pre 1930: Item # 80957
Please refer to our stock # 245 when inquiring.
King Art
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M. Luce, French, 19th - 20th C. This oil on canvas is in perfect condition, is signed on lower left and also signed on back on frame with a title "On the Banks of the River Ans" in french "Au bord du la Riviere Ans". Painting is 21.5" by 15.75" in a newer French impressionist style 5" frame. Auction records for Luce are $14,000.
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|Marion Riseman: Red Black Night
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Oligarch faces $1bn debt headache
Moscow-based Alfa Bank has launched a legal case against Oleg Deripaska, the Russian oligarch last year ranked as the country's richest man, in a bid to protect itself against the possible default of a $1bn (€780m) loan. It comes as Deripaska faces a struggle to restructure his outstanding debt to other creditors.
Alfa Bank, to which Deripaska's companies owe about $1bn, does not want to restructure the debt but instead would like to receive stakes in the borrower's companies as collateral, the bank confirmed.
The bank, part-owned by fellow oligarchs Mikhail Fridman and Pyotr Aven, has already asked a New Jersey court to freeze the bank account of EN+ Group and has warned that Deripaska faces bankruptcy.
A spokesman for Basic Element, Deripaska's holding and investment company, did not return calls for comment.
Marat Gabitov, an equity analyst at Italian bank Unicredit, said that while $1bn is a small amount of Deripaska's outstanding debt, which totals $27bn according to Forbes, he believes it could have a domino effect on creditor loyalty, potentially leading to the bankruptcy of Deripaska's most indebted businesses.
Gabitov said: "The news (of a possible bankruptcy) may suggest that a redistribution of assets in Russia is beginning. We see the news as negative for Deripaska's public investments like Norilsk Nickel, and overall sentiment towards Russia."
Vladimir Lisin, a key shareholder in steel producer NLMK, said he plans to initiate bankruptcy proceedings against Deripaska's Russian automaker GAZ, which owes NLMK $29m, according to analysts at Unicredit
The possible bankruptcy of GAZ was discussed at a meeting at Sberbank, to which a controlling stake in the company is pledged.
And according to Gabitov, VEB chairman Vladimir Dmitriev said his bank is not negotiating with Rusal, also owned by Deripaska, to restructure its $4.5bn debt due in October this year.
This could lead to the loss of Rusal's 25% stake in Norilsk Nickel and raise opportunities for state participation in the company. Rusal last month reached a moratorium with some of its international creditors, which would give it two month relief from the repayment of debts.
Gabitov added: "While it is too early to draw any final conclusions, the news adds to the uncertainty surrounding Norilsk Nickel and the overall Russian market, as the potential redistribution of assets in the county would likely lead to further outflow of foreign investment in Russia."


text:
FORT WORTH, Texas (AP) — A North Texas man has been put on probation for pretending to be a fire marshal to avoid a $10 cover charge at a bar and to get free drinks.
Charles Brandon of Savannah pleaded guilty Wednesday to false identification as a peace officer.
A judge in Fort Worth ordered two years of deferred adjudication probation. Brandon faces jail if he violates the plea deal, which also bars him from Gaylord Texan Resort property.
The Fort Worth Star-Telegram reports Brandon portrayed himself as a fire marshal at the resort's Glass Cactus Nightclub on New Year's Eve 2012. Grapevine police say Brandon flashed a badge.
Brandon was arrested in January 2013 after club workers told a real fire marshal at the club that the "other" fire marshal was also present.
(© Copyright 2014 The Associated Press. All Rights Reserved. This material may not be published, broadcast, rewritten or redistributed.)
Latest News:
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text:
Database Examiner Individual License
Database Examiner is an easy-to�use, powerful solution that identifies design discrepancies, recommends precise corrections and generates scripts to implement revisions. Database Examiner is an extensive analytical tool to validate the database schema and the quality of the output of the leading database modeling tools from CA, Oracle, Sybase, etc. It is also extremely useful in situations where no modeling tools were used to create the database. This powerful product provides numerous benefits, including: * Comprehensive Diagnostics and Reporting * Design Discrepancy Isolation * Improved productivity and accuracy * Maximize design efficiency * Increase database performance * Teach Me Facility. Please visit our site for more details......Visit publisher site: Database Examiner Individual License
Listing Details
- Version:
- 2008.5708
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Scripts / Tools & Utilities / Database Tools
- Submitted on:
- Last Updated:
- Aug 5, 2014
- Publisher:
- Princeton Systems Computacao Ltda Other listings by this publisher
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- License Type:
- Commercial
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Saturday, March 23, 2013 2 p.m. to 2 p.m.
Location: Jesup Memorial Library, 34 Mount Desert St., Bar Harbor, ME
For more information: Melinda Rice; 207-801-8331; jesup.lib.me.us
Gardening expert Reeser Manley will be at the Jesup Memorial Library in Bar Harbor on Saturday, March 23 at 2 p.m. to talk about gardening in Maine, and to sign copies of his gorgeous new book, The New England Gardener's Year: A Month-by-Month Guide for Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, and Upstate New York. Copies will be available for purchase, and part of the proceeds goes to the library.
Story continues below advertisement.


text:
Baby Boys White Cotton Shirt
$189.99Only a few left!
Baby boys white shirt by Fendi, made in smooth woven cotton. It has a pointed collar with buttons for fastening at the back and on the cuffs. The front is pleated and has four decorative logo-embossed buttons.
- Product number 137604
- 100% cotton (smooth woven feel)
- Machine wash (30*C)
- Button fastening at the back
- Made in Italy
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text:
Cohen [Cort], Harry & family - 1920 US Census record.jpg
January 2, 1920
New York, Kings County, New York, United States
1920 U.S. Census record for Harry Cohen and family
People: Harry Cohen, Irving Cort, Ida Cort and 4 others.
The Savetmans of Bialystok-- recounted by Jeanette Friedel and recorded by Rochelle Savetman.pdf
Baltimore, Maryland, United States
Jeanette (Savetman) Friedel, the daughter of Harry Savetman, recounted the Savetman family of Bialystok to Rochelle ...
People: Julius Cohen, Dora Savetman, Jankiel Savetman and 6 others.
Obituary 1 -- No Title - NYTimes.com
Want both newspaperdeliveryand free, unlimited digital access?
People: Aaron Cohen
Fannie's Obit, Friday, October 8th, 1954.pdf
October 8, 1954
Bridgeport, Connecticut, United States
Found in MyH.
People: Fannie Cohen
Max Cohen, US Census, Connecticut, 1910.jpg
289 1/2 Main Street, Danbury, Fairfield, Connecticut, United States
Found in MyH.
People: Max Cohen, Nathan Cott Cohen, Bella Langner and 3 others.
David Melmed, US Census, Connecticut, 1940.jpg
12 Leonard St., Stamford, Connecticut, United States
Found in MyH.
David Melmed,
Julius Cohen stone.jpg
August 17, 1951
Beth Shalom Hebrew Young Men's Cemetery, Windsor Mill Road, Woodlawn, Maryland
Hebrew inscription: YEHUDA, son of Reb (Esteemed) YISRAEL CHAIM HA-COHAN (the Cohen) Beloved Father Julius Au...
People: Julius Cohen
Ida Cohen stone.jpg
September 3, 1946
Beth Shalom Hebrew Young Men's Cemetery, Windsor Mill Road, Woodlawn, Maryland
Hebrew inscription: CHAYA HENE daughter of Reb (Honored) YITZCHAK DAVID (=Isaac David) BELOVED MOTHER IDA SEP...
People: Isaac David Savetman and Ida Cohen
1891 The Marriage of Chaya Savetman, Bialystok, Poland.pdf
August 21, 1891
Bialystok, Poland (Russian Empire)
Choose "Original PDF" for best view. 4 pages. p.1: This is a scan of the original ledger page recording this marriag...
People: Ida Cohen and Julius Cohen
Julius Cohen death August 17 1951.png
August 17, 1951
Baltimore, Maryland, United States
From the Baltimore Sun. Husband of the late Ida Cohen, father of Herman and Moses Cohen, of Baltimore; Jack S. Cohen...
People: Julius Cohen
Dutch War Victims Authority - Ilse Cohen.JPG
September 30, 1942
The Central Database of Shoah Victims' Names The Database includes data regarding Jews who were victims of persecutio...
People: Ilse Cohen


text:
Kami and the Yaks
Written by Andrea Stenn Stryer
Illustrated by Bert Dodson
Lovereading4kids Price £12.40
£15.50 saving £3.10 (20%)
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Kami and the Yaks by Andrea Stenn Stryer
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48 pages
Andrea Stenn Stryer
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Publication date
1st April 2007
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