Summary
holding that evidence that the employer knew that the employee suffered from a chronic medical condition did not relieve the employee of the duty to notify the employer that an individual absence was due to this condition
Summary of this case from Crown v. Nissan North American, Inc.Opinion
06 CIV. 1587 (DLC).
December 3, 2007
Appearances: Plaintiff Pro Se: Michael F. Golden, Massapequa, New York.
For Defendant: Joshua R. Fay, Assistant Corporation Counsel, New York, New York.
OPINION AND ORDER
The plaintiff, Michael F. Golden ("Golden"), who is currently proceeding pro se, filed this employment discrimination action against the New York Department of Environmental Protection ("DEP") on February 28, 2006. As explained in an Opinion of August 10, 2007, the sole remaining federal claim is brought under the Family Medical Leave Act ("FMLA"). Golden v. N.Y. Dep't of Environmental Protection, No. 06 Civ. 1587(DLC), 2007 WL 2319130 (S.D.N.Y. Aug. 10, 2007) ("August Opinion"). Because the parties had not addressed the legal framework for analyzing an FMLA claim in their summary judgment papers, the August Opinion set out that legal framework in considerable detail and provided them with a renewed opportunity to brief the issue. Familiarity with the August Opinion is presumed. For the reasons set forth below, the defendant's renewed motion for summary judgment is granted.
BACKGROUND
Golden's FMLA claim arises from his absences from work due to a back injury. Golden claims that DEP interfered with his FMLA rights principally by failing to permit him to work fewer than seven hours a day on fifteen occasions when he arrived at work late. Golden asserts that he was late to work because of a need to rest his back or to avoid taking the subway at a time at which it was likely to be crowded, for fear of aggravating this medical condition.
Neither party has accompanied its supplementary briefing with statements pursuant to Local Rule 56.1. Both, however, have submitted additional evidence. Unless otherwise noted, the facts described herein are based on the evidence viewed in the light most favorable to the plaintiff or are not genuinely in dispute for purposes of this motion.
Construing his submissions liberally, Golden also argues that the DEP failed to grant him leave or paid leave to cover certain other part-day absences and day-long absences on February 21, 22, and 25, March 13 and May 1, 2005. Golden either did not report to work on those days or worked less than seven hours. Golden does not provide evidence that he was ever disciplined for any of these additional absences. To the extent that he is contending that the FMLA required the DEP to pay him for these absences, this claim fails because Golden has not established that the absences occurred under circumstances under which the DEP ordinarily would have provided paid leave. See Golden, 2007 WL 2319130, at *4. In any event, Golden has not provided evidence that he provided timely notice to his employer that he needed to take leave on these occasions because of a serious medical condition. See id.
A DEP employee handbook sets forth the defendant's procedural requirements for requesting sick leave. It provides that employees must submit a "Request for Leave" form in order to request use of sick leave. It also provides rules for calling in to report a need for sick leave and for requesting permission to leave work early due to illness. The handbook discusses unpaid medical leave and paid sick leave and states that medical documentation is required in requests for both types of leave. The handbook also states that the FMLA requires covered employers "to provide up to 12 weeks of unpaid, job-protected leave to eligible employees for certain family and medical reasons." The handbook was issued to all employees in 1995, several years after Golden's employment began.
Golden was permitted to work flexible hours to accommodate his back condition, but was required to work a full seven hours each day. Golden's supervisor informed Golden orally on June 5, 2003, and in writing on September 2, 2003, that he had to submit a leave slip if he could not be present the full seven hours he was required to work each day. The September 2 memorandum informed him that he could sign in anytime between 7:30 and 8:30 a.m. It warned him that continued disregard for the rules set forth in the memorandum could result in disciplinary action. Golden has submitted a document that shows that he was reprimanded for working short days without requesting leave on 12 occasions between June 12 and September 2, 2003.
Golden does not deny that he sometimes came to work later than 7:30 a.m., and yet left by 3:30 p.m. without notifying his supervisor that he wanted to use leave time to work less than seven hours. Golden did not notify his supervisor because he viewed 3:30 p.m. as his regular end time, regardless of what time he had arrived at work.
Golden also avers that he did not submit leave forms because he wanted to avoid hostile and stressful interactions with his direct supervisor and because he believed any request for leave would be denied. At his deposition, Golden contended that on three or four occasions between March 5 and June 5, 2003 and perhaps two more occasions thereafter, his direct supervisor made comments to him such as, "Oh my back hurts. Oh, my back hurts." He testified that that supervisor would walk stooped over while making these comments. He also testified that on two or three occasions this supervisor imitated the shaking that resulted from Golden's torticollis.
Some details of this account are unclear, because the parties provided the Court with only the right half of the relevant page of Golden's deposition transcript.
Golden was suspended for five days as a result of 14 unauthorized half-hour absences from work and one unauthorized one-hour absence between September 9, 2003 and March 18, 2004, as well as the use of profane language directed at his supervisor. Golden's claims in this lawsuit concern the events which led to the suspension and essentially challenge the validity of the suspension ruling. While the DEP has raised several arguments in support of dismissal of this lawsuit, it is only necessary to reach the issue of whether Golden has presented sufficient evidence that his FMLA rights were infringed.
DISCUSSION
Golden has asserted an FMLA "interference" claim pursuant to 29 U.S.C. § 2615(a)(1). This section of the FMLA states that "[i]t shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided" under the FMLA. Construed liberally, Golden has asserted two bases for his FMLA interference claim: (1) the DEP's refusal to grant him FMLA leave on the occasions when he arrived late to work and left before completing a seven-hour shift and (2) harassment by his direct supervisor that discouraged Golden from submitting leave requests. For purposes of this motion, it is undisputed that Golden suffered from a serious medical condition.
The Second Circuit Court of Appeals has not yet ruled on whether Title VII's McDonnell Douglas burden-shifting analysis applies to claims under this section, although it has acknowledged the Seventh Circuit's holding that burden shifting is unnecessary in analyzing such "interference" claims. See Sista v. CDC Ixis North America, Inc., 445 F.3d 161, 175-76 (2d Cir. 2006).
It is assumed for purposes of the discussion that follows that Golden's decision to work a shortened day could support an FMLA claim even though he offers his medical condition as the reason he arrived at work late, and not as the reason he left work before completing a seven-hour shift. The DEP has not suggested that an FMLA claim could not arise in these circumstances, even though Golden was disciplined for leaving work early and without notice, and not for arriving to work late.
Golden's first interference claim fails because Golden never requested leave for the dates at issue. Golden provides no evidence that he ever gave DEP notice that he wished to work less than a seven-hour day on those occasions when he arrived at work late. DEP's internal procedures required such notice and Golden's supervisor reminded him of that requirement both orally and in writing.
Golden's argument that the DEP failed to comply with the FMLA's posting requirement is misplaced. Department of Labor regulations require that every employer covered by the FMLA
post and keep posted on its premises, in conspicuous places where employees are employed, whether or not it has any "eligible" employees, a notice explaining the Act's provisions and providing information concerning the procedures for filing complaints of violations of the Act with the Wage and Hour Division. The notice must be posted prominently where it can be readily seen by employees and applicants for employment. . . . The poster and the text must be large enough to be easily read and contain fully legible text.29 C.F.R. § 825.300(a). "[A]n employer that fails to post the required notice cannot take any adverse action against an employee, including denying FMLA leave, for failing to furnish the employer with advance notice of a need to take FMLA leave."Id. § 825.300(b). The requirement to give notice does not affect cases that concern an unforeseeable need for leave. See Satterfield v. Wal-Mart Stores, Inc., 135 F.3d 973, 983 (5th Cir. 1998) (holding that the absence of posted employer notice does not bar an employer from denying FMLA leave when the need to take that leave is unforseeable); compare 29 C.F.R. § 825.302 (foreseeable need for leave) with id. § 825.303 (unforeseeable need for leave).
The ruling that Golden failed to give the DEP notice of his need for leave on the days on which he worked fewer than seven hours is based not on his failure to give "advance" notice, as would be required for foreseeable leave, but on his failure to give notice "as soon as practicable" of his need for unforeseeable leave. See, e.g., Slaughter v. American Bldg. Maintenance Co. of New York, 64 F.Supp.2d 319, 327 (S.D.N.Y. 1999) (holding that a need for leave on particular dates was not foreseeable despite ongoing medical condition). Even if the DEP were found to have violated the posting requirement, that fact would not excuse Golden from his duty to give notice of his need for leave "as soon as practicable." Even if the leave were held to be foreseeable, the DEP does not argue that Golden should have given it notice of his need for leave at any time before the dates on which he arrived late to work. Therefore, it is not contending that he failed to give "advance notice," and its argument is not barred by the posting regulation.
Golden argues that the DEP knew of his intermittent use of part-day leave because of his past practice of using Sick Leave, Annual Leave, and "Compensatory time" to rest his back. Evidence that DEP knew that Golden suffered from a chronic medical condition did not relieve Golden of the duty to notify DEP "as soon as practicable" that an individual absence was due to this condition. 29 C.F.R. § 825.303(a).
Golden next argues that his supervisor's attempt to enforce a seven-hour work day exceeded the supervisor's authority within DEP. This argument is flatly contradicted by the documentary evidence, including the record created when the Administrative Law Judge upheld Golden's suspension for repeatedly leaving work without completing seven hours of work.
Golden's second claim is that his direct supervisor interfered with his FMLA rights by making "demeaning comments and gestures" regarding Golden's physical condition, thereby making Golden believe his direct supervisor would deny any requests for leave. "Interfering with" with the exercise of FMLA rights includes "not only refusing to authorize FMLA leave, but discouraging an employee from using such leave." 29 C.F.R. § 825.220(b); Potenza v. City of New York, 365 F.3d 165, 167 (2d Cir. 2004). It prohibits employer activities that "deter employees' participation" in activities protected by the FMLA.Bachelder v. America West Airlines, Inc., 259 F.3d 1112, 1124 (9th Cir. 2001).
The record, viewed in the light most favorable to Golden, does not support a finding that Golden's direct supervisor's activities excused Golden's failure to give notice that he was leaving work early or otherwise interfered with Golden's ability to exercise his FMLA rights. First, Golden was not actually deterred in coming to work late when his back condition required him to alter his schedule. He has not identified any occasions on which he arrived at work earlier than he desired because of a fear that leave would be denied him. More importantly, Golden has not shown that his request for leave could only be submitted to his direct supervisor. Indeed, one of the exhibits that Golden has submitted demonstrates that he submitted notice of a need for leave in June 2003 to the administrative chief of the laboratory in which he worked.
Finally, Golden has not presented evidence of conduct by his supervisor that would have dissuaded a similarly situated employee of ordinary resolve from exercising his FMLA rights. Cf. Burlington Northern Santa Fe Ry. Co. v. White, 126 S.Ct. 2405, 2415 (2006) (Title VII retaliation) (citation omitted); Dillon v. Morano, 497 F.3d 247, 254 (2d Cir. 2007) (First Amendment retaliation). While the supervisor's ridicule of his medical conditions, if Golden succeeded at trial in showing that that occurred, is unprofessional and hurtful, Golden has not shown that that conduct would have deterred an employee of ordinary firmness, in a situation similar to his, from requesting or taking FMLA leave.
CONCLUSION
The defendant's motion for summary judgment is granted. All federal claims are dismissed with prejudice. The state law claims are dismissed without prejudice to refiling in state court. See Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 127 S.Ct. 1184, 1191 (2007); New York Mercantile Exchange, Inc. v. Intercontinental Exchange, Inc., 497 F.3d 109, 119 (2d Cir. 2007). The Clerk of Court shall close the case.
SO ORDERED: