Opinion
00 Civ. 0454 (HB)
May 15, 2000
OPINION ORDER
The plaintiff brought this lawsuit under the Family and Medical Leave Act ("FMLA" or "Act"). Defendants Venator Group Inc. and Lady Footlocker US ("Venator") have moved to dismiss plaintiff's complaint for failure to state a cause of action pursuant to FRCP 12(b)(6). For the reasons discussed herein, the motion is GRANTED, with leave to replead within 10 days from the date hereof.
I. BACKGROUND
On a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), the factual allegations of the complaint are presumed to be true, and all factual inferences are drawn in the plaintiff's favor. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989). Accordingly, the factual allegations considered here and set forth below are taken from the Complaint and do not constitute findings of fact by the Court. The allegations of the Complaint are presumed to be true only for the purpose of deciding the present motion.
In her memorandum in opposition to Venator's motion to dismiss, Miller relies on statements set forth in her supporting affidavit dated March 27, 2000. This Court must limit its consideration to the allegations asserted in the pleadings. See Branch v. Tower Air, Inc., 94 Civ. 6625, 1995 WL 649935, at *5 (S.D.N.Y. Nov. 3, 1995) (memoranda and supporting affidavits in opposition to a motion to dismiss cannot be used to cure a defective complaint); Adler v. Aztech Chas. P. Young. Co., 807 F. Supp. 1068, 1072 (S.D.N.Y. 1992) (same).
Plaintiff, Gladys Miller, was employed by Venator. (Compl. ¶ 6.) In or about March 1999, she developed an eye problem, which made it difficult for her to see clearly. (Id. at ¶ 7) On or about March 10, 1999, plaintiff saw Dr. El Henhaway. (Id. ¶ 8.) Plaintiff informed her manager, Bonnie Celia, of her need to take time off, due to her eye problems, and the time off was approved. (Id. ¶¶ 8, 9.) After taking four consecutive days off from work, plaintiff was fired on or about March 15, 1999. (Id. ¶ 10).
II. DISCUSSION
A. Standards
Dismissal of a complaint pursuant to Rule 12(b)(6) is permitted "only where it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle him to relief." Scotto v. Almenas, 143 F.3d 105, 109-10 (2d Cir. 1998). "The task of the court in ruling on a Rule 12(b)(6) motion is `merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.'" Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998) (quoting Ryder Energy Distribution Corp. v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984)). In deciding a 12(b)(6) motion, the Court must accept as true all material facts alleged in the complaint and draw all reasonable inferences in the nonmovant's favor. See Thomas v. City of New York, 143 F.3d 31, 36 (2d Cir. 1998).
B. The Family and Medical Leave Act
Congress passed the FMLA in 1993 "to entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition." 29 U.S.C. § 2601 (b)(2). The FMLA applies to any man or woman who has worked at least 1250 hours a year at a firm employing 50 or more employees at least 20 weeks of the year. See 29 U.S.C. § 2611 (2), (4) (defining "eligible employee"). Neither party disputes that Miller qualifies as an employee under the FMLA and that Venator is an eligible employer. The FMLA entitles an eligible employee to "a total of 12 workweeks of leave during any 12-month period for a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. § 2612 (a)(1)(D). The Act further provides that, upon return from FMLA leave, an employee shall be restored to the position of employment he or she held when the leave began or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment. 29 U.S.C. § 2614 (a). The FMLA makes it unlawful for employers to "interfere with, restrain, or deny the exercise of or the attempt to exercise, any right" guaranteed by the Act. 29 U.S.C. § 2615 (a)(1). Likewise, employers are forbidden from discharging or in any other manner discriminating against any individual for opposing any practice made unlawful by the FMLA. See 29 U.S.C. § 2615 (a)(2).
C. "Serious Health Condition"
As noted above, the FMLA entitles an eligible employee to unpaid leave under the Act if he or she is unable to work due to a "serious health condition." The FMLA defines a "serious health condition" as an illness, injury, impairment, or physical or mental condition that involves continuing treatment by a health care provider. 29 U.S.C. § 2611 (11); 29 C.F.R. § 825.114 (a)(1), (2). A serious health condition involving "continuing treatment by a health care provider" includes a period of incapacity (i.e., inability to work, or perform other regular daily activities due to the serious health condition, treatment therefor, or recovery therefrom) of more than three consecutive calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves treatment two or more times by a health care provider or by a provider of health care services under orders of, or on referral by, a health care provider. 29 C.F.R. § 825.114 (a)(2).
Nowhere in her complaint does plaintiff assert that her leave was due to a "serious health condition." Moreover, she has failed to allege facts sufficient to meet the definition of a "serious health condition" listed in the statute and the accompanying regulations. Plaintiff's complaint fails to provide any facts establishing that she received continuing treatment from her health care provider. Furthermore, her complaint does not allege that her illness made her unable to work, or that she received treatment from a health care provider on two or more occasions for her illness. See 29 C.F.R. § 825.114 (a)(2)(i). Therefore, plaintiff's pleadings fall short of what is required under the FMLA.
D. Plaintiff's Notice to Her Employer
Pursuant to FMLA, an employee must provide the employer with at least 30 days' notice for planned medical treatment. See 29 U.S.C. § 2612 (e)(1). Where treatment must begin in less than 30 days or the leave was unforeseeable, an employee must notify her employer as soon as practicable. 29 U.S.C. § 2612(e)(1); 29 C.F.R. § 825.302 (a); 29 C.F.R. § 825.303 (a). "`As soon as practicable' means as soon as both possible and practical, taking into account all the facts and circumstances in the individual case. . . . [It] ordinarily would mean at least verbal notification to the employer within one or two business days of when the need for leave becomes known to the employee." 29 C.F.R. § 825.302 (b); see also 29 C.F.R. § 825.303 (a). An employee need not expressly assert rights under the FMLA or even mention the FMLA when requesting leave, but may state only that leave is needed because of a serious health condition. See 29 C.F.R. § 825.302 (c);Brohm v. JH Properties, Inc., 149 F.3d 517, 523 (6th Cir. 1998);Slaughter v. American Building Maintenance Co. of New York, 64 F. Supp.2d 319, 326 (S.D.N.Y. 1999) ("It is notice of the qualifying reason for leave, and not notice of the FMLA basis for that leave, that must be communicated.").
In determining whether an employee has provided adequate notice of the need for FMLA leave to an employer, "[t]he critical question is whether the information imparted to the employer is sufficient to reasonably apprise it of the employee's request to take time off for a serious health condition." Manuel v. Westlake Polymers Corp., 66 F.3d 758, 764 (5th Cir. 1995). "While an employer's duty to inquire may be predicated on statements made by the employee, the employer is not required to be clairvoyant." Johnson v. Primerica, No. 94 Civ. 4869, 1996 WL 34148, *5 (S.D.N.Y. Jan. 30, 1996). An employer's duty to conduct further inquiry into a request for leave "is first triggered when an employee gives sufficient notice of a medical need for the requested leave." Id. at *6.
Miller's complaint alleges only that she sought and was granted leave due to an "eye problems." (Compl. ¶ 8). Venator argues that an employer cannot be expected to classify such a request as triggering the protections of the FMLA. This Court finds that the Complaint does not set forth allegations that Miller's communication to her supervisor contained detail sufficient to put her employer on notice that she was suffering from a serious health condition. Plaintiff has failed to plead sufficient allegations of fact sufficient to satisfy the notice requirement of the FMLA. See, e.g., Satterfield v. Wal-Mart Stores, Inc., 135 F.3d 973 (5th Cir. 1998) (holding that plaintiff who provided only meager information of her condition to her employer and who failed to inform employer of scheduled doctor's appointment did not give adequate notice under the FMLA).
E. Leave to Amend is Granted
Rule 15(a) provides that leave to amend a complaint "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a); see also Hayden v. County of Nassau, 180 F.3d 42, 53 (2d Cir. 1999) ("When a motion to dismiss is granted, the usual practice is to grant leave to amend the complaint.").
Plaintiff attached as Exhibit 1 to her affidavit in opposition to the instant motion a proposed Amended Complaint. (Miller Aff., Ex. 1.), but has not yet sought leave of this Court to file it. Miller's proposed Amended Complaint claims that her eye infection qualifies as an impairment under "29 C.F.R. § 825.114(a)(3) in that it is an impairment involving continuing treatment by a health care provider for a chronic or long-term health condition that is incurable or so serious that if not treated would likely result in a period of incapacity of more than three calendar days." (Miller Aff., Ex. 1 at ¶ 8.) Lawyers have an obligation to cite statutes properly and to help the Court. 29 C.F.R. § 825.114 does not contain a section (a)(3). Furthermore, nowhere in her affidavit or Amended Complaint does Miller allege that her eye problem continued over the course of an extended period of time, or that she has suffered episodic periods of incapacity as required under the regulations defining a chronic condition. See 29 C.F.R. § 825.114(a)(2)(iii). However, the facts asserted in the plaintiff's affidavit suggest that, plead properly, the plaintiff's eye condition may satisfy the definition of a serious health condition set forth in the regulations at 29 C.F.R. § 825.114 (a)(2). The regulation provides, in pertinent part, that an illness qualifies as a "serious health condition" if the employee was unable to work for three consecutive calendar days and the employee received treatment related for her condition on more than one occasion or treatment for her condition "by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider." 29 C.F.R. § 825.114 (a)(2).
Indeed, in her proposed Amended Complaint, plaintiff alleges that (1) her leave of absence was taken at the recommendation of her doctor; (2) that her doctor qualifies as "health care provider" as defined in 29 U.S.C. § 2611 (6); (3) that her doctor recommended she take a week off from work; (4) that her doctor prescribed a continuing course of medication to treat her illness; (5) she told her supervisor prior to taking leave that the she intended to take leave for one week at the recommendation of a physician.
Moreover, in her affidavit, Miller further claims that her eye condition made it difficult to see and that she visited a doctor after "it became impossible" to work. (Miller Aff. at ¶¶ 3, 4.) She also claims that due to her condition, she was treated by her doctor on at least four occasions and that her doctor prescribed a continuing course of prescription medication. (Miller Aff. at ¶¶ 5, 8.)
Thus, this Court concludes that an amended complaint that included the allegations set forth in Miller's affidavit and her proposed Amended Complaint would, it appears, state a viable cause of action under the FMLA. The defendants argue that as a matter of law, an eye infection cannot qualify as a "serious health condition", and cite 29 C.F.R. § 825.114 (c) which provides that
Ordinarily, unless complications arise, the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, etc., are examples of conditions that do not meet the definition of a serious health condition and do not qualify for FMLA leave.29 C.F.R. § 825.114 (c).
This regulation does not list eye conditions as one of the minor maladies that does not qualify for FMLA leave. Venator also refers to a portion of the legislative history of the FMLA, which states that:
The term "serious health condition" is not intended to cover short-term conditions for which treatment and recovery are very brief. It is expected that such conditions will fall within even the most modest sick leave policies. Conditions or medical procedures that would not normally be covered by the legislation include minor illnesses which last only a few days and surgical procedures which typically do not involve hospitalization and require only a brief recovery period.
. . .
Examples of serious health conditions include but are not limited to heart attacks, heart conditions requiring heart bypass or valve operations, most cancers, back conditions requiring extensive therapy or surgical procedures, strokes, severe respiratory conditions, spinal injuries, appendicitis, pneumonia, emphysema, severe arthritis, severe nervous disorders, injuries caused by serious accidents on or off the job, ongoing pregnancy, miscarriages, complications or illnesses related to pregnancy, such as severe morning sickness, the need for prenatal care, childbirth and recovery from childbirth.
H.R. Rep. No. 8(I), 103d Cong., 1st Sess., (1993).
Though the legislative history does not cite eye conditions as one of the "serious health conditions" protected by the FMLA, the list of serious health conditions set forth in the House Report was plainly not meant to be exhaustive.
Furthermore, the cases cited by Venator may be distinguished from the allegations presented by Miller in her affidavit. In Beal v. Rubbermaid Commercial Prods., Inc. the district court found that the plaintiff could not demonstrate that her eczema qualified as a chronic condition under the FMLA in part because the record did not indicate that she had been absent from work for three or more days. 972 F. Supp. 1216, 1224-25 (S.D. Iowa 1997), aff'd 149 F.3d 1186 (8th Cir. 1998). In the case at bar, Miller claims that she was absent for four days. In Godwin v. Rheem Mfg. Co., the court found that employee's poison ivy did not qualify as a "serious medical condition" within the meaning of the FMLA in part because plaintiff had not been incapacitated due to the condition. 15 F. Supp.2d 1197, 1205 (M.D. Alabama 1998). There, the plaintiff had not sought treatment on more than one occasion and medication had not been prescribed. Id. at 1204-05. In the instant case, the plaintiff's has alleged incapacitation in her affidavit. Moreover, she claims that a continuing course of treatment was prescribed and that she was treated on more than one occasion for her eye condition. In Seidle v. Provident Mut. Life Ins. Co., the court granted an employer's motion for summary judgment in part because it found that the employee's child, who suffered from an ear infection, was seen only once by a physician, with no follow up in person or by telephone. 871 F. Supp. 238, 244 (E.D. Pa. 1994). As previously mentioned, Miller's affidavit alleges that she was treated for her eye condition on at least four occasions. The Seidle court also found the FMLA requirements unmet because at no time did [employee's son] take the medication under the continuing supervision of [the health care provider]. Id. In this case, plaintiff claims that prescription medicine was taken under the supervision of her doctor.
III. CONCLUSION
For the reasons set forth above, defendant's motion to dismiss pursuant to Rule 12(b)(6) is GRANTED, with leave to amend within 10 days from the date hereof.
SO ORDERED.