Opinion
Civil Action No. 96-3414 (DGT)
July 6, 2001
Roland Simmons, pro se
Richard Schoolman, Esq. Brooklyn, New York, for Defendant
MEMORANDUM AND ORDER
Plaintiff Roland Simmons ("Simmons") sued the New York City Transit Authority and Manhattan and Bronx Surface Transit Operating Authority (collectively "Transit Authority") for employment discrimination pursuant to the Age Discrimination in Employment Act of 1967 ("ADEA"). Americans with Disabilities Act of 1990 ("ADA"), and Title VII of the Civil Rights Act of 1964 ("Title VII"). Simmons also stated a cause of action under the Family and Medical Leave Act ("FMLA"), alleging that his termination was in retaliation for past medical leave. The ADEA, ADA, and Title VII causes of action were dismissed by Memorandum and Order (hereinafter, "MO") of this Court dated February 2, 2000. The Transit Authority now moves to dismiss the FMLA cause of action, contending that as a matter of law, the plaintiff does not qualify as an eligible employee under the FMLA.
Background
Simmons was hired as a bus driver with the Transit Authority on September 12, 1972. (MQ at 3.) Simmons is covered under the Transit Authority's collective bargaining agreement. (See Salz Aff. ¶ 6.) In 1990 he was reclassified as "cleaner". (MO at 3.) At some point after reassignment, Simmons complained of discomfort resulting from the physical duties of cleaner. Subsequently, Simmons sought reclassification and a new, less physically demanding assignment. See id. at 3-4. Simmons suffered a non-occupational injury on July 21, 1992, which was the last day that he worked. (See Salz Aff. ¶ 5.) He was examined by a Transit Authority physician on December 16, 1992, and was referred for "Reclassification." (See MO at 3-4.) In January 1993, the Transit Authority notified Simmons that he was "permanently disabled" from performing the duties of cleaner and was advised to appear for a "Reclassification Medical Examination" on January 19, 1993. Id. at 4. By letter dated February 24, 1998, the Transit Authority indicated that as a result of the examination, Simmons was "Not Medically Qualified for Titles Offered." Id. at 4-5. On November 23, 1993, Simmons was again advised by the Transit Authority to appear for a "Reclassification Medical Examination" on December 7, 1993. Id. at 5. Based on this examination, the Transit Authority determined that Simmons was fit for the position of cleaner, and he was not reclassified. Id. at 6. Simmons disputes his ability to perform the duties of cleaner. (See Pl.'s Am. Compl. ¶ 19.) Simmons was terminated November 10, 1994 under the terms of the collective bargaining agreement because of his "absenticell from work for more than twenty-four consecutive months." (MO at 7.)
The parties agree that this date should read February 23, 1993.
Discussion
The Family and Medical Leave Act allows an eligible employee 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). Accordingly, an employer may not discriminate against an eligible employee who has used FMLA leave. Bond v. Sterling, 77 F. Supp.2d 300, 302 (N.D.N.Y. 1999) (citation omitted)
"[E]ligibility is a threshold issue" which must be proven by the employee in order for him to be entitled to take leave. Bulmer v. Yellow Freight Sys., Inc., 213 F.3d 625, 2000 WL 637066 at *3 (2d Cir. May 16, 2000). To establish eligibility under the FMLA, the employee must have "been employed "for at least 12 months by the employer with respect to whom leave is requested' and "for at least 1,250 hours of service with such employer during the previous 12-month period.'" Vicioso v. Pisa Bros., Inc., No. 98 Civ. 2027, 1998 WL 355415 at *2 (S.D.N.Y. Jul. 1, 1998) (citing 29 U.S.C. § 2611 (2)(A)). A simple allegation that the employee was "employed full-time" by the employer is not enough to satisfy the 1,250 hours prong of the test. See id. The 1,250 hours requirement includes actual work time only, and does not include holidays or paid leave. See Lacoparra v. Pergament Home Ctrs., Inc., 982 F. Supp. 213, 218 (S.D.N.Y. 1997) (finding that plaintiff was not an "eligible employee" under the statute, where payroll database records indicated 1195.8 "hours worked" in the twelve months prior to leave). Plaintiff has the burden of demonstrating that the requisite hours were actually worked. See Bulmer, 2000 WL 637066, at *2.
The FMLA was enacted February 5, 1993 and went into effect February 5, 1994 for employees, such as Simmons, covered under collective bargaining agreements. Family and Medical Leave Act of 1993. Pub.L. No. 103-3, § 405(b)(2)(B), 107 Stat. 6 (1993). Thus, the relevant time frame for determining Simmons' eligibility as to hours worked is the 12-month period ending February 5, 1994. Simmons has offered no evidence that he satisfies the 1,250 hours worked requirement for this period. This is not surprising, given that Simmons' last reported day of work was July 21, 1992, more than eighteen months before his FMLA coverage would have been effective.
Simmons also apparently contends that the Transit Authority's actions prevented him from working. (See Pl.'s Opp'n to Mot. to Dismiss at 1-2.) The FMLIA makes it unlawful for "any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under" the statute. 29 U.S.C. § 2615 (a)(1). Accordingly, Simmons may be entitled to FMLA coverage despite not meeting the 1,250 hours if the Transit Authority wrongfully precluded his eligibility.Lacoparra, 982 F. Supp. at 219-20.
It is true that the Transit Authority's failure to reclassify Simmons may have prevented him from working initially. However, Simmons has neither alleged nor set forth evidence that the Transit Authority behaved wrongfully or unlawfully in finding him "Not Medically Qualified for Titles Offered" following the January 19, 1993 examination that prevented him from working as a cleaner. See Woodford v. Cmty. Action of Greene County, 103 F. Supp.2d 97, 100 (N.D.N.Y. 2000) (stating that plaintiff must submit evidence that her suspension by defendant was contrary to law). In fact, Simmons agreed with the decision and followed the proceedure to be considered for reclassification. Further, Simmons has not demonstrated that the Transit Authority interfered with his employment following the December 1993 decision not to reclassify. Moreover, Simmons was allowed and even encouraged to work, but chose neither to return to work nor to file a medical grievance disputing the decision. (MO at 9-10.)
Finally, Simmons does not dispute that under the terms of the collective bargaining agreement, an employee will be dropped after two years absence due to injury or illness. (Collective Bargaining Agreement § 6.2(H)(1), Salz Aff., App. 4.) The Eighth Circuit recently dismissed an employee's claim of retaliatory discharge under the FMLA where the employee was terminated under the terms of a collective bargaining agreement. Sepe v. McDonnell Douglas Corp., 176 F.3d 1113, 1115-16 (8th Cir. 1999)
For all of the above reasons, Simmons has not established that he qualifies as an eligible employee under the FMLA. He has also not established that the Transit Authority unlawfully prevented him from working the 1,250 hours required for eligibility. The Transit Authority's motion to dismiss is consequently granted.
Conclusion
Because Simmons has failed to set forth facts establishing that he worked more than 1,250 hours with the Transit Authority in the 12 months prior to February 5, 1994, he does not qualify as an eligible employee under the FMLA. Accordingly, the Transit Authority's motion to dismiss is granted. The Clerk-of the Court is directed to close the case.
So Ordered.