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SLAUGHTER v. AMERICAN BLDG. MAINTENANCE CO.

September 13, 1999

ELLIS L. SLAUGHTER, PLAINTIFF,
v.
AMERICAN BUILDING MAINTENANCE CO. OF NEW YORK, DEFENDANT.



The opinion of the court was delivered by: Sweet, District Judge.

OPINION

Plaintiff Ellis L. Slaughter ("Slaughter") has moved for an order, pursuant to Rule 56 of the Federal Rules of Civil Procedure, granting him partial summary judgment against defendant American Building Maintenance Co. of New York ("ABM"), and dismissing ABM's affirmative defense of collateral estoppel. For the reasons set forth below, the motion is granted in part, and denied in part.

The Parties

Slaughter is a natural person who, at all times relevant to the instant action, resided in Queens, New York.

ABM is a foreign corporation authorized to do business in the State of New York, and at all times relevant to the instant action had a place of business located in Manhattan.

The Facts

Slaughter was employed by ABM from October of 1995 until August of 1997, when he was terminated due to absences in excess of those allotted to employees under ABM's "no fault" absentee policy. Slaughter was employed as an elevator relief operator and porter, and worked in that capacity for ABM at the World Trade Center in lower Manhattan. Prior to October of 1995, he was employed in a virtually identical capacity by Ogden Allied ("Ogden") — a company whose cleaning responsibilities at the World Trade Center were ultimately assumed by ABM. Slaughter worked the third shift at ABM, which was scheduled from either 10:00 or 10:30 p.m. until early morning.

Slaughter's job responsibilities at the World Trade Center included sweeping, mopping, and removal of trash and debris, as well as the running of elevators when freight elevator operators needed relief. His duties called for physical labor, including lifting, bending, stooping, and carrying. His immediate supervisor at the World Trade Center was Dee Yacono. From July of 1997 to early September 1997, however, Yacono was temporarily replaced by John Rezaj ("Rezaj").

Under ABM's "no fault" absence policy, employees who take one hundred percent in excess of the sick days allotted to employees under the collective bargaining agreement between ABM and the employees' union are subject to immediate dis- missal — though permanent dismissal does not always result should evidence of mitigating circumstances be presented by a terminated employee at a "Step I" grievance hearing. This arrangement permits ABM employees assigned to the World Trade Center a total of twenty absences prior to termination. According to ABM, not all absences due to illness are counted towards an employee's absence quota. Illnesses covered by workers' compensation and state disability laws are excluded, as are "clinic" days under the applicable collective bargaining agreement. More important insofar as the present litigation is concerned, ABM also claims that absences covered by the Family and Medical Leave Act of 1993 (the "FMLA" or the "Act") are not counted under the no fault policy,*fn1 and that a Department of Labor notice detailing its employees' rights under the FMLA is posted on an ABM bulletin board near its World Trade Center punch clock, ABM's written absence policy does not specifically state that FMLA leave will not be counted, though other personnel materials submitted by ABM state that ABM will provide its employees with unforeseeable leave under the FMLA if notice is provided "as soon as practicable or within 15 days." (Patton Aff. Ex. U.)

Under company policy employees are obligated to contact ABM at least one hour before the start of their shift if they expect to be absent from work. After 6:00 p.m., ABM's office at the World Trade Center is closed, and employees' absence calls are routed to an answering service.

In March of 1990, while an employee of Ogden, Slaughter injured his back and great toe while he was emptying a garbage dumpster. In the wake of this accident, Slaughter received compensation for approximately eleven months pursuant to a May 20, 1991 decision by the Workers' Compensation Board. In March of 1995, Slaughter suffered another injury at work, which resulted in pain in his left groin, lumbar sprain, and back spasms. On March 31, 1995, Slaughter's physician — G. Peta Carrera, M.D. ("Carrera") — issued a disability certificate indicating that Slaughter would be "totally incapacitated" from March 3, 1995 until April 30, 1995. (Bernstein Aff. Ex. Q.) Between April and October of 1995, Slaughter visited Carrera's office twice weekly for physical therapy. On September 29, 1995, Slaughter's physician certified that he would be able to return to work on October 2, 1995. Id. However, the record also contains a note from Carrera stating that Slaughter would be absent, due to a lumbar sprain, from October 16, 1995 until October 28, 1995.

According to Slaughter, pain associated with his back condition recurs periodically, and has resulted in his missing work. In late July of 1997, Slaughter claims that he began to feel pain in his lower back, significant enough such that he was unable to report to work. Slaughter's renewed back discomfort in July of 1997 resulted in his absence from work from July 30 until August 5. He consulted with Dr. Jamil Abraham ("Abraham") for treatment, who provided Slaughter with a note, dated August 1, 1997, stating that Slaughter would be able to return to work on August 5, 1999. (Bernstein Aff. Ex. 3.) The note also indicated, if barely legibly, that Slaughter's absence was back-related. According to Slaughter, this note was provided to Dee Yacono when Slaughter returned to work on August 5th. However, Yacono denies that she was ever provided such a note and, according to ABM, Slaughter never indicated that he had been absent because of a back condition. Slaughter received written warnings on July 30 and 31 for failing to properly report his absence.

On August 19, 1997, Slaughter again experienced back pain. To notify ABM of his anticipated absence, Slaughter called ABM's designated message number. Entries in Slaughter's "absentee calendar," which mark his absences on August 19, August 20, and August 21 as sick days with the code "S," confirm that ABM was, at some point, notified of Slaughter's absences — though the record is unclear concerning whether or not an actual memorialization of Slaughter's message to the answering service would have been kept by ABM in the normal course of affairs. However, in his initial call to ABM Slaughter did not specify that he would be absent due to back troubles. As his own deposition testimony makes clear, Slaughter did not provide the individual who took his message with any specific explanation why he would not he in work on the 19th, other than that he was "calling in sick." (Bernstein Aff. Ex. E at ¶ 23.) Slaughter was absent from work as well on August 23 and August 24.

On August 20, 1997, Slaughter was examined by Dr. Andre Brutus ("Brutus"). Brutus provided Slaughter with a note stating that Slaughter would be able to return to work on August 22, 1997.*fn2 The following day, August 21, 1997, Slaughter accompanied a friend, Joe Frison ("Frison"), to the Queens Center Mall (the "Mall"). According to Slaughter, Frison had asked Slaughter to sit in his car so that he would not need to find a parking space at the Mall.

As Slaughter and Frison were returning from the Mall, they happened upon a co-worker of Slaughter's — Humberto Herrera ("Herrera"). Herrera, a porter at the World Trade Center, offered to take Slaughter's excuse note from Brutus to work with him that night. Slaughter gave Herrera the note. Herrera, however, neglected to deliver the note to ABM's personnel office. According to Herrera, he realized his oversight when union shop steward Fred Nevis ("Nevis") mentioned that Slaughter had missed a shift. Herrera brought the note the following night, August 22, and gave it to Nevis. According to Slaughter, Slaughter provided Yacono with the note himself when he returned to work on August 25, though Yacono vigorously denies that Slaughter provided her with any doctors' notes for his 1997 absences.

However, according to ABM, Slaughter never informed anyone at ABM — either before, during, or after his absences on August 19, 20, or 21 — that his absences were due to a back condition. ABM also contends that at no time during Slaughter's employment with ABM was it ever made aware that he had suffered a work-related back injury, while employed by Ogden, that would require him to take time off from work. ABM also contends that, during Slaughter's employment with ABM, he never informed his immediate supervisor — Dee Yacono — that any of his absences were due to back pain, even though he had already received several warnings and suspensions. Nevertheless, absent from the record is any statement or deposition testimony by Slaughter's immediate supervisor in August of 1997 — Rezaj — concerning his knowledge of any back troubles Slaughter might have been experiencing.

After his return to work, Slaughter received an "Employee Final Warning" and was fired. According to ABM's "Employee Final Warning" and termination notice — which was signed by ABM supervisors on August 22, 1997, indicates that Slaughter refused to sign on August 25th, and contains Yacono's witnessing signature dated August 25th — Slaughter's absence on August 21 placed him one hundred percent over the absence amount allowed under the applicable collective bargaining agreement. (Yacono Aff. Ex. S.)*fn3 The basis for the dismissal — that Slaughter had been absent for twenty-one days — is not in dispute. Prior to his absences in August of 1997, none of Slaughter's absences had been designated as FMLA leave. Between February of 1996 and July 31, 1997, Slaughter had been issued a number of warnings and had been suspended twice. He had been formally warned on April 22, 1997, after eleven absences, about excessive absenteeism, and was suspended for two days on July 31, 1997, but Slaughter's suspensions were not all absence-related — as he was suspended in March 1997 for failing to complete his assigned work routine.

Slaughter filed his complaint on May 13, 1998, alleging violations of the FMLA, Title 8 of the Administrative Code of the City of New York, and Article 6 of New York's Labor Law. Oral argument was heard on the instant motion on April ...


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