Carrera certified that Slaughter would be able to return to work on
October 2, and does not limit the tasks that Slaughter could be
assigned. It would neither be reasonable nor consistent with the FMLA's
notice requirements to impose a burden upon ABM to inquire affirmatively
for every absence thereafter whether Slaughter was, in fact, seeking
leave because of his back.
Given that Slaughter's phone call to the automated message service was
insufficient to place ABM on notice of his need for FMLA leave, the
inquiry necessarily shifts to the doctors' notes that Slaughter alleges
he provided to ABM. It is worth noting in this regard that the parties
are in vigorous disagreement as to whether or not such notes were ever
provided to ABM after Slaughter's July and August absences.
Even construing the disputed facts in Slaughter's favor, however,
notes explaining his absences were only provided by Slaughter to ABM on
August 5 and August 25 — each time more than two business days
after he first took leave from work. Moreover, even assuming that
Herrera's delivery of a note to the union steward — who was not a
member of ABM management — could constitute proper notice under the
FMLA, the note was allegedly delivered three days after Slaughter stopped
reporting to work. Given the Department of Labor's determination that
"[i]t is expected that an employee will give notice to the employer
within no more than one or two working days of learning of the need for
leave, except in extraordinary circumstances where such notice is not
feasible," 29 C.F.R. § 825.303(a), such delay is highly problematic.
While nothing in the FMLA required Slaughter to provide ABM with a
doctor's note to satisfy his initial notice obligations under the Act,
nothing in the record indicates that Slaughter's absences were occasioned
by such extraordinary circumstances that he could not be reasonably
expected to inform his employer, in appropriate detail, within two days
of learning of his need for leave. After all, while Slaughter claims that
his back troubles made him unable to work, nothing in the record
indicates that he was unable to contact ABM.
Slaughter apparently takes the position that, because ABM's "no fault"
leave policy does not explicitly provide that FMLA leave is not counted
towards the twenty days allotted to employees under the policy, the
policy in place at ABM constitutes a facial violation of the FMLA.
Slaughter points out that leave covered by workers' compensation or state
disability laws is explicitly exempted from treatment under the no fault
policy, and reads the specific inclusion of these types of leave to
indicate that FMLA-covered leave is counted by ABM towards the no-fault
To be sure, FMLA leave cannot be counted against an employee under an
employer's "no fault" attendance policy. See 29 C.F.R. § 825.220(c);
Stoops, 141 F.3d at 312. However, ABM's papers press that ABM does not,
in fact, count FMLA-covered leave towards employees' no-fault allotment.
There is, of course, some ambiguity in the record concerning ABM's
actual policy regarding the counting of FMLA-covered absences. The
scattered and selective portions of deposition testimony submitted by the
parties appear to indicate an absence of familiarity, on the part of some
ABM supervisory personnel, with the standards and procedures governing
FMLA leave, though this impression may be the result of parsing
incomplete deposition transcripts. The "absentee calendar" forms utilized
by ABM also contain no specific code by which FMLA-qualifying leave could
he recorded, though the forms contain a list of numerous codes for
"clinic," "holiday," "sick," "sick no pay," and other absences or
infractions. (Bernstein Aff. Ex. V.) One conclusion that could be drawn
from the forms' failure to include a code for FMLA absences is that ABM
does not make a point of classifying its employees' leave as FMLA
concerning itself with whether or not such leave is covered by the FMLA.
Furthermore, if such forms are the only records kept by ABM of its
employees' leave, and ABM does not distinguish between normal sick days
and FMLA absences, then ABM would at the very least be in violation of
the regulations governing an employer's maintenance of records in
compliance with the FMLA. See 29 C.F.R. § 825.500.*fn9 Because the
record currently before the court only provides a glimpse at ABM's
recordkeeping through the lens of Slaughter's own absentee calendar,
however, definitive conclusions about such matters cannot be reached.
Slaughter is also correct that the inclusion of specific language in
ABM's "Rules and Regulations" excluding illnesses covered by workers'
compensation and state disability laws from coverage by the "no fault"
absence policy could be read to mean that other types of leave —
such as leave under the FMLA — would not be graced with a similar
exclusion. Expressio unis est exclusio alterius, after all, is a
time-honored doctrine of interpretation. Nevertheless, nothing in
Slaughter's papers establishes that ABM's general practice was to only
grant employees the leave allotted under the no fault policy, and nothing
in his papers decisively contradicts ABM's contention that it does not
count FMLA leave towards employees' allotments under that policy.
In any event, the record before the Court indicates that Slaughter's
notice to ABM was insufficient to merit judgment as a matter of law in
his favor. Consequently, Slaughter's motion is denied insofar as it seeks
summary judgment on his FMLA claim.
II. ABM's "Collateral Estoppel" Defense
In its Answer, ABM's ninth affirmative defense states that Slaughter's
claims in the complaint are barred by collateral estoppel. Though ABM
does not provide any information in its Answer or in its papers to
elaborate on the theory undergirding this defense, the basis of the
defense would appear to be an opinion and award by a contract arbitrator
concerning Slaughter's grievances about a warning letter received March
11, 1997, Slaughter's alleged excessive workload, and Slaughter's
suspension from March 18, 1997 through March 20, 1997, as well as
Slaughter's later grievance concerning his discharge effective August
The substance of the contract arbitrator's decision was as follows:
While generally denying the excessive workload complaint,
sufficient detailed information was not provided by the Employer
to refute the excessive workload complaint.
As to the termination, during the first 8 months of the 1997
calendar year, Grievant was absent 21 days. Grievant provided
doctor's notes for some of his absences. The authenticity
of the absences is not questioned. It is the excessive number
of the absences for which Grievant was discharged. Grievant
had previously received written warnings concerning his excessive
absenteeism but failed to correct his unsatisfactory attendance
record. Grievant was justly terminated.
(Bernstein Aff. Ex. U.) The contract arbitrator's award determined that
Slaughter had been unjustly suspended in late March of 1997, and that ABM
should therefore pay Slaughter three-days' pay at the then
prevailing rate, but that his discharge was sustained.
Even a cursory review of the record reveals that the issues resolved
in Slaughter's grievance hearing were distinct from those at issue in the
instant action. Absent from the arbitrator's decision is any mention, for
example, of the FMLA. This is not surprising, as his task was to resolve
disputes between Slaughter and ABM arising under a collective bargaining
agreement, and not to resolve every other potential claim that Slaughter
might have under state or federal law. Under analogous circumstances, a
number of courts within this district have explained that arbitral
rulings under a collective bargaining agreement should be given no
preclusive effect as to federal statutory claims, though they may be
admissible as evidence. See A.H. Lynch v. Pathmark Supermarkets,
987 F. Supp. 236, 240-42 (S.D.N.Y. 1997) (arbitral ruling pursuant to
collective bargaining agreement does not preclude religious
discrimination claim under Title VII, though arbitrator's findings to be
given "the weight they merit"); Taylor v. New York City Transit Auth.,
No. 96 Civ. 4322(SS), 1997 WL 620843, at **3-5 (S.D.N.Y. Oct.7, 1997)
("TAB" panel ruling on employee grievance under collective bargaining
agreement has no collateral estoppel effect on Title VII action).
Consequently, while the arbitrator concluded that Slaughter's
termination was justified due to excessive absenteeism, this finding does
not mean that Slaughter did not have a claim under the FMLA — which
mandates leave policies rather distinct from those promulgated according
to the terms of a collective bargaining agreement. After all, an employer
can certainly run afoul of the FMLA without also violating such an
Conversely, the arbitrator's determination that Slaughter provided
doctors' notes for certain of his absences and that the "authenticity of
the absences is not questioned" is no indication whatsoever that
Slaughter ever provided proper notice to ABM under the FMLA, or that the
absences at issue necessarily qualified for coverage under the FMLA.
To the extent that ABM's ninth affirmative defense seeks to insulate
ABM from FMLA or other liability not premised upon the collective
bargaining agreement, the defense is therefore invalid and shall be
dismissed as a matter of law.
For the reasons stated above, Slaughter's motion for summary judgment
is therefore granted in part and denied in part. The motion is denied
insofar as it seeks an order granting Slaughter summary judgment on his
FMLA claim, and granted insofar as it seeks dismissal of ABM's
affirmative defense of collateral estoppel.
It is so ordered.