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October 15, 1999


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


Plaintiff Vincent Barnett was fired by Defendant Revere Smelting & Refining Corp. in November 1996. Barnett has brought claims against Revere for (1) termination in violation of the Family and Medical Leave Act, (2) termination in violation of the Americans with Disabilities Act and New York Human Rights Law, and (3) failure to accommodate his disability under the ADA and HRL. In addition, he has brought various tort claims, unrelated to his FMLA and ADA claims, against Revere for allegedly reporting falsely to Revere's workers compensation carrier that thumb and shoulder injuries suffered by Barnett did not occur on the job. Revere has moved for summary judgment on all of Barnett's claims pursuant to Fed.R.Civ.P. 56(c), and Barnett has cross-moved on his FMLA and ADA claims.

For the reasons discussed below, summary judgment is denied to both parties on Barnett's FMLA claim and termination claims under the ADA and HRL, and granted to Revere with respect to Barnett's failure to accommodate claim under the ADA and tort claims.


Barnett was hired by Revere in April 1989 to work in its refinery operation in Middletown. His duties included the removal of metals such as copper and nickel from molten metal in order to produce pure lead. Up until 1996, it seems that Barnett's performance history was quite positive — he was promoted to the position of refinery operator and received a $2,500 bonus for his good attendance record. After that point, however, Barnett was disciplined for a number of absences prior to his termination by way of verbal and written warnings, including several "Final Notice" warnings stating that any further absences would result in his termination.

In the spring of 1996, Barnett began to experience what he describes as chest pains, which Barnett claims caused him to become very tired, weak, and short of breath, and resulted in "an uncomfortable awareness of the heartbeat, palpitations accompanied by a pounding in the head, and dyspnea (air hunger resulting in labored or difficult breathing)." He contends that these symptoms were triggered by the "strenuous work" inherent in his job. Barnett consulted with Ann Sorino, the nurse at Revere's on-site medical unit, who in turn referred Barnett to Dr. Robert Kirschner, Revere's staff physician. Dr. Kirschner examined and ran an EKG on Barnett, both of which were inconclusive, and Kirschner referred Barnett to a cardiac specialist, Dr. Rajan Gulati, at Immediate Medical Care. On October 9, 1996, Rajan diagnosed Barnett with aortic regurgitation and mitral valve prolapse and placed Barnett on the prescription drug Procardia (Barnett stated at his deposition that his prescription has since been changed but was unable to recall the name of the new drug). Rajan also explained that it would take some time before the Procardia would take effect, but gave Barnett a return to work recommendation for the following day. Barnett avers that even with the medication, he continues to suffer severe episodes of chest pain and labored breathing, requiring continued medical treatment.

After returning to work, Barnett related his diagnosis to his manager, Dan DeMercurio, and claims that he explained to DeMercurio that he might be unable to work from time to time as a result of his heart condition. DeMercurio then referred Barnett to Nurse Sorino for the purpose of scheduling an appointment with a doctor who could confirm Barnett's condition. Barnett then made an appointment with a Dr. Douglas for November 25. Barnett asserts that when he expressed concern about the disciplinary consequences of further absences caused by his condition, DeMercurio assured him that Revere would "work with him." DeMercurio testified that he merely told Barnett that each case would be dealt with individually.

Barnett further claims that after returning to work, he repeatedly asked to be transferred to less physically demanding positions, such as driving trucks, that existed at Revere. Revere refused all of his transfer requests.

On November 9, Barnett telephoned Revere's security guard (which Barnett claims is Revere's standard practice for calling in sick) and explained that he was suffering from chest pains and difficult breathing, and would not be working that day. His condition did not improve the next day and he again did not report for work. Upon his return to work on November 11, DeMercurio met with Barnett, along with Revere's head of human resources Lois Cronic and union steward Edwin Peet, in DeMercurio's office and informed Barnett that he was being terminated for excessive absenteeism. Revere claims that Barnett neglected to provide any documentation at this meeting as to his medical condition, while Barnett contends that both at and prior to the meeting he had shown DeMercurio a letter from Middletown Medical advising Barnett to see his physician regarding abnormal EKG results.

In April 1997, Barnett filed a complaint with the EEOC against Revere alleging that he was terminated in violation of the Americans with Disabilities Act ("ADA"). In July 1998, the EEOC dismissed his complaint, finding that Barnett had failed to show that he was disabled as defined by the ADA

Workers Compensation Claims

Barnett also claims that in December 1995 he injured his shoulder while working on the job, and that in July 1996, he injured the thumb on his left hand, also on the job. Barnett alleges that Revere challenged his eligibility for workers compensation benefits by falsely informing its workers compensation carrier that Barnett was not injured on the job. Barnett claims that as a result of the false information given the insurer by Revere, approval of Barnett's claims was delayed for more than two years, until approximately September 1998.

As a consequence of his joblessness after his termination from Revere and lack of workers compensation benefits, Barnett further alleges, he could not afford to treat his shoulder injury, which has become a permanent impairment. He also states that he is still awaiting a decision from the New York Workers' Compensation Board with respect to his thumb (as of the date of his complaint).

Standards for Summary Judgment

Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. See Fed. R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue for trial exists if, based on the record as a whole, a reasonable jury could find in favor of the non-movant. See Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505. In making its determination, the court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. See id. at 255, 106 S.Ct. 2505. To defeat summary judgment, the non-moving party must go beyond the pleadings and "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). For a plaintiff in a discrimination case to survive a motion for summary judgment, he or she must offer "concrete particulars" to substantiate the claim. See Meiri v. Dacon, 759 F.2d 989 (2d Cir. 1985), cert. denied, 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985).

FMLA Claim

Revere first argues that Barnett's FMLA claim fails because he has failed to make the required showing that his condition is covered by the Act.

The FMLA provides that it is "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under . . . subchapter [I of the Act]." 29 U.S.C. § 2615(a)(1) (1994). Barnett's claim falls under a provision of the FMLA that entitles an eligible employee to up to 12 weeks of unpaid leave during any 12-month period "[b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee." § 2612(a)(1)(D). The Act defines "serious medical condition" as an "illness, injury, impairment, or physical or mental condition that involves (A) inpatient care in a hospital . . . or (B) continuing treatment by a health care provider." § 2611(11). As Barnett has never received inpatient care for his heart ailment, his condition can only fall under subsection (B) of this definition.

Department of Labor regulations provide guidance as to what constitutes a "serious health condition involving continuing treatment by a health care provider," listing several categories of such conditions. See 29 C.F.R. § 825.114(a). Revere cites only the second of these, which requires the inability to work for more than 3 consecutive days, and either medical treatment on 2 or more occasions, or medical treatment on one occasion resulting in a regimen of continuing treatment. See § 825.114(a)(2)(i)(A) and (B). As Revere points out, because Barnett was absent for only 2 days, he cannot rely on this definition. However, an alternative definition provided by § 825.114(a)(2)(iii) covers periods of incapacity due to a "chronic serious health condition." Such chronic serious health condition must require periodic visits to a health care provider for treatment, continue over an extended period of time, and cause episodic rather than a continuing period of incapacity. See § 825.114(a)(2)(iii)(A), (B), and (C). Here, Barnett avers that his condition requires periodic medical attention, will continue over time, and will cause him to miss work on occasion (Barnett Aff. ¶¶ 6, 8, 9). Revere has not offered any evidence to rebut this showing. Therefore, there exists at least a question of fact as to whether Barnett's condition satisfies the definitional requirements of the FMLA, and summary judgment for Revere on this ground is denied.

Revere argues incorrectly that a FMLA plaintiff suing on the basis of continuing treatment must make a showing under § 825.114(a)(2)(i) of the Regulation that he or she was absent from work for more than three days in addition to meeting the "chronic serious health condition" definition of subsection (iii) upon which Barnett relies. In support of this proposition Revere cites Roberts v. Human Development Assoc., 4 F. Supp.2d 154 (E.D.N.Y. 1998), a case involving an employee who suffered from a single episode of post-menopausal vaginal bleeding. Because the Roberts Court found that the condition at issue did not amount to a "chronic serious health condition" under the FMLA, it did not have occasion to consider the alternative showing provided under subsection (iii), and the case is therefore inapposite. In any event, Revere's error is self-evident upon a reading of § 825.114(a)(2), which states that a serious health condition involving continuing treatment includes "any one of the following" subsections, which consist of (i) through (v), including the above-described definition under subsection (iii), which applies to this case. Moreover, § 825.114(e) specifically provides that absences under subsections (ii) and (iii) may qualify for FMLA leave "even if the absence does not last more than three days."

Revere argues next that Barnett failed to meet the FMLA's requirement of notice to an employer of the employee's need for FMLA leave. The Act requires that an employee provide an employer with at least 30 days notice of the necessity for leave in cases where "the necessity for leave is foreseeable." 29 U.S.C. § 2612(e)(1). Revere does not dispute that Barnett's need for medical leave was unforeseeable, and the FMLA is silent as to notice requirements in such cases. However, the issue is addressed by the Regulations, which provide that in such cases, "an employee should give notice to the employer of the need for FMLA leave as soon as practicable under the facts and circumstances of the particular case."*fn1 29 C.F.R. § 825.303(a). The employee "need not expressly assert rights under the Act or even mention the FMLA to meet his or her obligation to provide notice, though the employee would need to state a qualifying reason for the needed leave." § 825.208(a)(2).

Once an employee provides sufficient notice, the employer is on inquiry notice and bears the burden of ascertaining further details to determine whether the leave qualifies for FMLA protection. See § 825.302(b); Price v. City of Fort Wayne, 117 F.3d 1022, 1026 (7th Cir. 1997). The FMLA "does not require that an employee give notice of a desire to invoke the FMLA. Rather it requires that the employee give notice of need for FMLA leave. This kind of notice is given when the employee requests leave for a covered reason. After a notice of this sort the employer can inquire further to determine if the FMLA applies." Price, 117 F.3d at 1026. The activation of this duty of inquiry requires the employer to "inquire further of the employee if it is necessary to have more information about whether FMLA leave is being sought by the employee, and obtain the necessary details of the leave to be taken." § 825.302(c).

Revere argues that Barnett's phone calls to its security guard on November 9 and 10 failed to meet this requirement, reasoning that Revere could not have discerned from the information transmitted by Barnett to the guard that Barnett's absence from work was attributable to his heart condition, and thus covered by the FMLA. Barnett responds that his prior discussions with DeMercurio and Nurse Sorino adequately apprised Revere of his heart condition, such that his phone call afforded adequate notice that he required FMLA leave.

In determining whether adequate notice of the need for FMLA leave was given 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.

Because Barnett did not refer to his aortic regurgitation and mitral valve prolapse specifically when he called in sick, the key question in this case is the extent to which Revere's awareness of Barnett's condition before November 11 should have put it on notice that Barnett's November 9 and 10 absences were related to his heart condition. The parties' testimony differs on this point. Although he never referred to his aortic regurgitation or mitral valve prolapse by name, Barnett testified that he showed Nurse Sorino his Procardia prescription, that he had mentioned his chest pains to DeMercurio and Peet on several occasions, and that he told DeMercurio that he had been diagnosed with a "serious heart condition" (Barnett Dep. at 37-38, 40, 50; Barnett Aff. ΒΆ ...

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