The opinion of the court was delivered by: McMAHON, District Judge.
MEMORANDUM DECISION AND ORDER GRANTING DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT ON FMLA CLAIM AND REMANDING THE QUESTION OF
DETERMINATION OF SEVERANCE BENEFITS TO THE DEFENDANT'S ERISA PLAN
Plaintiff, Nancy Kosakow, was an x-ray technologist employed by
Defendant, New Rochelle Radiology Associates, P.C. ("Practice"),
from 1978 to 1997. In March 1997, while Plaintiff was on medical
leave from her job, the Practice notified her that it was
terminating her position. Plaintiff brings this suit against her
former employer claiming: (1) that failure to reinstate her in
her job or one similar upon the end of her medical leave was in
violation of Section 102 the Family and Medical Leave Act of 1993
("FMLA"), 29 U.S.C. § 2615; and in the alternative, (2) even if
the termination did not violate FMLA, Defendant is liable for
severance pay under the Employee Retirement Income Security Act
("ERISA"), 29 U.S.C. § 1132(a)(1)(B).
Defendant moves for summary judgment to dismiss both claims on
the grounds that (1) Ms. Kosakow was not an "eligible employee"
within the meaning of FMLA (as construed through application of
"hours worked" standards of the Fair Labor Standards Act
("FLSA")) and was therefore not entitled to the benefits of FMLA;
or, in the alternative (2) the Practice did not violate FMLA
because it eliminated Ms. Kosakow's position for legitimate
business reasons; and (3) that Ms. Kosakow's ERISA claim must be
dismissed because the Practice does not have an ERISA Severance
Plan, and is therefore not subject to ERISA liability.
Ms. Kosakow argues that the Practice's motion for summary
judgment should be denied. She claims that she meets eligibility
requirements of FMLA as incorporated from the FLSA "hours worked"
standards, and argues that are material issues of facts
concerning whether the Practice terminated her in violation of
her right to be reinstated to her job following medical leave.
She further argues that material issues of fact exist as to
whether the Practice maintained an ERISA Severance Plan.
For the reasons stated below, Defendant's motion for summary
judgment dismissing the FMLA claim is granted. Because I hold
that the Practice maintained an Severance Plan within the meaning
of ERISA, I remand the severance claim back to the Practice for a
ruling by the Plan Administrator.
The following are the undisputed facts, viewed in a light most
favorable to the Plaintiff:
Defendant New Rochelle Radiology Associates, P.C. ("Practice"),
is a professional medical corporation that provides a wide range
of radiological services, (including MRI, radiation oncology,
ultrasound, x-ray, mammography and CT-scans) to patients in the
upper Bronx and lower Westchester County area of New York state.
It provides services at two separate offices in New Rochelle: 150
Lockwood Avenue and at 175 Memorial Highway.
Plaintiff Nancy Kosakow began employment at the Lockwood Avenue
office of the Practice as a licensed x-ray technologist in 1978.
Ms. Kosakow was note certified to perform any other perform any
other procedures, although in the mid-1970s, prior to her work at
the Practice, she had performed some mammography. The Practice
classified her position as part time, and she worked, on average,
28 hours per week.
On June 6, 1996, Ms. Kosakow underwent an ultrasound
administered by Dr. Leonard Cutler, a physician/shareholder of
the Practice. The ultrasound revealed a pathological cystic mass
on her left ovary. Follow-up exams on July 12 and November 13,
1996 revealed that the mass had not diminished. On November 13,
1996, Dr. Isaiah Seligman, also a physician/shareholder of the
Practice, advised Ms. Kosakow that the mass was potentially
dangerous and that she would require surgery to remove it. A few
days after her consultation with Dr. Seligman, Ms. Kosakow
arranged to have surgery performed on January 14, 1997.
After she scheduled the surgery, Ms. Kosakow informed Gale
Gluss, Office Manager for the Practice since 1991, that she
required medical leave for the surgery. January 10, 1997, was Ms.
Kosakow's last day of scheduled work at the Practice. On January
14, the surgery was performed and Ms. Kosakow began her recovery.
On March 7, 1997, while she was still on leave, Ms. Kosakow was
informed by a letter from Adele Gargano, the Practice
Administrator, that her x-ray technologist position at the
Practice's 150 Lockwood Avenue office was "being eliminated due
to overstaffing." (Def's Exh. 1.) In the same letter, the
Practice offered to Ms. Kosakow the opportunity to continue
working as a technologist on a per diem "as needed" basis.
According to Defendant, Ms. Kosakow's position was eliminated
as a result of a recommendation from the Practice's independent
accountant, Roger Berman, that the Practice should look for ways
to reduce unnecessary payroll expenses. (Berman Decl. ¶. 5-8.)
Mr. Berman made this recommendation following a severe cash flow
crisis in the Practice in September 1996, which he believed would
create serious operational problems for the Practice. (Id. at
In October 1996, Ms. Gargano and Ms. Gluss started looking at
the needs of the Practice at its Lockwood Avenue location and the
responsibility of each employee at that office, with an eye to
cutting costs. After reviewing that information, Ms. Gargano
determined that Ms. Kosakow was the least essential technologist
in the office. Her conclusion was based on three factors: (1) Ms.
Kosakow was one of only two part-time technologists; (2) Ms.
Kosakow was restricted to performing x-ray procedures and was not
cross-trained for any other radiology modality (i.e. mammography
and bone density radiology); and (3) Ms. Kosakow's performance
evaluation was inferior to the other part-time technologist's
evaluation. (Gargano Decl. at ¶ 14-19; Gluss Decl. at ¶ 31-45.)
Ms. Gargano reported her recommendations at an Executive
Meeting of the Practice on November 14, 1996. Ms. Gargano averred
that her recommendation to the Practice's shareholders, and the
shareholders' subsequent decision to eliminate Ms. Kosakow's
position, was made without any knowledge of Ms. Kosakow's need
for surgery or her intent to take medical leave. She delayed
informing Ms. Kosakow of the job termination, as the shareholders
decided to make staff reductions after the new year in order to
avoid staff morale problems. After the holidays, out of her
stated concern for Ms. Kosakow's well being, Ms. Gargano decided
to delay notifying Ms. Kosakow until after her recovery. (Gargano
Decl. ¶¶ 21, 21.) As soon as she learned that Ms. Kosakow was
ready to return to work, she wrote to her notifying her that the
position had been eliminated. (Id.)
Ms. Kosakow rejected the Practice's offer of per diem work. She
filed disability and discrimination claims with the New York
State Department of Human Rights ("SDHR") and the Federal Equal
Employment Opportunity Commission ("EEOC"). The gravamen of her
complaint to the SDHR was that the Practice eliminated her
position as a result of her medical disability in violation of
the Americans with Disabilities Act of 1990 ("ADA"),
42 U.S.C. § 12101, et seq. and the New York human Rights Law ("NYHRL"),
N Y Exec. Law § 296. In response to her complaints with these
two offices, the Practice filed an Answer and Narrative Reply
defending its decision as based on the economic factors discussed
above. Ms. Kosakow filed a rebuttal, in which she admitted that
the financial reasons were part of the decision, but that other,
impermissible considerations — namely, her surgery — had also
prompted the elimination of her position.
The SDHR reviewed the case and determined that there was "no
probable cause to believe that [the Practice] has engaged in or
is engaging in the unlawful discriminatory practice complained
of." (Def's Exh. 6.) The SDHR determination was grounded in three
express findings of fact: (1) "Because of financial losses
incurred by [the Practice] measures were taken to reduce expenses
including a reduction in force"; (2) the Practice's only other
part-time technologist employee "was cross-trained in bone
density and was working on her own towards her Mammography
Certification [and] was retained [instead of Ms. Kosakow],
although she had less seniority, because of her qualifications";
and (3) Ms. Kosakow "was only certified as an x-ray Technician
and was the only employee in both offices who was not
cross-trained." (Id.) The SDHR thus concluded that "the record
does not support complainant's charge that she was terminated
because of her disability." (Id.)
The SDHR's finding was adopted by the EEOC on October 13, 1998
as part of its "right to sue" letter. (Def's Exh. 7.) Ms.
Kosakow's 90-day time period for filing federal lawsuit based on
the EEOC letter expired on January 1999. Ms. Kosakow failed to
file such an action. Ms. Kosakow also chose not to appeal the
SDHR's decision by bringing an Article 78 proceeding in New York
State Supreme Court.
After the time to file a disability suit under the EEOC "right
to sue" letter and to file an appeal under Article 78 had
expired, Ms. Kosakow commenced the instant action, alleging that
her termination violated FMLA and ERISA. (Id. at Exh. 8).
Plaintiff brings a claim against the Practice for its failure
to return her to her same, or an equivalent, position following
her protected medical leave of absence, in violation of Section
102 of FMLA, 29 U.S.C. § 2615. In the alternative, Ms. Kosakow
alleges that the Practice failed to pay her severance benefits in
violation of ERISA, 29 U.S.C. § 1132(a)(1)(B). She seeks
injunctive relief in the form of reinstatement of her job and/or
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); see 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. However, 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).
A. Plaintiff's FMLA Claim
The FMLA was enacted because Congress believed "there is
inadequate job security for employees who have serious health
conditions that prevent them from working for temporary periods.
. . ." 29 U.S.C. § 2601(a)(4). "Congress enacted substantive
provisions entitling eligible employees to temporary leave, to
certain continuing benefits, and to reinstatement . . . and made
it `unlawful for any employer to interfere with, restrain, or
deny the existence of or the attempt to exercise, any right
provided under [subchapter I of the Act].'" Sarno v.
Douglas-Elliman, 183 F.3d 155, (2d Cir. 1999) (quoting
29 U.S.C. § 2615(a)(1)). Employers may not "use the taking of FMLA leave as
a negative factor in employment actions, such as hiring,
promotions or disciplinary actions." 29 C.F.R. § 825.220(c). FMLA
tries to accomplish these goals "in a manner that accommodates
the legitimate interests of employers." 29 U.S.C. § 2601(b)(3).
Any eligible employees affected by such unlawful conduct are
entitled to a private right of action for damages or equitable
relief. See 29 U.S.C. § 2617(a)(1).
In her Complaint, Plaintiff seeks relief under Section 2615 of
the FMLA, which reads in relevant part:
(a) Interference with Rights
It shall be unlawful for any employer to interfere
with, restrain, or deny the exercise of or the
attempt to exercise, any right provided under this
A prima facie case under FMLA requires Plaintiff to show that
(1) she is an "eligible employee" as defined in
29 U.S.C. § 2611(2); (2) the Practice is an "employer;" (3) she was entitled
to medical leave as a result of a serious health condition; and
(4) she gave adequate notice to the Practice of her intention to
take leave, as defined in 29 U.S.C. § 2612(e)(1). See Slaughter
v. American Building Maintenance Co. of N.Y., 64 F. Supp.2d 319
(S.D.N.Y. 1999). In addition, a plaintiff must show that she is
entitled to the benefit she is claiming was denied her. See
Belgrave v. City of New York, 1999 WL 692034 at *43 (E.D.N Y
Here, the parties have stipulated that the Practice is an
employer within the meaning of FMLA and that Ms. Kosakow was
entitled to leave. (Frumkin Decl., ¶ 6, Exh. 15). As Defendants
have failed to dispute the issue of notice, I assume for the
purposes of this motion, that Ms. Kosakow gave adequate notice of
her intent to take medical leave. (Kosakow Aff. ¶ 12). The only
elements that are disputed are the questions of whether Ms.
Kosakow is an "eligible employee" within ...