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United States District Court, S.D. New York

May 12, 2004.

SARAH NAGY, Plaintiff, -against- TEE VEE TOONS, INC., Defendant

The opinion of the court was delivered by: LEWIS KAPLAN, District Judge


Defendant moves to dismiss the complaint in this Family and Medical Leave Act ("FMLA")*fn1 retaliation case on the ground that plaintiff was not an "eligible employee" and thus not covered. Plaintiff responds that defendant is equitably estopped to deny coverage. Defendant rejoins that even if equitable estoppel is available in appropriate cases to preclude an employer from denying coverage, plaintiff has not alleged, and could not allege, detrimental reliance.


  Plaintiff was hired by defendant Tee Vee Toons, Inc. ("TVT"), "in or around" January 2002. Two months later, she informed the company that she was pregnant. In June and July, she inquired concerning the company's maternity leave policy and health care coverage. At some unspecified time, she was told that she was eligible for six weeks of paid leave under TVT's maternity policy and an unpaid twelve-week FMLA leave.*fn2

  On August 8, 2002, plaintiff advised TVT that she intended to begin her maternity leave on September 13 and that she intended to take the six weeks of paid leave under the TVT policy followed twelve weeks of unpaid leave. On August 16, however, she was fired, ostensibly for poor performance. TVT's officer manager told her that there were no problems with her performance, but that the company needed someone in her position would was available immediately to travel. She added that "if and when you are done with `mommy time,' you an resubmit [an application] for a desk job or for a part-time position."

  Plaintiff then brought this action, claiming that her termination violated the FMLA on the theory that it constituted retaliation for her announcement that she intended to take maternity leave. She sues also under pertinent New York State and City statutes.


  The Court notes at the outset that the complaint in fact alleges that plaintiff was an "eligible employee" and thus covered by the Act.*fn3 This allegation, however, is a legal conclusion. The FMLA defines "eligible employee" as an employee who has been employed for at least 12 months by the relevant employer and who has been employed for at least 1,250 hours of service with that employer during the previous year.*fn4 As the complaint alleges that plaintiff was hired in or around January 2002 and fired on August 16, 2002, the facts specifically negate the allegation that she was an "eligible employee." Accordingly, the Court disregards plaintiff's allegation, which she appears in any case to have abandoned in her memorandum, that she was an "eligible employee."

  The Second Circuit has held squarely that an employer may be estopped to deny an employee's FMLA eligibility:

"where: 1) the party to be estopped makes a misrepresentation of fact to the other party with reason to believe that the other party will rely upon it; 2) and the other party reasonably relies upon it; 3) to her detriment."*fn5
The requisite misrepresentation may be an affirmative statement or silence in the face of a duty to speak.*fn6

  Here, the complaint alleges a number of facts pertinent to an equitable estoppel claim. It asserts, for example, that TVT's general office manager "told Plaintiff that she was eligible for . . . the twelve-week FMLA leave."*fn7 Thus, as TVT acknowledges, the first element is sufficiently alleged. The complaint does not, however, allege detrimental reliance. Accordingly, it must be dismissed. The real question, although the parties do not confront it in these terms, therefore is whether leave to replead should be granted.

  TVT argues that plaintiff could not allege detrimental reliance because, given the timetable alleged in her complaint, she necessarily was due to deliver — and thus had to start her leave — before she would have been employed for the requisite year. In consequence, it contends, she could not have delayed her departure sufficiently to have completed the twelve months of employment necessary to entitle her to FMLA leave before she delivered. Absent eligibility, she was not entitled to FMLA leave, so her request for such leave was not protected activity covered by the anti-retaliation provision of the statute.

  Plaintiff may be unable to plead or establish detrimental reliance. But that cannot be determined on this motion.

  Plaintiff argues that she would scheduled her work during pregnancy differently if she had known of TVT's position on FMLA eligibility. But she does not say how she would have done so, which perhaps is understandable as she has had no opportunity to respond to TVT's argument, which came in its reply memorandum.

  Nor is it clear from the complaint that plaintiff cannot do so. The complaint alleges that plaintiff was hired "in or around" January 2002 and that she informed TVT of her pregnancy "[i]n or around March 2002." The "in or around" January 2002 allegation would permit proof that she was hired some time in December 2001. The "[i]n or around March 2002" allegation would permit proof that she informed her employer of the pregnancy some time in April 2002. Thus, the complaint would permit proof that plaintiff (a) became pregnant in late March or early April 2002, (b) was not due to deliver until some time in January 2003, (c) would have become an "eligible employee" entitled to FMLA leave in December 2002, and (d) could have delayed her leave notice until she became an "eligible employee." Improbable as this appears, she is entitled at least to try to state a claim upon which relief may be granted. Conclusion

  For the foregoing reasons, defendant's motion to dismiss the complaint is granted, the FMLA claim for failure to state a claim upon which relief may be granted and the state law claims for lack of subject matter jurisdiction. Plaintiff may file, within fourteen days of the date of this order, an amended complaint.


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