United States District Court, S.D. New York
November 10, 2005.
FLORA LEPORE, Plaintiff,
NEW YORK HOTEL TRADES COUNCIL, EMPLOYER BENEFIT FUNDS, Defendant.
The opinion of the court was delivered by: HAROLD BAER JR., District Judge
OPINION & ORDER
Plaintiff, Flora Lepore, brings claims against her employer,
New York Hotel Trades Council and Employee Benefit Funds of New
York (the "Funds"), under the Family and Medical Leave Act,
29 U.S.C. Section 2601 et seq. (the "FMLA" or "the Act"); Section
8-107(1)(a) of the New York City Human Rights Law; and Section
296 of the New York State Human Rights Law. She seeks damages in
compensation for mental anguish, humiliation, embarrassment, and
emotional injury; equitable relief,*fn1 including an
injunction against the adverse actions complained of; reasonable
attorney fees and costs; and such other relief as the Court deems
proper.*fn2 The Funds moves to dismiss Lepore's claims
pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6) for
lack of subject matter jurisdiction and for failure to state a
claim. As explained below, the Court treats the 12(b)(6) motion
as a partial motion for summary judgment. For the following
reasons, the Funds' motion is GRANTED in part and DENIED in part.
The Funds hired Lepore on or about April 14, 2002, as a Project
Manager responsible for training its staff to use certain computer systems. (Compl.
¶¶ 5(a) & (i)). Between March 9 and March 19, 2005 depending on
which affidavit one believes Lepore applied for intermittent
leave under the FMLA because she suffered from severe
depression.*fn3 (Compl. ¶ 5(r)); see 08/22/05 Affidavit of
William Torres, the Funds' Director of Human Resources, in Supp.
of Mot. to Dismiss ("Torres Aff.") ¶ 11; 09/12/05 Affidavit of
Flora Lepore in Opp'n to Mot. to Dismiss ("Lepore Aff.") ¶ 5;
Employee FMLA Request, Ex. 1 to 09/12/05 Affirmation of Ambrose
Wotorson, counsel for Lepore ("Wotorson Aff."); 04/18/05 e-mail
from Lepore to Torres, Ex. 12 to Wotorson Aff. On March 10, 2005,
Lepore saw a listing on Monster.com stating that a "NYC based
healthcare and benefit management organization" had an immediate
opening for a technical trainer. Monster.com Listing, Ex. 20 to
A certification provided by Lepore's physician, Dr. Lorna
Avila, indicated that Lepore's ailment qualified as a "serious
health condition" under the Act, that Lepore was able to perform
the essential functions of her job, but that she had to be absent
from work for treatment. See Employee FMLA Request, Ex. 1 to
Wotorson Aff. Dr. Avila also noted that Dr. Barbara Trilling, a
therapist, would treat Lepore on a weekly basis for about twenty
visits. See id.
William Torres, the Funds' Director of Human Resources,
informed Lepore in a memorandum dated April 6, 2005 that the
Funds had conditionally approved her FMLA leave request, and
would grant final approval when her physician clarified her
anticipated leave schedule. See Torres Memorandum, Ex. 6 to
Wotorson Aff. On April 11, 2005, Dr. Trilling faxed Torres that
Lepore would need at least two days off a week any two days
would suffice and that Torres and Lepore would need to work out
an actual schedule. See Trilling Letter, Ex. 8 to Wotorson Aff.
Lepore was intermittently absent from work for about ten days
between March 10, 2005 and April 15, 2005. See Lepore
Attendance Calendar, Ex. E to Torres Aff. The Funds assigned the absence codes "sick" or "vacation" to these days.
See id. On or about April 18, 2005, Lepore filed a claim with
Standard Life Insurance Company of New York for disability
benefits for "mental stress" and "depression." See Lepore Aff.
¶ 17; Disability Claim Form, Ex. 11 to Wotorson Aff. Lepore took
time off work pursuant to her disability plan from April 25, 2005
to June 18, 2005. See Lepore Aff. ¶ 17. Lepore was also away
from work from June 20, 2005 until July 16, 2005. See Lepore
Attendance Calendar, Ex. E to Torres Aff. The Funds designated
the majority of this time "vacation." See id.
Lepore returned to work on July 18, 2005 and is currently
working in her former position, at the same rate of pay and with
the same benefits as prior to her absence. See Torres Aff. ¶
24. On July 22, 2005, Andrew Windsor, Lepore's supervisor,
provided a performance evaluation for the period June 1, 2004 to
June 1, 2005. See Performance Evaluation, Ex. 19 to Wotorson
Aff. Windsor noted that Lepore had met or exceeded expectations
in all performance factors except for communication and
interpersonal skills where she only sometimes met expectations.
See id. at 2-3. He also noted that Lepore sometimes spoke "in
an abrupt and less than appropriate manner" and that she should
cultivate "[a] more positive attitude towards her superiors and
co-workers." Id. at 4. In early August 2005, Lepore sought to
take another leave.*fn4 See Lepore Aff. ¶ 20. Windsor
informed her that she had exhausted her available leave and would
be subject to disciplinary measures if she took any additional
leave. See id.
A. Standard of Review
Federal Rule of Civil Procedure 12(b)(6) provides that if
"matters outside the pleading are presented to and not excluded
by the court, the motion shall be treated as one for summary
judgment." A district court may convert a Rule 12(b)(6) motion
into a motion for summary judgment without express notice to the
parties. See In re G. & A. Books, Inc., 770 F.2d 288, 295 (2d
Cir. 1985). The "essential inquiry" is whether the parties
"should reasonably have recognized the possibility that the
motion might be converted into one for summary judgment" or
instead were "taken by surprise and deprived of a reasonable
opportunity to meet the facts outside the pleadings." Id. Where
both parties submit affidavits and exhibits in support of their
positions, as they did here in relation to Lepore's FMLA claims,
a court may fairly convert a Rule 12(b)(6) motion into one for summary
judgment. See id.; see also Kennedy v. Empire Blue Cross
and Blue Shield, 989 F.2d 588, 592 (2d Cir. 1993) (finding no
error in district court's conversion of a Rule 12(b)(6) motion to
one for summary judgment where plaintiff submitted materials
extraneous to the pleadings).
A court will not grant a motion for summary judgment unless it
determines that there is no genuine issue of material fact and
the undisputed facts are sufficient to warrant judgment as a
matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby Inc.,
477 U.S. 242, 250 (1986). In determining whether there is a
genuine issue of material fact, the Court must resolve all
ambiguities, and draw all inferences, against the moving party.
United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per
curiam); Donahue v. Windsor Locks Bd. of Fire Comm'rs,
834 F.2d 54, 57 (2d Cir. 1987).
B. The FMLA Claims
1. Rights Under the FMLA
The FMLA entitles eligible employees to twelve workweeks of
leave during a twelve month period for, among other reasons, "a
serious health condition." 29 U.S.C. § 2612(a)(1)(D) (1999). The
employer must maintain coverage under a group health plan for
employees who take FMLA leave. See 29 U.S.C. § 2614(c)(1)
(1999). The employer must also restore employees who take FMLA
leave to the positions they held when the leave commenced. See
29 U.S.C. § 2614(a) (1999).
It is unlawful for an employer to interfere with the exercise
or attempted exercise of any rights provided under the Act. See
29 U.S.C. § 2615(a)(1) (1999). It goes without saying that
employers may not retaliate against any individual should he or
she "oppose any practice made unlawful" by the Act.
29 U.S.C. § 2615(a)(2) (1999).
2. Interference with Exercise of FMLA Rights
Two elements that a plaintiff must establish to make out a
prima facie case of interference with FMLA rights, and which are
of concern here, are (i) that she gave notice to the defendant of
her intention to take leave; and (ii) that she was denied
benefits to which she was entitled under the Act. See
Geromanos v. Columbia Univ., 322 F. Supp. 2d 420, 427 (S.D.N.Y.
2004). The parties disagree as to whether these two elements are
a. Adequacy of Notice and Failure to Timely Acknowledge
Lepore claims that the Funds interfered with her exercise of
FMLA rights by failing to timely acknowledge her March leave application. See 09/12/05
Pl. Mem. of Law in Opp'n to Mot. to Dismiss the Compl. ("Pl.
Mem.") at 8-9. The Funds responds that Lepore's notice was
inadequate because she failed to specify a schedule for her
absences. See 08/22/05 Def.'s Mem. of Law in Supp. of Mot. to
Dismiss ("Def. Mem.") at 10. In support of its position, the
Funds cites two subparts of a regulation issued by the Secretary
of Labor.*fn5 The first is at 29 C.F.R. Section 825.302(c)
and requires employees who wish to take FMLA leave to provide at
least verbal notice to their employer of the "anticipated timing
and duration of the leave." Id. (2005). The second, at
29 C.F.R. Section 825.302(f), requires that at the employer's
request, employees who wish to take intermittent FMLA leave for
medical reasons should advise the employer of the schedule for
treatment and attempt to work out with the employer a mutually
agreeable leave schedule. See id. (2005).
The notice required of employees under
29 C.F.R. Section 825.302(c) is that "sufficient to make the employer aware that
the employee needs FMLA-qualifying leave." Id. (2005). The
employee "need not expressly assert rights under the FMLA or even
mention the FMLA." Id. (2005). Here, Lepore used the Funds'
standard "Employee FMLA Request" form to request leave, and
submitted Dr. Avila's certification confirming that Lepore
suffered from "a serious health condition" as defined by the Act
and estimating that Lepore would see Dr. Trilling weekly for
twenty visits. This information was sufficient to put the Funds
on notice that Lepore needed FMLA-qualifying leave and of the
anticipated timing and duration of the leave.
Under 29 C.F.R. Section 825.302(c), once employees give their
employer notice that they require FMLA leave, it is the
employer's responsibility to "inquire further of the employee . . .
and obtain the necessary details of the leave to be taken."
Id. (2005). Similarly, 29 C.F.R. Section 825.302(f) requires
employees to provide a schedule for treatment only "upon request"
of the employer. Id. (2005).
The parties disagree as to whether the Funds timely
acknowledged Lepore's leave request by initiating the necessary
inquiry as to a schedule. The Funds maintains that on March 17,
2005, three days after it received Lepore's leave application,
Torres asked Lepore for clarification from her physician about
the times she would be absent from work. See Torres Aff. ¶ 12. Lepore insists that the Funds did not
acknowledge receipt of her application until April 7, 2005, when
Torres handed her the memorandum approving her request on
condition that her physician clarify her anticipated leave
schedule. See Lepore Aff. ¶¶ 10-11. Further, Lepore avers that
after Dr. Trilling faxed the requested clarification to Torres on
April 11, 2005, she was never told that the information was
insufficient. See Lepore Aff. ¶ 12. These issues of material
fact preclude summary judgment on the issue of timely notice.
b. Denial of FMLA Benefits
Next, Lepore claims that she was denied FMLA benefits because
the Funds failed to designate her absences as FMLA leave. See
Pl. Mem. at 9-10. The Funds asserts that its failure to designate
Lepore's leave as "FMLA" is immaterial for two reasons. First,
the Funds claims that its FMLA leave policy, published in its
Employee Handbook, allows it to charge Lepore's accrued paid
leave against her unpaid FMLA leave, and to count Lepore's entire
leave, including the period she received disability benefits,
towards her annual twelve-week FMLA entitlement. See 09/26/05
Def. Mem. of Law in Further Supp. of Mot. to Dismiss ("Def.
Reply") at 3. Second, the Funds contends that Lepore received her
substantive FMLA rights because she took more than twelve weeks
of leave during which the Funds maintained her medical coverage,
and after which the Funds restored her to her former employment
position. See Def. Mem. at 11.
In support of its first argument, the Funds cites to
29 C.F.R. Section 825.207. Subsection (a) of this regulation provides that
"under the circumstances described in this section . . . the
employer may require the employee to substitute accrued paid
leave for FMLA leave." 29 C.F.R. § 825.207(a) (2005); see Def.
Reply at 3. The Funds' published FMLA policy based on this
provision is, however, less than crystal clear. While the third
paragraph of the policy states that employees are "required to
use all accrued, unused vacation, sick and personal days during
the leave period," this paragraph relates only to employees who
request leave to care for a child, spouse, or parent with a
serious health condition. FMLA Policy, Ex. A to 09/26/05
Affidavit of William Torres in Further Supp. of Mot. to Dismiss.
The fourth paragraph goes on to say "[a]n employee requesting
FMLA leave for an approved short-term disability reason does
not have to use their accrued, unused vacation, sick and
personal days during the FMLA leave period." Id. (emphasis
added). This statement appears to unequivocally except employees
who take FMLA leave for approved short-term disability from having to use their accrued paid leave during the FMLA leave
period. A jury could reasonably find that Lepore's severe
depression qualifies as an approved short-term disability, and
that, under the wording of its FMLA policy, the Funds improperly
charged her accrued paid leave against her FMLA leave.
Accordingly, here too summary judgment based on the Funds'
position that it acted consistently with its published FMLA
policy is denied.
The Funds also cites to 29 C.F.R. Section 825.207 for the
proposition that FMLA leave may run concurrently with disability
leave. See Def. Reply at 3. Because the Funds does not point to
a subsection of this regulation, I assume that it refers to
subsection (d)(1) that states that an employer may count leave
taken pursuant to a temporary disability benefit plan as running
concurrently with FMLA leave. This subsection is directed,
however, to disability leave for the birth of a child, and this
specificity raises the question whether its provisions apply to
temporary disability leave in general. See 29 C.F.R. § 825.207
(d)(1) (2005). Although I see no reason to draw a distinction
based on the reasons for taking temporary disability leave, it is
not necessary to resolve this question on the present motion,
because the Funds designated only eight weeks of Lepore's leave
as "disability." Assuming that this disability leave runs
concurrently with leave under the Act, that still leaves four
weeks of FMLA leave to which Lepore is entitled.
Notwithstanding its arguments in relation to
29 C.F.R. Section 825.207, the Funds asserts that it is Lepore's failure to show
that she was denied benefits to which she was entitled under the
Act that is truly dispositive. See Def. Mem. at 11. The Funds
cites Sarno v. Douglas Elliman-Gibbons & Ives, Inc. in support
of its argument that its failure to designate Lepore's leave as
"FMLA" is inconsequential because this did not affect Lepore's
substantive rights under the Act. Id., 183 F.3d 155 (2d Cir.
1999). In Sarno, the Second Circuit held that the FMLA does not
give an employee "a right to sue the employer for failing to give
notice of the terms of the Act where the lack of notice had no
effect on the employee's exercise of . . . any substantive right
conferred by the Act." Id. at 162. It is a different story
where, as here, an employee's exercise of substantive FMLA rights
may be affected by lack of notice, such as when the employee is
able to perform her job functions and seeks FMLA leave for
anticipated medical treatment. See Donnellan v. New York City
Transit Auth., No. 98 Civ. 1096, 1999 WL 527901, at *4 n. 10
(S.D.N.Y. July 22, 1999). In such circumstances, if the employee
had known that her leave was designated as FMLA leave, she may
have been able to schedule treatments to coincide with work holidays or take intermittent
leave so as to extend her twelve-week allotment over a longer
period. See id.; Sims v. Schultz, 305 F. Supp. 2d 838, 845
(N.D. Ill. 2004). Here, Lepore did apply for intermittent leave
and Dr. Avila certified that she was able to perform the
essential functions of her job. The Funds produced no evidence
that Lepore subsequently became unable to perform her job. Hence,
there are issues of fact that Lepore may have been prejudiced by
the Funds' failure to properly designate her leave.
Lepore claims that the Funds retaliated against her for
exercising FMLA rights by (i) advertising her position on
Monster.com; (ii) making negative comments in her performance
evaluation; and (iii) informing her that she had no more leave
and would be subject to disciplinary measures if she took more
time off. (Compl. ¶ 11); see Pl. Mem. at 10.
The Second Circuit has adopted the McDonnell Douglas approach
used in Title VII cases to analyze retaliation claims under the
FMLA. See Potenza v. City of New York, 365 F.3d 165, 168 (2d
Cir. 2004). One element the plaintiff must establish under this
approach is that she suffered an adverse employment action. See
id. An adverse employment action is one that results in a
"materially adverse change" in the plaintiff's terms and
conditions of employment. Galabya v. New York City Bd. of
Educ., 202 F.3d 636, 640 (2d Cir. 2000) (citations omitted)
(analyzing ADEA claim under McDonnell Douglas framework). The
Funds rightly contends that none of the actions Lepore identifies
constitutes an adverse employment action.
First, assuming that the Funds was indeed the unnamed employer
that placed the Monster.com advertisement, there is no evidence
that the terms and conditions of Lepore's employment have changed
as a result of that action. Second, a negative performance
evaluation without adverse consequences is not an adverse
employment action. See Moore v. Potter, 353 F. Supp 2d 410,
415 (E.D.N.Y. 2005) (citation omitted). Here, not only was there
no evidence of detrimental consequences from the criticisms in
Lepore's evaluation, but the evaluation itself was mostly
positive. Finally, a memorandum recording that the plaintiff was
absent without leave and recommending immediate termination was
held not to constitute adverse employment action when it had no
ramifications. See Graham v. State Farm Mut. Ins. Co.,
193 F.3d 1274, 1283-84 (11th Cir. 1999). Here, the Funds' warning to
Lepore that she would be subject to disciplinary measures if she
took more leave was less severe than the memorandum in Graham and also had no unfavorable consequences.
Because Lepore has failed to raise fact issues that she suffered
an adverse employment action, summary judgment is granted to the
Funds on Lepore's retaliation claim.
C. The State Law Claims
This Court has federal question jurisdiction over Lepore's
surviving claim of interference with the exercise of FMLA rights.
See 28 U.S.C. § 1331 (1993). Consequently, this Court has
supplemental jurisdiction over Lepore's state law employment
discrimination claims. See 28 U.S.C. § 1367(a) (1993).
Accordingly, the Funds' motion to dismiss Lepore's state law
claims for lack of subject matter jurisdiction is denied.
For the reasons set forth above, summary judgment is denied on
the claim of interference with exercise of FMLA rights, but
granted on the retaliation claim. The Funds' Rule 12(b)(1) motion
to dismiss the state law claims is denied.
IT IS SO ORDERED.
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