The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge.
Plaintiff Theresa M. Vlahos brings this action under the Family Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. ("FMLA"), alleging that defendants failed to restore her to the same position, or an equivalent position, upon her return from work after an FMLA leave of absence. For the reasons set forth below, defendants' motion for summary judgment as to plaintiff's claim under the FMLA for injunctive relief is denied. Defendants' motion for summary judgment dismissing the individual defendants is granted with respect to Bruce Schroeffel, Ronnie Schultz, and George Tyson but denied with respect to Lee Xippolitos.
Plaintiff was hired by the State University of New York at Stony Brook (SUNYSB) in 1985 and became a Nurse Practitioner in 1989. In 1999, plaintiff was appointed as a Senior Nurse Practitioner in the Complementary and Alternative Medicine Unit ("CAM Unit") at SUNYSB. The CAM Unit was a designated center that treated patients with modalities such as Reiki healing, acupuncture, massage, and nutrition.
Plaintiff took leave for medical reasons in April 2001. Sometime thereafter, plaintiff requested an extension of her medical leave because of "[u]nforeseeable events [that] occurred postoperatively."*fn1 (Defs.' Ex. E.) Specifically, plaintiff requested "Presidential Leave at full pay"*fn2 for "a chronic condition requiring treatments and medical intervention for an undetermined period of time." (Id.) The SUNYSB Department of Human Resources ("HR Department") responded to plaintiff that she "must exhaust . . . sick accruals prior to leave at full pay consideration and approval" and that she had sufficient sick accruals to cover absence through September 2001. (Defs.' Ex. F.) By letter dated October 3, 2001, plaintiff requested an extension of her medical leave and Presidential Leave at full pay. Plaintiff returned to work on or about October 8, 2001. On October 10, 2001, plaintiff signed a form requesting leave under the FMLA based on a "chronic condition." On October 19, 2001, plaintiff wrote a letter to the HR Department asking for a clarification of her sick leave accruals. The HR Department responded by letter dated October 24, 2001 that she had "not [been] on presidential leave at full pay" and had instead used her accruals. (Defs.' Ex. J.) The HR Department also noted that plaintiff had accrued additional sick and vacation leave during her period of absence. By letter dated November 16, 2001, the HR Department notified plaintiff that she was not eligible for FMLA leave because she had not worked a minimum of 1250 hours during the 52 consecutive weeks immediately prior to when FMLA leave would begin.
When plaintiff returned to work, the CAM Unit had disbanded. Plaintiff was assigned to work in the Pre-Admission Testing Unit ("PAT Unit") with the same salary and benefits. Plaintiff contends that her position in the PAT Unit is significantly different from her position in the CAM Unit. Plaintiff testified that, in the CAM Unit, she was able to maintain ongoing relationships with patients and see them for follow-up visits, whereas in the PAT Unit, she only sees patients once for a history and physical prior to surgery. Plaintiff emphasizes that the PAT Unit is not service-based, as she cannot see patients post-operatively, write prescriptions, or continue to apply therapeutic interventions. Plaintiff filed suit claiming that defendants have violated the FMLA by not restoring her to the same or an equivalent position.
Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). The court must view all facts in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158--59, 90 S.Ct. 1598, 26 L.Ed. 2d 142 (1970)). In drawing inferences in favor of the nonmoving party, "the court is not entitled to weigh the evidence." St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000). Nevertheless, "[c]onclusory allegations, conjecture, and speculation . . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998). The court must deny summary judgment "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
The FMLA was enacted "to balance the demands of the workplace with the needs of families" and to "entitle employees to take reasonable leave for medical reasons, for the birth or adoption of a child, and for the care of a child, spouse, or parent who has a serious health condition."
29 U.S.C. § 2601(b)(1)--(2). To this end, the FMLA affords eligible employees "a total of 12 workweeks of 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." Id. § 2612. To qualify as an "eligible employee," the employee must have been employed (1) "for at least 12 months by the employer," and (2) "for at least 1,250 hours of service with such employer during the previous 12-month period." Id. § 2611.
While it is undisputed that plaintiff has been employed with SUNYSB since 1985, defendants maintain that plaintiff lacks the minimum 1250 hours of service to qualify for FMLA leave. Defendants do not provide employment records or even a specific estimate of "hours of service" but merely state that plaintiff "did not have sufficient 'hours of service' to obtain FMLA protected leave" when she requested FMLA leave on October 10, 2001. (Defs.' Mem. at 8.) Defendants rely on the Fair Labor Standards Act ("FLSA") provision*fn3 that precludes "payments made for occasional periods when no work is performed due to vacation, holiday, illness, failure of the employer to provide sufficient work, or other similar cause . . . and other similar payments to an employee which are not made as compensation for his hours of employment." 29 U.S.C. § 207(e)(2). Indeed, "paid vacation and sick time are not considered 'hours of service' within the meaning of 29 U.S.C. § 2611(2)(c)." Robbins v. Bureau of Nat'l Affairs, Inc., 896 F. Supp. 18, 21 (D. D.C. 1995). Defendants argue that, as plaintiff was not working between April and October 2001, she could not have met the 1250-hour requirement.
Defendants' analysis is erroneous in two respects. First, the employer was under an obligation to determine whether plaintiff qualified for FMLA leave when the request was made initially.
The employee need not expressly assert rights under the FMLA or even mention the FMLA, but may only state that leave is needed for an expected birth or adoption, for example. The employer should 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. In the case of medical conditions, the employer may find it necessary to inquire further to determine if the leave is because of a serious health condition and may request medical certification to support the need for such leave (see § 825.305). 29 C.F.R. § 825.302(c); see also Mann v. Mass. Correa Elec., J.V., No. 00 Civ. 3559, 2002 WL 88915, at *7 (S.D.N.Y. Jan. 23, 2002) ("Once an employee has given adequate notice of the existence of a serious health need, the employer bears the burden of inquiring further to determine whether the requested leave qualifies for FMLA protection."); Robbins, 896 F. Supp. at 19 n.2. Plaintiff is not to be denied FMLA eligibility just because she did not specifically request leave under the FMLA.*fn4 While the employer may choose among several methods for calculating the year during which the employee is entitled to twelve weeks of protected leave,*fn5 defendants have not indicated any policy for calculating leave. Nor did defendants, when denying plaintiff FMLA leave, base the denial on a calculation of the "leave year." As defendants apparently have not chosen a method of calculating the "leave year," the regulations provide that the applicable method is "the option ...