The opinion of the court was delivered by: Denise Cote, District Judge
Defendants Mount Sinai Medical Center and Mount Sinai Hospital ("Mount Sinai") have moved for summary judgment on all the claims brought against them by their employee John Ode ("Ode"). Ode was discharged in January 2004 following an absence for health reasons. He was reinstated approximately a year later. Ode claims that the termination of his employment violated federal civil rights laws and the Family Medical Leave Act ("FMLA"). For the following reasons, Mt. Sinai is entitled to summary judgment on the employment discrimination claims, but the FMLA claim must proceed to trial.
The following facts are not in dispute or are taken in the light most favorable to the plaintiff, unless otherwise noted. John Ode, who is black, was hired as a security officer in Mount Sinai's Security Department in February 2002. While Ode was employed at Mount Sinai the Director of Security was Carmen Fascia ("Fascia") and the Assistant Director of Security was Robert Pickett ("Pickett"). Fascia is white and Pickett is black.
The Security Department required employees to call in at least two hours before the start of a shift when missing work due to illness or injury. The call-in procedure was explained to Ode during his orientation. Mt. Sinai asserted that Ode had violated this policy when it fired him in early 2004.
Ode contends that his absences from work were largely due to recurring health problems stemming from a workplace accident in 2002. On September 1, 2002, Ode hit his head on a pipe while on patrol at Mt. Sinai. Ode was treated at the Mt. Sinai emergency room. On the advice of Ode's personal physician, Dr. Jeffrey Gross ("Dr. Gross"), Ode did not return to work following the accident until September 10. Following this accident, Ode began to experience neck pain. Ode did not tell his supervisors about his problems with his neck because he wanted to keep this personal information private.
On July 9, 2003, Ode visited Dr. Gross because he had a cold, a headache and was again experiencing neck pain. Dr. Gross gave the plaintiff a note excusing him from work, which plaintiff faxed to Mt. Sinai. The July 9 note stated that Ode was unable to work "due to neck pain/cold" and that he would be able to return to work on July 17.
On October 8, Ode received a "first warning" for "patterned" excessive absenteeism and conduct detrimental to medical center operations. The written warning explained that Ode had been sick/absent Eight (8) days on Five (5) occasions. This is considered excessive. Three of the Five occasions were connected to scheduled time off. This is considered patterned. Any recurrence of a similar nature may result in further disciplinary action up to and including termination. Additionally, you are required to provide proof of illness for every occasions [sic] of sick/absence until January 8, 2004.
On November 1, Ode was given a "final warning" due to an incident that occurred while Ode was working on October 26. On December 9, a final warning with a three day suspension was issued due to an allegation that Ode was absent from his assigned post on December 3.
Ode was absent from work from December 26 to January 11, 2004. On December 26, 27 and 28, Ode telephoned and notified Mt. Sinai that he was sick and wouldn't be able to come into work. Ode claims that he also called in on December 29 and 30. Mt. Sinai has no record of those calls. On December 29, one of Ode's supervisors telephoned him at home to inquire about his absence. Ode asserts that he informed him that he had been sick since Friday, December 26, and would also be out on December 30.
On December 30, Ode again visited Dr. Gross. After examining Ode, Dr. Gross faxed a note to Mt. Sinai which stated the Ode was unable to work between December 26 and 30 "due to severe neck pain." It added that he was able to return to work. After a January 5 visit to Dr. Gross, the doctor faxed another note to Mt. Sinai stating that Ode could return to work as of January 11.
On January 5, 2004, Fascia and Pickett, in consultation with Mt. Sinai's Labor Relations Department, decided to discharge Ode because he had failed to call in on December 29 and 30 and that failure represented the third incident of unauthorized absence in one year. Pickett's discharge report stated that Ode had been scheduled to work on December 29, and that he had failed to notify Mr. Sinai of his absence. It continued, "[w]hen a supervisor contacted you at home, you stated you were tired. On 12/30/03, you were again scheduled to work and failed to call that you would not be in. You subsequently faxed in a doctor's note after the shift began."
On January 12, Pickett met with Ode and told him that he had been discharged, effective January 6, for not calling in on December 29 and 30. Ode argued that he had called in. He was told that he had to bring his records to prove that he had called. Ode presented his telephone records, but his efforts were unavailing. Mt. Sinai was not satisfied that the records proved that he had called and his discharge remained in effect.
In October 2004, an attorney representing Ode contacted Mt. Sinai and stated that Ode had telephone records showing that he had contacted the hospital on December 29 and 30. The records were again provided to Mt. Sinai. This time it was determined that the records established that Ode had satisfied the hospital's ...