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Golden v. New York City Dep't of Environmental Protection


December 3, 2007


The opinion of the court was delivered by: Denise Cote, District Judge


The plaintiff, Michael F. Golden ("Golden"), who is currently proceeding pro se, filed this employment discrimination action against the New York Department of Environmental Protection ("DEP") on February 28, 2006. As explained in an Opinion of August 10, 2007, the sole remaining federal claim is brought under the Family Medical Leave Act ("FMLA"). Golden v. N.Y. Dep't of Environmental Protection, No. 06 Civ. 1587(DLC), 2007 WL 2319130 (S.D.N.Y. Aug. 10, 2007) ("August Opinion"). Because the parties had not addressed the legal framework for analyzing an FMLA claim in their summary judgment papers, the August Opinion set out that legal framework in considerable detail and provided them with a renewed opportunity to brief the issue. Familiarity with the August Opinion is presumed. For the reasons set forth below, the defendant's renewed motion for summary judgment is granted.


Golden's FMLA claim arises from his absences from work due to a back injury.*fn1 Golden claims that DEP interfered with his FMLA rights principally by failing to permit him to work fewer than seven hours a day on fifteen occasions when he arrived at work late.*fn2 Golden asserts that he was late to work because of a need to rest his back or to avoid taking the subway at a time at which it was likely to be crowded, for fear of aggravating this medical condition.

A DEP employee handbook sets forth the defendant's procedural requirements for requesting sick leave. It provides that employees must submit a "Request for Leave" form in order to request use of sick leave. It also provides rules for calling in to report a need for sick leave and for requesting permission to leave work early due to illness. The handbook discusses unpaid medical leave and paid sick leave and states that medical documentation is required in requests for both types of leave. The handbook also states that the FMLA requires covered employers "to provide up to 12 weeks of unpaid, job-protected leave to eligible employees for certain family and medical reasons." The handbook was issued to all employees in 1995, several years after Golden's employment began.

Golden was permitted to work flexible hours to accommodate his back condition, but was required to work a full seven hours each day. Golden's supervisor informed Golden orally on June 5, 2003, and in writing on September 2, 2003, that he had to submit a leave slip if he could not be present the full seven hours he was required to work each day. The September 2 memorandum informed him that he could sign in anytime between 7:30 and 8:30 a.m. It warned him that continued disregard for the rules set forth in the memorandum could result in disciplinary action. Golden has submitted a document that shows that he was reprimanded for working short days without requesting leave on 12 occasions between June 12 and September 2, 2003.

Golden does not deny that he sometimes came to work later than 7:30 a.m., and yet left by 3:30 p.m. without notifying his supervisor that he wanted to use leave time to work less than seven hours. Golden did not notify his supervisor because he viewed 3:30 p.m. as his regular end time, regardless of what time he had arrived at work.

Golden also avers that he did not submit leave forms because he wanted to avoid hostile and stressful interactions with his direct supervisor and because he believed any request for leave would be denied. At his deposition, Golden contended that on three or four occasions between March 5 and June 5, 2003 and perhaps two more occasions thereafter, his direct supervisor made comments to him such as, "Oh my back hurts. Oh, my back hurts." He testified that that supervisor would walk stooped over while making these comments.*fn3 He also testified that on two or three occasions this supervisor imitated the shaking that resulted from Golden's torticollis.

Golden was suspended for five days as a result of 14 unauthorized half-hour absences from work and one unauthorized one-hour absence between September 9, 2003 and March 18, 2004, as well as the use of profane language directed at his supervisor. Golden's claims in this lawsuit concern the events which led to the suspension and essentially challenge the validity of the suspension ruling. While the DEP has raised several arguments in support of dismissal of this lawsuit, it is only necessary to reach the issue of whether Golden has presented sufficient evidence that his FMLA rights were infringed.


Golden has asserted an FMLA "interference" claim pursuant to 29 U.S.C. § 2615(a)(1). This section of the FMLA states that "[i]t shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided" under the FMLA.*fn4 Construed liberally, Golden has asserted two bases for his FMLA interference claim:

(1) the DEP's refusal to grant him FMLA leave on the occasions when he arrived late to work and left before completing a seven-hour shift and (2) harassment by his direct supervisor that discouraged Golden from submitting leave requests. For purposes of this motion, it is undisputed that Golden suffered from a serious medical condition.

It is assumed for purposes of the discussion that follows that Golden's decision to work a shortened day could support an FMLA claim even though he offers his medical condition as the reason he arrived at work late, and not as the reason he left work before completing a seven-hour shift. The DEP has not suggested that an FMLA claim could not arise in these circumstances, even though Golden was disciplined for leaving work early and without notice, and not for arriving to work late.

Golden's first interference claim fails because Golden never requested leave for the dates at issue.*fn5 Golden provides no evidence that he ever gave DEP notice that he wished to work less than a seven-hour day on those occasions when he arrived at work late. DEP's internal procedures required such notice and Golden's supervisor reminded him of that requirement both orally and in writing.

Golden argues that the DEP knew of his intermittent use of part-day leave because of his past practice of using Sick Leave, Annual Leave, and "Compensatory time" to rest his back. Evidence that DEP knew that Golden suffered from a chronic medical condition did not relieve Golden of the duty to notify DEP "as soon as practicable" that an individual absence was due to this condition. 29 C.F.R. § 825.303(a).

Golden next argues that his supervisor's attempt to enforce a seven-hour work day exceeded the supervisor's authority within DEP. This argument is flatly contradicted by the documentary evidence, including the record created when the Administrative Law Judge upheld Golden's suspension for repeatedly leaving work without completing seven hours of work.

Golden's second claim is that his direct supervisor interfered with his FMLA rights by making "demeaning comments and gestures" regarding Golden's physical condition, thereby making Golden believe his direct supervisor would deny any requests for leave. "Interfering with" with the exercise of FMLA rights includes "not only refusing to authorize FMLA leave, but discouraging an employee from using such leave." 29 C.F.R. § 825.220(b); Potenza v. City of New York, 365 F.3d 165, 167 (2d Cir. 2004). It prohibits employer activities that "deter employees' participation" in activities protected by the FMLA. Bachelder v. America West Airlines, Inc., 259 F.3d 1112, 1124 (9th Cir. 2001).

The record, viewed in the light most favorable to Golden, does not support a finding that Golden's direct supervisor's activities excused Golden's failure to give notice that he was leaving work early or otherwise interfered with Golden's ability to exercise his FMLA rights. First, Golden was not actually deterred in coming to work late when his back condition required him to alter his schedule. He has not identified any occasions on which he arrived at work earlier than he desired because of a fear that leave would be denied him. More importantly, Golden has not shown that his request for leave could only be submitted to his direct supervisor. Indeed, one of the exhibits that Golden has submitted demonstrates that he submitted notice of a need for leave in June 2003 to the administrative chief of the laboratory in which he worked.

IntercontinentalExchange, Inc., 497 F.3d 109, 119 (2d Cir. 2007). The Clerk of Court shall close the case.


DENISE COTE United States District Judge

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