Argued: September 22, 2016.
who was dismissed from employment by defendant for taking
unauthorized leave, appeals from the order of the United
States District Court for the Eastern District of New York
(Matsumoto, J.) granting summary judgment to the
defendant dismissing plaintiff's suit brought under the
Family Medical Leave Act of 1993, 29 U.S.C. § 2601
et seq. The Court of Appeals holds that the district
court erred in concluding that plaintiff could not, as a
matter of law, establish a "serious health condition,
" so as to qualify for medical leave.
K. Hassan, Abdul Hassan Law Group, PLLC, Queens Village, New
York, for Plaintiff-Appellant.
Traycee Ellen Klein, Epstein Becker & Green, P.C., New
York, New York (Adriana S. Kosovych, on the brief), for
Before: LEVAL and LOHIER, Circuit Judges, and KOELTL,
Jacintha Pollard, who was dismissed from employment by
defendant, The New York Methodist Hospital
("Hospital"), for taking unauthorized leave,
appeals from an order of the United States District Court for
the Eastern District of New York (Matsumoto, J.)
granting summary judgment in favor of the Hospital. Pollard
brought this action pursuant to the Family and Medical Leave
Act of 1993, 29 U.S.C. § 2601 et seq.
("FMLA" or the "Act"), alleging the
Hospital terminated her illegally for taking medical leave to
which she was entitled under the terms of the Act. The
district court concluded that the Hospital was entitled to
judgment as a matter of law because Pollard could not prove a
"serious health condition." We disagree and
therefore vacate the judgment.
September 6, 2000 until April 1, 2013, Pollard was employed
by the Hospital as a medical records file clerk, a job
requiring that she stand and walk for most of the day.
Sometime between January and February 2013, she noticed a
growth on her left foot. The growth became increasingly
painful and, to a contested degree, limited her ability to
perform her job.
March 19, 2013, during her lunch break from work, Pollard
visited her podiatrist, Dr. Manoj Sadhnani. Dr. Sadhnani
concluded, after the preliminary examination, that the growth
was a benign soft tissue mass and offered Pollard two
options: surgery or conservative care. Dr. Sadhnani recalled
that Pollard rejected the conservative option, to which he
responded, "[W]ell, then I have to remove it. [Pollard]
said, okay, then do it as soon as you can." J.A. at 299.
Dr. Sadhnani scheduled surgery to remove the growth for March
28, 2013, the next available opening in his surgery calendar.
the March 19 appointment, Pollard requested that Dr. Sadhnani
provide a note to establish her entitlement to medical leave.
Dr. Sadhnani faxed a note to the Hospital that day, stating
that Pollard needed immediate surgery on her left foot, which
he had scheduled for March 28, 2013.
deposition, Dr. Sadhnani said the surgery was immediately
necessary. He explained that the growth needed urgent care
given (1) Pollard's increasing pain; (2) the obstruction
of her function; and (3) the possibility that the growth
might be precancerous, which could be better determined by
removing it. J.A. at 230-60. While acknowledging that
Pollard's condition was not life- threatening, so that
the surgery could have been delayed for thirty days, Dr.
Sadhnani testified that he would have recommended against
such a delay. He acknowledged that more conservative
treatments would have been appropriate initially, but in
light of Pollard's rejection of conservative treatment,
Dr. Sadhnani opined that the surgery was necessary, and
"[he] wanted to do it as soon as [he] could possibly do
it to alleviate the pain." J.A. at 299.
her March 19 appointment, Pollard returned to work and spoke
with Velta Davis-the assistant to the Hospital's leave
specialist, Mabel Del Rio-to request FMLA leave for her March
28 surgery and post-operative recovery. The Hospital
responded by letter dated March 19, 2013, that the FMLA
required thirty days' notice of an employee's leave
when that leave is foreseeable.
March 26, 2013, Dr. Sadhnani followed up with the Hospital,
certifying on an FMLA medical form that: (1) the growth on
Pollard's left foot was a "serious health
condition"; (2) the "treatment given as a result
of the health condition" would be "surgery on
3/28/13"; and (3) in light of Pollard's serious
health condition, she required medical leave from March
28-April 18, 2013. J.A. at 71-72. The Hospital's leave
specialist, Del Rio, immediately responded by fax, notifying
Dr. Sadhnani that Hospital employees must provide at least
thirty days' notice of their FMLA leave, and requesting
that he therefore defer the March 28 surgery to April 19 at
the earliest. Pollard did not authorize the Hospital to
cancel or change her surgery date.
receipt of this notice from the Hospital, Dr. Sadhnani
canceled the March 28 surgery appointment. He testified that
while the surgery was medically necessary at some point, it
did not need to occur on March 28. However, Dr. Sadhnani
then, at Pollard's request, reinstated the March 28
surgery date. At no point did the Hospital request that
Pollard submit to an independent medical examination for a
second opinion regarding her condition or the medical
necessity of her surgery.
Pollard continued to work through March 27, 2013, the day
before the surgery, the parties dispute the difficulty she
experienced during this period. Pollard claims she was in
considerable pain, making it difficult to perform her job and
rendering surgery necessary as soon as possible. The Hospital
contests this characterization, noting that Pollard never
exhibited difficulty performing her job, nor asked for an
accommodation or otherwise indicated to the Hospital the
difficulty she allegedly experienced. Dr. Sadhnani did not
prescribe medication for Pollard's pain in advance of her
surgery, nor did Pollard request that Dr. Sadhnani or any
other doctor provide pain medication.
March 28, 2013, Dr. Sadhnani performed the surgery. Because
of Pollard's failure to report to work that day, the
Hospital terminated her employment by letter dated April 1,
to the post-operation report, on March 28, Dr. Sadhnani
removed the growth, dressed the wound, and transferred
Pollard to a recovery room. He instructed Pollard to wear a
surgical shoe on her left foot, and prescribed pain killers
Sadhnani instructed Pollard to visit him again in one week.
As the earliest available appointment on his schedule was
nine days after the surgery, Pollard returned for a
post-operative evaluation on April 6, 2013, during which Dr.
Sadhnani examined the wound and changed the dressing. Dr.
Sadhnani requested another follow-up visit on April 13, 2013,
at which time he removed Pollard's sutures, again changed
the dressing, and cleared Pollard to return to work beginning
April 18, 2013. Between her surgery date and April 18, 2013,
Pollard did not return to work. Dr. Sadhnani testified that
he generally preferred that foot-surgery patients not return
to work until their sutures had been removed, which usually
required a two week absence. Pollard testified that as of
April 18, 2013, she was "ready, willing and able"
to resume her employment with the Hospital. J.A. at 46.
of her termination, Pollard applied to the New York State
Department of Labor for unemployment insurance benefits. The
Hospital objected, arguing that she was not entitled to
benefits because she had been terminated for cause for
failing to provide thirty days' notice in advance of her
planned leave. An administrative law judge upheld the
Department of Labor's grant of unemployment ...