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Pollard v. The New York Methodist Hospital

United States Court of Appeals, Second Circuit

June 30, 2017

Jacintha Pollard, Plaintiff-Appellant,
The New York Methodist Hospital, Defendant-Appellee.

          Argued: September 22, 2016.

         Plaintiff, 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.

          Abdul 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 Defendant- Appellee.

          Before: LEVAL and LOHIER, Circuit Judges, and KOELTL, District Judge.[1]

          LEVAL, Circuit Judge

         Plaintiff, 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.


         From 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.

         On 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.

         During 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.

         At his 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.

         Following 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.

         On 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.

         Upon 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.

         While 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.

         On 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, 2013.

         According 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 and antibiotics.

         Dr. 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.

         Because 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 ...

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