Summary
denying summary judgment where a plaintiff requested FMLA leave by name and shortly thereafter requested a modified work schedule
Summary of this case from Macropoulos v. Metro. Life Ins. Co.Opinion
01 Civ. 8590 (TPG)
September 29, 2003
Opinion
This is an action brought by Plaintiff Ola Jennings against her former employer alleging various violations of state and federal law. Defendant Parade Publications is a New York City-based publisher of a weekly magazine employing some 240 employees. Jennings was employed by Parade from 1989 to 1999. Her ten-year employment with Parade Publications ended in her termination, which engendered the instant lawsuit.
Jennings alleges that Parade wrongly denied her a leave of absence and a modified work schedule in violation of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq. Jennings also alleges that in response to her requests for leave, Parade terminated her employment, in further violation of the FMLA. Jennings's complaint originally contained other claims, alleging race and disability discrimination. However, Jennings has withdrawn those claims.
Parade has moved for summary judgment on both claims, and Jennings has cross moved for summary judgment. Both motions are denied.
FACTS
All facts are undisputed, unless otherwise indicated, and are taken from the pleadings and from affidavits submitted by the parties.
Jennings was hired by Parade in March 1989 as a Personnel Assistant in the Human Resources Department. Jennings continued at Parade until her termination on September 15, 1999. Throughout that time, Jennings reported directly to Nedra Crawford, who in turn reported to Carol Unger.
During her employment with Parade, Jennings lived with and raised her six-year-old son, Robert. Robert was being treated for Attention Deficit and Hyperactivity Disorder ("ADHD"). ADHD is a mental impairment that causes varying degrees of inattentiveness, hyperactivity, and impulsiveness in individuals affected by it. During 1998 and 1999 Robert was being treated with medication and therapy.
In 1996 Jennings moved from Queens to Tannsersville, Pennsylvania, requiring a two-hour commute each way to work in Manhattan.
On August 25, 1999, Jennings informed Nedra Crawford that she wished to take a leave of absence to care for Robert. Jennings disclosed that Robert had ADHD and stated that she was without a caregiver for Robert. She said that she wished to take the leave pursuant to the FMLA. At that time Crawford was familiar with ADHD through "television, the papers, [and the] New York school system."
Crawford has testified that she inquired of Jennings whether Robert was on medication and whether he was in school, and that Jennings replied in the affirmative as to both. Crawford further testified that she told Jennings that she did not think that ADHD was covered by the FMLA. Jennings's testimony is that Crawford asked no follow-up questions, and simply told her that she did not think that ADHD was covered.
Subsequently, Crawford took Jennings's request to Unger. Unger in turn contacted Parade's attorneys, who opined that ADHD was not covered under the FMLA. Unger informed Jennings that her request for family and medical leave was denied. The record does not reveal the date of this denial.
At the time of Jennings's request, Parade Productions had in place a family and medical leave policy that tracked the terms of the FMLA. Parade also had prepared a "Request and Notification Form," which included a request that employees seeking leave under the FMLA provide medical documentation as to their or their family member's condition. Jennings was never provided with this form.
On September 14, 1999, Jennings made a request to Crawford and Unger that she be given a modified work schedule of ten to five with no lunch break in order to accommodate her need to take Robert to school. The normal Parade work schedule during non-summer months was nine to five. Jennings testified that in that conversation she never referred to Robert's ADHD.
On September 15, 1999, Unger and Crawford informed Jennings that "the adjusted schedule would not be in the best interest of the department" and that the request had been denied. Unger gave Jennings the option of working from nine until five, or resigning. Jennings stated that Parade would have to fire her, and declined the option extended by Unger to work to the end of the week. Jennings was terminated on September 15.
DISCUSSION
I. Denial of FMLA Leave and Modified Schedule Requests
Jennings first alleges that Parade violated the FMLA by denying her requests for a leave of absence and a modified work schedule.
The FMLA was enacted by Congress in 1993 "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." 28 U.S.C. § 2601(b)(2). The Act provides that such leave may be taken on a continuous basis, or in the form of a "reduced leave," or modified schedule. § 2612(b)(1).
The Act entitles eligible employees to a total of twelve workweeks of leave during a twelve-month period "[i]n order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition." § 2612(a)(1) (C). "Serious health condition" is defined as "an illness, injury, impairment, or physical or mental condition that involves (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider." § 2611(11). The regulations pertaining to § 2611(11) (B) specify that some degree and duration of "incapacity" must occur. However, the details of the required incapacity need not be delved into for purposes of this opinion.See 29 C.F.R. § 825.114.
The Act makes it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided [by the Act]." § 2615(a)(1). In order to establish a prima facie case for denial of FMLA benefits, a plaintiff must show that (1) she is an eligible employee under the FMLA; (2) the defendant is a covered employer under the FMLA; (3) the plaintiff was entitled to leave under the FMLA; (4) the plaintiff gave appropriate notice to defendant of her intention to take leave; and (5) the defendant denied her benefits to which she was entitled. Brenlla v. Lasorsa Buick Pontiac Chevrolet, Inc., No. 00 Civ. 5207, 2002 WL 1059117, at * 4 (S.D.N.Y. May 28, 2002); Santos v. Knitgoods Workers' Union, Local 155, No. 99 Civ. 1499, 1999 WL 397500 (S.D.N.Y. June 15, 1999).
In its summary judgment motion dealing with Jennings's requests for leave and a modified schedule, Parade raises only the notice issue. Parade contends that Jennings did not give adequate notice that her circumstances came within the coverage of the FMLA. Specifically, Parade argues that Jennings in effect requested time off for "babysitting," which is not a qualifying reason for FMLA leave.
The Court does not construe Parade's reliance on the theory of inadequate notice as an admission that Robert's condition was in fact a "serious medical condition" within the meaning of the FMLA. But on this motion the Court will not deal with the latter issue since it has not been presented by way of the necessary factual or legal submissions.
A. Requirement of Notice Under the FMLA
Under the FMLA, an employee who has a "foreseeable" need for leave must give her employer at least thirty days notice. 29 U.S.C. § 2612 (e) (1). Appropriate notice must consist not only of a statement of intent to take leave, but also of a potentially FMLA-qualifying reason for the leave. See Darboe v. Staples. Inc., 243 F. Supp.2d 5, 17 (S.D.N.Y. 2003). Pursuant to the FMLA's implementing regulations:
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.29 C.F.R. § 825.302 (c). Thus, on the basis of a request and some preliminary information an employer may be put on inquiry notice and thereby obligated to request from the employee additional information regarding the asserted qualifying condition. See Barnett v. Revere Smelting Refining Corp., 67 F. Supp.2d 378, 385 (S.D.N.Y. 1999).
The precise contours of what constitutes sufficient notice to shift the burden of inquiry have not been clearly defined by the courts. At one end of the spectrum, notice has been held insufficient where an employee requested leave to deal with "some family matters," and referred to a family business. Johnson v. Primerica, 94 Civ. 4869, 1996 WL 34148, at *2 (S.D.N.Y. Jan. 30, 1996).
Even if the court were to find that Johnson had "intimated" to [Defendant] that his request was premised on his son's illness, the FMLA provisions would not be triggered unless Johnson could show that [Defendant] understood his oblique references. While an employer's duty to inquire may be predicated on statements made by the employee, the employer is not required to be clairvoyant.Johnson. 1996 WL 34148, at *5.
On the other hand, courts have held that an employer with some prior knowledge of an employee's medical situation may not rely on an unspecific request for FMLA leave to avoid the duty to inquire into whether the request is FMLA-qualifying. Thus, in Barnett, supra, the court determined that although an employee disclosed in his notice of absence only that he had "chest pains" and "difficulty breathing," the employer's prior knowledge of an existing medical condition was relevant to determine whether the employer was on inquiry notice of a potentially FMLA-qualifying absence. Barnett, 61 F. Supp.2d at 386-87; see also Ware v. Stahl Specialty Co., No. 97 Civ. 0436, 1998 WL 184267 (W.D. Mo. Apr. 9, 1998) (finding sufficient inquiry notice to employer where employee called in stating that he was sick with headaches, where employer had prior knowledge that employee was afflicted with migraines).
B. The August 25 Request for Leave
It is undisputed that in this request Jennings cited the FMLA and indicated that her son had a medical condition, namely ADHD. Crawford also admits in her testimony that she was familiar with the condition of ADHD at the time.
Jennings has testified that Crawford asked no follow-up questions in response to her request, and that Crawford immediately told her that she did not think ADHD qualified for family and medical leave. This testimony is to some extent contradicted by Crawford, who says that she did inquire as to whether Robert was on medication and whether he was in school. However, Crawford admits that she told Jennings that she did not think ADHD was covered by the FMLA. Whether Crawford tried to ascertain any details regarding Robert's condition, and whether she had reason to believe that he was active in day-to-day activities, are disputed issues of fact relevant to the sufficiency of Jennings's notice to Parade.
Furthermore, Parade took Jennings's request seriously enough for Crawford and Unger to inquire of Parade's lawyers about whether ADHD was covered by the FMLA. This raises a factual issue as to whether indeed Parade considered Jennings's request to be merely one for "babysitting."
Under these circumstances there are triable issues of fact as to whether Jennings gave adequate notice in her August 25 request for leave.
C. The September 14 Request for a Modified Schedule
With respect to Jenkins's September 14 request for modified work hours, there also are genuine issues of disputed material fact that prevent the Court from concluding that Jenkins's notice was inadequate as a matter of law.
When Jenkins requested of Crawford and Unger that her schedule be modified to ten to five, she revealed only that her childcare arrangements had not worked out and she needed extra time to take Robert to school. However, this request came only two weeks after Jennings's request to Crawford for a leave of absence. Thus, whatever knowledge Crawford had about Robert and ADHD at the time of the first request was surely still possessed by her when the second request was made. Essentially, therefore, the same factual issues exist as to both requests, preventing summary judgment on the second request as well as the first.
II. FMLA Retaliatory Discharge Claim
Jennings's second FMLA claim alleges that Parade wrongfully terminated her employment because of her requests for leave under the FMLA. Jennings argues in particular that Parade's termination of her because of her inability to work nine to five violated the FMLA to the extent that she had the right to request accommodation of those hours.
Parade responds that Jennings has failed to demonstrate that she was terminated in retaliation for her attempt to avail herself of the protections of the FMLA. Parade asserts that Jennings was terminated not for asserting federally protected rights but rather because she declined to work the required hours of her position.
Jennings does not specify in her complaint under which section she intends to bring her retaliatory discharge claim, and neither party refers to a specific section in the course of the pleadings. The Court chooses to analyze Jennings's claim under § 2615(a)(1), which makes it unlawful for employers to "interfere with, restrain, or deny the exercise of or the attempt to exercise" an FMLA right, rather than under § 2615(a)(2), which outlaws "discharge" or "discrimination" in response to employees who "oppose" unlawful practices by their employers.
There is conflicting authority within this Circuit regarding the appropriate legal test to be applied to wrongful termination claims coming under § 2615(a)(1), with some courts using McDonnell Douglas burden-shifting. In a well-reasoned opinion in Mann v. Mass. Correa Electric, J.V., No. 00 Civ. 3559, 2002 WL 88915, at *7 (S.D.N.Y. Jan. 23, 2002), however, the court concluded that the McDonnell Douglas framework was inapposite to claims under § 2615(a)(1). The Court is persuaded by the reasoning in Mann that, at least on the facts of this case, burden-shifting is inappropriate.
Jennings argues that her termination was motivated by her invocation of a right to a schedule modification under the FMLA. More specifically, Jennings alleges that she was terminated because of her unwillingness to accept a nine to five schedule instead of the modification that she had requested. Parade insists that the termination was motivated not by Parade's opposition to Jennings's FMLA request, but rather by her inability to work the "required" nine to five schedule.
Parade's argument misses the point of the FMLA's prohibition of employer "interference" with rights extended by the Act. If Jennings prevails on her claim that she was wrongfully denied her requested schedule modification, Parade's continued insistence that the nine to five hours are a "requirement" of the job would amount to an illegal choice between continued employment and exercising FMLA-protected rights. Thus, since disputed issues of fact exist as to whether Jennings was wrongly denied a modified schedule, her claim that she was terminated for her failure to accede to a nine to five schedule must also withstand summary judgment.
III. Parade's Judicial Estoppel Argument
Parade also asks the Court to dismiss Jennings's action on the ground that she is judicially estopped from asserting her claims for failure to disclose them in 1999 and 2000 bankruptcy filings. Parade reasons that in failing to fully disclose in her bankruptcy filings Jennings "advanced an inconsistent factual position" that was adopted by another court. The Court finds this argument without merit and denies Parade's motion to dismiss on these grounds.
CONCLUSION
Because issues of material fact remain disputed on all of Jennings's claims, Parade's motion for summary judgment, and Jennings's cross motion for summary judgment, are denied.
SO ORDERED