Opinion
01 Civ. 7857 (GEL)
November 19, 2002
David M. Fish, Rosen, Leff, Hempstead, New York, for plaintiff Nancy Konipol.
Bruce Handler, Dornbush Mensch Mandelstam Schaeffer, LLP, New York, N.Y. (Matthew M. Riordan, on the brief), for defendant Restaurant Associates.
OPINION AND ORDER
Plaintiff Nancy Konipol brings this action for compensatory and punitive damages against her former employer, Restaurant Associates ("RA"), alleging violations of the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. (1994) ("FMLA"); the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (1994 Supp. 1999) ("ADA"); and the New York State and City Human Rights Laws, New York Executive Law § 290 et seq., Administrative Code of the City of New York, § 8-101 et seq. RA now moves for summary judgment. The motion will be granted in part and denied in part.
BACKGROUND
Konipol worked for RA as an administrative assistant from January 1999 until January 2, 2001. (Compl. ¶¶ 7, 18.) Shortly after November 1999, Konipol was assigned to assist Ann Silver, the new Vice President of Human Resources. While working as Silver's assistant. Konipol was diagnosed with breast cancer in April 2000 underwent surgery in May of that year ( id. ¶ 9), and received radiation treatments every weekday morning from July 19 until September 8, 2000 (Bridge Aff. Ex. D; Handler Aff. Ex. B at 47-50. In order to facilitate these treatments, Silver allowed Konipol to adjust her work schedule. Silver Aff. ¶ 5; Handler Aff. Ex. B at 49-51.) Konipol does not dispute these adjustments but claims that Silver harassed her because of the inconveniences caused by her late arrivals and "unjustifiably disparaged" her work performance. ( See, e.g., Handler Aff. Ex. B at § 4-56: Compl. ¶ 42.) After the treatments ended, Konipol returned to her normal work schedule, reporting regularly except for an approved vacation to Italy. (Silver Aff. ¶ 7.)
On November 3, 2000, however, Konipol stopped coming to work. ( Id. ¶ 9; Compl. ¶ 14.) She claims that "extreme fatigue," a "debilitating side effect of the radiation treatment," along with the harassment she suffered, rendered [her] temporary unable to work. (Pl. Opp. at 2.) For a cancer patient to continue to suffer from fatigue two months after the end of radiation treatment is unusual but not unheard of, and Konipol's fatigue was documented by her treating physician, Dr. Paul Gliedman. (Fish Aff. Ex. C; Bridge Aff. Ex. D). RA does not dispute that Konipol left two messages for Silver, one on the morning of November 3 and another on Monday, November 6, both stating that she would not be in due to illness. (Def. Mem. Summ. J. at 7.)
According to Konipol, she contacted Dr. Gliedman on November 7, and requested a letter explaining her radiation-related fatigue and her need for leave. (Fish Aff. Ex. B.) On November 9, 2000, Dr. Gliedman wrote a letter. addressing it "To Whom It May Concern." ( Id. Ex. C.) The letter reads in its entirety:
Mrs. Nancy Konipol is currently a patient under my care. She was diagnosed with Breast Carcinoma. Due to her medical condition, the side effects and symptoms, she is unable to participate in any work or employment related activities for an indefinite time. Your immediate cooperation will be greatly appreciated. In the event you need further information please do not hesitate to contact my office.
( Id.) RA denies having received the letter (Def. Reply at 4); at her deposition, Konipol claimed that she had submitted it to RA, though she could not recall specific details about when or how she submitted it (Handler Aff. Ex. B. at 116-18). Whether the letter was sent thus presents a disputed issue of fact.
After failing in several attempts to reach Konipol in early November (Silver Aff. ¶¶ 10-11), Silver referred the matter to Margaret Bridge, RA's Director of Corporate Benefits ( id. ¶ 12; Bridge Aff. ¶¶ 6-9), who over the next two months sent several letters to Konipol attempting to obtain documentation in support of her request for leave. On November 9, 2000, Bridge sent Konipol a copy of RA's FMLA and disability forms, directing her to fill them out and return them to the benefits department. (Bridge Aff. Ex. B.) On November 21, 2000, since the forms had not yet been returned, Bridge wrote to Konipol again, warning her that if the forms were not received by November 27, RA would "no longer be in a position to guarantee the provisions available to [her] under an authorized and approved leave." ( Id. Ex. C.)
On December 1, 2000, Konipol returned the FMLA Request Form, the form for Certification of a Health Care Provider ("certification form") with another letter from Dr. Gliedman attached to it, and the form for Notice and Proof of Claim for Disability Benefits. The forms, however, were incomplete in several respects. Konipol failed to sign or date the FMLA request form and the disability form, and a number of questions on the certification form were unanswered. (Bridge Aff. Ex. D.) Moreover. Dr. Gliedman's second letter was arguably inconsistent with Konipol's request for a full-time leave of absence. He stated:
Ms. Konipol has been a patient under my care having received daily radiation treatments for breast cancer. Her treatments occurred daily from July 19 through September 8, 2000. She was seen today for a follow-up visit where she continues to complain of fatigue, which is a known side effect of the radiation. This fatigue may continue for a few weeks. It is due to this symptom, that her work schedule may have to be adjusted.
( Id.) Construing the facts in the light most favorable to Konipol, however, a fact finder could infer that the required adjustment in work schedule, consistent with Dr. Gliedman's opinion in his November letter and Konipol's claim, was relief from all work responsibilities until her fatigue passed.
On December 5, 2000. Bridge notified Konipol that the documents provided were insufficient to satisfy the requirements for an FMLA leave and told her to submit properly completed forms by December 8, 2000, reminding Konipol that she had "already been absent from work for a month without proper notification to [her] supervisor or authorizations completed for [her] absence." ( Id. Ex. E.) After two failed delivery attempts by Airborne Express, this letter was returned to PA as undeliverable. bridge sent yet another letter on December 12, 2000, advising Konipol that she was "not on approved medical leave since [she] had not complied with the appropriate requirements for such a leave in the timeframe" and enclosing a copy of the December 5 letter. ( Id. Ex. F.) Konipol does not dispute receiving this letter. (Handler Aff Ex. B at 160-161; 178-79.) Konipol claims that she attempted to reach Bridge after receiving the letter by leaving her a voicemail message "asking what else she needed" but did not recall getting a response. (Handler Aff. Ex. B at 162.) On January 2, 2001, Bridge sent a final letter notifying Konipol that since "several attempts to contact [her] by phone and through the postal service" had failed and since Konipol had not complied "with the necessary provisions required by both FMLA and company policy," RA considered her as having voluntarily resigned.
DISCUSSION
RA seeks summary judgment dismissing the Complaint on the grounds that Konipol failed to provide a complete, timely request for FMLA leave, that she could not perform the essential functions of her job with or without reasonable accommodation, and that she did not suffer adverse employment action or harassment because of a disability. Konipol argues that summary judgment is unwarranted, asserting that there are material facts in dispute as to whether she sufficiently put RA on notice of her need and eligibility for leave pursuant to the FMLA, and as to whether she was harassed and terminated due to her serious medical illness and her request for accommodation.
I. Standard for Summary Judgment
In seeking summary judgment, RA assumes the burden of demonstrating an absence of genuine issues as to any material fact. Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). To defeat a motion for summary judgment, "an adverse party may not rest upon the mere allegations or denials of [her] pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citing DeLuca v. Atlantic Refining Co., 176 F.2d 421, 423 (2d Cir. 1949). cert. denied, 338 U.S. 943 (1950)). "[I]f the evidence colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby Inc., 477 U.S. 242. 249-50 (1986) (citations omitted).
The opposing party cannot defeat summary judgment by offering merely speculative arguments. See Dister v. Continental Group, Inc., 859 F.2d 1108, 1116-17(2d Cir. 1988). Accordingly, to defeat summary judgment. Konipol must set forth "concrete particulars" showing the need for a trial. R.G. Group, Inc. v. Horn Hardart, Co., 751 F.2d 69, 77 (2d Cir. 1984) (quoting SEC v. Research Automation Corp., 585 f.2d 31.33 F.2d Cir. 1978)). When deciding a motion for summary judgment, the Court "must view the evidence in the light most favorable to the party opposing summary judgment and must draw all permissible inferences from the submitted affidavits, exhibits, interrogatory answers and depositions in favor of that party." Gummo v. Village of Depew, N.Y., 75 F.3d 98, 107 (2d Cir. 1996).
II. Violation of the FMLA
The FMLA provides job security for employees with "serious health conditions that prevent them from working for temporary periods." 29 U.S.C. § 2601(a)(4). During any twelve-month period, an eligible employee is entitled to a total of twelve work weeks of leave. 29 U.S.C. § 2612(a)(1)(D). An employee seeking FMLA leave, however, may not simply stop coming to work. The FMLA and its accompanying Department of Labor regulations establish certain notice and certification requirements with which an employee seeking leave must comply.
A. Notice
The FMLA requires an employee to provide at least 30 days notice before taking a foreseeable leave. 29 U.S.C. § 2612(e). The FMLA is silent as to unforeseeable leaves, but the regulations provide that if either the leave is unforeseeable or 30 days notice is not possible, an employee must give notice as soon as practicable. 29 C.F.R. § 825.302, 825.303. For unforesecable leaves, "[i]t is expected that an employee will give notice to the employer within no more than one or two working days of learning of the need for leave, except in extraordinary circumstances where such notice is not feasible." 29 C.F.R. § 825.303. What constitutes notice is defined broadly. For foreseeable leave where 30 days notice is not practicable. verbal notification within one or two business days that gives that anticipated timing and duration of the leave is adequate. 29 C.F.R. § 825.302(b)-(c). An employer may also require an employee to complete its usual, internal procedural requirements for requesting leave, but "such internal employer procedures will not permit an employer to disallow or delay an employee's taking FMLA leave if the employee gives timely verbal or other notice." 29 C.F.R. § 825.302(d).
Konipol has provided substantial evidence that RA had notice of Konipol's condition and of her request for leave. It is undisputed that RA knew about Konipol's illness and her radiation treatments, nor is it disputed that RA received messages from Konipol on November 3 and November 6 stating that she would be absent. While the parties dispute whether RA received the November 9 letter from Dr. Gliedman, in which he described Konipol as "unable to participate in any work or employment related activities for an indefinite time" "[d]ue to her medical condition, the side effects and symptoms" (Fish. Aff. Ex. C), RA does not dispute that Bridge sent forms to Konipol in early November to certify such a leave. Moreover, RA had "explicitly told [Konipol] that if she needed any time off due to her illness, all she need do was ask." (Def. 56.1 Statement ¶ 8.) A reasonable jury could find that Konipol's worsening fatigue and need for leave was not foreseeable, and that her phone calls and the November 9 letter from Dr. Gliedman (if found to have been sent) constituted adequate notice that her condition had deteriorated and that she was requesting leave.
B. Certification
That does not end the inquiry. however, since factual questions to notice would be immaterial to Konipol's FMLA claim, if RA properly denied her leave for failure to sufficiently certify that leave. The FMLA expressly permits employers to require that requests "be supported by a certification issued by the health care provider of the eligible employee." as long as the employer gives notice of the requirement and the consequences of failing to provide adequate certification. 29 U.S.C. § 2613(a). RA's written FMLA policy insued the proper notices, stating that "[a]dvance notice and Medical Certification" are required and that "Medical Certification is required to support a request for leave because of a serious health condition." (Bridge Aff. Ex. A.)
The record does not include a description of any specific RA policy with respect to the required contents of a "Medical Certification," but the FMLA and its accompanying regulations detail both the substance of the certification and the timing of its submission. Certification "shall be sufficient if it states — (1) the date on which the serious health condition commenced; (2) the probable duration of the condition; (3) the appropriate medical facts within the knowledge of the health care provider regarding the condition; [and] (4) . . . (B) . . . a statement that the employee is unable to perform the functions of the position of the employee." 29 U.S.C. § 2613(b). In addition, the regulations discuss how much information may be required in medical certifications of a serious health condition, and the Department of Labor has even drafted an optional form for collecting information. 29 C.F.R. § 825.306. Information that may be required includes whether the employee "(i) is unable to perform work of any kind; [or] (ii) is unable to perform any one or more of the essential functions of the employee's position, including a statement of the essential functions the employee is unable to perform (see § 825.115), based on either information provided on a statement from the employer of the essential functions of the position, or if not provided, discussion with the employee about the employee's job functions." 29 C.F.R. § 825.306(b)(4)(i)-(ii). RA's Certification form requested information of this type.
For foreseeable leaves, the requested certification must be provided before the leave or, when this is not possible, "within the time frame requested by the employer (which must allow at least 15 calendar days after the employer's request), unless it is not practicable under the particular circumstances to do so despite the employee's diligent, good faith efforts." 29 C.F.R. § 825.305(b). In general, the employer "should request that an employee furnish certification from a health care provider at the time the employee gives notice of the need for leave or within two business days thereafter, or in the case of unforeseen leave, within two business days after the leave commences," but "may request certification at some later date if the employer later has reason to question the appropriateness of the leave or its duration." 29 C.F.R. § 825.305(c). The employer "shall advise an employee of the anticipated consequences of an employee's failure to provide adequate certification," and "shall advise an employee whenever the employer finds a certification incomplete, and provide the employee a reasonable opportunity to cure any such deficiency." 29 C.F.R. § 825.305(d). "If the employee never produces the certification, the leave is not FMLA leave." 29 C.F.R. § 825.311(b).
RA argues that summary judgment should be granted because Konipol submitted incomplete and untimely medical certification. Konipol, however has raised material issues of fact as to both the timeliness and completeness of her certification submissions. A reasonable jury could find that the November 9 Gliedman letter was an attempt to certify. The letter was dated November 9, less than a week after Konipol's first request for leave. While this is longer than the two days suggested by the regulations. a reasonable jury could find that RA's repeated efforts to seek certification throughout November and early December show that the November 9 letter, and even the December submission of the certification form and accompanying letter, would have been considered timely under RA's policies and practices. Moreover, while RA characterizes Konipol as completely uncooperative, even RA's account of the facts confirms that correspondence from RA requesting information for the purpose of certifying her leave either did not reach Konipol or were not received by her in a timely manner. A reasonable jury could conclude that given her cancer-related fatigue. Konipol's attempts to provide timely and adequate certification (her November and December submissions and her phone message for Bridge in December about what additional documentation RA needed), were diligent, good faith efforts to comply with her obligations under the FMLA and the Department of Labor regulations.
The adequacy of the certification provided, like its timeliness, is also a question of fact for a jury. Although the certification form was incomplete on its face, a reasonable juror might infer that Konipol and/or Dr. Gliedman left those questions blank either because they were not applicable or because the attached letter and the November letter seemed to sufficiently address those issues. Taken together, the November and December Gliedman letters provide a diagnosis, refer to the specific side effect of fatigue that causes the problem, state dates for the term of the treatment that caused that fatigue, indicate that Konipol is unable to perform her work, and approximate the period of necessary accommodation ("indefinite" in November; "a few weeks" in December). Konipol's submissions were unquestionably careless and unforthcoming, and a reasonable fact finder might well find them insufficient. But it could also be found that those submissions provided the substance of the information required by the FMLA for a certification to be considered "sufficient." 29 U.S.C. § 2613(b).
There is also a legitimate factual dispute as to whether RA sufficiently satisfied its responsibilities as an employer under the FMLA, either because the time to cure was not reasonable or because RA did not seek available, alternative means of collecting the required information. Under the regulations, if an employer questions the adequacy of the certification, an employer may have "a health care provider representing [it] . . . contact the employee's health care provider, with the employee's permission, for purposes of clarification and authenticity of medical certification." 29 C.F.R. § 825.307(a). The employer may also require that the employee obtain a second opinion at the employer's expense. 29 U.S.C. § 2613(c); 29 C.F.R. § 825.307(a)(2). RA apparently opted not to pursue either option.
Whether or not the evidence will ultimately sustain inferences in Konipol's favor that will allow her to prevail on her claims, Konipol has raised sufficient issues of material fact as to the adequacy of notice and certification to survive RA's motion for summary judgment. Summary judgment will thus be denied as to the FMLA claim.
II. Violation of the ADA
Konipol also raises two claims under the ADA — one alleging wrongful termination (or read generously, alleging failure to accommodate by providing extended leave), the other alleging discrimination resulting in a hostile work environment. Except to the extent that the NYHRL supports a broader definition of "disability" Reeves v. Johnson Controls World Servs., Inc., 140 F.3d 144, 147 (2d Cir. 1998) — an issue not material here — the Legal standards for discrimination claims under the ADA and under New York state and city law are essentially the same. Accordingly, discussion of the federal ADA claims applies to state and city claims as well. See e.g., Powers v. Polygram Holding, Inc., 40 F. Supp.2d 195, 202 n. 2 (S.D.N.Y. 1999).
A. Wrongful Termination
To establish a prima facie case of wrongful termination by reason of discrimination under the ADA, plaintiff must show that: "(1) her employer is subject to the ADA; (2) she suffers from a disability within the meaning of the ADA; (3) she could perform the essential functions of his job with or without reasonable accommodation: and (4) she was fired because of her disability." Ryan v. Grae Rybicki, P.C., 135 F.3d 867, 869-70 (2d Cir. 1998). RA argues that Konipol's ADA claim fails because she was unable to perform her job with or without reasonable accommodation and because she was not fired on account of her disability.
Konipol was absent for almost two months, and during that time, by her own account, she could not perform the essential functions of her job. While "the ability to appear at work regularly and on time," is "an essential aspect of many jobs." Lyons v. Legal Aid Society, 68 F.3d 1512, 1516 (2d Cir. 1995). Konipol's absences were only a temporary consequence of her radiation-induced fatigue. Since a temporary leave of absence can be a "reasonable accommodation" within the meaning of the ADA, Powers v. Polygram Holding, Inc., 40 F. Supp.2d 195, 199 (S.D.N.Y. 1999), Konipol's temporary inability to perform her job for a discrete and reasonably short period does not as a matter of law entail that she was unable to perform the essential functions of her job "with or without reasonable accommodation." 42 U.S.C. § 12111(8). Nothing in the record suggests that Konipol was unable to perform the essential functions of her job, including consistent attendance, prior to her November 3 departure, including the six weeks during which she received radiation treatments each morning. In fact, Konipol's deposition testimony — undisputed by RA — suggests that her work was satisfactory during that period. (Handler Aff. Ex. B at 31-36.) Accordingly, Konipol has raised a triable issue of fact as to whether she could, with reasonable accommodation, perform the essential functions of her employment. Since she claims that her absence was caused by her disabling cancer-related fatigue and since RA ended her employment because of that extended absence, Konipol has also adequately demonstrated that she was terminated because of her disability.
In assessing claims for discrimination filed under the ADA, courts apply the burden shifting analysis from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03(1973). See, e.g., Heyman v. Queens Village Committee for Mental Health for Jamaica Community Adolescent Program, Inc., 198 F.3d 68, 72 (2d Cir. 1999). If the plaintiff can establish a prima facie case of discrimination under the ADA, the burden shifts to the employer to put forth a legitimate, nondiscriminatory reason for the employment action at issue. If the defendant carries its burden, any inference of discrimination drops out, and the plaintiff must establish that the legitimate reason is pretextual.
RA's asserted legitimate, nondiscriminatory reason for concluding that Konipol had voluntarily resigned from her position, is her extended absence without adequate notice or certification. Since reasonable jurors could disagree about the adequacy of Konipol's leave requests as discussed above, Konipol has raised sufficient questions of fact as to whether that reason was pretextual. Accordingly, RA's motion for summary judgment on Konipol's claim of wrongful termination is denied.
B. Discriminatory Hostile Work Environment
Courts have held that hostile work environment claims under the ADA are evaluated under the same standards as similar Title VII claims. See, e.g., Disanto v. McGraw-Hill, Inc./Platt's Div., 1998 WL 47436. at *5 (S.D.N.Y. Aug. 10, 1998). To establish a prima facie case of hostile work environment under the ADA, plaintiff must demonstate: (1) that she is disabled under the ADA; (2) that she was the subject of harassment: (3) that the harassment was based upon her disability; and (4) that the harassment affected a term, condition or privilege of employment. See, e.g., Cosgrove v. Sears Roebuck Co., 9 F.d 1033, 1042 (2d Cir. 1993) (Title VII). The record must reveal an objectively hostile or abusive environment that was subjectively perceived as abusive; isolated remarks do not merit relief. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22 (1993).
Konipol has not satisfied her demanding burden as to this claim. She has demonstrated at most that Silver made a few insensitive remarks, all specifically occasioned by the difficulties encountered in accommodating Konipol's absences from work. Konipol claims that when she began treatment, Silver told her she was arriving at work "too late" and that Konipol should "just get healthy." (Handler Ex. D.) She alleges that on July 26, 2000, after she arrived at 9:50 a.m. following radiation treatment, Silver complained that "it wasn't fair for Plaintiff to arrive at work `late' when everyone else had to be `on time,'" and that Konipol's pay should be docked and given to another employee who answered Konipol's phone. (Compl. ¶ 12.) Silver denies making such comments. (Silver Aff. ¶ 6.) Konipol also claims that Silver wrongfully took half a sick day from her because she had been coming in late. (Handler Aff. Ex. B at 70.) Beyond these allegations, Konipol argues vaguely that Silver occasionally criticized her performance in ways Konipol disagreed with, such as reprimanding her for answering the phone as "Ann Silver's office, good morning" instead of "good morning, Ms. Ann Silver's office." (Handler Aff. Ex. B at 77.)
Accepting for purposes of this motion that these remarks were made, Konipol has failed to produce evidence that would allow reasonable jurors to conclude that the environment was objectively hostile. Difficulties or disagreements of the type that Konipol describes are common in the workplace and are insufficient to meet the standard of conduct "that is . . . severe and pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive." Harris, 510 U.S. at 21. Konipol attended work between September and November apparently without incident. Vague allegations are not sufficient to oppose RA's summary judgment motion on this claim. Konipol must demonstrate either that a single incident was extraordinarily severe or that a series of incidents were "sufficiently continuous and concerted" to have altered the conditions of her working environment. Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997) (quoting Carrero v. New York Housing Auth., 890 F.2d 569, 577 (2d Cir. 1989) (internal quotation marks omitted)). "Isolated incidents or episodic conduct will not support a hostile work environment claim." Richardson v. New York State Dep't of Correctional Servs., 180 F.3d 426, 437 (2d Cir. 1999) (internal citations omitted).
CONCLUSION
For the reasons stated above, the defendant's motion for summary judgment is granted as to Konipol's hostile work environment claim under the ADA, but denied as to the remaining FMLA, ADA, and applicable state claims.