134 F. Supp. 3d 681
E.D.N.Y2015Background
- Pollard worked as a medical records file clerk (2000–2013) and sought surgical removal of a painful benign growth on her left foot; she continued working up to the surgery.
- She saw podiatrist Dr. Sadhnani on March 19, 2013, requested surgery, and obtained a note stating surgery was scheduled for March 28, 2013; HR told her the hospital required 30 days’ notice for foreseeable leave.
- Pollard faxed the doctor’s note to HR on March 19; HR told her to reschedule to comply with the 30‑day rule and later contacted Dr. Sadhnani, causing him to cancel the surgery; Pollard asked him to reschedule for March 28.
- Pollard underwent the outpatient surgery on March 28, 2013 (stitches, surgical shoe, Vicodin/antibiotics), had two short post-op visits (April 6 and April 13), and was cleared to return April 18.
- The Hospital terminated Pollard on/around April 2, 2013 for failing to appear at work March 28 after leave was denied; she obtained unemployment benefits on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether growth/surgery constituted a "serious health condition" under FMLA (continuing treatment categories) | The mass and the surgery (and recovery) created continuing treatment/incapacity qualifying under 29 C.F.R. §825.115(a) or (e) | The condition was treated by a single outpatient surgery; Plaintiff had no >3‑day incapacity with requisite follow‑up timing and no multiple treatments | Court: Not a serious health condition as a matter of law; summary judgment for defendant |
| Whether Pollard gave sufficient notice for foreseeable FMLA leave | Pollard contends she provided doctor’s certification and acted promptly given pain and HR contact | Hospital contends she failed to comply with 30‑day notice requirement for foreseeable leave | Court did not reach notice in detail because serious‑condition element failed; defendant prevails |
| Whether employer’s failure to obtain a second medical opinion estops it from challenging certification | Pollard: Employer’s failure to seek second opinion and ALJ unemployment ruling establish eligibility / preclude challenge | Hospital: Employer may seek second opinion but is not required to; failure to seek one does not bar later challenge | Court: Employer’s failure to obtain a second opinion does not preclude it from challenging FMLA eligibility |
| Preclusive effect of unemployment decision | Pollard: Unemployment board decision supports her claim / should be given collateral estoppel effect | Hospital: Unemployment ruling did not decide FMLA issues; NY Labor Law bars preclusion from UI decisions | Court: No collateral estoppel; UI decision did not decide FMLA serious‑condition issue and NY law prevents preclusion |
Key Cases Cited
- Potenza v. City of New York, 365 F.3d 165 (2d Cir. 2004) (elements for FMLA retaliation prima facie case)
- Kosakow v. New Rochelle Radiology Assocs., P.C., 274 F.3d 706 (2d Cir. 2001) (equitable estoppel where employer silence misled employee about FMLA protections)
- Murphy v. FedEx Nat. LTL, Inc., 618 F.3d 893 (8th Cir. 2010) (second‑opinion provision of FMLA is permissive, not mandatory)
- Novak v. MetroHealth Med. Ctr., 503 F.3d 572 (6th Cir. 2007) (permissive nature of second‑opinion rule)
- Rhoads v. F.D.I.C., 257 F.3d 373 (4th Cir. 2001) (same)
- Donnelly v. Greenburgh Cent. Sch. Dist. No. 7, 691 F.3d 134 (2d Cir. 2012) (FMLA leave for surgery/recovery context distinguished)
- Victorelli v. Shadyside Hosp., 128 F.3d 184 (3d Cir. 1997) (analysis of regulatory categories for continuing treatment)
- Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81 (U.S. 2002) (limits on DOL regulatory authority under FMLA)