861 F.3d 374
2d Cir.2017Background
- Pollard, a medical records file clerk, scheduled and underwent surgery on March 28, 2013 to remove a painful, growing soft-tissue mass on her left foot; her podiatrist certified the surgery and a leave period (Mar 28–Apr 18) as medically necessary.
- Pollard notified her employer, New York Methodist Hospital, of the need for leave on March 19; the Hospital responded that FMLA requires 30 days’ notice for foreseeable planned treatment and asked to defer the surgery.
- The doctor temporarily canceled but then reinstated the March 28 surgery at Pollard’s request; Pollard did not report to work that day and was terminated by letter dated April 1, 2013 for unauthorized absence.
- Post-op follow-ups occurred (wound care, suture removal), and the doctor cleared Pollard to return to work April 18; she applied for unemployment benefits and prevailed at the NY State Department of Labor.
- Pollard sued under the FMLA for interference (entitlement to leave and reinstatement). The district court granted summary judgment to the Hospital, finding Pollard failed to show a “serious health condition”; this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Pollard had a "serious health condition" under FMLA (29 C.F.R. § 825.115(e)(2)) | The growth plus predictable post‑op follow‑up visits constitute "multiple treatments" and would likely cause >3 days incapacity without treatment. | The surgery was the sole treatment for the condition; post‑op wound care treats the wound, not the cured condition, so not "multiple treatments" causing incapacity. | Court: Reversed district court — genuine issue of material fact exists. Post‑op care can be part of treatment; evidence supports a possible >3‑day incapacity; summary judgment for employer on this ground was improper. |
| Whether employee provided required notice for foreseeable planned medical treatment (29 U.S.C. § 2612(e)(2)) | Notice given as soon as practicable (not 30 days) because treatment date was sooner; NY DOL found notice timely. | Employee failed to provide the 30 days’ notice the Hospital required for foreseeable planned leave. | Court: District court did not decide; remanded to determine whether Pollard’s notice was adequate — Hospital’s entitlement to summary judgment depends on this issue. |
| Whether employer was estopped from contesting eligibility because it did not obtain a second medical opinion | Employer’s silence would bar challenge; absence of second opinion should preclude employer's later challenge. | Employer informed Pollard her leave request did not comply and therefore did not mislead; regulation allowing second opinions is permissive. | Held: No estoppel. Regulation is permissive (may require second opinion), and Hospital did not mislead Pollard; administrative unemployment decision has no preclusive effect. |
| Whether district court properly granted summary judgment to Hospital overall | N/A (Pollard seeks reversal) | Hospital argued no genuine issue on serious condition and inadequate notice. | Held: District court erred as to serious‑health‑condition ruling; vacated and remanded for determination of notice question; other rulings affirmed. |
Key Cases Cited
- Donnelly v. Greenburgh Cent. Sch. Dist. No. 7, 691 F.3d 134 (2d Cir. 2012) (standard of review for summary judgment)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (Sup. Ct.) (summary judgment/genuine issue standard)
- Celotex Corp. v. Catrett, 477 U.S. 317 (Sup. Ct.) (party moving for summary judgment must show absence of evidence on essential element)
- Kosakow v. New Rochelle Radiology Assocs., 274 F.3d 706 (2d Cir. 2001) (estoppel where employer remained silent and misled employee about FMLA protection)
- Graziadio v. Culinary Inst. of Am., 817 F.3d 415 (2d Cir. 2016) (elements of an FMLA interference claim)
- Hansen v. Fincantieri Marine Grp., LLC, 763 F.3d 832 (7th Cir. 2014) (lay testimony plus medical testimony can create genuine issue re: incapacity)
- Pollard v. The New York Methodist Hosp., 134 F. Supp. 3d 681 (E.D.N.Y. 2015) (district court opinion granting summary judgment to Hospital on serious health condition ground)