*1 15-3231

Jacintha Pollard v. The New York Methodist Hospital

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2016

(Argued: September 2016 Decided: June 30, 2017) Docket No. 15 ‐ 3231

_____________________________________

Jacintha Pollard,

Plaintiff ‐ Appellant ,

The New York Methodist Hospital,

Defendant Appellee _____________________________________

Before:

LEVAL LOHIER, Circuit Judges KOELTL, District Judge Plaintiff, who dismissed from employment defendant for taking unauthorized leave, appeals order United States District Court Eastern District (Matsumoto, J. ) granting defendant dismissing plaintiff’s suit brought Family Medical Leave Act U.S.C. et seq. Court Appeals holds court erred concluding plaintiff could not, matter law, establish condition,” so qualify leave.

Vacated remanded.

A BDUL K. H ASSAN , Abdul Hassan Law Group, PLLC, Queens Village, New York, for Plaintiff Appellant T RAYCEE E LLEN K LEIN Epstein Becker & Green, P.C., New York, New York (Adriana S. Kosovych, brief ), f or Defendant ‐ Appellee

LEVAL, Circuit Judge :

Plaintiff, Jacintha Pollard, who dismissed from employment defendant, The New York Methodist Hospital (“Hospital”), for taking unauthorized leave, appeals order United States District Court Eastern District (Matsumoto, J. ) granting judgment favor Hospital. brought action pursuant Family Medical Leave Act U.S.C. et seq. (“FMLA” “Act”), alleging terminated illegally taking entitled terms Act. court concluded matter law because could prove condition.” We disagree therefore vacate judgment.

Background

From September 6, until April 1, 2013, Pollard employed as a medical records file clerk, a job requiring that she stand walk for most day. Sometime between January February 2013, noticed a growth her left foot. growth became increasingly painful and, to contested degree, limited her ability to perform her job.

On March 19, 2013, during lunch break work, Pollard visited her podiatrist, Dr. Manoj Sadhnani. Dr. Sadhnani concluded, after preliminary examination, growth benign soft tissue mass offered Pollard two options: surgery conservative care. Dr. Sadhnani recalled rejected conservative option, which he responded, “[W]ell, then I have remove it. [Pollard] said, okay, then do soon you can.” J.A. 299. Dr. Sadhnani scheduled surgery remove growth March 2013, next available opening his surgery calendar.

During March appointment, requested Dr. Sadhnani provide note establish entitlement leave. Dr. Sadhnani faxed note day, stating needed immediate left foot, he scheduled March 2013.

At his deposition, Dr. Sadhnani said surgery immediately necessary. He explained that growth needed urgent care given (1) Pollard’s increasing pain; (2) obstruction function; and (3) possibility that growth might be precancerous, could be better determined by removing it. J.A. at ‐ 60. While acknowledging that life ‐ threatening, so that surgery could have been delayed thirty days, Dr. Sadhnani testified he would have recommended against such delay. He acknowledged more conservative treatments would have been appropriate initially, but light rejection conservative treatment, Dr. Sadhnani opined surgery necessary, “[he] wanted do it soon [he] could possibly do alleviate pain.” J.A. 299.

Following March appointment, returned work spoke Velta Davis—the assistant leave specialist, Mabel Del Rio—to request FMLA leave March post operative recovery. responded letter dated March thirty days’ employee’s when leave foreseeable.

On March 2013, Dr. Sadhnani followed up Hospital, certifying on an FMLA medical form that: (1) growth on Pollard’s left foot health condition”; (2) “treatment[] given result health condition” would be “surgery 3/28/13”; (3) light serious condition, medical leave from March 28 ‐ April 2013. J.A. at 71 72. specialist, Del Rio, immediately responded fax, notifying Dr. Sadhnani Hospital employees must provide at least thirty days’ notice their leave, requesting he therefore defer March surgery April at earliest. did authorize cancel or change surgery date.

Upon receipt Hospital, Dr. Sadhnani canceled March surgery appointment. He testified while surgery medically necessary at some point, did need occur March 28. However, Dr. Sadhnani then, request, reinstated March date. At no point request submit independent medical examination second opinion regarding necessity surgery.

While Pollard continued to work through March 27, 2013, day before surgery, parties dispute difficulty she experienced during this period. Pollard claims she in considerable pain, making difficult to perform her job and rendering necessary soon possible. Hospital contests characterization, noting Pollard never exhibited difficulty performing her job, nor asked accommodation or otherwise indicated to difficulty allegedly experienced. Dr. Sadhnani did prescribe medication pain advance surgery, nor Pollard request Dr. Sadhnani any other doctor provide pain medication.

On March 28, 2013, Dr. Sadhnani performed surgery. Because failure report work day, terminated employment letter dated April 2013.

According post operation report, on March Dr. Sadhnani removed growth, dressed wound, transferred recovery room. He instructed wear surgical shoe left foot, prescribed pain killers antibiotics.

Dr. Sadhnani instructed visit him again one week. As earliest available appointment his schedule nine days after surgery, *7 Pollard returned for post ‐ operative evaluation April 6, 2013, during which Dr. Sadhnani examined wound and changed dressing. Dr. Sadhnani requested another follow ‐ up visit April 13, 2013, at which time he removed sutures, again changed dressing, cleared Pollard to return to work beginning April 18, 2013. Between her surgery date April 18, 2013, Pollard not return to work. Dr. Sadhnani testified he generally preferred foot patients return work until their sutures had been removed, usually two week absence. testified April she “ready, willing able” resume employment Hospital. J.A. at 46.

Because termination, applied State Department Labor for unemployment insurance benefits. objected, arguing benefits because she been terminated cause failing provide thirty days’ advance planned leave. An administrative law judge upheld Department Labor’s grant unemployment benefits Pollard, reasoning notified “as soon practicable.” J.A. 85.

Procedural History brought suit seeking reinstatement and damages, alleging the

Hospital terminated her for taking she was under the FMLA, and unlawfully interfered FMLA rights.

At close discovery, the Hospital moved for summary judgment, arguing, inter alia that (1) growth Pollard’s left foot constitute “serious health condition” FMLA, and (2) failed provide notice Hospital contends FMLA. cross moved summary judgment, arguing growth left foot constituted “serious health condition” she provided

adequate notice. She contended, in addition, estopped contesting claim because (1) never obtained second independent opinion contradict opinion had condition,” (2) contention Pollard’s legally insufficient been rejected prior proceedings before State Department Labor.

The court denied motion summary judgment granted favor Hospital. court rejected *9 estoppel arguments held because “the uncontroverted evidence record is insufficient establish a serious FMLA,” failed establish an claim. Because court granted judgment a different ground, address contention was insufficient.

Judgment entered favor Hospital. brought appeal.

Discussion

We review order granting summary judgment de novo, “assessing whether court properly concluded there no genuine issue material fact moving party judgment matter law.” Donnelly v. Greenburgh Cent. Sch. Dist. No. 7 , 691 F.3d 134, 141 (2d Cir. 2012). A genuine issue material fact exists if “the evidence is such reasonable jury could return verdict nonmoving party.” Anderson v. Liberty Lobby, Inc. , U.S. (1986). While “conclusory statements mere allegations [are] sufficient defeat motion,” Davis v. F.3d (2d Cir. 2002), “the court resolve all *10 ambiguities draw all permissible factual inferences favor of party against whom is sought,” Stern v. Trs. of Columbia Univ. 131 F.3d 312 (2d Cir. 1997).

I. FMLA Eligibility

The FMLA provides that “an eligible employee shall be entitled total workweeks leave during any 12 ‐ month period [b]ecause of serious condition.” U.S.C. § 2612(a)(1)(D). An eligible employee, upon return such leave, is entitled “to be restored by employer position employment held by employee when leave commenced,” or “to be restored an equivalent position equivalent employment benefits, pay, other terms conditions employment.” U.S.C. § 2614(a)(1)(A) (B). Act furthermore provides is “unlawful any employer interfere with, restrain, deny exercise or attempt exercise, any right provided under subchapter.” U.S.C. 2615(a)(1). To succeed claim interference, plaintiff must establish: “1) she is an eligible employee under FMLA; 2) defendant employer defined FMLA; 3) take FMLA; 4) she *11 gave [timely] defendant of intention take leave; 5) she denied benefits which she under FMLA.” Graziadio v. Culinary Inst. of Am. , F.3d 424 (2d Cir. 2016).

The parties dispute third fourth elements: whether serious health condition qualified leave, whether gave timely notice.

a. Statutory eligibility provisions The Act defines health condition” including “an illness, injury, impairment, physical or mental condition involves . . . continuing treatment by health care provider.” U.S.C. § 2611(11); see also C.F.R. § 825.113(a). Department Labor has promulgated regulations setting forth categories serious health conditions requiring continuing treatment. contends case covered, inter alia C.F.R. 825.115(e)(2), provides,

(e) Conditions requiring multiple treatments. Any period absence receive multiple treatments (including any period recovery therefrom) care provider for: . . . (2) A would likely result period incapacity more than three *12 consecutive, full calendar days in absence intervention or treatment, such as cancer (chemotherapy, radiation, etc.), severe arthritis (physical therapy), or kidney disease (dialysis).

29 C.F.R. § 825.115(e)(2). “Treatment” is defined as including “examinations determine if serious health condition exists evaluations condition.” 29 C.F.R. § 825.113(c). “Incapacity” defined as “inability work, attend school or perform other regular daily activities due serious health condition, treatment therefore, or recovery therefrom.” C.F.R. § 825.113(b).

The district court concluded growth could qualify condition” because require occasion “multiple treatments.” C.F.R. 825.115(e). In district court’s view, received treatment growth on her left foot only during visit which growth was surgically removed. The district court stated, “[T]he treatment [Pollard’s] condition complete once growth was removed foot.” v. Methodist Hosp. F. Supp. 3d (E.D.N.Y. 2015). Accordingly, district court reasoned, “[P]laintiff received only one treatment growth foot: on March 2013.” Id. 696.

In court’s view, we understand it, question growth foot, eliminated surgery, so *13 two post ‐ surgical follow ‐ up visits, at the doctor examined the wound, changed the dressing, and removed the sutures, not constitute treatment of growth, but rather treatment of wound created the surgery. Once growth had been removed, “condition” no longer existed, subsequent visits doctor for care of surgical wound could not qualify treatment of condition ceased exist. See id. at ‐ 96.

We believe analysis depended excessively narrow concept of “treatment” not consistent regulation. We see no reason why post ‐ surgical change of dressing removal of sutures does qualify part of treatment of occasioned surgery—at least if such postoperative treatment medically predictable outset. made no showing such follow ‐ up visits for treatment wound were routinely expected, reasonably ‐ part surgical treatment growth. Accordingly, least purposes motion judgment, satisfied C.F.R. 825.115(e)’s requirements “[c]onditions requiring multiple treatments,” ”period absence receive *14 multiple treatments (including any period of recovery therefrom) by a health care provider.” C.F.R. § 825.115(e).

This course of multiple treatments thus would qualify a condition” terms of regulation if the “would likely result in period of incapacity of more than three consecutive, full calendar days in absence of intervention treatment .” C.F.R. 825.115(e)(2). As to this element claim, failed to show that growth would not have likely resulted in such period incapacity if left untreated. The contends demonstrated fact Pollard worked up date surgery and testified she would have continued to work spite pain had Dr. Sadhnani not provided treatment.

These arguments are unsuccessful. fact worked up date surgery, testified she would have continued work, pain, she received March does alter fact that, according both Dr. Sadhnani, growth its concomitant pain were growing (or expanding) condition. On motion judgment, needed show lacked evidence “to make sufficient showing essential element case respect [had] *15 burden proof.” Celotex Corp. v. Catrett U.S. (1986). The motion undertook to show that condition would not likely have resulted in incapacity had it gone untreated. The Hospital relied fact worked up to date said she would have continued to work if no treatment had been given. This evidence, however, address, much less demonstrate, how long could have continued working without treatment pain continued to worsen. The made no showing pain, worsened, would have incapacitated for at least three days. further argues “there no evidence in record

support [Pollard’s] contention condition . . . would likely result period incapacity more than three consecutive full calendar days .” App. Ct. Dkt. at (emphasis omitted). Pollard, however, made showing sufficient give rise “genuine issue” whether her would have resulted period incapacity least three consecutive days. She testified lesion growing painful affected ability walk, essential occupation. This testimony supported evidence doctor about need urgent treatment alleviate pain. This evidence *16 sufficient to raise an issue of fact as to whether condition would have likely resulted in a period of incapacity of least three consecutive days. Cf. Hansen v. Fincantieri Marine Grp., LLC 763 F.3d 838 39 (7th Cir. 2014) (noting several courts appeals have held either that “lay testimony combined with medical testimony raises a genuine issue material fact as to incapacity” “lay testimony alone is sufficient to create a genuine issue as incapacity”). Accordingly, failed to show “entitled to matter law” on ground have a serious health C.F.R. § 825.115(e)(2).

For these reasons, denial motion respect C.F.R. § 825.115(e)(2), unless prevailed showing failed give required notice before going leave. before employee may take leave “because serious health condition,” U.S.C. 2612(a)(1)(D), is governed U.S.C. § 2612(e)(2), which provides:

(2) Duties employee In any case necessity [for serious condition] foreseeable based planned treatment, employee—

(A) shall make reasonable effort schedule treatment so disrupt unduly

operations of the employer, subject to the

approval of the care provider of the employee . ;

(B) shall provide the employer less than 30 days’ notice, before the date the leave is to begin, of the employee’s intention to take leave under such subparagraph, except if date treatment requires leave to begin in less than days, employee shall provide such notice practicable. U.S.C. § 2612(e)(2). Hospital took position district court

compelled under this provision to provide least thirty days’ notice intention to take leave. contends because “the date treatment require[d] leave to begin less than days,” to provide only “such [was] practicable.” Id

Because district court granted summary judgment on different ground, made no ruling on timeliness Pollard’s notice. Because we rule otherwise failed show entitlement summary judgment right C.F.R. 825.115(e)(2), entitlement turns adequacy notice. We remand court determination question.

II. Estoppel

Pollard contends the is estopped, as a matter of law, challenging entitlement to FMLA because (1) the never obtained second independent medical opinion to contradict whether a condition,” (2) the argument Pollard failed give legally adequate already considered rejected the State Department Labor when granted unemployment benefits. We disagree substantially same reasons court. first argument relies C.F.R. § 825.307(b)(1), states, relevant part:

An employer who has reason doubt validity medical certification may require employee obtain second opinion employer’s expense.

Pending receipt second . . . medical opinion, employee is provisionally benefits [FMLA] . . . . C.F.R. 825.307(b)(1). interprets language requiring employer obtain

second opinion else forgo any future opportunity contest validity employee’s original certification. But plain language regulation permissive, mandatory. Id. (“An employer may require” *19 (emphasis added)). While the Hospital the right obtain second opinion, regulation does not require the Hospital have exercised that right before contesting validity of Dr. Sadhnani’s certification indicating existence of an FMLA ‐ qualifying condition.

In support her theory, Pollard also cites Kosakow v. New Rochelle Radiology Associates F.3d (2d Cir. 2001). In Kosakow , we held an employer estopped from challenging an employee’s eligibility FMLA leave because employer, after employee announced an intention take FMLA leave, remained silent, thereby misleading employee into believing protected by FMLA. Id. ‐ 26. In Pollard’s case, is undisputed Hospital did not remain silent. Upon learning FMLA leave request, Hospital informed letter dated March request not FMLA compliant. Accordingly, Hospital did mislead Pollard. Kosakow does support arguments.

Nor estopped challenging whether provided adequate leave. While administrative law judge, upholding State Department Labor’s grant unemployment insurance benefits Pollard, find notified *20 March “as soon practicable,” J.A. State Labor Law section 623(2) provides unemployment insurance decisions do not have preclusive effect in subsequent litigation (subject certain exceptions are applicable here). See N.Y. L AB . L AW § 623(2) (“No finding fact or law contained in decision rendered pursuant article a referee, appeal board or court shall preclude litigation any issue fact or law any subsequent action proceeding .”).

We have considered remaining arguments appeal find them without merit.

Conclusion

We therefore conclude district court (1) erred holding cannot, matter law, establish condition” under C.F.R. § 825.115(e)(2), but (2) correctly concluded is estopped challenging whether established elements interference claim. To determine whether respect claim C.F.R. 825.115(e)(2), court must rule whether gave adequate *21 1 U.S.C. 2612(e)(2). In all other respects, court’s 2 rulings challenged appeal are affirmed.

3 court vacated, case remanded 4 further proceedings.

[1] Judge John G. Koeltl, of the United States District Court for the Southern District of New York, sitting by designation.

[2] A different conclusion might conceivably follow if the surgery did not predictably call for follow-up, but instead, the need for subsequent visits arose from unexpected complications caused by the surgery.