15-3231 Jacintha Pollard v. The New York Methodist Hospital

1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 4 August Term, 2016 5 6 (Argued: September 22, 2016 Decided: June 30, 2017) 7 8 Docket No. 15‐3231 9 _____________________________________ 10 11 Jacintha Pollard, 12 13 Plaintiff‐Appellant, 14 15 v. 16 17 The New York Methodist Hospital, 18 19 Defendant‐Appellee. 20 _____________________________________ 21 22 Before: 23 24 LEVAL and LOHIER, Circuit Judges, and KOELTL, District Judge.1 25 26 27 Plaintiff, who was dismissed from employment by defendant for taking 28 unauthorized leave, appeals from the order of the United States District Court for 29 the Eastern District of New York (Matsumoto, J.) granting summary judgment to 30 the defendant dismissing plaintiff’s suit brought under the Family Medical Leave 31 Act of 1993,

et seq. The Court of Appeals holds that the district 32 court erred in concluding that plaintiff could not, as a matter of law, establish a 33 “serious health condition,” so as to qualify for medical leave. 34 Vacated and remanded.

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

1 1 2 ABDUL K. HASSAN, Abdul Hassan Law 3 Group, PLLC, Queens Village, New York, 4 for Plaintiff‐Appellant. 5 6 TRAYCEE ELLEN KLEIN, Epstein Becker & 7 Green, P.C., New York, New York (Adriana 8 S. Kosovych, on the brief), for Defendant‐ 9 Appellee. 10 11 LEVAL, Circuit Judge:

12 Plaintiff, Jacintha Pollard, who was dismissed from employment by

13 defendant, The New York Methodist Hospital (“Hospital”), for taking

14 unauthorized leave, appeals from an order of the United States District Court for

15 the Eastern District of New York (Matsumoto, J.) granting summary judgment in

16 favor of the Hospital. Pollard brought this action pursuant to the Family and

17 Medical Leave Act of 1993,

et seq. (“FMLA” or the “Act”),

18 alleging the Hospital terminated her illegally for taking medical leave to which

19 she was entitled under the terms of the Act. The district court concluded that the

20 Hospital was entitled to judgment as a matter of law because Pollard could not

21 prove a “serious health condition.” We disagree and therefore vacate the

22 judgment.

23

2 1 Background

2 From September 6, 2000 until April 1, 2013, Pollard was employed by the

3 Hospital as a medical records file clerk, a job requiring that she stand and walk

4 for most of the day. Sometime between January and February 2013, she noticed a

5 growth on her left foot. The growth became increasingly painful and, to a

6 contested degree, limited her ability to perform her job.

7 On March 19, 2013, during her lunch break from work, Pollard visited her

8 podiatrist, Dr. Manoj Sadhnani. Dr. Sadhnani concluded, after the preliminary

9 examination, that the growth was a benign soft tissue mass and offered Pollard

10 two options: surgery or conservative care. Dr. Sadhnani recalled that Pollard

11 rejected the conservative option, to which he responded, “[W]ell, then I have to

12 remove it. [Pollard] said, okay, then do it as soon as you can.” J.A. at 299. Dr.

13 Sadhnani scheduled surgery to remove the growth for March 28, 2013, the next

14 available opening in his surgery calendar.

15 During the March 19 appointment, Pollard requested that Dr. Sadhnani

16 provide a note to establish her entitlement to medical leave. Dr. Sadhnani faxed a

17 note to the Hospital that day, stating that Pollard needed immediate surgery on

18 her left foot, which he had scheduled for March 28, 2013.

3 1 At his deposition, Dr. Sadhnani said the surgery was immediately

2 necessary. He explained that the growth needed urgent care given (1) Pollard’s

3 increasing pain; (2) the obstruction of her function; and (3) the possibility that the

4 growth might be precancerous, which could be better determined by removing

5 it. J.A. at 230‐60. While acknowledging that Pollard’s condition was not life‐

6 threatening, so that the surgery could have been delayed for thirty days, Dr.

7 Sadhnani testified that he would have recommended against such a delay. He

8 acknowledged that more conservative treatments would have been appropriate

9 initially, but in light of Pollard’s rejection of conservative treatment, Dr.

10 Sadhnani opined that the surgery was necessary, and “[he] wanted to do it as

11 soon as [he] could possibly do it to alleviate the pain.” J.A. at 299.

12 Following her March 19 appointment, Pollard returned to work and spoke

13 with Velta Davis—the assistant to the Hospital’s leave specialist, Mabel Del

14 Rio—to request FMLA leave for her March 28 surgery and post‐operative

15 recovery. The Hospital responded by letter dated March 19, 2013, that the FMLA

16 required thirty days’ notice of an employee’s leave when that leave is

17 foreseeable.

4 1 On March 26, 2013, Dr. Sadhnani followed up with the Hospital, certifying

2 on an FMLA medical form that: (1) the growth on Pollard’s left foot was a

3 “serious health condition”; (2) the “treatment[] given as a result of the health

4 condition” would be “surgery on 3/28/13”; and (3) in light of Pollard’s serious

5 health condition, she required medical leave from March 28‐April 18, 2013. J.A. at

6 71‐72. The Hospital’s leave specialist, Del Rio, immediately responded by fax,

7 notifying Dr. Sadhnani that Hospital employees must provide at least thirty

8 days’ notice of their FMLA leave, and requesting that he therefore defer the

9 March 28 surgery to April 19 at the earliest. Pollard did not authorize the

10 Hospital to cancel or change her surgery date.

11 Upon receipt of this notice from the Hospital, Dr. Sadhnani canceled the

12 March 28 surgery appointment. He testified that while the surgery was medically

13 necessary at some point, it did not need to occur on March 28. However, Dr.

14 Sadhnani then, at Pollard’s request, reinstated the March 28 surgery date. At no

15 point did the Hospital request that Pollard submit to an independent medical

16 examination for a second opinion regarding her condition or the medical

17 necessity of her surgery.

5 1 While Pollard continued to work through March 27, 2013, the day before

2 the surgery, the parties dispute the difficulty she experienced during this period.

3 Pollard claims she was in considerable pain, making it difficult to perform her

4 job and rendering surgery necessary as soon as possible. The Hospital contests

5 this characterization, noting that Pollard never exhibited difficulty performing

6 her job, nor asked for an accommodation or otherwise indicated to the Hospital

7 the difficulty she allegedly experienced. Dr. Sadhnani did not prescribe

8 medication for Pollard’s pain in advance of her surgery, nor did Pollard request

9 that Dr. Sadhnani or any other doctor provide pain medication.

10 On March 28, 2013, Dr. Sadhnani performed the surgery. Because of

11 Pollard’s failure to report to work that day, the Hospital terminated her

12 employment by letter dated April 1, 2013.

13 According to the post‐operation report, on March 28, Dr. Sadhnani

14 removed the growth, dressed the wound, and transferred Pollard to a recovery

15 room. He instructed Pollard to wear a surgical shoe on her left foot, and

16 prescribed pain killers and antibiotics.

17 Dr. Sadhnani instructed Pollard to visit him again in one week. As the

18 earliest available appointment on his schedule was nine days after the surgery,

6 1 Pollard returned for a post‐operative evaluation on April 6, 2013, during which

2 Dr. Sadhnani examined the wound and changed the dressing. Dr. Sadhnani

3 requested another follow‐up visit on April 13, 2013, at which time he removed

4 Pollard’s sutures, again changed the dressing, and cleared Pollard to return to

5 work beginning April 18, 2013. Between her surgery date and April 18, 2013,

6 Pollard did not return to work. Dr. Sadhnani testified that he generally preferred

7 that foot‐surgery patients not return to work until their sutures had been

8 removed, which usually required a two week absence. Pollard testified that as of

9 April 18, 2013, she was “ready, willing and able” to resume her employment

10 with the Hospital. J.A. at 46.

11 Because of her termination, Pollard applied to the New York State

12 Department of Labor for unemployment insurance benefits. The Hospital

13 objected, arguing that she was not entitled to benefits because she had been

14 terminated for cause for failing to provide thirty days’ notice in advance of her

15 planned leave. An administrative law judge upheld the Department of Labor’s

16 grant of unemployment benefits to Pollard, reasoning that Pollard notified the

17 Hospital “as soon as was practicable.” J.A. at 85.

18

7 1 Procedural History

2 Pollard brought this suit seeking reinstatement and damages, alleging the

3 Hospital terminated her for taking leave to which she was entitled under the

4 FMLA, and unlawfully interfered with her FMLA rights.

5 At the close of discovery, the Hospital moved for summary judgment,

6 arguing, inter alia, that (1) the growth on Pollard’s left foot did not constitute a

7 “serious health condition” under the FMLA, and (2) Pollard failed to provide the

8 notice the Hospital contends was required by the FMLA.

9 Pollard cross‐moved for summary judgment, arguing that the growth on

10 her left foot constituted a “serious health condition” and that she provided

11 adequate notice. She contended, in addition, that the Hospital was estopped

12 from contesting her FMLA claim because (1) the Hospital never obtained a

13 second independent medical opinion to contradict the opinion that she had a

14 “serious health condition,” and (2) the Hospital’s contention that Pollard’s notice

15 was legally insufficient had been rejected in prior proceedings before the New

16 York State Department of Labor.

17 The district court denied Pollard’s motion for summary judgment and

18 granted summary judgment in favor of the Hospital. The court rejected Pollard’s

8 1 estoppel arguments and held that because “the uncontroverted evidence in the

2 record . . . is insufficient to establish a serious health condition under the FMLA,”

3 Pollard had failed to establish an FMLA claim. Because the court granted

4 judgment to the Hospital on a different ground, it did not address the Hospital’s

5 contention that Pollard’s notice of leave was insufficient.

6 Judgment was entered in favor of the Hospital. Pollard brought this

7 appeal.

8

9 Discussion

10 We review an order granting summary judgment de novo, “assessing

11 whether the district court properly concluded that there was no genuine issue of

12 material fact and that the moving party was entitled to judgment as a matter of

13 law.” Donnelly v. Greenburgh Cent. Sch. Dist. No. 7,

(2d Cir.

14 2012). A genuine issue of material fact exists if “the evidence is such that a

15 reasonable jury could return a verdict for the nonmoving party.” Anderson v.

16 Liberty Lobby, Inc.,

(1986). While “conclusory statements or mere

17 allegations [are] not sufficient to defeat a summary judgment motion,” Davis v.

18 New York,

(2d Cir. 2002), “the court is required to resolve all

9 1 ambiguities and draw all permissible factual inferences in favor of the party

2 against whom summary judgment is sought,” Stern v. Trs. of Columbia Univ., 131

(2d Cir. 1997).

4

5 I. FMLA Eligibility

6 The FMLA provides that “an eligible employee shall be entitled to a total

7 of 12 workweeks of leave during any 12‐month period . . . [b]ecause of a serious

8 health condition.”

(a)(1)(D). An eligible employee, upon return

9 from such leave, is entitled “to be restored by the employer to the position of

10 employment held by the employee when the leave commenced,” or “to be

11 restored to an equivalent position with equivalent employment benefits, pay,

12 and other terms and conditions of employment.”

(a)(1)(A)‐(B).

13 The Act furthermore provides that it is “unlawful for any employer to

14 interfere with, restrain, or deny the exercise of or the attempt to exercise, any

15 right provided under this subchapter.”

(a)(1). To succeed on a

16 claim of FMLA interference, a plaintiff must establish: “1) that she is an eligible

17 employee under the FMLA; 2) that the defendant is an employer as defined by

18 the FMLA; 3) that she was entitled to take leave under the FMLA; 4) that she

10 1 gave [timely] notice to the defendant of her intention to take leave; and 5) that

2 she was denied benefits to which she was entitled under the FMLA.” Graziadio v.

3 Culinary Inst. of Am.,

(2d Cir. 2016).

4 The parties dispute the third and fourth elements: whether Pollard had a

5 serious health condition that qualified her for FMLA leave, and whether she gave

6 timely notice.

7

8 a. Statutory eligibility provisions

9 The Act defines “serious health condition” as including “an illness, injury,

10 impairment, or physical or mental condition that involves . . . continuing

11 treatment by a health care provider.”

(11); see also

825.113(a). The Department of Labor has promulgated regulations setting forth

13 categories of serious health conditions requiring continuing treatment. Pollard

14 contends her case is covered, inter alia, under

(e)(2), which

15 provides,

16 (e) Conditions requiring multiple treatments. Any 17 period of absence to receive multiple treatments 18 (including any period of recovery therefrom) by a 19 health care provider . . . for: . . . 20 (2) A condition that would likely result in a 21 period of incapacity of more than three

11 1 consecutive, full calendar days in the absence of 2 medical intervention or treatment, such as cancer 3 (chemotherapy, radiation, etc.), severe arthritis 4 (physical therapy), or kidney disease (dialysis). 5 6

(e)(2). “Treatment” is defined as including “examinations to

7 determine if a serious health condition exists and evaluations of the condition.”

8

(c). “Incapacity” is defined as “inability to work, attend school

9 or perform other regular daily activities due to serious health condition,

10 treatment therefore, or recovery therefrom.”

(b).

11 The district court concluded that Pollard’s growth could not qualify as a

12 “serious health condition” because it did not require or occasion “multiple

13 treatments.”

(e). In the district court’s view, Pollard received

14 treatment for the growth on her left foot only during the visit in which the

15 growth was surgically removed. The district court stated, “[T]he treatment of

16 [Pollard’s] condition was complete once the growth was removed from her foot.”

17 Pollard v. The New York Methodist Hosp.,

(E.D.N.Y. 2015).

18 Accordingly, the district court reasoned, “[P]laintiff received only one treatment

19 for the growth on her foot: the surgery on March 28, 2013.”

.

20 In the district court’s view, as we understand it, Pollard’s condition in

21 question was the growth on her foot, which was eliminated by the surgery, so

12 1 that her two post‐surgical follow‐up visits, at which the doctor examined the

2 wound, changed the dressing, and removed the sutures, did not constitute

3 treatment of the growth, but rather treatment of the wound created by the

4 surgery. Once the growth had been removed, Pollard’s “condition” no longer

5 existed, and her subsequent visits to the doctor for care of the surgical wound

6 could not qualify as treatment of a condition that had ceased to exist. See

at

7 695‐96.

8 We believe this analysis depended on an excessively narrow concept of

9 “treatment” that is not consistent with the regulation. We see no reason why

10 post‐surgical change of dressing and removal of sutures does not qualify as part

11 of the treatment of the condition that occasioned the surgery—at least if such

12 postoperative treatment was medically predictable from the outset.2 The Hospital

13 made no showing that such follow‐up visits for treatment of Pollard’s wound

14 were not a routinely‐expected, reasonably‐required part of the surgical treatment

15 of the growth. Accordingly, at least for purposes of the Hospital’s motion for

16 summary judgment, Pollard satisfied

(e)’s requirements of

17 “[c]onditions requiring multiple treatments,” and a ”period of absence to receive 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.

13 1 multiple treatments (including any period of recovery therefrom) by a health

2 care provider.”

(e).

3 This course of multiple treatments thus would qualify as a “serious health

4 condition” under the terms of the regulation if the condition “would likely result

5 in a period of incapacity of more than three consecutive, full calendar days in the

6 absence of medical intervention or treatment . . . .”

(e)(2). As to

7 this element of Pollard’s claim, the Hospital failed to show that the growth

8 would not have likely resulted in such a period of incapacity if left untreated.

9 The Hospital contends this was demonstrated by the fact that Pollard worked up

10 to the date of her surgery and testified that she would have continued to work in

11 spite of the pain had Dr. Sadhnani not provided treatment.

12 These arguments are unsuccessful. The fact that Pollard worked up to the

13 date of her surgery, and testified that she would have continued to work, in pain,

14 had she not received surgery on March 28, does not alter the fact that, according

15 to both Pollard and Dr. Sadhnani, the growth and its concomitant pain were a

16 growing (or expanding) condition. On the Hospital’s motion for summary

17 judgment, it needed to show that Pollard lacked evidence “to make a sufficient

18 showing on an essential element of her case with respect to which she [had] the

14 1 burden of proof.” Celotex Corp. v. Catrett,

(1986). The Hospital’s

2 motion undertook to show that Pollard’s condition would not likely have

3 resulted in incapacity had it gone untreated. The Hospital relied on the fact that

4 Pollard worked up to the date of the surgery and said she would have continued

5 to work if no treatment had been given. This evidence, however, did not address,

6 much less demonstrate, how long she could have continued working without

7 treatment had the pain continued to worsen. The Hospital made no showing that

8 the pain, as it worsened, would not have incapacitated Pollard for at least three

9 days.

10 The Hospital further argues that “there is no evidence in the record to

11 support [Pollard’s] contention that the condition . . . would likely result in a

12 period of incapacity of more than three consecutive full calendar days . . . .” App.

13 Ct. Dkt. 54 at 2 (emphasis omitted). Pollard, however, made a showing sufficient

14 to give rise to a “genuine issue” as to whether her condition would have resulted

15 in a period of incapacity of at least three consecutive days. She testified that the

16 lesion was growing and painful and affected her ability to walk, which was

17 essential for her occupation. This testimony was supported by evidence from her

18 doctor about the need for urgent treatment to alleviate the pain. This evidence

15 1 was sufficient to raise an issue of fact as to whether Pollard’s condition would

2 have likely resulted in a period of incapacity of at least three consecutive days.

3 Cf. Hansen v. Fincantieri Marine Grp., LLC,

, 838‐39 (7th Cir. 2014)

4 (noting that several courts of appeals have held either that “lay testimony

5 combined with medical testimony raises a genuine issue of material fact as to

6 incapacity” or that “lay testimony alone is sufficient to create a genuine issue as

7 to incapacity”). Accordingly, the Hospital failed to show that it was “entitled to

8 judgment as a matter of law” on the ground that Pollard did not have a serious

9 health condition under

(e)(2).

10 For these reasons, Pollard was entitled to the denial of the Hospital’s

11 motion with respect to

(e)(2), unless the Hospital prevailed in

12 showing that Pollard failed to give the required notice before going on leave. The

13 notice required before an employee may take FMLA leave “because of a serious

14 health condition,”

(a)(1)(D), is governed by

(e)(2),

15 which provides:

16 (2) Duties of employee In any case in which the 17 necessity for leave [for a serious health condition] . . . is 18 foreseeable based on planned medical treatment, the 19 employee— 20 (A) shall make a reasonable effort to schedule the 21 treatment so as not to disrupt unduly the

16 1 operations of the employer, subject to the 2 approval of the health care provider of the 3 employee . . . ; and 4 (B) shall provide the employer with not less than 5 30 days’ notice, before the date the leave is to 6 begin, of the employee’s intention to take leave 7 under such subparagraph, except that if the date 8 of the treatment requires leave to begin in less 9 than 30 days, the employee shall provide such 10 notice as is practicable. 11 12

(e)(2).

13 The Hospital took the position in the district court that Pollard was

14 compelled under this provision to provide at least thirty days’ notice of her

15 intention to take leave. Pollard contends that because “the date of the treatment

16 require[d] leave to begin in less than 30 days,” she was required to provide only

17 “such notice as [was] practicable.”

18 Because the district court granted summary judgment to the Hospital on a

19 different ground, it made no ruling on the timeliness of Pollard’s notice. Because

20 we rule that the Hospital otherwise failed to show entitlement to summary

21 judgment on Pollard’s right to leave under

(e)(2), the

22 Hospital’s entitlement to summary judgment turns on the adequacy of Pollard’s

23 notice. We remand to the district court for determination of this question.

24

17 1 II. Estoppel

2 Pollard contends the Hospital is estopped, as a matter of law, from

3 challenging her entitlement to FMLA leave because (1) the Hospital never

4 obtained a second independent medical opinion to contradict whether she had a

5 “serious health condition,” and (2) the Hospital’s argument that Pollard failed to

6 give legally adequate notice was already considered and rejected by the New

7 York State Department of Labor when it granted Pollard unemployment benefits.

8 We disagree with Pollard for substantially the same reasons as the district court.

9 Pollard’s first argument relies on

(b)(1), which states, in

10 relevant part:

11 An employer who has reason to doubt the validity of a 12 medical certification may require the employee to 13 obtain a second opinion at the employer’s expense. 14 Pending receipt of the second . . . medical opinion, the 15 employee is provisionally entitled to the benefits of the 16 [FMLA] . . . . 17 18

(b)(1).

19 Pollard interprets this language as requiring an employer to obtain a

20 second medical opinion or else forgo any future opportunity to contest the

21 validity of the employee’s original FMLA certification. But the plain language of

22 the regulation is permissive, not mandatory.

(“An employer . . . may require”

18 1 (emphasis added)). While the Hospital had the right to obtain a second opinion,

2 the regulation does not require the Hospital to have exercised that right before

3 contesting the validity of Dr. Sadhnani’s certification indicating the existence of

4 an FMLA‐qualifying condition.

5 In support of her theory, Pollard also cites Kosakow v. New Rochelle

6 Radiology Associates,

(2d Cir. 2001). In Kosakow, we held that an

7 employer was estopped from challenging an employee’s eligibility for FMLA

8 leave because the employer, after the employee announced an intention to take

9 FMLA leave, remained silent, thereby misleading the employee into believing

10 that she was protected by the FMLA.

at 725‐26. In Pollard’s case, it is

11 undisputed that the Hospital did not remain silent. Upon learning of Pollard’s

12 FMLA leave request, the Hospital informed Pollard by letter dated March 19,

13 2013, that her leave request was not FMLA‐compliant. Accordingly, the Hospital

14 did not mislead Pollard. Kosakow does not support Pollard’s arguments.

15 Nor is the Hospital estopped from challenging whether Pollard provided

16 adequate notice of her FMLA leave. While an administrative law judge, in

17 upholding the New York State Department of Labor’s grant of unemployment

18 insurance benefits to Pollard, did find that Pollard notified the Hospital of her

19 1 March 28 surgery “as soon as was practicable,” J.A. at 85, New York State Labor

2 Law section 623(2) provides that unemployment insurance decisions do not have

3 preclusive effect in subsequent litigation (subject to certain exceptions that are

4 not applicable here). See

(2) (“No finding of fact or law

5 contained in a decision rendered pursuant to this article by a referee, the appeal

6 board or a court shall preclude the litigation of any issue of fact or law in any

7 subsequent action or proceeding . . . .”).

8 We have considered Pollard’s remaining arguments on appeal and find

9 them without merit.

10

11 Conclusion

12 We therefore conclude that the district court (1) erred in holding that

13 Pollard cannot, as a matter of law, establish a “serious health condition” under 29

(e)(2), but (2) correctly concluded that the Hospital is not

15 estopped from challenging whether Pollard established the elements of her

16 FMLA interference claim. To determine whether the Hospital is entitled to

17 summary judgment with respect to Pollard’s claim under

825.115(e)(2), the district court must rule on whether Pollard gave adequate

20 1 notice as required by

(e)(2). In all other respects, the court’s

2 rulings challenged on appeal are affirmed.

3 The judgment of the district court is vacated, and the case remanded for

4 further proceedings.

21