Kosakow v. New Rochelle Radiology Assoc.

• Decision Date: 01 August 2000
• Docket Number: PLAINTIFF-APPELLANT,Docket No. 00-7392,DEFENDANT-APPELLEE
• Citation: 274 F.3d 706
• Parties: (2nd Cir. 2001) NANCY KOSAKOW,, v. NEW ROCHELLE RADIOLOGY ASSOCIATES, P.C.,
• Court: U.S. Court of Appeals — Second Circuit

Page 706

274 F.3d 706 (2nd Cir. 2001)

NANCY KOSAKOW, PLAINTIFF-APPELLANT, v. NEW ROCHELLE RADIOLOGY ASSOCIATES, P.C., DEFENDANT-APPELLEE.

Docket No. 00-7392

August Term, 2000

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: April 4, 2001

Decided December 20, 2001

Appeal from two orders of the United States District Court for the Southern District of New York (McMahon, J.) entered on March 13, 2000, and September 6, 2000, granting summary judgment in favor of Defendant- Appellee, New Rochelle Radiology Associates, P.C.

The judgment of the district court is vacated and remanded. [Copyrighted Material Omitted]

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[Copyrighted Material Omitted] William D. Frumkin, Esq. Sapir & Frumkin Llp 399 Knollwood Road, Suite 310 White Plans, NY for Plaintiff-Appellant.

Jordy Rabinowitz, Esq. Garfunkel, Wild & Travis, P.C. 111 Great Neck Road Great Neck, NY for Defendant-Appellee.

Henry L. Solano, Esq. Solicitor of Labor U.S. Department OF Labor 200 Constitution Ave., NW Room N-2700 Washington, DC 20210. (Allen H. Feldman, Nathaniel I. Spiller, and Elizabeth Hopkins on the brief) for Amicus Curiae United States Supporting Plaintiff-Appellant.

Eugene Prosnitz, Esq. 1069 Allerton Ave. Bronx, NY 10469 for Amicus Curiae New York Chapter of the National Employment Lawyers' Association.

Ann Elizabeth Reesman, Esq. McGUINESS Norris & Williams Llp 1015 Fifteenth Street, NW Suite 1200 Washington, DC 20005 for Amicus Curiae Equal Employment Advisory Council in Support of Defendant-Appellee.

Before: Cabranes and Kearse, Circuit Judges, and Trager, District Judge.^*

Trager, District Judge

Plaintiff-Appellant, Nancy Kosakow ("Kosakow"), brings this appeal from the grant of summary judgment in favor of Defendant-Appellee, New Rochelle Radiology Associates, P.C. ("New Rochelle"). Kosakow brought this action pursuant to the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. (the "FMLA"), alleging that New Rochelle, her employer, failed to reinstate her to her position after she had taken protected leave under the FMLA. Kosakow further alleges that she did not receive severance pay to which she was entitled, in violation of the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. ("ERISA").

Background

(1)

Nancy Kosakow was employed by New Rochelle as a part-time "radiological technologist" from July of 1978 until March of 1997. In June of 1996, Kosakow learned that she had a possibly cancerous cystic mass in her left ovary. In November of 1996, after learning that the mass had not diminished in size, she scheduled surgery for January 14, 1997, to remove it. Shortly after this surgery was scheduled, Kosakow notified her manager, Gale Gluss, and was granted medical leave for the operation, as well as time for recovery after the surgery.

Kosakow continued to work through January 10, 1997. The surgery took place on January 14, 1997, as scheduled, and Kosakow remained on medical leave thereafter. In or about mid-Febrary of 1997, Kosakow informed New Rochelle that she would be medically cleared to return to work on March 17, 1997. On March 6, 1997, however, Gluss informed Kosakow that her position had been eliminated as a result of downsizing, and, consequently, Kosakow had been terminated.

Feeling that she had been terminated due to her medical problems, Kosakow filed a pro se discrimination charge with the New York State Division of Human Rights (the "DHR"), alleging violations of the New York Human Rights Law ("NYHRL"). In the complaint, Kosakow also alleged that New Rochelle had violated the Americans with Disabilities Act (the "ADA"), and authorized the DHR to accept the complaint on behalf of the Equal Employment Opportunity Commission ("EEOC"). New Rochelle responded by filing a Narrative Reply with the DHR, to which Kosakow filed a Rebuttal. On August 24, 1998, after an investigation of the matter, DHR issued its determination that there was "no probable cause to believe that [New Rochelle] has engaged in or is engaging in the unlawful discriminatory practice complained of." In so finding, DHR credited New Rochelle's explanation that Kosakow's position was eliminated for legitimate business reasons. This finding was subsequently adopted by the EEOC without independent review, and the EEOC issued Kosakow a right-to-sue letter on October 13, 1998.

Kosakow did not seek review of this determination in state court, as she was entitled to under Article 78 of New York Civil Practice Law. See N.Y. C.P.L.R. § 7801 (McKinney's 1994). Nor did she pursue her claims under the ADA in federal court within the ninety days required by the statute. See 42 U.S.C. §§ 12117(a) (adopting Title VII limitations period for the ADA), 2000e-5(f) (requiring that action must be brought within ninety days of notification of right to sue). Instead, after this time had expired, Kosakow retained counsel and filed the present suit, alleging that New Rochelle's actions violated her rights under the FMLA and ERISA.

(2)

The district court granted New Rochelle's motion for summary judgment as to Kosakow's FMLA claim on March 13, 2000. The court initially held that Kosakow did not meet the minimum hours required to be an "eligible employee" under the FMLA, but had raised a genuine issue of material fact as to whether New Rochelle was estopped from raising an eligibility defense due to its failure to post the required FMLA eligibility notice. Kosakow v. New Rochelle Radiology Assocs., P.C., 88 F. Supp. 2d 199, 205-09 (S.D.N.Y. 2000). Nonetheless, the court held that Kosakow was collaterally estopped from pursuing an FMLA claim as a result of DHR's determination that there was no probable cause that New Rochelle acted for discriminatory reasons. Id. at 209-14.

With respect to Kosakow's ERISA claim, the district court found that New Rochelle had a "plan" that was covered by ERISA, but that the plan administrator had not officially determined whether she was entitled to severance pay. Id. at 216. Consequently, the district court remanded Kosakow's ERISA claim to the plan administrator so that determination could be made. Id. After the remand, the plan administrator denied Kosakow severance pay, determining that she had not been "terminated," as defined by the plan, and, even if she were, she was not entitled to severance pay. That determination was upheld in part by a subsequent Memorandum Decision by the district court. Kosakow v. New Rochelle Radiology Assocs., P.C., 116 F. Supp. 2d 400 (S.D.N.Y. 2000). Kosakow now appeals from the district court's original determination that she did not satisfy the minimum hours eligibility requirement under the FMLA, as well as the holding that she was collaterally estopped from bringing her FMLA claim. In addition, Kosakow appeals from the district court's subsequent holding that she is not entitled to severance pay.

As alternative bases for affirmance, appellee New Rochelle challenges several determinations by the district court, most of which, if New Rochelle is correct, would require dismissal of one of Kosakow's claims. First, it challenges the court's holding that questions of fact exist with respect to the start date of Kosakow's leave and whether the hours Kosakow spent at various continuing education programs count towards her FMLA eligibility. Next, New Rochelle disputes the district court's holding that Kosakow may state a claim under the FMLA, regardless of whether she is "eligible," because New Rochelle failed to post required FMLA notices. Finally, New Rochelle contends that the district court erred in determining that Kosakow's employee handbook created a "plan" under ERISA which potentially could have entitled Kosakow to severance pay.

Kosakow argues that because New Rochelle failed to file a notice of cross-appeal, it has no right to attack the district court's decision on these, or any other, grounds. Although it has long been the law that an appellee who has failed to file a notice of cross-appeal cannot "attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary." Burgo v. Gen. Dynamics Corp., 122 F.3d 140, 145 (2d Cir. 1997) (quoting Morley Constr. Co. v. Maryland Cas. Co., 300 U.S. 185, 191, 57 S. Ct. 325, 328 (1937) (Cardozo, J.)), in the present case New Rochelle is not "attacking the decree" of the district court. Indeed, the district court granted summary judgment in favor of New Rochelle with respect to both of Kosakow's claims. Thus, what New Rochelle is arguing is that, even if the district court is reversed on one or more of the grounds urged by Kosakow, there are alternative grounds upon which the grant of summary judgment can be affirmed. In such a situation, because an appellee can seek to sustain a judgment on any ground with support in the record, it is not necessary that the appellee file a notice of cross-appeal. See Int'l Ore & Fertilizer Corp. v. SGS Control Servs., Inc., 38 F.3d 1279, 1285-86 (2d Cir. 1994).

Discussion

(1) FMLA Eligibility

In order to be eligible for protection under the FMLA, an employee must work 1250 hours in the twelve months prior to the beginning of his or her medical leave. 29 U.S.C. § 2611(2)(A). Kosakow recorded her hours on timesheets, which she signed. There is no dispute that Kosakow's timesheets reflect that she was only paid for 1,186.5 hours during the twelve months prior to her leave, assuming that the first day of her leave is deemed to be the day of her operation, January 14, 1997. The district court held that questions of fact existed, however, concerning the starting date of Kosakow's leave and whether hours Kosakow spent at continuing education seminars (which were not included on her timesheets) could be counted toward her hours worked. Kosakow, 88 F. Supp. 2d at 206-08. Accordingly, drawing all inferences in favor of Kosakow, the district...