Floto v. Manhattan Woods Golf Enterprises, LLC

• Decision Date: 02 July 2003
• Docket Number: No. 01 CIV. 5383(CM).,01 CIV. 5383(CM).
• Citation: 270 F.Supp.2d 401
• Parties: Anthony FIOTO, Jr., Plaintiff, v. MANHATTAN WOODS GOLF ENTEPRISES, LLC, Manhattan Woods Golf Club, LLC and Kang Lee a/k/a Ken Lee, Defendants.
• Court: U.S. District Court — Southern District of New York

270 F.Supp.2d 401

Anthony FIOTO, Jr., Plaintiff, v. MANHATTAN WOODS GOLF ENTEPRISES, LLC, Manhattan Woods Golf Club, LLC and Kang Lee a/k/a Ken Lee, Defendants.

No. 01 CIV. 5383(CM).

United States District Court, S.D. New York.

July 2, 2003.

Todd D. Muhlstock, Mergel, Tubman & Grossman, New York City, for Anthony Fioto, Jr., plaintiff.

Chris P. Termini, McCabe, Collins, McGeough & Fowler, L.L.P., Mineola, NY, for Manhattan Woods Enterprises LLC, Manhattan Woods GC, Manhattan Woods Golf Club, LLC, E^ang Lee, Dr. aka Ken Lee, defendants.

DECISION AND ORDER GRANTING DEFENDANTS' MOTION FOR JUDGMENT AS A MATTER OF LAW, DISMISSING THE MOTION FOR REDUCTION OF DAMAGES AS MOOT, AND DENYING MTION FOR JUDGMENT AS A MATER OF LAW ON PLAINTIFF'S CLAIM FOR "BREECH" OF COTRACT

MCMAHON, District Judge.

On April 4, 2003, after a three day trial, a jury returned a verdict in favor of plaintiff on two claims against defendants. Count I alleges that defendants violated the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2612(a)(1)(C), by firing plaintiff from his job as sales manager at Manhattan Woods Golf Club after he took a day off work to be present while his dying mother underwent emergency brain surgery. Count II alleges a breach of contract growing out of the same conduct. The jury awarded plaintiff damages in the amount of $126,825.00 for defendants' violation of FMLA,¹ and in the amount of $74,375.00 for their breach of contract.

Defendants—who moved to dismiss the FMLA claim at the close of plaintiffs case (a motion on which I reserved decision)— now renew their motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(b), on the ground that plaintiff failed to adduce any evidence that he qualified for FMLA leave. In the alternative, defendants seek reduction in the amount of FMLA damages awarded by the jury, arguing that the damages awarded to compensate plaintiff for the FMLA violation can not, as a matter of logic, be any greater than the damages awarded for defendants' breach of his employment contract. Defendants also ask the court to overturn the verdict in plaintiffs favor on his "breech" of contract claim.

For the following reasons, I grant the motion for judgment as a matter of law and dismiss Count I of the indictment. The motion to reduce damages thus becomes moot. The motion is denied insofar as it addresses the "breech" of contract claim.

Standard of Review

Federal Rule of Civil Procedure 50 provides that a district court can order a new trial or direct the entry of a judgment as a matter of law if a jury returns a verdict for which there is not a legally sufficient evidentiary basis. Fed.R.Civ.P. 50(b). "[T]he same standard that applies to a pretrial motion for summary judgment pursuant to Fed.R.Civ.P. 56 also applies to motions for judgments as a matter of law during or after trial pursuant to Rule 50." Piesco v. Koch, 12 F.3d 332, 341 (2d Cir. 1993); see also This is Me, Inc., v. Taylor, 157 F.3d 139, 142 (2d Cir.1998) (noting that adoption of the term "judgment as a matter of law" was intended to call attention to the close relationship between Rules 50 and 56). Thus, a court may not grant a motion for a judgment as a matter of law unless "the evidence is such that, without weighing the credibility of witnesses or otherwise considering the weigh of the evidence, there can be but one conclusion as to the verdict that reasonable [persons] could have reached." Cruz v. Local Union No. 3, Int'l Bhd. of Elec. Workers, 34 F.3d 1148, 1154-55 (2d Cir. 1994) (quoting Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir.1970)). In other words, the evidence must be such that "a reasonable juror would have been compelled to accept the view of the moving party." Piesco, 12 F.3d at 343.

FMLA Leave and the "To Care For" Standard

FMLA provides that an eligible employee is entitled to take up to twelve weeks of unpaid leave "[i]n order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition." 29 U.S.C. § 2612(a)(1)(C). According to the Department of Labor, the "to care for" requirement may be satisfied by the provision of either physical or psychological care. The regulation states:

(A) The medical certification provision that an employee is "needed to care for" a family member encompasses both physical and psychological care. It includes situations where, for example, because of a serious health condition, the family member is unable to care for his or her own basic medical, hygenic, or nutritional needs or safety, or is unable to transport himself or herself to the doctor, etc. The term also includes providing psychological comfort and reassurance which would be beneficial to a child, spouse or parent with a serious health condition who is receiving inpatient or home care. (B) The term also includes situations where the employee may be needed to fill in for others who are caring for the family member, or to make arrangemerits for changes in care, such as transfer to a nursing home. 29 C.F.R. § 825.116.

As the language of the statute and the regulation make clear, FMLA does not provide qualified leave to cover every family emergency. FMLA leave is only available when an employee is needed "to care for" a family member. FMLA does not cover absences that do not implicate giving physical or psychological care for a relative. And while the statute has been broadly construed—for example, one court has found that assisting in making medical decisions constituted giving "care" to a relative for FMLA purposes, see Brunelle v. Cytec Plastics, 225 F.Supp.2d 67 (D.Me.2002)—merely visiting a sick relative does not fall within the statute's parameters. The employee must be involved in providing some sort of on-going care for his relative in order to qualify for FMLA leave. As Magistrate Judge Lefkow stated in Cianci v. Pettibone Corp., 1997 WL 182279 (N.D.Ill. Apr. 8, 1997), a case in which the plaintiff claimed that FMLA had been violated when she was denied an extended leave to visit her ailing mother in Italy, "However sympathetic plaintiffs request to visit her ailing mother may have been and however unfair or uncaring the company's response, the evidence before this court indicates that it is not the type of leave to which she is statutorily entitled." Id. at *7.

Both parties agree that plaintiff did not demonstrate that he was needed to take care of his mother's physical needs. Rather, plaintiff contends (and argued to the jury) that he was needed to provide psychological care for his mother.

The trial record shows that on July 15, 2000 plaintiff telephoned his employer to let the club know that he would not be coming to work that day. He testified as follows:

"My mother had been hospitalized for about ten days, and the cancer they had discovered had spread to her brain, and she was going to have brain surgery that day. I didn't know what time the surgery was going to be, I knew it was going—that she was being prepped early in the morning. So I was just calling in early to let them know it was a very serious surgery, that I had been warned there was a good chance that my mother wasn't to get through it and to be there." (Tr. 36)

The record is completely barren about the condition of plaintiffs mother prior to her surgery. It also includes nothing about what plaintiff did at the hospital, except for the fact that plaintiff did not see her after surgery:

I was already upset before I walked through the door [at work the next morning] because I hadn't seen my mother following her surgery. I knew that it went okay, but I was already kind of upset; and when I got this [the memo terminating his employment] it was just like getting kicked in the solar plexus. (Tr. 43)

There is no evidence in the record testimony about Fioto's interaction with his mother or her doctors. All the jury knew was that the plaintiffs mother was having brain surgery; that the doctors told Mr. Fioto that it was serious and that she might not make it through; that she was being prepped early in the morning; that Mr. Fioto did not see his mother after her surgery; and that the surgery went okay. The question is whether plaintiff provided enough information from which a reasonable jury could infer that the plaintiff was needed "to care for" his mother.

Sadly, I believe the answer to be no.

There is a paucity of law on the subject of what constitutes the provision of physical or psychological care to a sick relative. Cianci stands for the proposition—readily derived from the words of the statute— that FMLA leave is not available to accommodate mere visitation with a sick relative. Our sister court in Maine, however, has twice ruled that the concept of "psychological care" includes providing even a minimal level of comfort to a sick relative.

In Plumley v. Southern Container Inc., 2001 WL 1188469 (D.Me. Oct. 9, 2001), plaintiff testified that he spent time with his father while the father was hospitalized. The plaintiffs father testified that his son was present with him and that the son's presence was comforting and reassuring. Magistrate Judge Cohen concluded (albeit in dicta) that this sufficed to meet the threshold of "psychological care" for FMLA purposes, which includes providing "psychological comfort and reassurance which would be beneficial to a ... parent with a serious health condition who is receiving inpatient ... care." Id. at *9 (quoting 29 C.F.R. § 825.116).

A year later, in Brunelle v. Cytec Plastics Inc., 225 F.Supp.2d 67 (D.Me.2002), plaintiff was the son of a man who was critically burned in a fire. Plaintiffs father remained hospitalized for several months, enduring several surgeries in what ultimately proved a futile effort to save his life. During that period, the plaintiff kept vigil at his father's bedside. According to the testimony of the father's physician, Brunelle helped doctors make decisions concerning his father's...