Pollard v. N.Y. Methodist Hosp., 13–CV–3964 (KAM)(RER).

• Decision Date: 29 September 2015
• Docket Number: No. 13–CV–3964 (KAM)(RER).,13–CV–3964 (KAM)(RER).
• Citation: 134 F.Supp.3d 681
• Parties: Jacintha POLLARD, Plaintiff, v. The NEW YORK METHODIST HOSPITAL, Defendant.
• Court: U.S. District Court — Eastern District of New York

134 F.Supp.3d 681

Jacintha POLLARD, Plaintiff,

v.The NEW YORK METHODIST HOSPITAL, Defendant.

No. 13–CV–3964 (KAM)(RER).

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

Signed Sept. 29, 2015.

Abdul Karim Hassan, Abdul Hassan Law Group, PLLC, Queens Village, NY, for Plaintiff.

Traycee Ellen Klein, Epstein Becker & Green, P.C., New York, NY, for Defendant.

MEMORANDUM & ORDER

MATSUMOTO, District Judge:

Plaintiff Jacintha Pollard ("plaintiff") commenced this action against defendant the New York Methodist Hospital (the "Hospital" or "defendant"), her former employer, alleging that defendant violated plaintiff's rights under the Family and Medical Leave Act ("FMLA" or the "Act"), 29 U.S.C. § 2601 et seq., when it terminated her employment as a result of her taking an FMLA-protected medical leave after undergoing surgery on her foot. (See generally Complaint dated 7/12/2013 ("Compl.").) Plaintiff seeks damages, including back pay, and reinstatement to her position at the Hospital. (Compl. at 6.) Both parties have moved summary judgment pursuant to Federal Rule of Civil Procedure 56. (See ECF No. 39, Plaintiff's Motion for Summary Judgment ("Pl.Mem."); ECF No. 42, Defendant's Memorandum of Law In Support Of Motion for Summary Judgment ("Def. Mem.").) For the reasons set forth below, plaintiff's motion is denied, and defendant's motion is granted.

BACKGROUND

This case concerns a course of treatment that plaintiff sought for a growth on the side of her left foot in March 2013 and plaintiff's attempt to take medical leave in connection with that treatment. The following facts, taken from the parties' Rule 56.1 statements and the exhibits and deposition testimony cited and annexed to the parties' motion papers, are undisputed unless otherwise noted.¹ The court has considered whether the parties have proffered admissible evidence in support of their positions and has viewed the facts in the light most favorable to the nonmoving party. See Spiegel v. Schulmann, 604 F.3d 72, 77, 81 (2d Cir.2010).

Plaintiff was employed by defendant as a medical records file clerk from September 2000 to April 1, 2013. (ECF No. 39–2, Plaintiff's Rule 56 Statement of Material Undisputed Facts ("Pl. 56.1 Stmt.") ¶¶ 5, 7; ECF No. 41, Defendant's 56.1 Statement ("Def. 56.1 Stmt.") ¶¶ 1, 5, 7.) Plaintiff's job required her to be on her feet for most of the day. (ECF No. 39–3, Plaintiff's Declaration In Support Of Her Motion for Summary Judgment dated 12/11/14 ("Pl.Decl.") ¶¶ 14–15;² Pl. 56.1 Stmt. ¶ 17.)

The exact dates on which plaintiff first noticed the growth and that it started causing her pain are unknown. Plaintiff testified that she first noticed the growth between six weeks and two months prior to her consultation with her podiatrist, Dr. Manoj Sadhnani, on March 19, 2013, and that she began experiencing pain in the "weeks before going to the doctor." (Pl. 56.1 Stmt. ¶¶ 5, 7; Def. 56.1 Stmt. ¶¶ 10, 13–14; ECF No. 53, Joint Deposition Transcript Appendix ("Dep. Tr. App'x"), Ex. B., 7/9/14 Deposition of Jacintha Pollard ("Pollard Dep.") at 212.) Plaintiff testified that the growth became painful over time and that she experienced pain particularly when she would stand or walk.³ (Pollard Dep. at 212–13.) Prior to noticing the subject growth on her foot, plaintiff had not previously had a similar condition. (Pl. 56.1 Stmt. ¶¶ 5, 7; Def. 56.1 Stmt. ¶ 12.) Although plaintiff had previously undergone numerous foot surgeries (see Pl. 56.1 Stmt. ¶ 15), the March 19, 2013 visit with Dr. Sadhnani, discussed further below, was the first time plaintiff had sought medical care for the growth on her foot.⁴ (Pl. 56.1 Stmt. ¶¶ 5, 7; Def. 56.1 Stmt. ¶¶ 11, 16–17.)

I. Plaintiff's March 19, 2013 Visit with Dr. Sadhnani

On March 19, 2013, plaintiff visited the office of Dr. Sadhnani regarding a growth on the side of her left foot that was causing her pain. (Def. 56.1 Stmt. ¶¶ 8–9; see Pl. 56.1 Stmt. ¶ 19.) Plaintiff was working that day and walked to her appointment from the hospital and back, a distance of a few blocks each way. (Def. 56.1 Stmt.

¶¶ 8, 36.) During the visit, Dr. Sadhnani examined plaintiff's left foot and concluded that the growth was a benign neoplasm of soft tissue. (Def. 56.1 Stmt. ¶ 17.) He observed no infection in plaintiff's foot and did not believe the mass to be cancerous.⁵ (Sadhnani Dep. at 68, 231.)

During the visit, plaintiff was complaining of substantial pain, and Dr. Sadhnani was unable to touch the site of the growth due to plaintiff's pain. (Sadhnani Dep. at 73–74, 89.) Dr. Sadhnani testified that he offered to pare, or trim with a blade, the mass on plaintiff's foot to "see if [he could] get anything out of it," but plaintiff refused it and other conservative treatment. (Id. at 58–59; 73–74.) Instead, when offered various treatment options, plaintiff indicated her preference for surgery to remove the growth.⁶ (Sadhnani Dep. at 65–66, Ex. 1; see Def. 56.1 Stmt. at 27.)

After plaintiff expressed her desire for surgical treatment, Dr. Sadhnani scheduled plaintiff's foot surgery for March 28, 2013, nine days later, which was the next appointment he had available for the procedure. (Sadhnani Dep. at 67–68; Pl. 56.1 Stmt. ¶¶ 20–21.) Dr. Sadhnani testified that it would not have been a problem for plaintiff to wait as long as 35 days to undergo surgery if she could tolerate the pain (see Sadhnani Dep. at 67–69); however, based on his understanding that plaintiff was in considerable pain, he wished to alleviate her pain as soon as possible. (See Sadhnani Dep. at 89, 94–95, 174; see also Pl. 56.1. Stmt. ¶ 19.)

Although plaintiff reported being unable to stand on her feet due to pain, she did not request, and Dr. Sadhnani did not prescribe, any walking or standing aids during her visit. (Sadhnani Dep. at 79.) Dr. Sadhnani also observed that plaintiff was able to walk into and out of his office. (Id. at 79, 211.) Dr. Sadhnani testified that, when he saw plaintiff on March 19, and again for her surgery on March 28, 2013, she was able to engage in normal functions, she did not appear to be incapacitated, and he was not aware that she experienced any period of incapacity.⁷ (Def. 56.1 Stmt. ¶¶ 41, 53–54.) He did not instruct plaintiff to take any medication to manage her pain. (Pollard Dep. at 248; Def. 56.1. Stmt. ¶ 32.)

At his deposition, Dr. Sadhnani testified that the growth on plaintiff's foot was not associated with a chronic, permanent, or long-term condition, but that there was a chance it could reoccur after treatment.⁸

(Sadhnani Dep. at 55, 109–111; see Def. 56.1 Stmt. ¶¶ 18, 52.) Dr. Sadhnani further testified that he did not consider plaintiff's condition to be a "medical emergency" and that, based on his March 19, 2013 examination, plaintiff's health was not in serious jeopardy. (Sadhnani Dep. at 56, 232.)

II. Plaintiff's Communications with Human Resources Regarding Her Surgery

After plaintiff returned to work from her visit to Dr. Sadhnani's office on March 19, 2013, she called the Hospital's Human Resources department and advised Velta Davis, an assistant to the hospital's leave specialist, Mabel Del Rio, of her surgery scheduled for March 28, 2013. (Pl. 56.1. Stmt. ¶ 24; Def. 56.1 Stmt. ¶ 37.) Ms. Davis informed plaintiff that she needed to provide 30 days notice for any leave but she could also try to provide a doctor's note corroborating the necessity of her surgery in support of her request. (See Pollard Dep. at 268–69; Dep. Tr. App'x, Ex. D, 7/21/14 Deposition of Vigian Velta Davis ("Davis Dep.")at 17.) Apparently, the same day, plaintiff called and then walked over to Dr. Sadhnani's office again to obtain a doctor's note. (Def. 56.1. Stmt. ¶ 38; Pollard Dep. at 267, 269.⁹ ) Dr. Sadhnani prepared a note for plaintiff that stated that her surgery was scheduled for March 28, 2013 and that her condition required "immediate surgical attention."¹⁰ (See Pl. 56.1. Stmt. ¶ 23; Def. 56.1 Stmt. ¶ 39.)

After obtaining Dr. Sadhnani's note, plaintiff walked back to her desk at the hospital and faxed the note to the Human Resources department. (See Pl. 56.1. Stmt. ¶ 23; Def. 56.1 Stmt. ¶ 40.) By letter dated March 19, 2013,¹¹ the hospital requested that plaintiff reschedule her surgery until a later date in order to comply with the 30–day notice requirement. (Pl. 56.1 Stmt. ¶ 25; see Pollard Dep. at 272, 275, 296–97.) There is no evidence in the record that plaintiff attempted to reschedule her surgery.¹²

On March 26, 2013, plaintiff returned to Dr. Sadhnani's office on foot, in order for him to complete FMLA certification paperwork. (Def. 56.1 Stmt. ¶ 43.) The completed certification listed plaintiff's qualifying serious health condition as "Painfull lesion Lt foot" [sic ],¹³ the treatment given as "surgery on 3/28/13," and the necessary duration of medical leave as "3/28/13 to 4/18/13." (Declaration of Abdul Hassan, Esq. dated 12/12/14 ("Hassan Decl.") Ex. 7.) After Dr. Sadhnani completed the FMLA certification, plaintiff walked back to the Hospital's Human Resources department to submit the paperwork. (Pl. 56.1 Stmt. ¶¶ 28–29; Def. 56.1 Stmt. ¶ 44.) That same day, the Hospital's Human Resources department contacted Dr. Sadhnani regarding plaintiff's scheduled surgery, without plaintiff's consent, and notified him that plaintiff's surgery would need to be rescheduled to April 19, 2013 at the earliest in order to comply with the hospital's notice policies. (See Pl. 56.1. Stmt. ¶¶ 30–31; Sadhnani Dep. at 219–220; see also Hassan Decl. Ex. 8.)

Upon hearing from the hospital that plaintiff's leave had not been approved, Dr. Sadhnani cancelled plaintiff's surgery. (See Pl. 56.1 Stmt. ¶ 30; Def. 56.1 Stmt. ¶¶ 56–57; Sadhnani Dep. at 221–223.) Dr. Sadhnani testified that plaintiff contacted him after learning that her surgery had been cancelled and requested that her surgery proceed as scheduled on March 28, 2013.¹⁴ (See Def. 56.1 Stmt. ¶¶ 57–58.) Dr. Sadhnani again scheduled plaintiff's surgery for March 28, 2013. (Sadhnani Dep. at 221–222; see Def. 56.1...