Geromanos v. Columbia University

Page 420

322 F.Supp.2d 420

Kimberly L. GEROMANOS Plaintiff, v. COLUMBIA UNIVERSITY, College of Physicians and Surgeons Defendants.

No. 02 CIV.7181 CM.

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

June 14, 2004.

COPYRIGHT MATERIAL OMITTED

Robert David Goodstein, Goodstein & West, Esqs., New Rochelle, NY, for Plaintiff.

Michael T. McGrath, Putney, Twombly, Hall & Hirson, New York City, for Defendant.

MEMORANDUM DECISION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

MCMAHON, District Judge.

Plaintiff Kimberly L. Geromanos ("Geromanos") filed this action against Columbia University, College of Physicians and Surgeons ("Columbia") pursuant to the Family Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2615(a)(1). Plaintiff alleges that Columbia interfered with her rights under FMLA by terminating her position while she was on FMLA leave for reasons in violation of the Act. Columbia moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on the grounds that Plaintiff was properly terminated for failing to comply with the conditions of her leave.

For the reasons set forth below, Columbia's motion is granted.

I. FACTS

Plaintiff was employed as a Research Nurse and Clinical Coordinator in Columbia's Department of Medicine from June 1999 to 2002. As a research nurse, plaintiff was required to maintain a valid New York State Registered Nurse's license in order to treat patients. Although plaintiff also performed certain administrative duties, patient care comprised about 75% of plaintiff's time.

According to plaintiff's supervisor, Dr. DiMango, plaintiff's performance was excellent until the fall of 2001 when her performance began to deteriorate. (DiMango Aff., ¶ 3.) DiMango spoke with plaintiff about her performance problems on several occasions throughout the fall and winter of 2001-2002. (Id.) She also documented her concerns in an email to Paul Rothman, Chief of the Division of Pulmonary Medicine, on January 13, 2002. (Ex. I.)

The issue came to a head on March 18, 2002 at about 10 A.M. when DiMango observed plaintiff slumped over in her chair in what appeared to be a state of semi-consciousness. (Id. ¶ 7.) Plaintiff told DiMango she was not feeling well, and DiMango laid her on the floor and sought help from Dr. Miller. Although plaintiff complained about dizziness, she said she was alright and did not need medical attention. (Id. 9.) Nonetheless, DiMango and Miller determined that plaintiff needed to go to the emergency room, and escorted her to the emergency room at New York Presbyterian Hospital. (Id. ¶ 10; Pl. Rule 56.1 ¶ 3, Def. Rule 56.1 ¶ 14).

Plaintiff received treatment for alcohol intoxication in the emergency room and was admitted to the hospital where she remained for one night. During this time, Dr. DiMango advised plaintiff that she was being placed on medical leave so that she could undergo the rehabilitation that her treating doctors had advised. Prior to her release, plaintiff arranged to begin outpatient rehabilitation commencing on March 20 at the Nyack Hospital Recovery Center for Change ("Nyack"). Plaintiff was released from the hospital on March 19 2002, and her medical leave began that same day.

It is a violation of Columbia's operating policies for any employee to report to work or remain at work under the influence of a controlled substance or alcohol, and employees are required to abide by this policy as a condition of employment. The policy further states, "Any employee who violates this Policy will be subject to serious disciplinary action up to and including termination." (Ex. J.) According to Galene Kessin, an Associate Vice President for Columbia's Human Resources, if plaintiff had refused to undergo treatment, she would have been terminated based on the March 18 incident. She was permitted to take the leave in lieu of termination.

After plaintiff agreed to get treatment, her leave was classified as FMLA medical leave pursuant to Columbia policy. (Ex. L.) Thus, her FMLA leave commenced on March 19, 2002. Plaintiff was not advised that Columbia considered her leave under FMLA. (Pl. Rule 56.1 14-17.)

Although FMLA does not require employers to provide paid leave, Columbia agreed to pay plaintiff her full salary throughout her leave, but only if plaintiff abided by certain conditions. By letter dated April 5, 2002, Dr. DiMango confirmed the conditions of plaintiff's leave. The letter described Columbia's concern regarding plaintiff's attendance and work performance, but stated that Columbia had agreed that:

Further action with regard to your attendance and work performance problems would be put on hold pending the following.

1. You will provide the department with a letter attesting to your admission to an accredited program of treatment and rehabilitation for alcohol abuse by April 9, 2002...The period of time spent in a treatment program will be considered a medical leave of absence. The time prior to your admission that you cannot medically document will be a leave, without pay.

2. For In-Patient Treatment Program:

You must fully comply with and complete the treatment program to which you are admitted. Certification of completion from an authorized counselor in the program must be submitted to Mary McAllister or Hana Bloch [at Columbia].

For Out-Patient Treatment:

You must fully comply with and complete the treatment program to which you are admitted. You must also submit a weekly progress report from an authorized counselor in the program to Mary McAllister or Hana Bloch [at Columbia].

3. Prior to returning to work, you will be required to obtain clearance through the University's Occupational Health Services. At that time, the Return to Work program will advise you of the necessary documentation and procedures to be followed for such a clearance. In addition, upon your return to work you may be subject to testing for the use of alcohol at the discretion of the university on a periodic basis.

4. Failure to comply with the above will result in the termination of your services.

In closing, you should also be advised that upon returning to work you will be expected to correct the problems related to your attendance and work performance. Failure to do so will result in the termination of your services. (Ex. M.)

Plaintiff acknowledges receipt of this letter. (Pl. 56.1 ¶ 9.)

Columbia notified the New York State Education Department, Office of Professional Discipline of the March 18 incident, and an investigation was conducted by OPD. (Def. 56.1 ¶ 33.) Columbia also advised plaintiff to apply for admission to the Professional Assistance Program (PAP) at the New York State Department of Education, which she did on April 22, 2002. (Ex. D.) Pursuant to the terms of the PAP, plaintiff was required to surrender her nursing license to the Department of Education, which she formally did on July 19, 2002. (Ex. C.) However, both plaintiff and Columbia were aware in May 2002 that she would need to surrender her license, and both knew that the earliest it would be restored was October 2002. Plaintiff's license was in fact restored in October of 2002, but plaintiff surrendered it again in November 2002 when she suffered a relapse.

In her Rule 56.1 statement, Plaintiff states that Columbia was not required to report the March 18 incident to the Education Department. Whether or not Columbia was legally required to report the incident is irrelevant for purposes of this motion. What is relevant is that plaintiff voluntarily agreed to surrender her license in April, well knowing that it would likely not be reinstated until October.

Columbia requires all employees on medical leave to apply for short term-disability in order to receive salary continuation benefits. To this end, Columbia sent plaintiff a DB-450 application form for completion. (Def. Rule 56.1 ¶ 12.) After learning that Plaintiff had not returned the DB-450 or any progress reports, Kessin called plaintiff to remind her to submit the paperwork, or else her leave would be converted to unpaid leave. (Kessin Aff. ¶ 17.) Columbia has not indicated when Kessin made this call, but it was presumably in mid to late April.

On May 1, plaintiff had still not submitted the required paperwork, and Kessin wrote plaintiff inquiring about the required doctor's note documenting the leave as medical leave. She also included another DB-450 form. In the letter, Kessin again informed plaintiff "failure [to submit required documentation] will result in your absence being converted to unpaid leave." (Ex. N).

On May 9, 2002, Kessin received a faxed copy of a DB-450 form from Diane Murchison, a case manager at Nyack. On the form, Dr. Evelyn Wasserman, a psychiatrist at the rehabilitation program, indicated that plaintiff had been diagnosed with alcohol dependency and would not be able to return to work until August 8, 2002. (Ex. O.)

On that same date, Columbia received progress reports from Nyack that described plaintiff's treatment from March 20 through May 3, 2003. (Ex. P.) The progress reports revealed that plaintiff had relapsed on two occasions. In the accompanying cover letter, dated May 1, Murchison wrote that plaintiff "is presently struggling with outpatient modality" and that "it is not our recommendation at this time that Kimberly return to the work-force." (Id.) Neither the fax cover sheet nor the cover letter indicates that the reports had been previously submitted to Columbia.

According to Columbia, it did not receive any further progress reports from plaintiff or Nyack until discovery in this lawsuit. (Def. 56.1 ¶ 40.) Plaintiff disputes this. Pointing to copies of progress reports dated April 12, 20, 27 and May 4, 10, 17, 24, and 31 (each of which has either Mary McAllister or Hana Bloch's name — the individuals identified in the April letter — and fax number in one of three fax address boxes on the reports), she hypothesizes that Nyack forwarded the weekly progress reports...