Gilmore v. University of Rochester

654 F.Supp.2d 141

Debra L. GILMORE, Plaintiff, v. UNIVERSITY OF ROCHESTER Strong Memorial Division, Defendant.

No. 05-CV-6037L.

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

September 2, 2009.

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William S. Roby, III, Rochester, NY, for Plaintiff.

Linda T. Prestegaard, Phillips Lytle LLP, Rochester, NY, for Defendant.

DECISION AND ORDER

DAVID G. LARIMER, District Judge.

Plaintiff, Debra Gilmore, commenced this action against her former employer, the University of Rochester, Strong Memorial Hospital Division ("the University"), alleging various claims arising out of the termination of her employment at Strong Memorial Hospital ("Strong") in June 2003. Defendant has moved for summary judgment.

PROCEDURAL BACKGROUND

For purposes of this Decision and Order, familiarity with the procedural history of this case is assumed, but the most salient portions of that history will be recited here. The complaint in this action was filed on January 28, 2005, against the University and several individual defendants. On May 18, 2005, Magistrate Judge Jonathan W. Feldman granted plaintiff's motion to amend the complaint (Dkt. # 10), and plaintiff subsequently filed the first amended complaint.

On June 6, 2005, defendants filed a motion to dismiss the amended complaint (Dkt. #12). On September 1, 2005, the Court issued a Decision and Order, 384 F.Supp.2d 602, that granted in part and denied in part defendants' motion to dismiss the complaint. The Court dismissed plaintiff's claims under: the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq.; § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a); Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; 42 U.S.C. § 1981; and the New York State Human Rights Law ("HRL"), N.Y. Exec. L. § 296. That left plaintiff with one cause of action, against the University only, under the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601 et seq.

On October 14, 2005, plaintiff, without leave of court, filed a second amended complaint (Dkt. # 22), naming the same defendants as before, and asserting claims under § 1981, Title VI of the Civil Rights Act of 1964 ("Title VI"), 42 U.S.C. §§ 2000d, the HRL, and the FMLA. On January 19, 2006, the Court issued a Decision and Order, 410 F.Supp.2d 127, which granted defendants' motion to dismiss the second amended complaint, and granted plaintiff leave to amend the complaint again, to assert one cause of action for race discrimination and one cause of action under the FMLA. Pursuant to that order, plaintiff filed the third amended complaint the following month. Dkt. # 28.

On March 8, 2007, Judge Feldman granted plaintiff leave to file a fourth amended complaint (Dkt. #37, #38). That complaint (Dkt. #39), which was filed the same day as Judge Feldman's order, asserts claims under the FMLA, the Rehabilitation Act, and the HRL.¹ All of these claims stem from plaintiff's alleged prior impairment stemming from her past drug use. Plaintiff does not at this point assert any claims of race discrimination.

DISCUSSION²

I. FMLA Claim

A. The Nature of Plaintiff's Claim

Plaintiff's first cause of action is based on the FMLA. Plaintiff asserts several different factual bases for this claim.

Plaintiff alleges that she was terminated from her employment in June 2003, after having worked as a secretary at Strong for 26 years. The reasons given for her termination were excessive tardiness, failure to meet minimum standards for transcription of physician orders, and using profane language in a patient care area.

There is no dispute that during some of the time when plaintiff worked at Strong, up to and including the time of her termination, she was addicted to crack cocaine. Plaintiff (who alleges that she has been "clean" since July 2005) alleges that her addiction constituted a "serious health condition" under the FMLA, and that she was therefore entitled to twelve weeks' leave per year to seek treatment for that condition. See 29 U.S.C. § 2612(a)(1)(D).

It does not appear, however, that plaintiff ever requested such leave. The gist of this aspect of her FMLA claim appears to be that the University did not sufficiently inform plaintiff of her rights under the FMLA, particularly by failing to post adequate notices advising employees of their FMLA rights. Under the applicable federal regulations, an employer must "prominently" post, "in conspicuous places where employees are employed, . . . a notice explaining the Act's provisions and providing information concerning the procedures for filing complaints of violations of the Act" with the Department of Labor. 29 C.F.R. § 825.300(a).

Plaintiff also alleges that during much of the period preceding her termination, her mother was suffering from terminal cancer and that plaintiff had to spend a considerable amount of time caring for her mother. The FMLA also provides that covered employees are entitled to twelve weeks' leave annually in order to care for a parent with a serious health condition. 29 U.S.C. § 2612(a)(1)(C).

As with her claim related to drug addiction, however, it does not appear that plaintiff is alleging that the University violated the FMLA by denying her such leave. Rather, she alleges that she did take a single day's leave to care for her mother, and that the University violated the statute by "not designat[ing] that leave as FMLA leave," even though the University knew the reason for her request. Dkt. # 39 ¶ 10. Under the applicable regulations, "[t]he employer's decision to designate leave as FMLA-qualifying must be based only on information received from the employee" or someone authorized to speak on the employee's behalf, and "[a]n employee giving notice of the need for FMLA leave does not need to expressly assert rights under the Act or even mention the FMLA to meet his or her obligation to provide notice," but must only "state a qualifying reason for the needed leave. . . ." 29 C.F.R. § 825.301.

B. Plaintiff's Claim Relating to Drug Treatment

Plaintiff's claim relating to drug treatment fails for a number of reasons. First, "`it is well settled that an employee has no private right of action' where an employer has failed to post the [required FMLA] notice." Hayduk v. City of Johnstown, 580 F.Supp.2d 429, 473 (W.D.Pa. 2008) (quoting Deily v. Waste Mgmt. of Allentown, 118 F.Supp.2d 539, 544 (E.D.Pa.2000), aff'd, 55 Fed.Appx. 605 (3d Cir.2003)). See also Cinelli v. Oppenheim-Ephratah Cent. School Dist., No. 07-CV-235, 2008 WL 111174, at *5 n. 14 (N.D.N.Y. Jan. 7, 2008) (stating that "the FMLA provides a statutory penalty for employers who fail to willfully fail to post notice of the pertinent FMLA provisions," and "itself, does not impose a private right of action by the employee"). Cf. Kosakow v. New Rochelle Radiology Associates, P.C., 274 F.3d 706, 725 (2d Cir.2001) (employer's silence about an employee's eligibility for FMLA leave, in the face of the employee's announcement of intent to take such leave, amounted to a misrepresentation upon which equitable estoppel could be based).³

Second, even if a cause of action does exist under some circumstances for an employer's failure to post a required notice, plaintiff's claim would fail. "To establish a claim for interference based on a failure to inform her of her FMLA rights, [plaintiff] must show that [her employer's] failure to give her the required notification caused her injury." Capilli v. Whitesell Const. Co., 271 Fed.Appx. 261, 267 (3d Cir.2008) (citing Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135, 143 (3d Cir.2004)). See also Kosakow, 274 F.3d at 723 ("under the proper circumstances, a distinct cause of action lies for an employer's failure to post a notice where that failure leads to some injury"). Cf. Downey v. Strain, 510 F.3d 534, 541 (5th Cir.2007) ("Downey proved that she was actually prejudiced by her employer's noncompliance with the [notice] regulations: had she received individualized notice, she would have been able to postpone her surgery to another FMLA period").

In the case at bar, plaintiff testified that following her termination on June 13, 2003, she continued to use crack cocaine "[r]ight until the time [she] went into rehab" in November 2003. Gilmore Depo. Tr. (Dkt. # 52-4) at 64. There is no evidence that she had any desire to seek treatment sooner than that, or that she would have sought treatment prior to her termination had she been aware that she could take FMLA leave to do so. In fact, plaintiff's own testimony suggests that she would not have done so; when asked what she told her supervisors about why she was late for work nearly every day (which she now admits was due to her addiction and her use of crack cocaine prior to going to work each day), she responded that she "[p]robably blam[ed] it on [her] children, anything other than [her]self because [she] was in denial." Gilmore Depo. Tr. at 42-43.

The record also makes clear that plaintiff was aware that she could ask for time off to seek drug treatment, even if she was unaware of a particular right to do so under the FMLA. Plaintiff testified that in 1996, when she was on disability leave after giving birth to her son, she asked for, and was granted, "extended leave." Gilmore Depo. Tr. at 36-37. She took "[m]aybe another month" off, during which she obtained drug treatment. Id. Again, plaintiff may not have known that she had a specific right under the FMLA to take time off for the express purpose of seeking drug treatment, but this shows that she must at least have been aware of the possibility that she could seek some type of leave for that purpose. Her failure to ask for any time off in 2003 in order to obtain drug treatment further demonstrates, then, that plaintiff was not prejudiced by the University's alleged failure to provide adequate notice of employees' FMLA rights, since there is no...