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Disclaimer:
The case on which this summary is based may no longer be current law.
Also, if the case was decided on summary judgment, the court recited the
"facts" in the light most favorable to the non-movant, which may not be
the true facts.
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Employer
may be estopped from arguing that an employee is not eligible for FMLA leave where the
employer has failed to provide the required notice concerning employees' FMLA rights.
Kosakow
v. New Rochelle Radiology Associates, P.C., 274 F.3d 706 (2d Cir. December 20, 2001)
- Nancy Kosakow lost her job as a part-time "radiological technologist" while
out on medical leave. Kosakow filed a pro se discrimination charge with the New York State
Division of Human Rights ("DHR"). After conducting an investigation, the DHR
issued a "no probable cause" finding. Kosakow did not seek a review of this
determination in state court. She also did not pursue an ADA claim within 90 days of
receiving her right to sue letter. But she did later file this FMLA action. The district
court granted summary judgment in favor of "New Rochelle." On appeal, New
Rochelle argues that Kosakow was not an "eligible employee" because she did not
have 1,250 hours of work in the twelve months prior to the beginning of her medical leave.
Even though Kosakow was only paid for 1,186.5 hours, the Court finds that there is a jury
question on this issue because: (1) there is a question as to whether Kosakow arrived 15
minutes early each day to get the equipment ready for which she was not compensated; and
(2) if so, there is a question as to whether this uncompensated time was necessary to the
performance of her job (and hence should be counted as time worked). The Court also does
not believe that this time is de minimis. Also, there is a question as to whether
her medical leave began on Saturday, January 11, 1997 or Monday, January 14, 1997. If it
began on Saturday, she worked sixteen additional hours during the preceding year. Finally,
there is a question as to whether time spent at seminars should be counted as time worked
under the FMLA. In sum, there is a jury question as to whether Kosakow was an
"eligible employee." Next, the Court finds a jury question as to whether Kosakow
can invoke the doctrine of equitable estoppel so as to prevent New Rochelle from
challenging whether she is an "eligible employee." The basis of her estoppel
argument is that New Rochelle failed to comply with the FMLA's notice requirements. If it
had, she would have known she needed 1,250 hours and she would have worked a few
additional hours before taking leave. Finally, New Rochelle argues that Kosakow is
collaterally estopped from pursuing her FMLA claim based on the "no probable
cause" finding by the DHR. The Court rejects this argument on the basis that Kosakow
did not have a full and fair opportunity to litigate this issue before the DHR. This case
summary does not address the ERISA claim. Click
here to see actual case.
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