Court Dismisses Discrimination and FMLA Claims After Employee’s Cancer Diagnosis


By Jeffrey Rhodes October 25, 2017

​The 2nd U.S. Circuit Court of Appeals dismissed claims of job discrimination and violation of the Family and Medical Leave Act (FMLA) by a former employee of the New York City Department of Education for failure to exhaust administrative procedures and because her doctor did not certify the time off.

The plaintiff worked for the New York City Department of Education. During her employment, she received a cancer diagnosis that she believed became known to her supervisor. She claimed that her supervisor's failure to approve FMLA leave that she requested interfered with her FMLA rights. However, she also stated that her own doctor declined to certify that she was entitled to full FMLA leave.

The plaintiff requested full FMLA leave on Nov. 13, 2013. Prior to her request, she had been disciplined for work absences. She claimed that the department demoted her on July 30, 2014, and after her demotion she was placed in the New York City's Absent Teacher Reserve program. She was subsequently deemed to have resigned in October 2014 for failure to report to duty or to notify the school that she would be absent for 20 consecutive days.

The plaintiff brought a federal court lawsuit claiming discrimination based on race, sex, age, disability and national origin under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act (ADA), as well as interference with her rights and retaliation under the FMLA. The department brought a motion to dismiss her complaint for failure to exhaust administrative remedies under Title VII, the ADEA and ADA; failure to demonstrate entitlement to FMLA benefits; and lack of retaliatory intent to support the FMLA retaliation claim.

The U.S. District Court for the Eastern District of New York granted dismissal, and the plaintiff appealed the decision to the 2nd Circuit. On appeal, the court noted that she had been given multiple chances to amend her complaint. She did not allege that she had filed a charge with the Equal Employment Opportunity Commission (EEOC) before filing a federal lawsuit in her first or second amended complaint.

Rather, in her memorandum in opposition to the motion to dismiss, she claimed that she filed an EEOC charge and received a charge number. The EEOC told the department that there was no charge filed by the plaintiff and that no right to sue letter was ever issued. Thus, the appeals court affirmed dismissal of her Title VII, ADEA and ADA claims for failure to exhaust administrative procedures.

The appeals court also found that the plaintiff failed to allege entitlement to full FMLA leave at the time of her Nov. 13, 2013, request. Her doctor had refused to certify her eligibility for full FMLA leave in November 2013, and she did not allege facts showing that she became eligible prior to the denial of her subsequent requests for full FMLA leave. Thus, the appeals court affirmed dismissal of her FMLA interference claim.

[SHRM members-only toolkit: Managing Family and Medical Leave]

The court also found that the timing of her demotion and discharge did not support an FMLA retaliation claim. The plaintiff requested full FMLA leave in November 2013, while she alleged that she was not demoted until July 30, 2014, which did not establish temporal proximity.

At the same time, she sought to add discrimination claims under the New York State Human Rights Law and New York City Human Rights Law based on adverse actions by the department on July 30, 2014, and thereafter. But the court found that these would be untimely and futile because all the department's actions that could conceivably support these new claims occurred prior to her demotion in July 2014 and thus were time-barred.

Elliot-Leach v. New York City Department of Education, 2d Cir., No. 16-3098-cv (Sept. 14, 2017).

Professional Pointer: An employee with a medical crisis, such as a cancer diagnosis, will often qualify for discrimination protection and medical leave. Yet the employee must still comply with the prerequisites for leave and discrimination protection, such as by providing a doctor's certification of the need for FMLA leave and filing an EEOC charge before suing in federal court.

Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.


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