Full opinion text
TRAGER, District Judge. Plaintiff-Appellant, Nancy Kosakow (“Kosakow”), brings this appeal from the grant of summary judgment in favor of Defendant-Appellee, New Rochelle Radiology Associates, P.C. (“New Rochelle”). Kosakow brought this action pursuant to the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. (the “FMLA”), alleging that New Rochelle, her employer, failed to reinstate her to her position after she had taken protected leave under the FMLA. Kosakow further alleges that she did not receive severance pay to which she was entitled, in violation of the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. (“ERISA”). Background (1) Nancy Kosakow was employed by New Rochelle as a part-time “radiological technologist” from July of 1978 until March of 1997. In June of 1996, Kosakow learned that she had a possibly cancerous cystic mass in her left ovary. In November of 1996, after learning that the mass had not diminished in size, she scheduled surgery for January 14, 1997, to remove it. Shortly after this surgery was scheduled, Kosa-kow notified her manager, Gale Gluss, and was granted medical leave for the operation, as well as time for recovery after the surgery. Kosakow continued to work through January 10, 1997. The surgery took place on January 14, 1997, as scheduled, and Kosakow remained on medical leave thereafter. In or about mid-Febrary of 1997, Kosakow informed New Rochelle that she would be medically cleared to return to work on March 17, 1997. On March 6, 1997, however, Gluss informed Kosakow that her position had been eliminated as a result of downsizing, and, consequently, Kosakow had been terminated. Feeling that she had been terminated due to her medical problems, Kosakow filed a pro se discrimination charge with the New York State Division of Human Rights (the “DHR”), alleging violations of the New York Human Rights Law (“NYHRL”). In the complaint, Kosakow also alleged that New Rochelle had violated the Americans with Disabilities Act (the “ADA”), and authorized the DHR to accept the complaint on behalf of the Equal Employment Opportunity Commission (“EEOC”). New Rochelle responded by filing a Narrative Reply with the DHR, to which Kosakow filed a Rebuttal. On August 24, 1998, after an investigation of the matter, DHR issued its determination that there was “no probable cause to believe that [New Rochelle] has engaged in or is engaging in the unlawful discriminatory practice complained of.” In so finding, DHR credited New Rochelle’s explanation that Kosakow’s position was eliminated for legitimate business reasons. This finding was subsequently adopted by the EEOC without independent review, and the EEOC issued Kosakow a right-to-sue letter on October 13,1998. Kosakow did not seek review of this determination in state court, as she was entitled to under Article 78 of New York Civil Practice Law. See N.Y. C.P.L.R. § 7801 (McKinney’s 1994). Nor did she pursue her claims under the ADA in federal court within the ninety days required by the statute. See 42 U.S.C. §§ 12117(a) (adopting Title VII limitations period for the ADA), 2000e-5(f) (requiring that action must be brought within ninety days of notification of right to sue). Instead, after this time had expired, Kosakow retained counsel and filed the present suit, alleging that New Rochelle’s actions violated her rights under the FMLA and ERISA. (2) The district court granted New Rochelle’s motion for summary judgment as to Kosakow’s FMLA claim on March 13, 2000. The court initially held that Kosa-kow did not meet the minimum hours required to be an “eligible employee” under the FMLA, but had raised a genuine issue of material fact as to whether New Rochelle was estopped from raising an eligibility defense due to its failure to post the required FMLA eligibility notice. Kosakow v. New Rochelle Radiology Assocs., P.C., 88 F.Supp.2d 199, 205-09 (S.D.N.Y.2000). Nonetheless, the court held that Kosakow was collaterally estopped from pursuing an FMLA claim as a result of DHR’s determination that there was no probable cause that New Rochelle acted for discriminatory reasons. Id. at 209-14. With respect to Kosakow’s ERISA claim, the district court found that New Rochelle had a “plan” that was covered by ERISA, but that the plan administrator had not officially determined whether she was entitled to severance pay. Id. at 216. Consequently, the district court remanded Kosakow’s ERISA claim to the plan administrator so that determination could be made. Id. After the remand, the plan administrator denied Kosakow severance pay, determining that she had not been “terminated,” as defined by the plan, and, even if she were, she was not entitled to severance pay. That determination was upheld in part by a subsequent Memorandum Decision by the district court. Kosakow v. New Rochelle Radiology Assocs., P.C., 116 F.Supp.2d 400 (S.D.N.Y.2000). Kosakow now appeals from the district court’s original determination that she did not satisfy the minimum hours eligibility requirement under the FMLA, as well as the holding that she was collaterally es-topped from bringing her FMLA claim. In addition, Kosakow appeals from the district court’s subsequent holding that she is not entitled to severance pay. As alternative bases for affirmance, ap-pellee New Rochelle challenges several determinations by the district court, most of which, if New Rochelle is correct, would require dismissal 6f one of Kosakow’s claims. First, it challenges the court’s holding that questions of fact exist with respect to the start date of Kosakow’s leave and whether the hours Kosakow spent at various continuing education programs count towards her FMLA eligibility. Next, New Rochelle disputes the district court’s holding that Kosakow may state a claim under the FMLA, regardless of whether she is “eligible,” because New Rochelle failed to post required FMLA notices. Finally, New Rochelle contends that the district court erred in determining that Kosakow’s employee handbook created a “plan” under ERISA which potentially could have entitled Kosakow to severance pay. Kosakow argues that because New Rochelle failed to file a notice of cross-appeal, it has no right to attack the district court’s decision on these, or any other, grounds. Although it has long been the law that an appellee who has failed to file a notice of cross-appeal cannot “attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary.” Burgo v. Gen. Dynamics Corp., 122 F.3d 140, 145 (2d Cir.1997) (quoting Morley Constr. Co. v. Maryland Cas. Co., 300 U.S. 185, 191, 57 S.Ct. 325, 328, 81 L.Ed. 593 (1937) (Cardozo, J.)), in the present case New Rochelle is not “attacking the decree” of the district court. Indeed, the district court granted summary judgment in favor of New Rochelle with respect to both of Kosakow’s claims. Thus, what New Rochelle is arguing is that, even if the district court is reversed on one or more of the grounds urged by Kosakow, there are alternative grounds upon which the grant of summary judgment can be affirmed. In such a situation, because an appellee can seek to sustain a judgment on any ground with support in the record, it is not necessary that the appellee file a notice of cross-appeal. See Int’l Ore & Fertilizer Corp. v. SGS Control Servs., Inc., 38 F.3d 1279, 1285-86 (2d Cir.1994). Discussion (1) FMLA Eligibility In order to be eligible for protection under the FMLA, an employee must work 1250 hours in the twelve months prior to the beginning of his or her medical leave. 29 U.S.C. § 2611(2)(A). Kosakow recorded her hours on timesheets, which she signed. There is no dispute that Kosa-kow’s timesheets reflect that she was only paid for 1,186.5 hours during the twelve months prior to her leave, assuming that the first day of her leave is deemed to be the day of her operation, January 14, 1997. The district court held that questions of fact existed, however, concerning the starting date of Kosakow’s leave and whether hours Kosakow spent at continuing education seminars (which were not included on her timesheets) could be counted toward her hours worked. Kosakow, 88 F.Supp.2d at 206-08. Accordingly, drawing all inferences in favor of Kosakow, the district court held that these two categories could potentially raise the total hours Kosakow worked in the relevant time frame to 1221.5 hours, 28.5 hours short of the 1250 hour requirement. Id. at 208-09. Because the court determined that Kosa-kow was not entitled to include 38.75 hours she claims she worked during the relevant twelve months by coming in fifteen minutes before her start time each shift, the court held that she failed to reach the 1250 hour requirement. Id. Kosakow appeals from the district court’s holding that the 38.75 total hours she spent at work prior to her shift cannot be counted toward her hours worked. a. Kosakow’s Early Arrival Kosakow argues that it was necessary for her to arrive at work fifteen minutes before her start time, and these additional fifteen minutes each day should be included in her hours worked. Her early arrival was necessary, she contends, because New Rochelle was open to accept walk-in patients at 8:00 a.m., and the office policy was to be ready to serve those patients when they arrived. In order to accomplish this, Kosakow needed to turn on the x-ray processing machine, allow it to warm up, perform tests on the machine, and help to prepare the office for receiving patients by pulling client files and preparing and performing pre-testing procedures for certain tests. She claims that this process took her approximately 15 minutes, and, accordingly, she arrived at 7:45 a.m. each morning instead of 8:00 a.m. Id. This additional time, if it is included in her hours worked for the year in question, would add 38.75 hours. The district court held that this time should not be included in Kosakow’s hours worked for three reasons: 1) Kosakow had not presented sufficient evidence to allow a jury to reasonably find that she actually arrived at 7:45 a.m. each morning; 2) even if she did come in at 7:45 a.m., these fifteen minutes each day cannot be included in her hours worked pursuant to the Portal-to-Portal Act, 29 U.S.C. § 254, because it is merely “preliminary,” non-com-pensable time spent at work; and 3) assuming that she did arrive fifteen minutes early each day, this extra time was properly excluded from her work time as “de minimis.” Kosakow, 88 F.Supp.2d at 206-07. Each of these points is examined below. 1. Sufficiency of Kosakow’s Evidence The district court held that no reasonable juror could give credence to Kosakow’s naked assertion that she came to work fifteen minutes early every day. In so holding, the court noted that she had signed bi-weekly timesheets which indicated that she started work at 8:00 a.m., not 7:45 a.m., and that this documentary evidence could not be contradicted solely by Kosakow’s otherwise unsupported allegation to the contrary. Id. at 207. In addition to these timesheets, New Rochelle points out that one former and four current radiological technicians submitted affidavits, each stating that they were never “required by Gale Gluss [the office manager at New Rochelle] or any Practice Administrator to report to work earlier than” their 8:00 a.m. scheduled shift time. New Rochelle also supports this claim with various statements by Kosakow in her deposition where she concedes that her time-sheets were accurate, a statement in the employee handbook that employees were required to be at their stations at the time of their shift (i.e. not fifteen minutes early), and documents showing that patients rarely arrived before 8:30 a.m. Kosakow counters this evidence with her own affidavit, as well as affidavits from two former receptionists at New Rochelle. In Kosakow’s affidavit, she describes the various duties listed above which she completed to ensure the office was ready to receive patients at 8:00 am. This argument is bolstered by the two former receptionists, both of whom testify in their respective affidavits that Kosakow, as well as other radiological technologists, would arrive ten to twenty minutes prior to the 8:00 a.m. shift time in order to prepare the office. The district court found that Kosakow’s testimony did not create a genuine issue of material fact with respect to her arrival time each morning. See Kosakow, 88 F.Supp.2d at 206-07. Notably, the district court did not mention, and apparently did not consider, the affidavits of the former receptionists. Instead, the court relied exclusively on the timesheets filled out by Kosakow, and held that she offered no concrete evidence to indicate that these timesheets were inaccurate. Kosakow is not, however, necessarily claiming that the timesheets were inaccurate. To be precise, she does not dispute that her shift began at 8:00 a.m., nor does she argue that the timesheets are inaccurate insofar as they reflect the fact that her pay was based upon her shift beginning at 8:00 a.m. To the contrary, her claim is that in order to fulfill her job responsibilities, it was necessary that she arrive at 7:45 am. despite the fact that her shift did not begin until 8:00 a.m. She argues that these fifteen minutes each morning should count towards her hours worked, despite the fact that they were not included in her paychecks or on her time-sheets. We conclude that questions of fact exist concerning whether Kosakow arrived at 7:45 am. each day and what functions she performed in the fifteen minutes before her shift. Kosakow and two former employees of New Rochelle with personal knowledge of Kosakow’s daily activities and the functioning of the office all have testified that she did, in fact, come in early and begin preparing the office to accept patients. These affidavits are more than sufficient to create a question of fact as to this issue. The district court erred in resolving this factual issue on summary judgment. 2. Portal-to-Portal Act The district court also held that, even assuming Kosakow did arrive fifteen minutes early to prepare the office, this time was properly excluded from her hours worked by the Portal-to-Portal Act. See 29 U.S.C. § 254. The FMLA derives its standards for calculating hours of service from the Fair Labor Standards Act (the “FLSA”). See 29 U.S.C. § 2611(2)(C). The Portal-to-Portal Act modified the FLSA to provide that an employee need not be compensated for: activities which are preliminary to or postliminary to said principal activity or activities, which occur either prior to the time on any particular workday at which such employee commences, or subsequent to the time on any particular workday at which he ceases, such principal activity or activities. 29 U.S.C. § 254(a)(2). Because the district court found that Kosakow’s morning activities were not an “integral and indispensable part of her principal activity,” it held that the Portal-to-Portal Act dictates that they be excluded from her hours worked under the FLSA. Kosakow, 88 F.Supp.2d at 207. Consequently, the court excluded this time from Kosakow’s hours worked under the FMLA. Id. The Portal-to-Portal Act was enacted in response to the Supreme Court’s decision in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515 (1946). In Anderson, the Court held that time an employee spent changing into work clothes and walking to his or her post within the work facility was compensable time under the FLSA. Id. at 691-93, 66 S.Ct. at 1194-95. Because Congress felt that this decision was too liberal a construction of the FLSA and created too great a retroactive liability on employers, Congress enacted the Portal-to-Portal Act to eliminate such “preliminary” and “post-liminary” activities from the definition of compensable time under the FLSA. See Reich v. New York City Transit Auth., 45 F.3d 646, 648-49 (2d Cir.1995). In 1956, the Supreme Court decided two cases on the same day interpreting the reach of the Portal-to-Portal Act. These cases still serve as the guide to what activities are considered “preliminary” or “post-liminary” as opposed to “principal” work activities. In Steiner v. Mitchell, 350 U.S. 247, 76 S.Ct. 330, 100 L.Ed. 267 (1956), the Court addressed the issue of whether the FLSA required compensation for workers in a battery plant for time spent at the beginning of each shift changing into work clothing and, at the end of each shift, showering and changing out of that clothing. Id. at 248, 76 S.Ct. at 331. The Court recognized that normally changing and showering before or after work would be excluded by the Portal-to-Portal Act but held that where that activity was “an integral and indispensable part of the principal activity of the employment,” the employee must be compensated for it. Id. at 256, 76 S.Ct. at 335. Because the employees in Steiner were exposed to large amounts of lead dust at the plant, it was necessary for safety reasons that they change clothes before work, and shower and change back after work. The Court held that these activities were covered under the FLSA because they were an integral and indispensable part of working in the battery plant, and were, accordingly, not simply “preliminary” or “postliminary” under the Portal-to-Portal Act. Id. That same day, the Court decided Mitchell v. King Packing Co., 350 U.S. 260, 76 S.Ct. 337, 100 L.Ed. 282 (1956). In Mitchell, employees of a meat packing company argued that, pursuant to the FLSA, they should be compensated for time spent before or after their shift sharpening their knives. Id. at 261-62, 76 S.Ct. at 339. Because the proper and efficient performance of their work required that the knives be “razor sharp,” the Court held that the sharpening of the knives was “an integral part of and indispensable to the various butchering activities for which they were principally employed.” Id. at 262-63, 76 S.Ct. at 339. Consequently, the Court held that the employees were entitled to compensation for those activities despite the fact that they were performed outside of their scheduled work hours. Id. at 263, 76 S.Ct. at 339. Steiner, and even more so, Mitchell, compel the conclusion that Kosakow is entitled to compensation for her morning activities under the FLSA, notwithstanding the Portal-to-Portal Act. There is no real dispute that the duties she describes were necessary for the proper performance of her job. Rather, New Rochelle disputes whether Kosakow needed to perform these duties prior to 8:00 a.m. In this connection, Kosakow argues that she needed to begin these tasks at 7:45 a.m. so that the office would be ready promptly at 8:00 a.m. in the event that a walk-in patient arrived at that time. While New Rochelle counters by claiming that patients were never scheduled before 8:15 a.m., and walk-ins never arrived at 8:00 a.m., the latter claim is contradicted by New Rochelle’s own evidence. All four of the affidavits filed by radiological technologists in support of New Rochelle’s motion for summary judgment testified that walk-ins “infrequently arrived for treatment prior to 8:30 a.m. (and almost never at 8:00 a.m. sharp when our doors first opened).” The fact that these technologists concede that walk-in patients would occasionally arrive at 8:00 a.m. supports Kosakow’s claim that the office had to be ready by that time. The testimony from these radiological technologists that they were never expressly “required” to arrive prior to 8:00 a.m. by their supervisors does not change this result. If the proper performance of their job required the preparatory work to be completed when the first walk-in patient could potentially arrive, this time should have been counted, regardless of whether anybody specifically instructed them to arrive early. See generally Mitchell, 350 U.S. 260, 76 S.Ct. 337, 100 L.Ed. 282. Moreover, pursuant to a regulation promulgated under the FLSA, an employee must be compensated for time she works outside of her scheduled shift, even if the employer did not ask that the employee work during that time, so long as the employer “knows or has reason to believe that [the employee] is continuing to work” and that work was “suffered or permitted” by the employer. See 29 C.F.R. § 785.11. The evidence described above is sufficient for a jury to find that New Rochelle knew or had reason to know that Kosakow arrived early each morning in order to work, and permitted her to do so. Accordingly, this time would be included in Kosakow’s hours worked. In sum, drawing all inferences in Kosakow’s favor, questions of material fact exist as to whether it was necessary for her to complete her preparatory activities by 8:00 a.m. Because a fact-finder could conclude that these activities were “an integral part of and indispensable to” the activities for which Kosakow was principally employed, this time may be compensable under the FLSA, notwithstanding the Portal-to-Portal Act. Mitchell, 350 U.S. at 263, 76 S.Ct. at 339. Accordingly, the district court erred in granting summary judgment on this ground. 3. De minimis The final ground upon which the district court based its determination that Kosakow was not entitled to include her morning preparation in her hours worked is that the time was properly excluded as de minimis. Kosakow, 88 F.Supp.2d at 207 (citing Reich, 45 F.3d at 652-53). Reich held that time spent by transit police charged with the care of police dogs was de minimis where that time was limited to restraining (and occasionally walking) the dogs during the officer’s commute to or from work. Id. In so holding, Reich adopted the three-part test set forth by the Ninth Circuit, holding that factors to be considered in determining whether time should be excluded from compensation as de minimis were: “(1) the practical administrative difficulty of recording the additional time; (2) the size of the claim in the aggregate; and (3) whether ‘the claimants performed the work on a regular basis.’ ” Id. at 652 (quoting Lindow v. United States, 738 F.2d 1057, 1063 (9th Cir.1984)). Applying these factors to the present case, Kosakow’s fifteen minutes of preparatory work each morning are not properly excluded as de minimis. Initially, the time in question in Reich is distinguishable from the time worked by Kosakow. The transit police in Reich spent only a couple of minutes when it was necessary to discipline or walk their dogs, and, more importantly, this was an extremely infrequent occurrence on the whole. Id. at 652-53; see also id. at 648 n. 3 (noting that testimony varied from no stops during the previous year to twenty stops per year). In contrast, Kosakow claims that her early arrival was necessary for the office to be ready to receive patients by 8:00 a.m. every day, and, consequently, she would arrive at 7:45 a.m. each day she worked. As already stated, a question of fact exists as to whether Kosakow in fact arrived at 7:45 a.m. each morning, but, if she did, this regular arrival for fifteen minutes of preparatory work would not constitute de minimis activity. It would not be difficult to calculate, in the aggregate it constituted a significant amount of time, and it occurred regularly. Cf. Reich, 45 F.3d at 652. Accordingly, the district court erred in holding that this time was excludable as de minimis. In sum, none of the three grounds upon which the district court relied are sustainable. Accordingly, we conclude that the district court erred in holding that, as a matter of law, the fifteen minutes Kosakow worked each morning could not be included in her hours worked under the FMLA. b. Date of Leave New Rochelle also challenges the district court’s determination that questions of fact existed as to whether January 11, 1997, was the starting date of Kosa-kow’s leave, not January 14, 1997, the date of her operation. If Kosakow is correct that the starting date was January 11, 1997, then the twelve months prior to the start of her leave would include January 11, 1996 and January 12, 1996. On each of these dates, she was paid for eight hours of work, and, accordingly, her total hours worked would increase by sixteen hours. Kosakow testified that she informed her employer that her last day of work before her operation would be Friday, January 10, 1997. In addition, it is not disputed that Kosakow was often scheduled to work on Saturdays, but she did not work on Saturday, January 11, 1997. In reviewing this evidence, the district court concluded that a question of fact existed as to whether it was possible that Kosakow would have been scheduled to work on Saturday, January 11, 1997, if she had not informed New Rochelle that her last day of work would be January 10, 1997. Accordingly, if it were possible she would have been scheduled on January 11, 1997, then that was her first day off from work, and thus was the start date of her leave. New Rochelle argues that there was no possibility that Kosakow would have been scheduled to work on Saturday, January 11, 1997, and, therefore, her leave did not begin until Monday, January 14, 1997. In support of this argument, New Rochelle points out that Kosakow was generally only scheduled to work every third Saturday and was never scheduled to work two Saturdays in a row. Because she worked the previous Saturday (January 4, 1997), New Rochelle contends, no juror could reasonably conclude that she might have been scheduled to work on January 11, 1997 had she not informed New Rochelle that January 10, 1997 would be her last day. New Rochelle’s argument is not without force, but, ultimately, it cannot be said that no reasonable juror could credit Kosakow’s position. Kosakow’s Saturday work schedule was not so regular such that it is inconceivable that she may have been scheduled to work on January 11, 1997. While generally she did work every third Saturday, on occasion she worked every other Saturday. Moreover, notwithstanding New Rochelle’s assertion to the contrary, on at least one occasion in the year in question she was scheduled to work on consecutive Saturdays. The district court did not err in holding that these irregularities, combined with Kosakow’s testimony that she informed New Rochelle that her last day would be January 10, 1997, would allow a reasonable juror to conclude that, had she not requested time off, she may have been scheduled to work on Saturday, January 11, 1997. If so, then her leave began on January 11, 1997. Accordingly, the district court was correct in holding that a question of fact exists as to whether the sixteen hours Kosakow worked on January 11 and 12, 1996, should be counted toward her eligibility under the FMLA. c. Hours Spent at Continuing Education Courses The district court also determined that Kosakow had raised questions of fact concerning whether 18.5 hours spent in attending, and traveling to and from, continuing education courses provided by the American Registry of Radiologic Technologists (“ARRT”) should be included in her total hours worked in the year prior to her medical leave. Specifically, the district court held that questions of fact remained as to the number of hours Kosakow spent at these seminars, as well as the exact nature of the seminars. Kosakow, 88 F.Supp.2d at 208. New Rochelle challenges this determination, arguing that these hours should not count toward Kosakow’s eligibility under the FMLA. Because the FMLA derives its standards for calculating hours of service from Section 7 of the FLSA, the question whether time spent at training seminars should count toward an employee’s eligibility under the FMLA is governed by the FLSA. See 29 U.S.C. § 2611(2)(C). Pursuant to regulations promulgated under the FLSA, the time that an employee spends at “lectures, meetings, training programs and similar activities” need not be counted toward that employee’s hours worked where: [1.] Attendance is outside of the employee’s regular working hours; [2.] Attendance is in fact voluntary; [3.] The course, lecture, or meeting is not directly related to the employee’s job; and [4.] The employee does not perform any productive work during such attendance. 29 C.F.R. § 785.27. New Rochelle argues that the above criteria are met. Because the first and fourth elements are not disputed, the parties focus on whether the continuing education courses were voluntary and whether they were related to Kosakow’s job. In particular, New Rochelle relies on 29 C.F.R. § 785.30, a regulation related to the third element above, which provides: Of course, if an employee on his own initiative attends an independent school, college or independent trade school after hours, the time is not hours worked for his employer even if the courses are related to his job. 29 C.F.R. § 785.30. This regulation has been interpreted by the Department of Labor (the “DOL”) in two opinion letters. See Opinion Letter from Dept. of Labor, Wage and Hour Div. (Sept. 15, 1997), 1997 WL 998038; Opinion Letter from Dept. of Labor, Wage and Hour Div. (Sept. 9, 1996), 1996 WL 1031798. In both letters, the DOL addressed the question of whether time spent by employees in training seminars or classes required by state licensing regulations was compensable under the FLSA. The DOL advised that where the training is required by the employer, the second element in 29 C.F.R. § 785.27, namely, voluntariness, would not be met because this would not be “voluntary” with respect to the employee. See Opinion Letter from Dept, of Labor, Wage and Hour Div. (Sept. 9, 1996), 1996 WL 1031798. On the other hand, seminars or classes required by the state for individual licensing in the employee’s field would be considered voluntary. Id. Similarly, the DOL recognized that 29 C.F.R. § 785.30 mandates that the third element need not be met where an employee, on his or her own initiative, attends training at an independent school. Pursuant to this regulation, the DOL advised that attendance at training of general applicability which “enables the individual to gain or continue employment with any employer” need not be compensated. See Opinion Letter from Dept. of Labor, Wage and Hour Div. (Sept. 9, 1996), 1996 WL 1031798. An important consideration in making this determination is whether the state regulation imposed the licensing requirement on the employer or the individual employee. In the former instance it is more likely that the time must be compensated; in the latter it is less likely. Id. New Rochelle argues that the time Ko-sakow spent at the radiologist continuing education seminars is indistinguishable from time spent at the state-required training described in the two opinion letters. As such, New Rochelle contends the time spent at these seminars need not be compensated pursuant to the FLSA, and, accordingly, would not be included in determining Kosakow’s eligibility under the FMLA. Kosakow counters by pointing out that New Rochelle specifically required that she maintain ARRT certification, and that ARRT certification requires her attendance at continuing education courses. Thus, she contends, her attendance at these courses was not voluntary. Moreover, Kosakow argues, New Rochelle offered to pay expenses which “relate[d] directly to the employee’s position or provide[d] beneficial information to be shared in the employee’s department.” Indeed, it appears that New Rochelle enrolled Kosakow in these continuing education courses, paid Kosakow for 1.5 hours she spent at one such seminar, and paid her tuition and registration fees. Kosakow, 88 F.Supp.2d at 207. We find no statute or regulation requiring that radiologists be certified by the ARRT, or that radiologists attend continuing education seminars. New York requires all applicants for a licensure as radiologic technologists in New York to pass a written examination. N.Y. Pub. Health Law § 3506(1) (McKinney’s 1985). To be sure, an applicant may be able to qualify by submitting evidence that she has passed a similar test offered by ARRT, id. § 3506(5), but it does not appear, and New Rochelle does not claim, that there is any state requirement that radiologic technicians be certified by ARRT. If Kosakow is able to prove that she was attending these courses as a requirement of her employer, not because she was required to do so by the state, then the attendance would not be considered “voluntary,” and thus must be compensated under the FLSA. See 29 C.F.R. § 785.27. Accordingly, the district court did not err in holding that issues of fact remained concerning whether Kosakow’s attendance at these seminars was voluntary. In sum, questions of fact exist with respect to all three categories of hours Kosa-kow claims beyond the time reflected on her timesheets. If these questions are resolved in her favor, she will have worked 1259.75 hours in the twelve months prior to her leave, and would consequently be an eligible employee under the FMLA. (2) Equitable Estoppel The district court further held that, even assuming Kosakow fails to establish that she met the minimum hours requirement of the FMLA, New Rochelle is estopped from challenging her eligibility due to its failure to post notices required by the FMLA. Kosakow, 88 F.Supp.2d at 209. New Rochelle argues that the FMLA is clear that only an employee who has worked 1250 hours in the twelve months prior to the start of her leave is eligible for FMLA protection, see 29 U.S.C. § 2611(2)(A), and, accordingly, Kosakow cannot state a claim under the FMLA because she simply cannot meet the definition of an “eligible employee.” Moreover, New Rochelle argues she cannot be “deemed eligible” under 29 C.F.R. § 825.110(d) due to New Rochelle’s failure to notify her of the FMLA requirements because such a determination would be in conflict with the clear statutory definition of an “eligible employee.” See Woodford v. Community Action of Greene County, Inc., 268 F.3d 51, 2001 WL 1191393, at *3 (2d Cir. Oct.10, 2001)(finding regulation invalid because it purported to extend eligibility to employee who had not met 1250 hour requirement); see also Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 795-97 (11th Cir.2000) (same); Dormeyer v. Comerica Bank-Illinois, 223 F.3d 579, 582-83 (7th Cir.2000) (same). New Rochelle’s argument misses the mark. The district court did not find that Kosakow should be “deemed eligible” under the FMLA; it held that New Rochelle, by failing to comply with the notice requirements of the FMLA, was estopped from contesting Kosakow’s eligibility. See Kosakow, 88 F.Supp.2d at 209. Accordingly, Woodford, Brungart and Dormeyer are inapposite. These cases invalidated 29 C.F.R. § 825.110(d), which purports to “deem[ ] eligible” an employee where “the employer falls to advise the employee of whether the employee is eligible [for FMLA leave] prior to the date the requested leave is to commence.” 29 C.F.R. § 825.110(d). As Woodford pointed out, such a provision has the result of changing the statutory definition of who is an eligible employee, an effect that is beyond the authority of the Department of Labor. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984); see also Woodford, 268 F.3d 51, 54. By its terms, the regulation would purport to “deem[ ] eligible” an employee who worked for only one hour solely because the employer failed to notify the employee that she was not eligible for FMLA protection. See Dormeyer, 223 F.3d at 582. So read, the regulation would create eligibility for an employee despite the fact that the lack of notice in no way contributed to the employee’s ineligibility. Consequently, the regulation is invalid. Woodford, 268 F.3d 51, 57. Kosakow does not simply rely on this regulation, however. Rather, Kosakow maintains that New Rochelle should be estopped from challenging her eligibility as a result of its misconduct in failing to fulfill its statutory duty to inform her of what she needed to do to become eligible. She contends that she relied on New Rochelle to inform her of her eligibility, and had the defendant fulfilled this duty, she would have worked the hours necessary to meet the eligibility requirements prior to undergoing her surgery. As in Woodford, under the right circumstances, equitable estoppel may be available to a plaintiff in Kosa-kow’s position. Woodford, 268 F.3d 51, 57, n. 2. The district court found that under these circumstances, New Rochelle is es-topped from challenging Kosakow’s eligibility. In so holding, the district court relied on Fry v. First Fidelity Bancorporation, No. Civ. A. 95-6019, 1996 WL 36910 (E.D.Pa.1996). Fry is not precisely on point, however. In Fry, there was no question that the employee met the 1250 hour requirement and was an eligible employee under the FMLA. The issues in Fry involved an employee who took a sixteen-week leave, based, .she claimed, on the employer’s failure to notify her that this leave would not be protected under the FMLA and on misleading notifications in the employee handbook. The district court held that an employer’s failure to post required notices, in and of itself, can give rise to a claim of “interference with an employee’s FMLA rights” where such failure causes the employee to “unwittingly forfeit the protection of the FMLA.” Id. at *5. In other words, Fry stands for the proposition that, 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. Fulham v. HSBC Bank USA, No. 99-CV-11054 (JGK), 2001 WL 1029051, at *7-8 (S.D.N.Y. Sept.6, 2001) (distinguishing cases where failure to notify properly a plaintiff of FMLA rights may violate plaintiffs FMLA rights); see also Mora v. Chem-Tronics, Inc., 16 F.Supp.2d 1192, 1219-28 (S.D.Cal.1998) (following Fry); Mion v. Aftermarket Tool & Equip. Group, 990 F.Supp. 535, 539 (W.D.Mich. 1997) (same); Kruse v. Laguardia Hosp., 95-CV-4467 (JG), 1996 WL 1057147, at *5 (E.D.N.Y. Nov. 6, 1996) (same). Accordingly, this proposition, and the validity of which we do not address here, is only applicable where the employee has the power to maintain a cause of action under the FMLA in the first instance. If Kosakow does not meet the 1250 hour requirement, however, she cannot take advantage of the reasoning in Fry. Even accepting for argument’s sake that an “interference” cause of action exists for the employer’s failure to post a required notice, as described in Fry, only an eligible employee is entitled to bring such an action. Specifically, Fry based liability on §§ 2615 and 2617 of the FMLA. Section 2615 provides that it “shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.” 29 U.S.C. § 2615(a)(1). A private right of action is created for violation of § 2615 by § 2617(a)(1), which provides that “[a]ny employer who violates section 2615 of this title shall be liable to any eligible employee affected.” 29 U.S.C. § 2617(a)(1) (emphasis added). As noted, there was no dispute in Fry that the employee was an “eligible employee” in that she had worked for at least twelve months prior to her leave and had accumulated at least 1250 hours. Fry, 1996 WL 36910, at *1. As such, she was entitled to bring an interference claim under § 2617 based on the lack of notice. The same cannot be said of Kosakow. Consequently, Kosakow cannot state a Fry interference claim unless she is able to establish her eligibility. One district court in this circuit has extended the reasoning in Fry to confer eligibility upon an otherwise ineligible employee. See LaCoparra v. Pergament Home Centers, Inc., 982 F.Supp. 213 (S.D.N.Y.1997). The court in LaCoparra held that an employee who failed to meet the 1250 hour requirement for eligibility under the FMLA may, nonetheless, state a cause of action for interference where the employee’s ineligibility was caused by the employer’s failure to provide notice. Id. at 219-220. We disagree with this holding insofar as the court in LaCoparra failed to require that the plaintiff establish all of the elements of equitable estoppel. The FMLA does not provide a private right of action for any employee, only for “eligible employee[s].” 29 U.S.C. § 2617(a)(1). LaCo-pam purports to create a cause of action under § 2617 even where the employee does not meet the statutory requirements of an eligible employee set forth under the FMLA. See 29 U.S.C. § 2611(2)(A) (eligibility requirements). The language of the statute does not permit this result. On the other hand, nothing prevents a court from exercising its equitable powers to estop a party from raising a particular claim or defense. The doctrine of equitable estoppel is a judicial doctrine of equity which operates apart from any underlying statutory scheme. If all the elements of equitable estoppel are met, an employer may be estopped from challenging an employee’s eligibility as a result of the employer’s misconduct in failing to post the required notice. Thus, the question becomes whether, assuming Kosakow does not prevail on her arguments that she has met the minimum 1250 hour requirement, New Rochelle should be equitably estopped from challenging her eligibility due to its failure to post required notices. Because this is an equitable estoppel claim under a federal statute, federal law principles of equitable estoppel are applicable. See, e.g., Wall v. Constr. & Gen. Laborers’ Union, Local 230, 224 F.3d 168, 175-76 (2d Cir.2000). The doctrine of equitable estoppel is properly invoked where the enforcement of the rights of one party would work an injustice upon the other party due to the latter’s justifiable reliance upon the former’s words or conduct. See In re Ionosphere Clubs, Inc., 85 F.3d 992, 999 (2d Cir.1996). Under federal law, a party may be estopped from pursuing a claim or defense where: 1) the party to be estopped makes a misrepresentation of fact to the other party with reason to believe that the other party will rely upon it; 2) and the other party reasonably relies upon it; 3) to her detriment. See Heckler v. Community Health Services of Crawford County, Inc., 467 U.S. 51, 59, 104 S.Ct. 2218, 2223, 81 L.Ed.2d 42 (1984) (citing Restatement (Second) of Torts § 894 (1979)); Buttry v. Gen. Signal Corp., 68 F.3d 1488, 1493 (2d Cir.1995). Whether equitable estoppel applies in a given case is ultimately a question of fact. Bennett v. United States Lines, Inc., 64 F.3d 62, 65 (2d Cir.1995). There can be little doubt that Kosakow has raised a genuine issue of fact with respect to the second and third elements of equitable estoppel. Kosakow knew that she required surgery as of November 13, 1996, two months prior to the scheduled date of her operation. She argues that, had she been informed by New Rochelle that she needed to have accumulated 1250 hours of work in order that her leave be protected by the FMLA, as was their legal duty to inform her, she would have made sure to work the necessary hours. Given the fact that, if she does fall short of the requirement at all, it will be by less than fifty hours, it would not be unreasonable to infer that she would have been able to ensure that she met the mandatory minimum prior to her surgery. Thus, she argues, she justifiably relied on New Rochelle for this information, which they did not provide, and she suffered a detriment as a result. The first element-namely, did New Rochelle make a misrepresentation of fact-presents two issues that must be resolved. First, it is agreed by the parties that New Rochelle did not make any affirmative misrepresentation, it merely remained silent. Thus, the question is whether, in the present circumstances, silence can constitute an affirmative misrepresentation. The law has long been that where a party has a legal duty to speak, silence can constitute an affirmative “misrepresentation.” See United States v. Wynshaw, 697 F.2d 85, 87 (2d Cir.1983); see also LHLC Corp. v. Cluett, Peabody & Co., Inc., 842 F.2d 928, 932 (7th Cir.1988); Katz v. Colonial Life Ins. Co., 951 F.Supp. 36, 41 (S.D.N.Y.1997). In the present case, the FMLA imposes a legal duty upon the employer to inform its employees of the conditions that they must meet in order to be covered by the FMLA. See 29 U.S.C. § 2619. Moreover, an employer must notify an employee who plans to take medical leave whether her proposed leave is covered by the FMLA before the employee takes the leave. 29 C.F.R. § 825.110(d); see also 29 C.F.R. § 825.219(a) (employer must, prior to employee taking leave, notify employee that employee is ineligible for FMLA protection because she is a “key employee”). Read together, these provisions indicate that an employee can generally assume that she is protected by the FMLA unless informed otherwise. Accordingly, an employer who remains silent when its employee announces that she plans to take medical leave is effectively misleading that employee into believing that she is protected by the FMLA. Under these circumstances, New Rochelle’s silence in the face of its legal duty to inform Kosakow of her ineligibility is properly construed as an affirmative misrepresentation. The second issue with respect to New Rochelle’s alleged misrepresentation by silence is whether it is necessary that New Rochelle intended, to mislead Kosakow by its silence. On occasion, our cases have stated that a party should not be estopped absent some evidence of “bad faith or deliberate misconduct” by that party. Tadros v. Coleman, 898 F.2d 10, 12 (2d Cir.1990); see also Cook v. Pan Amer. World Airways, Inc., 771 F.2d 635, 646-47 (2d Cir.1985) (finding no estoppel because no evidence showed “deliberate design” or actions that the party “should unmistakably have understood would cause the employee to delay filing his charge”) (quoting Price v. Litton Bus. Sys., Inc., 694 F.2d 963, 965 (4th Cir.1982)); O’Malley v. GTE Service Corp., 758 F.2d 818, 822 (2d Cir.1985) (also relying on and quoting Litton). In each of these cases, however, it appears that the party seeking the estoppel failed to present evidence of any misrepresentations, and it accordingly does not appear that the lack of intent was a dispositive factor in any of them. Tadros, 898 F.2d at 12; Cook, 771 F.2d at 647; O’Malley, 758 F.2d at 822. Moreover, our cases have generally not included any reference to intent when evaluating equitable estoppel claims under federal law, requiring only a “material” or “definite” misrepresentation. See, e.g., Wall, 224 F.3d at 176 (“definite misrepresentation”); Starter Corp. v. Converse, Inc., 170 F.3d 286, 294 (2d Cir.1999) (“material misrepresentation”); Buttry, 68 F.3d at 1493 (“definite misrepresentation”); Bennett, 64 F.3d at 65 (“material misrepresentation”). This court has never directly addressed the question raised in the present ease, namely, whether a material and definite misrepresentation, by silence or otherwise, without evidence of an intent to deceive, can satisfy the “material misrepresentation” element of an estoppel claim under federal law. Our analysis is guided by the Supreme Court’s decision in Heckler. In Heckler, the Court addressed the application of estoppel under federal law, and, in so doing, quoted and adopted the elements of estoppel set forth in § 894(1) of the Restatement (Second) of Torts. Heckler, 467 U.S. at 59, 104 S.Ct. at 2223. The Restatement, while requiring a “definite misrepresentation,” does not require any intent to deceive by the party to be es-topped. Restatement (Second) of Torts at § 894(1). In the Comment section, the Restatement makes clear that estoppel is appropriate even where “the one making the representation believes that his statement is true,” and, moreover, “it is immaterial whether the person making the representation exercised due care in making the statement.” Restatement (Second) of Torts, § 894(1), cmt. b. Because the Supreme Court adopted the Restatement’s estoppel elements, those elements will be applied as fully explained in the Restatement. Accordingly, we hold that a party may be estopped where that party makes a definite misrepresentation (or, in the present case, a misrepresentation by silence) and had reason to believe the other party would rely upon it, regardless of whether the person making the representation intended to deceive. The present case provides a sufficient basis for invoking the doctrine. New Rochelle was under a legal duty to inform its employees of the protections of the FMLA and what was required of its employees in order that they qualify for those protections. If New Rochelle failed to post the required notices or include the required information in its employee manual, then New Rochelle failed to fulfill this legal duty and would have deprived Kosakow of the opportunity to take her leave under the shelter of the FMLA. In such circumstances, it could not be argued that Kosa-kow had not met the requirements of the statute if this shortcoming were a result of New Rochelle’s failure to relay those requirements to her. Kosakow’s operation was not an emergency, but rather was long-planned and it would appear that there was no reason that it could not have been rescheduled. If these are the facts, the district court could conclude that New Rochelle is estopped from maintaining that Kosakow was ineligible for FMLA protection. (3) Collateral Estoppel Having found that Kosakow may be entitled to FMLA protection, it must be determined whether she is, nonetheless, precluded from litigating her FMLA claim. Kosakow has already presented her case to the DHR, albeit under a different legal theory, and that agency determined that there was no probable cause to believe that her termination was the result of discrimination. Having chosen to make her claim before a state administrative agency, the district court held that Kosakow was precluded by collateral estoppel from now bringing an FMLA claim in district court based on the same facts and circumstances. This case presents an issue that has not been directly decided in this circuit. Specifically, does a determination of no probable cause by the DHR, reached without a hearing and unreviewed in state court, preclude litigation of a subsequent claim in federal court based on the same events. The analysis of this issue must begin with the Supreme Court’s decision in Kremer v. Chemical Constr. Corp., 456 U.S. 461, 102 S.Ct. 1883, 72 L.Ed.2d 262 (1982). In Kremer, the Court addressed whether a no-probable-cause determination by the DHR that has been reviewed and affirmed by a state court has preclu-sive effect on a subsequent Title VII action. Id. at 463, 102 S.Ct. at 1888. The Court’s inquiry focused on the interaction between Title VII and 28 U.S.C. § 1738, which mandates that federal courts “afford the same full faith and credit to state court judgments that would apply in the State’s own courts.” Id. at 462-63, 102 S.Ct. at 1887. The Court reasoned that, unless Title VII expressly or implicitly overruled § 1738, the New York state court affirmation of the agency’s finding of no probable cause would preclude federal litigation based on the same facts. Finding no express or implicit repeal of § 1738 in Title VII, the Court held that the state court affirmation of the no-probable-cause determination was binding on the federal court, id. at 468 78, 102 S.Ct. at 1890-96, provided that the procedures followed in coming to that determination satisfied the minimum constitutional requirements of the due process clause. Id. at 481-82, 102 S.Ct. at 1897-98. After evaluating the process undertaken by the DHR, including subsequent review for abuse of discretion in state court, the Court held that the DHR proceeding satisfied the requirements of the due process clause. Id. at 482-85, 102 S.Ct. at 1898-99. The decision in Kremer, however, was founded on the role of the state court in affirming the no-probable-cause determination of the DHR. Indeed, § 1738 only requires that federal courts give full faith and credit to decisions of state courts, and has no application to the decisions of state administrative agencies. The respect that federal courts must give to decisions of state administrative agencies was addressed by the Supreme Court in Univ. of Tenn. v. Elliott, 478 U.S. 788, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986). In Elliott, an employee of the University of Tennessee brought an action against the University, alleging that his discharge was racially motivated. Id. at 790, 106 S.Ct. at 3221-22. The employee was granted a full hearing, at which he was represented by counsel and was afforded the right to call and cross-examine witnesses. See Elliott v. Univ. of Tenn., 766 F.2d 982, 985 (6th Cir.1985) (noting that Elliott’s counsel questioned nearly one hundred witnesses at the hearing), affd in part, rev’d in part, Univ. of Tenn. v. Elliott, 478 U.S. 788, 106 S.Ct. 3220, 92 L.Ed.2d 635 (1986). At the close of this hearing, the administrative law judge determined that his termination was not motivated by racial animus. Elliott, 478 U.S. at 791, 106 S.Ct. 3220. The employee did not seek judicial review of that determination in state court, pursuing instead an action in federal court under Title VII and § 1983. Id . at 792, 106 S.Ct. 3220. Thus, the Supreme Court was presented with the question of what pre-clusive effect the federal court should give to the administrative determination. The Court first addressed Elliott’s claims under Title VII. Because Title VII expressly mandates that state administrative agency decisions be given only “substantial weight,” the Court held that Congress did not intend the decisions of state agencies be given claim or issue preclusive effect in a Title VII case. Elliott, 478 U.S. at 795-96, 106 S.Ct. at 3224-25. Consequently, unreviewed decisions of state administrative agencies will not bar a subsequent de novo trial under Title VII in federal court. Elliott’s § 1983 claim presented a different question, however, because that statute does not expressly limit the weight given to the determinations of state administrative agencies. The Court held that, in § 1983 actions, the factual determinations of a state administrative agency, acting in a judicial capacity, are entitled to the same issue and claim preclusive effect in federal court that the agency’s determinations would receive in the State’s courts. Elliott, 478 U.S. at 798-99, 106 S.Ct. at 3226 (citing United States v. Utah Const. & Mining Co., 384 U.S. 394, 421-22, 86 S.Ct. 1545, 1559-60 (1966)). a. Congressional intent in the FMLA Under Elliott, therefore, the threshold question that must be answered is whether, in enacting the FMLA, Congress expressly or implicitly limited the preclusive effect to be given to the determinations of state administrative agencies, as it did under Title VII. Interestingly, neither party addressed this issue, both proceeding under the assumption that Congress imposed no such limitation in the FMLA. Although the parties ultimately are correct that the FMLA does not limit the preclusive effect given to the findings of state administrative agencies, this important question of law should be addressed because it would be dispositive of New Rochelle’s argument. Accordingly, we turn to the FMLA to analyze whether it places any such limitations on the preclusive effect of the findings by state administrative agencies. Unlike Title VII, the FMLA contains no express provision governing the weight to be given a state agency’s factual determinations. The absence of such a provision does not, however, dictate that no such limitation exists. The Supreme Court has found such limitations implicitly. For example, in Astoria Fed. Sav. & Loan v. Solimino, 501 U.S. 104, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991), the Supreme Court held that the Age Discrimination in Employment Act (“ADEA”) implicitly deprived state administrative agency determinations of preclusive effect. Id. at 110-14, 111 S.Ct. at 2171-73. Specifically, the Court recognized that the ADEA mandates that, where state law forbids discrimination on the basis of age, a complainant may pursue a federal complaint only after completing proceedings under that state law. Id. at 110-11, 111 S.Ct. 2166. Finding that this provision implicitly contemplated federal review even after a state administrative decision, the Court held that Congress, in enacting the ADEA, intended that factual determinations of state administrative agencies not have pre-clusive effect in federal court. Id. The FMLA contains no provision dealing with prior state administrative actions. Indeed, there is no indication of a Congressional intent anywhere in the FMLA to limit the preclusive effect of state administrative agency factual determinations. The issue is simply not addressed, and, accordingly, we cannot say definitively that Congress intended to limit the role that a state administrative agency’s findings would play in a subsequent suit under the FMLA in federal court. Thus, the ultimate question must be addressed here— whether, under New York law, which governs the matter of collateral estoppel, see Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 381-82, 105 S.Ct. 1327, 1332-33, 84 L.Ed.2d 274 (1985), the finding of no probable cause by the DHR precludes subsequent litigation of causes of action based on the same events, even where the claimant was not provided with a hearing and the no-probable-cause finding was not reviewed by a state court. b. Preclusive effect of the DHR determination This court has addressed the issue of what preclusive effect the DHR’s no-probable-cause determination should be given in federal court on several occasions. After Elliott was decided, this court turned to the issue of the preclusive effect of a DHR no-probable-cause determination in DeCintio v. Westchester County Med. Ctr., 821 F.2d 111 (2d Cir.1987). The claimant in DeCintio was an employee who was suspended and ultimately terminated for allegedly violating the policies of the hospital which employed him. Prior to his termination, he participated in an administrative hearing, pursuant to New York Civil Service Law § 75, reviewing allegations of misconduct against him. The hearing officer recommended that DeCintio be terminated, and he subsequently was. DeCintio then challenged this termination by filing a complaint with the DHR, which found no probable cause to believe that his termination was the result of discrimination. Id. at 112-13. DeCintio subsequently filed a suit in federal court, alleging violations of Title VII and § 1983. Following Elliott, DeCintio held that, because the DHR’s determination was never reviewed in state court, DeCintio was entitled to a trial de novo in federal court with respect to his Title VII claim. Id. at 114-15. However, DeCintio’s § 1983 claim was precluded by his § 75 hearing and the determination of no probable cause by the DHR. Id. at 116-18. Notably, DeCintio’s retaliation claim, which he did not litigate at his § 75 hearing, was also precluded. Id. at 116-18. In so holding, however, the court recognized that DeCintio had the opportunity to litigate this claim at his § 75 hearing, but simply failed to do so. Id. at 116. Alternatively, his retaliation claim was precluded based solely on the no-probable-cause determination of the DHR, notwithstanding the fact that he did not receive a full hearing on the issue. Id. at 116-18. Finally, in Kirkland v. Peekskill, 828 F.2d 104, 108 (2d Cir.1987), it was determined that a no-probable-cause finding by the DHR would have preclusive effect on subsequent §§ 1981, 1983, 1985, and 1986 claims. The claimant in Kirkland sought state court review of the DHR determination, but was denied relief for failure to name a necessary party in his appeal. Id. at 109. The claimant was precluded from litigating his claim