OPINION AND ORDER GRANTING DEFENDANT’S MOTION TO DISMISS (Doc. 9) Plaintiff John Varecka brings this putative class action against Defendant CSX Transportation, Inc. (“CSX”), his employer, alleging CSX interfered with his rights under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§2601-2654. Pending before the court is CSX’s September 21, 2021 motion to dismiss Plaintiffs Complaint (Doc. 9). Plaintiff opposed the motion on October 6, 2021, and CSX replied on October 13, 2021, at which time the court took the motion under advisement. The issue presented is one of first impression in the Second Circuit: whether hours an employee would have worked but for a wrongful termination should count towards FMLA eligibility upon reinstatement. Plaintiff is represented by Jonathan E. Staehr, Esq., Jonathan L. Stone, Esq., and Nicholas D. Thompson, Esq. CSX is represented by Susan C. Roney, Esq., and Thomas R. Chiavetta, Esq. I. Allegations in the Complaint. Plaintiff is a resident of New York and has been employed for thirteen years by CSX, which provides freight rail services in several states, including New York. Plaintiff suffers from a serious health condition and was granted intermittent FMLA leave by CSX. In 2018, CSX accused Plaintiff of abusing his FMLA leave by using it to take off holidays and terminated him. Plaintiff challenged his termination in arbitration pursuant to a collective bargaining agreement. In 2021, in a series of decisions addressing separate incidents of allegedly improper use of FMLA leave, the arbitrator “found for [Plaintiff], reinstating him with backpay.” (Doc. 1 at 4, 27.) Because the Complaint “relies heavily upon [the] terms and effect” of the arbitration decisions (Docs. 9-2 & 9-3), they are integral to the Complaint and the court may consider them in deciding the motion to dismiss. Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (quoting Int’l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir.1995) (per curiam)). The decisions are also subject to judicial notice, which CSX requests and Plaintiff does not oppose, because they “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b); see also Cox v. Perfect Bldg. Maint. Corp., 2017 WL 3049547, at *3 (S.D.N.Y. July 18, 2017) (“[C]ourts have regularly taken judicial notice of arbitration awards…in considering a motion to dismiss[.]“) (collecting cases); Caldarera v. Int’l Longshoremen’s Ass’n, Loc. 1, 765 F. App’x 483, 485 n.2 (2d Cir. 2019) (“The District Court took judicial notice of the [arbitration] decision pursuant to Federal Rule of Evidence 201(b). We identify no error in this regard.”). Plaintiffs challenge to his termination resulted in two arbitration awards by the National Railroad Adjustment Board (“NRAB”), both issued on January 14, 2021. The first decision addressed Plaintiffs alleged misuse of FMLA leave on or about Christmas 2017. The NRAB found that CSX had previously warned Plaintiff regarding his misuse of FMLA leave in February 2017. The NRAB was “satisfied” that CSX “established that [Plaintiff] had a pattern of FMLA use in connection with holidays, thereby creating the presumption that his use of leave on this holiday might not have been related to his FMLA leave approval.” (Doc. 9-2 at 5.) The NRAB nonetheless concluded that CSX had not “met its burden of proof to support its charge” because Plaintiff presented evidence to the hearing officer, although he “did not wish to have it entered into the record because it contained personal information[,]” that he “ was seen at [an] urgent care center for dizziness” on December 23, 2017. Id. The NRAB held that “[b]ecause [Plaintiff] submitted the documentation requested by the [h]earing [o]fficer, who then reviewed it on the record, [CSX] has not shown that [Plaintiff] abused his FMLA leave in this instance.” Id. The NRAB ordered that “[t]he discipline imposed must be rescinded and [Plaintiff] made whole.” Id. The NRAB’s second decision considered Plaintiffs alleged misuse of FMLA leave during the New Year holiday in 2018. The hearing officer refused to allow Plaintiffs girlfriend to testify that she had taken care of Plaintiff during his absence, incorrectly labeling her testimony as “hearsay.” (Doc. 9-3 at 5.) The NRAB found that the hearing officer’s “refusal to take her testimony was a denial of [Plaintiffs] fundamental right to due process and a violation of the [collective bargaining a]greement, which affords an employee the right to present necessary witnesses.” Id. Describing this error as “fatal[,]” the NRAB ordered “ that the discipline be rescinded and that [Plaintiff] be made whole for wages lost in accordance with the parties’ [a]greement and/or past practice.” Id. After he was reinstated, Plaintiff again applied for FMLA leave. CSX rejected his request because he had not worked the requisite number of hours in the preceding year to qualify for it. Plaintiff alleges that his “unlawful termination is the only reason he had not worked enough qualifying hours during the preceding year” and that the “FMLA prohibits employers from benefiting from an unlawful termination when determining qualifying hours.” (Doc. 1 at 4,
