Kim v. Bogopa Services Corporation

Filing 38

ORDER granting 30 Motion for Summary Judgment. Ordered by Judge I. Leo Glasser on 7/28/2017. (McBride, Katherine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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BONG CHUL KIM,
MEMORANDUM AND ORDER
Plaintiff,
15-CV-2174 (ILG) (LB)
- against BOGOPA SERVICES CORPORATION,
Defendants.
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GLASSER, Senior United States District Judge:
Plaintiff Bong Chul Kim (“Kim” or “Plaintiff”) brings this action against Bogopa
Services Corporation (“Bogopa” or “Defendant’) which owns and operates a chain of
supermarkets in New York, New Jersey, and Connecticut. ECF 1, (“Compl.”) ¶ 9. Plaintiff, an
employee of Bogopa from 2005 until his termination in October 2014, alleges that Defendant
failed to provide him with adequate notice—and thereby interfered with his rights—in violation
of the Family Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq (“FMLA”). Plaintiff also
alleges that Defendant unlawfully discriminated and retaliated against him due to his alleged
disability in violation of New York City Admin. Code § 8-101 et seq (“NYCHRL”). Pending
now before the Court is Defendant’s motion for summary judgment. For the reasons that follow,
Defendant’s motion is GRANTED.
FACTUAL BACKGROUND
The following material facts, drawn from the parties' Local Civil Rule 56.1 Statements
and evidentiary submissions, are undisputed unless otherwise noted.
Plaintiff graduated from high school, his highest level of education, in Korea in 1965.
ECF 30-1, Defendant’s Rule 56.1 Statement of Undisputed Facts (“Def. Rule 56.1 St.”) at ¶ 1.

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After emigrating to the United States in 1980, he worked first in a vegetable store and then in a
nail salon prior to being hired by the Defendant in 2005. Id. ¶¶ 4-7. Kim was first diagnosed with
depression in or about 2013. Id. ¶ 71. Medical records identify his condition as “Bipolar I
disorder, mania with psychotic features.” ECF 35 (“Berger Decl.”) Exh. GG. He is treated for
this condition by Doctors Cho and Lee. Def. Rule. 56.1 St. ¶ 72; Kim Dep. 84:8-20.
I.

Plaintiff’s Employment at Bogopa
Plaintiff began work at Bogopa in April 2005 as a “Produce Manager” at store #14, the

“Junction Boulevard” location. Def. Rule 56.1 St. ¶¶ 5-8. In this role, Plaintiff supervised and
disciplined employees, including issuing warnings to those employees who violated the
“company’s regulations and policy.” Id. ¶¶ 9, 11-13, 20. As with other employees, Plaintiff was
required to punch in and out to record his working hours. Id. ¶ 10. During his tenure, Bogopa
issued employee handbooks in 2006 and 2008 containing the company’s FMLA policy. ECF 30
(“Beekman Decl.”) Exhs. H, I. The parties dispute whether Bogopa maintained FMLA postings
in those stores where Plaintiff was employed. See Def. Rule 56.1 St. ¶ 15; Pl. Rule 56.1 St. ¶ 15.
Plaintiff was not the subject of disciplinary action in his first seven years of employment
with Bogopa. However, for the nearly two year period May 2012 to February 2014, Kim
received three Employee Warning Reports (“EWR”) for conduct violations including an
“unclean” produce section in his store, missing a day of work, and improper disposal of a
cigarette. Def. Rule 56.1 St. ¶¶ 21, 23, 24; Beekman Decl. Exh. M. Plaintiff did not challenge
these warnings. At an unknown date during this two year period, Plaintiff was reassigned from
store #14, to store #30 in the Bronx. Def. Rule 56.1 St. ¶ 23.
On February 26-27, 2014, Plaintiff received performance evaluations including ratings of
two, “needs improvement” and one, “counsel required.” Def. Rule. 56.1 St. ¶¶ 29, 30. Plaintiff

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submits that he informed one of his evaluators, William Ahn, about his depression. ECF 34,
Affidavit of Plaintiff Kim, (“Kim Aff.”) ¶ 5. Months later, on July 1, 2014, Kim was demoted
from Produce Manager to Department Clerk due to poor sales performance in his department.
Def. Rule. 56.1 St. ¶¶ 33, 34; ECF 30 Exh. D. (“Kevin Kim Dep.”) 15:2-9; ECF 30 Exh. N. With
the demotion, Plaintiff was transferred from store #30 to store #41 in Long Island City, where he
reported to Peter Suh and Michael Lee. Id. ¶ 35; Suh Rep. Aff. ¶ 1.
II.

Absence from Work
Kim did not report to work, unexcused, on August 7, 8, 9, or 10, and arrived late to work

on August 11 and 12, 2014. Def. Rule 56.1 St. ¶ 49; Pl. Rule 56.1 St. ¶ 49; Beekman Decl. Exh.
Q. Pending an investigation of these absences, he was suspended from work from August 13- 18,
2014. Def. Rule 56.1 St. ¶¶ 38, 42, 44. The suspension form includes a notation of “REFUSED
TO SIGN” next to the line for Kim’s signature, and includes a check next to the statement “I DO
NOT agree with the company statement.” Beekman Decl. Exh. P. That checkmark
notwithstanding, Plaintiff testified he does not remember seeing this report. Def. Rule 56.1 St. ¶
38, 40. On August 19, 2014, Kim returned to work and received a warning from supervisor
Michael Lee stating, “all infractions have been confirmed . . . Mr. Kim is hereby given a last
chance final warning and any infraction hereinafter will result in termination.” Id. ¶¶ 46- 47;
Beekman Decl. Exh. R.
III.

Vacation Leave and Additional Time Off
Kim took approved vacation leave from August 25 – September 7, 2014. Id. ¶ 53. On

September 5th, he had an appointment with Dr. Lee who noted that Plaintiff—who had
previously been diagnosed with “Schizoaffective Disorder”—had “relapsed,” meaning he “had a
setback and is worse.” Berger Decl. Exh. E. That same day, Kim called his supervisor, Mr. Suh,

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and advised that he was going to seek “medical help and treatment for a psychiatric illness,” and
had just booked travel to arrive in Korea on September 7, 2014, the day his vacation was
scheduled to end. ECF 30-34 (“Suh Aff.”) ¶ 17. See also Kevin Kim Dep. 8:12-20. He did not
provide a date of return. During that call, Mr. Suh advised Plaintiff that he would need to file a
request for a leave of absence. Def. Rule 56.1 St. ¶ 55. The following day, September 6, 2014,
Mr. Suh again advised Kim that he needed to provide “proper medical documentation,” and
established a deadline of September 22, 2014 to do so. Id. ¶ 56. Beekman Decl. Exh. X. Kim
travelled to Korea, and while there, sought treatment at Yonsei University Hospital. Kim Dep.
86:9-16. He did not contact Bogopa by September 22, 2014 as required, and was listed as “No
call/no show-job abandonment.” Def. Rule 56.1 St. ¶ 57.
On September 27, 2014, Kim produced a letter to Defendant from Dr. Cho stating that he
had “recovered from acute manic episode” and could return to work on September 29, 2014.
Beekman Decl. Exh W. In response, Bogopa advised, “[b]efore we can allow you to return to
work, we need you to provide a doctor’s note that specifically states that you are cleared to return
. . . without any medical restrictions.” Beekman Decl. Exh. X. On September 30, 2014, Kim
provided that note stating he was “psychiatrically cleared” to return. ECF 30 Exh. Y.
IV.

Final Resumption of Work
Plaintiff returned to work on October 6, 2014, and did not request additional leave for his

psychiatric condition thereafter. Def. Rule 56.1 St. ¶ 64; Beekman Decl. Exh Q. He submits that
if he “knew that additional leave was available, [he] would have taken it.” Kim Aff. ¶ 10.
Following his return to work, Kim requested a reduced work schedule in order to “take more
time and enjoy.” Def. Rule 56.1 St. ¶ 65. Defendant obliged and reduced his hours. Mr. Suh

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submits that Kim did not “mention his disability or indicate that he wanted the reduction of his
hours as a reasonable accommodation.” Rep. Aff. Suh ¶ 9.
On October 8, 2014, Kim arrived to work approximately two hours late and left four
hours early. Beekman Decl. Exh. Q. He testified that he received approval for the schedule
change so that he could go to the hospital, which his supervisor, Mr. Suh, denies. Def. Rule 56.1
St. ¶ 67; Kim Dep. 75:9-23; 80:3-5; Suh Aff. ¶ 25. On Monday, October 13, while scheduled to
work from 2:00-8:00pm, he worked from approximately 10:00am - 1:00 pm, and 2:00 pm - 5:29
pm. Id. That day, one week after he returned from leave, Kim was terminated. The reason given
was his tardiness and early departure on October 8, 2014. Def. Rule 56.1 St. ¶ 69; Berger Decl.
Exh. CC.
LEGAL STANDARD
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). “An issue of fact is genuine if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712,
720 (2d Cir. 2010) (citations and quotation omitted). “A fact is material if it might affect the
outcome of the suit under the governing law.” Id. In deciding a motion for summary judgment,
the court must “construe the facts in the light most favorable to the nonmoving party” and
“resolve all ambiguities and draw all reasonable inferences against the movant.” Brod v. Omya,
Inc., 653 F.3d 156, 164 (2d Cir. 2011) (quotation omitted).
FEDERAL LAW CLAIM
Congress enacted the FMLA to address the issue of “inadequate job security for
employees who have serious health conditions that prevent them from working for temporary

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periods.” 29 U.S.C. § 2601(a)(4) (emphasis added). In that regard, the Act establishes an
entitlement to twelve weeks of unpaid leave for an employee afflicted with a health condition so
serious as to render him “unable to perform the functions” of his position. 29 U.S.C.
§§ 2601(b)(2); 2612(a)(1)(D) (emphasis added). Section 2615(a)(1) of the Act provides that it
“shall be unlawful for any employer to interfere” with an employees’ exercise of FMLA rights.
Here, Plaintiff alleges that the Defendant unlawfully interfered with his FMLA rights in
failing to provide him with notice of those rights. An employer interferes with FMLA rights
where it fails to provide required notice, and that failure causes the employee to forfeit leave to
which he was entitled. See Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 157
(2d Cir. 1999). As discussed below, Plaintiff has not established that he was entitled to FMLA
leave that was denied him. As such, summary judgment is appropriate for the Defendant.
It is undisputed that after several weeks of absence from work, ostensibly to seek
treatment for his psychiatric condition in Korea, Plaintiff provided doctor’s notes indicating that
he had “recovered” and was “psychiatrically cleared,” and could return to his position as of
September 29, 2014. ECF 30 Exh. Y. This certification clearly demonstrates that he was not
“unable to perform the functions” of his position at that time, and as such, Defendant could not
have interfered with his FMLA rights by failing to provide notice of additional FMLA leave
available to him, as there was none. See Wallner v. Hilliard, 590 F. App'x 546, 552 (6th Cir.
2014) (noting that the FMLA does not guarantee a right to a full twelve weeks of leave despite
employee and doctor’s statements that she was able to return to work before then); Terwilliger v.
Howard Mem'l Hosp., No. 09-CV-4055, 2011 WL 5827201, at *2 (W.D. Ark. Nov. 18, 2011)
(concluding that where employee’s physician released her to return to work after eleven weeks of

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FMLA leave, she no longer had “a serious health condition that rendered her unable to perform
her job” and thus, “was entitled to no further benefit under the FMLA”).
Kim complains, in effect, that he was not notified of FMLA rights for which he didn’t
qualify and had no entitlement. In addition, it is not disputed that he unilaterally flew to Korea
for medical treatment and failed to provide the required request for leave of absence as directed
and suffered no adverse employment decision. On the contrary, he was permitted to return to
work despite the confirmation of his attendance infractions and a finding of “no call/no showjob abandonment.” For the foregoing reasons, summary judgment is GRANTED for the
Defendant as to the FMLA interference claim.
STATE LAW CLAIMS
I.

NYCHRL Discrimination Claim
Plaintiff alleges Bogopa violated NYCHRL § 8-107 in that it “discriminated against

Plaintiff . . . by terminating him on account of his disability or perceived disability.” Compl.
¶ 33. That statute makes it “an unlawful discriminatory practice” for an employer to “discharge
from employment” or “discriminate against” an employee “in terms, conditions or privileges of
employment” due to his disability. NYCHRL § 8–107(1)(a). Discrimination claims pursuant to
the NYCHRL are subject to the burden-shifting framework established by the Supreme Court in
McDonnell Douglas. See Campbell v. Cellco P'ship, 860 F. Supp. 2d 284, 295 (S.D.N.Y. 2012).
Under that test, the initial burden is on the plaintiff to present a prima facie case of
discrimination, after which the burden shifts to the defendant to put forth some legitimate, nondiscriminatory justification for the challenged action. The burden then shifts back to the plaintiff
to demonstrate that the defendant’s proffered reason is pretextual. McDonnell Douglas Corp. v.

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Green, 411 U.S. 792, 802-804 (1973) holding modified by Hazen Paper Co. v. Biggins, 507 U.S.
604 (1993).
a. Plaintiff Has Established a Prima Facie Case
To set out a prima facie case of discrimination, Plaintiff must show that (1) he is a
member of a protected class; (2) he was qualified for the position he held; (3) he suffered an
adverse employment action; and (4) the adverse action took place under circumstances giving
rise to an inference of discrimination. Ruiz v. Cty. of Rockland, 609 F.3d 486, 492 (2d Cir. 2010)
(citation omitted). Plaintiff’s burden at this stage is “minimal.” Roge v. NYP Holdings, Inc., 257
F.3d 164, 168 (2d Cir.2001) (internal quotation marks and citation omitted). The parties do not
dispute that Plaintiff was a member of a protected class, and Plaintiff clearly suffered an adverse
employment action in his termination. See Hrisinko v. N.Y. City Dep't of Educ., 369 F. App'x
232, 235 (2d Cir. 2010). Therefore, to state a prima facie case, Plaintiff must establish his
qualification for the position, and that his termination took place under circumstances giving rise
to an inference of discrimination.
To establish qualification for his position, “all that is required is that the plaintiff
establish basic eligibility for the position at issue.” Slattery v. Swiss Reinsurance Am. Corp., 248
F.3d 87, 92 (2d Cir. 2001), as amended (June 6, 2001). Here, Kim satisfies his burden in that he
was employed by Bogopa for nine years, and held his job for seven of those years without
disciplinary proceedings. Based on this record, a reasonable trier of fact could conclude he was
qualified for his position. As to the second requirement Plaintiff must prove, an inference of
discrimination can be drawn from “the sequence of events leading to the plaintiff’s discharge.”
Abdu–Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 468 (2d Cir. 2001) (citation omitted). In
particular, timing of an employee’s termination “may be sufficient to establish an inference of

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discrimination at the first, prima facie stage.” Ramsaran v. Booz & Co. (N.A.) Inc., No. 1:14CV-708-GHW, 2015 WL 5008744, at *12 (S.D.N.Y. Aug. 24, 2015) (internal quotation marks
and citation omitted); see also Pellegrino v. Cty. of Orange, 313 F. Supp. 2d 303, 315 (S.D.N.Y.
2004) (At the prima facie stage, “[e]vidence of temporal proximity between an employee's
request for . . . leave and her termination is sufficient to establish an inference of
discrimination”). Recognizing that NYCHRL claims are to be construed “broadly in favor of
discrimination plaintiffs,” Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109
(2d Cir. 2013) (citation omitted), the temporal proximity between Kim requesting leave,
ostensibly due to his mental health condition, and thereafter, his termination, could give rise to
an inference of discrimination.
b. Bogopa Had a Legitimate, Non-Discriminatory Basis for Terminating Kim
Once the plaintiff has demonstrated a prima facie case, the burden shifts to the defendant
to put forth some legitimate, non-discriminatory justification for its action. Here, Kim received
warnings for attendance, tardiness, and conduct violations. While on a “last chance warning,”
Defendant submits that Plaintiff arrived at work late and left early on October 8, 2014 without
permission, and was therefore terminated. With that, Defendant has presented a legitimate, nondiscriminatory justification for the adverse action.
c. Plaintiff Has Not Shown That Defendant’s Proffered Reason was Pretextual
Following a defendant’s provision of a non-discriminatory justification, the burden
returns to the plaintiff to demonstrate that the proffered reason is pretextual. Defendant will be
entitled to summary judgment “unless the plaintiff can point to evidence that reasonably supports
a finding of prohibited discrimination.” James v. N.Y. Racing Ass'n, 233 F.3d 149, 154 (2d Cir.
2000). It is uncontested that on October 8, 2014, Plaintiff arrived to work approximately two

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hours late and left four hours early. What remains in dispute is whether Plaintiff received
permission for the schedule adjustment. However, resolving this dispute in Plaintiff’s favor and
assuming he had permission to modify his hours but nevertheless was fired for it does not satisfy
his burden here. To establish pretext, Plaintiff must do more than set out a prima facie case and
put forward “evidence from which a fact finder could find that the employer’s explanation . . .
was false.” LaGrande v. Key Bank Nat. Ass'n, 393 F. Supp. 2d 213, 220 (S.D.N.Y. 2005) (citing,
James, 233 F.3d at 153).
Plaintiff’s assertion of disability discrimination is an ipse dixit. Without any evidence of
discriminatory animus, the crux of his case for pretext is the same as his prima facie case: the
proximity in time between the disclosure of his condition and his termination. While closeness in
time may be sufficient at the prima facie stage, it is “insufficient to carry plaintiff's burden” at the
pretext stage. Pellegrino, 313 F. Supp. 2d at 316; see also Forde v. Beth Israel Med. Ctr., 546 F.
Supp. 2d 142, 152 (S.D.N.Y. 2008). As such, Plaintiff has not raised an issue of fact tending to
show that his termination was a pretext for discrimination, and Defendant is entitled to summary
judgment on the NYCHRL discrimination claim.
The foregoing discussion of the applicable principles to a case such as this may be fairly
described as gratuitous. An objective evaluation of the undisputed facts of this narrative compels
the conclusion that there isn’t within it a jot or a tittle to support even a whisper of an inference
that he was terminated as the victim of disability discrimination, given his return to work after
his doctor’s certification that he was fit for work without limitation, rather than for his cavalier
attention to reporting for work.

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II.

NYCHRL Retaliation Claim
Plaintiff further contends that Bogopa terminated him “in retaliation for complaining

about Defendant’s discriminatory conduct and for taking disability leave” in violation of the
NYCHRL. Compl. ¶ 39. A plaintiff alleging retaliation under the NYCHRL must show: 1) he
engaged in a protected activity; 2) his employer was aware of that activity; 3) he suffered an
action that would be reasonably likely to deter a person from engaging in a protected activity;
and 4) that there was a causal connection between the protected activity and the action.” Pilgrim
v. McGraw–Hill Cos., 599 F.Supp.2d 462, 469 (S.D.N.Y.2009). Plaintiff has not shown he was
engaged in a protected activity. There is no evidence that he “opposed” or “filed a complaint”
related to discriminatory activity at any point during his employment. See NYCHRL § 8-107(7).
Indeed, his testimony established that he never spoke to anyone at Bogopa regarding his alleged
unfair treatment. Kim. Dep. 100:20-25. As such, summary judgment is GRANTED for the
Defendant as to the NYCHRL retaliation claim.
CONCLUSION
For the reasons stated herein, Defendants’ motion for summary judgment is GRANTED.
SO ORDERED.
Dated:

Brooklyn, New York
July 28, 2017
___ /s/ _______________________
I. Leo Glasser
Senior United States District Judge

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