Boughton v. Town of Bethlehem
DECISION AND ORDER granting in part and denying in part 36 Motion for Summary Judgment. Signed by Senior Judge Thomas J. McAvoy on 9/9/15. (sfp, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
WILLIAM C. BOUGHTON,
TOWN OF BETHLEHEM,
Thomas J. McAvoy,
Sr. U.S. District Judge
DECISION and ORDER
Plaintiff William C. Boughton commenced the instant action
pursuant to the Americans with Disabilities Act of 1990, as
amended, 42 U.S.C. §§ 12101, et. seq. (“ADA”), the Family Medical
Leave Act of 1993, 29 U.S.C. §§ 2601, et. seq. (“FMLA”), and the
New York State Human Rights Law (“NYSHRL”) against the defendant
Town of Bethlehem. Defendant now moves for summary judgment.
In 2012, Plaintiff was employed by the Defendant, Town of
Bethlehem, as a Water Treatment Plant Operator. (Defendant’s
Statement of Material Facts (“Defendant’s Statement”) dkt. #36-4
Both parties filed the required Statement of Material
Facts. Defendant’s statement will be cited for facts which are
not contradicted. Where the parties disagree, the Court will note
at ¶ 1). As a Water Treatment Plant Operator, Plaintiff was
responsible for maintaining clean drinking water for the Town of
Bethlehem. (Id. at ¶ 6).
On May 14, 2012 the Plaintiff sought emergency medical
attention at St. Peter’s Hospital after experiencing tightness in
his chest and shortness of breath. (Id. at ¶ 15). Plaintiff was
seen by his primary care physician, Dr. William Kowal, and a
cardiologist, Dr. Robert Phang. (Id. at ¶¶ 18, 20). Dr. Kowal
diagnosed him with uncontrolled hypertension and directed him to
remain out of work. (Id. at ¶ 21).
According to the Plaintiff, he took Family Medical Leave
beginning May 14, 2012 due to uncontrolled hypertension.
(Plaintiff’s Memorandum of Law in Opposition to Defendant’s
Motion for Summary Judgment (“Plaintiff’s Mem.”) dkt. #39 at 5).
Plaintiff provided doctors’ notes regarding his absence from work
beginning on May 14. (Defendant’s Statement at ¶ 23). Dr. Kowal’s
July 20, 2012 letter to Mary Tremblay-Glassman, Director of Human
Resources, states in pertinent part: “(1) I strongly recommend
[Plaintiff work] indoors with limited outdoor exposure as needed;
(2) I strongly recommend that [Plaintiff] be provided a Powered
Air Purifying Respirator (PaPRn).” (Id. at ¶ 26). Defendant
contends that, since Dr. Kowal’s July 20 note “did not explain
the phrase ‘limited outdoor exposure’ and further did not specify
the length of time of outdoor exposure, acceptable weather
conditions and temperatures, Plaintiff was asked for further
medical information to determine the extent of Plaintiff’s
limitations and any potential reasonable accommodations that
could overcome said limitations.” (Id. at ¶ 29). Defendant claims
it was willing to supply Plaintiff a respirator as requested.
(Id. at ¶ 28). Plaintiff argues that the Defendant never informed
him that this accommodation was available. (Plaintiff’s Response
to Defendant’s Statement of Material Facts (“Plaintiff’s Res.”),
dkt. #40 at ¶ 28). However, Plaintiff does not appear to dispute
this. (Plaintiff’s Mem. at 15-16).
On August 2, 2012 Dr. Kowal sent an additional letter to the
Defendant, stating in pertinent part:
[Plaintiff’s] outdoor exposure should be limited to no
more than 15 minute increments in hot/humid weather.
The exact temperature is impossible to quantitate
[sic], but such extreme weather exacerbates
[Plaintiff’s] shortness of breath and chest pain which
given his hypertension could be detrimental to his
health. Working indoors would be the best solution. The
amount of cold weather tolerable is yet to be
(Defendant’s Statement at ¶ 30). Defendant alleges that Dr.
Kowal’s second letter “did not specify any cold weather
restrictions, did not provide any of the requested specifics
regarding the temperatures during which exposure should be
limited, or any correlation between Plaintiff’s hypertension and
the proposed accommodations.” (Id. at ¶ 31). Plaintiff denies
that this letter was insufficient to describe his request for a
reasonable accommodation. (Plaintiff’s Res. at ¶ 31).
asked Plaintiff to provide further information and “encouraged
[Plaintiff] to see a specialist who would be in a better position
to explain Plaintiff’s condition and any related restrictions as
a result thereof.” (Defendant’s Statement at ¶ 31). Plaintiff
admits that Tremblay-Glassman encouraged him to see an Industrial
Medicine Specialist, but claims that the specialty does not
exist. (Plaintiff’s Res. at ¶ 31). Plaintiff never responded to
this request. (Defendant’s Statement at ¶ 33).
Plaintiff argues that by “repeatedly requesting additional
medical documentation” the Defendant “stonewalled [Plaintiff’s]
requests.” (Plaintiff’s Mem. at 5). Defendant disagrees,
contending that the “request for further information was to
protect Plaintiff from being placed in a dangerous position while
at work and also to protect the Town of Bethlehem.” (Defendant’s
Statement at ¶ 32). Plaintiff claims that the Defendant
disregarded his alleged attempts to discuss how reasonable
accommodations could be met through a shift change. (Plaintiff’s
Mem. at 5).
Defendant placed Plaintiff on no-pay status after he
exhausted his sick time, personal time, compensation time and
(Defendant’s Statement at ¶ 36). An employee on
no-pay status is still an employee; employees are kept on no-pay
status with the assumption that the employee will eventually
return to work. (Id. at ¶ 37). Plaintiff never returned to work
after May 14, 2012. (Id. at ¶ 35). Plaintiff concluded that the
Defendant had constructively terminated him. (Id. at ¶ 33).
Plaintiff commenced this action on December 23, 2013 by filing a
Complaint alleging: (1) Discrimination under the ADA; (2)
discrimination under the NYSHRL; (3) retaliation under the ADA;
(4) retaliation under the NYSHRL; (5) retaliatory discharge under
the FMLA; and (6) interference with Plaintiff’s rights under the
FMLA. See Complaint, dkt. #1. Plaintiff seeks monetary damages
(compensatory and punitive), an award of front-pay compensating
Plaintiff for loss of future salary and benefits, damages to
compensate for non-pecuniary losses, and an award of the costs
and disbursements of this action, including attorney’s fees.
Defendant answered, and the parties have now completed discovery.
Presently before the Court is Defendant’s motion for summary
It is well-settled that on a motion for summary judgment,
the Court must construe the evidence in the light most favorable
to the non-moving party, see Tenenbaum v. Williams, 193 F.3d 581,
593 (2d Cir. 1999), and may grant summary judgment only where
"there is no genuine issue as to any material fact and...the
moving party is entitled to a judgment as a matter of law." FED.
R. CIV. P. 56(a). An issue is genuine if the relevant evidence is
such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248
A party seeking summary judgment bears the burden of
informing the Court of the basis for the motion and of
identifying those portions of the record that the moving party
believes demonstrate the absence of a genuine issue of material
fact as to a dispositive issue. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). If the movant is able to establish a prima
facie basis for summary judgment, the burden of production shifts
to the party opposing summary judgment who must produce evidence
establishing the existence of a factual dispute that a reasonable
jury could resolve in his favor. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). A party opposing a
properly supported motion for summary judgment may not rest upon
"mere allegations or denials" asserted in his pleadings, Rexnord
Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994),
or on conclusory allegations or unsubstantiated speculation.
Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998).
With this standard in mind, the Court will now address the
Defendant’s motion for summary judgment.
Defendant argues that Plaintiff’s response to the motion for
summary judgment offers no opposition to the ADA retaliation
claim, the NYSHRL claims or the FMLA interference claim.
Defendant contends that “because of Plaintiff’s failure to
respond, and because Defendant has met its burden, summary
judgment should be entered against Plaintiff” for those claims.
(Defendant’s Reply Memorandum (“Defendant’s Reply”), dkt. #41-2
at 5). Indeed, “a non-response runs the risk of unresponded-to
statements of undisputed facts proffered by the movant being
deemed admitted.” Jackson v. Federal Exp., 766 F.3d 189, 194 (2d
Cir. 2014). However, as the Court of Appeals for the Second
Circuit notes, “A non-response does not risk a default judgment.”
Jackson, 766 F.3d at 194. “Before summary judgment may be
entered, the district court must ensure that each statement of
material fact is supported by record evidence sufficient to
satisfy the movant's burden of production even if the statement
is unopposed.” Id. (citing Vermont Teddy Bear Co. v. 1-800
Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004)). In doing so, the
court may rely on other evidence in the record even if uncited.
Fed.R.Civ.P. 56(c)(3). “And, of course, the court must determine
whether the legal theory of the motion is sound. Thus, Rule 56
does not allow district courts to automatically grant summary
judgment on a claim simply because the summary judgment motion,
or relevant part, is unopposed.” Jackson, 766 F.3d at 194.
The Court will therefore review all claims set forth in
A. Discrimination Claims
It is unclear whether Plaintiff’s discrimination claim under
the ADA alleges that the Defendant discriminated against him by
failing to provide reasonable accommodations due to his alleged
disability, see 42 U.S.C. § 12112(5)(a), or claims he was
discriminated against because he was constructively discharged on
the basis of his disability. See 42 U.S.C. § 12112(a). The Court
will address both.
Courts interpreting claims of employment discrimination
under the ADA follow the burden-shifting framework set out by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 52 (2d
Cir. 1998). Under this framework, the “plaintiff must initially
come forward with facts sufficient to establish a prima facie
case that his discharge was effected under circumstances giving
rise to an inference of discrimination.” Id. Once Plaintiff meets
his burden, “the burden of production then shifts to the
defendant, who must proffer a legitimate, non-discriminatory
reason for its actions in order to rebut the presumption of
unlawful discrimination” created when the plaintiff makes out a
prima facie case. Id. If the employer meets this burden to
“articulate an explanation that, if true, would connote lawful
behavior,” the burden then returns to “the plaintiff to persuade
the factfinder that the employer’s proffered explanation is
merely a pretext for unlawful discrimination.” Greenway, 143 F.3d
47 at 52.
To satisfy the initial burden of proving a prima facie case,
“a plaintiff must show (a) that his employer is subject to the
ADA;2 (b) that he is disabled within the meaning of the ADA or
perceived to be so by his employer; (c) that he was otherwise
qualified to perform the essential functions of the job with or
without reasonable accommodation;3 and (d) that he suffered an
adverse employment action because of his disability.” Brady v.
Wal-Mart Stores, Inc., 531 F.3d 127, 134 (2d Cir. 2008).
Defendant alleges that Plaintiff cannot satisfy the initial
burden because he is not disabled within the meaning of the ADA,
and no adverse employment action was taken against Plaintiff
“because of his purported disability.” Defendant’s Mem., dkt.
#36-3 at 10.
Disability under the ADA
Under the ADA, as amended by the ADAAA, the definition of
“disability” is construed in “favor of broad coverage of
individuals under this chapter, to the maximum extent permitted
Defendant “does not dispute that it is subject to the
ADA’s anti-discrimination provisions.” Defendant’s Memorandum
(“Defendant’s Mem.”), dkt. #36-3 at 10.
Defendant “further does not dispute that Plaintiff was
otherwise qualified to perform the duties of his job.” Id.
by the terms of this chapter.” 42 U.S.C. § 12102(4)(A). The Act
defines “disability” as “(A) a physical or mental impairment that
substantially limits one or more major life activities of such
individuals; (B) a record of such an impairment; or (C) being
regarded as having such an impairment.” Id. § 12102(1). The ADAAA
expanded the interpretation of the ADA's three-category
definition of “disability.” For example, “major life activity”
includes “caring for oneself, performing manual tasks...walking,
standing, lifting, bending, speaking, breathing...and working,”
as well as “the operation of a major bodily function,” including
“neurological, brain, respiratory, circulatory, endocrine, and
reproductive functions.” Pub.L. No. 110–325, 122 Stat. 3553, 3555
Plaintiff’s alleged disability is “uncontrolled
hypertension” with which he was diagnosed on May 14, 2012.
Plaintiff’s Mem., dkt. #39 at 7. Plaintiff complains of related
illnesses including chest pain, difficulty breathing, and sleep
apnea. Id. Plaintiff argues that, since federal regulations
interpreting the ADAAA definition of “disability” cite conditions
similar to his own, Plaintiff’s hypertension is, per se, a
disability.4 Plaintiff is incorrect. The Court notes that the
record supports the inference that Plaintiff had a physical
Plaintiff cites ADA Amendments Act of 2008, Sec. 4, §
3(4)(d), 122 Stat. 3553, 3555; 29 C.F.R. § 1630.2(j)(5).
Plaintiff’s Mem., dkt. #39 at 8.
impairment, i.e., hypertension, and that the phrase “major life
activities” is defined in the ADAAA Regulations to include
breathing, working, and sleeping. 29 C.F.R. § 1630.2(i). However,
the issue of whether a reasonable jury could find that
Plaintiff’s hypertension substantially limited one or more of his
major life activities must be considered. See 42 U.S.C. §
12102(2); Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 870 (2d
Cir. 1998)(“Although almost any impairment may, of course, in
some way affect a major life activity, the ADA clearly does not
consider every impaired person to be disabled. Thus, in assessing
whether a plaintiff has a disability, courts have been careful to
distinguish impairments which merely affect major life activities
from those that substantially limit those activities.”).
As interpreted by the ADAAA Regulations, an impairment
“substantially limits” a major life activity when the impairment
“substantially limits the ability of an individual to perform a
major life activity as compared to most people in the general
population.” 29 C.F.R. § 1630.2(j). Determining whether an
individual is substantially limited in a major life activity is
an individualized assessment, and the comparison of an
individual's performance of a major life activity to the
performance of the same major life activity by most people in the
general population usually will not require scientific, medical,
or statistical analysis. 29 C.F.R. § 1630.2(j).
Applying the above guidelines to the evidence viewed in the
light most favorable to the Plaintiff, the Court finds that the
Plaintiff fails to establish that his hypertension substantially
limited his ability to breathe, work, and sleep. The medical
evidence relating to Plaintiff’s inability to breathe, work or
sleep is: a May 15, 2012 letter from Sherry D. Sherman, RPA,
informing the Defendant that the Plaintiff had been hospitalized
and would be out of work for the next 8 days (Plaintiff’s Res.,
dkt. #39-2); a May 22, 2012 prescription note from Dr. Kowal, the
Plaintiff’s internist, informing the Defendant that Plaintiff
would be out of work until reevaluated on May 29, 2012
(Plaintiff’s Res., dkt. #39-3); a May 29, 2012 prescription note
from Dr. Kowal informing the Defendant that Plaintiff had been
diagnosed with uncontrolled hypertension and chest pain and that
prognosis is guarded until further evaluation by cardiologist,
probable return to work date will be determined after his followup visit with [Dr. Kowal] on June 11, 2012 (Plaintiff’s Res.,
dkt. #39-4); a June 25, 2012 prescription note from Dr. Kowal
which states Plaintiff would be out of work until reevaluated on
July 9, 2012 due to hypertension (Plaintiff’s Res., dkt. #39-5);
a July 20, 2012 letter from Dr. Kowal to Tremblay-Glassman
[Plaintiff] has been recently treated for several
medical conditions including chest pain, headaches,
uncontrolled hypertension, and sleep apnea. I support
planned return to work date of 7/30/12 with the
following accommodations: (1) I strongly recommend
working indoors with limited outdoor exposure as needed
(2) I strongly recommend that he be provided a Powered
Air Purifying Respirator (PAPRn).
Plaintiff’s Res., dkt. #39-6; and an August 2, 2012 letter from
Dr. Kowal to Tremblay-Glassman stating:
[Plaintiff’s] outdoor exposure should be limited to no
more than 15 minute increments in hot/humid weather.
The exact temperature is impossible to quantitate
[sic], but such extreme weather exacerbates
[Plaintiff’s] shortness of breath and chest pain which
given his hypertension could be detrimental to his
health. Working indoors would be the best solution. The
amount of cold weather tolerable is yet to be
Plaintiff’s Res., dkt. #39-7.5
Defendant claims as a threshold matter that Dr. Kowal’s
letters are inadmissable hearsay, citing Burgos v. City of
Rochester, No. 99 Civ. 6480, 2003 WL 22956907, at *3 (W.D.N.Y.
Mar.31, 2003) and Douglas v. Victor Capital Group, 21 F.Supp2d
379, 391 (S.D.N.Y. 1998). Defendant’s Reply, dkt. #41-2 at 1-2.
As a general matter, it is correct that unsworn letters from
physicians are inadmissible hearsay providing an insufficient
basis for opposing a motion for summary judgment. See
Fed.R.Civ.P. 56(e); Douglas, 21 F.Supp.2d at 391–92
(S.D.N.Y.1998)(Summary judgment granted in ADA case where the
only medical evidence plaintiff relied upon were inadmissible
hearsay doctor letters); see also United States v. All Right,
Title & Interest in Real Prop. & Appurtenances, 77 F.3d 648,
657–58 (2d Cir. 1996)(“[T]he submission of [an] unsworn letter
was an inappropriate response to the ... motion for summary
judgment, and the factual assertions made in that letter were
properly disregarded by the court.”) Nonetheless, the letters
here were submitted by Defendant, not Plaintiff, in support of
its motion for summary judgment. The notes were attached as
exhibits to Defendant’s motion for summary judgement and
Defendant cited the letters and relied on them in seeking summary
Furthermore, it is undisputed that Dr. Kowal submitted the
letters to Defendant while the Plaintiff was still employed by
Defendant. The letters were part of Plaintiff’s personnel file
and were considered by the Defendant when it allegedly refused
The Court finds that Plaintiff fails to establish his
hypertension substantially limited his working, breathing or
sleeping. Even in combination with Plaintiff’s testimony, there
is no material issue of fact raised with respect to whether
Plaintiff qualifies as disabled under the Act. The Plaintiff
Q: And did your doctor give you certain restrictions or
limitations upon returning to work?
A: Whatever the doctor’s notes he wrote was.
Q: Do you recall what those restrictions were?
A: I don’t recall all of them. Limited outdoors
exposure I know was one of them.
Q: Limited outdoor exposure, did you discuss that with
your doctor, exactly what he meant by it?
A: He talked about what my job descriptions were and
how I was feeling at that time and he made his
suggestion on what my limitations would be and what
kind of–how I could go back to work.
Q: Did he say why you should limit your outdoor
A: I believe he was worried about something, but I’m
not my doctor. I don’t know.
the Plaintiff accommodations leading Plaintiff to believe he had
been constructively terminated. Therefore, the letters are
admissible evidence of Defendant’s state of mind. See Cameron v.
Cmty. Aid for Retarded Children, Inc., 335 F.3d 60, 65–66 & n. 2
(2d Cir. 2003)(holding in ADA case that out-of-court statements
made to supervisor by other employees complaining about plaintiff
were admissible to show supervisor's state of mind and therefore
were not hearsay); see also Capobianco v. City of New York, 422
F.3d 47, 56 (2d Cir. 2005). Therefore, the Court will consider
Q: He didn’t tell you what he was worried about?
A: I’m sure he was worried about my hypertension, but
he didn’t talk in detail about the medical specific
Q: Okay. Your doctor that you are referring to, his
A: Dr. William Kowal.
Plaintiff’s Deposition, dkt. #36-6, 77-78. Plaintiff also stated
that he did not remember any specific conversations with any
other doctors telling him to limit his outdoor exposure and that
his blood pressure is controlled now and he has had no
reoccurrence of chest tightness. Id. at 80 and 110.
“To prove that [he] suffers from a disability that
substantially limits a major life activity, a plaintiff is
required to do more than merely submit evidence of a medical
diagnosis of an impairment.” Cody v. County of Nassau, 577
F.Supp.2d 623, 639 (E.D.N.Y. 2008)(citations omitted). “Rather,
the ADA requires those claiming the Act's protection to prove a
disability by offering evidence that the extent of the limitation
caused by the impairment in terms of their own experience is
substantial.” Id. at 640 (citations omitted). “As a result, a
plaintiff cannot prevail on an ADA disability discrimination
claim where [he] merely submits evidence that [he] suffers from
an impairment.” Id. (citation omitted).
Plaintiff has not submitted any evidence that hypertension
substantially limited his ability to work. For an impairment to
substantially limit the major life activity of working, it must
render the individual “significantly restricted in the ability to
perform either a class of jobs or a broad range of jobs in
various classes as compared to the average person having
comparable training, skills and abilities.” O'Connor v.
Huntington U.F.S.D., No. 11–CV–1275, 2014 WL 1233038, at *1
(E.D.N.Y. Mar. 25, 2014)(internal citations and quotation marks
omitted); see, e.g., Petrone v. Hampton Bays Union Free Sch.
Dist., No. 03–CV–4359, 2013 WL 3491057, at *21 (E.D.N.Y. July 10,
2013), aff'd, No. 13–2960–CV, 2014 WL 2198612 (2d Cir. May 28,
2014). “A class of jobs encompasses a breadth of positions
related to the one a plaintiff cannot perform, not simply
analogous positions with slight variations.” Wegner v. Upstate
Farms Co-op., Inc., 560 F. App'x 22, 2014 WL 998195, at *2 (2d
Cir. 2014)(summary order)(citing Muller v. Costello, 187 F.3d
298, 313 (2d Cir. 1999)). “The inability to perform a single,
particular job does not constitute a substantial limitation in
the major life activity of working.” Cameron, 335 F.3d at 65
(internal citations and quotation marks omitted). Plaintiff does
not offer any evidence that hypertension substantially limited
his ability to work except Dr. Kowal’s recommendation that
Plaintiff limit his outdoor exposure and work indoors. There is
no evidence in the record that limited outdoor exposure precluded
Plaintiff from performing related jobs. See Colwell, 158 F.3d at
644–45 (finding “general restrictions imposed by [plaintiff's]
doctor” to be insufficient to show significant restriction).
Indeed, there is no evidence in the record to suggest that
Plaintiff’s hypertension substantially limited his ability to
Nor has Plaintiff offered any evidence that hypertension
limited his ability to breathe in any substantial way. Plaintiff
merely states he “began to suffer from uncontrolled hypertension
along with chest tightness and breathing difficulties[.]”
Plaintiff’s Mem., dkt. #39 at 2. Plaintiff’s own testimony offers
little support for his claim:
Q: Did any other doctor tell you that you should limit
your outdoor exposure?
A: I don’t remember any specific conversations on that.
A: I know with the pulmonologist and the cardiologist I
explained that when I was outside for any long time I
would get shortness of breath.
Plaintiff’s Deposition, dkt. #36-6, 80-81.
Q: Did you discuss with the doctor any symptoms that
you were having in [hot and humid or cold and humid]
Q: What were those symptoms?
A: Shortness of breath, dizziness. Extreme shortness of
Id. at 87.
Q: In the past, with your hypertension–did you complain
to the doctor about the cold bothering you?
A: I would have shortness of breath at times. I believe
he gave me a–they call them rescue inhalers, but I
don’t know if it was directly related to cold. I would
get wheezy, let’s put it.
Q: Did you have any problems performing checks in the
past in cold weather or in humid temperatures?
A: I did my job.
Q: I understand that, but did you have any shortness of
A: I don’t recall any shortness of breath–
Q: –or symptoms like that–
A: –at that time, no, in the past.
The plaintiff in Gorbea v. Verizon New York, Inc.,
complained of similar, infrequent breathing problems, which the
court found did not substantially limit her major life activity
of breathing. Gorbea, 2014 WL 917198 (E.D.N.Y. March 20, 2014).
The court found the plaintiff’s deposition testimony that she had
trouble breathing insufficient to establish that the plaintiff
had a disability due to asthma. Id. at *8. The court also noted
that a doctor’s note which stated that the plaintiff had
difficulty breathing after exposure to fumes failed to address
the question of the plaintiff’s disability due to asthma. Id. at
Here, the record shows Plaintiff suffered from similar
infrequent breathing problems, and Plaintiff’s doctor’s notes
fail to address the question of Plaintiff’s disability due to
hypertension. Thus, Plaintiff cannot establish that hypertension
substantially limited his ability to breath.
As to the major life activity of sleeping, the only evidence
Plaintiff submits that relates to difficulty sleeping is the July
20, 2012 letter from Dr. Kowal stating that Plaintiff had been
recently treated for sleep apnea.
“Courts in this Circuit have recognized that because
‘[d]ifficulty sleeping is extremely widespread,’ a substantial
limitation on sleeping must be ‘worse than is suffered by a large
portion of the nation's adult population.’” Gaube v. Day Kimball
Hosp., No. 3:13-CV-01845, 2015 WL 1347000, at *7 (D.Conn Mar.24,
2015)(citing Colwell v. Suffolk Cnty. Police Dep't, 158 F.3d 635,
644 (2d Cir. 1998)); see also Krachenfels v. N. Shore Long Island
Jewish Health Sys., No. 13–CV–243, 2014 WL 3867560, at *13
(E.D.N.Y. July 29, 2014)(allegation that discoid dermatitis
caused plaintiff “some difficulty sleeping, without any more
detail,” did not satisfy requirement to show that plaintiff's
limitation was worse than that suffered by large portion of adult
population); Dancause v. Mount Morris Cent. Sch. Dist., No.
13–CV–6019, 2013 WL 2946063, at *5 (W.D.N.Y. June 14, 2013)
(plaintiff failed to adequately plead substantial limitation
where she merely alleged that periodontal disease prevented her
from “adequately” sleeping and concentrating). Plaintiff’s
assertions that he has difficulty sleeping are too conclusory to
meet his burden of coming forward with evidence that his
hypertension substantially limits his ability to sleep. Even
considering that sleep apnea is an impairment itself under the
ADA, Plaintiff has still offered no deposition testimony that he
has difficulty sleeping, or describing how sleep apnea has
limited any major life activities.
Since Plaintiff has offered no evidence which supports that
his hypertension substantially limits the major life activities
of working, breathing and sleeping, he has failed to prove he
suffered from an impairment that qualified as a disability under
Alternatively, Plaintiff’s response in opposition to summary
judgment suggests that he can satisfy the standard for
determining whether an individual is “regarded as disabled”.
Plaintiff’s Res., dkt. #39 at 9. See Laurent v. G & G Bus
Service, Inc., 2011 WL 2683201, at *5-*6 (S.D.N.Y. May 17,
[T]he ADA was recently amended by the ADA Amendments
Act of 2008 (“ADAAA”), Pub.L. No. 110–325, 122 Stat.
3553 (2008). The ADAAA sets forth a new standard for
determining whether a person is “regarded as having
such an impairment”:
An individual meets the requirement of “being regarded
as having such an impairment” if the individual
establishes that he or she has been subjected to an
Pursuant to this more lenient standard, an employee is
“not required to show that the disability he is
perceived as suffering from is one that actually
limits, or is perceived to limit, a major life
activity.” Darcy v. City of New York, No. 06–CV–2246,
2011 WL 841375, at *4 (E.D.N.Y. Mar.8, 2011). Nor does
the employee have to “show that the employer had a
reasonable basis for perceiving him as suffering from a
disability; [the statute] merely requires him to show
that the employer did so perceive him.” Id.
Davis v. NYC Dept. of Educ., 10–CV–3812, 2012 WL 139255, at *5
(E.D.N.Y. Jan.18, 2012).
The ADAAA specifies, however, that the “regarded as”
definition of disability does not apply to impairments
that are both transitory and minor. 42 U.S.C. §
12102(3)(B); see also 29 C.F.R. § 1630.15(f) (2011)
(“It may be a defense to a charge of discrimination by
an individual claiming coverage under the “regarded as”
prong of the definition of disability that the
impairment is (in the case of an actual impairment) or
would be (in the case of a perceived impairment)
‘transitory and minor.’”). An impairment is transitory
if it has “an actual or expected duration of 6 months
or less.” 42 U.S.C. § 12102(3)(B). “Whether the
impairment at issue is or would be ‘transitory and
minor’ is to be determined objectively.” 29 C.F.R. §
Plaintiff alleges that since the Defendant stated in
deposition a willingness to grant Plaintiff’s reasonable
accommodation for a respirator, Defendant is “estopped from
action prohibited under this chapter because of an
actual or perceived physical or mental impairment
whether or not the impairment limits or is perceived to
limit a major life activity. 42 U.S.C. § 12102(3)(A).
Laurent v. G & G Bus Service, Inc., 2011 WL 2683201, at *5–*6
(S.D.N.Y. 2011), adopted by 2011 WL 2693651 (S.D.N.Y. July 11,
denying that [Plaintiff] had a disability.” Plaintiff’s Res.,
dkt. #39 at 9. It appears that Plaintiff is arguing that since
the Defendant agreed to provide Plaintiff a respirator, it
regarded him as having an impairment. Plaintiff points to
documents his physician sent to the Defendant and letters written
in response by Tremblay-Glassman acknowledging Plaintiff’s
hypertension as proof. Plaintiff’s Res., dkt. #39, 10-11. The
Defendant argues that it did not regard the Plaintiff as
disabled, and in any case, that Plaintiff’s hypertension is
transitory and minor. Defendant’s Mem., dkt. #36-3 at 25.
Defendant supports its argument with the fact that Plaintiff
began a new job, without accommodation, within six months after
he last appeared to work for the Defendant, tending to show his
hypertension was transitory and minor. Id. Plaintiff does not
dispute that he began a new job within six months of working for
Defendant, but Plaintiff states in his deposition testimony that
he did not require any accommodation at the new job because the
new job did not require him to go outdoors. Plaintiff’s
Deposition, dkt. #36-6, 104-05. Assuming Plaintiff’s new job did
not require him to work outdoors or in extreme temperatures, a
rational juror could conclude that the Plaintiff may have still
been suffering from hypertension, therefore precluding them from
finding his hypertension was transitory and minor.
Even assuming Plaintiff meets the requirements of the
“regarded-as” standard, or that he were disabled under the
meaning of the Act, his claim ultimately fails because he cannot
prove he suffered from an adverse action because of his alleged
disability. Plaintiff claims that the Defendant refused to
accommodate his alleged disability, and in doing so,
constructively terminated him. Plaintiff testified, “As far as I
was concerned, [the Defendant was] unwilling to work with me.
They would not sit down and discuss any accommodations. I
couldn’t come back to work without those accommodations, so I
felt like I was not working for the [Defendant] anymore.”
Plaintiff’s Deposition, dkt. #36-6 at 94. Defendant argues that
the Plaintiff was never terminated, but placed on no-pay status
while Defendant awaited further medical documentation detailing
Plaintiff’s limitations. Defendant’s Statement, dkt. #36-4 at 7.
The Court finds that no evidence supports Plaintiff’s claim of
constructive termination; as Defendant made clear that
Plaintiff’s employment continued as the process of evaluating
Plaintiff’s condition went forward. Plaintiff cannot refuse to
provide information, quit his job, and then claim constructive
Failure to Accommodate as Adverse Action
To establish a prima facie case of discrimination based on
an employer's failure to accommodate an employee's disability
under the Americans with Disabilities Act, “an employee bears the
burden of demonstrating that: (1) he was an ‘individual who has a
disability’ within the meaning of the statute; (2) the employer
had notice of his disability; (3) he could perform the essential
functions of the job with reasonable accommodation; and (4) the
employer refused to make such accommodation.” Parker v. Columbia
Pictures Indus., 204 F.3d 326, 332 (2d Cir.2000).
Assuming the first three elements are met, Plaintiff has
failed to demonstrate that the Defendant refused to make a
reasonable accommodation for his hypertension. “[I]t is the
responsibility of the individual with a disability to inform the
employer that an accommodation is needed.” Graves v. Finch Pruyn
& Co., Inc., 457 F.3d 181, 183-84 (2d Cir. 2006)(quoting 29
C.F.R. pt. 1630, app. at 363 (2003)); see also Flemmings v.
Howard Univ., 198 F.3d 857, 861 (D.C.Cir.1999)(“An underlying
assumption of any reasonable accommodation claim is that the
plaintiff-employee has requested an accommodation”). Once the
plaintiff establishes that he has requested an accommodation the
employer has a duty “to investigate that request and determine
its feasibility.” Parker, 204 F.3d at 338 (2d Cir. 2000); see
also Jackan v. N.Y. State Dep't of Labor, 205 F.3d 562, 568 n.4
(2d Cir. 2000)(recognizing that an employer is obligated to “take
affirmative steps to assist an employee in identifying potential
accommodations.”). These responsibilities conform to the
“interactive process” envisioned by the ADA, in which “employers
and employees work together to assess whether an employee's
disability can be reasonably accommodated.” Jackan, 205 F.3d at
566. In evaluating a claim for failure to accommodate, therefore,
“courts should attempt to isolate the cause of the breakdown [of
the interactive process] and then assign responsibility.” Beck v.
Univ. of Wisconsin Bd. of Regents, 75 F.3d 1130, 1135–36 (7th
Cir. 1996)(“[C]ourts should look for signs of failure to
participate in good faith or failure by one of the parties to
make reasonable efforts to help the other party determine what
specific accommodations are necessary.”).
Plaintiff claims that the Defendant refused to have an
interactive dialogue with him about how to achieve his reasonable
accommodations. Plaintiff’s Res., dkt. #39 at 15. Plaintiff
argues that when he recommended the Defendant allow him to take a
full shift inside the plant to meet his medical needs, the
Defendant failed to respond, and therefore refused to accommodate
him. Id. However, “[t]here is no provision requiring the employer
to take account of the disabled individual's preferences in
choosing the means of accommodation.” Fink v. New York City Dep't
of Personnel, 855 F.Supp. 68, 72 (S.D.N.Y.1994), aff'd, 53 F.3d
565 (2d Cir. 1995); see also, e.g., Gile v. United Airlines,
Inc., 95 F.3d 492, 499 (7th Cir. 1996)(“An employer is not
obligated to provide an employee the accommodation he requests or
prefers, the employer need only provide some reasonable
accommodation.”); Querry v. Messar, 14 F.Supp.2d 437, 445
(S.D.N.Y.1998)(“An employer need only offer a ‘reasonable
accommodation’; it need not provide the employee with the
accommodation of her choice.”).
Viewing all the evidence in a light most favorable to
Plaintiff, the Court finds that it was Plaintiff, not the
Defendant, who terminated the reasonable accommodation process.
Even considering Plaintiff’s testimony that (1) Defendant did not
request to meet the Plaintiff in person to discuss
accommodations, (2) Defendant encouraged Plaintiff to seek advice
from a medical professional that “did not exist” and (3)
Tremblay-Glassman’s testimony that Plaintiff’s request to work
indoors was an unreasonable accommodation, the Court is not
persuaded that a question of material fact exists as to the cause
of the breakdown of the discussion.
The first letter from Plaintiff to Defendant that included
Plaintiff’s diagnosis and restrictions is dated July 20, 2012.
Plaintiff’s Res., dkt. #39-6. Three days later, on July 23, 2012,
Tremblay-Glassman notified the Plaintiff that the July 20 letter
did not provide sufficient medical information to consider his
return to duty. Def.[‘s] Mot. Summ. J., dkt. #36-12. On August 2,
2012, Plaintiff responded to Tremblay-Glassman with a second
letter from his doctor. Plaintiff’s Res., dkt. #39-7. Three days
later, on August 6, Tremblay-Glassman responded to Plaintiff that
the letter, again, did not provide sufficient information to
allow his return to work. Tremblay-Glassman encouraged Plaintiff
to seek further information and specifics concerning his proposed
restriction, noting that Plaintiff would “remain on sick leave
while [his] leave credits allows [sic].” Def.[‘s] Mot. Summ. J.,
dkt. #36-14. Plaintiff failed to respond to this letter, and
instead, “felt like” he was “not working for the [Defendant]
anymore.” Plaintiff’s Res., dkt. #39 at 19.
The Defendant was entitled to request that Plaintiff provide
more specific details concerning his restrictions and the
appropriate accommodations for his alleged disability. See
Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 219 (2d
Cir. 2001)(noting that interactive process might include, among
other things, requesting information about the condition and what
limitations the employee has). Plaintiff claims that the request
for documentation was not specific. However, Tremblay-Glassman’s
requests for information are clear: “Your additional medical
documentation should include an explanation of the length of time
of outdoor exposure, acceptable weather conditions and
temperatures.” Def. Mot. Summ. J., dkt. #36-12. Plaintiff
responded with a note from his doctor that his outdoor exposure
should be limited to no more than 15 minute increments, however
he failed to include acceptable weather conditions and
temperatures. Plaintiff testified that he “went to a lot of
doctors’ appointments” but the doctors conferred with his primary
care physician, and he could not recall that any of the doctors,
besides Dr. Kowal, gave him restrictions or told him to limit his
outdoor exposure. Plaintiff’s Deposition, dkt. #36-6 at 81.
Indeed, Plaintiff had the opportunity to acquire more specific
information regarding his restrictions but failed to respond to
the Defendant’s request.
Plaintiff’s failure to provide Defendant with information
reasonably necessary to determine whether an accommodation was
needed and, if so, what would have been reasonable, is similar to
the situation in Economou v. Caldera, No. 99-CIV-12117, 2000 WL
1844773 (S.D.N.Y. Dec.18, 2000), aff'd 286 F.3d 144 (2d Cir.
2002). There, the Second Circuit affirmed a grant of summary
judgment in favor of defendants because the plaintiff was
responsible for the breakdown in an interactive process. Economou
worked for the Army Corps of Engineers. Id. at 3. In 1997, he
submitted a doctor’s note stating that he could not work because
he was being treated for carpal tunnel syndrome and that it was
recommended that he “refrain from excessive computer use.” Id. at
*3. The plaintiff’s supervisor informed him that he could not
approve his request for sick leave on the information the
plaintiff had provided, but that “if he were to obtain more
specific details from his physician, [the supervisor] would
reconsider his request.” Id. Instead of providing additional
information, Economou “continued to submit requests for sick
leave accompanied by notes from [his doctor] with the same
cursory explanation” that was in the original doctor’s note. Id.
As in Economou, no reasonable jury could find that it was
the Defendant, rather than Plaintiff himself, who terminated the
interactive process for discussing accommodations. See Nugent v.
St. Lukes-Roosevelt Hosp. Center, 303 Fed.Appx. 943, 946 (2d Cir.
2008)(“An employee who is responsible for a breakdown of [the]
interactive process may not recover for a failure to
Furthermore, the ADAAA makes clear that no failure to
accommodate claim can be made, as a matter of law, for an
individual who was “regarded as” disabled, rather than who was
actually disabled. See 42 U.S.C. § 12201(h)(“A covered entity
under subchapter I, a public entity under subchapter II, and any
person who owns, leases (or leases to), or operates a place of
public accommodation under subchapter III, need not provide a
reasonable accommodation or a reasonable modification to
policies, practices, or procedures to an individual who meets the
definition of disability in section 12102(1) of this title solely
under subparagraph (C) of this title solely under subparagraph
(C) of such section.”); see also Powers v. USF Holland, Inc., 667
F.3d 815, 823 n. 7 (7th Cir. 2011)(“[T]he ADAAA clarified that an
individual ‘regarded as' disabled (as opposed to actually
disabled) is not entitled to a ‘reasonable accommodation.’”
(quoting 42 U.S.C. § 12201(h))). Thus the Defendant’s motion will
be granted on this basis.
Constructive Discharge as Adverse Action
The Court turns next to Plaintiff’s constructive discharge
Constructive discharge of an employee occurs when an
employer, rather than directly discharging an
individual, intentionally creates an intolerable work
atmosphere that forces an employee to quit
involuntarily. Working conditions are intolerable if
they are so difficult or unpleasant that a reasonable
person in the employee's shoes would have felt
compelled to resign.
Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 89 (2d Cir.
1996)(internal citation and quotation marks omitted); see also
Terry v. Ashcroft, 336 F.3d 128, 151–52 (2d Cir. 2003).
The Plaintiff does not argue that there was evidence of
“intolerable working conditions,” because he never returned to
work after May 14, 2012. Plaintiff therefore argues in essence
that the purported failure to accommodate is tantamount to
The Sixth Circuit has stated:
[A] complete failure to accommodate, in the face of
repeated requests, might suffice as evidence to show
the deliberateness necessary for constructive
discharge.  We emphasize that our holding today does
not pave the way for an employee to assert a claim for
constructive discharge every time an employer fails to
accommodate her disability. But when an employee makes
a repeated request for an accommodation and that
request is both denied and no other reasonable
alternative is offered, a jury may conclude that the
employee's resignation was both intended and
Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1109
(6th Cir. 2008)(internal citation and quotation omitted). The
Sixth Circuit found the defendant constructively discharged the
plaintiff in Talley. The plaintiff in Talley “approached her
supervisors on numerous occasions during her employment to
discuss her disability and possible accommodations.” Talley, 542
F.3d at 1109. In response, the plaintiff’s supervisor refused to
open a note from the plaintiff’s doctor which he had requested,
and refused to hold a meeting to resolve the issue. Id. Plaintiff
here has not alleged that Defendant simply ignored repeated
requests for accommodation. The Plaintiff submitted two doctor’s
notes to the Defendant. The Defendant responded with requests for
more information in order to determine a reasonable accommodation
for the Plaintiff. Plaintiff failed to respond and never returned
to work. Moreover, unlike the plaintiff in Talley, Plaintiff was
not forced to work in conditions which exacerbated his
disability, creating such intolerable working conditions that he
had no other choice but to resign. Therefore, Plaintiff has not
shown an adverse action in order to prove discrimination. Pena v.
Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir. 1983).
Plaintiff has failed to raise a genuine issue of material
fact with respect to the contested elements of his prima facie
case of discrimination.
The Court will therefore grant the
Defendant’s motion with respect to this claim.7
Even if he had carried this burden, however, the Court
would grant Defendant’s motion for summary judgment.
If the plaintiff in a discrimination action meets his prima
facie burden, “the burden of production then shifts to the
defendant, who must proffer a legitimate, non-discriminatory
reason for its actions in order to rebut the presumption of
unlawful discrimination” created when plaintiff makes out a prima
facie case. McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). If the employer makes out this burden to “articulate an
explanation that, if true, would connote lawful behavior,” the
burden then returns to “the plaintiff to persuade the factfinder
that the employer’s proffered explanation is merely a pretext for
unlawful discrimination.” Id.
The Defendant’s claim that Plaintiff was not medically
cleared to return to work as of August 6, 2012 is a sufficient,
nondiscriminatory basis to support the actions Defendant took
with regard to Plaintiff’s employment. An employer is not
required to allow someone not cleared to work to return to a job.
That the Defendant needed more information regarding the
Plaintiff’s alleged disability and requested accommodations does
not, by itself, give rise to an inference of disability animus
necessary to rebut the Defendant’s contentions. Nor has Plaintiff
demonstrated any other plausible basis upon which to doubt that
this request for information arose from a legitimate need for
information. See, e.g., Dollar v. Brooklyn Hosp. Ctr., No.
10–CV–4807, 2011 WL 5117603, at *4 (E.D.N.Y. Oct. 24,
2011)(finding no discriminatory animus where the defendant
requested that the plaintiff “follow reasonable rules requiring
him to update [the defendant] regarding his medical condition”).
Plaintiff has also failed to support his argument that
Defendant’s recommendation to see a physician whose specialty
“did not exist” is evidence of pretext for disability
discrimination. While Tremblay-Glassman admitted in her
deposition that she did not personally know an industrial
medicine specialist in the Albany area, this does not make her
recommendation to the Plaintiff unreasonable or discriminatory.
The Plaintiff’s contention that “this was mere pretext” does not
offer any additional support. Plaintiff’s Res., dkt. #39 at 18.
Plaintiff has failed to prove that Defendant’s legitimate non
discriminatory reason for allegedly constructively terminating
Plaintiff was pretext for discrimination.
B. Retaliation Claims
Plaintiff also asserts a claim of retaliation under the ADA.
“To make out a prima facie case for retaliation, a plaintiff must
demonstrate that ‘(1) [he] engaged in protected activity; (2) the
employer was aware of that activity; (3) the employee suffered a
materially adverse action; and (4) there was a causal connection
between the protected activity and the adverse action.’” Kelly v.
Howard I. Shapiro & Assocs. Consulting Engineers, P.C., 716 F.3d
10, 14 (2d Cir. 2013)(quoting Lore v. City of Syracuse, 670 F.3d
127, 157 (2d Cir. 2012)).
As to the third element, an adverse employment action is
generally characterized as a “materially adverse change in the
terms and conditions of employment” and may include “termination
of employment, a demotion evidenced by a decrease in wage or
salary, a less distinguished title, a material loss of benefits,
significantly diminished material responsibilities, or other
indices unique to a particular situation.” Zelnik v. Fashion
Inst. of Tech., 464 F.3d 217, 225 (2d Cir. 2006); see also La
Grande v. DeCrescente Distrib. Co., 370 Fed.Appx. 206, 211 (2d
Cir. 2010)(“An actionable adverse employment action is ‘a
materially significant disadvantage with respect to the terms of
[plaintiff's] employment’[.]”)(quoting Williams v. R.H.
Donnelley, Corp., 368 F.3d 123, 128 (2d Cir. 2004)(alterations in
Defendant concedes the first two elements, but asserts that
Plaintiff’s allegations do not establish that any adverse
decision or course of action was taken against Plaintiff.
Defendant’s Mem., dkt. #36-3 at 36. The Plaintiff argues that, by
allegedly denying his accommodations, the Defendant
constructively terminated him. Plaintiff offers the same argument
for his retaliation claim as he does for his discrimination claim
discussed above. For the same reasons, the Court finds no
evidence to support a finding that Plaintiff suffered a
materially adverse action. Thus, summary judgment will be granted
on this claim as well.
C. NYSHRL Claims
Plaintiff asserts claims of discrimination and retaliation
under the NYSHRL as well. Second Circuit cases make clear that
the New York disability statute defines disability more broadly
than does the ADA.8 However, “aside from the law's unique
The NYSHRL defines “disability” as “a physical, mental or
medical impairment resulting from anatomical, physiological,
genetic or neurological conditions which prevents the exercise of
a normal bodily function or is demonstrable by medically accepted
clinical or laboratory diagnostic techniques[.]” N.Y. Exec. Law §
292(21)(McKinney's 2010). The NYSHRL “provides that disabilities
are not limited to physical or mental impairments, but may also
include ‘medical’ impairments.” State Division of Human Rights v.
Xerox Corp., 65 N.Y.2d at 218–19, 491 N.Y.S.2d at 109, 480 N.E.2d
695. In addition, unlike the ADA, the NYSHRL “does not impose the
requirement that the impairment substantially limit the
definition of ‘disability,’ claims under the NYSHRL are analyzed
under the familiar burden-shifting framework set forth in
McDonnell Douglas.” Penberg v. HealthBridge Management, 823
F.Supp.2d 166, 182 (E.D.N.Y. 2011). Since Plaintiff has failed to
offer any evidence to support he suffered an adverse action
because of his alleged disability, summary judgment will be
granted on these claims as well.
D. FMLA Claims
i. Retaliatory Discharge
Plaintiff’s fifth cause of action is for retaliatory
discharge under the FMLA. Plaintiff claims Defendant retaliated
against him for taking FMLA leave, presumably by constructively
terminating him.9 Complaint, dkt. #1 at ¶ 63. In order to
establish a prima facie case for retaliation under the FMLA,
plaintiff must prove that: 1) he exercised rights protected under
the FMLA; 2) he was qualified for the position; 3) he suffered an
adverse employment action; and 4) the adverse employment action
occurred under circumstances giving rise to an inference of
retaliatory intent. Potenza v. City of New York, 365 F.3d 165,
168 (2d Cir. 2004). As explained above, Plaintiff cannot show he
suffered an adverse employment action. Thus, summary judgment
individual's normal activities.” Krikelis v. Vassar College, 581
F.Supp.2d 476, 486 (S.D.N.Y.2008).
Plaintiff does not set forth a method of retaliation in his
must be granted for this claim as well.
ii. Interference with Rights
Plaintiff’s final cause of action alleges that the Defendant
interfered with his FMLA rights. Plaintiff claims that Defendant
denied him his right under the FMLA to return to his position as
Water Treatment Plant Operator. Complaint, dkt. #1 at ¶ 66.
Plaintiff asserts he “took approved FMLA [leave] in connection
with his serious medical condition/disability. Defendant
prevented him from returning to work as a Water Treatment Plant
Operator and constructively terminated him.” Plaintiff’s Response
to Defendant’s First Set of Interrogatories, dkt. #36-17 at ¶ 12.
An interference with FMLA rights claim under 29 U.S.C. §
2615(a)(1) requires Plaintiff to satisfy five elements: (1) that
he is an eligible employee under the FMLA; (2) that defendant is
an employer as defined in FMLA; (3) that he was entitled to leave
under FMLA; (4) that he gave notice to the defendant of his
intention to take leave; and (5) that he was denied benefits to
which he was entitled under FMLA. Geromanos v. Columbia
University, 322 F.Supp.2d 420, 427 (S.D.N.Y. 2004).
Defendant does not contest that Plaintiff was an “eligible
employee” under the FMLA, that Defendant is an employer covered
by the Act’s terms, or that Plaintiff was entitled to leave under
the FMLA. Neither party addresses the adequacy of Plaintiff’s
notice to the Defendant of his intention to take leave. The Court
must determine whether Plaintiff properly invoked FMLA rights in
order to reach the question of whether Defendant interfered with
In order to invoke FMLA rights, an employee must provide
“sufficient information for an employer to reasonably determine
whether the FMLA may apply to the leave request.” C.F.R. 29 §
825.393. Additionally, “when an employee seeks leave for the
first time for a FMLA-qualifying reason, the employee need not
expressly assert rights under the FMLA or even mention the FMLA.”
Id. It is the employer’s duty to obtain any additional required
information, in the form of a medical certificate, to determine
that the employee has a serious health condition that makes him
eligible for leave. In addition to a medical certificate, the
employer may also later request a certification that the employee
is fit to return to work. Department of Labor (“DOL”) regulations
distinguish between a medical condition certificate and a
fitness-for-duty certification. As to condition certifications,
the regulations provide that an employer may “require that an
employee’s...serious health condition...be supported by
certification.” 29 C.F.R. § 825.305(a). The request for a
condition certification should be made when the employer
recognizes that an employee may be qualified for FMLA leave (id.
§ 825.300(b)(1)), but an employer may request the condition
certification later if it “has reason to question the
appropriateness of leave or its duration.” Id. § 825.305(b). If
an employer requests a condition certification, the employee will
have a minimum of 15 days to comply with the employer's request,
after which a failure to provide the certification will entitle
the employer to deny FMLA leave. Id. § 825.313(a)-(b). The
regulations allow the employee to comply with the condition
certification requirement by authorizing his medical provider to
speak directly with the employer. Id. § 825.305(d).
As to fit-for-duty certifications, the regulations state:
An employer may seek a fitness-for-duty certification
only with regard to the particular health condition
that caused the employee's need for FMLA leave. The
certification from the employee's health care provider
must certify that the employee is able to resume work.
Additionally, an employer may require that the
certification specifically address the employee's
ability to perform the essential functions of the
employee's job. In order to require such a
certification, an employer must provide an employee
with a list of the essential functions of the
employee's job no later than with the designation
notice required by § 825.300(d), and must indicate in
the designation notice that the certification must
address the employee's ability to perform those
essential functions. If the employer satisfies these
requirements, the employee's health care provider must
certify that the employee can perform the identified
essential functions of his or her job. Following the
procedures set forth in § 825.307(a), the employer may
contact the employee's health care provider for
purposes of clarifying and authenticating the
fitness-for-duty certification. Clarification may be
requested only for the serious health condition for
which FMLA leave was taken. The employer may not delay
the employee's return to work while contact with the
health care provider is being made.
29 C.F.R. § 825.312(b) (emphasis added).
There is a genuine issue of material fact as to whether the
Defendant prevented Plaintiff from returning to work. Once the
Plaintiff gave notes to the Defendant from his doctor stating
that he was being treated for hypertension and required
restrictions at work, this triggered Defendant’s duty to
determine whether Plaintiff was fit to return to work. As the
Regulations plainly state, the employer is not entitled to delay
the employee’s return to work during this inquiry. It is clear
from the record that Defendant was aware Plaintiff was ill, and
there is a question of material fact as to whether Defendant
upheld its duty under the FMLA to properly request the
information they needed to reinstate Plaintiff. Tremblay-Glassman
Q: Did any employee at the town ask [Plaintiff] to fill
out a family medical leave application?
A: No. But we didn’t–he reached out to us for his
benefits, such as long-term disability. So [Plaintiff]
was active in trying to pursue his benefits.
Q: But you never–but nobody at the town actually told
him, you should still fill out this application for
Family Medical Leave Act; correct?
Q: But the town was aware that he was, in fact, ill;
Q: And he couldn’t work at the time for a period of
Q: And you were aware that it was hypertension;
Mary Tremblay-Glassman Deposition, dkt. #36-7 at 117. Moreover,
Plaintiff gave Defendant permission to contact his doctor
directly to determine the information they needed, but Defendant
failed to do so. Id. at 128. Carpo v. Wartburg Lutheran Home for
the Aging, No. 05-CV-1169, 2006 WL 2946315, at *5 (E.D.N.Y. Oct.
16, 2006)(“[W]hen...an employer claims to find ambiguity in a
return-to-work certificate...the employee must be allowed to
remain on the payroll while clarification is sought.”). Defendant
contends that it was awaiting further medical information from
Plaintiff, and assumed Plaintiff would eventually return to work.
Plaintiff argues that he was unable to return to work due to
Plaintiff “stonewalling” his requests for accommodation. Since
there is a question of material fact as to whether Defendant
interfered with Plaintiff’s rights under the FMLA by not allowing
Plaintiff to return to work while they made an inquiry into his
condition, summary judgment must be denied on this claim.
For the foregoing reasons stated above, Defendant’s motion
for summary judgment, dkt. #36, will be GRANTED in part and
DENIED in part, as follows:
The motion with be granted with respect to Plaintiff’s
claims for: ADA discrimination; NYSHRL discrimination;
ADA retaliation; NYSHRL retaliation; and FMLA
The motion will be denied with respect to Plaintiff’s
FMLA interference claim.
IT IS SO ORDERED.
Dated:September 9, 2015
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