Rengan v. FX Direct Dealer, LLC

Filing 97

OPINION AND ORDER re: 85 FIRST MOTION for Summary Judgment re-filed. filed by FX Direct Dealer, LLC, 77 MOTION for Summary Judgment as to Liability (re-filing).. filed by Bhavani Rengan. The motions for summary judgment, ECF Nos. 77 and 85, are denied. The clerk is directed to close all pending motions. SO ORDERED. (Signed by Judge John G. Koeltl on 8/4/17) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
────────────────────────────────────
BHAVANI RENGAN,
Plaintiff,

15-cv-4137

- against -

OPINION AND ORDER

FX DIRECT DEALER, LLC,
Defendant.
────────────────────────────────────
JOHN G. KOELTL, District Judge:
Bhavani Rengan was employed by the defendant FX Direct
Dealer LLC (“FXDD”) as an Oracle Technical Analyst from January
2007 through April 2015. Rengan brought this action for
interference with her rights under the Family Medical Leave Act
(“FMLA”), 29 U.S.C. §§ 2601 et seq., after being terminated by
the defendant while on leave following the birth of her second
child.
Both parties now move for summary judgment on the sole
count in the Complaint. For the reasons explained below, neither
party is entitled to judgment as a matter of law, and the
motions are therefore denied.
I.
The standard for granting summary judgment is well
established. “The court shall grant summary judgment 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.”
1

Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). “[T]he trial court’s task at the summary
judgment motion stage of the litigation is carefully limited to
discerning whether there are any genuine issues of material fact
to be tried, not to deciding them. Its duty, in short, is
confined at this point to issue-finding; it does not extend to
issue-resolution.” Gallo v. Prudential Residential Servs. Ltd.
P’ship, 22 F.3d 1219, 1224 (2d Cir. 1994). The moving party
bears the initial burden of “informing the district court of the
basis for its motion” and identifying the matter that “it
believes demonstrate[s] the absence of a genuine issue of
material fact.” Celotex, 477 U.S. at 323. The substantive law
governing the case will identify the material facts and “[o]nly
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986).
In determining whether summary judgment is appropriate, the
Court must resolve all ambiguities and draw all reasonable
inferences against the moving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing
United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see
also Gallo, 22 F.3d at 1223. Summary judgment is improper if
there is any evidence in the record from any source from which a
2

reasonable inference could be drawn in favor of the non-moving
party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d
Cir. 1994).
II.
The following facts are undisputed unless otherwise noted.
The plaintiff began working for FXDD as an Oracle Technical
Analyst in January 2007. FXDD Resp. to Rengan 56.1 Stmt. ¶ 1.
Throughout her tenure at FXDD, the plaintiff’s job performance
was consistently excellent. Id. ¶ 5. The plaintiff received an
Employee Handbook once on February 5, 2007, and again on
November 23, 2007. FXDD 56.1 Stmt. ¶ 3; Regnan Resp. to FXDD
56.1 Stmt. ¶ 3; Klassen Aff. in Supp. Ex. C. That Handbook
contains a section titled “Family and Medical Leave” which
provides, as relevant here:
As required by the Family and Medical Leave Act of 1993,
FXDD will grant 12 weeks of unpaid leave per 12-month
period to employees who have completed one year of service
and who have worked at least 1,250 hours in the last 12
months. . . . Leave may be taken for the following reasons:
• The birth of a son or daughter . . .
Klassen Aff. in Supp. Ex. B at 23-24. That section also requires
employees “[w]henever possible, [to provide] at least 30 days’
notice” prior to leave to be taken for the birth of a child, and
requires certification of the need for leave. Id. at 24. The
Handbook also contains a separate section entitled “Maternity
Leave Policy,” which provides:

3

Maternity leave will be treated in the same manner as any
other disability leave. Please see the Human Resources
Manager for a complete description of Maternity Leave.
At present, all full-time regular employees will receive
their full wages for a period not to exceed eight weeks.
You may also choose an additional four weeks of unpaid
maternity leave.
Id. at 25. The Handbook does not reflect whether the FMLA and
maternity leave policies run concurrently or consecutively. Id.
at 24-25.
In early 2014, the plaintiff learned she was pregnant with
her second child and was due to give birth around the third week
of November. FXDD Resp. to Rengan 56.1 Stmt. ¶ 24. In early
September, the plaintiff contacted the defendant’s sole Human
Resources employee, Alexis Kesselman, by email with the subject
line “Maternity Leave,” informing Kesselman of the plaintiff’s
due date and stating that “[a]s discussed I would be using my
remaining 19 days of vacation followed by maternity leave around
[the time of the plaintiff’s due date].” Klassen Aff. in Opp.
Ex. F; FXDD Resp. to Rengan 56.1 Stmt. ¶¶ 7, 24. In October, the
plaintiff followed up by email with Kesselman with the subject
line “Maternity Leave.” Klassen Aff. in Opp. Ex. F. The
plaintiff requested to “take [her] time off/maternity leave”
beginning Monday, November 3rd, and stated that she “would like
to use [her] vacation days for 2014 (17 days) followed by
maternity leave.” Id. One of the plaintiff’s supervisors, Shawn

4

Dilkes, approved the request. Id. The plaintiff ultimately began
her pre-approved leave on Thursday, October 30, two business
days earlier than planned. Id.
Alexis Kesselman received no training regarding the
defendant’s maternity leave and FMLA policies except for what
was written in the Employee Handbook. FXDD Resp. to Rengan 56.1
Stmt. ¶ 10. Kesselman testified that her own understanding was
that the defendant’s maternity leave policy and FMLA leave
policy ran concurrently based on her “assumption from previous
employers” and based on what the benefits manager at the
defendant’s former parent company told her. Id.; Klassen Aff. in
Opp. Ex. D at 34. However, the Employee Handbook does not state
that the two leave policies run concurrently, and neither
Kesselman nor anyone else at FXDD ever notified the plaintiff
that the policies ran concurrently. Klassen Aff. in Supp. Ex. B
at 23-25.

Indeed, Annemarie Caiati, the defendant’s Vice

President of Accounting and Finance and Ms. Kesselman’s
supervisor, testified that she understood that the two policies
ran consecutively and that an employee could request twelve
weeks of unpaid FMLA leave to follow the employee’s twelve weeks
of maternity leave (eight weeks of which could be paid). FXDD
Resp. to Rengan 56.1 Stmt. ¶¶ 6, 52, 55-56. Moreover, although
Dilkes declared that the defendant “displayed a poster in a
conspicuous place on its premises that explained employees’
5

rights under the [FMLA],” Klassen Aff. in Opp. Ex. B, the
plaintiff and three of her coworkers testified that they were
not aware of any such poster, and that none of them received any
further information or training regarding FMLA leave beyond what
was written in the Handbook, FXDD Resp. to Rengan 56.1 Stmt.
¶¶ 18-23.
Following the plaintiff’s request for “maternity leave,”
neither Kesselman nor anyone else at FXDD provided the plaintiff
with any FMLA paperwork or notices, nor did anyone notify the
plaintiff in writing that the leave would be designated FMLA
leave. FXDD Resp. to Rengan 56.1 Stmt. ¶ 27; Klassen Aff. in
Opp. Ex. D at 21. Although the defendant maintains that
Kesselman informed the plaintiff verbally that her twelve weeks
of leave would begin on the day the plaintiff’s child was born,
and that Dilkes informed the plaintiff verbally that the
plaintiff had to return to work “twelve weeks from the day her
vacation is over,” it is undisputed that the plaintiff never
received notification in writing that the leave she planned to
take would be designated FMLA leave, and never received a
specified return to work date before beginning her leave. FXDD
Resp. to Rengan 56.1 Stmt. ¶ 27; Klassen Aff. in Opp. Ex. D at
21-24. And none of the emails sent to the plaintiff prior to her
leave indicated that her leave would be designated FMLA leave.
FXDD Resp. to Rengan 56.1 Stmt. ¶ 37. Indeed, neither Dilkes nor
6

Kesselman were aware of any requirement to provide employees
with an FMLA Eligibility Notice, FMLA start date, or an expected
return to work date. FXDD Resp. to Rengan 56.1 Stmt. ¶¶ 13, 23.
It is unclear whether the verbal notifications allegedly given
to the plaintiff by Kesselman and Dilkes about the start and end
dates of her leave included any mention of the FMLA or any
indication that the leave to be taken would be designated FMLA
leave.
The plaintiff’s child was born on November 12, 2014, and
the plaintiff advised Kesselman of the child’s birth the
following day. Id. ¶¶ 39-40. On January 8, 2015, Kesselman
emailed the plaintiff, copying Shawn Dilkes, stating that “[t]he
last day of your 12 weeks is February 12, 2015 and we are happy
to have you back on February 13th!” McKinney Aff. in Supp. Ex. N.
This was the defendant’s first attempt to communicate a specific
return to work date to the plaintiff, and the email still made
no mention of the FMLA. FXDD Resp. to Rengan 56.1 Stmt. ¶ 44. It
is undisputed that the plaintiff had fully recovered and would
have been physically able to return to work by February 13,
2015. Id. ¶ 47. The plaintiff –- who had not been checking her
email regularly while on leave -- responded on January 21
indicating that she had just read the email and asked for a
convenient time to discuss on the phone. McKinney Aff. in Supp.
Ex. N. The day before, on January 20, the plaintiff had sent a
7

separate email to Kesselman stating: “I would like to use 12
weeks of FMLA unpaid leave to care for my new born. . . . Please
treat this email as an application to use Federal FMLA to care
for my newborn starting Feb 16th for a period of 12 weeks after.
Please let me know if you have any questions.” McKinney Aff. in
Supp. Ex. L. Kesselman forwarded the plaintiff’s email request
to Shawn Dilkes and stated “I believe she is confused – I will
clarify that her 12 weeks began the day the baby was born. Do
you want to be on the email?,” to which Dilkes responded, “Ok,
sure.” McKinney Aff. in Supp. Ex. M.
But no such response was ever sent despite the fact that
Ms. Kesselman understood from the plaintiff’s January 20th email
that the plaintiff believed she was on maternity leave and that
she was entitled to take another twelve weeks of unpaid FMLA
leave. FXDD Resp. to Rengan 56.1 Stmt. ¶¶ 58-59. Kesselman did
not understand at the time that she had a responsibility to
advise the plaintiff in writing whether the plaintiff’s FMLA
request was approved or denied. Id. ¶ 73. The plaintiff
testified that if she had been promptly informed that she was
not entitled to twenty-four weeks of leave and was thus required
to return to work on February 13, she would have returned to
work on that day. Id. ¶ 61. Several weeks after the January 20
email, having not heard anything in response, the plaintiff sent
a follow-up email on February 9 asking for “[a]ny updates” on
8

her request for FMLA leave. McKinney Aff. in Supp. Ex. O.
Kesselman did not respond to the email. On February 11, the
plaintiff sent yet another email to Ms. Kesselman stating that
the plaintiff was “really concerned” that she had not received a
response to her request for FMLA leave. McKinney Aff. in Supp.
Ex. P. The plaintiff also testified that she called Kesselman
multiple times and left multiple voicemails, but never heard
back. FXDD Resp. to Rengan 56.1 Stmt. ¶ 70.
More than two months after the plaintiff’s written request
for FMLA leave, on March 31, Ms. Kesselman emailed the plaintiff
stating that “I have been trying to be in touch with you at the
below phone number. Can you please confirm it is correct?”
McKinney Aff. in Supp. Ex. R. The parties dispute whether
Kesselman actually made any such calls. The plaintiff maintains
that the number listed was her correct cell phone number, and
the plaintiff’s friend and co-worker testified that she had
successfully reached the plaintiff at that number many times
during the course of the plaintiff’s employment. FXDD Resp. to
Rengan 56.1 Stmt. ¶¶ 77, 79.
In any event, on April 1 the plaintiff responded to Ms.
Kesselman’s email, and they spoke by phone that same day. Id.
¶¶ 80-81. On that call, Kesselman requested that the plaintiff
return to work as early as that week, and the parties agree that
the plaintiff was “shocked” by that request because she had been
9

under the impression that she would be on leave until May 11,
2015, and needed to secure childcare for her newborn. FXDD Resp.
to Rengan 56.1 Stmt. ¶ 81. The parties dispute whether the
plaintiff was told on that call that she was not on FMLA leave,
but they agree that, at a minimum, the plaintiff was told that
“it is not FMLA, or something like that.” FXDD 56.1 Stmt. ¶ 25;
Rengan Resp. to FXDD 56.1 Stmt. ¶ 25. The plaintiff was not
given a specific return to work date on the April 1 call, but
FXDD maintains that the plaintiff understood that she was to
return to work “immediately.” FXDD 56.1 Stmt. ¶ 24; FXDD Resp.
to Rengan 56.1 Stmt. ¶ 81. The parties also agree that on the
April 1 call, the plaintiff indicated to Ms. Kesselman that it
would be difficult to obtain childcare on such short notice, and
that following the call, the plaintiff began urgently looking
for childcare so that she could return to work as soon as
possible. FXDD Resp. to Rengan 56.1 Stmt. ¶¶ 83-84. It is
unclear what the parties’ understandings were at the end of the
call regarding the timeline of the plaintiff’s return to work.
A few days later, the plaintiff attempted to check her work
email but was locked out –- which had occurred periodically
throughout the plaintiff’s leave -- and had to call the system
administrator to have the account unlocked. FXDD Resp. to Rengan
56.1 Stmt. ¶ 85. On April 9, over a week after the April 1 phone
call and without any other communication between the plaintiff
10

and FXDD in the interim, Kesselman sent the plaintiff an email
stating that the defendant had been “expecting [the plaintiff]
to return to work on February 12, 2015.” FXDD Resp. to Rengan
56.1 Stmt. ¶ 86; McKinney Aff. in Supp. Ex. S. The email stated
that “[t]he total period of maternity leave to which you were
entitled was 12 weeks and this period came to an end o[n]
February 11, 2015.” McKinney Aff. in Supp. Ex. S. The email
acknowledged that “the information [the plaintiff] received
regarding FMLA led [her] to believe that [she] [was] eligible to
take additional time continuing the 12 weeks from November 12,
2014; however, that information was incorrect.” Id. The email
continued: “Following our conversation on Wednesday, April 1,
2015, we have not received communication from you regarding your
return to work. If you have decided that you do not wish to
return to work, we ask that you confirm your resignation in
writing. If you wish to remain with the company, we expect you
to return to the office on Monday, April 13, 2015. Please advise
as soon as possible.” Id. The email was sent at 5:03 p.m. on
Thursday, April 9, leaving the plaintiff one business day in
which to make preparations to return to the office on Monday the
13th.
The parties dispute whether the plaintiff ever received or
viewed that email, but it is undisputed that the plaintiff did
not respond to it. FXDD Resp. to Rengan 56.1 Stmt. ¶ 88. After
11

the plaintiff failed to show up at work on Monday, April 13, and
without contacting the plaintiff by phone or sending any followup emails, Kesselman drafted a letter on April 15 terminating
the plaintiff’s employment. Id. ¶¶ 92-93. That letter was sent
to the plaintiff via overnight mail on April 16, and she
received it on April 17. Id. ¶¶ 95-96. In the meantime, the
plaintiff attempted to log in to the FXDD email system on April
16 to notify the defendant that she was prepared to return to
work, but was again locked out of the system, this time because
–- unbeknownst to her –- her employment had been terminated.
Id. ¶¶ 99-100. The plaintiff called Shawn Dilkes that day to
inform him that she had secured childcare and was prepared to
return to work, at which point he asked if she had received the
“letter” and directed her to human resources. Id. ¶¶ 100-102.
The next day, April 17, the plaintiff received the letter
terminating her employment. Id. ¶¶ 103-04. The letter stated
that FXDD had “made numerous attempts to be in touch with you
regarding your return to work after giving birth on November 12,
2014.” Id. ¶ 104. The letter went on to state that the plaintiff
was entitled to only “12 weeks of unpaid leave under FMLA for
maternity leave,” and that although the plaintiff had been
expected to return on February 12, the defendant –- in an effort
to be “flexible and understanding” -- had “extended [the
plaintiff’s] return to work date until April 13, 2015 which was
12

communicated to [the plaintiff] via phone call on April 1, 2015
and via email on Thursday, April 9, 2015.” Id. It is undisputed
that the plaintiff was not in fact informed of the April 13
return to work date on the April 1 phone call, and that the
first time that date was ever mentioned was in an email sent to
the plaintiff after 5 p.m. on Thursday, April 9. Id. ¶¶ 81, 86.
The letter went on to conclude: “Since you have not returned to
work and have failed to communicate to your manager or Human
Resources after instructions to that fact were given, your
employment has been terminated as job abandonment and
insubordination effective April 15, 201[5].” Id. ¶ 104; McKinney
Aff. in Supp. Ex. T.
That same day, the plaintiff emailed Dilkes and Kesselman
protesting her termination and stating that “I was trying to get
into my email yesterday to inform you that I have child care
from today and can get to work from next Thursday April 23rd.”
FXDD Resp. to Rengan 56.1 ¶ Stmt. 106. Neither Dilkes nor
Kesselman ever responded to the plaintiff’s email. The plaintiff
testified that she had begun training her nanny during the
second week of April, and would have returned to work
immediately if she had known she would be terminated for failing
to do so. Id. ¶ 107. The defendant disputes the allegation that
the plaintiff would have been able to return to work
“immediately” in light of the plaintiff’s suggestion, after
13

receiving the termination letter on April 17, that she could
return to work beginning on April 23. Id. However, the
plaintiff’s testimony is uncontested that, had FXDD made a
timely response to her January 20 email informing her that she
was not entitled to further leave, the plaintiff would have been
physically able to return work on February 13. Id. ¶ 112.
III.
A.
Both parties now move for summary judgment on the
Complaint’s sole claim of FMLA interference. The plaintiff
argues that she is entitled to judgment as a matter of law
because the defendant’s failure to provide adequate and timely
FMLA notices prevented the plaintiff from structuring her leave
so as to ensure that her job was preserved and ultimately
resulted in the plaintiff’s termination. The defendant moves for
summary judgment arguing that the plaintiff received the notices
to which she was entitled and that she received the FMLA leave
that was required.
The FMLA makes it unlawful for “any employer to interfere
with, restrain, or deny the exercise of or the attempt to
exercise, any right provided” by the FMLA. 29 U.S.C.
§ 2615(a)(1). The FMLA entitles employees who take qualified
FMLA leave to be reinstated to the same or an equivalent
position upon their return from leave. 29 U.S.C. § 2614(a)(1).
14

To establish a prima facie case of FMLA interference, a
plaintiff must establish “1) that she is an eligible employee
under the FMLA; 2) that defendant is an employer as defined in
[the] FMLA; 3) that she was entitled to leave under [the] FMLA;
4) that she gave notice to the defendant of her intention to
take leave; and 5) that she was denied benefits to which she was
entitled under [the] FMLA.” Geromanos v. Columbia Univ., 322 F.
Supp. 2d 420, 427 (S.D.N.Y. 2004).
It is undisputed that the first three requirements are met
here. And although the defendant purports to dispute that the
plaintiff gave notice to the defendant of her intention to take
leave, the relevant facts are undisputed: the plaintiff gave
notice of her intention to take leave that was FMLA-qualifying
in early September 2014, well over thirty days in advance of her
planned leave, and on January 20, 2015 made a specific written
request for FMLA leave twenty-seven days before the plaintiff
planned to begin that leave. FXDD Resp. to Rengan 56.1 Stmt.
¶¶ 24, 48. The defendant’s theory of the case is that the
plaintiff was on FMLA leave for the twelve weeks following the
birth of her child and was not entitled to further leave. Thus,
the only relevant notice is that which the plaintiff provided in
advance of taking leave for the birth of her child. That notice
was plainly adequate as a matter of law.

15

The crucial issue is thus whether the plaintiff can
establish as a matter of law that the defendant denied her
benefits to which she was entitled under the FMLA. Both the
Supreme Court and the Second Circuit Court of Appeals have
indicated that a distinct claim of FMLA interference may exist
for failure to give the notices required by the FMLA regulations
where that failure results in prejudice to the employee. See
Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 90 (2002);
Kosakow v. New Rochelle Radiology Assocs., 274 F.3d 706, 723-24
(2d Cir. 2001). When, for example, an employer fails to conform
to the technical notice requirements of the FMLA prior to the
employee’s leave but it is undisputed that the employee could
not have returned to work after twelve or more weeks of leave,
the employee does not have a claim of interference because no
prejudice resulted from the lack of notice. See Sarno v. Douglas
Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 161-62 (2d Cir.
1999) (employee had no claim of FMLA interference because his
right to reinstatement following leave “could not have been
impeded or affected by the lack of notice because his leave was
caused by a serious health condition that made him unable to
perform the functions of his position, and it is undisputed that
that inability continued for some two months after the end of
his 12-week FMLA leave period” (alterations, citation, and
quotation marks omitted)). When, on the other hand, an employee
16

is terminated for failing to return after twelve weeks of FMLA
leave after not having received adequate notice of the
employee’s FMLA rights and responsibilities, and the employee
can establish that with proper notice he would have structured
his leave “in such a way as to preserve the job protection
afforded by the Act,” the employee has a viable claim of
interference under the FMLA. See Conoshenti v. Public Serv.
Elec. & Gas Co., 364 F.3d 135, 143 (3d Cir. 2004).
It is undisputed that the defendant failed to provide the
plaintiff with the required FMLA notices. When an employee
either requests FMLA leave or an employer “acquires knowledge
that an employee’s leave may be for an FMLA-qualifying reason,”
the employer is required, within five business days, to “notify
the employee of the employee’s eligibility to take FMLA leave”
and must “state whether the employee is eligible for FMLA
leave.” 29 C.F.R. § 825.300(b)(1), (2). It is undisputed that
FXDD failed to provide such notice. See FXDD Resp. to Rengan
56.1 Stmt. ¶ 27. The defendant alleges that Ms. Kesselman orally
notified the plaintiff sometime before the plaintiff’s leave
that her leave would begin “with the birth of her child,” but
there is no indication that any such notice was given within
five days as required by the regulations, and there is no
indication that Ms. Kesselman or anyone else at FXDD explicitly
referred to the plaintiff’s maternity leave as FMLA leave at any
17

time prior to the plaintiff’s leave. See id. The defendant’s
reliance on the existence of a conspicuously displayed FMLA
poster –- which is, in any event, disputed -- is misplaced,
because any such poster could only fulfill the “general notice”
requirement included in 29 C.F.R. § 825.300(a), and has no
bearing on the individualized notice requirements. Similarly,
the notices provided in the Employee Handbook could not have
satisfied these individual notice requirements, and in any
event, the Handbook failed to specify that the defendant’s
maternity leave and FMLA leave policies ran concurrently. See
Klassen Aff. in Supp. of FXDD Mot. Ex. B at 23-25.
At the same time as the eligibility notice is provided, an
employer is also required to issue a “[r]ights and
responsibilities notice” that details “the specific expectations
and obligations of the employee and explain[s] any consequence
of a failure to meet these obligations.” 29 C.F.R.
§ 825.300(c)(1). The notice is required to include, among other
things, notice “[t]hat the leave may be designated and counted
against the employee’s annual FMLA leave entitlement.” Id.
§ 825.300(c)(1)(i). It is undisputed that the plaintiff did not
receive such notice. The defendant’s allegation that Shawn
Dilkes orally informed the plaintiff that “she’s gotta come back
in twelve weeks” plainly does not meet the requirements of
§ 825.300(c) because it is undisputed that Dilkes did not
18

mention the FMLA or even provide the plaintiff with a specific
return to work date, did not inform the plaintiff that she would
be subject to termination if she failed to return after twelve
weeks, and that any such notice was not in writing. See FXDD
Resp. to Rengan 56.1 Stmt. ¶ 27.
The regulations also require an employer to “notify the
employee whether the [employee’s] leave will be designated and
will be counted as FMLA leave within five business days” of when
the employer has “enough information to determine whether the
leave is being taken for a[n] FMLA-qualifying reason.” 29 C.F.R.
§ 825.300(d)(1). The designation notice “must be in writing” and
“must notify the employee of the amount of leave counted against
the employee’s FMLA leave entitlement,” including, if known,
“the number of hours, days, or weeks that will be counted
against the employee’s FMLA leave entitlement.” 29 C.F.R.
§§ 825.300(d)(4), (d)(6). An employer may retroactively
designate leave as FMLA leave “with appropriate notice to the
employee” provided that “the employer’s failure to timely
designate leave does not cause harm or injury to the employee.”
29 C.F.R. § 825.301(d). It is undisputed that the plaintiff did
not receive any such written notification prior to beginning her
leave despite the fact that the defendant knew months in advance
that the plaintiff’s leave was FMLA-qualifying. Even the email
sent to the plaintiff on January 8, 2015 did not mention the
19

FMLA, or specify that the plaintiff’s leave had been designated
FMLA leave, or inform the plaintiff of the amount of FMLA leave
to which she was entitled. See McKinney Aff. in Supp. Ex. N.
The regulations also require an employer to “responsively
answer questions from employees concerning their rights and
responsibilities under the FMLA.” 29 C.F.R. § 825.300(c)(5).
Having received the plaintiff’s email on January 20 requesting
FMLA leave to begin on February 16, it is undisputed that the
defendant failed to reply to the plaintiff’s request in writing
and failed to communicate with the plaintiff in writing at all
for more than two months despite the plaintiff’s obvious
confusion and repeated follow-up emails. See generally FXDD
Resp. to Rengan 56.1 Stmt. ¶¶ 48, 58-74. Whether Ms. Kesselman
ever attempted to communicate with the plaintiff by phone during
that time period is disputed. See id. ¶¶ 75-80.
The regulations specify that “[f]ailure to follow the
notice requirements set forth in this section may constitute an
interference with . . . an employee’s FMLA rights.” 29 C.F.R.
§ 825.300(e). The plaintiff argues that she is entitled to
summary judgment because the undisputed facts establish that the
defendant’s failure to (1) timely designate her leave as FMLA
leave; (2) timely inform the plaintiff of her obligations under
the FMLA, including a return to work date; and to (3) timely
respond to the plaintiff’s written request for FMLA leave
20

prevented the plaintiff from structuring her leave so as to
ensure her own job security and ultimately resulted in her
termination. The issue is whether the defendant’s numerous
notice failures prejudiced the plaintiff and ultimately caused
her to lose her job. Issues of fact exist as to whether the
plaintiff was prepared to return to work as directed when her
employer informed her that any FMLA leave had been exhausted.
Most significantly, the facts surrounding the
communications between the plaintiff and FXDD between January
and April 2015 are in dispute. Taken in the light most favorable
to FXDD, a jury could find that the plaintiff ignored numerous
calls from Ms. Kesselman between January and March 2015; that
the plaintiff was eventually informed that she did not qualify
for further leave on the April 1 phone call; and that she knew
was expected to return to work that week. See FXDD Resp. to
Rengan 56.1 Stmt. ¶¶ 75-80, 81. The plaintiff concedes that her
employer said something about FMLA leave on that call and that
she was told she needed to return to work that week, and did not
do so. See Klassen Aff. in Opp. Ex. C at 20. A jury could also
believe that the plaintiff either received the April 9 email
from Ms. Kesselman directing the plaintiff to return to work on
April 13 but ignored it, or did not check her email despite her
understanding that she was expected to return to work as soon as
possible. See id. ¶¶ 85-88. Thus, there are issues of fact as to
21

whether the defendant’s failures to meet the FMLA notice
requirements prejudiced the plaintiff because a jury could find
that the plaintiff was given a reasonable opportunity to return
to work after being notified that she was not entitled to
further leave, and failed to do so.
The dispute over what transpired between late January and
mid-April 2015 is what separates this case from Young v.
Wackenhut Corp., No. 10-cv-2608 (DMC), 2013 WL 435971 (D. N.J.
Feb. 1, 2013). In that case, as here, the plaintiff informed her
employer of her intention to take maternity leave, but never
received an eligibility notice, a rights and responsibilities
notice, or a designation notice. Id. at *4. Nor did her employer
inform the plaintiff prior to her leave of a return to work
date. Id. The plaintiff there, as here, reached out to her
employer on several occasions during her leave and received no
response. Id. at *5. The plaintiff eventually received a phone
call on November 30, 2009, informing her for the first time that
her FMLA leave had already expired and that she was expected to
return to work, but failing to provide the plaintiff with a
return to work day. Id. The defendant in Young then terminated
the plaintiff one day later. Id. The court granted summary
judgment to the plaintiff because the plaintiff “was terminated
the day after she was first told by [the defendant] that her
leave time was exhausted” and was therefore “not afforded the
22

opportunity to make informed decisions about her leave, based on
the lack of FMLA notice provided to her” by the defendant. Id.
at *6. In this case, the plaintiff was informed on April 1 that
she was not entitled to further leave and was ultimately
terminated over two weeks later, by letter dated April 16. FXDD
Resp. to Rengan 56.1 Stmt. ¶¶ 81-82, 95.
Whether the plaintiff was in fact prepared to return to
work as directed and whether the plaintiff received reasonable
notice of the denial of the right to any further leave are
issues of fact that cannot be decided on these motions. Because
a reasonable jury could find that the plaintiff was not
prejudiced by FXDD’s multiple FMLA notice failures because it
gave the plaintiff a reasonable opportunity to return to her
position, summary judgment is inappropriate and the plaintiff’s
motion is denied.
B.
The defendant’s motion is also denied. The defendant argues
that it is entitled to judgment as a matter of law because the
plaintiff was not denied any benefits to which she was entitled
under the FMLA because she received notice of her rights under
the FMLA and received more than twelve weeks of unpaid leave.
“When faced with cross-motions for summary judgment, a district
court is not required to grant judgment as a matter of law for
one side or the other.” Heublein, Inc. v. United States, 996
23

F.2d 1455, 1461 (2d Cir. 1993). “Rather, the court must evaluate
each party’s motion on its own merits, taking care in each
instance to draw all reasonable inferences against the party
whose motion is under consideration.” Id. (quotation marks
omitted).
The fact that the plaintiff received more than twelve weeks
of unpaid leave before being fired does not entitle FXDD to
summary judgment. The defendant’s reliance on Fulham v. HSBC
Bank USA is misplaced. In that case, decided in 2001, this Court
determined that a regulation requiring an employer to designate
FMLA leave in advance or else provide an employee with another
twelve weeks of leave following designation was contrary to the
terms of the FMLA and was therefore invalid. No. 99-cv-11054
(JGK), 2001 WL 1029051, at *5-7 (S.D.N.Y. Sept. 6, 2001). The
plaintiff does not rely on that now-defunct regulation, and does
not otherwise argue that FXDD was required to give her another
twelve weeks of leave after informing her that her maternity
leave also constituted FMLA leave. Rather, the plaintiff argues
that the defendant’s failure to inform her in a timely fashion
that the leave she planned to take would constitute FMLA leave
and the failure to respond in a timely way to her written
request for FMLA leave in January 2015 prevented her from
structuring her leave in a way so as to ensure she could return
to her job. She argues that, had she been timely informed
24

following her January 2015 request for FMLA leave that she was
not entitled to further leave and needed to return to work on
February 13, she in fact would have returned on the 13th. Fulham
does not preclude that theory of liability. In fact, the case
acknowledges that “[i]n some situations an employer’s failure to
provide notice to an employee that the employee’s leave would be
designated FMLA leave may interfere with an employee’s
substantive FMLA rights.” Id. at *7. This Court concluded that
Fulham was not such a case “[b]ecause it is undisputed that the
plaintiff was not able to return to work at any point during the
26 week period of time he was on short-term disability,” and
therefore “any failure by the defendant to [designate the leave
as FMLA leave] cannot be found to have impeded his return to
work.” Id.; see also Sarno, 183 F.3d at 161-62. Ms. Rengan’s
case is precisely the kind of case, anticipated by Fulham and
Sarno, in which an employee can establish an FMLA interference
claim based on an employer’s failure to provide adequate FMLA
notices, including notice of designation.
The defendant also argues that it is undisputed that FXDD
notified the plaintiff of her FMLA rights at least three times:
first, through the general notifications listed in the Employee
Handbook; second, by the email sent to the plaintiff on January
8, 2015; and third, on the April 1 phone call. None of those
communications entitle the defendant to summary judgment. As
25

discussed above, the critical issue in this case is whether the
notices provided by the defendant to the plaintiff were
sufficient to ensure that she could make meaningful use of her
FMLA rights, including the right to return to her job following
leave. The information provided by the defendant in the Employee
Handbook did not inform the plaintiff that the leave she planned
to take would be designated FMLA leave and did not specify that
the defendant’s FMLA and maternity leave policies ran
concurrently. See Klassen Aff. in Supp. Ex. B at 23-25. The
January 8 email also failed to mention the FMLA or inform the
plaintiff that the leave she was on constituted FMLA leave.
McKinney Aff. in Supp. Ex. N. And although it is undisputed that
Ms. Kesselman eventually mentioned the FMLA on the April 1, 2015
phone call, the content of what was relayed to the plaintiff on
that call is disputed. FXDD Resp. to Rengan 56.1 Stmt. ¶¶ 81-85.
There are genuine issues of material fact about the nature
and circumstances of the notices provided to the plaintiff and
whether those notices allowed the plaintiff to make an informed
decision to structure her leave in a manner that would ensure
her successful return to work. This is a case in which clear
notice was particularly important in light of the fact that the
defendant’s own Employee Handbook did not specify whether its
maternity leave and FMLA policies ran concurrently or
consecutively. FXDD Resp. to Rengan 56.1 Stmt. ¶ 54; Klassen
26

Aff. in Supp. Ex. B. Indeed, the plaintiff’s belief that the
policies would run consecutively was apparently shared by at
least one of the defendant’s other employees. FXDD Resp. to
Rengan 56.1 Stmt. ¶ 54. A jury could find that the first time
anyone at FXDD informed the plaintiff that she was not entitled
to further FMLA leave and needed to return to work was on the
April 1 phone call. See FXDD Resp. to Rengan 56.1 Stmt. ¶¶ 8185. The plaintiff was not provided with a specific return to
work date until over a week later, by email sent after business
hours on Thursday, April 9. See id. ¶¶ 82-86. Even assuming the
plaintiff read the email as soon as it was sent, the email left
the plaintiff with a single business day to make arrangements to
return to work the following Monday. See id. ¶ 86. A jury could
conclude that this method of notice –- which indisputably did
not conform to the FMLA requirements -- deprived the plaintiff
of a reasonable opportunity to return to work and resulted in
the plaintiff’s termination, thereby constituting interference
with her FMLA rights. The defendant’s motion is therefore
denied.

27

CONCLUSION
For the reasons described above, the motions for summary
judgment, ECF Nos. 77 and 85, are denied. The clerk is directed
to close all pending motions.

SO ORDERED.
Dated:

New York, New York
August 4, 2017

___/s/________________________
John G. Koeltl
United States District Judge

28