Lievre v. JRM Construction Management, LLC

Filing 50

OPINION AND ORDER re: 35 MOTION for Summary Judgment . filed by JRM Construction Management, LLC. Defendant's motion for summary judgment as to plaintiff's claims under the ADA andFMLA is GRANTED, and those claims are DISM ISSED WITH PREJUDICE. Plaintiff's claims under the NYSHRL and NYCHRL are DISMISSED WITHOUT PREJUDICE. The Clerk of Court is respectfully directed (1) to amend the caption of this action to reflect that "Henry T. Lievre and Deborah M Lievre, as co-executors of the estate of Henry E. Lievre" have been substituted as plaintiffs for Henry E. Lievre (see Dkt. No. 19), and (2) to enter judgment in favor of defendant and close the case. SO ORDERED. (Signed by Magistrate Judge Barbara C. Moses on 9/20/2019) (kv) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
HENRY T. LIEVRE AND DEBORAH M.
LIEVRE, co-executors of the estate of Henry
E. Lievre,
Plaintiffs,

9/20/19
17-CV-4439 (BCM)
OPINION AND ORDER

-againstJRM CONSTRUCTION MANAGEMENT,
LLC,
Defendant.
BARBARA MOSES, United States Magistrate Judge.
Henry E. Lievre filed this action against his former employer JRM Construction
Management, LLC (JRM) on June 13, 2017, alleging that JRM terminated his employment on or
about June 17, 2016, in violation of the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601
et seq.; the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et seq.; the New
York State Human Rights Law (NYSHRL), N.Y. Exec. Law § 290 et seq.; and the New York City
Human Rights Law (NYCHRL), N.Y.C. Admin. Code § 8-101 et seq. On November 10, 2017,
Lievre passed away. (Dkt. No. 18-1.) His claims are now pursued by the co-executors of his estate,
Henry T. Lievre and Deborah M Lievre. (Dkt. No. 19.)
Now before the Court is a motion by JRM for summary judgment (Dkt. No. 35) as to all
of plaintiff’s claims. 1 JRM argues that it never denied plaintiff any requested leave, that it never
refused him any reasonable accommodation, and that it terminated his employment for poor
performance. For the reasons set forth below, JRM’s motion will be granted as to plaintiff’s federal
claims. His state and local claims will be dismissed without prejudice to refiling in state court.

1

As used in this Opinion and Order, “plaintiff” refers either to Henry E. Lievre or to his estate, as
context demands.

I.

BACKGROUND
A.

Procedural Background

Plaintiff commenced this action by filing a verified complaint (Dkt. No. 6) alleging that
JRM terminated his employment because of his stomach cancer, thereby violating: (1) § 2612 of
the FMLA, Ver. Compl. ¶¶ 60-65; (2) § 2615(a) of the FMLA, Ver. Compl. ¶¶ 66-73; (3) §
12112(a) of the ADA, Ver. Compl. ¶¶ 74-89; (4) §§ 290, 292, and 296 of the NYSHRL, Ver.
Compl. ¶¶ 90-98; (5) § 8-107 of the NYCHRL, Ver. Compl. ¶¶ 99-106; (6) § 8-107(7) of the
NYCHRL, Ver. Compl. ¶¶ 107-12; and (7) § 8-107(13) of the NYCHRL, Ver. Compl. ¶¶ 113-18.
Defendant filed its answer (Dkt. No. 13) on July 20, 2017. Defendant asserts, among other
things, that its termination of plaintiff’s employment was “based solely on legitimate, nondiscriminatory factors,” including plaintiff’s failure to “perform[] his job duties at a level that met
Defendant[’s] reasonable and legitimate expectations of performance,” and not on plaintiff’s
disability or request(s) for leave. Ans. at 11-12.
On March 15, 2018, the parties consented to my jurisdiction for all purposes pursuant to
28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. (Dkt. No. 23.)
Discovery closed on December 14, 2018. (Dkt. Nos. 29, 30.) On February 22, 2019,
defendant moved for summary judgment, filing a notice of motion (Dkt. No. 35); a memorandum
of law (Dkt. No. 36); a statement of undisputed material facts pursuant to Local Civil Rule 56.1
(Def. 56.1 Stmt.) (Dkt. No. 37); and the declaration of Stephen A. Fuchs dated February 22, 2019
(Fuchs Decl.) (Dkt. No. 39), to which defendant attached excerpts of the depositions of Marc
Reissman, JRM’s Director of Estimating (and plaintiff’s direct supervisor) (Reissman Dep.) (Dkt.
No. 39-2), and Anna Levitt, JRM’s Director of Human Resources (Levitt Dep.) (Dkt. No. 39-3),
as well as various emails and other documents obtained through discovery.

2

Plaintiff responded on March 21, 2019, filing a memorandum of law (Dkt. No. 42); a Local
Civil Rule 56.1 counter-statement of material facts, including a statement of additional material
facts as to which plaintiff contends that there exists a genuine issue to be tried (Pl. 56.1 Stmt.)
(Dkt. No. 43); and the declaration of John J. Appell dated March 21, 2019 (Dkt. No. 44), to which
plaintiff attached further excerpts of the Reissman and Levitt depositions, the affidavit of
plaintiff’s father and co-executor Henry T. Lievre dated March 15, 2019 (Henry T. Lievre Aff.)
(Dkt. No. 44-3), and additional emails and documents obtained through discovery.
On April 11, 2019, defendant filed a reply memorandum of law (Dkt. No. 46); its objections
and responses to plaintiff’s counter-statement of material facts (Dkt. No. 49); the affidavit of
JRM’s Project Manager Mohammad Durrani dated April 8, 2019 (Durrani Aff.) (Dkt. No. 47); and
a second declaration of Stephen A. Fuchs (Fuchs Decl. II) (Dkt. No. 48), attaching one additional
email from plaintiff.
B.

Facts

The following facts, taken from the evidence submitted in support of and in opposition to
defendant’s summary judgment motion, are undisputed unless otherwise indicated.
1.

JRM Hires Plaintiff

JRM is a construction management company with offices in New York, New Jersey, and
California. Def. 56.1 Stmt. ¶ 1 2; Reissman Dep. at 7:25-8:6. Plaintiff began working at JRM as a

2

Where plaintiff has not objected to the relevant paragraph of defendant’s statement of material
facts, this Opinion and Order cites only to defendant’s statement.

3

Senior Estimator in May 2013. Def. 56.1 Stmt. ¶ 2; Fuchs Decl. Exs. F, V; Ver. Compl. ¶ 17.3
Before joining JRM, plaintiff informed the company – including his supervisor Marc Reissman –
that his cancer was in remission. Def. 56.1 Stmt. ¶¶ 3, 6; Reissman Dep. at 45:22-25; Ver. Compl.
¶ 15.
On May 15, 2013, plaintiff received JRM’s Employee Handbook. Def. 56.1 Stmt. ¶ 14;
Fuchs Decl. Ex. E. The Employee Handbook sets forth JRM’s anti-discrimination, reasonable
accommodation, and family and medical leave policies, as well as its Rules of Conduct. Def. 56.1
Stmt. ¶ 11; Fuchs Decl. Ex. D (Employee Handbook).
JRM’s accommodation policy provided: “Pursuant to the Americans with Disabilities Act,
the Company will provide reasonable accommodation(s) to all qualified individuals with known
disabilities . . . where their disability affects the performance of their essential job functions, except
where doing [s]o would be unduly disruptive or would result in undue hardship.” Employee
Handbook at 4; Def. 56.1 Stmt. ¶ 16. It also required that an employee give JRM at least thirty
days prior written notice of his or her need for medical leave, where foreseeable. Employee
Handbook at 20; Def. 56.1 Stmt. ¶ 17. It requested that employees use specific forms, available in
JRM’s human resources department, to request leave. Employee Handbook at 20; Pl. 56.1 Stmt.
¶ 17. JRM also placed posters in common areas to inform its employees about their rights under
the FMLA. Def. 56.1 Stmt. ¶ 19; Levitt. Dep. at 146:23-147:15.

A verified complaint may function as an affidavit at summary judgment. See Colon v. Coughlin,
58 F.3d 865, 872 (2d Cir. 1995) (where plaintiff “verifie[s] his complaint by attesting under penalty
of perjury that the statements in the complaint [are] true to the best of his knowledge,” the “verified
complaint is to be treated as an affidavit for summary judgment purposes”); Rickett v. Orsino,
2013 WL 1176059, at *2 n.5 (S.D.N.Y. Feb. 20, 2013) (construing plaintiff’s verified pleading as
an affidavit for purposes of summary judgment), report and recommendation adopted, 2013 WL
1155354 (S.D.N.Y. Mar. 21, 2013).
3

4

2.

Plaintiff’s Health Issues in 2014

In 2014, plaintiff requested several weeks of leave from JRM, explaining that he required
surgery to treat his cancer. Def. 56.1 Stmt. ¶ 23; Ver. Compl. ¶¶ 21-22. Though JRM concluded
that plaintiff was not yet eligible for FMLA leave, it approved a short-term disability leave from
March through May 2014. Def. 56.1 Stmt. ¶¶ 23-24; Levitt Dep. at 45:2-22; Fuchs Decl. Ex. F.
According to HR Director Levitt, she also spoke with plaintiff about when he would be eligible to
take leave under the FMLA. Def. 56.1 Stmt. ¶ 25; Levitt Dep. at 45:23-46:8. 4
After plaintiff resumed work in May 2014, he was restored to his equivalent position and
pay. Def. 56.1 Stmt. ¶ 26; Levitt Dep. at 45:6-10.
Plaintiff’s health issues continued in late 2014, when plaintiff underwent radiation
treatment and chemotherapy. Appell Decl. Ex. 8. The record contains no evidence that plaintiff
requested FMLA leave in connection with these treatments. Nor did JRM deny plaintiff any
requested FMLA leave. See id. It is undisputed, however, that during plaintiff’s radiation treatment
and chemotherapy he occasionally worked from home, with JRM’s permission. Def. 56.1 Stmt.
¶ 43; Levitt Dep. at 162:8-19. For example, on September 8, 2014, plaintiff emailed his supervisor,
Reissman, that he would be working from home on Monday and Tuesday of the following week,
since his radiation treatment was “starting to take a toll” on him. Appell Decl. Ex. 8 at ECF page
3; see also id. at ECF pages 4-8. In addition, plaintiff was granted unpaid leave on various days in
November and December 2014. Def. 56.1 Stmt. ¶ 33; Fuchs Decl. Ex. H.

4

Plaintiff does not dispute that this conversation occurred. However, plaintiff points out, “[w]hile
Ms. Levitt testified that Mr. Lievre knew he would be eligible for the [FMLA] leave because they
spoke about it in 2013 she further testified that in 2014 she told Mr. Lievre he was not eligible for
the FMLA, and she never told him he would be eligible for the FMLA after that.” Pl. 56.1 Stmt.
¶ 25.
5

In or about December 2014, Reissman requested that plaintiff keep JRM’s human resources
department informed about his “work status.” Fuchs Decl. Ex. W. On December 17, 2014, plaintiff
emailed Levitt: “I wanted to keep you informed of my work status this week as [Reissman]
requested I do a better job of. I had some health complications this week and needed to take some
time to handle doctors appointments and procedures.” Id. Notwithstanding Reissman’s request,
this was plaintiff’s only status update to Levitt. After 2014, plaintiff never again discussed his
health status with her. Def. 56.1 Stmt. ¶ 28; Levitt Dep. at 53:6-17, 155:6-14. 5
3.

JRM’s Accommodations

During plaintiff’s employment, JRM provided several accommodations to address his
health condition. For example, JRM offered plaintiff reimbursement for taxis to attend offsite
“walk throughs,” notwithstanding that JRM’s other Estimators were required to take public
transportation to walk throughs. Def. 56.1 Stmt. ¶ 39; Levitt Dep. at 80:19-24. JRM also offered
plaintiff a car service, beginning in August 2014, to commute between work and home, though
plaintiff only used that service for one month, Def. 56.1 Stmt. ¶¶ 40-42; Reissman Dep. at 170:16171:9; Levitt Dep. at 80:15-19, 81:5-8, and permitted plaintiff to work from home whenever
necessary. Def. 56.1 Stmt. ¶ 43; Reissman Dep. at 179:2-21; Levitt Dep. at 162:13-19.
At plaintiff’s request, JRM converted a women’s bathroom into an additional ADAcompliant bathroom. Def. 56.1 Stmt. ¶ 44. The new bathroom was larger in size than the two other
ADA-compliant bathrooms already maintained by JRM. Id.; see also Reissman Dep. at 171:1024; Levitt Dep. at 80:24-81:2.

5

Once again, plaintiff does not directly dispute these facts. Instead, plaintiff objects that “[t]his
email of December 17, 2014 which is referenced by Ms. Levitt in her testimony was only being
used for Mr. Lievre to state when he would be in or out of the office not what his health condition
was.” Pl. 56.1 Stmt. ¶ 28.
6

4.

Plaintiff’s Health Issues and Work Performance in 2015

In 2015, plaintiff’s health appears to have improved, for a time. He received paid leave for
medical procedures on January 15 and 16, and again on May 8, see Def. 56.1 Stmt. ¶ 32; Fuchs
Decl. Ex. G, but did not take any further leave in 2015. On July 17, 2015, plaintiff emailed
Reissman and others with the subject “Good news”: “Hey guys just wanted to share the good news
with you, my scans came back clear from Sloan! I live to fight another day, to crack another joke
and to eat another piece of bacon!” Fuchs Decl. II Ex. X.
However, plaintiff’s supervisors began to express concerns about his work performance.
Over the course of his first two years at JRM, plaintiff was late to the office on a number of
occasions. See Fuchs Decl. Ex. L (collecting emails in 2013, 2014, and 2015 from plaintiff
informing Reissman that plaintiff would be late to the office). On January 28, 2015, when plaintiff
again emailed Reissman to inform him that he would be late, Reissman replied: “Henry, As I have
told you a million times you need to be here on time. If it was just today I would be okay with this
but it is now becoming a habit. If it were me I would know the trains would be messed up today
and I would have made sure I was on the early train.” Id. at ECF page 31.
Plaintiff’s supervisors also noted issues with the work product he delivered to JRM’s
clients, including its client Blackstone. For example, after plaintiff emailed Blackstone on June 17,
2015, attaching “revised budgets,” Blackstone employee Anthony Riccio forwarded that email to
another JRM employee, writing: “The numbers are ridiculous, if you guys do not plan on visiting
the site to get the right scope priced then I will go elsewhere my time is being waste again. Need
someone here the give me a revised cost that make sense, need revise cost by noon.” Fuchs Decl.
Ex. P (spelling and grammar in original).

7

Plaintiff’s 2015 performance review, which was submitted by Reissman on or about
August 3, 2015, reflected these issues. Def. 56.1 Stmt. ¶ 48; Fuchs Decl. Ex. J (2015 Performance
Review). On a scale of 1-5, plaintiff received four ratings of 4 (“above average”), five ratings of 3
(“satisfactory”), and four ratings of 2 (“below average”). See 2015 Performance Review at 1-3.
For example, Reissman noted that plaintiff “does a decent job” with his “review of drawings,” “but
misses a bunch of scope.” Id. at 1. He gave plaintiff a “below average” rating on his “RFIs”
(requests for information), noting: “Does them but not a great quantity or detail.” Id. He also rated
plaintiff as “below average” in the categories of “CM Leveling Sheets,” “Interaction with
Construction Department,” and “Communication and Teamwork.” Id. at 2-3. In his narrative notes,
Reissman wrote that plaintiff “[n]eeds a little more quality a little less quantity” and that, as to
plaintiff’s “Communication and Teamwork,” “[t]his would be his strong suit except [he] doesn[’]t
let you know about a problem until it[’]s too late.” Id. at 3.
Reissman also specifically identified plaintiff’s issues working with Blackstone, noting
that his “Interaction with Construction Department” was “[o]verall good everyone likes him but
we had to talk about his lack of detail at Blackstone and the team was upset.” 2015 Performance
Review at 2. 6
After the 2015 Performance Review was submitted, plaintiff’s issues with Blackstone
continued. On August 12, 2015, plaintiff emailed Riccio, at Blackstone, to address an issue Riccio
had been upset about:
Just sat with Danny and he told me about [sic] you were upset with my email
response to Rimi. I was in no way trying to say that you were holding up the process
and apologize if my email came off in that way. . . .

6

In its counter-statement of material facts, plaintiff highlights the positive elements of Lievre’s
2015 Performance Review. See Pl. 56.1 Stmt. ¶ 48. Neither party has offered any comparative data
(for example, Lievre’s earlier performance reviews, or ratings given to other Senior Estimators).
8

As always, please let me know if there is anything you need, and I hope you find
my paperwork to you has been up to the level you have come to expect.
Appell Decl. Ex. 6. On November 20, 2015, plaintiff emailed Riccio again, attaching change
orders. Riccio responded:
I have to say I am totally blown away with this proposal, $400K for one room ????
I can’t believe the amount of P/T and O/T posted within the sub costs for a room
that was totally under JRM’s control. $40K in drywall to build (3) walls a lay in
ceiling with some GWB boarders ????? One lump sum of $32,465 for (68) for light
fixtures. I am shocked.
Fuchs Decl. Ex. Q. Later the same morning, in response to another email from plaintiff attaching
change orders, Riccio emailed again: “I am not sure how this change order is $81,834 over posted
project budget ???” Fuchs Decl. Ex. R.
5.

Plaintiff’s Health Issues and Work Performance in 2016

On November 16, 2015, plaintiff emailed Reissman, stating that he had just gotten a call
from his oncologist who asked plaintiff to attend “an emergency consult with radiation and
neurosurgery” because they had found something on plaintiff’s spine. Appell Decl. Ex. 11.
On March 7, 2016, plaintiff emailed Reissman that he was “not feeling well” and would
not be coming into work, to which Reissman replied, “Feel better I have copied HR,” and copied
Levitt. Appell Decl. Ex. 9. Two days later, plaintiff emailed Reissman that he needed to leave at
4:00 p.m. for “some testing up at Sloan” (meaning Memorial Sloan Kettering Cancer Center). Id.
at ECF page 4. On March 28, 2016, plaintiff emailed Reissman that he would need to leave at 4:00
p.m. again “to start the process for treatment up at [S]loan,” and, later that day, that he would be
getting his “schedule for radiation” and would “do [his] best to keep it manageable for everyone.”
Id. at ECF page 7. Plaintiff began radiation treatment at some point thereafter – the record does
not reflect exactly when – and continued that treatment until April 18, 2016. Id. at ECF page 9.

9

Meanwhile, plaintiff’s work performance continued to suffer. On March 18, 2016, another
employee at JRM emailed plaintiff with the subject “Blackstone 15-015,” stating “When can the
balance of COs be priced? This is holding up the closing of the project. Work has been performed.”
Fuchs Decl. Ex. U. When plaintiff responded that he was “reviewing all change orders and going
over completion dates with Mohammed [Durrani] today,” the employee responded “I know. When
can they be completed? Need them. Months old.” Id.
Plaintiff’s performance issues with Blackstone came to a head when Blackstone requested
that plaintiff be removed from its project. According to Mohammed Durrani, who was JRM’s
Blackstone project manager:
3.

Throughout his work on the Blackstone Project, Henry displayed a clear
lack of effort and diligence. The client, the subcontractors and I were
constantly waiting for overdue budgets from Lievre at any stage of the
project in which he was involved. The budgets Henry prepared were
estimates for refining the scope of various aspects of the Blackstone Project.
When Henry’s budgets were eventually received, they were always much
too low, and as a result the costs of the project would wind up being highly
over budget. . . . In reality, the cost of the project could be as much as twice
the budget estimate Henry prepared.

4.

Blackstone, through its Senior Vice President of Global Design and
Construction, Anthony Riccio, expressed its frustration with the situation
numerous times. Mr. Riccio was frequently exasperated, and did not
understand why the budget was always way off, despite the project being
the same. Once I became Project Manager for the Blackstone Project [in
late 2015,] I received direct criticism from Mr. Riccio regarding the
inaccurate budgets, which made me look bad both to JRM’s client and to
my supervisors.

5.

On several occasions after I took over as Project Manager for the Blackstone
Project I spoke to Marc Reissman, the Director of Estimating and Henry’s
direct supervisor, about the problems Henry’s tardy and inaccurate work
had caused me in managing the project and in managing the relationship
with Blackstone.

6.

Mr. Riccio requested that Henry be removed as the estimator assigned to
the Blackstone Project, and that a different estimator be assigned. Because
of this request Henry was removed from the project as of early April, 2016.
10

Durrani Aff. ¶¶ 3-6. 7
On Wednesday, April 6, 2016, Reissman sent an email to Levitt with the subject “Henry
Lievre & Job Performance,” and wrote, “On Monday I spoke with Henry about his performance.
He was asked to be removed from the Blackstone account by the client. He was not getting things
done and the client was upset. This is now the third conversation had with Henry about his
performance.” Fuchs Decl. Ex. K. When Reissman was asked at deposition why he gave plaintiff
a warning at that time, he explained:
I don’t know the dates, but throughout his tenure at JRM, I had several
conversations with him in my office, going through his work, getting things done,
getting things done properly. And he got thrown off of Black[s]tone. Like I said,
we didn’t let him go [at that time] because we wanted to afford him every
opportunity, and I tried to put him on other things . . .
And he didn’t, he didn’t get things done properly. I remember one night I had to
spend about two hours correcting all his work for Group M [another client of
JRM’s]. It was plumbing and sprinklers. It was in bad shape, and we had to get the
budget out, and the rest of my team had been working really hard, and I had to jump
in and fix all the mistakes Henry made, and they were just careless, careless
mistakes.
7

Defendant submitted Durrani’s affidavit for the first time in its reply papers. The Court may
consider evidence introduced for the first time on reply where that evidence addresses “new
material issues raised in the opposition papers so as to avoid giving unfair advantage to the
answering party.” Bayway Ref. Co. v. Oxygenated Mktg. & Trading A.G., 215 F.3d 219, 226-27
(2d Cir. 2000) (quoting Litton Indus. v. Lehman Bros. Kuhn Loeb Inc., 767 F. Supp. 1220, 1235
(S.D.N.Y. 1991), rev’d on other grounds, 967 F.2d 742 (2d Cir. 1992)). “A district court enjoys
broad discretion . . . to rely on evidence submitted with the reply papers.” Compania Del Bajo
Caroni (Caromin), C.A. v. Bolivarian Republic of Venezuela, 341 F. App’x 722, 724 (2d Cir.
2009). Factors to consider include whether the opposing party was surprised by the new evidence
in question, whether it sought – or, as here, failed to seek – leave to respond to the newlyintroduced evidence, and whether it claimed to have contrary evidence to introduce. Bayway Ref.
Co., 215 F.3d at 227. In this case, the Durrani Affidavit was submitted in response to plaintiff’s
arguments that Reissman’s testimony about Blackstone’s discontent with plaintiff constituted
inadmissible hearsay. Pl. 56.1 Stmt. ¶¶ 55, 88 n.3. Given plaintiff’s failure to “seek a timely remedy
for any injustice,” Bayway Ref. Co., 215 F.3d at 227, the Court will exercise its discretion to
consider the Durrani Affidavit. See also Ruggiero v. Warner-Lambert Co., 424 F.3d 249, 252 (2d
Cir. 2005) (“In any event, it is hard for Ruggiero to claim unfair prejudice now, because she could
have claimed surprise in the district court and sought to file a responsive sur-reply.”).
11

Reissman Dep. at 157:6-23.
On April 7, 2016 (a few days after Reissman spoke with Lievre about the Blackstone
problems), JRM employee Anthony Iandoli sent an email asking if certain paperwork had been
completed. In response, plaintiff emailed the Blackstone team, saying, “No I had a bad paperwork
day today.” Appell Decl. Ex. 10.
On April 25, 2016, Reissman sent another email to Levitt, this time with the subject line
“Henry Lievre- Last opportunity”:
I am just sending this email as a report. I spoke with Henry on Thursday 4/21/16 as
a last warning. I told him we spoke to him numerous times about his work
performance and reiterated my meeting with him and Anthony Iandoli that
happened months ago. I told him after getting thrown off of the Blackstone account
he should have been rightfully been fired. I also told him we would keep him for
one final chance because we like him as a person. However that being said this will
be Henry’s final chance. If he does not do an adequate job then he will be fired.
Fuchs Decl. Ex. N.
After plaintiff’s performance failed to improve, see Reissman Dep. at 173:16-25, JRM
terminated plaintiff’s employment on or about June 17, 2016. Ver. Compl. ¶¶ 46-52. Reissman
testified that the “four main reasons” for JRM’s termination of plaintiff were poor performance,
tardiness, late work, and errors in his work. Reissman Dep. at 95:2-96:6.
6.

The Henry T. Lievre Affidavit

On March 15, 2019, Henry T. Lievre – plaintiff’s father and co-executor of his estate –
executed an affidavit averring to his perception of plaintiff’s decline in health in early 2016:
In March 2016 his cancer condition had worsened and he was then required to start
radiation at the end of March 2016. I was involved in this process with him in that
I would provide transportation for my son to and from these treatments, stay with
him during these treatments and care for him afterwards. This radiation treatment
lasted for weeks. During this radiation treatment I observed my son on an almost
daily basis. He was exhausted, tired, sick, weak and physically not well. However
he continued to work full-time for the defendant including working late into the
12

evening so he would not fall behind on his work. He also scheduled medical
appointments during lunch hours, after work and Friday evenings for treatment so
as not to interfere with work and give him some time to recuperate over the
weekend.
Henry T. Lievre Aff. ¶ 9. According to Mr. Lievre, it would have been obvious to anyone who
interacted with plaintiff from March to June 2016 that his poor work performance – if such a thing
occurred – was attributable to a decline in his health:
If, indeed, his performance suffered during this period, it was evident to me, and
would have been evident to anyone who saw my son during this period, that any
deterioration of his performance resulted from the exhaustion, weakness and stress
of his ongoing radiation treatment for cancer. On occasions when I picked my son
up from work during this period, his supervisor and co-workers would ask how his
treatment was going, and I have seen an e-mail sent on March 28, 2016, to his
superiors, indicating that he was returning to cancer treatment at Sloan Kettering,
so his employer was aware of his radiation treatment, and thus knew or should have
known that any performance difficulties he was having resulted from this radiation
treatment. Despite this fact, his superiors never told him he had the option of paid
Family Medical Leave Act leave, or informed him of any other options or
accommodations that were available to him during this period. They just terminated
him.
Id. ¶ 13.
Mr. Lievre attests that plaintiff was scheduled to begin another round of chemotherapy on
or about the date he was terminated from JRM. Id. ¶ 10; see also Ver. Compl. ¶ 37 (“on or about
June 17, 2016, the plaintiff was scheduled to start . . . three (3) to five (5) weeks of chemotherapy”).
However, there is no evidence that plaintiff ever communicated that fact to JRM.8

8

Plaintiff’s pleading asserts that at an unspecified time between April and June 2016, he informed
unspecified “officers, directors, supervisors, managers, employees and/or agents” of JRM that he
would “ultimately” require three to five weeks of chemotherapy and “may require leave” pursuant
to the FMLA. Ver. Compl. ¶ 36. However, these allegations are too vague and conclusory to be
admissible, and thus do not raise a triable issue of fact in opposition to defendant’s summary
judgment motion. See Woods v. Ruffino, 8 F. App’x 41, 42 (2d Cir. 2001) (“Reliance upon
conclusory statements or mere allegations is not sufficient to defeat summary judgment.”) It is
presumably for this reason that plaintiff’s counter-statement of material facts asserts only that
“Henry T. Lievre testified that his son was re-commencing chemotherapy treatment on the date he
13

7.

JRM’s Leave Granted to Plaintiff and Others

There is no evidence in either party’s summary judgment papers that JRM ever denied a
request by plaintiff to take time off in connection with his illness or treatment, or discouraged him
from taking time when necessary. See Def. 56.1 Stmt. ¶ 37 (plaintiff “was never denied any time
off in connection with his health condition or his treatment”); Reissman Dep. at 171:25-172:9. On
the contrary: it is undisputed that whenever plaintiff requested leave for his medical condition,
JRM granted that leave. Pl. 56.1 Stmt. ¶¶ 30-37. Indeed, both before and after his short-term
disability leave in 2014, JRM granted plaintiff’s written requests for paid leave on numerous days
from 2013 through 2015 when plaintiff did not feel well, needed time off, or needed to leave early
as a result of his medical condition or for treatment, including on November 15-20, 2013; February
4 and 28, March 21, and July 16, 2014; and January 15-16 and May 8, 2015. Def. 56.1 Stmt. ¶ 32;
Fuchs. Decl. Ex. G. In addition, JRM granted plaintiff’s written requests for unpaid leave on
November 18, 2014, and between December 29, 2014 and January 1, 2015. Def. 56.1 Stmt. ¶ 33;
Fuchs. Decl. Ex. H. JRM also granted various informal requests for leave (requests that plaintiff
made outside of JRM’s regular “portal” for such requests), including, for example, his request to
leave early on March 28, 2016. Def. 56.1 Stmt. ¶ 34; Fuchs Decl. Ex. I; Appell Decl. Ex. 9.
Aside from these requests – all of which were granted – plaintiff never told JRM that he
needed to take additional leaves of absence in connection with his illness or treatment. Def. 56.1
Stmt. ¶ 35; Reissman Dep. at 171:25-173:9. From his last day of radiation on April 18, 2016,
though his termination in June 2016, there is no evidence that plaintiff requested leave (under the

was terminated.” Pl. 56.1 Stmt. ¶ 104. Plaintiff does not assert, anywhere in that counter-statement,
that plaintiff ever told JRM that he required chemotherapy in 2016.
14

FMLA or otherwise) in connection with any further treatment, nor that he requested any additional
accommodations. Def. 56.1 Stmt. ¶¶ 35-37; Reissman Dep. at 172:10-173:3.
Meanwhile, during the time plaintiff was employed, JRM granted leave to two other
employees with cancer. One of those employees, Kirit Upadhyaya, was an Estimator – the same
position as plaintiff – who was also supervised by Reissman. Def. 56.1 Stmt. ¶¶ 72-73; Levitt Dep.
at 156:5-159:23. When Upadhyaya approached Levitt to discuss his medical condition, she advised
him that he was eligible for FMLA leave, and he applied for and was granted leave for a period
between March and August 2016. Def. 56.1 Stmt. ¶ 74; Levitt Dep. at 158:16-159:14. The other
employee with cancer who required leave was a construction superintendent, who was granted
leave in 2014 and again in 2016. Def. 56.1 Stmt. ¶ 75; Levitt Dep. at 160:6-25.
II.

ANALYSIS
A.

Legal Standards
1.

Summary Judgment Standard

Summary judgment may be granted “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Amaker v. Foley, 274 F.3d
677, 680-81 (2d Cir. 2001). A dispute is genuine if there is evidence “such that a reasonable jury
could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). If, on the other hand, no reasonable jury could rule for the non-moving party based on
the evidence presented, then summary judgment must be granted. Id. at 254.
The moving party bears the initial burden of identifying the parts of the record that
demonstrate the absence of a genuine dispute as to any material fact. Fed. R. Civ. P. 56(c); Celotex
Corp., 477 U.S. at 322; Koch v. Town of Brattleboro, 287 F.3d 162, 165 (2d Cir. 2002). The court

15

must then “examin[e] the moving party’s submission to determine if it has met its burden of
demonstrating that no material issue of fact remains for trial,” Amaker, 274 F.3d at 681, with “the
inferences to be drawn from the underlying facts . . . viewed in the light most favorable to the party
opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). See also Gonzalez v. City of
Schenectady, 728 F.3d 149, 154 (2d Cir. 2013) (quoting Terry v. Ashcroft, 336 F.3d 128, 137 (2d
Cir. 2003)) (on summary judgment, “a Court is ‘required to resolve all ambiguities and draw all
permissible factual inferences in favor of the party against whom summary judgment’” is sought).
If the moving party meets its initial burden, the burden shifts to the non-moving party to
establish a genuine dispute of material fact. Celotex Corp., 477 U.S. at 322; Beard v. Banks, 548
U.S. 521, 529 (2006); Santos v. Murdock, 243 F.3d 681, 683 (2d Cir. 2001). The non-moving party
must present evidence upon which the jury could reasonably find in his favor. Jeffreys v. City of
New York, 426 F.3d 549, 553-54 (2d Cir. 2005); see also D’Amico v. City of New York, 132 F.3d
145, 149 (2d Cir. 1998) (nonmoving party must offer “some hard evidence showing that its version
of the events is not wholly fanciful”).
In employment discrimination suits where the “merits turn on a dispute as to the employer’s
intent,” courts exercise caution in granting summary judgment motions. Holcomb v. Iona College,
521 F.3d 130, 137 (2d Cir. 2008). “Nonetheless, summary judgment remains available for the
dismissal of discrimination claims in cases lacking genuine issues of material fact.” Schiano v.
Quality Payroll Sys., Inc., 445 F.3d 597, 603 (2d Cir. 2006) (citations and internal quotation marks
omitted). “Purely conclusory allegations of discrimination, absent any concrete particulars,” are
insufficient to survive summary judgment. Cameron v. Cmty. Aid For Retarded Children, Inc.,
335 F.3d 60, 63 (2d Cir. 2003) (quoting Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985)).

16

Courts should view the record “as a whole” to determine whether a jury could reasonably
find a discriminatory purpose by the employer. Walsh v. N.Y. City Housing Auth., 828 F.3d 70, 76
(2d Cir. 2016). “No one piece of evidence need be sufficient, standing alone, to permit a rational
finder of fact to infer that defendant’s employment decision was more likely than not motivated in
part by discrimination.” Id.
2.

Local Civil Rule 56.1

In this District, Local Civil Rule 56.1(a) requires the moving party to submit a “short and
concise statement, in numbered paragraphs,” of the material facts that the moving party contends
to be undisputed, with citations to the underlying evidence. The non-moving party must then
respond in kind, with numbered paragraphs that correspond “to each numbered paragraph in the
statement of the moving party.” Local Civ. R. 56.1(b). The non-moving party may also provide “a
separate, short and concise statement of additional material facts as to which it is contended that
there exists a genuine issue to be tried.” Id.
To the extent not “specifically controverted” by the non-moving party, the statement of
material facts submitted by the moving party will be “deemed to be admitted for purposes of the
motion.” Local Civ. R. 56.1(c); see also Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir.
2003) (“If the opposing party then fails to controvert a fact so set forth in the moving party’s Rule
56.1 statement, that fact will be deemed admitted.”). Each statement “controverting any statement
of material fact” must be “followed by citation to evidence which would be admissible.” Local
Civ. R. 56.1(d); see also Hill v. Bloomberg L.P., 2016 WL 1665599, at *2 (S.D.N.Y. Apr. 20,
2016) (deeming admitted “any factual assertion[] made by [defendant] that is supported by
competent evidence in the record, and that is not disputed by competent, admissible, testimonial
facts (as opposed to conclusory assertions or argument)” in plaintiff’s opposition papers).

17

By the same token, the moving party’s “allegations of uncontested fact cannot be deemed
true simply by virtue of their assertion in a Local Rule 56.1 statement.” Holtz v. Rockefeller & Co.,
Inc., 258 F.3d 62, 73 (2d Cir. 2001). The court may and should disregard assertions made in a
Local Rule 56.1 statement if they are not supported by citations to admissible evidence. Id.; see
also Giannullo, 322 F.3d at 140.
3.

The FMLA

The FMLA gives eligible employees an “entitlement” to twelve work weeks of unpaid
leave per year for the purposes specified in the statute, including “a serious health condition that
makes the employee unable to perform the functions of the position of such employee.” 29 U.S.C.
§ 2612(a)(1)(D). “FMLA claims come in at least two varieties: interference and retaliation,”
Woods v. START Treatment & Recovery Ctrs., Inc., 864 F.3d 158, 166 (2d Cir. 2017):
In a general sense, an employee brings an “interference” claim when her employer
has prevented or otherwise impeded the employee’s ability to exercise rights under
the FMLA. []. “Retaliation” claims, on the other hand, involve an employee
actually exercising her rights . . . and then being subjected to some adverse
employment action by the employer. []. The two types of claims serve as ex ante
and ex post protections for employees who seek to avail themselves of rights
granted by the FMLA.
Id. (citations omitted).
a.

Interference

To prevail on an FMLA interference claim, a plaintiff must establish “‘(1) that she is an
“eligible employee” under the FMLA; (2) that defendants constitute an employer under the FMLA;
(3) that she was entitled to leave under the FMLA; (4) that she gave notice to defendants of her
intention to take leave; and (5) that defendants denied her benefits to which she was entitled by
the FMLA.’” Esser v. Rainbow Advert. Sales Corp., 448 F. Supp. 2d 574, 580 (S.D.N.Y. 2006)
(quoting Kennebrew v. N.Y.C. Hous. Auth., 2002 WL 265120, at *19 (S.D.N.Y. Feb. 26, 2002));
see also Graziadio v. Culinary Inst. of Am., 817 F.3d 415, 424 (2d Cir. 2016) (same).
18

b.

Retaliation

FMLA retaliation claims are subject to the burden shifting approach set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). O’Reilly v. Consol. Edison Co. of New York, 173
F. App’x 20, 22 (2d Cir. 2006) (collecting Second Circuit authority applying McDonnell Douglas
burden shifting to FMLA retaliation, ADA, NYSHRL, and NYCHRL claims). 9 Under McDonnell
Douglas, as applied to a plaintiff’s termination of employment: a plaintiff must establish “a prima
facie case of FMLA retaliation” 10; “the burden then shifts to the defendant to articulate a
legitimate, non-retaliatory reason for its actions”; and “the burden shifts back to the plaintiff to
demonstrate that the employer’s reason was pretextual,” Douyon, 665 F. App’x at 56-57 (citations
omitted), and “that the true reason for defendant’s action was discriminatory and/or FMLA
retaliatory animus.” McFarlane v. Chao, 2007 WL 1017604, at *1 (S.D.N.Y. Mar. 30, 2007).
c.

Plaintiff’s Burden

Regardless of whether a plaintiff pursues his FMLA claim under a theory of interference
or retaliation, that plaintiff has the burden of establishing either “that defendants denied [him]
benefits to which [he] was entitled by the FMLA” (to support an interference claim), Esser, 448
F. Supp. 2d at 580, or that the defendant’s “reasons for termination were pretextual” (to support a
retaliation claim), Hockenjos v. MTA Metro-N. R.R., 695 F. App’x 15 (2d Cir. 2017), and that in
reality his exercise of his FMLA rights was a “motivating factor” in the termination decision.
Woods, 864 F.3d at 168-69; see also Sista, 445 F.3d at 176 (“Regardless of whether Sista asserts

9

FMLA interference claims are not governed by McDonnell Douglas analysis. Sista v. CDC Ixis
N. Am., Inc., 445 F.3d 161, 176 (2d Cir. 2006).
10

“To establish a prima facie case of FMLA retaliation, a plaintiff must show that: 1) she exercised
rights protected under the FMLA; 2) she was qualified for her position; 3) she suffered an adverse
employment action; and 4) the adverse employment action occurred under circumstances giving
rise to an inference of retaliatory intent.” Douyon v. New York City Dep’t of Educ., 665 F. App’x
54, 56-57 (2d Cir. 2016).
19

an ‘interference’ or a ‘retaliation’ claim, he cannot show that CDC considered his FMLA leave
and request to return a negative factor in its decision to terminate him.”). The timing of an
employee’s termination, standing alone, is not sufficient to discharge that burden. Dearden v.
GlaxoSmithKline LLC, 2017 WL 4084049, at *11 (S.D.N.Y. Sept. 14, 2017) (quoting Vosatka v.
Columbia Univ., 2005 WL 2044857, at *10 (S.D.N.Y. Aug. 25, 2005)) (“[t]he timing of events
alone, even if sufficient to meet the plaintiff’s prima facie burden, cannot defeat summary
judgment in the face of defendant’s proffered legitimate reason”).
4.

The ADA

The ADA prohibits covered employers from “discriminat[ing] against a qualified
individual on the basis of disability in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job training, and other terms,
conditions, and privileges of employment.” 42 U.S.C. § 12112(a). A covered employer also has
an obligation to provide a disabled employee with reasonable accommodations, unless the
employer “can demonstrate that the accommodation would impose an undue hardship on the
operation of [its] business.” Id. § 12112(b)(5)(A).
In this case, plaintiff asserts, and defendant does not contest, that his cancer condition –
which JRM was aware of – constituted a disability for purposes of the ADA. See Opp. Mem. at 17
(arguing that JRM was aware of plaintiff’s disability and had a duty to accommodate it); Def.
Reply Mem. at 7 (conceding that “JRM was aware of” plaintiff’s disability but contending that it
“accommodated [that] disability from the onset of his employment”).
However, “[t]he ADA does not prevent an employer from holding an employee
accountable for poor job performance.” Jacobson v. Capital One Fin. Corp., 2018 WL 6817064,
at *16 (S.D.N.Y. Dec. 12, 2018). Even if a plaintiff’s unacceptable job performance is caused by

20

his disability, an employer may still “hold a disabled employee to legitimate performance
expectations, as long as the employee has the same opportunity to succeed as nondisabled
employees do.” Id. (collecting cases); Corr v. MTA Long Island Bus, 27 F. Supp. 2d 359, 369
(E.D.N.Y. 1998) (“Plaintiff’s disability . . . may not be used to shield him from the adverse
consequences of inadequate job performance.”), aff’d, 199 F.3d 1321 (2d Cir. 1999). “When a
defendant demonstrates that an adverse consequence was taken due to plaintiff’s poor
performance, the plaintiff must show that he or she suffered an adverse consequence because of
the disability as opposed to the poor performance, to succeed with a claim under the ADA.”
Jacobson, 2018 WL 6817064, at *16 (emphasis in original) (collecting cases).
Plaintiff’s ADA claim, as asserted in his pleading, includes a variety of sub-claims. He
alleges that “Defendant excluded or otherwise denied the Plaintiff an equal job and/or benefits to
a qualified individual because of the Plaintiff’s known disability”; that “Defendant wrongfully
terminated the Plaintiff because of the Plaintiff’s known disability”; that “Defendant wrongfully
retaliated against the Plaintiff because of the Plaintiff’s known disability and/or his opposition to
such discrimination”; that “Plaintiff suffered an adverse employment action from the Defendant
because of his known disability”; that “Defendant failed to engage in the interactive process with
the Plaintiff within the meaning of the ADA”; and that “Defendant failed to provide the Plaintiff
with a reasonable accommodation within the meaning of the ADA.” Ver. Compl. ¶¶ 78-83. In his
summary judgment brief, however, plaintiff presses only one of his ADA sub-claims: his failure
to accommodate claim. Opp. Mem. at 15. Therefore, his other ADA claims are deemed abandoned.
Bellegar de Dussuau v. Blockbuster, Inc., 2006 WL 465374, at *7 (S.D.N.Y. Feb. 28, 2006);
Douglas v. Victor Capital Grp., 21 F. Supp. 2d 379, 393 (S.D.N.Y. 1998) (collecting cases).

21

Claims of disability discrimination under the ADA are also “governed by the familiar
burden-shifting framework” of McDonnell Douglas. Jacobson, 2018 WL 6817064, at *16. “[A]
plaintiff makes out a prima facie case of disability discrimination arising from a failure to
accommodate by showing each of the following: ‘(1) [p]laintiff is a person with a disability under
the meaning of the ADA; (2) an employer covered by the statute had notice of his disability; (3)
with reasonable accommodation, plaintiff could perform the essential functions of the job at issue;
and (4) the employer has refused to make such accommodations.’” McBride v. BIC Consumer
Prod. Mfg. Co., 583 F.3d 92, 96-97 (2d Cir. 2009) (quoting Graves v. Finch Pruyn & Co., Inc.,
457 F.3d 181, 184 (2d Cir. 2006)).
If a plaintiff makes that initial showing, the burden shifts to the employer to demonstrate
undue hardship in making a reasonable accommodation, Stone v. City of Mount Vernon, 118 F.3d
92, 97 (2d Cir. 1997) (in a failure to accommodate case), or evidence of a legitimate nondiscriminatory reason for the discharge, McBride, 583 F.3d at 96 (in a wrongful termination case).
“If the defendant meets this burden, ‘the plaintiff must then produce evidence and carry the burden
of persuasion that the proffered reason is a pretext.’” Jacobson, 2018 WL 6817064, at *16 (quoting
Sista, 445 F.3d at 169). The plaintiff has the ultimate burden of persuasion, id., and “[t]he burden
of persuasion on the ‘existence’ of an ‘effective accommodation’ is not satisfied by mere
speculation.” Jackan v. New York State Dep’t of Labor, 205 F.3d 562, 566 (2d Cir. 2000).
B.

Application

As noted above, plaintiff does not defend his retaliation claims under the FMLA or the
ADA (nor, for that matter, does he defend his retaliation claims under state or local law). Cf. Ver.
Compl. ¶¶ 69, 80, 84-85, 93-94, 109. Indeed, his opposition brief does not contain the word
retaliate. Instead, plaintiff defends his FMLA interference claim; his accommodation claim under

22

the ADA; and his accommodation and iterative process claims under the NYSHRL and NYCHRL.
Opp. Mem. at 3-24. I address each in turn.
1.

FMLA Interference Claim

To defeat summary judgment, a plaintiff must present a genuine issue of material fact as
to each unconceded element of an FMLA interference claim. Those elements are: “1) that she is
an eligible employee under the FMLA; 2) that the defendant is an employer as defined by the
FMLA; 3) that she was entitled to take 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.” Graziadio, 817 F.3d at 424.
In this case, defendant concedes the first two elements, see Def. Mem. at 20-22; Opp. Mem.
at 3, and neither party addresses whether plaintiff was entitled to take leave under the FMLA. The
Court therefore assumes, for purposes of the pending motion, that plaintiff can satisfy the third
element. Defendant contends that it is entitled to summary judgment on the fourth and fifth
elements because plaintiff “never requested FMLA leave, and never gave notice he required any
leave in connection with his illness prior to his termination,” and therefore that plaintiff has “failed
to establish he was ever denied benefits to which he was entitled under the FMLA.” Def. Mem. at
20. To the extent plaintiff’s FMLA claim challenges his termination, defendant further contends
that he has failed to point to any evidence showing that his undisclosed desire to take leave
“constituted a negative factor in the decision to terminate [him].” Id. at 21 (quoting Sista, 445 F.3d
at 175-76).
Plaintiff concedes that JRM never denied him “any time off in connection with his health
condition or his treatment,” that he “never expressed that he needed to take additional leave of
absences” (in addition to the eight periods of leave and/or absence JRM did afford him) “in

23

connection with his treatment, cancer or condition,” and that he never expressed to JRM “that he
would need an additional leave of absence in late April or July of 2016.” Pl. 56.1 Stmt. ¶¶ 30-37.
However, plaintiff argues, JRM knew or should have known about his need for additional leave,
even though he never asked for such leave or notified JRM of his intention to take it. Opp. Mem.
at 3-5, 7-14. Plaintiff also argues that JRM knew or should have known that his poor performance
was caused by the same medical condition that entitled him to leave. Id. at 5-7, 14. Therefore,
plaintiff suggests (though he does not expressly make this point in his brief) that “there is an issue
of fact as to whether the firing . . . constituted interference with [an] attempt to exercise rights
under the FMLA.” Garraway v. Solomon R. Guggenheim Found., 415 F. Supp. 2d 377, 384
(S.D.N.Y. 2006).
For the reasons set forth below, the Court concludes that plaintiff has failed to raise a
genuine issue of material fact concerning the fourth and fifth elements of his FMLA interference
claim: that he “gave notice to the defendant of [his] intention to take leave” and that he “was denied
benefits to which [he] was entitled under the FMLA.” Graziadio, 817 F.3d at 424.
a.

Plaintiff Has Not Raised a Triable Issue of Fact as to the Fourth
Element of His FMLA Interference Claim

Under applicable FMLA regulations (and JRM’s internal policies), “[a]n employee must
provide the employer at least 30 days advance notice before FMLA leave is to begin if the need
for the leave is foreseeable” or, “[i]f 30 days notice is not practicable, such as because of a lack of
knowledge of approximately when leave will be required to begin, a change in circumstances, or
a medical emergency, notice must be given as soon as practicable.” 29 C.F.R. § 825.302(a). See
also Employee Handbook at 20. “An employee giving notice of the need for FMLA leave does not
need to expressly assert rights under the Act” or “even mention the FMLA to meet his or her
obligation to provide notice.” 29 C.F.R. § 825.301(b). See also Debell v. Maimonides Med. Ctr.,
24

2011 WL 4710818, at *6 (E.D.N.Y. Sept. 30, 2011) (“An employee is not required to request
FMLA leave by name.”). But the employee must clearly communicate the need for time off. “[A]n
‘employer is not required to be clairvoyant.’” Brown v. The Pension Bds., 488 F. Supp. 2d 395,
409 (S.D.N.Y. 2007) (quoting Johnson v. Primerica, 1996 WL 34148, at *5 (S.D.N.Y. Jan. 30,
1996)). Thus, “[t]he critical question is whether information imparted to the employer is sufficient
to reasonably apprise it of the employee’s request to take time off for a serious health condition.”
Ode v. Mount Sinai Med. Ctr., 2006 WL 1711508, at *5 (S.D.N.Y. June 22, 2006) (quoting Walton
v. Ford Motor Co., 424 F.3d 481, 486 (6th Cir. 2005)).
Where the undisputed evidence shows that an employee failed to notify his employer of
his intention to take leave, courts do not hesitate to grant summary judgment on that employee’s
FMLA interference claim. See, e.g., Nally v. New York, 2013 WL 2384252, at *15 (N.D.N.Y. May
30, 2013) (“Based upon the facts and the statute, the Court finds that plaintiff failed to establish
that she adequately notified defendants of that she was entitled to and was requesting FMLA
leave.”); Yanklowski v. Brockport Cent. Sch. Dist., 794 F. Supp. 2d 426, 428 (W.D.N.Y. 2011)
(“Plaintiff has not produced any evidence that she was denied any benefit to which she was entitled
or that she was planning to make a further request for leave . . . .”); Higgins v. NYP Holdings, Inc.,
836 F. Supp. 2d 182, 194 (S.D.N.Y. 2011) (dismissing FMLA interference claim where plaintiff
failed to “satisfactorily allege either that he gave [the defendant] notice of an intention to take
FMLA leave, or that any such request was denied”). Similarly, where the record reflects that an
employer granted every request by an employee for leave, and “there is no evidence that he was
discouraged or penalized for taking such leave,” summary judgment is warranted. Woolf v.
Bloomberg L.P., 2019 WL 1046656, at *18 (S.D.N.Y. Mar. 5, 2019).

25

Notwithstanding plaintiff’s admission that he never requested (and was never denied) any
leave under the FMLA, he asserts that JRM’s “knowledge of [his] qualifying condition, in
combination with requests for leave and sick days,” creates a genuine issue of fact “as to whether
defendant was put on inquiry notice of plaintiff’s request for leave.” Opp. Mem. at 3-4 (quoting
Debell, 2011 WL 4710818, at *8).
Neither Debell nor the other cases on which plaintiff principally relies – Barnett v. Revere
Smelting & Ref. Corp., 67 F. Supp. 2d 378 (S.D.N.Y. 1999), and Garroway – assist him in resisting
summary judgment. The plaintiff in Debell was a hospital employee who experienced a psoriasis
flare-up. On Friday, April 3, 2009, he “showed his supervisors his psoriasis sores” and “informed
several of his supervisors . . . that he was unable to continue working in the sterilization unit.”
2011 WL 4710818, at *8. The hospital “advised [him] to leave for the day and suggested that he
see his doctor.” Id., at *7. On Monday morning, April 6, 2009, he met with the Executive Director
for Perioperative Surgical Services and “requested to go to the doctor, who would be able to ‘give
him treatments where he might be able to perform his job.’” Id. Instead, he was “terminated at the
meeting.” Id. On these facts – including direct evidence that plaintiff showed his psoriasis sores
and “asked for time off to see his doctor” just before he was fired, id., at *8, the court held that he
had raised a genuine issue of material fact as to whether his employer was on notice of his need
for an FMLA leave. Id., at *7-8.
In Barnett, the plaintiff was a refinery worker with a heart condition. He was terminated
for “excessive absenteeism” after he (i) showed his employer’s on-site nurse his prescription for
Procardia (a chest pain medication); (ii) mentioned his chest pains to his manager and union
steward; (iii) told his manager “that he had been diagnosed with a ‘serious heart condition’”; and
(iv) called in sick for two days, explaining by telephone that he was “suffering from chest pains

26

and difficult breathing.” 67 F. Supp. 2d at 382-83. The court found that plaintiff had raised a
question of fact as to whether his communications “should have given Revere reason to conclude
that his absence was due to his ‘serious health condition’ under the FMLA.” Id. at 387.
In Garroway, the defendant – a museum – knew that plaintiff had been hospitalized from
February 28 to March 7, 2005, because he was hearing voices. 415 F. Supp. 2d at 380-84. At
summary judgment, the museum argued that plaintiff “never requested or informed it of any need
for FMLA leave after he was discharged from the hospital on March 7 and that it therefore was
within its rights in firing him for failing thereafter to comply with its absence policy.” Id. at 383
(emphasis added). However, plaintiff presented evidence that he had called museum employees
on March 8 and 11 (after his release from the hospital) and informed them that he was still seeking
a doctor’s “release to come back to work.” Id. at 381. On those facts, the court concluded that “a
jury reasonably could find” that, after that call, the museum “was on sufficient notice to give rise
to a duty to ascertain whether further leave was required.” Id. at 384.
None of these cases assists plaintiff Lievre in creating a genuine issue of material fact. In
Debell, Barnett, and Garroway, the plaintiffs were actually absent from work when they were let
go (or had requested to be absent); the issue in dispute was whether their employers had sufficient
notice that the condition necessitating those absences triggered the FMLA. Here, conversely, it is
undisputed that JRM was aware that plaintiff had cancer. In fact, it knew about that condition when
it hired him, Def. 56.1 Stmt. ¶¶ 3, 6, and it granted plaintiff all of the leave he requested related to
that condition over the three years that he was employed by JRM. Id. ¶¶ 32-34. It is also undisputed,
however, that at the time he was fired plaintiff had completed his course of radiation therapy
(without seeking or taking a leave), was working full time, and had not requested any future
medical leave. Def. 56.1 Stmt. ¶¶ 35-37; Appell Decl. Ex. 9 at ECF page 9; Reissman Dep. at

27

134:2-8, 172:5-173:3. Since plaintiff did not give JRM notice, either directly or indirectly – by
being absent due to illness – that he “was unable to continue working,” cf. Debell, 2011 WL
4710818, at *8, his FMLA interference claim fails.
Plaintiff argues that his supervisors should have inferred his future need for FMLA leave
in the summer of 2016 – or at least asked him whether he would need such leave – because they
knew that he had cancer, knew that he had recently completed a course of radiation, and knew that
he had experienced “significant side effects” two years earlier from the radiation and
chemotherapy treatment he had been given in September 2014. Opp. Mem. at 13-14; see also
Appell Decl. Ex. 8. Notwithstanding those side effects, however, plaintiff did not take any
extended leave during his 2014 treatment. See Def. 56.1 Stmt. ¶¶ 31-34; Appell Decl. Ex. 8.
Moreover, as noted above, he completed his 2016 radiation treatment without taking any leave,
was working full time when the decision was made to let him go, and – insofar as the record
discloses – never informed his employer that he had any additional treatment upcoming. Since
plaintiff has failed to raise a genuine issue of material fact as to whether he “gave notice to the
defendant of [his] intention to take leave,” Graziadio, 817 F.3d at 424, his FMLA interference
claim fails.
b.

Plaintiff Has Not Raised a Triable Issue of Fact as to the Fifth
Element of His FMLA Interference Claim

It is not enough for an FMLA plaintiff to establish that he notified his employer of his need
for a leave; he must also show that he “was denied benefits to which [he] was entitled under the
FMLA.” Graziadio, 817 F.3d at 424. In this case – since JRM granted every leave request that
plaintiff actually made – plaintiff’s theory must be that his employer fired him to avoid any future

28

obligation to provide FMLA leave. See Opp. Mem. at 3-4. 11 Several courts in this Circuit have
cautioned that claims of this nature should be considered retaliation claims, not interference claims,
and must therefore be analyzed under the McDonnell Douglas burden shifting framework. See,
e.g., LeClair v. Berkshire Union Free Sch. Dist., 2010 WL 4366897, at *6 (N.D.N.Y. Oct. 28,
2010) (“the Court finds that Plaintiff’s theory of interference by termination is merely a retaliation
theory in disguise”); Yanklowski, 794 F. Supp. 2d at 428 (“Furthermore, while she was disciplined
and subsequently fired, allegedly for exercising her rights under the FMLA, courts in this circuit
have consistently held that these types of claims constitute retaliation and not interference.”); Di
Giovanna v. Beth Israel Medical Center, 651 F. Supp. 2d 193, 203 (S.D.N.Y. 2009) (“this really
is no more than an effort to dress Di Giovanna’s retaliation claim in (barely) different clothing”).
In this case, the distinction is immaterial. Even assuming the propriety of premising his
FMLA interference claim on his termination, plaintiff’s claim fails at summary judgment because
he has not come forward with any evidence which would permit a jury to conclude that JRM
terminated him for prohibited reasons. See Sista, 445 F.3d at 176 (affirming a grant of summary
judgment to the defendant employer because, “[r]egardless of whether Sista asserts an
‘interference’ or a ‘retaliation’ claim,” he “cannot show that [defendant] considered his FMLA
leave and request to return a negative factor in its decision to terminate him”).
It is “well-settled” that an employer who terminates an employee “is not liable for
‘interfering’ with an employee’s leave when the employee would have been terminated regardless

11

As noted above, plaintiff never expressly articulates this theory. However, the authorities on
which he principally relies are all “interference by termination” cases. See, e.g., Debell, 2011 WL
4710818, at *7-8 (quoting Tambash v. St. Bonaventure Univ., 2004 WL 2191566, at *11
(W.D.N.Y. 2004)) (“Where an employer is aware that an employee may need to take FMLA leave,
it would be inconsistent with the remedial purpose of the statute to allow an employer, motivated
in part specifically to prevent the employee from obtaining leave under the FMLA, to terminate
the individual before a more definitive request for leave could be made.”).
29

of the leave.” Hill v. New York City Hous. Auth., 220 F. Supp. 3d 499, 506 (S.D.N.Y. 2016)
(quoting Pearson v. Unification Theological Seminary, 785 F. Supp. 2d 141, 162 (S.D.N.Y.
2011)). This is so because the “FMLA is not a shield to protect employees from legitimate
disciplinary action by their employers if their performance is lacking in some manner unrelated to
their FMLA leave.” Hill, 220 F. Supp. 3d at 506 (quoting Geromanos v. Columbia Univ., 322 F.
Supp. 2d 420, 429 (S.D.N.Y. 2004)).
Plaintiff proffers two cases for the proposition that an employee’s termination due to poor
performance may give rise to an FMLA claim if the poor performance, in turn, was caused by an
illness that would have entitled that employee to an FMLA leave: Roberts v. AIG Glob. Inv. Corp.,
2008 WL 4444004, at *4-5 (S.D.N.Y. Sept. 30, 2008) and Woods, 864 F.3d at 165. See Opp. Mem.
at 6-7. Neither case is persuasive.
In Roberts, the plaintiff notified HR on July 22, 2004, that he “would have to take a leavefamily medical leave because of a short-term disability.” 2008 WL 4444004, at *2. His employer,
AIG, told plaintiff that he “needed to be at work, that he could not take sick leave in the next ten
days, and that he could not start his leave until he had filled out the appropriate paperwork, for
which they set a deadline of August 5.” Id. Thereafter, on August 2, 2004, Roberts submitted a
“Notice and Proof of Claim for Disability Benefits” form to HR, followed by a “Request for Leave
of Absence” form on August 3, 2004, indicating that he planned to take leave beginning August
12, 2004. Id. On August 3, 2004, Roberts missed work, and on August 5, 2004, after arriving late,
he was terminated. Id. On these facts, the district court rejected AIG’s argument “that it intended
to fire Roberts anyway because of poor performance,” holding that plaintiff had raised “triable
issues as to whether AIG terminated Roberts for reasons related to his substantive entitlements
under the FMLA.” Id., at *4.

30

Plaintiff relies heavily on the language following that holding:
To the extent that some or all of Roberts’s performance problems were the result of
his several health problems, and AIG does not dispute that Roberts gave notice of
his intention to take leave because of those health problems nor that Roberts was
fired before he could take the protected leave to which he was requested and was
otherwise entitled, a reasonable trier of fact could find that Roberts was terminated
because of performance problems that resulted from the very medical condition that
entitled him to FMLA leave.
Roberts, 2008 WL 4444004, at *4 (footnotes omitted). Importantly, however, Judge Lynch
rejected the proposition that an FMLA plaintiff cannot be fired for poor performance caused by
his medical condition: “The FMLA ‘is not a shield to protect employees from legitimate
disciplinary action by their employers if their performance is lacking in some manner unrelated to
their FMLA leave.’” Id., at *5 n.19 (quoting Sista, 445 F.3d at 175).
As recently explained by Judge Castel, the question is not whether the employee’s poor job
performance was attributable to the same health issues that allegedly entitled him to FMLA leave;
that “would require omniscience on the part of employers.” Hockenjos v. Metro. Transporation
Auth., 2016 WL 2903269, at *8 (S.D.N.Y. May 18, 2016), aff’d sub nom. Hockenjos v. MTA
Metro-N. R.R., 695 F. App’x 15 (2d Cir. 2017). Rather, a poorly-performing employee may
properly be terminated “so long as [his] leave did not constitute a factor in defendant’s termination
decision.” Id. (emphasis added). Thus, plaintiff may not overcome JRM’s summary judgment
motion merely by raising an inference that his poor performance “was, in fact, caused by his
medical condition.” Opp. Mem. at 14.
Woods – a retaliation case brought by an employee who was fired twelve days after she
returned from an FMLA leave – is even less helpful for plaintiff. At trial, the jury was instructed
that it was the plaintiff’s burden to establish “but for” causation – that is, that but for the exercise
of her FMLA rights she would not have been fired:

31

For you to determine that the plaintiff was terminated for taking FMLA leave, she
must prove that the defendant would not have terminated her if she had not taken
FMLA leave, but everything else had been the same.
Woods, 864 F.3d at 165. The jury was also instructed that the FMLA “does not protect an employee
from performance problems caused by the conditions for which the FMLA leave is taken,” and
therefore that “a person can be fired for poor performance, even if that poor performance is due to
the same root cause as the need for the leave.” Id.
On appeal, plaintiff argued, and the Second Circuit agreed, that the causation instruction
was error. The appellate court “defer[red] to the Labor Department’s regulation implementing a
‘negative factor’ causation standard for FMLA retaliation claims” and held that an FMLA
retaliation plaintiff need only establish that her exercise of her FMLA rights was a “motivating
factor” in the employer’s termination decision. Woods, 864 F.3d at 168-69. See also Gordon v.
City of New York, 2018 WL 4681615, at *24 (S.D.N.Y. Sept. 28, 2018) (noting that Woods stands
for the proposition that “a plaintiff need only show that FMLA leave was a ‘negative factor’ in the
employer’s decision to take an adverse action”). Woods did not challenge, and the Second Circuit
did not discuss, the instruction concerning the employer’s right to terminate an employee for poor
performance “even if that poor performance is due to the same root cause as the need for the leave.”
Woods, 864 F.3d at 165. Thus, nothing in Woods permits an FMLA plaintiff to satisfy his burden
at summary judgment by asserting that the poor performance that led to his termination was caused
by a condition for which FMLA leave may have been available.
In the case at bar, defendant has proffered extensive evidence that plaintiff’s employment
was terminated due to his poor work performance, not to any request (or anticipated request) for
FMLA leave. Plaintiff’s performance issues were noted in 2015 – long before his condition
worsened and required radiation treatment – and caused friction at that time between JRM and its
client Blackstone, as well as within JRM’s Blackstone team. Fuchs Decl. Exs. P, Q, R; 2015
32

Performance Review at 2; Reissman Dep. at 66:7-67:19, 157:3-13. 12 He continued to perform
poorly into early 2016, leading to his removal from the Blackstone team and a series of warnings.
See Fuchs Decl. Exs. K, N, U; Durrani Aff. ¶¶ 3-6. After giving plaintiff a “final chance,” but
observing no improvement in his performance, JRM terminated his employment in June 2016.
Reissman Dep. at 95:2-96:6, 157:3-23; Levitt Dep. at 79:22-80:4.
Plaintiff, on the other hand, has submitted no evidence of any kind, direct or indirect –
other than the timing of his termination – suggesting that his past and/or potential future requests
for FMLA leave were a “negative factor” in JRM’s decision to terminate him. Therefore, as in
Gordon, 2018 WL 4681615, at *25, “no reasonable jury could conclude that [plaintiff’s] FMLA
request was a motivating factor in” JRM’s termination of his employment. See also Dearden, 2017
WL 4084049, at *11 (“[t]he timing of events alone . . . cannot defeat summary judgment in the
face of defendant’s proffered legitimate reason”) (citation omitted). Plaintiff has pointed to no
document or testimony suggesting that Reissman, Levitt, or any other JRM decision-maker
considered his alleged need for FMLA leave as “a negative factor in its decision to terminate him.”

The parties each highlight the elements of plaintiff’s 2015 Performance Review helpful to their
cause. See Def. Mem. at 7, 14; Opp. Mem. at 2, 14. To be sure, that review was not entirely
negative; plaintiff’s performance was rated satisfactory or above average in several areas.
However, the mere existence of some positive elements in an underwhelming performance review
does not render pretextual an employer’s reliance on its negative elements in connection with its
later termination of that employee. See, e.g., Yeger v. Inst. of Culinary Educ., Inc., 2017 WL
377936, at *11-13 (S.D.N.Y. Jan. 25, 2017) (observing, in an age and gender discrimination action,
that “Plaintiff’s selective citation of only the positive aspects of her performance reviews while
ignoring the negative aspects of those same reviews does not support a rational inference of
pretext”).
12

33

Sista, 445 F.3d at 176. 13 Instead, as in Woolf, “the record includes extensive evidence that [he] was
terminated for performance-based, non-pretextual reasons, and no evidence that his termination
was motivated by his requests for, [or] use of, family or medical leave.” Woolf, 2019 WL 1046656,
at *18; see also Hockenjos, 2016 WL 2903269, at *7-8 (granting summary judgment to employer
based on “overwhelming evidence” of plaintiff’s poor performance and absence of evidence that
FMLA leave was a factor in termination).
Plaintiff having failed to raise a genuine issue of material fact in support of either the fourth
or the fifth elements of his FMLA interference claim, defendant is entitled to summary judgment
on that claim.
2.

ADA Accommodation Claim

Under 42 U.S.C. § 12112(b)(5)(A), a “covered entity” violates the ADA by “not making
reasonable accommodations to the known physical or mental limitations of an otherwise qualified
[employee] with a disability . . . unless such covered entity can demonstrate that the
accommodation would impose an undue hardship on the operation of the business of such covered
entity.” To establish a prima facie failure-to-accommodate claim under the ADA, a plaintiff must
show (1) that he is a “person with a disability under the meaning of the ADA,” (2) that “an
employer covered by the statute had notice of his disability,” (3) that “with reasonable
accommodation, plaintiff could perform the essential functions of the job at issue,” and (4) that

13

In paragraph 92 of his counter-statement of material facts, plaintiff asserts that “[i]n an e-mail
from Mr. Reissman to Mr. Lievre, dated August 21, 2014, the day before the car service was set
up for Mr. Lievre due to the difficulties he was having walking as a result of his cancer treatment,
Mr. Reissman stated that Mr. Lievre is taking too much time to get work done and is
‘embarrassing’ JRM with the client.” Pl. 56.1 Stmt. ¶ 92. Oddly, plaintiff did not provide the email
itself to the Court in his summary judgment papers. Assuming that it exists, however, nothing
about it suggests that plaintiff’s potential exercise of his FMLA rights was a “motivating factor”
in JRM’s termination decision two years later. Woods, 864 F.3d at 168.
34

“the employer has refused to make such accommodations.” McBride, 583 F.3d at 96-97 (citations
omitted).
JRM does not seriously contest the first two elements of plaintiff’s ADA accommodation
claim, see Def. Mem. at 15-19, and the Court assumes, for summary judgment purposes, that
plaintiff can satisfy those elements. However, plaintiff has failed to raise a genuine issue of
material fact as to the third and fourth elements of the claim.
a.

Plaintiff Has Failed to Identify What Reasonable Accommodation
Would Have Permitted Him to Perform the Essential Functions of
His Job

“In the context of the ADA, reasonable accommodation may include, inter alia,
modification of job duties and schedules, alteration of the facilities in which a job is performed,
acquisition of devices to assist the performance of job duties, and, under certain circumstances,
‘reassignment to a vacant position.’” McBride, 583 F.3d at 97 (quoting 42 U.S.C. § 12111(9)(B)).
“The plaintiff bears the burdens of both production and persuasion as to the existence of some
accommodation that would allow her to perform the essential functions of her employment.” Id.
(citing Jackan, 205 F.3d at 566-67).
It is undisputed that JRM provided plaintiff some accommodations, including
reimbursement for taxis to attend offsite “walk throughs,” a car service to commute between work
and home, permission to work from home when necessary, and the conversion of a women’s
bathroom into a large, ADA-compliant bathroom near plaintiff’s office. Def. 56.1 Stmt. ¶¶ 39-44;
Levitt Dep. at 80:13-82:23; Reissman Dep. at 177:3-179:4.
Plaintiff fails to identify any further accommodation which, if granted him, would have
permitted him “to perform the essential functions of the job at issue.” McBride, 583 F.3d at 96-97.
Instead, he cites to Levitt’s testimony about the “possible accommodations” for “an employee
whose illness was interfering with his ability to work,” which ranged from “providing a flexible
35

schedule or more comfortable chair through the FMLA leave options.” Pl. 56.1 Stmt. ¶ 98; see
also Levitt Dep. at 54:18-55:9. He also highlights Reissman’s testimony that he did not recall
offering plaintiff any specific accommodations after January 1, 2016, and did not assign anyone
to “assist” plaintiff while he was undergoing treatment. Pl. 56.1 Stmt. ¶ 99; Reissman Dep. at
160:9-22. Plaintiff then argues that defendant violated the ADA because it “failed to offer any sort
of accommodation” while Lievre was “doing the best he could and struggling while undergoing
radiation.” Opp. Mem. at 17.
Plaintiff’s argument falls short, because it is his burden to show that there were reasonable
accommodations for him to perform the essential functions of his job. Cf. McBride, 583 F.3d at
96-97. See also Molina v. City of Rochester, 764 F. App’x 49, 51 (2d Cir. 2019) (“Molina produced
no evidence that (and does not describe how) he would be able to complete the essential functions
of his job even with any of his proposed accommodations. His failure to accommodate claim thus
fails as a matter of law.”). Absent evidence that plaintiff could have performed his job if offered
“a flexible schedule” or “a more comfortable chair,” Pl. 56.1 Stmt. ¶ 98, Levitt’s generic testimony
concerning “possible” accommodations for hypothetical employees with hypothetical illnesses
does not assist plaintiff in meeting that burden here.
Similarly, Reissman’s alleged failure to assign anyone to “assist” plaintiff with his work
cannot defeat JRM’s summary judgment motion. Even assuming, arguendo, that such assistance
would have improved plaintiff’s output, it falls far beyond an employer’s obligation to provide a
“reasonable” accommodation. Jacobson, 2018 WL 6817064, at *28 (“An employer does not have
to require another employee to repeat work done by a person with disabilities, particularly when
this would reduce overall productivity.”). The ADA, like the FMLA, “does not prevent an

36

employer from holding an employee accountable for poor job performance,” even where the
employee’s disability caused the unacceptable job performance. Id., at *16 (collecting cases). 14
Because plaintiff has not met his burden to identify specific “reasonable accommodations”
that would have allowed him to perform the essential functions of the job, summary judgment on
his ADA accommodations claim is warranted. Molina, 764 F. App’x at 51 (“we agree with the
District Court that Molina failed to identify a reasonable accommodation that would allow him to
perform the essential functions of his job”); Flieger v. E. Suffolk BOCES, 693 F. App’x 14, 20 (2d
Cir. 2017) (affirming grant of summary judgment in favor of a defendant where the plaintiff “failed
to meet her burden of identifying an accommodation that would allow her to continue to perform
all of the essential functions” of the job she once held); Itzhaki v. Port Authorityof New York &
New Jersey, 2017 WL 213808, at *5 (S.D.N.Y. Jan. 17, 2017) (“Itzhaki fails to identify any
reasonable accommodation that would have allowed her to perform the essential functions of the
Sergeant position with her alleged disability.”).
b.

Plaintiff Has Failed to Raise a Genuine Dispute of Material Fact
Concerning Whether JRM Denied Him Any Accommodation

Even if plaintiff had met his burden to identify a “reasonable accommodation” that would
have enabled him to perform the essential functions of his job, he has failed to raise a triable issue
of fact on the fourth element of his ADA accommodation claim: that he requested, and JRM
denied, any reasonable accommodation. See Vitti v. Macy’s Inc., 758 F. App’x 153, 157-58 (2d
Cir. 2018) (“In addition, Vitti fails to establish denial of a reasonable accommodation because she
never requested one.”). Plaintiff makes no effort to show that he requested any particular

See also Adams v. Rochester Gen. Hosp., 977 F. Supp. 226, 236 (W.D.N.Y. 1997)
(“Discrimination under the ADA is not established if the disability caused unacceptable job
performance.”); Ali v. Tribune Entm’t Co., 1996 WL 384913, at *5 (S.D.N.Y. July 10, 1996)
(referring to plaintiff’s “unsatisfactory job performance as a result of her disabilities” as a
“legitimate non-discriminatory reason[s] for its termination of the plaintiff”).
14

37

accommodation, much less that JRM denied such a request. Instead, he argues that JRM was
required to “act proactively and engage in an interactive process to accommodate” his disability
because it “knew or reasonably should have known that [he] was disabled.” Opp. Mem. at 15-17.
If a disability is “obvious – which is to say, if the employer knew or reasonably should
have known that the employee was disabled,” that employer may have a “duty reasonably to
accommodate” the disability even if no specific request is made. Brady v. Wal-Mart Stores, Inc.,
531 F.3d 127, 135 (2d Cir. 2008). Even where a disability is obvious, however, the employee must
still establish that “with reasonable accommodation, plaintiff could perform the essential functions
of the job at issue,” and that “the employer has refused to make such accommodations.” McBride,
583 F.3d at 96-97.
Plaintiff has failed to raise a genuine dispute of material fact on this issue. To be sure, JRM
was aware of some of plaintiff’s health issues, including his underlying illness, its recurrence, and
his radiation treatment in April 2016. However, mere awareness of an employee’s health issues
does not translate into an awareness of that employee’s need for additional accommodations under
the ADA. Instead, as in Jacobson, where the record demonstrates that “every accommodation
request that Plaintiff made with respect to [his] cancer treatment was granted,” and he has failed
to identify any reasonable accommodation he was not afforded prior to his termination for poor
work performance, summary judgment is warranted. See Jacobson, 2018 WL 6817064, at *29. 15
Nor may plaintiff rely on JRM’s asserted failure to engage in an interactive process with
him to determine what accommodations, if any, might have been afforded. Opp. Mem. at 15-17.

This point distinguishes the case at hand from Brady, 531 F.3d 127, which, as the Second Circuit
has explained, was “premised on the fact that the plaintiff had sufficiently demonstrated that he
was, at least with the aid of some reasonable accommodation, capable of performing the essential
functions of the position at issue.” McBride, 583 F.3d at 102.

15

38

“The Second Circuit has held that under the ADA, failure to engage in an interactive process does
not form the basis of a disability discrimination claim in the absence of evidence that a reasonable
accommodation was possible.” Vangas v. Montefiore Med. Ctr., 6 F. Supp. 3d 400, 420 (S.D.N.Y.
2014); McBride, 583 F.3d at 101 (“[A]n employer’s failure to engage in a sufficient interactive
process does not form the basis of a claim under the ADA and evidence thereof does not allow a
plaintiff to avoid summary judgment unless she also establishes that, at least with the aid of some
identified accommodation, she was qualified for the position at issue.”). Once again, therefore,
plaintiff’s ADA claim founders on his inability to show that there was “some identified
accommodation” that would have allowed him to satisfactorily perform the essential functions of
his job but that JRM failed to provide.
3.

State Law Claims

Plaintiff’s remaining claims are brought under the NYSHRL and NYCHRL. As in Woolf,
“no party has addressed the appropriateness of the exercise of supplemental jurisdiction over the
remaining state law claims in the event that [plaintiff’s] federal claims do not survive summary
judgment.” 2019 WL 1046656, at *21. Although “both sides have had an opportunity to be heard,”
neither of them “has urged that economy, convenience, fairness or comity weigh in favor of
exercising supplemental jurisdiction.” Id. (citing Catzin v. Thank You & Good Luck Corp., 899
F.3d 77, 82-83 (2d Cir. 2018)).
A district court “may decline to exercise supplemental jurisdiction over a claim . . . [when
it] has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). In the
“usual case” in which “all federal-law claims are eliminated before trial, the balance of factors to
be considered under the pendent jurisdiction doctrine – judicial economy, convenience, fairness,
and comity – will point toward declining to exercise jurisdiction over the remaining state-law

39

claims.” Valencia ex rel. Franco v. Lee, 316 F.3d 299, 305 (2d Cir. 2003) (quoting CarnegieMellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)). The “usual case” rule applies with full force
to ADA and FMLA actions. See, e.g., O’Reilly, 173 F. App’x at 23-24 (finding no abuse of
discretion where the district court declined to exercise supplemental jurisdiction over a plaintiff’s
NYCHRL and NYSHRL claims after granting summary judgment on her ADA and FMLA
claims); Maysonet v. Valley Nat’l Bank, 2019 WL 1368327, at *6 (S.D.N.Y. Mar. 25, 2019)
(“Plaintiff’s NYSHRL and NYCHRL claims are best addressed by state courts, and the Court thus
declines to exercise jurisdiction over those claims.”); Woolf, 2019 WL 1046656, at *21 (“Because
the remaining claims are brought under New York law and turn on New York-specific
requirements, principles of judicial economy, fairness, convenience and comity will be served best
by declining to exercise supplemental jurisdiction over the remaining state law claims and,
accordingly, all such claims are dismissed.”); Sefovic v. Mem’l Sloan Kettering Cancer Ctr., 2017
WL 3668845, at *8 (S.D.N.Y. Aug. 23, 2017) (“Because the Court grants Defendants’ motion for
summary judgment with respect to Sefovic’s federal-law claims, the Court declines to exercise
supplemental jurisdiction over his NYSHRL and NYCHRL claims.”).
The same result is appropriate here, especially in light of plaintiff’s assertion, in his
opposition brief, that his “NYSHRL and NYCHRL claims are broader” than his ADA claims, Opp.
Mem. at 17-24, and the fact that they can be refiled in state court without running afoul of the

40

statute of limitations. 16 Accordingly, “[p]laintiff’s NYSHRL and NYCHRL claims are best
addressed by state courts,” Maysonet, 2019 WL 1368327, at *6, and this Court declines to exercise
supplemental jurisdiction.
III.

CONCLUSION
Defendant’s motion for summary judgment as to plaintiff’s claims under the ADA and

FMLA is GRANTED, and those claims are DISMISSED WITH PREJUDICE. Plaintiff’s claims
under the NYSHRL and NYCHRL are DISMISSED WITHOUT PREJUDICE.
The Clerk of Court is respectfully directed (1) to amend the caption of this action to reflect
that “Henry T. Lievre and Deborah M Lievre, as co-executors of the estate of Henry E. Lievre”
have been substituted as plaintiffs for Henry E. Lievre (see Dkt. No. 19), and (2) to enter judgment
in favor of defendant and close the case.
Dated: New York, New York
September 20, 2019

SO ORDERED.

________________________________
BARBARA MOSES
United States Magistrate Judge

16

See 28 U.S.C. § 1367(d) (tolling the statute of limitations applicable to any claim over which a
federal court had, but later declined to exercise, supplemental jurisdiction, for the period the claim
is pending in federal court and for a period of 30 days after the claim is dismissed, unless state law
provides for a longer tolling period); N.Y. C.P.L.R. § 205(a) (“If an action is timely commenced
and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain
personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the
action, or a final judgment upon the merits, the plaintiff, or, if the plaintiff dies, and the cause of
action survives, his or her executor or administrator, may commence a new action upon the same
transaction or occurrence or series of transactions or occurrences within six months after the
termination . . . .”).
41