MEMORANDUM & ORDER
PAMELA K. CHEN, United States District Judge:
Plaintiff Eddy Reyes ("Plaintiff") filed this action on October 9, 2013, alleging violations of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq., and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code. § 8-107. (Dkt. 1.) According to Plaintiff, after taking leave under the FMLA, he was not permitted to return to his sales representative position with Defendant Phoenix Beverages, Inc. ("Defendant"). Plaintiff alleges that Defendant's failure to restore him to the same, or an equivalent,
General Background Information
Defendant, a beverage distribution company, employed Plaintiff as an On Premises Sales Representative beginning in June 2011. (Pl. 56.1
According to Plaintiff, the amount he had to walk between establishments varied depending on the size of the territory and the proximity of each account establishment to another. (Pl. 56.1 ¶ 4.) According to Defendant, however, Plaintiff's walking was not limited to going between account establishments, but also included Plaintiff collecting cash and checks from each account and then walking to the nearest Chase ATM to deposit them. (Def. 56.1 ¶ 5; Def. Opp. 56.1 ¶ 4; see also Pl. 56.1 ¶ 5 (when Plaintiff received a check from an account, "he would deposit the checks into the Defendant's bank account").) Moreover, Plaintiff was responsible for placing at each account establishment point of sales ("POS") visual advertisements promoting Defendant's products. This involved Plaintiff picking up materials such as "posters, clocks, mirrors, and similar colorful, attention[-]diverting materials" from Defendant's headquarters, loading them into his car, and then removing them from his car and placing them in prominent locations at each account establishment. (Def. 56.1 ¶ 6; Def. Opp. 56.1 ¶ 4.) And on so-called "catch-up Fridays," Plaintiff would also visit non-customer establishments in his territory to convince them to become Defendant's customers, which involved pushing and pulling into each establishment a sample taste kit on wheels containing alcoholic products and weighing about 40 pounds. (Def. 56.1 ¶ 7; Def. Opp. 56.1 ¶ 4.)
Plaintiff reported to his direct supervisor, William Tierno, and also to Defendant's sales manager, Frank Fiorenza, who was Tierno's supervisor. (Pl. 56.1 ¶ 6.) Plaintiff was a "good employee," in that he "showed up to work every day, did his due diligence, seldom took time off, and never received negative comments from customers," (Pl. 56.1 ¶ 7), though Defendant notes that Plaintiff failed to deposit two customer checks on November 20, 2012, which, Defendant alleges, is normally grounds for automatic termination (Def. Opp. 56.1 ¶ 7; Supp. D'Ablemont Decl.
Plaintiff's Accident and Subsequent Serious Health Condition
In the early morning of November 26, 2012, Plaintiff sustained a non-work-related serious injury in an automobile accident. (Pl. 56.1 ¶ 9; Def. 56.1 ¶ 8.) Plaintiff was taken to the hospital, suffering from lower back pain, neck pain, and a severe ankle sprain. (Pl. 56.1 ¶ 10.) Tierno was called and made aware of Plaintiff's accident on the day that it happened, though the parties dispute whether it was Plaintiff himself or Plaintiff's cousin who made the call. (Compare id. ¶ 11, with Supp. D'Ablemont Decl. Ex. E at 41:5-20.) The next day, on November 27, 2012, Plaintiff
Plaintiff's Medical Examinations and Communications Regarding Returning to Work
On December 18, 2012, Plaintiff was examined by one of his doctors, Steven Horowitz of Brooklyn Premier Orthopedics. (Def. 56.1 ¶ 12.) Dr. Horowitz prepared a medical evaluation dated December 24, 2012, in which Dr. Horowitz stated that Plaintiff was "disabled and unable to return to work," that he had been disabled since November 26, 2012 and would be through December 26, 2012, and that a further evaluation was necessary and would take place on January 3, 2013. (Pl. 56.1 ¶ 14;
On December 26, 2012, Dr. Horowitz filled out the form attached to Plaintiff's FMLA package, stating that Plaintiff was "unable to perform" certain job functions due to his accident, enumerating them as follows: "heavy lifting/bending/pushing/pulling; prolonged sitting/standing > 1-2 hours." (D'Ablemont Decl. Ex. 10
Plaintiff's First Alleged Attempt to Return to Work
Plaintiff asserts that he first attempted to return to work on December 26, 2012, when he delivered Dr. Horowitz's medical evaluation from that day to Angelo Sgro, Defendant's Director of Human Resources. Plaintiff further alleges that he was able to reassume his duties, either that day or the next, December 27, 2012, but that Defendant did not permit him to return to work at that time. (Pl. Opp. 56.1 ¶ 14 (alleging that Plaintiff "attempted to return to work on December 26, 2012" and "was able to reassume his position on December 27, 2012"); Pl. 56.1 ¶¶ 14-15 (Plaintiff was "unable to return to work until December 26, 2012" and "attempted to return to work" on that day but "was told that he was unable to").)
On January 3, 2013, Plaintiff submitted a letter to Defendant stating that he was "physically capable of returning to [his] previous responsibilities as a sales representative," but the letter was unaccompanied by any medical certification and did not indicate that any such medical certification existed. (Pl. 56.1 ¶ 15; Def. 56.1 ¶ 17; D'Ablemont Decl. Ex. 1.)
On January 7, 2013, Plaintiff was reevaluated, this time by Dr. Raz Winiarsky, a surgeon at Brooklyn Premier Orthopedics. (Pl. 56.1 ¶ 16; Def. 56.1 ¶¶ 20-21.) Dr. Winiarsky recommended, inter alia, that Plaintiff undergo arthroscopic surgery on his left ankle, which Plaintiff did on January 17, 2013. (Pl. 56.1 ¶¶ 16-17; Def. 56.1 ¶¶ 22-23.) Plaintiff's post-operation instructions indicated that he was to use a cane to walk, wear a post-operation special shoe, and return in a week for a re-assessment (Def. 56.1 ¶ 24), though Plaintiff contends that in a post-operation telephonic assessment, he reported experiencing no pain (Pl. Opp. 56.1 ¶ 24; see also D'Ablemont Decl. Ex. 14 at ECF 4).
Defendant's January 25, 2013 Transmission of Job Description to Plaintiff's Doctors
On January 25, 2013, Sgro provided Plaintiff with a letter to deliver to his doctors so that they "could make a reasoned return to work evaluation of Plaintiff to his sales rep position." (Def. 56.1 ¶ 25; see also Pl. 56.1 ¶ 18 ("Sgro sent the job description of an on-premise sales representative to [Plaintiff's] orthopedists.")) The letter was addressed to Dr. Horowitz, attached "a copy of the complete description of On Premise[s] Sales Representative duties performed by [Plaintiff]," and asked Dr. Horowitz to "review the job description and advise [Defendant] of any restricted physical activity at [the doctor's] earliest convenience." (D'Ablemont Decl. Ex. 4.)
The job description attached to the letter summarized the duties of an On Premises Sales Representative as maximizing
The job description then enumerated a host of "Responsibilities," which included, inter alia, "accomplish[ing] the sales and distribution objectives that are set by the Sales Man[a]ger and District Manager and provid[ing] the necessary follow up in connection with his or her selling effort," "sell[ing] the entire company portfolio...," "determin[ing] the product needs of a customer through personal discussion with the retailer, as well as knowledge of target area's consumer landscape," "own[ing]" "[a]ll stores in rep's `territory'" as "his or her responsibility," "[i]dentify[ing] opportunities to grow the business and improve sales...," "[b]uild[ing] relationships with key account contact to ensure maximum business opportunity," and "[h]andl[ing] issues pertaining to delivery problems and work[ing] with drivers and account owners to remedy situation." (Id. at 1-2.) The "Required Knowledge/Skills/Abilities" section included in the job description did not list any physical skills, such as walking, standing, pushing, or pulling, but rather, focused on customer-service oriented skills such as "Industry knowledge," "Product/Brand Knowledge," "Business Math skills," "Customer Service skills," "Selling Skills/techniques," "Interpersonal (relationship building) skills," "Oral and written communication skills," "Computer skills," and "Time management/Organization." (Id. at 2.)
Plaintiff's February 5, 2013 Medical Evaluation and February 7, 2013 Letter
In response to Defendant's January 25, 2013 letter, Dr. Winiarsky advised Defendant in a letter dated February 5, 2013 that Plaintiff was "able to return to work full time, however he should refrain from any prolonged walking or standing, running or jumping."
It was Defendant's standard policy, applicable to all sales representatives who took leave for a medical condition and wanted to return to work, that they get a medical release stating they could return to full duty without restrictions. (Def. 56.1 ¶¶ 18-19.) In connection with Sgro's January 25, 2013 letter to Dr. Horowitz, Sgro communicated that requirement orally to Plaintiff. (Reyes Dep.
Plaintiff's Receipt of Disability and Unemployment Benefits
Plaintiff applied for weekly short-term disability payments on December 14, 2012, submitting a form filled out by Dr. Horowitz, in which Dr. Horowitz stated that Plaintiff had been "continuously disabled (unable to work)" from November 26, 2012 through the date of the form's submission (Dr. Horowitz's portion was undated), with a reevaluation scheduled for January 3, 2013. (Pl. 56.1 ¶ 13; Def. 56.1 ¶ 10; D'Ablemont Decl. Ex. 12 at ECF 6-7.) Plaintiff received disability payments of $170 each week, beginning retroactively on December 4, 2012, and continuing through February 17, 2013. (Def. 56.1 ¶¶ 11, 29.)
In a form signed by Plaintiff on February 1, 2012
Summary judgment is appropriate where the submissions of the parties, taken together, "show 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. Proc. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (summary judgment inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law"). In ruling upon a summary judgment motion, the court must resolve all ambiguities and draw all reasonable inferences against the moving party, construing any disputed facts in the nonmoving party's favor. See Zalaski v. City of Bridgeport Police Dep't, 613 F.3d 336, 340 (2d Cir. 2010); Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). The same standard of review applies when the Court is faced with cross-motions for summary judgment, as here. See Lauria v. Heffernan, 607 F.Supp.2d 403, 407 (E.D.N.Y. 2009). When evaluating cross-motions for summary judgment, the Court reviews each party's motion on its own merits, and draws all reasonable inferences against the party whose motion is under consideration. Morales v. Quintel Entm't, Inc., 249 F.3d 115, 121 (2d Cir. 2001).
The initial burden of "establishing the absence of any genuine issue of material fact" rests with the moving party. Zalaski, 613 F.3d at 340. Once this burden is met, however, the burden shifts to the nonmoving party to put forward some evidence establishing the existence of a question of fact that must be resolved at trial. Spinelli v. City of N.Y., 579 F.3d 160, 166-67 (2d
The Court addresses at the outset Defendant's argument, as to both Plaintiff's FMLA and NYCHRL claims, that Plaintiff is estopped from arguing that he was fit to return to work in light of having asserted that he was unable to work on a short-term disability form and receiving benefits based thereon. (Def. Mot. at 22-25; Def. Reply at 8-10; Def. Opp.
Defendant's Answer, filed on November 11, 2013, asserts five affirmative defenses. (Dkt. 5.) Defendant contends that the fifth such defense — that "[b]y his actions, Plaintiff was not entitled to any relief from Defendant" (id. at 4) — "clearly alleges" judicial estoppel and therefore precludes a finding of waiver, as does the fact that "Plaintiff's application for and receipt of disability benefits was a significant part of the discovery in this case" and that "Defendant's counsel repeatedly referred to... the doctrine of judicial estoppel" at an August 20, 2015 pre-motion conference before the Court, as well as in submissions to the Court in advance thereof. (Def. Reply at 8-9.) These arguments are all unavailing.
As an initial matter, Defendant is incorrect that its fifth affirmative defense suffices as an assertion of the defense of judicial estoppel. "Rule 8(c) of the Federal Rules of Civil Procedure requires that a responsive pleading must set forth certain enumerated affirmative defenses.... One of the core purposes of Rule 8(c) is to place the opposing parties on notice that a particular defense will be pursued so as to prevent surprise or unfair prejudice." Saks v. Franklin Covey Co., 316 F.3d 337, 350 (2d Cir. 2003) (rejecting argument that defendants sufficiently pleaded preemption by asserting in answer "general defense of
While "a district court may still entertain affirmative defenses at the summary judgment stage in the absence of undue prejudice to the plaintiff, bad faith or dilatory motive on the part of the defendant, futility, or undue delay of the proceedings," to do so, the court should "construe the motion for summary judgment as a motion to amend the defendant's answer." Id. at 350-51. But such motions to amend are themselves governed by the Federal Rules of Civil Procedure, namely Rules 15 and 16. "Where a scheduling order has been entered, the lenient standard under Rule 15(a), which provides leave to amend `shall be freely given,' must be balanced against the requirement under Rule 16(b) that the Court's scheduling order `shall not be modified except upon a showing of good cause,'" which "depends on the diligence of the moving party." Grochowski v. Phoenix Constr., 318 F.3d 80, 86 (2d Cir. 2003); see also Carpenter v. Churchville Greene Homeowner's Ass'n, No. 09-CV-6552, 2011 WL 4711961 at *3, 2011 U.S. Dist. LEXIS 115948 at *12-13 (W.D.N.Y. Sept. 29, 2011), adopted in its entirety, 2011 WL 6012539, 2011 U.S. Dist. LEXIS 137882 (W.D.N.Y. Dec. 1, 2011) ("[W]here a scheduling order has issued establishing a deadline for motions to amend pleadings, motions to amend to assert affirmative defenses must be filed by that deadline unless good cause can be established for an extension.").
The Honorable Vera M. Scanlon issued a scheduling order on March 12, 2014, setting August 30, 2014 as the deadline for amendment of the pleadings. (See Dkt. 8.) No good cause for Defendant's delay in seeking to amend its answer to assert the defense of judicial estoppel has been demonstrated, nor does any seem readily apparent; indeed, the fact that, as Defendant claims, "Plaintiff's application for and receipt of disability benefits was a significant part of the discovery in this case" would seem to indicate that Defendant knew relatively early on in the case that it intended to assert this defense, yet failed to put Plaintiff on notice thereof until after the close of discovery, at the August 20, 2015 pre-motion conference. (See Def. Reply at 8-9.) See Am. Mfrs. Mut. Ins. Co. v. Payton Lane Nursing Home, Inc., No. 05-CV-5155, 2010 WL 985201, at *2, 2010 U.S. Dist. LEXIS 23613, at *7-9 (E.D.N.Y. Mar. 15, 2010) (rejecting defendant's attempt to assert new defense of judicial estoppel on eve of trial and finding its "assertion of a general estoppel defense in its Answer  insufficient" to have preserved this defense, particularly where judicial estoppel "was clearly available to [defendant] over the course of more than four years since this litigation was commenced").
Defendant argues that judicial estoppel "is not waivable," since courts can raise the issue sua sponte at any time. (Def. Reply at 9 (citing Intellivision v. Microsoft Corp., 784 F.Supp.2d 356, 363 n.3 (S.D.N.Y. 2011), aff'd, 484 Fed.Appx. 616 (2d Cir. 2012)).) While it is true that a court may raise judicial estoppel sua sponte and a failure to plead that affirmative defense "does not foreclose a court's review of the issue," courts may nevertheless find the defense to have been waived. See, e.g., Frittita v. Fanny's Supper Club, No. 98-CV-781S, 2000 WL 35905867, at *5, 2000 U.S. Dist. LEXIS 23071, at *15-16 (W.D.N.Y. Aug. 8, 2000) (denying as "inappropriate" defendant's motion to amend answer to assert judicial estoppel defense on first day of trial); see also Am.
But if the Court permitted this defense to go forward, Defendant's judicial estoppel argument would fail. In support of its argument, Defendant relies entirely on Macfarlan v. Ivy Hill SNF, LLC, 675 F.3d 266, 272-73 (3d Cir. 2012), a Third Circuit decision affirming the district court's grant of summary judgment in defendant's favor on the basis that judicial estoppel barred the plaintiff's FMLA claims "because he continued to receive disability benefits" through the end of his FMLA leave. This Court, however, is not bound by Macfarlan, and instead chooses to follow the Second Circuit's reasoning in Simon v. Safelite Glass Corp., 128 F.3d 68 (2d Cir. 1997). There, the Second Circuit affirmed the application of judicial estoppel to a plaintiff's claims under the Age Discrimination in Employment Act ("ADEA") where the plaintiff had "made statements under penalty of perjury to the Social Security Administration that he was `unable to work.'" Id. at 72-73. The Second Circuit reasoned that judicial estoppel functions as "a means to preserve the sanctity of the oath or to protect judicial integrity by avoiding the risk of inconsistent results in two proceedings," and therefore was applicable even to administrative proceedings because "[a]scertaining the truth is as important in an administrative inquiry as in judicial proceedings." Id. at 71-72 (noting that "Social Security disability determinations are, in essence, adjudicative").
There is nothing in Simon that indicates or suggests that judicial estoppel applies to a situation where, as here, a plaintiff made an allegedly inconsistent statement to a private insurer in seeking disability benefits.
Finally, and in any event, the evidence is insufficient to find estoppel on Plaintiff's claims as a matter of law. At most, Plaintiff's statement to Defendant's disability insurance company was that he expected to be able to return to work on February 18, 2013, and indeed, Plaintiff stopped receiving disability benefits as of that date.
Accordingly, the Court declines to find that Plaintiff is judicially estopped from asserting his FMLA (and NYCHRL) claims.
The Court turns now to Plaintiff's claims under the FMLA. Plaintiff contends that, because Defendant failed to restore him to his same, or an equivalent, position when he sought to return to work on multiple occasions following his November 26, 2012 injury, Defendant has impermissibly interfered with, restrained, and/or denied the exercise of Plaintiff's rights under the FMLA. (See, e.g., Pl. Mot. at 17-21; Pl. Opp. at 1, 9-12.)
Defendant's principal response is that Defendant had a policy, of which Plaintiff was aware, requiring that any sales representative seeking to return from medical leave had to furnish Defendant with a medical certification stating that the employee could return to full duty without restrictions. (See, e.g., Def. Mot. at 5-7; Def. Opp. at 1.) This argument, however, is based on a fundamental misunderstanding of the FMLA's requirements.
Based on its finding, inter alia, that "there is inadequate job security for employees who have serious health conditions that prevent them from working for temporary periods," 29 U.S.C. § 2601(a)(4), Congress passed the FMLA "to entitle employees to take reasonable leave for medical reasons," id. § 2601(b)(2), "in a manner that accommodates the legitimate interests of employers," id. § 2601(b)(3). In furtherance of that goal, the FMLA entitles eligible employees to a total of 12 workweeks of leave during any 12-month period because of, inter alia, a "serious health condition
However, an employer is not required to restore an employee who is unable to perform the essential functions of his job. (See 29 C.F.R. § 825.216(c);
"If the employer will require the employee to present a fitness-for-duty certification to be restored to employment, the employer must provide notice of such requirement," along with a notice designating the leave as FMLA leave ("designation notice"). Id. § 825.300(d)(3). The designation notice and the accompanying notice of a fitness-for-duty certification requirement must be in writing
The employer "may require that the certification specifically address the employee's ability to perform the essential functions of the employee's job" (the "specific" fitness-for-duty certification), but if that is the requirement, the employer "must provide an employee with a list of the essential functions of the employee's job no later than with the designation notice." Id. § 825.312(b). The regulations repeat this specific fitness-for-duty certification notice requirement multiple times. See, e.g., id. § 825.300(d)(3) ("If the employer will require that the fitness-for-duty certification address the employee's ability to perform the essential functions of the employee's position, the employer must so indicate in the designation notice, and must include a list of the essential functions of the employee's position."); id. § 825.312(d) ("The designation notice ... shall advise the employee if the employer will require a fitness-for-duty certification to return to work and whether that fitness-for-duty certification must address the employee's ability to perform the essential functions of the employee's job."). Thus, the regulations make clear that an employer can only condition an employee's return to work on a fitness-for-duty certification — general or specific — if it has provided notice of that requirement to the employee in a timely manner, and, in the case of a specific fitness-for-duty certification, only if the employer provided with the designation notice a list of the essential functions of the employee's position.
The employer may only "delay restoration to employment until an employee submits a required fitness-for-duty certification" if it has provided the notice required by the implementing regulations. Id. § 825.312(e). Failure to follow the notice requirements set forth in the FMLA regulations may form the basis of an FMLA interference claim and may subject an employer to liability for, inter alia, "compensation and benefits lost by reason of the violation, for other actual monetary losses sustained as a direct result of the violation, and for appropriate equitable or other relief, including employment[ or] reinstatement...." Id. § 825.300(e); see also Fernandez v. Windmill Distrib. Co., 159 F.Supp.3d 351, 363 (S.D.N.Y.2016) ("[T]he failure to provide notice that inhibits or
Plaintiff's FMLA Interference Claim
Employers covered by the FMLA may not interfere with, restrain, or deny an employee's rights under the Act. 29 U.S.C. § 2615(a).
To prevail on his FMLA interference claim, Plaintiff must establish that: (1) he is an eligible employee under the FMLA; 2) Defendant is an employer as defined by the FMLA; 3) Plaintiff was entitled to take FMLA leave; 4) Plaintiff gave notice to Defendant of his intention to take leave; and 5) Plaintiff was denied benefits to which he was entitled under the FMLA. See Graziadio v. Culinary Inst. of Am., 817 F.3d 415, 424 (2d Cir. 2016). There is no dispute the first four elements are met: Plaintiff is an eligible employee under the FMLA; Defendant is an employer subject to the FMLA;
Requisite Notice and Timing Thereof
Defendant argues that its failure to restore Plaintiff to his previous, or an equivalent, position did not violate the FMLA, because Plaintiff failed to provide compliant medical certification of his "fitness-for-duty," insofar as the medical certifications he submitted did not state explicitly that he could return to full duty without restrictions. Plaintiff argues that such an explicit statement is not required by the FMLA or its implementing regulations, and to the extent an employer may require such an explicit statement, it may do so only under conditions not met here. The Court agrees and therefore denies Defendant's motion for summary judgment on Plaintiff's FMLA claim. But as discussed infra, the Court finds that there are disputed issues of fact regarding whether, and at what point, Plaintiff was able to perform the essential duties of his job, and therefore denies Plaintiff's motion for summary judgment on that claim, as well.
As previously discussed, under the FMLA, Defendant was permitted to require Plaintiff "to obtain and present certification from [his doctor] that [Plaintiff] [wa]s able to resume work" before allowing him to return to the same or an equivalent position. 29 C.F.R. § 825.312(a). However, even as to this standard fitness-for-duty certification requirement, Defendant had to provide Plaintiff notice of the requirement no later than with the designation notice, i.e. within five business days of having enough information to determine whether the leave was being taken for a FMLA-qualifying reason. See id. §§ 825.300(d)(1), (3); 825.312(d).
Plaintiff notified Defendant of his accident on November 26, 2012, and picked up an FMLA package the next day. (Pl. 56.1 ¶ 11; Def. 56.1 ¶ 9; Supp. D'Ablemont Decl. Ex. E at 41:5-20.) The requisite notice should therefore have been provided to Plaintiff by December 4, 2012. Even if Plaintiff's conduct in November 2012 did not furnish Defendant with enough information to determine whether his leave was FMLA-qualifying, certainly when Plaintiff submitted the FMLA paperwork with Dr. Horowitz's medical evaluation "on December 26, 2012 or shortly thereafter" (Def. Mot. at 16) Defendant had sufficient information to do so. Giving Defendant the benefit of the doubt that the first business day after Plaintiff's submission of the FMLA paperwork was as late as January 2, 2013, Defendant would have been required to provide Plaintiff with a designation notice, accompanied by notice of a fitness-for-duty certification (and, if specific, a list of essential job functions), by January 8, 2013.
There is no evidence in the record that Defendant provided the requisite notice, even by the later date of January 8, 2013, and even as to the standard fitness-for-duty certification. Certainly there is no evidence in the record suggesting that Defendant provided Plaintiff with notice of a specific fitness-for-duty certification requirement by January 8, 2013 or at any time thereafter. Because Defendant failed to provide notice of any fitness-for-duty certification requirement, it was precluded from requiring any type of fitness-for-duty certification as a condition of restoring Plaintiff. Powell, 2013 WL 3956377 at *8, 2013 U.S. Dist. LEXIS 111601 at *22 ("If... Defendant [employer] failed to make a timely, written request [for] a fitness-for-[duty] certification ... then Defendant was not entitled to require such a certification when Plaintiff's FMLA leave ended"). Defendant also was not permitted to delay restoring Plaintiff to employment pending the submission of any fitness-for-duty certification. See 29 C.F.R. § 825.312(e) ("An employer may delay restoration to employment until an employee submits a required fitness-for-duty certification unless the employer has failed to provide the notice required. ..."); see also Powell, 2013 WL 3956377 at *7, 2013 U.S. Dist. LEXIS 111601 at *19 ("An employer may delay or deny an employee's reinstatement for failure to provide a fitness-for-duty certification only if, in accordance with the regulations, the employer requested such a certification when it initially notified the employee that he was being placed on FMLA leave.").
In arguing for summary judgment, Defendant seemingly ignores these requirements, instead relying on a Third Circuit case, Budhun v. Reading Hospital & Medical Center, 765 F.3d 245 (3d Cir. 2014), for the proposition that "[i]f Plaintiff had not obtained from his physician during [his] 12 workweek [FMLA leave] period a medical certification that Plaintiff had recovered from his serious health condition to a degree that he was now physically capable of performing the essential duties of his sales representative position without restrictions, then ... with or without a replacement, Plaintiff's job protection would be lost and his employment subject to termination with the loss of his FMLA
Defendant's Policy Requiring Fitness-for-Duty Certification
Defendant seems to argue that any notice requirement was satisfied by the alleged existence of a "policy" requiring all sales representatives who have taken leave to obtain "a medical certificate that he ... is physically capable to return to work full duty so as to be able to perform the essential duties of the job without any restrictions." (Def. Opp. at 1 (emphases added).) But nowhere does the FMLA or its regulations permit this type of general policy to serve as the requisite notice of the standard fitness-for-duty certification, let alone the specific fitness-for-duty certification. Rather, as previously discussed, the regulations only permit an employer not to comply with the notice requirements for the standard fitness-for-duty certification if "the employer handbook or other written documents ... describing the employer's leave policies clearly provide that a fitness-for-duty certification will be required in specific circumstances (e.g., by stating that fitness-for-duty certification will be required in all cases of back injuries for employees in a certain occupation)." See 29 C.F.R. § 825.300(d)(3) (emphasis added). There is no evidence in the record that any such written "policy" existed here. Even if there were, Defendant still would have had to "provide oral notice [of the certification requirement in the written policy] no later than with the designation notice,"
Even assuming that Defendant's "policy" provided sufficient notice of a standard fitness-for-duty certification requirement, Plaintiff's February 5, 2013 medical evaluation and his February 7, 2013
Furthermore, even if Defendant's alleged general policy regarding medical certification sufficed to provide the requisite notice of the standard fitness-for-duty certification requirement, it still would not satisfy the FMLA's specific fitness-for-duty certification notice requirement. The latter required Defendant to "provide [Plaintiff] with a list of the essential functions of the employee's job no later than with the designation notice required by § 825.300(d)," id. § 825.312(b), and to indicate in the designation notice that the medical certification "must address the employee's ability to perform the essential functions of the employee's job," id. § 825.312(d). See also 73 Fed. Reg. 67934, 68030 (Nov. 17, 2008). There is no evidence that Defendant provided any such notice of the specific fitness-for-duty certification requirement by the applicable deadline of January 8, 2013. See supra at 223. Thus, the Court rejects Defendant's argument that the FMLA's notice requirements were satisfied by Defendant's purported "policy" requiring medical certifications attesting to the employee's ability to return to full duty and perform the essential duties of his/her job without restrictions.
January 25, 2013 Letter and Job Description
Defendant also argues that it satisfied both the standard and specific fitness-for-duty certification notice requirements with its January 25, 2013 letter to Plaintiff's
Prolonged Walking or Standing Are Not Essential Functions
Although not necessary to the Court's decision, for purposes of trial, the Court finds that there is no genuine factual dispute regarding whether "prolonged walking or standing" — the only physical restrictions certified by Plaintiff's doctors at issue here — were "essential functions" of Plaintiff's job as an On Premises Sales Representative for Defendant. They were not.
While neither the FMLA nor its implementing regulations define "essential function," Second Circuit case law interpreting that term in the context of the ADA is instructive. See, e.g., Daley v. Cablevision Sys. Corp., No. 12-CV-6316, 2016 WL 880203, at *7-8, 2016 U.S. Dist. LEXIS 28885, at *23-24 (S.D.N.Y. Mar. 7, 2016) (granting summary judgment in favor of defendant on plaintiff's FMLA claim on the basis, inter alia, of plaintiff's admissions, as to his ADA claims, that he could not perform essential functions of the job). As per these cases, "[e]ssential functions constitute `fundamental' duties to be performed in the position in question, but not functions that are merely `marginal.'" Daley, 2016 WL 880203 at *5, 2016 U.S. Dist. LEXIS 28885 at *13 (quotation marks omitted). "Although a court will give considerable deference to an employer's determination as to what functions are essential, there are a number of relevant factors that may influence a court's ultimate conclusion as to a position's essential functions." McMillan v. City of N.Y., 711 F.3d 120, 126 (2d Cir.2013). These factors include, among other things, whether "the reason the position exists is to perform that function," whether there are only "[a] limited number of employees available among whom the performance of that job function can be distributed," and whether "[t]he function [is] highly specialized so that the incumbent in the position is hired
Defendant claims that prolonged standing and walking were essential functions of Plaintiff's job as a sales representative. (See, e.g., Def. Mot. at 7.) It is undisputed that Plaintiff would either drive from one account establishment to the next and walk from his car into each one, or park his car and walk between the establishments (Pl. 56.1 ¶ 4; Def. 56.1 ¶ 5); that he would walk to the nearest Chase ATM to deposit cash and checks from his customer accounts (Def. 56.1 ¶ 5; Def. Opp. 56.1 ¶ 4; Pl. 56.1 ¶ 5); that he would pick up POS materials from Defendant's headquarters, load them into his car, and then remove them from his car and place them in prominent locations at each account location (Def. 56.1 ¶ 6; Def. Opp. 56.1 ¶ 4); and that on certain Fridays, he would push and pull a 40-pound sample taste kit on wheels into non-customer establishments in his territory (Def. 56.1 ¶ 7; Def. Opp. 56.1 ¶ 4). However, neither this evidence, nor any other evidence in the record, establishes that "prolonged walking or standing" were essential functions of Plaintiff's position. Rather, the record makes clear that these were, at most, marginal functions thereof.
Tellingly, the "complete [job] description" provided to Plaintiff's doctor by Sgro (D'Ablemont Decl. Ex. 4) does not mention or even implicate walking, standing, or any other physical skills or abilities. Rather, the emphasis in the description is on customer service-oriented functions. "Key Activities" of the sales representative position include, inter alia, "report[ing] daily to his/her supervisor in order to communicate all relevant market and customer information," "utiliz[ing] his/her PDA to complete and maintain all records of activities...," "cover[ing] his route itinerary in calling on his/her customers according to company standards, service policy and customer standards," "[e]xecut[ing] Company POS in line with prescribed company and supplier standards/requirements," "[c]ollect[ing] [c]ash" and managing "[b]ounced [c]hecks" and "delinquent accounts," "[s]triv[ing] to achieve Sales and Distribution goals set by manager by executing company portolio in buy and non-buy accounts," and "[r]espond[ing] immediately to potential product refusals, to avoid missed delivery issues and ensure timely merchandising to maximize customer satisfaction." (Id. Ex. 5 at 1.) Similarly, the "Required Knowledge/Skills/Abilities" section includes only "Industry knowledge," "Product/Brand Knowledge," "Business Math skills," "Customer Service skills," "Selling Skills/techniques," "Interpersonal (relationship building) skills," "Oral and written communication skills," "Computer skills," and "Time management/Organization." (Id. Ex. 5 at 2.) (See also id. Ex. 10 at ECF 4 (in employer section of FMLA package, listing only "[d]riving" as "[e]mployee's essential job functions"); id. Ex. 12 at ECF 5 ("Employer's Statement" section of short-term disability form left blank where it requests designation of "the strength demand ... which best describes the Employee's job").)
The only evidence cited by Defendant to support the allegedly undisputed fact that "[p]rolonged walking and standing are the primary essential duties of Plaintiff's sales
(D'Ablemont Decl. Ex. 19 at 81:2-11.) No reasonable jury could conclude, on the basis of this unilluminating and confused testimony, that either prolonged walking or standing were essential duties of Plaintiff's job as a sales representative, particularly not in light of the duties and skills set forth in Defendant's written job description. Indeed, the most physical aspect of Plaintiff's job, as described by Defendant, seems to be the process of loading potentially heavy POS items into and out of Plaintiff's car (Def. 56.1 ¶ 6; Def. Opp. 56.1 ¶ 4), and pushing and pulling an approximately 40-pound sample taste kit on wheels to and from Plaintiff's car and non-customer establishments (Def. 56.1 ¶ 7; Def. Opp. 56.1 ¶ 4).
Thus, the record makes clear that prolonged walking and standing were at best marginal, rather than essential, functions of Plaintiff's job. At trial, Defendant will be precluded from arguing that these activities were essential functions of Plaintiff's position as a sales representative.
Factual Dispute as to Whether Plaintiff Remained Otherwise Unable to Perform Essential Functions
However, despite Defendant's failure to comply with the FMLA's notice requirements and the undisputed fact that prolonged walking and standing were not essential functions of Plaintiff's position,
Evidence in the record — albeit post-dating the expiration of Plaintiff's FMLA leave on February 18, 2013 — creates a factual dispute as to whether Plaintiff was, in fact, able to return to work and perform the essential functions of his job on that date. The April 4, 2013 letter from Plaintiff's doctor stated that Plaintiff "was unable to work from 11/26/2012 till 2/25/2013." (See D'Ablemont Decl. Ex. 16.) The March 5, 2013 certificate of Plaintiff's doctor stated that Plaintiff "will be able to resume work" on "3/6/13." (See id. Ex. 18;
Plaintiff alleges that "under [the] NYCHRL, Defendant discriminated against [Plaintiff] when it did not allow [him] to return to his position when he was physically able to perform the essential functions of his job." (Pl. Mot. at 1; see also Pl. Opp. at 1.)
To state a claim for disability discrimination under the NYCHRL, a plaintiff must show that: (1) his employer was subject to the NYCHRL; (2) he was disabled within the meaning of the NYCHRL; (3) he was otherwise qualified to perform the essential functions of his job, with or without reasonable accommodation; and (4) he suffered an adverse employment action because of his disability. See Kendall v. Fisse, 149 Fed.Appx. 19, 21 (2d Cir.2005) (summary order); see also Fernandez, 159 F.Supp.3d at 365-66. The only element in dispute here is the third one: whether Plaintiff was qualified to perform the essential functions of the job, with or without reasonable accommodation.
At trial, however, Plaintiff will not be permitted to rest his NYCHRL claim on Defendant's alleged failure to engage in a good faith interactive process to identify what reasonable accommodations were appropriate to permit Plaintiff to return to work. (See, e.g., Pl. Mot. at 8; Pl. Opp. at 5-7.) As an initial matter, this claim fails because it is undisputed that Plaintiff did not request a reasonable accommodation at the time Defendant refused to reinstate him, nor does he seek one now; in fact, Plaintiff acknowledged on the record before the Court that his NYCHRL claim is "based on Defendant's decision not to allow Plaintiff to return to his former job (when Plaintiff was physically able to perform the essential functions of his job),"
Moreover, Plaintiff's argument that "the failure to engage in a good faith, individualized interactive process is itself a violation of the law and gives rise to an independent claim" (Pl. Opp. at 6) misstates the law. Indeed, the primary case upon which Plaintiff relies, and upon which the other cases cited by Plaintiff rely
Plaintiff attempts to characterize the holding in Jacobsen as "[o]verrul[ing] [Phillips] on other grounds ... in that the failure to engage in the interactive process does not automatically lead to summary judgment, but remains required for a defendant." (Pl. Opp. at 6 n.2.) But this characterization misstates the import of that decision, which holds that "the employee cannot obtain a favorable jury verdict or summary judgment solely based on the employer's failure to engage in an interactive process," and that "the employer's decision to engage in or forgo an interactive process is but one factor to be considered in deciding whether a reasonable accommodation was available for the employee's disability at the time the employee sought accommodation." Jacobsen, 988 N.Y.S.2d 86, 11 N.E.3d at 169 (emphasis added). Indeed, one of Plaintiff's cited cases — LeBlanc (see Pl. Opp. at 6) — properly characterized the Jacobsen decision as "limit[ing] Phillips, in holding that  an employer's failure to engage in an interactive process is not a per se violation of the NYCHRL, but is nonetheless an important consideration when evaluating a failure to accommodate claim." LeBlanc, 2014 WL 1407706, at *18, 2014 U.S. Dist. LEXIS 50760, at *542014 WL 1407706 (citing Jacobsen, 22 N.Y.3d 824, 988 N.Y.S.2d 86, 11 N.E.3d 159).
Contrary to Plaintiff's argument, therefore, the failure to engage in a good faith individualized interactive process is
For the foregoing reasons, the Court DENIES both parties' motions for summary judgment, as to both Plaintiff's FMLA interference and NYCHRL claims. The parties shall proceed to trial on those claims. At trial, Defendant will be precluded from arguing that (1) prolonged walking or standing were essential functions of Plaintiff's sales representative position, and (2) its January 25, 2013 letter to Plaintiff's doctors constituted notice of any fitness-for-duty certification requirement under the FMLA. Plaintiff will be precluded at trial from pursuing his NYCHRL claim on the basis of Defendant's failure (1) to provide reasonable accommodation or (2) to engage in a good faith interactive process to identify such an accommodation. The parties shall submit a proposed joint pre-trial order no later than November 4, 2016.
Because the parties have cross-moved for summary judgment, there are four factual statements before the Court: Plaintiff's Local Rule 56.1(a) Statement of Materials Facts in support of Plaintiff's motion for summary judgment ("Pl. 56.1") (Dkt. 55-1); Defendant's Response to Plaintiff's Statement of Material Facts ("Def. Opp. 56.1") (Dkt. 62); Defendant's Rule 56.1 Statement in support of Defendant's motion for summary judgment ("Def. 56.1") (Dkt. 46); and Plaintiff's Rule 56.1(b) Statement of Undisputed Material Facts in response to Defendant's Rule 56.1 statement ("Pl. Opp. 56.1") (Dkt. 53).
Unless otherwise noted, a standalone citation to a Rule 56.1 Statement denotes that the Court has deemed the underlying factual allegation undisputed. Compare Holtz v. Rockefeller & Co., 258 F.3d 62, 73-74 (2d Cir.2001) ("[W]here there are no citations or where the cited materials do not support the factual assertions in the [56.1] Statements, the Court is free to disregard the assertion" and review the record independently.) (quotation marks omitted), with Amnesty Am. v. Town of W. Hartford, 288 F.3d 467, 470 (2d Cir.2002) (Rule 56 "does not impose an obligation on a district court to perform an independent review of the record to find proof of a factual dispute."), and Monahan v. N.Y.C. Dep't of Corrections, 214 F.3d 275, 292 (2d Cir.2000) ("While the trial court has discretion to conduct an assiduous review of the record in an effort to weigh the propriety of granting a summary judgment motion, it is not required to consider what the parties fail to point out.") (quotation marks omitted). Any citations to a party's Rule 56.1 Statement incorporates by reference the documents cited therein, though where relevant, the Court has cited directly to those underlying documents. In connection with their respective summary judgment papers, the parties submitted many of the same exhibits. Rather than using parallel citations to the same document, in most instances, for its convenience, the Court has cited to those attached to Defendant's papers.
All citations to "Def. Mot." refer to Defendant's Memorandum of Law in Support of Its Motion for Summary Judgment. (Dkt. 45.) All citations to "Pl. Opp." refer to Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment (Dkt. 54), and all citations to "Def. Reply" refer to Defendant's Reply Memorandum of Law in Further Support of Its Motion for Summary Judgment (Dkt. 48).
Moreover, a document from the private insurer indicates that Plaintiff's "[b]enefits ceased as of 02/18/2013" because Plaintiff "was released to return to work according to medical evidence on file" (Supp. D'Ablemont Decl. Ex. C) — medical evidence which Defendant claims was, in fact, the disability form in question (Def. Opp. 56.1 ¶ 20). In other words, despite the convoluted history of Plaintiff's FMLA leave, what is clear is that, as of February 18, 2013, when Plaintiff's FMLA leave expired, the only medical evidence Defendant had was the February 5, 2013 letter stating that Plaintiff could return to work "full time, ... [but] should refrain from any prolonged walking or standing, running or jumping." (Def. 56.1 ¶ 26.)
However, the Court's conclusions regarding the February 5, 2013 medical evaluation and February 7, 2013 letter indicating Plaintiff's intent to return would apply equally to February 18, 2013, the first full workday after the end of Plaintiff's FMLA leave. While Defendant argues that Plaintiff did not request his job back on that day, but rather, began receiving unemployment compensation payments of $405 per week, and in fact, made no subsequent requests to return to work after February 7, 2013 (Def. 56.1 ¶¶ 30, 38), Defendant has failed to demonstrate that Plaintiff was required to make such an explicit request.
The FMLA stipulates that "[a]n employer may require an employee on FMLA leave to report periodically on the employee's ... intent to return to work," 29 C.F.R. § 825.311(a) (emphasis added), but the employer's "obligations [under the FMLA] continue if an employee indicates he ... may be unable to return to work but expresses a continuing desire to do so," id. § 825.311(b). There is no evidence in the record that Defendant required its employees to periodically report on their intent to return to work from FMLA leave. And Plaintiff's expressions of his intent to return to work, both on December 26, 2012 and on February 7, 2012, imposed a continuing obligation on Defendant to comply with the FMLA's provisions, id. including returning Plaintiff to "the same position [he] held when leave commenced, or to an equivalent position, ... even if [Plaintiff] ha[d] been replaced or his ... position ha[d] been restructured to accommodate [his] absence," id. § 825.214. Indeed, the record evidence makes clear that Defendant was aware of Plaintiff's intention to return to work as of February 18, 2013, as Defendant's "Director HR" Sgro signed a disability form on February 7, 2013, which stated in the "Claimant's Statement" section that Plaintiff "expect[ed] to return to work" on February 18. (See D'Ablemont Decl. Ex. 18 (Plaintiff mistakenly listed 2012 as year in both his expected return date and his date of signature, but both Sgro's signature and physician's signature on form were dated 2013).)
Here, the January 25, 2013 letter ambiguously requested that Plaintiff's doctor inform Defendant of "any restricted physical activity," instead of directing the doctor to specifically evaluate and certify whether Plaintiff could perform the functions listed in the job description. Thus, as in Budhun, it was Defendant's "unilateral determin[ation]" that Plaintiff "could not perform an essential function" of his position, rather than the evaluation of Plaintiff's doctor, that caused Defendant to refuse to reinstate Plaintiff to his same, or an equivalent, position. Id. at 255 (vacating summary judgment that had been rendered in employer's favor).