The SDHR's finding was adopted by the EEOC on October 13, 1998
as part of its "right to sue" letter. (Def's Exh. 7.) Ms.
Kosakow's 90-day time period for filing federal lawsuit based on
the EEOC letter expired on January 1999. Ms. Kosakow failed to
file such an action. Ms. Kosakow also chose not to appeal the
SDHR's decision by bringing an Article 78 proceeding in New York
State Supreme Court.
After the time to file a disability suit under the EEOC "right
to sue" letter and to file an appeal under Article 78 had
expired, Ms. Kosakow commenced the instant action, alleging that
her termination violated FMLA and ERISA. (Id. at Exh. 8).
II Discussion of the Law
Plaintiff brings a claim against the Practice for its failure
to return her to her same, or an equivalent, position following
her protected medical leave of absence, in violation of Section
102 of FMLA, 29 U.S.C. § 2615. In the alternative, Ms. Kosakow
alleges that the Practice failed to pay her severance benefits in
violation of ERISA, 29 U.S.C. § 1132(a)(1)(B). She seeks
injunctive relief in the form of reinstatement of her job and/or
Summary judgment is appropriate where there are no genuine
issues of material fact and the movant is entitled to judgment as
a matter of law. See Fed. R.Civ.P. 56(c); see Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-50, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986). A genuine issue for trial exists if, based on
the record as a whole, a reasonable jury could find in favor of
the non-movant. See Liberty Lobby, 477 U.S. at 248, 106 S.Ct.
2505. In making its determination, the court must resolve all
ambiguities and draw all reasonable inferences in favor of the
non-movant. See id. at 255, 106 S.Ct. 2505. However, to defeat
summary judgment, the non-moving party must go beyond the
pleadings and "must do more than simply show that there is some
metaphysical doubt as to the material facts." Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct.
1348, 89 L.Ed.2d 538 (1986).
A. Plaintiff's FMLA Claim
The FMLA was enacted because Congress believed "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 enacted substantive
provisions entitling eligible employees to temporary leave, to
certain continuing benefits, and to reinstatement . . . and made
it `unlawful for any employer to interfere with, restrain, or
deny the existence of or the attempt to exercise, any right
provided under [subchapter I of the Act].'" Sarno v.
Douglas-Elliman, 183 F.3d 155, (2d Cir. 1999) (quoting
29 U.S.C. § 2615(a)(1)). Employers may not "use the taking of FMLA leave as
a negative factor in employment actions, such as hiring,
promotions or disciplinary actions." 29 C.F.R. § 825.220(c). FMLA
tries to accomplish these goals "in a manner that accommodates
the legitimate interests of employers." 29 U.S.C. § 2601(b)(3).
Any eligible employees affected by such unlawful conduct are
entitled to a private right of action for damages or equitable
relief. See 29 U.S.C. § 2617(a)(1).
In her Complaint, Plaintiff seeks relief under Section 2615 of
the FMLA, which reads in relevant part:
(a) Interference with Rights
(1) Exercise of Rights
It shall be unlawful for any employer to interfere
with, restrain, or deny the exercise of or the
attempt to exercise, any right provided under this
29 U.S.C. § 2615(a)(1).