Lintas, New York, 913 F. Supp. 295, 301 (S.D.N.Y. 1996) (Sweet,
J.) (plaintiff did not establish a prima facie case of discrimination in
part because he admitted that he was aware of no basis for his
Plaintiff's mere unsubstantiated assertion of discrimination is
inadequate to show circumstances giving rise to an inference of
discrimination. Norton v. Sam's Club, 145 F.3d 114, 119 (2d Cir. 1998)
("a jury cannot infer discrimination from thin air"). As the Second
Circuit has stated, "[t]o allow a party to defeat a motion for summary
judgment by offering purely conclusory allegations of discrimination,
absent any concrete particulars, would necessitate a trial in all Title
VII cases." Meiri, 759 F.2d at 998. Summary judgment is therefore granted
with respect to this claim.
III. Family and Medical Leave Act Claim
Pesok claims that he was entitled to FMLA leave because of a back
injury that presented itself while he was out of work due to a sprained
ankle. He alleges that he was denied this leave despite the fact that he
"repeatedly requested medical leave in person and via telephone." (Pl.'s
Mem. Opp. Mot. Dismiss [sic] at 11.)
To state a valid claim under the FMLA, Pesok must plead facts showing
that 1) he was an eligible employee under the FMLA; 2) Hebrew Union is a
covered employer, 3) he was entitled to leave; and 4) he gave adequate
notice to Hebrew Union of his intention to take leave. Slaughter v. Am.
Bldg. Maint. Co. of New York, 64 F. Supp.2d 319, 324 (S.D.N.Y. 1999)
(Sweet, J.). Here, plaintiff has not established a prima facie case
because he has not met his burden of proof with respect to any element of
his FMLA claim.
Pesok lost his job pursuant to Hebrew Union employment policy on August
23, 2000, because he failed to report to work or contact his supervisor
for three days after his paid vacation ended. When plaintiff finally gave
notice of his back condition on August 28, 2000, he was no longer
employed by Hebrew Union. Plaintiff has therefore failed to show that he
was an eligible employee entitled to leave, the first and third elements
of his prima facie case.*fn9
In addition, Pesok has not alleged facts to show that Hebrew Union is a
covered employer under the FMLA. The statute defines "employer" as "any
person engaged in commerce or in any industry or activity affecting
commerce who employs 50 or more employees for each working day during
each of 20 or more calendar workweeks in the current or preceding
calendar year." 29 U.S.C. § 2611(4) (2002). While Hebrew Union may be
a covered employer, plaintiff has not alleged any facts with regard to
this issue, and has therefore failed to meet his burden of proof on this
essential element of his claim.
Finally, as alluded to above, Pesok has failed to show that he gave
adequate notice to Hebrew Union of his intention to take leave. Where a
qualifying reason for FMLA leave is unforeseeable, the FMLA requires that
an employee notify his or her employer "as soon as practicable."
Slaughter, 64 F. Supp.2d at 325 (citing 29 C.F.R. § 825.303(a)). The
Department of Labor's regulations interpret this language to mean "as
soon as practicable under the facts and circumstances of the particular
case" and the regulations further explain that "[i] t is expected that an
employee will give notice to the employer within no more than one to two
working days of learning the need for leave, except in extraordinary
circumstances where such notice is not feasible." Id. This does not
necessarily require letting an employer know of the need for leave in
advance, but simply obligates an employee to inform his or her employer
"as soon as [the employee] [i]s reasonably able." Id. at 327.
Defendant is not liable for failure to grant Pesok additional leave
after his vacation ended because Pesok has not shown that he provided
defendant with timely notice of the need for additional leave. Pesok did
not notify Hebrew Union that he had a back problem until August 28,
2000, one full work week after he was supposed to return to work. As
plaintiff has presented no evidence that he was unable to contact Hebrew
Union prior to August 28, 2000, he has failed to demonstrate that his
notice was adequate under the circumstances. See id. at 329 (notice
inadequate where employee gave notice three days after he stopped
reporting for work, and nothing in record indicated extraordinary
circumstances preventing employee from contacting employer earlier).*fn10
Pesok has failed to establish a prima facie case under the FMLA.
Accordingly, Hebrew Union is entitled to judgment as a matter of law.
Plaintiff fails to state any claim upon which relief may be granted.
Defendant's motion for summary judgment is granted in its entirety and
plaintiff's suit is dismissed.
IT IS SO ORDERED.