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August 22, 2003


The opinion of the court was delivered by: Thomas Griesa, Senior District Judge


Plaintiff Carlton Porter, Jr. claims that defendant New York University School of Law ("NYU") wrongfully terminated his employment following a work-related back injury. Porter brought this lawsuit against NYU, Frank Conti, and Leonard Pisano. Conti and Pisano were plaintiff's supervisors at NYU.

Plaintiff asserts causes of action for failure to restore him to his position as a security guard following medical leave, in violation of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2612 et seq., and for disability discrimination in violation of the New York Human Rights Law, N.Y. Executive [ Page 2]

Law § 296(1)(a), and the New York City Administrative Code, § 8-107(1)(a).

Defendants NYU and Conti move for summary judgment claiming that plaintiff's claims are barred by their respective statutes of limitations. They also argue that, even if the claims are not time-barred, they present no triable issues of fact. The court has examined both the statute of limitations issues and the merits. Defendants are entitled to summary judgment on all issues.

It should be noted that NYU states that Pisano does not join in the present motion. Apparently, Pisano left NYU's employ in 1996. NYU claims that there is no evidence that Pisano has been served with a complaint. Porter's brief is silent on this issue. Court records indicate that a complaint was served on Pisano on July 8, 1999 by delivering a copy of the summons and complaint to a person authorized to accept service for NYU. A copy was also mailed to Pisano at NYU. NYU previously submitted both an Answer and a Local Rule 1.9 Statement on behalf of all defendants on July 23, 1999. Counsel for NYU has repeatedly stated in previous correspondence to the court that it represents the defendants. Summary judgment should be granted for all defendants and the case dismissed. [ Page 3]


Porter began work as a security guard at NYU in August 1993. It is apparent from work records submitted by defendant that Porter was warned on several occasions before his injury about incidents of tardiness and absenteeism. Porter disputed those incidents, and no disciplinary action appears to have been taken with regard to them. The present case concerns incidents that occurred after Porter injured his back in January 1995. NYU dismissed Porter on July 2, 1996 citing Porter's alleged abuse of sick leave and, secondarily, his allegedly poor attendance. Porter argues that he was entitled to medical leave under the FMLA. He contends that the real reason for his dismissal was discrimination against him on account of his alleged disability, caused by his injury. It is therefore necessary to discuss in some detail both his work record following this injury and his application for FMLA leave.

(1) Plaintiff's Work Record

On January 13, 1995 Porter suffered a back injury after falling at work. He was sent from NYU's health center to St. Luke's Hospital, where an emergency room doctor examined him. As a result of his injuries, he did not immediately return to work. [ Page 4]

Exactly when Porter returned to work is unclear. Records indicate that he received worker's compensation benefits from the date of the injury until April 12, 1995. Porter states in his affidavit that he returned to work on that date. Internal memoranda between Conti and Rinko Hemnes, NYU's human resources manager, conflict with the worker's compensation records and Porter's affidavit. One memorandum dated April 19, 1995 indicates that Porter returned from sick leave on March 9, 1995 but had accumulated numerous absences since his return.

On April 23, 1995 Porter again stopped reporting to work, apparently on the advice of his doctor. NYU's records indicate that he received worker's compensation until he returned to work on May 24, 1995. No medical records have been submitted by the parties regarding this period of time. Porter's doctor sent NYU a note dated May 22, 1995 that stated: "Mr. Carlton Porter has been under my care for the past month. He has improved greatly and can return back to work May 23, 1995 with no limitations. He will still be receiving treatment 3 x week." This note was followed by a second note dated May 24, 1995 that stated: "Mr. Cariton Porter is able to return back to work today May 24th 1995. His diagnosis is low back pain and para spinal muscle spasm. His prognosis has improved greatly." [ Page 5]

On June 16, 1995 Pisano, the Associate Director for NYU's facilities, wrote to Porter. This letter is at the root of Porter's claim of disability discrimination. Porter contends that it is evidence of ongoing discrimination against him that culminated in his termination. In relevant part, the letter said:

It has been brought to my attention that your attendance has not improved. Your record indicates you have used all your allotted sick time and vacation time. . . . All absences since your return from disability must be substantiated by a medical doctor's report attesting to your inability to come to work and perform your duties. I must receive this report no later than Friday, June 23, 1995. Failure to produce this documentation will result in disciplinary action due to abuse of sick leave.
Porter replied in a long letter dated June 23, 1995. Plaintiff stated that he had been "placed on disability" from April 23, 1995 "after sustaining a back injury while on duty." This appears to be a reference to Porter's injury in January. Porter stated that his disability leave ended on May 24, 1995 and that it was therefore inappropriate to count his accrued vacation time against that period of absence. Plaintiff also contested other absences after May 24 that Pisano alleged in his letter. No disciplinary action appears to have resulted from this exchange and it appears that plaintiff continued to work in his regular capacity and without incident through the remainder of 1995. [ Page 6]

(2) Plaintiff's FMLA Application

Sometime in 1996 Porter began to visit a chiropractor, Dr. Matthew Pantofel. Porter states that he re-injured his back while at work on March 18, 1996. It is unclear whether Porter's chiropractic visits preceded this new injury or were prompted by it. On March 27, 1996 plaintiff ceased reporting to work and again collected worker's compensation. Records indicate that plaintiff received worker's compensation until June 4, 1996.

Porter's worker's compensation benefits were cut off on that date because a medical examination showed him fit to return to work. This same medical examination was also used to evaluate an application Porter made for medical leave under the FMLA. The details of the application are as follows.

On April 10, 1996 Porter submitted a note from Dr. Pantofel to NYU. The note reads in full:

Carlton Porter was in my office today for treatment of injuries sustained on 1-13-95. He continues to come in for treatment every day. At this time he is unable to work until further notice.
There is some dispute about how Porter submitted this note to NYU, but no dispute that NYU received it. Porter states that he gave the note to his [ Page 7]

immediate supervisor, Sergeant Joseph Quinlivan. NYU has submitted a declaration by Quinlivan in which he states that he does not recall receiving anything from Porter. A declaration has also been submitted for Margaret Beattie, a benefits coordinator for NYU. She states that Porter sent the letter by fax. Beattie also states that she spoke to Porter by phone that same day. Such a conversation is corroborated by handwritten notes dated April 10 that Beattie apparently made following the call. In any event, plaintiff submitted the letter to NYU.

According to her notes, Beattie also spoke by phone with Porter on the following day, April 11. Her notes state:

I did tell him it appears that letter was not adequate for purposes of establishing his current medical/disability status. Told him Risk Mgt. must receive full detailed report from physician and to call P. Lazarus at Risk asap for further instructions, etc.
(Emphasis in original.) "Risk Mgt." refers to Risk Management Planning Group, NYU's worker's compensation insurance carrier. Peggy Lazarus is an employee of Risk Management Planning Group. Porter does not refer to this conversation in his statement of issues of material facts in dispute.

Beattie instructed NYU's human resources manager, Rinko Hemnes, to send Porter an "FMLA Kit" and such a kit was sent. The kit [ Page 8]

contained a Request for Leave of Absence form, Certification of Physician or Practitioner form, a summary of FMLA rights, a set of instructions and the FMLA statutory definition of a "serious health condition." The court has been provided copies of these forms but not of the general instructions.

On April 12, 1996 Conti wrote to Porter to confirm that he had "notified the University's Benefits Office of your need to take medical leave due to a serious medical condition that makes you unable to perform the essential functions of your job." The letter directly referred to the FMLA and directed plaintiff as follows:

Please complete Section 1 and sign the enclosed Request for Leave of Absence, attach the Certification of Physician or Practitioner completed and signed by your attending Physician/Practitioner, and return to me by Monday, May 6, 1996. (The note from your practitioner faxed to the Benefits Office does not contain the probable duration of condition and detailed regimen of treatment to be prescribed, and is deemed insufficient by the Benefits Office as verification of your disability.)
The letter further stated that Porter would have to notify NYU prior to each injury-related absence unless he provided notice of the specific period his physician advised him to remain away from work.

On May 8, 1996 Conti sent Porter a second letter that reiterated these instructions. The letter further warned that "Without these forms, we will not be able to process your request for leave, and this will leave us with no [ Page 9]

choice but to treat your absence as unauthorized, and to terminate your employment."

On May 15, 1996 plaintiff submitted the Request for Leave of Absence and the Certification of Physician or Practitioner. However, Porter left the Request for Leave of Absence form incomplete. He did not indicate the reason for his requested FMLA leave from among the options listed on the form. The Certificate of Physician or Practitioner is signed by both plaintiff and his chiropractor and dated May 15, 1996. A box was marked indicating that plaintiff was unable to perform work of any kind. The date plaintiffs condition commenced was given as January 13, 1995. The probable duration of the condition was stated to be three to six months. A regimen of chiropractic ...

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