The opinion of the court was delivered by: Conner, Senior D.J.
Plaintiff Peter Esser brings this action against Rainbow Advertising Sales Corp. d/b/a Cablevision Advertising Sales ("RASCO") for interference and retaliation under 29 U.S.C. §§ 2614 and 2615 of the Family and Medical Leave Act ("FMLA"). Defendant moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons stated herein, defendant's motion is granted as to the interference claim and denied as to the retaliation claim.
Plaintiff was employed by RASCO in January 1998 as an Account Executive and was working under the supervision of manager Greg McNally. (Esser Dep. at 11-13.) Esser's duties included selling advertisements for local cable stations. (Esser Aff. ¶ 3.) During the first quarter of 2004, Esser was placed on a "recovery plan" designed to improve his poor sales record. (Esser Dep. at 217.) On or around May 10, 2004,*fn1 McNally completed an evaluation of Esser's performance that recommended Esser remain on the recovery plan for an additional thirty days with the potential to be placed on a "performance improvement plan" if his sales still had not improved.*fn2 (Id. at 217-19.) Prior to this evaluation, Esser learned that he was going to need surgery on his wrists for carpal tunnel syndrome. (Esser Aff. ¶¶ 4-6.) RASCO approved twelve weeks of medical leave to run from June 12, 2004 through September 4, 2004. (Esser Dep. at 219-20; Esser Aff. ¶¶ 4, 5.)
When Esser and McNally met regarding the evaluation, Esser informed McNally of his medical leave. (Esser Dep. at 219-20.) Apparently, McNally did not know for certain that plaintiff would require this time off until this meeting. (Id. at 219.) Esser, having previously been placed on a recovery plan in 2002 for poor sales, id. at 215, was concerned that his sales performance would be evaluated during his FMLA leave. (Id. at 220-21.) On May 27, 2004, Esser met with John Oleynick, Vice President of Sales at RASCO, who allegedly stated that Esser's sales performance under the thirty day "recovery plan" would not be evaluated while he was on leave.*fn3 (Esser Aff. ¶¶ 9, 10.) On June 12, 2004, plaintiff began his FMLA leave. (Def. Rule 56.1 Stmt. ¶ 13.)
On July 16, 2004, plaintiff attended an Elton John concert at Radio City Music Hall ("Radio City") with a friend, Brad Joblin. (Id. ¶ 15.) As an employee of Cablevision, Esser was entitled to discounted parking if he had his parking ticket validated at an employee entrance to Radio City; Esser and Joblin went to the 51st Street entrance for this reason. (Esser Aff. ¶ 13.) Esser presented his Cablevision identification card to the guard and asked if he could enter Radio City through the stage door. (Esser Dep. at 58.) The guard granted Esser permission to enter but would not allow Joblin to enter because he was not a Cablevision employee. (Id.) Joblin was somehow affiliated with Clear Channel Communications ("Clear Channel"), whose offices are located within Radio City and who served as a sponsor for the concert. (Id. at 58-59; Esser Aff. ¶ 16.) Esser asked if he could enter to obtain clearance from Clear Channel for Joblin to also enter through the stage door. (Esser Aff. ¶ 16.) It is disputed whether the guard permitted Esser to enter with the understanding that Esser was going only to Clear Channel's offices on the fourth floor and no where else in the building or whether the guard provided Esser unrestricted access. (Def. Rule 56.1 Stmt. ¶¶ 21, 22; Pl. Rule 56.1 Stmt. ¶¶ 20, 25; Def. Resp. Rule 56.1 Stmt. ¶ 20; Esser Dep. at 73-74; Esser Aff. ¶¶ 16, 18, 19, 20.) It is also disputed whether plaintiff was familiar with the backstage areas at Radio City and knew how to get to the Clear Channel offices. (Pl. Rule 56.1 Stmt. ¶¶ 27, 28; Def. Resp. Rule 56.1 Stmt. ¶¶ 19, 20.)
Esser went to the Clear Channel offices but was unable to obtain authorization for Joblin. (Def. Rule 56.1 Stmt. ¶ 23.) Esser returned to the elevator and attempted to find the way to his seat from the stage door entrance. (Esser Aff. ¶ 22.) He apparently used the restroom, asked for directions, again attempted unsuccessfully to locate his seat and eventually returned to the stage door where Joblin was waiting. (Id. ¶¶ 24, 25.) When Esser returned he and Joblin agreed to split up: Esser would enter through the stage door and Joblin through the public entrance. They planned to meet at their seats "for convenience sake." (Id. ¶ 26.) This decision to split up was apparently based on the fact that since security had already permitted Esser to enter through the stage door, he could avoid missing any of the concert, which would result if he were forced to wait on the general admission line. (Id.) Plaintiff again approached the guard for permission to enter through the stage door entrance to take his seat and was again granted permission, id. ¶ 27, but he did not ask the guard for directions to his seat. (Def. Rule 56.1 Stmt. ¶ 30.) It is disputed whether the guard permitted Esser only to go to his seat or whether the guard gave no limiting instruction. (Pl. Rule 56.1 Stmt. ¶ 35; Def. Resp. Rule 56.1 Stmt. ¶ 35.)
Plaintiff got back on the elevator and went to the third floor even though his seat was located on the stage level, one floor below. (Def. Rule 56.1 Stmt. ¶ 29.) Plaintiff claims that he mistakenly got on an elevator going up, and that it was so crowded that he got off at the first floor at which the elevator stopped which was the third floor. (Esser Aff. ¶ 28.) Elton John's hospitality suite was located on the third floor. (Def. Rule 56.1 Stmt. ¶ 34.) Plaintiff disclaims knowledge of this fact. (Esser Aff. ¶ 33.) According to plaintiff, he was on the third floor for only a short while and was never approached by a security officer. (Id. ¶ 30.) When he realized that he was on the wrong floor, he remained by the elevator waiting for the next available elevator, which he eventually took to the "ST" level, where he went to the bathroom before proceeding to his seat in the orchestra section. (Id. ¶¶ 29, 32, 34, 37.) He states that security guards never stopped him on his way to his seat. (Id. ¶ 40.)
Defendant claims that when Esser was on the third floor he was confronted by security officer Curtis Robinson who had been informed by another concert official that Esser did not belong in the area. (Def. Rule 56.1 Stmt. ¶¶ 37, 38.) Robinson then went to secure the door to Elton John's dressing room, and when he returned to speak to Esser, Esser was gone. (Id. ¶¶ 39-40.) Robinson radioed the security staff that an unidentified person was trespassing on the third floor. (Id. ¶ 41.) This message was apparently received by Anthony Ermillo, a security officer guarding the "wing door," who watched Esser go to his seat in the orchestra section and, with other officers, watched him throughout the concert. (Id. ¶¶ 43, 44.)
After the concert ended, Esser and Joblin exited through the public entrance and then returned to the stage door entrance on 51st Street for the stated purpose of locating the validated parking stub that Esser had lost. (Def. Rule 56.1 Stmt. ¶ 45; Esser Aff. ¶ 43.) Apparently, Esser was followed out of the building by Security Supervisor Olga Mercado, and when plaintiff returned to the stage door, Mercado ordered that plaintiff be detained. (Def. Rule 56.1 Stmt. ¶¶ 46, 47.) Mercado had apparently informed George Haskell, then-Vice President of Security for Radio City, of the incident that evening. Haskell told Mercado to remove Esser from the building. (Id. ¶¶ 48, 49.) Plaintiff returned to the stage door, inquired about his validated parking ticket and was asked to present his concert ticket and identification. (Esser Aff. ¶ 45.) Plaintiff asserts that he provided these items, they were returned to him and he left Radio City without incident. (Id. ¶¶ 45, 46.) Mercado, nevertheless, prepared an incident report. (Def. Rule 56.1 Stmt. ¶ 50.)
On July 19, 2004, Haskell informed Paul Ryan, Director of Corporate Security at Cablevision, what happened at the concert because Esser was a Cablevision employee. (Id. ¶ 53.) Ryan contacted John Brian Gault, Executive Vice President of Local Advertising Sales at RASCO, who in turn called Oleynick and asked Oleynick to question Esser about the incident. (Id. ¶¶ 54, 56.) Defendant asserts that Haskell and Gault did not at this point have any knowledge of plaintiff's medical leave. (Id. ¶¶ 51, 55.)
Oleynick called Esser on July 19, 2004 and asked "What happened at the Elton John concert?" (Esser Aff. ¶ 47.) Esser told Oleynick that he was permitted to enter the backstage areas at Radio City through the stage door after his parking ticket had been validated, but his friend was not permitted to enter and that he had contact with security at the end of the evening. (Id. ¶ 48.) Esser did not tell Oleynick that he had gone to the other floors. (Def. Rule 56.1 Stmt. ¶ 59.) Esser claims that he asked Oleynick why he was making this inquiry and Oleynick avoided answering, ending the phone call by stating that he had another call. (Esser Aff. ¶ 49.)
Oleynick and Gault decided to terminate plaintiff based on the reports furnished by Radio City and from what they determined to be Esser's "lack of candor during his telephone call with Mr. Oleynick." (Def. Rule 56.1 Stmt. ¶¶ 63-66.) On July 26, 2004, Oleynick and Elena Ferrano, Employee Relations Manager at Cablevision, called Esser on a conference call to inform him that he was being terminated, but he did not answer the phone. (Id. ¶ 67; Esser ...