The opinion of the court was delivered by: Conner, Sr. D.J.
Plaintiff Tina Roberts brought this action pursuant to the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601 et. seq., the New York State Human Rights Law, EXEC. LAW §§ 296, et seq. ("NYSHRL") and the Consolidated Omnibus Budget Reconciliation Act of 1985, 29 U.S.C. §§ 1161, et seq. ("COBRA") against her former employer, defendant Group Handling, Inc. ("GHI"). Plaintiff alleged that defendant: (1) interfered with her rights guaranteed under the FMLA; (2) discriminated against her on the basis of her disability in violation of NYSHRL; (3) failed to provide her with continuing group health plan coverage in violation of COBRA; and (4) retaliated against her for exercising her rights guaranteed under the FMLA. Defendant moved to dismiss plaintiff's first, third and fourth claims pursuant to FED. R. CIV. P. 12(b)(6), and in an Opinion and Order dated March 11, 2005, we granted defendant's motion with respect to plaintiff's third and fourth causes of action. Defendant now moves for summary judgment on plaintiff's remaining two claims, namely: (1) the first cause of action for interference with plaintiff's rights guaranteed under the FMLA; and (2) the second cause of action for disability discrimination in violation of NYSHRL. In addition, plaintiff moves to strike certain paragraphs of defendant's Rule 56.1 Statement and its annexed exhibits, as well as certain paragraphs of the affidavit of John Barrella ("Barrella"), all of which defendant submitted in support of its motion for summary judgment. For the following reasons, defendant's motion for summary judgment is denied and plaintiff's motion to strike is granted in part and denied in part.
Viewed in the light most favorable to plaintiff, the record reveals the following relevant facts.*fn1 GHI is a New York corporation that provides various services to airlines that operate out of Westchester County Airport, including catering and cleaning services, ground crew assistance and gate boarding and bag loading services. (See Pl. Aff. ¶ 2.) On April 21, 1986, GHI hired plaintiff as a customer service agent and promoted her to Operations Manager in January 1996. (See id. ¶ 1; Barrella Aff. ¶ 6.) As an Operations Manager, plaintiff was one of four individuals responsible for the timely and effective operations of the aircraft operating out of Westchester County Airport. (See Barrella Aff. ¶ 6.) Prior to 2000, plaintiff was supervised by Barrella and, thereafter, by Edward Thorton ("Thorton"), who was himself supervised by Barrella. (See id. ¶ 8; Pl. Rule 56.1 Stmt. ¶ 5.)
In 1987, plaintiff was diagnosed with chronic renal failure which ultimately developed into end-stage renal disease.*fn2 (See Def. Rule 56.1 Stmt. ¶ 6, Ex. D (Pl. Dep. at 36); Pl. Rule 56.1 Stmt. ¶ 6.) From 1987 through the end of 2002, plaintiff received continuous ambulatory peritoneal dialysis.*fn3 (See Def. Rule 56.1 Stmt., Ex. D (Pl. Dep. at 37); Urena Decl., Ex. S (Saitta Dep. at 13- 15).) During this period, GHI provided her work breaks four times a week, twice a day during which she would administer the dialysis in either Barrella or Thorton's office. (See Def. Rule 56.1 Stmt. ¶ 6, Ex. D (Pl. Dep. at 45, 48); Pl. Rule 56.1 Stmt. ¶ 6; Urena Decl., Ex. Q (Thorton Dep. at 27-28).)
GHI also allowed plaintiff multiple leaves of absences as a result of her kidney condition. (See Def. Rule 56.1 Stmt. ¶ 7; Pl. Rule 56.1 Stmt. ¶ 7.) Specifically, plaintiff took leave from December 6, 1989 to January 14, 1990, June 1990 to September 1990*fn4 and February 8, 2002 to March 11, 2002. (See Def. Rule 56.1 Stmt. ¶¶ 7, 8, 12; Pl. Rule 56.1 Stmt. ¶¶ 7, 8, 12; Barrella Aff. ¶ 9.)In addition, between 1990 and 2000, plaintiff was hospitalized on approximately ten occasions for reasons attributable to her kidney condition*fn5 and, on each occasion, GHI allowed plaintiff medical leave and granted her immediate reinstatement upon completion of her treatment and medical clearance for her to resume work. (See Def. Rule 56.1 Stmt. ¶ 9, Ex. D (Pl. Dep. at 41-42); Pl. Rule 56.1 Stmt. ¶ 10.) At all relevant times, Barrella was responsible for handling plaintiff's requests for medical leave and other medical accommodations. (See Barrella Aff. ¶ 8.)
On September 22, 2002, plaintiff was hospitalized due to an infection surrounding the catheter*fn6 and the onset of peritonitis,*fn7 both of which were attributable to her kidney condition. (See Complt. ¶ 39; Def. Rule 56.1 Stmt., Ex. D (Pl. Dep. at 43), Ex. F (Saitta Dep. 17), Ex. G (Pisano Dep. at 16-18).) On September 24, 2002, she called Barrella and advised him of the situation and indicated that she was going to miss work that day. (See Pl. Aff. ¶ 5.) The next day, plaintiff called Barrella and advised him that she was still in the hospital and was going to be absent from work again. (See id. ¶ 6.) Then, on September 26, 2002, plaintiff's sister called Barrella and informed him that plaintiff was extremely ill and could not return to work at that time. (See id. ¶ 7; Barrella Aff. ¶ 11.)
On September 26, 2002, Barrella sent plaintiff a letter stating: I would like to thank you for the call I received from your sister on your behalf updating your status. I am very sorry to hear about your situation. The Company realizes you are going through a very difficult time and does not want your work responsibilities to divert your attention from focusing on your health and recovery. Therefore, at this time I am relieving you of all your Operation Manager responsibilities.
Once you are feeling better and are cleared to work, it will be necessary for you to contact me before returning. As always if you have any questions please do not hesitate to contact me. (See Def. Rule 56.1 Stmt., Ex. I.) On October 3, 2002, Barrella sent plaintiff a second letter stating:
This letter is to provide you with an update on the status of your health benefits and information so you can make decisions concerning your condition. . . . Per our conversation today you informed me you do not wish to use any more vacation time and instead wish to seek disability. Enclosed is a disability form for your completion. . . .
The Family and Medical Leave Act (FMLA) provides certain employees with up to 12 workweeks of unpaid, job-protected leave a year and requires group health benefits to be maintained during the leave as if employees continued to work instead of taking leave. I also have enclosed an informational brief explaining the purpose and eligibility requirements for both the employer and employee under the FMLA. Effective October 1, 2002 the Company is designating your medical absence as FMLA leave. During this time the Company will continue to maintain group health insurance, including dependent coverage on the same terms as if you continued to work. . . .
As always if you have questions please do not hesitate to contact me. (See Def. Rule 56.1 Stmt., Ex. C; Pl. Aff., Ex. B; Barrella Aff. ¶ 12.) Defendant enclosed a twelve-page explanation of the FMLA entitled "Compliance Guide to the Family and Medical Leave Act."*fn8 (See id.) It also enclosed an application for New York State Disability benefits for which plaintiff applied and ultimately received through the end of the year. (See Pl. Aff., Ex. B.; Def. Rule 56.1 Stmt. ¶ 19; Pl. Rule 56.1 Stmt. ¶ 19; Barrella Aff. ¶¶ 12-13.)
Plaintiff remained on leave until January 6, 2003 at which time she provided defendant with medical clearance from her two treating doctors, Dr. Richard Pisano ("Pisano"), her internist, and Dr. Richard Saitta ("Saitta"), her nephrologist. (See Def. Rule 56.1 Stmt. ¶¶ 22, 23, 26, Exs. D (Pl. Dep. at 74), L, M, F (Saitta Dep. at 4), G (Pisano Dep. at 4, 10; Pl. Rule 56.1 Stmt. ¶¶ 22, 23, 26; Barrella Aff. ¶¶ 14-15.) Although plaintiff did not actually return to work until February 19, 2003, plaintiff used FMLA time only to January 6, 2003.*fn9 (See Barrella Aff. ¶ 16; Pl. Mem. Opp. Summ. J. at 4; Pl. Aff. ¶ 8; Def. Rule 56.1 Stmt. ¶ 25, 26; Pl. Rule 56.1 Stmt. ¶ 24, 25, 26; Urena Decl., Exs. P (Barrella Dep. at 60), I, J; Def. Rule 56.1 Stmt., Ex. D (Pl. Dep. at 74).) During this time, the three other Operation Managers were required to work overtime in order to cover plaintiff's responsibilities. (See Def. Rule 56.1 Stmt. ¶ 27; Pl. Rule 56.1 Stmt. ¶ 27.)
Upon plaintiff's return to work on February 19, 2003, plaintiff provided Barrella a memorandum requesting an accommodation to not work on Mondays, Wednesdays and Fridays between the hours of 3:30 p.m. and 7:00 p.m. so that she could receive dialysis treatments.*fn10 (See Barrella ¶ 17; Pl. Rule 56.1 Stmt. ¶ 28; Pl. Aff., Ex. E; Def. Rule 56.1 Stmt., Ex. N.) Defendant granted plaintiff the accommodation and plaintiff worked throughout February and the first half of March. (See Barrella ¶ 17; Def. Rule 56.1 Stmt. ¶ 28; Pl. Rule 56.1 Stmt. ¶ 28.)
On March 18, 2003, plaintiff requested leave for three months and submitted a letter stating: I . . . would like to request an immediate medical leave of absence effective 3/18/03.
Due to circumstances out of my control, I am requesting a 2-3 month leave pending status. During my absence, I will keep my commitment to attend all prearranged classes scheduled at White Plains High School. I understand that failure on my part to attend these classes will result in termination of my employment. (See Pl. Aff., Ex. F; Def. Rule 56.1 Stmt., Ex. O; Barrella Aff. ¶ 18.) She also submitted a letter from Pisano stating:
Ms. Roberts is under my care and the care of multiple other physicians for multiple medical conditions. It is strongly recommended at this time she commence with a leave of absence as of today. I anticipate this leave to last 3 months at which time she will be reevaluated for return to employment. (See Def. Rule 56.1 Stmt., Ex. P; Barrella Aff. ¶ 19.) In response, defendant sent plaintiff a letter on March 19, 2003, stating:
This letter serves to confirm our meeting yesterday. At your request I am relieving you of your responsibilities as an operations manager effective 3/18/03. I have authorized an extension of your medical coverage through June 18, 2003. Your share of the cost was deducted from your paycheck. After June 18, 2003 you will be required to go on "COBRA" to maintain medical insurance. Therefore when you have a doctor's clearance to return, please contact me for employment consideration. (See Def. Rule 56.1 Stmt., Ex. S.)
Defendant did not consider plaintiff's leave from March 18, 2003 to June 18, 2003 as FMLA leave and believed that plaintiff was not eligible or entitled to such leave at that time. (See Barrella Aff. ¶ 21; Def. Rule 56.1 Stmt. ¶ 32.) Barrella determined that plaintiff had not worked the required amount of hours in the preceding twelve months to be eligible for FMLA leave and had already exhausted all of her FMLA leave for that period. (See Barrella Aff. ¶¶ 20-22.) Unlike the October 3, 2002 letter, this letter did not enclose a FMLA notice and indicated that plaintiff would have to purchase COBRA coverage after June 18, 2003 in order to maintain medical insurance. (See Barrella Aff. ¶ 21; Def. Rule 56.1 Stmt., Ex. S.)
In April 2003, one of the three Operations Managers resigned, leaving only two managers to perform the responsibilities that typically required four people. (See Barrella Aff. ¶ 23; Def. Rule 56.1 Stmt. ¶ 33.) As a result, defendant promoted two individuals to the position of Operations Manager to fill the vacancies. (See id.)
In plaintiff's affidavit, she claims that on April 22, 2003, she informed Barrella that she was ready to return to work and he indicated that they "'need[ed] to talk'" and "there were 'other things [she] needed to do before [she] returned . . . .'" (See Pl. Aff. ¶ 9.) Plaintiff alleges that she requested a meeting to discuss her employment situation and Barrella said that he first had to talk with GHI's individual owners. (See id.) Plaintiff claims that Barrella never contacted her, and she called him on two occasions thereafter to follow up.*fn11 (See id. ¶¶ 10-11.)
According to plaintiff, Barrella requested that she submit documentation from her treating physician providing her medical clearance to return to work. (See Pl. Aff. ¶ 11.) She claims that Pisano sent defendant a letter, dated April 25, 2003, indicating that she was able to work part-time as of April 28, 2003. (See Pl. Aff. ¶ 12; Urena Decl., Ex. F.) Although it appears that Pisano wrote such a letter, (see Urena Decl., Ex. F; Def. Rule 56.1 Stmt., Ex. G (Pisano Dep. at 30, 38)), there is no evidence that it was ever sent to defendant, except for plaintiff's unsubstantiated allegation that she called Barrella's office and was told that the office had received it. (See id.; Pl. Aff. ¶ 12.) Plaintiff, however, could not identify the person with whom she spoke, and neither plaintiff nor Pisano has personal knowledge that it was ever sent to defendant.*fn12 (See id.) The letter itself is unaddressed. (See Urena Decl., Ex. F.)
According to Barrella, on April 22, 2003, plaintiff called him and updated him on her health status and indicated that she might be able to return to work in a month. (See Def. Rule 56.1 Stmt. ¶ 34; Doherty Aff'm, Ex. Z (Barrella Dep. at 44); Barrella Aff. ¶ 24.) He claims that he informed her that she would need to provide medical documentation clearing her to work. (See Def. Rule 56.1 Stmt. ¶ 34; Doherty Aff'm, Ex. Z (Barrella Dep. at 44).) According to Barrella, plaintiff never provided him with any medical documentation and did not indicate that she would be able to return to work at any specific time.*fn13 (See Barrella Aff. ¶ 24; Doherty Aff'm, Ex. Z (Barrella Dep. at 47).) Barrella claims that plaintiff did not contact him again until June 30, 2003, approximately two weeks after her medical leave to June 18, 2003 had expired.*fn14 (See Barrella Aff. ¶¶ 25-26; Doherty Aff'm, Ex. Z (Barrella Dep. at 38, 48-49).)
On June 30, 2003, plaintiff informed Barrella that she had become extremely ill again and required an indefinite period of medical leave. (See Pl. Aff. ¶ 14, Ex. G.) Barrella instructed plaintiff to put the request in writing ...