The opinion of the court was delivered by: John Gleeson, United States District Judge
Abid Ghaffar brings this action against his former employer, Willoughby 99 Cent, Inc. ("Willoughby"). He claims that he was unlawfully fired for exercising his right to take leave under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601 et seq. Willoughby moves for summary judgment. Ghaffar opposes Willoughby's motion and cross-moves for partial summary judgment, arguing that Willoughby is subject to the FMLA. For the reasons discussed below, I deny Willoughby's motion and grant Ghaffar's.
The following facts are either undisputed or construed in the light most favorable to the defendant:
In 2007, Mohammed Memon owned and operated, through six corporations, six discount stores in New York that generally sold the same type of merchandise -- inexpensive groceries, hardware, clothing, toys, and stationery.*fn1 None of the stores was particularly big; the total number of employees working in them between January and November ranged from 39 to 48. From an office in Queens, Memon monitored the stores, two more closely than the others, and he employed Farook Begawala to supervise the day-to-day operations of the rest. Each store also had its own manager.
At the four stores he supervised, Begawala oversaw the managers' merchandising, payroll, and personnel decisions. Although each store manager was responsible for ordering inventory for his store, Begawala had input into what merchandise was ordered and the stores received discounts from vendors because of their combined buying power. Begawala approved requests by store managers to hire employees and sometimes recommended the former employees of one store for available positions at other stores. He also approved requests by store managers for time off, but he was not involved with scheduling the hours of the other store employees -- the managers handled that themselves. As part of his duties, he visited each of the stores he supervised several times a week. When Begawala was not visiting stores, he worked out of Memon's office in Queens with two other employees, Syed Ibrahim and Mohammad Yunus, who completed financial and administrative tasks for all six stores and reported to Begawala.
Memon shared the Queens office with his cousin, Zubair Qasim, who also owned and operated several discount stores in New York. Although Memon and Qasim worked out of the same office, they were not generally involved in the management of each other's stores, and Qasim employed his own assistant, Najmu Butt, to complete administrative tasks for the stores Qasim owned and operated. Qasim did, however, employ Begawala to help manage one of his stores, located in Bayside, Queens, and would occasionally accompany Begawala on his visits to Memon's stores. In addition, Memon and Qasim linked the checking accounts of four of Memon's stores with the checking account of one of Qasim's stores, located on Church Avenue in Brooklyn, to save bank fees.
In 1998, Memon hired plaintiff Abid Ghaffar as the manager of one of the stores, a dollar store on Willoughby Avenue in Brooklyn that he owned indirectly through the defendant corporation Willoughby. Although Begawala had criticized Ghaffar numerous times for failing to keep enough merchandise, or the right kind of merchandise, on the shelves and blamed him for the store's poor performance, Ghaffar remained the store's manager in 2008. In March of that year, Ghaffar asked Begawala for permission to take leave to care for his ailing parents in Pakistan. Begawala said yes, and Ghaffar traveled to Pakistan from July 1 to July 15. Upon his return, Ghaffar called Qasim and told him that he was ready to go back to work. Qasim asked him to instead come to his home, and there informed him of Begawala's decision to fire him.
On February 2, 2009, Ghaffar filed this action. The first cause of action in his complaint alleges that Willoughby interfered with his rights under the FMLA by not restoring him to his previous position or an equivalent one when he returned from leave. The second alleges that Willoughby discriminated or retaliated against him for taking protected leave both by terminating him and by failing to restore him to his previous position or an equivalent one.
Summary judgment is appropriate only if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). "An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010). "A fact is material if it might affect the outcome of the suit under the governing law." Id. When applying this standard, the court must "resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment." See Brown v. Henderson, 257 F.3d 246, 251 (2d Cir. 2001).