The opinion of the court was delivered by: Ramos, D.J.:
Plaintiff Ernest Rodriguez filed this action against his former employer Atria Senior Living Group. His Complaint alleges causes of action under the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA). He now moves for partial summary judgment on eight claims: one claim that Atria failed to reasonably accommodate his disability under the ADA; one claim that Atria terminated him in retaliation for engaging in an ADA-protected activity; and, six claims that Atria interfered with his rights under the FMLA.
The Court agrees with Mr. Rodriguez that there are no genuine disputes of material fact on all issues except two of his six FMLA claims. But the Court holds that Atria, not Mr. Rodriguez, is entitled to summary judgment on the ADA reasonable accommodation claim, the ADA retaliation claim, and four of the six FMLA claims. The Court, therefore, DENIES Mr. Rodriguez's motion for partial summary judgment in its entirety and GRANTS summary judgment to Atria on each of the issues except for two of the FMLA claims.
Atria Senior Living Group hired Ernest Rodriguez as a Maintenance Technician on April 8, 2008. Pl.'s Rule 56.1 Statement ¶¶ 4, 5. In early 2009, he suffered a shoulder injury that was not related to his work for Atria. Pl.'s Rule 56.1 Statement ¶ 7. Because of the injury, he applied for leave under the FMLA in February or March of that year. Id. Atria denied his request on the ground that he was not yet eligible for FMLA leave as he had not yet worked with the company for one year. Def.'s Rule 56.1 Statement ¶ 7, 10. However, he was granted a general leave of absence that started on March 18, 2009, the date he underwent surgery on his shoulder. Pl.'s Rule 56.1 Statement ¶ 8; Affirmation of Greg Riolo in Opposition to Motion for Summary Judgment ("Riolo Aff."), Ex. A. While on leave, on April 6, he became eligible for two "employee referral bonuses" of $100 each. Pl.'s Rule 56.1 Statement ¶ 11.
On April 8, 2009, while still on leave, Mr. Rodriguez reached one year of service with Atria, and, as a result, he became eligible for FMLA leave. See id. ¶ 13. He therefore re-applied for FMLA leave and met with Atria's human resources director Jo-Ann Reilly in order to sign an acknowledgement that his general leave of absence had been converted into FMLA leave. Id. ¶ 14, 15. The Parties dispute whether, while at the office, Mr. Rodriguez was also asked to attend and attended an employee meeting. See Def.'s Rule 56.1 Statement ¶ 18; see also Pl.'s Mem. at 11. Mr. Rodriguez's FMLA leave started effective that day, April 8, 2009 (the "First FMLA Leave.")
The First FMLA Leave ended on June 22, 2009 when Mr. Rodriguez returned to work. Pl.'s Rule 56.1 Statement ¶¶ 24. His physician had signed a note on June 11, authorizing his return to work with "no restrictions." Riolo Aff. Ex. H. Nevertheless, Mr. Rodriguez requested to be put on light duty. Pl.'s Rule 56.1 Statement ¶ 26. The Parties dispute how Atria responded to his request. According to Mr. Rodriguez, Ms. Reilly "made no effort to engage [him] in an interactive process to evaluate his request for light duty." Id. ¶ 27. According to Atria, Ms. Reilly instructed him to submit another note from a physician confirming his physical limitations, but he never did so. Affidavit of Jo-Ann Reilly in Opposition to Motion for Summary Judgment ("Reilly Aff.") ¶¶ 9-10.
The Parties also dispute what happened when Mr. Rodriguez raised this issue with his direct supervisor, Maintenance Director Luis Carasquillo. Mr. Rodriguez claims that Mr. Carasquillo told him that he had "to be 100%" to return to work at Atria. Pl.'s Rule 56.1 Statement ¶ 28. Mr. Carasquillo, however, stated in his deposition that he did not remember saying that. See Carasquillo Dep. at 95. Atria Executive Director Diana Singer denied that Atria had such a policy. Singer Dep. at 124-25.
Atria also claims that, on the day Mr. Rodriguez returned to work, June 22, 2009, he received the employee referral bonuses he was owed. See Def.'s Rule 56.1 Statement ¶ 21; Riolo Aff. Ex. H. Mr. Rodriguez does not dispute that statement. See also Pl.'s Rule 56.1 Statement ¶ 21 (stating only that he did not receive the bonuses during the First FMLA Leave).
On October 22, 2009, Mr. Rodriguez was injured at work while attempting to lift a soda machine. Pl.'s Rule 56.1 Statement ¶ 32. He claims that, before the injury, he had complained to Mr. Carasquillo about being assigned to lift the machine and that Mr. Carasquillo threatened to take disciplinary action if he did not complete the task. Id. ¶ 31. For his part, Mr. Carasquillo denied that Mr. Rodriguez had complained about moving the soda machine and noted that he assigned Mr. Rodriguez's co-worker Carl Johnson to help with the lifting. Def.'s Rule 56.1 Statement ¶ 31.
After the injury, Mr. Rodriguez was examined by a physician who recommended that he undergo a second surgery. See Pl.'s Rule 56.1 Statement ¶ 33-34. The next day, October 23, 2009, Mr. Rodriguez started a second period of FMLA leave (the "Second FMLA Leave"). Id. ¶ 41.
Mr. Rodriguez's Second FMLA Leave ran concurrently with his workers' compensation leave. Id. ¶ 42; Def.'s Rule 56.1 Statement ¶ 42. The Parties dispute whether he was given notice that they would run concurrently. Id. ¶ 43; Def.'s Rule 56.1 Statement ¶ 43.
In late October, during the Second FMLA Leave, Mr. Rodriguez alleges that he and some co-workers met with Ms. Reilly to request that the co-workers be allowed to donate some of their paid time off to him, as permitted by company policy, but she denied the request. Pl.'s Rule 56.1 Statement ¶ 50. Atria denies this. Def.'s Rule 56.1 Statement ¶ 50. Ms. Reilly claims that she explained the process by which paid time off could be donated, but that neither Mr. Rodriguez nor his co-workers ever submitted the necessary forms. See Reilly Aff. ¶¶ 14-21.
Mr. Rodriguez exhausted the Second FMLA Leave on November 6, 2009. Okoronkwo Aff., Ex. 3. He claims that, on November 10, 2009, he met with Ms. Reilly to request six to seven weeks of additional leave. Id. ¶ 57. Atria claims instead that in that November 10 meeting with Ms. Reilly, Mr. Rodriguez requested a three month leave of absence. Def.'s Rule 56.1 Statement ¶ 57. The Parties agree that Atria authorized a one-month general leave of absence that was to follow the Second FMLA Leave and to expire on December 7, 2009. Okoronkwo Aff. Ex. 3.
On November, 10, 2009, Atria mailed a letter to Mr. Rodriguez, stating: "You are responsible for paying the [employee] portion of your benefits while on leave. . . . Premium payments are due the same time they would be if made by payroll deductions.
If payments are not made timely, benefits may be canceled." Declaration of Chinyere Okoronkwo in Opposition to Motion for Summary Judgment ("Okoronkwo Aff.") Ex. 17. Instructions on how to send in benefits were attached to the letter. See id. The Parties agree that Atria mistakenly sent this letter to the wrong address because Mr. Rodriguez had moved and that he never received it. See Pl.'s Rule 56.1 Statement ¶ 58; Def.'s Rule
56.1 Statement ¶ 58; Singer Dep. at 92 (reading her handwritten note on the envelope of the November 10, 2009 letter stating "Not delivered and returned unopened, as employee has moved."). However, the letter was not returned as undeliverable until December. Def.'s Rule 56.1 Statement ¶ 58. Mr. Rodriguez alleges that, as a result, while still on leave, his insurance coverage lapsed because his share of his monthly health insurance premium was not paid. See Pl.'s Mem. at 14; see also Pl.'s Rule 56.1 Statement ¶ 67. Atria disputes this. See Def.'s Rule 56.1 Statement ¶ 59 (Atria "denies that Plaintiff's coverage lapsed.").
Atria terminated Mr. Rodriguez on December 16, 2009. Id.*fn1
Atria Executive Director Diane Sawyer sent him a termination
letter that day, explaining that "[a]s stated per your doctor's note,
you are not able to return to work at this time," but that "once your doctor clears you to return to work, you may reapply for any open
position that you are qualified to perform." Id.
On April 5, 2010, Mr. Rodriguez filed a complaint with the Equal Employment Opportunity Commission. Okoronkwo Aff. Ex. 4. The EEOC determined it would not pursue Mr. Rodriguez's claim and, on September 2, 2010, issued him a right to sue letter. Id.
On November 30, 2010, Mr. Rodriguez filed the instant Complaint. His Complaint purports to raise two causes of action. First, he alleges that Atria interfered with his rights under the FMLA in two ways: (1) "by under-credit[ing] the matching contributions that it was obligated to deposit into [his] 401(k) account" during the First FMLA Leave; and, (2) by "refus[ing] to remit workers' compensation benefits to" him during the Second FMLA Leave. Compl. ¶ 13, 14. Mr. Rodriguez raises neither of these FMLA interference claims in his motion for partial summary judgment.
Second, Mr. Rodriguez claims that Atria retaliated against him under the ADA. But the retaliation he alleges in the Complaint is not what one might expect. He alleges that Atria received a written copy of his EEOC charge on May 6, 2010. Id. ¶ 18. It was then, he alleges, that "Atria commenced to retaliate against [him]." Id. ¶ 19. The only purported retaliation he relies on after that point is that Atria failed to respond to his written demand for "a copy of the 401(k) summary plan description and a remediation of the apparent shortfall in 401(k) matching contributions." Id. ¶ 20. Again, Mr. Rodriguez does not raise these claims in the motion presently before the Court.
After discovery was completed, on December 30, 2011, Mr. Rodriguez filed for partial summary judgment. In his memorandum supporting his motion, he offers three bases for summary judgment. In one instance, concerning the reasonable accommodation claim, it appears from Mr. Rodriguez's motion papers that he means to raise as an additional cause of action an allegation that he mentions in the "Factual Allegations" section of his Complaint. The balance of the factual bases for his motion appear nowhere in the Complaint.*fn2
First, he contends that "Defendant is liable to Plaintiff under the ADA due to its one-hundred percent healed policy"-a claim that Atria failed to reasonably accommodate his disability under the ADA. Pl.'s Mem at 2. There is no reference to this claim in the causes of action listed in the Complaint. In the facts section of his Complaint, however, he does allege that Atria failed to reasonably accommodate his disability by not allowing him to perform only "light duty" upon returning to work after the First FMLA Leave. Compl. ¶ 8. Accordingly, the Court will construe this part of Mr. Rodriguez's motion as a request for summary judgment on an ADA reasonable accommodation claim.
Second, he argues that "Defendant is liable to Plaintiff for ADA retaliation during the period November 10 to December 16, 2009." Pl.'s Mem at 2. This is nowhere alleged in the Complaint and, indeed, is a period different from the 2010 period of retaliation alleged in the Complaint. See, e.g., Compl. ¶ 18-19 (alleging that Atria "commenced to retaliate" against Mr. Rodriguez after May 6, 2010). Mr. Rodriguez's motion papers appear to suggest that what he means by this claim is that he was terminated in retaliation for his ADA-protected activity. See, e.g., Pl.'s Mem at 2. The Complaint does mention that Mr. Rodriguez was terminated, see Complaint ¶ 11, and does allege that "Atria's acts and omissions constitute an ongoing act of retaliation against" Mr. Rodriguez, see id. ¶ 22, so the Court will construe this part of Mr. Rodriguez's motion as a request for summary judgment on the ADA retaliation claim based on his termination.
Third, the motion seeks summary judgment for Atria's alleged interference with Mr. Rodriguez's rights under the FMLA during the two FMLA Leaves. His motion papers do not clearly demarcate his FMLA allegations into separate claims, but the Court understands him to offer six potential bases for FMLA liability. These six claims are also nowhere alleged in the Complaint and are different from the two FMLA interference claims actually alleged in the Complaint, but the Court will treat them as part of the more general FMLA interference claim that was alleged in the Complaint. See id. ¶ 15.
A. Summary Judgment Standard
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In considering a motion for summary judgment, a district court is instructed not to "weigh evidence," but to "resolve all ambiguities and draw all inferences in favor of the non-moving party" so as to ascertain "whether any reasonable trier of fact would have to conclude that the evidence was so strongly in the [movant's] ...