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Rosario v. Western Regional Off Track Betting

United States District Court, Second Circuit

August 13, 2013



MICHAEL A. TELESCA, District Judge.


Plaintiff Javier Rosario ("Plaintiff"), represented by counsel, brings this action pursuant to the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et. seq., the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq. ("ADA"), and the New York State Human Rights Law, N.Y. Exec. Law §§ 290, et seq. ("NYSHRL"), against his former employer, Western Regional Off Track Betting ("Defendant"). Plaintiff claims that he was disabled, or perceived to be disabled, due to Hodgkin's Lymphoma, and that Defendant interfered with his rights under the FMLA and retaliated against him for taking FMLA leave from work. Plaintiff also claims that Defendant discriminated against him on the basis of his disability or a perceived disability by terminating his employment in an attempt to avoid paying Plaintiff's medical bills, and refusing to provide requested accommodations.

Defendant now moves for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure ("Rule 56"), arguing that there are no disputed issues of material fact and that Plaintiff, as a matter of law, has not established a prima facie case of discrimination or retaliation. Plaintiff opposes Defendant's motion arguing that there are contested issues of material fact that can only be resolved at trial. For the reasons set forth below, Defendant's motion for summary judgment is granted and Plaintiff's Complaint is dismissed in its entirety.


Plaintiff was hired by Defendant as a printer in 2000. Pl.'s Compl. at ¶ 7. In March of 2005, Plaintiff was permitted to take time off from work pursuant to the FMLA, because he was undergoing treatment for Hodgkin's Lymphoma, a type of cancer. Julie MacDuffie Deposition ("MacDuffie Dep.") at 14-33. Defendant's Clerk of Human Resources, Julie MacDuffie, told Plaintiff that FMLA leave would be approved once he completed the requisite paperwork. Plaintiff Deposition ("Pl. Dep.") at 40-42. Plaintiff provided MacDuffie with a doctor's note and MacDuffie explained the FMLA process to him, and together they completed the necessary paperwork. Id .; see also MacDuffie Dep. at 14-26, 32-33.

On February, 24, 2005, MacDuffie provided Plaintiff with an FMLA leave of absence notice letter. MacDuffie Dep. at 14-26, 32-33; see also Def.'s Ex. M. Plaintiff submitted a request for FMLA leave from March 4 through March 20, 2005, and Defendant approved that request. Id .; see also Def.'s Ex. N. Defendant notified Plaintiff via letter that his leave of absence under the FMLA would expire on March 20, 2005. Id .; see also Def.'s Ex. O. Subsequently, Plaintiff submitted a request to extend the FMLA leave from March 21 to June 21, 2005, and Defendant approved that request. Id .; see also Def.'s Ex. P. Plaintiff later submitted a request for medical leave from June 22 through October 31, 2005, and Defendant approved that request. Id .; see also Def.'s Ex. Q. Defendant received a letter (dated June 9, 2005) from Plaintiff's oncologist, Dr. Alexander J. Solky, supporting Plaintiff's request for medical leave. Id .; see also Def.'s Ex. H. MacDuffie also explained to Plaintiff that at the expiration of his leave, he was required to provide a doctor's note verifying his return to work and specifying any restrictions on his ability to work. MacDuffie Dep. at 27-28.

Despite the ample evidence that Plaintiff was granted medical leave under the FMLA, he contends that he was "forced to take short term disability leave, " and that "at no time did [Defendant], most particularly Julie McDuffy [sic], ever inform Plaintiff of his rights to take leave under the Family Medical Leave Act." Pl.'s Resp. to Def.'s Local Rule 56(a)(1) Statement at ¶¶ 4-6. However, Plaintiff does not dispute that he submitted the requests for leave as discussed above, that Defendant approved each request, and that he received full healthcare coverage while he was on leave. Id . at ¶¶ 7-11, 13.

Plaintiff's last chemotherapy treatment was on July 7, 2005. Dr. Alexander Solky Deposition ("Solky Dep.") at 11. He completed radiation on September 14, 2005. Dr. Kevin Mudd Deposition ("Mudd Dep.") at 20. Because he completed chemotherapy and radiation treatments, Plaintiff's doctors cleared him to return to work in September of 2005. Def.'s Exs. J and G. Thus, Plaintiff returned to work in October of 2005. Pl.'s Compl. at ¶ 14.

Although the documented evidence reveals that Plaintiff's radiation treatment was completed on September 14, 2005, Plaintiff testified that he was still undergoing radiation treatment when he returned to work. Pl. Dep. at 45-47, 88. He also testified that his doctor wrote a letter that specified his restrictions upon return to work. Id . at 46. Although the evidence shows that Dr. Solky wrote a letter dated June 9, 2005, stating that Plaintiff needed to be out of work until November 1, 2005, (Pl.'s Ex. C.) in his deposition, Dr. Solky referenced a letter from Interlakes Oncology & Hematology, dated September 22, 2005, in which his Physician's Assistant, Kelly Halvonik ("PA Halvonik") wrote that, as of that date, "[Plaintiff] may return to work full time with no restrictions." Solky Dep. at 21-16; see also Def.'s Ex. G. Dr. Solky testified that he allowed PA Halvonik to share results with patients. Id . at 25. Additionally, on September 14, 2005, the final day of Plaintiff's radiation treatment, Dr. Mudd wrote a letter stating: "At this time, [he] [saw] no medical contraindication for [Plaintiff] to return to work." Pl.'s Ex. D.

Mark Adams, Plaintiff's Supervisor ("Supervisor Adams"), testified that, because Plaintiff told him he was still undergoing radiation treatment when he returned to work, he allowed Plaintiff to receive telephone calls from his doctor and family members regarding his treatment and to take short breaks if he experienced nausea. Adams Dep. at 35-36, 63-65. Supervisor Adams testified, however, that Plaintiff would often use these authorized breaks to smoke cigarettes instead. Id.

When he returned to work, Plaintiff worked seven and a half hour shifts and received training regarding the operation of a new digitalized printing press that Defendant had installed during Plaintiff's leave. Id . at 50, 65. Defendant's Director of Public Relations, Henry Nevins, testified that Plaintiff was significantly deficient in his ability to grasp the digital printing system. Nevins Dep. at 15. Nevins instructed Supervisor Adams to set up a timetable to train Plaintiff and to do whatever it took to get him adjusted to the new system. Id . Supervisor Adams reported that he spoke to Plaintiff on several occasions regarding his difficulties with the new system. Id . Between November of 2005 and March of 2006, Nevins had several conversations with Supervisor Adams and Defendant's Executive Vice President, Pat Murphy ("VP Murphy"), about Plaintiff's difficulties mastering the new digital printing system. Id . at 18-19. Nevins continued to receive complaints from Supervisor Adams that Plaintiff was struggling with the new system. Id . at 23.

In December of 2005, Plaintiff received a two-day suspension for "negligence of duty, " because he left work with projects unfinished. Adams Dep. at 25-26. Throughout the next few months, Supervisor Adams received complaints from other employees that Plaintiff was disappearing during work hours and receiving too many personal telephone calls. Id . at 39-43. Supervisor Adams warned Plaintiff about these complaints, and as the complaints persisted, he encouraged the other employees to put their complaints in writing. Id . Thus, on March 28, 2006, three employees, Bill Funke, Allison Watson, and Doug Shaw, provided written complaints. Id . at 39-43; see also Def.'s Exs. V, W, and X. Nevins was informed that Plaintiff was leaving the print shop for excessive amounts of time and that he spent a lot of time on the telephone when he was supposed to be working. Nevins Dep. at 27.

On March 29, 2006, Defendant terminated Plaintiff's employment due to continued unauthorized and disruptive behavior, consisting of constant personal telephone calls and frequent unauthorized breaks. VP Murphy Dep. at 48-49. VP Murphy testified that Defendant terminated Plaintiff's employment because his actions disrupted business operations, he lacked concern for the print shop operation, and other employees complained about Plaintiff's performance. Id . at 41-49.

Plaintiff alleges that Defendant perceived him to be disabled due to cancer. Pl.'s Dep. at 87. He argues that his employment was not terminated for the aforementioned reasons, but "because of his actual or otherwise perceived disability and for his request for reasonable accommodations." Pl.'s Resp. to Def.'s Local Rule 56(a)(1) Statement at ¶ 37-38. Plaintiff testified that if he had not been terminated, he could have continued to do his job with Defendant. Pl. Dep. at 84.


I. Summary Judgment Standard

Rule 56 provides that the Court "shall grant summary judgment 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). When considering a motion for summary judgment, all genuinely disputed facts must be resolved in favor of the non-moving party. Scott v. Harris , 550 U.S. 372, 380 (2007). If, after considering the evidence in the light most favorable to the non-moving party, the Court finds that no rational jury could find in favor of that party, a grant of summary judgment is appropriate. Scott , 550 U.S. at 380 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586-587 (1986)).

It is well established that "conclusory statements, conjecture, or speculation" are insufficient to defeat a motion for summary judgment. Kulak v. City of New York , 88 F.3d 63, 71 (2d Cir. 1996). The non-movant cannot survive summary judgment simply by proffering "some metaphysical doubt as to the material facts, " ( Matsushita Elec. Indus. Co. , 475 U.S. at 586) or presenting evidence that "is merely colorable, or is not significantly probative." Savino v. City of New York , 331 F.3d 63, 71 (2d Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249-50 (1986) (citation omitted)). Rather, he "must set forth specific facts showing that there is a genuine issue for trial." Anderson , 477 U.S. at 250 (quoting former Fed.R.Civ.P. 56(e)(2); see also D'Amico v. City of New York , 132 F.3d 145, 149 (2d ...

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