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Gordon v. City of New York

United States District Court, S.D. New York

March 7, 2017

ROBERT W. GORDON, ESQ., Plaintiff,
THE CITY OF NEW YORK, MARC ANDES, MARK PALOMINO, GAYLE SANDERS, FAY LEOUSSIS, MICHAEL A. CARDOZO, DAVID SANTORO, JOHN DOES AND JANE DOES names currently unknown, each in his/her official and individual capacities, Defendants.



         In this employment discrimination action against the City of New York (the "City") and various employees of the New York City Law Department (the "Law Department"), the plaintiff, Robert W. Gordon, seeks to file a Second Amended Complaint adding allegations that the City violated the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq., and breached an employment contract. The motion is granted in part.


         The factual background as alleged in the original and amended complaints is set out in two prior opinions. See Gordon v. City of New York, No. 14 Civ. 6115, 2016 WL 4618969 (S.D.N.Y. Sept. 2, 2016); Gordon v. Citv of Mew York, No. 14 Civ. 6115, 2015 WL 3473500 (S.D.N.Y. June 2, 2015). The proposed allegations concern more recent events.

         Prior to his resignation in August 2016, Mr. Gordon had been an Assistant Corporation Counsel in the Law Department since 2004. ([Proposed] Second Amended Complaint (“Proposed SAC”), attached as Exh. 1 to Declaration of Samuel O. Maduegbuna dated Jan. 12, 2017 (“Maduegbuna Decl.”), ¶ 32). He filed his original complaint in 2014, which, like the currently-operative complaint, alleged claims for disparate treatment and disparate impact under federal, state, and city law.[1] Gordon, 2016 WL 4618969, at *2-3.

         In May 2016, Mr. Gordon fractured his hand while suffering an anxiety attack allegedly brought on by the defendants' illegal discrimination. (Proposed SAC, ¶ 193). He consequently went on paid sick leave. (Proposed SAC, ¶ 197). At that time, he had accrued nearly 400 hours of leave time, which, according to his calculations, would allow him to remain on sick leave until the beginning of August 2016. (Proposed SAC, ¶ 198).

         Approximately ten days after the incident, a supervisor telephoned Mr. Gordon to discuss his leave. (Proposed SAC, ¶ 203). The supervisor was unsure whether the leave “should be considered a ‘leave of absence' that was indefinite or FMLA leave limited to 12 weeks, ” and said that he would “get back to” Mr. Gordon later that day (Proposed SAC, ¶ 203), presumably after he had researched the question. Three weeks later, Mr. Gordon emailed a Law Department human resources professional to inquire about how to facilitate FMLA leave. (Proposed SAC, ¶ 204). Mr. Gordon filled out the forms provided and emailed them back to the Law Department on June 30, 2016. (Proposed SAC, ¶ 205). He received no response from his employer. (Proposed SAC, ¶ 206).

         Without informing Mr. Gordon, the City cancelled his health insurance benefits as of July 24, 2016. (Proposed SAC. ¶ 208). A few days later, Mr. Gordon asked one of his supervisors whether his FMLA leave had been approved and could be used to extend his leave past his original return date of August 1, 2016. (Proposed SAC, ¶ 209). The supervisor “responded that he would provide an answer by the end of the week and advised [Mr. Gordon] that if [he] were out of annual leave and vacation time his leave would be uncompensated and that his employment[-]related benefits may also be impacted.” (Proposed SAC, ¶ 210). On August 5, 2016, Mr. Gordon received a letter informing him that his insurance benefits ended on July 24, 2016, but that he was “eligible for COBRA.”[2] (Proposed SAC, ¶ 211). Mr. Gordon resigned five days later.[3] (Proposed SAC, ¶ 213).

         Mr. Gordon alleges that, by this conduct, the City “interfered with [his] FMLA rights by refusing to respond to his FMLA application . . ., failing to notify him whether his sick leave would be designated as FMLA-qualified leave, and cancelling his family health insurance benefits.” (Proposed SAC, ¶ 294). He further charges the City with retaliating against him for his “attempted exercise of his FMLA rights” by cancelling his insurance “about 24 days after he sought FMLA leave.” (Proposed SAC, ¶ 302). Finally, Mr. Gordon asserts that he entered into a contract with the City “based on [the City's] publicized policy that designated the rate by which employees of the Law Department would accrue sick leave time and vacation time.” (Proposed SAC, ¶ 306). The City allegedly breached this agreement “by denying [Mr. Gordon] the full use of his accrued leave time and failing to pay [him] for his earned leave time after he[] resigned from the Law Department.” (Proposed SAC, ¶ 308).


         A. Legal Standard

         Rule 15 of the Federal Rules of Civil Procedure provides that courts should “freely give” leave to amend “when justice so requires.” Fed.R.Civ.P. 15(a)(2); see also Foman v. Davis, 371 U.S. 178, 182 (1962); Aetna Casualty & Surety Co. v. Aniero Concrete Co., 404 F.3d 566, 603 (2d Cir. 2005). “This permissive standard is consistent with [the Second Circuit's] ‘strong preference for resolving disputes on the merits.'” Williams v. Citigroup Inc., 659 F.3d 208, 212-13 (2d Cir. 2011) (quoting New York v. Green, 420 F.3d 99, 104 (2d Cir. 2005)).

         The court has broad discretion over motions to amend, see McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007), and may deny such a motion for the following reasons: (1) undue prejudice to the non-moving party, (2) futility, (3) bad faith or dilatory motive, (4) repeated failure to cure deficiencies by previous amendments, or (5) undue delay, United States ex rel. Ladas v. Exelis, Inc., 824 F.3d 16, 28 (2d Cir. 2016); Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 126 (2d Cir. 2008). Here, the defendants argue solely that certain claims that the plaintiff seeks to allege are futile, an issue which they have the burden of demonstrating, see Allison v. Clos-ette Too, L.L.C., No. 14 Civ. 1618, 2015 WL 136102, at *2 (S.D.N.Y. Jan. 9, 2015); Ferring B.V. v. Allergan, Inc., 4 F.Supp.3d 612, 618 (S.D.N.Y. 2014).

         B. FMLA ...

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