United States District Court, S.D. New York
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.
MEMORANDUM AND ORDER
C. FRANCIS IV UNITED STATES MAGISTRATE JUDGE
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.
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
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. Gordon, 2016 WL 4618969,
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).
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).
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.” (Proposed SAC,
¶ 211). Mr. Gordon resigned five days
later. (Proposed SAC, ¶ 213).
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).
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)).
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).