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Scott v. Proclaim America, Inc.

United States District Court, E.D. New York

March 31, 2017

PROCLAIM AMERICA, INC., d/b/a ESIS PROCLAIM, ESIS, INC., ACE GROUP HOLDINGS, INC., CARL FERDENZI, individually, HEATHER ROY, individually, and CANDACE KAINER, individually, Defendants.

          PHILLIPS & ASSOCIATES, Attorneys for Plaintiff, Casey Wolnowski, Esq.

          STARK & STARK, Attorneys for Defendants, Scott I. Unger, Esq., Cory A. Rand, Esq.


          DENIS R. HURLEY, United States District Judge

         Plaintiff Michael Scott (“Plaintiff” or “Scott”) commenced this action against defendants ProClaim America, Inc., d/b/a ESIS ProClaim (“ProClaim”), ESIS, Inc. (“ESIS”), ACE Group Holdings, Inc. (“ACE”), and Carl Ferdenzi (“Ferdenzi”)[1] (collectively “Defendants”) asserting claims under the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. (the “FMLA”) and the New York State Human Rights Law, N.Y. Exec. Law § 296 et seq. (the “NYSHRL”). Presently before the Court is Defendants' motion for summary judgment. For the reasons set forth below, the motion is granted in part and denied in part.


         The following facts are taken from Defendants' Rule 56.1 Statement and Plaintiff's Rule 56.1 Counterstatement, unless otherwise indicated, and are undisputed unless otherwise noted.

         A. Relationship of the Defendants

         ProClaim is a third-party administrator that provides claims and risk management services to the healthcare industry in the United States. In 2010, ESIS, a risk management services company and member of the ACE Group, acquired a majority share of the stock of ProClaim. While ProClaim now does business under the name "ESIS ProClaim, " ESIS and ProClaim are separate corporate entities. ESIS “is a wholly-owned subsidiary of INA Holdings Corporation, which is a wholly-owned subsidiary of INA Financial Corporation, which is a wholly-owned subsidiary of INA Corporation, which is a wholly-owned subsidiary of Ace INA Holdings Inc. [Defendant] Ace [], a wholly-owned subsidiary of Ace Limited, owns eighty percent (80%) of the stock of Ace INA Holdings Inc.; and Ace Limited, a publicly traded company organized under the laws of Switzerland, owns twenty percent (20%) of the stock of Ace INA Holdings Inc.” Defs.' 56.1 ¶¶1-3, 13; Pl.'s Counter 56.1 ¶¶1-3, 13.

         During the relevant period ProClaim had three offices: one in Melville (Long Island), New York; one in Houston, Texas; and one in Chicago, Illinois. There have been less than twenty employees at its New York office and less than ten total work-at-home employees in New York, New Jersey, and Pennsylvania, as well as within seventy-five miles of its New York office. The total number of ProClaim employees at its New York office, combined with either (1) the number of work-at-home employees in all of New York, New Jersey, and Pennsylvania, or (2) within seventy-five miles of its New York office, was less than fifty. Defs.' 56.1 ¶¶4-12; Pl.'s Counter 56.1 ¶¶4-12.

         ProClaim maintains that it does not share employees with ACE or ESIS and does its own hiring and firing of employees; neither ACE nor ESIS plays a role in ProClaim's day-to-day operations and personnel decisions. Further, ProClaim has its own Human Resources department, separate from ESIS' and any other company's HR department, has a Policies and Procedures Manual that is specific to ProClaim employees and not shared or applicable to ACE, ESIS, or any other company; ProClaim employees were not subject to the policies and procedures of ACE or ESIS. Plaintiff denies these assertions, contending that (1) a certain individual “served” as an officer for both ProClaim and ESIS; (2) two others (Victoria Love and CJ Ferdenzi) “worked at []ProClaim as Client Services Coordinators and worked as Insurance Adjusters for ACE by monitoring trials on its behalf;” (3) the performance warning he received stated he may be eligible for severance under the ACE severance plan; and (4) “at the instruction” of certain ACE officers and “Counsel” he monitored 16 trials in New York for “ACE Insurance.” Defs.' 56.1 ¶¶14-20; Pl.'s Counter 56.1 ¶¶14-20. It is undisputed that the performance warning (discussed infra) references the ACE severance plan. Defendants explain, however, that ACE was one of ProClaim's clients with ACE hiring it at times to provide mediation and monitoring services. It was pursuant to that relationship, for which ACE paid ProClaim, that Scott (as well as other ProClaim employees) monitored ACE matters. Ferdenzi Declar. (DE 45) ¶¶ 5-18. Further, CJ Ferdenzi was not a ProClaim employee but worked for it as an independent contractor on two occasions and neither Love nor CJ Ferdenzi worked as adjusters for ACE. Id. at ¶¶ 23-26.

         B. Plaintiff's Employment History

         Plaintiff began working for ProClaim in December 2005 and remained employed by ProClaim until January 31, 2014, though the last day he worked was December 18, 2013. He served as an adjuster with the title of “litigation supervisor” in ProClaim's Long Island, New York office. He received a Form W-2 from ProClaim each year. Neither ACE nor ESIS had any involvement in Plaintiff's hiring or FMLA leave or the cessation of his employment. Defs.' 56.1 ¶¶21-25; Pl.'s Counter 56.1 ¶¶21-25.

         C. Plaintiff's Medical Issues

         Plaintiff apparently suffered a concussion outside work in November 2013, prior to Thanksgiving; six or seven days later, not having missed any work, he visited his primary care physician, Dr. Halper, complaining he felt woozy and unsteady and was having trouble driving and reading. Dr. Halper diagnosed him with a concussion and told him to follow up with a CT scan to rule out the possibility of a brain bleed. He did not tell Scott not to go to work. The first day Plaintiff missed work following his head injury was December 19, 2013. Defs.' 56.1 ¶¶27-30; Pl.'s Counter 56.1 ¶¶27-30.

         Plaintiff underwent a CT scan on Saturday, December 7, 2013. Later that evening or early the next morning, he accessed his radiologist's online portal to look at the results of his scan and learned that it revealed a cyst, but no bleed, in his brain. On December 8, 2013, he sent Ferdenzi an email stating he received a “bad result” on the CT scan. A day or so later, Scott spoke with the radiologist who explained that the cyst was not an issue or malignant and no operation was necessary; it was likely congenital and something Plaintiff had since birth. The cyst did not cause Plaintiff to miss any work; he still has the cyst today and is able to work with this cyst. Defs.' 56.1 ¶¶34-38; Pl.'s Counter 56.1 ¶¶34-38.

         After work on Wednesday, December 11, 2013, Scott went to an ENT doctor because his left ear "hurt like heck." The doctor removed a cholesteatoma[2] from Plaintiff's left ear, an out-patient procedure performed at the ENT doctor's office during Plaintiff's approximately one-hour visit. The ENT doctor did not keep Plaintiff out of work and did not give Plaintiff any pain medication following the procedure. Plaintiff went to work the next day and did not miss any work as a result of the procedure. Defs.' 56.1 ¶¶40-44; Pl.'s Counter 56.1 ¶¶40-44.

         D. Events Leading to the Termination of Plaintiff's Employment

         1. Events Prior to Plaintiff's Last Day of Work

         In December 2013, Plaintiff was working on the Nyack Hospital account, a ProClaim client, handling its malpractice claims. On December 16, 2013, he and Ferdenzi, his supervisor, had a meeting with Nyack Hospital in Nyack, New York; Plaintiff was able to complete his work for this meeting, including preparing a report. Plaintiff went to work and was in the office all day on December 17, 2013. Defs.' 56.1 ¶¶45-47; Pl.'s Counter 56.1 ¶¶45-47.

         Also in December 2013, Plaintiff was working on the Brooklyn Hospital account, handling its claims. Plaintiff and Ferdenzi were scheduled to attend a monthly client meeting with Brooklyn Hospital on December 19, 2013, which meeting had been scheduled since November 21, 2013. The task of preparing a report of open litigation and open claims for that meeting was assigned to Scott. He was at work and/or attending client meetings for work each and every workday in December through and including December 18, 2013, the day before the Brooklyn Hospital meeting. Defs.' 56.1 ¶¶48-52; Pl.'s Counter 56.1 ¶¶48-52.

         On Tuesday, December 17, 2013, at 4:01 PM, Plaintiff sent an email to Donna Thomas, Brooklyn Hospital's risk manager, stating: "I have been out following surgery and there will be no full report with each and every case. We never heard back in this regard. As to Wed, we will discuss the new lawsuits and the cases that we feel are in need of review of reserve review [sic] (@10). I will have a report tomorrow." However, Scott had not been out of work following the cholesteatoma removal procedure. Defs.' 56.1 ¶¶53-54; Pl.'s Counter 56.1 ¶¶53-54.

         Scott went to work on Wednesday, December 18, 2013 and while at work attempted to contact Ms. Thomas to try and cancel the meeting scheduled for the following day. He and Ferdenzi spoke on the phone at some point that afternoon, during which call Plaintiff told Ferdenzi that the report would not be ready in time for the Brooklyn Hospital meeting the following morning. At 2:45 p.m., Scott sent Ferdenzi an email stating: “As discussed, I had surgery last Wednesday to remove a tumor in my left ear. I have tried as best as I could to work through the pain and dizziness last week, but I am unable to do so. I am having residual problems and am unable to work. I am waiting on additional records to be referred to a further specialist. Three new cases came in for Brooklyn and accordingly, I am dropping them off with you. Attached please find a PTO [Paid Time Off] form. I will advise when I am medically cleared to return.” At 3:11 p.m., he sent Ferdenzi another email stating: “Carl, I[']ve been on phone with docs all day. I have a high fever and need to go back to discuss the results of the tumor extraction. I tried to cancel with Donna and she cant [sic] do it. We have to cancel.” Eight minutes later Scott sent a third email stating: “I am going to call in sick if we do not cancel. That is my only option, since I am sick.” Fifteen minutes later he submitted a PTO form to Human Resources. That same afternoon, Scott sent Ferdenzi another email stating: “I called her [Thomas] 4x and emailed her to cancel this and she never returned one call or email. This is not going to cut it report below [referencing the report in the December 17, 2013 email].” Ferdenzi tried to cancel the meeting, but the client would not agree. He then sent Scott an email stating: “Mike, You have been telling me all week you would have about 40 [] files done. You are the one who said you could do it. I never put pressure to do them all. Now you say you are sick? I will call them and go in to discuss the doc program. You need to work on this report and get it done asap. You were fine all week.” Plaintiff left the office around 4 p.m. on December 18, 2013; that was the last time he was at work. Defs.' 56.1 ¶¶55-65; Pl.'s Counter 56.1 ¶¶55-65.

         2. Events After Plaintiff's Last Day of Work

         Plaintiff did not attend the December 19, 2013, Brooklyn Hospital meeting and did not submit a doctor's note regarding his absence. Ferdenzi attended the meeting without the report. Defs.' 56.1 ¶¶67, 69; Pl.'s Counter 56.1 ¶¶67, 69.

         On December 20, 2013, Scott sent an email to Ferdenzi and Heather Roy (a member of the Human Resources Department) stating: “I went to the doc yesterday and as advised, I had an infection following the removal of the cholesteatoma. Apparently, it is a really rare thing, but they found it before it got inside the mastoid. Luckily it is benign, but apparently they have a pretty high rate of recurrence, so we will just have to monitor it going forward. That's what was causing the dizziness and the instability. She put me on Oflaxacin, and it is just for five days and it should clear up the infection. I spoke with Heather today and will e-mail her on Sunday and hopefully this thing is cleared up well enough to come in. I think it is starting to kick in now. Thanks Mike.” Defs.' 56.1 ¶68; Pl.'s Counter 56.1 ¶68.

         Ferdenzi decided to prepare a Performance Written Warning (“Warning”) to Plaintiff because he failed to prepare the report for the Brooklyn Hospital meeting, and did not tell Ferdenzi until the last minute that it was not done.[3] On Friday, December 20, 2013, after drafting the Warning Ferdenzi intending to email it to Heather Roy, accidently emailed it to Plaintiff instead. In the Warning, Ferdenzi wrote:

You had consistently advised me that you were preparing a copy of your report that would be needed for a meeting with The Brooklyn Hospital on 12/19/2013. Despite the fact that you were sick you were in the office and following the Nyack meeting on Monday 12/16/2013 you advised you would have a report ready. You continued to advise you would have the report on Tuesday when you were in the office all day. On Wednesday 12/18/2013 the day before the meeting, I called and spoke with you at 5PM to arrange travel the next day and you advised you would not be attending because you were sick. At no time did you advise me that you had not completed the report. As a result I was put in a very untenable position with the client and had to meet with them unprepared. This is the reason you are being cited.

Defs.' 56.1 ¶72; Pl.'s Counter 56.1 ¶72. The Warning went on to state that if Plaintiff decided to continue his employment with ProClaim, he would be subject to a 90-day probationary period whereby he needed to comply with conditions designed to ensure that he did not miss future deadlines (e.g., reporting to Ferdenzi daily with work progress status updates and completing and submitting all claims reports at least a week in advance of the meeting). It advised Scott, “You have seven days to consider whether to proceed under the terms of the [Warning]. If you choose not to do so, you may be eligible for severance under the ACE severance plan. If you would like more info, please see me or your Human Resources Representative.” Defs.' 56.1 ¶¶70-74; Pl.'s Counter 56.1 ¶¶70-74.

         Plaintiff was upset about receiving the Warning and contacted Heather Roy the morning he received it. Plaintiff had a telephone conversation with Roy and Ferdenzi later that day. During that conversation, he requested that Roy send him additional information about the severance referenced in the Warning. Defs.' 56.1 ¶¶75-77; Pl.'s Counter 56.1 ¶¶75-77.

         Plaintiff did not work and was not in the office on December 19 or 20, 2013; he called in sick on those days, using PTOs for each day. Defs.' 56.1 ¶79; Pl.'s Counter 56.1 ¶79.

         On Monday, December 23, 2013, via email Roy advised Plaintiff that she did not yet have the requested information regarding the severance, including answers to Plaintiff's questions from the previous Friday about what type of severance he would be entitled to if he did not return. Plaintiff replied to Roy's email and asked if she could provide a time frame as to when she would have answers to his questions. Roy responded that she expected to have answers by the end of the week, and asked Plaintiff if he was considering not returning. In his reply, Plaintiff did not say "no" or otherwise answer her question in the negative; instead he asked if he could call her. That afternoon, Plaintiff and Roy spoke over the phone, during which call Plaintiff wanted to know how much severance he would receive if he decided to leave. According to Roy, Scott confirmed to her that he was considering not coming back; Scott denies this. Defs.' 56.1 ¶¶80-84; Pl.'s Counter 56.1 ¶¶80-84.

         Plaintiff submitted a typed response to the Warning on December 26, 2013, explaining the reasons he felt the Warning was incorrect and requesting that Ferdenzi rescind it (the “Response”). He indicated he could not work under the requirements imposed thereby, and also alleged disability discrimination and that the Warning was in retaliation for his "request at an accommodation due to a medical disability." According to Plaintiff, the "accommodation" he asked for was "that we cancel the meeting with Brooklyn Hospital Center." Plaintiff accused ProClaim of "discriminat[ing] against [Plaintiff] due to a medical disability." He alleged that ProClaim was put "on notice of this medical situation on 12-7-13 via e-mail, " "was advised that I might need time off for this medical disability on 12-8-13, also via e-mail, " and that Ferdenzi "verbally denied my request for time off and never responded to my email indicating that time off may be needed." The e-mails referenced in the Response are the e-mails Plaintiff previously sent to Ferdenzi indicating a "bad result on the CT" and that Plaintiff "may need some time;" yet, a day or two later Scott learned that there were no issues and that the cyst was benign. He did not claim to have asked for any time off again until he submitted a PTO form on December 18, 2013, seeking to take off the following day, viz. the day of the Brooklyn Hospital meeting, which PTO request was not denied. Defs.' 56.1 ¶¶85-89; Pl.'s Counter 56.1 ¶¶85-89.

         Prior to December 26, 2013, Plaintiff never submitted any documentation from any health care provider regarding any need for time off from work. On that date, he submitted a letter from his physician, Dr. Halper, stating that he “is suffering from post-concussion syndrome and advised no work at this time. Patient will follow up in ten days for evaluation. Patient has also seen an ENT, neurologist and ophthalmologist who agree with above diagnosis. Any questions, please feel free to call.” On an attachment to the doctor note, Scott wrote: “To date, I have not received the FMLA documents.” According to Plaintiff, during his December 26, 2013 office visit, he told Dr. Halper that he was still experiencing the same symptoms that he complained about in November and that the symptoms had never cleared. Defs.' 56.1 ¶¶91-96; Pl.'s Counter 56.1 ¶¶91-96.

         Plaintiff's FMLA leave was approved by Human Resources on December 30, 2014, at which time he had already been out of work for over ten days. Ferdenzi had no involvement in the decision whether to grant or deny Scott FMLA leave. Defs.' 56.1 ¶¶97-98; Pl.'s Counter 56.1 ¶¶97-98.

         In mid-January 2014, Scott was still upset and talking with Roy about the Warning. He felt it was "unfair, " that he could not work under the terms and conditions of the 90-day probationary period, and that some of the conditions were "not feasible" or "did not make any sense." On ...

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