United States District Court, E.D. New York
MEMORANDUM AND ORDER
GLASSER SENIOR UNITED STATES DISTRICT JUDGE
Bong Chul Kim (“Kim” or “Plaintiff”)
brings this action against Bogopa Services Corporation
(“Bogopa” or “Defendant') which owns
and operates a chain of supermarkets in New York, New Jersey,
and Connecticut. ECF 1, (“Compl.”) ¶ 9.
Plaintiff, an employee of Bogopa from 2005 until his
termination in October 2014, alleges that Defendant failed to
provide him with adequate notice-and thereby interfered with
his rights-in violation of the Family Medical Leave Act of
1993, 29 U.S.C. § 2601 et seq
(“FMLA”). Plaintiff also alleges that Defendant
unlawfully discriminated and retaliated against him due to
his alleged disability in violation of New York City Admin.
Code § 8-101 et seq (“NYCHRL”).
Pending now before the Court is Defendant's motion for
summary judgment. For the reasons that follow,
Defendant's motion is GRANTED.
following material facts, drawn from the parties' Local
Civil Rule 56.1 Statements and evidentiary submissions, are
undisputed unless otherwise noted.
graduated from high school, his highest level of education,
in Korea in 1965. ECF 30-1, Defendant's Rule 56.1
Statement of Undisputed Facts (“Def. Rule 56.1
St.”) at ¶ 1. After emigrating to the United
States in 1980, he worked first in a vegetable store and then
in a nail salon prior to being hired by the Defendant in
2005. Id. ¶¶ 4-7. Kim was first diagnosed
with depression in or about 2013. Id. ¶ 71.
Medical records identify his condition as “Bipolar I
disorder, mania with psychotic features.” ECF 35
(“Berger Decl.”) Exh. GG. He is treated for this
condition by Doctors Cho and Lee. Def. Rule. 56.1 St. ¶
72; Kim Dep. 84:8-20.
Plaintiff's Employment at Bogopa
began work at Bogopa in April 2005 as a “Produce
Manager” at store #14, the “Junction
Boulevard” location. Def. Rule 56.1 St. ¶¶
5-8. In this role, Plaintiff supervised and disciplined
employees, including issuing warnings to those employees who
violated the “company's regulations and
policy.” Id. ¶¶ 9, 11-13, 20. As
with other employees, Plaintiff was required to punch in and
out to record his working hours. Id. ¶ 10.
During his tenure, Bogopa issued employee handbooks in 2006
and 2008 containing the company's FMLA policy. ECF 30
(“Beekman Decl.”) Exhs. H, I. The parties dispute
whether Bogopa maintained FMLA postings in those stores where
Plaintiff was employed. See Def. Rule 56.1 St.
¶ 15; Pl. Rule 56.1 St. ¶ 15.
was not the subject of disciplinary action in his first seven
years of employment with Bogopa. However, for the nearly two
year period May 2012 to February 2014, Kim received three
Employee Warning Reports (“EWR”) for conduct
violations including an “unclean” produce section
in his store, missing a day of work, and improper disposal of
a cigarette. Def. Rule 56.1 St. ¶¶ 21, 23, 24;
Beekman Decl. Exh. M. Plaintiff did not challenge these
warnings. At an unknown date during this two year period,
Plaintiff was reassigned from store #14, to store #30 in the
Bronx. Def. Rule 56.1 St. ¶ 23.
February 26-27, 2014, Plaintiff received performance
evaluations including ratings of two, “needs
improvement” and one, “counsel required.”
Def. Rule. 56.1 St. ¶¶ 29, 30. Plaintiff submits
that he informed one of his evaluators, William Ahn, about
his depression. ECF 34, Affidavit of Plaintiff Kim,
(“Kim Aff.”) ¶ 5. Months later, on July 1,
2014, Kim was demoted from Produce Manager to Department
Clerk due to poor sales performance in his department. Def.
Rule. 56.1 St. ¶¶ 33, 34; ECF 30 Exh. D.
(“Kevin Kim Dep.”) 15:2-9; ECF 30 Exh. N. With
the demotion, Plaintiff was transferred from store #30 to
store #41 in Long Island City, where he reported to Peter Suh
and Michael Lee. Id. ¶ 35; Suh Rep. Aff. ¶
Absence from Work
not report to work, unexcused, on August 7, 8, 9, or 10, and
arrived late to work on August 11 and 12, 2014. Def. Rule
56.1 St. ¶ 49; Pl. Rule 56.1 St. ¶ 49; Beekman
Decl. Exh. Q. Pending an investigation of these absences, he
was suspended from work from August 13- 18, 2014. Def. Rule
56.1 St. ¶¶ 38, 42, 44. The suspension form
includes a notation of “REFUSED TO SIGN” next to
the line for Kim's signature, and includes a check next
to the statement “I DO NOT agree with the company
statement.” Beekman Decl. Exh. P. That checkmark
notwithstanding, Plaintiff testified he does not remember
seeing this report. Def. Rule 56.1 St. ¶ 38, 40. On
August 19, 2014, Kim returned to work and received a warning
from supervisor Michael Lee stating, “all infractions
have been confirmed . . . Mr. Kim is hereby given a last
chance final warning and any infraction hereinafter will
result in termination.” Id. ¶¶ 46-
47; Beekman Decl. Exh. R.
Vacation Leave and Additional Time Off
took approved vacation leave from August 25 - September 7,
2014. Id. ¶ 53. On September 5th, he had an
appointment with Dr. Lee who noted that Plaintiff-who had
previously been diagnosed with “Schizoaffective
Disorder”-had “relapsed, ” meaning he
“had a setback and is worse.” Berger Decl. Exh.
E. That same day, Kim called his supervisor, Mr. Suh, and
advised that he was going to seek “medical help and
treatment for a psychiatric illness, ” and had just
booked travel to arrive in Korea on September 7, 2014, the
day his vacation was scheduled to end. ECF 30-34 (“Suh
Aff.”) ¶ 17. See also Kevin Kim Dep.
8:12-20. He did not provide a date of return. During that
call, Mr. Suh advised Plaintiff that he would need to file a
request for a leave of absence. Def. Rule 56.1 St. ¶ 55.
The following day, September 6, 2014, Mr. Suh again advised
Kim that he needed to provide “proper medical
documentation, ” and established a deadline of
September 22, 2014 to do so. Id. ¶ 56. Beekman
Decl. Exh. X. Kim travelled to Korea, and while there, sought
treatment at Yonsei University Hospital. Kim Dep. 86:9-16. He
did not contact Bogopa by September 22, 2014 as required, and
was listed as “No call/no show-job abandonment.”
Def. Rule 56.1 St. ¶ 57.
September 27, 2014, Kim produced a letter to Defendant from
Dr. Cho stating that he had “recovered from acute manic
episode” and could return to work on September 29,
2014. Beekman Decl. Exh W. In response, Bogopa advised,
“[b]efore we can allow you to return to work, we need
you to provide a doctor's note that specifically states
that you are cleared to return . . . without any medical
restrictions.” Beekman Decl. Exh. X. On ...