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Kim v. Bogopa Services Corporation

United States District Court, E.D. New York

July 28, 2017

BONG CHUL KIM, Plaintiff,



         Plaintiff 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.


         The following material facts, drawn from the parties' Local Civil Rule 56.1 Statements and evidentiary submissions, are undisputed unless otherwise noted.

         Plaintiff 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.

         I. Plaintiff's Employment at Bogopa

         Plaintiff 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.

         Plaintiff 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.

         On 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. ¶ 1.

         II. Absence from Work

         Kim did 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.

         III. Vacation Leave and Additional Time Off

         Kim 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.

         On 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 ...

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