United States District Court, W.D. New York
BARBARA D. BAKER, Plaintiff,
AVI FOOD SYSTEMS, INC., Defendant.
DECISION AND ORDER
LAWRENCE J. VILARDO UNITED STATES DISTRICT JUDGE.
plaintiff, Barbara D. Baker, brought this suit under the
Family and Medical Leave Act of 1993, 29 U.S.C. Section 2611
(“FMLA”); the Americans with Disabilities Act, 42
U.S.C. Section 12101 (2008) (“ADA”); Title VII of
the Civil Rights Act, 42 U.S.C. Section 2000-e (1964)
(“Title VII”); and the New York State Human
Rights Law, N.Y. Exec. Law Section 290 (“HRL”),
alleging employment discrimination. Docket Item 36.
Specifically, she claims that the defendant, AVI Food
Systems, Inc. (“AVI”), unlawfully terminated her
employment following a leave of absence due to a disability.
Id. AVI contends that it fulfilled its FMLA
obligation by providing the leave of absence and that it was
not required to reinstate Baker's employment both because
Baker could not perform the essential functions of her job
and because Baker did not qualify for statutory protection.
Docket Item 51-1.
Court (Hon. Richard J. Arcara) referred this case to
Magistrate Judge Jeremiah J. McCarthy for all matters
pursuant to 28 U.S.C. Section 636(b)(1)(A), (B), and (C).
Docket Item 6. At the conclusion of discovery, Docket Item
48, the defendant moved for summary judgment, Docket Item 51.
The parties briefed the motion, Docket Items 51-52, 58, and
85, and Judge McCarthy heard oral argument, Docket Item 86.
After Judge McCarthy issued a Report and Recommendation
(“R&R”) finding that the defendant's
motion for summary judgment should be granted, Docket Item
87, the case was transferred from Judge Arcara to the
undersigned, Docket Item 99. For the following reasons, this
Court adopts Judge McCarthy's R&R and grants
AVI's motion for summary judgment.
hired Baker, a forty-six year old African-American woman, as
office manager for the AVI branch in Buffalo, New York, on
March 13, 2006. Docket Item 87 at 1. In early October of the
following year, Baker suffered a herniated disc in her back,
and the resulting pain qualified her for a leave of absence
under the FMLA. Id. That leave began on October 16,
2007, and continued through January 8, 2008. Id. at
an AVI company policy, if an employee were restricted from
work in a way that “prevented [her] from performing
[her] full job duties following the exhaustion of FMLA”
leave, the employee would be terminated “unless the
restrictions stemmed from a work-related injury or the
employee was disabled under the ADA or applicable state
law.” Id. at 2. On December 26, 2007,
Baker's doctor cleared her to return to work with
restrictions. Id. at 1. Those restrictions, which
were to remain in place until May 2, 2008, included bans on:
(1) lifting items over 15 pounds; (2) “repetitive
bending or twisting”; (3) sitting or standing in
intervals over two hours; and, most central to this suit, (4)
working more than eight hours each day. Id. at 1-2.
January 2, 2008, before her leave expired, Baker tried to
return to work. Id. at 2. According to AVI, however,
Baker's position as office manager required her to work
more than eight hours a day-something her injuries precluded.
See Id. Therefore, because Baker's injury was
not work related, because AVI found that Baker was not
disabled under the ADA, and because Baker could not meet the
requirements of the job, she was not allowed to return to
work pursuant to AVI's policy. Id.
was officially terminated on January 9, 2008, the day after
her FMLA leave ended. Id. Although she was marked
eligible for re-hire when she was terminated, Docket Item
52-16 at 4, there is no evidence that Baker pursued this
option, Docket Item 52-4 at 25, 36. Indeed, she refused later
offers of reemployment. Id. at 36.
then filed a complaint with the New York State Division of
Human Rights. Docket Item 87 at 3. On April 28, 2009, the
Division of Human Rights determined that “there was no
probable cause to believe that AVI discriminated against
plaintiff on the basis of race or her alleged
the same time, in a separate and unrelated matter, the Equal
Employment Opportunity Commission (“EEOC”) sued
AVI in the United States District Court for the Southern
District of Ohio. Id. On July 28, 2009, the court in
that action approved a consent decree. Id. That
decree applied to those “separated from employment with
AVI since April 11, 2006” after their FMLA leave
expired, but who “(i) . . . were ready to return to
work immediately . . . and (ii) could have performed the
essential functions of the job without [sic] or without
reasonable accommodation but (iii) were not allowed to return
to work because they had medical restrictions.”
Id. Despite the fact that AVI claimed that Baker
could not perform the essential functions of her job at the
time of her separation, Docket Item 51-1 at 1, AVI included
Baker among those covered by the consent decree, Docket Item
52-20 at 13. The consent decree afforded Baker the option of
a $1000 cash award or returning to work; Baker chose the cash
award. Docket Item 87 at 3-4.
LEGAL STANDARDS OF REVIEW
Report and Recommendation
district court may accept, reject, or modify, in whole or in
part, the findings or recommendation of a magistrate judge.
28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3). A district
court must conduct a de novo review of those
portions of a magistrate judge's recommendation to which
objection is made. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
72(b)(3). Because Baker objected to the R&R, Docket Items
90-91, this Court reviews it de novo.
moved for summary judgment on the basis that overtime is an
essential function of the office manager position-a function
that Baker could not perform, making her unqualified for the
job. Docket Item 51-1 at 1-2.
judgment is appropriate when the “movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to a judgment as a matter of law.”
Fed.R.Civ.P. 56(a). In assessing whether a genuine dispute
exists, “the benefit of all permissible inferences and
all credibility assessments” are drawn in favor of the
non-movant. SSEC v. Sourlis, 851 F.3d 139, 144 (2d
Cir. 2016). Summary judgment is appropriate only if
a reasonable factfinder ...