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Baker v. Avi Food Systems Inc.

United States District Court, W.D. New York

December 27, 2017

BARBARA D. BAKER, Plaintiff,



         The 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.

         The 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.


         AVI 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.[2] Id. at 1-2.

         Under 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.

         On 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.

         Baker was officially terminated on January 9, 2008, the day after her FMLA leave ended.[3] 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.

         Baker 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 disability.” Id.

         Around 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.[4] Docket Item 87 at 3-4.



         A. Report and Recommendation

         A 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.

         B. Summary Judgment

         AVI 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.

         Summary 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 ...

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