United States District Court, W.D. New York
BRIAN T. BORDERS, Plaintiff,
GOODYEAR DUNLOP, NA., SUMITOMO RUBBER, Defendant.
ORDER DECISION AND ORDER
FRANK P. GERACI, JR. Chief Judge
Brian T. Borders (“Plaintiff” or
“Borders”) brings this action for disability
discrimination under the Family Medical Leave Act
(“FMLA”) and the New York State Human Rights Law
(“NYSHRL”). Specifically, Plaintiff claims (1)
interference with FMLA rights; (2) unlawful discrimination
based on disability in violation of the NYSHRL; and (3)
unlawful failure to accommodate in violation of the
NYSHRL. ECF No. 1-2 at 7-11. Defendant, Sumitomo
Rubber, USA, LLC (“Sumitomo” or
“Defendant”) moves for summary judgment which
Plaintiff opposes. ECF No. 22. For the reasons that follow,
Defendant's motion is GRANTED IN PART and DENIED IN PART.
is a cancer survivor and U.S. Army veteran who was honorably
discharged with a disability rating of 80%-50% attributable
to his migraine headaches and 30% attributable to his
cancer-related issues. ECF No. 1-2 ¶ 11. Plaintiff
worked as a UNIX Systems Administrator for Systems Personnel,
a recruitment and staffing agency. In April 2007, he was
contracted to work at Sumitomo. Id. ¶ 13; ECF
No. 29-2 ¶¶ 5, 11. Sumitomo was made aware of
Plaintiff's medical issues during his interview prior to
contracting him. ECF No. 1-2 ¶ 13.
supervisor at Sumitomo from 2007 to 2013 allowed Plaintiff
flex time and overtime to accommodate his migraines. ECF No.
1-2 ¶ 14. When Kirk Rawls, a new supervisor, took over
in November 2013, the flex and overtime accommodations ended.
Id. ¶¶ 15, 16. No. longer allowed such
accommodations, Plaintiff began to have work performance and
attendance issues due to his migraines. ECF No. 29-2
¶¶ 17-19. When he spoke with Linda Walleshauer,
Sumitomo's Human Resources (“HR”) contact,
about requesting FMLA leave, he was told “it was not
necessary to file for FMLA.” ECF No. 1-2 ¶ 18.
Rawls noted Plaintiff's medical, work performance, and
attendance issues in his midyear reviews of Plaintiff.
Id. ¶¶ 20, 21. Plaintiff alleges Kirk
Rawls had an “attitude” toward him and held his
disability against him. ECF No. 29-2 ¶ 38. Plaintiff
acknowledged that many employees found it difficult to work
with Kirk Rawls. Id. ¶ 39.
after his discussion with Linda Walleshauer, Plaintiff's
contract was reduced from 40 to 32 hours per week, but
Plaintiff was told he could work more hours depending on his
availability and that he could adjust his schedule to account
for his migraines. Id. ¶ 32. Even with the
reduced schedule, Plaintiff struggled to work the requisite
hours. Id. ¶¶ 34, 37. Still, Sumitomo
continued to renew Plaintiff's contract from 2014 through
2016. Id. ¶ 41.
decided to stop using contract workers to fill its IT
positions in 2015, at which time Plaintiff applied for a
full-time job with Sumitomo. Id. ¶¶ 6, 42;
ECF No. 1-2 ¶ 30. Plaintiff cancelled the interview
because Kirk Rawls allegedly made false accusations
implicating Plaintiff in a computer system failure. ECF No.
1-2 ¶¶ 31-32; ECF No. 29-2 ¶ 42.
Plaintiff's placement with Sumitomo ended on December 31,
2016 when Sumitomo did not renew its contract with Systems
Personnel. ECF No. 29-2 ¶ 6.
judgment is appropriate when the record shows that there is
“no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). Disputes concerning
material facts are genuine where the evidence is such that a
reasonable jury could return a verdict for the non-moving
party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). In deciding whether genuine issues of
material fact exist, the court construes all facts in a light
most favorable to the non-moving party and draws all
reasonable inferences in the non-moving party's favor.
See Jeffreys, 426 F.3d at 553. However, the non-moving party
“may not rely on conclusory allegations or
unsubstantiated speculation.” F.D.I.C. v. Great Am.
Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010) (quotation
Interference with FMLA Rights
Claim is Timely
threshold matter, Defendant argues that Plaintiff's FMLA
claim is untimely because it was brought outside the two-year
statute of limitations and Plaintiff cannot avail himself of
the three-year statute of limitations for willful FMLA
violations. ECF No. 22-18 at 9-10; see 29 U.S.C. §
alleges he requested FMLA leave from Sumitomo in August 2014.
ECF No. 29 at 19. Plaintiff filed this action on August 3,
2017, after the expiration of the two-year statute of
limitations. ECF No. 1-2 at 12. To establish a willful
violation of the FMLA, and thus to avail himself of the
three-year statute of limitations, Plaintiff must show that
the employer “knew or showed reckless disregard for the
matter of whether its conduct was prohibited by the
[FMLA].” Lewis v. New York City Police
Dep't, 908 F.Supp.2d 313, 325 (E.D.N.Y. 2012).
only argument here is that Sumitomo cannot be found to have
willfully violated the FMLA because it was not
Plaintiff's primary employer. Because, as the Court finds
below, there is a genuine dispute of fact as to whether
Sumitomo is Plaintiff's primary employer, the Court
permits Plaintiff's claim as timely under the applicable
three-year statute of limitations.
Plaintiff has Established a Prima Facie Claim of FMLA
FMLA makes it “unlawful for any employer to interfere
with, restrain, or deny the exercise of or the attempt to
exercise, any right provided” by the FMLA. 29 U.S.C.
§ 2615(a)(1). To survive summary judgment, a plaintiff
need only make out a prima facie claim of interference by
putting forth evidence that (1) he is an eligible employee
under the FMLA; (2) the defendant is an employer as defined
by the FMLA; (3) the plaintiff was entitled to take FMLA
leave; (4) he gave notice to the defendant of his intention
to take leave; and (5) he was denied benefits to which he was
entitled under the FMLA. Graziadio v. Culinary Inst. of
Am., 817 F.3d 415, 424-26 (2d Cir. 2016) (setting out
elements of FMLA interference claim and denying
defendant's motion for summary judgment upon
plaintiff's provision of evidence under each element).
parties do not dispute that Plaintiff was an employee for
purposes of the FMLA. However, because there is a genuine
dispute of material facts as to whether Sumitomo or Systems
Personnel was Plaintiff's primary employer, whether
Plaintiff was entitled to FMLA leave, whether Plaintiff gave
sufficient notice of his intention to take leave, and whether
Plaintiff was denied FMLA benefits, ...