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Borders v. Goodyear Dunlop, NA.

United States District Court, W.D. New York

January 13, 2020

BRIAN T. BORDERS, Plaintiff,


          HON. FRANK P. GERACI, JR. Chief Judge


         Plaintiff 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.[1] ECF No. 1-2 at 7-11. Defendant, Sumitomo Rubber, USA, LLC (“Sumitomo” or “Defendant”)[2] 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.


         Plaintiff 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.

         Plaintiff's 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.

         Kirk 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.

         Shortly 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.

         Sumitomo 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.


         Summary 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 omitted).


         I. Interference with FMLA Rights[4]

         A. Claim is Timely

         As a 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. § 2617(c)(1)-(2).

         Plaintiff 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).

         Defendant's 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.

         B. Plaintiff has Established a Prima Facie Claim of FMLA Interference

         The 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).

         The 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, ...

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