Garcia v. Lewis Tree Service, Inc.

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

EDDIE GARCIA,

Plaintiff, DECISION AND ORDER

6:21-CV-06393 EAW

v.

LEWIS TREE SERVICE, INC., and ROBERT

GASTON,

Defendants.

INTRODUCTION

Plaintiff Eddie Garcia (“Plaintiff”) asserts claims for violation of the Family and

Medical Leave Act, 29 U.S.C. §§ 2601 et seq. (the “FMLA”), the Americans with

Disabilities Act, 42 U.S.C. §§ 12101 et seq. (the “ADA”), and the New York State Human

Rights Law, N.Y. Exec. Law § 296(1)(a) (the “NYSHRL”) against defendants Lewis Tree

Service, Inc. (“Lewis Tree”) and Robert Gaston (“Gaston”) (collectively “Defendants”).

(Dkt. 1). Currently pending before the Court is Defendants’ motion to dismiss. (Dkt. 11).

For the reasons set forth below, the Court grants in part and denies in part Defendants’

motion.

BACKGROUND

I. Factual Background

The following facts are taken from the complaint (Dkt. 1), which the Court accepts

as true at this stage of the proceedings.

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Plaintiff is a citizen of Pennsylvania. (Id. at ¶ 5). Lewis Tree is a New York

corporation with its corporate headquarters in Monroe County. (Id. at ¶ 7). From 2009 to

2020, Plaintiff was an employee of Lewis Tree. (Id. at ¶ 6). Gaston was, at all relevant

times, employed as a “manager or supervisor” by Lewis Tree and he had a “supervisory or

managerial role over” Plaintiff. (Id. at ¶¶ 10-11).

On or about November 6, 2019, Plaintiff was diagnosed with colon cancer. (Id. at

¶¶ 23-24). Plaintiff informed Lewis Tree of his cancer diagnosis that same day. (Id. at

¶ 26). He also faxed documentation to Lewis Tree after visiting his doctor on or about

November 21, 2019, and December 26, 2019. (Id. at ¶ 27). Plaintiff further provided

Lewis Tree with doctor’s notes from each of his chemotherapy treatments beginning on

January 21, 2020, and occurring once every other week until June 6, 2020. (Id.). On

January 21, 2020, when Plaintiff began chemotherapy, his physician wrote a letter to Lewis

Tree advising that Plaintiff “should be finished with chemotherapy treatments and able to

return to work by the end of June 2020.” (Id. at ¶ 28 (internal quotation marks omitted)).

Plaintiff was ultimately authorized to return to work by his physician on July 6,

2020. (Id. at ¶ 29). However, when Plaintiff’s brother, who was also employed by Lewis

Tree, “went to the company to turn in Plaintiff’s return-to-work medical paperwork on the

first day of June of 20201,” he was advised that Lewis Tree “had already unilaterally and

summarily terminated” Plaintiff. (Id. at ¶ 30).

1 The timing set forth in the complaint is somewhat unclear. Plaintiff states that “after

undergoing extensive chemotherapy treatments and self-quarantining until the end of June

of 2020,” he was “granted permission from his doctor to return to work for Lewis Tree on

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Plaintiff immediately called Lewis Tree, believing there had been a

misunderstanding. (Id. at ¶ 31). He spoke to one of Lewis Tree’s secretaries, Yanisha,

who advised him that he had been terminated months earlier, “not long after he had given

the company notice of his need for job-protected leave.” (Id. at ¶ 32). Yanisha advised

Plaintiff that he had been sent a termination letter via certified mail and he replied that he

had never received any such letter. (Id. at ¶¶ 33-34). Plaintiff asked what address the letter

had been mailed to; the address Yanisha provided was not Plaintiff’s address, but was

instead “an address for a house on a different part of Plaintiff’s street.” (Id. at ¶¶ 34-35).

Plaintiff provided Yanisha with his correct address and requested that the letter be

remailed. (Id. at ¶ 36). He then noticed that the line had gone silent; as he asked Yanisha

if she was still there, the call was disconnected. (Id. at ¶ 37). Plaintiff attempted to call

back multiple times, but his calls were not answered. (Id. at ¶ 38). Since his phone call

with Yanisha in or about June of 2020, Plaintiff has been unable to contact Lewis Tree by

telephone. (Id. at ¶ 39).

II. Procedural Background

Plaintiff commenced this action on May 20, 2021. (Dkt. 1). Defendants filed the

instant motion to dismiss on August 9, 2021. (Dkt. 11). Plaintiff filed opposition papers

July 6, 2020.” (Dkt. 1 at ¶ 28 (emphasis added)). However, he then claims that his brother

took his “return-to-work medical paperwork” to Lewis Tree on June 1, 2020, and that he

subsequently had a conversation with a secretary at Lewis Tree “in or about June of 2020.”

(Id. at ¶¶ 30, 39). For purposes of the instant motion, the Court has assumed that Plaintiff

learned of his termination in June of 2020.

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on October 15, 2021 (Dkt. 17), and Defendants filed their reply on November 5, 2021 (Dkt.

20).

DISCUSSION

In his complaint, Plaintiff alleges the following causes of action: (1) interference in

violation of the FMLA; (2) retaliation in violation of the FMLA; (3) failure to provide a

reasonable accommodation in violation of the ADA; (4) retaliation in violation of the ADA;

(5) discrimination in violation of the NYSHRL; and (6) retaliation in violation of the

NYSHRL. (Dkt. 1). Defendants seek dismissal of each of these claims, arguing that: (1)

Plaintiff’s NYSHRL claims must be dismissed for lack of subject matter jurisdiction

because Plaintiff neither lived nor worked in New York; (2) the Court lacks personal

jurisdiction over Gaston and the claims against him are in any event inadequately alleged;

and (3) Plaintiff has failed to plausibly allege a violation of the FMLA or the ADA by

Lewis Tree. (Dkt. 13). The Court considers these arguments below.

I. Claims under the NYSHRL

The Court notes initially that Defendants have framed their arguments regarding the

NYSHRL as an issue of subject matter jurisdiction. (See Dkt. 13 at 12). However, Plaintiff

appears to brief the issue as arising under Federal Rule of Civil Procedure 12(b)(6), stating

that the Court should “[a]ccept the allegations in the complaint as true, and giv[e] every

favorable inference therein, without accepting Defendants’ evidence submitted outside of

the pleadings[.]” (Dkt. 17 at 10). The Court thus must determine as a threshold matter

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whether its subject matter jurisdiction is implicated by Defendants’ argument regarding

Plaintiff’s failure to plead that he either lived or worked in New York.

“New York State courts lack subject matter jurisdiction over claims brought under

the . . . NYSHRL by a non-resident plaintiff, when the alleged discriminatory conduct did

not have an ‘impact’ on the plaintiff . . . within New York State[.]” Kraiem v. JonesTrading

Institutional Servs. LLC., 492 F. Supp. 3d 184, 195 (S.D.N.Y. 2020) (citing Hoffman v.

Parade Publ’ns, 15 N.Y.3d 285, 289 (2010)). Federal courts considering arguments

similar to those raised in this matter have also addressed the issue as one of subject matter

jurisdiction. For example, in Vangas v. Montefiore Medical Center, 823 F.3d 174 (2d Cir.

2016), the Second Circuit affirmed the district court’s dismissal for lack of subject matter

jurisdiction a claim under the New York City Human Rights Law (the “NYCHRL”).2 Id.

at 177 (“The district court separately dismissed Vangas’s NYCHRL claim for lack of

subject matter jurisdiction and denied Mr. and Mrs. Vangas’s COBRA claims on the

merits. Those decisions are affirmed.”), 182-83 (“Accordingly, because Vangas’s

termination did not impact her in NYC, the district court properly dismissed the claim and

we affirm.”).

Based on the foregoing case law, the Court agrees with Defendants that the issue is

one of subject matter jurisdiction and applies the corresponding standard. “In resolving a

motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a district court

2 The NYCHRL applies only to individuals who live or work in New York City, and

New York State courts lack subject matter jurisdiction over claims where that requirement

is not satisfied. Hoffman, 15 N.Y.3d at 290, 292.

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may refer to evidence outside the pleadings. A plaintiff asserting subject matter

jurisdiction has the burden of proving by a preponderance of the evidence that it exists.”

Rojas v. Roman Cath. Diocese of Rochester, 557 F. Supp. 2d 387, 393 (W.D.N.Y. 2008)

(alteration omitted and quoting Makarova v. U.S., 201 F.3d 110, 113 (2d Cir. 2000)); see

also Carter v. HealthPort Techs., LLC, 822 F.3d 47, 57 (2d Cir. 2016) (“[A] defendant is

permitted to make a fact-based Rule 12(b)(1) motion, proffering evidence beyond the

Pleading.”); Romano v. Kazacos, 609 F.3d 512, 520 (2d Cir. 2010) (“[I]f subject matter

jurisdiction is contested, courts are permitted to look to materials outside the pleadings.”).

Here, Plaintiff has not satisfied his burden. Defendants have submitted to the Court

a sworn affidavit from Gaston in which he states that during his employment with Lewis

Tree, neither he nor any of the employees he supervised performed any work in New York,

but instead they worked exclusively in Pennsylvania. (Dkt. 12 at ¶ 4). Plaintiff has come

forward with no evidentiary proof to controvert Gaston’s statement and, importantly, does

not claim that he ever lived or worked in New York. Instead, he merely argues that because

Lewis Tree is a New York corporation, “it is entirely plausible that Plaintiff could have

performed work within the State of New York[.]” (Dkt. 17 at 11). However, even

accepting Plaintiff’s argument, mere plausibility is insufficient to defeat a factually

supported motion to dismiss for lack of subject matter jurisdiction. See Amaya v.

Ballyshear LLC, 340 F. Supp. 3d 215, 219 (E.D.N.Y. 2018) (“‘If the affidavits submitted

on a fact-based 12(b)(1) motion reveal the existence of factual problems’ related to

jurisdiction, the plaintiff must present evidence of his own to counter the defendant’s

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evidence.”) (alterations omitted and quoting Exch. Nat’l Bank of Chicago v. Touche Ross

& Co., 544 F.2d 1126, 1131 (2d Cir. 1976)).

For these reasons, the Court agrees with Defendants that it lacks subject matter

jurisdiction over Plaintiff’s NYSHRL claims and those claims are dismissed without

prejudice. See Carter, 822 F.3d at 54 (a dismissal for lack of subject matter jurisdiction

must be without prejudice, because “without jurisdiction, the district court lacks the power

to adjudicate the merits of the case”).

II. Federal Claims Against Gaston

The Court turns next to Defendants’ contention that it lacks personal jurisdiction

over Gaston. “The requirement that a court have personal jurisdiction flows . . . from the

Due Process Clause. . . . It represents a restriction on judicial power not as a matter of

sovereignty, but as a matter of individual liberty.” Ins. Corp. of Ir., Ltd. v. Compagnie des

Bauxites de Guinee, 456 U.S. 694, 702 (1982). “On a Fed. R. Civ. P. 12(b)(2) motion to

dismiss for lack of personal jurisdiction, [the] plaintiff bears the burden of showing that

the court has jurisdiction over the defendant.” In re Magnetic Audiotape Antitrust Lit., 334

F.3d 204, 206 (2d Cir. 2003). “Prior to discovery, a plaintiff may survive a Rule 12(b)(2)

motion to dismiss by pleading in good faith legally sufficient allegations of jurisdiction.”

DiFillippo v. Special Metals Corp., 299 F.R.D. 348, 352 (N.D.N.Y. 2014) (citing Metro.

Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir. 1996)). “That is, where

a court relies only upon the pleadings and supporting affidavits, a plaintiff need only make

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a prima facie showing of personal jurisdiction over a defendant.” Id. (citing CutCo Indus.,

Inc. v. Naughton, 806 F.2d 361, 364 (2d Cir. 1986)).

“In general, a ‘district court’s personal jurisdiction is determined by the law of the

state in which the court is located.’” Mrs. U.S. Nat’l Pageant, Inc. v. Miss U.S. Org., LLC,

875 F. Supp. 2d 211, 219 (W.D.N.Y. 2012) (quoting Spiegel v. Schulmann, 604 F.3d 72,

76 (2d Cir. 2010)). “There are two ways that New York exercises personal jurisdiction

over non-residents: general jurisdiction pursuant to [New York Civil Practice Law and

Rules (“CPLR”) 301] . . . or specific jurisdiction pursuant to [CPLR 302].” Thackurdeen

v. Duke Univ., 130 F. Supp. 3d 792, 798 (S.D.N.Y. 2015) (quotation marks and citation

omitted), aff’d, 660 F. App’x 43 (2d Cir. 2016). “Specific jurisdiction is available when

the cause of action sued upon arises out of the defendant’s activities in a state. General

jurisdiction, in contrast, permits a court to adjudicate any cause of action against the . . .

defendant, wherever arising, and whoever the plaintiff.” Brown v. Lockheed Martin Corp.,

814 F.3d 619, 624 (2d Cir. 2016). “If personal jurisdiction exists under the forum state’s

laws, the district court must then determine if the exercise of such jurisdiction complies

with federal due process requirements.” Gaymar Indus. Inc. v. FirstMerit Bank, N.A., No.

06-CV-70S, 2007 WL 894217, at *3 (W.D.N.Y. Mar. 21, 2007) (citing Metro Life Ins., 84

F.3d at 567).

Plaintiff does not argue that the Court has general jurisdiction over Gaston, nor

could he successfully do so. “[A]s it relates to individuals, the . . . [general jurisdiction]

inquiry focuses on whether the defendant may fairly be regarded as ‘at home’ in the forum

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state—a location which, according to the Second Circuit, is generally limited to that

individual’s domicile.” Lebron v. Encarnacion, 253 F. Supp. 3d 513, 519 (E.D.N.Y. 2017)

(citing Sonera Holding B.V. v. Cukurova Holding A.S., 750 F.3d 221, 225 (2d Cir. 2014)

(“The paradigm forum for general jurisdiction over an individual is the individual’s

domicile, his home.”)). It is undisputed that Gaston is domiciled in Pennsylvania and there

are no other facts alleged in the complaint suggesting that this is the exceptional case in

which the Court can exercise general jurisdiction over a non-New York resident.

Plaintiff does suggest that the Court can exercise personal jurisdiction over Gaston

pursuant to CPLR 302(a)(2). (See Dkt. 17 at 13). CPLR 302(a)(2) confers personal

jurisdiction over defendants who “commit[] a tortious act within the state.” However,

nowhere in the complaint is it alleged that Gaston performed any work in New York or

supervised Plaintiff in New York, let alone committed a tortious act within New York.

Plaintiff further has not alleged any involvement by Gaston in the processing,

consideration, or denial of any request for leave, in New York or otherwise. Accordingly,

there is no plausible basis on which to find that CPLR 302(a)(2) allows the Court to

exercise personal jurisdiction over Gaston.

Plaintiff also has not identified any allegations that would allow the Court to

exercise personal jurisdiction under any other provision of the CPLR, nor made any

arguments in that regard. Plaintiff’s federal claims against Gaston are therefore dismissed

without prejudice for lack of personal jurisdiction.

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III. Federal Claims Against Lewis Tree

The Court turns next to Defendants’ argument that Plaintiff has failed to state a

claim under either the FMLA or the ADA as to Lewis Tree. Defendants seek dismissal of

these claims pursuant to Federal Rule of Civil Procedure 12(b)(6). (See Dkt. 13 at 24). “In

considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a

district court may consider the facts alleged in the complaint, documents attached to the

complaint as exhibits, and documents incorporated by reference in the complaint.”

DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). A court should

consider the motion by “accepting all factual allegations as true and drawing all reasonable

inferences in favor of the plaintiff.” Trs. of Upstate N.Y. Eng’rs Pension Fund v. Ivy Asset

Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). To withstand dismissal, a claimant must set forth

“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Turkmen v. Ashcroft, 589 F.3d 542, 546

(2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need

detailed factual allegations, a plaintiff’s obligation to provide the grounds of his

entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation

of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (alteration in

original) (internal quotations and citations omitted). “To state a plausible claim, the

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complaint’s ‘[f]actual allegations must be enough to raise a right to relief above the

speculative level.’” Nielsen v. AECOM Tech. Corp., 762 F.3d 214, 218 (2d Cir. 2014)

(alteration in original) (quoting Twombly, 550 U.S. at 555).

A. FMLA Claims

“The FMLA provides generally that a covered employer is required to grant an

eligible employee up to a total of 12 weeks leave during any 12-month period for personal

or family needs indicated in the act.” Coutard v. Municipal Credit Union, 848 F.3d 102,

108 (2d Cir. 2017) (citing 29 U.S.C. § 2612(a)). “To ensure the availability of its rights,

the FMLA makes it illegal for employers to: (1) ‘interfere with, restrain, or deny the

exercise of or the attempt to exercise, any right’ provided under the FMLA; or (2)

‘discharge or in any other manner discriminate against any individual for opposing any

practice made unlawful’ by the FMLA.” Prout v. Vladeck, 316 F. Supp. 3d 784, 800

(S.D.N.Y. 2018) (quoting 29 U.S.C. § 2615(a)). “The Second Circuit has recognized two

types of FMLA claims—‘interference’ claims and ‘retaliation’ claims.” Id. (citing Potenza

v. City of New York, 365 F.3d 165, 168 (2d Cir. 2004)). Here, Plaintiff has alleged both an

FMLA interference claim and an FMLA retaliation claim.

To succeed on an FMLA interference claim, Plaintiff must plead and prove: “(1)

that he is an eligible employee under the FMLA; (2) that defendant is an employer as

defined by the FMLA; (3) that he was entitled to leave under the FMLA; (4) that he gave

notice to the defendant of his intention to take leave; and (5) that he was denied benefits to

which he was entitled under the FMLA.” Daly v. Westchester Cty. Bd. of Legislators, No.

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19-CV-04642 (PMH), 2021 WL 229672, at *11 (S.D.N.Y. Jan. 22, 2021) (alterations

omitted and quoting Ziccarelli v. NYU Hosps. Ctr., 247 F. Supp. 3d 438, 447 (S.D.N.Y.

2017)). Defendants argue that Plaintiff has failed, in this case, to allege “that Lewis Tree

denied him FMLA leave, or that Plaintiff did not actually receive any period of unpaid

leave to which he would have been entitled under the FMLA.” (Dkt. 13 at 25). In

opposition, Plaintiff contends that because he does not know precisely when he was

terminated, it is plausible that the termination occurred during his 12-week FMLA leave

period. (Dkt. 17 at 13).

Plaintiff’s argument misapprehends the Rule 12(b)(6) plausibility standard. While

it is true that inferences must be drawn in favor of the non-moving party, it is not sufficient

that a plaintiff establish the mere possibility of liability. “If the court can infer no more

than the mere possibility of misconduct from the factual averments—in other words, if the

well-pleaded allegations of the complaint have not nudged claims across the line from

conceivable to plausible, dismissal is appropriate.” Illinois Nat. Ins. Co. v. Tutor Perini

Corp., No. 11 CIV. 431 KBF, 2012 WL 2543980, at *2 (S.D.N.Y. June 22, 2012)

(quotations omitted). Here, while it may be conceivable that Plaintiff was terminated

within 12 weeks of his request for FMLA leave, none of the facts alleged by Plaintiff make

that conclusion plausible. In particular, the Court is not persuaded by Plaintiff’s claim that

because he was advised by Yanisha in June of 2020 that he had been terminated “months

ago” and “not long after he requested leave” (Dkt. 17 at 13), it is plausible that he was

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terminated within 12 weeks of November 6, 2019.3 “When examining the facts to ascertain

whether a facially plausible claim exists in a complaint, a court is not permitted to consider

the surmise, conjecture or speculation of a movant; rather, the court’s analysis is relegated

to the factual matter contained in the complaint.” Agarwal v. United States, No. 14-CV-

1873 PAC KNF, 2015 WL 507996, at *6 (S.D.N.Y. Feb. 6, 2015), adopted, 2015 WL

887598 (S.D.N.Y. Mar. 2, 2015). Here, it is speculation on Plaintiff’s part that the vague

phrasing used by one of Lewis Tree’s secretaries in a conversation in June of 2020 implies

that he was terminated during his protected leave period.4

Moreover, and as Defendants correctly argue, Plaintiff has not plausibly alleged that

he was denied any benefits to which he was entitled under the FMLA. A plaintiff “has no

viable FMLA interference claim” if “at the expiration of [his] twelve weeks of FMLA

leave, [he] was not medically able to return to work and, therefore, [he] was not entitled to

reinstatement to the same or equivalent position.” Wanamaker v. Town of Westport Bd. of

Educ., 11 F. Supp. 3d 51, 70 (D. Conn. 2014) (citing 29 C.F.R. § 825.216(c) (“If the

employee is unable to perform an essential function of the position because of a physical

3 Gaston has submitted a sworn affidavit stating that Plaintiff was terminated effective

May 22, 2020. (Dkt. 12 at ¶ 10). However, the Court cannot and has not considered

Gaston’s affidavit in connection with Defendants’ Rule 12(b)(6) challenge to Plaintiff’s

FMLA and ADA claims.

4 Indeed, it is not even clear from the complaint whether Plaintiff is alleging that

Yanisha stated that he had been terminated “not long after he had given the company of his

notice of his need for job-protected leave,” or if this is Plaintiff’s own interpretation of the

statement that he had been terminated “months ago.” (Dkt. 1 at ¶ 32). However, in light

of the stage of the proceedings, the Court has assumed that Yanisha actually made this

statement.

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or mental condition, including the continuation of a serious health condition . . ., the

employee has no right to restoration to another position under the FMLA.”)). Here,

Plaintiff’s own allegations establish that he was not medically cleared to return to work

until July 6, 2020, several months after his 12-week FMLA leave period had expired. (Dkt.

1 at ¶ 29). He accordingly cannot maintain an FMLA interference claim based on Lewis

Tree’s failure to restore him to his position.

Plaintiff argues that his FMLA interference claim is nevertheless viable because he

“never even received notice of his rights to leave under the FMLA.” (Dkt. 17 at 14; see

also Dkt. 1 at 8, ¶ 575 (“Defendants denied Plaintiff a benefit to which he is entitled under

the FMLA in that they refused to provide him with notice of his rights under the FMLA

pursuant to 29 U.S.C. § 2615(a)(1).”)). Plaintiff’s argument runs counter to well-

established Second Circuit precedent. As another court in this Circuit has explained:

The failure to provide notice of the terms of the FMLA, “where the lack of

notice had no effect on the employee’s exercise of or attempt to exercise any

substantive right conferred by the Act,” is insufficient to state a cause of

action. Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 162

(2d Cir. 1999). On the other hand, the failure to provide notice that inhibits

or restricts an employee from successfully obtaining leave or the right to

reinstatement does result in a denial of benefits and can result in a cause of

action for interference.

Fernandez v. Windmill Distrib. Co., 159 F. Supp. 3d 351, 363 (S.D.N.Y. 2016); see also

Sarno, 183 F.3d at 162 (“[T]o the extent that Sarno contends that the assumed right to

5 There is a numbering error in Plaintiff’s complaint, in that the numbered paragraphs

go from 61 back to 51, and paragraphs 51 through 61 accordingly repeat. (See Dkt. 1 at 9-

10). To avoid confusion, when citing to paragraphs 51 through 61 of the complaint, the

Court also provides the page number.

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notice stands as an independent right under the Act, and that an employee may sue the

employer for failure to give notice even if that failure in no way affected the employee’s

leave, benefits, or reinstatement, we reject that contention. The Act makes it unlawful for

the employer to impede an employee’s actual or attempted ‘exercise’ of a right provided

under subchapter I. A right to receive notice is not a right that the intended recipient of the

notice ‘exercise[s].’” (second alteration in original)); cf. 29 C.F.R. § 825.301 (“[I]f an

employer that was put on notice that an employee needed FMLA leave failed to designate

the leave properly, but the employee’s own serious health condition prevented him or her

from returning to work during that time period regardless of the designation, an employee

may not be able to show that the employee suffered harm as a result of the employer’s

actions.”).

Here, Plaintiff has not plausibly alleged that any failure to give notice by Lewis Tree

interfered with his substantive FMLA rights. Plaintiff concedes that he was able to take

unpaid leave beginning on November 6, 2020 (Dkt. 1 at 9, ¶ 52), and, as discussed above,

he has not plausibly alleged that such leave was terminated within 12 weeks thereafter. As

further discussed above, Plaintiff also has not plausibly alleged that he was denied

reinstatement, because he concededly was medically unable to return to work at the end of

the FMLA leave period. Plaintiff thus cannot maintain an interference claim based on an

alleged failure to provide notice. See Sarno, 183 F.3d at 161-62 (“Sarno’s right to

reinstatement could not have been impeded or affected by the lack of notice because his

leave was caused by a serious health condition that made him unable to perform the

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functions of his position, and it is undisputed that that inability continued for some two

months after the end of his 12-week FMLA leave period. Any lack of notice of the statutory

12-week limitation on FMLA leave could not rationally be found to have impeded Sarno’s

return to work.” (quotation and alterations omitted)).

Plaintiff also has not plausibly alleged an FMLA retaliation claim. In order to make

a prima facie showing of retaliation, Plaintiff “must establish that: 1) he exercised rights

protected under the FMLA; 2) he was qualified for his position; 3) he suffered an adverse

employment action; and 4) the adverse employment action occurred under circumstances

giving rise to an inference of retaliatory intent.” Potenza, 365 F.3d at 168. In this context,

it is sufficient for Plaintiff to show that “his exercise of his FMLA rights was a ‘motivating

factor’ in the termination decision.” Lievre v. JRM Constr. Mgmt., LLC, No. 17-CV-4439

(BCM), 2019 WL 4572777, at *11 (S.D.N.Y. Sept. 20, 2019) (quoting Woods v. START

Treatment & Recovery Ctrs., Inc., 864 F.3d 158, 168-69 (2d Cir. 2017)).

Here, Plaintiff argues that the timing of his termination gives rise to an inference of

retaliation. (See Dkt. 17 at 14). More particularly, he claims that it is plausible that he was

terminated within “three to four (4) months” of exercising his right to FMLA-protected

leave. (Id.). This argument suffers from the same flaw discussed above—namely, that

while it may be conceivable that Plaintiff was terminated within three to four months of

requesting leave under the FMLA, Plaintiff has alleged no facts to render that conclusion

plausible. “The plausibility standard . . . asks for more than a sheer possibility that a

defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent

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with a defendant’s liability, it stops short of the line between possibility and plausibility of

entitlement to relief.” Elias v. Rolling Stone LLC, 872 F.3d 97, 104 (2d Cir. 2017)

(quotations omitted). Here, the allegation that Plaintiff was terminated “months” prior to

June 2020, is equally consistent with the conclusion that he was terminated in March or

April of 2020 as it is with the conclusion that he was terminated in January or February of

2020. See Mohan v. UBS Fin. Servs. Inc., No. 3:19-CV-00663 (JAM), 2020 WL 1274602,

at *3 (D. Conn. Mar. 17, 2020) (“[T]he plausibility standard means that a complaint will

fail if it alleges facts that establish nothing more than that a defendant engaged in conduct

that is equally consistent with lawful acts as it is with unlawful acts.”). Because Plaintiff

has not plausibly alleged that he was terminated in close temporal proximity to his request

for FMLA leave, see Lambert v. Trump Int’l Hotel & Tower, 304 F. Supp. 3d 405, 423

(S.D.N.Y. 2018) (“To establish a causal connection on the basis of temporal proximity, the

adverse action must be very close in time to the protected activity. The Second Circuit has

not established a bright line to define the outer limits beyond which a temporal relationship

is too attenuated. However, the passage of about two months between the protected activity

and the adverse action appears to be the approximate dividing line.” (quotations omitted

and collecting cases)), and because he has not alleged any other facts that would give rise

to an inference of retaliatory intent, his FMLA retaliation claim must be dismissed.

B. ADA Claims

The Court turns next to Plaintiff’s claims under the ADA. Plaintiff has alleged both

a failure-to-accommodate claim and a retaliation claim under this statute. (See Dkt. 1 at

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10-12). “To plead a failure-to-accommodate claim, a plaintiff must allege that ‘(1) [he] is

a person with a disability under the meaning of the ADA; (2) an employer covered by the

statute had notice of [his] disability; (3) with reasonable accommodation, [he] could

perform the essential functions of the job at issue; and (4) the employer has refused to make

such accommodations.’” Dooley v. JetBlue Airways Corp., 636 F. App’x 16, 18 (2d Cir.

2015) (quoting McMillan v. City of N.Y., 711 F.3d 120, 125-26 (2d Cir. 2013)). In addition,

“the ADA envisions an interactive process by which employers and employees work

together to assess whether an employee’s disability can be reasonably accommodated.”

McBride v. BIC Consumer Products Mfg. Co., Inc., 583 F.3d 92, 99 (2d Cir. 2009)

(quotations omitted). An employer’s refusal to engage in the interactive process can relieve

a plaintiff of the need to “plead the nature of [his] requested accommodation with

specificity[.]” Giblin v. LeMoyne Coll., No. 5:20-CV-00477 LEK ATB, 2021 WL 781363,

at *13 (N.D.N.Y. Mar. 1, 2021).

Defendants argue that Plaintiff’s ADA failure-to-accommodate claim fails as a

matter of law because Plaintiff “never actually alleges that he even requested an

accommodation, or if he did what that accommodation was, when or how or to whom he

did so or the way in which it was handled by Lewis Tree, what Lewis Tree allegedly did

or did not [do] to engage in the interactive process under the ADA, or any other detail about

Lewis Tree’s alleged refusal of the accommodation.” (Dkt. 13 at 28). The Court disagrees.

Reading the complaint in the light most favorable to Plaintiff, it is a reasonable inference

that his requested accommodation was for medical leave from November 6, 2019, until he

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was finished with chemotherapy. (See Dkt. 1 at ¶¶ 25-28). “[M]edical leaves of absence

can be an appropriate form of accommodation contemplated by the ADA.” Micari v. Trans

World Airlines, Inc., 43 F. Supp. 2d 275, 281 (E.D.N.Y. 1999) (noting that “[w]here the

medical leaves of absence stretch beyond a year, . . . courts have found that the employee,

as a matter of law, cannot perform the essential functions of his position”), aff’d, 205 F.3d

1323 (2d Cir. 1999); see also Graves v. Finch Pruyn & Co., 457 F.3d 181, 186 n.6 (2d Cir.

2006) (“[C]ourts considering this question have concluded that a leave of absence may be

a reasonable accommodation where it is finite and will be reasonably likely to enable the

employee to return to work.”); Rogers v. New York Univ., 250 F. Supp. 2d 310, 316-17

(S.D.N.Y. 2002) (“The ADA generally recognizes medical leaves as reasonable

accommodations. . . . Extended leaves may also be found reasonable.”).

The Court further rejects Defendants’ argument that Plaintiff was required to allege

in more detail how Lewis Tree processed his request. Again, drawing all inferences in

Plaintiff’s favor, Lewis Tree denied Plaintiff’s request for medical leave until his

chemotherapy was completed. That is sufficient to satisfy Plaintiff’s pleading burden.

Further, because it is a reasonable inference from Plaintiff’s allegations that Lewis Tree

outright denied his requested accommodation, the Court need not and does not assess the

plausibility of Plaintiff’s allegations that Lewis Tree failed to engage in the required

interactive process. See Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 219

(2d Cir. 2001) (conclusion that the plaintiff had presented “sufficient evidence of an

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outright refusal to accommodate” obviated need for court to consider the employer’s

alleged failure to engage in the interactive process).

For these reasons, the Court will not dismiss Plaintiff’s ADA failure-to-

accommodate claim at this time. However, the Court agrees with Defendants that

Plaintiff’s ADA retaliation claim is insufficiently pled. “In order to establish a prima facie

case of retaliation, [Plaintiff] must show that: (1) he engaged in an activity protected by the

ADA; (2) the employer was aware of this activity; (3) the employer took adverse

employment action against him; and (4) a causal connection exists between the alleged

adverse action and the protected activity.” Treglia v. Town of Manlius, 313 F.3d 713, 719

(2d Cir. 2002). “[A] plaintiff bringing a retaliation claim under . . . the ADA . . . must

plausibly allege that the retaliation was a but-for cause of the employer’s adverse action.”

Mehta v. City of New York, No. 1:19-CV-03857-NG-VMS, 2022 WL 280460, at *7

(E.D.N.Y. Jan. 31, 2022) (quotation omitted).

Here, as with Plaintiff’s FMLA retaliation claim, temporal proximity appears to be

the only basis Plaintiff identifies for inferring a causal relationship. (See Dkt. 17 at 15

(arguing that Plaintiff has adequately pled but-for causation because “Plaintiff was

employed by Defendants for over a decade. He took time off due to his cancer diagnosis

and treatment. Within months, he learns he has been terminated despite the fact that he

requested leave for a qualifying reason.”)). However, as explained above, Plaintiff has not

plausibly alleged that his protected activity of asking for medical occurred in sufficiently

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close temporal proximity to his termination.6 Because Plaintiff has not plausibly alleged a

causal connection between his request for an accommodation and his later termination, his

ADA retaliation claim is dismissed.

IV. Request for Leave to Amend

Finally, the Court denies without prejudice Plaintiff’s cursory request for leave to

amend in the event any of his claims are dismissed. (Dkt. 17 at 16 (“[I]n the event

Plaintiff’s claims are dismissed (which they should not be), Plaintiff respectfully requests

leave to amend the complaint.”)). This request is not a proper motion for leave to amend

and it fails to comply with this Court’s Local Rules. See Wi3, Inc. v. Actiontec Elecs., Inc.,

71 F. Supp. 3d 358, 363 (W.D.N.Y. 2014); see also Food Holdings Ltd. v. Bank of Am.

Corp., 423 F. App’x 73, 76 (2d Cir. 2011) (finding district court did not abuse its discretion

in denying leave to amend complaint when request to amend was made “on the final page

of their brief in opposition to defendants’ motion to dismiss, in boilerplate language and

without any explanation as to why leave to amend was warranted” and collecting cases).

If Plaintiff believes in good faith that his claims can be amended to address the deficiencies

identified above, he may file a procedurally compliant motion for leave to amend.

6 While Plaintiff alleges that he provided Lewis Tree with doctor’s notes from each

of his chemotherapy appointments from January 21, 2020, to June 6, 2020 (Dkt. 1 at ¶ 27),

he has not plausibly alleged that the provision of such doctor’s notes constituted renewed

requests for leave, as opposed to merely apprising Lewis Tree of his medical status.

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CONCLUSION

For the foregoing reasons, the Court denies Defendants’ motion to dismiss (Dkt.

11) solely as to Plaintiff’s ADA failure-to-accommodate claim against Lewis Tree and

grants Defendants’ motion to dismiss as to all other claims, which are dismissed without

prejudice. The Clerk of Court is directed to terminate Robert Gaston as a defendant in this

matter.

SO ORDERED.

____________________________

ELIZABETH A. WOLFORD

Chief Judge

United States District Court

Dated: March 10, 2022

Rochester, New York

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