Sarno v. Douglas Elliman-Gibbons & Ives

• Citation: 1999 WL 462669,183 F.3d 155
• Decision Date: 01 August 1998
• Docket Number: ELLIMAN-GIBBONS,Docket No. 98-9295
• Parties: (2nd Cir. 1999) MICHAEL SARNO, Plaintiff-Appellant, v. DOUGLAS& IVES, INC., Defendant-Appellee, INSIGNIA FINANCIAL GROUP, INC., Defendant
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 155

183 F.3d 155 (2nd Cir. 1999)

MICHAEL SARNO, Plaintiff-Appellant, v. DOUGLAS ELLIMAN-GIBBONS & IVES, INC., Defendant-Appellee, INSIGNIA FINANCIAL GROUP, INC., Defendant.

Docket No. 98-9295

August Term, 1998

UNITED STATES COURT OF APPEALS SECOND CIRCUIT

Argued May 28, 1999

Decided July 09, 1999

Appeal from a judgment of the United States District Court for the Southern District of New York, Robert L. Carter, Judge, dismissing claims under the Americans With Disabilities Act, 42 U.S.C. §12101 et seq., and the Family and Medical Leave Act, 29 U.S.C. §2601 et seq. See 17 F. Supp.2d 271 (1998).

Affirmed.

[Copyrighted Material Omitted] BRIAN K. SALTZ, Farmingdale, New York, for Plaintiff-Appellant.

BETTINA B. PLEVAN, New York, New York (Tracey I. Levy, Proskauer Rose, New York, New York, on the brief), for Defendant-Appellee.

Before: KEARSE, WALKER, and POOLER, Circuit Judges.

KEARSE, Circuit Judge:

Plaintiff Michael Sarno appeals from a judgment of the United States District Court for the Southern District of New York, Robert L. Carter, Judge, dismissing his complaint alleging that defendant Douglas Elliman-Gibbons & Ives, Inc. ("DEGI"), discriminated and retaliated against him in violation of the Americans With Disabilities Act ("ADA"), 42 U.S.C. §12101 et seq. (1994), and alleging that DEGI terminated his employment without giving him notice of the amount of leave to which he was entitled under the Family and Medical Leave Act ("FMLA" or the "Act"), 29 U.S.C. §2601 et seq. (1994). The district court granted summary judgment in favor of DEGI, dismissing the ADA claims on the ground that Sarno had not adduced evidence of a disability within the scope of the ADA, and dismissing the FMLA claim on the ground that Sarno had received every substantive benefit to which he was entitled under that Act. On appeal, Sarno pursues his contention that the termination of his employment violated his rights under the FMLA, and he contends that there were genuine issues of fact to be tried as to his ADA retaliation claim. Finding no basis for reversal, we affirm.

I. BACKGROUND

An employer covered by the FMLA is generally required to grant an "eligible employee" up to 12 weeks leave during any 12 month period for, inter alia, "a serious health condition that makes the employee unable to perform the functions of the position of such employee." 29 U.S.C. §2612(a)(1)(D). An "eligible employee" is defined as one who, inter alia, has been employed for at least 12 months by the employer from whom leave is sought. See id. §2611(2)(A). At the times pertinent to this case, DEGI was an employer covered by the FMLA; on or about April 18, 1995, Sarno, having been hired by DEGI one year earlier, became an eligible employee.

The present action centers principally on DEGI's termination of Sarno's employment in August 1995, following the 12 week leave of absence to which he was entitled under the FMLA. Except to the extent indicated below, the pertinent facts are not in dispute, having been asserted in DEGI's Statement Pursuant to Local Rule 56.1 ("DEGI Rule 56.1 Statement") of the material facts as to which DEGI contended there was no genuine issue to be tried, and not having been disputed by Sarno in accordance with that Rule.

A. Sarno's Employment with DEGI

Beginning in mid-April 1994, Sarno was employed by DEGI as a payroll administrator. In March 1995, Sarno fell at work and aggravated a pre-existing hernia injury. In early May 1995, he underwent a CAT scan and was diagnosed as having a sprained rectus muscle. On May10, Sarno telephoned his DEGI supervisor, Judy Caplan, from home and informed her that he "was going out on workmen's comp." (DEGI Rule 56.1 Statement ¶21.) By letter dated May 12, 1995, DEGI informed Sarno that his absence would be treated as unpaid leave under the FMLA for that calendar year. Sarno received and read the letter shortly thereafter.

During that leave of absence, Sarno contacted Caplan "every couple of weeks"; at no time during those conversations did he inform her of a specific date on which he would be able to return to work. (DEGI Rule 56.1 Statement ¶26.) In one such conversation near the beginning of July Sarno informed Caplan that he did not know when he would be able to return to work.

On August 3, 1995, the day on which Sarno's 12 week FMLA leave was to end, DEGI Human Resources Director Joyce Sponholz telephoned Sarno to inquire when he would return to work. In a telephone conversation on August 3 or 4, Sarno advised Sponholz that he was still disabled. On August 4, Sponholz informed Sarno that his 12 week FMLA leave had expired and that since DEGI needed to fill his position and was not required to grant him further leave, DEGI was terminating his employment. It is undisputed that Sarno was in fact unable to perform the essential functions of his DEGI position between May 10, 1995, and October 2, 1995.

B. Post-Termination Events

Following the termination of his employment with DEGI, Sarno sought reinstatement but was not reinstated. In January 1996, he filed a charge with the Equal Employment Opportunity Commission ("EEOC") alleging that DEGI's refusal to reinstate him constituted discrimination based on disability, in violation of the Americans with Disabilities Act.

Sarno also sought employment elsewhere, including with a company called Anthony Concrete Supply ("Anthony Concrete"). In June 1996, a representative of that company telephoned Sponholz requesting a reference for Sarno. Sponholz informed the caller that DEGI did not give references by telephone, and that in any event DEGI would verify only dates of employment, position, and last salary. Sarno was not offered a position by Anthony Concrete.

C. The Present Action

Sarno commenced the present action in November 1996, alleging principally (1) that DEGI's termination of his employment and its failure to reinstate him violated his rights under the ADA, (2) that DEGI's refusal to give him a positive reference when Anthony Concrete called was an act of retaliation against him for having filed an ADA charge with the EEOC, and (3) that DEGI's termination of his employment without giving him notice that he was not entitled to more than 12 weeks of leave under the FMLA violated that Act. Sarno sought, inter alia, reinstatement to his former position, backpay, and compensatory, punitive, and liquidated damages.

Following discovery, both sides moved for summary judgment. In support of its motion, DEGI submitted a Rule 56.1 Statement setting out most of the events described above, and Sarno did not dispute those assertions. DEGI also asserted that in April and May 1994, respectively, it had posted federal official notices entitled "Your Rights Under the Family and Medical Leave Act of 1993" on a bulletin board at Sarno's jobsite and on a bulletin board in the hallway leading to Sarno's office. Sarno disputed those two assertions. He also disputed DEGI's assertion that it was a DEGI corporate policy to disclose only an employee's date of hire, position held, and final salary in response to a request for an employee reference.

In an opinion published at 17 F. Supp.2d 271 (1998), the district court denied Sarno's motion for summary judgment and granted that of DEGI. The court rejected Sarno's ADA claims on the ground that Sarno had proffered no evidence of a disability within the meaning of the ADA. It rejected Sarno's FMLA claim, finding that the dispute as to whether or not DEGI had posted FMLA notices was not material because Sarno had received "the full benefits conveyed by the FMLA, namely, remaining on unpaid leave and enjoying insurance coverage for twelve weeks." 17 F. Supp.2d at 275. Thus, "even if defendant failed to provide proper information to plaintiff as to what his rights were under the FMLA, defendant did not interfere with those rights and is not subject to the penalty of liquidated damages sought by plaintiff pursuant to [the FMLA]." Id.

Judgment was entered dismissing the complaint, and this appeal followed.

II. DISCUSSION

On appeal, Sarno pursues only his FMLA claim and his ADA retaliation claim. For the reasons that follow, we affirm the dismissal of those claims because, in each instance, Sarno failed to present evidence sufficient to make out a prima facie case.

A. The ADA Retaliation Claim

The ADA prohibits, inter alia, retaliation against any individual who has asserted rights under the ADA:

No person shall discriminate against any individual because such individual ... made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.

42 U.S.C. §12203(a). This provision is substantially similar to the retaliation prohibition in Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §2000e 3(a) (1994) ("[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because [the employee] has opposed any practice made an unlawful employment practice by" Title VII). Given that similarity, and given that in dealing with claims of discrimination under the ADA we use the same burden-shifting approach that we use in dealing with discrimination claims under Title VII, see, e.g., Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 52 (2d Cir. 1998), we conclude that it is appropriate to apply the framework used in analyzing retaliation claims under Title VII in analyzing a claim of retaliation under the ADA. Accord Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1328 (11th Cir. 1998); Barnett v. U.S. Air, Inc., 157 F.3d 744, 753 (9th Cir. 1998); Steffes v. Stepan Co., 144 F.3d 1070, 1074 (7th Cir. 1998); Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998).

To establish a prima facie case of retaliation under the ADA, a plaintiff must establish that (1) the employee was engaged in an activity protected by the ADA, (2) the employer was aware of that activity, ...