PIERCE v. National Employment Lawyers Association/New York, Amicus Curiae.

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Supreme Court, Appellate Division, First Department, New York.

Michael PIERCE, Plaintiff-Appellant, v. HSBC MORTGAGE CORPORATION (USA), et al., Defendants-Respondents. National Employment Lawyers Association/New York, Amicus Curiae.

Decided: June 21, 2005

TOM, J.P., SAXE, MARLOW, ELLERIN, JJ. Alterman & Boop LLP, New York (Arlene F. Boop of counsel), for appellant. Phillips Lytle LLP, New York (Meredith Friedman of counsel), for respondents. Bernstein Litowitz Berger & Grossmann LLP, New York (Darnley D. Stewart of counsel), and Robert H. Stroup, New York, for National Employment Lawyers Association/New York, amicus curiae.

Order, Supreme Court, New York County (Richard B. Lowe III, J.), entered April 22, 2004, which denied plaintiff's motion for summary judgment on his claims for breach of contract and quantum meruit, and granted defendants' cross motion for summary judgment dismissing the complaint in its entirety, unanimously affirmed, without costs.

 Plaintiff, a mortgage loan officer, contends that defendants violated the Family and Medical Leave Act of 1993 (FMLA) when, in terminating his employment while on FMLA leave, they denied him about $400,000 in commissions for loans he had negotiated which had been approved but had not yet closed.   To properly state an actionable denial of benefits under FMLA, a claimant must show an employment relationship, entitlement to take leave, notice to the employer of intention to do so, and the employer's denial of benefits guaranteed under FMLA (see Santos v. Knitgoods Workers' Union, 1999 U.S. Dist. LEXIS 9036, *7, 1999 WL 397500, *3 [S.D.N.Y.]., affd. 252 F.3d 175 [2d Cir.2001] ).   Plaintiff has failed to demonstrate interference with or denial of a statutory entitlement.

FMLA entitles an employee to 12 workweeks of unpaid leave (29 USC § 2612 [a] [1] ).   The statute also provides that an employee who chooses to take such leave shall not lose any employment benefits accrued prior to the commencement of such leave (§ 2614[a][2] ).   Although FMLA does not define the term “benefit,” it does define “employment benefits” to mean “all benefits provided ․ including group life insurance, health insurance, disability insurance, sick leave, annual leave, educational benefits, and pensions” (§ 2611[5] ).   Salary and commissions are plainly not included in this list.   Furthermore, plaintiff cannot prove interference with or denial of benefits because he requested and was granted FMLA leave.   He has not alleged, nor is there any evidence to demonstrate, that defendants discouraged plaintiff from taking this leave (see Potenza v. City of New York, 365 F.3d 165, 167 [2d Cir.2004] ).

 In view of plaintiff's failure to set forth a claim for interference with or denial of benefits to which he was entitled under FMLA, the motion court employed the proper burden-shifting analysis set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 [1973] for retaliatory discharge cases (see Potenza, 365 F.3d at 167).   Under the McDonnell Douglas framework, plaintiff failed to make out a prima facie case of retaliation in the first instance, since he failed to establish a causal connection between his termination and his taking FMLA leave.   As the documentary evidence makes clear, defendants sought to terminate plaintiff's employment before plaintiff requested and obtained FMLA leave.   No FMLA violation occurs where an employer has already decided to terminate the employee before leave is requested (Kennebrew v. New York City Hous. Auth., 2002 U.S. Dist. LEXIS 3038, *76-78, 2002 WL 265120, *19-20 [S.D.N.Y.];   see Carrillo v. National Council of Churches of Christ in U.S.A., 976 F.Supp. 254, 256 [S.D.N.Y.1997] ).

 Assuming a prima facie case of retaliatory discharge was established, the documentary evidence nonetheless indicates that defendants had legitimate, non-discriminatory reasons for terminating plaintiff, including numerous complaints from customers and colleagues, his unprofessional attitude, and his refusal to abide by defendants' policies.   Once the burden shifted to plaintiff to expose defendants' reasons for termination as false and pretextual, he failed to meet the requisite standard.

We have considered plaintiff's remaining contentions and find them without merit.