Tambash
v.
St. Bonaventure University

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United States District Court, W.D. New YorkSep 24, 2004
No. 99CV967. (W.D.N.Y. Sep. 24, 2004)

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No. 99CV967.

September 24, 2004


Report Recommendation


Before the Court is the defendant's motion for summary judgment (Docket No. 67) and the plaintiff's cross motion for partial summary judgment (Docket No. 78).

Background

The plaintiff, Terrence N. Tambash ("Tambash"), was hired by St. Bonaventure University ("St. Bonaventure") as security personnel in 1985. Eventually, Tambash was promoted to the position of Director of Security Services and remained in that title until he was terminated in June of 1999. Tambash alleges that beginning in late 1998 he began experiencing depression and anxiety as a result of "personal and professional problems" relating to a coworker who named him as an aider and abettor in administrative charges filed against St. Bonaventure. The plaintiff asserts that on June 7, 1999, he requested a one-month vacation to deal with the stress and depression. The plaintiff maintains that at the same time he notified his supervisor, George Solan, that upon his return from vacation he would need to take a medical leave of absence due to the mental health problems he was experiencing. At that time, it appears that St. Bonaventure offered administrative employees, including the plaintiff, medical leave and short-term disability benefits. It is asserted that these benefits would provide up to six months off from work at full wages, as well as continuing medical and other insurance coverages. At the expiration of the medical leave, the employee may be eligible for long-term medical disability benefits.

Tambash asserts that on or about June 29, 1999, while he was on vacation, he received a letter from Solan advising Tambash that his employment with St. Bonaventure was terminated immediately due to unsatisfactory work performance, neglect of duties and incompetence.

In the Amended Complaint, Tambash alleges two claims. The first is that he was terminated to deprive him from obtaining medical and disability benefits in violation of § 510 of the Employee Retirement Income Security Act ("ERISA"). Complaint at ¶¶ 17-22. The second claim is that the failure to grant the plaintiff a leave of absence, and his termination, were in violation of the Family and Medical Leave Act ("FMLA") as set forth in 29 U.S.C. § 2615(a)(1). Complaint at ¶¶ 23-26.

The plaintiff's original complaint included a Family and Medical Leave Act ("FMLA") claim. The District Court dismissed the FMLA claim on the grounds that it was not properly pled and allowed the plaintiff to file an Amended Complaint. (Docket No. 20). The Amended Complaint, including a re-stated FMLA claim, was filed on February 16, 2003. (Docket No. 23).

The defendant seeks summary judgment on the following grounds: (1) that the plaintiff cannot demonstrate a prima facie case with respect to either his ERISA claim (Docket No. 68 at pages 13-26) or his FMLA claim (Docket No. 68 at pages 26-38); (2) that the defendant had a legitimate non-discriminatory basis for terminating the plaintiff's employment (Docket No. 68 at pages 38-42); and (3) that plaintiff's claim for damages due to emotional distress are not permitted as a matter of law (Docket No. 68 at pages 42-46). This last issue is not disputed. In response to the instant motion, the plaintiff states that he has not asserted a claim for damages relating to emotional distress under ERISA or the FMLA and further acknowledges that compensatory damages for emotional distress are not recoverable under ERISA or FMLA. (Docket No. 79 at page 29). Thus, the Court need not address this claim further.

The plaintiff asserts that he is entitled to summary judgment with respect to his FMLA claim inasmuch as the evidence in the record "overwhelmingly establishes" that after Tambash expressed interest in taking sick leave on June 11, 1999, the defendant began looking for reasons to justify his termination. (Docket No. 79 at page 17). The plaintiff also seeks summary judgment as to his claim under § 510 of ERISA on the grounds that the defendant's purported basis for discharging the plaintiff included incidents related to the plaintiff's illness (for which he was seeking sick leave). (Docket No. 79 at page 28).

Summary Judgment

Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Ford v. Reynolds, 316 F.3d. 351 (2nd Cir. 2003); Fed.R.Civ.P. 56(c). The party seeking summary judgment has the burden to demonstrate that no genuine issue of material fact exists. In determining whether a genuine issue of material fact exists, a court must examine the evidence in the light most favorable to, and draw all inferences in favor of, the non-movant. Ford, 316 F.3d. at 354. "A dispute regarding a material fact is genuine `if the evidence is such that a reasonable jury could return a verdict for the non-moving party.'" Lazard Freres Co. v. Protective Life Ins. Co., 108 F.3d 1531, 1535 (2d Cir. 1997) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248, (1986)). While the moving party must demonstrate the absence of any genuine factual dispute, (Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)), the party against whom summary judgment is sought, however, "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . [T]he non-moving party must come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87(1986); McCarthy v. American Intern. Group, Inc., 283 F.3d 121 (2d Cir. 2002); Marvel Characters v. Simon, 310 F.3d 280, 285-86 (2d Cir. 2002).

Motions for Summary Judgment

St. Bonaventure contends that its Medical Leave of Absence Plan is a "payroll practice" and not an "employee benefit plan" subject to ERISA. Further, the defendant asserts that the plaintiff cannot demonstrate that St. Bonaventure had a specific intent to deprive him of benefits under § 510. The defendant also asserts that the plaintiff's FMLA claim must be dismissed inasmuch as the complaint fails to allege that the plaintiff had a serious health condition that made him unable to perform the essential function of his position, and that he failed to provide the University with sufficient notice.

The ERISA Claim

The plaintiff asserts that the defendant terminated his employment to interfere with the plaintiff's ability to take advantage of the University's Medical Leave of Absence Plan (in essence, a short-term disability program) and, consequently, his ability to obtain long-term disability benefits. However, the defendant contends that the University's medical leave of absence policy is not an "employee benefit plan" as defined under ERISA, and thus, a claim under § 510 cannot be maintained.

To state a claim under § 510, plaintiffs must allege that defendant took some type of adverse employment action to interfere with the attainment of their benefit rights under the plan. Maguire v. Level Sights, Inc., 2004 WL 1621187, *2 (S.D.N.Y.,2004); Degrooth v. General Dynamics Corp., 837 F.Supp. 485, 489 (D.Conn. 1993), aff'd, 28 F.3d 103 (2d Cir. 1994) (citations omitted); see also, DeSimone v. Transprint USA, Inc., 1996 WL 209951, *3 (S.D.N.Y. Apr. 29, 1996) ("The focus of § 510 is the employment relationship; an adverse change in that relationship that is motivated at least in part by the employer's desire to prevent the employee from attaining the benefits under the benefit plan . . .").

According to the Administrators Handbook (attached as Exhibit F to Docket No. 81), St. Bonaventure's "Medical Leave of Absence" program states as follows (in pertinent part):

Full-time Administrators who are unable to perform their regularly assigned duties due to illness, bodily injury, or pregnancy will continue to receive wages for up to six months following the onset of the disability. . . .
Health care benefits, life insurance, and long term disability insurance will be continued as for any active employee during the Medical Leave of Absence. Pension payments will also be continued during the Medical Leave of Absence.
At the University's discretion, and with the approval of the supervisor of the department and the divisional Executive Office, it may grant a Medical Leave of Absence upon the written application of the administrator or the administrator's physician. A physician's certificate citing the need for and expected duration of, such leave must accompany the leave request. The University reserves the right to require an examination and/or consultation with a physician with the cost of such examination and/or consultation paid by the University.
A. An administrator on an approved Medical Leave of Absence will receive full salary for no more than six months, after which time the administrator may be eligible for medical disability insurance.
B. Approved leaves of absences taken under the Medical Leave of Absence Policy and/or Person Leave which satisfy all requirements of the Family and Medical Leave Act will run concurrently with Family and Medical Leaves of absences.

Claims under § 510 are analyzed using the three-step burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973): First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the employee's rejection. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Dister v. Continental Group, Inc., 859 F.2d 1108, 1111 (2d Cir. 1998); Chamberlain v. University of Rochester, Retirement Plan Committee, 2004 WL 1574540, *2 (W.D.N.Y.,2004).

As part of its prima facie case, it is the plaintiff's burden to establish that the plan at issue is an ERISA covered employee benefit plan. Section 510 of ERISA provides, in relevant part:

[i]t shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan . . . or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan.
29 U.S.C.A. § 1140 (emphasis added).

ERISA defines an "employee benefit plan" as "an employee welfare benefit plan." 29 U.S.C.A. § 1002(3). An "employee welfare benefit plan" is statutorily defined as follows:

any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer . . . to the extent that such plan, fund, or program was established or is maintained for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, (A) medical, surgical, or hospital care or benefits, or benefits in the event of sickness, accident, disability, death or unemployment, or vacation benefits, apprenticeship or other training programs, or day care centers, scholarship funds, or prepaid legal services, or (B) any benefit described in section 186(c) of this title (other than pensions on retirement or death, and insurance to provide such pensions).
29 U.S.C.A. § 1002(1).

Regulations have been adopted "to clarify the definition of the terms `employee welfare plan' and `welfare plan' . . . by identifying certain practices which do not constitute employee welfare benefit plans. . . ." 29 C.F.R. § 2510.3-1 (1983). Excluded by the regulatory scheme from classification as employee welfare benefit plans are certain enumerated "payroll practices," including "[p]ayment of an employee's normal compensation out of the employer's general assets, on account of periods of time during which the employee is . . . absent for medical reasons" and "[p]ayment of compensation while an employee is on vacation or absent on a holiday." 29 C.F.R. § 2510.301(b)(2), (3). In Shea v. Wells Fargo, 810 F.2d. 372 (2d Cir 1978), the Second Circuit held that sick leave and vacation wages are an exempt payroll practice where they are payable (1) out of general operating assets and not out of any separate account, fund or trust; (2) at the employees' normal rate of compensation; (3) for periods of time allowed as absences from employment for vacations, holidays, and medical reasons; (4) in accordance with traditional practices; and (5) without additional conditions or contingencies of any kind. Shea, 810 F.2d. at 376.

"The question of whether an ERISA plan exists is `a question of fact, to be answered in light of all the surrounding facts and circumstances from the point of view of a reasonable person.'" Wickman v. Northwestern Nat'l Ins. Co., 908 F.2d 1077, 1082 (1st Cir. 1990) (citing Kanne v. Connecticut Gen. Life Ins. Co., 867 F.2d 489, 492 (9th Cir. 1988)). See alsoMcMahon v. Digital Equipment Corp., 162 F.3d 28, 36 (1st Cir. 1998).

The plaintiff has pointed to several cases in which short term disability and medical leave plans have been found to not constitute ERISA-covered employee benefit plans. In most of these cases, the primary consideration as to whether the plan at issue constituted a "payroll practice" rather than an "employee benefit plan" was the source of funding for the plan. In Stern v. International Business Machines Corp., 326 F.3d 1367, 1369 (11th Cir. 2003), IBM had a "Sickness and Accident Income Plan," which provided up to 52 weeks of an employee's "regular salary" to an employee who was unable to work due to sickness or an accident. The IBM program defined "unable to work" as "unable to perform the duties of the job you held at the time of your sickness or accident, or the duties of any other job that IBM determines that you are capable of performing." The Court concluded that the IBM plan was a payroll practice, and not an ERISA-covered plan, largely because the employee's compensation was paid out of IBM's general operating assets. Stern, 326 F.2d. at 1372. See also Hite v. Biomet, Inc., 38 F.Supp.2d 720 (N.D. Ind. 1999) (short term disability plan a payroll practice where paid out of employers general assets); Havey v. Tenneco, Inc., 2000 WL 198445 (N.D. Ill 2000) (short term disability plan a payroll practice because it was paid out solely from general operating assets even though benefits paid to employee were less than regular pay and program was administered by a third-party).

The payment of disability benefits from employer's general assets by itself does not determine that plan is "payroll practice" exempt from ERISA, but a plan cannot be "payroll practice" unless payments in fact come from employer's general assets. There does not seem to be a dispute that St. Bonaventure uses its general operating assets to pay an employee's actual salary under the Medical Leave of Absence Plan. See Docket No. 4, Affidavit of June Solan, at ¶ 6-7. However, the plaintiff contends that St. Bonaventure's Medical Leave of Absence Plan falls outside of the payroll practices exception for two reasons: (1) the language of the plan states that health insurance, life insurance and long-term disability insurance would be continued during the medical leave without expressly limiting such coverage to a 6-month period and (2) that conditions and contingencies exist inasmuch as St. Bonaventure must approve the leave request and reserved the right to require the employee to be examined by a doctor of the school's choosing.

The plaintiff also argues that the doctrine announced inInter-Modal Rail Employees Assn. v. Tatchison, Topeka and Santa Fe Railroad. Co., 520 U.S. 510 (1997) should be employed to prevent St. Bonaventure from "circumventing promises made in regard to welfare benefits." (Docket No. 79 at 20). In this regard, the plaintiff argues that the Court should not "dwell on the funding source" and find that ERISA governs the Medical Leave of Absence Plan at issue because it "can be seen as an ongoing commitment of the defendant to provide the described welfare benefits and provides for individual determinations of eligibility." (Docket No. 79 at 21). Every medical leave plan or short term disability program may be seen "as an ongoing commitment of the defendant to provide the described welfare benefits." To hold that such requires a finding that the plan is an ERISA-covered employee benefit plan would virtually vitiate the payroll practice exception. The impact of any individual determination of eligibility is discussed below.

The Court is not persuaded by the plaintiff's argument that St. Bonaventure's continuation of health insurance, life insurance and long-term disability insurance of an employee while on a short-term medical leave of absence requires the finding that the program falls outside the payroll practices exception. The continuation of those insurance programs merely maintains the status quo of the employee as to those benefits while they are on medical leave. Initially, the Court notes that the plaintiff has not met its burden to establish that St. Bonaventure does not use its general operating assets to pay the premiums for those insurance policies. Further, the plaintiff has not presented authority demonstrating that the continuation of these pre-existing health insurance, life insurance and long-term disability insurance constitute benefits conferred under the Medical Leave of Absence Plan. Instead, it appears that the health insurance, life insurance or long-term disability insurance programs were conferred upon St. Bonaventure administrators as a consequence of employment with the University, not as part of the Medical Leave of Absence Plan. The plaintiff has failed to present authority which suggests that the payment of any benefits from these three separate pre-existing programs constitutes a Medical Leave of Absence Plan benefit. Indeed, it would appear that an employee on leave pursuant to St. Bonaventure's Medical Leave of Absence Plan would be precluded from receiving benefits under the life insurance (which would presumably be triggered by the employees death) or long-term disability programs (which would presumably not be available during the period while the employee is on short-term medical leave under the Medical Leave Act). The plaintiff has not cited any authority which holds that the continuation of health insurance coverage while an employee is receiving benefits under a medical leave plan, excludes the medical leave plan from the payroll practice exception. Finally, the Court is not persuaded that McMahon v. Digital Equip. Corp., 162 F.3d. 28 (1st Cir. 1998), cited by the plaintiff, supports the plaintiff's argument in this regard. In McMahon, the Court found that the benefits paid under the accident and sickness plan at issue in that case, were funded outside of Digital's general operating assets. That is not the case here.

The defendant asserts that despite the denial of the initial dispositive motion to afford the plaintiff an opportunity to conduct discovery on these issues, the plaintiff purportedly failed to seek any discovery regarding the funding source for the Medical Leave of Absence Plan. (Docket No. 68 at pages 20-21).

The plaintiff also argues that because St. Bonaventure must approve the medical leave and may require the plaintiff to submit to a physical examination, the Medical Leave of Absence Plan imposes conditions and contingencies which preclude application of the payroll practices exception. In this regard, the plaintiff relies on the language in Shea quoted above. The Court inMartin Marietta Energy Systems, Inc. v. Industrial Com'n of Ohio, 843 F.Supp. 1206, 1212 (S.D.Ohio 1994), addressing this same argument, held:

Plaintiff further argues that the Section 4 benefits do not fall within the scope of the regulation because the payment of benefits is contingent upon the employee medical examinations. Section 4 also provides that benefits are to be paid "[w]hen properly approved by the Company." Thus, it may be argued that the agreement grants some degree of discretion to plaintiff in regard to payment of benefits. Plaintiff relies on Shea v. Wells Fargo Armored Serv. Corp., 810 F.2d 372, 376 (2d Cir. 1987) where the court described the "payroll practices" provision as governing benefits payable "without additional conditions or contingencies of any kind." However, even the payment of wages may be described as being contingent upon the employee satisfying the employer that he has performed the work which warrants payment of the wages. The payment of sick leave wages may be contingent upon the employee satisfying the employer that he is not malingering. Further, as later noted by the Second Circuit in United Automobile, Aerospace and Agricultural Implement Workers of America, Local 33 v. R.E. Dietz Co., 996 F.2d 592, 597 (2d Cir. 1993), the regulations that define "payroll practice" are silent as to whether additional conditions or contingencies would subject payroll-type benefits to ERISA. This court concludes that even if it is assumed, without deciding that issue, that plaintiff has the right under the agreement to conduct unlimited medical examinations or to exercise some other discretion over the payment of Section 4 benefits, this type of discretionary authority does not remove the Section 4 benefits from the ambit of § 2510.3-1(b)(2) and convert them from a payroll practice into an ERISA plan. See Hart v. Reynolds Reynolds Co., 999 F.2d 540(6th Cir. 1993) (short-term disability policy paid from general assets constituted a payroll practice even though employer reserved the right under the policy to demand impartial medical examinations).
Martin Marietta, 843 F.Supp. at 1212.

The Court agrees with the reasoning in Martin Marietta. The fact that the employer may require approval of medical leave and examination by a physician does not require a finding that the plan at issue falls outside the payroll practice exception.

The Court finds the plaintiff's remaining arguments to be without merit. Although the plaintiff contends that the Medical Leave of Absence Plan provides "no temporary or definite duration set for benefits promised under" the plan (Docket No. 79 at page 24), the language of the plan at issue expressly limits benefits to "no more than six months." (Docket No. 81, Exhibit F).

Because the plaintiff has failed to establish that the Medical Leave of Absence Plan at issue is an ERISA-covered "employee benefit plan," the plaintiff has failed to establish a prima facie case with respect to his claim under § 510. Thus, the Court need not discuss the remaining issues involving this claim. It is recommended that the defendant's motion for summary judgment be granted and the plaintiff's motion for summary judgment be denied as to the § 510 claim.

The Court takes no position with respect to the defendant's argument that the plaintiff has failed, as a mater of law, to demonstrate any specific intent by the defendant to deny him benefits. With respect to the plaintiff's motion, even if the Court were to determine that the Medical Leave of Absence Plan was an ERISA-covered employee benefit plan, based upon the record before the Court, at the very least, questions of fact as to the defendant's intentions would preclude the grant of summary judgment in favor of the plaintiff on this issue.

The FMLA Claim

The FMLA grants qualified employees up to twelve workweeks of leave during a twelve month period due to a "serious health condition that makes the employee unable to perform the functions of the position of the employee." 29 U.S.C.A. § 2612(a)(l)(D). In order to state a valid claim under the FMLA, a plaintiff must demonstrate that (1) he or she is an eligible employee under the FMLA, as defined in 29 U.S.C. § 2611(2); (2) his or her employer is subject to the FMLA, as defined in 29 U.S.C. § 2611(4); (3) he or she was entitled to leave under the FMLA, as defined in 29 U.S.C. § 2612(a)(l); and (4) he or she gave adequate notice to his or her employer of an intention to take leave. Slaughter v. American Bldg. Maintenance Co. of N.Y., 64 F. Supp. 2d 319, 324 (S.D.N.Y. 1999).

Once again, the burden shifting framework established by McDonald-Douglas in the Title VII context applies to claims arising under the FMLA. Darboe v. Staples Inc., 243 F.Supp.2d. 5, 15-18 (S.D.N.Y. 2003).

The defendant argues that the plaintiff has failed to plead that he suffers from a serious health condition which makes him unable to perform the functions of his position. Further, the defendant asserts that the plaintiff failed to provide the University with adequate notice of his need for leave under the FMLA. Serious Health Condition

The FMLA defines "serious health condition" as an "illness, injury, impairment, or physical or mental condition that involves (A) inpatient care in a hospital . . . or (B) continuing treatment by a health care provider." 29 U.S.C. § 2611(11). The plaintiff does not allege that he received inpatient care. Thus, the question at issue is whether the plaintiff had an illness or mental condition that required "continuing treatment by a health care provider." That phrase is defined under 29 C.F.R. § 825.114(a), in pertinent part, as follows:

(2) Continuing treatment by a health care provider. A serious health condition involving continuing treatment by a health care provider includes any one or more of the following:
(i) A period of incapacity (i.e., inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefor, or recovery therefrom) of more than three consecutive calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves: (A) Treatment two or more times by a health care provider, by a nurse or physician's assistant under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or (B) Treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider. . . .
(iii) Any period of incapacity or treatment for such incapacity due to a chronic serious health condition. A chronic serious health condition is one which: (A) Requires periodic visits for treatment by a health care provider, or by a nurse or physician's assistant under direct supervision of a health care provider; (B) Continues over an extended period of time (including recurring episodes of a single underlying condition); and (C) May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).

The regulations go on to define what procedures may be considered to be "treatment" relating to a serious health condition:

(b) Treatment for purposes of paragraph (a) of this section includes (but is not limited to) examinations to determine if a serious health condition exists and evaluations of the condition. Treatment does not include routine physical examinations, eye examinations, or dental examinations. Under paragraph (a)(2)(i)(B), a regimen of continuing treatment includes, for example, a course of prescription medication (e.g., an antibiotic) or therapy requiring special equipment to resolve or alleviate the health condition (e.g., oxygen). A regimen of continuing treatment that includes the taking of over-the-counter medications such as aspirin, antihistamines, or salves; or bed-rest, drinking fluids, exercise, and other similar activities that can be initiated without a visit to a health care provider, is not, by itself, sufficient to constitute a regimen of continuing treatment for purposes of FMLA leave.
29 CFR § 825.114(b).

The plaintiff argues that he can establish that he had a serious health condition as defined under the FMLA regulation while he was employed at St. Bonaventure. It is undisputed that stress, depression and/or nervous breakdown can constitute a serious health condition for FMLA purposes. Collins v. NTN-Bower Corp., 272 F.3d 1006 (7th Cir. 2001); Spangler v. Federal Home Loan Bank of Des Moines, 278 F.3d 847, 852 (8th Cir. 2002). The plaintiff asserts that he has been treated by Dr. James M. Serapiglia, a clinical psychologist, and Dr. Joy Kreiger, a psychiatrist, for mental anguish, emotional distress, and depression beginning in February of 1999 and continuing through and past his June 29, 1999 discharge from St. Bonaventure. (Docket No. 80 at ¶ 8). Dr. Serapiglia diagnosed Tambash as suffering from "major depression." Dr. Serapiglia stated that the plaintiff's symptoms included "obsessive rumination, initial and middle insomnia, impaired concentration, difficulty making decisions and sustaining goal-directed activity, difficulty focusing and problem-solving, difficulty trusting anyone, agoraphobia and grossly diminished self-esteem and self-confidence." (Docket No. 80, Exhibit C). Dr. Serapiglia's treatment report dated November 14, 2001 provides the following history of the plaintiff's mental health condition:

His depressive illness appears to have been triggered by administrative and legal problems in his workplace. He reported that in May, 1998, a female employee who he supervised, filed a University grievance against him claiming he showed "inappropriate interest in her personal life." He denied any wrong doing in this matter and, in fact, that action was dropped. In October 1998, this same female employee filed an EEOC complaint against [Tambash] and St. Bonaventure University claiming sexual harassment. This matter was also subsequently dropped. He was referred to me by his attorney who was concerned, noting the symptom picture as reported above. Subsequent to the onset of these work difficulties, Mr. Tambash had consulted with a counselor in Cattaraugus County and a psychiatrist who prescribed the anti-depressant Serzone. The use of this medication was abandoned because of the patient's intolerance of side effects. In April, 1999 I referred Mr. Tambash a psychiatrist, Dr. Joy Kreiger, who prescribed the psychiatric medications Zoloft and subsequently the mood-stabilizing medication Neurontin, Risperdal and Serzone. In June, 1999, despite aggressive treament with anti-depressant medication and outpatient psychotherapy, the patient was not improving significantly, and in fact, his symptoms were worsening.

(Docket No. 80, Exhibit C).

The plaintiff asserts that his mental condition was such that it prompted him to miss more than three consecutive days of work. In March of 1999, the plaintiff took two weeks off. On June 11, 1999, he advised St. Bonaventure that he could no longer work due to the mental anguish. (Docket No. 81, Exhibit C). The record also reflects an earlier incident, on November 10, 1998, in which Tambash had to be transported to his personal physician's office after a dizzy spell at work. The Security Incident Report relating to the matter, which was copied to various St. Bonaventure officials, stated that Tambash "has been being treated for anxiety and depression." (Docket No. 81, Exhibit H).

The defendant's assertion that the plaintiff cannot demonstrate that he suffered from a serious health condition appears to be based upon Tambash's response to a question during his deposition. At that time, he was asked "Did there come a time when you were unable to perform your job duties and responsibilities?" Tambash responded: "No." The plaintiff asserts, however, that this deposition testimony is being taken out of context and that he believed the question related to the entire time he served as Director of Security at the school. The defendant also points to the opinion of its consulting physician, Dr. Richard E. Wolin, who stated that his review of the record suggests that even if Tambash "was troubled by the events surrounding Ms. Gardner's allegations[,] he was able to carry out all of the material responsibilities of his employment prior to his termination." (Docket No. 69, Exhibit C, ¶ 15).

The contradicting evidence and divergent medical opinions relating to the seriousness of the plaintiff's health condition create questions of fact which preclude summary judgment on this issue. The plaintiff has certainly proffered sufficient evidence from which a trier of fact could conclude that he suffered from a serious health condition prior to his discharge from St. Bonaventure.

Notice

The defendant also argues that the plaintiff's FMLA claim must be dismissed on the grounds that the plaintiff failed to provide adequate notice of his purported need for FMLA leave.

Generally speaking, an employee is to provide his or her employer with 30 days notice or as much notice as is practicable of the intention to use FMLA leave, when the necessity for leave "is foreseeable." 29 U.S.C. § 2612(e)(2). Less than 30 days notice is permissible for reasons "such as because of a lack of knowledge of approximately when leave will be required to begin, a change in circumstances, or a medical emergency." 29 C.F.R. § 825.302(a). Notice is required "as soon as practicable," meaning "as soon as both possible and practical, taking into account all of the facts and circumstances in the individual case." 29 C.F.R. § 825.302(b). "This ordinarily . . . mean[s] at least verbal notification to the employer within one or two business days of when the need for leave becomes known to the employee." Id. If the need for FMLA leave is not foreseeable, the employee "should give notice to the employer of the need for FMLA leave as soon as practicable under the facts and circumstances of the particular case." 29 C.F.R. § 825.303(a). Although "[a]n employer may also require an employee to comply with the employer's usual and customary notice and procedural requirements for requesting leave," "failure to follow such internal employer procedures will not permit an employer to disallow or delay an employee's taking FMLA leave if the employee gives timely verbal or other notice." 29 C.F.R. § 825.302(d). The acceptable ways for an employee to provide notice include, "in person, by telephone, telegraph, facsimile, . . . or other electronic means." 29 C.F.R. § 825.303(b).

"An employee need not invoke the FMLA by name in order to put an employer on notice that the Act may have relevance to the employee's absence from work." Spangler v. Federal Home Loan Bank of Des Moines, 278 F.3d 847, 852 (8th Cir. 2002) quoting Thorson v. Gemini, Inc., 205 F.3d 370, 381 (8th Cir. 2000); 29 C.F.R. § 825.208(a)(2). "Under the FMLA, the employer's duties are triggered when the employee provides enough information to put the employer on notice that the employee may be in need of FMLA leave." Spangler, 278 F.3d. at 852, citing Thorson andBrowning v. Liberty Mut. Ins. Co., 178 F.3d 1043, 1049 (8th Cir. 1999). Although an employer is not required to be clairvoyant (Johnson v. Primerica, 1996 WL 34148, *5 (S.D.N.Y. 1996)), "the FMLA regulations make it clear that . . . if the employer feels it does not have sufficient information to determine whether the employee's reasons for requesting leave are encompassed by the FMLA, `the employer should inquire further of the employee . . . to ascertain whether the paid leave is potentially FMLA-qualifying.'" Plant v. Morton Intern., Inc., 212 F.3d 929, 935 (6th Cir. 2000) quoting 29 C.F.R. § 825.208(a).

The plaintiff asserts that Tambash's superiors were aware that his mental health had deteriorated to the point where he would have to take leave under the FMLA. In this regard, the plaintiff cites to the fact that documents show that his supervisor, George Solan, was advised, as early as the November 10, 1998, that he was being treated for anxiety and depression. (Docket No. 81, Exhibit H). He also alleges that he had to take two weeks off in March of 1999 due to his emotional problems. (Docket No. 80 at ¶ 9). The plaintiff also relies on his June 11, 1999 conversation with George Solan in which he purportedly advised him that he could no longer work due to the mental anguish. The record reflects that Tambash also spoke with three other St. Bonaventure employees on June 11, 1999, Dan Zekan, Kelly J, Ezzolo and Ann Hurlburt, in which he advised them of his inability to work due to mental anguish. He originally advised them that he would resign but then called back to state that he wanted to take sick leave. Notes taken by Ann Hurlburt, reflect that the plaintiff advised her the he "wanted to take sick leave if possible. He wants to take vacation until his sick leave becomes effective." (Docket No. 81, Exhibit C).

Based upon the fact that his employer was aware that he was being treated for anxiety and depression, that his employer was allegedly aware that he had taken time off in March due to emotional distress, and the various conversations with George Solan and others on June 11, 1999, a strong argument may be made in favor of finding that Tambash's employer was provided with sufficient information to determine that the FMLA may be implicated. It is argued that Tambash's references to "mental anguish," his precipitous decision to resign and his subsequent reversal of that decision, reflect a deteriorated mental and emotional state which would have alerted the University of Tambash's need to take leave under the FMLA.

Once again, the defendant's argument that the plaintiff failed to provide notice relies upon the plaintiff's deposition testimony. Tambash's deposition, which took place four years later in June of 2003, included the following testimony:

Q: Okay. What did you say to Mr. Solan with regard to taking a leave of absence?
A: I told him I would need some additional time after my vacation, because my vacation corresponded — the reason I took my vacation, it corresponded the same time my psychologist, Dr. Serapiglia, was taking a vacation, and a vacation at that time would benefit me to take me away from the work situation and then allow me to prepare myself and to deal with the problems that I was having once Dr. Serapiglia returned from his vacation. That's why I expressed the need for extra time, because Mr. — Dr. Serapiglia would have been gone the same time I was on vacation.

. . .

Q: And that's when you told [Solan] that you may need to take a leave of absence —

A: Yes.

Q: — after your vacation"

A: Yes.

. . .

Q: During the time that you were on that vacation, were you contemplating whether you were going to need to take a leave?
A: Oh, yes, absolutely.
Q: Had you determined that you were going to take a leave?
A: I was going to take a leave if it was necessary for me to take the leave, because the way I explained it to Mr. Solan, that if it was necessary for me to take additional time, I would require that time to work with my psychologist. I was dealing with problems that I don't know if I could have possibly straightened out while I was on vacation, just to take myself away from the stress of the environment. But I didn't — I can't foresee whether that would have occurred or not. I don't know. All I know is that I asked him — told him that I would probably need extended time after the vacation to deal with the problems, because I did not have my psychologist available to me during the vacation because he was also on vacation.

(Docket No. 69, Exhibit A, pages 88-91).

Although Tambash's testimony reflects that his request for a medical leave of absence was somewhat equivocal, his employer was aware that such leave may be required. Of course, the plaintiff contends that he was terminated while on vacation, before he could provide further notice as to any FMLA leave, to prevent him from obtaining that leave. Where an employer is aware that an employee may need to take FMLA leave, it would be inconsistent with the remedial purpose of the statute to allow an employer, motivated in part specifically to prevent the employee from obtaining leave under the FMLA, to terminate the individual before a more definitive request for leave could be made.

Again, questions of fact exist as to the exact content of the discussions between Tambash and Solan, and whether, based upon the totality of the circumstances, the defendant possessed sufficient information to be deemed notice that Tambash would require FMLA leave. These questions of fact preclude summary judgment on this issue. Legitimate Non-Discriminatory Reasons for Dismissal

The defendant asserts that it has proffered legitimate, non-discriminatory reasons for Tambash's discharge, including unsatisfactory performance, neglect of duties and incompetence. (Docket No. 68 at page 39). Much of the rationale is based upon the complaints of Michael Schlosser, St. Bonaventure's Assistant Director of Security Services. Schlosser wrote a memo dated June 28, 1999 to Solan advising him that he was never given a clear description of his duties or expectations; there was no established guard duty, training plan; that although he passed the New York State Security Guard Certification Test on May 21, 1999, as of the date of the memo, his application had not been filed with New York State; and that the scheduling of security personnel was inefficient. (Docket No. 68 at page 40 citing Docket No. 70, Exhibit A). The defendant asserts that "after receipt of this memorandum" Solan investigated the allegations. Solan's investigation revealed inefficient scheduling which resulted in lapses in coverage and significant overtime hours for some workers which could have been avoided. (Docket No. 68 at page 41 citing Docket No. 70 at ¶ 15). The investigation also revealed that Tambash had been rude to another employee under his supervision; and was unavailable on June 11, 1999 to sign work sheets. (Docket No. 81, Exhibit D). Apparently without affording Tambash an opportunity to respond to the June 28, 1999 memo and subsequent investigation, Solan sent a letter to Tambash dated June 29, 1999 advising him that his employment was terminated.

The evidence of inefficient organization and scheduling, and the allegedly improper supervision by the plaintiff could provide a legitimate non-discriminatory basis for Tambash's dismissal. The plaintiff, however, is allowed to rebut that evidence and attempt to establish that the purported non-discriminatory reason is a pretext, and that the plaintiff's termination was motivated, at least in part, to deny him rights under FMLA. The plaintiff points out that Schlosser was hired by St. Bonaventure to what appears to have been a newly created position on May 3, 1999. As discussed above, the record reflects that Tambash was already experiencing some degree of mental and emotional problems at this time. The plaintiff contends that the organizational issues raised by Schlosser, and the incident where he was rude to an employee, were related to his illness. The plaintiff argues that the pretextual nature of the defendant's actions is evidence from the fact that his termination was based in part on his unavailability to sign work sheets on June 11, 1999 — the day he called in to advise them that he was unable to work due to his illness. The plaintiff also argues that the timing of Schlosser's June 28, 1999 memo which lead to a one-day investigation and Tambash's termination on June 29, 1999 while he was on vacation; and the fact that this occurred shortly after he advised the University of his need for a medical leave on June 11, 1999; all support his claim that his termination was motivated at least in part to deprive him of his FMLA rights.

The plaintiff has proffered sufficient evidence to raise questions of fact as to whether the legitimate non-discriminatory reasons for his termination were in fact a pretext and that his termination was, in part, motivated to prevent his from obtaining FMLA leave. These questions of fact preclude summary judgment on this issue.

Conclusion

Based upon the above, it is recommended that defendant's motion for summary judgment (Docket No. 67) be GRANTED to the extent it seeks dismissal of the plaintiff's claim under § 510 of ERISA, and DENIED otherwise; and that the plaintiff's motion for summary judgment (Docket No. 78) be DENIED in its entirety.

Pursuant to 28 U.S.C. § 636(b)(1), it is hereby ordered that this Report Recommendation be filed with the Clerk of the Court and that the Clerk shall send a copy of the Report Recommendation to all parties.

ANY OBJECTIONS to this Report Recommendation must be filed with the Clerk of this Court within ten(10) days after receipt of a copy of this Report Recommendation in accordance with 28 U.S.C. § 636(b)(1), Fed.R.Civ.P. 72(b) and WDNY Local Rule 72(a)(3). FAILURE TO FILE OBJECTIONS TO THIS REPORT RECOMMENDATION WITHIN THE SPECIFIED TIME OR TO REQUEST AN EXTENSION OF SUCH TIME WAIVES THE RIGHT TO APPEAL ANY SUBSEQUENT DISTRICT COURT'S ORDER ADOPTING THE RECOMMENDATIONS CONTAINED HEREIN. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed2d 435 (1985); F.D.I.C. v. Hillcrest Associates, 66 F.3d 566 (2d. Cir. 1995); Wesolak v. Canadair Ltd., 838 F.2d 55 (2d Cir. 1988).

The District Court on de novo review will ordinarily refuse to consider arguments, case law and/or evidentiary material which could have been, but was not, presented to the Magistrate Judge in the first instance. See Patterson-Leitch Co. Inc. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985 (1st Cir. 1988).

Finally, the parties are reminded that, pursuant to WDNY Local Rule 72(a)(3), "written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority." Failure to comply with the provisions of Rule 72(a)(3)may result in the District Court's refusal to consider the objection.

So ordered.