Kim v. Goldberg, Weprin, Finkel Goldstein, LLP

862 F. Supp. 2d 311, 2012 WL 1632739, 2012 U.S. Dist. LEXIS 65757
CourtDistrict Court, S.D. New York
DecidedMay 4, 2012
DocketNo. 10 Civ. 6101 (VM)
StatusPublished
Cited by17 cases

This text of 862 F. Supp. 2d 311 (Kim v. Goldberg, Weprin, Finkel Goldstein, LLP) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kim v. Goldberg, Weprin, Finkel Goldstein, LLP, 862 F. Supp. 2d 311, 2012 WL 1632739, 2012 U.S. Dist. LEXIS 65757 (S.D.N.Y. 2012).

Opinion

DECISION AND ORDER

VICTOR MARRERO, District Judge.

Plaintiff Ji Sun Jennifer Kim (“Kim”) brought this action against defendants Goldberg, Weprin, Finkel Goldstein, LLP (“GWFG”), Barry Zweigbaum (“Zweigbaum”), Arnold Mazel (“Mazel”), and Andrew Albstein (“A. Albstein,” collectively, “Defendants”), claiming violations of the Family and Medical Leave Act, 29 U.S.C. § 2615 (“FMLA”); New York State Human Rights Law, N.Y. Exec. Law § 296 (“NYSHRL”); and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-107(l)(a) (“NYCHRL”). Kim alleges that Defendants (1) interfered with her rights under the FMLA; (2) retaliated against her for taking an FMLA-qualifying medical leave and for engaging in an FMLA-protected activity; and (3) discriminated against her on the basis of her pregnancy and gender in violation of NYSHRL and NYCHRL. {See Docket [315]*315No. 24.) Defendants have moved for summary judgment pursuant to Federal Rule of Civil Procedure 56 (“Rule 56”), arguing that Kim’s claims under the FMLA, NYSHRL and NYCHRL are insufficient as a matter of law. (See Docket No. 40.) For the reasons discussed below, Defendants’ motion for summary judgment is GRANTED.

I. BACKGROUND1

GWFG hired Kim as an associate attorney in its tax certiorari department in January 2008. Kim was responsible for preparing cases for pretrial conference, attending pretrial hearings, arguing cases in court and before the New York Tax Commission, conducting investigations in response to client inquiries, and reviewing applications and other documents to be submitted to courts or the Tax Commission.

Kim became pregnant in January 2009, after working for GWFG for approximately one year. In March 2009 she told her supervisor, Zweigbaum, about her pregnancy, and in September 2009 Kim took medical leave for twelve weeks (the “2009 Leave”) to give birth and care for her newborn.

Kim alleges that, while she was employed at GWFG, she was subjected to derogatory and discriminatory treatment on several occasions. However, her FMLA claims center on her request for intermittent leave in the spring of 2010,2 which was denied by GWFG, and her termination by GWFG in April 2010.

A. REQUEST FOR INTERMITTENT LEAVE

In February 2010, Kim asked Mazel whether she could work fewer hours so that she could breastfeed and care for her newborn at home. Kim contends that she was working sixty to seventy hours per week at that time, and that she requested not to have to work past 8:00 p.m. Mazel denied her request and told Kim that she could not work a reduced schedule because, as a matter of firm policy, GWFG does not allow attorneys to work from home or part time.

B. TERMINATION

Kim was terminated in April 2010. On the day she was terminated, Zweigbaum told her that she was being dismissed for budgetary reasons. However, Kim doubted that this was the real reason for her termination because she knew that the tax certiorari department was busy, and the firm had hired a new tax certiorari attorney just one month earlier in February 2010, Gil Nahmias (“Nahmias”).

Defendants assert that Kim’s termination was part of a reduction in staff due to the downturn in the economy in 2009-2010, and the loss of several important clients, which caused a substantial drop in firm revenue. GWFG argues that Kim was one of five employees terminated be[316]*316tween January and April 2010, including two male attorneys in January 2010 and one male clerk and two female secretaries in April 2010. GWFG further asserts that Kim was selected for dismissal due to her average performance, and because she worked only the minimum number of hours required.

Defendants do not assert that Kim was terminated due to disciplinary problems and admit that she was reprimanded for disciplinary reasons only once. On June 5, 2009 Kim was advised by Iris Albstein, a partner at GWFG and the brother of A. Albstein, that it was inappropriate for her to be reading a book during work hours.

Defendants explain that despite the budget problems, Nahmias was hired because of his years of experience. Moreover, Defendants deny that Kim was treated differently after returning from leave in December 2009, and they dispute Kim’s characterization of certain events as instances of derogatory, discriminatory or hostile treatment.

II. DISCUSSION

A. LEGAL STANDARD

In connection with a Rule 56 motion, “[s]ummary judgment is proper if, viewing all facts of record in a light most favorable to the non-moving party, no genuine issue of material fact remains for adjudication.” Samuels v. Mockry, 77 F.3d 34, 35 (2d Cir.1996) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The role of a court in ruling on such a motion “is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party.” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986).

The moving party bears the burden of proving that no genuine issue of material fact exists, or that due to the paucity of evidence presented by the non-movant, no rational jury could find in favor of the non-moving party. See Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir.1994). The opposing party cannot defeat summary judgment by relying on the allegations in the complaint, conclusory statements, or mere assertions that affidavits supporting the motion are not credible. See Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir.1996).

B. FMLA CLAIMS

Under the FMLA, an eligible employee is entitled to take up to twelve weeks of unpaid leave in any twelve-month period “[bjecause of the birth of a son or daughter of the employee and in order to care for such son or daughter.” 29 U.S.C. § 2612(a)(1)(A), The FMLA makes it “unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.” 29 U.S.C. § 2615(a)(1) (“ § 2615(a)(1)”). “A plaintiff may raise separate claims under the FMLA for ‘interference’ with rights and for ‘retaliation’ ” against the exercise of those rights. McFarlane v. Chao, No. 04 Civ. 4871, 2007 WL 1017604, at *28-29 (S.D.N.Y. Mar. 30, 2007) (citing Potenza v.

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Bluebook (online)
862 F. Supp. 2d 311, 2012 WL 1632739, 2012 U.S. Dist. LEXIS 65757, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kim-v-goldberg-weprin-finkel-goldstein-llp-nysd-2012.