10-1174-cv
Porter v. Donahoe
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE
32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A
PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH
THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Daniel Patrick Moynihan United
States Courthouse, 500 Pearl Street, in the City of New York, on
the 5th day of June, two thousand twelve.
PRESENT:
RALPH K. WINTER,
DENNY CHIN,
CHRISTOPHER F. DRONEY,
Circuit Judges.
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BRIAN PORTER,
Plaintiff-Appellant,
v. 10-1174-cv
PATRICK R. DONAHOE, POSTMASTER
GENERAL, UNITED STATES POSTAL SERVICE,
Defendant-Appellee.*
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FOR PLAINTIFF-APPELLANT: ARTHUR ZACHARY SCHWARTZ, Advocates
for Justice, Chartered Attorneys,
New York, New York.
FOR DEFENDANT-APPELLEE: ERIN E. ARGO, Varuni Nelson (on the
brief), Assistant United States
Attorneys, Counsel, for Loretta E.
Lynch, United States Attorney for
the Eastern District of New York,
Brooklyn, New York.
*
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Postmaster General Patrick R. Donahoe is automatically
substituted for former Postmaster General John Potter. The Clerk
of Court is directed to amend the caption accordingly.
Appeal from a judgment of the United States District
Court for the Eastern District of New York (Cogan, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-appellant Brian Porter appeals from the
district court's judgment of January 25, 2010, granting
defendant-appellee's motion for summary judgment on his claim for
interference with his rights under the Family Medical Leave Act
("FMLA"), 29 U.S.C. § 2601. The judgment was entered pursuant to
a memorandum decision dated January 20, 2010. We assume the
parties’ familiarity with the underlying facts, procedural
history of the case, and the issues on appeal.
We review the district court's grant of summary
judgment de novo. See Miller v. Wolpoff & Abramson, L.L.P., 321
F.3d 292, 300 (2d Cir. 2003).
We affirm substantially for the reasons set forth by
the district court in its thorough and carefully-considered
decision.
To succeed on an FMLA interference claim, a plaintiff
must establish that the defendant denied or otherwise interfered
with a benefit to which he was entitled under the Act. See 29
U.S.C. § 2615(a)(1). In this case, a reasonable jury could only
find that Porter failed to meet the requirements for FMLA leave
in 2006. Therefore, the district court correctly found, as a
matter of law, that defendant did not violate Porter's rights
under the FMLA when he denied Porter's request for leave.
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For an employee to be eligible for FMLA leave, he must
have (1) been employed for at least twelve months by the employer
from whom he is requesting leave and (2) performed at least 1,250
hours of service with that employer in the twelve months prior to
the beginning of his leave. 29 U.S.C. § 2611; see Kosakow v. New
Rochelle Radiology Assocs., P.C., 274 F.3d 706, 715 (2d Cir.
2001). On appeal, Porter does not dispute that in 2006 he was
only eligible for FMLA leave from July 21 to August 3, and from
August 18 to September 15.
When an employee is eligible and requests leave under
the FMLA, "[a]n employer may require that [the] request . . . be
supported by a certification issued by the health care provider"
of the family member for whom the employee is caring. 29 U.S.C.
§ 2613(a). A certification is "incomplete" if "one or more of
the applicable entries have not been completed." 29 C.F.R. §
825.305(c). A certification is "insufficient" if the entries are
completed, but "the information provided is vague, ambiguous, or
non-responsive." Id.
In this case, a reasonable jury could only find that
the certification Porter submitted in connection with his July
29, 2006 leave request was insufficient, if not incomplete.
First, Porter submitted the same piece of paper that he had
submitted on March 9, 2006 (to no avail because he was not
eligible on that date). The only difference was that his
mother's physician re-dated the page "8/24/06." Second, and more
importantly, Porter failed to answer several of the questions on
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the form. He did not indicate, for example, the length of time
he would need to assist his mother or the number of days that he
would need to be absent from work. Porter does not dispute that
he left some answers blank and that in response to other
questions, he wrote, "unknown at this time." (Pl.'s Br. 3-5).
Porter was given the opportunity to cure the
deficiencies in his certification, but failed to do so. On
November 10, 2006, Porter again submitted the same form, re-
dated, and with one addition: In response to the question
regarding "the length of absence required," the physician wrote,
"1-5 days weekly for medical treatments and personal needs/care."
(A 310). This response was vague and unhelpful. Moreover,
answers to other questions on the form remained unanswered. (See
id.). Again, a reasonable jury could only find that Porter
failed to cure the deficiencies in his certification. Therefore,
the district court correctly found, as a matter of law, that
defendant's decision to deny Porter leave did not violate his
rights under the FMLA. See 29 C.F.R. § 825.305(c).
We have considered Porter's other arguments on appeal
and have found them to be without merit. Accordingly, the
judgment of the district court is hereby AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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