13-1330-cv
Achille v. Chestnut Ridge Transportation, Inc.

                                  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
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
25th day of November, two thousand fourteen.

Present:    ROSEMARY S. POOLER,
            BARRINGTON D. PARKER,
            RICHARD C. WESLEY,
                  Circuit Judges.
_____________________________________________________

KENNEDY ACHILLE,

                                    Plaintiff-Appellant,

                             v.                                                13-1330-cv

CHESTNUT RIDGE TRANSPORTATION, INC.,

                        Defendant-Appellee.1
_____________________________________________________

Appearing for Appellant:            Stewart Lee Karlin, The Law Offices of Stewart Lee Karlin, P.C.,
                                    New York, NY (Eric Suffin, Law Firm of Eric A. Suffin, East
                                    Rockaway, NY, on the brief).

Appearing for Appellee:             Cheryl Korman (Evan Krinick, Merrill Biscone, John Diviney,
                                    Scott R. Green, on the brief), Rivkin Radler LLP, Uniondale, NY.

       Appeal from the United States District Court for the Southern District of New York
(Yanthis, M.J.).




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             The Clerk of the Court is directed to amend the case caption as above.
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Plaintiff-appellant Kennedy Achille appeals from the following orders of the United
States District Court for the Southern District of New York (Yanthis, M.J.): (1) the district
court’s October 17, 2011 and February 2, 2012 discovery rulings; (2) the district court’s March
2, 2012 order denying Achille leave to amend his complaint; and (3) the district court’s March
12, 2013 order granting defendant-appellee Chestnut Ridge Transportation, Inc.’s (“Chestnut
Ridge”) motion for summary judgment. We assume the parties’ familiarity with the underlying
facts, procedural history, and specification of issues for review.

        We first address the district court’s grant of summary judgment on Achille’s two claims
under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq. First, the district
court appropriately granted summary judgment on Achille’s FMLA interference claim. The
FMLA provides that “[i]t shall be 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). Although we have not set out the requirements of a prima facie case on a claim for
interference with FMLA rights, both parties agree we should use the standard regularly
employed by district courts of this Circuit for such claims. Accordingly, we adopt this analysis
for purposes of this appeal. Under this standard, “[t]o make out a prima facie case on a claim for
interference with FMLA rights under 29 U.S.C. § 2615(a)(1), a plaintiff must establish five
elements: (1) that he is an eligible employee under the FMLA; (2) that defendant is an employer
as defined in the FMLA; (3) that he was entitled to take leave under the FMLA; (4) that he gave
notice to the defendant of his intention to take leave; and (5) that he was denied benefits to which
[]he was entitled under the FMLA.” Higgins v. NYP Holdings, Inc., 836 F. Supp. 2d 182, 193
(S.D.N.Y. 2011) (internal quotation marks and alterations omitted).

        Here, even assuming Achille could establish the other requirements for a claim of FMLA
interference, his claim fails on the fourth element – lack of notice. Achille was scheduled to
return to work on December 28, 2009, yet did not return until January 11, 2010. At no point
during this fourteen day absence did Achille communicate an FMLA-eligible reason for his
continued absence to Chestnut Ridge. “The FMLA generally requires employees to ‘comply with
the employer’s usual and customary notice and procedural requirements for requesting leave.’”
Millea v. Metro-N. R.R. Co., 658 F.3d 154, 161 (2d Cir. 2011) (quoting 29 C.F.R. § 825.303(c)).
Failing to hear from Achille, and unable to contact him through its own affirmative efforts,
Chestnut Ridge terminated his employment pursuant to its policy requiring an explanation for
failure to timely return from leave. See Decl. of Patricia Riviello, Ex. 1 (Chestnut Ridge
Employee Handbook), Achille v. Chestnut Ridge Transp., Inc., No. 7:10-cv-6924 (S.D.N.Y. Aug.
30, 2012), ECF No. 40-1 at 53 (“Employees who fail to report on their return date or who fail to
request and obtain approval for an extension will be considered to have voluntarily resigned.”).

        Achille argues that his failure to contact Chestnut Ridge and provide notice of his
continued absence was excused by the difficulty he experienced when he tried to contact his
employer from Haiti. To be sure, the FMLA’s notice “requirement is relaxed in ‘unusual
circumstances.’” Millea, 658 F.3d at 161 (quoting 29 C.F.R. § 825.303(c)). Yet Achille’s
statements regarding his efforts to contact Chestnut Ridge are insufficient for a reasonable fact-
finder to find sufficiently “unusual circumstances” excusing notice. Achille contends that an
“underground telephone problem” precluded telephone communication out of Haiti. Yet he

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provides no support for such a systemic problem beyond his own speculation. See Kulak v. City
of New York, 88 F.3d 63, 71 (2d Cir. 1996) (“[C]onclusory statements, conjecture, or speculation
by the party resisting the motion will not defeat summary judgment.”). Achille’s remaining
testimony regarding his efforts at contact fails to show sufficiently unusual circumstances
justifying the two week delay in providing notice. In the absence of notice of the need for
continuing leave or sufficient “unusual circumstances” justifying a delay in notice, Chestnut
Ridge was entitled to terminate Achille after his extended absence without interfering with his
FMLA rights.

         The district court also appropriately dismissed Achille’s FMLA retaliation claim. Both
parties agree that Achille’s FMLA retaliation claims should be analyzed pursuant to the burden-
shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); see also
Potenza v. City of New York, 365 F.3d 165, 167–68 (2d Cir. 2004) (applying McDonnell
Douglas analysis in the context of FMLA retaliation claim). Under this standard, to establish a
prima facie case of FMLA retaliation, a plaintiff is required to show that: “1) he exercised rights
protected under the FMLA; 2) he was qualified for his position; 3) he suffered an adverse
employment action; and 4) the adverse employment action occurred under circumstances giving
rise to an inference of retaliatory intent.” Potenza, 365 F.3d at 168. If a plaintiff establishes a
prima facie case, then the burden shifts to a defendant to articulate a legitimate,
non-discriminatory reason for its actions. McDonnell Douglas, 411 U.S. at 802. “Upon such a
showing, the defendant must demonstrate legitimate reasons for its actions, whereupon the
plaintiff bears the burden of showing that the defendant’s explanations are pretext for the true
discriminatory motive.” Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996).

         Achille argues that Chestnut Ridge terminated him in retaliation for exercising his FMLA
rights. Yet even assuming Achille has established a prima facie case of retaliation, he has failed
to provide any evidence of pretext to rebut Chestnut Ridge’s legitimate, non-retaliatory reason
for his termination. Chestnut Ridge contends that it terminated Achille not for taking leave, but
rather for failing to return on schedule without communicating any explanation, in violation of
company policy. Achille concedes that Chestnut Ridge has offered a legitimate basis for its
actions, yet he provides no evidence to counter this explanation. Accordingly, his retaliation
claim was appropriately dismissed.

        Because we affirm the district court’s dismissal of Achille’s FMLA claims, Achille’s
appeal of the district court’s denial of leave to amend his complaint is moot. In the district court,
Achille sought leave to add The Trans Group, LLC (the “Trans Group”), as an additional
defendant in this action. Achille asserted no additional claims against the Trans Group.
Therefore, given that Achille’s FMLA claims against Chestnut Ridge fail, these claims would
similarly fail against the Trans Group, even if added as a defendant.

        Finally, we reject Achille’s challenge to the district court’s discovery rulings. The only
specific discovery ruling Achille challenges involves his request for discovery relating to the
FMLA leave requests of “similarly situated” employees of Chestnut Ridge, including these
employees’ personnel files. The district court denied this request, concluding that because
Achille’s complaint did not allege that he received disparate treatment from other employees at
Chestnut Ridge who requested FMLA leave, the document request was not reasonably calculated
to lead to the discovery of admissible evidence. The district court further concluded that because
Achille was requesting the personnel files of these employees, the request was overbroad and

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would constitute a “fishing expedition.” On appeal, Achille has failed to identify error in either
of these conclusions.

        We have considered the remainder of Achille’s arguments and find them to be without
merit. Accordingly, the judgment of the district court hereby is AFFIRMED. Each side to bear
its own costs.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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