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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