Penberg v. Healthbridge Management, No. 1:2008cv01534 - Document 176 (E.D.N.Y. 2011)

Court Description: ORDER granting in part and denying in part 125 Motion for Summary Judgment; denying 169 Motion for Summary Judgment. Defendant's motion for summary judgment is granted as to plaintiff's interference claim under the FMLA and denied as to all of plaintiff's other claims under the ADEA, FMLA, and NYSHRL and his retaliation claims. The Court also denies plaintiff's motion for summary judgment as to defendant's breach of fiduciary duty claim. The clerk is directed to send copies of this Memorandum and Order to the parties either electronically through the Electronic Case Filing (ECF) system or by mail. So Ordered by Magistrate Judge Cheryl L. Pollak on 10/17/2011. (Caggiano, Diana)

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Penberg v. Healthbridge Management Doc. 176 UNITED STATES mSTRICT COVRT EASTERN DiSTRICT OF NEW YORK --------------------------------------------------------J( MARC PENBERG, Plaintiff, - against HEALrHBRIDGE MANAGEMENT, MEMORANDUM AND ORDER 08 CV 1534 (CLP) o.::fendant. --------------------------------------------------------J( On April 14, 2008, plaintiff Marc Penberg commenced tltis action against HcahhBridge Management, LLC ("HealthBridge"), alleging that he had been wrongfully tenninated from his employment based on disability and age discrimination, in violation of the Americans with Disabilities Act ("ADA"), 42 V.S,c. §§ 1210 tl..Wl,., the Age Discrimination in Employment Act ("ADEA"), 29 V.S.c. §§ 621 el seq., and subjected to retaliation in violation of the ADA, the ADEA, the Family Medical Leave Act ("FMLA"), 29 V_S,c. §§ 112601 et seq., the New York State Human Rights Law ("NYSHRL") §§ 296 tl..Wl,., the New York City Human Rights Law ("NYCHRL") §§ 8-101 tlX&L" and the Massachusetts Fair Employment Act ("MFEA"), (Compl.' 1)_ Presently before the Court are the defendant's Motion for Summary Judgment on all remaining in the Complaint' and plainlitrs Cross-Motion for Summary Judgment on the 'Citations to "CampI." refer to plaintiff's First Amended and Supplemental Complaint, filed December 14,2010. 'In footnote 1 of Plaintiff's Memorandum of Law in Opposition to Motion for Summary Judgment ("PI. '5 Opp,"), plaintiff"dismisses his claims under the New York City Human Rights Law, the Americans Wilh Disabilities Act, and his disability discrimination claim under the Massachusetts Fair Employment Act," (PI.'s Opp_ at 1)_ Therefore, the Court has no! addressed these abandoned claims any further. Dockets.Justia.com defendant's countercbims. For the reasons set forth below, defendant's motion is granted in part, and denied in part; plaintiffs motion is denied. FACTUAL BACKGROUND Defendant HealthBridge manages skilled nursing and rehabilitation facilities, induding certain facilities in Massachusetts for neuro-rehabilitation. (Der. 's 56. I Stmnt' 'in! 1,2; PI.'s Resp.' 1. 2). From 2003 to 2007, plaintiff Marc Penberg was employed by defendant as director of marketing and supervisor of a marketing team seeking to place patients in these Massachusetts facilities. (Compl. 6; Def.'s 56.1 Stmnt 2, 3, 16; PI.'s Resp. 3). Plaintiff was born in December 1954 and was 53 years old at the time his position was eliminated. (Oer " 56.1 Slmnt 34; PI. '$ Resp. 34). Among other responsibilities, plaintiff supervised three liaisons, Cecilia Perdito, Nancy Casso, and Margaret Vaughn (collectively, the "New York liaisons"), who were each responsible for their own territory in New York. (Def.'s 56. I Stmnt 6, 7; PI. 's Resp. 6). In addition to supervising the New York liaisons, plaintiff had his own territory, consisting of Brooklyn, Queens, Westchester, Putnam, Orange, Rockland, Dutchess, and Sullivan Counties, where he was responsible for identifying patient referrals for placement at HealthBridge's neurorehabilitation facility in Massachusetts. (Oef.'s 56.1 Stmnt m]6, 8; PI. " Resp. 8). Plaintiff 'Citations to "Def.'s 56. I Stmnt" refer to Defendant HealthBridge Management's Statement of Undisputed Material Facts Pursuant to Local Civil Rule 56.I(a), dated March 7, 2011. 'Citations to "PI.' s Rcsp." refer to Plaintiffs Corrected Response to Defendant's 56.1 Statement, dated May 12, 2011. 2 worked out of his home located in Shirley, New York, traveling in his New York territory and making day trips to Massachusetts once or twice a year. (Der.'s 56. I Stmnt 4, 5; Pl.'s Resp_ 4, 5). As a necessary step in converting a patient referral to an admission, the HealthBridge employees were required to conduct a clinical screening of the referred individual, including an evaluation of the individual's medical and behavioral histnry to determine whether the person's needs could be mct by the facility. (DeCs 56,1 Stmnt 12, 14; Pl.'s Resp. 12, 14). Defendant contends that the three New York liaisons each had a clinical background: Perdito is a Registered Nurse; Casso is a Licensed Practical Nurse; and Vaughn is a Social Worker. (De['s 56.1 Stmnt 9). Plaintiff disputes the degrees as described and disagrees that the degree descriptions were equal to a "clinical background." (Pl.'s Resp. 9). According to defendant, normally the person who obtains the referral would conduct the clinical screening. (Der's 56.1 SmUlt'; 13). Plaintiff admits that this was the "usual practice" but contends that there was "no formal procedure requiring this" (PI.'s Resp, 13). However, because plaintiff was not a nurse or social \,orker and had no licenses or certifications, defendant claims that Ms. Perdito conducted the majority of screenings for plaintiff's referrals. (Def.'s 56.1 Stmnt 10, 11, 15). Although plaintiff concedes that he had no certificates or licenses, he had a Masters Degree in counseling, and he claims that he did his own screenings in the last few years before being laid off. (Pl:s Rcsp. Y II, 15). In or about August 2007, HealthBridge asked various departments, including marketing, finance. operations, and construction and development, to evaluate their staffing needs in a 3 "company-wide effort 10 reduce costs and streamline pcrsolllleJ." (DeCs 56. J Stmnt PI. 's Resp. n \7, 19). 17, 19; According to defendant, Ms. Leja, Vice President of Marketing for New England, was asked to identify an employee from her department to be included in the reduction in force, and she identified plaintiff as a candidate for termination, (Oef.'s 56.1 Slmnt '\MI17, 18). Plaintiff contends that Leja originally did not provide any recommended names for layoff, but when pressed by Seth Gribetz, Chief Operating Officer of Health Bridge, she suggested that plaintiffbe laid off. (PI.'s Resp. 17, 18). According to defendant, plaintiff was selected for the layoff due to his lack of clinical skills, and the inefficiencies that resulted due to the need to have Ms. Perdito conduct plaintiff's evaluations. (Def. 's 56.1 Stmnl '\MI21, 22, 24, 26). Plaintiff concedes that other departments were asked to evaluate their persormel in cOllllcction with the reduction in force (Pl.'s Resp. 19; see also Def.'s 56.1 Stmnt 19), but denies that he was laid off "due to his lack of a clinical licenser] and qualifications in regards to the screening of potential patients.... " (PI.' s Resp. Plaintiff 21 , 22; Def. 's 56.1 Stmnt 21, 22). that HealthBridge's stated reaSOnS for discharging him are pretextual. Plaintiff contends that he was laid off "because of his disabilities, because of the perception that his disabilities might cause additional absences, because he had exercised his right to a 12-week medical leave, and because of his age." (CompJ. 14). Plaintiff contends that he always received excellent evaluations and brought in a greater percentage of patients during the years 2003, 2004, and 2007. (PL's Opp.' at 4; Ex. F at 61), He further contends that the lack of 'Citations to "PI.'s Opp." refer to Plaintiffs Memorandum of Law in Opposition to Motion for Summary Judgment, dated May 18,2011. , clinical licenses and qualifications is "a pretextual reason created after the lawsuit was filed." (ld. 22). Plaintiff further contends that despite his lack of a medical degree, he was "the top performer in the New York Sales Group." (Id. 24). Although defendant claims that HealthBridge eliminated employees under the age of 40 and continued to employ Directors of Marketing over the age of 50 (Dcf. 's 56.1 Stmnt 35, 36), plaintiff notes that actually only one Director was over 50; indeed, according to the records, a "very large percentage of those laid off ilit were over 50 years of age." 22, 37). On August 15,2007, Ms. Leja and Usa Crutchfield, Vice President of Human Resources, advised plaintiff of the reduction in force, and sent him a Separation Agreement and General Release. (Def.'s 56.1 Stmntm!27, 28; Pl.'s Resp. 27, 28). According to defendant, on August 18,2007, plaintiff acknowledged reading the Separation Agreement, but demanded more severance pay. (Der. 's 56. I Stmnt 29). Plaintiff denies that he read the entire Separation Agreement. (PI.'s Resp. 0; 29). Following the elimination of plaintiffs position, Ms. Leja initially supervised the New York liaisons until that responsibility was taken over by Lynne Fenuccio, a Registered Nurse and Regional Director ofNeurorehabilitation Services. (Def.'s 56.1 Stmnt 'Ii 30; PI.'s Resp. 30). Ms. Perdito undertook the responsibility of marketing in plaintiff's formerterritorie5. (Def.'s 56. I Stmm 32; PI. '5 Resp. 32). With respect to plaintiff's diabetic condition, it is undisputed that plaintiff was required \0 test his blood on occasion, but defendant claims that plaintiff never requested an accommodation and never missed lime from work due to the condition. (Def.'s 56.1 Stmnt 5 41, 42; PI.'s Resp. 41, 42}. On August 15,2006, plaintiff told Ms. Leja that he was going on vacation, but that they needed to schedule hi, 3Jll1ual review when he returned. (Def.'s 56.1 Slrnnt 46, 42; PL's Resp 46). Although the review was scheduled for September 15, 2006, Ms. Leja had to cancel; thereafter, on September 13, 2006, plaintiff notified defendant that he was going to need heart surgery and requested leave, which was granted beginning on September 19,2006. (Def. 's 56.1 Stmnt 46-49; Pl.'s Resp. 46-49). On November 20, 2006, plaintiffretwned to work in the same position with no change in duties or salary. (Def.'s 56.1 Stmnt SO; Pl.'s Resp. 50). However, as plaintiff notes, he never received his evaluation, nor did he receive a pay increase as a result. (PI. 's Resp. 50). Defendant contends that plaintiff never told anyone that he felt he "as not gelling his evaluation because of his health condition. (Def.'s 56.1 Stmnt Resp 43, 45; PI. 's 43, 45). In this action, plaintiff aJleges that he was discriminated against because of his age and terminated because he was over 50 years of age, in violation of the ADEA. lie also claims that he i, diabetic and was discriminated against based on his disabilities, which caused HealthBridge to believe that he might require additional absences.' The Court notes that while plaintiff initially brought claims under the ADA, the NYCHRL, and the MFEA, plaintiff has since abandoned those claims.' Therefore, the Court addresses only plaintiffs remaining claims, under ·Plaintiff also alleges claims ofretaliation based on HealthBridge's assertion of a breach of fiduciary claim and request for spoliation sanctions, which were addressed by this Court in a prior Order, dated October 19,2010. Plaintiff has cross-moved for swnmary judgment on defendant's breach of fiduciary duty claim. Since this claim is based on events occurring after the commencement of the litigation, the facts and cireumstances leading up to this claim are set forth below at 25-28. 'See 6 the ADEA. the FMLA, and the NYSHRL. DISCUSSION Summary Judgment Standards It is well-settled that a party moving for summary judgment has the burden of establishing that there is no genuine of material fact in dispute and that the moving party is entitled to judgment as a matter oflaw. See Fed. R, Civ. P. 56(c); Anderson v. Liberty Lobby. Inc, 477 U.S, 242, 256 (1986); Thompsou v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990). Since summary judgment i5 an extreme remedy, cutting off the rights of the nou-moving party to present a case to the jury, Egelston v. State Univ. Coil. at Geneseo, 535 F.2d 752, 754 (2d Cir. 1976); Gibraltcr v. City of New York, 612 F. Supp. 125, 133-34 (E.D.N.Y. 1985) that summary judgment "is a drastic remedy and should be applied sparingly"), the Court should not grant summary judgmem unless "it is quite clear what the truth is [and] that no genuine issue remains for trial" Auletta v. TollY. 576 F. Supp, 191, 195 (N.D.N.Y. 1983) (internal quotation marks and citation5 omitted), atrd, 732 F.2d 142 (2d Cir. 1984). In addition. "'the inferences to be drawn from the underlying facts. , . must be viewed in the light most favorable to the party opposing the motion.'" Matsushita Elec. Indus. CQ,,!.td v. Zenith Radio Coro., 475 U,S. 574, 587-88 (1986) (quoting United States v. Diebold, Inc .. 369 U.S. 654, 655 (1962)); see also Richardson v. Ncw York State Dep't OrCOTT. Serv., 180 F3d 426, 436 (2d Cir. 1999) (stating that "[wJhen considering a motion for summary judgment the court must draw all factual inferences and resolve all ambiguitic5 in favor of the nonmoving party"). 7 the moving party discharges its burden of proof under Rule 56(c), the party opposing summary jUdgment "has the burden of coming forward with 'specific facts showing that there is a genuine issue for triaL'" Phillips v. Kidder, Peabody & Co, 782 F. Supp. 854, 858 (S.D.N.Y. 1991) (quoting Fed. R. Civ. P. 56(e)). Rule 56(e) "provides that a party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading." Anderson v. Liberty Lobby. Inc, 477 U.S. at 248. Indeed, "the mere existence of some alleged factual dispute between the parties" alone will not defeat a properly supported motion for summary judgment. Id. at 247-48 (emphasis in original). Rather, enough evidence must fa"or the non-moving party's case such that ajury could return a verdict in its favor. hL at 248 (internal citation omitted). I. Plaintiffs Discrimination Claims' A. Plaintiffs Claims of Age Discriminatjon Pbintiffhas alleged that he was subjected to age discrimination under the ADEA because out of the four New York representatives, plaintiff, the top performer and the only individual over 50 years of age, was the one terminated. (PI.'s Opp. at 11). Defendant moves for summary judgment on plaintiffs ADEA claim on the grounds that plaintiff cannot establish that HealthBridge's legitimate reasons for his tennination were a pretext for discrimination. (Def.'s 'Although defendant also moves for summary judgment on plaintiff's retaliation claim, that motion is addressed in connection with plaintiffs motion for swnmary judgment on the counterclaim. (See discussion infra at 40-46). 8 Mcm,' at 20). I) Standards The ADEA prohibits an employer from refusing to hire, discharging, or otherwise discriminating against an employee based on age. 29 U,S.c. § 623(a)(I); Boyle v. McCann- Erickson, Inc" 949 F. Supp. 1095, 1099 (S.D.N.Y. 1997). Under the ADEA, an employee has the burden of showing that age was either a "significant contributing factor" in the employer's decision, Lowe v. Commack Union Free School Disl., 886 F.2d 1364, 1375-76 (2d Cir. 1989), cer!. denied, 494 U.S, 1026 (1990), or that it was "a detenninative factor considered by the employer"' in making an adverse employment decision. Boyle v. McCann-Erickson Inc., 949 F. Supp. at 1099 (citing Hazen Paper Co, v. Biggins, 507 U.S. 604, 610 (1993)). In analyzing a claim of race or age discrimination under the ADEA, courts employ the burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S, at 802-03, and its progeny .&t SlalleD' v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 91 (2d Cir. denied, 534 U.S. 951 (2001), Thus, the plaintiff in a suit brought under the ADEA bears the initial burden of proving a prima facie case of discrimination by a preponderance of the evidence. See S!. Marv's Honor Ctr. v. 509 U.S. 502, 506 (1993) (citing Texas Dep't ofCmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981 )); SlatteD' v. Swiss Reinsurance America Corp" 248 F.3d at 94, Once a plamtiff has established a prima facie case of age discrimination, the bllrden then shifts to the employer to establish a non-discriminatory reason for the employment 'Citations to "DcCs Mem."' refer to Defendant HealthBridge's Memorandum of Law in Support of its MOlion for Summary Judgement, filed March 8, 2011. 9 decision. Texas Dep't ofCmty. Affairs v. Burdine, 450 U.S. at 252-53. The final burden is then placed back on the plaintifTto prove that the defendant's proffered reason was pretextual and that defendant discriminated against the plaintiff. liL at 253; Slattery v. Swiss Reinsurance America Cprp., 248 F.3d at 95; also Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133,143 (2000). Generally, to establish a prima case of age discrimination, a plaintiff must show that he was (1) a member of a protected class; (2) was qualified for the position; (3) suffered an adverse employment action; (4) under circumstances giving rise to an inference of discrimination based on membership in the protected class. Barbosa v. Continuum Health PNlners.1m:., 716 F. Supp. 2d 210. 215 (S.D.N.Y. 2010); EIIlso Carlton v. Mystic Transp .. lnc., 202 F.3d 129, 134 (2d Cir. 2000). cert. denied, 530 U.S. 1261 (2000); Chambers v. TRM Copy Ors.Com., 43 F.3d 29,37 (2d Cir. 1994); accord McDonnell Corp. v. Green, 411 U.S. at 802 (explaining that a pnma facie case is made out under Title Vii "by showing (i) that [plaintifl] belongs to a racial minority; (ii) that he applied and was qualiiied for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications"). Courts analyze "ADEA claims within the same framework as Title Vll,"Guerra v. Jones, No. 08 CV 0028, 2010 WL 986403, at·7 (ND.N.Y. Mar. 17. 2010) (citations omitted), with the only difference being that the protected group is based on age as opposed to r,.ce. See McDonnell Douglas Corp. v. Green, 411 U.S. at 802. The requirements for establishing such a prima facie case, however, are "minimal," SI. Mary's Honor [0 Ca. v. Hicks, 509 U.S. at 506; aCCQrd Austip v. Ford Models Inc., 149 F.3d 148, 152 (2d Cir. 1998), and courts in this circuit have held that "the Supreme Court intended the lower courts to be flexible in detennining what prima facie elements should be utilized." Cifra v. Gen. Elec. Co., 62 F. Supp. 2d 740, 743 n.2 (N.D.N.Y. 1999), afrd in pan and vacated in parton different grounds. 252 F.3d 205 (2d CiT. 2001). 2) Analvsis In support of his prima facie case, plaintiff has offered evidence that at the age of 53, he "as a member of a protected class of individuals over the age of SO (Def.'s 56.1 Stmnt 34; PI. 's Resp. 34); and that he was qualilied for the position which he had held with defendant for roughly five years, during which time he had received excellent reviews. (Pl.'s Opp. at 2-3). Plaintiffs tennination from his position in 2007 clearly constitutes an adverse employment action. Plaintiff argues that in light of the fact that he was a "top perfonner" among sales the only sales representative over 50, and the only sales representative tenninatcd. his termination gives rise to an inference of age discrimination. ilii at II). Defendant does not argue that plaintiff cannot establish a prima facie case of age discrimination. Instead, defendant argues that it has offered a legitimate, non_discriminatory reason for plaintifrs ternlination 'Which pbimiff is unable to demonstrate was a pretext for discrimination. (Der.'s Mem. at 20-21 J. Once a plaintiffha. made out a prima facie case of discrimination, defendant has the burden of proffering a legitimate non-discriminatory reason for plaintiffs tennination. See Heyman v. Queens Vill. Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 11 F Jd 68, 72 (2d Cir. 1999). This burden has been described as "light," Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 52 (2d Cir. 1998), and courts have held that the employer "need not persuade the court that 11 was motivated by the reason it provides; rather it must simply articulate an explanation that. iftroe, would connote lawful behavior." .!4.; see also Cody v. County of Nassau. 577 F. Supp. 2d 623, 636 (E.D.N.Y. 2008) Here, defendant contends that plaintiffs position was eliminated due to unrelated economic challenges and a desire to streamline HealthBridge's operations. (Def.'s Mem. at 22). Defendant further asserts that plaintiffs lack of a licensed clinical background and the resulting inefficiencies were the non-discriminatory basis for tenninating plaintiff. QQJ This articulated explanation satisfies the defendant's minimal burden of articulating a nondiscriminatory reason for the termination. Courts reCOgni7.e economically-driven restructuring as a legitimate, nomli,criminatory reason for tennination. See. e,g .. Deebs v. Alston Transp. Inc .• 346 Fed. Appx. 654 (2d Cir. 2009); Roge v. NYP Holdings. Inc., 257 F.3d 164 (2d Cir. 2001); Hroncich v. Paine Webber. Inc., 159 FJd 134 (2d Cir. 1998). Having proffered a legitimate rationale, it then falls once again to plaintifTto demonstrate that the legitimate reasons offered by the defendant were "merely a pretext for discrimination." Heyman v. Queens ViII. Comm. for Mental Health for Jamaica Cmty. Adolescent Pro!!IaID, 198 F.3d at 72. More specifically, plaintiff must show that discrimination "",,"3.5 a substantial reason for the adverse employment action." Jute v. Hamilton Sundstrand Corp., 420 F.3d 166. 173 (2d Cir. 2005). The bllrden for plaintiffis higher than that which applied for analyzing the prima facie case; a plaintiff must demonstrate "'a sufficient basis for a trier of fact to doublthe 12 persuasiveness of [the employer's1 proffered evidence and ultimately to find that the [legitimate, non-discriminatory I reasons offered by [the employer] ... were pretextual.'" .til (quoting Quinn v. Green Tree Credit Corp., 159 F.3d at 770) (omission in original). Clarifying the standard for examining claims of pTe text in adverse employment actions, the Second Cireuit stated: A plaintiff alleging that an employment decision was motivated both by legitimate and illegitimate reasons may establish that the "impermissible factor was a motivating factor, without proving that the emplnyer's proffered explanation was not some part of the employer's motivation." Holcomb v. lona CoIl., 521 F.3d 130, 142 (2d CiT. 2008) (quoting Fields v. N.Y. State Qffieeof Mental Retardation & Developmental lIS F.3d 116, 120 (2d Cir. 1997)}. In this case, plaintilfneed not prove that the economic need to streamline operations played no role in his termination, only that his age was a motivating factor" in his termination. Hyeck v. Field U Support Servs.. IIlC., 702 F. Supp. 2d 84, 93 (ED.N. Y. 2010) (holding that plaintiff"must present more than allegations that are 'conclusory and unsupported by evidence of any weight"') (quoting Smith v. American Express Co., 835 F.2d 151, 154 -55 (2d Cir. 1988». However, It is well-settled that plaintiff must produce admissible evidence in support of his case. "The judgrnent rule would be rendered sterile ... if the rnere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). Plaintiff argues that he has submitted sufficient facts to raise a question for trial. (PI. 's Opp. at 14). Specifically, plaintiff contends that: I) he was the top salesperson in New York, bnnging in more patients, and converting a majority of his prospective individuals into actual 1) patients; 2) he performed better than two of his younger subordinates; and 3) he achieved these successes while also supervising three other people. (!g, at 14-15). He contends that there is an as to whether he could do his own assessments and argues that ifhe could, it does not make sense for Ms. Leja to have eliminated the top salesperson. (!g, at 15). He also points out that Ms Leja was unaVI'are that he had a Masters degree and did not know whether he did his own assessments. (MJ Plaintiff further points out that when he was laid off, he was not told the reason now being advanced. (M.,) Instead, the Vice President of Human Resources made the following note: "January 20 back from IFMLA] leave, diabetic + 50." OiD Plaintiff suggests that these notes have gone unexplained, ili!J Finally, plaintiffllotes that 55% of those laid off were over 50, with ollly 35% remaining who were over 50. lliL at 16), Considering these facts, the Court finds that plaillliffhas proffered sufficient evidence, which ifproven, could be relied upon by ajury in finding that plaintiff's age was a motivating factor in his discharge. Thc note, with its reference to "+50," when considered in light of plaintiffs performance record and the fact that noone mentioned the issue of his credentials until suit was filed, raises enough questions about the defendant's proffered explanation to warrant 3 triaL Accordingly, given that many of these facts are in dispute, the Court concludes that plaintiff has presented sufficient evidence to defeat defendant's summary judgment motion on the ADEA claim. 14 B. ?laintiifs FMLA Claims Defendant moves for swnmary judgment on plaintiff's FMLA claim of retaliation on the grounds that plaintiff cannot support his claim that he was terminated in retaliation for taking FMLA leave. (Ocf.'s Mem. at 24). I) Standards The fMLA was enacted "to entitle employees to take reasonable leave for medical ... for the care of a child, spouse or parent who has a serious health condition." 29 U.S.C § 2601(h)(2). The Act provides job security for employees who have "serious health conditions that prevent them from "orking for temporary periods." 29 U.S.c. § 2601(01)(4). Under the Act, an employee is entitled to take a total of twelve workweeks of leave during any t"elvc month period, for health related reasons, 29 U.S.C. § 2612(a)(1 )(D), and upon returning from ,uch leave, the employee is entitled to be restored to his position or an equivalent position. 29 U.S.C. § 2614(a)(I). The FMLA prohibits an employer from interfering with an employee's orhis rights under the Act, 29 U.S.C. § 2615(a)(I), and from discharging or in any other manner discriminating against an individual for opposing any practice made onlawful by this subchapter. 29 U.S.c. § 2615(a)(2) Any eligible employee who was wrongfully denied benefits under the Act or who faced retaliation because of the exercise of her rights under the Act is authorized to bring a private action against the employer under the fMLA. See 29 U.S.C §§ 2611,2615; 29 C.F.R. § 825.220 (stating that "employers cannot use the taking ofFMLA leave as a negative factor in employment actions, such a. hiring, promotions or disciplinary actions"). ?laintiff alleges two separate causes of action under the FMLA: I) interference with the 15 exercise of his FMLA rights under 29 U.s,C. § 2615(a)(I), and 2) retaliation for exercising his FMLA rights, 29lLS,C. § 2615(a)(2). (See Pl.'s Opp. at 12). The Court considers plaintitT's two claims in him. a. Interference Claim Interference claims are appropriate when "the employer in some manner impeded the employee's exercise of his or her right[s] <lfforded substantive protection under the FMLA." Sista \'_ CDC Ixis N, Am, Inc, 445 F.3d 161, 176 (2d Cif. 2006) (citing King v. Preferred Teehmcal Group, 166 F.3d 887, 891 (7th Cir. 1999)). A plaintiff bears the burden of establishing only <I prima facie ease for inlerference claims, and the court need not consider Ihe issue of the employer's intent. l..\t In order to eSlablish a prima facie case ofinterferenee with plaintitT's exerci,e ofFMLA righls, plaimiffmust establish that: I) he is an eligible employee; 2) defendant quahfies as an employer under the FMLA; 3) plaintiff was entitled to take leave under the FMLA; 4) plaintiff gave notice to defendant; of his intention to take leave; and 5) defendants denied plainlifflhe benefit to which he was entitled under the FMLA. See Brown v. Pension Bds., 488 F. Supp, 2d 395, 408 (SD.N.Y. 2007). b, Retaliation Claim In order to esmblish a prima facie ease ofretaHation under the FMLA, plaintiffmusl show that: I) he exercised rights protected by the FMI.A; 2) he was qualified for the position; and 3) he ,uffered an adverse employment action; 4) under circumstances giving rise to an inference of retahatory inlen!. See Potenza v, City of New York, 365 F.3d 165, 168 (2d Cic. 2004). In analyzing claims of relaliation under the FMLA, the Second Circuit has explicitly adopted the 16 McDonnell analysis uscd in Title VII cases, .!.>L; see also Aulicino v. N,Y. City Dept. Of Homebs Servs" 580 F.3d 73 (2d Cir, 2009); Mathirampuzha y Potter, 548 F.3d 70, 78 (2d Cir. 2008). For plaintiff to prevail on his claim that defendant terminated his position because of his need to take FMLA leave, he must show that he was terminated "under circumstances which give rise to an inference of unlawful discrimination." Aulicino v, N.Y. City Dept. ofHomeJess Sen.'s., 580 F.3d at 80 (quoting Brown v. Coach Stores Inc, 163 F.3d 706, 710 (2d CiT. 1998)). 2) Analysis For purposcs of this motion, the parties do not appear to dispute that HealthBridge is a covered employer under 29 U.S.c. § 2611(4)(A)(i), or that plaintiff is an eligible employee as defined by the statute, Similarly, there does not appear to be a dispute as to whether plaintiff was to take leave under FMLA, nor is there any claim that he failed to give notice to llealthBridge of his plan to take leave. (PI. 's Opp. at 13). Sixta v. CDC !xix N. Amer., 445 F 3d 161. 167-68 (2d Cir. 2006). Moreover, since the FMLA is designed to protect employees who arC temporarily unable to perform their job functions and spedfically provides for intennittent 29 C.F.R, § 825,203, plaintiff was eligible for FMLA leave, .!.>L If after taking FMLA medical leave, an employee is unable to return to work, there is, however, no obligation for an employer to keep the job open. llli: Roberts v. Ground Handling, Inc, 499 F, Supp. 2d 340, 351 (S.D.N.Y. 2007); see also Sarno v. Douglas Elliman-Gibbons & Ives, Inc.. 183 F.3d ISS, 161 (2d Cir, 1999) (ruling that there was no FMLA violation where plaintiff was still unable to perform his job function at the conclusion of his FMLA leave period). Here, plaintiff was able to return to his job and functions after taking leave for his heart surgery; this docs not preclude 17 his FMLA claims. a. Plaintiffs Interference Claim Plaintiff argues that defendant violated 29 C.F.R. § 825.220(c), which prohibits consideration of FMLA leave as a negative factor in an employment decision. (P1.'s Opp. at 13). He argues that every year in June, all HealthBridge employees received their evaluations and raises. (ld.J He contends that he was scheduled for an evaluation is September 2006 which was cancelled before he went out for heart surgery. ili!J Even though he returned in November 2006, he was not evaluated again; he was never evaluated for the year 2006, nor did he receive Jlme evaluation for 2007. (l.>h) Instead, he was tenninated. (!QJ Ms. Leja testified in her deposition that she prepared evaluations for plaintiff for 2006 and 2007, but plaintiff never received a raise. iliU Since he claims he was the highest producer in New York for 2007, he arglles that, at a minimum, defendant's failure to mise his salary and, later, his tennination following his FMI.A leave makes out a prima facie case of discrimination. iliL at 13-14). Since plaintiff only alleges that an adverse employment action was taken in response to his taking FMLA leave and only after he took leave, the Court does not find any basis for his interference claim. "I nterfeTing with" the exercise of an employee's rights includes "for example, not only refusing to authorize FMLA leave, but discouraging an employee from using sllch leave." Potenza v. City of New York, 365 F.3d 165, 167 (2d Cir. 2004) (citing 29 C.F.R. § 825.220(c)). Pl;!intifT does not claim that defendant in any way discouraged him from taking leave or prohibited him from exercising his rights under the I'MLA; he claims only that defendant punished him for exercising his rights under the FMLA. Thus, plaintiff asserts a 18 retalia110n claim, not an interference claim. b. Plaintiffs Retaliation Claim rn the Firth Cause of Action in his Complaint, plaintiff alleges that "[by] its discharge of plaintlfTbecause he took medical leave, defendant violated plaintiff's rights under the Family Medlcal Leave Act ("FMLA"), 29 U.S.c. § 2601, elxeq." (Compl. '\130). However, in his Memorandum of Law opposing defendant's summary judgment motion, plaintiff appears to mise a new claim - namely, that his tennination was not the only adverse employment action he suffered after taking FMLA leave. Now plaintiffscems to argue in his motion papers that defendant retaliated against him for taking FMLA leave by failing to consider him for or give him a raise 1n 2006 and 2007. (Pl.'s Opp. at 12). Defendant's failure to consider plaintitTfora mise or give him a raise following his FMLA leave may be considered as circumstantial evidence ofretaliatory intent. However, because plaintiff failed to include the denial of a raise as a separate daim in his Complaint, plaintiff is precluded from arguing that defendant's failure to hold his rcview Or give him a raise alone is sufficient proof of his Fifth Cause of Action. in considering the plaintiffs FMLA retaliation claim, the Court therefore has only considered plaintiffs "discharge" or tenninalion as the adverse employment alleged in this case. (Compl. '\130). In pursuing his claim of retaliation against deiendant. plaiotiff must not only establish that he exercised rights protected by the FMLA; he must also demonstrate that he was qualified tor the and that he suffered an adverse employment action under circomstances giving rise 10 an inference of retaliatory intent. While plaintiff contends that he was qualified for the 19 position and hcld it for several years without complaint, defendant has raised an issue as to whether the plaintitrs lack of clinical tmining and accreditatinns rendered him unqualified to perform certain functions of the job - namely, the screenings thaI were required prior 10 conlirming a patient's admission to a HealthBridge facility, (Der. 's Mem. al 25). Defendant also conlends that plaintiff has failed to show that his termination occurred under circumstances giving rise to an inference of discrimination. C!QJ Under the McDonnel Douglas burden shifting test, defendant correctly notes Ihat even if plaintiff Can establish a prima facie case with respect to thc first two prongs of the lest and HeallhBridge articulates a legitimate non-discriminatory explanation for his termination, plaintiff ultimately bears the burden of proving that HealthBridge's proffered reason was a prelexl for retaliation. See Dep't of County Affairs v. Burdine, 450 U.S. 248, 256 (l981). HealthBridge argues thm the circumstances surrounding plaintiffs termination do not give rise to an inference ofretaliatory intent because nnt nnly was plaintiffpennitted to take leave, but he returned to his job with "the same salary, same duties and the same individuals reporting to him," (Def', Mem at 25). In addition, plaintiffs employment was not terminated until roughly nine months relurned from FMLA leave. ilih at 24). Defendant argues that in order for pluinliffto prove retaliatory intent based on "mere temporal proximity" between the FMLA leave and the advcrse employment action. plaintiff must demonSlrate that the temporal proximity "as "very close."' (DeCs Mem. al24 (quolingWalder v. White Plains Bd. ofEduc., 738 F, Supp. 483,503 (S.D,:-./.Y. 2010) (inlernal citations omitled»), \lrbde the nol inlended to shield employees from all legitimate business 20 deCIsions that result in negative consequences to their employment such as the elimination of the position here, sec Geromanos v' Cplumbia Univ., 322 F. Supp. 2d 420, 428 (S.D.N.Y. 2004); ru also Sarno v. Douglas ElIiman_Gibbons & lvI's, Inc., 183 F. 3d at 161, plaintiff argues that defendant has failed to explain why plaintiffwas not given a raise in 2006 and 2007, prior to the decision to downsize. (PJ.'s Opp. at 14). Indced, the caselaw makes it clear that 10 sustain a claim under FMLA, a plaintiff need only show that discrimination was a motivating faclor in the decision, evcn if defendant's proffered explanation is also credible, Sce Desert Palace, Inc, v. Costa, 539 U,S. 90, 98 (2003); Fields v. N.Y.S. Office of Mental Retardation & Developmental Disabilities, 115 F.3d 116, 120 (2d Cir, 1997). Plaintiff has asserted a number offacts tbat suggest that the explanation advanced by defendant is a pretext for discrimination. discussion at 13-14). Specifically, plaintiff points to the fact that he was the highest producer in his group and successfully supervised the olher sales people in his region. In addition, as noted above, plaintiff had operated successfully for years without the need for the licenses now being claimed as cnllcal to his job perfonnance and there is a dispute as to plaintiff's ability to do screenings, More importantly, plaintiff argues that his Jack of licensing is prctextual he<::ause Ms. Leja, who made the de<::ision to recommend him for tennination, was not even aware of plaintiffs qualifications. Finally, particularly pertinent to his FMLA claim, plainliffpoints to the note that states: "January 20 back from leave, ... ," All of these facts, taken together, could, if proved credible. support a finding of pretext. Accordingly, having considered all of the facts proffered by both parties, the Court finds 21 that has raised issues of fact regarding the articulated reason for defendant's discharge of plaintiff following his return from FMLA leave that preclude summary judgment on this claim. C. Plaintiffs Claim Under the NYSHRL Defendant moves for summary judgment on plaintiff's claim of disability discrimination brought under the NYSHRL,'o arguing that plaintiff cannot establish a prima facie showing that he was regarded as disabled by defendant. I) Standards Disability discrimination claims under the NYSHRL "are governed by the same legal as such claims under the ADA." Reddick v. Niagara Mohawk Power Co, No. 08 CY 0995,2010 WI, 5185098, at *3 n, 8 (ND.N.Y, Dec. 16, 2010). In order to state a prima facie case of disability discrimination under the NYSHRL, plaintiff must establish that: (I) HealthBridge is covered by the relevant statute, (2) plaintiff is disabled within the of the statute, (3) plaintiff is able to penonn the essential functions of his position with or without a accommodation; and (4) plaintiff suffered an adverse employment action because of his diS<lbility, See FQwler v. Kohl's Dept. Stores, Inc" No, 07 CY 1197, 2009 WL 2155481. at *4 (N.D,l\'.Y. Jldy 16, 2009). Once a plainliffmakes OUI this prima facie case under the NYSHRL, "a rebuttable presumption of discrimination arises, The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment decision." Auis v. Solow Realty Development CQ., 522 F. Supp, 2d 623,627 (S.D,N.Y. 2007) ... [fthe employer 10 A" noted supra at n.2, plaintiff has withdrawn his claim under the ADA. 22 articulate, such a reason, the presumption of discrimination "simply drops out of the picture," and the burden shifts back to the plaintiff to show, without the benefit of any presumption, that, more likely than not, discrimination was a motivating factor in the employer's adverse decision." 1"'- (qooting SI. MaD"s Honor Ctr. v ! 509 U.S. 502, 510-1 I (l993)). Plaintiff correctly points out lllat there are some differences between the ADA and the NYSJlRL. Thus, "[wJhile di'ability discrimination claims under the ADA and the [NYSHRLj, N. Y. Exec. Law § 296, et seq .... are analyzed similarly, the definitioo of disability is broader under the NYSHRL" Levine v. Smithtown Cen!. School Dis!., 565 F. Supp. 2d 407, 428 (E.D.N.Y.2008). The NYSHRL defines '"di""bility" as '"a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the excreise of a normal bodily function Or is demonstrable by medically accepted clinical or laboratory diagnostic techniques .... " N.Y. Exec. Law § 292(21) (McKinney's 2010). J\'e'W York's definition is broaderthan most other disability statutes, including the ADA. See Reeves Y. Johnson Controls World Services, Inc., 140 F.3d 144, 154 (2d Cir, 1998) (citing State Division of Human Rights v. Xerox Corp., 65 N.Y.2d 213, 218, 491 N.Y.S.2d 106, 109 (1985». The NYSHRL "provides that disabilities arc not limited to physical or mental impairments, but may also include 'medical' impainnents." State Division of Human Rights v. Xerox Corp., 65 N.Y.2d at 218-19, 491 N.Y.S.2d at 109. In addition, unlike the ADA, the NYSllRL "does not impose the reqoirement that the impainnent substantially limit the indivldual's nonnal activities." Krikelis v. Vassar College, 581 F. Supp. 2d 476, 486 (S.D.N.Y. 2008). Aside from the law's unique definition of "disability," claims under the NYSHRL are 23 analYJ:ed under the familiar burden-shifting framework set forth in MeDonnel! Douglas. See Reeves v. Jobnson Controls World Services Inc., 140 F.3d at 156 n. 9. 2) Analysis Plaintiff alleges that he is disabled within the meaning of the NYSHRL based on his diabetes. He claims that defendam knew cause additional (Comp!. and expected that his diabetes might I J, 14). Plaintiff claims that he was ultimately discharged because of his disability. Q4, 26). Defendant argues that plaintiff cannot make a prima facie showing that HealthBridge "regarded him as disabled under the NYSHRL." (Def.'s Yfem. at 18) There appears to be no dispute that HealthBridge is covered by the NYSHRL. However, based on the NYSHRL's broader detlnition of "disability,"' the Court finds that a triable issue of fact has been raised regarding whether plaintiffs diabetes constitutes a disability under the NYSHRL. See Epstein v. Kalvin Miller Intern .. Inc., 100 F. Supp. 2d 222, 230 (S.D.N.Y. 2000) (holding that plaintiffs type 2 diabetes and heart disease, which were diagnosed by a licensed were medical disabilities within the meaning of the NYSHRL); Krikelis v. Vassar College, 581 F. Supp. 2d at 486 (finding a triable issue of fact existed regarding whether plaintiff's diabetes is a cognizable disability under the NYSHRL). Defendant claims that plaintiff did not require an accommodation relating to his diabetic condition (Def.'s 56.1 Stmnt 41), yet plaintiff and defendant are in agreement that plaintiff tested his blood four times a day, and did SO in his car during the workday when he was working for HealthBridge. (Def.'s 56.1 Stmnt": 43; PI.'s 24 43). There also seems to be no dispute thut plaintiffs heart surgery was related to his medical condition. Finally, it is undisputed that plaintiffs tertllination constitutes an adverse employment action. Assuming for purposes of this motion that plaintiff can establish that diabetes qualifies as a disability under the NYSIIRL, he must still show that he suffered the adverse employment action because of his disability. As with plaintiff's other claims, defendant has argucd that there was a legitimate, non-discriminatory reason for plaintiffs !ertllination. PI aintiff has asserted a number of facts that suggest that this explanation advanced by defendant is a pretext lor discrimination. (See discussion at 13-14). Although the evidence supporting plaintiff's claim that his diabetes was the real reason for the tertllination is not as as perhaps some of his other claims, he has asserted that his heart surgery was required as a result of his diabetes. Thus. if the jury were to find that his diabetes was a disability under the ]\;YSIIRL, and plaintiff could demonstrate through the note that specifically referted to him as "dIabetic," that his cnndition was a motivating factor behind his tertllination, he may be able to demonstrate pretext. Accordingly, having considered all of the facts proffered by both parties, the Court that plaimiff has raised sufficient issues of fact regarding the articulated reason for defendant's discharge of plaintiff that preclude summary judgment on this claim. II. Plaintiffs ReWliation Claims and Defendant's Counterclaim On or about February 2, 2009, following the filing of the Complaint, defendant allegedly discovered that pI aintiff had been maintaining certain confidential Heal thBridge infortllat ion on 25 plaintiff:; home complder in violation of company policy. (Def.'s 56.1 Stmnt 64). On April 23, 2009, defendant moved to amend its Answer to include counterclaims alleging breach of fiducial} duty and spoliation of evidence. By Order dated July 9, 2010, the district coun adopted this Coun's Report and Recommendation and granted defendant's request for permission to amend the Answer to assert a counterclaim alleging that plaintiffhad breached his fiduciary duty. The district cOllrt, however, denied defendant's request to add a claim of spoliation in the Cumplalnt, holding that such a claim was not cognizable under New York law. However, this Court did impose costs and attorney's fees on plaintiff, finding that Rule 37 of the Federal Rules of Civil Procedure provided an adequate remedy for spoliation. In response, plaintiff amended his Complaint to add a claim of retaliation, alleging that defendant only sought s!",liation sanctions in retaliation for plaintiff pursuing his discrimination claims. Plaintiff now moves for summary judgment on defendant's counterclaim for breach of fiducial}' duty and defendant cross-moves for summary judgment on plaintitrs retaliation claims. For the reasons ,tuted below, both motions are denied. A. Factual Background In connection with defendant's counterclaim for breach of fiduciary duty, plaintiff concedes thai it is undisputed thut he worked on his home computer and that defendant was aware of this fact. (PI. 's Cntrc1m 56.1 Stmnt" '\[1). Plaintiff alleges in his Complaint that "Citations to "PI. 's Cntrclm 56.1 Stmnt" refer to Plaintiff Marc Penberg' s Statement of Material Undisputed Facts Pursuant to Local Civil Rule 56.1, filed June 27, 2011. 26 bc<:ause he did not have an office in his sales !erritory, he used his home as his office. (Compl. '\[ 8). PlaintitT claims that he would "prepare certain documents on [his] computer" and fax them to his supervisors at llealthBridgc. (Penbcrg Oecl." '\[6) Among the documents that he concedes were maintamed on his home computer were patient assessments, personnel of his and sales reports, among other things. (!Q, '\I 5). Pluintiff claims that he chose to use his computer rather than !he company laptop which was issued to him because he preferred Apple computers. (Penberg Decl. 3-4; O'Brien AfT. 4/22" 5). Although I !eallhBridge admits lhat il became awure that plaintiff performed work on his home compuler. defendant denies being aware ofthis fael unlil after this litigalion began. (Def.'s Resp.'" I) Defendanl asserts that HcalthBridge has a policy lhat employees not disclose HealthBridge's confidential or proprietary information to the public and requires all former employees 10 relum company property to HealthBridgc at the time of separation. (Def. '556.1 Stmnt ,j'" 52. 53). Defendant contends that this policy requires the return of all originals and copies of any confidential andlor proprietary information; indeed, the Separation Agreement contained a specific provision requiring that plainti If not disclose confidential or proprielary information, including patient or employee information, and marketing plans Or projections. iliL "Citations to "Penberg Oed."' refer to lhe Declaration of Mare Pen berg, filed on June 3, 2009. "Citations to "O'Brien Aff. 4122" refer to the Affidavit of Jennifer M. O'Brien, Esq., dated April 22, 2009 and submitted in support of HealthBridge's Motion to Dismiss. "Cital1ons to "DeL's Resp." refer to the Defendant's Response to ?laintift's Statement of Ylatcrial Undisputed Facts Pursuant to Local Civil Rule 56.1, dated July 18,2011. 27 "i 55; Moran Decl.," Ex. F). Defendant also contends that the Separation Agreement contained a provision requiring the return of all company property and prohibiting plaintiff from accessing any company property. (DeC's 56.1 Stmnt 57; Moran Decl., Ex. F). Plaintiff concedes that there is u policy that fonner employees not disclose confidential information, but disputes the statemcnt regarding the return of company property, asserting that the employees are not advised orthi .• policy. (Pl.'s Resp. 52, 55). Plaintifl' fiJrther asserts that he refused to agree to the tcnns ofthe Separation Agreement. llil ': 57). Defendant alleges that after his tennination, plaintifl maintained confidential data relating to llealthBridge residents and prospective residents on his personal computer, that the computer was accessible by third parties, and that the infonnation was not password protected. (Def.'s 56.1 60, 61). Defendant further contends that while plaintiff continued to maintain possession ofthis confidential infonnation, he connected his computer:; to the internet, using LimeWire. a file sharing program. thus allowing third parties to have access to this confidential inlonnation. (hl 63). Plaintiff claims that he never revealed any proprietary information 10 anyone olher than his attorney, and emailed any patient or HealthBridge information to anyone. (PI.' s Cntrclm 56.1 Stmnt 2). Similarly, although he admits that his son installed l.imeWire on his home computer, he claims that he was told by a llealthBridge expert in March 2009 that there was "no way that any files in his computer were attached and 'leaked' out into the internet using Limewire." iliL 3). "Citations to "Moran Decl." refer to the Declaration of Sandra S. Moran, Esq., dated July 18,2011. Defendant contends tbat it did not learn of plaintiffs failure to return the company's confidential information until on or about february 2, 2009; at thm time, the defendant demanded tbe immediate return oftbe documents in both electronic and hard copy format. (hi. T; 64, 65). reminding plaintiff of his duty to preserve this information, defendant claims that plaintiff confirmed on April 8, 2009, that he had destroyed the flies, data and otber docwnents that be had previously stored on his computer. (hi. '\MI66, 70). Plaintiff admits thm he destroyed the documents as alleged <l.d, mr 61. 70), but be denies that the destruction ofthe'e documents resulted in a loss (If evidence relevant to the defenses of IlcaltbFlridge Or that it made it difficult for the company to notifY individuals of potential breacbes of their personal health information, (Ill 71; but Def. 's 56.1 Stmnt 0; 71). B. Plaintiffs Motion for Summary Judgment on the COU!J(erclaim Turning first to plaintiffs cross-motion for summary judgment, plaintiff asserts that defend,lIlt's counterclaim for breach offiduciary duty should be dismissed because defendant cannot demonstrate that plaintilI breached a fiduciary duty owed to defendant nor can defendant establish that if suffered any damages as a reSU11 of plaintiffs conduct that has not already been awarded by the Court pursuant to Fed, R. Civ. p, 37. I) Standards ><1 n order to establish a breach offJduciary duty, a plaintiff must prove the existence of a fiduciary rciallonsbip. misconduct by the defendant, and damages that were directly caused by the defendant's misconduct" Kurtzman v, Bergs(ot 40 A.D.3d 588, 590, 835 N.Y.S.2d 644, 646 29 (2d Dcp't2Q07) (internal citations omined)_ 2) Analysis IlcalthBridge contends that plaintiffbreached his fiduciary dUly in three ways: I) by maintaining Healthbridgc documents on his home computer and by continuing 10 maintain thc documents and materials in hard copy and ele\:tronic jormat contrary to I-IealthBridge's established policy that employees are required to return the information to the company IIpon termination of their cmployment; 2) by allowing the information to be leaked to the through the interne!; and 3) by filing papers On ECr without proper redaction (Def. '5 Opp "at 11-12). As an mitial malter, plaintiff does not appear to dispute the fact that he owed a tJduciary duty to HealthBndge not to dIsclose confidential Company documents, including sensitive patient healthcare information, which he was required to maintain as confidential under the Health Insurance Portability and Accountability ACI of 1996 ("HIPAA"). II eal thB ridge I1!l at 11). that even in the absence of a specific contract or agreement, ". [l]he duty of an employee not to use or divulge confidcntial knowledge acqoired during his employment is implicit in the employer-employee relation [and] is an absolute, and not relative, doty. '" Abraham Zion Corp. v. Lebow, 593 F_ Supp. 551, 569 (S.D.N. Y. 1984), ilff.Q, 761 F.2d 93 (2d CiL 1985). Plaintiff has conceded thm hc was aware of his obligation to kecp the HealthBridge patient informatl"n confidcntiaL (PI: s Cntrclm 56.1 Stmnt 2). Thus, there docs no! appear to '"Citations to "DeL's Opp." refer to Defendant HealthBridge's Memorandum of Law in 0pJXlsi!ion to Plaintifl's Motion for Summary Judgment, filed July 18,2011 30 be any dispute that plaintiff owed a fiduciary duty to HealthBridge to maintain the confidentiality ofCompilllY records. a. Failure to Return HealthBridge Documents With respect to the claim that p!aintiffbreached his fiduciary duty by possessing these documents and retaining them after the termination of his employment, HealthBridge argues that not only was plainti ff aware of his obligations under HealthBridge's confidentiality policy and under H1PAA, but he confmned in 1Nriting that he had read the Separation Agreement which contained these very nondisclosure provisions, along with a specific provision requiring the return of Company property. Plaintiff, however, denies that he read the entire Separation Agreement and insists that, in any event, he did not agree to its terms. (penberg Dec!. 1 8). Plai ntiff claims that he did not receive the Agreement until "[s ]cvcral days" after he was lemlinated (id. '\I9(b). Exs. 1-3), and that when the Separation Agreement revealed that he was to receive only four months of severance, he did not read any further because this amount was unacceptable to him." (M., 1 9(c»). As a result, plaintiff contends that he is not hound by the Agreement, including its non-disclosure clause, because he did not accept the money being oftered. (hi. (further noting that "[nJothing in paragraph 8 of the Separation Agreement was ever given or stated to me while [was employed")). Moreover, plaintiff contends lhat not only was HealthBridge fu!!y aware of the facl tbat pluintiffused his home compuler for work, he further affirms that upon his termination in 2007, "Defendant notes lhat on August 19, 2007, plaintiff confirmed in 1Nriting lhat he had read the Separation Agreement and Genera! Release, which set forth these confidentiality obligations. (OrCs at 6: O'Brien Afl 4f22 1 8, Ex. B). 31 "no one said an}thing about an obligation to return papers:' ili!., 119). Indeed, he contends that defendant has not presented an} evidence to demonstrate that defendant had a document retention p',licy or that plaintiff "<IS ever infonned of a policy that required the return o/" documents stored on his computer, ilil1l8), In the absence of any detailing the Company's retention policy and demonstrating that the retention policy was ever provided to plaintiff prior to his tennination, and the factual dispute as to defendant's knowledge of the use of plaintiff's home computer and the extent to which he read the entire Separation Agreement, the Court finds that there arc issues of fact in dispute to what HealthBridge's policy was and whether plaintiff breached hi. fiducial)' duty by not returning HealthBridge documents following his tennination. b. Internet Leak HealthBridge's second for alleging a breach of fiduciary duty is based on the a,sertion that confidential HealthBridge documents were leaked onto the internet through a filesharing program, LimeWire, that was installed on plaintiff's home computer. In support of this argument, HeaIthBridge contends that it has obtained an opinion from an independent computer forenSIcs expert who has opined that certain confidential HealthBridge information was leaked from plaintiffs home computer onto the internet. (Oef.'s Opp, at 12), The expert also allegedly conlimled that plaintiff deleted or destroyed certain documents which had been maintained on his computer in violation of company policy, PlaintifT denies the claim thaI confidential infonnation was leaked onto the internet in breach of his fiduciary duty_ He contends that a HealthBridge employee infonned him that 32 despite the claim thm the doewnents had been leaked through LimeWire, the employee allegedly looked at the program before deleting it and determined that "it did not show that it had exported any of plaintiff s lIealthBridge files." (penberg Oed, 42), Furthermore, plaintiff challenges the admissibility of the evidence that defendant has proffered in support of the claim that information was leaked onto the interne\. Specifically, plaintiff contends that the only evidence presented by defendant is an email from Rian Wroblewski of the "Red Team," (P!.'s Reply" at 2). Mr, Wroblewski's testimony with respect to what was found by the Red Team is not available because he has failed to comply with Court orders to appear for deposition. Therefore, plaintiff contends that Wroblewski's email is inadmissable hearsay under the Federal Rules of Evidence. (hl) Defendant argues that the Red Team email is admissible under the state of mind hearsay exception and the business records hearsay exception to the hearsay rule. (Def.'s Opp. at 14). The email at issue is entitled "[SPAM] HealthBridge P2P Exposure," and it reads as follows: "AUached you will find a screen capture with IP address and total files shared, in addition to a txt [sic] file containing the titles of all files in the shared folder, I am also attaching a few sample documents," (Yloran Decl., Ex. K). This email and allacillnents were received after counsel for defendant had a conversation with Mr. Wroblewski. (O'Brien Af£. 4122 II). Federal Rule of Evidence 803(6) provides an exception to the hearsay rule for: A memorandum, report, record, or data compilation in any form, of acts Lor] events, .. made at or near the time by. or from infonnation by, a person "ith knowledge, "Citatlons to "PI.'s Reply" rererto the letler reply submined by plaintiff; dated July 26, 2011. 33 if kept in the regular cotJr.:;e of a regularly conducted business activity, and if it was the regular practice of that business 10 make the memorandum, report, record, or data complla\lon, all as shown by the testimony of the custodian or other qualified witness, unless the source of the information or the method or circumstances of preparation mdicate lack of trustworthiness. According to the Second Circuit, "admissibility under Rule 803(6) requires both that a mcmonmdum have been 'kept in the course of a regularly conducted business aClivity' and also that it was the 'regular practice of that business activity to make the memorandum .... '" United State,,, Freidin, 849 F.2d 716, 719_20 (2d CiT. 1988) (quoting Rule 803(6». These two elements "must be shown by the 'testimony of the custodian or other qualified witness' of the record. Finally, even if it meets requirements, Ihe memorandum cannot be admitted if the 'source of infomlation or the method or circumstances of preparation indicate lack of trustworthiness.'" Id. See alsQ Phoenix Assoc. J11 v. Stone, 60 F.3d 95,101 (2d Cir. 1995). business have held that conventionallerters, mcmos, or notes are admissible under the e;;:ception if they are regularly made in furtherance orthe employer's needs and not for the personal purposes of the employee who made them." Canatxx Gas Storage Ltd. v. Silverhawk Capital Partners LLC, Civil Action No. H-06-1330, 2008 WL 1999234, at *12 (S.DTex. May 8, 2008). Courts have applied a similar approach to emails. A party seeking to introduce an email made by an employee about matter under the hearsay exception under Rule a 803(6) must show that the employer imposed a business duty 10 make and maintain such a record. Courts examine whether it was the business duty of an employee to make and maintain emails as part of his Job duties and whether the employee routinely sent or received and maintained the emails. IlL In determining whether an cmail constituted a husiness record, the court in Canatxx rcviewed 34 all atlidavit fi-om the principal of the company stating that an email he had prepared recounting his phone conversation directing defendant to stop work on a deal was a document made in the course of the company's regular business activity. That representation, coupled with the statement that it was the company's regular practice to keep these records, v,as found by the court to satisfy Rule 803(6). rd. at *13. See also DirectTV, Inc. v. Murray. 307 F. Supp. 2d 764, 77273 (D,S,C, 1004) (admItting email sales records when orders were routinely placed via email and the cmails were retained as business records); Piere v. RDC Liberty Life Ins" Civil Action No. 05,1042-C, 2007 WL 2071829, at·2 (MD. La. July \3,2007) (finding that emails tell within Rule 803(6) because they were prepared by employees "during the ordinary course ofbu,iness"}', but d. York y, Microsoft, No. CIV A. 93-1233(CKK}, 2002 WL 649951, at *2 (D.D.C. Apr. 12, 2002) (refusing to admit emails under the business records hearsay exception due to a "complete lack ofinfonnation regarding the practice of composition and maintenance of' the emails); United States v. Ferber, 966 F. Supp. 90, 93 (D. Mass. 1997) (finding that cmails submitted by the government did not fall under the business records exception because there was not sufficient evidence that [the employer] required such records to be maintained"). Although in this case, the person actually preparing the email.Mr. Wroblewski, has nOi testified regarding the preparation of the email, defendant contends that the Second Cireuit has taken a liberal approach to the admissibility ofbusincss records. (Dees Opp, at 16-17). Citing The Retirement Plan of the Unite Here NaI'l Relirement Fund v. Kombassan Holding, A.S., 629 F.3d 282, 289 (2d Cir. 2010), detCndant claims that there is no requirement that the person who ]5 actually created the record testify, long as it is the regular practice of the business entity to receive information from that person. (Dcf.'s Mem. at 16-17 (citing id.)). See also In re Enron Creditors Recovery Corp., 378 B.R. 54, 57-58 (S.D.N.Y. 2007). Defendant asserts that the testimon} of Anthony Slurniolo, CEO of Tony Joseph and Sons Investigation, of which Red Team Protection is a division, supports the defendant's claim that this email is admissible as a business record. (Der. 's Opp. at 17). Specifically, Mr. Sturniolo testified that Mr. Wroblewski handled the Red Team in February 2009, at or near the time the email was sent, and that part of 1\1r. Wroblewski'sjob W<l:> to perform internet searches to obtain confidential information about companies and individuals. (Moran Decl., Ex. L (Sturniolo Dep. at 14)). Mr. Sturniolo further testificd that as part of this responsibility, Mr. Wroblewski would notify the affected company or indi,'idual about the infornlation discovered. ili!J Sturniolo also testi tied thar the information Wroblewski obtained regarding HealthBridge contained in the email was sort he would bring to Stumioh,'s attention, though Stumiolo could not specifically recall having a conversation with Wroblewski about what he had found in this case. (Id. at 19-20,25). PlaintitI argues that Mr. Stumiolo's testimony does not lay the foundation necessary to >upport the business record exception because Mr. Stumiolo could not say whether Exhibit K 'Was the email :>1r. Wroblewski sent or thut the email address in Exhibit K is the address from which Mr. Wroblewski conducted his business. (Pl.'s Reply at 3-6). However, on redirect. Mr. StumlOlo confirmed that the email address listed in Exhibit K was in fact the cmail address from 'Which Mr. Wroblewski conducted his business for Red Team Protection. (Morall Oed., Ex. L 36 (Stumiolo Oep. at 20-21 )). According to Mr. Stumiolo, Mr. Wroblewski worked off of his personal computer, rather than a computer provided by Red Team Protection. Mat 4). [n addition, plaimiff argues that Sturniolo did not recall if the information found by Wroblewski had been described to him and that he had not seen any of the specific documents and did not recall having any conversations with Mr. Wroblewski regarding HealthBridge after directing him to send the email. (Id. at 4-5). Upon consideration of Mr. Sturniolo's deposition testimony, the Court finds that Mr. Sturniolo's testimony is sufficient to lay the foundation for introduction of the email as a business record for purposes of this motion. Sturniolo indicated that it was the regular bU5iness practice of Red Team Protection for Mr. Wroblewski to share the type of information contained in the email with Sturniolo and that it was their regular business practice and Mr. Wroblewski's duly to email clients wilh information such as that included in the email, Exhibit K. Given that the emai [ ",i[ I likely be admissible at trial, it raises enough issues of fact regarding whether plainti!T leaked confidential information on the internet to render summary judgment inappropnate at this c. ECF Filings [n addition to the [e<lk of information onto the internet, Hea[thBridge contends th<lt plaintiff has breached his fiduciary duty by electronically filing papers on ECF without proper redaction of certain sensitive and confidential information, including dates of binh, social security numbers. home addresses, Medicaid and Medicare numbers of potentia I HealthBridge 37 rt"ldcnts. (Def.'s 01'1'_ at 7). He has also allegedly filed evaluations colleagues which their social security numbers and salary infonnation. full The Court views plaintiff's filing of confidential infonnation on EeF as it views the alleged internet leak (If C(lnfidential infonnation: both instances could provide a basis for breach of fiduciary duty claim. Therefore, plaintiff has failed to show that there is no issue of fact on the first t",o prong, of the breach of fiduciary duty claim to render summary judgment appropriate here." d. Failure to Show Damage Even if defendant can e,tablish a breach of fiduciary duty, plaintifTargues that defendant is unable to establish that it was damaged in any way by this conduct. PlaintilT affinns that he "never used [his ]llealthBridge contacts in an effort to find myself new work." (pen berg Dec!. 'If I 0). In fact- plaintiff contends that he never looked at any HealthBridge document he has in his possession until aftcr his deposition in December 2008. (ld. 'If 9( c))_ He did not print out what he has on his computer "since defendant already had every document on my computer." I1!L '\I 10) At plainti ff" s deposition, plaintiff recalls that he agreed to print out documents on his computer to be forwarded by his attorney to defendant 11!L'If II, Ex. 4). HealthBridge argues that it was damaged in that it incurred "tens of thousands of dollars in expert and attorneys' fecs as a direct result of Plaintiffs breach of his fiduciary duty." (Def.' s "The Court addressed the immediate concerns p(lsed by plaintiffs filing of confidential information on EeF in its October 12, 2011 Scaling Order. 38 Opp. at 13). Although defendant concedes that the Court already awarded a portion of counsc!'s and the expert's fees as a spoliation sanction, HealthBridge contends that it is entitled to "its full measure of damages, even if each claim presents an alternative theory of liability based upon the same set of facts, the same series of acts, and the same injuries caused by Plaintiff" (!.il (citing Bingham v. Zol!, 66 F.3d 553, 564 (2d Cir. 1995))), Plaintiff argues that defendant's expenditures throughout the course of this case were not "proximately caused by plainti 'leak' of documents onto the internet." (PI.'s Reply at 2). However. HcalthBridge further argues that it is entitled to pursue its claim even if the fact finder detemlines that defendant should receive only nominal damages. (!.il) In support of this claim, defendant cites Brian E, Weiss, D.D.S" P.e. v. Miller, where the court upheld an award for nominal damages where breach of fiduciary duty was found. 166 A.D.2d 283, 564 N.Y.S,2d 110. III (I SI Dep't 1990). In Miller. the court considered whether an award of nominal damages would be sustained where the plaintiff established that defendant had committed a breach of fiducial)' duty and engaged in unfair competition but was unable to prove actual damages or a .,uhstantialloss. 166 A.D.2d 31283, 564 N.Y.S.2d at II], Although the Miller court concluded that the lower court's award of actual damages was not supported by the evidence, thc court hdd that "nominal damages will be awarded to a plaintiff where the law recognizes a tcchnical invasion of his right or a breaeh of defendant's duty, but where the plaintiffhas failed to pro\'e actual damages or a substantial loss or injury to be compensated," ld. at 283, 564 N.YS.2da!111 39 Plaintiff correctly notes that the holding in Miller is contrary to the weight of New York authority. [n Kronos v. AVX Corp., the Court of Appeals noted that ",hi[e "[nJominal damages are a[wuys availab[e in breach of contract actions, ... they are al[owcd in tort only when needcd to protect an 'important technical right.' For example, nominal damages have been recognized in ton to protect a landowner's right to be frec of trespass ... because a continuing trespass may ripen into a prescripti\e right and deprive a property owner of title to or her [and." 81 N.Y.2d 90, 95. 612 N.E.2d 289, 595 N. Y.S.2d 931 (1993). "A 'claim of breach of fiduciary duty ... IS a tort claim.'" Connecticut Student Loan Foundation v. Enterprise Recovery Systems. [nc, No.3: 04·CV·00712, 20 II WL 1363772, at *3 (D. Conn. April 11,2011). Thus, ahsent some limited exccpuon, nominal damages would not normally be available. Indeed, the Second Circuit, citing Kron",. noted that '"no such exception is warranted for ... raJ breach of fiduciary duty ... claim .. [because it does not] involvc[] the type of'important teclmical rightfs], noted in Kronos." Action House. Inc. \'. Kaolik, 54 F.3d 1009, 1019 (2d Cir. 1995). If defendant were seeking only nominal damages for plaintiff's alleged breach of fiduciary dut}, the Court would find summary judgment on defendant's counterclaim appropriate at this time. However, in the counterclaim. defendant seeks "compensatory damages" a, "'ell as attorneys' fees and costs above and beyond those which "'ere, in part, awarded in conne<:tion with the spoliation motion. Accordingly, the Court denies plaintiffs motion for summary judgment on dd"ndant's counterclaim without prejudice to renew if defendant is unable to submit proof at trial of actual damages resulting from p[aintitrs alleged breach. 40 C. Defendant's Motion for Summary Judgment on Plaintiff's Retaliation Claim Plaintiff's amended Complaint alleges that defendant's motion seeking to impose spoilation sanctions On plaintiff constitutes retaliation for plaintiffs continued pursuit of his discnmination claims. Defendant for summary judgment seeking to dismiss plaintiffs retaliation claim on the grounds that plainti IT is unable to state a prima facie case. I) Standards In order to establish a prima facie case of retaliation under the various discrimination statutes that form the basis for plaintiff's Complaint - the ADEA, the FMLA, orthe NYSHRLshow: I) that he participated in a protected activity known to the defendant; 2) that an ad'erse employment action wa, taken, disadvantaging plaintiff; and 3) that there is a causal connection between the protected activity and the adverse employment action. Amar v. l!illcrest Jewish Clr., No. 05 CV 3290, 2009 WL 891795, at -6 (LD.N.Y. Mar. 31, 2009) (citing New York. 366 FJd 138, 156 (2d Cir. 2004)); see also Quinn v. Green Tree Credit Corp" 159 F.3d at 768·69; Reed v. A.W. Lawrence & Co.. Inc., 95 F.3d 1170, 1178 (2d Cir. 1996); Ortjz y Twstees o[Columbia Univ., No. 96 CV 3018, 1999 WL 126448. at *6 (S.D.N.Y Mar. 9, 1(99). Since retaliation claims are governed by the three-step burden shifting analysis sci fonh in McDonnell Douglas Corn. v. Green, 411 U.S. at 802·OJ, once a plaintiffe,tahlishes a prima facie case, the burden shifts to the defendant to point to evidence that there was a lel;lllmilte, non-discriminatory reason for the adverse employment action. If the defendant meets this burden. plaintiff must then demonstrate that the proffered legitimate reason 41 W<lS merely a pretext for impermissible relJ.liation. Quitlll v. Green Tree Credit Com., 159 F.3d at 768·69; Tomka v. Seiler Com., 66 F.3d 1295, 1308 (2d Cir. 1995). The purpose of the antiretaliation provision is "obviously to forbid an employer from retaliating against an employee because of the latter's opposition to an unlawful employment practice." Manoharan v. Columbia Univ. Coil. of Physicians & 842 F.2d 590, 593 (2d Cir. 1988). In establishing the first clement, plaintiff does not need to show that the conduct which he objected to was in fact discriminatory conduct in violation of the ADEA, FMLA or the NYIIRL; he must, however, have "'a good faith, reasonable belief that the underlying employment practice was unlawful' under [these 'tulutes]." Galdieri-Ambrosini v. Nat'l Realty & Dev. Coro., lJ6 F.Jd 276. 292 (2d Cir. 1998) (quoting Reed v. A.W. Lawrence & Co., 95 F.3d at 1178); see also Manoharan v. Columbia Univ. CoIl. of Physicians & 842 F.2d at 593. To the extent that ao employee complains about perceived "unfair" treatment relating to job responsibIlity, hiring or corporate policy, but fails to link the treatment to unbwful discrimination or to his protected status, he fails to establish that he V>"lIS engaged in protected activity. Velasquez v. Goldwater Memorial Hosp., 88 F. Supp. 2d 257, 264 (SoO.N.Y. 2000) (holding that general compbints about corporate policy without linking it to plaintiff's slJ.tus are insufficient to establish "protected activity" under Title VII); see also Galdieri-Ambrosini v. Nat'l Realty & De". Coro., 126 FJd 276 (holding that general complaints about job responsibility did not constitute protected activity where there was no evidence of discrimination); Manoharan v. (\,lumbia Univ. ColI. of Physicians & Surgeons, 842 F.2d at 593 (holding that general 42 complaints about hiring practices were not "protected activity"), "[I]n order to be protected activity[,] the complainant must put the employer on notice that the complainant believes that d'iscrimination is occurring." Ramos v. City orNew York. No. 96 CV 3787, 1997 WL 41 0493, at'3 July 22, 1997), 2) Analysis Defendant docs not appear to dispute that plaintiff engaged in protected activity by filing and pursuing the instant lawsuil. Hernandez v. Jackson Lewis, Schnitzler & Krupman, 997 F Supp_ 4 I 2, 418 (S.D.N, Y _1998) (holding that "protected activity typically consists of filing a lawsuit or u formal complaint with an agency, , . "); see also Katcher v, Rosa & Sullivan Appliance Center, Inc., 957 F.2d 59, 65 (2d Cic. 1992). Nor does defendant appear to disagree with plaintiff's ass<':rtion that he experienced an adverse impact as a result of defendant's assertion of a breach "f fiduciary duty claim and its motion for Indeed, the Supreme Court has made it clear that in order to show an adverse impact, plaintiffs arc not confined to those harnlS that arc related to the workplace or employmem. Burlington Northern & Santa Fe Ry. Co, v. White. 548 U.S, at 57_ "the employer's actions must be harmfultn the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination," l!l at 68. The Court explained that any hardship imposed by an employer that could reasonably mOllvate an "employee facing the choice between retaining her job (and paycheck) and filing a discrimination complaint [to J choose the former," would qualify as retaliatory_ hl. at 73, In other words, the employer cannot impose consequences all a worker for 43 Iiling a discrimination charge in order!O deter him or her from pursuing a claim. Instead, defendant focuses on the second phase of the McDonnel Douglas test and argues that HcalthBridge had legitimate reasons for filing its counterclaim for breach of fiduciary duty and for pursuing sanctions for the destruction of the evidence contained in plaintiff's computer. (Def. 's Mem. at 26). HealthBridge argues that plainlilTknew he had a duty to protect the company's proprietal)' and confidential information under HIPAA. fuLl It further that plaintiff read and understood the Separation Agreement, which required him oot \0 disclose or share any IlealthBridge information with anyone. ili!J Despite this knowledge, plaintiff maintained thi, infonnation on a home computer thaI was not password protected and that was accessible by third parties. (liD Defendant claims that by connecting \0 the internet through the lise of a file-sharing program, plaintiff breached his fiduciary duty to HealthBridge by allowing others to obtain conlidential information. M) Moreover, defendant contends that plaintiffs destruction of the files after the discovery of this breach and after specific warnings from defendants was intentional and clearly provided ajustification for defendant to seek sanctions for the spoliation. (hi at 27). In response to defendant's motion, plaintiff argues that he need only show that a "reasonable employee 'Would have found the challenged action adverse and might well have dissuaded a reasonable 'Worker from making or supporting a charge of discrimination" (PI.'s Opp. at 16). While plaintiff concedes that HealthBridge has a policy that lormer employees not disclose its confidential information to the public and that he understood his obligation 10 44 maintain the confidentiality of information under HIPAA (P!.'s Resp. 53, 58, 59), he claims that I lealth13ridge never asked him to relUrn the documents. (PI. 's Opp. at 17). He further claims that llealthBridge never brought any claims against him until he "presented evidence ... whid1 undercut the company's defense that plaintifTvvllS chosen for layofTbecaw;e he did not have the ability Or the skill·,et to do patient evaluations." G!!J He contends that there is a "'serious question" as to whether any of the documents were actually leaked and that even though defendant knew that plaintiff had company documents on his home computer, the company did nothing about it until plainti fT pre,ented evidence lavorable to plaintiff's claims in this case. (14,) Accordingly. plaintiff argues that by taking action when it did, HealthBridge was retaliating against plaintiffin an effort to dis,uade him from continuing to pursue his case. (liD Although Healthbridge has proffered a legitimale non-retaliatory reason for seeking sanctions for the alleged loss of materials improperly stored on the plaintiffs home computer, there are numerous issues of fact that preclude summary judgment allhis point. First, the parties dispute the extent of defendant's knowledge wilh respeel to plaintiffs practice of using his home compllter to Slore work·related documents; Ihe parties dispute whether plaintiff was ever informed orthe Company policy to return documents. There is also a dispute as to whether documents were ever actually leaked onto the internet; and, to the extent that documents were destroyed after the alleged discover) of the leak, whether those documents were, as plaintiff claims. merely duplicative of documents already in defendant's possession, thus mitigating any injury as rar as the spoliation of evidence is concerned. Given these issues and considering the 45 timing of defendant's counterclaim and related demands on plaintiff, the Court finds that plaintiff has raised a triable issue of fact regarding whether deFendant added its counterclaim with retaliatory intent Therefore, the Court finds it improper to dispose of this claim on defendant's motion for summary judgment. CONCLUSION Accordingly, defendant's motion for summary judgment is granted as to plainlift's interferencc claim under the FMLA and denied as to all of plaintiffs other claims under the ADEA, FMLA, and NYSHRL and his retaliation claims. Thc Court also denies plaintiffs motion for summary judgment as to defendant'S breach of fiduciary duty claim. The clerk is directed to send copics ofthi" Memorandum and Ordcr (0 the parties either electronically through thc Electronic Case Filing (ECF) system Or by mail. SO ORDERED. Brooklyn, New York Octobcr 17, 201 I Chel)4t Pollak United Stales Magistrate Judge 46

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