Marc Penberg v. Healthbridge Management

Oct. 17, 2011.

823 F.Supp.2d 166

United States District Court,

E.D. New York.

Marc PENBERG, Plaintiff,



No. 08 CV 1534 (CLP).


Background: Employee brought action against former employer, alleging that he was wrongfully terminated based on disability and age discrimination, in violation of Americans with Disabilities Act (ADA), Age Discrimination in Employment Act (ADEA), and subjected to retaliation in violation of ADA, ADEA, Family and Medical Leave Act (FMLA) and city and state employment acts, and employer counterclaimed for breach of fiduciary duty. Parties filed cross-motions for summary judgment.

Holdings: The District Court, Cheryl L. Pollak, United States Magistrate Judge, held that:

1 issue of material fact precluded summary judgment on ADEA claim;

2 issue of material fact precluded summary judgment on FMLA claim;

3 issue of material fact precluded summary judgment on disability discrimination claim under New York State Human Rights Law (NYSHRL);

4 issues of material fact precluded summary judgment on breach of fiduciary duty claim; and

5 issues of material fact precluded summary judgment on retaliation claim.

Defendant’s motion granted in part, and denied in part; plaintiff’s motion denied.

Attorneys and Law Firms

*170 Arthur Z. Schwartz, Schwartz, Lichten & Bright, P.C., New York, NY, for Plaintiff.

Caroline Jacobsen Berdzik, Kelly L. Bannister, Sandra S. Moran, Buchanan Ingersoll, PC, Princeton, NJ, Elliot J. Blumenthal, Buchanan Ingersoll & Rooney, P.C., New York, NY, for Defendant.


CHERYL L. POLLAK, United States Magistrate Judge.

On April 14, 2008, plaintiff Marc Penberg commenced this action against HealthBridge Management, LLC (“HealthBridge”), alleging that he had been wrongfully terminated from his employment based on disability and age discrimination, in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C §§ 621 et seq., and subjected to retaliation in violation of the ADA, the ADEA, the Family Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601 et seq., the New York State Human Rights Law (“NYSHRL”) §§ 296 et seq., the New York City Human Rights Law (“NYCHRL”) §§ 8–101 et seq., and *171 the Massachusetts Fair Employment Act (“MFEA”), (Compl.1 ¶ 1).

Presently before the Court are the defendant’s Motion for Summary Judgment on all remaining claims in the Complaint2 and plaintiff’s Cross–Motion for Summary Judgment on the defendant’s counterclaims. For the reasons set forth below, defendant’s motion is granted in part, and denied in part; plaintiff’s motion is denied.


Defendant Health Bridge manages skilled nursing and rehabilitation facilities, including certain facilities in Massachusetts for neuro-rehabilitation. (Def.’s 56.1 Stmnt3 ¶¶ 1, 2; Pl.’s Resp.4 ¶¶ 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; Pl.’s Resp. ¶ 3). Plaintiff was born in December 1954 and was 53 years old at the time his position was eliminated. (Def.’s 56.1 Stmnt ¶ 34; Pl.’s 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 56.1 Stmnt ¶¶ 6, 7; Pl.’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 neuro-rehabilitation facility in Massachusetts.(Def.’s 56.1 Stmnt ¶¶ 6, 8; Pl.’s Resp. ¶ 8). Plaintiff 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. (Def.’s 56.1 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 history to determine whether the person’s needs could be met by the facility. (Def.’s 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. (Def.’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. (Def.’s 56.1 Stmnt ¶ 13). Plaintiff admits that this was the “usual practice” but contends that there was “no formal procedure requiring this.” (Pl.’s *172 Resp. ¶ 13). However, because plaintiff was not a nurse or social worker 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 Resp. ¶ ¶ 11, 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 “company-wide effort to reduce costs and streamline personnel.” (Def.’s 56.1 Stmnt ¶¶ 17, 19; Pl.’s Resp. ¶¶ 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. (Def.’s 56.1 Stmnt ¶¶ 17, 18). Plaintiff contends that Ms. Leja originally did not provide any recommended names for layoff, but when pressed by Seth Gribetz, Chief Operating Officer of HealthBridge, she suggested that plaintiff be laid off. (Pl.’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 Stmnt ¶¶ 21, 22, 24, 26).

Plaintiff concedes that other departments were asked to evaluate their personnel in connection with the reduction in force (Pl.’s Resp. ¶ 9; see alsoDef.’s 56.1 Stmnt ¶ 19), but denies that he was laid off “due to his lack of a clinical license[ ] and qualifications in regards to the screening of potential patients….” (Pl.’s Resp, ¶¶ 21, 22; Def.’s 56.1 Stmnt ¶¶ 21, 22). Plaintiff argues 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.” (Compl. ¶ 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.5 at 4; Ex. F at 61). He further contends that the lack of clinical licenses and qualifications is “a pretextual reason created after the lawsuit was filed.” (Id. ¶ 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 Health Bridge eliminated employees under the age of 40 and continued to employ Directors of Marketing over the age of 50 (Def.’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 were over 50 years of age.” (Id. ¶¶ 22, 37).

On August 15, 2007, Ms. Leja and Lisa 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 Stmnt ¶¶ 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. (Def.’s 56.1 Stmnt ¶ 29). Plaintiff denies that he read the entire Separation Agreement. (Pl.’s Resp. ¶ 29).

*173 Following the elimination of plaintiff’s position, Ms. Leja initially supervised the New York liaisons until that responsibility was taken over by Lynne Fenuccio, a Registered Nurse and Regional Director of Neurorehabilitation Services. (Def.’s 56.1 Stmnt ¶ 30; Pl.’s Resp. ¶ 30). Ms. Perdito undertook the responsibility of marketing in plaintiff’s former territories. (Def.’s 56.1 Stmnt ¶ 32; Pl.’s Resp. ¶ 32).

With respect to plaintiff’s diabetic condition, it is undisputed that plaintiff was required to test his blood on occasion, but defendant claims that plaintiff never requested an accommodation and never missed time from work due to the condition. (Def.’s 56.1 Stmnt ¶¶ 41, 42; Pl.’s Resp. ¶¶ 41, 42). On August 15, 2006, plaintiff told Ms. Leja that he was going on vacation, but that they needed to schedule his annual review when he returned. (Def.’s 56–1 Stmnt ¶¶ 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, plaintiff returned to work in the same position with no change in duties or salary. (Def.’s 56.1 Stmnt ¶ 50; Pl.’s Resp. ¶ 50). However, as plaintiff notes, he never received his evaluation, nor did he receive a pay increase as a result. (Pl.’s Resp. ¶ 50). Defendant contends that plaintiff never told anyone that he felt he was not getting his evaluation because of his health condition. (Def.’s 56.1 Stmnt ¶¶ 43, 45; Pl.’s Resp. ¶¶ 43, 45).

In this action, plaintiff alleges that he was discriminated against because of his age and terminated because he was over 50 years of age, in violation of the ADEA. He also claims that he is diabetic and was discriminated against based on his disabilities, which caused HealthBridge to believe that he might require additional absences.6 The Court notes that while plaintiff initially brought claims under the ADA, the NYCHRL, and the MFEA, plaintiff has since abandoned those claims.7 Therefore, the Court addresses only plaintiff’s remaining claims, under the ADEA, the FMLA, and the NYSHRL.


I. Summary Judgment Standards

It is well-settled that a party moving for summary judgment has the burden of establishing that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir.1990). Since summary judgment is an extreme remedy, cutting off the rights of the non-moving party to present a case to the jury, see Egelston v. State Univ. Coll. at Geneseo, 535 F.2d 752, 754 (2d Cir.1976); Gibralter v. City of New York, 612 F.Supp. 125, 133–34 (E.D.N.Y.1985) (slating that summary judgment “is a drastic remedy and should be applied sparingly”), the Court should not grant summary judgment unless “it is quite clear what the truth is [and] that no genuine *174 issue remains for trial.” Auletta v. Tully, 576 F.Supp. 191, 195 (N.D.N.Y.1983) (internal quotation marks and citations omitted), aff’d, 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. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587–88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)); see also Richardson v. New York State Dep’t of Corr. Serv., 180 F.3d 426, 436 (2d Cir.1999) (stating that “[w]hen considering a motion for summary judgment the court must draw all factual inferences and resolve all ambiguities in favor of the nonmoving party”).

Once 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, 106 S.Ct. 2505. Indeed, “the mere existence of somealleged factual dispute between the parties” alone will not defeat a properly supported motion for summary judgment. Id. at 247–48, 106 S.Ct. 2505 (emphasis in original). Rather, enough evidence must favor the non-moving party’s case such that a jury could return a verdict in its favor. 248, 106 S.Ct. 2505 (internal citation omitted).

II. Plaintiff’s Discrimination Claims 8

A. Plaintiff’s Claims of Age Discrimination

Plaintiff has 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. (Pl.’s Opp. at 11). Defendant moves for summary judgment on plaintiff’s ADEA claim on the grounds that plaintiff cannot establish that Health Bridge’s legitimate reasons for his termination were a pretext for discrimination. (Def.’s Mem.9 at 20).

1) Standards

1The ADEA prohibits an employer from refusing to hire, discharging, or otherwise discriminating against an employee based on age. 29 U.S.C. § 623(a)(1); see 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 Dist., 886 F.2d 1364, 1375–76 (2d Cir.1989), cert. denied, 494 U.S. 1026, 110 S.Ct. 1470, 108 L.Ed.2d 608 (1990), or that it was “a determinative 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, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993)).

*175 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. 792, 802–03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and its progeny See Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 91 (2d Cir.2001), cert. denied, 534 U.S. 951, 122 S.Ct. 348, 151 L.Ed.2d 263 (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 St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (citing Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252–53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)); Slattery v. Swiss Reinsurance America Corp., 248 F.3d at 94. Once a plaintiff has established a prima facie case of age discrimination, the burden then shifts to the employer to establish a non-discriminatory reason for the employment decision. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. at 252–53, 101 S.Ct. 1089. The final burden is then placed back on the plaintiff to prove that the defendant’s proffered reason was pretextual and that defendant discriminated against the plaintiff. Id. at 253, 101 S.Ct. 1089; Slattery v. Swiss Reinsurance America Corp., 248 F.3d at 95; see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).

23Generally, to establish a prima facie 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 Partners, Inc., 716 F.Supp.2d 210, 215 (S.D.N.Y.2010); see also Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir.2000), cert. denied, 530 U.S. 1261, 120 S.Ct. 2718, 147 L.Ed.2d 983 (2000); Chambers v. TRM Copy Ctrs.Corp., 43 F.3d 29, 37 (2d Cir.1994); accord McDonnell Douglas Corp. v. Green, 411 U.S. at 802, 93 S.Ct. 1817 (explaining that a prima facie case is made out under Title VII “by showing (i) that [plaintiff] belongs to a racial minority; (ii) that he applied and was qualified 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 VII.” Guerra v. Jones, No. 08 CV 0028, 2010 WL 986403, at *7 (N.D.N.Y. Mar. 17, 2010) (citations omitted), with the only difference being that the protected group is based on age as opposed to race. See McDonnell Douglas Corp. v. Green, 411 U.S. at 802, 93 S.Ct. 1817. The requirements for establishing such a prima facie case, however, are “minimal,” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. at 506, 113 S.Ct. 2742; accord Austin 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 determining 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), aff’d in part and vacated in part on different grounds, 252 F.3d 205 (2d Cir.2001).

2) Analysis

In support of his prima facie case, plaintiff has offered evidence that at the age of 53, he was a member of a protected class of individuals over the age of 50 (Def.’s 56.1 Stmnt ¶ 34; Pl.’s Resp. ¶ 34); and that he was qualified for the position which he had held with defendant for roughly five years, during which time he had received *176 excellent reviews. (Pl.’s Opp. at 2–3). Plaintiff’s termination from his position in 2007 clearly constitutes an adverse employment action. Plaintiff argues that in light of the fact that he was a “top performer” among sales representatives, the only sales representative over 50, and the only sales representative terminated, his termination gives rise to an inference of age discrimination. ( 11). 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 plaintiff’s termination which plaintiff is unable to demonstrate was a pretext for discrimination. (Def.’s Mem. at 20–21).

Once a plaintiff has made out a prima facie case of discrimination, defendant has the burden of proffering a legitimate non-discriminatory reason for plaintiff’s termination. See Heyman v. Queens Vill. Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d 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 it was motivated by the reason it provides; rather it must simply articulate an explanation that, if true, would connote lawful behavior.” Id.; see also Cody v. County of Nassau, 577 F.Supp.2d 623, 636 (E.D.N.Y.2008)

4Here, defendant contends that plaintiff’s 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 plaintiff’s lack of a licensed clinical background and the resulting inefficiencies were the non-discriminatory basis for terminating plaintiff. (Id.) This articulated explanation satisfies the defendant’s minimal burden of articulating a nondiscriminatory reason for the termination. Courts recognize economically-driven restructuring as a legitimate, nondiscriminatory reason for termination. See, e.g. Deebs v. Alstom 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 F.3d 1346 (2d Cir.1998).

5Having proffered a legitimate rationale, it then falls once again to plaintiff to demonstrate that the legitimate reasons offered by the defendant were “merely a pretext for discrimination.” Heyman v. Queens Vill. Comm. for Mental Health for Jamaica Cmty. Adolescent Program, 198 F.3d at 72. More specifically, plaintiff must show that discrimination “was a substantial reason for the adverse employment action.” Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir.2005). The burden for plaintiff is higher than that which applied for analyzing the prima facie case; a plaintiff must demonstrate “ ‘a sufficient basis for a trier of fact to doubt the persuasiveness of [the employer’s] proffered evidence and ultimately to find that the [legitimate, non-discriminatory] reasons offered by [the employer] … were pretextual.’ ” Id. (quoting Quinn v. Green Tree Credit Corp., 159 F.3d 759, 770 (2d Cir.1998)) (omission in original).

Clarifying the standard for examining claims of pretext in adverse employment actions, the Second Circuit 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 employer’s proffered explanation was not some part of the employer’s motivation.”

Holcomb v. Iona Coll., 521 F.3d 130, 142 (2d Cir.2008) (quoting Fields v. N.Y. State *177 Office of Mental Retardation & Developmental Disabilities, 115 F.3d 116, 120 (2d Cir.1997)). In this case, plaintiff need 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. Hyek v. Field Support Servs., Inc., 702 F.Supp.2d 84, 93 (E.D.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., 853 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 summary judgment rule would be rendered sterile … if the mere 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. (Pl.’s Opp. at 14). Specifically, plaintiff contends that: 1) he was the top salesperson in New York, bringing in more patients, and converting a majority of his prospective individuals into actual patients; 2) he performed better than two of his younger subordinates; and 3) he achieved these successes while also supervising three other people. (Id. at 14–15). He contends that there is an issue as to whether he could do his own assessments and argues that if he could, it does not make sense for Ms. Leja to have eliminated the top salesperson. (Id. at 15). He also points out that Ms. Leja was unaware that he had a Masters degree and did not know whether he did his own assessments. (Id.) Plaintiff further points out that when he was laid off, he was not told the reason now being advanced, (Id.) Instead, the Vice President of Human Resources made the following note: “January 20 back from [FMLA] leave, diabetic + 50.” (Id.) Plaintiff suggests that these notes have gone unexplained. (Id.) Finally, plaintiff notes that 55% of those laid off were over 50, with only 35% remaining who were over 50. (Id. at 16).

Considering these facts, the Court finds that plaintiff has proffered sufficient evidence, which if proven, could be relied upon by a jury in finding that plaintiff’s age was a motivating factor in his discharge. The note, with its reference to “+50,” when considered in light of plaintiff’s performance record and the fact that no one mentioned the issue of his credentials until suit was filed, raises enough questions about the defendant’s proffered explanation to warrant a 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.

B. Plaintiff’s FMLA Claims

Defendant moves for summary 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. (Def.’s Mem. at 24).

1) Standards

The FMLA was enacted “to entitle employees to take reasonable leave for medical reasons … for the care of a child, spouse or parent who has a serious health condition.” 29 U.S.C. § 2601(b)(2). The Act provides job security for employees who have “serious health conditions that prevent them from working for temporary periods.” 29 U.S.C. § 2601(a)(4). Under the Act, an employee is entitled to take a total of twelve workweeks of leave during any twelve month period, for health related reasons, 29 U.S.C. § 2612(a)(1)(D), and upon returning from such leave, the employee is entitled to be restored to his position or an equivalent position. *178 29 U.S.C. § 2614(a)(1). The FMLA prohibits an employer from interfering with an employee’s exercise of his rights under the Act, 29 U.S.C. § 2615(a)(1), and from discharging or in any other manner discriminating against an individual for opposing any practice made unlawful 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 of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions”).

Plaintiff alleges two separate causes of action under the FMLA: 1) interference with the exercise of his FMLA rights under 29 U.S.C. § 2615(a)(1), and 2) retaliation for exercising his FMLA rights. 29 U.S.C. § 2615(a)(2). (See Pl.’s Opp. at 12). The Court considers plaintiff’s two claims in turn.

a. Interference Claim

678Interference claims are appropriate when “the employer in some manner impeded the employee’s exercise of his or her right[s] afforded substantive protection under the FMLA.” Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 176 (2d Cir.2006) (citing King v. Preferred Technical Group, 166 F.3d 887, 891 (7th Cir.1999)), A plaintiff bears the burden of establishing only a prima facie case for interference claims, and the court need not consider the issue of the employer’s intent. Id. In order to establish a prima facie case of interference with plaintiff’s exercise of FMLA rights, plaintiff must establish that: 1) he is an eligible employee; 2) defendant qualifies as an employer under the FMLA; 3) plaintiff was entitled to take leave under the FMLA; 4) plaintiff gave notice to defendants of his intention to take leave; and 5) defendants denied plaintiff the benefit to which he was entitled under the FMLA. See Brown v. Pension Bds., 488 F.Supp.2d 395, 408 (S.D.N.Y.2007).

b. Retaliation Claim

9In order to establish a prima facie case of retaliation under the FMLA, plaintiff must show that: 1) he exercised rights protected by the FMLA; 2) he was qualified for the position; and 3) he suffered an adverse employment action; 4) under circumstances giving rise to an inference of retaliatory intent. See Potenza v. City of New York, 365 F.3d 165, 168 (2d Cir.2004). In analyzing claims of retaliation under the FMLA, the Second Circuit has explicitly adopted the McDonnell Douglas analysis used in Title VII cases. Id.; see also Aulicino v. N.Y. City Dept. of Homeless Servs.,580 F.3d 73 (2d Cir.2009); Mathirampuzha v. 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 lake 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. of Homeless Servs., 580 F.3d at 80 (quoting Brown v. Coach Stores Inc. 163 F.3d 706, 710 (2d Cir.1998)).

2) Analysis

10For purposes 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 entitled to take leave under FMLA, nor is there any claim that he failed to give notice to HealthBridge of his plan to take leave. (Pl.’s Opp. at 13). See Sista v. *179 CDC Ixis N. Amer., 445 F.3d 161, 167–68 (2d Cir.2006). Moreover, since the FMLA is designed to protect employees who are temporarily unable to perform their job functions and specifically provides for intermittent leave, 29 C.F.R. § 825.203, plaintiff was eligible for FMLA leave. Id. 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. See 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 155, 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 does not preclude his FMLA claims.

a. Plaintiff’s Interference Claim

11Plaintiff 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. (Pl.’s Opp. at 13). He argues that every year in June, all HealthBridge employees received their evaluations and raises. (Id.) He contends that he was scheduled for an evaluation is September 2006 which was cancelled before he went out for heart surgery. (Id.) Even though he returned in November 2006, he was not evaluated again; he was never evaluated for the year 2006, nor did he receive his June evaluation for 2007. (Id.) Instead, he was terminated. (Id.) Ms. Leja testified in her deposition that she prepared evaluations for plaintiff for 2006 and 2007, but plaintiff never received a raise. (Id.) Since he claims he was the highest producer in New York for 2007, he argues that, at a minimum, defendant’s failure to raise his salary and, later, his termination following his FMLA leave makes out a prima facie ease of discrimination. (Id. 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. “Interfering with” the exercise of an employee’s rights includes “for example, not only refusing to authorize FMLA leave, but discouraging an employee from using such leave.” Potenza v. City of New York, 365 F.3d 165, 167 (2d Cir.2004) (citing 29 C.F.R. § 825.220(c)). Plaintiff does not claim that defendant in any way discouraged him from taking leave or prohibited him from exercising his rights under the FMLA; he claims only that defendant punished him for exercising his rights under the FMLA. Thus, plaintiff asserts a retaliation claim, not an interference claim.

b. Plaintiff’s Retaliation Claim

In the Fifth Cause of Action in his Complaint, plaintiff alleges that “[by] its discharge of plaintiff because he took medical leave, defendant violated plaintiff’s rights under the Family Medical Leave Act (“FMLA”),