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Kosakow v. New Rochelle Radiology Assocs., P.C.

United States Court of Appeals for the Second Circuit

April 4, 2001, Argued ; December 20, 2001, Decided

Docket No. 00-7392


 [*713]  TRAGER, District Judge:

Plaintiff-Appellant, Nancy Kosakow ("Kosakow"), brings this appeal from the grant of summary judgment in favor of Defendant-Appellee, New Rochelle Radiology Associates, P.C. ("New Rochelle"). Kosakow brought this action pursuant to the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. (the "FMLA"), alleging that New Rochelle, her employer, failed to reinstate her to her position after she had taken protected leave under the FMLA. Kosakow further alleges that she did not receive severance pay to which she was entitled, in violation of the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. ("ERISA").


Nancy Kosakow was employed by New Rochelle as a part-time "radiological technologist" from July of 1978 until March of 1997. In June of 1996, Kosakow learned that she had a possibly cancerous cystic mass in her left ovary. In November of 1996, after learning that the mass had not diminished in size, she scheduled surgery for January 14, 1997, to remove it. Shortly after this surgery was scheduled, Kosakow notified [**3]  her manager, Gale Gluss, and was granted medical leave for the operation, as well as time for recovery after the surgery.

Kosakow continued to work through January 10, 1997. The surgery took place on January 14, 1997, as scheduled, and Kosakow remained on medical leave thereafter. In or about mid-Febrary of 1997, Kosakow informed New Rochelle that she would be medically cleared to return to work on March 17, 1997. On March 6, 1997, however, Gluss informed Kosakow that her position had been eliminated as a result of downsizing, and, consequently, Kosakow had been terminated.

Feeling that she had been terminated due to her medical problems, Kosakow filed a pro se discrimination charge with the New York State Division of Human Rights (the "DHR"), alleging violations of the New York Human Rights Law ("NYHRL"). In the complaint, Kosakow also alleged that New Rochelle had violated the Americans with Disabilities Act (the "ADA"), and authorized the DHR to accept the complaint on behalf of the Equal Employment Opportunity Commission ("EEOC"). New Rochelle responded by filing a Narrative Reply with the DHR, to which Kosakow filed a Rebuttal. On August 24, 1998, after an investigation of [**4]  the matter, DHR issued its determination that there was "no probable cause to believe that [New Rochelle] has engaged in or is engaging in the unlawful discriminatory practice complained of." In so finding, DHR credited New Rochelle's explanation that Kosakow's position was eliminated for legitimate business reasons. This finding was subsequently adopted by the EEOC without independent review, and the EEOC issued Kosakow a right-to-sue letter on October 13, 1998.

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274 F.3d 706 *; 2001 U.S. App. LEXIS 26954 **; 145 Lab. Cas. (CCH) P34,431; 82 Empl. Prac. Dec. (CCH) P40,893; 27 Employee Benefits Cas. (BNA) 1295

NANCY KOSAKOW, Plaintiff-Appellant, - against - NEW ROCHELLE RADIOLOGY ASSOCIATES, P.C., Defendant-Appellee.

Prior History:  [**1]  Appeal from two orders of the United States District Court for the Southern District of New York (McMahon, J.) entered on March 13, 2000, and September 6, 2000, granting summary judgment in favor of Defendant-Appellee, New Rochelle Radiology Associates, P.C.

Kosakow v. New Rochelle Radiology Assocs., P.C., 88 F. Supp. 2d 199, 2000 U.S. Dist. LEXIS 3122 (S.D.N.Y. 2000).

Kosakow v. New Rochelle Radiology Assocs., P.C., 116 F. Supp. 2d 400, 2000 U.S. Dist. LEXIS 14791 (S.D.N.Y. 2000).

Disposition: Judgment of district court vacated and remanded.


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