1

19-2865-cv

Kelly v. Hartford Fin. Services Grp., Inc.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed 

on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate 

Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a 

document filed with this Court, a party must cite either the Federal Appendix or an 

electronic database (with the notation “summary order”). A party citing a summary order 

must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at 

the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 

on the 1st day of July, two thousand twenty.

PRESENT: JOSÉ A. CABRANES,

RAYMOND J. LOHIER, JR.

STEVEN J. MENASHI,

Circuit Judges.

BRYAN KELLY,

Plaintiff-Appellant, 19-2865-cv

v.

HARTFORD FINANCIAL SERVICES GROUP, INC.,

Defendant-Appellee.

FOR PLAINTIFF-APPELLANT: James V. Sabatini, Sabatini and Associates, 

LLC, Newington, CT.

FOR DEFENDANT-APPELLEE: Sheldon D. Myers, Kainen, Escalera & 

McHale, P.C., Hartford, CT.

Appeal from a judgment of the United States District Court for the District of Connecticut

(Dominic J. Squatrito, Judge).
2

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is

AFFIRMED.

Plaintiff-Appellant Bryan Kelly (“Kelly”) appeals from an August 29, 2019 judgment of the 

District Court granting the motion for summary judgment of Defendant-Appellee Hartford 

Financial Services Group, Inc. (“Defendant”) in this action alleging violations of the Family and 

Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601 et seq. We assume the parties’ familiarity with the 

underlying facts, the procedural history of the case, and the issues on appeal. 

A.

“We review de novo a district court’s grant of summary judgment, construing the evidence in 

the light most favorable to the nonmoving party and drawing all inferences and resolving all 

ambiguities in favor of the nonmoving party.” Doro v. Sheet Metal Workers’ Int’l Ass’n, 498 F.3d 152, 

155 (2d Cir. 2007). We will affirm an order granting summary judgment “only when no genuine 

issue of material fact exists and the movant is entitled to judgment as a matter of law.” Riegel v. 

Medtronic, Inc., 451 F.3d 104, 108 (2d Cir. 2006); see also Fed. R. Civ. P. 56(a).

“FMLA claims come in at least two varieties: interference and retaliation.” Woods v. START 

Treatment & Recovery Ctrs., Inc., 864 F.3d 158, 166 (2d Cir. 2017). Kelly sought to recover under both 

theories. The District Court granted Defendant summary judgment on both claims. We address each 

in turn. 

B.

The District Court rejected Kelly’s interference claim because it concluded that Kelly never 

properly applied through Defendant’s established procedures for a second FMLA leave. See 29 

C.F.R. § 825.302(d); see also Graziadio v. Culinary Inst. of Am., 817 F.3d 415, 424 (2d Cir. 2016). Kelly 

alleges that on October 27, 2015 he informally and verbally notified his managers of his wife’s 

second pregnancy and his intent to take FMLA leave approximately eight months later. It is not 

disputed, however, that in the nearly six months between this alleged notice and his alleged 

constructive termination, Kelly never once applied for leave through the established procedures. 

Nor does Kelly point to any “unusual circumstances” that precluded him from applying through 

those procedures. 29 C.F.R. § 825.302(d). Under the circumstances presented on appeal, we 

conclude that Defendant did not deny Kelly any benefit to which he was entitled under the FMLA. 

Nor does the record otherwise support a conclusion that Defendant interfered with an attempted 

exercise of Kelly’s rights under that statute.
3

C.

Kelly also alleges that Defendant unlawfully retaliated against him in violation of the FMLA. 

The District Court held, and the parties do not dispute, that this claim is subject to the 

burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See

Graziadio, 817 F.3d at 429.

In support of his retaliation claim, Kelly identifies negative annual reviews (from 2014 and 

2015), discipline (including verbal and written warnings), and constructive termination as adverse 

employment actions taken against him in retaliation for exercising his FMLA rights, namely, taking 

six weeks of leave beginning in September 2014 and informally seeking leave in October 2015. The 

District Court assumed arguendo that Kelly did not voluntarily resign his position and that the verbal 

and written warnings complained of constituted adverse employment actions. It then concluded that 

Kelly had stated a prima facie case; Defendant offered legitimate, non-discriminatory reasons for its 

actions—i.e., Kelly’s well-documented and long-running behavioral and performance issues, which 

began prior to any FMLA request or leave; and that Kelly failed to offer evidence to sustain his 

ultimate burden of showing that the proffered explanations were pretextual. Accordingly, the 

District Court granted Defendant’s summary judgment motion. For substantially the reasons set 

forth in the District Court’s thorough August 29, 2019 Opinion and Order, we affirm. 

CONCLUSION

We have reviewed all the arguments raised by Kelly on appeal and find them to be without 

merit. For the foregoing reasons, we AFFIRM the August 29, 2019 judgment of the District Court. 

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk