KATHERINE B. FORREST, District Judge.
Plaintiff Nydia Rivera brought this action in April 2014 against her former employer, defendant Crowell & Moring L.L.P. ("Crowell"), and former supervisor at Crowell, defendant Dibe Perez ("Perez"), alleging claims for race discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e
Plaintiff was employed as a legal secretary by Crowell from April 2010 until she was discharged in December 2012. Plaintiff alleges that she was unlawfully discharged on the basis of race, national origin and disability discrimination; defendants counter that plaintiff was lawfully discharged for purposefully exceeding her allotted leave time despite receiving numerous warnings not to do so.
Pending before the Court is defendants' motion for summary judgment on the ground that no genuine issue of fact remains as to any of plaintiffs' claims and that defendants are entitled to judgment as a matter of law. For the reasons set forth below, defendants' motion for summary judgment is granted as to plaintiff's FMLA and Title VII claims, and the Court declines to exercise supplemental jurisdiction as to plaintiff's NYCHRL claims. Accordingly, this action is dismissed.
Defendant Crowell is an international law firm with its headquarters in Washington, D.C.; Crowell opened its New York office in 2006. (Defs.' 56.1 ¶ 9.)
Defendant Dibe Perez, whose parents were born in Cuba and who considers herself Hispanic, had interviewed plaintiff for the position in 2010 and recommended that she be hired. (Defs.' 56.1 ¶¶ 12, 14.) Plaintiff reported to Perez, who served as Office Administrator of Crowell's New York office for the duration of plaintiff's employment. (Defs.' 56.1 ¶¶ 10, 15.) Perez supervised between 20 and 30 employees at any given time during her eight-year tenure with Crowell. (Defs.' 56.1 ¶ 15.) Perez, in turn, was supervised by Alyson Guthrie, Crowell's Chief Human Resources Officer, who worked in Crowell's Washington, D.C. office. (Defs.' 56.1 ¶ 10.)
Crowell provides time off to hourly employees, such as plaintiff, in a lump sum amount that is referred to as "All Purpose Leave" or "APL." (Defs.' 56.1 ¶ 22.) This singular allocation of time off can be used in hourly increments. (Defs.' 56.1 ¶ 22.) Pursuant to Crowell's APL policy, deductions are made from APL allocations for full-day absences and where an employee arrives late or leaves early if such time cannot be made up during the same work day. (Defs.' 56.1 ¶ 22.) APL encompasses time off for vacation, planned personal leisure activities, sickness, and other unplanned events. (Defs.' 56.1 ¶ 23.) Crowell pays up to 35 hours of unused APL for employees who have a 27 day annual accrual rate. (Defs.' 56.1 ¶ 24.) Plaintiff received 27 days of APL and one floating holiday per year, as well as nine prescheduled paid holidays. (Defs.' 56.1 ¶ 28.)
An employee who exceeds her APL allotment for the year is put into "Leave Without Pay" or "LWOP" status. (Defs.' 56.1 ¶ 36.) Plaintiff concedes that Perez established a rule permitting an employee to exceed APL in "emergency" situations, and applied this rule only to plaintiff. (Pl.'s 56.1 Cstmt. ¶ 32.) This rule was applied to plaintiff on December 3, 2012, when she was advised that the sudden hospitalization of her mother was considered an "emergency"; at that time, Perez told plaintiff, "Nydia if you have to be with your mom, this is deemed an emergency." (Defs.' 56.1 ¶ 34.)
According to Crowell's Business and Employment Policy Manual (the "Employment Manual"), employees must avoid exceeding their allocated time off in order to avoid imposing additional burdens on attorneys and other secretaries. (Defs.' 56.1 ¶ 29.) The Employment Manual states that "Employees are responsible for managing their leave in such a way that the Firm is given sufficient advance notice of time off (planned absence) and unplanned absences are kept to a minimum. Excessive unplanned absence may result in disciplinary action up to and including discharge." (Defs.' 56.1 ¶ 30.) Employees are allowed to request planned time off at any time and APL may be scheduled and used before it has actually accrued. (Defs.' 56.1 ¶ 47.) Plaintiff acknowledged in writing that she received and read the Employment Manual. (Defs.' 56.1 ¶ 29.) Plaintiff asserts that Crowell's policy as to when LWOP could be used in case of an emergency was unclear. (Harman Decl., Ex. A, Rivera Aff. ¶¶ 56, 65.)
Crowell's Employment Manual also includes an FMLA policy that describes employee eligibility, the application process, entitlement to intermittent and reduced-schedule leave, and contains a section on the provisions of the FMLA related to the term "serious health conditions." (Defs.' 56.1 ¶¶ 94-95.) Plaintiff read the FMLA policy at least three times during her employment. (Defs.' 56.1 ¶ 96.) Between April 2010 and August 2014, Crowell provided 19 FMLA leaves to employees supervised by Perez, not including the FMLA leave that plaintiff took for a back condition in 2011 (which is explained further below). (Defs.' 56.1 ¶ 97.) Perez did not have the authority to approve or deny employee requests for FMLA leave. (Defs.' 56.1 ¶¶ 96, 98.) Under Crowell's policy, FMLA-qualifying absences are deducted from an employee's APL balance. (Defs.' 56.1 ¶ 43.) Time spent on FMLA leave, however, is considered "protected," meaning that APL used simultaneously with FMLA is not considered when Crowell reviews whether an employee has failed to manage APL appropriately. (Defs.' 56.1 ¶ 43.) Other than in the present case, Crowell has never had a complaint filed against it relating to a New York office employee's request for FMLA leave. (Defs.' 56.1 ¶ 97.)
Plaintiff exhausted her APL allowance in 2010, her first year of employment at Crowell; she went into LWOP status for three days that year. (Defs.' 56.1 ¶ 41.)
In 2011, plaintiff underwent medical treatments for a back condition. (Defs.' 56.1 ¶ 42.) This condition required plaintiff to be absent for two separate periods for which Crowell provided her FMLA leave. (Defs.' 56.1 ¶ 42.) Later in 2011, plaintiff requested unplanned time off and schedule changes unrelated to any medical condition; these absences included: (1) leaving work early on September 22 to attend a teacher's "open house" for her daughter, (2) arriving late for work on October 19 due to weather-related delays, (3) leaving early on October 26 to take her daughter to the doctor, (4) leaving early on December 1 to pick up her daughter from school, (5) taking the day off on December 8 because the power was out at her daughter's school, and (6) leaving early on December 10 to attend her daughter's school event. (Defs.' 56.1 ¶ 44.)
On October 11, 2011, Perez sent plaintiff an email regarding plaintiff's low APL balance. (Defs.' 56.1 ¶ 45.) Perez also sent similar emails to four Caucasian secretaries and eight other non-secretarial employees. (Defs.' 56.1 ¶ 45.) Plaintiff was not disciplined for ultimately exceeding her APL allocation in 2011 because Crowell did not consider plaintiff's use of APL in conjunction with FMLA leave to be mismanagement of her APL balance. (Defs.' 56.1 ¶ 46.)
By mid-January 2012, plaintiff had scheduled 20 days off for the 2012 calendar year, including two summer vacations totaling 16 days. (Defs.' 56.1 ¶¶ 48-51.)
By mid-April, if plaintiff took all of her requested planned leave, she would have had only 20 hours left to use for the rest of the year. (Defs.' 56.1 ¶ 55.) Plaintiff met with Perez on April 16, 2012, at which time Perez suggested that plaintiff cancel some of her previously scheduled time off to ensure that she would not exceed her APL for the year. (Defs.' 56.1 ¶ 56.) Just as plaintiff had done in 2010, plaintiff refused to cancel any of her scheduled time off because she believed it was premature to assume that she was going to get sick after August (i.e. after her second planned vacation) such that she would exceed her allotted APL. (Defs.' 56.1 ¶ 56.) On April 19, 2012, Perez had a conversation with plaintiff regarding her recent absences and explained that time out of the office "may be an FMLA event and suggested that we could bring Megan [Lang, a Crowell Human Resources Manager,] into the loop for confirmation and information procedural specifics." (Defs.' 56.1 ¶ 57.) Plaintiff stated that she didn't want to go through the paperwork and told Perez that none of her leave to date in 2012 could be allocated towards her FMLA balance. (Defs.' 56.1 ¶ 57.) Plaintiff was subsequently absent on May 21, 2012 due to back pain; plaintiff told Perez that she did not believe she needed to request FMLA leave based on what she had been told by her doctor. (Defs.' 56.1 ¶ 59.) On May 22, 2012, Perez directly asked plaintiff if she would cancel some of her planned vacation—plaintiff refused. (Defs.' 56.1 ¶ 59.)
On Thursday, October 4 and Friday, October 5, 2012, plaintiff called in sick. (Defs.' 56.1 ¶ 60.) On October 5, plaintiff visited her physician, Dr. Ilora Rafique. (Defs.' 56.1 ¶ 118.) Plaintiff testified at her deposition that the October 5 appointment was for a sinus condition (Defs.' 56.1 ¶ 119), whereas Dr. Rafique testified that plaintiff's reason for the visit was low back pain related to her prior lumbar back problem, and for a "runny nose." (Defs.' 56.1 ¶ 120.) Dr. Rafique's notes from the October 5 appointment show that plaintiff denied having fever, chills, fatigue, chest pain or swollen glands. (Defs.' 56.1 ¶ 121.) Dr. Rafique also testified that plaintiff's respiratory condition was considered normal, and her chest and lungs were clear. (Defs.' 56.1 ¶ 122.) Dr. Rafique testified that it would not surprise her, based on her October 5 examination, if plaintiff had gone to work on October 4 and October 5. (Defs.' 56.1 ¶ 124.) Plaintiff's absence on October 4 was charged to her remaining seven hours of APL; having thus exceeded her APL balance, plaintiff's absence on October 5 was charged as LWOP. (Defs.' 56.1 ¶ 61.)
Plaintiff returned to work on Monday, October 8, 2012, and produced a form letter from Dr. Rafique stating, "Please excuse Nydia Rivera from work/school from Oct. 4 to Oct. 5. Patient was under my care and can return to work/school on October 8, 2012." (Defs.' 56.1 ¶¶ 126-27.) On the day of her return, plaintiff met with Perez and Lang concerning her October 4 and 5 absences. (Defs.' 56.1 ¶¶ 62, 126.) At the October 8 meeting, plaintiff was given a memo that restated past warnings regarding her mismanagement of APL, reminded plaintiff of her past refusals to modify her vacation plans to preserve an APL balance, advised her that she had no remaining APL, and warned plaintiff that she could be discharged if she had any additional days in LWOP status. (Defs.' 56.1 ¶¶ 63, 129-30.) The October 8 memo was drafted jointly by Perez and Lang, and was approved by Guthrie before it was finalized and given to plaintiff. (Defs.' 56.1 ¶ 64.)
On October 15, plaintiff responded with a three-page memo to Perez (with copies sent to Guthrie and Lang) that stated, "Although my feeling ill was not a life threatening situation, per say [sic], I felt ill enough to warrant myself to seek medical attention as quickly as possible for which prescription medication was prescribed, as well as rest." (Defs.' 56.1 ¶¶ 65, 67.) Regarding her refusal to accept Perez's suggestion on May 22 that she cancel some of her planned APL, plaintiff wrote "although it laid in the `back of my mind' I was going to try and not be too concerned for the most part about the time available to me for the remainder of the year after August, as I felt positively, perhaps a bit prematurely, that all would be fine." (Defs.' 56.1 ¶ 69.) Plaintiff's letter went on to state, "I took a chance in allowing such little time left over by August with the good faith that things would be uneventful." (Defs.' 56.1 ¶ 70.) The October 8 memo made no reference to plaintiff's potential eligibility for FMLA leave as to the October 4 and 5 absences. (Defs.' 56.1 ¶ 132.)
On the morning of Tuesday, December 11, 2012, plaintiff emailed a friend at the office, saying "Have a cold again;" she concluded her email by saying "But trooping it through I guess." (Defs.' 56.1 ¶ 135.) On Wednesday, December 12, 2012, plaintiff reported to work but left at approximately 11:00 a.m. to see Dr. Rafique because she felt sick. (Defs.' 56.1 ¶¶ 71, 136.) After receiving an inquiry from either Perez or Lang as to whether a car service or ambulance should be called to take her to Dr. Rafique's office (located in the Bronx), plaintiff requested a car service. (Defs.' 56.1 ¶¶ 137-38.) Later that day, Dr. Rafique provided a note by facsimile stating that plaintiff should be excused from work until Sunday, December 16, and that she could return to work on Monday, December 17; the note did not state the medical condition causing the absences. (Defs.' 56.1 ¶ 140.) Also on December 12, plaintiff left a voicemail for Perez stating that if she felt better, she would return to work on Friday, December 14. (Defs.' 56.1 ¶ 141.) Plaintiff did in fact return to work on that day. (Defs.' 56.1 ¶ 147.) Dr. Rafique testified that the reason for plaintiff's December 12 appointment was "allergic symptoms, runny nose and sneezing." (Defs.' 56.1 ¶ 142.) Dr. Rafique testified that her December 12 examination of plaintiff showed that plaintiff's eyes, ears, sinuses, mouth, airway, chest and lungs were normal, and her vital signs were good. (Defs.' 56.1 ¶ 144.) Dr. Rafique prescribed an antibiotic. (Defs.' 56.1 ¶ 145.) Dr. Rafique testified that, based on her findings on December 12, it would not surprise her if plaintiff was able to work on December 14. (Defs.' 56.1 ¶ 150.)
Plaintiff's partial day absence on December 12, and her full day absence on December 13, were not covered by the FMLA; as a result plaintiff went further into LWOP status. (Defs.' 56.1 ¶ 73.)
At approximately 4:00 p.m. on December 14, 2012, plaintiff met with Lang and Perez, at which time Lang informed plaintiff that she was being terminated. (Defs.' 56.1 ¶ 74.) The decision to terminate plaintiff was made by Guthrie when she became aware that plaintiff had returned to work that day. (Defs.' 56.1 ¶¶ 75-76, 152.) Plaintiff asserts that during the meeting, because of her ongoing sickness and the stress of being fired, she needed her inhaler and Perez brought it to her. (Rivera Aff. ¶ 61.) Plaintiff asserts that Perez knew that plaintiff "had ongoing respiratory problems and kept an inhaler" with her to treat her asthma. (Rivera Aff. ¶¶ 62-63;
On December 15, 2012, plaintiff sent a nearly three-page, single-spaced email to Perez, Guthrie, and Ellen Dwyer, Crowell's Managing Partner. (Defs.' 56.1 ¶ 195.) In her email, plaintiff complained extensively about the termination of her employment, and about Perez in particular. (Defs.' 56.1 ¶ 78.) Plaintiff's email made no reference to issues of race, disability, the FMLA, a hostile work environment, or any other claims alleged in this action. (Defs.' 56.1 ¶¶ 78, 196.) Plaintiff's email did refer to a comment that Perez had allegedly once made in the lunch room that she did not "really like to hire attractive women because they can be a distraction"—plaintiff's email questioned whether she was fired because she fell into this category. (Defs.' 56.1 ¶ 197.) Plaintiff's email also twice described her October and December 2012 absences as "temporary illnesses." (Defs.' 56.1 ¶ 153.) During her deposition, plaintiff expressed her belief that an employee should never be fired if he or she is out sick, even for a day, so long as he or she can obtain a doctor's note verifying illness, regardless of whether the employee has exhausted his or her entire APL allocation. (Defs.' 56.1 ¶ 79.)
On October 4, 2013, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") alleging a violation of the FMLA and discrimination on the basis of her national origin, color, and disability. (Defs.' 56.1 ¶ 2.) In her charge, plaintiff stated, "The events leading up to my charges took place between April of 2012 through December 14, 2012." (Defs.' 56.1 ¶ 2;
For the duration of plaintiff's employment, Crowell had in place an equal employment opportunity ("EEO") policy forbidding discrimination on the basis of,
Plaintiff claims that she was subjected to a hostile work environment based on her Hispanic race and Puerto Rican national origin. (Compl. ¶¶ 66-70, 75-77, ECF No. 2; Defs.' 56.1 ¶¶ 155-56.) Plaintiff's hostile work environment allegations consist of four alleged comments made by Perez. (Perez's parents were born in Cuba and Perez is of Hispanic background. (Defs.' 56.1 ¶ 12.)) First, plaintiff claims that Perez joined a conversation in Crowell's lunch room sometime in 2011, during which she referred to Puerto Ricans as "lazy" and said that "Spanish people always complain." (Defs.' 56.1 ¶ 157.) Plaintiff stated that other legal secretaries, including Lynn Petri, Mary Ellen Cerbone, and Mitsy Gonzalez were in the lunch room at the time, and that Petri and Cerbone are Caucasian. (Defs.' 56.1 ¶ 158.) Second, plaintiff claims that, at the end of 2011 or beginning of 2012, she was part of a conversation with Perez and Emily Ayala (another legal secretary) regarding the difficulties of juggling time to work and care for children. (Defs.' 56.1 ¶ 161.) During the conversation, Perez allegedly stated that her mother was her daughter's "primary caretaker" and said that "usually Spanish grandmothers are more hands on." (Defs.' 56.1 ¶ 161.) Third, plaintiff claims that, in April 2012, during the conversation in which Perez warned plaintiff about excessive use of APL, Perez said "Spanish people tend to spend more than they have." (Defs.' 56.1 ¶ 160.) Fourth, plaintiff alleges that at times she could overhear Perez—whose office was directly across from plaintiff's desk—cursing in Spanish, which plaintiff said made her "uncomfortable" (although there is no evidence that plaintiff ever complained about Perez's cursing while employed at Crowell). (Defs.' 56.1 ¶ 159.) At her deposition, plaintiff could not remember any additional incidents supporting her hostile work environment claim other than those stated above. (Defs.' 56.1 ¶ 162.)
Plaintiff alleges that she was discriminated against on the basis of her Hispanic race and Puerto Rican origin, claims that are solely directed at conduct engaged in by Perez. (Compl. ¶¶ 66-70, 78-81; Defs.' 56.1 ¶¶ 163-90.) Plaintiff testified that she never discussed the below allegations with anyone at Crowell while employed there. (Defs.' 56.1 ¶ 193.) Plaintiff testified at her deposition that Perez was "too friendly" with attorneys (but mentioned only one) and was more friendly with Caucasian secretaries (naming only three). (Defs.' 56.1 ¶ 167.) Plaintiff testified that Perez unfairly reprimanded Hispanic secretaries—by which she meant herself, Emily Ayala, and [REDACTED]
Plaintiff further testified that Perez was rude to Hispanic secretaries, gave them assignments that were more difficult to complete, and issued worse working schedules to them (again, plaintiff was referring specifically to only Ayala and [REDACTED]). (Defs.' 56.1 ¶ 169.) Although plaintiff testified that she, Ayala and [REDACTED] spoke of difficulty in getting a "quick yes" from Perez regarding schedule changes of a day or longer, the record shows that Perez regularly agreed to plaintiff's schedule change requests, including in 2012 on the dates of January 31, April 23, June 1, June 15, August 22, and October 25. (Defs.' 56.1 ¶¶ 170-71.) Plaintiff alleged one occasion in which she requested a change in schedule while her commute was being impacted by train track repairs, but Perez actually approved this requested schedule change. (Defs.' 56.1 ¶ 178.)
Ayala testified at her deposition that Perez reassigned her from the Insurance Practice Group to another group of attorneys, which Perez explained was based on a request from the Insurance Group attorneys relating to Ayala's performance. (Defs.' 56.1 ¶ 172.) Ayala testified that Perez told her that she could handle an attorney in the new group that was reportedly difficult to work with because Ayala "had thick skin" and would "be able to put him in his place"; Ayala believed the "thick skin" remark was a reference to a Hispanic stereotype. (Defs.' 56.1 ¶ 173.) Ayala testified that she got along with the attorneys to whom she was assigned after the Insurance Group and that [REDACTED], a Caucasian secretary reassigned [REDACTED], later complained about those attorneys and about Perez. (Defs.' 56.1 ¶ 174-76.) Ayala also testified that [REDACTED], a Caucasian secretary, told Ayala that Perez switched her [REDACTED] schedule so that she could support a new attorney and that she was so upset about this change that she was thinking about resigning. (Defs.' 56.1 ¶ 177.) Non-Hispanic secretaries also complained about Perez; Ayala testified that there was no secretary at Crowell who liked her, that Perez was a "bitch" and that this affected all secretaries, including Caucasians, African-Americans, Hispanics and Asians. (Defs.' 56.1 ¶¶ 199-202.)
Plaintiff also alleges that Perez "constantly harassed" her regarding her APL. (Defs.' 56.1 ¶ 180.) Emily Fletcher, Manager of Human Resources in Crowell's D.C. office, prepared "Employee Relations, Recruitment, Support Services and Training Recap" reports for Guthrie. (Defs.' 56.1 ¶ 182.) In one such report, dated October 14, 2011, Fletcher noted that on October 13, 2011 she counseled Perez to send emails to all New York staff with low APL balances because of recent requests by employees to take time off in LWOP status. (Defs.' 56.1 ¶ 182.) Anne Acosta, Manager of Crowell's Human Resource Management Systems (who was located in the D.C. office), sent Perez an email on September 18, 2012 with the names of four employees who, as of that date, had APL balances of less than five days so that Perez could discuss this fact with them. (Defs.' 56.1 ¶ 183.) Two of the employees were non-Hispanic, and two, including plaintiff, were Hispanic. (Defs.' 56.1 ¶ 183.) Of those four employees, plaintiff had the lowest remaining APL balance of 7.25 hours. (Defs.' 56.1 ¶ 183.) Perez was required to monitor New York employees' APL usage and reported, as an example, having sent cautionary emails to thirteen employees, four of whom were Hispanic, in October 2011. (Defs.' 56.1 ¶ 184.)
Plaintiff alleged that Crowell's receptionist, Rosemary Andress, who is Caucasian, was treated more favorably than Hispanic employees with regard to APL policies. (Defs.' 56.1 ¶ 185.) Andress had joined Crowell when Crowell acquired the law firm of King, Pagano & Harrison ("KPH"), including its 20 lawyers and that firm's support staff. (Defs.' 56.1 ¶ 185.) KPH had permitted Andress, who was a Julliard-trained theater director, to take time off anytime she had a directing opportunity, regardless of whether she had a paid leave balance. (Defs.' 56.1 ¶ 185.) The KPH partners insisted during acquisition discussion with Crowell that Andress be allowed to continue this practice, and this request was granted. (Defs.' 56.1 ¶ 185.) Perez was not involved in the decision to allow this accommodation and lacked any authority to modify or cancel it. (Defs.' 56.1 ¶ 186.) Andress was the sole employee at the New York office who was granted this sort of exception to the APL policy. (Defs.' 56.1 ¶ 185.)
Plaintiff alleged that Perez told plaintiff that she was considered unreliable by her assigned attorneys, which plaintiff considered harassment. (Defs.' 56.1 ¶ 187.) In her 2011 performance evaluation, the attorneys for whom plaintiff worked stated,
Plaintiff filed her complaint on April 17, 2014, alleging claims against Crowell and Perez for race discrimination in violation of Title VII, 42 U.S.C. § 2000e
On May 18, 2015, defendants moved for summary judgment as to all claims. (ECF No. 31.) The motion papers were filed under seal. The motion became fully briefed on July 27, 2015. (ECF No. 38.) On January 15, 2016, this action was reassigned to the undersigned. On January 22, 2016, the Court issued an order informing the parties that it intended to grant defendants' motion, and that a written decision would be forthcoming. (ECF No. 39.)
Summary judgment may not be granted unless a movant shows, based on admissible evidence in the record, "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party bears the burden of demonstrating "the absence of a genuine issue of material fact."
Once the moving party has asserted facts showing that the nonmoving party's claims cannot be sustained, the opposing party must set out specific facts showing a genuine issue of material fact for trial.
Only disputes relating to material facts—
The FMLA makes it "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under" the FMLA. 29 U.S.C.A. § 2615(a)(1);
"The FMLA was not intended to cover short-term conditions for which treatment and recovery are very brief."
Under the Department of Labor's regulations, a serious health condition involving continuing treatment by a health care provider requires,
To establish a prima facie claim for interference with FMLA rights, a plaintiff must establish five elements: "(1) that he is an eligible employee under the FMLA; (2) that defendant is an employer as defined in the FMLA; (3) that he was entitled to take leave under the FMLA; (4) that he gave notice to the defendant of his intention to take leave; and (5) that he was denied benefits to which he was entitled under the FMLA."
To meet the notice requirement, the employee must give sufficient information to the employer "to provide reasonable notice that the employee requests time off for a serious health condition."
Title VII prohibits employment discrimination "against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, sex, or national origin." 42 U.S.C. § 2000e-2(a). Hostile work environment and disparate treatment claims are two theories of claims that fall within the umbrella of Title VII.
Although not clearly pled as such, plaintiff's Title VII claim may be construed as pleading a hostile work environment claim on the basis of race. (
Employment discrimination claims asserting disparate treatment under Title VII are analyzed under the three-step burden-shifting framework set forth by the Supreme Court in
If the plaintiff succeeds in proffering sufficient evidence in support of the prima facie case, the burden of production shifts to the defendant to present evidence in support of a defense that "the adverse employment actions were taken for a legitimate, nondiscriminatory reason."
If the defendant satisfies its burden of production, the presumption raised by the prima facie case is rebutted and drops from the case; "the plaintiff then has the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision—a burden that merges with the ultimate burden of persuading the court that she has been the victim of intentional discrimination."
Section 8-107(1)(a) of the NYCHRL makes it "an unlawful discriminatory practice . . . [f]or an employer or an employee or agent thereof, because of the actual or perceived . . . race, creed, color, national origin . . . [or] disability. . . of any person, to refuse to hire or employ or to bar or to discharge from employment such person or to discriminate against such person in compensation or in terms, conditions or privileges of employment." N.Y.C. Admin. Code § 8-107(1)(a);
A court may exercise supplemental jurisdiction over state law claims when they are "so related to claims" as to which the court has original jurisdiction "that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. § 1367(a);
The exercise of such supplemental jurisdiction is discretionary, and a district court "may decline to exercise supplemental jurisdiction" over a state law claim if it "has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3);
Plaintiff alleges that both defendants unlawfully interfered with, or withheld, FMLA benefits to which she was entitled in October 2012 and December 2012. (
First, plaintiff's respiratory conditions do not qualify as a chronic serious health condition under the FMLA. As explained above, FMLA benefits, as relevant here, apply when an employee requires leave because of a "serious health condition." 29 U.S.C. § 2612(a)(1). The term "serious health condition" is defined to include either "inpatient care" or "continuing treatment by a healthcare provider." 29 U.S.C. § 2611(11). Plaintiff does not contend that she received inpatient care, instead relying solely on a determination that she received qualifying continuing treatment. "Continuing treatment," in turn, is defined in the Department of Labor's implementing regulations. Those regulations require, in relevant part, that the employee suffered "any period of incapacity or treatment for such incapacity due to a chronic serious health condition." 29 C.F.R. § 825.115.
For a medical condition to qualify as a "chronic serious health condition," the Department of Labor's regulations require that the condition be one which "(1) Requires periodic visits (defined as at least twice a year) for treatment by a health care provider, or by a nurse under direct supervision of a health care provider; (2) Continues over an extended period of time (including recurring episodes of a single underlying condition); and (3) May cause episodic rather than a continuing period of incapacity (e.g. asthma, diabetes, epilepsy, etc.)." 29 C.F.R. § 825.115(c). Even when viewing the record in the light most favorable to plaintiff, as the Court must in resolving this motion, plaintiff's absences in October 2012 and December 2012 plainly were not caused by a condition that meets the statutory and regulatory requirements.
As to plaintiff's October 4 and 5, 2012 absences, plaintiff testified that her appointment was for a sinus condition; Dr. Rafique testified that the appointment was for a "runny nose." (Defs.' 56.1 ¶¶ 119, 120.)
Based on this evidence, there is nothing to suggest that plaintiff's condition causing her October 2012 and December 2012 absences were caused by a chronic respiratory condition that could be considered "serious" as understood under the FMLA. Although there is evidence to support plaintiff's claim that she had chronic asthma, allergies or bronchitis, there is no evidence to support a determination that plaintiff's condition was serious or that it resulted in any incapacity (i.e. an inability to work) as required to entitle an employee to FMLA leave.
Second, even if plaintiff's respiratory conditions arguably fell within the scope of a "chronic serious health condition" under the FMLA, defendants are nonetheless entitled to judgment as a matter of law because plaintiff failed to provide sufficient notice of her need for FMLA leave in October 2012 and December 2012. As explained above, to establish a prima facie claim for interference with or unlawful withholding of FMLA benefits, a plaintiff must show that she gave sufficient information to her employer "to provide reasonable notice that the employee requests time off for a serious health condition."
There is no evidence in the record to suggest that plaintiff gave defendants reasonable notice that her October 2012 and December 2012 absences were caused by a serious health condition; plaintiff only made defendants aware that she was sick in a generic way that did not put defendants on inquiry notice that plaintiff might qualify for FMLA benefits. When plaintiff returned to work on October 8, she produced only a generic note from Dr. Rafique that did not identify the nature of her illness. (Defs.' 56.1 ¶¶ 126-27.) In her October 15 memo to Perez, plaintiff stated only that her illness was sufficient to warrant her seeking medical attention for which prescription medication and rest were prescribed. (Defs.' 56.1 ¶¶ 65, 67.) Similarly, after plaintiff left work on December 12—by car service, rather than by ambulance as Perez had offered—because she was feeling sick, Dr. Rafique sent a note to Crowell stating that plaintiff could return to work on Monday, December 17, without indicating the medical condition causing plaintiff's absence. (Defs.' 56.1 ¶¶ 137-40.) In her December 15 email concerning the termination of her employment, plaintiff made no reference to any FMLA or disability-related claims, and twice described her absences in October and December as "temporary illnesses." (Defs.' 56.1 ¶¶ 78, 153, 196.)
Regardless of whether defendants were aware of plaintiff's unrelated back condition and migraine headaches (Defs.' 56.1 ¶ 154), or that Perez knew that plaintiff "had ongoing respiratory problems and kept an inhaler," (Rivera Aff. ¶¶ 61-63; Pl.'s 56.1 ¶ 1), plaintiff did not, as a matter of law, provide sufficient information to put defendants on inquiry notice that her October 2012 and December 2012 absences could qualify for FMLA leave.
Perez argues that she is also independently entitled to dismissal as to the FMLA claim because she is not an "employer" as defined by the FMLA. (Defs.' Opening Br. at 21.) A person may only be held individually liable under the FMLA if that person is an "employer."
Plaintiff alleges that defendant Crowell discriminated against her on the basis of her Hispanic race in violation of Title VII. (Compl. ¶¶ 17-24, 66-70.)
First, as to plaintiff's hostile work environment claim, it is clear that plaintiff has failed to present evidence that creates a genuine issue of fact as to whether any harassment was "sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment."
Standing alone, these few stray comments spanning more than a year are insufficiently severe or pervasive when considered in their totality to constitute an "objectively hostile or abusive work environment."
Second, as to plaintiff's disparate treatment claim, plaintiff has failed to present sufficient evidence of a discriminatory motive to rebut Crowell's proffered non-discriminatory reason that plaintiff was terminated because she exceeded her APL. The only adverse employment action that plaintiff identifies in support of her disparate treatment claim is the termination of her employment in December 2012. (Pl.'s Opp. Br. at 10.)
Plaintiff's evidence supporting her disparate treatment claim solely relates to purported discriminatory practices engaged in by Perez, including that Perez was friendlier with Caucasian secretaries, unfairly reprimanded Hispanic secretaries, was rude to Hispanic secretaries, issued worse working schedules and assignments to Hispanic secretaries, and constantly harassed plaintiff regarding her use of APL. (
First, aside from wholly conclusory assertions as to Perez's comparative treatment of Hispanic and non-Hispanic secretaries, plaintiff offers no evidence showing that Perez treated Hispanic secretaries less favorably than others. (
Second, even when considered in its totality and in the light most favorable to plaintiff, the proffered evidence is insufficient to rebut Crowell's non-discriminatory reason for plaintiff's termination. Plaintiff's only evidence relating to Perez's unfair reprimanding of Hispanic secretaries was that Perez told Ayala that her skirt was too short and her bra strap was showing, an assessment with which Ayala herself agreed. (Defs.' 56.1 ¶ 168.) Plaintiff's claim that Hispanic secretaries were disparately reprimanded in comparison to secretaries of other races is also belied by plaintiff's testimony that Perez "targeted" Petri, a Caucasian secretary. (Defs.' 56.1 ¶ 198.) As to plaintiff's claim that Perez issued worse working schedules to Hispanic secretaries, this is belied by plaintiff's concession that Perez regularly approved plaintiff's requests for schedule changes (Defs.' 56.1 ¶¶ 170-71), that Ayala was satisfied with the attorneys to whom she was reassigned after her transfer (Defs.' 56.1 ¶¶ 174-75), and that two Caucasian secretaries, [REDACTED] and [REDACTED], complained about Perez and about scheduling and assignment changes she had made (Defs.' 56.1 ¶¶ 176-77).
Furthermore, as to plaintiff's claim that she was disparately harassed regarding her use of APL, the record contains no evidence that Perez treated plaintiff, or any other Hispanic employee, worse than she treated similarly situated employees with low APL balances. (Defs.' 56.1 ¶¶ 182-84.) Rather, plaintiff does not dispute that in October 2011 Perez sent cautionary emails to thirteen employees about low APL balances, only four of whom were Hispanic. (Defs.' 56.1 ¶ 184.) To the extent that plaintiff seeks to compare her treatment in terms of APL usage to Andress, the one secretary who was given an accommodation, plaintiff has failed to show that she was similarly situated to Andress in all material respects.
Third, whereas all of the conduct that plaintiff claims tends to support an inference of discrimination is attributed to Perez, plaintiff does not dispute that it was Guthrie—Crowell's Chief Human Resources Officer—who had the ultimate authority to make, and who did make, the decision to terminate her employment. (Defs.' 56.1 ¶¶ 75-76, 152.) Plaintiff has presented no evidence that Guthrie was motivated by discriminatory animus in her decision to terminate plaintiff. Thus, even if plaintiff had presented sufficient evidence to show that Perez had discriminatory animus towards Hispanic employees, that is irrelevant to Guthrie's decision to terminate plaintiff for exceeding her APL regardless of whatever minimal role Perez played in the termination decision.
Finally, plaintiff alleges three claims under the NYCHRL for hostile work environment, race discrimination, and disability discrimination. (Compl. ¶¶ 75-85.) Before addressing the merits of plaintiff's NYCHRL claims, however, the Court must decide whether to retain supplemental jurisdiction over these claims in light of the Court's dismissal of plaintiff's federal law claims.
Below (and in the legal standards section above), the Court sets forth the standard applicable to NYCHRL claims. In short, as a result of a law passed by the New York City Council in 2005, that standard has evolved to the point that even claims of discrimination supported by only the flimsiest evidence, as is the case here, are difficult—although not impossible—for a federal court to resolve on summary judgment. This Court believes this action is totally baseless and that no reasonable juror could conclude otherwise. Nonetheless, the current state of the law suggests that that standard applied to even such baseless claims could result in their survival. This, frankly, makes no sense. Our courts—federal and state— should be for resolution of actions which pass some threshold of merit. A higher threshold than case law now suggests. This Court strongly urges New York State court judges, and the New York City Council, to carefully review this standard and tighten it as appropriate. While New York City is well within its rights to enact a more stringent anti-discrimination statute than that applicable under federal or state law, it does not further the interests of justice to have insubstantial claims absorb the resources of our judicial system and crowd out meritorious ones. This Court hopes that New York State appellate courts and/or the New York City Council empower trial courts with the tools to differentiate between the baseless and the substantial at an earlier stage than trial.
While plaintiff's FMLA and Title VII claims share similarities with plaintiff's NYCHRL claims, the NYCHRL, as discussed above, "sets out a different, more liberal standard" from that of Title VII.
Because the NYCHRL claims would require a separate and independent analysis, and because plaintiff alleges a claim for disability discrimination under that law but did not do so under Title VII, this Court concludes—as numerous courts within this district have done—that it is appropriate to decline to exercise supplemental jurisdiction over plaintiffs' NYCHRL claims.
Accordingly, the Court declines to exercise supplemental jurisdiction over plaintiff's NYCHRL claims; those claims are therefore dismissed without prejudice. The Court notes, however, that plaintiff's claims of discrimination appear to be without merit and are supported by only a minimal, if any, evidentiary basis in the record.
For the foregoing reasons, defendants' motion for summary judgment is GRANTED as to plaintiff's claims under the FMLA and Title VII. Those claims are dismissed with prejudice. Because the Court declines to exercise supplemental jurisdiction over plaintiff's NYCHRL claims, those claims are dismissed without prejudice.
The Clerk of Court is directed to terminate this action.
SO ORDERED.
