DENISE COTE, District Judge.
Gladys Ejiogu ("Ejiogu") has sued her former employer Grand Manor Nursing and Rehabilitation Center ("Grand Manor") and two of its supervisors under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601
The following facts are undisputed or taken in the light most favorable to Ejiogu, unless otherwise noted. Grand Manor is a nursing and rehabilitation center. Ejiogu was employed by Grand Manor as an In-Service Coordinator for almost two years, beginning November 1, 2011. Her responsibilities included training all staff members on resident care and conducting the orientation of new employees. Ejiogu was also required to visit the unit floors, make rounds to observe the quality of resident care, and assess whether additional training of staff was needed.
Howard Wolf ("Wolf"), Grand Manor's Administrator, oversaw the operations at Grand Manor during Ejiogu's employment. Carolyn Mooyoung ("Mooyoung"), Director of Nursing at Grand Manor, served as Ejiogu's direct supervisor throughout her employment.
In June of 2013, Ejiogu learned that her mother was severely ill. Ejiogu asked Mooyoung for time off to visit and care for her mother in Nigeria.
June 21. Her mother died on June 18. Ejiogu's period of leave consisted of three personal leave days, one sick leave day, and one week of bereavement leave. Ejiogu was paid for all but one day of this leave.
Ejiogu did not return to work as scheduled. On June 26, Ejiogu's doctor sent a letter to Grand Manor asking to excuse Ejiogu from June 26 to August 26 since she was "receiving medical care that requires frequent medical tests and follow up visits . . . [and] is unable to work in her current condition." According to Ejiogu, the stress associated with her mother's death had exacerbated her preexisting Graves' disease symptoms.
That same day, Grand Manor's Director of Human Resources, Jean Bosze ("Bosze"), sent Ejiogu a letter informing her that in order to be eligible for FMLA leave, her physician would need to fill out and return certain forms no later than July 5.
While Ejiogu was on FMLA leave, Grand Manor fired Bosze and her human resources ("HR") responsibilities were redistributed among Grand Manor's employees. Thus, in addition to performing the In-Service Coordinator responsibilities, Dempsey was also required to perform HR tasks. During her brief tenure as temporary In-Services Coordinator, Dempsey discovered that Ejiogu's office was in a state of disarray. She communicated this information to Mooyoung, who in turn visited Ejiogu's office. Mooyoung later described Ejiogu's office as a "mess" with "tons of misfiled, not filed, regular inservices that were never updated," and how "a lot of things that she was asked to do she didn't do."
Mooyoung does not dispute the state of her office. Instead, she justifies the "profusion of paper" by noting that the In-Service Coordinator job was a "paper-intensive job" that required her to maintain in-service training documents. She further explains that she had her own filing system which she understood, that no one cleaned up after her, and that she had only a small garbage can to dispose of unneeded paperwork.
Ejiogu returned to Grand Manor on September 25 and presented Mooyoung with a signed "Return to Work" letter. The letter was printed on Mount Sinai School of Medicine letterhead and dated September 25. The letter stated in relevant part: "Gladys Ejiogu is cleared to return to work today, 9/25/13." Mooyoung required Ejiogu to obtain a doctor's letter indicating that Ejiogu could return to work "without restrictions." That same day, Ejiogu acquired a new "Return to Work" letter personally addressed to Mooyoung that stated in relevant part that Ejiogu "may return to work as of today, 9/25/2013, without any restrictions."
On September 26, Dempsey met with Ejiogu to review her duties — including the newly added HR responsibilities — and to provide Ejiogu with updates on what had happened in her absence. Most of the duties were identical to those Ejiogu had been required to perform before taking leave.
Ejiogu also met with Mooyoung on September 26. Mooyoung presented Ejiogu with two documents entitled "Review of Responsibilities of In-Service Coordinator" ("ROR") and "HR File Documents." While the Grand Manor Personnel Handbook provides that, upon hiring, a "[d]etailed job description[] will be given out" the defendants acknowledge that no detailed job description "was [previously] provided for In-Service Coordinator." The ROR listed duties that Ejiogu had not previously performed but which Dempsey had performed after Bosze's departure. Ejiogu refused to sign the documents at her September 26 meeting with Moooyoung.
At some point on September 26, Ejiogu also met with Martin and Bradley Liebman, the co-owners of Grand Manor.
Because Ejiogu refused to sign the ROR form during her September 26 meeting, Mooyoung arranged another meeting with Ejiogu for September 27. At Mooyoug's request, both parties brought witnesses to the September 27 meeting.
Ejiogu borrowed a cellular phone in order to try to record the September 27 meeting. She placed it in her pocket but asserts that she didn't make a recording because she didn't know how to use the phone to do so. At the meeting, the phone made a noise. Mooyoung, believing that Ejiogu was attempting to record their meeting, lunged to grab the phone from her hand.
Ejiogu interpreted Mooyoung's "clock out" instruction as a termination of employment.
After Ejiogu's departure from Grand Manor's premises,
The form contains a handwritten annotation directly beneath the term "Suspension" that reads: "9/27/13 told to punch out 12:30pm [and] return Monday when Mr. Wolf Admin would be in facility." The form is signed by Mooyoung and an ADNS witness, but the "received by" signature line is left blank. The form was never shown to or sent to Ejiogu and the parties agree that Ejiogu was never formally suspended.
When Ejiogu did not return to Grand Manor on Monday, September 30, Wolf attempted to contact her on her cell phone at least four times between 11:07 a.m. and 11:23 a.m.
Ejiogu acknowledges that she received Wolf's letter on or about October 4, but did not respond or attempt to contact Wolf or Mooyoung thereafter. After not hearing from Ejiogu, Wolf formally terminated Ejiogu's employment on October 4. His letter of termination outlined his account of the September 27 interactions between Ejiogu and Mooyoung. Specifically, Wolf noted that "[d]uring the course of your meeting with Ms. Mooyoung, certain deficiencies in your performance were noted and you were advised that it was the facility's expectation that these problems would be corrected." Wolf's letter acknowledged that Mooyoung had instructed Ejiogu to "punch out and leave the building," but that Ejiogu had, "in turn, indicated that you would be calling me on Monday to discuss your meeting with Ms. Mooyoung." Wolf's letter also detailed his unsuccessful attempts to contact Ejiogu on September 30, 2013.
On October 8, 2013, Ejiogu received a letter with attached forms from the New York State Department of Labor ("DOL"). The letter acknowledged that the DOL had "received information indicating that you are engaged in or seeking self employment" and listed September 30, 2013 as the effective date of claim. Ejiogu was required to complete two forms in connection with her claim. In the "Career-Oriented Training Questionnaire," Ejiogu noted that she was presently enrolled in a course entitled "Principles of Child Development/Learning" from 6:30 to 8:00 p.m. on Tuesdays and Thursdays, and that she was scheduled to begin 120 hours of training in "Child Development Associate Training" on October 8, 2013. In a separate form, Ejiogu indicated that she started a child care business in September 2012, but that she had been trying to recruit children to the child care center with "little or no success at this time," and that she had "never worked on the business, because [she had been] trying to get children to enrol[l] into the daycare center." She claimed that the business had ceased operating "when I had no child at all in the day care and when I was on FMLA." Finally, the form stated that "[t]his business just got started in August [2013] after . . . opening in Sept. 2012 due to the fact that I was on FMLA and also the fact that I had no child enlisted in the day care."
The statements in Ejiogu's completed DOL forms were made under penalty of perjury "for the purpose of obtaining unemployment insurance benefits." During her deposition, Ejiogu acknowledged that she was able to operate her daycare business following her return from FMLA leave because she had completed all of her licenses and certifications.
In a complaint filed on January 23, 2015, and amended on October 5, 2015, Ejiogu principally alleges that her employment was unlawfully terminated in retaliation for her decision to take FMLA leave. She asserts that the defendants interfered with, and retaliated against her for exercising, her rights under the FMLA, 29 U.S.C. §§ 2601
Summary judgment may not be granted unless all of the submissions taken together "show[] 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). "Summary judgment is appropriate when the record taken as a whole could not lead a rational trier of fact to find for the non-moving party."
Once the moving party has asserted facts showing that the non-movant's claims cannot be sustained, "the party opposing summary judgment may not merely rest on the allegations or denials of his pleading; rather his response, by affidavits or otherwise as provided in [Rule 56], must set forth specific facts demonstrating that there is a genuine issue for trial."
The FMLA entitles eligible employees with qualifying reasons to twelve workweeks of unpaid leave during any twelve-month period. 29 U.S.C. § 2612(a)(1). Qualifying reasons include "a serious health condition that makes the employee unable to perform the functions of the position of such employee" or to care for a parent of an employee if the parent has a serious health condition.
Section 2615 of the FMLA states that "[i]t shall be unlawful for any employer to interfere with, restrain, or deny the exercise or the attempt to exercise, any right provided under [the FMLA]."
"To succeed on a claim of FMLA interference, a plaintiff must establish that the defendant denied or otherwise interfered with a benefit to which she was entitled under the FMLA."
In order to prevail on an FMLA interference claim, a plaintiff must establish:
Ejiogu contends that the defendants interfered with her rights under the FMLA when: (1) Grand Manor failed to notify her of her right to take up to twelve weeks of unpaid leave to care for her ailing mother; (2) Mooyoung refused to accept Ejiogu's first "Return to Work" letter; and (3) Grand Manor did not restore her to the same or an "equivalent position" upon her return to Grand Manor.
There is no dispute as to the first three elements of the interference claims. Ejiogu had worked more than 1,250 hours in the twelve months preceding her request for leave to care for her mother.
The FMLA imposes notice requirements on both employees and employers regarding requests for leave. When leave is unforeseeable, an employee must provide notice to her employer "as soon as practicable." 29 C.F.R. § 825.303(a). "When an employee seeks leave for the first time for a FMLA-qualifying reason, the employee need not expressly assert rights under the FMLA or even mention the FMLA."
The employer, in turn, is "expected to obtain any additional required information through informal means." 29 C.F.R. § 825.303(b). An employee has "an obligation to respond to an employer's questions designed to determine whether an absence is potentially FMLA-qualifying."
Once an employee requests FMLA leave, or once "the employer acquires knowledge that an employee's leave may be for an FMLA-qualifying reason," the employer must "notify the employee of the employee's eligibility to take FMLA leave within five business days, absent extenuating circumstances." 29 C.F.R. § 825.300(b)(1). "Failure to follow the notice requirements . . . may constitute an interference with, restraint, or denial of the exercise of an employee's FMLA rights."
Ejiogu informed Mooyoung that her mother was "very ill" and requested an opportunity to visit her in Nigeria. This statement was sufficient to trigger Grand Manor's notice obligations. It is undisputed that the defendants did not inform Ejiogu of her right to take twelve weeks of unpaid FMLA leave in connection with her mother's illness. Accordingly, the defendants' motion for summary judgment on this interference claim is denied.
The defendants appear to argue that this interference claim should be dismissed because Ejiogu did not request FMLA leave by name from Grand Manor's HR department or provide a certification of her mother's illness. Grand Manor's Personnel Handbook requires that an employee seeking leave "complete the appropriate family/medical leave forms," which are available from the employee's "Department Head." These forms must be completed as soon as the employee becomes aware of the need for leave. Moreover, if an employee is requesting leave to care for a parent with a serious health condition, Grand Manor requires that the employee "provide medical certification from the health care provider." Under the FMLA, "an employee seeking leave need not submit a medical certification
Ejiogu followed the proper procedures in requesting leave to care for her sick mother. First, Ejiogu was not required to request leave from an HR representative under Grand Manor's policies. Second, neither Grand Manor's policies nor the FMLA required Ejiogu to request FMLA leave by name.
The defendants further contend that Ejiogu's interference claim should be dismissed because Grand Manor gave Ejiogu the full twelve weeks of FMLA leave that year to address her own health problems. That Ejiogu ultimately received a favorable leave arrangement due to a second, unrelated FMLA request does not entitle the defendants to summary judgment on the claim that the defendants interfered with her FMLA rights when her mother was ill.
Ejiogu claims that Mooyoung interfered with her rights by refusing to accept her original "Return to Work" letter upon her return from FMLA leave. An employer may, as a condition of restoration for an employee who has taken leave occasioned by the employee's own serious health condition, have "a uniformly applied practice or policy that requires each such employee to receive certification from the health care provider of the employee that the employee is able to resume work . . . ." 29 U.S.C. § 2614(a)(4); 29 C.F.R. § 825.312(a).
An employer may, in addition, require that such fitness-for duty certifications "specifically address the employee's ability to perform the essential functions of the employee's job." 29 C.F.R. § 825.312(b). But in order to do so,
Grand Manor's Personnel Handbook requires employees who take leave occasioned by their own serious health condition "to provide medical certification that [they] are able to resume work, before [they] return." Employees who fail to complete the "Return to Work" medical certification are "not permitted to resume work."
When Ejiogu returned to work on September 25 with a doctor's note indicating she was "cleared to return to work," Mooyoung required Ejiogu to obtain a letter from the doctor indicating that the return was "without restrictions." Ejiogu promptly obtained the revised letter and, as she acknowledges, began work that same day.
Ejiogu alleges that Mooyoung interfered with her right to reinstatement under the FMLA. Upon returning from FMLA leave, an eligible employee is entitled "to be restored by the employer to the position of employment held by the employee when the leave commenced" or "to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment." 29 U.S.C. § 2614(a)(1)(A)-(B). An employee "cannot be induced by the employer to accept a different position against the employee's wishes." 29 C.F.R. § 825.215(e). An "equivalent position" is one that is "virtually identical to the employee's former position in terms of pay, benefits and working conditions, including privileges, perquisites and status."
The right to reinstatement under the FMLA is not absolute. For example, a restored employee is not entitled to "any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken leave." 29 U.S.C. § 2614(a)(3)(B). Moreover, "[t]he requirement that an employee be restored to the same or equivalent job with the same or equivalent pay, benefits, and terms and conditions of employment does not extend to de minimis, intangible, or unmeasurable aspects of the job." 29 C.F.R. § 825.215(f).
Ejiogu acknowledges that she received the same pay and financial benefits upon her return to work at Grand Manor, but she contends that the modified In-Services Coordinator position constituted a different position in violation of 29 U.S.C. § 2614(a). No reasonable juror could avoid the conclusion that Ejiogu was restored to an "equivalent position" at Grand Manor when she returned from FMLA leave. The addition of HR duties to the In-Service Coordinator position did not render Ejiogu's In-Service Coordinator position different for purposes of the FMLA. This is because a restored employee is not entitled to any right, benefit, or position other than those to which she would have been entitled had she not taken the leave. 29 U.S.C. § 2614(a)(3)(B). Here, it is undisputed that Dempsey — the temporary In-Service Coordinator — was required to perform these HR duties after Bosze's departure. Thus, had Ejiogu not taken FMLA leave, she too would have been required to perform these HR duties.
Moreover, the new HR duties were few in number, were substantially similar to those she had previously performed, entailed substantially equivalent skill, and imposed substantially equivalent responsibility. Of the sixteen directives in the ROR, only two concern HR duties. One required her to file her inservice training documents for an employee in the employee's HR files annually; another required her to ensure that all new nurses completed their HR paperwork when hired. As Ejiogu acknowledges, most of the directions Dempsey provided her upon her return to Grand Manor were the "same" as the directions she had received in the past.
Although Ejiogu argues principally that the addition of the HR duties so transformed her job that Grand Manor was in effect treating her as a new hire, she also complains of three other changes to her duties. She contends that a "Do Not Stay in Office" directive in the ROR robbed her of a perquisite — namely, her office. But this directive cannot reasonably be construed as a revocation of her office. Several of the sixteen separately listed responsibilities assume that she has an office that must be kept neat and clean, with correctly filed records. Indeed, the very directive to which she points assumes that she has an office that she must leave on occasion to perform the full range of her duties. It is undisputed that her job as In-Service Coordinator had always required her to spend time outside her office making rounds and assessing the need for further training of staff.
She argues as well that a directive in the ROR — to "[c]reate monthly inservice calendar; ensure at least 1 evening/night inservice date and 1 weekend date" — deprived her of a "guarantee" that she never had to work on evenings or weekends. Ejiogu has offered no evidence, however, that the responsibility to create a monthly calendar required Ejiogu herself to work one weeknight and one weekend date each month.
First, the document itself does not purport to set a work schedule for Ejiogu. Instead, it describes the sixteen tasks she must perform. The first six directives in the ROR required Ejiogu to ensure that inservice training of employees was both scheduled and completed. For instance, the very first directive required her to create a yearly calendar of "inservice topics" and to identify a "topic of the month." The second directive required her to create the monthly inservice calendar at issue here. The fifth directive required her to review records to identify staff that had not attended "in-services" and to ensure that they completed that training by attending an "in-service class", through "self study" or by working with the "dept head."
Nor is there any evidence that Ejiogu expressed confusion about this issue at the time. She did not voice any concerns regarding this instruction during any of her January 26 and 27 meetings. While her January 27 meeting with Mooyoung was interrupted because of the dispute over Ejiogu's attempt to record their meeting, Ejiogu already had been advised by the Grand Manor owners to meet with Wolf upon his return to work to raise any concerns about her employment. Thus, even if she harbored an unexpressed concern that the ROR was intended to alter her work schedule, she knew she could address this issue with Wolf. Without a more explicit statement by Grand Manor that it was requiring Ejiogu to work one night and one weekend day each month, there is no need to explore whether such an alteration in her schedule would have deprived her of a position equivalent to the one she had held.
Finally, no reasonable juror could conclude, as Ejiogu argues, that the "HR File Documents" checklist converted her to a "new hire." This checklist was an essential aid so that she could perform the tasks assigned to her in the ninth directive in the ROR. That ninth directive required Ejiogu to "ensure all HR paperwork is completed for all nursing new hires [and] ensure finance receives copies of documents for payroll," among other things. The checklist itself included thirteen separate documents that new staff had to complete or produce. The bottom of the checklist indicated as well that each of those documents had to be provided to the finance department before an employee could receive a paycheck. Notably, Ejiogu does not suggest that she herself was required to complete or produce the thirteen items listed on the checklist when she returned from her FMLA leave. In sum, because Ejiogu was restored to an "equivalent position" under the FMLA, her FMLA interference claim as it relates to her right to reinstatement must be dismissed.
FMLA retaliation claims are analyzed pursuant to the burden shifting framework established in
For purposes of an FMLA retaliation claim, an adverse employment action is "any action by the employer that is likely to dissuade a reasonable worker in the plaintiff's position from exercising his legal rights."
The plaintiff raises an inference of retaliatory intent if she demonstrates that exercising her rights under the FMLA constituted a negative factor in the defendant's decision to terminate her employment.
Ejiogu claims that her expressed displeasure upon her return to Grand Manor with having to assume HR duties constitutes an exercise of rights protected under the FMLA. She asserts that she suffered three adverse employment actions in retaliation for that expressed reluctance. First, she claims she was assaulted when Mooyoung attempted to grab a phone from her at the September 27 meeting. Second, she claims she was suspended. Finally, she claims that her employment was wrongfully terminated.
Ejiogu argues that Mooyoung lunged toward Ejiogu to grab the phone Ejiogu was hiding during their meeting on September 27. This single incident of abuse does not rise to the level of an "intolerable alteration of the plaintiff's working conditions so as to substantially interfere with or impair [her] ability to do [her] job."
It is undisputed that Mooyoung drafted a disciplinary suspension form after her meeting with Ejiogu on September 27. But it is also undisputed that the form was never formally issued or shown to Ejiogu. Thus, the drafting of the form did not constitute an adverse employment action.
Ejiogu claims that her employment was terminated under circumstances giving rise to a retaliatory intent. The temporal proximity between her vocal opposition to what she perceived to be a violation of her right to reinstatement and the termination of her employment is sufficient to establish the
The defendants, in turn, have demonstrated a legitimate, non-discriminatory reason for terminating Ejiogu — namely, job abandonment. It is undisputed that the co-owners of Grand Manor instructed Ejiogu to come back on Monday, September 30 to meet with Wolf. It is further undisputed that Ejiogu received Wolf's September 30 letter instructing her to call Mooyoung as soon as possible. Finally, it is undisputed that Ejiogu did not return to work on Monday, September 30 or at any time thereafter, did not meet with Wolf, and did not attempt to contact Mooyoung.
Ejiogu cannot demonstrate that the defendants' proffered reason for terminating her employment was pretextual. Even if Mooyoung's "clock out" instruction on September 27 could be reasonably construed as an attempt to terminate Ejiogu's employment, Ejiogu received repeated notices from Mooyoung's superiors that Ejiogu was expected to return to work and to continue to discuss her new responsibilities. Ejiogu's failure to return to work and to complete those discussions constituted job abandonment.
Ejiogu argues that her failure to return to Grand Manor should not be construed as an abandonment despite the messages and instructions she received from Grand Manor indicating its expectation that she would return. She argues that the defendants could have done more to encourage her return by driving to her home, some fifteen minutes away from Grand Manor, and inviting her in person to return to work. No employer is required to make a home visit to an employee to convince her to not abandon her employment. Indeed, many employees would be expected to object vehemently to an uninvited visit by their employer to their home. Accordingly, Ejiogu's retaliatory termination claim must be dismissed.
Ejiogu claims that Grand Manor retaliated against her in violation of the Rehabilitation Act.
In order to establish a prima facie case of retaliation, a plaintiff must show that:
With respect to the first element of a retaliation claim — participation in a protected activity — a plaintiff "need not establish that the conduct he opposed was actually a violation of the statute so long as he can establish that he possessed a good faith, reasonable belief that the underlying challenged actions of the employer violated the law."
The Second Circuit has not specifically addressed whether twelve weeks of FMLA leave may constitute a "reasonable accommodation" under the Rehabilitation Act. With respect to a request for a finite, unpaid, non-FMLA leave of absence, however, the Second Circuit has observed that
Ejiogu appears to contend that her request for FMLA leave was also an invocation of her rights under the Rehabilitation Act since her Graves' disease is a disability.
Ejiogu complains that Grand Manor terminated her employment because she took the FMLA leave to address her disability. But, as already described, Ejiogu abandoned her job. She returned to work, presented evidence to Grand Manor that she could perform her job without restrictions, and then abandoned her job without completing discussions with her supervisors of what her duties would be upon her return. No reasonable juror could conclude that she was fired in retaliation for taking three months of leave.
Ejiogu claims that the defendants improperly retaliated against her for exercising her right of accommodation under NYCHRL, N.Y.C. Admin. Code § 8-107. NYCHRL makes it unlawful for an employer to discharge or discriminate against an individual because of a disability. It states:
The plaintiff may prevail on a retaliation claim if she can prove that "she took an action opposing her employer's discrimination . . . and that, as a result, the employer engaged in conduct that was reasonably likely to deter a person from engaging in such action."
To make out an unlawful retaliation claim under the NYCHRL, a plaintiff must show:
NYCHRL claims must be analyzed "separately and independently from any federal and state law claims."
In this case, Ejiogu's retaliation claim founders at the first step, as she has not identified any instance in which she engaged in protected activity under the NYCHRL. Ejiogu once again attempts to equate the invocation of her rights under the FMLA with the assertion of her rights under the NYCHRL.
The defendants' motion for summary judgment on the FMLA interference claims is granted except for the following claim: that the defendants failed to notify Ejiogu of her right to take twelve weeks of FMLA leave in connection with her request to take leave to care for her ill mother in Nigeria. The motion for summary judgment on the retaliation claims brought under the FMLA, Rehabilitation Act and NYCHRL is granted.
Specifically, Ejiogu was concerned "[a]s to how to get the job done" since the ROR said "do not stay in office," but she still "need[ed] the computer to get the work done . . . to update things in the bullet points."