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DUMOULIN v. FORMICA

June 12, 1997

LISA DUMOULIN, Plaintiff,
v.
DANIEL FORMICA and McDONALD'S OF RAVENA/DELMAR, INC., Defendants.



The opinion of the court was delivered by: SCULLIN

 Introduction

 Plaintiff, a former management employee at the Defendant McDonald's, which is owned by Defendant Formica, was terminated from employment one day before her scheduled pregnancy leave. Plaintiff brings this action claiming breach of contract, breach of implied contract, breach of implied covenant of good faith and fair dealing, violation of Article 296 of the New York Executive Law ("The Human Rights Law"), violation of her rights under the Family Medical Leave Act, and defamation. *fn1" On May 2, 1997 this Court heard oral argument on cross motions for summary judgment. The Court denied Plaintiff's cross motion for summary judgment, and granted Defendants' motion for summary judgment with respect to the contract causes of action for the reasons stated in the record on that date. The Court reserved decision with respect to Defendants' motion for summary judgment on Plaintiff's claims under the Human Rights Law and the Family Medical Leave Act.

 Background

 Defendant Daniel Formica is the independent owner of the McDonald's Ravena Franchise. Plaintiff was hired by Formica in September of 1992, as a management trainee in the hourly wage position of Swing Manager. She was subsequently promoted to the salaried position of Assistant Manager. Plaintiff's job responsibilities included "managing the floor" during her shifts.

 Plaintiff alleges that she was discriminatorily terminated from employment on May 6, 1995 due to her pregnancy. Defendants claim that Plaintiff's termination was due to her unsatisfactory job performance. Defendants maintain that Plaintiff had continuing difficulty in coping with the stress caused during busy mealtimes, which caused her to have several outbursts while working, and made it difficult and unproductive for crew members to work with her. These deficiencies were discussed in many of the weekly management team meetings during the course of her employment, and are documented in her personnel records. Because of these deficiencies, in December 1994, Plaintiff was placed on a one month probationary period. Thereafter, from January to May of 1995 until she was terminated, there is no written documentation of any problems with Plaintiff's performance.

 Discussion

 1. Human Rights Law Claim

 It is undisputed that Plaintiff is a member of a protected class and was discharged. However, the issue of whether Plaintiff satisfactorily performed her job is disputed. Defendants have produced documented evidence of ongoing dissatisfaction with Plaintiff's performance up until December of 1994. However, following a one-month period of probation, there is no documented evidence of performance problems in the four months immediately prior to Plaintiff's May 6, 1995 termination. Furthermore, the timing of Plaintiff's termination (one day before her pregnancy leave) and the lack of evidence of a precipitating event which caused her to be terminated gives rise to at least an inference of discrimination. At the prima facie stage the Plaintiff's burden is de minimis. Quarantino, 71 F.3d at 60; Jackson v. Lyons Falls Pulp & Paper, 865 F. Supp. 87, 95 (N.D.N.Y. 1994). Therefore, the Court finds that for purposes of establishing a prima facie case, Plaintiff has satisfactorily met her burden.

 Plaintiff having established a prima facie case, Defendants have come forth with legitimate nondiscriminatory reasons for Plaintiff's termination; i.e., documented evidence of Defendant's dissatisfaction with Plaintiff's job performance. The burden therefore shifts to Plaintiff to show pretext under the three step McDonnell Douglas analysis.

 
In order to survive a motion for summary judgment, at the third step plaintiff must put forth adequate evidence to support a rational finding that the legitimate non-discriminatory reasons proffered by the employer were false and that more likely than not the reasons proffered by the employer were false and that more likely than not the employee's sex or race [or pregnancy] was the real reason for the discharge.

 Holt at 129, citing Viola v. Philips Medical Systems of North America, 42 F.3d 712, 717 (2d Cir. 1994).

 As stated, the record reveals that (1) the Plaintiff was terminated one day prior to her scheduled pregnancy leave, (2) defendants have not produced a specific explanation or incident precipitating her termination on that date, and (3) there is an absence of negative reports concerning her performance during the fourth months prior to her termination. The Court finds that this evidence is sufficient to raise a material issue of fact whether Plaintiff's pregnancy was a substantial motivating factor in Defendant's decision to terminate her. See Burger v. New York Institute of Technology, 94 F.3d 830, 834 (2d Cir. 1996) (summary judgment improper where Plaintiff offered "sufficient evidence to allow-- although not compel-- a trier of fact to draw inference" that prohibited motive was a substantial factor in the adverse employment decision); Montana v. First Federal Savings and Loan Ass'n of Rochester, 869 F.2d 100, 104 (2d Cir. 1989) (summary judgment precluded where issue of fact raised as to pretext, and "... plaintiff was not required to show that age was the only factor ... nor was she required to show that [defendants'] proffered reason was false, but only that its stated reason was not the only reason and that her age ...


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