Id. at 2. Although the parties mutually agreed to extend the April 22nd deadline to July 1, 1994, see Carrillo Aff. P 28; Campbell Decl. Exh. 7 (6/28/94 Beek Letter), in the end no agreement was reached, and, accordingly, on July 1, 1994, NCC exercised its right to terminate plaintiff.
In the interim, plaintiff took medical leave. He therefore claims that his termination violated subdivision (1) and/or (2) of § 2615(a) of the FMLA. Subdivision (1) of that section states that "it shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under [the Act]." Subdivision (2) states that "it shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by [the Act]."
Neither subdivision is here applicable, however, because the FMLA further provides that an employee on protected leave is not entitled to any greater rights or benefits than he would be entitled to had he not taken the leave. See 29 U.S.C. § 2614(a)(3)(B); 29 C.F.R. § 825.216(a). Here, it is undisputed that the NCC had announced its determination to terminate plaintiff before he went on medical leave but deferred doing so only to provide an opportunity for the parties to try to negotiate a resignation agreement. It is equally undisputed that the NCC reserved the right to terminate plaintiff if no such agreement were negotiated by July 1st, and that it promptly did so. Thus, plaintiff was not denied any right, for none was preserved beyond July 1st. See Patterson v. Alltel Information Serv., Inc., 919 F. Supp. 500 (D. Me. 1996) (where employer decided to replace employee in account manager position before employee took medical leave but implemented decision while employee was on leave, employee was not entitled to account manager position upon return from leave); see also Lempres v. CBS Inc., 916 F. Supp. 15, 20 (D.D.C. 1996) ("The FMLA does not require employers to give returning employees any assurances of job security to which they would not have been entitled, prior to taking [sick] leave.").
Nor has plaintiff made out even a prima facie case of discrimination under the applicable test. See, e.g., Oswalt v. Sara Lee Corp., 889 F. Supp. 253 (N.D. Miss. 1995), aff'd, 74 F.3d 91 (5th Cir. 1996); McCown v. UOP, Inc., 1995 U.S. Dist. LEXIS 12655, No. 94 C 2179, 1995 WL 519818, at *7 (N.D. Ill. Aug. 30, 1995) ("The FMLA is not a shield to protect employees from legitimate disciplinary action by their employers if their performance is lacking in some manner unrelated to their FMLA leave.").
As to the defamation claim under state law, considerations of comity and judicial economy render it inappropriate for the Court to retain jurisdiction once the federal claim is dismissed on the merits. See United Mine Workers v. Gibbs, 383 U.S. 715, 726, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966); see also Morse v. University of Vermont, 973 F.2d 122, 128 (2d Cir. 1992) ("It may be an abuse of discretion for a district court to refuse to dismiss pendent state claims after it dismisses a federal claim.").
Accordingly, the Court hereby grants defendants' motion for summary judgment with respect to plaintiff's remaining federal claim and dismisses plaintiff's state claim for lack of jurisdiction. Clerk to enter judgment.
JED S. RAKOFF, U.S.D.J.
Dated: New York, New York
September 16, 1997