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October 10, 1997


William C. Conner, Senior United States District Judge.

The opinion of the court was delivered by: CONNER

Conner, Senior D.J.:

 Plaintiff Carolann Lacoparra brings this action against Pergament Home Centers, Inc. ("Pergament"), her former employer, alleging that Pergament wrongfully terminated her in violation of the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601, et seq. ; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., as amended by the Pregnancy Discrimination Act ("PDA"), 42 U.S.C. § 2000e(k); the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq. ; *fn1" and the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 296. In addition, Lacoparra seeks sanctions under Section 502(c) of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1132(c), and recovery under state law for intentional infliction of emotional distress. *fn2"

 Pergament moves for summary judgment on all claims; Lacoparra cross-moves for summary judgment on her ERISA claim. Having considered both motions, we grant summary judgment in favor of Pergament with respect to all claims and accordingly deny Lacoparra's cross-motion.


 Carolann Lacoparra was hired in October 1992 as a full-time hourly associate in Pergament's Peekskill store. Lacoparra elected to participate in Pergament's health and life insurance plans.

 At the end of March 1993, Lacoparra commenced a maternity leave. At the time, Pergament had an unwritten policy permitting employees an unpaid twelve-week leave of absence for medical reasons. Toward the end of August 1993, after an absence of approximately five months, Lacoparra returned to work at the Peekskill store in substantially the same position.

 On April 15, 1994, Lacoparra began another maternity leave. The leave was necessitated by complications Lacoparra was having with her pregnancy. At the time of this second leave, Pergament had adopted an unpaid leave policy pursuant to the Family and Medical Leave Act of 1993 ("FMLA"), which was enacted around the time Lacoparra returned from her first maternity leave. Pergament's FMLA policy was substantially the same as its pre-FMLA policy: twelve weeks of unpaid leave per year.

 After she began the second maternity leave, six months passed without any contact between Lacoparra and Pergament. Lacoparra, despite shopping at the Peekskill store several times during those six months, made no attempt to notify Pergament about when or whether she intended to return to work. At the same time, even after the twelve-week period had expired and despite continuing to pay Lacoparra's portion of her medical insurance premiums, Pergament never contacted Lacoparra to inquire about her progress or intended return date.

 On or about October 13, 1994, Pergament terminated Lacoparra. It did not notify her of her discharge.


 I. Summary Judgment Standard

 Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(d). A genuine issue for trial exists if, based on the record as a whole, a reasonable jury could find in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). On a motion for summary judgment, all evidence must be viewed and all inferences must be drawn in the light most favorable to the non-moving party. City of Yonkers v. Otis Elevator Co., 844 F.2d 42, 45 (2d Cir. 1988).

 The party seeking summary judgment bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Upon the movant's satisfying that burden, the onus then shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 250. At this stage, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Bald assertions or conjecture unsupported by evidence are insufficient to overcome a motion for summary judgment. Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991); Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990).

 Summary judgment should be employed sparingly in employment discrimination cases where the employer's intent, motivation, or state of mind are at issue. Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994); Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988) (citing Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985)). A plaintiff "must nevertheless offer 'concrete evidence from which a reasonable juror could return a verdict in [her] favor,' Liberty Lobby, 477 U.S. at 256 . . ., and is not entitled to a trial simply because the determinative issue focuses upon the defendant's state of mind." Dister, 859 F.2d at 1114. Moreover, "the summary judgment rule would be rendered sterile . . . if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion. Indeed, the salutary purposes of summary judgment -- avoiding protracted, expensive, and harassing trials -- apply no less to discrimination cases than to commercial or other areas of litigation." Meiri, 759 F. Supp. at 998; cf. McLee v. Chrysler Corp., 38 F.3d 67 (2d Cir. 1994) (issuing writ of mandamus where district judge, under the impression that the Second Circuit had precluded grants of summary judgment in employment discrimination cases, declined to consider whether summary judgment was appropriate). This is particularly true where, as here, full discovery has taken place. Dister, 859 F.2d at 1114.

 II. Family and Medical Leave Act

 In her First Cause of Action, Lacoparra claims that her termination was in violation of the Family and Medical Leave Act of 1993 ("FMLA").

 The FMLA was enacted to balance the demands of the workplace with the needs of families by enabling workers to take reasonable leave to care for children and sick family members. See 29 U.S.C. § 2601(b). The FMLA entitles eligible employees to take up to twelve weeks of unpaid leave in a twelve-month period because of, inter alia, the birth of a child or a serious health condition that makes the employee unable to perform the functions of her job. Id. § 2612(a). Following such a leave, the employee is entitled to reinstatement to her former position or an equivalent one. Id. § 2614(a). The FMLA prohibits employers from interfering with, restraining, or denying the exercise of any right provided by the statute. Id. § 2615(a)(1).

 The parties disagree as to whether Lacoparra was ever eligible for FMLA benefits. The FMLA defines an "eligible employee" as one who has been employed (1) for at least twelve months by the current employer, and (2) for at least 1250 hours of service with that employer during the previous twelve-month period. Id. § 2611(2)(A). To determine "hours of service," the FMLA instructs that the legal standards employed by the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 207, shall apply. Id. § 2611(2)(C). Under the FLSA, hours of service include only those hours that an employee actually works; time off for vacation, holiday, or illness is excluded. Id. § 207(e)(2).

 Second, Lacoparra asserts that Pergament's calculation ignores her "off the clock" hours of service. (Pl. Mem. at 12.) However, she has provided no evidence of any such hours.

 Third, Lacoparra argues that because she received Pergament's health and life insurance benefits at all relevant times, she must have worked at least 1250 hours. (Id. at 11.) She points out that in order to qualify for the company's benefits, an employee must be classified as a "full-time" employee. (See Luckwaldt Dep. at 76.) Lacoparra received health and life insurance benefits at all times during her employment with Pergament, and her employee profile form classified her as "full time." (Id. at 76-77.) Pergament's full-time employees are required to work at least 40 hours per week. (Id. at 75.) From this Lacoparra concludes that she must have worked at least 40 hours in each of the 36 weeks for which she received pay between April 1993 and April 1994 -- a total that would put her above the 1250 FMLA minimum. (See Pl. Mem. at 11.)

 For several reasons, Lacoparra's classification as a full-time employee is not sufficiently probative of whether she actually worked 40-hour weeks. We need not explore these reasons, however, for Lacoparra has herself admitted that since returning from her first maternity leave in August 1993, she rarely worked 40 hours per week. (See Lacoparra Dep. at 107.) Her own testimony contradicts the inference that she urges and suggests that her argument is less than candid.

 Finally, Lacoparra notes that in the FMLA log kept by Deborah Luckwaldt, Pergament's Manager of Benefits Administration, Luckwaldt wrote "OK" and signed her initials in the "Eligibility Checked" box. (See FMLA Log, Krouner Affirmation, Exh. D.) She argues that this constitutes an admission on the part of Pergament that she was eligible for FMLA benefits. (Pl. Mem. at 12.) We are not inclined to agree. Luckwaldt's testimony suggests that she never actually checked the number of hours Lacoparra had worked between April 1993 and April 1994, but rather just assumed that Lacoparra was eligible because she had been a Pergament employee for over twelve months in accordance with the FMLA and was listed as a full-time employee. (See Luckwaldt Dep. at 66, 135.) However, without deciding whether these competing contentions create a jury question, we note that even if we assume that Lacoparra did not work the requisite 1250 hours and thus does not fall under the FMLA's definition of an "eligible employee," she may nevertheless be entitled to FMLA protection if Pergament wrongfully caused her ineligibility.

 As noted above, the FMLA 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 statute or its regulations. 29 U.S.C. § 2615(a)(1); 29 C.F.R. § 825.220(a), (b). *fn5" At least one court has indicated that the failure of an employer to provide an employee with the statutorily-required notice of its FMLA policies may interfere with the employee's exercise of her FMLA rights "by depriving [her] of the opportunity to choose to remain within the protection of the FMLA." Fry v. First Fidelity Bancorp., 1996 U.S. Dist. LEXIS 875, No. 95-6019, 1996 WL 36910, at *4 (E.D. Pa. Jan. 30, 1996). We agree that an employer's failure to provide adequate notice of FMLA procedures may constitute interference with an employee's FMLA rights if it causes the employee to forfeit FMLA protections. See id. at *5. Therefore, even if Lacoparra falls short of the 1250-hour eligibility minimum, she can overcome this infirmity if (1) the shortfall resulted from Pergament failing to provide adequate notice of her FMLA rights and obligations, and (2) the lack of information actually caused her to forfeit an FMLA entitlement.

 Lacoparra alleges that Pergament provided insufficient notice of her rights and responsibilities under the FMLA. The FMLA requires that employers post conspicuous notices of pertinent FMLA requirements. 29 U.S.C. § 2619(a); see also 29 C.F.R. § 825.300(a) (1994). In addition, FMLA regulations promulgated by the United States Department of Labor provide that information concerning FMLA entitlements and obligations must be included in any written materials, such as an employee handbook, advising employees of the employer's benefits or leave policies. 29 C.F.R. § 825.301(a)(1). Whether or not such written materials are distributed, "when an employee provides notice of the need for FMLA leave, the employer shall provide the employee with notice detailing the specific ...

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