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November 26, 1999


The opinion of the court was delivered by: McAVOY, Chief Judge.


Plaintiff Christine Bond ("Plaintiff" or "Bond") brings the instant action against defendants Sterling, Inc., Kay Jewelers, Inc., and Sterling Jewelers, Inc. (collectively "Defendants"), her former employers, alleging sex and pregnancy-based discrimination in violation of N.Y. EXEC. LAW § 296; interference with her rights under the Family Medical Leave Act ("FMLA"), in violation of 29 U.S.C. § 2615(a)(1), and retaliatory discharge for exercising her FMLA rights, in violation of 29 U.S.C. § 2615(a)(2);*fn1 and unlawful use of Plaintiff's name for advertising and trade purposes, in violation of N.Y. CIV. RIGHTS LAW §§ 50, 51.*fn2 Plaintiff seeks compensatory and punitive damages.

Presently before the Court is defendants' motion for summary judgment pursuant to FED. R. CIV. P. 56 seeking dismissal of the Complaint in its entirety. Familiarity with the factual background and procedural history stated in the Court's previous Memorandum-Decision & Order is assumed. See Bond v. Sterling, Inc., 997 F. Supp. 306 (N.D.N.Y. 1998).

I. Discussion

A. The Standard for Summary Judgment

The standard for summary judgment is well-settled. Under FED. R. CIV. P. 56(c), if there is no genuine issue as to any material fact, the moving party is entitled to a judgment as a matter of law "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); see also Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 86 (1996). The moving party bears the initial burden of "informing the . . . court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting FED. R. CIV. P. 56(c)). The initial burden is to demonstrate "that there is an absence of evidence to support the nonmoving party's case." Id. at 325, 106 S.Ct. 2548.

Once the moving party has met its burden, the non-moving party must come forward with specific facts showing that there is a genuine issue for trial. See Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548; Matsushita, 475 U.S. at 585-86, 106 S.Ct. 1348. A dispute regarding a material fact is genuine if a reasonable jury could return a verdict for the non-moving party; that is, whether the non-movant's case, if proved at trial, would be sufficient to survive a motion for judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When reasonable minds, however, could not differ as to the import of the evidence, then summary judgment is proper. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849, 112 S.Ct. 152, 116 L.Ed.2d 117 (1991).

Although the trial court must resolve all ambiguities and draw all inferences in favor of that party against whom summary judgment is sought, Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir. 1989); Eastway Constr. Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985) cert. denied, 484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987), the motion will not be defeated by a non-movant who raises merely a "metaphysical doubt" concerning the facts or who only offers conjecture or surmise. Delaware & Hudson Ry. Co. v. Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990), cert. denied, 500 U.S. 928, 111 S.Ct. 2041, 114 L.Ed.2d 125 (1991) (quoting Matsushita, 475 U.S. at 586, 106 S.Ct. 1348); see also Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990). Indeed, the non-moving party's opposition may not rest on mere allegations or denials of the moving party's pleading, but "must set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e).

Although the Court is mindful that "summary judgment is ordinarily inappropriate where an individual's intent and state of mind are implicated," Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert. denied, 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985), it is clear that "conclusory allegations of discrimination are insufficient to satisfy the requirements of Rule 56(e)." Id. (citations omitted); see also Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997).

Because this Court's jurisdiction over Plaintiff's state law claims depends on the viability of her federal claim under the FMLA, the Court will first address the claim over which it has original jurisdiction before it considers, if necessary, Plaintiff's state law claims.*fn3

B. Retaliatory Discharge Claim Under the FMLA

The FMLA provides protection to an employee in cases where an employee is discriminated against for exercising rights provided to him or her under the FMLA. Specifically, "`[a]n employer is prohibited from discriminating against employees . . . who have used FMLA leave.'" King v. Preferred Technical Group, 166 F.3d 887, 891 (7th Cir. 1999) (quoting 29 C.F.R. § 825.220(c)). "Nor may employers `use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions.'" Hodgens v. General Dynamics Corp., 144 F.3d 151, 160 (1st Cir. 1998) (quoting 29 C.F.R. § 825.220(c)). These provisions "proscribe" certain conduct by an employer; for example, an employer may not "retaliate[] against [an employee] for taking leave under the FMLA or engaging in other protected activities." Belgrave v. City of New York, 1999 WL 692034, at *42 (E.D.N.Y. Aug.31, 1999). Because the issue in these cases is "whether the employer's actions were motivated by an impermissible retaliatory or discriminatory animus," Hite v. Biomet, 38 F. Supp.2d 720, 739 (N.D.Ind.), reconsideration denied, 53 F. Supp.2d 1013 (1999), the question of the employer's intent is relevant. See King, 166 F.3d at 891; Hodgens, 144 F.3d at 160.

In cases where a plaintiff has alleged a retaliatory discharge claim under the FMLA, courts have borrowed the framework employed in cases brought under Title VII. See Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282-83 (11th Cir. 1999); Chaffin v. John H. Carter Co., Inc., 179 F.3d 316, 319 (5th Cir. 1999); King, 166 F.3d at 891 ("When a plaintiff alleges a retaliatory discharge under the FMLA, the plaintiff must similarly establish that the employer engaged in intentional discrimination."); Hodgens, 144 F.3d at 160; Belgrave, 1999 WL 692034, at *42 n. 38 ("Although the Second Circuit has not decided the issue, other courts of appeals have held that FMLA retaliation claims are covered by the McDonnell Douglas analysis"); Dumoulin v. Formica, 968 F. Supp. 68, 71 (N.D.N.Y. 1997).

Under the familiar burden-shifting paradigm set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 803, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), a plaintiff claiming discrimination must first satisfy the de minimis burden of establishing, by a preponderance of the evidence, a prima facie case of retaliation. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-07, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Bickerstaff v. Vassar College, 196 F.3d 435, 445-46 (2d Cir. 1999); Fisher v. Vassar College, 114 F.3d 1332, 1335, 1340 & n. 7 (2d Cir. 1997) (en banc), cert. denied, 522 U.S. 1075, 118 S.Ct. 851, 139 L.Ed.2d 752 (1998); Phipps v. New York State Dep't of Labor, 53 F. Supp.2d 551, 559 (N.D.N.Y. 1999). To make out a prima facie case of retaliation, Plaintiff must show that (1) she availed herself of a protected right under the FMLA; (2) she was adversely affected by an employment decision; and (3) there is a causal connection between the employee's protected activity and the employer's adverse employment action. See Hodgens, 144 F.3d at 161; Graham, 193 F.3d 1274, 1282-83. Courts have held that the plaintiff's burden at this stage is slight, and "[a plaintiff] may establish a prima facie case with de minimis evidence." Wanamaker v. Columbian Rope Co., 108 F.3d 462, ...

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