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
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, 465
(2d Cir. 1997) (analyzing retaliation claim under the ADEA)
(citing Dister v. Continental Group, Inc., 859 F.2d 1108, 1114
(2d Cir. 1988)); see also Bickerstaff, at 445-46; Donato v.
Plainview-Old Bethpage Cent. Sch. Dist., 96 F.3d 623, 633 (2d
Cir. 1996), cert. denied, 519 U.S. 1150, 117 S.Ct. 1083, 137
L.Ed.2d 218 (1997).
If a plaintiff succeeds in establishing a prima facie case, the
burden of production shifts to the employer to articulate a clear
and specific legitimate, nondiscriminatory reason for its
conduct. See Bickerstaff, at 445-46 ("The defendant's burden of
production also is not a demanding one; she need only offer such
an explanation for the employment decision."); Fisher, 114 F.3d
at 1335-36; Phipps, 53 F. Supp.2d at 559. "Although the burden
of production shifts to the defendant, the ultimate burden of
persuasion remains always with the plaintiff." Bickerstaff, at
446 (citing Hicks, 509 U.S. at 507, 511, 113 S.Ct. 2742); see
also Raskin v. The Wyatt Co., 125 F.3d 55, 64 (2d Cir. 1997).
If the employer satisfies this burden, "`the presumption raised
by the prima facie case is rebutted, and drops from the case.'"
Bickerstaff, at 446 (quoting Hicks, 509 U.S. at 510, 113
S.Ct. 2742 (internal quotations and citations omitted)). "The
plaintiff then has the opportunity to demonstrate `that the
proffered reason was not the true reason for the employment
decision,' and that race was." Fisher, 114 F.3d at 1336
(quoting Hicks, 509 U.S. at 507-08, 113 S.Ct. 2742). The
plaintiff's opportunity to show the employer's proffered reason
was false "now merges with her ultimate burden to persuade the
trier of fact that she has been the victim of intentional
discrimination." Bickerstaff, at
446 ("[A] Title VII plaintiff may not prevail by establishing
only [falsity], but must prove, in addition, that a motivating
reason was discrimination.") (bracket in original); see also
Hicks, 509 U.S. at 508, 113 S.Ct. 2742; Hollander v. American
Cyanamid Co., 172 F.3d 192, 199 (2d Cir.), cert. denied, ___
U.S. ___, 120 S.Ct. 399, 145 L.Ed.2d 311 (1999); Fisher, 114
F.3d at 1337; Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203
(2d Cir. 1995) ("[T]he plaintiff is not required to show that the
employer's proffered reasons were false or played no role in the
employment decision, but only that they were not the only reasons
and that the prohibited factor was at least one of the
In the case at bar, the Court assumes, without deciding, that
Plaintiff established a prima facie case of unlawful retaliatory
discharge under the FMLA. See, e.g., Bickerstaff, at 448-49;
Chaffin, 179 F.3d at 320; Roman v. Cornell Univ.,
53 F. Supp.2d 223, 235 (N.D.N.Y. 1999); Fierro v. Saks Fifth
Avenue, 13 F. Supp.2d 481, 488 (S.D.N.Y. 1998) (and cases cited
therein). Defendants, in turn, have met their burden by
proffering a nondiscriminatory reason for its employment decision
— namely, that Plaintiff was terminated because she did not
attend the mandatory annual manager's meeting after she was
cleared by her physician to return to work. See Def. Mem. of
Law at 22. Thus, the burden moves to Plaintiff to present
evidence which shows that Defendants' actions were motivated by
unlawful discrimination under the FMLA.
In attempting to satisfy her burden, Plaintiff principally
relies on two items: (1) the proximity between her return to work
following her FMLA leave and her termination; and (2) an alleged
statement by Michael Lynch, Sterling's Vice President of Employee
Relations that "we are not a family oriented company, we are a
business." These allegations, individually and in the aggregate,
are insufficient to demonstrate intentional discrimination to
support her FMLA retaliatory discharge claim.
Plaintiff does not dispute that she was informed that her
attendance at the meeting was required, and that her failure to
attend would result in her termination. See Pl. Dep. at 279-83.
Contrary to Plaintiff's wholly unsupported "impression" that the
manager's meeting was "an opportunity for managers to drink
alcohol and to attempt to engage in sexual relations with other
managers," Pl. Mem. of Law at 3-4, Plaintiff has failed to
provide the Court with any tangible evidence to show that
defendants' decision to require Plaintiff's attendance at the
meeting was "so lacking in merit as to call into question its
genuineness." Dister, 859 F.2d at 1116; see also Walsh v.
United Cable Techs. Servs. Corps. and Telecomms., Inc.,
46 F. Supp.2d 170, 173 (D.Conn. 1999). The FMLA does not immunize an
employee from legitimate disciplinary action by her employer for
reasons unrelated to the employee's FMLA leave. See Gunnell,
152 F.3d at 1262 ("[A]n employee who requests FMLA leave would
have no greater protection against his or her employment being
terminated for reasons not related to his or her FMLA request
than he or she did before submitting the request.") (citing
29 C.F.R. § 825.216(a)); Hite, 38 F. Supp.2d at 743; Clark v. New
York State Elec. & Gas Corp., 67 F. Supp.2d 63, 81 (N.D.N Y
1999) ("[A]n employee who is subject to termination due to
performance problems will not be insulated from termination by
the FMLA."); Carrillo v. The Nat'l Council of the Churches of
Christ, 976 F. Supp. 254, 256 (S.D.N.Y. 1997); McCown v. UOP,
Inc., 1995 WL 519818, at *7 (N.D.Ill. Aug.30, 1995); see also
Sepe v. McDonnell Douglas Corp., 176 F.3d 1113, 1115-16 (8th
Cir. 1999) (dismissing employee's claim of retaliatory discharge
under the FMLA where employee's termination was based on a
violation of the collective bargaining agreement), petition for
cert. filed, 68 USLW 3274 (Oct. 12, 1999). Indeed, Plaintiff has
not presented any evidence,
i.e., performance evaluations, internal memoranda, or attendance
records, which would belie Defendants' contention that Plaintiff
was fired for not attending the annual manager's meeting. See,
e.g., Hillman v. Hamilton College, 1998 WL 166827, at *9
(N.D.N.Y. Apr.9, 1998); McCown, 1995 WL 519818, at *7.
Moreover, the proximity of Plaintiff's termination is
insufficient, in and of itself, to support her retaliatory
discharge claim. See McCown, 1995 WL 519818, at *7 ("If timing
alone were sufficient, any employer who granted an employee leave
under the FMLA would thereafter have its hands tied regarding any
discipline of that employee.").
To establish her retaliatory discharge claim, Plaintiff
selectively reads the deposition testimony of District Manager
Greg Waidman to establish that, during the time he had been
employed with the company, Waidman was not aware of any manager
being fired for not attending the manager's meeting. See
Waidman Dep. at 45-46. Plaintiff omits, however, Waidman's answer
to the following question, where he states that, during that same
time, he has never known of any manager who did not attend the
manager's meeting. Id. at 46. Notably, Waidman, who joined in
the decision to promote Plaintiff to the manager's position while
aware that she was pregnant, left the company prior to
Plaintiff's termination.*fn4 See, e.g., Legendre v. Chase
Manhattan Bank, 1996 WL 514874, at *6 (S.D.N.Y. Sept.10, 1996)
(citing Corcoran v. GAB Business Servs., Inc., 723 F. Supp. 966,
968-69 (S.D.N.Y. 1989) (isolated comments by individuals with no
involvement in decision to terminate insufficient to support
inference of discrimination)). Equally unavailing is Plaintiff's
attempt to establish pretext through Lynch's isolated comment
that, "we are not a family oriented company, we are a business."
Even assuming that Lynch made that statement, it is hardly
sufficient, in and of itself, from which to infer discriminatory
animus. See, e.g., Chaffin, 179 F.3d at 320. Because the Court
finds that Plaintiff has failed to present competent evidence of
pretext to withstand summary judgment on her FMLA retaliatory
claim, Defendants' motion for summary judgment with respect to
that claim is granted.
C. Interference With Plaintiff's Rights Under the FMLA
As an alternate theory of recovery under the FMLA, Plaintiff
alleges that Defendants interfered with her right under the FMLA
to take up to twelve weeks of unpaid leave per year in connection
with the birth of her child. See 29 U.S.C. § 2612(a)(1)(A).
The right of an employee to take up to twelve weeks of unpaid
leave in connection with the birth of her child is classified as
a substantive right or entitlement under the FMLA. See King,
166 F.3d at 891; Hodgens, 144 F.3d at 159 (citing Diaz v. Fort
Wayne Foundry Corp., 131 F.3d 711, 712-13 (7th Cir. 1997)); see
also Gunnell, 152 F.3d at 1262 (employee's claim that her
employer interfered with the exercise of her FMLA rights by
terminating her employment brought pursuant to
29 U.S.C. § 2615(a)(1)). Because the intent of the employer is not relevant
for claims under section 2615(a)(1), the central issue is whether
the plaintiff has "demonstrate[d] by a preponderance of the
evidence [an] entitlement to the disputed leave." King, 166
F.3d at 891; see also Diaz, 131 F.3d at 713; Hodgens, 144
F.3d at 159 ("Because the issue is the right to an entitlement,
the employee is due the benefit if the statutory requirements are
satisfied, regardless of the intent of the employer.");
Belgrave, 1999 WL 692034, at *42 n. 38.
In order to make out a case for the denial of, or interference
with benefits under 29 U.S.C. § 2615(a)(1), a plaintiff must
establish that: "(1) [s]he is an eligible employee under the
FMLA, as defined in 29 U.S.C. § 2611(2); (2) the defendant is an
employer under the FMLA, as defined in 29 U.S.C. § 2611(4);
(3)[s]he was entitled to take leave under the FMLA, as defined in
29 U.S.C. § 2612(a)(1); (4)[s]he gave notice to the defendant of
[her] intention to take leave, as defined in
29 U.S.C. § 2612(e)(1) and 29 C.F.R. § 825.302.303; and (5) the defendant
denied [her] the benefits to which [s]he was entitled under the
FMLA." Belgrave, 1999 WL 692034, at *43 (citations omitted).
Assuming, without deciding, that Plaintiff has satisfied her
burden with respect to the first four elements, the Court finds
that Plaintiff has failed to satisfy her burden with respect to
the fifth element — namely, that Defendants interfered with her
right to take medical leave in connection with the birth of her
It is undisputed that Plaintiff was granted FMLA leave (as she
requested) in early July 1996. Prior to that time, Plaintiff was
on intermittent leave as her work hours were reduced to four
hours a day, or twenty hours a week. Plaintiff was aware that her
reduced work hours would be applied against her FMLA leave. See
Aff. of Greg A. Riolo, Ex. C, at 232 (excerpt from Deposition of
Christine Bond). Plaintiff did not return to work until September
1996, after her physician approved her return to work.
Significantly, Plaintiff acknowledges that she returned to work
only "after her Family and Medical Leave was exhausted." Pl. Mem.
of Law at 4. Moreover, Plaintiff does not allege, nor does the
record reflect, that Defendants discouraged Plaintiff from taking
her leave, or set any conditions in return for granting
Plaintiff's request for leave. Since Plaintiff was given the
leave which she requested and was entitled to under the FMLA (a
fact she does not dispute), her claim under section 2615(a)(1)
that defendants interfered with that right must be dismissed.
See Sarno v. Douglas Elliman-Gibbons & Ives, Inc.,
183 F.3d 155, 161 (2d Cir. 1999) ("It is undisputed that . . . [defendant]
informed [plaintiff] that it would treat his absence as FMLA
leave; that [plaintiff] was entitled to a maximum of 12 workweeks
of leave under [section] 2612(a)(1)(D); and that he received
those 12 weeks of leave."); Belgrave, 1999 WL 692034, at *45.
Because the Court finds that Plaintiff has failed to present
competent evidence to withstand summary judgment on her FMLA
interference claim, Defendants' motion for summary judgment with
respect to that claim is granted.
Having dismissed Plaintiff's federal cause of action under the
FMLA, the Court declines to exercise supplemental jurisdiction
over Plaintiff's remaining state law claims.*fn5 See
28 U.S.C. § 1367(c)(3); Shenandoah v. United States Dep't of the
Interior, 159 F.3d 708, 714 (2d Cir. 1998); Castellano v. City
of New York, 142 F.3d 58, 74 (2d Cir. 1998); see also Graham,
at 1282 ("If no federal claim survives summary judgment, the
court sees no reason why the other claims should not be dismissed
or remanded pursuant to 28 U.S.C. § 1367(c)(3).").
For all of the foregoing reasons, Defendants' motion for
summary judgment with respect to Plaintiff's FMLA claim is
GRANTED, and the remaining state law claims are dismissed without
prejudice for lack of jurisdiction.
IT IS SO ORDERED.