The opinion of the court was delivered by: McAVOY, Chief Judge.
MEMORANDUM-DECISION & ORDER
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
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).
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
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, ...