United States District Court, Western District of New York
March 7, 2002
LAUREL MULLIN, PLAINTIFF
ROCHESTER MANPOWER, INC.; MANPOWER, INC.; AND MARYANN DEE, DEFENDANTS
The opinion of the court was delivered by: Charles J. Siragusa, United States District Judge
DECISION and ORDER
Plaintiff raises claims under the Civil Rights Act of 1964, Title VII,
the Family & Medical Leave Act and the New York State Human Rights law.
Previously, on January 17, 2002, this Court entered a decision and order
granting plaintiff's application to amend her complaint. The case is now
before the Court on defendants' motion for summary judgment (docket # 19)
seeking dismissal of the Amended Complaint. For the reasons stated
below, defendants' motion is granted in part and denied in part.
Rochester Manpower, Inc., is a domestic corporation with its principal
place of business in Fairport, New York. Manpower, Inc., is a foreign
corporation not authorized
to conduct business in the state of New York
and has its principal place of business in Milwaukee, Wisconsin. Maryann
Dee is an employee of Rochester Manpower, Inc., and was one of
plaintiff's supervisors at or near the time of plaintiff's termination.
Plaintiff was employed by Rochester Manpower, Inc., from November 15,
1995, until June 8, 1999. Robert Capo was the manager of the Fairport*fn2
branch of Rochester Manpower, Inc., from approximately December 1998
through January 2001 and was also one of plaintiff's supervisors at or
near the time of her termination.
In 1997, plaintiff had a child and took a six-week maternity leave from
her employment. Plaintiff was not required to submit a written request to
take maternity leave. Mullin dep. at 55. At that time, she was a "Service
Representative" at the Fairport branch. In January 1998, upon her return
to work following her maternity leave, Rochester Manpower, Inc., agreed
to adjust her work schedule to allow her more time with her newborn. This
accommodation in her working hours was granted by her then supervisor,
Giannina Naylon, who cleared it with Maryann Dee. Mullin dep. at 57-59.
Approximately in June 1998, plaintiff was promoted to the position of
"branch supervisor" at the Fairport office. On or about August 1, 1998,
plaintiff's annual salary was increased from $27,875.00 to $30,000.00.
On about May 19, 1999, plaintiff confidentially informed her
supervisor, Capo, that she was pregnant. In that regard, she testified in
her deposition as follows:
I did tell him that I just learned, I believe that day
I had gotten off the phone with my doctor's office and
I just learned that I was pregnant. I knew that, you
know, we'd have to have a plan in place. he had been
talking about Debbie Delaney who was a part-time
interviewer, perhaps bringing her upon in the fall as
a service representative. And I said, you know, maybe
if that was — I said with me being pregnant that
might be a good time to train, get her up and
running, et cetera. I said I know that there would be
a lot of plans that would need to be made so I wanted
to let him know right away. And I asked him not to say
anything, as I had miscarried before my daughter was
born. So I said, "A lot of things can happen to first
trimester. Can we please just keep it between us but
keep it in mind, as we'll have to have a plan in place
for the rest of the year."
Mullin dep. at 99. Capo asked her when she was due, and she responded
that she was only about five weeks along and her due date would not be
until January. Mullin dep. at 100.
On or about June 7, 1999, Capo asked plaintiff what her commitment was
to the office and stated to her that he needed a "what ever-it-takes
attitude" from her and, further, needed to know if she was "with him."
Mullin affidavit at 2. The following day, Capo informed plaintiff she was
being terminated for financial reasons. Mullin affidavit at 2. The day
after that, Capo informed plaintiff she was being terminated for both
financial and performance reasons. Then, two days later, on June 11,
1999, Dee told her she was being terminated for financial, not
performance-related, reasons. Mullin affidavit at 2. However, in
26, 1999, letter from defense counsel to plaintiff's counsel, it was
represented that after reviewing plaintiff's work history and discussing
the matter with the president of Rochester Manpower, Inc., Robert G.
Lewis, the plaintiff was being terminated for both financial and
performance reasons. Id. On Sept. 21, 1999, defendants reported to the
Equal Employment Opportunity Commission that plaintiff's work performance
was questionable, and she was being terminated for financial reasons.
Id. Mullin affidavit at 3. Yet, in a deposition on May 1, 2001, Capo
described plaintiff as a "good worker." Capo dep. at 83.
Steve Schiano, the Controller or Chief Financial Officer of Rochester
Manpower, Inc. since May 1995, in an affidavit submitted in support of
defendants' application for summary stated,
[a]s a result of poor performance in the second
quarter and the fact that staff expenses remained well
above the benchmark, I recommended that staff be cut
at the Fairport branch in order to improve the
financial condition of the branch. I made this
recommendation at a meeting with Lewis, Robert Capo .
. ., and Dee at some point during the second quarter
Schiano aff. at 2-3 (emphasis). There is no dispute that the second
quarter was not complete until the end of June 1999.
Summary Judgment Standard
The law on summary judgment is well settled. Summary judgment may only
be granted 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 judgment as a matter of law." FED. R. CIV. P. 56(c).
That is, the burden is on the moving party to demonstrate that the
evidence creates no genuine issue of material fact. See Amaker v. Foley,
___ F.3d ___, 2001 U.S. App. LEXIS 26832, *8 (2d Cir., No. 01-0018, Dec.
17, 2001); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3d Cir. 1987)
(en banc). Where the non-moving party will bear the burden of proof at
trial, the party moving for summary judgment may meet its burden by
showing the "evidentiary materials of record, if reduced to admissible
evidence, would be insufficient to carry the non-movant's burden of proof
at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
Once the moving party has met its initial obligation, the opposing
party must produce evidentiary proof in admissible form sufficient to
raise a material question of fact to defeat a motion for summary
judgment, or in the alternative, demonstrate an acceptable excuse for its
failure to meet this requirement. Duplantis v. Shell Off-Shore, Inc.,
948 F.2d 187 (5th Cir. 1991); Fed.R.Civ.P. 56(f). Mere conclusions or
unsubstantiated allegations or assertions on the part of the opposing
party are insufficient to defeat a motion for summary judgment. Knight v.
United States Fire Ins. Co., 804 F.2d 9 (2d Cir. 1986). The Court, of
course, must examine the facts in the light most favorable to the party
opposing summary judgment, according the non-moving party every inference
which may be drawn from the facts presented. See Doe v. Dep't of Pub.
Safety ex rel. Lee, 271 F.3d 38, 47 (2d Cir. 2001); International Raw
Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946 (3d Cir. 1990).
However, the party opposing summary judgment "may not create an issue of
fact by submitting an affidavit in opposition to a summary judgment
motion that, by omission or addition, contradicts the affiant's previous
deposition testimony." Hayes v. New York City, Department of
Corrections, 84 F.3d 614, 619 (2d Cir. 1996). It is equally well settled
that in diversity actions federal court sits and operates
as if it were
"`only another court of the state,'" and must apply state substantiative
law. GTFM, LLC v. TKN Sales, Inc., 257 F.3d 235, 241 (2d Cir. 2001)
(quoting Guaranty Trust Co. v. York, 326 U.S. 99, 109 (1945)).
Defendants' Motion Regarding Manpower, Inc.
Plaintiff's Amended Complaint contains seven causes of action. Of
those, three are against defendant Manpower, Inc. In her memorandum of
law (docket # 26), at 30, plaintiff concedes that Manpower, Inc., cannot
be vicariously liable for actions taken by Rochester Manpower, Inc.
Thus, plaintiff does not oppose defendants' motion for summary judgment
relative to the claims against Manpower, Inc. Therefore, the Court
dismisses the causes of action against Manpower, Inc., which are the
second, fourth and seventh causes of action.
Family and Medical Leave Act, Title VII, Pregnancy Discrimination Act &
New York Human Rights Law.
Title 29 U.S. Code § 2612(a)(1) entitles an eligible employee to a
total of twelve workweeks of leave during any twelve month period for the
birth of a son or daughter, or in order to care for a son or a daughter.
The term "eligible employee" is defined in § 2611(2)(A) as an
employee who has been employed for at least twelve months by the employer
with respect to whom leave is requested under § 2612 and for at least
one thousand two hundred fifty hours of service with such employer during
the previous twelve month period. In her amended complaint, plaintiff
adds sufficient factual allegations to prove that she was an eligible
employee. See Amended Complaint at ¶¶ 12-13. In addition, the
statute also defines the term "employer" under § 2611(4) as any
person engaged in commerce or in any industry or activity affecting
commerce who employs fifty or more employees for each working day during
each of twenty or more calendar workweeks in the current or preceding
calendar year. Again, in her proposed amended complaint, plaintiff
alleges facts sufficient to show that Rochester Manpower, Inc. qualifies
as an employer under 29 U.S. Code § 2611.
Plaintiff also asserts a claim under Title VII of the Civil Rights Act
of 1964, codified in 42 U.S. Code § 2000e et seq., and the Pregnancy
Discrimination Act. Title 42 U.S. Code § 2000e-II(a), states in
It shall be an unlawful employment practice for an
employer — to fail or refuse to hire or to
discharge any individual, or otherwise to discriminate
against any individual with respect to his
compensation, terms, condition, or privileges of
employment because of such individual's race, color,
religion, sex, or national origin. . . .
The definitional section of that statute, 42 U.S. Code § 2000e(k),
states that the terms "because of sex" or "on the basis of sex" include,
but are not limited to, because of or on the basis of
pregnancy, child birth, or related medical
conditions; and woman affected by pregnancy, child
birth, or related medical conditions shall be treated
the same for all employment-related purposes,
including receipt of benefits under fringe benefit
programs, as other persons not so affected but similar
in their ability or inability to work, an nothing in
§ 2000e-II(h) of this Title shall be interpreted
to permit otherwise. . . .
Finally, plaintiff makes a claim under the New York State Human Rights
Law, codified at New York Executive Law § 296. That statute makes it
an unlawful discriminatory practice
for an employer or licensing agency, because of the
age, race, creed, color, national
disability, genetic predisposition or carrier status,
or marital status of any individual, to refuse to hire
or employ or to bar or to discharge from employment
such individual or to discriminate against such
individual in compensation or in terms, conditions or
privileges of employment.
N.Y. EXEC. LAW § 296(1)(A). That statute also makes it an unlawful
employment practice, "for an employer to compel an employee who us
pregnant to take a leave of absence, unless the employee is prevented by
such pregnancy from performing the activities involved in the job or
occupation in a reasonable manner." N.Y. EXEC. LAW § 296(1)(g). The
Court notes that the elements of Title VII and New York Discrimination
Law claims are virtually identical. See, Clark v. New York State Electric
and Gas Corp., 67 F. Supp.2d 63 (N.D.N.Y. 1999).
McDonnell Douglas Standard
Discrimination claims under Title VII of the Civil Rights Act of 1964
("Title VII") and under the Pregnancy Discrimination Act, as well as
pregnancy discrimination claims under New York's Human Rights Law are
governed by the three-part analytical framework set forth by the Supreme
Court in McDonnell Douglas Corp. v. Greene, 411 U.S. 792 (1973). See
Flores v. Buy Buy Baby, Inc., 118 F. Supp.2d 425, 430 (S.D.N.Y. 2000)
(applying McDonnell Douglas to a PDA claim); Klausner v. Industrial Risk
Insurers, Inc., 1999 U.S. Dist. LEXIS 10219, 1999 WL 476285, at *3
(S.D.N.Y. July 8, 1999) (applying McDonnel Douglas to N.Y. Human Rights
Law claim). Under the McDonnell Douglas standard, a plaintiff bears the
burden of proof and must ultimately establish, by a preponderance of the
evidence, (1) membership in a protected group; (2) qualification for a
position; (3) an adverse employment action; and (4) that the adverse
employment action occurred under circumstances giving rise to an
inference of discrimination. See Shumway v. United Parcel Service, Inc.,
118 F.3d 60, 63 (2d Cir. 1997). To establish that the adverse employment
action occurred under circumstances giving rise to an inference of
discrimination, a plaintiff may demonstrate that "similarly situated"
employees who do not share the plaintiff's protected characteristics were
treated preferentially. Id.
Requirements for establishing a prima facie case are minimal. See
Austin v. Ford Models, Inc., 149 F.3d 148, 152 (2d Cir. 1998). If a
plaintiff is successful in demonstrating her prima facie case, then the
burden shifts to his employer to articulate a legitimate,
non-discriminatory purpose for its adverse employment action. Id. at 153
(citing McDonnell Douglas, Corp. v. Greene, 411 U.S. 792, 802 (1973)).
The Second Circuit has held that "[a]ny such stated purpose is sufficient
to satisfy the defendant's burden of production; the employer does not
have to persuade the court that the stated purpose was the actual reason
for its decision." Austin v. Ford Model, Inc., 149 F.3d at 153.
Once the employer satisfies its burden, a plaintiff may prevail only if
she presents evidence that the employer's proffered reasons are a pretext
for discrimination. Id. A plaintiff, to demonstrate pretext, must show
both that the proffered reason was false and that discrimination was the
real reason. Id. In applying the McDonnel Douglas criteria to a case
under the Age Discrimination in Employment Act, the Supreme Court has
held that a plaintiff's prima facie case, combined with sufficient
evidence for a reasonable fact finder to reject the employer's
nondiscriminatory explanation for its decision, may be adequate to
sustain a finding of liability for intentional discrimination. See Reeves
v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
147 (2000). Justice O'Connor, writing for a unanimous Court, said, "[i]n
appropriate circumstances, the trier of fact can reasonably infer from the
falsity of the explanation that the employer is dissembling to cover up a
discriminatory purpose." Id.; see also Regional Economic Community Action
Program, Inc. v. United States, ___ F.3d ___, 2002 U.S. App. LEXIS 1769,
*26 (2d Cir., Nos. 00-6318 & 00-6354, Feb. 5, 2002).
Defendant's Motion to Dismiss the Family and Medical Leave Act Claims
Defendants' brief in support of their motion for summary judgment
("Defendants' Brief") asserts that plaintiff has not to submitted
sufficient evidence to establish that she requested a leave of absence
under the Family and Medical Leave Act ("FMLA"). They cited to
29 C.F.R. § 825.302(c) which provides in pertinent part:
[a]n employee shall provide at least verbal notice
sufficient to make the employer aware that the
employee needs FMLA- qualifying leave, and the
anticipated timing and duration of the Lee. The
employee need not expressly assert rights under the
FMLA or even mention the FMLA, but may only state that
leave is needed for unexpected childbirth or
adoption. . . .
Defendants argue that an employee must, at a minimum, request time off
from work, "sufficient to qualify the employee for FMLA protection and
thereby trigger the employers obligations with respect to the employee is
FMLA rights." Defendants' Brief at 2. Defendants state that in this
regard, "[i]t is not enough that the employee notify the employee core of
circumstances that may at some undetermined to point in the future
ultimately lead to the need for a leave of absence. Rather, the employee
must request an actual leave of absence from employment in order to
trigger the provisions of the FMLA." Id. Defendants rely in part on a
decision from the Western District of New York to support this
proposition. See Cole v. Uni-Marts, Inc., 88 F. Supp.2d 67 (W.D.N.Y.
1999). Defendants emphasize that in Cole the court held that an employee
must inform the employer of her request for time off for a serious health
condition in order to request FMLA leave and that the FMLA does not place
a duty on the employer to grant leave without such a request. Defendants'
contention is that plaintiff in this case failed to request leave and
instead only provided for employer with information that she was
pregnant. They stress that at no time did plaintiff ever request time off
from work because of her pregnancy. On this particular aspect of their
arguments, they rely on a case from the Southern district of New York in
which that court stated, "While an employer's duty to inquire may be
predicated on statements made by the employee, the employer is not
required to be clairvoyant." Johnson vs. Primerica, 1996 WL 34148, 1996
U.S. Dist. LEXIS 869 (S.D.N.Y., 94 Civ. 4869, Jan. 30, 1996).
Here, plaintiff argues that by telling Capo she was pregnant with a due
date in January, she gave sufficient notice of her intent to take
maternity leave. While the Court agrees that using the letters FMLA or
words Family Medical Leave Act are not necessary, nevertheless, the Court
finds, as a matter of law, that plaintiff has not met her burden, de
minimis as it is, of proving that she requested leave and was denied it.
No evidentiary proof in admissible form is before the Court showing that
plaintiff informed defendants of her intent to either (1) take time off
for the birth and recovery, or, (2) return to work following the birth of
her second child. Though plaintiff argues in her memorandum of law that
she discussed maternity leave with Capo, the cited reference is to her
unverified Amended Complaint and her affidavit. Her affidavit does not
make any mention
of discussing maternity leave and her unverified Amended
Complaint does not amount to evidentiary proof requisite to defeat a
summary judgment motion. Champion v. Artuz, 76 F.3d 483, 485 (2d Cir.
1996). Therefore, having failed to make out a prima facie case,
plaintiff's claim that she was illegally denied maternity leave under the
FMLA must be dismissed. See Celotex Corp., 477 U.S. at 327.
Plaintiff also claims that defendants failed to comply with portions of
the FMLA that require the posting of a general notice of an employee's
rights pursuant to the statute. 29 U.S. Code § 2619(a); 29 C.F.R.
§§ 825.301(c) & 825.302(c). However, the statute, as plaintiff
conceded at oral argument, does not provide plaintiff with a private
right of action. Further, the lack of any such required posting does not
excuse plaintiff's failure to ask for any leave in connection with her
May 1999 pregnancy. Defendants' motion for summary judgment on all of
plaintiff's FMLA claims is, thus, granted.
Defendant's Motion to Dismiss the Title VII and Pregnancy Discrimination
At oral argument, defense counsel conceded that for the purposes of
this motion, plaintiff had made out a prima facie case of discrimination
under the Civil Rights Act of 1964, Title VII, and the Pregnancy
Discrimination Act. After reviewing the papers, the Court finds that
defendants met their burden to come forward with a non-discriminatory
reason for plaintiff's discharge, thus, the presumption of discrimination
from the prima facie case now drops out of the picture. However, after
carefully reviewing the evidence submitted, the Court finds that
plaintiff has shown that she was discharged under circumstances that the
employer's proffered reasons are a pretext for discrimination.
The Court first notes that plaintiff's termination occurred within days
of the day she told Capo she was pregnant. She informed him the day she
learned of her pregnancy, May 19, 1999, and she was terminated by him on
June 8, 1999. In addition to the timing of the termination, the Court
particularly notes that defendants' reasons for terminating plaintiff kept
changing. First, plaintiff was told by Capo she was being terminated only
for financial reasons. Then, the following day, Capo told her she was
being terminated for financial and performance reasons. Two days later,
Dee told plaintiff she was being terminated on ly for financial reasons.
However, in a letter dated July 26, 1999, defendants' counsel wrote to
plaintiff's counsel that plaintiff was terminated for financial and
performance reasons. Defendants told the Equal Employment Opportunity
Commission on September 21, 1999, that plaintiff's "work performance was
questionable and that [she] was being terminated for financial reasons."
Mullin aff. at 2. In contrast, Capo testified at a pretrial deposition
that plaintiff was a "good worker." Capo dep. at 83.
Finally, the Court considers, in addition to these shifting reasons for
plaintiff's termination, the affidavit of defendants' chief financial
officer, Steve Schiano. That affidavit makes it clear to the Court that
Schiano did not recommend cutting a staff position at the Fairport office
until after the results of the second quarter were known, thereby calling
into question Capo's reason for terminating plaintiff. As defense counsel
conceded at oral argument, the second quarter ended on the last day of
June, yet, plaintiff was terminated on June 8, 1999. The Court finds that
for the purpose of defendant's summary judgment motion, plaintiff has met
her burden to show that the non-discriminatory reason was false and that
a trier of fact could "reasonably infer from the falsity of the
explanation that the employer is dissembling to cover up a discriminatory
purpose." Reeves, 530 U.S. at 147. Since defendants have failed to show
they are entitled to judgment as a matter of law, their motion for
summary judgment on these causes of action is denied.
For the reasons stated above, defendant's motion for summary judgment
(# 19) is granted to the extent that plaintiff's causes of action under
the FMLA are dismissed, but is otherwise denied.