first told of his demotion soon after he returned to work on August 1.
The same evidence that Staples produces to articulate a legitimate, nondiscriminatory reason for Darboe's demotion in the context of Section 1981 — in particular, the May 26 evaluation — is also sufficient to shift the burden back to Darboe under FMLA. Thus, the final, dispositive issue is whether Darboe presents sufficient evidence to support his contention that Staples' proffered reasons were merely pretext.
Evidence of pretext "`may be demonstrated either by presentation of additional evidence showing that the employer's proffered explanation is unworthy of credence,' or by reliance on the evidence comprising the prima facie case, without more." LaFond v. Gen. Physics Servs. Corp., 50 F.3d 165, 174 (2d Cir. 1995). Darboe relies primarily on the temporal sequence between the protected FMLA activity and his demotion, which established a "causal connection" in his prima facie case. Staples argues that this evidence is insufficient, because "[i]f 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." Bond v. Sterling, 77 F. Supp.2d 300, 305 (N.D.N.Y. 1999). In Bond v. Sterling, however, plaintiffs adverse employment action occurred two weeks after she returned from maternity leave, and events occurred during those two weeks that defendant claimed formed the basis for the adverse employment action. See Bond v. Sterling, 997 F. Supp. 306, 307-08 (N.D.N.Y. 1998) (predecessor case containing discussion of facts).
As to whether plaintiffs evidence is sufficient to defeat Staples' motion for summary judgment, I find the Second Circuit's decision in Quinn v. Green Tree Credit Corp., 159 F.3d 759 (2d Cir.) — involving a Title VII retaliation claim — to be instructive. In that case, the court found that two circumstances created a genuine issue of material fact. First, the court noted the "strong temporal correlation" between the adverse employment action and the protected activity. Id. at 770. Second, the court found relevant the fact that all of the defendant's evidence regarding a legitimate, non-discriminatory reason for the adverse employment action was generated by the plaintiffs "alleged harassers." Id. Here, a very strong temporal correlation exists. And Mullins, who Darboe contends decided to demote him because he took time off to have surgery, generated all of the evidence regarding Darboe's alleged performance deficiencies.
As with Darboe's Section 1981 claim, plaintiffs evidence is extremely thin. Were Darboe's demotion further removed from the time he took sick leave, or were there any evidence of a legitimate nondiscriminatory reason other than that Mullins generated, summary judgment in Staples' favor would be warranted. However, "the fundamental maxim remains that on a motion for summary judgment a court `cannot try issues of fact; it can only determine whether there are issues to be tried.'" Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987) (quoting Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1319-20 (2d Cir. 1975)). Staples' motion for summary judgment on plaintiff's FMLA claim is denied.
D. Intentional Infliction of Emotional Distress
A federal court adjudicating a supplemental state law claim applies the choice of law rules of the forum state. Rogers v. Grimaldi, 875 F.2d 994, 1002 (2d Cir. 1989). In tort cases, New York courts apply the law of the state with the most significant interest in the litigation. See Padula v. Lilarn Props. Corp., 84 N.Y.2d 519, 521, 620 N.Y.S.2d 310, 311, 644 N.E.2d 1001 (1994), cited in Sheldon v. PHH Corp., 135 F.3d 848, 853 (2d Cir. 1998). In doing so, they distinguish between conduct-regulating rules and loss-allocating rules. See, e.g., Cooney v. Osgood Mach., Inc., 81 N.Y.2d 66, 72, 595 N.Y.S.2d 919, 922, 612 N.E.2d 277 (1993). When a conduct-regulating rule is at issue, the law of the place of the tort governs. Padula, 84 N.Y.2d at 525, 620 N.Y.S.2d at 311, 644 N.E.2d 1001. The rule against intentional infliction of emotional distress is conduct-regulating, and plaintiff claims the alleged acts occurred in New Jersey. As a result, that state's law applies.
"To establish an intentional infliction of emotional distress claim under New Jersey law, a plaintiff must show (1) that the defendant intended to cause emotional distress; (2) that the conduct was extreme and outrageous; (3) that the actions proximately caused emotional distress; and (4) that plaintiffs emotional distress was severe." Witherspoon v. Rent-A-Center, Inc., 173 F. Supp.2d 239, 243 (N.J. 2001) (citations omitted). To satisfy the second element, defendant's conduct "must be `so outrageous in character, and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'" Buckley v. Trenton Saving Fund Soc., 111 N.J. 355, 544 A.2d 857, 863 (1988) (quoting Restatement (Second) of Torts § 46 cmt. d (1965)). New Jersey courts have held that "it is extremely rare to find conduct in the employment context that will rise to the level of outrageousness necessary to provide a basis for recovery for the tort of intentional infliction of emotional distress." Griffin v. Tops Appliance City, Inc., 337 N.J. Super. 15, 23-24, 766 A.2d 292, 297 (N.J.App.Div. 2001) (quoting Cox v. Keystone Carbon Co., 861 F.2d 390, 395 (3d Cir. 1988), cert. denied 498 U.S. 811, 111 S.Ct. 47, 112 L.Ed.2d 23 (1990)).
The only evidence of defendant's allegedly extreme and outrageous conduct that Darboe offers is Mullins three criticisms of his work — two before his demotion and one after — and plaintiffs allegation that Mullins said to him "Now you're nothing," or "Now you're nobody." These allegations are insufficient to create a genuine issue of material fact. No reasonable jury could find that defendant's conduct was extreme or outrageous given the facts before the court, even as interpreted most favorably for plaintiff.
For the reasons stated above, summary judgment is granted on all of plaintiff's claims except his Section 1981 and FMLA claims.
This is the decision and order of the Court.