United States District Court, S.D. New York
November 1, 2004.
RAYNOLD RIGODON, Plaintiff,
DEUTSCHE BANK SECURITIES, INC., THOMAS HARLEY, and CLEOPATRA BROWN, Defendants.
The opinion of the court was delivered by: GERARD E. LYNCH, District Judge
OPINION AND ORDER
Plaintiff Raynold Rigodon brings this action for employment
discrimination, charging that one or more of the defendants
retaliated against him for taking leave under the Family Medical
Leave Act ("FMLA"), and that he was subject to discrimination
based on race and national origin under the New York State and
New York City human rights laws, discrimination based on
relationship with a person with a disability under the City
statute, and discrimination based on race and national origin in
violation of 42 U.S.C. § 1981. Defendants moved, before any
discovery had occurred, for summary judgment on all of
plaintiff's claims, and renewed their motion after plaintiff
amended his complaint. For the following reasons, the motion will
be denied. BACKGROUND
Rigodon is employed in an administrative capacity by defendant
Deutsche Bank Securities, Inc. In December 2002, he took time off
to care for his wife during her difficult pregnancy. Although
Rigodon does not appear to dispute that he was granted paid leave
for the days he missed (compare Declaration of John Livathares,
dated June 11, 2004, ¶¶ 5-6 & Ex. A, with Plaintiff's Statement
of Material Facts Pursuant to Local Rule 56.1, ¶ 5), he does
contend that after he returned to work, he was falsely accused of
not having called regarding his absence (Affidavit of Raynold
Rigodon, dated August 11, 2004, ¶¶ 13, 15-16), and subsequently
"deprived of a significant portion of my overtime" as compared to
the overtime hours he had worked before taking leave, "and my
usual work schedule was disrupted" (id. ¶ 36). Defendants,
however, proffer documents purporting to show that Rigodon in
fact worked as much or more overtime in the weeks following his
time off as he did in the weeks immediately preceding it.
(Declaration of Claudia M. Cohen, dated June 11, 2004, Ex. B.)
In addition, Rigodon alleges that he was subjected to a hostile
work environment by his supervisor, defendant Cleopatra Brown,
who among other things made repeated "derogatory, insulting,
ridiculing and discriminatory statements about the ethnic
characteristics of Haitians." (Rigodon Decl. ¶¶ 24, 26.)*fn1
According to Rigodon, Brown is "of Antiguan origin." (Id. ¶
Although defendants seek summary judgment on all counts of the
complaint, including the state law claims, it is sufficient for
present purposes to analyze the claims asserted under federal
law. If defendants prevail on those claims at such an early stage
of the litigation, the state-law claims will be dismissed for
lack of jurisdiction. 28 U.S.C. § 1367(c); Carnegie-Mellon Univ.
v. Cohill, 484 U.S. 343, 350 n. 7 (1988). If plaintiff prevails,
and the case must proceed to discovery in any event, the
specifics of the state law claims can be addressed more
efficiently at trial or in a subsequent summary judgment motion
at the close of discovery.
I. Summary Judgment Standard
Summary judgment must be granted where "there is no genuine
issue as to any material fact and . . . the moving party is
entitled to a judgment as a matter of law." Fed.R. Civ. P.
56(c). A fact is "material" if it "might affect the outcome of
the suit under the governing law," and an issue of fact is
"genuine" where "the evidence is such that a reasonable jury
could return a verdict for the nonmoving party." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). On a motion for
summary judgment, the evidence must be viewed in the light most
favorable to the nonmoving party, and the Court must resolve all
ambiguities and draw all reasonable inferences in its favor.
Id. at 255; Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202
(2d Cir. 1995).
II. Family Medical Leave Act Claims
Defendants argue that Rigodon's FMLA claims must be rejected,
both because he was in fact granted leave, and because he fails
to demonstrate that he was subjected to any adverse employment
action in connection with taking his leave. The first argument is
incorrect as a matter of law; the second fails because plaintiff
is entitled to discovery on potential material issues of fact.
The FMLA requires covered employers to grant certain employees
up to twelve weeks' leave during any twelve month period for
various purposes, including "[i]n order to care for the spouse . . .
of the employee, if such spouse . . . has a serious health
condition." 29 U.S.C. § 2612(a)(1)(c). The statute makes it
unlawful for any employer either "to interfere with, restrain or
deny the exercise of or the attempt to exercise, any right" it
grants, id. § 2615(a)(1), or "to discharge or in any other
manner discriminate against any individual for opposing any
practice made unlawful" by the Act, id. § 2615(a)(2).
Defendants argue that plaintiff cannot make out a violation
either of section 2615(a)(1), because he does not contend that he
was not granted leave, or of section 2615(a)(2), because the
alleged retaliation was for taking leave, not for protesting or
opposing defendants' policies or practices. (D. Br.
12-13.)*fn2 This argument misreads the FMLA and the relevant
The law in this Circuit is clear that section 2615(a)(1)
"protects an employee from discharge or demotion by an employer
if that action is motivated by the employee's taking of leave
pursuant to the FMLA." Hale v. Mann, 219 F.3d 61, 68 (2d Cir.
2000). The language of that provision does not merely prohibit
employers from "deny[ing]" family or medical leaves required
under the Act, but also forbids them to "interfere with . . . the
exercise of" FMLA leave rights. Quite clearly, adverse employment
actions taken against an employee who has been permitted to take a leave and nominally permitted to return to
his job would "interfere with" the exercise of the FMLA right
both by that employee and also by other employees who might be
deterred from exercising their rights by the example of
discrimination against a fellow-worker who had the temerity to
exercise his or her leave rights. Thus, while retaliation against
an employee who protests an employer's unlawful leave policies is
prohibited by section 2615(a)(2), retaliation against an employee
who has taken a family or medical leave authorized by the FMLA is
also unlawful, under section 2615(a)(1). See
29 C.F.R. § 825.220(c) ("An employer is prohibited from discriminating
against employees or prospective employees who have used FMLA
leave."); Mann v. Mass. Correa Electric, J.V., No. 00 Civ. 3559
(DLC), 2002 WL 88915, at *5-*6 (S.D.N.Y. Jan. 23, 2002)
(upholding claim of retaliation for taking FMLA leave); Brenlla
v. LaSorsa Buick Pontiac Chevrolet, Inc., No. 00 Civ. 5207
(JCF), 2002 WL 1059117, at *6-*8 (S.D.N.Y. May 28, 2002) (same).
This is precisely what Rigodon alleges occurred here.
Defendants also claim, however, that Rigodon has not shown
actionable interference with his exercise of FMLA rights (or,
indeed, any of the other types of discrimination or retaliation
he alleges) because he cannot prove that any adverse employment
action was taken against him as a result of his leave (or because
of his race or national origin, or for any other reason).
Addressing primarily his claim of limitation or denial of
overtime rights, defendants submit documents allegedly
demonstrating that Rigodon worked as much overtime after his
leave as before it.
Parties seeking summary judgment before discovery has been
completed or, as in this case, even begun face a very heavy
burden. See Trebor Sportswear Co. v. The Limited Stores,
Inc., 865 F.2d 506, 511 (2d Cir. 1989) ("The nonmoving party
must have `had the opportunity to discover information that is
essential to his opposition' to the motion for summary
judgment.") (quoting Anderson, 477 U.S. at 250 n. 5); Hellstrom v. U.S.
Dep't of Veterans Affairs, 201 F.3d 94, 97 (2d Cir. 2000) ("Only
in the rarest of cases may summary judgment be granted against a
plaintiff who has not been afforded the opportunity to conduct
discovery."). Defendants here cannot meet that burden, for
several reasons. First, Rigodon's claims go beyond the assertion
that his overtime was restricted. He also alleges that he
received a negative employment evaluation, was harassed or abused
by supervisors for having taken a leave, and had his overtime
hours rescheduled to his disadvantage. (E.g., Am. Compl. ¶¶ 25,
27, 35, 37-39.) These alleged retaliations must be viewed in the
aggregate: "the accumulation of small reprisals may be aggregated
so as to permit consideration of their impact in their totality
and to support their being deemed sufficient to constitute
adverse employment action." Gonzalez v. Bratton, No. 96 Civ.
6330 (VM), 2000 WL 1191558, at *15 (S.D.N.Y. Aug. 22, 2000).
Second, limitations of overtime and adverse work schedule
modifications can be adverse employment actions in themselves.
See Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999)
(defining "adverse employment action" broadly, to include
unfavorable changes in work assignments and reduction in pay);
Austin v. Ford Models, Inc., 149 F.3d 148, 153 (2d Cir. 1998)
(denial of overtime pay can rise to the level of material change
in terms and conditions of employment); Gilford v. City of New
York, No. 03 Civ. 0091 (SHS), 2004 WL 1574695, at *6 (S.D.N.Y.
Jul 14, 2004) ("the denial of benefits [including overtime] to
which an employee is otherwise entitled may constitute an
`adverse' employment action."). Defendants do not present any
factual material contesting Rigodon's claims of rescheduling, and
the record is far too sparse to reach any conclusion, let alone a
conclusion that excludes reasonable disagreement, about the
severity or materiality of any changes in Rigodon's work hours. Finally, with respect to the reduction or limitation of
overtime, which defendants implicitly concede would constitute an
adverse employment action, defendants present evidence only
regarding the months of December 2002 (the month in which Rigodon
took time off due to his wife's pregnancy) and January and
February 2003 (the months immediately succeeding his leave, up to
the time he himself took disability leave from his job). Rigodon
raises certain objections to the accuracy of these records.
(Rigodon Decl. ¶¶ 47-49, 52-53; P. 56.1 Statement ¶¶ 2-3, 5.)
While these objections are not particularly persuasive, they are
joined to his demand for discovery of additional records and
underlying documentation of overtime worked throughout 2002.
(Id.) These records, which Rigodon has not had an opportunity
to discover, may well document that he in fact worked
substantially more overtime in earlier months in 2002.
Accordingly, under Federal Rule of Civil Procedure 56(f), summary
judgment should be denied to permit such "discovery to be had."
The denial of summary judgment at this stage of the litigation
should not be taken as an endorsement of plaintiff's claims. In
view of the very modest amount of time off taken by plaintiff,
the fact that he was granted paid leave in accordance with the
employer's policies, the evidence in his own affidavit that any
reprimand plaintiff received was the result of a (possibly
mistaken) perception that he had failed to advise his supervisor
that he was taking time off, and evidence that the change in his
schedule was somewhat minor, defendants may very well prove
correct that this case involves nothing more than an "ordinary
dispute with a superior." (D. Br. 1.) The discovery required in
the case should be minor and defendants should not be burdened
with litigation expenses of such a nature as to extort an unfair
settlement of plaintiff's claims. III. Section 1981
Defendants argue that plaintiff's hostile environment claim
cannot be maintained under section 1981 because that statute is
not applicable to discrimination based on national origin. (D.
Br. 21-22.)*fn3 Their position, however, is oversimplified.
Section 1981 guarantees to "[a]ll persons within the
jurisdiction of the United States . . . the same right . . . to
make and enforce contracts . . . as is enjoyed by white
citizens." The reference to equality with "white citizens" makes
plain that the statute relates to discrimination on the basis of
race, not national origin. Runyon v. McCrary, 427 U.S. 160, 168
(1976). However, in Saint Francis College v. Al-Khazraji,
481 U.S. 604 (1987), the Supreme Court made clear that "race," in
this context, must be interpreted according to "[t]he
understanding of `race' in the 19th century," when the statute
was adopted. Id. at 610. In Al-Khazraji, dealing with a claim
of discrimination by a plaintiff of Iraqi origin and Arab
ancestry, the Court concluded that in enacting section 1981,
Congress "intended to protect from discrimination identifiable
classes of persons who are subjected to intentional
discrimination solely because of their ancestry or ethnic
characteristics." Id. at 613. While the Court made clear that
this was not the same thing as "national origin," and insisted
that to succeed on his claim plaintiff would have to "prove that
he was subjected to intentional discrimination based on the fact
that he was born an Arab, rather than solely on the place or
nation of his origin," id., plaintiff's claim was permitted to
go forward. As Justice Brennan pointed out in concurrence, "the line
between discrimination based on `ancestry or ethnic
characteristics,' and discrimination based on `place or nation of
. . . origin,' is not a bright one." Id. at 614, quoting id.
at 613. But, assuming for these purposes that plaintiff can prove
he was subjected to discrimination of some kind, the question of
the nature of the discrimination is a factual one.*fn4 The
amended complaint alleges that he was subjected to discriminatory
remarks about "the ethnic characteristics of Haitians" (Am. Compl
¶ 32), and to "offensive comments based on plaintiff's Haitian
ethnicity and ancestry" (id. ¶ 35), and asserts that he was
discriminated against and subjected to a hostile working
environment due to his "ancestry and/or ethnic characteristics"
(id. ¶¶ 79, 80). The complaint thus adequately states a claim
under section 1981, and defendants do not argue that the sketchy
record before the Court would permit the conclusion that there is
no genuine issue of fact as to whether Rigodon was mistreated
if he was mistreated at all on the basis of national origin as
opposed to ethnicity/ancestry.
Once again, the Court expresses no view on whether plaintiff
can prove his claim. Hostile work environment claims are
difficult to prove in the best of cases, and the further burden
of demonstrating that a supervisor (particularly a person of
color of Caribbean origin) who allegedly discriminated against
"Haitians" did so because of purported inherited ethnic
characteristics classifiable as "racial" rather than merely
because of purported traits associated with national origin may well prove unsustainable. Compare,
e.g., Cuello-Suarez v. Autoridad de Energia Electrica de
Puerto Rico, 737 F. Supp. 1243 (D.P.R. 1990) (refusing to
dismiss § 1981 claim of discrimination against Dominican employee
by Puerto Rican company) with Cuello-Suarez II, 798 F. Supp. 876,
891 (D.P.R. 1992) (finding that, after discovery,
plaintiff had failed to demonstrate that discrimination was due to race
and not national origin). But plaintiff's claim may not be dismissed
as a matter of law at this stage of the litigation.
Accordingly, defendants' motion for summary judgment is denied.
Counsel for the parties are directed to appear before the Court
for a conference to set a discovery schedule on November 10,
2004, at 10:30 a.m.