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United States District Court, S.D. New York

November 1, 2004.


The opinion of the court was delivered by: GERARD E. LYNCH, District Judge


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. ¶ 22.) DISCUSSION

  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 case law.

  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.


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