The opinion of the court was delivered by: David G. Trager United States District Judge
Plaintiff Hillaire Woodard ("Woodard" or "plaintiff") commenced this action against her former employer, defendant New York Health and Hospitals Corporation ("HHC" or "defendant"). Woodard seeks relief on two claims pursuant to the Uniformed Services Employment and Reemployment Rights Act ("USERRA"), 38 U.S.C. § 4301 et seq. Woodard's two causes of action under USERRA allege that HHC discriminated against her on the basis of her military service and denied her appropriate reemployment after her return from military duty. Woodard's third cause of action alleges that HHC is overcharging her under the parties' Military Pay Reimbursement Agreement ("the Agreement").
HHC has filed this motion for leave to amend its answer to add a counterclaim pursuant to Fed. R. Civ. P. 13(f), and for summary judgment on plaintiff's three claims and HHC's own counterclaim pursuant to Fed. R. Civ. P. 56. For the following reasons, defendant is permitted to amend its answer to add a counterclaim. In addition, defendant's motion for summary judgment is granted in its entirety.
Factual and Procedural Background
(1) Statement of Facts*fn1
A. Woodard's Employment in HHC's Office of Accreditation and Regulatory Services
HHC is a New York City-controlled corporation whose employees are considered City employees. HHC first hired Woodard as a Coordinating Manager in its Early Intervention program on March 13, 1995. Woodard Dep. Tr. at 31; Def.'s Ex. B ("Employee Record"). Plaintiff remained employed in the Early Intervention program until July 3, 2000, when she was hired by Dr. Van Dunn, M.D. ("Dunn"), Senior Vice President of Medical and Professional Affairs at HHC, for the position of Associate Director of Health Care Standards ("ADHCS") in HHC's Office of Accreditation and Regulatory Services ("OARS"). See Def.'s Ex. B. Woodard's direct supervisor in this new position was Caroline Jacobs ("Jacobs"), Assistant Vice President of Accreditation and Regulatory Services. Woodard Dep. at 32. The position of ADHCS is categorized by HHC as a Group 11, or managerial, title. See Def.'s Ex. E (Letter from Caroline Jacobs to Hillaire Woodard (Jun. 21, 2000)). Woodard served as one of four managerial-level employees in OARS. Dunn Dep. at 13-14.
Woodard testified at her deposition that, while employed as an associate director in OARS, she was responsible for conducting seasonal surveys of eleven hospitals, six diagnostic treatment centers and four long-term care facilities to evaluate their compliance with accreditation criteria and regulatory standards. Woodard Dep. at 32-34. This required Woodard to go to the facilities and determine whether the facility was in compliance with a checklist of regulatory requirements. Id. at 33. Surveys were performed one to three times per week during survey seasons.
In addition, Woodard was responsible for reviewing the Quality Assurance ("QA") books prepared by each of the facilities for "upward and downward trends." Id. at 38. Woodard would look through these books to "see how [her] hospitals were doing." Id. at 37. This consisted of "highlight[ing] and address[ing] any Quality Assurance issues or discrepancies," and then providing a summary report to a supervisor. Id. at 37-39. Woodard attended the Quality Assurance meetings of the facilities to which she was assigned, although she did not speak at them. Id. at 34, 40. These meetings were conducted by HHC's Quality Assurance board to monitor facilities for "issues or potential issues that would put the hospital at risk for liability." Id. at 36. Woodard also prepared vendor contracts, composed a newsletter, and prepared PowerPoint presentations for board meetings, as well as other tasks focused on quality assurance and regulatory compliance. Woodard Dep. at 40-49.
B. HHC Military Leave Procedures
HHC Operating Procedure No. 20-26, which governs time and leave regulations, provides that all Group 11 employees in the armed forces are "entitled to a leave of absence while engaged in the performance of 'ordered military duty,' while going to and returning from such duty and where otherwise required by law."
See Def.'s Ex. H ("OP 20-26") at 14. In addition, HHC has a separate Operating Procedure No. 20-15 which details the specific rules governing an employee's leave of absence for military duty. See Def.'s Ex. X ("OP 20-15") at 1. According to OP 20-15, "an HHC employee shall be paid his/her salary while engaged in 'ordered military duty,' and while going to and returning from such duty, not exceeding a total of thirty (30) calendar days or twenty-two (22) normally scheduled work days, whichever is greater, in one calendar year." Id. at 1. The thirty calendar days are "computed and charged against the annual balance on a day-to-day basis." Id. at 4 (emphasis in original). However, when calculating the twenty-two workdays of military leave, "only those hours the employee is actually absent from the normal workday are to be charged against the [employee's] hourly bank." Id.*fn2 Mondo Hall ("Hall"), Associate Director for Employee Benefits, testified that under this policy, employees on military leave receive their HHC salary and their military salary for the twenty-two workdays or thirty calendar days of leave. Hall Dep. at 14. According to OP 20-15, "ordered military duty shall be charged against the annual balances on both a calendar-day and workday basis until both the 30 calendar-day entitlement and the 22 normally scheduled workday entitlement have been exhausted." Def.'s Ex. X at 4. After this paid military leave entitlement is exhausted, an employee can use other available leave time (such as vacation days) or unpaid days off for additional military leave. Hall Dep. at 15-17.
C. Woodard's Leaves of Absence Prior to September 2001
In November of 1986, prior to beginning her employment with HHC, Woodard joined the United States Army Reserves. Woodard Dep. at 21. She has attained the rank of major in the 1398th Deployment Support Brigade. Compl. ¶ 7. As a member of the Army Reserves, Woodard was required to participate in one weekend of military training per month, and a minimum of fourteen days of active duty each calendar year.*fn3 Reservists can also be called upon at any time to perform military service in addition to their minimum requirements. Woodard Dep. at 60-62. Woodard performed her obligatory military service each year while employed by HHC. Id. at 59. The only other HHC employee Woodard could identify as a reservist was Dr. Consuelo Dungca ("Dungca"), the Senior Assistant Vice President of Clinical Affairs. Id. at 58.
At the time that Woodard interviewed with Jacobs for the position of ADHCS, she informed Jacobs that she was a member of the Army Reserves and that "she had been ordered to military leave in July of 2000." Jacobs Dep. at 10, 19. Woodard was hired for the position on July 3, 2000. She took a three week leave of absence to perform military service that same month.
In January of 2001, Woodard requested one week of military leave. At the time, Woodard was pregnant. Woodard testified that Jacobs seemed "confused" about Woodard going on military leave while pregnant. Woodard Dep. at 51. Jacobs testified that she was "trying to understand and get a better handle on the frequency with which [Woodard] might be called to leave." Jacobs Dep. at 21. Jacobs stated that this leave did not cause problems or hardship in OARS. Id. at 22.
On January 4, 2001, Woodard submitted a request to HHC for child care leave under the Family and Medical Leave Act ("FMLA") to Gloria Velez ("Velez"), Senior Director of Human Resources Services, for the period of February 21, 2001 through September 3, 2001. Def.'s Ex. K (Request for Leave Under the Family Medical Leave Act (Jan. 4, 2001)). This request was granted on March 6, 2001 by Hall. Def.'s Ex. L (Letter from Mondo Hall to Hillaire Woodard (Mar. 6, 2001)). Woodard returned to work from her six-month leave of absence on September 4, 2001. Def.'s Ex. B.
D. Woodard's Deployment After September 11, 2001
On September 11, 2001, one week after Woodard returned to work at HHC, the World Trade Center and the Pentagon were struck by acts of terrorism. That same day, Woodard volunteered for military service. Woodard Dep. at 65. On September 13, 2001, Woodard informed Jacobs that she had been put on alert, meaning that "we could leave at any minute." Id. at 52. In response, Woodard testified that Jacobs "screamed at me [over the phone] that this is going to mess up her scheduling" of the surveys. Id. Jacobs also said to Woodard that "you just got back." Id. at 53. Woodard never discussed the incident with Jacobs, but Woodard claimed that "it was clear how [Jacobs] felt," and that Jacobs "was pissed off that I was leaving" because of Woodard's military obligation. Id. at 56.
At her deposition, Jacobs acknowledged that she was "shocked" to hear that Woodard was going off to war, because "[t]his is a lady who just had a baby, new family, going in to four years of unforeseen whatever. We didn't know what was happening back then, so I don't think any of us were particularly happy about that. I think it was kind of scary, to tell you the truth." Jacobs Dep. at 35. Jacobs also said that the staff of OARS had grown accustomed to the extra workload that would result from Woodard's military leave as a result of her six-month FMLA leave. Jacobs stated that "we had been, for quite some months, doing what we were doing and plodding along and we just plodded along some more. So it wasn't any big difference between what we had just had to do when she was on FMLA." Jacobs Dep. at 35. On October 22, 2001, plaintiff went on military leave. Def.'s Ex. B.
E. Woodard's 2001 Job Evaluation
One of Jacobs' responsibilities as Woodard's direct supervisor was to complete an employee evaluation of Woodard's performance as ADHCS. Jacobs Dep. at 15. The purpose of the evaluations is to provide employees with "an overall comprehensive picture of that person's performance." Id. at 24. HHC employee evaluations are typically prepared annually in July or August, and are based on the employee's performance over the previous twelve months. Id. at 16.
Woodard's evaluation was filled out by Jacobs on September 28, 2001. Woodard's evaluation only covered the period from July 5, 2000 to February 16, 2001, and did not include the time that she was on FMLA leave. Woodard went on military leave twice within the evaluation period. Jacobs Dep. at 19; Def.'s Ex. N (Managerial Performance Appraisal). Jacobs testified that Woodard received a six-month evaluation, rather than an annual evaluation, "because Hillaire had not been on active employment during the entire 12 month period, so there was a limited time frame in which we could do an evaluation for her work performance." Jacobs Dep. at 18.
Woodard received an overall evaluation rating of "satisfactory" from Jacobs. She received a "satisfactory" rating for each of her six major job responsibilities, and a "satisfactory" rating for all but one of the applicable "supervisory managerial abilities" and "personal attributes." Woodard's "initiative" was rated as "marginal" by Jacobs.*fn4
Def.'s Ex. N at 2-8. In a handwritten note in the section entitled "Justification for Overall Rating," Jacobs wrote the following: "Due to leaves (military and FMLA) Ms. Woodard could not complete a full year in her current position nor perform all tasks for which she would be evaluated. For this reason, we will re-evaluate Ms. Woodard's performance in six months at which time a more comprehensive appraisal should be possible." Id. at 11.
Jacobs testified that the purpose of the handwritten note was "to provide clarification for the time frame that the evaluation was written for, and to explain, to provide more information as to the overall rating." Jacobs Dep. at 23. In her deposition, Jacobs denied that Woodard's military service impacted the results of the evaluation, or Jacobs' ability to evaluate Woodard. Id. at 24-25. Instead, Jacobs testified that the statement "merely states  that there was a period of time that she was not in the department. For the time that she was in the department, her performance was rated based on what she delivered and based on what we observed." Id. at 25.
Woodard takes a very different view of the mention of her military service in the evaluation. Despite receiving a rating of "satisfactory" in all but one section, and an overall rating of "satisfactory," Woodard claims that the mention of her military service was "a negative factor as far as they are blaming something on my military leave." Woodard Dep. at 90. Woodard testified that the evaluation was "negative" because she was being "penalized for being on military leave." Id. at 93. According to Woodard, "the military issue was an issue if it wasn't it wouldn't be there" in the evaluation. Id. at 91. Woodard asserts that the majority of her leave during the evaluation period was her family medical leave, and there was no reason for her military service to be raised in the evaluation. Id. at 93. In addition, Woodard testified that her military leave should not have been considered at all because military leave "is not counted. You are in the same position whether or not you are there." Id. at 89-90.
Woodard claims that Jacobs' reference to Woodard's military leave in the evaluation, combined with Jacobs' comments regarding Woodard's military duty and leave obligations, are evidence of bias against her military service. Id. at 56-57. Woodard also believes that Jacobs "had issues with [her] military service which she portrayed" to Dunn, and which had an impact on Dunn's decision to deny Woodard a full 8% pay increase. Id. at 86.
F. Woodard's 2001 Pay Increase
On September 20, 2001, HHC implemented Personnel Order HHC 01/15, which detailed the eligibility requirements for a salary increase. Def.'s Ex. O (Internal HHC Memorandum from Senior VP-Operations Frank J. Cirillo (Sept. 20, 2001)). The Order applied to Group 11 employees "who on the date of this order are in active pay status and who on June 30, 2001 were in active pay status in covered titles." Id. The Order stated that qualified employees "whose FY 2001 performance is at least Satisfactory, shall receive a salary increase of 8.0 percent effective July 1, 2001, to be calculated on their June 30, 2001 salary. Network and Central Office Senior Vice Presidents may, at their discretion, reduce the percentage increases for their direct reports." Id. The Order further provided that "an employee who was on authorized leave of absence without pay from a 'covered title' on June 30, 2001, or the date of this order is eligible to receive a salary increase effective on the date of the employee's return to active pay status, in accordance with this order. Such employee shall not receive any increase for the period when the employee was on a leave of absence." Id. All salary adjustments resulting from the Order were to take effect on the October 12, 2001 payroll. Id.
In a memorandum dated September 27, 2001, Dunn informed Velez that "aside from her two leaves of absence, Ms. Woodard has only worked for six months in the Office of Accreditation and Regulatory Services, not providing adequate time to appropriately evaluate her performance. Thus, I am requesting that only a 4% increase is given to Ms. Hillarie [sic] Woodard. In six months we will re-evaluate the provision of the remaining 4% based upon the results of her one-year evaluation." Def.'s Ex. P (Letter from Van Dunn to Gloria Velez (Sept. 27, 2001)). This salary increase raised Woodard's annual salary from $75,750 to $77,740. Decl. of John Yan, dated March 12, 2007 ("Yan Decl.") at ¶ 3. Dunn's letter also specified that Jacobs was to inform Woodard of this decision.
Jacobs did in fact inform Woodard that she would not receive the full 8% raise because Dunn believed that Woodard was not in her position for a year, and that she would receive the rest of the raise in six months after completing a full year of work. Woodard Dep. at 73. Woodard testified that she responded to Jacobs by informing her that she had served in her position for over a year, but that Jacobs said "no, you were not, you were on military leave and FMLA, so you were on child care leave, so you were not in that position for a year." Id. Woodard responded that her military leave should not be held against her in calculating her length of employment with HHC. Id. at 73.
Jacobs stated at her deposition that the decision to give Woodard a 4% raise was "purely up to Dr. Dunn" and that she played no role in making this decision. Jacobs testified that the only time she spoke to Dunn about Woodard's raise, Dunn informed her of his decision but "did not go into detail" as to why Woodard would not receive 8%. Jacobs Dep. at 28.
Dunn himself testified that the decision was made because Jacobs informed him that Woodard had not worked a full year due to her child care leave. Dunn Dep. at 18. He claimed that he found out about Woodard's military leave only after the salary increase decision was made, when he received Woodard's six-month evaluation referencing her absence due to military service. Id. at 17.*fn5 Dunn also said at his deposition that Jacobs never previously mentioned to him that Woodard had been on military leave. Id. at 18. However, this testimony seems to be contradicted by Dunn's September 27, 2001 memorandum, which referenced Woodard's "two leaves of absences" when explaining her 4% pay increase. Def.'s Ex. P. Construing all inferences in favor of plaintiff, this reference to "two leaves of absences" suggests that Dunn was aware of both Woodard's military and FMLA leaves when the pay decision was made.
Woodard appealed Dunn's decision to Beverly Lewin ("Lewin"), Deputy Directory of Human Resources Services for HHC. At their meeting, Woodard explained what Jacobs had told her regarding why she received only a 4% raise. Woodard also informed Lewin that she believed the real reason she received only 4% was her military leave, particularly her state of alert after September 11, and that Jacobs was angry at this fact and yelled at her. Woodard Dep. at 54. Lewin told Woodard that she did not receive the 8% increase because she was not in her position for a year due to her leaves of absence.*fn6 Woodard Dep. at 78.
G. Woodard's Military Leave After September 11, 2001
After volunteering for active duty on September 11, 2001, Woodard was ordered to begin military duty on October 22, 2001. Her request for military leave was granted by HHC. Def.'s Ex. W (Letter from Gloria Velez to Caroline Jacobs (Oct. 18, 2001)). According to the then-current military leave policy, Woodard was only entitled to twenty-two workdays or thirty calendar days of paid military leave. If Woodard remained on leave beyond the paid entitlement period, she could use up her accrued annual leave to continue receiving a salary. Once her annual leave was used up, her time sheets were to be coded as "without pay." See Def.'s Ex. X.
HHC's policy governing military leave underwent significant change on November 1, 2001. By memorandum on November 1, 2001, Nancy Doyle ("Doyle"), Assistant Vice President for Workforce Planning and Development, informed HHC Human Resources Directors that, effective September 11, 2001, HHC would be "granting additional benefits" to employees engaged in ordered military duty in connection with Operation Enduring Freedom. In addition to the paid military leave entitlement provided for in OP 20-15, these employees would "remain on payroll in active status for as long as they are on ordered military duty in connection with the events of September 11, 2001."*fn7 Def.'s Ex. Y (Nancy Doyle Memorandum (Nov. 1, 2001)) at 1. HHC's "additional benefits" policy was part of New York City's Extended Military Benefits Package ("EMBP"), enacted in October of 2001 as "a voluntary program that allows City reservists to continue to receive the City's salary and benefits when they are called to active military duty for more than 30 calendar days or 22 working days."
Pl.'s Ex. 5 (New York City press release (Nov. 10, 2006)).
In exchange for these additional benefits, the new policy provided that employees on ordered military service "will be required to remit to the Corporation an amount equal to the amount received in military pay for any days in excess of the statutory entitlement of thirty calendar days or twenty-two workdays."*fn8 Def.'s Ex. Y at 1-2. The amount of money owed to HHC was to be sent within thirty days after the completion of ordered military service. Id. at 2. In order to be eligible for these additional benefits, HHC required that the employee "agree, in writing, to this reimbursement" policy. Id.
While serving ordered military duty, Woodard was informed of this change in HHC's military leave policy. On November 19, 2001, Woodard executed her Military Pay Reimbursement Agreement ("the Agreement"). It provided that, "[i]n consideration of the payment to me by the Health and Hospitals Corporation of my full salary and benefits while I serve on ordered military duty...in conjunction with the events of September 11, 2001, I agree that I shall remit to the New York City Health and Hospitals Corporation an amount equal to the amount I receive in military pay**fn9 or HHC salary, whichever is less, for any days in excess of the statutory entitlement of thirty calendar days or twenty-two work days within thirty days after the conclusion of ordered military leave." Def.'s Ex. Z.
On December 31, 2003, Nancy Doyle sent a memorandum to Human Resources Directors and Payroll Directors reminding them of the "additional benefits" granted to HHC employees serving on ordered military leave in connection with the events of September 11, 2001. The memorandum specified the three repayment options available to returning employee service-members. HHC employees who signed a Military Pay Reimbursement Agreement could repay the full amount owed through certified check or money order; repay through charges to their annual leave balance; or repay through payroll deductions (not to exceed 10% bi-weekly gross pay) over an extended period. Def.'s Ex. BB (Nancy Doyle Memorandum (Dec. 31, 2003)). A similar memorandum specifying the three ...