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Demarco v. Coopervision

March 11, 2009


The opinion of the court was delivered by: Siragusa, J.



This employment discrimination case is before the Court on Defendant CooperVision, Inc.'s ("CooperVision") motion for summary judgment seeking dismissal of the complaint. For the reasons stated below, the motion is granted.


On April 7, 2006, plaintiff Jennifer J. DeMarco ("DeMarco"), filed this lawsuit against her former employer, CooperVision, alleging that on or about October 31, 2005, CooperVision terminated her employment and otherwise discriminated against her because of: (1) her sex (pregnancy) in violation of Title VII the Civil Rights Act of 1964, as amended; (2) her sex (pregnancy) in violation of the New York human rights Law, New York executive Law section 296 et seq.; (3) her disability in violation of the Americans with disabilities act, 42 U.S.C. § 12111 et seq.; and (4) her disability in violation of the New York human rights Law, New York executive Law section 296 et seq.

DeMarco started working for CooperVision in September 2000 in the position of marketing executive assistant, providing secretarial support to the vice president of marketing, Thomas Shone ("Shone"). (DeMarco Dep., at 25.) DeMarco was an "at will" employee (DeMarco Dep., at 29-30) and was provided with a CooperVision employment handbook containing the company's policy for Family and Medical Leave Act*fn1 ("FMLA") leave. CooperVision's policy provided that an eligible employee could take a total of twelve weeks of FMLA leave during any twelve-month period to address such issues as her own serious health condition or the birth of a child.*fn2 (Employee handbook receipt (Oct. 15, 2004), attached as Ex. 8 to Defendant's statement of material facts.)

DeMarco was promoted to the position of marketing coordinator in April 2001. (DeMarco Dep., at 36; CooperVision employee action sheet (Apr. 2, 2001), attached as Ex. 10 to Defendant's statement of facts.) Then, in March 2002, DeMarco was promoted to associate product manager, reporting to marketing manager Steve Gandola. (Letter from Rona Jean Sembach to Jennifer DeMarco (Mar. 4, 2002), attached as Ex. 11 to Defendant's statement of facts; DeMarco Dep., at 36-37.)

DeMarco was promoted again, in October 2002, to the position of marketing promotions manager. (CooperVision employee action sheet (Oct. 28, 2002), attached as Ex. 12 to Defendant's statement of facts; DeMarco Dep., at at 41.) In that position, one of DeMarco's primary responsibilities was to manage CooperVision's trial rack pro-grams. Through those programs, CooperVision distributed racks of free promotional contact lenses to doctors. In that regard, DeMarco ensured that the trial racks were being distributed to the proper salespeople, and she accounted for them. In addition, she was responsible for ordering those racks from the manufacturer and ensuring CooperVision had sufficient inventory to cover the marketing department's promotional needs. (DeMarco Dep., at 46-58.) A further responsibility in her new position was to manage CooperVision's customer rebate and key account programs. As to these, she worked with eye care centers, such as LensCrafters(r) and Eye Care Centers of America, Inc.TM, regarding marketing issues. (DeMarco Dep., at 46-58.) At her deposition, DeMarco estimated that she spent about 40 percent of her time on the trial racks and rebates.

In 2004, CooperVision President Jack Gibson directed a reorganization of the finance and marketing departments to create a department called commercial finance. As a result of CooperVision's growth, many of the marketing department's promotions, including the trial racks of lenses, began to require a large expenditure of funds, and the commercial finance department was created to give the company tighter control over such expanding costs. (Menard Aff. ¶ 5, attached as Ex. 2 to Defendant's statement of facts; Shone Aff. ¶ 7, attached as Ex. 3 to Defendant's statement of facts.) On August 16, 2004, DeMarco successfully applied for the position of commercial finance program manager. (Personal history and skills inventory (Aug. 16, 2004), attached as Ex. 13 to Defendant's statement of facts; DeMarco Dep., at 66-67; Menard Aff. ¶ 6.) As commercial finance program manager, she reported to the director of commercial finance, Josh Stern. (Id.) Further, while DeMarco continued to exercise the same job functions she had previously performed, she also oversaw the work of an analyst, Monica Buholtz ("Buholtz"), and exercised additional control over promotional costs. (Bernard Aff. ¶ 6; Shafer Aff. ¶ ¶ 10, 11; DeMarco Dep., at 74.)

In January 2005, CooperVision acquired Ocular Science, Inc. [sic]*fn3 ("OSI"), and began the process of integrating the job operations of the two companies. (Bernard Aff. ¶ ¶ 19-20; Shone Aff. ¶ 14; exhibit 14 to Defendant statement facts.) OSI and Cooper-Vision both had a worldwide presence, and OSI had revenues of $310 million per year and more than 2,500 employees. As a result of the acquisition, CooperVision knew that a number of positions would need to be eliminated to eradicate redundancies. (Bernard Aff. ¶¶ 10-11; Shone Aff. ¶ 14.)

Moreover, in early 2005, CooperVision appointed David Shaffer to take over from Josh Stern as director of the commercial finance department. In March, Schaffer reviewed the department's operations with Shone and Menard and restructured it to eliminate nonfinance job functions.*fn4 (Menard Aff. ¶ 8; Shone Aff. ¶ 9-11; Shafer Aff. ¶ ¶ 5-8.) Neither DeMarco nor her subordinate, Buholtz, had any background in finance or accounting. Buholtz was terminated, and DeMarco, along with her non-financial duties, was transferred to the marketing administration department, where she acquired the title of marketing program specialist. In that department, she reported to Laurie Dodge, who was responsible for pricing and program management and marketing administration. (Bernard Aff. ¶ 16; Shone Aff. ¶ 18.) Shafer hired Jane Evans, who has an MBA in finance from the the Simon Graduate School of Business at the University of Rochester, to perform the finance duties DeMarco had previously performed, as well as other financial duties. (Shafer Aff. ¶ ¶ 11-13.) Following the restructuring, there were three departments within the new structure: sales administration; commercial finance; and marketing. Marketing was divided into: brand marketing managers, marketing administration and marketing support. (US Sales/Marketing/Finance Support Restructured March 2005, attached as exhibit 14 to Defendant's statement of facts.)

In her position as marketing program specialist, DeMarco no longer performed the finance functions she had in her previous position, but retained some of her marketing and administrative job functions. (Bernard Aff. ¶ 15; Shone Aff. ¶ 17; DeMarco Dep., at 80-81.) DeMarco expressed her concern to Michael Menard, the marketing department director, that since she no longer had managerial responsibilities, she was no longer eligible to receive a bonus. Menard worked with the vice president for marketing and the human resources department to obtain an increase in DeMarco's salary. With her new salary, she then exceeded the amount she would have received had she been eligible for a bonus. (Bernard Aff. ¶ 17; Michael Menard e-mail message to Rona Sembach, March 22, 2005, attached as exhibit 15 to Defendant's statement of facts.)

On April 29, 2005, following the reorganization described above, DeMarco left CooperVision on maternity leave and received disability benefits as of May 2, 2005. (Letter from Cathy Sabatine, Senior Disability Benefits Specialist, Unum Life Ins. Co. of America to Dawn Roides and Jennifer DeMarco (May 20, 2005), attached as Ex. 16 to Defendant's statement of facts.) The provisions of the FMLA leave policy required that DeMarco's position be held open for 12 weeks. (Menard Aff. ¶ 18.) DeMarco was not cleared by her doctor to return to work until October 31, 2005, the date on which her disability benefits expired.*fn5 (FMLA Certification of Health Care Provider (Apr. 29, 2005), attached as Ex. 16 to Defendant's statement facts; prescription pad notes from Unity OB/GYN at Clinton Crossings (Mar. 22, 2005 & Sept. 21, 2005), attached as Ex. 17 to Defendant's statement of facts; Letter from Cathy Sabatine, Senior Disability Benefits Specialist, Unum Life Ins. Co. of America to Dawn Roides and Jennifer DeMarco (Oct. 6, 2005), attached as Ex. 18 to Defendant's statement of facts.) In an April 25, 2005, email in response to one from Laurie Dodge (forwarding questions by Plaintiff about her long-term disability), which was also copied to Plaintiff, Dawn Roides stated:

As for job security I will reference the company policies.

Policy 4.14 FMLA 5.B. An employee will return either to the same position she had before or to a position equivalent (same pay, benefits and working conditions). Keep in mind that FMLA if [sic] for the initial 12 weeks only. Position can be filled after 12 weeks with a permanent employee.

Policy 4.11 STD 7. The maximum length of short term disability benefits is 26 weeks. Only upon prior administrative approval and only if consistent with the short term disability policy, may the length of short term disability leave be extended beyond 26 weeks.

Since [Plaintiff] will be able to return close to the 6 month max mark you need to make a decision on reinstating her or not based on your department needs/status. (Email from Dawn Roides to Laurie Dodge, copy to Jennifer DeMarco (Apr. 24, 2005, 12:42 PM), attached as Ex. 19 to Defendant's statement of facts.) In late April 2005, Plaintiff spoke with Shone about her concern that there would be a position for her when she returned. Shone informed Plaintiff there would be plenty of work for her when she returned, which he believed to be true as a result of the OSI integration. (Shone Aff. ¶ 19.) Shone later stated, in his affidavit, that he did not realize at the time of his conversation with Plaintiff that she would be out of work for six months. (Id. ¶ 20.) By September 2005, the job functions Plaintiff had performed were either eliminated, or had been absorbed into the duties of other employees. The position of marketing program specialist ceased to exist. (Id. ¶ 26.)

In September 2005, Janice Jones, Director of Human Resources for Cooper-Vision, consulted with Dodge, Menard and Shone regarding identifying an open position for Plaintiff when she was due to return the following month. Finding no open positions, Jones wrote to Plaintiff and advised her that no positions were open, and that she could apply for any open position in CooperVision on the date she was cleared to work, October 31, 2005. (Letter from Janice Jones to Plaintiff (Sept. 27, 2005), attached as Ex. 22 to Defendant's statement of facts.) Plaintiff contacted Jones and received a list of all open positions at CooperVision, which consisted of: Billing Support Rep - Temporary position; Part time Customer Service Rep; Marketing Administrative Assistant; R&D, Global Business Solutions and IT technical positions. (Letter from Janice Jones to Plaintiff (Sept. 28, 2005), attached as Ex. 23 to Defendant's statement of facts.) Plaintiff did not express any interest in applying for an open position, and her employment was terminated effective October 31, 2005. (Jones Aff. ¶ 20; Compl. Ex. A, at 2.)

In response to interrogatories inquiring about the basis for Plaintiff's claims that she was terminated "because of her sex (pregnancy)," Plaintiff responded as follows:

Plaintiff had received five (5) promotions within five (5) years of employment with defendant. Plaintiff received positive performance appraisals and had been awarded bonuses.

On or about early April of 2005, shortly after plaintiff notified defendant of the possibility she would be going off work on early disability, defendant demoted plaintiff by removing her manager title along with bonuses and other perks commensurate with her position and many of her duties were distributed to other employees. Leading up to the plaintiff's disability leave, plaintiff was assured numerous times by Defendant that it had plenty of work available for her, and if it wasn't the same position, her rate of pay would remain unchanged.

On or about May 2, 2005 or May 9, 2005, plaintiff was placed off work with an expected return to work date of October of 2005. At the end of September, 2005, plaintiff notified her employer that she would be able to return to work in October, 2005. The following day she was notified that her FMLA had been exhausted, her position no longer existed, and there was no employment available to plaintiff. Yet, following plaintiff's termination, Defendant hired at least two new employees.

Had plaintiff not gone off work because of her pregnant condition, or had Plaintiff not become pregnant, plaintiff would still be employed by defendant. Plaintiff, upon information and belief, is the only employee who was treated in this manner, and not allowed to return to work following early disability or maternity leave. Based upon the foregoing, Plaintiff asserts that defendant's termination was an unlawful discriminatory practice which denied her equal terms, conditions and privileges of employment because of her sex (pregnancy). (Interrogatory No. 5, Plaintiff's Response to Defendant's First Set of.Interrogatories (undated), attached as Ex. 27 to Defendant's statement of facts.) Plaintiff filed a complaint with the Equal Employment Opportunity Commission and it was investigated and denied. She subsequently filed the pending lawsuit.


Summary Judgment

The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interroga-tories, 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 a judgment as a matter of law." Fed. R. Civ. P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.). 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, 274 F.3d 677 (2d Cir. 2001); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3d Cir.1987) (en banc). Where the nonmoving party will bear the burden of proof at trial, the ...

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