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Harriet Cooper v. New York State Nurses Association

March 16, 2012


The opinion of the court was delivered by: Hurley, Senior District Judge:


Plaintiff Harriet Cooper commenced this action against her former employer New York State Nurses Association ("NYSNA") and former supervisors Lorraine Seidel and Susanne Calvello alleging that her employment was terminated in retaliation for her taking a medical leave pursuant to the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. ("FMLA"). Plaintiff also assert retaliatory discharge and hostile work environment claims under the New York State Human Rights Law, N.Y. Exec. Law § 290, et seq. ("NYHRL"). Both parties have cross-moved for summary judgment. For the reasons set forth below, defendants' motion is granted in part and denied in part, and plaintiff's motion is denied.


I. The Parties

Plaintiff was employed by NYSNA between July 1993 and April 29, 2009. NYSNA is a dual purpose organization that serves as both a professional association and a labor union for nurses. The division of NYSNA that serves as a union is known as the Economic and General Welfare ("E&GW") Program. Beginning in September 2000, plaintiff worked as an Associate Director for the E&GW Program. In that capacity, plaintiff was considered an at-will, management-level employee. Plaintiff held the Associate Director position until her termination on April 29, 2009.

Calvello is a Senior Associate Director in E&GW. Calvello was plaintiff's direct supervisor at the time of plaintiff's termination in April 2009. Seidel is the Program Director for E&GW and was Calvello's direct supervisor at all relevant times. Seidel reported to non-party Tina Gerardi, NYSNA's Chief Executive Officer.

II. Structure of the E&GW Department

As an Associate Director, plaintiff was a member of the E&GW Leadership Team. As of November 2008, the Leadership Team consisted of 13 people: the Program Director (Seidel), two Senior Associate Directors (including Calvello) and 10 Associate Directors (including plaintiff). From 2007 through December 2008, plaintiff reported to non-party Barbara Conklin. Then, from early December 2008 through April 29, 2009, plaintiff began reporting to Calvello, although for a large portion of this time plaintiff was out of work on FMLA leave.

III. NYSNA's Operations in 2008 and Plaintiff's Performance

In 2008, NYSNA began to face stiff competition from a rival union, and lost two decertification campaigns -- one at Peninsula Hospital and one at Southampton Hospital. Given these defeats, as well as additional ongoing decertification attempts at sixty other NYSNA facilities, "NYSNA leadership saw the organization as in crisis." (Defs.' 56.1 ¶ 11.) In response, the E&GW leadership decided to "raise the bar" in terms of staff and leadership performance, and began to focus on team-building and reducing "dysfunction" within the team. (Id. ¶ 12.)

According to defendants, plaintiff began to demonstrate performance problems in 2008. Specifically, plaintiff was criticized for ineffectively communicating with her supervisors, displaying resistance to organizational change, and demonstrating an unwillingness to discipline her staff. (Id. ¶ 14.) Defendants assert that they verbally communicated these issues to plaintiff in 2008. Plaintiff disputes the veracity of defendants' claims about her performance issues. In particular, plaintiffs asserts that she was "assigned late to the decertification occurring [at the Peninsula Hospital] in April 2008 as a last ditch effort to try and prevent it," even though NYSNA leadership was not optimistic about avoiding a decertification. (Pl.'s Response to Defs.' 56.1 ¶ 14.) Plaintiff believed that the Peninsula Hospital decertification campaign was a pivotal point in her career, and that Seidel and others wrongly blamed her for the outcome. (Defs.' 56.1 ¶ 15.)

IV. The Events of November and December 2008

On November 6 and 7, 2008, the E&GW Leadership Team held a two-day meeting in Mohonk, New York. Defendants assert that during this meeting, plaintiff indicated her unwillingness to "be 'all-in'" with the Leadership Team's initiative, and "showed resistance to any change." (Defs.' 56.1 ¶ 16.) Plaintiff disputes this assertion, and contends that she did not have any discussions regarding the concept of being "all in" until her return from FMLA leave in March 2009. (Pl.'s Dep. at 63.)

In early December 2008, Calvello became plaintiff's supervisor. Almost immediately, Calvello directed plaintiff to relieve Janet Colding-Brown, an individual who reported to plaintiff, of her duties. Defendants assert that plaintiff "showed extreme resistance to that directive," (Defs.' 56.1 ¶ 18), and plaintiff does not dispute that she believed that terminating Colding-Brown's assignment would violate both defendants' ethics policies and her own moral beliefs. (Pl.'s Response to Defs.' 56.1 ¶ 18.) Plaintiff terminated Colding-Brown's assignment anyway for fear that her own employment would be terminated for insubordination if failed to do so. (Id.)

Another Leadership Team meeting was held on December 18, 2008 and lasted into the early morning hours of December 19, 2008. Defendants contend that during this meeting, plaintiff informed the Leadership Team that she had scheduled time off to attend a wedding on a date that conflicted with an upcoming two-day team-building retreat. (Defs.' 56.1 ¶ 20.) According to defendants, this set off a lengthy discussion by the Leadership Team about "the broader issue of whether Plaintiff was 'all-in' with the Team.'" (Id.) Plaintiff asserts that her vacation time had already been approved, but "was brought up as a topic [of discussion] for the entire leadership team." (Pl.'s Response to Defs.' 56.1 ¶ 20.) Ultimately, the retreat was rescheduled to accommodate plaintiff's vacation schedule.

V. Plaintiff's Medical Conditions and FMLA Leave

Plaintiff testified that she began experiencing heart palpitations, a loss of appetite, and insomnia as early as November 2008. (Pl.'s Dep. at 88.) On December 19, 2008, plaintiff telephoned Calvello to report that she was going to be out sick for the day, to which Calvello replied "okay." (Id. at 93.) Plaintiff saw both her internist and her cardiologist that day and was diagnosed with tachycardia -- an elevated blood pressure. (Id. at 89.) At her internist's suggestion, plaintiff subsequently visited a psychiatrist, Dr. Stanley M. Hertz, for an initial consultation to discuss her symptoms. (Id. at 94.) The psychiatrist prescribed donazepam and "Prozac-like medications," (Decl. of Margaret L. Watson, Esq., dated Feb. 11, 2011 ("Watson Decl."), Ex. N at 1), and encouraged plaintiff to see a therapist. (Pl.'s Dep. at 95.) Thus, plaintiff began treatments with Mr. Lovens, a therapist. Both Dr. Hertz and Mr. Lovens diagnosed plaintiff as suffering from a "major depressive disorder." (See Lovens Dep. at 37; Watson Decl., Ex. N at 3.)

Plaintiff remained out of work between December 19, 2008 and March 3, 2009. She requested and was granted FMLA leave for that period of time. (See Aff. of Kim Roberts, dated Jan. 28, 2011 ("Roberts Aff.") ¶¶ 3-4.) The parties do not dispute that defendants did not interfere in any way with plaintiff's ability to take this FMLA leave. Defendants have also proffered undisputed evidence that since 2000, five other members of the E&GW Leadership Team -- including Seidel -- have requested and received an FMLA leave of absence. (Id. ¶ 5.) Three of those five (including Seidel) are still employed by NYSNA, while the other two have retired. (Id.)

VI. Plaintiff's Co-Workers' and Supervisors' Reactions to her FMLA Leave

On January 22, 2009, while plaintiff was out on FMLA leave, Kim Roberts, the Director of Human Resources for NYSNA, circulated an email to Seidel, Calvello, Conklin, and Gerardi advising them that plaintiff would not be returning to work until March 2, 2009. (Watson Decl., Ex. I.) That same day, Seidel sent an email to Gerardi that stated as follows:

I would like us to take a look at what [plaintiff] has on the books and possibly consider a severance pkg we may want to offer her. I know we cannot terminate her[,] but if we buy out her time, she is likely to just go. This is so unacceptable and not good for the team or our ability to cover assignments. I know you know that. (Id.) During her deposition, Gerardi testified that Seidel, Calvello, and others in the E&GW Leadership Team had expressed concern "about the amount of work that needed to be done while [plaintiff] was gone." (Gerardi Dep. at 51.) Gerardi further testified that Seidel had opined to her that plaintiff was not really sick, and that she (Seidel) was concerned that plaintiff and other staff members were "using LOAs as a way not to be involved in a lot of the work of the association." (Id. at 52.) Finally, Gerardi testified that Seidel had "admitted" feeling "betrayed" that plaintiff took FMLA leave. (Id. at 91.)

Seidel testified during her deposition that she sent the January 22, 2009 email to Gerardi because "it had been increasingly apparent to [her] well before [plaintiff's] leave that [plaintiff] was not buying into the ideology and direction and the team and was not happy working at NYSNA." (Seidel Dep. at 72-73.) Under those circumstances, Seidel thought "the most compassionate approach" would be to offer plaintiff a severance package. (Id. at 73.) Seidel testified that she did not feel "betrayed by [plaintiff] going out on leave." (Id. at 82.)

During her deposition, Calvello testified that other Associate Directors on the E&GW Leadership Team felt betrayed by plaintiff taking FMLA leave because they had to take on extra work during that period. (Calvello Dep. at 39-41.) Conklin testified that members of the Leadership Team were "disappointed with Harriet," but "not for taking leave." (Conklin Dep. at 74.)

VII. Plaintiff's Return to Work

Plaintiff returned to work on March 3, 2009. Upon plaintiff's return, Seidel convened a meeting with plaintiff, Calvello, and Conklin, purportedly to offer plaintiff ways to assist her with "rebuilding [her] relationship with the team." (Seidel Dep. at 91.) According to Seidel, the E&GW Leadership Team had "lost all confidence" in plaintiff because of "her performance and her failure to sign on to the team's ideology" during the November and December 2008 meetings. (Id. at 82-83.) Seidel testified during her deposition, however, that she also told plaintiff "that the team's perception was that they felt betrayed by her going out on leave." (Id. at

82.) Plaintiff confirms that Seidel informed her during this meeting that "the team felt that I bailed out and betrayed them," and that "it was up to [plaintiff] to regain trust of the team." (Pl.'s Dep. at 65-66.) Seidel offered plaintiff the services of Robin Perry, an outside team-building consultant, and plaintiff subsequently met with Perry.

Upon plaintiff's return to work she held the same Associate Director title but was given a "completely new assignment," which entailed the "same responsibilities, just new facilities, [and

a] new staff." (Id. at 101.) Plaintiff testified that she was told "there had been a lot of changes since [she had] been gone," but these changes were not explained to her. (Id. at 101-02.) Instead, when she made a mistake she would ...

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