United States District Court, S.D. New York
OPINION AND ORDER
G. SCHOFIELD UNITED STATES DISTRICT JUDGE
Radmila Shimanova brings this action against Defendants
TheraCare of New York, Inc. (“TheraCare”), Mindi
Messinger, John Calderon and George Vellios. Plaintiff
alleges wrongful termination and employment discrimination
based on her pregnancy in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq.
(“Title VII”), New York State Human Rights Law,
NY. Exec. Law § 296 et seq. (“NYSHRL”) and
New York City Human Rights Law, N.Y.C. Admin. Code §
8-197 et seq. (“NYCHRL”). Plaintiff further
alleges that Defendants interfered with and retaliated
against her based on her exercise of rights under the Family
and Medical Leave Act, 29 U.S.C. § 2601 et seq.
(“FMLA”). Defendants move for summary judgment on
Plaintiffs claims. For the reasons below, Defendants'
motion is granted.
following facts are taken from the parties' statements
pursuant to Local Civil Rule 56.1 and the parties'
submissions on this motion. For the purposes of this motion,
all factual disputes are resolved, and all reasonable
inferences are drawn, in Plaintiffs favor. See Young v.
United Parcel Serv., Inc., 135 S.Ct. 1338, 1347 (2015);
Walsh v. N.Y. City Hous. Auth., 828 F.3d 70, 74 (2d
Radmila Shimanova holds a master's degree in Education
and Special Education in Early Childhood. She was employed in
various capacities by Defendant TheraCare from approximately
October 2010 to December 2013. TheraCare provides early
intervention services under Article 25 of the N.Y.S. Public
Health Law and special education services under Section 4410
of the N.Y.S. Education Law. Defendant John Calderon has been
TheraCare's Chief Executive Officer at all relevant
times. Defendant George Vellios began working at TheraCare in
November 2003 and served as Vice President of Human Resources
from November 2011 until August 2014. Defendant Mindi
Messinger was TheraCare's Director of Pre-School
Operations from June 2013 to July 2015.
employs or contracts with over 1, 700 people in New York City
and surrounding areas. In addition to occupational
therapists, physical therapists, speech therapists, special
education teachers and others who provide services to
clients, TheraCare has over 160 administrative staff. During
calendar years 2013 and 2014, approximately 92% of TheraCare
employees were female.
policies include an FMLA policy and prohibitions against
discrimination of any kind. In calendar years 2013 and 2014,
approximately 47 TheraCare employees applied for, qualified
for and were granted FMLA leave. Of these, approximately 43
returned to work without incident, and four voluntarily
resigned when their leave expired.
October 2010, Plaintiff was working at TheraCare as a Special
Education Teacher. In that role, she provided special
education services to four or five students per year. Her job
duties included preparing and executing the curriculum,
completing necessary paperwork and preparing reports.
2011, Plaintiff requested and received FMLA leave for the
birth of her child. She returned to work after her leave
September 2012, Plaintiff was promoted to the position of
Individualized Education Program (“IEP”)
Coordinator for TheraCare's Brooklyn Special Class
Integrated Setting (“SCIS”) classrooms. Soon
thereafter she was promoted again, to SCIS Coordinator. As a
SCIS Coordinator, Plaintiff managed the business aspects of
TheraCare's SCIS Department and helped with the
realignment of TheraCare's SCIS coordination process.
April 2013, Plaintiff assumed the role of IEP Coordinator in
the Bronx, where she was responsible for eight classrooms,
eight teachers and eight assistant teachers. Several weeks
later, in early May 2013, she informed her supervisors and
the HR department that she was pregnant and planned to return
to work on a full-time basis at the conclusion of her FMLA
Restructuring of Plaintiff's Department
was hired as the Director of Pre-School Operations in June
2013. Messinger replaced Kathleen Flanders, who according to
Plaintiff had been demoted from Director during her maternity
leave, which commenced in June 2013 and concluded in
September 2013. TheraCare management instructed Messinger to
examine her department and recommend changes to make it run
more efficiently. Messinger supervised two IEP Coordinators
-- Plaintiff and Lizeth Urueta. After examining the IEP
Coordinator position, Messinger determined that the position
should be eliminated and its duties redistributed.
August 2013, Messinger met with Plaintiff and Urueta
individually to inform them of this restructuring. Messinger
told Urueta that she was out of a job because the IEP
Coordinator position was being eliminated and that TheraCare
had an opening for a teacher position in one of its Bronx
classrooms. Urueta immediately accepted the teacher position.
Messinger told Plaintiff about the restructuring and said
Messinger needed Plaintiff's skills in running the
preschool program. Messinger inquired whether Plaintiff would
be interested in any of the new positions Messinger was
proposing, including Lead Teacher, Education Supervisor and
Assistant Director. Messinger also mentioned a classroom
teacher position but did not “stress that [Plaintiff]
should be applying for it.” Plaintiff replied to
Messinger by email dated August 29, 2013, and said that she
was interested in the Assistant Director position but not the
classroom teacher position because Plaintiff would consider
that a demotion.
continued working for TheraCare until her child's birth
in December 2013. The parties dispute what Messinger said
Plaintiff's position would be during this time and
following her anticipated leave. Plaintiff asserts that
Messinger said Plaintiff would work as the Education
Supervisor for four SCIS classrooms in the Bronx until she
went on maternity leave and would be promoted to a more
senior position when she returned. Plaintiff further asserts
that she did the work of an Education Supervisor and even
trained new Education Supervisors during this time. Messinger
maintains that she told Plaintiff to apply for any vacant
position at TheraCare and that she assigned Plaintiff ...