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Shimanova v. Theracare of New York, Inc.

United States District Court, S.D. New York

March 10, 2017

THERACARE OF NEW YORK, INC., et al., Defendants.



         Plaintiff 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.

         I. BACKGROUND

         The 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 Cir. 2016).

         A. The Parties

         Plaintiff 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.

         B. TheraCare

         TheraCare 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.

         TheraCare's 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.

         C. Plaintiff's Employment

         In 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.

         In July 2011, Plaintiff requested and received FMLA leave for the birth of her child. She returned to work after her leave without incident.

         In 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.

         In 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 leave.

         D. Restructuring of Plaintiff's Department

         Messinger 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.

         In 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.

         Plaintiff 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 ...

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