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Ejiogu v. Grand Minor Nursing and Rehabilitation Center

United States District Court, S.D. New York

March 29, 2017


          For the Plaintiff: Gregory Antollino

          For Defendant Grand Manor Nursing and Rehabilitation Cdated: Joseph J. Lynett Jackson Lewis P.C.

          For Defendants Carolyn Mooyoung and Howard Wolf: Elior D. Shiloh Lewis, Brisbois, Bisgaard & Smith, LLP


          DENISE COTE, Unede Satate District Judge

         Gladys Ejiogu (“Ejiogu”) has sued her former employer Grand Manor Nursing and Rehabilitation Center ("Grand Manor") and two of its supervisors under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., § 504 of the Rehabilitation Act, 29 U.S.C. § 794, and the New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code § 8-107. The defendants have moved for summary judgment under Rule 56, Fed.R.Civ.P. For the reasons that follow, the defendants' motion is largely granted.


         The following facts are undisputed or taken in the light most favorable to Ejiogu, unless otherwise noted. Grand Manor is a nursing and rehabilitation center. Ejiogu was employed by Grand Manor as an In-Service Coordinator for almost two years, beginning November 1, 2011. Her responsibilities included training all staff members on resident care and conducting the orientation of new employees. Ejiogu was also required to visit the unit floors, make rounds to observe the quality of resident care, and assess whether additional training of staff was needed.

         Howard Wolf (“Wolf”), Grand Manor's Administrator, oversaw the operations at Grand Manor during Ejiogu's employment. Carolyn Mooyoung (“Mooyoung”), Director of Nursing at Grand Manor, served as Ejiogu's direct supervisor throughout her employment.

         I. Ejiogu Takes Leave from June 10 to June 21, 2013.

         In June of 2013, Ejiogu learned that her mother was severely ill. Ejiogu asked Mooyoung for time off to visit and care for her mother in Nigeria.[1] Ejiogu has described Mooyoung's response as follows:

[Mooyoung] said to me, Gladys I am not going to let you go for three months; unless you are going to go for two weeks and come back. . . . So the first time I got the news that my mom was sick I went to her. She told me you can't go. But then administrator said, Oh, Gladys can go because why can't she go; we allow other staff members; if her mother is sick, why can't she go; allow her to go. But then Carolyn Mooyoung objected and I said, Okay, no problem; I am just going to go for two weeks and I will be back.

         Ejiogu took approximately two weeks of leave from June 10 to June 21. Her mother died on June 18. Ejiogu's period of leave consisted of three personal leave days, one sick leave day, and one week of bereavement leave. Ejiogu was paid for all but one day of this leave.

         II. Ejiogu Receives FMLA Leave from June 25 to September 25, 2013.

         Ejiogu did not return to work as scheduled. On June 26, Ejiogu's doctor sent a letter to Grand Manor asking to excuse Ejiogu from June 26 to August 26 since she was “receiving medical care that requires frequent medical tests and follow up visits . . . [and] is unable to work in her current condition.” According to Ejiogu, the stress associated with her mother's death had exacerbated her preexisting Graves' disease symptoms.

         That same day, Grand Manor's Director of Human Resources, Jean Bosze (“Bosze”), sent Ejiogu a letter informing her that in order to be eligible for FMLA leave, her physician would need to fill out and return certain forms no later than July 5.[2] Ejiogu submitted the required documentation in a timely fashion, and Grand Manor sent Ejiogu a formal notice of eligibility for FMLA leave on July 8. The July 8 notice confirmed that Ejiogu's FMLA leave had commenced on June 25, and that she would be expected to return on or before September 25. Grand Manor hired Susan Dempsey (“Dempsey”) as a temporary In-Services Coordinator in Ejiogu's absence.

         While Ejiogu was on FMLA leave, Grand Manor fired Bosze and her human resources (“HR”) responsibilities were redistributed among Grand Manor's employees. Thus, in addition to performing the In-Service Coordinator responsibilities, Dempsey was also required to perform HR tasks. During her brief tenure as temporary In-Services Coordinator, Dempsey discovered that Ejiogu's office was in a state of disarray. She communicated this information to Mooyoung, who in turn visited Ejiogu's office. Mooyoung later described Ejiogu's office as a “mess” with “tons of misfiled, not filed, regular inservices that were never updated, ” and how “a lot of things that she was asked to do she didn't do.” Mooyoung does not dispute the state of her office. Instead, she justifies the “profusion of paper” by noting that the In-Service Coordinator job was a “paper-intensive job” that required her to maintain in-service training documents. She further explains that she had her own filing system which she understood, that no one cleaned up after her, and that she had only a small garbage can to dispose of unneeded paperwork.

         III. Ejiogu Returns to Grand Manor.

         Ejiogu returned to Grand Manor on September 25 and presented Mooyoung with a signed “Return to Work” letter. The letter was printed on Mount Sinai School of Medicine letterhead and dated September 25. The letter stated in relevant part: “Gladys Ejiogu is cleared to return to work today, 9/25/13.” Mooyoung required Ejiogu to obtain a doctor's letter indicating that Ejiogu could return to work “without restrictions.” That same day, Ejiogu acquired a new “Return to Work” letter personally addressed to Mooyoung that stated in relevant part that Ejiogu “may return to work as of today, 9/25/2013, without any restrictions.”[3] Mooyoung accepted this new letter and Ejiogu commenced work that day.

         On September 26, Dempsey met with Ejiogu to review her duties -- including the newly added HR responsibilities -- and to provide Ejiogu with updates on what had happened in her absence. Most of the duties were identical to those Ejiogu had been required to perform before taking leave.

         Ejiogu also met with Mooyoung on September 26. Mooyoung presented Ejiogu with two documents entitled “Review of Responsibilities of In-Service Coordinator” (“ROR”) and “HR File Documents.” While the Grand Manor Personnel Handbook provides that, upon hiring, a "[d]etailed job description[] will be given out" the defendants acknowledge that no detailed job description "was [previously] provided for In-Service Coordinator." The ROR listed duties that Ejiogu had not previously performed but which Dempsey had performed after Bosze's departure. Ejiogu refused to sign the documents at her September 26 meeting with Moooyoung.[4] In their meetings with Ejiogu, both Dempsey and Mooyoung accused Ejiogu of having hoarded papers in her office.

         At some point on September 26, Ejiogu also met with Martin and Bradley Liebman, the co-owners of Grand Manor.[5] According to Martin Liebman, Ejiogu was “very distraught.” The Liebmans instructed Ejiogu to return on Monday, September 30, to speak with Wolf about whatever issues she was experiencing.

         Because Ejiogu refused to sign the ROR form during her September 26 meeting, Mooyoung arranged another meeting with Ejiogu for September 27. At Mooyoug's request, both parties brought witnesses to the September 27 meeting.

         Ejiogu borrowed a cellular phone in order to try to record the September 27 meeting. She placed it in her pocket but asserts that she didn't make a recording because she didn't know how to use the phone to do so. At the meeting, the phone made a noise. Mooyoung, believing that Ejiogu was attempting to record their meeting, lunged to grab the phone from her hand.[6] Ejiogu kept the phone and Mooyoung instructed Ejiogu to “clock out and leave.” Ejiogu interpreted Mooyoung's “clock out” instruction as a termination of employment.[7] Mooyoung contends that she simply intended for Ejiogu to leave work that Friday and return on Monday, September 30.

         After Ejiogu's departure from Grand Manor's premises, [8] Mooyoung drafted a disciplinary suspension form accusing Ejiogu of failing to follow instructions and misconduct.[9] The suspension form stated that Ejiogu had

violated facility policy and failed to follow instructions. When asked to meet with DNS and ADNS[10]for review of position (Inservice Coordinator) responsibilities, [E]iogu] failed to respond and come to nursing office despite being called and paged overhead. [E]iogu] was noted in her office at the time but refused to respond. [E]iogu] failed to produce staff competencies she said was done on 9/26/13 as directed. Ms. Ejiogu was also noted taping conversations in DNS office as witnessed by ADNS and DNS without permission or notification on her cell phone. When Ms. Ejiogu was confronted with this discovery she abruptly left the office and refused to come back as directed by myself DNS.

         The form contains a handwritten annotation directly beneath the term “Suspension” that reads: “9/27/13 told to punch out 12:30pm [and] return Monday when Mr. Wolf Admin would be in facility.” The form is signed by Mooyoung and an ADNS witness, but the “received by” signature line is left blank. The form was never shown to or sent to Ejiogu and the parties agree that Ejiogu was never formally suspended.

         IV. Ejiogu Never Returned to Grand Manor.

         When Ejiogu did not return to Grand Manor on Monday, September 30, Wolf attempted to contact her on her cell phone at least four times between 11:07 a.m. and 11:23 a.m.[11] Wolf also attempted to contact Ejiogu's emergency contact number at least four times between 11:23 and 11:25 a.m. Wolf's attempts to reach Ejiogu are reflected in Ejiogu's cell phone records, Grand Manor's phone records, and emails Wolf sent to Mooyoung that morning. One of Wolf's emails indicates that he “left a message that Gladys Ejiogu should call Howard Wolf at her earliest opportunity.” Wolf also sent a certified letter on September 30 to Ejiogu's home address explaining that on September 30, he made several unsuccessful attempts to contact Ejiogu by phone. He wrote that it was “urgent that you contact Ms. Mooyoung as soon as possible.”

         Ejiogu acknowledges that she received Wolf's letter on or about October 4, but did not respond or attempt to contact Wolf or Mooyoung thereafter. After not hearing from Ejiogu, Wolf formally terminated Ejiogu's employment on October 4. His letter of termination outlined his account of the September 27 interactions between Ejiogu and Mooyoung. Specifically, Wolf noted that “[d]uring the course of your meeting with Ms. Mooyoung, certain deficiencies in your performance were noted and you were advised that it was the facility's expectation that these problems would be corrected.” Wolf's letter acknowledged that Mooyoung had instructed Ejiogu to “punch out and leave the building, ” but that Ejiogu had, “in turn, indicated that you would be calling me on Monday to discuss your meeting with Ms. Mooyoung.” Wolf's letter also detailed his unsuccessful attempts to contact Ejiogu on September 30, 2013.

         On October 8, 2013, Ejiogu received a letter with attached forms from the New York State Department of Labor (“DOL”). The letter acknowledged that the DOL had “received information indicating that you are engaged in or seeking self employment” and listed September 30, 2013 as the effective date of claim. Ejiogu was required to complete two forms in connection with her claim. In the “Career-Oriented Training Questionnaire, ” Ejiogu noted that she was presently enrolled in a course entitled “Principles of Child Development/Learning” from 6:30 to 8:00 p.m. on Tuesdays and Thursdays, and that she was scheduled to begin 120 hours of training in “Child Development Associate Training” on October 8, 2013. In a separate form, Ejiogu indicated that she started a child care business in September 2012, but that she had been trying to recruit children to the child care center with “little or no success at this time, ” and that she had “never worked on the business, because [she had been] trying to get children to enrol[l] into the daycare center.” She claimed that the business had ceased operating “when I had no child at all in the day care and when I was on FMLA.” Finally, the form stated that “[t]his business just got started in August [2013] after . . . opening in Sept. 2012 due to the fact that I was on FMLA and also the fact that I had no child enlisted in the day care.”

         The statements in Ejiogu's completed DOL forms were made under penalty of perjury “for the purpose of obtaining unemployment insurance benefits.” During her deposition, Ejiogu acknowledged that she was able to operate her daycare business following her return from FMLA leave because she had completed all of her licenses and certifications.

         V. Procedural History

         In a complaint filed on January 23, 2015, and amended on October 5, 2015, Ejiogu principally alleges that her employment was unlawfully terminated in retaliation for her decision to take FMLA leave. She asserts that the defendants interfered with, and retaliated against her for exercising, her rights under the FMLA, 29 U.S.C. §§ 2601 et seq. Ejiogu also brings a claim of retaliation under § 504 of the Rehabilitation Act, 29 U.S.C. § 794, as well as under NYCHRL, N.Y.C. Admin. Code § 8-107. The defendants filed their motion for summary judgment on May 2, 2016. The motion became fully submitted on July 25. This case was reassigned to this Court on November 22.


         Summary judgment may not be granted unless all of the submissions taken together "show[] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "Summary judgment is appropriate when the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Smith v. Cty. Of Suffolk, 776 F.3d 114, 121 (2d Cir. 2015) (citation omitted). The moving party bears the burden of demonstrating the absence of a material factual dispute. Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 456 (1992); Gemmink v. Jay Peak Inc., 807 F.3d 46, 48 (2d Cir. 2015).

         Once the moving party has asserted facts showing that the non-movant's claims cannot be sustained, “the party opposing summary judgment may not merely rest on the allegations or denials of his pleading; rather his response, by affidavits or otherwise as provided in [Rule 56], must set forth specific facts demonstrating that there is a genuine issue for trial.” Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (citation omitted). “[C]onclusory statements, conjecture, and inadmissible evidence are insufficient to defeat summary judgment, ” Ridinger v. Dow Jones & Co. Inc., 651 F.3d 309, 317 (2d Cir. 2011) (citation omitted), as is “mere speculation or conjecture as to the true nature of the facts.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (citation omitted). “An issue of fact is genuine and material if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Cross Commerce Media, Inc. v. Collective, Inc., 841 F.3d 155, 162 (2d Cir. 2016). The court must draw all inferences and all ambiguities in a light most favorable to the nonmoving party. Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006); United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).

         I. FMLA Causes of Action

         The FMLA entitles eligible employees with qualifying reasons to twelve workweeks of unpaid leave during any twelvemonth period. 29 U.S.C. § 2612(a)(1). Qualifying reasons include “a serious health condition that makes the employee unable to perform the functions of the position of such employee” or to care for a parent of an employee if the parent has a serious health condition. Id. § 2612(a)(1)(C), (D).

         Section 2615 of the FMLA states that “[i]t shall be unlawful for any employer to interfere with, restrain, or deny the exercise or the attempt to exercise, any right provided under [the FMLA].” Id. § 2615(a)(1). This section creates a private right of action for an employee to seek both equitable relief and money damages against an employer that interferes with, restrains, or denies the exercise of FMLA rights. Sista, 445 F.3d at 174. Ejiogu asserts claims of both interference and retaliation under § 2615(a)(1).

         A. FMLA Interference

         “To succeed on a claim of FMLA interference, a plaintiff must establish that the defendant denied or otherwise interfered with a benefit to which she was entitled under the FMLA." Graziadio v. Culinary Inst. of Am., 817 F.3d 415, 424 (2d Cir. 2016). Interfering with the exercise of an employee's rights includes “not only refusing to authorize FMLA leave, but discouraging an employee from using such leave.” Potenza v. City of N.Y.,365 F.3d 165, 167 (2d Cir. 2004) (per curiam) (citing 29 C.F.R. § 825.220(b)). Interference also includes “discharging or in any other way discriminating against any person (whether or not an employee) for opposing or complaining about any unlawful ...

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