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Ejiogu v. Grand Minor Nursing and Rehabilitation Center

United States District Court, S.D. New York

April 5, 2017


          For the Plaintiff: Gregory Antollino

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

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


          DENISE COTE, District Judge

         On April 1, 2017, Gladys Ejiogu (“Ejiogu”) filed a motion for reconsideration of the Court's March 29 Opinion and Order largely dismissing upon summary judgment Ejiogu's interference and retaliation claims under the Family and Medical Leave Act (“FMLA”). Ejiogu v. Grand Manor Nursing & Rehab. Ctr., 15cv505 (DLC), 2017 WL 1184278 (S.D.N.Y. Mar. 29, 2017) (“Ejiogu”).[1] The April 1 motion for reconsideration is denied. The plaintiff's principal arguments in support of the motion are addressed below.


         The standard for granting a motion for reconsideration is “strict.” Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012) (citation omitted) (discussing a motion under Rule 59(e), Fed.R.Civ.P.). “[R]econsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked.” Id. (citation omitted). “A motion for reconsideration should be granted only when the defendant identifies an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Tr., 729 F.3d 99, 104 (2d Cir. 2013) (citation omitted). It is “not a vehicle for relitigating old issues, presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a second bite at the apple.” Analytical Surveys, 684 F.3d at 52 (citation omitted).

         Familiarity with Ejiogu is presumed. Only those facts necessary to understand the arguments presented in the motion for reconsideration are repeated here. Ejiogu has sued her former employer Grand Manor Nursing and Rehabilitation Center (“Grand Manor”) principally for interfering with her right to take FMLA leave and retaliating against her for taking such leave. Ejiogu worked as an In-Service Coordinator at Grand Manor for almost two years, beginning November 1, 2011. She was responsible for training staff members on resident care and conducting the orientation of new employees. She took leave from June 10 to 21, 2013 to care for her mother and to mourn her mother's passing. Following that leave, she did not return to Grand Manor as scheduled. Instead, on June 26, she requested FMLA leave for her own medical reasons. That leave was granted, and Ejiogu was on FMLA leave from June 25 to September 25, 2013.

         Upon Ejiogu's return to Grand Manor, she complained about the new written description of her duties, which included certain human resource (“HR”) duties. The owners told her to discuss her concerns with a senior supervisor, who would be returning to Grand Manor on September 30. But, following a confrontational meeting with her direct supervisor -- Carolyn Mooyoung (“Mooyoung”) -- on September 27, Ejiogu never returned to work. As described in detail in Ejiogu, the undisputed facts demonstrate that the plaintiff abandoned her employment at Grand Manor. The defendants were granted summary judgment on each of plaintiff's claims with the exception of her claim that Grand Manor failed to give her FMLA leave in June of 2013 so that she could care for her mother during her mother's serious illness.

         I. FMLA Interference

         Ejiogu's principal argument for reconsideration of the denial of her interference claims concerns changes made to her job description upon her return to Grand Manor. In Ejiogu, the Court held that “[n]o reasonable juror could avoid the conclusion that Ejiogu was restored to an ‘equivalent position' at Grand Manor when she returned from FMLA leave.” Ejiogu, 2017 WL 1184278, at *9. Ejiogu urges in her reconsideration motion that the determination of whether she was restored to an “equivalent position” upon her return to Grand Manor is a question of fact to be decided by a jury. While the judgment of whether the position offered an employee upon return from FMLA leave is equivalent to the one held prior to leave is typically a question of fact, in opposing this summary judgment motion Ejiogu was required to identify admissible evidence from which a jury could conclude that the positions were not equivalent. This she failed to do. Indeed, she does not even now dispute any of the facts upon which the Court relied in making its determination.

         For example, Ejiogu does not dispute that the temporary In-Services Coordinator hired in Ejiogu's absence was required to perform HR duties after Grand Manor lost its Director of Human Resources. Nor does Ejiogu dispute that “the new HR duties were few in number, ” and were “substantially similar to those she had previously performed, entailed substantially equivalent skill, and imposed substantially equivalent responsibility.” Id. Moreover, Ejiogu does not challenge the Opinion's rejection of her argument that three particular duties had transformed her job.[2] Finally, beyond all of these hurdles to her claim, as she twice concedes in her motion for reconsideration, Grand Manor's owners “gave her permission to discuss the [changes in her job description] with Mr. Wolf when he returned” to work on Monday, September 30. Having failed to meet with Wolf about her job duties, it is not surprising that Ejiogu was unable in her opposition to the motion for summary judgment to identify with sufficient clarity or precision in which ways her job upon her return to work would not have been “equivalent, ” as measured by the FMLA, to her prior position at Grand Manor.

         II. FMLA Retaliation

         The motion for reconsideration principally argues that Ejiogu relied on the wrong body of law in defining what constitutes an adverse employment action in the context of an FMLA retaliation claim. The use of the correct definition for an adverse employment action had no impact, however, on the plaintiff's chief complaint in this lawsuit -- which is that she was fired in retaliation for her opposition to a change in her job duties. It has never been disputed that the ...

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