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Sefovic v. Memorial Sloan Kettering Cancer Center

United States District Court, S.D. New York

August 23, 2017


          OPINION & ORDER


         Plaintiff Salijo Sefovic sues his former employer, defendant Memorial Sloan Kettering Cancer Center (the “Center”), and former supervisors, defendants Jose Casa, Thomas Mattice, and Frederic Stell, (together with the Center, “Defendants”) for unlawful discrimination and retaliation against him on the basis of his age and disability, when his employment with the Center was terminated. He asserts sixteen causes of action based on six separate statutes: the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”), the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”), the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. (“FMLA”), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. (“NYSHRL”), and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq. (“NYCHRL”).

         Defendants move for summary judgment on all claims. The undisputed facts establish that Sefovic was absent from work for an extended period of time without authorization; he failed to comply with a request to return to work; and he was continuously unable to work after September 2014. The termination was appropriate. Accordingly, the Court grants Defendants' motion with respect to Sefovic's claims under the ADA, the ADEA, the FMLA, and Title VII, and declines to exercise supplemental jurisdiction over Sefovic's state-law claims under the NYSHRL and NYCHRL.


         Sefovic worked as an evening shift Operations Manager in the Center's Environmental Services Department (“EVS”) from March 8, 1993 to October 21, 2014. Defs.' Local Rule 56.1 Statement (“Defs. 56.1”) ¶ 20, Dkt. 48. The EVS is responsible for keeping the hospital sanitary. Id. As Operations Manager, Sefovic instructed and evaluated the performance of supervisors that reported to him, distributed work assignments, and addressed disciplinary issues. Id. ¶ 21. From approximately 2010 to late 2013, Sefovic reported to defendant Jose Casa. Id.¶ 22. When Casa started overseeing the day shift only in early 2014, then Sefovic reported to defendant Thomas Mattice. Id. ¶ 23. Casa and Mattice have both reported to defendant Frederic Stell since 2014. Id. ¶ 24.

         Sefovic was terminated on October 23, 2014. Id. ¶ 59. Defendants take the position that Sefovic was terminated not for any discriminatory or retaliatory reason but because he was absent for work for an extended period of time without authorization. See Mot. at 1. The Center offers FMLA and Non-FMLA Leave of up to 26 weeks per year for medical leave. Defs. 56.1 ¶ 9. The approval process requires employees to provide documentation supporting their need for medical leave. Young Decl. ¶ 9, Dkt. 51. The Center's FMLA and Disability Leave Center and the Center's third-party benefits administrator and short-term disability benefits provider manage medical leaves and determine whether to approve medical requests after the employee or the employee's doctor submits the required paperwork. Defs. 56.1 ¶¶ 8, 12. There is no role for employees' managers to play in deciding whether to approve or deny medical leave. Id. ¶ 13.

         As a result of a heart condition, Sefovic took FMLA leave from February 10, 2014 through April 1, 2014 and from May 13, 2014 through June 12, 2014; and he took Non-FMLA leave from June 13 through June 27, 2014. Id. ¶¶ 37-38. In July 2014, Sefovic requested Non-FMLA leave starting July 18, 2014. Id. ¶ 41. The Center did not approve the leave request for July. Id. ¶ 42. By letter dated August 20, 2014, the Center informed Sefovic that his leave was denied because he “did not provide the documentation requested by [his] employer for this leave.” Chase Decl. Ex. I, Dkt. 50-9. Since the leave was unapproved, Mattice asked Sefovic to return before the requested end date for the leave period, which Sefovic did. Defs. 56.1 ¶ 44; Young Dep. 23, July 14, 2016, Dkt. 50-5. Soon after returning, Sefovic again went out on medical leave. Defs. 56.1 ¶ 45. He was approved for leave from August 18, 2014 through September 10, 2014. Id. ¶ 46.

         On September 22, 2014, shortly after returning from leave, Sefovic fell down the stairs at work. Id. ¶ 47. He sustained back injuries from the fall and went out from work as a result. See Sefovic Dep. 170, May 18, 2016, Dkt. 50-1. Sefovic sought to be on leave starting September 23, 2014. See Id. at 164-65; Defs. 56.1 ¶ 48, Chase Decl. Ex. N, Dkt. 50-14. By letter dated September 25, 2014, the Center advised Sefovic that paperwork relating to his fall and requested medical leave was due October 15, 2014. Chase Decl. Ex. N. By letter dated October 17, 2014, Mattice informed Sefovic that his leave was unapproved and that Sefovic had “failed to follow departmental call in procedures.” Chase Decl. Ex. P, Dkt. 50-16. Mattice's letter also stated: “You are advised to report to work immediately for your next scheduled shift on Monday, October 20th, 2014.” Id. By letter dated October 20, 2014, the Center notified Sefovic that his leave request was denied because he “did not provide the documentation requested by [his] employer for this leave.” Chase Decl. Ex. O, Dkt. 50-15. Further, Mattice called Sefovic to tell Sefovic that he must return to work, and Sefovic responded that he could not. Defs. 56.1 ¶ 55; Pl. Local Rule 56.1 Statement in Opposition (“Pl. 56.1”) ¶ 55, Dkt. 78; Sefovic Dep. 174-75.

         Sefovic did not return to work on October 20, 2014. Defs. 56.1 ¶ 56. On October 21, 2014, Sefovic called out of work because he did not feel he was able to work. Id. ¶ 57. Sefovic's managers, and Joy Young of Human Resources, jointly decided to terminate Sefovic's employment when he did not return from his leave despite the requests that he do so. Defs. 56.1 ¶ 61. On October 23, 2014, the Center sent Sefovic a letter that his employment was terminated effective October 21, 2014 “because of two separate occasions of unapproved leave.” Chase Decl. Ex. Q, Dkt. 50-17. Sefovic was one of eight EVS employees terminated between 2013 and 2014 for failing to return to work after being directed to do so. Defs. 56.1 ¶ 67. The age of seven other terminated employees were 23, 25, 32, 33, 33, 45, and 47. Id. ¶ 68. They were all younger than Sefovic, who was 58 when terminated. Young Decl. ¶ 14.

         Sefovic takes the position that his termination was, in fact, retaliatory and the result of age and disability discrimination. He surmises that because of his extensive medical leaves in 2013 and 2014, his “managers did not like the fact that [he] was not there five days a week and not able to work 12-15 hours a day.” Sefovic Decl. ¶ 3, Dkt. 77. He claims he was “excluded from any meetings, and interviews of new employees, ” and that after returning to work from leave, “Defendants were behaving very aggressively with [him], they never talked to [him] directly, and they removed three out of five supervisors who were reporting to [him] and . . . started complaining about [his] performance.” Id.

         Sefovic alleges that during his over 20 years with the Center, he “had a reputation for being competent, and was highly regarded by both his subordinates and superiors, as he frequently received commendations for the work he performed.” Opp. at 5; Compl ¶ 29. However, on December 17, 2013, Sefovic was suspended for three days and received a final warning. Chase Decl. Ex. F, Dkt. 50-6; Defs. 56.1 ¶ 26. The warning letter stated that Human Resources had conducted an investigation and found that Sefovic had failed to follow the performance appraisal process by showing several of his reports their performance review scores prior to their final performance reviews and by incorrectly telling his reports that Stell had subsequently changed their review scores. Chase Decl. Ex. F. Further, in 2014, the Center commenced a talent planning and performance evaluation process. Defs. 56.1 ¶ 27. EVS management and Human Resources conducted an appraisal of EVS management and supervisor-level employees in the spring of 2014, and Sefovic, as well as others, did not score well. Id. ¶¶ 29-30. Many of the employees who did not score well chose to leave the Center, and others accepted a performance improvement plan (“PIP”). Id. ¶ 31. Sefovic chose to be placed on a PIP instead of accepting a severance package. Id. ¶ 32.

         According to Sefovic, Defendants treated Sefovic this way “to create the illusion of insubordination in order to discharge him because of his age, disability, and FMLA leave of absence and subjected him to a hostile work environment.” Opp. at 5; Compl. ¶ 51.


         I. Legal Standards

         A. Summary Judgment

         Summary judgment is appropriate “if the movant shows 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). “An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008) (internal quotation marks omitted). And “[a] fact is material if it might affect the outcome of the suit under the governing law.” Id. (internal quotation marks omitted). “In reviewing a motion for summary judgment, [the Court] construe[s] all evidence in the light most favorable to the nonmoving party, drawing all inferences and resolving all ambiguities in its favor.” Dickerson v. Napolitano, 604 F.3d 732, 740 (2d Cir. 2010).

         “In order to defeat a properly supported summary judgment motion, the opposing party must proffer admissible evidence that sets forth specific facts showing a genuinely disputed factual issue that is material under the applicable legal principles.” Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir. 2008) (internal quotation marks and alteration omitted). “[A] party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment . . . .” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010); see also Major League Baseball, 542 F.3d at 310 (“A party opposing summary judgment does not show the existence of a genuine issue of fact to be tried merely by making assertions that are conclusory . . . .”). Nor may a party rely only on the “mere allegations or denials of his pleading.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         B. McDonnell ...

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