United States District Court, S.D. New York
OPINION & ORDER
A. CROTTY, UNITED STATES DISTRICT JUDGE.
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”).
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.
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. ¶
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.
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.
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.
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.
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.
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. ¶
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.
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).
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).