United States District Court, W.D. New York
DECISION AND ORDER
ELIZABETHA A. WOLFORD UNITED STATES DISTRICT JUDGE
Edith Jordan ("Plaintiff) filed this action on May 14,
2013, complaining of violations of the First and Fourteenth
Amendments, the Family 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 ("NYSHRL") and the New York
Constitution. (Dkt. 1). The parties have completed discovery.
(See Dkt. 49). Defendants County of Chemung, New
York ("Chemung County" or "the County"),
Christopher J. Moss ("Moss"), and William A. Schrom
("Schrom") (collectively, "Defendants")
moved for summary judgment on August 1, 2016. (Dkt. 50).
Plaintiff responded (Dkt. 55), and Defendants replied to
Plaintiffs response. (Dkt. 59). Oral argument was held on
January 20, 2017, at which time the Court reserved decision.
(See Dkt. 64).
reasons stated below, Defendants' motion for summary
judgment is granted in part and denied in part.
was employed by the Chemung County Sheriffs Office as a
part-time Corrections Officer in the Chemung County Jail
("the Jail"), starting in August 2006. (Dkt. 50-18
at ¶¶ 1, 14; Dkt. 55-1 at 51; Dkt. 55-18 at
¶¶ 1, 14). At all relevant times, Moss was the
Sheriff and Schrom was the Undersheriff of Chemung County.
(Dkt. 50-18 at ¶¶ 3-4; Dkt. 50-3 at ¶ 1; Dkt.
51 at ¶ 1; Dkt. 55-18 at ¶¶ 3-4). Major John
Hamula ("Hamula") was the superintendent of the
Jail (Dkt. 50-18 at ¶ 9; Dkt. 55-18 at ¶ 9);
Captain Charles Wilson ("Wilson") was responsible
for Jail administration and operations (Dkt. 50-18 at
¶7; Dkt. 55-18 at ¶ 7); and Daniel Mandell
("Mandell"), a Lieutenant and then Captain, was
Plaintiffs supervisor (Dkt. 50-18 at ¶ 8; Dkt. 55-18 at
was initially hired to work only as needed, on a fill-in
basis for other corrections officers, but was later given
regular, prescheduled shifts on Tuesdays and Sundays.
(See Dkt. 50-18 at ¶¶ 15-16; Dkt. 55-18 at
¶ 15-16; see also Dkt. 55-1 at 52). Plaintiff
was a competent employee when she worked. (Dkt. 50-18 at
¶ 17; Dkt. 55-18 at ¶ 17). On or about June 18,
2010, Plaintiff submitted an FMLA request, seeking
intermittent leave "to attend to her sick children
and/or their personal needs." (Dkt. 50-18 at ¶21;
Dkt. 55-18 at ¶ 21; see, e.g., Dkt. 55-1 at
121). On June 28 or 29, 2010, Plaintiff requested that Wilson
remove her from her regularly scheduled Tuesday shift. (Dkt.
50-18 at ¶ 22; Dkt. 55-7 at 2; Dkt. 55-18 at ¶22).
The County accepted and approved Plaintiffs FMLA request on
June 30, 2010. (Dkt. 50-18 at ¶ 23; Dkt. 55-18 at
last appeared for work on December 9, 2010. (Dkt. 50-18 at
¶27; Dkt. 55-18 at ¶ 27). Plaintiff submitted a
claim for unemployment on August 30, 2010, which was opposed
by the Chemung County Sheriffs Office. (Dkt. 50-18 at ¶
30; see Dkt. 55-18 at ¶ 30). The County
ultimately terminated Plaintiffs employment on September 28,
2011. (Dkt. 55-12 at 2).
11 causes of action are: (1) violation of the FMLA by Chemung
County; (2) violation of the Fourteenth Amendment's Due
Process Clause by all Defendants; (3) gender discrimination
under Title VII by Chemung County; (4) gender discrimination
under the NYSHRL by Moss and Schrom; (5) violations of the
Equal Protection Clause of the Fourteenth Amendment by all
Defendants; (6) retaliation in violation of the First
Amendment by all Defendants; (7) retaliation in violation of
Title VII by Chemung County; (8) retaliation in violation of
the NYSHRL by Moss and Schrom; (9) violation of the New York
State Constitution, Article I § 11 by all Defendants;
(10) violation of the New York State Constitution, Article I
§ 6 by all Defendants; and (11) violation of the New
York State Constitution, Article I § 8 by all
Defendants. (Dkt. 1). Defendants seek summary judgment on
each cause of action. (See Dkt. 50-19).
Court first addresses Plaintiffs FMLA claim, then proceeds to
discuss her Due Process claim, Title VII claims, First
Amendment claim, Equal Protection Clause claim, and, finally,
her claims under the NYSHRL and the New York State
Standard of Review
Rule of Civil Procedure 56 provides that summary judgment
should be granted if the moving party establishes "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). The court should grant summary judgment
if, after considering the evidence in the light most
favorable to the nonmoving party, the court finds that no
rational jury could find in favor of that party. See
Scott v. Harris, 550 U.S. 372, 380 (2007) (citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986)).
the moving party has met its burden, the opposing party
"must do more than simply show that there is some
metaphysical doubt as to the material facts. . . . [T]he
nonmoving party must come forward with specific facts showing
that there is a genuine issue for trial.'"
Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002)
(quoting Matsushita Elec, 475 U.S. at 586-87).
"[T]he mere existence of some alleged factual
dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment. . . ."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
Plaintiff's FMLA Claim Survives Summary Judgment in
claims a violation of the FMLA against Chemung County. (Dkt.
1 at ¶¶ 20-24). The County argues that Plaintiffs
FMLA claim fails as a matter of law. (Dkt. 50-19 at 4-8).
allows eligible employees up to a total of 12 weeks of unpaid
leave during any 12-month period to allow an employee to care
"for the spouse, or a son, daughter, or parent, of the
employee, if such spouse, son, daughter, or parent has a
serious health condition." 29 U.S.C. §
2612(a)(1)(C). "[A]t the end of an employee's
leave[, ] the employee has the right to return to the
position [s]he held before the leave or its equivalent"
Sista v. CDC Ms N. Am., Inc., 445 F.3d 161, 174 (2d
Cir. 2006) (citing 29 U.S.C. §2614).
employee may seek equitable relief or damages against a state
employer if the employer interferes with, restrains, or
denies the exercise of FMLA rights under §
2612(a)(1)(C). 29 U.S.C. § 2615(a)(1); Nev.
Dep't of Human Res. v. Hibbs, 538 U.S. 721, 724-25
(2003). But see Coleman v. Court of Appeals of Md.,
566 U.S. 30, 33 (2012) (disallowing money damages suits
against states for violations of § 2612(a)(1)(D)).
The regulations promulgated pursuant to the FMLA explain that
"'[interfering with' the exercise of an
employee's rights would include, for example, not only
refusing to authorize FMLA leave, but discouraging an
employee from using such leave, " 29 C.F.R. §
825.220(b), and that "[a]n employer is prohibited from
discriminating against employees or prospective employees who
have used FMLA leave." 29 C.F.R. § 825.220(c).
Potenza v. City of N.Y., 365 F.3d 165, 167 (2d Cir.
In a general sense, an employee brings an
"interference" claim when her employer has
prevented or otherwise impeded the employee's ability to
exercise rights under the FMLA. "Retaliation"
claims, on the other hand, involve an employee actually
exercising her rights or opposing perceived unlawful conduct
under the FMLA and then being subjected to some adverse
employment action by the employer. The two types of claims
serve as ex ante and ex post protections
for employees who seek to avail themselves of rights granted
by the FMLA.
Woods v. START Treatment & Recovery Ctrs., Inc.,
864 F.2d 158, 166 (2d Cir. 2017) (citations omitted).
threshold matter, the Court notes that although the complaint
fails to specify whether Plaintiff raises an interference
and/or retaliation claim, it is properly read as raising both
types of FMLA claims. Plaintiff alleges that Chemung County
"intentionally and willfully interfered with and denied
the exercise of rights provided under the FMLA by removing
her from the work schedule, taking away all of her hours, and
then discharging her." (Dkt. 1 at ¶ 23). And,
although clearer pleading would have been preferable, the
Court reads Plaintiffs complaint to assert that Chemung
County removed Plaintiffs regularly scheduled Sunday shifts
and then terminated her in retaliation for Plaintiffs
exercise of FMLA rights. This is sufficient to plead an FMLA
Plaintiffs FMLA Interference Claim Fails
[T]o prevail on a claim of interference with  FMLA rights,
a plaintiff must establish: 1) that she is an eligible
employee under the FMLA; 2) that the defendant is an employer
as defined by the FMLA; 3) that she was entitled to take
leave under the FMLA; 4) that she gave notice to the
defendant of her intention to take leave; and 5) that she was
denied benefits to which she was entitled under the FMLA.
Graziadio v. Culinary Inst, of Am., 817 F.3d 415,
424 (2d Cir. 2016).
the County does not dispute that Plaintiff was eligible for
FMLA benefits, that it is an employer as defined by the FMLA,
that Plaintiff was entitled to take leave under the FMLA, and
that she gave notice to Wilson of her intent to take such
leave. (See Dkt. 50-18 at ¶¶ 21-24).
Plaintiff took leave to care for her son, pursuant to §
2612(a)(1)(C). (See Dkt. 55-1 at 121). However, the
County argues that Plaintiffs interference claim fails
because there is no evidence to show interference with
Plaintiffs FMLA rights. (Dkt. 50-19 at 5-8). The Court agrees.
admits in her papers that her "FMLA request was accepted
and approved by [Chemung County] on June 30, 2010."
(Dkt. 55-18 at ¶ 23). Plaintiff also admitted during her
deposition that her FMLA leave request was approved. (Dkt.
55-1 at 147). Plaintiff was not denied intermittent leave
between the time her leave request was approved and when she
was removed from the Sunday and Tuesday work schedule.
(Id. at 149-50). Plaintiff was removed from the
Tuesday schedule when she requested to be removed. (Dkt. 55-2
at 1, 46). Thus, Plaintiff has failed to identify any denial
of FMLA benefits, and her interference claim fails as a
matter of law. See Douyon v. N.Y.C. Dep't of
Educ, 665 F.App'x 54, 57 (2d Cir. 2016) (affirming
where "[the plaintiff] failed to adduce evidence . . .
that the defendants denied her benefits to which she was
entitled under the FMLA"); Thomsen v. Stantec,
Inc., 483 F.App'x 620, 622 (2d Cir. 2012) (finding
that the plaintiff failed to show FMLA interference where
there was no evidence that the employer "refused to
authorize any FMLA leave or discouraged [the plaintiff] from
using such leave").
argues that she requested she be removed from her Tuesday
shifts only, but that she was "penalized" for not
working the Tuesday shift with the removal of her Sunday
shift as well. (Dkt. 55-17 at 7-8). Plaintiff further argues
that once she obtained child care in August 2010, presumably
obviating her need for FMLA leave, she was not restored to
her regularly scheduled Tuesday and Sunday shifts.
(Id. at 8). These arguments sound in retaliation,
not interference as Plaintiff suggests, because the
violations were after she exercised her FMLA benefits.
Cf. Shultz v. Congregation Shearith Israel of N.Y.C,
F.3d, 2017 WL 3427130, at *6 (2d Cir. Aug. 10, 2017) (finding
that an employee's termination "weeks
before she was scheduled to commence" FMLA
leave was unlawful interference (emphasis added)). In other
words, according to Plaintiffs own allegations, she was not
denied FMLA benefits, but rather she was penalized for
exercising her FMLA rights.
Plaintiffs FMLA Retaliation Claim Survives in
retaliation claims are analyzed under the familiar
McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), burden-shifting test. Potenza, 365 F.3d at
168; Graziadio, 817 F.3d at 429. To establish
& prima facie case of FMLA retaliation, the
plaintiff must show "that 1) [s]he exercised rights
protected under the FMLA; 2) [s]he was qualified for h[er]
position; 3) [s]he suffered an adverse employment action; and
4) the adverse employment action occurred under circumstances
giving rise to an inference of retaliatory intent."
Graziadio, 817 F.3d at 429 (citing Donnelly v.
Greenburgh Cent. Sch. Dist. No. 7, 691 F.3d 134, 147 (2d
purposes of the FMLA's anti-retaliation provision, a
materially adverse action is any action by the employer that
is likely to dissuade a reasonable worker in the plaintiffs
position from exercising [her] legal rights." Millea
v. Metro-N. R.R. Co., 658 F.3d 154, 164 (2d Cir. 2011);
see also Id. at 166 ("[W]e hold that the
definition of 'materially adverse employment action'
articulated by the Supreme Court in [Burlington N. &
Santa Fe R.R. Co. v. White, 548 U.S. 53 (2006)] applies
to FMLA retaliation claims."). '"[P]etty
slights, minor annoyances, and simple lack of good manners
will not' give rise to actionable retaliation
claims." Id. (quoting Burlington N,
548 U.S. at 68). "Alleged acts of retaliation must be
evaluated both separately and in the aggregate, as even
trivial acts may take on greater significance when they are
viewed as part of a larger course of conduct."
Tepperwien v. Entergy Nuclear Operations, 663 F.3d
556, 569 (2d Cir. 2011). "[T]here are no bright-line
rules with respect to what constitutes an adverse employment
action for purposes of a retaliation claim, and therefore
courts must pore over each case to determine whether the
challenged employment action reaches the level of
adverse." Fincher v. Depository Tr. & Clearing
Corp., 604 F.3d 712, 721 (2d Cir. 2010) (internal
quotation marks and citation omitted).
inference of retaliatory intent "can be established when
there is a basis for a jury to conclude that 'a causal
connection exists between the plaintiffs protected activity
and the adverse action taken by the employer.'"
Donnelly, 691 F.3d at 152 (citation omitted).
"The plaintiffs burden of proof at the prima
facie stage 'is not onerous.'"
Mathirampuzha v. Potter, 548 F.3d 70, 78 (2d Cir.
2008) (citation omitted); see, e.g., Cronin v. Aetna Life
Ins. Co., 46 F.3d 196, 203-04 (2d Cir. 1995)
("[T]he showing the plaintiff must make as to the
elements of the prima facie case in order to defeat a motion
for summary judgment is "de
omitted)). At the prima facie stage, temporal
proximity between the exercise of FMLA benefits and an
adverse employment action may give rise to a retaliatory
inference, as will employer penalties for absences which were
permitted by FMLA. Donnelly, 691 F.3d at 152;
see also Offor v. Mercy Med. Ctr., 676 F.App'x
51, 54 (2d Cir. 2017) (finding that temporal proximity
between an adverse employment action and FMLA leave was
sufficient to give rise to an inference of retaliatory
intent); Sista, 445 F.3d at 176 (noting that
retaliation can be shown where FMLA absences are a
"negative factor" in a decision to fire an employee
(citing Bachelder v. Am. W. Airlines, Inc., 259 F.3d
1112, 1126 (9th Cir. 2001))).
the plaintiff makes out a prima facie case, the defendant
must demonstrate a legitimate, non-discriminatory reason for
its actions; if the defendant does so, the plaintiff must
then show that defendant's proffered explanation is
pretextual." Graziadio, 817 F.3d at 429 (citing
Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708,
714 (2d Cir. 1996)). The plaintiff must "set forth
evidence from which a factfinder could reasonably conclude
that the legitimate and nondiscriminatory explanations
given" by the defendant for the adverse employment
action are pretextual. Thomsen, 483 F.App'x at
623. A mere scintilla of evidence is insufficient to
establish pretext. Alexander v. Bd. of Educ. of City of
N.Y., 648 F.App'x 118, 122 (2d Cir. 2016) (citing
Hayut v. State Univ. of N.Y., 352 F.3d 733, 743 (2d
assertions, unsupported by the record, are "plainly
insufficient to survive summary judgment."
Thomsen, 483 F.App'x at 623 (citing Goenaga
v. March of Dimes Birth Defects Found., 51 F.3d 14, 18
(2d Cir. 1995)). However, "[a] plaintiff may prove
retaliation by demonstrating weaknesses, implausibilities,
inconsistencies, or contradictions in the employer's
proffered legitimate, nonretaliatory reasons for its
action." Alexander, 648 F.App'x at 122
(quoting Zann Kwan v. Andalex Grp. LLC, 131 F.3d834,
846 (2d Cir. 2013)).
described below, Plaintiff has established a genuine issue of
material fact as to the County's alleged retaliatory
elimination of Plaintiffs regularly scheduled Sunday shift,
opposition to Plaintiffs unemployment benefits application,
and refusal to reinstate regularly scheduled shifts. However,
considering the evidence in the light most favorable to
Plaintiff, no rational jury could find in her favor on her
claim of retaliatory termination.
Plaintiff Has Established a Prima Facie
County does not challenge that Plaintiff has satisfied the
first two elements of & prima facie retaliation
claim. (See Dkt. 59-1 at 9).
claims that Chemung County was motivated by retaliatory
intent when it: (1) removed her prescheduled Sunday shift,
even though she only requested FMLA leave for her Tuesday
shifts; (2) opposed Plaintiffs application for unemployment
benefits; (3) refused to restore Plaintiffs regularly
scheduled shifts once she secured child care; and (4)
terminated Plaintiffs employment. (Dkt. 55-17 at 7-11).
Elimination of Plaintiffs Sunday Shift
removal from the Sunday shift constitutes an adverse
employment action. Plaintiff filed for FMLA benefits on June
17, 2010. (Dkt. 55-10). In her filing, Plaintiff requested
intermittent leave. (Id. at 2). Although the FMLA
form asks the applicant to specify the requested schedule for
intermittent leave, Plaintiff stated only that she "will
have to take time off to attend to sick children and/or their
personal needs pertaining to illness" (id.),
and that the "[d]ay(s) will be intermittently [sic]
depending on the need[s] of my child at that time."
(Id. at 5).
Plaintiffs FMLA request failed to specify whether or not she
intended to keep her regularly scheduled shifts (see
Dkt. 55-1 at 130), on June 29, 2010, Plaintiff emailed Wilson
to tell him that she would no longer be available to work her
regularly scheduled Tuesday shift, but that she still
intended to work the Sunday shift. (Dkt. 55-7 at 2).
Plaintiff requested that Wilson "back fill" her
Tuesday shift "for the remainder of 2010" and place
Plaintiff on the call-in list. (Id.). Plaintiff did
not request that she be taken off the Sunday schedule.
(See id.). Indeed, Wilson confirmed by email on June
29, 2010, that Plaintiff needed to be removed from the
Tuesday schedule, but not from the Sunday schedule. (Dkt.
55-13 at 2). The removal from the Sunday shift-which
Plaintiff did not request-"significantly
diminished" Plaintiffs material responsibilities,
constituting half of her regularly scheduled hours each week.
The unrequested removal of work hours is sufficient to
dissuade a reasonable employee from exercising FMLA rights,
especially where, as here, the employee is paid by the hour.
As such, Plaintiff has established that her reduction in
hours was an adverse employment action.
record also includes sufficient evidence to satisfy
Plaintiffs burden to show an inference that the removal of
her Sunday shift was done in retaliation for her use of FMLA
leave. Plaintiff was removed from the Sunday schedule as of
July 27 or 28, 2010. (See Dkt. 55-4 at 2). The
County alleges that the Sunday hours were taken away because
the Sunday and Tuesday shifts "were part of a package
deal." (Id.; see, e.g., Dkt. 50-5 at ¶
22). When Plaintiff requested to be removed from her Tuesday
shift, she was also removed from the Sunday shift and placed
on the call-in list. (Dkt. 55-2 at 1). Plaintiff testified
that she did not understand that the shifts were a package
deal, and that the shifts were given to her on separate
occasions. (Dkt. 55-1 at 122-23). Viewing the evidence in the
light most favorable to Plaintiff, the days were not
originally scheduled as a package deal, and, as described in
more detail below, there is little evidence of the shifts
being linked. Plaintiffs Sunday shift was taken away after
she requested FMLA leave for her Tuesday shift only. This
sequence of events gives rise to an inference that the Sunday
shift was removed in retaliation for Plaintiffs use of FMLA.
Thus, Plaintiff has established a. prima facie case
of retaliation based on the removal of her Sunday shift.
The County's Opposition to Plaintiffs Application for
has also established that the County's opposition to her
application for unemployment was an adverse employment
action. If considered on its own, the County's opposition
to Plaintiffs application for unemployment benefits
(see Dkt. 55-17 at 9), may not be an adverse
employment action. See, e.g., Wright v. City of
Syracuse, No. 5:10-CV-0661 (GTS/TWD), 2014 WL 1293527,
at *20 (N.D.N.Y. Mar. 31, 2014) (stating that "an
employer's opposition of a terminated employee's
application for unemployment benefits is not adverse action
for purposes of a retaliation claim, " and collecting
cases); Roman v. Cornell Univ., 53 F.Supp.2d 223,
245 (N.D.N.Y. 1999) ("[The defendant's] opposition
to [the] plaintiffs application for unemployment benefits ...
is not an adverse employment action. This was a permissible,
nondiscriminatory legal position taken by [the defendant] in
opposition to [the] plaintiffs application for such
benefits."). However, when viewed in light of Plaintiffs
other allegations, see Tepperwien, 663 F.3d at 569,
it would be reasonable for an employee in this situation to
be dissuaded from filing an FMLA claim. And, when considered
in conjunction with the County's possibly retaliatory
reduction of Plaintiffs work hours, Plaintiff has established
an inference of retaliatory intent. Thus, Plaintiff has
established the de minimis showing required to carry
her burden at this stage as to the County's opposition to
her application for unemployment benefits.
The County's Refusal to Restore Plaintiff to
Regularly Scheduled Hours
Plaintiff has met her burden as to Chemung County's
refusal to restore Plaintiffs regularly scheduled shifts
after she secured childcare. This refusal could constitute a
materially adverse change in the terms or conditions of
Plaintiffs employment. When Plaintiff initially requested to
be removed from the Tuesday shift, she explicitly asked to
"back fill" her Tuesday shift "for the
remainder of 2010." (Dkt. 55-7 at 2). She did not ask to
back-fill her Sunday shift, as she never requested removal
from the Sunday schedule. After solving her childcare issue,
Plaintiff requested that her regularly scheduled shifts be
restored on both July 25, 2010, and September 17, 2010. (Dkt.
55-8 at 2; Dkt. 55-11 at 2). Despite these requests,
Plaintiff was not restored to either the Sunday or Tuesday
shifts, but remained only on the call-in list. (Dkt. 55-16 at
¶ 15). Considered within the context of the other
adverse employment actions, the County's refusal to
reschedule Plaintiffs shifts could constitute an adverse
employment action. And, as with the County's removal of
Plaintiff s Sunday shift, there is a minimal inference that
the refusal to reinstate Plaintiffs regularly scheduled
shifts was in retaliation for Plaintiffs exercise of FMLA
termination plainly constitutes an adverse action,
Mathirampuzha, 548 F.3d at 78, but whether it gives
rise to an inference of retaliation presents a closer
question. Plaintiff asserts that an inference can be drawn
because: (1)the termination occurred "about the time
that the FMLA would have been over with" (Dkt. 55-2 at
58); and (2) she was "disciplined" for missing a
Tuesday shift and failing to call the Jail after her FMLA
leave was approved. (See Dkt. 55-16 at 4).
first rationale is clearly lacking support in the record.
Plaintiffs termination did not occur "about the time
that the FMLA would have been over with." (See
Dkt. 55-2 at 58). Plaintiffs request for FMLA intermittent
leave was approved on June 30, 2010. (Dkt. 50-18 at ¶23;
Dkt. 55-18 at ¶ 23). According to Chemung County's
FMLA approval, Plaintiffs FMLA request expired on June 17,
2011. (Dkt. 50-15 at 22). Plaintiff was not terminated until
September 28, 2011, more than three months later. (Dkt. 55-12
at 2). Even if some inference could be drawn because
Plaintiff was fired a few months after her FMLA leave
expired, Plaintiff informed her supervisors that she no
longer needed to use FMLA leave on July 25, 2010, and again
on September 17, 2010. (Dkt. 55-8 at 2; Dkt. 55-11 at 2). The
notification was sent more than a year before Plaintiff was
terminated. Although Plaintiffs burden of showing an
inference of retaliation is de minimis, see Cronin,
46 F.3d at 203-04, the timing of her termination fails to
meet even that low burden. See Abrams v. Dep't of
Pub. Safety, 764 F.3d 244, 254 (2d Cir. 2014) (finding
that to establish retaliation under Title VII, five months
between the exercise of a federal right and an adverse
employment action "might be enough to establish
a prima facie case" (emphasis added)); cf
Offor, 2017 WL 253616, at *2 (finding that, at
the pleading stage, allegations than an adverse employment
event occurred within one month of exercising FMLA rights was
sufficient to give rise to an inference of retaliatory
intent). Plaintiff offers nothing else to support her claimed
inference of discrimination-under the circumstances, the
record simply does not support an inference even under the
low threshold necessary to establish a prima facie
case. The timing between Plaintiffs exercise of her FMLA
rights and the termination of her employment is just too
It is a
closer question whether Plaintiffs argument that she was
"disciplined" for using FMLA leave, allegedly
leading to her termination, meets the de minimis
requirement. (See Dkt. 55-17 at 10-11). The record
before the Court includes a "Notice and Statement of
Charges" dated "July 2010" relating to
Plaintiffs "no call/no show" absence on Tuesday,
July 6, 2010. (Dkt. 55-5). According to the Notice, Plaintiff
"failed to make any notification regarding [her] absence
to a member of the supervisory staff. . . ."
(Id. at 3). Plaintiffs scheduled shift on July 6,
2010, was Plaintiffs "second no call/no show absence and
third unexcused absence" between March 2010 and July
2010. (Id. at2).
actually informed supervisory staff that she did not intend
to appear for work on July 6, 2010, because she was using
FMLA intermittent leave. By email dated June 29, 2010,
Plaintiff informed Wilson (with a carbon copy to her shift
supervisor) that "[e]ffective immediately ... I will not
be able to work B-Line on Tuesday" and requested that
Wilson "back fill" her Tuesday shifts for the
remainder of 2010. (Dkt. 55-7 at 2). Plaintiff requested
removal from her Tuesday shift due to "family
obligations" for which she had submitted an FMLA leave
request. (Id.). Thus, ...