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Jordan v. County of Chemung

United States District Court, W.D. New York

September 5, 2017

EDITH JORDAN, Plaintiff,
v.
COUNTY OF CHEMUNG, CHRISTOPHER J. MOSS, WILLIAM A. SCHROM, JOHN DOES, and JANE DOES, Defendants.

          DECISION AND ORDER

          ELIZABETHA A. WOLFORD UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         Plaintiff 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).

         For the reasons stated below, Defendants' motion for summary judgment is granted in part and denied in part.

         FACTUAL BACKGROUND [1]

         Plaintiff 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 ¶8).

         Plaintiff 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 ¶23).

         Plaintiff 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).

         DISCUSSION

         Plaintiffs 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).

         The 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 Constitution.

         I. Standard of Review

         Federal 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)).

         Once 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, 247-48 (1986).

         II- Plaintiff's FMLA Claim Survives Summary Judgment in Part

         Plaintiff 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).

         FMLA 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).

         A state 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. 2004).

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).

         As a 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 retaliation claim.

         A. 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).

         Here, 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).[2] The Court agrees.

         Plaintiff 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").

         Plaintiff 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.

         B. Plaintiffs FMLA Retaliation Claim Survives in Part

         FMLA 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 Cir. 2012)).

         "For 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).

         An 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 minimis.'''''' (citation 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))).

         "If 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 Cir. 2003)).

         Conclusory 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)).

         As 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.

         1. Plaintiff Has Established a Prima Facie Case

         The County does not challenge that Plaintiff has satisfied the first two elements of & prima facie retaliation claim. (See Dkt. 59-1 at 9).

         Plaintiff 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).

         a. Elimination of Plaintiffs Sunday Shift

         Plaintiffs 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).

         Although 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.

         The 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.

         b. The County's Opposition to Plaintiffs Application for Unemployment Benefits

         Plaintiff 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.

         c. The County's Refusal to Restore Plaintiff to Regularly Scheduled Hours

         Similarly, 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 benefits.

         d. Plaintiffs Termination

         Plaintiffs 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).

         Plaintiffs 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 remote.

         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).[3]

         Plaintiff 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, ...


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