United States District Court, E.D. New York
MEMORANDUM & ORDER
K. BRODIE, UNITED STATES DISTRICT JUDGE
Nola Smith commenced the above-captioned action on May 8,
2015, against Defendant North Shore-Long Island Jewish Health
System. (Compl., Docket Entry No. 1.) Plaintiff filed an
Amended Complaint on October 12, 2015, (Am. Compl., Docket
Entry No. 26-1), alleging claims for retaliation under the
Family and Medical Leave Act, 29 USC § 2601 et seq.
(“FMLA”), and disability discrimination under the
Americans with Disabilities Act, 42 USC § 12101 et. seq.
(“ADA”), and the New York City Human Rights Law,
N.Y.C. Admin. Code § 8-101, et seq.
(“NYCHRL”). Defendant moves for summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure.
(Def. Mot. for Summ. J. (“Def. Mot.”), Docket
Entry No. 63; Def. Mem. in Supp. of Def. Mot. (“Def.
Mem.”), Docket Entry No. 63-6.) For the reasons
discussed below, the Court grants in part and denies in part
Defendant's motion for summary judgment.
following facts are undisputed except as otherwise noted.
Plaintiff Nola Smith is a registered nurse who was hired to
work at Forest Hills Hospital (the “Hospital”) on
September 22, 2008. (Def. Statement of Material Facts
Pursuant to Local R. 56.1 (“Def. 56.1”) ¶ 6,
Docket Entry No. 63-1.) Defendant North Shore-Long Island
Health System (“Defendant”), is a large hospital
system comprised of sixteen affiliate hospitals including the
Hospital. (Id. ¶ 2.)
her termination on August 23, 2013, Smith served as a nurse
in the Ventilation Unit of the Hospital's Medical
Surgical Department as part of Unit 4N. (Id. ¶
6; Pl. Response to Def. 56.1 (“Pl. 56.1”) ¶
14, Docket Entry No. 66.) During the course of her
employment, Rhonnie Jackson, the Hospital's Director of
Patient Care Services, among others, supervised Smith. (Def.
56.1 ¶ 8.) Jackson oversaw the Hospital's Critical
Care, Intensive Care (“ICU”), and Medical
Surgical Units. (Id.) Beginning in 2012, Jackson
became Smith's direct supervisor, replacing Rose Clarke,
a nurse manager who had begun a series of intermittent leaves
of absence. (Id.) Jackson, in turn, reported to
Doreen O'Grady, the Hospital's Chief Nursing Officer.
Work schedule and absences from work
her employment, Smith suffered from various disabilities
including generalized anxiety disorder and panic attacks for
which doctors have prescribed her a No. of medications over
the years. (Def. Response to Pl. 56.1 (“Def. 56.1
Resp.”) ¶ 2, Docket Entry No. 64-1.) Due to these
disabilities, the Hospital has accommodated Smith with a
lighter work schedule compared to other nurses. All other
nurses in Unit 4N worked a “flex” schedule,
defined as five thirty-six hour work weeks, consisting of
three twelve hour days, followed by one forty-eight hour work
week, consisting of four twelve hour days. (Def. 56.1 ¶
7.) In contrast, Smith worked, at most, thirty-five hours per
week and the Hospital gave her at least a temporary reprieve
from having to work the longer-hour weeks. (Id.;
Def. 56.1 Resp. ¶ 9.)
addition, Smith was granted a three-month leave of absence
from June 1, 2012 to September 4, 2012 pursuant to the FMLA
for a nervous breakdown she suffered allegedly as a result of
harassment by Clarke. (Pl. 56.1 ¶ 17; Def. 56.1 Resp.
¶ 4.) During the course of her employment, the Hospital
granted Smith at least eight separate leave accommodations
for various ailments, including her disabilities.
(Id. ¶¶ 3, 11.) According to Defendant,
its insurer Hartford administers FMLA leave, while the
Hospital's Human Resources (“HR”) department
administers disability accommodations. (Pl. 56.1 ¶ 2;
Deposition of Angela Fisher (“Fisher Dep.”) 46:21
- 47:8, Docket Entry No. 68-7.)
Hospital has a sick leave guideline that automatically flags
for discipline any nurse that has called in more than three
times in a quarter. (Def. 56.1 Resp. ¶ 11; Deposition of
Doreen O'Grady (“O'Grady Dep.”) 32:20-24;
36:13-37:14, Docket Entry No. 68-6.) Although FMLA and other
approved leaves are exempt from the policy, the Hospital
generates a spreadsheet of nurses who fall within the
guideline based solely on the total number of absences,
regardless of the reason for absence. (Def. 56.1 Resp. ¶
11; O'Grady Dep. 37:9-14.)
Disciplines and other actions
to Smith, after she returned from her FMLA leave in the
summer of 2012, Jackson immediately began chastising her for
taking leave. Because the spreadsheet includes both protected
and unprotected leave, O'Grady instructed Jackson to
check to ensure Smith's absences were not approved FMLA
leave, (O'Grady Dep. 33:8-22), but she did not instruct
Jackson to check whether Smith's absences were
accommodations for a disability, (id. at 33:19- 22).
Pursuant to this policy, in October of 2012, Jackson appeared
to have issued Smith a verbal warning - the first step in the
Hospital's three-step Progressive Discipline Policy - for
excessive leave. (See October 13, 2012 Email,
annexed to Pl. Opp'n to Def. Mot. (“Pl.
Opp'n”), Docket Entry No. 68, as Ex. 18, Docket
Entry No. 68-18; October 1, 2012 Email, annexed to Pl.
Opp'n as Ex. 19, Docket Entry No. 68-19; Deposition of
Rhonnie Jackson Dep. (“Jackson Dep.”) 55:3-56:17,
Docket Entry No. 68-4.)
December 26, 2012, O'Grady also instructed Jackson to
discipline Smith again for calling in sick for a fourth time
in the quarter. (December 26, 2012 Email, annexed to Pl.
Opp'n as Ex. 20, Docket Entry No. 68-20.) Accordingly,
Jackson drafted a written warning - the second step of the
Progressive Discipline Policy - and scheduled a meeting with
Smith for December 28, 2012. (Jackson Dep. 62:10-15;
Disciplinary Warning Notice, annexed to Pl. Opp'n as Ex.
21, Docket Entry No. 68-21.) At the meeting, before Jackson
could issue the Disciplinary Warning Notice, Smith complained
that several of the absences listed as problematic were
approved leave. (Def. 56.1 Resp. ¶ 10.) As a result,
Jackson did not officially issue the written warning to
Smith. (Id.) The Disciplinary Warning Notice noted
that on September 13, 2012, the Hospital had issued Smith a
verbal warning to improve her sick time. (Disciplinary
addition to the formal discipline discussed above, Smith
contends that her leaves of absence had been a continuing
source of conflict with Jackson and others at the Hospital.
Between July 6, 2012 and June 26, 2013, the Hospital denied
Smith transfers to the ER or ICU units on five separate
occasions. According to Smith, Jackson told her that her
transfer requests were being denied because of excessive
leave. (Deposition of Nola Smith (“Smith Dep.”)
122:24-125:3; 178:24-179:16, Docket Entry No. 68-3.)
also contends that she had a much more difficult time getting
approved for job- related conferences. (Id. at
138:7-24.) Smith and other nurses who work twelve-hour shifts
are entitled to twenty-eight hours of paid conference leave
per year. (Fisher Dep. 23:19-22.) Typically, nurses or their
union pay for conferences upfront and then apply for
reimbursement by submitting a certificate of
attendance. (Jackson Dep. 92:9 - 93:5; CBA, annexed to
Pl. Opp'n as Ex. 26, Docket Entry No. 68-26.) If the
Hospital chose to front expenses and wages for each day of
attendance, and the nurse fails to attend the conference, the
practice has been to “reverse the pay” or to use
the employee's “accrued paid time
off.” (Jackson Dep. 40:14-25; O'Grady Dep.
27:9-14; CBA at 8.)
early as November of 2012, Smith complained to Jackson about
this perceived differing treatment, telling him that she felt
“singled out.” (November 5, 2012 Email, annexed
to Pl. Opp'n as Ex. 24, Docket Entry No. 68-24.) In
particular, in early 2013, Jackson initially denied
Smith's request to attend a two-day EKG conference to be
held on February 7 and 14, 2013 (“February
Conference”). (Def. 56.1 ¶ 15.) Although the
Hospital had approved at least one other nurse from Unit 4N
to attend the conference, Jackson denied Smith's request
to attend the February Conference because the EKG conference
involved subjects unrelated to Smith's “day-to-day
nursing duties and [Smith's] patients did not involve or
require EKGs.” (Jackson Aff. in Supp. of Def. Mot.
(“Jackson Aff.”) ¶ 9, annexed to Def. Mot.
as Ex. I, Docket Entry. No. 63-3; Jackson Dep. 81:6-10.)
After discussing the matter further with the union for
nurses, Jackson subsequently approved Smith's request.
(Jackson Dep. 80:17-81:4.) However, Smith was scheduled to
work the night shift from 7 PM to 7 AM the morning of the
first day of the conference set to begin at 9 AM, two hours
after the end of the shift. (Smith Dep. 136:19-22; Smith Aff.
in Supp. of Pl. Opp'n (“Smith Aff.”) ¶
5, annexed to Pl. Opp'n as Ex. Ex. 2, Docket Entry No.
68-2.) Because of the short turnaround between the end of her
shift and the scheduled start time of the conference, Smith
requested that Jackson remove her from the shift because she
could not otherwise attend the conference. (Jackson Dep.
81:20-22; Jackson Aff. ¶ 10.) Jackson told Smith that
she needed to switch her schedule with someone else. (Jackson
Aff. ¶ 10.) Smith was unable to find anyone willing to
switch schedules with her and therefore worked her scheduled
shift and did not attend the conference. (Jackson Aff. ¶
10; Smith Aff. ¶ 8.) Although Smith never submitted a
certificate of attendance for the February Conference,
(Jackson Aff. ¶ 11), the Hospital paid for the
conference days as if she had attended. (Id.) Smith
assumed that the pay was for accrued paid time off. (Smith
1, 2013, Smith submitted another request to attend a
conference in October of 2013. (Def. 56.1 ¶ 18; July 1,
2013 Conference Request Form, annexed to Pl. Opp'n as Ex.
28, Docket Entry No. 68-28.) Jackson denied the request and
explained to Smith that she had already attended the February
Conference earlier in the year. (Jackson Dep. 84:4-9; Pl.
56.1 ¶ 18.) Smith responded that she had not attended
the February Conference and that Jackson and Benson Matthews,
Smith's union representative, already knew that to be the
case. (Jackson Dep. 85:7-24; Pl. 56.1 ¶ 18.) Jackson
denied having such prior knowledge and told Smith he would be
reporting the incident to HR. (Jackson Dep. 86:9-17.)
According to Smith, at the end of the conversation, Jackson
stated: “I know what you did last time. You caused me
to become short staffed. No. one crosses me and gets away
with it.” (Smith Dep. 168:7-10.)
Jackson emailed Anthony Lumia, a HR representative, and
requested to speak with him regarding Smith and “theft
of time.” (July 31, 2013 Email, annexed to Pl.
Opp'n as Ex. 29, Docket Entry No. 68-29.) Following this
email exchange, Lumia conducted an investigation, consisting
almost exclusively of conversations with Smith and Jackson.
(Deposition of Anthony Lumia (“Lumia Dep.”)
25:17-21.) During his conversation with Lumia, Jackson stated
that Smith had accepted pay for a conference she did not
attend and had failed to report her nonattendance. (Jackson
Dep. 99:2-4.) Jackson also had a similar conversation with
O'Grady. (O'Grady Dep. 58:3-15.) The Hospital
terminated Smith on August 23, 2013. (Jackson Aff. ¶
Standard of review
judgment is proper only when, construing the evidence in the
light most favorable to the non-movant, “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); Davis v. Shah, 821 F.3d 231, 243 (2d Cir.
2016); see also Cortes v. MTA NYC Transit, 802 F.3d
226, 230 (2d Cir. 2015). The role of the court “is not
to resolve disputed questions of fact but only to determine
whether, as to any material issue, a genuine factual dispute
exists.” Rogoz v. City of Hartford, 796 F.3d
236, 245 (2d Cir. 2015) (first quoting Kaytor v. Elec.
Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010); and then
citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249-50 (1986)). A genuine issue of fact exists when
there is sufficient “evidence on which the jury could
reasonably find for the plaintiff.” Anderson,
477 U.S. at 252. The “mere existence of a scintilla of
evidence” is not sufficient to defeat summary judgment.
Id. The court's function is to decide
“whether, after resolving all ambiguities and drawing
all inferences in favor of the nonmoving party, a rational
juror could find in favor of that party.” Pinto v.
Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000).
FMLA retaliation claims
asserts claims for retaliation under the FMLA for the denial
of her transfer requests and her termination. (Pl. Opp'n
10.) Defendant argues that these claims fail because Smith
cannot make out a prima facie case of discrimination or
demonstrate pretext. (Def. Mem. 6-7.)
FMLA gives eligible employees an ‘entitlement' to
twelve weeks per year of unpaid leave ‘[b]ecause of a
serious health condition that makes the employee unable to
perform the functions of the position of such
employee.'” Sista v. CDC Ixis N. Am.,
Inc., 445 F.3d 161, 174 (2d Cir. 2006) (quoting 29
U.S.C. § 2612(a)(1)(D)). It “‘creates a
private right of action to seek both equitable relief and
money damages against any employer . . .' should that
employer ‘interfere with, restrain, or deny the
exercise of' FMLA rights.” Id. (quoting
Nev. Dept. of Human Res. v. Hibbs, 538 U.S. 721,
724-25 (2003)). “The Second Circuit recognizes distinct
claims of interference and retaliation under the FMLA.”
Sista, 445 F.3d at 175; see also Woods v. START
Treatment & Recovery Ctrs., Inc., 864 F.3d 158, 166
(2d Cir. 2017) (“FMLA claims come in at least two
varieties: interference and retaliation.” (citing
Potenza v. City of New York, 365 F.3d 165, 167 (2d
Cir. 2004))). Retaliation claims “involve an employee
actually exercising her rights or opposing perceived unlawful
conduct under the FMLA and then being subject to some adverse
employment action by the employer.” Woods, 864
F.3d at 166.
the summary judgment stage, retaliation claims brought
pursuant to the FMLA are analyzed under the burden-shifting
test set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).” Alexander v. The Bd. of Educ.
of City of New York, 648 F. App'x 118, 121 (2d Cir.
2016). Under that framework, a plaintiff must first establish
a prima facie case of discrimination. Graziado v.
Culinary Inst. of Am., 817 F.3d 415, 429 (2d Cir. 2016).
A plaintiff's burden at this stage is
“minimal.” Holcomb v. Iona Coll., 521
F.3d 130, 139 (2d Cir. 2008) (quoting St. Mary's
Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993)). If a
plaintiff meets her burden at this stage, the burden shifts
to the defendant-employer to “demonstrate a legitimate,
non-discriminatory reason for its actions.”
Graziado, 817 F.3d at 429; see also Vega v.
Hempstead Union Free Sch. Dist., 801 F.3d 72, 84 (2d
Cir. 2015). If the defendant-employer articulates such a
reason, the burden shifts back to the plaintiff-employee to
show that the defendant-employer's reason was pretext.
Graziado, 817 F.3d at 429; see also Sista,
445 F.3d at 169 (“A plaintiff must establish a prima
facie case; the employer must offer through the introduction
of admissible evidence a legitimate non-discriminatory reason
for the discharge; and the plaintiff must then produce
evidence and carry the burden of persuasion that the
proffered reason is a pretext.”).
Plaintiff has established a prima facie case for
order to make out a prima facie case of FMLA retaliation, a
plaintiff must establish 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.” Potenza, 365 F.3d at 168; see
also Turner v. Eastconn Reg'l Educ. Serv. Ctr., 588
F. App'x 41, 44 (2d Cir. 2014) (citing same);
Donnelly v. Greenburg Cent. Sch. Dist. No. 7, 691
F.3d 134, 151 (2d Cir. 2012) (citing same). The plaintiff
“must demonstrate that [her] taking FMLA leave
constituted ‘a negative factor in [the defendant's]
decision to terminate' . . . her.” Wanamaker v.
Westport Bd. of Educ., 899 F.Supp.2d 193, 207 (D. Conn.
2012) (citing Sista, 445 F.3d 176); see also
Hale v. Mann, 219 F.3d 61, 68 (2d Cir. 2000) (holding
that the FMLA “protects an employee from discharge or
demotion by an employer if that action is motivated by the
employee's taking leave pursuant to the FMLA”).
first two elements of the prima facie framework are
undisputed. Smith exercised her rights under the FMLA when
she took leave on eight separate occasions. (Def. 56.1
¶¶ 3, 11.) Defendant also does not dispute that
Smith was qualified for her position. (See Def. Mem.
7 n.1 (challenging qualifications only as defined under the
ADA but not the FMLA); see also Donnelly, 691 F.3d
at 151 (“[The] qualification necessary to shift the
burden to defendant for an explanation of the adverse job
action is minimal; plaintiff must show only that he possesses
the basic skills necessary for performance of the
job.”). However, while Defendant concedes that
Smith's termination is an adverse employment action,
Defendant argues that the denials of her transfer requests
are not. Defendant also argues that the adverse employment
actions did not take place under circumstances giving rise to
an inference of discrimination.
The denials of transfer constitute an adverse employment
disputes that the denials of Smith's requests to transfer
to other departments at the Hospital are adverse employment
actions. (Def. Mem. 8-9.) Defendant argues that the transfers
would not have provided Smith any immediate tangible
benefits, most notably an increase in salary. (Def. Reply 5.)
Smith argues that the transfer requests were to departments
that are more prestigious, and would have conferred lasting
benefits for her career. (Smith Aff. ¶ 3.)
purposes of FMLA retaliation claims, an adverse employment
action is “any action by the employer that is likely to
dissuade a reasonable worker in the plaintiff's position
from exercising h[er] legal rights.” Millea v.
Metro-N. R. Co., 658 F.3d 154, 164 (2d Cir. 2011).
“[T]he test is whether a ‘reasonable'
employee would be deterred, and does not take into
consideration a plaintiff's ‘unusual subjective
feelings.'” Dearden v. GlaxoSmithKline
LLC, No. 15-CV-7628, 2017 WL 4084049, at *8 (S.D.N.Y.
Sept. 14, 2017) (citing Burlington N. & Santa Fe Ry.
Co. v. White, 548 U.S. 53, 68-69 (2006)).
“‘[P]etty slights, minor annoyances, and simple
lack of good manners will not' give rise to actionable
retaliation claims.” Millea, 658 F.3d at 165
(quoting Burlington, 548 U.S. at 68). “In
determining whether conduct amounts to an adverse employment
action, the alleged acts of retaliation need to be considered
both separately and in the aggregate, as even minor acts of
retaliation can be sufficiently ‘substantial in
gross' as to be actionable.” Hicks v.
Baines, 593 F.3d 159, 165 (2d Cir. 2010) (citation
this standard, denials of transfer may constitute adverse
employment actions even if the change in position would not
have been accompanied by immediate higher
compensation, tangible benefits or opportunities for
advancement. See Millea, 658 F.3d at 164 (holding
that actionable acts of retaliation therefore do not have to
“relate to the specific terms and conditions of the
employee's employment.”); see also Beyer v.
Cty. of Nassau, 524 F.3d 160, 165 (2d Cir. 2008)
(“The denial of a transfer may constitute an
adverse employment action [if] . . . the sought for position
is materially more advantageous than the employee's
current position, whether because of prestige, modernity,
training opportunity, job security, or some other objective
indicator of desirability.”); Abrams v.
Connecticut, No. 09-CV-00541, 2015 WL 4459540, at *7 (D.
Conn. July 21, 2015) (“A substantial body of case law
supports the proposition that denial of a transfer to a
materially more prestigious position constitutes an adverse
employment action.”); Cadet v. Deutsche Bank Sec.
Inc., No. 11-CV-7964, 2013 WL 3090690, at *8 (S.D.N.Y.
June 18, 2013) (finding lack of assignment to “live
deals” to qualify as an adverse employment “since
such exposure was integral for career advancement”).
requested transfers to the ICU and ER, more specialized and
prestigious units compared to the Medical Surgical
Department. Defendant does not dispute Smith's
characterization of the ICU and ER units, but instead argues
that the transfers in and of themselves were not materially
advantageous in terms of immediate tangible benefits, most
notably an increase in salary. (Def. Reply in Supp. of Def. Mot.
(“Def. Reply”) 5, Docket Entry No. 64). However,
because a transfer to a more prestigious position could
constitute an adverse employment action, a jury could
reasonably conclude that the denials of transfer to the ER
and ICU units were adverse employment actions - likely to
dissuade “a reasonable [employee] in [Smith's]
position, considering all the circumstances, ” from
exercising her FMLA rights. See Kessler v.
Westchester Cty. Dep't of Soc. Servs., 461 F.3d 199,
209 (2d Cir. 2006) (holding whether reassignment constituted
a materially adverse action “depends upon the
circumstances of the particular case”); Bobo v.
Wachovia Sec., LLC., No. 107-CV-01056, 2010 WL 1186455,
at *4 (N.D.N.Y. Mar. 23, 2010) (finding transfer to be
adverse employment action where plaintiff offered “some
evidence that the [new branch] was less prestigious”).
Smith has established a causal relationship between the
adverse employment actions and her protected leave
argues that there is no evidence indicating a causal
connection between Smith's exercise of her FMLA rights
and the denials of transfer and her termination.
(Id. at 7- 11.) Defendant largely relies on its
history of accommodating nurses and Smith in particular to
support this argument. (Def. Mem. 9-10.) Defendant also
argues that Smith's evidence is largely uncorroborated.
(Id. at 4.) Smith contends that the retaliatory
explanations and threats by Jackson along with
Defendant's long history of punishing her for taking
protected leave are sufficient to establish an inference of
discrimination. (Pl. Opp'n 11-15.)
Second Circuit has held that in retaliation claims, a causal
connection can be shown either “(1) indirectly, by
showing that the protected activity was followed closely by
discriminatory treatment, or through other circumstantial
evidence such as disparate treatment of fellow employees who
engaged in similar conduct; or (2) directly, through evidence
of retaliatory actions directed against the plaintiff by the
defendant.” Littlejohn v. City of New York,
795 F.3d 297, 307, 319 (2d Cir. 2015) (quoting Gordon v.
N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000)).
“Direct evidence may . . . include evidence of
discriminatory statements or actions by employees who, while
not the ultimate decisionmakers, have ‘enormous
influence in the decision-making process.'”
Emmanuel v. Cushman & Wakefield, Inc., No.
13-CV-2894, 2015 WL 5036970, at *4 (S.D.N.Y. Aug. 26, 2015);
see also Knox v. Town of Se., No. 11-CV-8763, 2014
WL 1285654, at *13 (S.D.N.Y. Mar. 31, 2014) (“In
determining whether a remark is probative, courts consider
four factors: (i) who made the remark . . .; (ii) when the
remark was made in relation to the employment decision at
issue; (iii) the content of the remark . . .; and (iv) the
context in which the remark was made . . . .”),
aff'd, 599 F. App'x 411 (2d Cir. 2015).
Indirect evidence may include a “showing that the
protected activity was closely followed in time by the
adverse action.” Colon v. Fashion Inst. of
Tech., 983 F.Supp.2d 277, 287 (S.D.N.Y. 2013) (quoting
Manoharan v. Columbia Univ. Coll. of Physicians &
Surgeons, 842 F.2d 590, 593 (2d Cir. 1988)); see
also, e.g., Feingold v. New York, 366 F.3d 138,
156-157 (2d Cir. 2004) (“[T]he requirement that [the
plaintiff] show a causal connection between his complaints
and his termination is satisfied by the temporal proximity
between the two.” (collecting cases)); Nonnenmann
v. City of New York, 02-CV-10131, 2004 WL 1119648, at
*22 (S.D.N.Y. May 20, 2004) (“Causation can be
established either indirectly by means of circumstantial
evidence, for example, by showing that the protected activity
was followed by adverse treatment in employment, or directly
by evidence of retaliatory animus.” (quoting Morris
v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999))). A history
of prior discrimination may also serve as circumstantial
evidence of a causal connection. See Jordan v. Cty. of
Chemung, 264 F.Supp.3d 497, 507 (W.D.N.Y. 2017)
(“At the prima facie stage, . . . employer
penalties for absences which were permitted by FMLA [may give
rise to a retaliatory inference].” (citations
omitted)); Hinton v. City Coll. of New York, No.
05-CV- 8951, 2008 WL 591802, at *24 (S.D.N.Y. Feb. 29, 2008)
(finding probative senior colleagues' irritation at
plaintiff's history of employment complaints); see
also Kelley v. Corr. Med. Servs., Inc., 707 F.3d 108,
117 (1st Cir. 2013) (finding history of
“disability-based conflict” to be probative of
presence of discriminatory animus for ADA claim); United
States ex rel. Cody v. ManTech Int'l Corp., 260
F.Supp.3d 556, 562 (E.D. Va. 2017) (finding “history of
disputes and disagreements” to be probative of
retaliatory animus in qui tam action).
Direct evidence of causal connection
provides direct evidence of a causal connection in the form
of statements made by Jackson. In her sworn deposition, Smith
explained that Jackson expressly told her that her transfer
requests were denied because of excessive leave. See
Dupee v. Klaff's, Inc., 462 F.Supp.2d 233, 243 (D.
Conn. 2006) (finding explanation that plaintiff was being
fired “because he ‘had too many doctors
appointments'” to be direct evidence of retaliatory
action); see also (Def. 56.1 ¶ 5
(“[C]ompleted transfer applications are assessed based
on seniority, credentials, and disciplinary
histories.” (emphasis added)).) In addition, Smith
also stated that Jackson threatened her at the conclusion of
their final argument preceding the investigation and
termination - stating that he would get even with her for
causing him to be short-staffed while she was on
leave. See Orlando v. BNP Paribas N. Am.,
Inc., No. 14-CV-4102, 2015 WL 6387531, at *14 (S.D.N.Y.
Oct. 22, 2015) (finding threats against plaintiff to be
“sufficient direct evidence of retaliatory animus to
establish a causal connection and demonstrate pretext,
thereby precluding summary judgment”). While Jackson
did not necessarily specify the nature of the leave involved,
Smith testified that she understood him to be referring to
her disability based leave. (Smith Dep. 58:11-19.) A
reasonable jury could credit Smith's testimony and
readily conclude that retaliatory animus motivated
Defendant's adverse employment actions towards her.
See Back v. Hastings On Hudson Union Free Sch.
Dist., 365 F.3d 107, 124 (2d Cir. 2004) (holding
uncorroborated discriminatory comments may “constitute
‘direct evidence' . . . adequate to make out a
prima facie case”); Holtz v. Rockefeller &
Co., 258 F.3d 62, 78 (2d Cir. 2001) (finding
plaintiff's largely uncorroborated accounts to be
sufficient to raise a genuine issue of fact as to the
defendant's intent); Owens v. New York City Hous.
Auth., 934 F.2d 405, 410 (2d Cir. 1991) (stating that
employer's contention that plaintiff's proffered
evidence of discriminatory comments “is uncorroborated
and not credible is a jury argument inappropriate on a motion
for summary judgment”).
Circumstantial evidence of causal connection
also provides circumstantial evidence of retaliatory animus
based on the disciplinary action taken against her pursuant
to the Hospital's policy. In order to ameliorate
staffing issues, Defendant employs a “guideline”
or policy that automatically flags for discipline any nurses
who call out of work more than three times in a
quarter. (O'Grady Dep. 37:4-14.) The
spreadsheet generated pursuant to this policy does not
differentiate between protected and unprotected leave.
Therefore, the sick days must be manually reviewed to ensure
nurses are not disciplined for taking FMLA or disability
based leave. (See O'Grady Dep. 33:4-22.) Once
identified for discipline, nurses are typically subject to a
three-step Progressive Discipline Policy. Because ...