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Smith v. North Shore-Long Island Jewish Health System

United States District Court, E.D. New York

February 26, 2018

NOLA SMITH, Plaintiff,



         Plaintiff 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.

         I. Background

         The 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.)

         Until 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. (Id.)

         a. Work schedule and absences from work

         Throughout 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.)

         In 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.)[1]

         The 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.)

         b. Disciplines and other actions

         According 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.)

         On 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 Warning Notice.)

         In 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.)

         Smith 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.[2] (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.”[3] (Jackson Dep. 40:14-25; O'Grady Dep. 27:9-14; CBA at 8.)

         As 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 Dep. 149:22-25.)

         On July 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.”[4] (Smith Dep. 168:7-10.)

         Subsequently, 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. ¶ 14.)

         II. Discussion

         a. Standard of review

         Summary 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).

         b. FMLA retaliation claims

         Smith asserts claims for retaliation under the FMLA for the denial of her transfer requests and her termination.[5] (Pl. Opp'n 10.) Defendant argues that these claims fail because Smith cannot make out a prima facie case of discrimination or demonstrate pretext.[6] (Def. Mem. 6-7.)

         “The 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.

         “At 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.”).

         i. Plaintiff has established a prima facie case for retaliation

         In 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”).

         The 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.

         1. The denials of transfer constitute an adverse employment action

         Defendant 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.)

         For 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)).[7] “‘[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 omitted).

         Under 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”).

         Smith 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.[8] (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”).

         2. Smith has established a causal relationship between the adverse employment actions and her protected leave

         Defendant 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.)

         The 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;[9] 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).

         A. Direct evidence of causal connection

         Smith 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.[10] 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”).

         B. Circumstantial evidence of causal connection

         Smith also provides circumstantial evidence of retaliatory animus based on the disciplinary action taken against her pursuant to the Hospital's policy.[11] 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.[12] (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 ...

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