In Colon v. Fashion Institute of Technology, the Southern District of New York ruled on employment discrimination and retaliation claims brought by two plaintiffs, both Hispanic women, against FIT.
It considered claims brought by Genette Colon, a student aide, and Elvimar Rivas, a secretary, under various laws, including the Family and Medical Leave Act (FMLA), 42 U.S.C. 1981, and the New York City Human Rights Law.
Plaintiff Colon – Effect of Arbitration Decision
Initially, the court considered the effect, if any, of an arbitration decision recommending Colon’s termination. The court declined to give preclusive effect to the decision (on the basis of precedent denying such effect to so-called Section 2587 arbitrations). It also declined to give it great weight, since the arbitrator failed to consider defendants’ treatment of comparable co-workers in reaching her findings.
Plaintiff Colon – Family and Medical Leave Act Violations
The court denied defendant’s motion on Colon’s claims for interference with FMLA rights and retaliation for exercising those rights. As explained by the court, these are distinct claims:
The FMLA affords eligible employees an ‘entitlement’ to twelve weeks of unpaid leave per year. Among other reasons to grant an FMLA leave, one is where a serious health condition [ ] makes the employee unable to perform the functions of the position of such employee. The Second Circuit recognizes distinct claims for interference and retaliation under the FMLA.
As to plaintiff’s FMLA interference claim, the court explained:
To establish a prima facie case for interference under the FMLA, a plaintiff must establish: (1) that she is an eligible employee under the FMLA; (2) that defendants constitute an employer under the FMLA; (3) that she was entitled to leave under the FMLA; (4) that she gave notice to defendants of her intention to take leave; and (5) that defendants denied her benefits to which she was entitled by the FMLA. [P]laintiff need only prove by a preponderance of the evidence that her taking of FMLA-protected leave constituted a negative factor in the decision to terminate her. She can prove this claim, as one might any ordinary statutory claim, by using either direct or circumstantial evidence, or both…. No scheme shifting the burden of production back and forth is required.
The court found an issue of fact as to this claim, noting that “while an employer is not liable for interfering with an employee’s leave when the employee would have been terminated regardless of the leave,” an unaccounted-for gap between the recommendation of disciplinary action and plaintiff’s suspension made it “impossible … to evaluate whether Colon’s leave notice to Defendants was a factor in FIT’s decision to suspend and terminate.”
As to plaintiff’s FMLA retaliation claim, the court explained:
Unlike the interference claim, an FMLA retaliation claim is analyzed under the McDonnell Douglas burden shifting framework, requiring the Plaintiff first to establish a prima facie case. Once that showing is made, the burden of production then shifts to the employer to articulate a legitimate, clear, specific and non-discriminatory reason for its actions. The employer’s burden is ‘merely one of production, not persuasion; it can involve no credibility assessment. If the employer satisfies that burden, the presumption of discrimination drops out and the plaintiff has the burden to establish by a preponderance of the evidence that the employer’s stated reason was merely a pretext for discrimination. In order to make out a prima facie case, [the Plaintiff] must establish that: 1) he exercised rights protected under the FMLA; 2) he was qualified for his position; 3) he suffered an adverse employment action; and 4) the adverse employment action occurred under circumstances giving rise to an inference of retaliatory intent.
Taking away Colon’s keys and asking her to find a mannequin for a student were not “adverse employment actions”, so the court focused on only her suspension. The court found an inference of retaliatory intent, in light “of the timing of Colon’s notice to Defendants of her intention to take FMLA leave, followed very shortly by her suspension.”
The court found that plaintiff (barely) submitted enough evidence of pretext to survive summary judgment on this claim.
[T]he facts may give rise to an inference of retaliatory intent because of the timing of Colon’s notice to Defendants of her intention to take FMLA leave, followed very shortly by her suspension. Proof of the causal connection can be established indirectly by showing that the protected activity was closely followed in time by the adverse action.
The facts of this case were different than those where a retaliation claim is based only on the timing of the alleged retaliation:
[H]ere Colon has also noted other instances of mistreatment after informing Defendants of her intent to take leave. Plaintiff has, albeit barely, overcome the low hurdle required to make out a prima facie case. Defendants offer Colon’s documented history of tardiness and absence as their legitimate, nondiscriminatory reason for her termination. Colon now must show that this reason is a pretext. The close time proximity of notice to Defendants of her intention to take FMLA leave and Defendants issuing the charges that would lead to her termination on November 7, coupled with Muglia’s failure to accommodate Colon’s injury, are sufficient to permit a rational factfinder to infer that the discharge was actually motivated, in whole or in part by discrimination. Indeed, Colon does not need to show that the employer’s proffered reasons were false or played no role in the employment decision, but only that they were not the only reasons and that the prohibited factor was at least one of the motivating factors. Although Defendants do provide evidence that attendance and tardiness were motivating factors in Colon’s suspension, Colon’s notice to Defendants that she intended to take leave may have been an additional factor that Defendants considered.
The court concluded: “Because there is a material issue of fact with respect to whether Defendants were in part motivated by their knowledge of Colon’s intention to take FMLA leave, summary judgment must be denied on Colon’s FMLA retaliation claim.”
Plaintiff Colon – Section 1981
The court granted summary judgment to defendants on Colon’s Section 1981 disparate treatment and retaliation claims. Taking Colon’s bathroom keys, insisting that Colon get a mannequin for a student, and “talking down” to her were not adverse employment actions.
In addition, Colon failed to establish an inference of discrimination: While she pointed to a supervisor’s use of the word “spic” in 2008, this was three years before the alleged adverse actions, such that the “requisite state of mind had long since vanished.”
The court also rejected her argument that non-Hispanic employees were treated preferentially, noting that her alleged comparators were not similarly situated.
Finally, her Section 1981 retaliation claim failed because defendant started the formal disciplinary process before plaintiff’s alleged protected activity (her complaint to HR).
Plaintiff Rivas – NYCHRL Pregnancy Discrimination
The court denied defendants’ motion for summary judgment on Rivas’ pregnancy discrimination claim under the New York City Human Rights Law. Although defendants argued that they fired Rivas because of her history of tardiness and lateness,
Rivas argues that these reasons were pretext for her termination because of the close temporal proximity between informing FIT of her pregnancy and her termination. Rivas, a nontenured FIT employee, informed Wong of her pregnancy in writing on May 4, 2010, and had given verbal notice to Wong about a week before. On May 14, Wong informed HR that she planned to terminate Rivas the week of May 24.
The court held that, under the circumstances, there were material issues of fact as to Rivas’s NYCHRL claims of pregnancy discrimination and discharge, and therefore summary judgment was improper. It reasoned:
Although the timing of Rivas’s termination alone may be insufficient to demonstrate pretext, here, Rivas offers more than temporal proximity to demonstrate that Defendants’ reasons for her termination were pretextual. Rivas also observed that her performance evaluations subsequent to informing FIT of her pregnancy were significantly worse than any she had received before that, and that Speranza and Wong treated her differently after they learned she was pregnant. Although Solomon may have called for Rivas’s termination in early 2010, there is a material question of fact about why Defendants chose to terminate Plaintiff when they did, in such close proximity to learning that she was pregnant. During May 2010, Rivas informed Defendants that she was pregnant, and Wong decided the time was ripe to terminate Rivas, but HR advised her to wait. At the end of May, Wong gave Rivas a performance evaluation which was significantly more negative than any previous evaluation Rivas had received. Indeed, Wong revised the evaluation when Rivas objected to it. However, a jury might find that this apparently inaccurate negative evaluation was merely a pretext for termination because of her pregnancy.
Also, although the decision to fire Rivas was made well before her pregnancy, the court found that “a jury could find that knowledge of Rivas’s pregnancy was a ‘motivating factor’ in Defendant’s termination decision because of the temporal proximity between notice and termination, and the negative change in her performance evaluations following notice that she was pregnant.” A jury could find that plaintiff’s pregnancy played a role in the defendants’ decision, particularly under the NYCHRL’s lower standard for liability.
Plaintiff Rivas – Hostile Work Environment Claims Under Section 1981 and NYCHRL
The court granted defendants’ motion for summary judgment on plaintiffs’ hostile work environment claims under Section 1981 and the NYCHRL.
The court applied the well-known legal standard for hostile work environment claims under these statutes:
To prevail on a § 1981 hostile work environment claim, Rivas must demonstrate (1) that she was subjected to conduct that was objectively severe or pervasive to alter the conditions of [her] employment and create an abusive working environment; (2) that she subjectively perceived the environment to be hostile or abusive; and (3) that the offending conduct created an abusive environment because of [her] race or gender.
Claims under the NYCHRL, on the other hand, do not use the “severe and pervasive” standard, instead requiring the plaintiff to show only that she was treated “less well” because of discriminatory intent. Further, if the plaintiff establishes that she was treated less well because of her gender, defendants may assert an affirmative defense whereby [they] can still avoid liability if they prove that the conduct complained of consists of nothing more than what a reasonable victim of discrimination would consider petty slights and trivial inconveniences.
Rivas alleged a hostile work environment based on the following facts:
Rivas alleges that she was subject to intense scrutiny and micro-management on a daily basis, including having her desk moved to face Speranza. Further, she was required to call Speranza when she arrived at work each day. Speranza also reprimanded Rivas for using her cell phone to place calls or texts, while Rivas observed Speranza, and another employee, Nina Blumenthal, both of whom are white, use their cell phones to make calls and texts. Finally, Rivas was docked time for arriving to work late.
This, however, was insufficient:
[T]hese actions are not sufficient to sustain a hostile work environment claim under § 1981 or the NYCHRL. Moreover, Rivas does not dispute that she has arrived late to work, and her performance evaluations demonstrate that she struggled with this aspect of her employment from the get go. Thus, it is hard to conclude that the actions Rivas complains of amount to unfair scrutiny by Speranza, rather than a consequence of Rivas’s work and attendance problems that needed improvement. …
The court concluded that while “Speranza may have been an overbearing or obnoxious boss … even under the more lenient NYCHRL standard, these actions do not rise above the level of petty slights and trivial inconveniences.”