2d Circuit Vacates Dismissal of FMLA Retaliation Claim, But Affirms Dismissal of Race/National Origin Discrimination Claim

In Offor v. Mercy Medical Center, No. 16-839, 2017 WL 253616 (2d Cir. Jan. 20, 2017) (Summary Order), the court vacated the Federal Rule of Civil Procedure 12(b)(6) dismissal of plaintiff’s Family and Medical Leave Act (FMLA) retaliation claim, but affirmed the dismissal of her Title VII race and national origin discrimination claim.

From the Order:

[Plaintiff] argues that Mercy Medical retaliated against her for hiring an attorney and exercising her FMLA rights in late 2012. For an FMLA retaliation claim, [plaintiff] must establish that: 1) [s]he exercised rights protected under the FMLA; 2) [s]he was qualified for [her] 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. She has plausibly alleged that she attempted to exercise FMLA rights, that she was qualified for her position, and that she suffered an adverse employment action when she was put on FPPR probation. Mercy Medical put her on the FPPR probation only one month after she retained an attorney, and that temporal proximity is enough at this stage to give rise to an inference of retaliatory intent. We therefore vacate the district court’s dismissal of Offor’s FMLA retaliation claim.

The court did, however, affirm the dismissal of plaintiff’s other claims, including for race/national origin discrimination, hostile work environment and under the Health Care Quality Improvement Act.

With respect to her disparate treatment claim, the court held that the non African-American and non-Nigerian persons whom plaintiff alleged were better treated than her were not “similarly situated” to plaintiff. Specifically, “[t]he doctor who allegedly received better vacation treatment is [plaintiff]’s own supervisor, and the doctors who received moonlighting hours were … not full-time employees like [plaintiff].”

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