FMLA Retaliation Claim Survives Summary Judgment (In Part)

In Yeger v. Inst. of Culinary Educ., Inc., No. 14CV8202-LTS, 2017 WL 377936 (S.D.N.Y. Jan. 25, 2017), the court granted defendants’ motion for summary judgment as to various discrimination claims (including based on plaintiff’s gender, age, and religion), but denied it in part with respect to her FMLA retaliation claim.

Here I’ll focus on the court’s assessment of plaintiff’s FMLA retaliation claim.

The court gives us an overview of the law applicable to such claims, in the context of summary judgment:

In an FMLA retaliation claim, “an employee asserts that his employer discriminated against him because he engaged in activity protected by the Act.” Smith v. Westchester Cty., 769 F. Supp. 2d 448, 469 (S.D.N.Y. 2011) (internal quotation marks and citation omitted). FMLA retaliation claims are analyzed under the burden-shifting framework of McDonnell Douglas. Potenza v. City of New York, 365 F.3d 165, 168 (2d Cir. 2004). In order to make out a prima facie case of retaliation under the FMLA, a 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.” Potenza, 365 F.3d at 168. 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.” Esser v. Rainbow Adver. Sales Corp., 448 F. Supp. 2d 574, 581 (S.D.N.Y. 2006) (citation omitted). As to the third step, the Second Circuit has stated that Plaintiff must adduce evidence demonstrating that the taking of FMLA leave was “a negative factor” in the decision to implement the adverse employment action. See Sista v. CDC Ixis N. Amer., Inc., 445 F.3d 161, 176 (2d Cir. 2006); see also Di Giovanna v. Beth Israel Medical Center, 651 F. Supp. 2d 193, 205 (S.D.N.Y. 2009) (plaintiff need not show that defendant’s proffered reasons played no role, “but only that they were not the only reasons, and that filing for FMLA leave was at least one motivating factor.”) This requires putting forth evidence from which a reasonable factfinder could conclude that the employer’s explanation was “merely pretext masking impermissible retaliatory motives.” See Sista, 651 F. Supp. at 205 (citation omitted). To determine whether summary judgment is warranted in a particular case, courts evaluate “the strength of the plaintiff’s prima facie case, the probative value of the proof that the employer’s explanation is false, and any other evidence that supports [or undermines] the employer’s case.” Di Giovanna, 651 F. Supp. 2d at 205 (internal quotation marks and citations omitted, alteration in original). “FMLA is not a shield to protect employees from legitimate disciplinary action by their employers if their performance is lacking in some manner unrelated to their FMLA leave.”

Applying the law, the court explained:

Plaintiff was placed on administrative leave in July 2013, reinstated in August 2013, and terminated in October 2013. … [I]t cannot be denied that Defendant’s complaints about Plaintiff’s performance spanned a significant period of time and the tenures of different managers, and that she in fact failed to check her voicemail messages for the two months leading up to her termination. However, given that Plaintiff only needs to proffer sufficient evidence to permit a reasonable inference that retaliation for the medical absences was “at least one motivating factor,” in consideration of the issues that were raised concerning her medical schedule and expenses and drawing all inferences in her favor, Plaintiff has sustained that burden at the summary judgment stage. Accordingly, Defendant’s motion to for summary judgment is denied as to the FMLA retaliation claim insofar as it is based on adverse employment events after October 2012.

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