From Ortiz v. Gazes, LLC, 2017 NY Slip Op 32339(U) (N.Y. Sup. Ct. N.Y. Cty. 150876/2015 Oct. 30, 2017):
Defendants have articulated legitimate reasons for terminating plaintiff by pointing to, among other things, plaintiff’s chronic absences, lateness and her inability to handle some of the work necessary. However, defendants acknowledge that they did not address attendance issues with plaintiff while she was an employee. The emails submitted on the record are plaintiff’s emails to defendants explaining that she would be late or absent from work. There is no indication that plaintiff’s absences or late arrivals were not approved, or that they were happening too frequently during her five years with defendants.
Further, there,is no indication that defendants were unsatisfied with plaintiff’s performance prior to her maternity leave. Plaintiff received annual raises and bonuses, and defendants testified that they had never thought about firing her prior to her leave. Plaintiff was assured that she would have a job when she returned and defendants testified that, had plaintiff not gone out on maternity leave, she would still be working for them.
In addition, although defendants allege that plaintiff’s replacement was superior to plaintiff in every way and could handle more tasks, since plaintiff was at least proficient enough to train her replacement, credibility issues remain.