Opinion
No. 98 Civ. 0973 (JSM).
December 20, 2000.
Ambrose W. Wotorson, New York, NY., for plaintiff.
Marina O. Lowy, Office of the General Counsel, New York, NY., for defendant.
OPINION and ORDER
Eugene LeBoeuf ("Plaintiff") brings this action claiming that he was terminated from his employment at New York University Medical Center ("Defendant") in violation of the Family and Medical Leave Act of 1993 (the "FMLA"), and that he relied upon a promise of immunity from discharge made by his supervisor that was breached. Defendant moves for summary judgment on both claims. For the reasons set forth below, Defendant's motion is granted.
I. BACKGROUND
At the time of the disputed events, Plaintiff was employed by Defendant as a supervisor in the Food Services Department (the "Department"). In April 1997, Plaintiff sustained an injury to his shoulder while playing basketball. After seeing two doctors, each of whom prescribed Ibuprofen for his pain, Plaintiff was referred to an orthopedic surgeon, Ramesh Gidumal, M.D. On October 23, 1997, Plaintiff met with Dr. Gidumal and completed a Shoulder Patient Questionnaire. On the questionnaire, Plaintiff stated that it was "somewhat difficult" to perform his usual work activities and that he was in constant, but bearable, pain. Dr. Gidumal diagnosed Plaintiff with impingement syndrome, in which the rotator cuff is squeezed by the bone and can be worn down or torn over time. Dr. Gidumal presented Plaintiff with several treatment options, and Plaintiff elected surgery. Dr. Gidumal scheduled Plaintiff's surgery for November 20, 1997, and informed Plaintiff that he would be out of work for four to six weeks.
The evidence is conflicting as to whether or not Plaintiff had actually suffered a cuff tear.
On November 4, 1997, Plaintiff informed his direct supervisor, Paul Cyr ("Cyr"), that he would be taking leave in order to undergo the surgery. Although Dr. Gidumal claims that there was no medical reason for Plaintiff to begin his sick leave prior to November 20th, Plaintiff chose to take leave as of November 12, 1997. Cyr asked Plaintiff whether he could postpone the surgery in light of a pending hospital inspection by the Joint Commission on the Accreditation of Hospital Organizations ("JCAHO"), scheduled for November 10-15, 1997. Plaintiff declined this request.
Plaintiff next met with Chester Ostrowski ("Ostrowski"), Assistant Director of Nonpatient Services, and informed him of his impending leave. Ostrowski also asked Plaintiff to postpone his surgery, and Plaintiff again declined due to his claims of severe pain and fear of further injury. Plaintiff alleges that in assenting to Plaintiff's request for leave, Ostrowski said, "its not like your job won't be here when you get back."
Finally, on November 12, 1997, Plaintiff met with Ostrowski and Herbert Dyer ("Dyer"), Associate Director of the Food Services Department. Ostrowski and Dyer renewed their request that Plaintiff postpone his surgery. Once again, Plaintiff refused. When asked why he was beginning leave one week prior to his surgery, Plaintiff responded that he was in pain and feared further injury.
On November 16, 1997, while on leave, Plaintiff attended his daughter's christening. Plaintiff also attended a traffic court hearing during the week before his surgery. On November 17, 1997, Plaintiff underwent presurgical testing. On November 20, 1997, Plaintiff had surgery as scheduled. Plaintiff did not speak with any hospital supervisor between November 12, 1997, and December 28, 1997.
On December 24, 1997, Defendant attempted to deliver to Plaintiff a letter stating that he was in violation of hospital policy for failing to contact the Department on a weekly basis, and that he would be terminated on December 29, 1997, if he did not contact his Department. (Wotorson Aff., Ex. 5.) At about that time, a fellow employee allegedly left a message on Plaintiff's answering machine to the effect that Defendant was seeking to have Plaintiff fired. Plaintiff claims that in response he contacted Kathy Rile, a personnel manager, who told him that Cindy Sherman ("Sherman"), Director of Food Services, had attempted to send Plaintiff a letter regarding his return date, was upset about Plaintiff's refusal to postpone his surgery, and intended to terminate him. Plaintiff then allegedly spoke with another Human Resources employee, Angelyce Scott, who informed him that he would not be terminated as long as he agreed to return on a certain date. Plaintiff and Scott then chose a return date due to Plaintiff's concern for his job.
On January 5, 1998, Plaintiff returned to work. On January 12, 1998, Plaintiff was summoned to meet with Dyer. Dyer claims that he was concerned about Plaintiff's lack of communication with the Department during his leave and rumors that Plaintiff had hosted a party for his daughter's christening prior to his surgery. At that meeting, Plaintiff allegedly stated that he began his leave on November 12th in order to undergo presurgical testing and to attend to certain personal matters, including looking after his children and attending a court hearing. Plaintiff was informed that he was being discharged for fraudulent use of sick time. Plaintiff claims that Dyer told him at that meeting that Sherman was "furious" about his refusal to postpone his surgery, that she questioned his loyalty to the department, and that she had ordered Plaintiff terminated. Plaintiff allegedly responded that Personnel had told him that there was no problem with taking the leave, at which point Dyer asked Plaintiff to leave the room. After placing a telephone call, Dyer called Plaintiff back inside the room and allegedly informed him that Personnel had approved Sherman's decision. Dyer, on the other hand, claims that it was his decision to terminate Plaintiff, and that during the January 12th meeting he called Sherman, not Personnel, for approval of his decision. Plaintiff thereafter brought this action charging that he had been wrongfully terminated in retaliation for taking FMLA leave, and for promissory estoppel based on Ostrowski's statement that Plaintiff's job would be there when he got back.
II. DISCUSSION A. FMLA Claim
To bring a claim for wrongful termination under the FMLA, 29 U.S.C. § 2615 (a), Plaintiff must first establish a prima facie case of discrimination or retaliation. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824 (1973). Plaintiff must show that: (1) he availed himself of a protected right under the FMLA; (2) he was adversely affected by an employment decision; and (3) there is a causal connection between the Plaintiff's protected activity and the adverse employment action. See Morgan v. Hilti, Inc., 108 F.3d 1319, 1325 (10th Cir. 1997). In order to rebut the presumption that arises from establishment of a prima facie case, Defendant has the burden to produce competent evidence that, if taken as true, would permit a rational factfinder to conclude that the challenged employment action was taken for a "legitimate, nondiscriminatory reason." Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 1094 (1981). Once such a reason is proffered, the burden returns to Plaintiff to demonstrate the existence of a trial-worthy issue of pretext underlying Defendant's stated reason for termination. See id. at 256, 101 S.Ct. at 1095.
The parties, of course, contest whether Plaintiff has established a prima facie case under the FMLA. For the purposes of this summary judgment motion, the Court will assume, without deciding, that Plaintiff has made his prima facie case. But because Defendant has offered a legitimate, non-discriminatory reason for terminating Plaintiff, which Plaintiff has failed to rebut, Plaintiff is unable to sustain his overall burden and avoid summary judgment.
For example, Defendant argues that Plaintiff has not met the first requirement of his prima facie case because his shoulder injury was not a "serious health condition" as required by the FMLA, and because he did not provide proper notice of his impending leave. As to the third element, Defendant asserts that by using the first week of his leave for personal business Plaintiff broke the causal chain between the FMLA-protected leave and the decision to terminate him.
Where an employee is terminated because the employer honestly believed that the employee was not using the leave period for its "intended purpose," an FMLA claim will not lie. Kariotis v. Navistar Int'l Transp. Corp., 131 F.3d 672, 680-81 (7th Cir. 1997). Defendant's asserted reason for terminating Plaintiff was fraudulent use of sick time. According to Plaintiff's own deposition testimony, he used his first week of sick leave for the purpose of addressing certain personal matters in light of his upcoming surgery, including paying bills. (LeBoeuf Dep. at 55-56, 122.) Plaintiff also admits that during that week he appeared in traffic court and attended his daughter's christening. (LeBoeuf Dep. at 35, 123.) Defendant's policy clearly defines sick leave as "those days that an employee is absent from work for verifiable reasons of illness, injury, or for disabilities caused or contributed to by pregnancy." (Langweiler Aff., Ex. C § 7(A)) Furthermore, in recommending sick leave, doctors are not to consider "such things as additional elective recuperation, personal business, child-rearing responsibilities, etc." (Langweiler Aff., Ex. C. § 8(2)(a).) In light of Plaintiff's admissions and Defendant's written leave policies, Defendant has asserted a legitimate, nondiscriminatory reason for terminating Plaintiff.
In order to rebut this showing, Plaintiff must provide proof not only that the explanation was false, but that unlawful discrimination was the true motivation behind his termination. See Lacoparra v. Pergament Home Ctrs., Inc., 982 F. Supp. 213, 223 (S.D.N.Y. 1997) (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515-16, 113 S.Ct. 2742, 2751-52 (1993)). Plaintiff may raise an inference of pretext either indirectly by showing that Defendant's stated reasons for its adverse action are not credible, or directly by showing that the action was more likely motivated by a discriminatory reason. See Burdine, 450 U.S. at 256, 101 S.Ct. at 1095 (citing McDonnell Douglas, 411 U.S. at 804-05, 93 S.Ct. 1825-26). Plaintiff fails to produce evidence sufficient to allow a rational fact-finder to conclude that Defendant's proffered reason for discharge is pretextual.
Plaintiff argues that he was in excruciating pain during the week before his surgery, and that the fact that he may have used that time to complete personal tasks is not dispositive. While Plaintiff did tell Ostrowski and Dyer, prior to taking leave, that he was leaving before the date of his scheduled surgery due to pain, Plaintiff states in his deposition testimony describing the January 12, 1998, termination meeting that he did not disagree with or contradict Defendant's stated reason for termination. (LeBoeuf Dep. at 206-21.) Because Defendant's conclusions about Plaintiff's fraudulent use of sick leave went unchallenged, Plaintiff cannot now argue that Defendant failed to consider his allegedly legitimate use of leave time. Even if Plaintiff were experiencing severe pain that prevented him from performing his job duties, and Defendant was therefore objectively wrong in terminating him, such erroneous belief does not render Defendant's decision pretextual.
Plaintiff further attempts to assail Defendant's stated reason for termination by pointing to Defendant's efforts to convince him to postpone his surgery until after the JCAHO audit, and to Carol Sherman's alleged desire to terminate Plaintiff based on his refusal to do so.
Plaintiff's deposition testimony indicates that only Cyr brought up the issue of the impending JCAHO inspection. (LeBoeuf Dep. at 23.) Plaintiff states that he was never asked to postpone his surgery date because of the JCAHO audit; rather, he was asked to postpone leave due to the holiday season and vacation schedules. (LeBoeuf Dep. at 129-133.) Dyer, however, claims that he did make this request of Plaintiff, (Dyer Aff. at 2), and Defendant's papers suggest that all three supervisors asked Plaintiff to defer his leave in light of the audit.
First, requests before Plaintiff took his leave that he postpone it in light of a pending hospital inspection and the busy holiday season do not support an inference that the reasons given for his termination were a pretext. To the contrary, the fact that the JCAHO audit took place the very week that Plaintiff was absent for personal business suggests that Plaintiff's superiors were articulating a legitimate need for his services during this period and not a hostility to his taking medical leave.
With respect to the alleged statements by Sherman, isolated comments by decision-makers, which relate to the decision-making process, can lead to an inference of pretext. See Coleman v. Prudential Relocation, 975 F. Supp. 234, 243-44 (W.D.N.Y. 1997). However, an analysis of the hearsay statements attributed to Sherman, in light of the difference in Plaintiff's Affidavit and deposition testimony on this subject, demonstrate that Plaintiff could not persuade a reasonable fact-finder that the defendant's claim that he was fired for improper use of sick leave was pretextual.
In his Affidavit, Plaintiff points to Rile's alleged statement in late December that Sherman was seeking to terminate Plaintiff based on his refusal to postpone his leave, and to Dyer's alleged statements on January 12th to the same effect. (LeBoeuf Aff. ¶ 35) Sherman states in her Declaration that she was not involved in the decisions to approve Plaintiff's leave or to terminate him, and that there were three managers in the chain of command between herself and Plaintiff. (Sherman Decl. ¶¶ 4-6.) In addition, Dyer asserts that it was his decision to terminate Plaintiff, not Sherman's. (Dyer Aff. ¶¶ 21, 22.)
LeBouef's Affidavit is misnumbered; this citation refers to both paragraphs numbered 35.
In Plaintiff's deposition testimony, he states that when he spoke with Kathy Rile in late December, she told him that Sherman had attempted to contact Plaintiff about his lack of communication with the Department. Rile also allegedly said that Sherman was "pissed" that Plaintiff had not yet returned to work and was "very intent on releasing" Plaintiff unless he agreed on a return date. (LeBoeuf Dep. at 38, 162.) Plaintiff states that Rile told him that both Dyer and Ostrowski were on vacation, and that Cyr had abruptly quit, leaving no managers in the Food Services area. (LeBoeuf Dep. at 37-38.) Rile also allegedly told him that Sherman was on a "tirade." (LeBoeuf Dep. at 165.) Plaintiff makes no mention of a statement by Rile regarding Sherman's anger over his refusal to postpone his leave. Elsewhere, Plaintiff states that none of his superiors told him why Sherman was on a tirade, and that he never asked. (LeBoeuf Dep. at 165.)
Rather, Plaintiff states that his feelings of anxiety stemmed from a more indefinite source: "[d]ealing with Ms. Sherman and her tirades over the years, I think there was enough cause for me to have some fear." (LeBoeuf Dep. at 165.)
Plaintiff's deposition testimony, standing alone, amounts only to an allegation that Sherman was upset because the Department had not heard from Plaintiff five weeks into his leave, which had been scheduled for four to six weeks, and was threatening his termination unless she heard from him. Moreover, even if one accepts as true everything that Plaintiff states that Rile said that Sherman said about Plaintiff, the fact is that after Plaintiff's conversation with Rile, Plaintiff was allowed to return to work. Thus, even if one accepts the inference that Sherman was angry because Plaintiff took his leave at a critical time, the fact that he was reinstated despite her alleged displeasure gives rise to an inference that her anger at Plaintiff was not the reason for his termination.
In describing his termination on January 12th, Plaintiff at one point in his deposition mentions an alleged statement by Dyer that Sherman wanted Plaintiff terminated, and at another point makes no mention of Sherman in this context. (LeBoeuf Dep. at 42, 205-10.) When asked what reason Dyer gave for Plaintiff's termination, Plaintiff responded "I was told it was for fraudulent and unauthorized sick time." (LeBoeuf Dep. at 43.) Counsel asked Plaintiff to expound on the paragraph of the complaint that alleges that Dyer told Plaintiff that Sherman was furious about Plaintiff's refusal to postpone his surgery and that she questioned his loyalty to the department. The gist of Plaintiff's response was that Sherman "felt as though I didn't put the department before my own health." (LeBoeuf Dep. at 65.) Other than this reference, nowhere in his deposition testimony does Plaintiff provide a basis for inferring that Sherman was angry about his decision to take leave or his refusal to postpone his leave. Dyer's statement that Sherman wanted Plaintiff fired, standing alone, does not indicate pretext when Plaintiff was in fact being terminated for fraudulent use of sick time.
While Plaintiff is permitted to amplify or expand upon his deposition testimony through a later affidavit, see Palazzo v. Corio, No. 00-7020, 2000 WL 1637815, at *3 (2d Cir. Nov. 1, 2000), his proof of pretext boils down to the alleged statement by Dyer. Plaintiff's own descriptions of that conversation in his deposition contradict his allegations, and he fails to offer any direct evidence to rebut Sherman's and Dyer's claims that Sherman had no role in deciding whether or not to terminate Plaintiff. Moreover, as noted above, the fact that Plaintiff was reinstated in early January despite the evidence that his superiors were displeased that he did not postpone his sick leave is persuasive evidence that his failure to postpone his leave was not the reason that he was terminated.
Thus, Plaintiff's claims of pretext do not permit a rational fact-finder to conclude that Defendant acted in retaliation against Plaintiff for taking FMLA leave, particularly where Plaintiff has admitted to using his first week of leave time for personal business in violation of hospital policy. See Viola v. Philips Med. Sys., 42 F.3d 712, 716 (2d Cir. 1994) ("A grant of summary judgment is proper only if the evidence of discriminatory intent is so slight that no rational jury could find in plaintiff's favor.").
Plaintiff also points to the proximity between his return from leave and his discharge as evidence of pretext. Where an employee is terminated for legitimate reasons, proximity alone does not establish pretext. See Bond v. Sterling, Inc., 77 F. Supp.2d 300, 305 (N.D.N Y 1999)
B. Promissory Estoppel Claim
Plaintiff brings a claim for promissory estoppel based on Ostrowski's statement that Plaintiff's job would still be there for him when he returned. The elements of a promissory estoppel claim include: (1) a clear and unambiguous promise; (2) reasonable and foreseeable reliance; and (3) unconscionable injury. See Zucker v. Katz, 708 F. Supp. 525, 532-33 (S.D.N Y 1989). Under New York law, promissory estoppel cannot be invoked by an at-will employee who claims that his employment status was damaged by an employer's unfulfilled promise of job security. See, e.g., Apsan v. Gemini Consulting, Inc., No. 98 Civ. 1256, 1999 WL 58679, at *5 (S.D.N.Y. Feb. 4, 1999); Lerman v. Medical Assocs. of Woodhull, P.C., 554 N.Y.S.2d 272, 273-74 (App.Div. 199 0); Dalton v. Union Bank of Switzerland, 520 N.Y.S.2d 764, 766 (App.Div. 1987). Moreover, Ostrowski's alleged assurance was not a promise that Plaintiff would not be terminated for fraudulent use of sick time, as Ostrowski had no facts at his disposal indicating that such an event was afoot. Therefore, Plaintiff's promissory estoppel claim is without merit.
III. CONCLUSION
For the foregoing reasons, Defendant's motion for summary judgment is granted.
SO ORDERED.