Opinion
03 Civ. 3721 (DC).
July 12, 2005
SANFORD KUTNER, ESQ., Metairie, Louisiana, Attorney for Plaintiff.
SILLS CUMMIS EPSTEIN GROSS PC, By: Steven M. Post, Esq., New York, New York, Attorneys for Defendant.
MEMORANDUM DECISION
In this employment case, plaintiff Isabel Ynoa sues her former employer for unlawful discrimination because of her national origin and disability, violations of the Family and Medical Leave Act (the "FMLA"), unlawful retaliation, and intentional infliction of emotional distress ("IIED"). Defendant New York-Presbyterian, The University Hospitals of Columbia and Cornell ("New York Presbyterian" or the "Hospital"), moves for summary judgment dismissing all claims. For the reasons discussed below, the motion is granted and the amended complaint is dismissed.
BACKGROUND
A. The FactsConstrued in the light most favorable to plaintiff, the facts are as follows:
1. Ynoa's Work History
Ynoa, who is Dominican, worked at New York Presbyterian as a phlebotomist from August 1988 until she was fired on February 25, 2003. (Def.'s 56.1 Statement ¶ 1; Post Aff. Ex. F; Am. Compl. ¶ 5). In February 1991, Ynoa's shift changed from the morning to the evening shift, where her hours were typically from 2:00 p.m. until 10:00 p.m. (Ynoa Dep. at 20). At some point in 1993 or 1994, Jacqueline Gomez became Ynoa's supervisor. (Id. at 18-19). Gomez continued to supervise Ynoa and Ynoa continued to work the evening shift for the remainder of her employment with the Hospital. (Id. at 20).
Where New York Presbyterian's 56.1 statement is cited, Ynoa has not disputed the facts alleged, unless otherwise indicated. In various places, Ynoa disputes defendant's 56.1 statement, but does not cite any evidence calling into question the assertion alleged or supporting her position. Hence, Ynoa's disputed assertions of fact without any evidentiary support are disregarded. See Holtz v. Rockefeller Co., 258 F.3d 62, 73-74 (2d Cir. 2001) ("Allowing a Local Rule 56.1 statement to substitute for the admissibility requirement set forth in Fed.R.Civ.P. 56(e) would be tantamount to the tail wagging the dog." (internal quotation omitted)); Local Rule 56.1(d) ("Each statement of material fact by a movant or opponent must be followed by citation to evidence which would be admissible, set forth as required by Fed.R.Civ.P. 56(e).").
In 1998 or 1999, Ynoa met with "Michelle" from the Hospital's human resources department to discuss Gomez's interpretation of the Hospital's sick policy. (Id. at 107-08). Ynoa was upset because Gomez was "constantly calling [her] house" when Ynoa was out sick. (Id. at 107). Michelle informed Ynoa that it was not Hospital policy for a supervisor to call an employee when she was out sick. (Id.). Michelle told Ynoa that she would talk to Gomez about the situation. (Id.). Ynoa does not know whether any conversation between Michelle and Gomez ever took place. (Id.).
In April 2001, Ynoa met with Gomez and another supervisor named Jane Preston to discuss problems Ynoa was having at work. (Id. at 121). Ynoa believed she was being harassed and subjected to a hostile work environment by Gomez and others at the Hospital. (Id.). Specifically, Ynoa complained that she was "the only technician being left repeatedly to cover the [H]ospital." (Id. at 121-22). Gomez and Preston did not give Ynoa an explanation as to why the Hospital was often short-staffed, but they did tell her that they were not harassing her. (Id. at 122). Ynoa believed that her supervisors were harassing her because she complained to human resources about them. (Am. Compl. ¶¶ 11, 12). On March 1, 2002, an attorney filed a grievance with the Hospital on behalf of Ynoa. (Pl.'s Counter-56.1 Statement Ex. 3). In the grievance letter, Ynoa's counsel wrote that Ynoa had been harassed at the Hospital for "several years." (Id.). The harassment charges included:
[E]ndangering patient welfare by intentionally leaving Ms. Ynoa alone on her shift . . . and refusing her repeated requests for help, unfairly evaluating Ms. Ynoa, publicly displaying Ms. Ynoa's home telephone number in violation of hospital policy, falsely alleging that complaints have been made against Ms. Ynoa, unfairly targeting Ms. Ynoa for call backs as contrasted to the treatment accorded other workers for the practice, assigning coworkers overtime merely to monitor Ms. Ynoa, permitting coworkers to harass Ms. Ynoa, holding Ms. Ynoa to an unfair attendance policy to the point that she is afraid to take time off from work when she is sick, allowing garbage, debris, and waste receptacles to be left in front of Ms. Ynoa's locker, and purposefully assigning Ms. Ynoa a locker next to a coworker who has conflicts with her.
(Id.). The letter did not allege that the harassment was the result of national origin or disability discrimination. Thereafter, on March 27, 2002, Ynoa met with Gomez and Preston's supervisor, Cynthia Godfrey, to discuss the concerns raised in the letter. (Ynoa Dep. at 199; Ynoa Ex. 7). According to Ynoa, nothing happened as a result of this meeting.
Ynoa's counter-56.1 statement attaches a memo Godfrey wrote to the file concerning the March 27, 2002 meeting with Ynoa. (See Pl.'s Counter-56.1 Statement Ex. 7). Ynoa's counter-56.1 statement goes on to dispute several of the assertions made by Godfrey in her memo to file. (See id. ¶ 7). As defendant does not rely on the Godfrey memo in its motion papers, and because Ynoa's version of the meeting is not submitted in the form of admissible evidence such as an affidavit, the Court does not consider the contents of the Godfrey memo or Ynoa's assertions to the contrary in her counter-56.1 statement herein. See Beyah v. Coughlin, 789 F.2d 986, 989-90 (2d Cir. 1986).
2. Ynoa's First Medical Leave of Absence
During the relevant time period, Ynoa suffered from neck and facial pain, headaches, and neuropathy. (Post Aff. Exs. C, D; Am. Compl. ¶ 31). On April 10, 2002, Ynoa commenced a twenty-five week leave of absence pursuant to the Hospital's medical leave of absence policy. (Def.'s 56.1 Statement ¶ 8). Ynoa was aware that the Hospital's medical leave policy allowed up to twenty-six weeks of unpaid leave in a twelve-month period. (Id. ¶ 9).
On September 18, 2002, Ynoa's physician advised the Hospital that Ynoa could "return to her work and daily routine." (Post Aff. Ex. B). Thereafter, on September 27, 2002, Ynoa met with Gomez and Preston and was informed that when she returned to work at the Hospital she would be required to go through orientation, including computer training. (Ynoa Dep. at 88, 236). According to Ynoa, Gomez and Preston informed her that every employee who takes a significant leave of absence is required to go through orientation upon his or her return. (Id.). On September 27, 2002, Ynoa expected to return to work and be assigned her previous schedule. (Id. at 183). That day, Ynoa submitted a letter from her physical therapist requesting that Ynoa be accommodated by adjusting her schedule to allow her to (1) work part-time in the evening to allow Ynoa to attend physical therapy sessions two to three days per week, and (2) exercise daily. (Post Aff. Ex. C). The therapist assigned to treat Ynoa only worked in the mornings, and Ynoa did not inquire about other therapists' availability in the afternoons or evenings. (Ynoa Dep. at 93). At some point between September 27 and October 2, 2002, Ynoa was informed by Gomez that she was required to submit a certification from a doctor, not a physical therapist, attesting to the requested accommodations. (Id. at 86, 209).
In Ynoa's counter-56.1 statement, she disputes that she was told on September 27, 2002, that she had to attend orientation. (Pl.'s Counter-56.1 ¶ 12). Without providing supporting evidence, the counter-56.1 statement states that at the September 27, 2002 meeting she "was led to believe that she was going to be shown the new location that the department had moved." (Id.). During her deposition, however, Ynoa stated that Gomez and Preston "said I had to go back, come back to go through an orientation like a new employee because this is what [Gomez and Preston do] to all the employees that come back from family medical leave." (Ynoa Dep. at 88). As stated previously, Ynoa's unsworn assertions in her counter-56.1 statement with no citations to the record cannot be used to create an issue of fact, especially given Ynoa's sworn deposition testimony, to the contrary.
Ynoa returned to work on October 2, 2002, and although the Hospital had not received a doctor's certification, it still accommodated her by scheduling her three-week orientation period on a part-time basis. (Id. at 87). In addition, although there were no available part-time evening positions, the Hospital assigned Ynoa to a part-time evening position for the first two weeks following her orientation. (Id. at 87). Six weeks after Ynoa returned to work, she began working her regular full-time evening shift. (Id. at 88, 259).
On November 6, 2002, Ynoa submitted a letter from her doctor indicating that Ynoa was being treated for back pain. (Post Aff. Ex. D). The letter stated that Ynoa's "ongoing evaluations and therapy may interfere with her activities of daily living including her daily work schedule." (Id.). The letter did not request any particular accommodations for Ynoa. (Id.). After Ynoa started working her full-time evening schedule, the Hospital did not make any specific accommodations, nor did Ynoa request any.
3. Ynoa's Second Medical Leave of Absence
On January 12 or 13, 2003, Ynoa commenced a three-week vacation, and took several additional sick days after her return. (Def.'s 56.1 Statement ¶ 25; Ynoa Dep. at 258-59). On February 12, 2003, Ynoa requested another medical leave of absence. (Ynoa Dep. at 262-63). On February 13, 2003, the request was granted, but the Hospital informed Ynoa that she was required to return to work by February 24, 2003, because she had exhausted her remaining leave under the Hospital's medical leave of absence policy. (Post Aff. Ex. E). Ynoa failed to return to work on February 24, 2003. (Def.'s 56.1 Statement ¶ 28). On February 24, 2003, Gomez wrote a letter to Ynoa firing her from the Hospital. (Id. Ex. F). The relevant portion of the letter states:
[Y]ou knew you had to return to work by Monday, February 24, 2003. . . . This morning I found a leave request form under my door in which you seek to take a one-year worker's compensation leave of absence. . . . I am not aware of any worker's compensation incident report having been submitted and which must be timely filed for any employee's claim of a job-related injury or illness. . . . Since you did not return to work on Monday you have been terminated effective February 24, 2003. Should you submit paperwork . . . [that] supports your worker's compensation claim, your employment status will be reviewed again. . . . [Y]ou are eligible for reinstatement to an available position for which you are qualified for up to one (1) year from the date of your termination.
(Id.). 4. Ynoa's EEOC Complaints
At some point in November 2002, Ynoa filed a complaint with the EEOC charging the Hospital with discrimination. (Id. at 204). Prior to filing a complaint with the EEOC, Ynoa had not complained to anyone at the Hospital about being discriminated against because of her national origin. (Ynoa Dep. at 222-23, 281). In November 2003, a second complaint was filed with the EEOC charging the Hospital with retaliation. (Pl.'s Counter-56.1 Statement ¶ 23). Ynoa received a right to sue letter from the EEOC for both of her complaints. B. Procedural History
Ynoa attempts to dispute this. Paragraph ten of Ynoa's response to defendant's 56.1 statement asserting Ynoa had not complained of discrimination states "no one was subjected to this abuse like plaintiff." Ynoa also submits the second page of a letter written by her attorney to the Hospital on March 1, 2002, in support of her position that she had previously complained to the Hospital about being discriminated against. The submitted portion of the letter claims that Ynoa has incurred damages as a result of "harassment and [a] hostile work environment." (Pl.'s Counter-56.1 Ex. 38). The letter does not accuse the Hospital or any of its employees of discriminating against Ynoa based on her national origin. The Court considers Ynoa's sworn deposition testimony that she never complained to anyone at the Hospital about being discriminated against until she filed a complaint with the EEOC undisputed because the counter-evidence does not raise any admissible issue of fact.
Ynoa also submits a typed note that states: "The reason I went to a lawyer is because I couldn't take the abuse and suffering any more. . . . I was tired of complaining to the staff members on the IV team and Phlebotomy team about the situation. . . . I was afraid of being fired once [Gomez and Preston] found out about it." (Pl.'s Counter-56.1 Statement Ex. 21). This statement is not in affidavit form. It is also not clear what "abuse or suffering" Ynoa was complaining about, or in what context or when these notes were written. Indeed, the note is not dated. Hence, it is inadmissible and cannot create an issue of fact given Ynoa's deposition testimony that she never complained prior to filing an EEOC complaint. (See Ynoa Dep. at 222-23). See Beyah, 789 F.2d at 989.
Ynoa filed a complaint in this action on May 23, 2003, within 90 days of receiving a right to sue letter from the EEOC based on Ynoa's first EEOC complaint. On February 23, 2004, Ynoa filed an amended complaint, within 90 days of receiving a right to sue letter from the EEOC based on Ynoa's second EEOC complaint. The amended complaint asserts seven claims against New York Presbyterian. Specifically, plaintiff alleges violations of (1) Title VII based on national origin discrimination and retaliation, (2) the American with Disabilities Act (the "ADA") based on a failure to accommodate and for firing her because of her disability, (3) the FMLA for retaliation against her for taking leave pursuant to the FMLA, (4) New York State human rights laws prohibiting discrimination based on national origin and disability, and unlawful retaliation, and (6) the common law tort of IIED. (Am. Compl. ¶¶ 71-109).
In her amended complaint, Ynoa claims the Hospital discriminated against her because of her national origin, disability, and because she requested and took FMLA leave. During her deposition, and in other papers submitted to the Court, Ynoa submitted the following evidence: (1) the Hospital required her to attend orientation after she returned from her medical leave (Ynoa Dep. at 236), (2) "people around the hospital [were] monitoring" her and "watching her" (id. at 237-41), and (3) she was "constantly being set up on the floors" by hospital employees, including Gomez and Preston. (Id. at 244-46). Ynoa also claims that the Hospital discriminated against her by firing her because she had taken FLMA leave and filed a complaint against the Hospital with the EEOC. (Id. at 281).
The parties engaged in discovery and on February 4, 2005, New York Presbyterian filed the instant motion for summary judgment. On or about April 3, 2005, Ynoa filed opposition papers. New York Presbyterian did not file any reply papers, and did not comply with a request from the Court to provide a complete copy of Ynoa's deposition transcript. Nevertheless, for the reasons that follow, defendant's motion is granted.
DISCUSSION
Plaintiff's opposition papers do not contest defendant's motion for summary judgment as to the FMLA, ADA, Title VII, state human rights law, or IIED claims, except those that allege retaliation. Plaintiff only argues that her "weak" discrimination case is now a "strong discrimination case because of retaliation." (Pl.'s Response at 11, 17).
Plaintiff's failure to oppose the bulk of the Hospital's motion is understandable, as the record is devoid of admissible evidence from which a reasonable jury could find for plaintiff on any of her discrimination claims. Therefore, summary judgment is granted, for no reasonable juror could conclude that the Hospital discriminated against Ynoa because of her national origin or any disability, or denied her rights under the FMLA. In addition, the undisputed facts do not support a claim for IIED. Even assuming plaintiff has not abandoned or conceded the discrimination or IIED claims, they are dismissed as a matter of law. Finally, no reasonable juror could conclude that plaintiff was fired in retaliation for taking FLMA leave or for filing a complaint with the EEOC. I briefly address each of plaintiff's claims in turn.
A. National Origin Discrimination
Ynoa's national origin discrimination claims are dismissed, for, on the record before the Court, no reasonable jury could find that her national origin was a motivating factor in any of defendant's employment decisions.
Plaintiff does not allege that the Hospital took any specific actions against her because of her national origin. In addition, there is nothing in the record to support the allegations in the amended complaint that Ynoa was discriminated against in any way because of her national origin. Indeed, even assuming Ynoa was subjected to harassment by her co-workers and supervisors, there is no evidence, even from Ynoa herself, that supports the allegations in the amended complaint that the treatment Ynoa was subjected to was because of her national origin. Accordingly, the Title VII and applicable state law claims alleging discrimination based on Ynoa's national origin are dismissed. (See Pl.'s Response at 11, 17). See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146 (2000);James v. N.Y. Racing Ass'n, 233 F.3d 149, 153, 157 (2d Cir. 2000); Fields v. N.Y. State Office of Mental Retardation Developmental Disabilities, 115 F.3d 116, 119 (2d Cir. 1997).
The same standards apply to a discrimination claim under Title VII or the New York State Human Rights Law. See Song v. Ives Labs., Inc., 957 F.2d 1041, 1046 (2d Cir. 1992) (relating Title VII and New York State Human Rights Law claims).
B. FLMA Violations
Ynoa has not presented sufficient evidence from which a reasonable jury could find that her rights under the FMLA were violated. Indeed, defendant demonstrates that Ynoa received her entire FMLA entitlement (twelve weeks), and that, indeed, she received benefits beyond those required by the FMLA. There is no dispute that New York Presbyterian's medical leave policy entitled Ynoa up to twenty-six weeks of leave in a given year. There is also no dispute that Ynoa was granted medical leave for two periods, from April through September 2002, and in early January into February 2003. This included twelve weeks of FMLA leave, and the balance was pursuant to the Hospital's medical leave policy. Further, while Ynoa argues that she should not have been required to go through orientation when she returned from her first leave, the Hospital did return her to her former position and accommodated her request to temporarily work only part-time in the evenings. (Ynoa Dep. at 88, 236).
Ynoa does not dispute any of these facts, but nonetheless asserts violations of the FMLA. Ynoa has presented no evidence from which a reasonable jury could find a causal connection between her exercise of her rights under the FMLA and the termination of her employment in February 2003. Moreover, Ynoa was offered the opportunity to re-apply, even after she was discharged. As to her claim that she should not have been required to attend orientation after she returned from a twenty-five week leave, this claim is rejected as plaintiff has not presented evidence from which a reasonable jury could find a violation of the FMLA. A reasonable jury could only conclude that the requirement of re-training after a twenty-five week absence was reasonable, and there is nothing in the record to suggest in any event that Ynoa was singled out for this requirement.
Accordingly, the FMLA claims are dismissed.
C. ADA Claims
Ynoa claims in her amended complaint that the Hospital did not accommodate her for her disability — namely facial and neck pains and neuropathy. The ADA prohibits employment discrimination based on an employee's disability, including "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability." Lyons v. Legal Aid Society, 68 F.3d 1512, 1514 (2d Cir. 1995) (quoting 42 U.S.C. § 12112(b)(5)(A)); see also Buckley v. Consolidated Edison, Co., 155 F.3d 150, 153-54 (2d Cir. 1998). The Code of Federal Regulations provides:
For the most part, the ADA and corresponding New York State Human Rights Laws are construed similarly. See Pace v. Paris Maint. Co., 107 F. Supp. 2d 251, 266 (S.D.N.Y. 2000), aff'd, 17 Fed. Appx. 94 (2d Cir. 2001). The areas of disagreement concern the definition of disability; the definition under state and city law is broader than the federal definition. See Burton v. Metropolitan Transit Auth., 244 F. Supp. 2d 252, 257 (S.D.N.Y. 2003) (discussing differences and citing cases). Here, I assume Ynoa was disabled and thus the differences between the ADA and New York law do not affect the outcome or analysis of this decision.
In general . . . it is the responsibility of the employee to inform the employer that an accommodation is needed. When the need for an accommodation is not obvious, an employer, before providing a reasonable accommodation, may require that the individual with a disability provide documentation of the need for accommodation.29 C.F.R. Pt. 1630 app., § 2630.9.
Here, even assuming Ynoa can prove a covered disability, she fails to present any evidence to show that the Hospital failed to accommodate her for her disability. On September 18, 2002, Ynoa's physician wrote that Ynoa "can return to her work and daily routine." (Post Aff. Ex. B). Then, on September 27, Ynoa's physical therapist wrote that Ynoa "was only capable of working part-time in the evenings so that she can continue with her therapy . . . and her exercise program daily." (Id. Ex. C). Finally, on November 6, 2002, Ynoa's doctor wrote another letter that did not identify any limitation on Ynoa's ability to work, nor request any specific accommodation. Thus, the only evidence of a request for accommodation is from a non-physician, and it contradicted the information provided by Ynoa's doctor. The law requires the employee and the employer to cooperate in good faith when determining what accommodation — if any — is required. See Beck v. University of Wis. Board of Regents, 75 F.3d 1130, 1134-35 (7th Cir. 1996); 29 C.F.R. Pt. 1630 app., § 2630.9. The Court "should look for signs of failure . . . by one of the parties to make reasonable efforts to help the other party determine what specific accommodations are necessary." Beck, 75 F.3d at 1135 ("A party that obstructs or delays the interactive process is not acting in good faith. A party that fails to communicate, by way of initiation or response, may also be acting in bad faith.").
Based on the facts of this case, I conclude as a matter of law that the Hospital did not violate the ADA by requesting documentation from Ynoa's doctor, given the conflicting information from Ynoa's doctor and physical therapist as to Ynoa's required accommodation. Moreover, the Hospital temporarily accommodated Ynoa by assigning her to a part-time evening schedule while she sought documentation from her doctor. The documentation from her doctor does not state that Ynoa required the accommodation she requested. Thus, the Hospital was not under an obligation to allow Ynoa to work a part-time evening schedule.
In addition, Ynoa's stated reason for requesting to work part-time in the evening — she wanted to attend therapy sessions in the morning and exercise — could still be accomplished without the accommodation. Ynoa testified in her deposition that she sought to return to her "regular shift" from 2:00 p.m. to 10:00 p.m. on a full-time basis. (Ynoa Dep. at 183). Thus, notwithstanding the letter from her physical therapist, even Ynoa was under the impression she could still attend her therapy sessions and exercise and work full-time at the Hospital. Her position was in the evenings, and there is no evidence in the record to suggest that Ynoa could not attend therapy sessions in the morning or exercise daily because she worked a full-time, rather than part-time, schedule. See Reeves v. Johnson Controls World Servs., Inc., 140 F.3d 144, 149-50 (2d Cir. 1998) (citing Ryan v. Grae Rybicki, P.C., 135 F.3d 867, 869-70 (2d Cir. 1998)).
For these reasons, Ynoa's ADA and state law claims alleging discrimination based on Ynoa's alleged disability are dismissed.
D. IIED Claims
To prevail on a claim for IIED under New York law, plaintiff must plead and prove the following four elements: (1) extreme and outrageous conduct; (2) intent to cause severe emotional distress; (3) a causal relationship between the conduct and the resulting injury; and (4) severe emotional distress. See Bender v. City of New York, 78 F.3d 787, 790 (2d Cir. 1996);Howell v. N.Y. Post Co., 596 N.Y.S.2d 350, 353 (1993).
In analyzing an IIED claim, courts usually focus on the first element — whether the conduct was extreme or outrageous. Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1999). Without "sufficiently outrageous" conduct, no claim for IIED can be established. Howell, 596 N.Y.S.2d at 353 ("[T]he `requirements of the rule are rigorous, and difficult to satisfy.'") (quoting Prosser Keeton on Torts § 12, at 60-61 (W. Page Keeton ed., 5th ed. 1984))).
Here, plaintiff's purported evidence of IIED is that she was often left without adequate coverage on her shifts, she received unfair evaluations from her supervisors, co-workers were "watching" her and following her around, and she was unfairly treated when she was out sick. I conclude as a matter of law that this conduct — even assuming it occurred — falls far short of conduct "so outrageous in character, and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."Murphy v. Am. Home Prods. Corp., 461 N.Y.S.2d 232, 236 (1983) (quoting 2d Restatement of Torts, § 46 cmt. d (1965)).
Ynoa's complaints amount to typical, or as defendant argues, garden variety workplace complaints. Even assuming the Hospital was under-staffed at times when Ynoa was working, or that her coworkers were harassing her or watching her, this conduct does not rise to the high standards required under New York law for a successful IIED claim. See Spence v. Md. Cas. Co., 995 F.2d 1147, 1158 (2d Cir. 1993) (affirming dismissal of claim alleging two year pattern of harassment as falling "far short of the `extreme' and `outrageous' conduct that is actionable as an IIED"). Similarly, even assuming Gomez gave Ynoa what amounted to unfair evaluations, and called Ynoa when she was out sick, this conduct is not the extreme or outrageous conduct required for an IIED claim. Id.
Hence, the claims alleging IIED against Ynoa by the Hospital are dismissed.
E. Retaliation a. Applicable Law
In the absence of direct evidence of retaliation, a plaintiff alleging retaliatory discharge in an employment case usually relies on the three-step McDonnell Douglas test. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (Title VII);Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n. 1 (2d Cir. 2000) (citing cases). First, a plaintiff must establish a prima facie case of unlawful retaliatory discharge by showing that (1) she was engaged in protected activity; (2) the defendant was aware of that activity; (3) she was discharged; and (4) there was a causal connection between the protected activity and the termination or suspension. Distasio v. Perkin Elmer Corp., 157 F.3d 55, 66 (2d Cir. 1998). Although the burden that a plaintiff must meet at the prima facie stage is de minimis, the plaintiff must at least proffer competent evidence of circumstances that would be sufficient to permit a rational finder of fact to infer a retaliatory motive. See Cronin v. Aetna Life Ins., 46 F.3d 196, 204 (2d Cir. 1995).
Second, if the plaintiff establishes a prima facie case, a rebuttable presumption of retaliation arises, and the burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the employment decision. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000);Gallagher v. Delaney, 139 F.3d 338, 349 (2d Cir. 1998).
Third, if the employer articulates a nondiscriminatory reason for its actions, the presumption of retaliation is rebutted and it "simply drops out of the picture." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (citation omitted); see James v. N.Y. Racing Ass'n, 233 F.3d 149, 154 (2d Cir. 2000). The burden then shifts back to the plaintiff to show, without the benefit of any presumptions, "sufficient potential proof for a reasonable jury to find the proffered legitimate reason merely a pretext for impermissible retaliation." Gallagher, 139 F.3d at 349;Fields, 115 F.3d at 120-21; Connell v. Consol. Edison Co., 109 F. Supp. 2d 202, 207 (S.D.N.Y. 2000).
To meet this burden, the plaintiff may rely on evidence presented to establish her prima facie case as well as additional evidence. It is not sufficient, however, for a plaintiff merely to show that she satisfies "McDonnell Douglas's minimal requirements of a prima facie case" and to put forward "evidence from which a factfinder could find that the employer's explanation . . . was false." James, 233 F.3d at 153. Instead, the key is whether there is sufficient evidence in the record from which a reasonable trier of fact could find in favor of plaintiff on the ultimate issue, that is, whether the record contains sufficient evidence to support an inference of retaliation. See id. at 157; Connell, 109 F. Supp. 2d at 207-08.
As the Second Circuit observed in James, "the way to tell whether a plaintiff's case is sufficient to sustain a verdict is to analyze the particular evidence to determine whether it reasonably supports an inference of the facts plaintiff must prove — particularly discrimination." 233 F.3d at 157; see Lapsley v. Columbia Univ., 999 F. Supp. 506, 513-16 (S.D.N.Y. 1998) (advocating elimination of McDonnell Douglas test in favor of simplified approach focusing on ultimate issue of whether sufficient evidence exists to permit jury to find discrimination); see also Norton v. Sam's Club, 145 F.3d 114, 118 (2d Cir. 1998) ("The thick accretion of cases interpreting this burden-shifting framework should not obscure the simple principle that lies at the core of anti-discrimination cases. In these, as in most other cases, the plaintiff has the ultimate burden of persuasion.").
b. Application
At the outset, I assume that plaintiff has made out the prima facie case required by McDonnell Douglas. The Hospital has articulated a legitimate, nondiscriminatory reason for plaintiff's dismissal, contending that Ynoa was fired because she had been absent from work more than the allowable time under the Hospital's medical leave of absence policy. Hence, I proceed directly to the ultimate question of whether plaintiff has presented sufficient evidence from which a reasonable jury could find retaliation.
Ynoa's only evidence of unlawful retaliation is that the timing of her dismissal, less than three months after she filed a claim with the EEOC, gives rise to an inference of discrimination. Beyond that, Ynoa submits no evidence that the Hospital's stated reason was pretextual.
As to Ynoa's contention that she was fired because she had taken FLMA leave, this is meritless. The record shows that Ynoa's FMLA leave expired at some point in July 2002 (twelve weeks after Ynoa commenced her first leave of absence on April 10, 2002). After the expiration of her FMLA leave, the Hospital, under its own more generous medical leave policy, allowed Ynoa to remain on medical leave until late September 2002. After that, the Hospital again approved a medical leave of absence in the beginning of 2003. Based on this undisputed evidence, no reasonable jury could conclude that Ynoa was fired in retaliation for exercising her rights under the FMLA. See James, 233 F.3d at 157; Hollander v. American Cyanamid Co., 895 F.2d 80, 86 (2d Cir. 1990) (holding that a "causal nexus" must be evident for a retaliation claim to survive summary judgment). The record contains no evidence of a connection between Ynoa's taking of her FMLA leave (from April through July 2002) and the termination of her employment many months later (February 2003).
Ynoa's claim that the Hospital fired her because she filed a complaint with the EEOC in December 2002 alleging discrimination based on her national origin is also unavailing. The Second Circuit has not set a bright rule as to when the "temporal link" between the protected activity and the alleged retaliatory act becomes too attenuated to show causation. See Hill v. Citibank Corp., 312 F. Supp. 2d 464, 478-79 (S.D.N.Y. 2004) (no causation when two months have passed); Hawana v. City of New York, 230 F. Supp. 2d 518, 530 (S.D.N.Y. 2002) (collecting cases describing proximity in time between the protected activity and the negative employment action). Rather, a "case by case" approach that evaluates "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" is preferred.James, 233 F.3d at 156 (alteration in original).
Here, the record is clear that after Ynoa filed a complaint with the EEOC, the Hospital approved additional leave for Ynoa, and informed Ynoa that she was required to return to work by February 24, 2003. (Post Aff. Ex. E). Ynoa did not return to work on that date. Rather, she placed a note under Gomez's door requesting an additional year's leave of absence. (Id. Ex. F). On February 25, 2003, the Hospital fired Ynoa, but informed her that (1) if she submitted worker's compensation paperwork her employment status would be reviewed, and (2) she was eligible for reinstatement to another position within one year from the date of her termination. (Id.). Thus, the evidence shows that the Hospital fired her because of her absences, not because she filed a complaint with the EEOC. Indeed, the undisputed evidence is that after missing weeks of work from April 2002 through February 2003, plaintiff was unable to return to work and she requested an additional year's leave. The only admissible evidence supporting Ynoa's retaliation claims — that she was fired less than three months after filing an EEOC complaint — is not sufficient to generate a genuine issue of fact for trial. Indeed, a reasonable jury could only conclude that plaintiff was not ready, willing, or able to perform her job.See James, 233 F.3d at 157. Given this record and the undisputed evidence, no reasonable jury could find that Ynoa was fired because she filed a complaint with the EEOC.
Therefore, Ynoa's claims of unlawful retaliation are dismissed.
CONCLUSION
For the foregoing reasons, defendant's motion for summary judgment dismissing all of the claims alleged in the amended complaint is granted. The Clerk of the Court shall enter judgment in favor of defendant dismissing the amended complaint, with prejudice.
SO ORDERED.