Skibitcky v. Healthbridge Management, LLC

Filing 49

ORDER denying 44 Motion to Amend/Correct and granting 34 Motion for Summary Judgment for the reasons set forth in the attached decision. The Clerk is directed to close this case. Signed by Judge Vanessa L. Bryant on 09/18/2017. (Lee, E.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

ANGELA SKIBITCKY,
Plaintiff,
v.
HEALTHBRIDGE MANAGEMENT, LLC,
Defendant.

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CIVIL CASE NUMBER:
3:16-cv-00052-VLB
September 18, 2017

MEMORANDUM OF DECISION GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT [DKT. 35]
This is an employment discrimination case filed by Plaintiff Angela Skibitcky
against Defendant Healthbridge Management, LLC (“Healthbridge”).

The

Complaint raises both interference and retaliation claims in violation of the Family
and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601 et seq. Healthbridge has moved
for summary judgment on both counts, and in consideration of the arguments
Skibitcky challenges only the FMLA retaliation claim. For the foregoing reasons,
the Court GRANTS summary judgment in favor of Healthbridge.
Background
The following undisputed facts, unless otherwise noted, are drawn from the
parties’ D. Conn. L. R. 56(a) statements.

Healthbridge provides management

services, including human resources expertise, to health care centers in
Connecticut, Pennsylvania, Maryland, and New Jersey. [Dkt. 36 (D. Conn. L. R.
56(a)(1) Stmt.) ¶ 93; Dkt. 43-3 (D. Conn. L. R. 56(a)(2) Stmt.) ¶ 93]. 245 Orange
Avenue Operating Company II, LLC d/b/a West River Health Care (“West River” or
the “Center”) is a provider of sub-acute and long-term care services and
rehabilitative programs in Milford, Connecticut. See [Dkt. 36 ¶ 1; Dkt. 43-3 ¶ 1; Dkt.
1

34 (Mot. Summ. J.) at 1]. On January 5, 2009, West River’s Recreation Program
Director, Nathalie Mihalchick, hired Skibitcky as a part-time Recreational Therapist.
[Dkt. 36 ¶ 6; Dkt. 43-3 ¶ 6; Dkt. 37-6 (Mot. Summ. J. Ex. 6, Mihalchick Aff.) ¶ 3].
Skibitcky reported directly to Mihalchick, who reported to the Administrator of the
Center, Joanne Wallak. [Dkt. 36 ¶ 9; Dkt. 43-3 ¶ 9; Dkt. 36-1 (Mot. Summ. J. Ex. 1,
Wallak Aff.) ¶ 2]. Wallak held the highest position at West River. [Dkt. 36 ¶ 9; Dkt.
43-3 ¶ 9]. West River kept Skibitcky’s employment records and her W-2s from 2009
through 2014 and indicate “245 Orange Avenue Operating Company” is her
employer, which she understood to be West River. [Dkt. 36 ¶¶ 98, 100; Dkt. 43-3 ¶¶
98, 100].
West River has a Code of Conduct, which requires its employees to maintain
accurate records. [Dkt. 36 ¶ 3; Dkt. 43-3 ¶ 3]. The Code of Conduct specifically
requires staff “to help maintain the Center’s integrity by ensuring that all records
and documents, particularly those at issue in governmental investigations and
inquiries are thorough, complete and accurate and that they are never altered,
edited or amended except as may be permitted in strict accordance with applicable
Center policies.” [Dkt. 36 ¶ 3; Dkt. 43-3 ¶ 3]. The Code of Conduct also states that
“[d]isregard for this principle will be grounds for serious disciplinary action up to
and including termination.” [Dkt. 36 ¶ 3; Dkt. 43-3 ¶ 3]. Reliability of the claims is
essential because the Center’s ability to get paid depends on the “thoroughness,
accuracy and integrity of the medical, financial or other documentation.” [Dkt. 36
¶ 4; Dkt. 43-3 ¶ 4]. The Center requires staff to “know or reasonably believe” the
information in claims and reports are “thorough, accurate, and correct.” [Dkt. 36 ¶

2

4; Dkt. 43-3 ¶ 4]. West River also maintains an Equal Opportunity policy, enabling
employees to contact a telephone number when they believe they are unfairly
treated. [Dkt. 36 ¶ 5; Dkt. 43-3 ¶ 5].
Skibitcky’s duties as a Recreational Therapist included organizing and
leading recreational activities for residents and patients. [Dkt. 36 ¶ 13; Dkt. 43-3 ¶
13]. Her responsibilities included the following found in her Job Description: (1)
“Perform administrative requirements, such as completing necessary forms,
reports, etc., and submitting such to the Activity Director as required”; (2) “Ensure
that all charted activity progress notes are informative and descriptive of the
services provided and of the resident’s response to the service.” [Dkt. 36 ¶ 15; Dkt.
43-3 ¶ 15]. Skibitcky understood the importance of accuracy in her documentation
for both West River and regulatory purposes. [Dkt. 36 ¶ 16; Dkt. 43-3 ¶ 16].
Around March or April of 2013, Skibitcky was tasked with “implementing and
spearheading the men’s group, building its attendance and providing a focus
oriented program.” [Dkt. 36 ¶ 17; Dkt. 43-3 ¶ 17]. She failed to timely complete
invitations and communicate the agenda, and as a result she received a
Documented Verbal Notice on June 3, 2013. [Dkt. 36 ¶¶ 18-19; Dkt. 43-3 ¶¶ 18-19].
The Notice stated in bold italics, “Further problems of any kind may lead to further
disciplinary action up to and including termination of employment.” [Dkt. 37-8
(Mot. Summ. J. Ex. 8, 6/3/13 Notice)]. In August 2013, Skibitcky expressed her lack
of confidence in leading the men’s group to Wallak and Director of Nursing Staff,
Dwayne Silva, and thereafter she received an “Education” on how to successfully
lead the men’s group. [Dkt. 36 ¶¶ 20-21; Dkt. 43-3 ¶¶ 20-21].

3

Mihalchick disciplined Skibitcky for insubordination that same month. [Dkt.
36 ¶ 22; Dkt. 43-3 ¶ 22]. The reason for this second disciplinary action was because
Mihalchick scheduled Skibitcky to work on a Sunday due to an employment
shortage, and in response to Mihalchick telling Skibitcky, “[W]e all have to help out
and I am helping out too,” Skibitcky said, “You worked one Sunday.” [Dkt. 36 ¶¶
22-24; Dkt. 43-3 ¶¶ 22-24; Dkt. 37-2 (Mot. Summ. J. Ex. 2, Pl. Dep.) at 139:14-140:8].
Skibitcky testified that, after one of the meetings she had with Mihalchick and
Grabell, Grabell told her, “I would go on FLMA, if I were you, before you lose your
job.” [Dkt. 37-2 at 123:3-24].
Also in August 2013, Skibitcky had two physicians complete FMLA
certifications for her in August 2013. Dr. Eric Liben, Skibitcky’s primary care
physician, indicated Skibitcky had “relatively well controlled” high blood pressure
but that it could flare up if she became stressed at work and in these circumstances
she should be able to leave work. [Dkt. 36 ¶¶ 34-37; Dkt. 43-3 ¶¶ 34-37]. Dr. Enrique
Tello, Skibitcky’s psychiatrist, opined she experienced “anxiety, episodic
increases, which limit [her] ability to work,” and that she may experience flare ups
twice a month requiring her to be out of work for one day. [Dkt. 36 ¶¶ 38-40; Dkt.
43-3 ¶¶ 38-40].

Skibitcky thereafter submitted the certifications to Human

Resources Employee, Debbie Grabell. [Dkt. 36 ¶ 40; Dkt. 43-3 ¶ 40].
On October 15, 2013, Skibitcky spoke with Grabell about taking intermittent
FMLA leave for a four to six week psychiatric therapy program. [Dkt. 36 ¶ 43; Dkt.
43-3 ¶ 43]. Grabell documented this meeting in an email sent to Healthbridge’s
Regional Human Resources Director, Edmund Remillard, wherein she stated

4

Skibitcky complained Mihalchick was the “trigger” for her high blood pressure.
[Dkt. 36 ¶ 44; Dkt. 43-3 ¶ 44]. West River approved this request. [Dkt. 36 ¶ 45; Dkt.
43-3 ¶ 45]. Skibitcky began the program on October 21, 2013, and finished the
program on December 5, 2013. [Dkt. 36 ¶¶ 45-46; Dkt. 43-3 ¶¶ 45-46]. West River
accommodated Skibitcky by changing her schedule so that it did not conflict with
the program’s schedule. See [Dkt. 36 ¶ 47; Dkt. 43-3 ¶ 47]. Skibitcky returned to
her prior schedule upon completing the program. [Dkt. 36 ¶ 48; Dkt. 43-3 ¶ 48].
On December 31, 2013, Skibitcky had an argument in the recreation room
with another employee, P.J., over a topic Skibitcky does not remember. [Dkt. 36 ¶¶
50-51; Dkt. 43-3 ¶¶ 50-51]. Skibitcky admits to raising her voice. [Dkt. 36 ¶ 51; Dkt.
43-3 ¶ 51]. Both Skibitcky and P.J. were suspended pending the investigation.
[Dkt. 36 ¶ 53; Dkt. 43-3 ¶ 53]. Wallak asked Skibitcky to write a statement about this
event, but she did not do so. [Dkt. 36 ¶¶ 54-55; Dkt. 43-3 ¶¶ 54-55].
On January 10, 2014, Skibitcky went to a meeting with Wallak, Mihalchick,
and a coworker who was there to support her. [Dkt. 36 ¶ 56; Dkt. 43-3 ¶ 56]. During
the meeting Skibitcky complained that P.J. had called her a liar and that “Bob” and
“Natalie” had heard this. [Dkt. 36 ¶ 57; Dkt. 43-3 ¶ 57]. Wallak informed her these
individuals reported that they did not hear P.J. call her a liar or point at her, and
she responded then they did not hear it. [Dkt. 36 ¶ 57; Dkt. 43-3 ¶ 57]. They
reviewed her unpaid suspension and Wallak informed her “that another incident
with anything or anyone else could lead to termination.” [Dkt. 36 ¶ 57; Dkt. 43-3 ¶
57]. Wallak reviewed with Skibitcky a Notice of Disciplinary Action about this event,
which included the following language: “Further problems of any kind may lead to

5

further disciplinary action up to and including termination of employment.” [Dkt.
37-15 (Mot. Summ. J. Ex. 15, 1/10/14 Notice)]. Both Wallak and Skibitcky signed the
Notice. Id. The Notice indicates that the disciplinary action was to constitute a
Final Warning. Id.
On or about March 18, 2014, Mihalchick visited a resident who asked for her
to provide a person to read to him. [Dkt. 36 ¶¶ 62-63; Dkt. 43-3 ¶¶ 62-63]. Skibitcky's
duties including reading to this resident and she completed an Activities
Attendance One to One Program report representing that she read to him the day
before, but the resident insisted, “I am absolutely positive I was not read to
yesterday.” [Dkt. 36 ¶ 65; Dkt. 43-3 ¶ 65]. He declared Skibitcky “reads to me ‘when
she feels like it.’” [Dkt. 36 ¶ 65; Dkt. 43-3 ¶ 65].
Mihalchick then reviewed other Activities Attendance reports for that month
and discovered Skibitcky filed a report claiming she met with five patients who had
in fact already been discharged. [Dkt. 36 ¶ 68; Dkt. 43-3 ¶ 68]. Mihalchick reported
this information to Wallak, and they met with Skibitcky the same day. [Dkt. 36 ¶¶
71-72; Dkt. 43-3 ¶¶ 71-72]. During the meeting, they discussed this issue as well as
the resident’s complaint about her not reading to him. [Dkt. 36 ¶ 73; Dkt. 43-3 ¶ 73].
With respect to the discharged patients, Wallak noted that “Angela became very
nervous.” [Dkt. 36 ¶ 73; Dkt. 43-3 ¶ 73]. Skibitcky later testified that the information
in Wallak’s notes was correct except that Wallak only discussed three discharged
patients. [Dkt. 36 ¶ 74; Dkt. 43-3 ¶ 74]. Skibitkcy was immediately suspended
pending investigation. [Dkt. 36 ¶ 75; Dkt. 43-3 ¶ 75].

6

Upon Wallak’s request, Skibitcky faxed a response about the incident on
March 24, 2014. [Dkt. 37-22 (Mot. Summ. J. Ex. 22, Skibitcky Fax)]. She stated,
On tues, March 18, 2014, I was accused of “falsifying reports”. [sic]
Knowing my character, you would know that I would never purposely
falsify any document. I do not personally know every patient and
having to look on the door to see their name. While doing my visits
first opportunity in the morning, I made contact with each patient in a
room that I noted. I was told that one woman was with her aide and
found out when I returned days later that she had been in the hospital.
I also overheard another woman I had visited with tell a fellow patient
that she was being discharged.
Ironically the patients I had
supposedly not visited were all in one hallway. I wondered what time
they were discharged and if the names on the door were accurate. I
apologize greatly for any inconvenience this may have caused.
[Dkt. 36 ¶ 77; Dkt. 43-3 ¶ 77]. Wallak determined that the response did not address
all that was discussed and then called Skibitcky twice, leaving voicemails. [Dkt. 36
¶ 80; Dkt. 43-3 ¶ 80]. Skibitcky did not call her back. [Dkt. 36 ¶ 81; Dkt. 43-3 ¶ 81].
Wallak concluded Skibitcky falsified resident records in violation of West River
policy. [Dkt. 36 ¶ 82; Dkt. 43-3 ¶ 82]. She then decided to terminate Skibitcky’s
employment. [Dkt. 36 ¶ 83; Dkt. 43-3 ¶ 83].
Wallak emailed Remillard on March 25, 2014 about Skibitcky’s employment.
[Dkt. 37-24 (Mot. Summ. J. Ex. 24, 03/25/14 Wallak Email)]. In the email, Wallak
recounted the aforementioned disciplinary issues and the March 2014 incidents.
Wallak stated: “Recommendation is termination for falsification.” Id. On March 26,
2014, Remillard asked her to call him to discuss and requested she send additional
documents. Id.
That same day, Wallak sent Skibitcky a letter notifying her of employment
termination. [Dkt. 36 ¶ 85; Dkt. 43-3 ¶ 85]. In the letter she stated, “The reason for
this termination is your inappropriate and/or unprofessional conduct including, but
7

not necessarily limited to, your falsification of residents records.” [Dkt. 37-31 (Mot.
Summ. J. Ex. 31, Termination Letter)]. Skibitcky disagrees with Wallak’s decision
to terminate her employment, and instead believes she should be “retrained” or
“rehabilitated.” [Dkt. 36 ¶ 87; Dkt. 43-3 ¶ 87].
Skibitcky testified that during her employment she complained to Wallak
about Mihalchick modifying her schedule about a month before her termination,
and that she felt “bullied.” [Dkt. 36 ¶ 88; Dkt. 43-3 ¶ 88]. She recalls explicitly
stating Mihalchick “wasn’t well-liked in the facility.” [Dkt. 36 ¶ 89; Dkt. 43-3 ¶ 89].
Skibitcky also contends that Mihalchick also falsified records, although Skibitcky
did not report this fact. [Dkt. 36 ¶ 91; Dkt. 43-3 ¶ 91].
Legal Standard
Summary judgment should be granted “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the burden of proving
that no genuine factual disputes exist. See Vivenzio v. City of Syracuse, 611 F.3d
98, 106 (2d Cir. 2010). “In determining whether that burden has been met, the court
is required to resolve all ambiguities and credit all factual inferences that could be
drawn in favor of the party against whom summary judgment is sought.” Id. (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Matsushita Electric Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). “If there is any evidence in the
record that could reasonably support a jury’s verdict for the nonmoving party,
summary judgment must be denied.” Am. Home Assurance Co. v. Hapag Lloyd

8

Container Linie, GmbH, 446 F.3d 313, 315–16 (2d Cir. 2006) (internal quotation
marks and citation omitted).
A party who opposes summary judgment “cannot defeat the motion by
relying on the allegations in his pleading, or on conclusory statements, or on mere
assertions that affidavits supporting the motion are not credible.” Gottlieb v. Cnty
of Orange, 84 F.3d 511, 518 (2d Cir. 1996). “At the summary judgment stage of the
proceeding, [the moving party is] required to present admissible evidence in
support of their allegations; allegations alone, without evidence to back them up,
are not sufficient.” Welch–Rubin v. Sandals Corp., No. 3:03-cv-00481, 2004 WL
2472280, at *4 (D. Conn. Oct. 20, 2004) (citing Gottlieb, 84 F.3d at 518); see Martinez
v. Conn. State Library, 817 F.Supp.2d 28, 37 (D. Conn. 2011). Where there is no
evidence upon which a jury could properly proceed to find a verdict for the party
producing it and upon whom the onus of proof is imposed, such as where the
evidence offered consists of conclusory assertions without further support in the
record, summary judgment may lie. Fincher v. Depository Trust & Clearing Corp.,
604 F.3d 712, 726–27 (2d Cir. 2010).
Analysis
The FMLA provides an “eligible employee” with the right to take twelve
weeks of unpaid leave for, inter alia, “a serious health condition that makes the
employee unable to perform the functions of the position of such employee.” 29
U.S.C. § 2612(a)(1)(D). The FMLA prohibits employers from interfering with this
right and from retaliating against an employee who asserts this right. 29 U.S.C.

9

§ 2615. Interference and retaliation claims are two distinct claims for relief. See
Potenza v. City of New York, 365 F.3d 165, 168 (2d Cir. 2004).
Although Skibitcky initially raised both interference and retaliation claims,
she only now challenges retaliation. The basis for her retaliation claim is that she
requested intermittent FMLA leave in August 2013 for high blood pressure and
anxiety, “notif[ied] [Healthbridge] of another intermittent medical leave” in October
2013, participated in group treatment sessions in November 2013, and then was
terminated in March 2014. [Dkt. 43-2 (Opp’n Mot. Summ. J.) at 5-6]. Healthbridge
argues instead that her employment was terminated because she falsified
documents. [Dkt. 35 (Mot. Summ. J.) at 15-16]. Healthbridge also argues that it is
not her employer and cannot be held liable under the FMLA. Id. at 20-21.
FMLA retaliation claims have been analyzed under the McDonnell-Douglas
test, but the proper legal standard has not been resolved. See Graziadio v. Culinary
Inst. of Am., 817 F.3d 415, 429 n.7 (2d Cir. 2016). The Court applies McDonnellDouglas because Plaintiff does not argue for the application of the test articulated
in Bachelder v. America West Airlines, Inc., 259 F.3d 1112, 1125 (9th Cir. 2001); [Dkt.
43-2 at 5 (applying McDonnell-Douglas standard)].
I.

Prima Facie Case
Under the McDonnell-Douglas standard, the plaintiff must first demonstrate

a prima facie claim, which requires proof of the following elements: “1) [she]
exercised rights protected under the FMLA; 2) [she] was qualified for [her] position;
3) [she] suffered an adverse employment action; and 4) the adverse employment
action occurred under circumstances giving rise to an inference of retaliatory

10

intent.” Potenza, 365 F.3d at 168. Healthbridge challenges only the fourth element.
Skibitcky was terminated seven months after initially requesting leave and
four months after completing her most recent leave. As a general matter, a plaintiff
may rely on temporal proximity between the exercise of FMLA rights and the
alleged retaliation to establish “an inference of retaliatory intent.” See Donnelly v.
Greenburgh Cen. School Dist. No. 7, 691 F.3d 134, 152 (2d Cir. 2012) (finding a
“’very close’ temporal proximity” is a sufficient basis to create a “causal
connection” between the protected activity and adverse action, constituting
retaliatory intent); Hewett v. Triple Point Tech., Inc., 171 F. Supp. 3d 10, 20 (D. Conn.
2016) (acknowledging that a temporal proximity of one month was sufficient to
satisfy the prima facie elements); Blackett v. Whole Foods Market Grp., Inc., No.
14-cv-1896 (JAM), 2017 WL 1138126, at *9 (D. Conn. Mar. 27, 2017) (“The temporal
proximity between the time when plaintiff took his leave and his termination
provides a sufficient basis for plaintiff to meet his ‘minimal burden’ of establishing
this prong.”). “[T]here is no ‘bright line to define the outer limits beyond which a
temporal relationship is too attenuated to establish a causal relationship between
a protected activity and an alleged retaliatory action.’” Gonzalez v. Carestream
Health, Inc., 520 F. App’x 8, 10-11 (2d Cir. 2013) (in an FMLA case, citing Bucalo v.
Shelter Island Union Free Sch. Dist., 691 F.3d 119, 131 (2d Cir. 2012)); Espinal v.
Goord, 558 F.3d 119, 129 (2d Cir. 2009) (setting forth same rule in a First
Amendment retaliation claim under 28 U.S.C. § 1983).

A court may therefore

“exercise its judgment about permissible inferences that can be drawn from
temporal proximity in the context of particular cases.” Espinal, 558 F.3d at 129

11

(finding the passage of six months between dismissal of a lawsuit and alleged
retaliatory beatings to be sufficient to infer a causal connection); see Summa v.
Hofstra Univ., 708 F.3d 115, 128-29 (2d Cir. 2013) (finding seven months to be a
temporal range sufficient to raise an inference of causation in a Title VII and IX
case). But see Barletta v. Life Quality Motor Sales Inc., No. 13-CV-02480 (DLI) (ST),
slip op. at 5 (E.D.N.Y. Sept. 12, 2016) (“While close temporal proximity can give rise
to an inference of retaliation, the nearly four-month gap between Plaintiff’s FMLA
leave and his termination is insufficient.”); Reilly v. Revlon, Inc., 620 F. Supp. 2d
524, 538 (S.D.N.Y. 2008) (finding that “a three-month gap between the expiration of
an employee’s FMLA leave and termination is likely to be insufficient to give rise
to an inference of retaliation”); Pellegrino v. Cty. of Orange, 313 F. Supp. 2d 303,
317 (S.D.N.Y. 2004) (“A four month temporal gap between knowledge of pregnancy
and adverse employment action is considered quite weak temporal correlation in
this Circuit.”).
In exercising its prerogative to evaluate the temporal proximity on a caseby-case basis, courts within this Circuit evaluate all of the facts and circumstances
and have held that an inference of causation may be defeated if “there was an
intervening causal event. . . .” Yarde v. Good Samaritan Hosp., 360 F. Supp. 2d 552,
562 (S.D.N.Y. 2005); see Villagomez v. Catholic Charities, Inc., No. 3:09 CV 1001
(JGM), 2010 WL 4929264, at *8 n.18 (D. Conn. Nov. 30, 2010) (applying Yarde rule to
an FMLA case).

In assessing the facts of this case, the Court finds that the

combination of a temporal proximity on the outer range of that which has been
deemed pivotal in this Circuit and the gravity of the intervening disciplinary actions

12

instituted against Skibitcky in January and March of 2014, reflecting her lack of
professionalism, dedication, and diligence militate against a finding that Skibitcky
has established an inference of retaliatory intent.
II.

Legitimate, Non-Discriminatory Reason
Assuming, arguendo, that Skibitcky demonstrated a prima facie case,

Healthbridge would then have to “demonstrate a legitimate, non-discriminatory
reason for its actions. . . .” Graziadio, 817 F.3d at 429. Here, Healthbridge has
provided ample evidence of a legitimate reason for terminating her employment.
Skibitcky received multiple disciplinary actions for a variety of topics: failure
to timely complete projects, insubordination, and arguing with a coworker. In
March 2014 she submitted multiple reports containing false information, the
discovery of which prompted her immediate suspension and termination within
two weeks. See [Dkt. 37-31 (wherein the termination letter indicates “[t]he reason
for this termination is your inappropriate and/or unprofessional conduct including,
but not necessarily limited to, your falsification of residents records”).

Poor

performance, insubordination, and violations of an employer’s code of conduct,
are all legitimate non-discriminatory reasons to terminate employment.

See

Kirkland v. Cablevision Sys., 760 F.3d 223, 225 (2d Cir. 2014) (reversing on the
grounds of sufficient pretext, but acknowledging district court held defendant had
“seemingly legitimate, non-discriminatory reasons for firing [plaintiff]—primarily,
poor performance reviews and affidavits from three regional managers whom
[plaintiff] supervised); Jain v. McGraw-Hill Cos., Inc., 506 F. App’x 47, 48 (2d Cir.
2012) (stating plaintiff’s poor work performance was a legitimate, non-

13

discriminatory reason for terminating plaintiff’s employment in an FMLA case);
Travers v. Cellco P’ship, 579 F. App’x 409, 415-16 (6th Cir. 2014) (“This court has
previously held that evidence of a violation of work rules that would have
supported dismissal provides a legitimate, non-discriminatory reason.”); Kovaco
v. Rockbestos-Suprenant Cable Corp., 979 F. Supp. 2d 252, 261 (D. Conn. 2013)
(acknowledging

a

plaintiff’s

admitted

misconduct

as

a

legitimate

non-

discriminatory basis); Chieppa v. William W. Backus Hosp., No. 3:14CV1767 (DJS),
slip op. at *6 (D. Conn. Sept. 8, 2014) (stating in an age discrimination case that an
employee’s violation of a hospital’s Code of Conduct is a legitimate, nondiscriminatory reason for termination); Edwards v. City of New York, No. 03 Civ.
9407(PAC), 2005 WL 3466009, at *15 (S.D.N.Y. Dec. 19, 2005) (“Insubordinate and
unprofessional conduct is a legitimate, non-discriminatory reason for terminating
an employee.”); Forrester v. Prison Health Servs., No. 12 CV 363(NGG)(LB), 2015
WL 1469521, at *15 (E.D.N.Y. Jan. 5, 2015) (“Misconduct, excessive lateness, and
poor performance are legitimate, non-discriminatory reasons for defendants’
adverse actions.”). Accordingly, Defendant has met its burden at the second stage
of the McDonnell-Douglas test.
III.

Pretext
Given that there exists a legitimate, non-discriminatory reason for terminating

Skibitcky’s employment, Skibitcky would have to show the “proffered explanation
is pretextual.” Graziadio, 817 F.3d at 429. A reasonable juror can conclude the
employer’s reason for termination is “pretext for a prohibited reason” when the
plaintiffs

provides

evidence

“demonstrating

14

weaknesses,

implausibilities,

inconsistencies, or contradictions in the employer’s proffered legitimate,
nonretaliatory reasons for its action.” Id. at 340 (quoting Zann Kwan v. Andalex
Grp. LLC, 737 F.3d 834, 846 (2d Cir. 2013)).
Skibitcky argues that she denied the falsification of documents and cites
Clarke v. 1 Emerson Drive North Operations, LLC, No. 3:13-CV-690 (JHC), 2015 WL
3453388 (D. Conn. May 28, 2015) for the proposition that a court must deny
summary judgment when a plaintiff disputes the validity of the legitimate, nondiscriminatory reasons. However, Clarke is distinguishable from the case at hand.
Clarke, an African American woman, received warnings and notices of deficient
performance regarding her attendance, demeanor, adherence to policies, and
compliance with physicians’ orders; she participated in a meeting with human
resources in April 2012 and was ultimately terminated the next month. Id. at *1.
The district court denied defendant’s motion for summary judgment with respect
to the race discrimination claims because even though “[t]he weight of [the]
evidence is substantial” in support of a legitimate, non-discriminatory reason, “at
her deposition, Clarke disputed the validity of all, or nearly all, of the reasons given
as bases for her termination.” Id. at *3. Specifically, Clarke’s opposition indicates
that she disputed the facts underlying the basis for the corrective actions; for
example, with respect to her interaction with a third party lab vendor she argued
the investigation failed to discover and disclose relevant facts supporting her
position because the defendant failed to interview another African American
woman who witnessed the interaction. See Clarke, case number 3:13-cv-00690-

15

JCH, Dkt. 49 (Obj’n Mot. Summ. J.) at 10. Such challenges raised a triable issue of
fact for the jury.
Here, Skibitcky has not submitted any admissible evidence challenging the
facts underlying Healthbridge’s decision to terminate her employment.

The

termination letter states that her termination was based on “inappropriate and/or
unprofessional conduct including, but not necessarily limited to, [her] falsification
of residents [sic] records.” [Dkt. 37-31]. Such language is indicative that her
employment was terminated for more than just one reason, and accordingly it is
insufficient for Skibitcky merely to challenge the accusation she falsified
documents.
More importantly, admissible evidence supports a finding that Skibitcky
admitted to the facts underlying the various disciplinary actions, including those
directly preceding her employment termination. In the first instance of June 2013,
Skibitcky did not challenge her untimeliness for completing the men’s group
project, which resulted in a Documented Verbal Notice indicating additional
violations could lead to termination.1 [Dkt. 37-8 (wherein the notice establishes
“[f]urther problems of any kind may lead to further disciplinary action up to and
including

termination

of

employment”)].

Skibitcky

also

admitted

to

insubordination by challenging Mihalchick in August 2013, which led to an

1

With respect to the latter disciplinary action, Skibitcky merely stated, “It’s not the
way it happened. I had asked 2x previously for help - computers down so
completed invites at home & get them to work before Monday.” [Dkt. 37-8]. Such
a response appears to be an excuse for failing to follow the deadlines, not a
challenge that she timely complied with the deadlines.
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insubordination determination. [Dkt. 37-2 at 139:10-40:5]. Thereafter in December
2013 she got into an argument with her coworker, to which she admitted and
received a suspension and final written warning. [Dkt. 37-2 at 156:14-57:4; Dkt. 3715 (stating “[f]urther problems of any kind may lead to further disciplinary action
up to and including termination of employment”)].
Finally, Skibitcky was suspended for falsifying patients’ rehabilitative therapy
reports in March 2014, and she sent by fax a response wherein she did not dispute
the fact she submitted incorrect information in her reports, stating the following:
Knowing my character, you would know that I would never purposely
falsify any document. I do not personally know every patient and
having to look on the door to see their name. I do not personally know
every patient and having [sic] to look on the door to see their name.
While doing my visits first opportunity in the morning, I made contact
with each patient in a room that I noted. I was told that one woman
was with her aide and found out when I returned days later that she
had been in the hospital. I also overheard another woman I had visited
with tell a fellow patient that she was being discharged. Ironically the
patients I had supposedly not visited were all in one hallway. I wonder
what time they were discharged and if the names on the door were
accurate. I apologize greatly for any inconvenience this may have
caused.
[Dkt. 37-22]. While she does dispute she knew the information was false, the Court
notes that the submission of an inaccurate report is nonetheless a violation of the
Code of Conduct that may be subject to “serious disciplinary action up to and
including termination.” [Dkt. 36 ¶ 3; Dkt. 43-3 ¶ 3].
In addition, Skibitcky does not raise a genuine issue of material fact
concerning the falsity of the patient care records she created. Such facts must be
presented by affidavit of other admissible evidence Welch–Rubin v. Sandals Corp.,
2004 WL 2472280, at *1 n.4; see Martinez, 817 F.Supp.2d at 37. A party seeking to

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defeat summary judgment cannot rely solely upon the allegations in the pleadings,
or conclusory allegations or unsubstantiated speculation to defeat summary
judgment; speculation alone is insufficient to defeat a motion for summary
judgment. See Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011); Gottlieb,
84 F.3d at 518. Skibitcky does not deny that the rehabilitative therapy records she
created are inaccurate. She merely postulates reasons why they were inaccurate.
Whether she created false rehabilitative therapy because she was inattentive to
and impersonal with her patients or deceitful is of no consequence. Healthbridge’s
Code of Conduct required Skibitcky to create accurate patient care records to
maintain its integrity and financial viability and she failed to exercise the degree of
care necessary to perform her critical function.
Finally, Skibitcky’s falsified documents followed previous disciplinary
actions and warning that continued misconduct could lead to her termination.
Skibitcky has not presented any evidence that demonstrates the numerous
legitimate, non-discriminatory reasons for terminating her employment were
pretext for a prohibited reason.2

Indeed, her employer approved her FMLA

requests, the last of which she completed four months prior to the incident.
Defendant rightly points out that purely temporal proximity, to the extent one

2

To the extent Skibitcky’s termination letter did not reference her failure to return
Defendant’s phone call, the Court does not agree with Plaintiff that the omission in
the termination letter creates a triable issue of fact as to a legitimate reason for
Healthbridge terminating her employment. Skibitcky does not point to any
company policy requiring the employer to specifically state every single reason
affecting the employment decision. Defendants have identified plenty of legitimate,
non-discriminatory reasons to terminate her employment other than her failure to
return a phone call.
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existed here, is insufficient at the pretext stage. See [Dkt. 45 at 4-5 (citing cases)];
Percoco v. Lowe’s Home Ctrs., LLC, 208 F. Supp. 3d 437, 449 (D. Conn. 2016).
IV.

Additional Issues
The Court now addresses the dispute as to whether Healthbridge is liable as a

joint employer. Although the parties did not identify this fact, the Court notes that
Healthbridge may have controlled Skibitcky’s employment termination, because
Wallak emailed Healthbridge Regional Human Resources Director the day before
Skibitcky’s termination stating, “Recommendation is termination for falsification.”
[Dkt. 37-24].

This recommendation suggests that West River could not have

terminated her employment without Healthbridge’s approval. Nonetheless, to the
extent Healthbridge argues it was not Skibitcky’s employer under the FMLA, the
Court finds this issue moot as Skibitcky cannot survive on the merits of the case.
The Court also finds that Skibitcky’s Motion for Leave to Amend, which seeks
to add West River as a Defendant, is without merit. Leave to amend is to be given
freely “when justice so requires,” Fed. R. Civ. P. 15(a), unless the moving party
acted with “undue delay, bad faith or dilatory motive . . . , repeated failure to cure
deficiencies by amendments previously allowed,” or the amendment would create
undue prejudice to the opposing party or be futile. Foman v. Davis, 371 U.S. 178,
182 (1962). However, “where the proposed amendment seeks to add new parties,
Fed. R. Civ. P. 21 governs.” Jones v. Smith, No. 9:09-cv-1058 (GLS/ATB), 2015 WL
5750136, at *25 (N.D.N.Y. Sept. 30, 2015); see Fed. R. Civ. P. 21 (“On motion or on
its own, the court may at any time, on just term, add . . . a party.”). Such a
distinction is a mere technicality as “the same standard of liberality applies under

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either Rule.” Duling v. Gristede’s Operating Corp., 265 F.R.D. 91, 96-97 (S.D.N.Y.
2010); Faryniarz v. Ramirez, 62 F. Supp. 3d 240, 249 n.4 (D. Conn. 2014) (same);
Brown v. Tuttle, No. 3:13 CV 1444 (JBA), 2014 WL 3738066, at *2 n.5 (D. Conn. July
30, 2014) (same in a prisoner’s civil rights case). When there exists a scheduling
order, the lenient standard of Rule 15(a) “must be balanced against the requirement
under Rule 16(b) that the Court’s scheduling order ‘shall not be modified except
upon a showing of good cause.’” Grochowski v. Phoenix Const., 318 F.3d 80, 86
(2d Cir. 2003); Velez v. Burge, 483 F. App’x 626, 628 (2d Cir. 2012).
Leave to amend is futile here because Skibitcky would not be able to assert a
viable claim against West River. Defendant has correctly identified that the twoyear statute of limitations under 29 U.S.C. § 2617(c)(1) precludes an action against
West River, given Skibitcky received notice of her termination on April 1, 2014, and
did not seek to add West River until June 5, 2017. See Doe v. Whidden, 557 F. App’x
71, 73-74 (2d Cir. 2014) (upholding denial of leave to amend as futile where claim
was time-barred by statute of limitations). “Rule 15(c) does not allow an amended
complaint adding new defendants to relate back if the newly-added defendants
were not named originally because the plaintiff did not know their identities.”
Barrow v. Wethersfield Police Dep’t, 66 F.3d 466, 470 (2d Cir. 1995). While a party
may be added under Rule 15(c) under circumstances of a mistake, “the failure to
identify individual defendants when the plaintiff knows that such defendants must
be named cannot be characterized as a mistake.” Id. Healthbridge filed its Answer
to the Complaint on March 7, 2016, denying that it was an employer under the FMLA
within the statute of limitations period. Skibitcky has herself admitted that she

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considered West River her employer. [Dkt. 37-2 at 35:8-10 (confirming she believed
West River was her employer). Skibitcky however did not seek leave to amend after
the Answer was filed and before the statute of limitations ran on April 1, 2016. The
Court also notes 29 U.S.C. § 2617(c)(2) provides a three-year statute of limitations
for a willful violation of § 2615. This period also expired, on April 1, 2017. Skibitcky
did not address the statute of limitations issue in its Motion for Leave to Amend
and has not replied to Healthbridge’s statute of limitations argument, which
indicates that she does not dispute this contention. Therefore, leave to amend is
DENIED.
Conclusion
For the aforementioned reasons, the Court GRANTS Defendant’s Motion for
Summary Judgment and DENIES Plaintiff’s Motion for Leave to Amend. Because
Skibitcky’s claim fails, the Court need not address damages. The Clerk is directed
to close this case.

IT IS SO ORDERED.
_
/s/
_
Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: September 18, 2017

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