Tomici v. City of New York

Filing 54

MEMORANDUM, ORDER AND JUDGMENT (Reissued with redactions on March 24, 2014) Ordered by Judge Jack B. Weinstein on 12/19/2012. Seal prior Memorandum dated 12/19/2014 and file and docket this redacted memorandum in its place. Ordered by Judge Jack B. Weinstein on 3/24/2014. (Barrett, C)

~eissued

with redactions on March 24, 2014

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LOREDANA TOMICI,

MEMORANDUM, ORDER
AND JUDGMENT

Plaintiff,
11-CV-2173

-againstNEW YORK CITY DEPARTMENT OF
EDUCATION,

FILED

Defendant.

IN CLERK'S OFFtC£
U.S. DISTRICT COURT E.DJtY.

* APR1120~ *

Appearances:

BROOKLYN OffiCE

For the Plaintiff:
Locksley 0. Wade
Law Office ofLocksley 0. Wade, Esq.
New York, New York

For the Defendant:

Isaac Klepfish
Of Counsel
New York City Law Department
New York, New York

tJ-----

/

JACK B. WEINSTEIN, Senior United States District Judge:

I.

Table of Contents
Introduction ............................................................................................................................. 3

II.

Facts ........................................................................................................................................ 3

A. Parties .................................................................................................................................. 3
B. Tomici's First Year and a Half at Ridgewood Intermediate School93 .............................. 4

c.

.......................................................................................................... 4

D.

QTEL Workshop ................................................................................................................. 5

E. Early March Classroom Observations and Feedback ......................................................... 6
F. Discipline for Leaving QTEL Workshop ........................................................................... 7
G.

March 19, 2009 Letter ......................................................................................................... 8

H. Plagiarism Incident ............................................................................................................. 9
I.

Request for FMLA Leave ................................................................................................. 12

J.

Termination ....................................................................................................................... 14

K.

Review .............................................................................................................................. 16

L.

Animus .............................................................................................................................. 17
1.

Discriminatory Comments .......................................................................................... 17

2.

Differential Treatment of Others ................................................................................ 17

III.

Procedural History ............................................................................................................ 18

IV.

Summary Judgment Standard ........................................................................................... 18

V.

State and City Claims Dismissed .......................................................................................... 19
A.

Law ................................................................................................................................... 19

B.

Application ofLaw to Facts .............................................................................................. 21

VI.

FMLA Claims ................................................................................................................... 23

A.

No Interference in Violation of the FMLA ....................................................................... 23
1.

Law ............................................................................................................................. 23

2.

Application of Law to Facts ....................................................................................... 25

B.

No Retaliation for Taking FMLA Leave .......................................................................... 27
1.

Law ............................................................................................................................. 27

2.

Application of Law to Facts ....................................................................................... 28
a)
b)

Legitimate, Nondiscriminatory Justification .......................................................... 29

c)
VII.

Prima Facie Case .................................................................................................... 28

Pretext ..................................................................................................................... 30

Conclusion ........................................................................................................................ 31

I.

Introduction

Loredana Tomici sues her former employer, the New York City Department of Education
("DOE"). She was discharged as a New York City probationary public school teacher while on
medical leave
The Family Medical Leave Act ("FMLA") prohibits interference with, and retaliation for,
taking medical leave.

Defendant moves for summary judgment and dismissal. Tomici cross-moves for
summary judgment on her FMLA claim.
Failure to file a timely notice bars claims under state and city law. Evidence will not
support her remaining FMLA claims.
Defendant's motion is granted. Plaintiff's motion is denied. The case is dismissed.

II.

Facts

The following statement of facts draws all reasonable inferences in favor of the plaintiff.

See Vivenzio v. City ofSyracuse, 611 F.3d 98, 106 (2d Cir. 2010).

A. Parties
In August 2007, plaintiff began working as a probationary English language arts teacher
at DOE's Ridgewood Intermediate School93 ("I.S. 93"). Decl. oflsaac Klepfish in Supp. of
Def.'s Mot. for Summ. J. ("Klepfish Decl.") Ex. G (Annual Professional Performance Review
and Report, dated June 25, 2008), CMIECF No. 27-7. Her period of probation was three years.

See N.Y. Educ. L. § 2573(1). During a probationary period, a teacher lacks tenure and is
essentially an at-will employee who the board of education can fire upon the recommendation of
the superintendent of schools, so long as the decision is not arbitrary or capricious. See Frasier

3

v. Bd. ofEduc. of City Sch. Dist. of City ofNew York, 71 N.Y.2d 763, 765 (1988) (analyzing

N.Y. Educ. L. § 2573(1)).
The principal ofl.S. 93 was Edward Santos. Def. 56.1

~

2. Also providing supervision at

I.S. 93 were three assistant principals: Frederick Wright, Catherine Fratangelo, and Theresa
Rosato-Lopes. /d.

at~~

3-5.

B. Tomici's First Year and a Half at Ridgewood Intermediate School 93
Tomici was rated "Satisfactory" for her first year and a half as a probationary teacher.
See Klepfish Decl. Ex. II (Chancellor's Committee Report, dated May 18, 2009), CMIECF No.

27-35; Ex. G (Annual Professional Performance Review and Report, dated June 25, 2008),
CMIECF No. 27-7. During this period Rosato-Lopes observed plaintiffs teaching on at least
two occasions. In October of2007, Tomici's third month on the job, Rosato-Lopes rated
Tomici's lesson as satisfactory overall and remarked in her Observation Report that "[i]t is a
pleasure to work with you in your first year as a teacher." Klepfish Decl. Ex. E. (Observation
Report, dated Nov. 1, 2007), CMIECF No. 27-5. She also thanked Tomici "for the dedication
you show the students ofl.S. 93." /d. Rosato-Lopes's impression ofTomici did not change
during the initial months ofTomici's second year on the job. An Observation Report authored
by Rosato-Lopes in September 2008 thanked Tomici for "working to develop the skills and
strategy to meet the needs of your [English Language Learner] students." Klepfish Decl. Ex. H
(Observation Report, dated Sept. 5, 2008), CMIECF No. 27-8.

4

D. QTEL Workshop
In late February 2009, Tomici attended a professional development workshop for DOE
employees offered by Quality Teaching for English Learners ("QTEL"). In preparation,
plaintiff's classroom instruction was observed on February 2, 2009 by Santos and Fratangelo.
Klepfish Decl. Ex. J. Two days later, on February 4, 2009, Fratangelo emailed Tomici
summarizing "some points that ... are in need of immediate attention." ld. Tomici replied
promptly, stating that she saw "some validation in your observation but ... [felt] some points
need to be discussed in further detail." Id.
The QTEL workshop lasted several days long. Pl. Decl. Ex. 4 ("Rosato-Lopes Dep."),
CMIECF No. 38-4, at 26; Tomici Dep. 26.

5

•

Prior to departing the workshop on February 23rd, Tomici notified two colleagues that

she would not be returning following the lunch break. Tomici Dep. 26-27. She did not notify
any workshop facilitators that she was leaving early; nor did she notify the assistant principals of
I.S. 93 or Principal Santos. Def. 56.1

~~

22-24, 26.

Rosato-Lopes learned of plaintiff's absence through Tomici's colleagues. Rosato-Lopes
Dep. 25. Rosato-Lopes then reported the incident to Santos. Def. 56.1

~

27.

Tomici took a sick day on February 24th and returned to work on February 25, 2009.
Tomici Dep. 27.

E. Early March Classroom Observations and Feedback
A series of observations ofplaintiff's classroom and unsatisfactory ratings followed. An
observation from Wright on March 3, 2009 rated plaintiff unsatisfactory. Klepfish Decl. Ex. K
(Informal Observation Report, Mar. 4, 2009), CMIECF No. 27-11. In his report, Wright noted
that Tomici's lesson plan was inadequate and, in particular, failed to "incorporate the
professional development you have received from the [English Language Arts] and [English as a
Second Language] departments over the last two years." !d. (emphasis in original). Wright
continued to observe Tomici's lessons in March and found her to be struggling with lesson plans.
Wright Dep. 50.
A meeting between plaintiff, Santos, Wright and Rosato-Lopes took place on March 4,
2009. Klepfish Decl. Ex. L (Ltr. from Rosato-Lopes to Tomici, dated Mar. 5, 2009), CMIECF
No. 27-12. The next day, the school's administrators "put additional structures in place to
support [Tomici's] professional growth." !d. Tomici was required to submit weekly lesson

6

plans to Rosato-Lopes each Monday and to attend "scheduled inter-visitation periods" with
assigned teacher-mentors. Id.
On March 9, 2009, Wright and Fratangelo conducted a walkthrough ofTomici's
classroom. Klepfish Decl. Ex. T (Ltr. from Wright to Tomici, dated Mar. 12, 2009), CMIECF
No. 27-20. Wright then wrote a letter admonishing Tomici for failing to make lesson plans
available to supervisors upon request. ld. Tomici signed the letter, acknowledging she received
it, and did not object to its contents. Id. Nearly three years later, at her deposition, Tomici
disputed that teachers were actually required to maintain lesson plans in paper format to be
produced to supervisors upon their request. Tomici Dep. 63.

F. Discipline for Leaving QTEL Workshop
About March 9, 2009, Tomici was informed by Santos that she would be docked pay for
an unauthorized absence because she left the QTEL training session on February 23, 2009
without advising her supervisors. Def. 56.1

~ 41;

Tomici Dep. 27. At that time, it was not

known to Santos that Tomici had a medical excuse for leaving the session. Pl. Decl. Ex. 2
("Santos Dep."), CMIECF No. 38-2, at 57.
At a meeting with Santos to discuss her purported insubordination and punishment,
Tomici informed him that she "had medical documentation specifying why [she] left".

-

Tomici Dep. 28-29. Tomici then submitted to I.S. 93's payroll secretary a note

from the physician who treated her on February 23, 2009. Klepfish Decl. Ex. 0 (Note from
Daniel Rahman), CMIECF No. 27-15.
On March 13, 2009, after Santos was informed that a union representative must be
present for a disciplinary proceeding, Santos held another meeting with Tomici so her union

7

representative could attend. Santos Dep. 57-58. Present at the meeting were Santos, Wright,
Rosato-Lopes, Tomici, and her union representative. Tomici Dep. 30-31. Having considered
plaintiff's medical reason for leaving the workshop early,.Santos recorded her absence as one for
which she would still be paid, but counted it against sick leave. Klepfish Decl. Ex. 0 (Note from
Daniel Rahman, dated Feb. 23, 2009), CMIECF No. 27-15; Def. 56.1

~~54-55.

He summarized

his decision in a letter to Tomici that was placed in her file. Klepfish Decl. Ex. Q (Ltr. from
Santos to Tomici, dated Mar. 9, 2009), CM/ECF No. 27-17. The letter noted that "in the future,
you must obtain clearance from an I.S. 93 supervisor to leave an assigned training site, which is
an extension of your school building." /d. Tomici signed the bottom of the letter, signifying she
received a copy of it, without any objection. /d.
Plaintiff contends that Santos's decisions to hold a meeting and to write a disciplinary
letter even after Tomici provided a medical excuse for her absence was motivated by a desire "to
create a false record for disciplinary action against [her]." Pl.'s Resp. to Rule 56.1

Statement~

46.

G. March 19, 2009 Letter
In a letter dated March 19, 2009, Rosato-Lopes notified Tomici of several deficiencies in
her professional conduct, including the following:
•

Tomici failed, upon Rosato-Lopes's request, to forward Rosato-Lopes ''the work in
progress and completed work folders" for two students transferred from plaintiff's
class to another teacher's. Klepfish Decl. Ex. U (Ltr. from Rosato-Lopes to Tomici,
dated Mar. 19, 2009), CM/ECF 27-22. When Rosato-Lopes attempted to retrieve the
materials herself, she "observed that there is no record of work in the files of your
students since September." /d. Tomici contends that she had already transferred the
materials to the two students' new teacher and that Rosato-Lopes "knew about this
and still wrote the [letter] anyway." Tomici Dep. 99.

•

Tomici failed, upon Rosato-Lopes's request, to maintain records of the work-for
example, drafts, revisions, finished work, etc.--of her students related to "the
Journalistic Feature Articles that students worked on for approximately six weeks."

8

Klepfish Decl. Ex. U (Ltr. from Rosato-Lopes to Tomici, dated Mar. 19, 2009),
CMIECF 27-22. Rosato-Lopes further noted that Tomici failed to provide feedback
to her students on the "Journalistic Feature Articles" and had no explanation for this
failure. !d.
•

Tomici failed to tum in her "DYO scan sheets .... for any of[her] classes." !d.

Rosato-Lopes closed her letter by reminding Tomici that "failure to carry out pedagogical
responsibilities can lead to disciplinary action and an unsatisfactory rating." !d. Without
objection, Tomici signed the the letter on March 20, 2009, acknowledging that she understood
that "a copy of this letter will be put into [her] personnel file." !d.

H. Plagiarism Incident
In late March, while reviewing student work posted on bulletin boards in the hallways of
I.S. 93, Rosato-Lopes noticed the written work of one ofTomici's students that was
"exceptionally written." Def. 56.1 ,, 63-64. Concerned that the written work was plagiarized,
Rosato-Lopes ran the content of the written work through an Internet search engine and
discovered it had been copied. !d., 65. Tomici had given the student a grade of three on a fourpoint scale. Klepfish Decl. Ex. Y (Mem. from Rosato-Lopes to Santos, dated Mar. 26, 2009),
CMIECF 27-25.
March 25, 2009 was Tomici's last day teaching at I.S. 93. Tomici Dep. 120.
I

That day, Rosato-Lopes met with Tomici, where Tomici stated that she was unaware the
student had copied work. !d. Rosato-Lopes requested that Tomici produce, by the end of the
day, the student's "sourcebook, drafts, evidence of revision, and feedback she provided in
anticipation of a meeting with [the student's] parent." !d.
When Rosato-Lopes finished meeting with Tomici, the student accused of plagiarism was
in a class taught by I.S. 93 teacher Paula Oliveri. Tomici Dep. 106-08. As Oliveri described the

9

incident in a written statement dated March 25, 2009, at the start of class she observed the
student, "sit at his desk and begin taking notes on a computer-printed document." Klepfish Decl.
Ex. AA (Written Statement of Oliveri, dated Mar. 25, 2009), CMIECF No. 27-27. Ten minutes
into the class, Oliveri received a call in her classroom from Tomici.
The contents ofTomici's conversation with Oliveri and what followed that conversation
are disputed.
Relying on contemporaneous written statements ofRosato-Lopes, Oliveri, and the
accused student, defendant asserts that, on the phone with Oliveri, Tomici requested to speak to
the student and rejected Oliveri's offer to send the student to Tomici's classroom. Def. 56.1

~

70; see also Klepfish Decl. Exs. X (Mem. from Rosato-Lopes to Santos, dated Mar. 26, 2009),
CMIECF No. 27-25; AA (Written Statement of Oliveri, dated Mar. 25, 2009), CMIECF No. 2727; BB (Written Statement of Student, dated Mar. 25, 2009), CM/ECF No. 27-28. The DOE
claims that, on the phone, Tomici directed the student to effect falsifying by "put[ting] notes or a
draft in his sourcebook to demonstrate that he did not plagiarize." Def. 56.1

~

80.

By contrast, Tomici testified that she called Oliveri's classroom hoping to notify the
student that Rosato-Lopes wanted to see his sourcebook. Tomici Dep. 106-08. Tomici asserts
that she-not Oliveri-proposed that the student be sent to Tomici's classroom, and that
Oliveri-not Tomici-suggested that Tomici speak to the student on the phone. Tomici Dep.
106-07. According to Tomici, once on the phone with the student, she instructed him "that Ms.
[Rosato-] Lopes wanted to see a source book by the end of the day and that he would have to
drop it off in my classroom before he left homeroom." !d. She denies that she told the student
"to try to work with the sourcebook to indicate that he had done some work on a certain article"
or that she "coach[ed] him in how to avoid showing that he was plagiarizing." !d. at 108.

10

There is no dispute that after the student got off the phone, he returned to his seat and
resumed taking notes on the computer-printed paper while other students were engaged in other
activities. Def. 56.1 ~ 70. After some time during which the student was "writing very quickly,"
Oliveri confiscated the computer-printed paper and the student's sourcebook, and called RosatoLopes. Rosato-Lopes Dep. 15, 23; Def. 56.1

~~

70, 75. When Rosato-Lopes met with the

student later that day, "[h]e admitted to plagiarizing the work" and "explained that Ms. Tomici
told him that she would help him get out of trouble by giving him the chance to put work into his
sourcebook." Klepfish Decl. Exs. X (Mem. from Rosato-Lopes to Santos, dated Mar. 26, 2009),
CMIECF No. 27-25.
After Tomici spoke to the student on the phone, she felt ill, left her classroom, and went
to the nurses' office. Tomici Dep. 113. When she arrived at the nurses' office, two emergency
medical technicians ("EMTs") were there responding to an emergency call involving a student.
Rosato-Lopes Dep. 35-36. Tomici "nearly fainted" and "hit [her] head on the wall." Tomici
Dep. 115. While the two EMTs examined her, Tomici claims to have heard the EMTs remark
"we are taking her" before placing her in a wheelchair and bringing her to the hospital. Tomici
Dep. 114-16.
As indicated by the EMT's "prehospital care report," Tomici's presumptive diagnosis
was anxiety. Klepfish Decl. Ex. W (FDNY Prehospital Care Report, dated Mar. 25, 2009),
CMIECF No. 27-23. Tomici told the EMTs that she had been previously diagnosed with
anxiety, felt tingling in her fingers, believed she was going to pass-out, and had trouble
breathing. Id. She told the EMTs that "at work they harass [me]." ld.
On March 25, 2009, after learning about the plagiarism incident, Principal Santos wrote a
note, to be hand-delivered to Tomici by his assistant, Laura Bodaro, requesting that plaintiff

11

"meet with me ... to discuss an allegation of professional misconduct." Def. 56.1

~

84. He

intended to speak to her about the plagiarism incident. Bodaro has not provided a deposition, but
Rosato-Lopes states that, once in possession of Santos's note, Bodaro advised Tomici by
telephone that she was bringing her a note. Rosato-Lopes Dep. 36-37; Santos Dep. 105. The
note was never delivered because Tomici "refused to accept [it]" from Bodaro. Id. Asserted by
defendant-and disputed by plaintiff--is that Tomici left her classroom after learning from
Bodaro that a note was en route to Tomici from Santos. Def. 56.1

~

87.

Tomici admits that she told the student accused of plagiarism to "take his draft and write
down the parts he didn't plagiarize in his sourcebook" but denies aiding the student in a scheme
to avoid getting caught for plagiarism. Tomici Dep. 111. She also denies refusing acceptance of
the note from Bodaro, contending that Bodaro arrived with the note "when the EMTs were
carrying me out" and the EMTs "pushed" Bodaro away, preventing delivery. Tomici Dep. 116.

I. Request for FMLA Leave
Tomici was taken to Wyckoff Hospital in Brooklyn by the EMTs. Def. 56.1

~

95. She

was evaluated for "syncope," which is "a temporary loss of consciousness due to the sudden
decline of blood flow to the brain." See Nat'l Inst. ofNeurological Disorders and Stroke, Nat'l
Insts. of Health, "NINDS Syncope Information Page,"
http://www.ninds.nih.gov/disorders/syncope/syncope.htm (last visited Dec. 12, 2012). -

She checked out of Wyckoff hospital on March 26, 2009,
Tomici Dep. 118.

12

On March 26th or 27th, plaintiff contacted the payroll secretary at I.S. 93, Elizabeth
DePergola, and explained that "I need time off and ... asked her to explain the protocol" for
requesting time off. Tomici Dep. 129. On the phone, DePergola informed Tomici that she could
take a combination of Cumulative Absence Reserve ("CAR") and grace time-i.e., paid sick and
personal days-and that "if she passed the 30 days [limit for CAR and grace time] she will need
to fill out an OP-160 [form] and FMLA application." Klepfish Decl. Ex. KK (Email from
DePergola to Unknown Recipient, undated), CMIECF No. 27-37.
At 9:53 a.m. on March 27th, DePergola emailed Tomici:
The purpose of this e-mail is for me to clarify your GRACE Period. Family
Medical Leave Act (FMLA) starts the minute you start using your CAR days,
borrow days, and/or Grace Period (this is the paid portion ofFMLA). All
absences for sick time must be certified. The unpaid potion [sic] of your FMLA
leave starts after your Grace Period is up. I need proper medical documentation
to confirm your leave. FMLA is only for 12 weeks.
I need to know if you are planning on returning after your GRACE period, so I
can code you correctly.
Klepfish Decl. Ex. LL (Email from DePergola to Tomici, dated Mar. 27, 2009), CMIECF No.
27-38. DePergola included in her email the codes for when an employee plans to return to work
following her grace period and when an employee plans not to return to work following her
grace period. !d.
Nearly two hours later, Tomici replied to DePergola's email and notified her that "I
cannot tell you if I will return [after my grace period] because that is up to my doctor to decide
based on my treatment. . . . You will receive a letter on Monday that certifies my leave during
the grace period." Klepfish Decl. Ex. MM (Email from Tomici to DePergola, dated Mar. 27,
2009), CMIECF No. 27-39. At this point, Tomici and DePergola had a mutual understanding
that Tomici wanted to take her grace period through the end of April. Def. 56.1

13

~

115.

On April 1, 2009, Tomici submitted to DePergola a doctor's note but was advised by
DePergola on the same day that the note was "not acceptable." Def. 56.1 ~~ 117-18. The note
sought four weeks leave for Tomici commencing March 24, 2007-that is, one day before
Tomici left I.S. 93 with the EMTs-and referred to a doctor's visit on that date. Def. 56.1 ~ 119.
The note also lacked any medical diagnosis.
On or about April23, 2009, Tomici submitted a second doctor's note stating that "she
continues to be symptomatic and is not medically able to return to work." Klepfish Decl. Ex.

QQ (Letter from Dr. Vinod K. Dhar, MD, dated Apr. 23, 2009), CMIECF No. 27-43. It
recommended an additional nine weeks ofleave. !d. On the same day, Tomici submitted a
completed form OP 160 for Leave for Restoration of Health from April 1, 2009 through June 24,
2009. Klepfish Decl. Ex. RR (Form OP 160, dated Apr. 23, 2009), CMIECF No. 27-44.
By letter dated June 12, 2009, the DOE Leave Office approved plaintitrs request for
grace period leave from March 26, 2009 through April30, 2009. Klepfish Decl. Ex. TT (Ltr.
from DOR HR Connect to Tomici, dated June 12, 2009), CMIECF No. 27-46.

J. Termination
On March 26, 2009, the day after Tomici's last day at I.S. 93, Rosato-Lopes described in
a memorandum for Santos how, following her meeting with Tomici on March 25th, Tomici
called Oliveri's classroom and spoke to the student accused of plagiarism. Klepfish Decl. Ex. Y
(Mem. from Rosato-Lopes to Santos, dated Mar. 26, 2009), CMIECF 27-25. The thrust of the
memorandum was that the student, when confronted, "admitted to plagiarizing the work" and
"explained that Ms. Tomici told him that she would help him get out of trouble by giving him the
chance to put work into his sourcebook." Id. Requesting that Santos "[p]lease note that
[Tomici's conduct] is indicative of a pattern," Rosato-Lopes commented that she had recently

14

observed, in retrieving the work folders for two students transferred out ofTomici's class, that
"[t]he folders lacked the appropriate evidence of student work or feedback." !d.
On March 31, 2009, while Tomici was on leave, Santos sent her by certified mail a letter
requesting that she meet with him on Friday, April3, 2009 "to discuss an allegation of
professional misconduct." Klepfish Decl. Ex. DD (Ltr. from Santos to Tomici, dated Mar. 31,
2009), CMIECF 27-30. "Due to the disciplinary nature of the meeting," Santos informed Tomici
of her right to bring her union representative. Id. He explained that, "[i]fyou are not present for
this meeting, I will weigh my findings and make my decision in your absence." !d. Tomici
received the letter but did not show up for the meeting. Klepfish Decl. Ex. EE (Ltr. from Santos
to Tomici, dated Apr. 6, 2009), CMIECF 27-31.
By letter dated April 6, 2009, Santos summarized his findings, reached in Tomici's
absence, regarding the plagiarized work. Id. He concluded that Tomici:
engaged in professional misconduct when [she] interfered with an investigation
concerning plagiarism and deliberately encouraged [the student] to place material
in his sourcebook to make it appear he had done the work by himself. These
findings also indicate an attempt to make it appear as though [she] had been
working with [the student] toward completion of a writing project when in fact
[she] had not.

ld. Santos based his fmdings on interviews with the student, Oliveri and Rosato-Lopes. Id. He
informed Tomici, in the letter, that "[t]his misconduct may lead to further disciplinary action
including unsatisfactory rating and/or termination of your probationary term." Id. On the same
day, Santos completed his annual performance review ofTomici for the 2008-2009 school-year.
Klepfish Decl. Ex. FF (Annual Professional Performance Review 2008-2009, dated Apr. 6,
2009), CM!ECF 27-32. He rated her "unsatisfactory" for the year and recommended
"discontinuance of probationary service." !d.

15

On April7, 2009, Community Superintendent Catherine M. Powis wrote Tomici to
inform her that "on May 7, 2009, I will review and consider whether your services as a
probationer be discontinued as of the close of business May 7, 2009." Klepfish Decl. Ex. GG
(Ltr. from Powis to Tomici, dated Apr. 7, 2009), CMIECF 27-33. On May 7, 2009, Community
Superintendent Powis made effective the termination ofTomici's probationary period and
terminated her temporary teaching license. Klepfish Decl. Ex. HH (Ltr. from Powis to Tomici,
dated May 7, 2009), CMIECF 27-34.

K.

Review

Administrative review ofTomici's termination followed. On May 14, 2010, the
Chancellor's Committee in the DOE Office of Appeals and Reviews held a hearing "to review
the cumulative ... rating of unsatisfactory for the period ending April 6th, 2009 and to review
the recommendation to discontinue service for [plaintiff] effective as of May 7th, 2009." Pl.
Decl. Ex. 5 (Tr. of Review ofRec. to Discontinue Probationary Service for Loredana Tomici,
May 14, 2010), CMIECF No. 44-5, at 4. Present at the hearing was Santos, Tomici and her
union representative, who had an opportunity to cross-examine Santos on the record. !d. at 5.
The Chancellor's Committee "unanimously concur[ed] with the recommendation to rate
[Tomici] 'Unsatisfactory' [but] the Committee d[id] not concur with the recommendation to
discontinue probationary service." De f. 56.1

~

108.

After reviewing the Chancellor's Committee findings, Community Superintendent
Madelene S. Chan reaffirmed, in a letter dated January 6, 2011, both Tomici's unsatisfactory
rating and discontinuance of probationary service as ofMay 7, 2009. Klepfish Decl. Ex. JJ (Ltr.
from Chan to Tomici, dated Jan. 6, 2011), CMIECF 27-36.

16

Tomici did not commence a proceeding under Article 78 of the New York Civil Practice
Law to challenge any of the DOE's disciplinary actions. See Summ. J. Hr'g Tr. 5, Dec. 17,
2012.

L. Animus
1. Discrimiuatory Comments
Plaintiff contends that several of the supervisors at l.S. 93 made discriminatory
statements to her. These comments include:

•
•

In a meeting with Santos and Wright, Wright told Tomici "shut up little girl you are
on probation and you will do as you were told"; he also told her she "didn't have
rights" and "should keep (her] mouth shut" id. , 124;

I
I
2. Differential Treatment of Others
Tomici knows of"two or three" other teachers at l.S. 93 who returned to teaching-

Tomici Dep. 65. She testified that none of them were harassed by the supervisors at

l.S. 93 upon their return to work. Id.

•

Tomici did not recall when the comment was made or if there was any other harassment

of that teacher. I d.

17

III.

Procedural History

In March 2011, plaintiff filed a complaint with the United States Department of Labor,
Wage and Hour Division, alleging discrimination based on her rights under the FMLA. Pl. Decl.
Ex. 6 (DOE Resp. to U.S. Dep't of Labor, Wage and Hour Div.), CMIECF No. 38-6, at 8 n.3. A
copy of that complaint has not been filed with the court.
Tomici commenced the instant action on May 4, 2011. Com pl., May 4, 2011, CMIECF
No. 1. An amended complaint was filed on July 28, 2011. Am. Compl., July 28, 2011, CMIECF
No.10.
She served the DOE with a notice of claim on August 8, 2011. Def. 56.1 ~ 138. In her
notice of claim, Tomici characterized it as one "for unlawful termination in violation of the
" Klepfish Decl. Ex.

Family Medical Leave Act and

VV (Personal Injury Claim Form, dated July 28, 2011), CMIECF No. 27-48, at 2.

IV.

Summary Judgment Standard

Summary judgment is appropriate if "there is no genuine issue as to any material fact and
if the moving party is entitled to a judgment as a matter of law." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250, (1986); see also Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d

1, 5 (2d Cir.1999). The burden rests on the moving party to demonstrate the absence of a
genuine issue of material fact. Goenaga v. March of Dimes Birth Defects Found., 51 F .3d 14, 18
(2d Cir.1995); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In considering
whether no genuine issue of material fact exists, all reasonable inferences are drawn in a light
most favorable to the non-moving party. Vivenzio, 611 F.3d at 106.
Where, as here, the non-moving party bears the burden of proof at trial, it is incumbent
upon that party to identify specific admissible evidence demonstrating a genuine issue for trial.

18

This evidence may not consist of"mere conclusory allegations, speculation or conjecture."
Cifarelli v. Viii. of Babylon, 93 F .3d 4 7, 51 (2d Cir .1996).

"A trial court must be cautious about granting summary judgment to an employer when,
as here, its intent is at issue." Gallo v. Prudential Resid. Services, 22 F.3d 1219, 1224 (2d Cir.
1994). "[A]ffidavits and depositions must be carefully scrutinized for circumstantial proof
which, if believed, would show discrimination." !d. Summary judgment nonetheless "remains
available to reject discrimination claims in cases lacking genuine issues of material fact."
Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 40 (2d Cir. 1994).

V.

State and City Claims Dismissed

Tomici asserts claims for discrimination

and medical leave

under the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. L. § 296, and New
York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code§ 8-101, et seq. DOE
submits that these claims must be dismissed because Tomici failed to comply with the notice of
claim requirements ofNew York Educational Law§ 3813. Def.'s Mem. ofL. in Supp. oflts
Mot. for Summ. J. ("Def. Mem."), CMIECF No. 29, at 8.

A. Law
Under Section 3831, no action or proceeding may be brought against any school district
"unless a written verified claim upon which such ... action is founded was presented to the
governing body of said district or school within three months after the accrual of such claim."
N.Y. Educ. Law§ 3813(1); see also Bucalo v. East Hampton Union Free Sch. Dist., 351 F.
Supp. 2d 33, 34-35 (E.D.N.Y. 2005). Service of a notice of claim to the proper "governing
body" of the school is a condition precedent to any action against a school district. See
Parochial Bus Sys., Inc. v. Bd. ofEduc. ofNY., 60 N.Y.2d 539,547 (1983). The party bringing

19

suit bears the burden of"plead[ing] and prov[ing] compliance with the requirements of§ 3813."
Grennan v. Nassau Cnty., No. 04-CV-2158, 2007 WL 952067, at *17 (E.D.N.Y. Mar. 29, 2007).
Failure to satisfy Section 3831 's requirements is "fatal" to a claim filed against a school board
under state or city law, regardless of whether the claim is brought in state or federal court. !d.;
Smith v. NY. City Dep't ofEduc., 808 F. Supp. 2d 569, 578 (S.D.N.Y. 2011).
For purposes of complying with the notice of claim provision, a claim against a school
district accrues "when it matures and damages become ascertainable." Pope v. Hempstead
Union Free Sch. Dist. Bd. ofEduc., 598 N.Y.S.2d 814, 816 (2d Dep't 1993) (internal citations
omitted). "[I]t is well established that the term 'claim accrued' is not necessarily equatable with
the term 'cause of action accrued'." !d. See also Field v. Tonawanda City Sch. Dist., 604 F.
Supp. 2d 544, 572-73 (W.D.N.Y. 2009) (collecting cases). "[A]n employment discrimination
claim accrues on the date that an adverse employment determination is made and communicated
to plaintiff, and the possibility that the determination may be reversed is insufficient to toll the
limitations period." Pinder v. City ofNew York, 853 N.Y.S.2d 312, 313 (1st Dep't 2008)
(emphasis added).
A charge filed with the Equal Employment Opportunity Commission and served on the
proper "governing body" of a school should satisfy the notice of claim provision. See, e.g.,
Brtalikv. South Huntington Union Free Sch. Dist., No. 10-CV-10, 2010 WL 3958430, at *5
(E.D.N.Y. 2010) (EEOC complaint satisfies Section 3813 notice "under the rare and limited
circumstances where the EEOC charge puts the school district on notice of the precise claims
alleged, is served on the governing board of the district (and not a different arm of the district),
and is served within the statutory time period").

20

It is assumed for purposes of this case that a complaint timely filed with the United States
Department of Labor, Wage and Hour Section and, in the instant case, served on the DOE,
satisfies Section 3 813 's notice of claim requirement.
While the court may, "in its discretion, extend the time to serve a notice of claim," any
such "extension shall not exceed the time limited for the commencement of an action by the
claimant against any district." N.Y. Educ. Law§ 3813(2-a). New York law imposes a one-year
statute of limitations for any action brought against a school district or board of education under
Section 3813. SeeN. Y. Educ. Law§ 3813(2-b).

B. Application of Law to Facts
Community Superintendent Powis sent Tomici a letter on May 7, 2009 confirming her
"discontinuance of probationary service and termination of ... license" as of that date. Klepfish
Decl. Ex. HH (Ltr. from Powis to Tomici, dated May 7, 2009), CMIECF 27-34. That is the day
on which plaintiff's claim accrued for purposes of Section 3813. The Community
Superintendent's decision was "final and ... when made, in all respects terminate[d) the
employment of a probationer under Education Law§ 2573(1)(a). "' Kahn v. New York City
Dep't ofEduc., 18 N.Y.3d 457,462 (2012) (quoting Matter of Frasier v. Bd. ofEduc. of City
Sch. Dist. ofCity ofNY., 71 N.Y.2d 763, 767 (1988)) (emphasis and bracketed material in

original). It is undisputed that the effect of the May 7, 2009 letter was to immediately take
plaintiff off DOE's payroll. See Summ. J. Hr'g Tr. 27 ("THE COURT: But when the
superintendent's letter came down, she was definitely not being paid[?] [PLAINTIFF'S
ATTORNEY]: That's correct. She was not being paid."). Her damages-measured if by
nothing else than loss of income-were ascertainable once termination was affirmed.

21

Any internal review pursued by plaintiff constituted '"an optional procedure under which
a teacher may ask [DOE] to reconsider and reverse [its] initial decision.'" Kahn, 18 N.Y.3d at
462 (quoting Matter ofFrasier, 71 N. Y .2d at 767) (emphasis in original). Plaintiff's filing of a
complaint with the United States Department of Labor, which-like any administrative review of
her firing-was optional, see 29 U.S.C. § 2617(a)(2); see also Manos v. Geissler, 377 F. Supp.
2d 422,427 (S.D.N.Y. 2005)-does not toll the accrual ofTomici's claim.
Tomici was required to serve a notice of claim on the DOE by August 7, 2009, which is
three months following the day her employment as a probationary teacher was terminated.
Plaintiff failed to do so. It is undisputed that plaintiff served a notice of claim on the DOE on
August 8, 2011. Def. 56.1

~

138. Plaintiff's amended complaint, filed on July 28, 2011, before

Tomici filed a notice of claim with the DOE on August 8, 2011, does not allege service of a
notice of claim upon the DOE. See Am. Compl., July 28, 2011, CMIECF No. 10. Because
Tomici's complaint with the United States Department of Labor was also filed after August 7,
2009, it cannot serve as a substitute for a Section 3813 notice of claim. Pl. Decl. Ex. 6 (DOE
Resp. to U.S. Dep't ofLabor, Wage and Hour Div., dated Apr. 15, 2011), CMIECF No. 38-6, at

8 n.3.
The court declines to grant Tomici an extension of time to file a notice of claim. No such
application was made until the filing of her papers in opposition to the DOE's motion for
summary judgment. Any extension cannot "exceed the time limited for the commencement of
an action by the claimant." N.Y. Educ. L. § 3813(2-a).
Tomici's state and city discrimination and retaliation claims are subject to a one-year
statute of limitations. !d.§ 3813; Amorosi v. S. Colonie Indep. Cent. Sch. Dist., 9 N.Y.3d 367
(2007). Neither the filing of a notice of claim on state and city human rights claims, Field v.

22

Tonawanda City Sch. Dist., 604 F. Supp. 2d 544, n. 21 (W.D.N.Y. 2009) (quoting Koehnlein v.
Jackson, 784 N.Y.S.2d 431,431 (4th Dep't 2004)) (internal quotations and alterations omitted).
nor the filing of a federal administrative charge tolls the statute of limitations, Smith v. Tuckahoe
Union Free Sch. Dist., No. 03 Civ. 7951, 2009 WL 3170302, at *11 n.9 (S.D.N.Y. Sept. 30,
2009) ("With respect to state law torts, the overwhelming weight of authority is that the filing of
an EEOC charge does not toll the statute of limitations.").
Tomici's state and city claims are time-barred and dismissed.
VI.

FMLA Claims

The FMLA confers upon an eligible employee the right to take unpaid leave for up to
twelve weeks for "a serious health condition that makes the employee unable to perform." 29
U.S.C. § 2612(a)(1)(D). It is "unlawful for any employer to interfere with, restrain, or deny the
exercise of or the attempt to exercise, any right provided" by the FMLA. 29 U .S.C. §
2615(a)(l ). Individuals are expressly provided with a private right of action in federal or state
court for both equitable relief and money damages against an employer that violates rights
protected by the FMLA. 29 U.S.C. § 2617(a)(2); see also Nevada Dep 't of Human Res. v. Hibbs,
538

u.s. 721 (2003).
Plaintiff brings two claims under the FMLA: (1) interference with her FMLA rights and

(2) retaliation for exercising her FMLA rights.

A. No Interference in Violation of the FMLA
1. Law

An FMLA interference claim must be supported by evidence that an "employer in some
manner impeded the employee's exercise of his or her right[s]" under the FMLA. Sista v. CDC
!xis NA., Inc., 445 F .3d 161, 176 (2d Cir. 2006) (citing King v. Preferred Technical Grp., 166

23

F.3d 887, 891 (7th Cir. 1999)); see also Serby v. New York City Dep 't ofEduc., No. 09-CV2727, 2012 WL 928194, at *6 (E.D.N.Y. Mar. 19, 2012); Reilly v. Rev/on, Inc., 620 F. Supp. 2d
524, 535 (S.D.N.Y. 2009).
The Court of Appeals for the Second Circuit has not ruled on the standard to be applied
to FMLA interference claims, Sista, Inc., 445 F.3d at 175-76, but district courts within the
Circuit have held that a plaintiff demonstrates a prima facie FMLA interference claim upon a
showing that: "(1) she is an eligible employee under the FMLA; (2) defendant[] constitute[s] an
employer under the FMLA; (3) she was entitled to leave under the FMLA; (4) that she gave
notice to defendant[] ofher intention to take leave; and (5) defendant[] denied her benefits to
which she was entitled by the FMLA." Esser v. Rainbow Advertising Sales Corp., 448 F. Supp.
2d 574, 580 (S.D.N.Y. 2006); see also Ridgeway v. Royal Bank ofScotland Group, No. 11-CV976, 2012 WL 1033532, at *6 (D. Conn. Mar. 27, 2012) (''weight of authority" within Second
Circuit adopts five-partprimafacie test for interference claims); Higgins v. NYP Holdings, Inc.,
836 F. Supp. 2d 182, 193 (S.D.N.Y. 2011) (applying five partprimafacie test for interference
claim); Debell v. Maimonides Med. Center, No. 09-CV-3491, 2011 WL 4710818, at *7
(E.D.N.Y. Sept. 30, 2011) (same); Casseus v. Verizon N.Y., Inc., 722 F. Supp. 2d 326, 336
(E.D.N.Y. 2010) (same); Reilly, 620 F. Supp. at 535 (same).
"Discouraging" an employee from exercising rights protected by the FMLA can amount
to a denial of benefits in violation of the FMLA upon a showing that "the employer's purported
acts of discouragement would have dissuaded a similarly situated employee of ordinary resolve
from attempting to exercise his or her FMLA rights." Reilly, 620 F. Supp. 2d at 535 (citing 29
C.F.R. § 825.220(b)); Serby, 2012 WL 928194, at *7; Golden v. New York City Dep't of

Environmental Protection, No. 06-CV-1587, 2007 WL 4258241, at *3 (S.D.N.Y. Dec. 3, 2007).

24

2. Application of Law to Facts
Tomici's interference claim essentially rests on a theory of discouragement. The parties
do not dispute-and it is assumed-that Tomici satisfies the first four elements of a prima facie
FMLA interference claim. At issue is the fifth element: whether plaintiff was so discouraged
from requesting FMLA leave that she was effectively denied her rights.

Golden v. New York City Department of Environmental Protection involved an FMLA
interference claim based on allegedly "demeaning comments and gestures" regarding the
plaintiffs "physical condition, thereby making [the plaintiff] believe his direct supervisor would
deny any requests for leave." Golden, 2007 WL 4258241, at *3. The court ruled that the
employer's allegedly objectionable comments and gestures could not support an FMLA
interference claim because the plaintiff did not identify any occasions on which he did not assert
FMLA rights because he "fear[ed] that leave would be denied." !d. While the court recognized
that the comments and gestures at issue were "unprofessional and hurtful," the plaintiff failed to
show "that the conduct would have deterred an employee of ordinary firmness, in a situation
similar to his, from requesting or taking FMLA leave." !d. See also Rev/on, 620 F. Supp. 2d at
537 ("[Supervisor's] complaint about the inconvenient date for [plaintiffs] cesarean section is
not something that would have deterred an employee of ordinary firmness, in a similar situation
from asserting his or her FMLA rights.").
Plaintiff orally requested information related to FMLA leave on March 26th or 27th of
2009 and submitted proper paperwork seeking FMLA leave on April29, 2009. She contends
that, following her initial correspondence with DePergola on March 27th, DePergola and the
supervisors at I.S. 93 deliberately delayed processing of plaintiffs leave forms in order to "b[uy]
them more time to send paperwork out to terminate me, by saying that I was being late in
handing in medical documentation, when in fact I wasn't." Tomici Dep. 133, 141-44.
25

Tomici first contacted DePergola, the school's payroll secretary by telephone, on March
26th or 27th seeking ''the protocol" for how to request medical leave. Tomici Dep. 129. Tomici
was informed verbally about her need to "fill out an OP-160 [form] and FMLA application."
Klepfish Decl. Ex. KK (Email from DePergola to Unknown Recipient, undated), CM/ECF No.
27-37. Tomici was then sent an email the morning of March 27th that reiterated the school's
need for "proper medical documentation to confirm your leave." Klepfish Decl. Ex. LL (Email
from DePergola to Tomici, dated Mar. 27, 2009), CM!ECF No. 27-38 (emphasis added). On
April1, 2009, Tomici submitted a doctor's note that lacked a diagnosis and was improperly
dated; she was informed by DePergola that she would have to submit another doctor's note
containing sufficient information to permit processing of a leave request. Def. 56.1

~~

117-18.

Tomici did not submit a second doctor's note or a filled-out OP-160 until about a month later, on
April23, 2009. Klepfish Decl. Ex. QQ (Letter from Dr. Vinod K. Dhar, MD, dated Apr. 23,
2009), CM/ECF No. 27-43; Klepfish Decl. Ex. RR (Form OP 160, dated Apr. 23, 2009),
CM!ECF No. 27-44.
No rational juror could find that DePergola's request for proper documentation
discouraged Tomici from taking FMLA leave. There is no dispute that DePergola conveyed,
both orally and in writing, the instructions Tomici would need to follow in order to take FMLA
leave. With regard to DePergola's rejection of the first doctor's note submitted by Tomici, there
is no evidence that there was anything unusual about DOE's need for a documented and specific
medical explanation for Tomici's absence. No occasion has been identified where Tomici
attempted to submit a properly filled-out OP-160 form and her FMLA request for leave was
denied. Her FMLA leave request was approved June 12, 2009. Klepfish Decl. Ex. TT (Ltr. from
DOR HR Connect to Tomici, dated June 12, 2009), CMIECF No. 27-46. Given the resources

26

and bureaucratic nature of the DOE, any delay in approving Tomici's properly-submitted FMLA
request was not unreasonable.
While the comments made by Santos, Fratangelo, Wright, and Rosato-Lopes may have
been insensitive and even demeaning during a time of significant mental anguish, Tomici
adduces no evidence that she delayed requesting FMLA leave before she began her extended
absence on March 26, 2009. Nothing in the record suggests that Tomici contemplated or
requested taking FMLA leave before March 26, 2009 or when any of the alleged
"discouragement" occurred.
In sum, there is no evidence that anyone told Tomici not to take FMLA leave or took any
actions that "would have deterred an employee of ordinary firmness, in a similar situation from
asserting his or her FMLA rights." Rev/on, 620 F. Supp. 2d at 537.
Tomici's FMLA interference claim is dismissed.

B. No Retaliation for Taking FMLA Leave
1. Law

The three-step McDonnell Douglas burden shifting analysis is applicable to FMLA
retaliation claims. Potenza v. City ofNew York, 265 F.3d 165, 168 (2d Cir. 2004). A plaintiff
bears the initial burden of making out aprimafacie case of retaliation under the FMLA. She
must first establish that (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 intent. !d.
A presumption of retaliation is created if the plaintiff meets her initial burden. Di

Giovanna, 651 F. Supp. 2d at 203. The burden of production then shifts to the defendant to state
a legitimate, non-discriminatory reason for the adverse employment action. Id. (citing Farias v.

27

Instructional Sys., 259 F.3d 91, 98 (2d Cir. 2001)). "The employer's burden is 'merely one of

production, not persuasion; it can involve no credibility assessment."' Esser, 448 F. Supp. 2d at
581 (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000)).
The burden shifts back to the plaintiffifthe defendant meets its burden of production. At
this stage, ''the presumption of discrimination drops out and the plaintiff has the burden to
establish by a preponderance of the evidence that the employer's stated reason was merely a
pretext for discrimination." !d. (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515
(1993)). To reach a jury, the plaintiff must show that "the employer's decision was motivated, at
least in part, by a discriminatory reason." Forde v. Beth Israel Med. Center, 546 F. Supp. 2d
142, 149 (S.D.N.Y. 2008) (citing Fields v. NY. State Office of Mental Retardation & Dev.
Disabilities, 115 F.3d 116, 120-21 (2d Cir. 1997)). "'[T]he plaintiffmay rely on evidence

presented to establish the prima facie case, as well as additional evidence, which may include
direct or circumstantial evidence of discrimination."' Cooper v. NY. State Nurses Assoc., 84 7 F.
Supp. 2d 437,447 (E.D.N.Y. 2012) (quoting Lee v. Heritage Health & Hous., Inc., 2009 WL
3154314 (S.D.N.Y. Sept. 30, 2009)).

2. Application of Law to Facts
a) Prima Facie Case
Existence ofthe first three prongs ofaprimafacie case of retaliation are not contested by
defendant. Def. Mem. 5-6. As to the fourth, defendant argues that no inference of retaliation can
arise because plaintiff"was on notice prior to her filing of the leave request on or about March
27, 2009 that her performance had deteriorated, that defendant considered her to have engaged in
misconduct and that her probation could be discontinued." !d. at 5.

28

A close temporal connection between plaintiffs exercise ofFMLA rights and the adverse
an employment action can establish an inference of retaliation under the first step of the

McDonnell Douglas test. See Espinal v. Goord, 558 F.2d 119, 129 (2d Cir. 2009) (citing Clark
Cnty. Sch. Distr. v. Breeden, 532 U.S. 268, 273-74 (2001)). While district courts have found a
gap of more than two months between protected activity and retaliation insufficient to draw an
inference of discrimination, see McGuire v. Warren, No. 05-CV-2632, 2009 WL 3963941, at
*12 (S.D.N.Y. Nov. 18, 2009) (citing cases), being terminated while on FMLA leave is generally
considered sufficient to satisfy the fourth prong of the prima facie case, see Reilly, 620 F. Supp.
2d at 538 (citing Martin v. Brevard Cnty. Public Sch., 543 F.3d 1261, 1268 (11th Cir. 2008)).

But cf Slattery v. Swiss Reinsurance America Corporation, 248 F.3d 87, 95 (2d Cir. 2001) (no
inference of retaliation when employee was dismissed one month after employer learned of
EEOC complaint because dismissal was "both part, and the ultimate product of, an extensive
period of discipline" spanning five months).
Evidence supporting an inference of retaliatory intent may be "anemic at best," and, at
this stage, plaintiffs "burden is 'minimal."' Serby, 2012 WL 928194, at *8. It is undisputed that
Tomici was terminated while on FMLA leave. Tomici has met her initial burden.

b) Legitimate, Nondiscriminatory Justification
Defendant proffers sufficient evidence to meet its burden of articulating a legitimate
nondiscriminatory reason for plaintiffs termination. The numerous documented instances of
Tomici's misconduct all predate her FMLA application and suffice to establish a
nondiscriminatory, bonafide reason for her termination. See Part II, D-H, supra.

29

c) Pretext
Defendant having satisfied its burden to provide a legitimate, nondiscriminatory
justification for terminating Tomici, the burden shifts back to Tomici to adduce admissible
evidence that would permit a reasonable jury to find that defendant's nondiscriminatory basis for
its adverse action is pretextual and that defendant's true intention was to retaliate for plaintiff's
FMLAleave.
Tomici "need not show that [DOE's] proffered reason was false or played no role in the
decision to terminate [her], but only that it was not the only reason, and that [her] tiling for
FMLA leave was at least one motivating factor." DiGiovanna, 651 F. Supp. 2d at 206.
Plaintiff fails to carry her burden. Her argwnent is that defendant's reasons for
disciplining and ultimately terminating her are pretextual because of the close proximity between
the adverse actions and

and affiliated absences." Pl. Mem. 10; Summ. J. Hr'g

Tr. 26-27. Combined with the alleged (but disputed) comments made by Tomici's supervisors
about the need for her ''to get

this evidence might arguably suggest

discriminatory intent on the basis of plaintiff's - - h u t not her exercise of rights
provided and protected by the FMLA.
Mere temporal proximity between Tomici's FMLA leave and termination is insufficient
to create a material dispute on the issue of pretext. '"[S]omething more is required to show
evidence of discriminatory intent once defendants have articulated a legitimate reason for the
adverse action."' Jain v. McGraw-Hill Cos., Inc., 827 F. Supp. 2d 272, 278 (S.D.N.Y. 201 I)

(quotingBehringerv. Lavelle Sch.for the Blind, No. 08-CV-4899, 2010 WL 5158644, at *16
(S.D.N.Y. Dec. 17, 2010)). But the evidence does not show that anything more exists. None of
the alleged comments made by plaintiff's supervisors create a question of fact on the issue of
whether defendant's reasons for plaintiff's termination were pretextual and not actually
30

retaliatory; nor does any of the evidence establish that plaintiff was treated differently because

she took FMLA leave.
In light of the well-documented instances of plaintiffs poor job performance prior to her

request for FMLA leave, it cannot be shown that plaintiff's termination was connected to her
FMLAleave.
The FMLA retaliation claim is dismissed.

VII.

Conelusion

The case is dismissed.
No costs or disbursements are ordered.

Decem~r

19, 2012

Brooklyn, New York

31