Monaco v. DXC Technology et al

Filing 50

MEMORANDUM AND ORDER: For the reasons set out in the attached memorandum and order, defendants' motion for summary judgment, filed at 26 and re-filed at 47 , is granted. Ordered by Judge Rachel P. Kovner on 4/30/2021. (Kahwash, Sarah)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------x
NORA MONACO,
Plaintiff,

MEMORANDUM AND ORDER
18-CV-372 (RPK) (RML)

-againstDXC TECHNOLOGY SERVICES, LLC,
and COMPUTER SCIENCES
CORPORATION,
Defendants.
----------------------------------------------------x
RACHEL P. KOVNER, United States District Judge:

Plaintiff Nora Monaco brings this action under the Family and Medical Leave Act
(“FMLA”), 29 U.S.C. § 2601 et seq., against her former employer, Computer Sciences
Corporation (“CSC”), and its parent company, DXC Technology Services, LLC (“DXC”).
Plaintiff claims that CSC violated the FMLA by terminating her employment in retaliation for
taking FMLA leave, and that DXC is also liable for the violation as CSC’s successor-in-interest.
Defendants have moved for summary judgment. They contend in relevant part that plaintiff’s
employment was terminated as part of a reduction in force, and that plaintiff has not put forward
evidence from which a jury could infer that this nonretaliatory explanation was pretextual. As
explained below, defendants’ motion for summary judgment is granted.
BACKGROUND
CSC provides information technology products and services to private-sector industries,
including the telecommunications industry. See Defs. Rule 56.1 Statement of Facts ¶ 1 (“Defs.
56.1”) (Dkt. #25-2); Pl. Rule 56.1 Counterstatement of Facts ¶ 1 (“Pl. 56.1”) (Dkt. #44-1). Plaintiff
Nora Monaco worked for AT&T as a computer programmer until April 2000, when CSC entered
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into an outsourcing agreement with AT&T. Pl. 56.1 ¶¶ 5-7; Dep. of Nora Monaco at 36:7-16,
40:20-41:19 (“Monaco Dep.”) (Dkt. #28); Dep. of Joseph Zipp at 21:19-24:16 (“Zipp Dep.”) (Dkt.
#27-1). Under the outsourcing agreement, plaintiff and many other former AT&T employees were
offered and accepted positions at CSC. Pl. 56.1 ¶¶ 6-7, 13; Monaco Dep. at 40:20-41:19. Plaintiff
continued to support the AT&T account as a computer programmer throughout her employment
at CSC. Pl. 56.1 ¶¶ 13, 17; Monaco Dep. at 29, 36, 40-41, 52.
In 2002, plaintiff began reporting to Joseph Zipp. Pl. 56.1 ¶ 19. Zipp had also transitioned
from AT&T to CSC after the companies entered into the outsourcing agreement. Id. ¶ 11. Later,
he assumed managerial responsibility over an applications group of which plaintiff was a member.
Id. ¶¶ 11, 19; Zipp Dep. at 26-29. Zipp originally managed six employees, including plaintiff. Pl.
56.1 ¶ 19; Zipp Dep. at 29-30, 55, 74-75. Under the outsourcing agreement, however, CSC was
required to reduce the costs on the AT&T account every year. As a result, there were regular
reductions in force at CSC. Pl. 56.1 ¶¶ 8-9, 24-26; Zipp Dep. at 30-33, 49-51, 54-64; Monaco
Dep. at 70-71, 110-112. Zipp’s group was subject to multiple reductions in force. Pl. 56.1 ¶ 26;
Zipp Dep. at 49-50, 54-64. Before each one, Zipp’s manager asked him to rank his direct reports
according to performance, criticality to the business, and job skills. Pl. 56.1 ¶ 27; Zipp Dep. at 4445, 119-124.
Plaintiff requested leave under the Family and Medical Leave Act multiple times during
her employment at CSC. In 2008, plaintiff was approved for FMLA leave in connection with the
birth of her children. Pl. 56.1 ¶ 34; Zipp Dep. at 86:11-18. In 2014, plaintiff again sought leave
to care for her mother, who could no longer cook, bathe, or climb stairs without help. Pl. 56.1 ¶¶
35-38; Monaco Dep. at 12-21, 24-25. Plaintiff told Zipp that she intended to request FMLA leave,
and Zipp, who had no authority to approve or deny such a request, directed plaintiff to contact

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human resources. Pl. 56.1 ¶¶ 33, 38; Monaco Dep. at 75-87; Zipp Dep. at 86:5-87:17. Plaintiff
was approved for the leave and cared for her mother from June to September 2014. Pl. 56.1 ¶ 38.
Twice more, in 2015 and 2016, plaintiff applied for FMLA leave. Plaintiff’s application was
approved each time, and she took leave to care for her mother from June to September 2015 and
from June to September 2016. Id. ¶¶ 46, 50; Monaco Dep. at 91:2-92:17, 101:9-103:19.
Zipp and plaintiff interacted while plaintiff was on FMLA leave. The parties offer different
accounts of those interactions. Plaintiff states in an affidavit that when she took FMLA leave in
2014, she told Zipp that “he could reach out to [her] with questions about any work” but “did not
say that [she] would be able to perform work.” Monaco Aff. ¶ 9 (Dkt. #33). Plaintiff claims that
Zipp nevertheless asked her to do work while she was on leave. Id. ¶ 10. According to plaintiff,
she agreed to do so because she believed her job depended on it. Ibid. Plaintiff adds that although
she “felt obligated” to agree, she ultimately did not work while on leave because she did not have
time. Ibid.
Plaintiff has also submitted four text messages and an email that Zipp and another
employee, Paul Hill, sent to plaintiff while she was on leave in 2015 and 2016. Id. ¶ 11; see id.,
Ex. 1 (Dkt. #33-1). In the messages, Zipp and Hill asked plaintiff questions about work, including
whether plaintiff could write “two test cases,” whether she could call a colleague about “csharp,”
and whether she approved a date for the deployment of a “migration project” “on the QT of
course.” Id. ¶ 11; see id., Ex. 1. Zipp also asked plaintiff, “how’s vacation?” before asking plaintiff
a question about “csharp.” Id. ¶ 12; id., Ex. 1 at 1. Plaintiff had told Zipp that she would work on
the migration project while she was on leave, even though Zipp responded that she should not feel
obligated to help. Pl. 56.1 ¶¶ 40, 51; Zipp Dep. at 91:3-93:11; Monaco Aff. ¶¶ 9-10.

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While plaintiff was gone, Zipp assigned plaintiff’s job responsibilities to other employees
with similar skillsets or knowledge, including an employee named Steven Petraglia. Upon
plaintiff’s return after each leave, her job responsibilities remained the same as before her leave or
increased. Pl. 56.1 ¶¶ 43-44, 48, 52; Zipp Dep. at 89:24-91:2; Monaco Dep. at 86:11-25, 98:22100:25, 106:5-25.
In January 2017, Zipp’s manager informed Zipp that his group would undergo another
reduction in force, and that two employees would be laid off. Pl. 56.1 ¶ 54; Zipp Dep. at 111. The
parties dispute what happened next. According to defendants, Zipp’s manager identified plaintiff
and another employee, Tammy Comello, as the individuals to be laid off. Defs. 56.1 ¶ 55; Zipp
Dep. at 111. Zipp testified that he expressed a preference for retaining both plaintiff and Comello.
Defs. 56.1 ¶¶ 56; Zipp Dep. at 111:23-112:8. But he testified that he decided to remove Comello
from consideration for layoffs because she was one of only two employees responsible for
managing “ITMS tables.” Defs. 56.1 ¶¶ 55-57; Zipp Dep. at 111-114. Zipp therefore replaced
Comello as one of the employees to be laid off with Joseph Marenda, whose responsibilities Zipp
could perform himself if necessary. Defs. 56.1 ¶ 57; Zipp Dep. at 112-113. Marenda had never
taken FMLA leave while he was employed by CSC. Defs. 56.1 ¶ 69; Pl. 56.1 ¶ 68; Decl. of Ira
Katz ¶ 10, Ex. 4 (“Katz Decl.”) (Dkt. #30-3).
Zipp testified that in contrast to Comello, plaintiff’s work could be divided among other
employees. Specifically, Zipp stated that plaintiff’s work could be handled by Zipp himself and
by Petraglia—an employee who had taken FMLA leave in the past and who was at the top of
Zipp’s employee rankings. Defs. 56.1 ¶¶ 57-59, 62-64, 68-69; Zipp Dep. at 113-119. Zipp also
testified that plaintiff was at the bottom of Zipp’s employee rankings for this reduction in force

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because while she was a “solid performer,” Zipp Dep. at 105:22, the remaining employees in
Zipp’s group were all top performers, see Defs. 56.1 ¶ 58; Zipp Dep. at 105, 113-115.
Plaintiff and Marenda were laid off. Defs. 56.1 ¶ 60. Defendants claim that plaintiff’s
termination had nothing to do with plaintiff’s choice to take FMLA leave. Id. ¶ 61; see Zipp Dep.
at 111-112.
Plaintiff, by contrast, argues that her termination was primarily motivated by her FMLA
leave. Plaintiff points to evidence that Zipp asked plaintiff to perform work during her FMLA
leave as evidence that Zipp had taken issue with her decision to take FMLA leave. Pl. 56.1 ¶ 45;
Monaco Dep. at 142:14-151:4; Monaco Aff. ¶¶ 9-13. Plaintiff also asserts that in 2016, John
Pennisi, a manager of a project to which plaintiff was assigned, told her that when considering
whom to layoff, Zipp asked Pennisi, “would you rather have [plaintiff] for 9 months a year or
David Gonzalez for 12 months a year?” Monaco Aff. ¶ 13; Monaco Dep. at 120:25-121:20.
Further, plaintiff disputes CSC’s reasons for keeping Comello, claiming that Comello had the same
performance scores as plaintiff and that Comello’s work was not as crucial to the group as Zipp
suggested. Monaco Aff. ¶¶ 15-17. Plaintiff does not dispute that five other members of Zipp’s
group had taken FMLA leave in the past, including Petraglia. Pl. 56.1 ¶ 68; Zipp Dep. at 81-83.
The parties agree that after plaintiff’s termination from CSC, plaintiff’s responsibilities
were primarily redistributed to Petraglia and Gonzalez. Pl. 56.1 ¶ 61; Zipp Dep. at 66-67, 70-71,
117-118. Both those employees had received better annual performance appraisals than plaintiff.
See Pl. 56.1 ¶ 63; Katz Decl. ¶¶ 11-13, Exs. 5-9.
Plaintiff has not been employed since she was terminated by CSC in January 2017. Pl.
56.1 ¶ 71; Monaco Dep. at 30:7-11. Zipp assisted plaintiff in her efforts to find a different role
within CSC, where plaintiff unsuccessfully sought two other positions. Pl. 56.1 ¶ 69; Monaco

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Dep. at 32:16-33:13. Plaintiff also applied for six jobs outside CSC, all in 2017. She received one
offer from a park in the Catskills, but ultimately declined that job. Pl. 56.1 ¶¶ 70-71; Monaco Dep.
at 30:12-35:4. Plaintiff did not apply for any other positions before filing suit. Pl. 56.1 ¶ 72;
Monaco Dep. at 34:24-35:4.
In April 2017, CSC merged into and became a wholly owned subsidiary of DXC. Pl. 56.1
¶ 2; Katz Decl. ¶ 3.
In January 2018, plaintiff filed this lawsuit against CSC and DXC. See Compl. ¶¶ 1-2 (Dkt.
#1). Plaintiff alleged that both CSC and DXC were her “employers” under the FMLA, and that
CSC had unlawfully terminated her in retaliation for exercising her FMLA rights. See id. ¶¶ 2839. Plaintiff seeks damages, attorney’s fees, and costs. See id. ¶ 2.
Defendants have moved for summary judgment. See Defs. Mem. of L. in Supp. of Mot.
for Summ. J. (“Defs. Br.”) (Dkt. #26-2). Among other arguments, defendants contend that plaintiff
has failed to create a genuine factual dispute as to whether her termination was retaliation for her
exercise of FMLA rights. Id. at 7-18. At the Court’s request, the parties filed supplemental briefs
on the admissibility of Pennisi’s statement to Zipp. See Order Dated Feb. 9, 2021; Letter Briefs
(Dkt. #45, #46).
STANDARD OF REVIEW
Summary judgment is appropriate when “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). A genuine issue
of fact exists if “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party,” and a factual dispute is material if it “might affect the outcome of the suit under
the governing law.” Frost v. New York City Police Dep’t, 980 F.3d 231, 242 (2d Cir. 2020). In
determining whether there is a genuine issue of material fact, the Court evaluates the whole record,

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resolving all ambiguities and drawing all permissible factual inferences in favor of the nonmovant. See ibid.; see also Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011). However, the “mere
existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there
must be evidence on which the jury could reasonably find for the plaintiff.” Jeffreys v. City of
New York, 426 F.3d 549, 554 (2d Cir. 2005) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 252 (1986)).
DISCUSSION
Plaintiff has not raised a genuine issue of material fact as to whether CSC’s termination of
plaintiff’s employment was retaliatory. Defendants are therefore entitled to summary judgment.
I.

Legal Standard
The FMLA grants eligible employees the right “to a total of 12 workweeks of leave during

any 12-month period . . . [i]n order to care for the spouse, or a son, daughter, or parent, of the
employee, if such spouse, son, daughter, or parent has a serious health condition.” 29 U.S.C.
§ 2612(a)(1)(C). The statute also makes it unlawful for an employer to retaliate against an
employee for exercising or attempting to exercise a right established by the FMLA. Id. § 2615(a);
see De Figueroa v. New York, 403 F. Supp. 3d 133, 153 (E.D.N.Y. 2019).
Plaintiff contends that defendants retaliated against her by terminating her for exercising
her FMLA rights. The parties frame this claim as arising under 29 U.S.C. § 2615(a)(2) and
§ 2615(b), see Defs. Br. at 7; Pl. Mem. of L. in Opp’n to Summ. J. at 7 (“Pl. Br.”) (Dkt. #32), but
those sections prohibit an employer from retaliating against an employee “for opposing any
practice made unlawful” by the FMLA, § 2615(a)(2), and from interfering with proceedings or
inquiries relating to an employee’s FMLA rights, see § 2615(b). Instead, “FMLA retaliation
claims like” plaintiff’s—“i.e. terminations for exercising FMLA rights by, for example, taking

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legitimate FMLA leave”—“are actionable under § 2615(a)(1).” Woods v. START Treatment &
Recovery Centers, Inc., 864 F.3d 158, 167 (2d Cir. 2017); see 29 U.S.C. § 2615(a).
Courts in this circuit evaluate FMLA retaliation claims under the burden-shifting approach
of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Graziadio v. Culinary Inst. of
Am., 817 F.3d 415, 429 (2d Cir. 2016); Potenza v. City of New York, 365 F.3d 165, 168 (2d Cir.
2004). To establish a prima facie case of FMLA retaliation, a plaintiff must put forward evidence
that “1) [s]he exercised rights protected under the FMLA; 2) [s]he was qualified for h[er] position;
3) [s]he suffered an adverse employment action; and 4) the adverse employment action occurred
under circumstances giving rise to an inference of retaliatory intent.” Graziadio, 817 F.3d at 429.
“If the plaintiff makes out a prima facie case” of FMLA retaliation, “the defendant must
demonstrate a legitimate, non-discriminatory reason” for its employment action. Ibid. “[I]f the
defendant does so, the plaintiff must then show that defendant’s proffered explanation is
pretextual.” Ibid. A plaintiff’s “burden at the prima facie stage is minimal,” and where a plaintiff
“does not argue that [defendants] failed to proffer a legitimate, nondiscriminatory explanation for
[their] adverse employment action,” the Second Circuit has deemed it “appropriate” to “proceed
directly to the third step of the McDonnell Douglas analysis.” Walsh v. New York City Hous.
Auth., 828 F.3d 70, 75-76 (2d Cir. 2016).
To survive summary judgment once a defendant has presented a legitimate explanation for
its employment action, a plaintiff must present “not simply some evidence, but sufficient evidence
to support a rational finding that the legitimate, non-discriminatory reasons proffered by the
defendant were false, and that more likely than not discrimination was the real reason for the
employment action.” Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000); see DiCesare
v. Town of Stonington, 823 F. App’x 19, 24 (2d Cir. 2020); Serby v. New York City Dep’t of Educ.,

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526 F. App’x 132, 135 (2d Cir. 2013). This standard is met if the employee’s protected conduct
was a “negative factor” in an employment action. See Woods, 864 F.3d at 169; 29 C.F.R.
§ 825.220(c); see also, e.g., Patel v. Long Island Univ., No. 17-CV-2170, 2020 WL 869125, at *4
(E.D.N.Y. Feb. 21, 2020); Chauca v. AdvantageCare Physicians, P.C., No. 18-CV-2516, 2019
WL 4247495, at *4 (E.D.N.Y. Sept. 6, 2019).
Retaliatory intent can be shown through direct evidence, such as actions or comments
showing retaliatory animus, or indirect evidence, such as evidence that the adverse employment
action occurred in close temporal proximity to the protected conduct or evidence of disparate
treatment among employees. Alexander v. Bd. of Educ., 107 F. Supp. 3d 323, 328-29 (S.D.N.Y.
2015), aff’d, 648 F. App’x 118 (2d Cir. 2016); see Graziadio, 817 F.3d at 430.
II.

Analysis
Plaintiff has failed to put forward evidence of pretext sufficient to avoid summary

judgment. She does not dispute that defendants have set forth a facially nondiscriminatory reason
for her termination—CSC’s reduction in force. See Pl. Br. at 9; see also Malena v. Victoria’s
Secret Direct, LLC, 886 F. Supp. 2d 349, 359, 361 (S.D.N.Y. 2012) (stating that a reduction in
force is a legitimate, nondiscriminatory reason for termination); Museau v. Heart Share Human
Servs. of New York, No. 12-CV-1851, 2014 WL 1277006, at *8 (E.D.N.Y. Mar. 27, 2014).
Consistent with the Second Circuit’s guidance in Walsh, the Court may therefore assume that
plaintiff has met her “minimal burden” of establishing a prima facie case of retaliation and proceed
directly to the issue of pretext. See Walsh, 828 F.3d at 75-76; see also, e.g., Patel, No. 17-CV2170, 2020 WL 869125, at *4; Ottley-Cousin v. MMC Holdings, Inc., No. 16-CV-577, 2019 WL
1994488, at *19 (E.D.N.Y. May 6, 2019).

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Turning to that prong of the FMLA analysis, plaintiff has not put forward evidence to
support a rational finding that the legitimate, nonretaliatory reason for plaintiff’s termination put
forward by CSC was pretextual. It is undisputed that CSC’s AT&T group had undergone several
reductions in force, causing the group to “steadily decline[]” in size. Pl. 56.1 ¶¶ 9, 26. And it is
undisputed that plaintiff was dismissed after CSC management again required Zipp to choose two
employees for termination. Id. ¶ 54; Pl. Br. at 5; see Museau, No. 12-CV-1851, 2014 WL 1277006,
at *8 (finding that termination based on a “funding shortage” was not pretextual because
“[p]laintiff was one of eight employees laid off in early 2012 as a result of the funding shortfalls”
and “[n]umerous other employees resigned, retired, or were terminated”). Plaintiff also does not
dispute that she was one of the lowest rating performers in Zipp’s group. See Pl. 56.1 ¶ 63. Nor
does she dispute that her work could be redistributed to other employees—and that her
responsibilities were indeed redistributed to existing employees after she was terminated. Id. ¶¶
55-59; see Barletta v. Life Quality Motor Sales Inc., No. 13-CV-2480, 2016 WL 4742276, at *5
(E.D.N.Y. Sept. 12, 2016) (finding no pretext where employer terminated plaintiff in an economic
downturn and “[p]laintiff was not replaced by a new hire after his termination as [other employees]
took over [p]laintiff’s responsibilities”).
Instead, plaintiff argues that defendants’ explanation for her termination is “contradictory”
because Comello was removed from the layoff list, whereas plaintiff was not. Pl. Br. at 9. But
whether CSC was correct to replace Comello on the layoff list with Marenda has minimal probative
value regarding whether CSC’s termination of plaintiff was retaliatory. Plaintiff was not the
employee terminated in place of Comello. See Defs. 56.1 ¶¶ 55-57; Zipp Dep. at 112-113; see
also Pl. Br. at 5-6. And plaintiff has not argued that her performance ratings were higher than
Comello’s or that plaintiff had specialized skills that made redistribution of her responsibilities

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impracticable, see Pl. Br. at 5, 8, akin to the skills involving ITMS tables that defendants assert
were CSC’s reason for retaining Comello, see Defs. 56.1 ¶¶ 55-57. Under these circumstances,
the fact that Marenda was terminated instead of Comello does not show a causal link between
plaintiff’s termination and her FMLA leave.
Moreover, several undisputed facts undermine plaintiff’s claim that CSC’s decision to
terminate her employment was retaliatory. For one thing, there is no dispute that at least five
employees under Zipp’s supervision had taken FMLA leave since 2009, and that Marenda, the
employee that was laid off at the same time as plaintiff, had never taken FMLA leave. Pl. 56.1 ¶
68; see Muhleisen v. Wear Me Apparel LLC, 644 F. Supp. 2d 375, 386 (S.D.N.Y. 2009) (finding
no retaliatory intent where plaintiff claimed she was terminated in retaliation for taking maternity
leave, in part because another woman employee, who had never taken maternity leave but whose
performance reviews were similar, was terminated in the same month). For another, plaintiff had
been reinstated to her position with the same responsibilities every time she took FMLA leave. Pl.
56.1 ¶¶ 43-44, 48, 52; see Kim v. Goldberg, Weprin, Finkel Goldstein, LLP, 862 F. Supp. 2d 311,
320-21 (S.D.N.Y. 2012) (finding no pretext where plaintiff’s allegations of discrimination were
“undermined” by the fact that after taking FMLA leave she “was reinstated in the same position
with the same title, responsibilities and pay” and was not terminated until four months after her
return).
Plaintiff also relies on two sets of statements in opposing summary judgment: several text
messages and emails that Zipp sent plaintiff about work while she was on FMLA leave, and
remarks that Zipp allegedly made to project manager Pennisi. See Pl. Br. at 9-10. But Zipp’s
communications to plaintiff while she was on FMLA leave do not create a genuine issue of material
fact as to whether CSC’s reasons for ending plaintiff’s employment were pretextual. Plaintiff

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emphasizes that Zipp asked plaintiff whether she approved a date for the deployment of a
“migration project” “on the QT of course.” Monaco Aff. ¶¶ 11-12; see id., Ex. 1 at 5. But plaintiff
does not dispute that she told Zipp he could reach out to her with work-related questions. Id. ¶ 9.
And while plaintiff testified that she agreed to work on the migration project while on leave
because she “felt obligated” to do so, id. ¶ 10, she admits that Zipp had told her that she should
not feel obligated to do work on the project, Pl. 56.1 ¶ 51; see Zipp Dep. at 91:24-93:11.
Plaintiff also points to a text message in which Zipp asked plaintiff, “how’s vacation?”
before asking plaintiff another question about work. Monaco Aff. ¶ 12; id., Ex. 1 at 1. But Zipp’s
characterization of plaintiff’s leave as “vacation” does not, without more, support a reasonable
inference that Zipp or others weighed plaintiff’s FMLA leave against her during the reduction in
force. Indeed, when plaintiff was asked in her deposition whether her “conclusion that [she was]
terminated in ’17 because of taking FMLA leave is based solely on [her] opinion,” plaintiff
answered, “Yes.” Monaco Dep. at 122:19-22. Such “speculations, generalities, and gut feelings,
however genuine, when they are not supported by specific facts, do not allow for an inference of
discrimination to be drawn.” Smalls v. Allstate Ins. Co., 396 F. Supp. 2d 364, 371 (S.D.N.Y.
2005).
Nor has plaintiff demonstrated a genuine dispute of material fact as to retaliatory intent
based on her allegations regarding remarks that Zipp made to project manager Pennisi. Plaintiff
alleges that in 2016, Pennisi told her that Zipp had asked Pennisi in connection with the staffing
of a project, “would you rather have [plaintiff] for 9 months a year or David Gonzalez for 12
months a year?” Monaco Aff. ¶ 13; Monaco Dep. at 120:25-121:20; see Pl. Br. at 9. Contrary to
defendants’ arguments, that statement does not appear to be inadmissible hearsay. See Fed. R.
Civ. P. 56(c)(1)(B), 56(c)(4) (stating that evidence on a motion for summary judgment must be

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“admissible” and that affidavits used to oppose summary judgment must “set out facts that would
be admissible in evidence”). A statement is not hearsay if it is “offered against an opposing party
and . . . made by the party’s agent or employee on a matter within the scope of that relationship
and while it existed.” Fed. R. Evid. 801(d)(2)(D). Pennisi’s statement appears to fall within that
hearsay exception because it was “within the scope” of Pennisi’s employment, as “an advisor or
other significant participant in the decision-making process that is the subject matter of the
statement.” Evans v. Port Auth. of New York & New Jersey, 192 F. Supp. 2d 247, 263 (S.D.N.Y.
2002) (quoting United States v. Rioux, 97 F.3d 648, 661 (2d Cir. 1996)); see Holleman v. Art
Crating Inc., No. 12-CV-2719, 2014 WL 4907732, at *25 (E.D.N.Y. Sept. 30, 2014).
Nevertheless, Zipp’s alleged statement to Pennisi in 2016 or before does not raise a genuine
issue of material fact as to whether CSC’s explanation for plaintiff’s 2017 termination was
pretextual. Plaintiff has offered no evidence connecting Zipp’s alleged statement regarding the
staffing of a particular project to plaintiff’s termination in 2017. She does not suggest that whether
she worked on the project in question had consequences for her performance ratings at CSC, for
example. Moreover, plaintiff stated in her deposition that she learned of the conversation in
question in January 2016—a full year before her termination. See Monaco Dep. at 120:25-121:20.
The apparent gap in time between Zipp’s alleged remark about the staffing of a particular project
and plaintiff’s termination attenuates any connection between the two events. See Tomassi v.
Insignia Fin. Grp., Inc., 478 F.3d 111, 115 (2d Cir. 2007) (“[T]he more remote and oblique the
remarks are in relation to the employer’s adverse action, the less they prove that the action was
motivated by discrimination.”), abrogated in part on other grounds by Gross v. FBL Fin. Servs.,
Inc., 557 U.S. 167, 177-78 (2009).

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Courts in this circuit have consistently held that similarly oblique remarks “are insufficient
to sustain a reasonable inference” of an employer’s pretext. Muhleisen, 644 F. Supp. 2d at 388
(statement “that plaintiff needed to return quickly from maternity leave” was “too ambiguous to
be probative” of discriminatory intent); Choi v. Ferrellgas, Inc., No. 17-CV-3518, 2020 WL
122976, at *10 (E.D.N.Y. 2020) (employer’s comment that he had “moved [plaintiff] into that spot
as a place holder and we will discuss her future when she returns from leave” was insufficient to
show pretext on summary judgment); Simmons v. Akin Gump Strauss Hauer & Field, LLP, No.
10-CV-8990, 2011 WL 4634155, at *5, *7-*9 (S.D.N.Y. Oct. 6, 2011) (granting summary
judgment to employer where supervisors told plaintiff she spent too much time out of the office to
develop her skills and client relationships, and that they were “looking forward to working with
[plaintiff] on an uninterrupted basis next year” before terminating her), aff’d, 508 F. App’x 10 (2d
Cir. 2013); cf. Ottley-Cousin, No. 16-CV-577, 2019 WL 1994488, at *18 (finding a material
factual dispute where employer said it was “unreal” that plaintiff was on leave; wrote in an email
that she “really [did not] want [plaintiff] back”; told plaintiff during the period of leave, “[f]rom
what I understand, you no longer work for this company”; and only two months passed between
plaintiff’s leave and the employer’s adverse action).
What’s more, plaintiff does not dispute that Zipp helped plaintiff in her efforts to find a
different role within CSC, see Pl. 56.1 ¶ 69; Monaco Dep. at 32:16-33:2, which casts further doubt
on plaintiff’s claim that Zipp recommended plaintiff’s termination with retaliatory intent.
Thomsen v. Stantec, Inc., 483 F. App’x 620, 623-24 (2d Cir. 2012) (affirming summary judgment
for employer on FMLA retaliation claim in part because plaintiff’s supervisor made “substantial
efforts” to find work from other offices within the company for plaintiff).

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Case 1:18-cv-00372-RPK-RML Document 50 Filed 04/30/21 Page 15 of 15 PageID #: 1753

In sum, plaintiff has failed to raise a genuine issue of material fact as to whether CSC’s
nonretaliatory explanation for the termination of her employment was pretextual. Defendants are
therefore entitled to summary judgment.
CONCLUSION
Defendants’ motion for summary judgment is granted.
SO ORDERED.
/s/ Rachel Kovner
RACHEL P. KOVNER
United States District Judge
Dated: April 30, 2021
Brooklyn, New York

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