Polanco v. Active Retirement Community, Inc. et al

Filing 61

OPINION & ORDER: SO ORDERED that the Report is modified as set forth herein and, as modified, the Report is accepted in its entirety and, for the reasons set forth herein and in the Report, inter alia, defts motion seeking summary judgment dismissin g plaintiffs claims in their entirety pursuant to Rule 56 of the Federal Rules of Civil Procedure is granted and plaintiffs claims are dismissed in their entirety with prejudice. The Clerk of the Court shall enter judgment in favor of defts and close this case. Ordered by Judge Sandra J. Feuerstein on 2/29/2016. (Florio, Lisa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------------X
JOSEFINA POLANCO,
Plaintiff,
- against-

FILED 
CLERK 

2/29/2016 2:54 pm

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

OPINION AND ORDER
14-CV-4145 (SJF)(ARL)

ACTIVE RETIREMENT COMMUNITY, INC.
and PATTY O’HARA,
Defendants.
------------------------------------------------------------X
FEUERSTEIN, District Judge:
Pending before the Court are objections by plaintiff Josefina Polanco (“plaintiff”) to so
much of a Report and Recommendation (“the Report”) of the Honorable Arlene R. Lindsay,
United States Magistrate Judge, dated December 21, 2015, as (1) granted the branch of the
motion of defendants Active Retirement Community, Inc. and Patty O’Hara (collectively,
defendants) seeking to preclude a July 24, 2015 medical report from evidence pursuant to Rule
37 of the Federal Rules of Civil Procedure; and (2) recommends that defendants’ motion seeking
summary judgment dismissing plaintiff’s claims in their entirety pursuant to Rule 56 of the
Federal Rules of Civil Procedure be granted. For the reasons set forth, inter alia, the Report is
modified as set forth herein and, as modified, is accepted in its entirety.

I.

The Report
A.

Preclusion
1.

Standard of Review

28 U.S.C. § 636(b)(1)(A) permits a district judge to “designate a magistrate judge to hear
1

and determine any [nondispositive] pretrial matter,” not otherwise expressly excluded therein.
Any party may serve and file objections to a magistrate judge’s order on a nondispositive pretrial
matter within fourteen (14) days after being served with a copy thereof. Fed. R. Civ. P. 72(a).
Upon consideration of any timely interposed objections and “reconsider[ation]” of the magistrate
judge’s order, 28 U.S.C. § 636(b)(1)(A), the district judge must modify or set aside any part of
the order that “is clearly erroneous or contrary to law.” Id.; see also Fed. R. Civ. P. 72(a). A
party may not assign as error any defect in a magistrate judge’s order to which he or she has not
timely objected. Fed. R. Civ. P. 72(a).

2.

Preclusion of Evidence

Plaintiff contends that Magistrate Judge Lindsay erred in (1) precluding the July 24, 2015
medical report “on the basis that [d]efendants would otherwise be prejudiced[,]” (Plaintiff’s
Objections to Magistrate Judge’s Report and Recommendation [“Obj.”] at 2); and (2) “[r]efusing
to grant a continuance to [p]laintiff to correct certain procedural defects in the July 24, 2015
[medical report] to render it admissible and/or for further discovery relating to [p]laintiff’s
medical conditions[,]” (id. (citing Report at p. 23)).
“Matters concerning discovery generally are considered ‘nondispositive’ of the
litigation.” Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990). Thus,
sanctions imposed by a magistrate judge pursuant to Rule 37 of the Federal Rules of Civil
Procedure are “reviewable by the district court under the ‘clearly erroneous or contrary to law’
standard[,]” id., unless the sanction imposed disposes of a claim, i.e., striking a pleading with
prejudice, dismissing an action or preventing a defense. See, e.g. DeCastro v. Kavadia, 309
2

F.R.D. 167, 169 (S.D.N.Y. 2015); Raimey v. Wright Nat’l Flood Ins. Co., 76 F. Supp. 3d 452,
468 (E.D.N.Y. 2014); Carmona v. Wright, 233 F.R.D. 270, 276 (N.D.N.Y. 2006). Accordingly,
Judge Lindsay’s determination to grant the branch of defendants’ motion seeking to preclude the
July 24, 2015 medical report is reviewed under the “clearly erroneous or contrary to law”
standard applicable to nondispositive matters. See, e.g. Arnold v. Krause, Inc., 233 F.R.D. 126,
129 (W.D.N.Y. 2005).
Upon review, inter alia, of the Report, plaintiff’s objections and defendants’ response
thereto, plaintiff has not demonstrated that Magistrate Judge Lindsay’s determination to preclude
the July 24, 2015 medical report was clearly erroneous or contrary to law. Accordingly,
plaintiff’s objections with respect to that determination are overruled.

B.

Summary Judgment
1.

Standard of Review

Rule 72 of the Federal Rules of Civil Procedure permits magistrate judges to conduct
proceedings on dispositive pretrial matters without the consent of the parties. Fed. R. Civ. P.
72(b); see Marcella v. Capital Dist. Physicians’ Health Plan, Inc., 293 F.3d 42, 46 (2d Cir. 2002).
Any portion of a report and recommendation on dispositive matters to which a specific, timely
objection has been made is reviewed de novo. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
However, the court is not required to review the factual findings or legal conclusions of the
magistrate judge as to which no proper objections are interposed. See Thomas v. Arn, 474 U.S.
140, 150, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); Wagner & Wagner, LLP v. Atkinson,
Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010) (“[A] party
3

waives [judicial] review of a decision in a magistrate judge’s Report and Recommendation if the
party fails to file timely objections designating the particular issue.”) To accept the report and
recommendation of a magistrate judge to which no specific, timely objection has been made, the
district judge need only be satisfied that there is no clear error apparent on the face of the report.
See Fed. R. Civ. P. 72(b); Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162,
174 (2d Cir. 2000) (a court may review a report to which no timely objection has been interposed
to determine whether the magistrate judge committed “plain error.”)
Whether or not proper objections have been filed, the district judge may, after review,
inter alia, accept, reject, or modify any of the magistrate judge's findings or recommendations.
28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Sentry Ins. A Mut. Co. v. Brand Mgmt., Inc., 295
F.R.D. 1, 2 (E.D.N.Y. 2013); North Shore-Long Island Jewish Health Care Sys., Inc. v.
MultiPlan, Inc., 953 F. Supp. 2d 419, 424 (E.D.N.Y. 2013).

B.

Summary Judgment Standard

Initially, so much of the Report as cites to, inter alia, former Rule 56(c) of the Federal
Rules of Civil Procedure in setting forth the standard of review on a motion for summary
judgment is rejected. Presently, Rule 56(a) of the Federal Rules of Civil Procedure prescribes the
standard of review on a motion for summary judgment that was previously expressed in former
Rule 56(c).
Nonetheless, the standard of review on a motion for summary judgment remains the
same. See Fed. R. Civ. P. 56(a), advisory committee’s notes to 2010 amendment (“Subdivision
(a) carries forward the summary-judgment [sic] standard expressed in former subdivision (c),
4

changing only one word– genuine ‘issue’ becomes genuine ‘dispute.’ ‘Dispute’ better reflects the
focus of a summary-judgment [sic] determination.”) Specifically, Rule 56(a) provides, in
relevant part, that summary judgment is appropriate “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). Current Rule 56(c)(1) of the Federal Rules of Civil Procedure provides, in
relevant part:
“[a] party asserting that a fact cannot be or is genuinely disputed must support the
assertion by: (A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations. . . admissions, interrogatory answers, or other materials;
or (B) showing that the materials cited do not establish the absence or presence of
a genuine dispute, or that an adverse party cannot produce admissible evidence to
support the fact.”
Fed. R. Civ. P. 56(c)(1). Accordingly, Magistrate Judge Lindsay ultimately applied the correct
standard in reviewing defendants’ motion for summary judgment.

C.

Objections

Plaintiff alleges, inter alia, that Magistrate Judge Lindsay failed to construe the facts in
the light most favorable to her, as the non-moving party, and to accord her all reasonable
inferences, and, thus, erred in (1) concluding (a) that plaintiff “had failed to establish that she was
entitled to FMLA leave as the record was ‘devoid of any evidence suggesting she had a “serious
medical condition” that rendered her unable to perform her job[,][’]” (Obj. at 1 (quoting Report
at 26)), (b) that plaintiff cannot establish “that she was terminated under circumstances giving
rise to an inference of discrimination[,]” (id. at 2 (quoting Report at 34)), (c) that plaintiff
claimed no other adverse actions occurring under an inference of discrimination, and (d) that
5

“[t]he direct comment by Defendant O’Hara . . . was a ‘stray comment’ and ‘too far removed
from [p]laintiff’s discharge to create an inference of discrimination[,]” (id. (quoting Report at
35)); (2) “[d]ismissing the additional evidence on the record establishing [p]laintiff’s entitlement
to FMLA-protected leave, including the undisputed fact that she had undergone breast reduction
surgery and was still recuperating from that surgery when Defendants terminated her
employment[,]” (id. at 1-2); and (3) “[d]etermining that there is ‘no evidence in the record from
which a reasonable factfinder could infer that Defendants’ stated reason for firing [p]laintiff was
a pretext for retaliation[,]’” (id. at 2) (quoting Report at 31).

1.

FMLA Interference Claim

Plaintiff correctly contends that Magistrate Judge Lindsay erred in finding the August 15,
2011 unsworn medical note from Dr. Guerrero to be “inadmissible evidence that may not be
considered in proving [her] health condition on summary judgment.” (Report at 27). Although
“unsworn letters from physicians generally are inadmissible hearsay that are an insufficient basis
for opposing a motion for summary judgment[,]” Capobianco v. City of New York, 422 F.3d 47,
55 (2d Cir. 2005), where, as here, the document was also submitted and relied upon by the
moving party in seeking summary judgment, (see Declaration of Patty O’Hara [“O’Hara Decl.”]
Ex. D), the moving party has waived any objection to the admissibility of that document.1 See
Capobianco, 422 F.3d at 55. Indeed, neither side objected to the admissibility of the August 15,
2011 note.
1

To the contrary, defendants did not submit or rely upon the August 31, 2011 unsworn
medical note by Dr. Guerrero in their motion for summary judgment. Thus, Magistrate Judge
Lindsay correctly found the August 31, 2011 unsworn letter to be inadmissible hearsay.
6

Nonetheless, even considering the August 15, 2011 note, plaintiff still cannot establish
that she was entitled to leave under the FMLA because the evidence is insufficient to establish
that she had a “serious health condition” that rendered her unable to perform her job. See 29
U.S.C. § 2612(a)(1)(D), (b). The August 15, 2011 note, signed by “Dr. Roberto Guerrero Daniel,
plastic surgeon,” indicates only that plaintiff “was under a surgical procedure in [his] clinic
PlastiCenter in Dominican Republic on August 03rd. She will be available to return to her normal
activities on September 03rd. For any further information please contact me at the number
[provided therein].” (O’Hara Decl., Ex. D). The only reasonable inference to be drawn from that
note is that plaintiff underwent unspecified surgery by a plastic surgeon, i.e., plastic surgery, at a
“clinic” in the Dominican Republic on August 3, 2011; nothing therein suggests in any way that
the unidentified “surgical procedure” was medically necessary, or, in other words, anything but
cosmetic.
Moreover, the record is bereft of any admissible evidence suggesting that plaintiff’s
breast reduction surgery and “tummy tuck” were anything but cosmetic. In this regard,
Magistrate Judge Lindsay correctly found, inter alia, that plaintiff’s testimony regarding what her
various healthcare providers told her, offered to prove the truth of the matters asserted therein,
constituted inadmissible hearsay, see Fed. R. Evid. 801, 802; Porter v. Quarantillo, 722 F.3d 94,
97 (2d Cir. 2013) (“Only admissible evidence need be considered by the trial court in ruling on a
motion for summary judgment” (quotations, brackets and citation omitted)), and that nothing in
Dr. Bonheim’s medical report linked the degenerative changes in plaintiff’s spine “to her large
breasts.” (Report at 26).
The applicable regulation provides, in relevant part, that “[c]onditions for which
7

cosmetic treatments are administered (such as most treatments for acne or plastic surgery) are
not serious health conditions unless inpatient hospital care is required or unless complications
develop.”2 29 C.F.R. § 825.113(d) (emphasis added). Since the record is devoid of any evidence
from which it may reasonably be inferred that plaintiff required inpatient hospital care or
developed any complications following her breast reduction surgery and “tummy tuck,” plaintiff
failed to establish that she suffered a “serious health condition” and, thus, that she was entitled to
leave under the FMLA. Accordingly, the branch of defendants’ motion seeking summary
judgment dismissing plaintiff’s FMLA interference claim pursuant to Rule 56 of the Federal
Rules of Civil Procedure is granted and plaintiff’s FMLA interference claim is dismissed in its
entirety with prejudice.

2.

FMLA Retaliation Claim

Initially, plaintiff’s contention that Magistrate Judge Lindsay erred in determining that
she did not establish that the termination of her employment occurred under circumstances giving
rise to an inference of retaliatory intent misconstrues the Report. In fact, Magistrate Judge
Lindsay assumed, for purposes of the motion, “that [p]laintiff made out a prima face case of
FMLA retaliation,” (Report at 30), and “that the temporal proximity between the August 15,
2

Unlike subsection (a) which defines “serious health condition” for non-cosmetic
treatments to mean, in relevant part, “an illness, injury, impairment or physical or mental
condition that involves inpatient care as defined in § 825.114,” 29 C.F.R. § 825.113(a)
(emphasis added), subsection (d) of that regulation uses the phrase “inpatient hospital care.” 29
C.F.R. § 825.113(d) (emphasis added). Thus, although for non-cosmetic treatments, “[i]npatient
care means an overnight stay in a hospital, hospice, or residential medical care facility, including
any period of incapacity as defined in § 825.113(b), or any subsequent treatment in connection
with such inpatient care[,]” 29 C.F.R. § 825.114, that definition is seemingly not applicable to
cosmetic procedures, which require, in relevant part, “inpatient hospital care.”
8

2011 Medical Note and [p]laintiff’s termination, which occurred just days later, was enough to
raise an inference of retaliatory intent[,]” (Report at 31).
Magistrate Judge Lindsay correctly held (1) that defendants articulated a legitimate, nonretaliatory reason for the termination of plaintiff’s employment, i.e., that her employment “was
terminated because she failed to return to work after an approved vacation,” (Report at 31), see,
e.g. Polito v. Tri-Wire Eng’g Sol., Inc., 699 F. Supp. 2d 480, 494 (E.D.N.Y. 2010); Flores v. Buy
Buy Baby, Inc., 118 F. Supp. 2d 425, 431 (S.D.N.Y. 2000); (2) that plaintiff did not satisfy her
burden of showing that defendants’ reason was pretextual since “the only evidence [she] proffers
in support of her retaliation claim is the aforementioned temporal proximity[,]” (Report at 31)
(emphasis omitted); see, e.g. Abrams v. Dep’t of Public Safety, 764 F.3d 244, 254 (2d Cir. 2014)
(“[T]emporal proximity alone is not enough to establish pretext in this Circuit.”); El Sayed v.
Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010) (“The temporal proximity of events may
give rise to an inference of retaliation for the purposes of establishing a prima facie case of
retaliation. . . , but without more, such temporal proximity is insufficient to satisfy [the
plaintiff’s] burden to bring forward some evidence of pretext. . . . Indeed, a plaintiff must come
forward with some evidence of pretext in order to raise a triable issue of fact.” (citations
omitted)); and (3) that “[t]here is no other evidence in the record from which a reasonable
factfinder could infer that [d]efendants’ stated reason for [p]laintiff’s termination was pretextual
or that [d]efendants terminated [p]laintiff for attempting to exercise her FMLA rights[,]” (Report
at 31). Accordingly, upon de novo review of the Report, the operative pleadings, all motion
papers, plaintiff’s objections and defendants’ response thereto, so much of the Report as
recommends that the branch of defendants’ motion seeking summary judgment dismissing
9

plaintiff’s FMLA retaliation claim be granted is accepted in its entirety and, for the reasons set
forth in the Report, the branch of defendants’ motion seeking summary judgment dismissing
plaintiff’s FMLA retaliation claim pursuant to Rule 56 of the Federal Rules of Civil Procedure is
granted and plaintiff’s FMLA retaliation claim is dismissed in its entirety with prejudice.

3.

Race Discrimination Claim

Plaintiff contends, inter alia, that Magistrate Judge Lindsay “erred in limiting the adverse
actions merely to [her] discharge[,]” (Plf. Obj. at 17), since she also alleged that Hispanic
employees, like herself, were given “disproportionately heavy workload[s] and poor assignments
as compared to [their] white counterparts . . . ,” (id.); and that O’Hara “belittled her and her
Hispanic co-workers and mocked her accent and the way she spoke[,]” (id. at 18). Plaintiff also
contends that Magistrate Judge Lindsay erred in discounting a purported racist comment made by
O’Hara in 2010, more than one (1) year prior to plaintiff’s termination, as a “stray comment . . .
too far removed from [p]laintiff’s discharge to create an inference of discrimination.” (Report at
35).
Contrary to plaintiff’s suggestion, Magistrate Judge Lindsay did not overlook the other
alleged adverse actions. Rather, Magistrate Judge Lindsay correctly found that there was no
evidentiary support in the record for plaintiff’s contention that Hispanic employees were treated
less favorably than Caucasian employees in terms of, inter alia, their workloads and leave
requests, (see Report at 34-35); and that plaintiff’s other “evidence,” e.g., that O’Hara belittled
and mocked her, “is insufficient to raise an inference of discrimination with regard to [p]laintiff’s
termination,” (id. at 36), particularly since “the majority of workers under O’Hara’s supervision
10

were Hispanic and O’Hara hired a Hispanic to replace [p]laintiff after she was terminated.” (Id.)
See, e.g. Fleming v. MaxMara USA, Inc., 644 F. Supp. 2d 247, 261 (E.D.N.Y. 2009), aff’d, 371
F. App’x 115 (2d Cir. Mar. 25, 2010) (“Where . . . a replacement of the same protected class was
hired immediately following a plaintiff’s termination and prior to the filing of a discrimination
claim, it is . . . extremely difficult, if not practically impossible for a plaintiff to establish that her
termination occurred under circumstances giving rise to an inference of discrimination.”
(quotations omitted)). Absent any evidence supporting an inference that plaintiff’s termination
occurred on account of her race, and in light of the fact that she was immediately replaced by a
person of the same protected class, Magistrate Judge Lindsay correctly found that plaintiff has
failed to establish a prima facie case of race discrimination. Accordingly, upon de novo review
of the Report, the operative pleadings, all motion papers, plaintiff’s objections and defendants’
response thereto, so much of the Report as recommends that the branch of defendants’ motion
seeking summary judgment dismissing plaintiff’s race discrimination be granted is accepted in its
entirety and, for the reasons set forth in the Report, the branch of defendants’ motion seeking
summary judgment dismissing plaintiff’s race discrimination claim pursuant to Rule 56 of the
Federal Rules of Civil Procedure is granted and plaintiff’s race discrimination claim is dismissed
in its entirety with prejudice.3

3

Plaintiff has not objected to so much of the Report as recommends that the branch of
defendants’ motion seeking summary judgment dismissing her disability discrimination claim be
granted. There being no clear error apparent on the face of the Report with respect to that
recommendation, that branch of the Report is accepted in its entirety and, for the reasons set forth
in the Report, the branch of defendants’ motion seeking summary judgment dismissing plaintiff’s
disability discrimination claim pursuant to Rule 56 of the Federal Rules of Civil Procedure is
granted and plaintiff’s disability discrimination claim is dismissed in its entirety with prejudice.
11

III.

Conclusion
For the reasons set forth herein, the Report is modified as set forth herein and, as

modified, the Report is accepted in its entirety and, for the reasons set forth herein and in the
Report, inter alia, defendants’ motion seeking summary judgment dismissing plaintiff’s claims
in their entirety pursuant to Rule 56 of the Federal Rules of Civil Procedure is granted and
plaintiff’s claims are dismissed in their entirety with prejudice. The Clerk of the Court shall
enter judgment in favor of defendants and close this case.

SO ORDERED.
/s/
SANDRA J. FEUERSTEIN
United States District Judge
Dated: February 29, 2016
Central Islip, New York

12