Welch v. Columbia Memorial Physician Hospital Organization, Inc.

Filing 15

MEMORANDUM-DECISION and ORDER - That Columbia Memorial's 12 Motion for Summary Judgment is GRANTED. That Welch's complaint (Dkt. No. 1) is DISMISSED. That the Clerk close this case. Signed by Judge Gary L. Sharpe on 11/6/2015. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
ERNESTINE WELCH,
1:13-cv-1079
(GLS/CFH)

Plaintiff,
v.
COLUMBIA MEMORIAL
PHYSICIAN HOSPITAL
ORGANIZATION, INC.,

Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Cooper, Erving Law Firm
39 North Pearl Street, 4th Floor
Albany, NY 12207
FOR THE DEFENDANT:
Lombardi, Walsh Law Firm
187 Wolf Road, Suite 211
Albany, NY 12205

BRIAN W. MATULA, ESQ.

PAUL E. DAVENPORT, ESQ.
RICHARD P. WALSH, JR., ESQ.

Gary L. Sharpe
District Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Ernestine Welch commenced this action against defendant
Columbia Memorial Physician Hospital Organization, Inc. alleging

violations of the Americans with Disabilities Act1 (ADA) and the Family and
Medical Leave Act2 (FMLA). (See generally Compl., Dkt. No. 1.) Pending
before this court is defendant’s motion for summary judgment. (Dkt.
No. 12.) For the reasons that follow, the motion is granted.
II. Background
A.

Facts3
Welch worked as a full-time phlebotomist at Columbia Memorial from

2001 to September 2011. (Def.’s Statement of Material Facts (SMF) ¶¶ 1,
40, Dkt. No. 12, Attach. 16.) Starting in 2010, she also worked as a per
diem phlebotomist at Bio-Reference Laboratory, which was affiliated with
Coxsackie Correctional Facility, for two and one-half hours two mornings
per week. (Id. ¶ 11; Dkt. No. 12, Attach. 7 at 23.)
On December 12, 2010, Welch injured her neck and shoulder in a
car accident. (Def.’s SMF ¶ 9.) Columbia Memorial granted Welch’s
requested FMLA leave as a result of that accident from December 16
through December 22, 2010. (Id. ¶ 10; Dkt. No. 12, Attach. 7 at 24.)

1

See 42 U.S.C. §§ 12101-12213.

2

See 29 U.S.C. §§ 2601-2654.

3

Unless otherwise noted, the facts are undisputed.

2

Although the record is not clear, it appears Welch then returned to work
full-time at Columbia Memorial. (Dkt. No. 12, Attach. 7 at 26-28.) Six
months later, in May 2011, Welch again requested FMLA leave for her
injuries from the car accident. (Id. at 37.) Welch sent medical notes from
Terry Meltz, her nurse practitioner, to the human resource department at
Columbia Memorial indicating that Welch required full-time leave for two
weeks. (Def.’s SMF ¶ 14; Dkt. No. 12, Attach. 1 at 1.)
According to Columbia Memorial, it was skeptical of Welch’s belated
request and sent her to an independent medical examination (IME) to
verify her injuries. (Def.’s SMF ¶ 15.) The IME doctor opined that Welch
was “[a]ble to work in a lab type situation in which there is limited physical
activity” and prescribed certain physical limitations. (Dkt. No. 12, Attach. 1
at 8-9.) Columbia Memorial obtained a second IME because the results of
the first IME conflicted with Meltz’s medical opinion. (Dkt. No. 13, Attach. 9
at 16; Def.’s SMF ¶ 17.) Dr. John Ioia conducted the second IME and
opined that Welch could work an eight hour day approximately four to five
days per week with some limitations. (Dkt. No. 12, Attach. 1 at 14.) In
Welch’s return to work statement, Dr. Ioia indicated that she could stand,
walk, or sit for four to six hours per day and carry a maximum of fifteen
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pounds. (Def.’s SMF ¶ 18; Dkt. No. 13, Attach. 4 at 2.)
After Columbia Memorial received the IME results, Kelly Sweeney,
the Director of Human Resources, informed Welch that she must return to
work full-time on June 27, 2011, and the hospital could accommodate the
limitations prescribed by Dr. Ioia. (Dkt. No. 12, Attach. 1 at 16.) Welch
returned and signed a temporary modified work assignment sheet that
memorialized Columbia Memorial’s accommodations. (Id. at 18; Def.’s
SMF ¶ 19.)
Robin Pascuzzi, Welch’s direct supervisor, arranged the schedules
for Columbia Memorial’s phlebotomists. (Def.’s SMF ¶ 3.) Dawn Perlin,
the laboratory director and Pascuzzi’s supervisor, approved those
schedules. (Id.; Dkt. No. 12, Attach. 5 at 11.) Before Welch’s May 2011
leave, she had a fixed schedule where she worked every other weekend in
the morning and on the weekdays except for Tuesdays. (Dkt. No. 12,
Attach. 5 at 25-26.) Pascuzzi knew that Welch also worked at BioReference Laboratory on Thursday mornings and permitted Welch to work
Thursday evenings to accommodate her schedule. (Id. at 27.) Pascuzzi
also knew that Welch attended school. (Id. at 26.) Days after Welch
returned from leave in June 2011, Pascuzzi changed her schedule by
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taking her off night shifts. (Id. at 28, 45; Dkt. No.12, Attach. 7 at 48-51.)
Pascuzzi explained that she discussed changing Welch’s schedule with
Perlin, and they decided to do so to assist Welch with her blood draws
because supervisors were not scheduled to work nights. (Dkt. No. 12,
Attach. 5 at 46.) Additionally, Perlin and Pascuzzi testified that Columbia
Memorial hired another full-time phlebotomist to work weekday evenings to
replace a full-time phlebotomist who left and to fill gaps in the schedule.
(Id. at 29-31; Dkt. No. 12, Attach. 6 at 23.) During this period, Welch
testified that Perlin made negative comments to her including, “Oh, you
decided to come to work today,” and her colleagues informed her about
negative comments Perlin made to them about her. (Dkt. No. 12, Attach. 7
at 114, 128.)
Three days after Welch returned from FMLA leave, she presented a
note from Meltz requesting a reduced work schedule of four hours per day
for two weeks. (Def.’s SMF ¶ 22; Dkt. No. 12, Attach. 1 at 20.) Welch
submitted a medical certification form from Meltz that noted that Welch had
“[o]ngoing neck and shoulder pain” and that her job “which entail[ed]
bending over patients aggravate[d] [her] symptoms.” (Dkt. No. 13, Attach.
5 at 4.) Perlin and Sweeney denied Welch’s request. (Id. at 2) Perlin
5

stated that Welch did not meet the FMLA requirements because of the
findings from the other IMEs. (Id.) Additionally, according to Columbia
Memorial, it could not accommodate Welch’s part-time request because
the laboratory shifts were eight hours long, and it could not cover the
remaining four hours of the shift. (Def.’s SMF ¶ 38.)
A week later, Welch again requested FMLA leave. (Dkt. No. 13,
Attach. 7.) Meltz recommended that Welch take full-time leave because
Columbia Memorial could not accommodate a part-time schedule. (Id. at
4; Dkt. No. 12, Attach. 4 at 65-66.) Meltz opined that Welch could not
bend her head or neck; nor could she lift over ten pounds. (Dkt. No. 13,
Attach. 7 at 3.) Meltz estimated that Welch would be absent for
approximately two to four weeks until she was cleared by an orthopedic
physician. (Id. at 4.) Sweeney approved the leave. (Id. at 2.)
Columbia Memorial calculated that Welch’s twelve-week FMLA leave
expired on August 25, 2011. (Dkt. No. 14, Attach. 1 ¶ 3(c).) Anticipating
the expiration of her FMLA leave, Welch requested non-FMLA leave in
which a health care provider concluded that Welch would need to work on
a part-time, reduced leave schedule for an additional six months. (Def.’s
SMF ¶ 28; Dkt. No. 13, Attach. 11 at 4.) On August 30, 2011, Welch
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submitted a doctor’s note that she would need to be out full-time through
September 13th. (Dkt. No. 12, Attach. 1 at 22.) Sweeney acknowledged
this request and notified Welch that she would be terminated if she did not
return to work on September 13th. (Id. at 24.)
In response, Welch informed Sweeney that her injury was ongoing,
and she could only work four hours per day. (Id. at 26.) Welch renewed
her request for part-time work and stated that “[i]f this cannot be
accommodated, I must submit my resignation effective immediately as I am
physically unable to work a full day at this time.” (Id.) In the same letter,
Welch stated that “I’m rescinding my resignation, I am requesting a perdiem status until my further treatment for injury is completed.” (Id.)
Sweeney responded and informed Welch that her “resignation has been
accepted.” (Id. at 28.)
B.

Procedural History
Welch commenced this action on September 3, 2013. (Compl.) In

her pleading, she alleges that Columbia Memorial denied her request for a
reduced leave, part-time schedule because of her serious health condition,
a benefit she alleges she was entitled to under the FMLA. (Id. ¶¶ 51-56.)
Additionally, Welch alleges that, as a result of exercising rights under the
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FMLA, she was retaliated against through adverse employment actions.
(Id. ¶ 57.) Welch also alleges that Columbia Memorial violated the ADA by
refusing to make reasonable accommodations for her disability,
discriminating against her on the basis of her disability by not hiring her for
a per diem position, and retaliating against her for engaging in protected
activity. (Id. ¶¶ 28-48.) Consequently, Welch seeks compensatory and
punitive damages, and attorney’s fees. (Id. at 8.) Following the conclusion
of discovery, (Dkt. No. 11), Columbia Memorial moved for summary
judgment, (Dkt. No. 12).
III. Standard of Review
The standard of review pursuant to Fed. R. Civ. P. 56 is well
established and will not be repeated here. For a full discussion of the
standard, the court refers the parties to its decision in Wagner v. Swarts,
827 F. Supp. 2d 85, 92 (N.D.N.Y. 2011), aff’d sub nom. Wagner v.
Sprague, 489 F. App’x 500 (2d Cir. 2012).
IV. Discussion
A.

ADA Claims
Columbia Memorial first seeks summary judgment on the ADA

claims, arguing that Welch abandoned those claims because she failed to
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address their arguments in support of summary judgment in her opposition
to that motion. (Dkt. No. 14 at 1.) Because, in response to Columbia
Memorial’s motion, Welch makes no argument in support of her ADA
claims, the court deems those claims abandoned. (Dkt. No. 13, Attach.
14); see Szwalla v. Time Warner Cable, LLC, No. 3:13-CV-713, 2015 WL
5708538, at *14 n.10 (N.D.N.Y. Sept. 29, 2015); Taylor v. City of N.Y., 269
F. Supp. 2d 68, 75 (E.D.N.Y. 2003) (holding “[f]ederal courts may deem a
claim abandoned when a party moves for summary judgment on one
ground and the party opposing summary judgment fails to address the
argument in any way”). Thus, Columbia Memorial is entitled to summary
judgment on Welch’s ADA claims.
B.

FMLA Claims
1.

Interference

Columbia Memorial contends that it is entitled to summary judgment
because Welch received all of her FMLA leave and permitted Welch to
return as a full-time phlebotomist after her leave expired. (Dkt. No. 12,
Attach. 15 at 19.) Welch opposes and asserts Columbia Memorial
interfered with her FMLA rights by denying her request for reduced, parttime leave. (Dkt. No. 13, Attach. 14 at 13-15.) Whether Columbia
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Memorial interfered with Welch’s FMLA rights Welch did not suffer any
prejudice. Thus, Columbia Memorial is entitled to summary judgment on
this claim.
The FMLA entitles eligible employees to take up to twelve weeks per
year of leave to care for a child, spouse, or parent, or for themselves
“[b]ecause of a serious health condition4 that makes the employee unable
to perform the functions of the[ir] position.” 29 U.S.C. § 2612(a)(1). An
employee who takes FMLA leave for themselves may do so intermittently
or on a reduced schedule provided it is medically necessary. See id.
§ 2612(b)(1).
“Section 2615(a)(1) of the FMLA states that ‘[i]t shall be unlawful for
any employer to interfere with, restrain, or deny the exercise of or the
attempt to exercise, any right provided under this subchapter.’” Potenza v.
City of N.Y., 365 F.3d 165, 167 (2d Cir. 2004) (quoting 29 U.S.C.
§ 2615(a)(1)). The Second Circuit has yet to determine the framework to
evaluate claims based on an employer’s alleged interference with an
employee’s FMLA rights. See id. at 167-68; see also Sista v. CDC Ixis N.

4

A “serious health condition” is defined as “an illness, injury, impairment, or physical or
mental condition that involves . . . inpatient care in a hospital, hospice, or residential medical
care facility; or . . . continuing treatment by a health care provider.” 29 U.S.C. § 2611(11).

10

Am., Inc., 445 F.3d 161, 175-76 (2d Cir. 2006). A majority of district courts
in the Circuit have held that to prevail on an interference claim an
employee must demonstrate that:
(1) [s]he is an eligible employee under the FMLA; (2)
that the employer is an employer as defined in the
FMLA; (3) that she was entitled to leave under the
FMLA; (4) that she gave notice to the employer of her
intention to leave; and (5) that she was denied
benefits to which she was entitled under the FMLA.
Wanamaker v. Westport Bd. of Educ., 899 F. Supp. 2d 193, 205 (D. Conn.
2012) (collecting cases) (internal quotation marks, citations and alterations
omitted); see also Higgins v. NYP Holdings, Inc., 836 F. Supp. 2d 182, 193
(S.D.N.Y. 2011). Additionally, and importantly here, the employee must
have been prejudiced by the violation. See Roberts v. Health Ass’n, 308 F.
App’x 568, 569 (2d Cir. 2009) (citing Ragsdale v. Wolverine World Wide,
Inc., 535 U.S. 81, 89 (2002)).
Welch contends Columbia Memorial interfered with her FMLA rights
by denying her June 30, 2011 request for a reduced schedule of four hours
per day for two weeks. (Dkt. No. 13, Attach. 14 at 14; Dkt. No. 12, Attach.
1 at 20.) Welch would be entitled to this benefit if she suffered from a
“serious health condition” and reduced leave was “medically necessary.”

11

29 U.S.C. § 2612(a)(1)(D), (b)(1). This determination requires both a
“medical need for leave” and “that such medical need can be best
accommodated through [a] reduced leave schedule.” 29 C.F.R.
§ 825.202(b).
Columbia Memorial initially denied Welch full-time FMLA leave after
her second IME because Dr. Ioia opined that Welch could work full-time
with some limitations. (Dkt. No. 12, Attach. 1 at 12-16.) Less than a
month later, Columbia Memorial approved Welch’s full-time FMLA leave.
(Dkt. No. 13, Attach. 7 at 2.) In between these two requests, Welch
requested part-time leave, which, according to Columbia Memorial, was
denied because of her IME results and because the hospital could not
accommodate a part-time phlebotomist. (Dkt. No. 13, Attach. 5 at 2; Def.’s
SMF ¶ 38.) Columbia Memorial’s subsequent approval of Welch’s full-time
FMLA leave suggests that she did suffer from a qualifying serious medical
condition at the time of her reduced leave request. Additionally, it raises a
question regarding whether reduced, part-time leave was medically
necessary.
Assuming without deciding that Columbia Memorial interfered with
Welch’s FMLA rights, Welch has not demonstrated prejudice. See
12

Roberts, 308 F. App’x at 569. In Roberts, the court held that an employee
who was terminated after only ten weeks of FMLA leave was not
prejudiced by the violation because her doctor concluded she would be
unable to perform the essential functions of her position after her FMLA
leave expired. Id. at 569-70. The employer also provided the employee
with twelve weeks of benefits, the full amount allotted under the FMLA. Id.
at 570.
Like Roberts, Welch could not perform the essential functions of her
position after her FMLA leave expired. See Sarno v. Douglas EllimanGibbons & Ives, Inc., 183 F.3d 155, 161 (2d Cir. 1999) (holding employer
did not have FMLA obligation to restore employee’s past position when he
could not perform the essential functions of that job); see also 29 C.F.R.
§ 825.216(c). It is undisputed that full-time phlebotomists must work an
eight-hour shift. (Def.’s SMF ¶ 5.) Welch’s health care provider concluded
that she would not be able to work full-time for six months starting in
August 2011. (Dkt. No. 13, Attach. 11 at 4.) Additionally, when called to
return to work, Welch informed Sweeney that she could not physically work
a full eight-hour day. (Dkt. No. 12, Attach. 1 at 26.) Furthermore,
although it was not allotted as part-time leave, Welch received all twelve
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weeks of her FMLA leave. (Def.’s SMF ¶ 27; Dkt. No. 14, Attach. 1 ¶ 3.)
Thus, Welch was not prejudiced if there was a violation. See Roberts, 308
F. App’x at 569.
2.

Retaliation

Columbia Memorial argues that it is entitled to summary judgment on
Welch’s FMLA retaliation claim because her schedule change was not an
adverse employment action. (Dkt. No. 14 at 11-12.) Furthermore,
Columbia Memorial contends it changed Welch’s schedule because it hired
a new full-time phlebotomist to work evenings and to accommodate
Welch’s temporary modified work assignment. (Id. at 12.) Additionally,
Columbia Memorial asserts that comments by Perlin are insufficient to
show that its proffered legitimate reasons for the change in Welch’s
schedule were pretext for retaliation primarily because Welch was afforded
FMLA leave when the comments were made. (Id. at 14.) Welch counters
and asserts that her schedule change was an adverse employment action
because it prevented her from attending school and her second job. (Dkt.
No. 13, Attach. 14 at 20.) Further, Welch argues that the temporal
proximity between her schedule change and her FMLA leave as well as
comments allegedly made by Perlin evince retaliatory intent. (Id. at 21-22.)
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Retaliation is a separate, distinct cause of action under the FMLA.
See 29 U.S.C. § 2615(a)(2); see also Potenza, 365 F.3d at 168. To
establish a claim, an employee must allege: (1) she exercised rights under
the FMLA; (2) she was qualified for the position; (3) she suffered adverse
employment action; and (4) the adverse action occurred under
circumstances giving rise to retaliatory intent. See Potenza, 365 F.3d at
168.
Unlike FMLA interference claims, the Second Circuit has determined
that the McDonnell Douglas burden shifting framework applies to FMLA
retaliation claims. See id. Thus, after an employee states a prima facie
claim, the burden of production shifts to the employer to state a legitimate,
nonretaliatory reason for the adverse employment action. See Knox v.
Town of Southeast, 599 F. App’x 411, 414 (2d Cir. 2015); see also
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Then, the
burden shifts back to the employee to demonstrate that the employer’s
reason is pretext for retaliation. See Knox, 599 F. App’x at 414; McDonnell
Douglas Corp., 411 U.S. at 804.
Here, Welch easily demonstrates the first two elements of her prima
15

facie claim because she took FMLA leave and worked for Columbia
Memorial as a phlebotomist. Columbia Memorial relies on a defunct
standard and contends that Welch’s schedule change must alter the terms
or conditions of her employment to satisfy the third element of an adverse
employment action. (Dkt. No. 14 at 11-12.)5 In accord with the appropriate
legal standard, “a materially adverse action is any action by the employer
that is likely to dissuade a reasonable worker in the plaintiff’s position from
exercising [her] legal rights.” Millea v. Metro-North R.R. Co., 658 F.3d 154,
164 (2d Cir. 2011) (incorporating the Title VII standard to the antiretaliation provision of the FMLA); see Burlington N. & Santa Fe Ry. Co. v.
White (White), 548 U.S. 53, 68-69 (2006). Courts must evaluate the
alleged adverse action objectively but in the context of the employee’s
particular circumstance. See Hicks v. Baines, 593 F.3d 159, 165 (2d Cir.
2010); see also Singh v. N.Y. State Dep’t of Taxation & Fin., 911 F. Supp.
2d 223, 241 (W.D.N.Y. 2012).
Welch asserts her schedule change upon returning to Columbia

5

The cases cited by Columbia Memorial evaluate whether a schedule change is an
adverse action under the former standard and, therefore, are inapposite. (Dkt. No. 14 at 1113); see DiBrino v. Dep’t of Veteran’s Affairs, 118 F. App’x 533, 534 (2d Cir. 2004); Bright v. Le
Moyne Coll., 306 F. Supp. 2d 244, 253-54 (N.D.N.Y. 2004).

16

Memorial in June 2011 prevented her from working a second job at BioReference Laboratory and from attending school. (Dkt. No. 13, Attach. 14
at 20.) Prior to June 2011, Welch’s supervisors accommodated her for
these outside activities. (Dkt. No. 12, Attach. 5 at 27; Dkt. No. 12, Attach.
6 at 21-22.) Ordinarily a schedule change will not be a sufficient materially
adverse action, however, context and circumstances may direct otherwise.
See White, 548 U.S. at 69 (noting “[a] schedule change in an employee’s
work schedule may make little difference to many workers, but may matter
enormously to a young mother with school-age children”); Singh, 911 F.
Supp. 2d at 241 (stating that a one-hour shift change which increased an
employee’s day care costs may be a sufficient adverse action).
Considering Welch relied on her schedule to attend school and work at
Bio-Reference Laboratory, and her supervisors previously accommodated
that schedule, it appears her schedule change is an adverse employment
action, or at least is arguably so.
Finally, Welch can establish her schedule change occurred under
circumstances giving rise to retaliatory intent. Welch returned from FMLA
leave days before her supervisors changed her schedule. (Dkt. No.12,
Attach. 7 at 48-51.) This very close temporal proximity alone is sufficient to
17

support an inference of retaliation. See, e.g., Donnelly v. Greenburgh
Cent. Sch. Dist. No. 7, 691 F.3d 134, 152 (2d Cir. 2012) (denying summary
judgment where employee received a negative performance evaluation ten
days after his return from FMLA leave); Terry v. Cty. of Cayuga, No. 5:11CV-1296, 2013 WL 5464395, *5 (N.D.N.Y. Sept. 30, 2013) (noting that the
employee was terminated on the day she returned from FMLA leave, and
finding that “[s]uch close temporal proximity generally gives rise to an
inference of retaliation”). Accordingly, Welch met her prima facie burden
on her retaliation claim.
Columbia Memorial asserts it had legitimate, nonretaliatory reasons
for modifying Welch’s schedule. Columbia Memorial argues it modified
Welch’s schedule because (1) the hospital hired a new full-time
phlebotomist to work evenings and (2) Welch’s new schedule
accommodated her temporary modified work assignment. (Dkt. No. 14 at
12-13.) Pascuzzi and Perlin testified that they hired a new phlebotomist to
work only weekday evenings to replace another who recently resigned and
to fill in schedule gaps. (Dkt. No. 12, Attach. 5 at 29-31; Dkt. No. 12,
Attach. 6 at 23.) Columbia Memorial also contends that it adjusted
Welch’s schedule to comply with her temporary modified work assignment.
18

Under the new schedule, a supervisor would always be available to assist
Welch with her workload. (Dkt. No. 12, Attach. 6 at 33; Dkt. No. 14 at 1213.) Perlin testified that supervisors were only scheduled to work during
the day for budgetary reasons. (Dkt. No. 12, Attach. 6 at 34.) Accordingly,
Columbia Memorial has demonstrated legitimate, nonretaliatory reasons
for Welch’s schedule change. See Bowman v. CSX Transp., Inc., 22 F.
Supp. 3d 181, 192 (N.D.N.Y. 2014) (noting that “[t]he employer’s burden is
merely one of production, not persuasion” (internal quotation marks and
citations omitted)).
In response, Welch fails to offer sufficient evidence of pretext. Welch
again cites the temporal proximity of her schedule change. (Dkt. No. 13,
Attach. 14 at 20.) Additionally, Welch testified that Perlin made negative
comments to her including, “Oh, you decided to come to work today.” (Dkt.
No. 12, Attach. 7 at 128.) Welch also testified that her colleagues informed
her of otherwise unspecified “negative remarks” Perlin made about her.
(Id. at 114.)
Although temporal proximity satisfied Welch’s prima facie burden, it
alone is insufficient to overcome Columbia Memorial’s legitimate,
nonretaliatory reasons for her schedule change. See Lehtinen v. Town of
19

Greenport, No. 1:12-cv-393, 2014 WL 3477037, at *12 (N.D.N.Y. July 11,
2014). The comment allegedly made by Perlin fails to bolster Welch’s
argument. “[S]tray remarks, even if made by a decisionmaker, do not
constitute sufficient evidence to make out a case of employment
discrimination.” Danzer v. Norden Sys., Inc., 151 F.3d 50, 56 (2d Cir.
1998); see Terry, 2013 WL 5464395, at *7 (discussing Danzer in a FMLA
retaliation claim). Rather, there must be a nexus between Perlin’s
comments and Welch’s schedule change. See Adams v. Master Carvers
of Jamestown, Ltd., 91 F. App’x 718, 722-23 (2d Cir. 2004) (“In order for
the remarks to be deemed significant, the plaintiff must show their nexus to
the adverse employment decision.”). To the extent Perlin’s comment
shows evidence of retaliation, Welch fails to present any such nexus.
Furthermore, the statements by Welch’s colleagues, which lack any
specificity, are inadmissible hearsay that cannot be considered on a
summary judgment motion. See Sarno, 183 F.3d at 160 (rejecting, on a
motion for summary judgment, statements that “w[ere] told” to the
employee as inadmissible hearsay). Welch fails to submit an affidavit from
her colleagues who had personal knowledge of such comments. See id.
Because Welch fails to raise a triable issue of fact that Columbia
20

Memorial’s proffered legitimate reasons were merely pretext for retaliation,
summary judgment is appropriate.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Columbia Memorial’s motion for summary judgment
(Dkt. No. 12) is GRANTED; and it is further
ORDERED that Welch’s complaint (Dkt. No. 1) is DISMISSED; and it
is further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
November 6, 2015
Albany, New York

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