Stagliano v. Herkimer Central School District et al
Filing
17
MEMORANDUM-DECISION and ORDERED, that Plaintiffs Motion (Dkt. No. 4) for a temporary restraining order is GRANTED; and it is further ORDERED, that Defendants are enjoined from prosecuting a disciplinary action against Plaintiff under N.Y. Educ. Law § 3020-a due to excessive absences for the 2012-13 through 2014-15 school years. Signed by Senior Judge Lawrence E. Kahn on December 16, 2015. (sas)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
MARLA STAGLIANO,
Plaintiff,
-against-
6:15-cv-1311 (LEK/TWD)
HERKIMER CENTRAL SCHOOL
DISTRICT and THE HERKIMER BOARD
OF EDUCATION,
Defendants.
MEMORANDUM-DECISION and ORDER
I.
INTRODUCTION
The Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601-2654, was enacted in
1993 “to balance the demands of the workplace with the needs of families, to promote the stability
and economic security of families, and to promote national interests in preserving family integrity.”
29 U.S.C. § 2601(b)(1). Its “most fundamental substantive guarantee [is] the employee’s
entitlement to ‘a total of 12 workweeks of leave during any 12-month period.’” Ragsdale v.
Wolverine World Wide, Inc., 535 U.S. 81, 93 (2002) (quoting 29 U.S.C. § 2612(a)(1)). At issue in
this case is an intentional effort by an employer to subvert the intent and spirit of the FMLA.
Plaintiff Marla Stagliano (“Plaintiff”) commenced the present action against Defendants
Herkimer Central School District and the Herkimer Board of Education (collectively “Defendants”)
pursuant to the FMLA. Dkt. No. 1 (“Complaint”). On December 7, 2015, Plaintiff filed a Motion
for a temporary restraining order, seeking to enjoin Defendants from bringing a disciplinary hearing
against Plaintiff pursuant to New York Education Law § 3020-a. Dkt. Nos. 4 (“Motion”); 4-10
(“Memorandum”). The Court held a show-cause hearing on December 11, 2015. Dkt. No. 16
(“Transcript”). For the following reasons, the Court grants Plaintiff’s Motion and enjoins
Defendants from prosecuting a disciplinary hearing against Plaintiff.
II.
BACKGROUND
Plaintiff, a tenured physical education teacher, has been employed by Defendants since 2004.
Dkt. No. 4-1 (“Stagliano Affidavit”) ¶ 4. On May 22, 2012, Plaintiff requested eight weeks of
maternity leave to commence in August 2012, when she was expected to give birth to triplets. Id.
The school superintendent at the time, Gary Tutty (“Tutty”), approved Plaintiff’s request. Dkt. No.
12-2 (“Maternity Leave Exhibits”) at 1-2. In addition to requesting maternity leave for the birth of
her children, Plaintiff requested additional child care leave for the purposes of “bonding and/or to
care for the newborn triplets” pursuant to Article VII(D) of the Collective Bargaining Agreement
between the school district and Plaintiff’s teachers’ union. Stagliano Aff. ¶ 5.
Plaintiff gave birth to triplets on August 22, 2012, before the start of the school year, which
began on September 4, 2012. Id. ¶¶ 7-8. She was absent for the first sixty-six days of the school
year due to her scheduled maternity leave and subsequent diagnosis of postpartum depression. Id.
¶¶ 8-10. Plaintiff alleges that her extended leave was approved by her principal, Kathleen Carney
(“Carney”). Id. ¶ 10. For the remainder of the 2012-13 school year, Plaintiff took an additional five
days of leave, two of which were approved for professional conferences and three approved for
personal days pursuant to her union’s collective bargaining agreement. Id. ¶ 11.
During the 2013-14 school year, Plaintiff took seventeen days off from work in order to care
for her triplets, who had been diagnosed with respiratory syncytial virus (“RSV”). Id. ¶ 14. Carney
was aware of the children’s condition, and “did not make an issue of her absences” due to “the
highly contagious nature of this virus.” Dkt. No. 4-8 (“Carney Affidavit”) ¶ 5. Plaintiff took an
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additional 3.25 days of leave, 2.5 of which were approved as personal days and the remaining 0.75
classified as “other.” Stagliano Aff. ¶ 14.
On June 10, 2014, Plaintiff had a counseling meeting with Carney and new superintendent
Robert Miller (“Miller”) regarding her absences over the last two years. Id. ¶ 22; Carney Aff. ¶ 2.
Plaintiff alleges that Miller told her to “make arrangements” when care was necessary for her
children, even if the illnesses were life-threatening, and that when asked why he would require this,
he responded “because I can.” Stagliano Aff. ¶ 22.
During the 2014-15 school year, Plaintiff took thirteen days off from work in order to care
for her triplets, who had been diagnosed with chronic ear infections, along with two additional days
for professional conferences, all approved by Miller. Id. ¶ 17. In each of the three years in question,
Plaintiff was rated as either “effective,” “proficient,” “distinguished,” or “highly effective” in her
performance evaluations. Id. ¶¶ 12, 15, 18.
On or about June 24, 2015, Defendants filed eight separate disciplinary charges for
Incompetence, Misconduct, and Neglect of Duty against Plaintiff arising from her absences during
the three previous school years. Id. ¶ 24. A hearing on these charges pursuant to New York
Education Law § 3020-a is scheduled to occur on December 18, 2015. Dkt. No. 4-9 (“Steck
Declaration”) ¶ 7. Both parties agree that Plaintiff could be terminated as a result of this hearing.
Tr. at 10:1-4, 17:3-8.
At the beginning of the 2015-16 school year, Miller held a meeting at Plaintiff’s school,
where he warned the entire faculty that teachers should not take time off and stating that “[a]nything
more than a day” would be too much time out of the classroom. Dkt. No. 4-2 (“Onufer Affidavit”)
¶ 2; see also Stagliano Aff. ¶ 35; Dkt. Nos. 4-4 (“Thomas Affidavit”) ¶ 2; 4-7 (“Kirkpatrick
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Affidavit”) ¶ 2. At this meeting, Miller referred to maternity leave as “inconvenient.” Kirkpatrick
Aff. ¶ 3. Numerous faculty members other than Plaintiff have reported receiving counseling letters
or having other action taken against them for taking leave to care for themselves or their family
members. See Onufer Aff. ¶¶ 3-4, 6 (claiming she was transferred into another department after
returning from leave in addition to receiving a counseling memo); Thomas Aff. ¶ 4 (claiming direct
criticism from Miller over absence due to birth of daughter); Kirkpatrick Aff. ¶ 6 (discussing
another teacher receiving a counseling memo due to leave taken for her son’s surgery while her
husband was on active duty in Afghanistan); Dkt. Nos. 4-5 (“Mancuso-LaSalle Affidavit”) ¶¶ 2-3
(receiving a counseling memo due to leave taken for illnesses of children); 4-6 (“DePaolo
Affidavit”) ¶¶ 3-6, Ex. A (receiving a counseling memo due to absences for encouraged professional
development and donation of sick days to the rest of the school). Many of these instances are for
sick leave of fifteen days or less, which is the yearly allowance listed in the documentation provided
with the disciplinary memos. See DePaolo Aff. Ex. A (illustrating, in a chart, the breakdown of
days off allowed by reason for leave); see also Onufer Aff. ¶ 3; Mancuso-LaSalle Aff. ¶ 3. As a
result, faculty members have expressed a reluctance to take leave to care for their family. Onufer
Aff. ¶ 6; Thomas Aff. ¶ 7; Mancuso-LaSalle Aff. ¶ 9; DePaolo Aff. ¶ 8; Kirkpatrick Aff. ¶¶ 3-6;
Dkt. No. 4-3 (“Valasek Affidavit”) ¶ 4. One faculty member notes that other teachers in the district
“are afraid to get pregnant because they are concerned that pregnancy leave may have an adverse
effect on their job.” Kirkpatrick Aff. ¶ 3; see also DePaolo Aff. ¶ 8 (“Conversations . . . occur
among teachers on a weekly basis. One teacher even told me she was scared to leave school to get a
biopsy.”). Plaintiff notes that other teachers, including Miller’s sister-in-law, have not been
disciplined for taking similar amounts of leave or were only disciplined after Plaintiff started to take
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action against Defendants. Stagliano Aff. ¶ 36.
Plaintiff filed the instant action on November 5, 2015. Compl. Under the FMLA, Plaintiff
alleges interference with her rights to take leave to care for her children as well as retaliation, failure
to restore Plaintiff to an equivalent position, and discouragement of other employees from taking
FMLA-qualifying leave. Id. ¶¶ 49-52. Plaintiff claims that Defendants did not give her any
information about her rights regarding the FMLA. Id. ¶ 47. After correspondence between counsel
through the month of November, Steck Decl. ¶¶ 12-15, Plaintiff then filed the instant Motion on
December 7, 2015. Mot.
On December 8, 2015, Defendants filed a Response to Plaintiff’s Motion with an
accompanying affidavit from Miller and a Memorandum of law. Dkt. Nos. 9 (“Response”); 9-1
(“Miller Affidavit”); 9-2 (“Response Memorandum”). Defendants claim that Plaintiff did not
provide sufficient notice to qualify for protection under the FMLA. Miller Aff. ¶¶ 2-5; Resp. Mem.
at 4-5. Defendants further argue that Plaintiff has failed to show that a temporary injunction would
prevent irreparable harm, as to other teachers exercising their FMLA rights. Resp. Mem. at 5-6. On
December 9, 2015, Plaintiff filed a Reply, attaching her May 2012 written request for maternity
leave and Tutty’s approval. Dkt. Nos. 12 (“Reply”); 12-2 (“2012 Leave Documents”).
At the hearing held on December 10, both parties noted that Plaintiff was still teaching while
the § 3020-a charges were pending. Tr. at 3:3-4, 16:21-22. Plaintiff emphasized the fact that she
had requested leave during the 2013-14 year through the procedure that the school administration
had in place at the time and that Carney was aware that Plaintiff’s children had RSV at the time of
her request. Id. at 6:6-7:11. She noted that the reason for her leave during the 2014-15 year was
known to the office staff; she did not contest the fact that Miller was unaware of the reason for her
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leave during the 2014-15 year but rather argued that the school district was estopped from claiming
lack of notice due to their failure to inform Plaintiff of their FMLA obligations. Id. at 7:12-17,
11:18-12:18; see also Reply at 12. Plaintiff claimed that there was no possible avenue to ensure that
her FMLA claims could be raised at either the § 3020-a hearing or on appeal, which is governed by
an arbitration review provision in the New York Civil Practice Law and Rules. Tr. at 7:18-9:1.
Defendants did not directly address the availability of the FMLA as an affirmative defense to
Plaintiff during her disciplinary proceeding. Id. at 16:11-20. Defendants argued that Plaintiff did
not qualify for protection under the FMLA because she had not provided adequate notice. Id.
Defendants also argued that a temporary injunction, as opposed to a permanent one, would not
combat chilling effects. Id. at 15:19-16:10.
III.
DISCUSSION
Before ruling on the merits of Plaintiff’s Motion for a temporary restraining order, the Court
must address whether it must abstain from granting the relief requested in Plaintiff’s Motion.
A. Younger Abstention
A federal court’s obligation to decide cases in which it has jurisdiction is “virtually
unflagging.” Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976).
However, federal courts “refrain from hearing cases that would interfere with a pending state
criminal proceeding or with certain types of state civil proceedings.” Quackenbush v. Allstate Ins.
Co., 517 U.S. 706, 716 (citing Younger v. Harris, 401 U.S. 37 (1971)). Younger abstention is
consistent with a strong preference for enforcing “federal rights and federal interests . . . in ways that
will not unduly interfere with the legitimate activities of the States.” Levin v. Comm. Energy, Inc.,
560 U.S. 413, 431 (2010) (quoting Younger, 401 U.S. at 44). The Second Circuit has stated that
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Younger abstention is “mandatory” when “(1) there is a pending state proceeding, (2) that
implicates an important state interest, and (3) the state proceeding affords the federal plaintiff an
adequate opportunity for judicial review of his or her federal constitutional claims.” Spargo v. New
York State Comm’n on Judicial Conduct, 351 F.3d 65, 75 (2d Cir. 2003). The Supreme Court has
recently narrowed the type of state proceedings that implicate Younger into three categories: “[1]
ongoing state criminal prosecutions . . . [2] certain ‘civil enforcement proceedings,’ [and] [3] ‘civil
proceedings involving certain orders . . . uniquely in furtherance of the state courts’ ability to
perform their judicial functions.’” Sprint Commc’ns, Inc. v. Jacobs, 134 S. Ct. 584, 591 (2013)
(citing New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 368 (1989)).
New York federal courts have found proceedings under § 3020-a to be the type of proceeding
contemplated by Younger. Ingber v. N.Y.C. Dep’t of Educ., No. 14 Civ. 3942, 2014 WL 2575780,
at *4 (S.D.N.Y. June 9, 2014); Levich v. Liberty Cent. Sch. Dist., 258 F. Supp. 2d 339, 342
(S.D.N.Y. 2003); Rubin v. Corning-Painted Post, 190 F. Supp. 2d 541, 543-44 (W.D.N.Y. 2002).
A proceeding that falls under Younger may still move forward if the federal plaintiff shows
“that the state proceeding was initiated with and is animated by a retaliatory, harassing, or other
illegitimate motive.” Levich, 258 F. Supp. 2d at 342 (citing Schlagler v. Phillips, 166 F.3d 439,
442-44 (2d Cir. 1999)). While the classic case contemplated is a proceeding brought in retaliation
for constitutionally protected conduct, the exception encompasses “a prosecution or proceeding . . .
brought in bad faith or for the purpose to harass.” Id. (quoting Cullen v. Fliegner, 18 F.3d 96, 10304 (2d Cir. 1994)). The exception is only met when the proceeding is instituted in bad faith; the
unconstitutional execution of a legitimate proceeding will not trigger the bad-faith exception to
Younger. Id.; see also Diamond “D” Const. Corp. v. McGowan, 282 F.3d 191, 200 (2d Cir. 2002).
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In other words, “such claims require an assertion of bias.” Ingber, 2014 WL 2575780, at *4.
Plaintiff claims that Younger is inapplicable because there is no legitimate state interest to
protect in the instant case and that a § 3020-a proceeding is an insufficient forum for Plaintiff to
enforce her rights. Reply at 2. Plaintiff cites to a decision from the Commissioner of Education
noting that FMLA violations cannot be redressed through the state system but rather should be
separately brought in federal court. Id. at 3; see also Dkt. No. 12-1 (“Commissioner Decision”).
In light of the above precedent holding that § 3020-a proceedings are subject to Younger, the
Court holds that the instant § 3020-a hearing is no different. First, there is a pending state
proceeding, as charges have been instituted and a hearing is imminent. Although the state
proceeding is not a criminal proceeding, as a disciplinary proceeding, it is sufficiently close in
nature to fall under Younger. See, e.g., Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n,
457 U.S. 423, 432 (1982) (applying Younger to a state bar disciplinary proceeding); see also Ingber,
2014 WL 2575780, at *4. Second, there is a clear state interest in the action. “It has long been
recognized that matters involving schools, and the discipline of students and teachers are principally
matters of local concern, and that the state has vital interests in maintaining the proper and orderly
functioning of its local schools.” Levich, 258 F. Supp. at 342 (quoting Rubin, 190 F. Supp. 2d at
544). Plaintiff’s argument that there is no possible state interest in trying to circumvent federal law,
Reply at 2, misapprehends the nature of the inquiry.
Under Younger, a federal court should consider whether “state law clearly bars the
interposition of the constitutional claims.” Middlesex Cty., 457 U.S. at 432 (quoting Moore v.
Sims, 442 U.S. 415 (1979)). While this factor is not dispositive in light of the Supreme Court’s
endorsement of a categorical approach in Sprint, the Second Circuit has declined to determine how
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much weight it carries. Falco v. Justices of the Matrimonial Parts of Supreme Court of Suffolk Cty.,
805 F.3d 425, 427 (2d Cir. 2015). Based on Plaintiff’s representations at the hearing, Tr. at 7:189:1, Plaintiff would not be able to raise her FMLA claim in the § 3020-a proceeding. However,
Plaintiff’s support for that contention is a decision by the Commissioner of Education that does not
in fact hold that the FMLA cannot be raised as an affirmative defense in a § 3020-a proceeding.
Comm’r Decision. In the decision, the Commissioner declined to count the appellant’s FMLAprotected leave toward the appellant’s seniority. Id. at 6. The footnote referenced by Plaintiff in her
Reply, Reply at 3, refers only to the fact that the state system cannot grant monetary relief under the
FMLA. Comm’r Decision at 5 n.2. The Commissioner ultimately denied relief because accrual of
seniority was not a requirement of FMLA leave time. Id. at 5. While the Commissioner’s Decision
indicates that Plaintiff cannot obtain FMLA damages in her § 3020-a hearing, it does not show that
she cannot raise the FMLA as a defense in that proceeding.
While the Court finds that this action is subject to Younger, it nonetheless finds that Plaintiff
has alleged sufficient facts to satisfy the bad-faith exception. Taking the disciplinary charges in
conjunction with (1) Defendants’ failure to notify Plaintiff of her protections under the FMLA, (2)
the counseling meeting in which Miller refused to accept Plaintiff’s explanations for her absences
and told her that he was pursuing disciplinary action “because I can,” (3) the numerous other
occasions in which Defendants disciplined other teachers for taking FMLA-protected leave, (4) the
fact that Miller’s sister-in-law has not been similarly disciplined, and (5) the meeting at which
Miller informed faculty members that taking more than one day of sick leave at a time was
discouraged, the inference is easy to draw that Defendants are attempting to broadly suppress their
employees’ right to use sick leave to care for family, one of the core protections of the FMLA.
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Indeed, the supporting Affidavits from Plaintiff’s fellow faculty indicate that faculty are reluctant to
take leave to care for themselves or for family, which is the exact conduct that the FMLA was
intended to cure. The overwhelming number of facts left uncontested by Defendants from which
intent to curtail sick leave can be inferred removes this case from the category of “legitimate
activities of the States” contemplated in Levin and thus makes Younger abstention inapplicable
here.
B. Motion for Temporary Restraining Order
The same standards used to review a request for a preliminary injunction govern
consideration of an application for a temporary restraining order. Local 1814, Int’l Longshoremen’s
Ass’n, AFL-CIO v. N.Y. Shipping Ass’n, 965 F.2d 1224, 1228 (2d Cir. 1992); Perri v. Bloomberg,
No. 06-CV-0403, 2008 WL 2944642, at *2 (E.D.N.Y. Jul. 31, 2008). “In general, district courts
may grant a preliminary injunction where a plaintiff demonstrates ‘irreparable harm’ and meets one
of two related standards: ‘either (a) a likelihood of success on the merits, or (b) sufficiently serious
questions going to the merits of its claims to make them fair ground for litigation, plus a balance of
the hardships tipping decidedly in favor of the moving party.’” Otoe-Missouria Tribe of Indians v.
N.Y. State Dep’t of Fin. Servs., 769 F.3d 105, 110 (2d Cir. 2014) (quoting Lynch v. City of New
York, 589 F.3d 94, 98 (2d Cir. 2009)). The district court has wide discretion in determining
whether to grant preliminary injunctive relief. Moore v. Consol. Edison Co. of N.Y., 409 F.3d 506,
510 (2d Cir. 2005). “[T]he moving party must establish that without the preliminary injunction, he
will suffer an injury that is neither remote nor speculative, but actual and imminent and that cannot
be remedied by an award of monetary damages.” Amaker v. Fischer, No. 10-CV-0977A, 2012 WL
8020777, at *2 (W.D.N.Y. Sept. 28, 2012).
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1. Irreparable Harm
Plaintiff argues that the potential violation of her FMLA rights is per se irreparable. Reply at
1-2. She also argues that the unavailability of the FMLA as a defense in her § 3020-a hearing and
the chilling effect on other employees planning to take sick leave could also suffice as irreparable
harm. Id. at 2-3. Defendants claim that Plaintiff has not established that she would suffer
irreparable harm from the § 3020-a proceeding and that any harm done to Plaintiff from that
proceeding would be undone if she ultimately prevails on the merits in this action. Resp. Mem. at
2-4. They further argue that a temporary injunction staying the proceeding could not be sustained
under a chilling theory, as under the First Amendment, because the chilling effect is connected to
the possibility of permanent termination later. Id. at 5-6.
A plaintiff seeking a temporary restraining order must establish that irreparable harm is
likely to occur. Shady v. Tyson, 5 F. Supp. 2d 102, 106 (E.D.N.Y. 1998). In order for harm to be
irreparable, money damages must be unavailable or at least inadequate. Pinckney v. Bd. of Educ. of
Westbury Union Free Sch. Dist., 920 F. Supp. 393, 399 (E.D.N.Y. 1996). The risk that “other
employees may be deterred from protecting their rights . . . or from providing testimony for the
Plaintiff in her effort to protect her own rights . . . . may be found to constitute irreparable injury.”
Holt v. Continental Grp., Inc., 708 F.2d 87, 91 (2d Cir. 1983) (discussing irreparable harm in a Title
VII case). In the context of retaliation under the Fair Labor Standards Act, the “weakened
enforcement of federal law can itself be irreparable harm in the context of a preliminary injunction
application.”1 Mullins v. City of New York, 626 F.3d 47, 55 (2d Cir. 2010) (quoting Lin v. Great
1
The retaliation provision in the Fair Labor Standards Act makes it unlawful to discriminate
against employees if they have “filed any complete or instituted or caused to be instituted any
proceeding under or related to this chapter, or [have] testified or is about to testify in such
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Rose Fashion, Inc., No. 08 Civ. 4778, 2009 WL 1544749, at *21 (E.D.N.Y. June 3, 2009)).
However, “a plaintiff ‘must show some evidence of actual chill that would be cured by the requested
injunction.’” Lin, 2009 WL 1544749, at *21 (quoting Bennett v. Lucier, 239 F. App’x 639, 640 (2d
Cir. 2007)).
In the instant case, Plaintiff has submitted six Affidavits from other faculty members
discussing their reluctance and fear over taking sick leave in the future; a scenario that seems likely
to pass before a permanent injunction could possibly issue. Importantly, the Affidavits also shed
light on other faculty members who are afraid to either come forward to assist in the litigation or to
ask for sick leave. Kirkpatrick Aff. ¶ 3; see also DePaolo Aff. ¶ 8. The potential harms that can
result from choosing not to take sick leave to care for a child are exactly the types of harm for which
money damages would be inadequate. Furthermore, the FMLA contains specific provisions
discussing the potential remedies available if an employer interferes with FMLA rights. An
employee is entitled to monetary losses but also equitable relief, “including employment,
reinstatement, promotion, or any other relief tailored to the harm suffered.” 29 C.F.R. § 825.220(b).
Many harms that occur from being coerced into not taking sick leave are compensable with
monetary damages. However, the obvious potential for such issues as developing chronic health
issues or spreading contagious diseases underscores the need for equitable relief, and “employment,
reinstatement, or promotion” will not suffice in such circumstances. The frequency with which
teachers will need to take family leave in the coming weeks and months is sufficient to show that
proceeding, or has served or is about to serve on an industry committee.” 29 U.S.C. § 215(a)(3).
This is a narrower standard than under the FMLA, where it is “unlawful for any employer to
interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under
this subchapter.” 29 U.S.C. § 2615(a)(1).
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there is a non-speculative possibility of irreparable harm.
Mullins is particularly instructive here. In Mullins, 4300 New York City police sergeants
sued the city over systematic violations of their overtime rights. Mullins, 626 F.3d at 48-49. After
the case was filed, the NYPD engaged in practices designed to harass the plaintiffs and attempting
to coerce them into changing their deposition testimony, including opening disciplinary proceedings
against many of the test plaintiffs. Id. at 49-50. The plaintiffs moved for and were granted a
temporary restraining order enjoining the NYPD from pursuing disciplinary proceedings against the
plaintiffs based on their testimony or participation in the suit. Id. at 51. On appeal, the Second
Circuit held that testimony where officers indicated that they feared retribution, which was not
rebutted by the NYPD, was a sufficient basis for the district court to conclude “that absent
injunctive relief numerous plaintiffs would likely (and reasonably) withdraw from this litigation
rather than testify and face a line-by-line IAB interrogation.” Id. at 55. Similarly, the affidavits
submitted by faculty members are not rebutted by Defendants and indicate that without injunctive
relief, teachers will likely forgo their FMLA-protected leave in fear of having § 3020-a proceedings
instituted.
Defendants cite to Bennett v. Lucier, 239 F. App’x 639 (2d Cir. 2007), which itself relies
heavily on a quote from American Postal Workers Union v. U.S. Postal Service, which reads:
[W]e fail to understand how a chilling of the right to speak or associate could logically
be thawed by the entry of an interim injunction, since the theoretical chilling of
protected speech and union activities stems not from the interim discharge, but from the
threat of permanent discharge, which is not vitiated by an interim injunction.
766 F.2d 715, 722 (2d Cir. 1985). While this statement seems to capture all cases where a plaintiff
is retaliated against for trying to enforce their rights, the Second Circuit clarified the reach of this
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language in Moore v. Consolidated Edison Company, 409 F.3d 506, 512 n.6 (2d Cir. 2005). The
Second Circuit noted that they do not read this language “as sweeping so broadly” and that it does
not apply to cases “where immediate relief was the only form of relief that could mitigate the
alleged harm.” Id. “Our precise holding[ ] in American Postal [was] narrow, relying heavily on the
fact that plaintiffs had failed to allege a sufficiently severe or clear violation of First Amendment
rights.” Id. The Second Circuit also pointed out that American Postal was a First Amendment case
involving government employees, a scenario in which the moving party has an exceptionally high
burden. Id.
This case is more similar to the facts of Moore than to Bennett. The potential chill
contemplated in this case is the potential for teachers not to take sick leave when it would be the
best decision for them and their families. Given the frequency with which people fall ill, the only
way to mitigate this particular alleged harm is to immediate relief. Truly, if the Court were not to
find the threat of irreparable harm in forgoing sick leave, it is difficult to imagine a scenario where
irreparable harm could be shown in any case involving retaliation in employment decisions.
Therefore, the Court finds that Plaintiff has shown that irreparable harm is likely in the absence of
an injunction.
2. Likelihood of Success on the Merits
In addition to irreparable harm, Plaintiff must show “either (a) a likelihood of success on the
merits, or (b) sufficiently serious questions going to the merits of its claims to make them fair
ground for litigation, plus a balance of the hardships tipping decidedly in favor of the moving
party.” Otoe-Missouria Tribe, 769 F.3d at 110. In order to establish a prima facie case of
interference under the FMLA, 29 U.S.C. § 2615(a)(1), a plaintiff must establish five elements: “(1)
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that she is an eligible employee under the FMLA; (2) that defendant is an employer as defined in the
FMLA; (3) that she was entitled to take leave under FMLA; (4) that she gave notice to the defendant
of her intention to take leave, and (5) that she was denied benefits to which she was entitled under
the FMLA.” Geromanos v. Columbia Univ., 322 F. Supp. 2d 420, 427 (S.D.N.Y. 2004).
The parties do not dispute that the FMLA would apply to ninety of Plaintiff’s absences over
the three school years if Plaintiff has met all of the procedural requirements of the FMLA. The only
element over which the parties disagree is the fourth: whether Plaintiff provided sufficient notice to
Defendants that she was taking FMLA leave to trigger Defendants’ obligations under the FMLA.
Plaintiff argues that her notice during each year was independently sufficient, and that if it was not,
Defendant is still estopped from claiming a lack of notice since the first year, 2012-13, clearly met
the requirements. Reply at 10-12. Defendants claim that Plaintiff’s notice was insufficient,
particularly in 2013-14 and 2014-15, resting on a failure to prove that she gave sufficient notice.
Resp. Mem. at 4-5.
“In any case in which the necessity for leave . . . is foreseeable based on an expected birth or
placement, the employee shall provide the employer with not less than 30 days’ notice, before the
date the leave is to begin . . . .” 29 U.S.C. § 2612(e)(1); see also 29 C.F.R. § 825.302(a). “When
the approximate timing of the need for leave is not foreseeable, an employee must provide notice to
the employer as soon as practicable under the facts and circumstances of the particular case.” 29
C.F.R. § 825.303(a). “The FMLA generally requires employees to ‘comply with the employer’s
usual and customary notice and procedural requirements for requesting leave,’” unless there are
unusual circumstances or company policy conflicts with the law. Millea v. Metro-North R. Co., 658
F.3d 154, 161 (2d Cir. 2011) (quoting 29 C.F.R. § 825.303(c)).
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In the case of Plaintiff’s 2012-13 leave, she requested time off in May for an August due
date, well above the thirty-day notice requirement in the FMLA. Defendants do not allege that this
written notice failed to follow any district policy. As a result, Plaintiff appears to have given
adequate notice for her 2012-13 maternity leave. Plaintiff’s leave in 2013-14 and 2014-15,
however, was taken due to unforeseeable circumstances. Plaintiff claims that the Carney Affidavit
and the awareness of the office staff constituted sufficient notice in 2013-14 and 2014-15
respectively. Reply at 11-12.
The Carney Affidavit reads, “[k]nowing the highly contagious nature of this virus, for the
sake of our students and based on what I believed was past practice, I initially did not make an issue
of her absences.” Carney Aff. ¶ 5. Plaintiff claims that “for the sake of our students” must be read
so that Plaintiff’s notice regarding RSV was given during the period of the illness. Reply at 11.
Defendants claim that the Affidavit is silent regarding timing. Resp. Mem. at 5. While this is an
open question of fact, Plaintiff has at least proven a likelihood of success on the merits on this point.
The 2014-15 leave is more difficult for Plaintiff. She concedes that only office staff were
aware of her children’s ear infections. Unusual circumstances may force employees to notify their
employers indirectly, Millea, 658 F.3d at 161-62, and Plaintiff could claim that Miller, who
approved her thirteen sick days in 2013-14, was trying to intimidate her into taking leave less
frequently. However, in Millea, the Second Circuit relied on the fact that the employee in that case
designated another employee to notify the supervisor, facts that are not alleged in this case regarding
the office staff. Id. at 162. As a result, Plaintiff has not proven a likelihood of success on the merits
for the 2014-15 absences.
However, even if Plaintiff’s notice regarding both her 2013-14 and 2014-15 absences were
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insufficient to demonstrate that Plaintiff has shown a likelihood of success on the merits, there are
open questions of fact that, if resolved in a manner consistent with the available information, would
indicate that Plaintiff is entitled to relief. Based on the disciplinary memo attached to the DePaolo
Affidavit, the standard allowance per year for sick days is fifteen and the standard allowance for
personal days is three. DePaolo Aff., Ex. A. Both parties agree that during the 2014-15 school year,
Plaintiff only used thirteen total sick days and was absent for a total of fifteen days. During the
2013-14 school year, Plaintiff used seventeen sick days and 2.5 personal days in addition to 0.75
further absences. And if the sixty days of FMLA-qualifying leave during the 2012-13 school year is
omitted, Plaintiff used six sick days, her allotment of three personal days, and was absent a further
two days for professional development. This amounts to a total of 46.25 absences over three years, a
number that is actually below the fifty-four absences allowed for sick and personal days over the
course of three years. While not all of those 46.25 absences are covered in those fifty-four allowed
days, only 4.75 days, in addition to the six additional days from the end of Plaintiff’s maternity
leave, fall outside of the allowances given.
Plaintiff claims that Defendants have levied disciplinary charges under a no-fault attendance
policy; that is, a certain number of absences results in the charges levied regardless of their
circumstances. Reply at 4. Defendants have made no indication, in their Response or at the
hearing, that they are pursuing any charges that are not based on this no-fault policy. If this is truly
the case, then given that Plaintiff provided sufficient notice prior to her maternity leave to trigger
FMLA protections, the remainder of Plaintiff’s absences as a whole fall below the absences she was
given for the three years in question. Not only is a § 3020-a hearing for a number of absences lower
than the allowance unlikely, but it might also violate the collective bargaining agreement mentioned
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in Plaintiff’s Affidavit. Stagliano Aff. ¶ 5. As a result, the Court finds that Plaintiff has clearly
shown “sufficiently serious questions going to the merits of its claims to make them fair ground for
litigation.” Otoe-Missouria Tribe, 769 F.3d at 110.
Therefore, should the balance of hardships tip “decidedly” in her favor, id., Plaintiff will be
entitled to an injunction. In this case, Defendants’ hardship would be linked to being unable to
discipline or terminate Plaintiff for the duration of the litigation. Plaintiff’s most significant
hardship, on the other hand, might include potential termination and the accompanying loss of
wages for the pendency of this action in addition to stigmatic harms. While she would be able to
recover back pay under the FMLA if she is victorious, she may not have the financial flexibility to
care for three young children for a matter of months or even years while this matter is pending,
which is precisely the type of situation that the FMLA is meant to eradicate. Regardless of whether
this particular harm is irreparable, it still affects the balance of hardships. As a result, the Court
finds that the balance of hardships tips decidedly in Plaintiff’s favor, and thus that Plaintiff has met
her burden for a preliminary injunction.
IV.
CONCLUSION
Accordingly, it is hereby:
ORDERED, that Plaintiff’s Motion (Dkt. No. 4) for a temporary restraining order is
GRANTED; and it is further
ORDERED, that Defendants are enjoined from prosecuting a disciplinary action against
Plaintiff under N.Y. Educ. Law § 3020-a due to excessive absences for the 2012-13 through 201415 school years; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Memorandum-Decision and
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Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
DATED:
December 16, 2015
Albany, New York
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