Di Giovanna v. Beth Israel Medical Center et al

Filing 53

MEMORANDUM OPINION granting in its entirety re:#98011 30 MOTION for Summary Judgment, filed by Continuum Health Partners, Inc., Beth Israel Medical Center. The Clerk shall enter judgment and close the case. (Signed by Judge Lewis A. Kaplan on 9/8/09) (cd) Modified on 9/10/2009 (eef).

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------x J O S E P H DI GIOVANNA, P l a i n t i f f, -a ga in stB E T H ISRAEL MEDICAL CENTER, et al. D e fe n d a n t s . ----------------------------------x 0 8 Civ. 02750 (LAK)

M E M O R A N D U M OPINION

A p p e a ra n c e s : Lo u i s Ginsberg T HE LAW FIRM OF LOUIS GINSBERG, P.C. A t to r n e y for Plaintiff

R o y J. McEvoy S h a ri A. Alexander E DW ARD S ANGELL PALMER & DODGE, LLP A t to r n e y s for Defendants

LEWIS A. KAPLAN, District Judge. J o s e p h Di Giovanna, former director of revenue cycle operations at Beth Israel M e d ic a l Center ("BIMC"), brings this action seeking damages under the Family and Medical Leave A c t ("FMLA").1 He alleges that BIMC and Continuum Health Partners, Inc. ("Continuum")

1

2 9 U.S.C. §§ 2601 et. seq.

2
i m p r o p e r l y interfered with his exercise of FMLA rights. He alleges also that defendants fired him fo r exercising those rights and for opposing defendants' interference with the FMLA rights of himself a n d other employees. The matter now is before the Court on defendants' motion for summary j u d g m e n t dismissing the complaint.2

F a c ts D i Giovanna began working at BIMC as director of revenue cycle operations for the p a tie n t accounts department in July 2005.3 Patient accounts is one of six departments in "Patient F i n a n c ia l Services," which is headed by Kathy Dakis and was responsible for collecting money owed to BIMC and other affiliated hospitals from private insurance companies.4 The timely collection of m o n e y owed to BIMC by private insurers is essential to its financial health and its ability to provide q u a l i ty care, and the patient accounts department handles billing and collecting in-patient and outp atie n t accounts receivable. Allise Williams ran the patient accounts department during Di

G io v a n n a 's employ with BIMC,5

2

C o n tin u u m seeks dismissal from the action on the ground that it was not Di Giovanna's e m p lo ye r and thus cannot be held liable under the FMLA. For reasons that will appear, the C o u rt need not address this issue.
3

D e f.. 56.1 St. ¶¶ 3-4; Joint Pretrial Order ("PTO") Stipulated Facts ¶ 3.
4

Id . ¶¶ 6-7, 11. In his Rule 56.1 rebuttal statement, plaintiff purports to deny this (and n u m e ro u s other) asserted fact by stating that he denies "knowledge and information about the s ta te m e n t ." To whatever extent this is an attempt by plaintiff to create a genuine issue of fact r e g a r d in g the assertion, it fails.
5

D e f. 56.1 St. ¶ ¶ 10, 12, 14-15.

3
D i Giovanna was in charge of both the Blue Cross-Blue Shield ("BCBS") and c o m m e rc ia l managed care ("CCMC") units, both of which collected money from insurers. He was i n charge also of the payment review and denial unit ("PRDN"), which handled claims that were d en ie d or underpaid by insurance companies. Managers, supervisors and staff reported to him.6 In February 2006, Williams took medical leave, and Di Giovanna began reporting d ire c tly to Dakis. Upon Williams' return to work in May 2006, however, Dakis decided to have P R D N report to Williams rather than Di Giovanna.7

D i Giovanna's FMLA Leave T h e FMLA affords eligible employees an "entitlement" to twelve works of unpaid l e a v e per year.8 Caring for a parent with a serious health condition is one ground for FMLA leave,9 a n d such leave "may be taken intermittently or on a reduced leave schedule when medically n e c e s s a ry." 10 D i Giovanna's father was diagnosed with cancer in November 2006. Di Giovanna in fo rm e d his supervisors, Williams and Dakis, about his father's condition and the possibility of

6

D e f. 56. St. ¶¶ 21-22, ¶ 26.
7

D e f. 56.1 St. ¶¶ 34, 41. Di Giovanna disputes the reason for the switch but not that the switch o c c u r r e d . Compare Pl. 56.1 St. ¶ 41 with Di Giovanna Dep. 48:25-49:10; 49:18-22.
8

2 9 U.S.C. §2612(a)(1).
9

Id . § 2612(a)(1)(C).
10

I d . § 2612(b)(1).

4
n e e d in g time off to care for him. Over the next six months, Di Giovanna used vacation and sick days to care for his father, all with the approval of Dakis or Williams.11 T h e parties agree that Di Giovanna informed Dakis in February 2007 that his father's c o n d i tio n was deteriorating.12 According to Di Giovanna, this was one of several instances in which e ith e r Dakis or Williams "discouraged" him from taking intermittent FMLA leave and, in the case o f Williams, "directed" him not to do so.13 Defendants deny ever discouraging from filing or d ire c tin g Di Giovanna not to file for FMLA leave, let alone retaliating against him for doing so. In April 2007, Di Giovanna requested a letter of recommendation from Williams for a college course he was taking. Di Giovanna drafted the letter and, after making some grammatical c h a n g e s , Williams signed it.14 D i Giovanna completed an application for intermittent FMLA leave on May 15, 2007, w h i c h was signed by Williams and approved by Liberty Mutual for the period May 14, 2007 to May 1 2 , 2008.15

11

D e f. 56.1 St. ¶¶ 47, 51.
12

Id . ¶ 58.
13

S e e Pl. Br. at 2, 12, 17; Pl. 56.1St. ¶ 58; Di Giovanna Dep. 212-13.
14

D e f. 56.1 St. ¶¶ 65-67; see also Ex. 10 to Di Giovanna Dep. (copy of letter).
15

P T O Stipulated Facts ¶ 4; Def. 56.1 St. ¶ 70-71, ¶ 74. As BIMC's insurance carrier, Liberty Mutual made the ultimate decision regarding FMLA le a v e applications. See e,g., Def. 56.1 St. 68-9, 71, 74.

5
D i Giovanna received a written performance evaluation from Williams on July 2, 2 0 0 7 .16 Shortly afterwards, Williams informed Di Giovanna that he would not receive a merit-based r a i s e . 17 Dakis later confirmed in an email to the human resources department that, based on their p e rfo rm a n c e evaluations, Di Giovanna and two other employees in patient accounts did not warrant th e three percent merit increases given to employees at that time.18 W i l lia m s met with Di Giovanna again on September 27, 2007 to discuss his poor p e r fo r m a n c e . She told him then that he would be terminated if he did not improve within thirty d a ys .19 Finally, BIMC discharged Di Giovanna on October 29, 2007.20 The reason for that te rm i n a tio n is contested. T h e crux of Di Giovanna' s complaint is that he was a good performer and a valued e m p l o ye e prior to his filing for FMLA leave. When he raised the issue of FMLA leave with Dakis a n d Williams, however, he claims that they interfered with his right to apply for and take such leave b y discouraging him from applying and/or instructing him not to do so. Then, when Di Giovanna n o n e t h e l e s s exercised his rights, Dakis and Williams conspired to retaliate against him by firing him

16

I d . ¶97; Di Giovanna Dep. 146; Ex. 25 to McEvoy Decl.
17

D e f. 56.1 St. ¶ 99.
18

I d . 100. Di Giovanna's 56.1 response to this factual assertion is "Admit, except to state that p la in tiff was not denied the pay increase due to alleged poor performance, but instead was d e n ie d the pay increase as a means of harassing plaintiff for having taken intermittent FMLA le a v e time. Pl. 56.1 St. ¶ 100.
19

D e f . 56.1 St. ¶ 125-26. See also Pl. 56.1 St. ¶ 125-26.
20

P T O Stipulated Facts ¶ 5.

6
o n the pretext of poor performance.21 D e fe n d a n t s paint a starkly different picture. According to them, Di Giovanna was a p ro b le m a ti c employee well before ­ and well after ­ he filed for FMLA leave. They deny having in te rfe re d with the exercise of his rights under the FMLA, or having retaliated against him for doing s o . Instead, they maintain that Di Giovanna was terminated for poor job performance after repeated, d o c u m e n te d lapses and an explicit warning that he would be fired if his performance did not im p r o v e .

D is c u ss io n I. T h e Summary Judgment Standard S u m m a ry judgment is appropriate if there is no genuine issue of material fact and the m o v i n g party is entitled to judgment as a matter of law.22 In considering a motion for summary j u d g m e n t , the Court's role "`is not to resolve disputed issues of fact but to assess whether there are a n y factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against t h e moving party.'" 23 Summary judgment should be granted where no reasonable trier of fact could fin d in favor of the nonmoving party,24 thus "dispos[ing] of meritless claims before becoming

21

S e e generally Pl. Br. at 2-10.
22

E . g . , Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); White v. ABCO Eng'g C o r p . , 221 F.3d 293, 300 (2d Cir.2000); see also FED. R. CIV. P. 56(c).
23

G o ld b e rg & Connolly v. New York Cmty. Bancorp, Inc., 565 F.3d 66, 71 (2d Cir. 2009) (q u o tin g Knight v. United States Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986)).
24

J a m e s v. New York Racing Ass'n, 233 F.3d 149, 152 (2d Cir. N.Y. 2000).

7
e n tre n c h e d in a frivolous and costly trial." 25 T h e Court is mindful that when a case turns on the intent of one party, as employment d i s c r i m i n a t io n claims often do, "a trial court must be cautious about granting summary judgment.26 H o w e v e r , it is no less true that to survive summary judgment a plaintiff must show that he can meet h i s ultimate burden, and the Second Circuit has gone "out of [its] way to remind district courts that th e impression that summary judgment is unavailable in discrimination cases is unsupportable." 27

II.

F M L A Claims In t e r fe r i n g with, restraining or denying an employee's rights under the FMLA is

u n l a w f u l . 28

Employers, moreover, are "prohibited from discriminating against employees or

p r o s p e c tiv e employees who have used FMLA leave." 29 The Second Circuit recognizes distinct

25

T a n v i r v. N.Y. State Banking Dep't, No. 01 Civ. 0144 (RLE), 2003 WL 22019733, at *4 (S .D .N .Y . Aug. 12, 2003) (citing Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 5 4 , 58 (2d Cir. 1987).
26

G a llo v. Prudential Residential Servs., Ltd. P'Ship, 22 F.3d 1219, 1223 (2d Cir. 1994).
27

E v a n s v. Consumer Information & Dispute Resolution (CIDR), No. 05 Civ. 8252 (AJP), 2006 W L 1209904, at *8 (S.D.N.Y. 2006) (quoting Weinstock v. Columbia Univ., 224 F.3d 33, 41 ( 2 d Cir. 2000)) (internal quotation marks omitted).
28

2 9 U.S.C. § 2615(a)(1).
29

2 9 C.F.R. § 825.220(c). See also Potenza v. City of New York, 365 F.3d 165, 167 (2d Cir. 2 0 0 4 ) (per curium).

8
c la im s for interference and retaliation under the FMLA.30 Di Giovanna asserts both. 31 Neither has m e rit.

A.

F M L A Interference Claim A prima facie claim of FMLA interference requires a plaintiff to establish by a

p r e p o n d e r a n c e of the evidence that: "(1) she is an eligible employee under the FMLA; (2) defendants constitute an e m p l o ye r under the FMLA; (3) she was entitled to leave under the FMLA; (4) that s h e gave notice to defendants of her intention to take leave; and (5) defendants denied h e r benefits to which she was entitled by the FMLA." 32 T o establish an FMLA interference claim, a plaintiff need prove only that an " `e m p l o ye r in some manner impeded the employee's exercise of his or her right[s]'" protected p ro v id e d by the statute.33 Di Giovanna here asserts that defendants interfered with his exercise of h is FMLA rights by (1) discouraging him from applying for FMLA leave and from using the leave o n c e it was approved, (2) telling him that spending more time at work was the only way to improve h is work performance, and (3) terminating him for alleged performance problems that resulted from
30

S h a r k v. City of New York, 03 Civ. 2616 (PKC), 2008 WL 4444122, at *4 n.2 (Sept. 29, 2 0 0 8 ) (citing Potenza, 365 F.3d at 168).
31

C p t. ¶ 20; Pl. Br. at 12, 21.
32

R e i l ly , 620 F. Supp.2d at 524 (citing Esser v. Rainbow Advertising Sales Corp., 448 F . S u p p . 2 d 574, 580 (S.D.N.Y. 2006)) (collecting cases).
33

R e illy v. Revlon, Inc., 620 F. Supp.2d 524, 534-535 (S.D.N.Y. 2009) (quoting Sista v. CDC IX I S North American Inc., 445 F.3d 161, 176 (2d Cir. 2006). See also 29 C.F.R. § 825.220 (" ` In te rfe rin g with' the exercise of an employee's rights would include, for example, not only r e f u s i n g to authorize FMLA leave, but discouraging an employee from using such leave."); P o te n z a , 365 F.3d at 167.

9
t h e use of his FMLA leave.34 He seeks support for his claim by arguing also that defendants d i s c o u r a ge d other employees from exercising their rights under the FMLA. None of these arguments h a s merit.

(1 )

Alleged Discouraging Statements by Dakis and Williams

D i Giovanna points to several instances in which Williams and Dakis allegedly either d i s c o u ra ge d him from taking or instructed him not to take FMLA leave.35 None of the alleged s ta te m e n ts actually supports his claim. F o r instance, Di Giovanna testified that, in February, 2007, Dakis "discouraged" him fro m and tr[ied] to convince" him not to apply for FMLA leave.36 Specifically, when Di Giovanna a s k e d her if he should file for FMLA leave, Dakis allegedly told him that "there was no need to, that a n o t h e r director, Irene Suea, had a mother that was terminal, that passed away and she did not file

34

P l. Br. at 24-25.
35

S e e id. at 2, 12, 17, Pl. 56.1 ¶ 58; Di Giovanna Dep. 212-13.
36

D i Giovanna Dep. 212:3-213-19. D i Giovanna's account of this purported conversation is sloppy and confusing. His brief s ta te s that he "explicitly asked Ms. Dakis whether a formal leave under the FMLA would be m o re appropriate in or about November 2006, but Ms. Dakis discouraged Plaintiff from filing fo r FMLA leave." Pl. Br. at 12. But the deposition testimony cited in support of this claim d e a ls with Di Giovanna's alleged conversation with Dakis in February 2007. Di Giovanna D e p . 212-213. Moreover, to the extent that any of his testimony covers November 2006 d is c u s s io n s about leave, that testimony (1) fails to distinguish between Dakis and Williams a n d , more importantly, (2) says nothing about FMLA leave or either person discouraging him fro m applying for leave. Di Giovanna Dep. 208:20-210:3.

10
fo r FMLA."37 Without even inquiring what Dakis meant, Di Giovanna claims that he "understood" D a k i s to have been discouraging him from filing for FMLA leave.38 Whatever Di Giovanna's actual s u b je c tiv e understanding, however, no trier of fact reasonably could have understood what Dakis a lle ged ly said as discouragement. Di Giovanna's memorandum of law asserts also that, "despite Ms. Williams' direction n o t to file for FMLA, [he] opposed her by exercising his rights to file." 39 This unsworn statement, h o w e v e r, is disingenuous. There simply is no evidence that Williams "directed" him not to file for F M LA leave. The most that can be said is that Di Giovanna testified at his deposition that Williams t o l d him that "there was no need to file for FMLA leave." 40 But, as we have seen, no reasonable ju ro r could regard that statement, assuming it was made, as discouragement let alone a direction not to file. W e a k e r still is Di Giovanna's assertion that Williams "interrogated" and "harassed" h i m with "barrages of questions" about his father's condition at "inappropriate times." 41 The cited d e p o s i tio n testimony does not support this inflammatory characterization.42 Nor does it evidence

37

Id . 213:3-7.
38

Id . 213:16-17.
39

P l. Br. at 12.
40

D i Giovanna Dep. 216:13-17.
41

P l . Br. at 18, 24 (citing to Di Giovanna Dep. 279-80).
42

The allegedly offensive questions were how Di Giovanna's father was doing and which hospital he was in. Di Giovanna Dep. 279:13-20, 280:4-7.

11
a n yth in g that would have dissuaded a similarly situated employee of ordinary resolve from exercising o r attempting to exercise FMLA rights. Indeed, there is no dispute that Di Giovanna took the days o ff he wanted when he wanted them. F in a lly, Di Giovanna maintains that "[i]n a stark admission by defendants, Ms W illia m s admitted she was giving plaintiff a bad review because he went ahead and filed for FMLA l e a v e . "43 This assertion twists the testimony cited to support it.44 In fact, there is no admissible e v id e n c e that Williams made any such admission. The bottom line here is that there is no evidence that either Dakis or Williams ever to l d Di Giovanna that she was unhappy that he was seeking or taking intermittent FMLA leave.45 D i Giovanna's subjective feelings, assuming he actually had the feelings he now claims he had, a b o u t what they actually said are insufficient to constitute interference under the FMLA, and not one o f the alleged statements would have dissuaded a similarly situated employee of ordinary resolve fro m attempting to exercise FMLA rights." 46

43

Id . at 6 (emphasis added).
44

S e e Di Giovanna Dep. 158:17-21 (attributing to Williams inquiry as to whether Di Giovanna "c ou ld spend more time at work."
45

D e f . 56.1 St. ¶146; Di Giovanna Dep. 250-54. Di Giovanna contradicts his own deposition te s tim o n y on this issue, albeit without citation to the record. See Pl. Br. at 6 ("[c]learly Ms. W illia m s was upset that Plaintiff had exercised his FMLA rights against her wishes."). It is w e l l settled that a party may not create a material issue of fact by disputing his own prior sworn te s tim o n y. Accord United Nat. Ins. Co. v. Tunnel, Inc., 988 F.2d 351 (2d Cir. 1993) (party c a n n ot create material issue of fact on summary judgment by submitting affidavit disputing his ow n prior sworn testimony); Forde v. Beth Israel Medical Ctr., 546 F. Supp. 2d 142, 151 ( S .D .N .Y . 2008) (same).
46

S e e e.g., Golden v. New York City Dept. of Environmental Protection, 06 Civ. 1587 (DLC) 2 0 0 7 WL 4258241, at *3 (S.D.N.Y. Dec. 03, 2007) (FMLA interference claim dismissed on

12
(2 ) Spending More Time at Work D i Giovanna claims also that Williams discouraged him from exercising his FMLA righ t s by "often" asking him to spend more time at work.47 Williams acknowledges that she once a s k e d Di Giovanna if he could come in early or work late to review PRDN accounts.48 Neither this, n o r any of the other vague instances in which Di Giovanna alleges that Williams broached the p o s s ib ility of spending more time at work, is evidence of interference with Di Giovanna's FMLA righ t s .49 Di Giovanna points to no authority that even suggests otherwise. M o r e o v e r , in pursuing this argument, Di Giovanna again misstates the record. His b r ie f asserts that Williams told him "he could improve his performance by spending more time at w o r k " and, during a June performance meeting, that "the only way he could improve his performance w a s by putting in more hours." 50 Neither hyperbolic claim is remotely supported by Di Giovanna's

s u m m a ry judgment because plaintiff failed to show that "discouraging" comments by s u p e r v i s o r would have dissuaded a similarly situated employee of ordinary resolve from e x e r c i s i n g his FMLA rights).
47

C p t. ¶ 15; Di Giovanna Dep. 140-41, 158-59, 162-65, 253-54.
48

D e f . 56.1 St. ¶ 91.
49

C f . Weichman v. Chubb & Son, 552 F.Supp. 2d 271, 289 n.8 (D. Conn. 2008) (concluding t h a t an employer asking an employee to make up lost time is insufficient to support e m p lo yee ' s claim of FMLA interference); New Orleans Jazz & Heritage Festival and Found, In c ., 464 F. Supp. 2d 562, 568 (E.D. La. 2006) (holding that employer did not interfere with p la in tiff' s FMLA rights where plaintiff was sometimes required to reschedule leave in order t o attend meetings).
50

P l . Br. at 24 (emphasis added).

13
d ep o s itio n testimony or by Williams' notes of their meeting, upon which Di Giovanna relies.51 As w e have seen, Di Giovanna testified only that Williams, in the context of discussing his performance re v i e w , inquired whether he could spend more time at work. Nor is his latter assertion accurate. W i ll ia m s ' notes do not say or even imply that Williams said that putting in more hours was "the only w a y" that Di Giovanna could improve his performance. Moreover, they reflect a litany of specific s u gge s tio n s by Williams on how Di Giovanna might have improved his performance, including " c lo s [in g] his door and work[ing] on the accounts for a period of undisturbed time." 52

(3 )

In t e r fe r e n c e with the FMLA Rights of Other Employees

D i Giovanna's allegations that defendants discouraged other employees from e x erc is in g their FMLA rights 53 are misleading and do not support his claim. His memorandum asserts, for example, that his former co-worker, Juan Cabrera, " te s tifie d that Defendants discouraged employees from taking FMLA time off from work." 54 What C a b re ra actually said, however, was only that "usually in the department it was kind of hard to take a n y kind of time off, " and "yes" when Di Giovanna's counsel asked, "[s]o is it fair to say that taking tim e off is discouraged." 55 He did not even mention the FMLA in the testimony cited by Di
51

Id .; See also Scheiner Affirmation. Ex. L.
52

S c h n e in e r Affirmation., Ex. L.
53

C p t. ¶¶ 13-14; Di Giovanna Dep. 256-70.
54

P l. Br. at 7.
55

C a b re ra Dep. 7:25-8:2; 9:4-8.

14
G i o v a n n a . 56 T o be sure, Di Giovanna claimed in his deposition that others were discouraged from t a k i n g FMLA leave. But his claims are based entirely on inadmissible hearsay, "an insufficient basis fo r opposing summary judgement." 57 For instance, he claimed that Cabrera "heard about" the case o f Ingrid Leer-Charles, and Cabrera's "belie[f] that she requested leave and was denied." 58 Worse s till, Cabrera himself testified that he had no personal knowledge on the subject and did not even k n o w if the leave Leer-Charles purportedly requested was intermittent leave.59 D i Giovanna offers also Cabrera's testimony that BIMC employee Martha Chubb's s e c o n d request for intermittent leave was denied, a fact Cabrera claims he learned from an email sent b y Liberty Mutual. Again, the assertion is based on inadmissible hearsay evidence. Moreover, C a b re ra testified that the email did not state a reason for the denial and that he had no idea why the re q u e s t was denied.60 F i n a l ly, Di Giovanna claims that co-worker Karen Ferrell approached him for advice a b o u t her own FMLA request and that "[a]pparently Ms. Williams had also given [her] a hard time

56

S e e Pl. Br. at 7; Cabrera Dep. 6-7, 9-10.
57

C a p o b ia n c o v. City of New York, 422 F.3d 47, 55 (2d Cir. 2005). See also FED. R. CIV. P. 5 6 ( e )(1 ) (requiring affidavits opposing summary judgment to "set out facts that would be a d m i s s i b l e in evidence").
58

Cabrera Dep. 11:22-24.
59

I d . 11:19-12:8.
60

Id . 12:22-13-25 (emphasis added).

15
w i t h her FMLA request." 61 His unsworn memorandum contends that Williams denied Ferrell's re q u e s t for intermittent FMLA leave "specifically because Ms. Ferrell was unable to provide the d a te s on which she would be missing work." 62 But Di Giovanna's claim is unsupported by

admissible evidence. As an initial matter, Di Giovanna's Rule 56.1 Statement admits ­ contrary to the suggestion in his memorandum ­ that Ferrell's request for FMLA leave was granted, although he claims that this had not occurred by the time he had been terminated.63 Ferrell, moreover, testified that her request was granted64 and submitted an extensive affidavit stating that Williams did not give her a "hard time" about and in fact granted that request.65 The only "evidence" to the contrary is Di Giovanna's deposition testimony to the effect that Ferrell told him that Williams had denied her request for FMLA leave.66 And this is insufficient to raise a genuine issue of fact, let alone a genuine issue of material fact. First, Di Giovanna's testimony as to Ferrell's alleged statement is hearsay ­ he offers it to prove the truth of Ferrell's alleged out of court statement. Inasmuch as Ferrell was a co-worker

61

C p t. ¶ 13.
62

P l. Br. at 8.
63

Compare Def. 56.1 St. ¶ 150 with Pl. 56.1 St. ¶ 150.
64

Ferrell Dep. 5:13-18.
65

Ferrell Aff. ¶¶ 19-22.
66

DiGiovanna Dep. 274:19-275:19.

16 and there is no evidence that she had anything to do with any decisions regarding FMLA leave for Di Giovanna, Ferrell's alleged statement was not within the scope of her employment and therefore not a vicarious admission by the defendants.67 In any case, even if Ferrell's alleged statement to Di Giovanna were admissible, it would be immaterial, especially in view of the fact that Ferrell's experience, whatever it was, is collateral to plaintiff's claim and in case does not support Di Giovanna in light of the fact that it is undisputed that she obtained the leave she requested.
La s tly, the unsupported allegations of interference with employees other than Di G io v a n n a are belied also by defendants' uncontested assertion that at least four other employees in p atien t financial services took intermittent FMLA leave between March 2005 and June 2008 and then r e t u r n e d to work full time.68 Di Giovanna's only rebuttal to this fact is his oft-repeated, inadequate re fra in , "deny knowledge and information." 69

(4 )

Termination

D i Giovanna argues that summary judgment should be denied "because a reasonable trie r of fact could find that [he] was terminated due to alleged performance problems that resulted

67

E.g., Evans v. Port Auth. of N.Y. & N.J., 192 F. Supp.2d 247, 261-64 (S.D.N.Y. 2002); accord, e.g., Phipps v. Comp. Comm. Devel.Corp., No. 00 Civ. 6063(RJH), 2005 WL 287413, at *13 & n.10 (S.D.N.Y. Feb. 4, 2005) (adopting Evans analysis); Greaves v. St. Luke's/Roosevelt Hosp. Center, 03 Civ., 7424 (SAS), 2005 WL 627635, at *1 n.12 (S.D.N.Y. Mar. 17, 2005).
68

D e f . 56.1 St. ¶ 151; Toia Aff. ¶ 2. Worth noting is that this fact alone might have been sufficient to kill plaintiff's prima facie c a s e on prong four. See Smith v. Planas, 975 F. Supp. 303, 308 (S.D.N.Y. 2007).
69

P l. 56.1 St. ¶ 151.

17
fr o m the very use of his FMLA leave." 70 As indicated by the short shrift he gives it in his m e m o r a n d u m , this really is no more than an effort to dress Di Giovanna's retaliation claim in (b a r e ly) different clothing. In any event, as will appear, the claim that Di Giovanna was terminated b e c a u s e of problems resulting from his use of FMLA leave is entirely unsupported by the record. * * *

In sum, it is undisputed that (1) Williams signed Di Giovanna's FMLA leave re q u e s t,71 (2) the request was granted, (3) Williams or Dakis signed every subsequent leave request h e made 72 and (4) there is no admissible evidence that either person ever told him he could not or s h o u ld not take off the day he requested. Di Giovanna has not adduced any evidence of any s t a t e m e n t by Dakis or Williams that would have dissuaded a similarly situated person of ordinary re s o l v e not to exercise his rights under the FMLA. The record therefore is devoid of evidence that c o u ld support the claim that defendants interfered with Di Giovanna's FMLA rights.

B.

F M L A Retaliation F M LA retaliation claims are analyzed under the familiar burden shifting framework

e s ta b lis h e d in McDonnell Douglas Corp. v. Green.73 P l a in t iff bears the initial burden of establishing a prima facie case of retaliation. If

70

P l. Br. at 24-25.
71

D e f. 56.1 St. ¶ 71
72

D i Giovanna Dep. 255:11-17.
73

4 1 1 U.S. 792 (1973). Potenza, 365 F.3d at 168.

18
h e meets this burden, a presumption of retaliation is created and the burden of production shifts to th e defendant to articulate a legitimate, non-discriminatory reason for the termination.74 If the e m p lo ye r does so, the presumption of discrimination is rebutted and "simply drops out of the p ic tu re ." 75 "The burden then shifts back to the plaintiff to show, without the benefit of any p re s u m p tio n s , that more likely than not the employer's decision was motivated, at least in part, by a discriminatory reason." 76 To satisfy this burden, the plaintiff may rely on evidence presented to e s ta b l is h the prima facie case, as well as additional evidence, which may include direct or c irc u m s ta n tia l evidence of discrimination.77

1.

A Prima Facie Case of Retaliation?

In order to make out a prima facie case of retaliation under the FMLA, plaintiff must a d d u c e evidence that (1) he exercised rights protected under the FMLA, (2) he was qualified for his p o s itio n , (3) he suffered an adverse employment action, and (4) the adverse employment action

74

F a r ia s v. Instructional Sys., 259 F.3d 91, 98 (2d Cir. 2001) (citing McDonnell Douglas, 411 U .S . at 802-03); Muhleisen v. Wear M e Apparel LLC, 07 Civ. 8748 (NRB), 2009 WL 2 3 5 5 7 8 4 , at *5 (S.D.N.Y. July 30, 2009).
75

S t. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11 (1993); see also James, at 154.
76

F o r d e v. Beth Israel Med. Center, 546 F. Supp. 2d 142, 149 (S.D.N.Y. 2008) (citing Fields v . N.Y. State Office of Mental Retardation & Developmental Disabilities, 115 F.3d 116, 1202 1 (2d Cir. 1997).
77

M u h le is en , 2009 WL 2355784, at *5 (citing Desert Palace, Inc. v. Costa, 539 U.S. 90, 99-101 (2 0 0 3 ); Harris v. City of New York, No. 03 Civ. 6167(DLC), 2004 WL 2943101, at *2 ( S .D .N .Y . Dec. 21, 2004).

19
o c c u r re d in circumstances giving rise to an inference of retaliatory intent.78 D e fe n d a n t s challenge the fourth element and maintain that the retaliation claim must b e dismissed because plaintiff's termination does not give rise to an inference of retaliatory intent. D i Giovanna's evidence in support of a prima facie case is at best anemic. However, h is burden at this first step is minimal,79 and the short time interval between his filing for FMLA le a v e and his termination may be sufficient to satisfy it. 80 But the Court will assume, without d e c i d i n g, that plaintiff has established a prima facie case, thus making it unnecessary to decide the i s s u e . 81

2.

Step 2 ­ Legitimate Reason for Discharge?

D e fe n d a n t s have satisfied their burden at step two by articulating a non-retaliatory re a s o n for terminating Di Giovanna. Specifically, they assert that Di Giovanna was terminated for

78

P o te n z a , 365 F.3d at 168. See also McFarlane v. Chao, No. 04 Civ. 4871(GBD), 2007 WL 1 0 1 7 6 0 4 , at *20 (S.D.N.Y. 2007).
79

S e e Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000) ("burden of proof that must be m e t to establish a prima facie case is minimal") (citing Hollander v. American Cyanamid Co., 1 7 2 F.3d 192, 199 (2d Cir.1999); Fisher v. Vassar College, 114 F.3d 1332, 1337 (2d Cir. 1 9 9 7 ) (same); Marron v. New York City Campaign Fin. Bd., No. 02 Civ. 5562 (LAK), 2004 W L 1144206, at *2 (S.D.N.Y. May 21, 2004) (same).
80

M u c c i v. St. Mary's Hosp., Inc., 2008 U.S. Dist. LEXIS 109363, at *13-15 (D. Conn. Sept. 1 8 , 2008)
81

E . g ., Brown v. Pension Bds., 488 F. Supp. 2d 395 (S.D.N.Y. 2007) (bypassing prima facie q u e stio n and proceeding right to the ultimate issue) (citing Moorehead v. New York City T ra n sit Auth., 385 F. Supp. 2d 248, 253-54 (S.D.N.Y. 2005) (assuming a prima facie case a n d proceeding directly to the "ultimate issue"). See also Jalal v. Columbia Univ., 4 F. Supp. 2 d 224, 234 (S.D.N.Y. 1998) (declining to "dance mechanistically through the McDonnell D o u g l a s . . . `minuets'" and proceeding directly to the ultimate issue)).

20
v a rio u s , documented instances of poor performance, many of which predated his FMLA a p p lic a tio n .82

3.

S te p 3 ­ Proof that FMLA Leave was the Real Reason for the Termination?

T h e ultimate question at this final stage is whether Di Giovanna adduced admissible e v id e n c e that would permit a reasonable jury to find that his termination was motivated by having file d for intermittent leave under the FMLA.83 "[T]he mere establishment of a prima facie case in th e face of a proffered reason for the adverse employment action is not necessarily a sufficient q u a n tu m of evidence to warrant submission to a jury." 84 Indeed, courts may ­ and regularly do ­ gra n t summary judgment dismissing claims at step three even after concluding ­ or accepting for a rgu m e n t 's sake ­ that the plaintiff had established a prima facie case at step one. 85
82

S e e Def. Br. at 4-7, 9-18, 23-24; see also e.g., Def. 56.1 St. ¶¶ 34-41 (detailing problems that a ro se when Di Giovanna ran PRDN unit in Williams' absence, culminating in his replacement w h e n Williams returned); ¶¶52-54 (accounts receivable too high in BCBS and CCMC units, a n d Di Giovanna told that his staff's performance in those units needed to improve); ¶¶ 54-57 (tw e lv e quality reviews completed between January and April 2007 cite fifteen of Di G io v a n n a ' s supervisors and staff members for various performance problems); ¶¶ 81-84 (Di G io v a n n a failed to follow Williams' direction regarding the review of denied claims); ¶ 96 (D i Giovanna failed to reviewed the denied accounts in a timely fashion); ¶¶ 115­116 (took s i x weeks to complete a priority project).
83

F i e l d s . 115 F.3d at 119 (citing St. Mary's Honor Center, 509 U.S. 502; see also Marron, 2 0 0 4 W L 1144206, at *1; Daly v. Presbyterian Hosp., 98 Civ. 4253 (NRB),2000 WL 8268, a t *4 (S.D.N.Y Jan. 3, 2000).
84

C a s a n o v a v. General Mills Restaurants Inc., No. 94-CV-4386 (FB), 1997 WL 473840, *3 (E .D .N .Y . Aug 15, 1997) (citing Fisher v. Vassar College, 114 F.3d 1332, 1337 (2d Cir. 1 9 9 7 ).
85

S c h n a b e l, 232 F.3d at 91 (affirming summary judgment despite finding of prima facie case b e c a u s e "plaintiff has presented no evidence upon which a reasonable trier of fact could base t h e conclusion that [discrimination] was a determinative factor in defendants' decision to fire

21
T o defeat summary judgment, Di Giovanna need not show that defendants' proffered r e a s o n was false or played no role in the decision to terminate him, but only that it was not the only re a s o n , and that his filing for FMLA leave was at least one motivating factor.86 To determine this, t h e court must use a case by case approach that evaluates "`the strength of the plaintiff's prima facie c a s e , the probative value of the proof that the employer's explanation is false, and any other evidence th a t supports [or undermines] the employer's case.'"87 Di Giovanna cannot prevail in these c irc u m s ta n c e s . T h e Court notes at the outset that much of Di Giovanna's retaliation claim rehashes t h e evidence and argument that he relied upon in attempting unsuccessfully to defeat summary j u d g m e n t dismissing his interference claim.88 Those arguments need not be revisited. Suffice it to s a y that there is no admissible evidence of any attempt to discourage or interfere with, nor animus a g a i n s t Di Giovanna or anyone else based upon, the exercise of FMLA rights. To defeat summary ju d gm e n t on his retaliation claim, Di Giovanna was obliged to come forward with some other

h im " ). See also e.g., Weichman v. Chubb & Son, 552 F. Supp. 2d 271, 290 (D. Conn. 2008); W a ts o n v. Arts & Entm't TV Network, 04 Civ. 1932 (HBP), 2008 WL 793596, at * 16-17 (S .D .N .Y . 2008); Dodson v. CBS Broad. Inc., 2004 WL 1336231, at 20 and n.5 (S.D.N.Y. J u n e 15, 2004) (collecting Second Circuit cases granting summary judgment at McDonnell D o u g la s step three).
86

M a r r o n , 2004 WL 1144206, at *1 (citing Back v. Hastings on Hudson Union Free Sch. Dist., 3 6 5 F.3d 107, 123 (2d Cir. 2004) (quoting Holtz v. Rockefeller & Co., 258 F.3d 62, 78 (2d C i r . 2001)).
87

M a tlo s z v. J.P. Morgan Chase, 03 Civ. 6235 (JGK), 2005 WL 2242196, at *6 (S.D.N.Y. S e p t . 3, 2005) (alteration in original) (quoting James, 233 F.3d at 156 (quoting Reeves, 530 U .S . at 148-49); see also Schnabel 232 F.3d 83 (2d Cir. 2000); Marron, 2004 WL 1144206 a t *5 (quoting Reeves, 530 U.S. at 148-49).
88

S e e e.g., P. Br. at 16-21.

22
e v i d e n c e that he was terminated at least in part because he exercised his FMLA rights. As will a p p e a r, he has failed to do so.

(1 )

P o o r Performance as Pretext

D i Giovanna argues his alleged poor performance was a pretext for terminating him, a n d that summary judgment is thus inappropriate.89 Specifically, his memorandum argues that he w a s a good performer unaware of any performance problems before he applied for FMLA leave and th a t Williams' letter of recommendation and his 2006 demonstrate pretext. Once again, Di Giovanna e m p lo ys a misleading portrayal of the record and facts insufficient to create a genuine issue of m a te ria l fact.

a.

E v i d e n c e Poor Performance Before and After FMLA

D i Giovanna claims that "[d]efendants offer no evidence of Plaintiff's alleged `bad p e r fo r m a n c e .'" 90 This is patently untrue. D e fe n d a n ts ' Rule 56.1 statement and supporting evidence provide a litany of e x a m p l e s of Di Giovanna's sustained poor performance at some of the most basic functions of his jo b that long predated his application for FMLA leave. Di Giovanna's response in many instances d o e s not actually dispute the specific assertions of poor performance, but instead contends that hwas

89

E . g ., DeMarco v. Stony Brook Clinical Practice Management Plan, No. 06 Civ. 4305 (JG), 2 0 0 8 WL 4240023, at *16 (E.D.N.Y., Sept. 15, 2008) (plaintiff can survive summary j u d g m e n t by presenting "evidence from which a rational jury could conclude that the p r o f f e r e d reason was a pretext for a retaliatory animus").
90

P l. Br. at 19.

23
u n a w a r e at the time of the problem or criticism alleged.91 Other times, Di Giovanna purports to d i s p u t e the factual assertion but the evidence he relies upon in doing so does not actually support his p o s itio n . In still other cases, he acknowledges the asserted act but argues with defendants'

c h a ra c te riz a tio n of it as poor performance.92 Finally, in yet other instances, he concedes the fact but a rgu e s in an extremely conclusory fashion, that whatever defendants say was pretextual 93 N o n e of these evasions raises a material issue of fact sufficient to defeat summary ju d gm e n t . Instead, they have left a largely unchallenged record that Di Giovanna was failing at v a rio u s basic aspects of his job well before his FMLA application, that he continued to have p ro b le m s after he applied, and that defendants explicitly warned him to improve or face termination. D i Giovanna's real quarrel, it appears, is with defendants' assessment of how best to assign work to a n d manage their employees and with their assessment of the quality of his work. Such a quarrel is

91

E .g ., Pl. 56.1 St. ¶ 55 (denying personal knowledge of the twelve quality reviews of his staff m a d e between January and April 2007, and citing to a blanket statement in his affidavit that h e never was advised of any deficiencies in his performance); ¶ 56 (defendants assert that p ro b le m s with Di Giovanna's staff helped slow the collection of money to the hospital, which D i Giovanna "denies" on the ground that "he was never made aware of the alleged slowing of c olle c tion of money by defendants before he filed for FMLA leave); ¶¶ 115-16 (admitting to ta kin g six weeks to complete a project that was to have been handled "ASAP," but asserting t h a t "at no time was he told that he was working too slowly or not doing his job adequately").
92

E .g ., ¶ ¶ 36-37 (denying that PRDN unit was failing to meet standards under his control by a rg u in g that standards were met unless "unless reassigned to other work"); ¶ 39; ¶ 42 (relying o n non-responsive affidavit testimony to deny defendants' claim that his poor supervision re su lte d in problems for the PRDN unit ); ¶ 120 (defendants assert that Di Giovanna failed to give a subordinate a project to work on by a certain date and Di Giovanna denies that he " ` fa ile d ' " to give her the project but admits that he "made a decision as a Manager" not to g i v e it to her).
93

E .g ., ¶ 125 (Di Giovanna admits that Williams met with him on September 27, 2007 about his c on tin u in g poor performance and told him he would be fired if he did not improve, but argues th a t Williams was "harassing [him] and "trying to create a pretextual reason to terminate" him.

24
im m a te ria l here.94

b.

L e tte r of Recommendation

Di Giovanna argues that Williams' April 2007 letter of recommendation demonstrates th a t Williams recognized the high quality of his work just a month before he applied for FMLA l e a v e , and thus showed that his termination for poor performance was mere pretext. This dog will n o t hunt. To be sure, the letter, drafted by Di Giovanna himself praises him and his leadership s k ills .95 But it does not support his retaliation claim. The undisputed evidence shows that Dakis and W i ll ia m s regularly criticized and documented Di Giovanna's performance woes well before April 2 0 0 7 . Morever, the letter speaks in highly generalized terms that do not contradict or undermine d e fe n d an ts ' detailed examples of his poor performance before and after May 2007. It does not tend to show pretext or offer any support for Di Giovanna's claim that his performance was free of p r o b le m s before May 2007 and that defendants launched a pretextual campaign to retaliate against h i m only when he filed for FMLA leave. After all, as noted previously, Di Giovanna himself a c k n o w le d g e d or failed to deny many of the performance problems cited by defendants.

c.
94

The 2006 Raise

E . g . , Ennis v. Sonitrol Mgmt. Corp., No. 02 Civ. 9070 (TPG), 2006 W L 177173, at *18 ( S . D . N . Y . Jan. 25, 2006) ("employee may be discharged on the basis of subjective business j u d g m e n t s for any reason that is not discriminatory or retaliatory) (citing Fierro v. Saks Fifth A v e , 13 F. Supp. 2d 481 (S.D.N.Y. 1998). See also Thornley v. Penton Publ., 104 F.3d 26, 2 9 (2d Cir. 1997).
95

S e e McEvoy Decl. Ex. 10 to Di Giovanna Dep.

25
D i Giovanna claims that Williams told him in early 2006 that he was "doing a great jo b " and gave him a $3,000 salary increase.96 As with the letter of recommendation, the argument i s that the raise belies any claim by defendants that William was fired for poor performance. But this i s weaker still. First, the purported raise was given over a year before Di Giovanna was terminated, w e ll before both the vast majority of the performance lapses cited by defendants and his thirty-day w a r n i n g . Relatedly, Di Giovanna's own account of the reason behind the salary increase ­ his `d o in g a great job' ­ does not raise a genuine issue of material fact as to any of the specific criticisms o f his poor performance, many of which Di Giovanna does not even dispute. Quite simply, even if h is version of why he received it is true, the 2006 raise would not support a claim of retaliation for e x e r c is in g his FMLA rights because it was too remote in time.

(2 )

D i Giovanna's Leave History

When viewed in the context of the entire record, as it must be at this stage, it becomes c le a r that Di Giovanna's retaliation claim is baseless. B e tw e e n November 2006 and May 17, 2007, Di Giovanna took twenty-seven days o ff with Dakis's or Williams' approval,97 "mostly all" of them to care for his father.98 When asked if either Dakis or Williams had a problem with him taking this time off during this period, Di

96

P l. Br. at 14; Di Giovanna Dep. 89-90.
97

D e f 56.1 St. ¶ 51; Dakis Aff. ¶ 65, Ex. 10 (copy of Di Giovanna's requests for time off during t h i s period).
98

D i Giovanna Dep. 210:25-211:1.

26
G i o v a n n a replied, "Not at all." 99 Meanwhile, during his six months of eligibility for intermittent F M LA leave prior to his termination, Di Giovanna took only seven days off.100 T h e s e undisputed facts belie Di Giovanna's unsupported "feeling" that defendants t e r m i n a t e d him in retaliation for filing for FMLA leave because that leave was interfering with his w o r k or because "they were annoyed because they perceived that [his] FMLA leave inconvenienced th e m ."101 This is particularly true considering that Di Giovanna claims that the campaign to retaliate a ga in s t him began at least as early as June 26, when Williams criticized him for his handling of P R D N accounts.102 By that date, Di Giovanna had taken only one day of intermittent FMLA leave.103 T o accept Di Giovanna's claim then, one would have to believe that, after having no p ro b le m "at all" with his taking off roughly twenty-seven days to care for his father before May 17, D a k i s and Williams decided to punish Di Giovanna for taking one day of FMLA leave by setting up a n elaborate, months-long scheme to gin up evidence of poor performance in order to terminate him. T h is theory defies credulity and finds no support in the record.

99

I d . 211:23-212:2.
100

5 6 .1 St. ¶ 75; Di Giovanna Dep. 248; Dakis Aff. ¶ 65, Ex. 11 (copy of Di Giovanna's time o f f requests and "Intermittent Leave Time Tracking Reports" for that period).
101

P l. Br. at 24.
102

D e f. 56.1 St. ¶ 84; See also Di Giovanna Dep. 248-249.
103

D a k is Aff. ¶ 65, Ex. 10 (according to the contested reports submitted by defendants, June 29 D i Giovanna's first day of FMLA leave).

27
(3 ) Other Employees

Finally, consistent with his approach to his case, Di Giovanna's memorandum c o n ta in s one sentence alleging that "during his tenure with Defendants there was an incident in the b illin g department with an employee who filed for intermittent leave and was then terminated." 104 T h i s assertion apparently is based on a statement allegedly made to Di Giovanna by Linda Traister, B IM C 's director of billing, to the effect that another employee who had been on intermittent FMLA le a v e had been terminated.105 But Di Giovanna admitted at his deposition that he had no evidence to support a suggestion that the termination of that unnamed employee violated the FMLA.106 * * *

In sum, Di Giovanna has presented no evidence upon which a reasonable trier of fact c o u l d base the conclusion that his exercising his rights under the FMLA was a motivating factor in th e decision to terminate him.

C.

O p p o s i t io n to Interference with FMLA Rights D i Giovanna's third cause of action alleges that defendants terminated him because

h e opposed interference with his own FMLA rights and with the FMLA rights of others. Di G i o v a n n a has offered no evidence that he ever opposed any alleged interference with his or anyone

104

P l. Br. at 9; 304:11-21.
105

Di Giovanna Dep. 304:11-21.
106

D i Giovanna Dep. 305:2-15.

28
e ls e 's FMLA rights.107 Furthermore, he has made no attempt to rebut defendants' motion for s u m m a ry judgment on this point. Indeed his opposition papers do not even mention the claim. Accordingly, Di Giovanna has abandoned this claim.108

C o n c lu sio n F o r the foregoing reasons, defendants' motion for summary judgment dismissing the c o m p l a in t (DI 30) is granted in its entirety. The Clerk shall enter judgment and close the case.

S O ORDERED. D a te d : S e p te m b e r 8, 2009

107

D e f. Br. at 32-34.
108

S e e , e.g.., Bellegar de Dussuau v. Blockbuster, Inc., No. 03 Civ.6614(WHP), 2006 WL 465374, a t *7 (S.D.N.Y. Feb. 28, 2006) (claim abandoned by plaintiff's failure to address it in o p p o s i ti o n to defendant's summary judgment motion) (citing Douglas v. Victor Capital Group, 2 1 F. Supp. 2d 379, 393 (S.D.N.Y. 1998)); DeVito v. Barrant, No. 03 Civ. 1927 (DLI), 2005 W L 2033722, at *10 (E.D.N.Y. Aug. 23, 2005); Anti-Monopoly, Inc., v. Hasbro, Inc., 958 F .S u p p . 895, 907 & n. 11 (S.D.N.Y. 1997) ("failure to provide argument on a point at issue c on s titu te s abandonment of the issue"), aff'd, 130 F.3d 1101 (2d Cir.1997); cert. denied, 525 U .S . 813. See also S.D.N.Y. CIV. R. 7.1 ("[A]ll oppositions thereto shall be supported by a m e m or a n d u m of law, setting forth the points and authorities relied upon . . . in opposition to th e motion . . . . Willful failure to comply with this rule may be deemed sufficient cause for the . . . granting of a motion by default.").