Ejiogu v. Grand Minor Nursing and Rehabilitation Center et al
OPINION AND ORDER.....The plaintiffs April 1, 2017 motion for reconsideration of the dismissal upon summary judgment of her FMLA interference and retaliation claims is denied. (Signed by Judge Denise L. Cote on 4/5/2017) (gr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
GRAND MANOR NURSING AND
CAROLYN MOOYOUNG, and HOWARD WOLF,
OPINION AND ORDER
For the Plaintiff:
275 Seventh Avenue, Suite 705
New York, New York 10001
For Defendant Grand Manor Nursing and Rehabilitation Center:
Joseph J. Lynett
Jackson Lewis P.C.
44 South Broadway, 14th Floor
White Plains, New York 10601
For Defendants Carolyn Mooyoung and Howard Wolf:
Elior D. Shiloh
Lewis, Brisbois, Bisgaard & Smith, LLP
77 Water Street, Suite 2100
New York, New York 10005
DENISE COTE, District Judge:
On April 1, 2017, Gladys Ejiogu (“Ejiogu”) filed a motion
for reconsideration of the Court’s March 29 Opinion and Order
largely dismissing upon summary judgment Ejiogu’s interference
and retaliation claims under the Family and Medical Leave Act
Ejiogu v. Grand Manor Nursing & Rehab. Ctr., 15cv505
(DLC), 2017 WL 1184278 (S.D.N.Y. Mar. 29, 2017) (“Ejiogu”).1
April 1 motion for reconsideration is denied.
principal arguments in support of the motion are addressed
The standard for granting a motion for reconsideration is
Analytical Surveys, Inc. v. Tonga Partners, L.P., 684
F.3d 36, 52 (2d Cir. 2012) (citation omitted) (discussing a
motion under Rule 59(e), Fed. R. Civ. P.).
will generally be denied unless the moving party can point to
controlling decisions or data that the court overlooked.”
“A motion for reconsideration should be
granted only when the defendant identifies an intervening change
of controlling law, the availability of new evidence, or the
need to correct a clear error or prevent manifest injustice.”
Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable
Tr., 729 F.3d 99, 104 (2d Cir. 2013) (citation omitted).
“not a vehicle for relitigating old issues, presenting the case
under new theories, securing a rehearing on the merits, or
The April 1 motion does not seek reconsideration of the
dismissal of retaliation claims brought under the Rehabilitation
Act and the New York City Human Rights Law.
otherwise taking a second bite at the apple.”
Surveys, 684 F.3d at 52 (citation omitted).
Familiarity with Ejiogu is presumed.
Only those facts
necessary to understand the arguments presented in the motion
for reconsideration are repeated here.
Ejiogu has sued her
former employer Grand Manor Nursing and Rehabilitation Center
(“Grand Manor”) principally for interfering with her right to
take FMLA leave and retaliating against her for taking such
Ejiogu worked as an In-Service Coordinator at Grand
Manor for almost two years, beginning November 1, 2011.
responsible for training staff members on resident care and
conducting the orientation of new employees.
She took leave
from June 10 to 21, 2013 to care for her mother and to mourn her
Following that leave, she did not return to
Grand Manor as scheduled.
Instead, on June 26, she requested
FMLA leave for her own medical reasons.
That leave was granted,
and Ejiogu was on FMLA leave from June 25 to September 25, 2013.
Upon Ejiogu’s return to Grand Manor, she complained about
the new written description of her duties, which included
certain human resource (“HR”) duties.
The owners told her to
discuss her concerns with a senior supervisor, who would be
returning to Grand Manor on September 30.
But, following a
confrontational meeting with her direct supervisor -- Carolyn
Mooyoung (“Mooyoung”) -- on September 27, Ejiogu never returned
As described in detail in Ejiogu, the undisputed facts
demonstrate that the plaintiff abandoned her employment at Grand
The defendants were granted summary judgment on each of
plaintiff’s claims with the exception of her claim that Grand
Manor failed to give her FMLA leave in June of 2013 so that she
could care for her mother during her mother’s serious illness.
Ejiogu’s principal argument for reconsideration of the
denial of her interference claims concerns changes made to her
job description upon her return to Grand Manor.
In Ejiogu, the
Court held that “[n]o reasonable juror could avoid the
conclusion that Ejiogu was restored to an ‘equivalent position’
at Grand Manor when she returned from FMLA leave.”
WL 1184278, at *9.
Ejiogu urges in her reconsideration motion
that the determination of whether she was restored to an
“equivalent position” upon her return to Grand Manor is a
question of fact to be decided by a jury.
While the judgment of
whether the position offered an employee upon return from FMLA
leave is equivalent to the one held prior to leave is typically
a question of fact, in opposing this summary judgment motion
Ejiogu was required to identify admissible evidence from which a
jury could conclude that the positions were not equivalent.
This she failed to do.
Indeed, she does not even now dispute
any of the facts upon which the Court relied in making its
For example, Ejiogu does not dispute that the temporary InServices Coordinator hired in Ejiogu’s absence was required to
perform HR duties after Grand Manor lost its Director of Human
Nor does Ejiogu dispute that “the new HR duties were
few in number,” and were “substantially similar to those she had
previously performed, entailed substantially equivalent skill,
and imposed substantially equivalent responsibility.”
Moreover, Ejiogu does not challenge the Opinion’s rejection of
her argument that three particular duties had transformed her
Finally, beyond all of these hurdles to her claim, as she
twice concedes in her motion for reconsideration, Grand Manor’s
owners “gave her permission to discuss the [changes in her job
description] with Mr. Wolf when he returned” to work on Monday,
Having failed to meet with Wolf about her job
duties, it is not surprising that Ejiogu was unable in her
opposition to the motion for summary judgment to identify with
sufficient clarity or precision in which ways her job upon her
These three duties were that Ejiogu “Not Stay in Office,” that
she use an “HR File Documents” checklist, and that she create a
return to work would not have been “equivalent,” as measured by
the FMLA, to her prior position at Grand Manor.
The motion for reconsideration principally argues that
Ejiogu relied on the wrong body of law in defining what
constitutes an adverse employment action in the context of an
FMLA retaliation claim.
The use of the correct definition for
an adverse employment action had no impact, however, on the
plaintiff’s chief complaint in this lawsuit -- which is that she
was fired in retaliation for her opposition to a change in her
It has never been disputed that the termination of
employment constitutes an adverse action.
In any event, none of
Ejiogu’s retaliation claim survives on reconsideration.
The motion for reconsideration recognizes that Ejiogu
correctly described both the prima facie test for an FMLA
retaliation claim and general standard for assessing the
existence of an adverse employment action in the context of a
To establish a prima facie case of FMLA
retaliation, a plaintiff must show that:
1) he exercised rights protected under the FMLA; 2) he
was qualified for his position; 3) he suffered an
adverse employment action; and 4) the adverse
employment action occurred under circumstances giving
rise to an inference of retaliatory intent.
Graziadio v. Culinary Inst. of Am., 817 F.3d 415, 429 (2d Cir.
2016) (citation omitted).
An adverse employment action is “any
action by the employer that is likely to dissuade a reasonable
worker in the plaintiff’s position from exercising his legal
rights,” and may include “changes in employment life outside of
the terms and conditions of employment.”
Millea v. Metro-North
R.R. Co., 658 F.3d 154, 164 (2d Cir. 2011) (applying the Supreme
Court’s standard for an “adverse employment action” in the Title
VII retaliation context, see Burlington Northern & Santa Fe R.R.
Co v. White, 548 U.S. 53, 67-69 (2006), to FMLA retaliation
The adverse-action standard for retaliation “covers a
broader range of conduct than does the adverse-action standard
for claims of discrimination.”
Vega v. Hempstead Union Free
Sch. Dist., 801 F.3d 72, 90 (2d Cir. 2015).
With respect to
adverse actions in the retaliation context, the Supreme Court
has cautioned that:
Context maters. The real social impact of workplace
behavior often depends on a constellation of
surrounding circumstances, expectations, and
relationships which are not fully captured by a simple
recitation of the words used or the physical acts
performed. 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. A supervisor’s refusal to invite
an employee to lunch is normally trivial, a
nonactionable petty slight. But to retaliate by
excluding an employee from a weekly training lunch
that contributes significantly to the employee’s
professional advancement might well deter a reasonable
employee from complaining about discrimination.
Burlington Northern, 548 U.S. at 69 (citation omitted).
Since clarifying the definition of an “adverse employment
action” in Millea, the Second Circuit has found an adverse
employment action where a high school teacher was denied tenure
after taking FMLA leave.
Donnelly v. Greenburgh Cent. Sch.
Dist. No. 7, 691 F.3d 134, 147 (2d Cir. 2012).
In the Title VII
retaliation context, the Second Circuit has found adverse
employment actions where a plaintiff was demoted to a nonmanagerial title after complaining about his employer’s
discriminatory employment practices, Littlejohn v. City of N.Y.,
795 F.3d 297, 316 (2d Cir. 2015), and where a high school math
teacher was assigned notoriously absent students, suffered a
temporary paycheck reduction, was not notified that the
curriculum for one of his classes had changed, and received a
negative performance evaluation after filing a charge of
discrimination with the Equal Employment Opportunity Commission.
Vega, 801 F.3d at 91-92.
The motion for reconsideration correctly identifies an
error, however, in Ejiogu’s discussion of the precedent
addressed to an “adverse employment action.”
was error to describe precedent defining an adverse employment
action in the discrimination context when addressing an adverse
employment action in the retaliation context.
error, the analysis of Ejiogu’s FMLA retaliation claims remains
Each of the three adverse employment actions which
the plaintiff identified in opposition to the motion for summary
judgment is reconsidered below.3
As Ejiogu was attempting to secretly record Mooyoung during
their meeting on September 27, Ejiogu’s recording device –- a
telephone -- made a noise.
Ejiogu asserts that Mooyoung then
lunged toward her to grab the phone.
Ejiogu characterizes this
lunge as an assault, even though she was not touched, and
contends that it was an adverse employment action taken against
her in retaliation for her complaints about changes made to her
job description upon her return from FMLA leave.
No jury could
find that this single incident would dissuade a reasonable
worker in Ejiogu’s position from exercising her legal rights.
Ejiogu repeatedly stated in opposition to the motion for
summary judgment that she was asserting only three adverse
actions. She identified them as “((1) assault; (2) unclearly
communicated suspension or termination later reduced, but
uncommunicated to suspension; then, finally, (3) outright
Millea, 658 F.3d at 164.
Nor can Ejiogu show that the exercise
of her rights under the FMLA was a motivating factor, let alone
a “but for cause,”4 of Mooyoung’s decision to reach for the
It was the sound of Ejiogu’s phone -- not
Ejiogu’s expressed concerns about her new HR duties -- that
prompted Mooyoung to lunge for the phone.
The second adverse action to which Ejiogu pointed in
opposition to summary judgment was the drafting of a
disciplinary suspension on September 27.
The broad “adverse
employment action” standard articulated above, however, does not
assist Ejiogu here either.
Grand Manor never suspended Ejiogu
and she was not aware of the draft suspension until after she
commenced this litigation.
Without knowledge that an employer
was considering a suspension, a reasonable worker in Ejiogu’s
position could not point to the drafted suspension document as
It is unclear in light of University of Texas Southwestern
Medical Center v. Nassar, 133 S. Ct. 2517 (2013), what causal
relationship must be shown in order to prove retaliation under
the FMLA. In Nassar, the Supreme Court held that a “but-for”
standard of causation, rather than a “motivating factor”
standard, applies to Title VII retaliation claims. Id. at 253334. The Second Circuit has not addressed whether to extend the
more demanding “but-for” standard to retaliation claims under
the FMLA. Because there is no genuine issue of material fact as
to whether Ejiogu’s exercise of her FMLA rights was a motivating
factor in Mooyoung’s alleged assault, it is unnecessary to
address which standard of causation governs.
an adverse action that would dissuade her from voicing her
concerns about changes in her job description.
The principal adverse action upon which Ejiogu has always
relied to support her retaliation claim was the termination of
her employment at Grand Manor.
But, the analysis of Ejiogu’s
retaliatory termination claim was never affected by the adverse
The termination of employment is an adverse
employment action under any standard.
Instead, this prong of
the retaliation claim foundered because Ejiogu abandoned her
position at Grand Manor.
In the motion for reconsideration, Ejiogu argues again that
the issue of abandonment is a question of fact to be decided by
In her motion, however, Ejiogu does not contend that
the Opinion incorrectly described any of the facts upon which it
relied in finding that no reasonable jury could avoid concluding
that the plaintiff abandoned her job.
A motion for
reconsideration is not a vehicle for a rehearing on the merits.
Accordingly, Ejiogu’s motion for reconsideration on the
dismissal of the retaliatory termination claim is denied.
The plaintiff’s April 1, 2017 motion for reconsideration of
the dismissal upon summary judgment of her FMLA interference and
retaliation claims is denied.
New York, New York
April 5, 2017
United States District Judge
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