Dearden v. Glaxosmithkline LLC et al

Filing 44

OPINION re: #30 MOTION for Summary Judgment , filed by GlaxoSmithKline Consumer Healthcare Holdings (US) LLC, Glaxosmithkline LLC. Based upon the facts and conclusions set forth below, the Defendants' motion for summary judgment is granted, and the Amended Complaint is dismissed. As Plaintiff has neither established that she possessed a disability protected by the NYSHRL nor that the circumstances under which she was terminated give rise to an inference of disability discrimination, Defendants' motion for summary judgment as to the Amended Complaint's Count II and III is granted. For the foregoing reasons, Defendants' motion for summary judgment is granted, and as further set forth herein. (Signed by Judge Robert W. Sweet on 9/14/2017) (ras)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-------------------------------------x
APRIL DEARDEN,
Plaintiff,
-againstGLAXOSMITHKLINE LLC., d/b/a/ GSK,
GLAXOSMITHKLINE CONSUMER
HEALTHCARE HOLDINGS (US) LLC.,
d/b/a GSK,

A P P E A R A N C E S:

Attorneys for Plaintiff
FRANK & ASSOCIATES, P.C.
500 Bi-County Blvd., Suite 465
Farmingdale, NY 11735
By:
Patricia L. Boland, Esq.

Attorne y s for Defendants
MORGAN, LEWIS & BOCKIUS LLP
101 Park Avenue
New York, NY 10178
By:
Blair J. Robinson, Esq.
Jason J. Ranjo, Esq.

15 Civ. 7628
OPINION

Sweet, D.J.

Defendants GlaxoSmithKline, LLC, doing business as GSK
("GSK") and GlaxoSmithKline Consumer Healthcare Holdings

(US)

LLC (together with GSK, the "Defendants") have moved pursuant to
Federal Rule of Civil Procedure 56 to dismiss the complaint of
Plaintiff April Dearden ("Dearden" or the "Plaintiff") for her
retaliation and discrimination claims under the Family and
Medical Leave Act ("FMLA") and New York Human Rights Law
( "NYSHRL")

(the "Amended Complaint," Dkt. No. 2 6) . Based upon

the facts and conclusions set forth below, the Defendants'
motion for summary judgment is granted, and the Amended
Complaint is dismissed.

I.

Prior Proceedings

Plaintiff filed her Complaint on September 28, 2015, and,
pursuant to a stipulation between the parties, filed an Amended
Complaint on September 24 , 2016.

(See Dkt. Nos. 1, 24 , 26 .)

In

Plaintiff's Amended Complaint, Plaintiff allege d retaliation for
taking FMLA in vio lations of the statute (Count I),
discriminatory termination based on a known or perceived
disability in vio lation of the NYSHRL (Counts II and III), and

l

retaliation in violation of the NYSHRL (Count IV) . 1 (See Amended
Complaint!! 54-70.) Discovery has been completed.

On April 14, 2017, Defendants moved for s ummary judgment.
(Dkt. No. 30.) The instant motion was heard and marked fully
submitted on June 21, 2017.

II.

The Facts

The facts have been set forth in Defendants' Statement of
Undisputed Material Facts,

(Dkt. No. 32), and Plaintiff's Rule

56.1 Counter-Statement in Opposition,

(Dkt. No. 37). The facts

are not in dispute except as noted below.

GSK is a global pharmaceutical, vaccine, and consumer
wellness company.
13, 2017

(Declaration of Sylvetta Harris dated April

("Harris Deel.") ! 2, Dkt. No. 34; Pl. Dep. 19:9-18. 2 )

1

Plaintiff has not disputed Defendants' opposition to her
NYSHRL retaliation claim and, in motion papers for the instant
motion, has stated that that claim is withdrawn. (Pl.'s Mem. in
Opp. at 1 n.1, Dkt. No. 36); see Quintero v. Rite Aid of N.Y.,
Inc., No. 09 Ci v . 6084 (JLC), 2011 WL 5529818, at *19 (S.D.N.Y.
Nov. 10, 2011) (collecting cases). Accordingly, Defendants'
motion for summary judgment as to the Amended Complaint's Count
IV is granted.
2

Citations to "Pl. Dep." refer to the deposition of April
Dearden dated November 7, 2016, deposition pages for which were
2

Plaintiff began working for GSK as a pharmaceutical sales
representative in 2002 .

(Pl. Dep. 13:2-3, 16-3-10.)

Plaintiff's employment with GSK was governed by GSK's Code
of Conduct policy, which addressed conflicts of interest and
stated, in relevant part:
We must all be free from actual or potential conflicts
of interest. A conflict of interest occurs whenever
the prospect of direct or indirect personal gain may
influence or appear to influence our judgment or
actions while conducting GSK business.

* * *
It is important to avoid not only an actual conflict
of interest, but also the appearance of a conflict in
the performance of you job. You must promptly disclose
to a manager, supervisor or a Compliance Office, any
situation that may involve a potential or actua l
conflict of interest and ask for appropriate guidance
before taking any action (in accordance with local
privacy laws).
(Harris Deel., Ex. A, at 9.) GSK's Code of Conduct Policy also
noted that any failure to comply with its provisions will
subject an employee "to disciplinary action up to and including
termination from employment." (Id. at 5.)

submitted with the Declaration of Jason J. Ranjo dated April 14,
2017 ("Ranjo Deel."), Ex. A, Dkt No. 33, and the Affirmation of
Patricia L. Boland dated April 28, 2017 ("Boland Aff.), Ex. A,
Dkt. No. 38, and incorporates the exhibits referenced therein.
3

In July 20 13, as part of a corporate restructuring,
Plaintiff began reporting to District Sales Manager Lauren
Phillips ("Phillips").

(Pl. Dep. 18: 14-23; Ranjo Deel., Ex . B

("Phillips Dep."), at 14:4-7.) While reporting to Phillips,
Plaintiff worked in GSK's pulmonary and primary care
pharmaceuticals line of business.

(Pl. Dep. 20 : 20 - 22: 3.)

Plaintiff's job responsibilities included calling healthcare
providers within her geographic territory, planning and
recording sales calls, reporting expenses, and studying for
tests necessary to promote the products to which she was
assigned.

(Pl. Dep. 29 :1 2 -3 2 :9.)

Plaintiff was assigned the Middletown territory, which
covered areas of Orange County, New York, and included the towns
of Middletown, Goshen, Fishkill, Yorktown, Warwick, and Port
Jervis.

(Pl. Dep. 22 : 4-25; Phillips Dep. 50: 10-12.) Plaintiff

shared responsibility for the Middletown territory with her
sales partner, Ife-Marie Lafontant ("Lafontant").

(Pl. Dep.

25 :14-26:16.)

Prior to 2009, Plaintiff obtained a certification to work
as a Corporate Wellness coach and, by 2010, had started her own
health and wellness business, New Normal Lifestyles

4

("NNL").

(Pl. Dep. 35:2-36:18, 38:2-16.) Between 2010 and 2014, Plaintiff
worked with clients on nutrition and other issues related to
personal health and wellness independent of her sales work with
GSK.

(Pl. Dep. 36:24-38:12.) Sometime in either 2011 or 2012,

Plaintiff received a certification in nutrition.

(Pl. Dep.

10:17-12:24.)

Through her NNL business, Plaintiff also provided
educational services related to health and wellness to colleges,
including Bard College and Empire State College.

(Pl. Dep. 37:7-

9, 38:17-22, 58:3-6, 75:4-13.) For example, from July to
December 20 13, Plaintiff taught a weekly health and nutrition
Wellness Course at Bard College that started at noon on
Wednesdays and lasted one hour.

(Pl. Dep. 61:13-64:12,

67:8-16,

72:6-25.) Bard College was located outside of Plaintiff's GSK
territory, and such classes caused Plaintiff to be outside her
assigned GSK territory and performing her assigned GSK work for
between one to two hours each session, according to Plaintiff,
(Pl. Dep. 66:6-8), or greater than two hours, according to
Defendants,

(Pl. Dep. 63:4-65:16, 66:2-13). The parties do not

dispute that during Plaintiff's eighteen weeks of teaching at
Bard College, Plaintiff sent and received emails related to her
NNL business and may have prepared for teaching the Bard College

5

classes during her GSK working hours.

(Pl. Dep. 74:7-23, 84:5-

85:87:24.) After completing two nine-week sessions, Plaintiff
chose to stop teaching the Wellness Course.

(Pl. Dep. 75:13-

78:25.)

Plaintiff also lectured on nutrition at Empire State
College on at least one occasion in April 2014.

(Pl. Dep. 58:3-

59:5-18.) The parties dispute the degree to which Plaintiff
prepared for her lecture during work hours prior to the class,
and Plaintiff does not recall when she prepared.

(Id.)

Plaintiff operated a blog to promote her NNL business, on
which she provided advice on health issues, including eating
properly, stress management, and general wellness tips.

(Pl.

Dep. at 40:18-43:6, 45:16-21, 48:23-49:8.) Between 2010 and
2014, Plaintiff updated the NNL blog several times a month,
although the parties contest precisely how often Plaintiff
generated new content and how much time, if any, was spent
updating the blog during Plaintiff's regular GSK working hours.
(Pl. Dep. 42:10-43:25.) Plaintiff also discussed NNL with GSK
customers during her sales calls.

6

(Pl. Dep. 55:14-57:10.)

On January 16, 2014, Plaintiff published a book related to
her NNL business entitled "8 Weeks to Your New Normal
Lifestyle." (Pl. Dep. 46:16-18, 49:9-50:12.) Plaintiff's book
provided readers with a journal for logging their weekly food
habits and "new healthy habit[s]" they could incorporate into
their meal plans.

(Pl. Dep. 50:13-25.) Plaintiff wrote the book

herself over the course of about one year, starting in early
2013.

(Pl. Dep. 51:13-20.) Plaintiff promoted her book on social

media, including Facebook, while waiting to see physicians
during her assigned GSK sales calls.

(Pl. Dep. 53:7-17.)

In March 2 014, Plaintiff began working as an independent
contractor for AdvoCare International, L.P.

("AdvoCare"), a

nutrition and supplement company that promoted individual health
and wellness.

(Pl. Dep. 171:2-173:10, 174:22-175:12.) Plaintiff

was an independent distributer of AdvoCare products in four
general areas: weight management, performance, energy, and
overall wellness.

(Pl. Dep. 174:14-23; 179:14-182:11.) Plaintiff

sold AdvoCare products from March 2014 throughout the remainder
of her employment with GSK.
physicians about AdvoCare.

(Id.)

Plaintiff never spoke to GSK

(Pl. Dep. 186:22-25.)

7

Plaintiff had her own webpage as part of AdvoCare's
website, on which she wrote, in relevant part:
For 12 years I worked for a large pharmaceutical
company. Over the years the job became more demanding,
my compensation went down and every quart e r there were
threats of layoffs. Until the day finally came and I
was let go. Thanks to AdvoCare that day was one of the
best things that ever happened to me. I had begun
building my Plan B four months before I was let go.
I've been building my AdvoCare business every day
since.
(Pl. Dep., Ex. 10.) Plaintiff has stated that s h e had been
working towards becoming an AdvoCare "Advisor" for several
months prior to her GSK termination.

(Pl. Dep. 178:2-179:18.)

Plaintiff discussed "everything [she] was doing" with NNL
and AdvoCare with LaFontant.

(Pl. Dep. 44:9-45: 4 , 46:4-11, 47: 2 -

9.) Plaintiff also discussed NNL with Ken Rooney, another GSK
sales representative.

(Pl. Dep. 47:13-48:22, 18 2 :16-184:25.)

Plaintiff never disclosed her NNL business or AdvoCare position
to Phillips or any other member of GSK management before taking
medical leave.

(Pl. Dep. 47:13-48:22, 175:25-176:7.)

On April 30, 2014, Plaintiff visited her primary care
physician, Dr. Anita V. Pavels ("Pavels") after experiencing
what she described as "stress related heart palp[itations],
dizziness, sleep problems" and shortness of breath.

8

(Ranjo

Deel., Ex. C; see Pl. Dep. 128:22-129:17.) Pavels referred
Plaintiff to a cardiovascular specialist to undergo testing of
her heart, which ultimately revealed no heart-related issues and
concluded a diagnosis of stress and anxiety.

(See Ranjo Deel.,

Ex. D; Pl. Dep. 1 2 9:3-23, 132:13-20.)

On or around May 1 2 , 2014, Plaintiff arrived approximately
forty-fi v e minutes late to a physician call whe r e she was
supposed to meet Phillips.

(Pl. Dep. 137:12-138 : 13; Phillips

Dep. 32:20-33:11.) According to Defendants, Plaintiff began
crying and explained to Phillips that she was experiencing
stress related to her job; Phillips advised Plaintiff that if
Plaintiff was unable to conduct the sales call, she should go
home for the day and consider seeking help from a doctor or
GSK's Employee Health Management.

(Pl. Dep. 138:15-139:22;

Phillips Dep. 31:23-32:11.) Plaintiff contends that, upon
arriving to the call, Phillips yelled at Plaintiff for being
late, which caused Plaintiff to cry.

(Pl. Dep. 138: 15.)

Phillips stated she did not understand why Plaintiff was
behaving that way, to which Plaintiff explained her stress
levels were very high; Phillips responded: "I don't understand.
High performing reps find workarounds. I can't g e t why you can't
do this," to which Plaintiff said she needed Phillips to

9

"understand and to help [her]." (Pl. Dep. 136: 3 -2, 138:15139:22.)

On or around May 14, 2014, Plaintiff cont a cted GSK's Human
Resources Department and requested medical leave because "she
needed .
stress.

to take some time for herself" due to work-related
(Pl. Dep. 140:10-20.) Plaintiff also submitted a Short-

Term Disability Benefit Statement from Pavels, on which Pavels
wrote that Plaintiff's "current physical limitations and
impairments" wer e that Plaintiff was "unable to perform [her]
job duties." (Harris Deel., Ex. B.) GSK granted Plaintiff leave
under the FMLA on June 2, 2014, effective May 1 9 , 2014.
Deel.

<JI

(Harris

4.)

Shortly after learning that Plaintiff would be taking FMLA
leave, Phillips sent an email to GSK's Human Resources and wrote
that, "When it rains, it pours." (Boland Aff., Ex. H.)
Defendants note that Phillips was referring in that email to a
different employee who had received negative performance re v iews
at the same time Plaintiff went out on leave and that,
"everything was happening at one time."

(Phillips Dep. 30:3-

31:17.) In June 2014, two of Phillips's other sales

10

representatives also were out on medical leave; both are still
employed by GSK.

(Phillips Dep. 51: 13-52: 2.)

On or around June 3, 2014, Lafontant informed Phillips that
Plaintiff had been operating her own health and wellness
businesses, NNL.

(Phillips Dep. 48:25-49:4, 40:22-41:24.)

Lafontant also told Phillips that Plaintiff had taught classes
at a local college during GSK work hours.
2 4.)

(Phillips Dep. 41:11-

Phillips reported this information to her manager, Regional

Vice President of Sales Sean McLaughlin, who adv ised Phillips to
contact GSK' s Integrity Hotline.

(Id.)

On June 4, 2014, Phillips called the Integrity Hotline and
repeated the information she had learned from Lafontant.
(Phillips Dep. 40:22-42:7.) Defendants contend that Phillips
suspected that Plaintiff's side business could present a
conflict of interest with her job for GSK, particularly given
that Plaintiff was operating NNL during GSK work hours.
(Phillips Dep. 41:17-42:4.) Plaintiff contends that Phillips
reported Plaintiff "[b]ecause [Plaintiff] was employed by GSK to
perform her role as a sales representative and not have other
jobs while doing so. It seems wrong."

11

(Phillips Dep. 41:25-

43:4.

0
)

The matter was referred to Kevin Ryan ("Ryan"), Director

of GSK's Corporate Investigations Team.

(Harris Deel.

~

5.)

On June 1 2 , 2014, Plaintiff began psychiatric treatment
with Dr. William H. Hartwig ("Hartwig"), a clinical
psychologist.

(Ranjo Deel., Ex. E.)

Plaintiff saw Hartwig

approximatel y once per week during her leave, during which time
Hartwig did not diagnose Plaintiff with any mental or physical
conditions, other than noting at times that she had problems
with "anxiety," "depression," and "compulsive behavior." (Pl.
Dep. 145:24-150:25, 155:8-16; see Boland Aff., Ex. L.)

Just before returning from medical leave, Plaintiff tried
out for the television show "Survivor" at Mohegan Sun in
Connecticut.

(Pl. Dep. 97:24-100:3.) Plaintiff did not inform

anyone at GSK that she tried out for the show.

(Pl. Dep. 100:24-

101:5.) Plaintiff states that she tried out based on
encouragement of her therapist who told Plaintiff to "do things
that were fun."

(Pl. Dep. 100:8-12.)

On August 20, 2014, Plaintiff requested a t r ansition plan
in advance for her return to work.

(Pl. Dep. 116 : 12-117:8;

Phillips Dep. 42:18-44:2.) Phillips provided the requested plan

12

and a "to do" list for Plaintiff upon her return, both actions
Phillips performed for subordinates returning from any type of
leave of absence.

(Phillips Dep. 4 2 :14-43:7, 45:8-46:4.) Aside

from Phillips, the only other contact Plaintiff had with GSK
during her leave was with a third-party leave administrator.
(Pl. Dep. 115:11-21.)

On August 25, 2014, Plaintiff returned from her FMLA lea v e
without any restrictions per Hartwig's direction.

(Pl. Dep.

159:9-10.) After returning to work, Plaintiff received treatment
from Hartwig about once every one or two months and stopped
seeing him altogether at some point in 2014, which Plaintiff
claims was due to her loss of health insurance coverage
following her termination from GSK.

(Pl. Dep. 159:8-160:25,

161:14-23.) Plaintiff also claims that upon returning to work,
Phillips began micromanaging Plaintiff's day, requiring
Plaintiff to detail her activities, as well as take assessment
exams demonstrating knowledge of various new pr o ducts which
Plaintiff states were scheduled at inconvenient times.

(Pl. Dep.

109:4-17, 118:19-119:24; Boland Aff., Ex. M.)

On September 10, 2014, Ryan and another memb er of GSK's
Corporate Investigations Team, Benjamin Byrne, i n terviewed

13

Plaintiff as part of their investigation.

(Pl. Dep. 89:24-90:9,

94:15-95:3.) During Plaintiff's interview, she provided, in
relevant part, the following responses:
•

When asked whether what "hours during the day she was
expected to work" as a GSK Sale Representative, Plaintiff
responded: "They vary in the field 8:30 AM - 5:00 PM but
then I also work weekends and evening with dinner programs .
. I work 8:30 AM - 5:00 PM during the week."

(Pl. Dep.

94:15-96:15; Boland Aff., Ex. N.)
•

When "asked how many calls per day she was required to
make," Plaintiff responded that she was required to make
"8" calls per day as "an average." (Boland Aff., Ex. N)

•

When "asked if she is the principal executive officer of a
business titled "New Normal Lifestyle INC," Plaintiff
responded: "Yes. It was established last year and provides
nutritional counseling services, it doesn't have any
products. I always conduct business for it in the evenings
and on weekends." (Id.)

•

Plaintiff admitted that she never reported h er side
business to GSK Human Resources.

•

(Id.)

When asked whether she "ever taught or conducted NNL[
business at a Community College or higher education
institution," Plaintiff responded: "I don't know."
14

(Id.)

•

Plaintiff admitted that she "led a break out session" at
Empire State College on April 30, 2014, to which Plaintiff
added that he meant to note further that the break out
session itself was not during GSK work hours.

•

(Id.)

Plaintiff admitted that both her GSK job and her NNL
business "pertain to health," although Plaintiff added
further that they pertained to different aspects of health.
(Id.)

•

Plaintiff admitted that she wrote a book related to her NNL
business.

•

(Id.)

When asked whether "she had ever had discussions with
customers about her NNL[] business," Plaintiff responded:
"I don't know all of the conversations I have. There are
personal conversations that occur between me and the HCP's
to build rapport. It has happened where in those
conversations my business has come up and it has been
discussed."

•

(Id.)

When "asked if she could specifically recall which
customers she had conversations about her NNL[] business,"
Plaintiff responded: "No." (Id.)

On September 12, 2014 , Ryan advised Plainti f f by email that
his investigation was complete and provided her with a copy of
15

the transcript from his September 10, 2014, interview of her.
(Pl. Dep. 94:15-96:15.) Ryan further advised that while "the
investigation process [was] completed[,]

[his] report [would] be

reviewed by the appropriate level of HR management to determine
final disposition." (Id.) That same day, Plaintiff responded by
providing "revisions" to the transcript of her interview and
indicating that she had sought "legal counsel." (Id.)

On September 15, 2014, Ryan issued a final report.
Harris Deel., Ex. C.) Mr. Ryan's report conclude d,

(See

inter alia,

that Plaintiff:
•

was knowledgeable of GSK Conflict of Interest policies,"
(id.);

•

acknowledged that she owned NNL, which "was a health field
related business," (id.);

•

"never reported her business to GSK Human Resources,
Compliance Officer and/or management team,"

•

(id.);

"had conversations with GSK [health care provider]
customers about her [NNL] business during GSK business
hours," (id.);

•

"has utilized social networking outlets (Facebook) for
personal reasons during GSK business hours," (id.); and

16

•

"participated in a try out for the TV game show 'Survivor'
while out on [short term disability]," (id.).

Subsequent to that review, GSK Human Resources Manager
Sylvetta Harris ("Harris") contacted Bard College and confirmed
that Plaintiff had taught there for about one to one-and-onehalf hours every Wednesday from September to December 2013 .
(Harris Deel., Ex. D.) Around this time, Defendants also claim
that Plaintiff threatened Phillips, which resulted in Phillips
refusing to go on a ride-along with Plaintiff, a comment that
Plaintiff denies making.

(See Boland Aff., Ex. O; Pl. Dep.

120:11-15, 124:12-125:8.)

On September, 17, 2014, Plaintiff called GSK's Employee
Relations Center to complain that Phillips had been treating her
harshly because she had taken medical leave.

(Pl. Dep. 121:4-

122:25.) Plaintiff complained that Phillips had b een more
critical of her work and had been managing her more closely
since returning from leave, including making a comment about how
Plaintiff was "in second gear" since her return and canceling a
ride-along.

(Pl. Dep. 122:7-25, 125:17-128.) At the time, the

parties dispute whether Plaintiff believed that Phillips
initiated the compliance investigation into Plaintiff's NNL
17

business.

(Pl. Dep. 89:11-19.) Harris investigated Plaintiff's

complaint and, after interviewing Phillips, found no evidence to
support a conclusion that Plaintiff was being harassed by her
manager.

(Harris Deel.

<j[

7.)

On October 21, 2014, Ryan's final report was submitted to
GSK's Employee Relations Advisory Team ("ERAT") for review in
accordance with GSK procedures.

(Harris Deel.

<j[

8.) The ERAT was

comprised of members of GSK's Employee Relations Department,
among others, and did not include Phillips or any other managers
with direct supervisory authority over Plaintiff.

(Id.)

After reviewing Ryan's final report and the outcome of
Harris's interview of Bard College, the ERAT concluded that
Plaintiff had violated GSK policy prohibiting actual or
potential conflicts of interest and recommended that Plaintiff's
employment be terminated.

(Harris Deel.

<j[

10.)

On or about October 22, 2014, Harris relayed the ERAT's
recommendation to Phillips and McLoughlin who accepted the
recommendation and, on December 5, 2015, communicated the
termination decision to Plaintiff in person.
11-12; Pl. Dep. 102:22-105:9.)

18

(Harris Deel.

<j[<j[

III. Applicable Standard

Summary judgment is appropriate only where "there is no
genuine issue as to any material fact and

the moving party

is entitled to a judgment as a matter of law."

Fed. R. Civ. P.

56(c). A dispute is "genuine" if "the evidence is such that a
reasonable jury could return a verdict for the nonmoving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). The

relevant inquiry on application for summary judgment is "whether
the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law."

Id. at 251-52 . A court

is not charged with weighing the evidence and determining its
truth, but with determining whether there is a genuine issue for
trial. Westinghouse Elec. Corp. v. N.Y.C. Transit Auth., 735 F.
Supp. 1205, 1 212 (S.D.N.Y. 1990)

(quoting Anderson, 477 U.S. at

249). "[T]he mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact." Anderson,
at 247-48

(emphasis in original).

19

477 U.S.

Courts must exercise "an extra measure of caution" in
determining whether to grant summary judgment in employment
discrimination cases "because direct evidence of discriminatory
intent is rare and such intent often must be inf erred from
circumstantial evidence .

." Schiano v . Quality Payroll

Sys., Inc., 445 F.3d 597, 603 (2d Cir. 2006)

(internal quotation

marks omitted). Nevertheless, "a plaintiff must provide more
than conclusory allegations to resist a motion for summary
judgment," Holcomb v. Iona Coll., 521 F.3d 130, 137

(2d Cir.

2008), and "summary judgment remains available for the dismissal
of discrimination claims in cases lacking genuine issues of
material fact," McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d
Cir. 1997).

Defendants' Motion for Summary Judgment is Granted

Plaintiff has several claims under her Amended Complaint
which remain to be considered on Defendants' motion for summary
judgment: Plaintiff's claim of retaliation for taking FMLA leave
in violations of the statute (Count I), and Plaintiff's claims
of discriminatory termination based on a known o r perceived
disability in violation of the NYSHRL (Counts II and III).
Amended

Complaint~~

54-70.) As the facts described above

20

(See

establish, Plaintiff cannot maintain claims for any of the
Amended Complaint's charges, and Defendants' motion is
accordingly granted.

i.

FMLA Retaliation Has Not Been Established

Under the FMLA, it is unlawful for an "emp l oyer to
interfere with, restrain, or deny the exercise of or the attempt
to exercise," FMLA rights. 29 U.S.C.

§

2615(a) (1). Claims of

retaliation, such as made by Plaintiff here, are analyzed under
the burden-shifting framework laid out in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). Under McDonnell Douglas, a
plaintiff must first establish a prima facie case for
retaliation by showing "t hat 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." Potenza v. City of N.Y., 365
F.3d 165, 168 (2d Cir. 2004) .

If a plaintiff makes out a prima facie case, the burden
shifts to the defendant "t o articulate some legi timate ,
nondiscriminatory reason" for the adverse actions. McDonnell

21

Douglas, 411 U.S. at 802. The defendant must provide evidence
adducing a nondiscriminatory explanation for the adverse
employment action.

If a nondiscriminatory explanation for the adverse action
is established, "the burden shifts back to the plaintiff to
demonstrate by competent evidence that the legitimate reasons
offered by the defendant were not its true reas o ns, but were a
pretext for discrimination." Patterson v. Cnty. of Oneida, 375
F.3d 206, 221 (2d Cir. 2004)

(internal quotation marks omitted).

Specifically, to rebut a defendant's explanation, the Second
Circuit has stated that a plaintiff must "produ c e not simply
'some' evidence, but 'sufficient evidence to support a rational
finding that the legitimate, nondiscriminatory reasons proffered
by the employer were false, and that more likel y than not
[discrimination] was the real reason for the discharge." Van
Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714

(2d Cir.

1996); see also Graziadio v. Culinary Inst. of Arn., 817 F.3d
415, 429 (2d Cir. 2016)

(citing Van Zant, 80 F.3d at 714).

22

a. Plaintiff's Prima Facie Case Has Not Been Made

Plaintiff argues retaliation by Defendants following her
return from FMLA leave by pointing to several actions taken by
Phillips, including: instructing Plaintiff to complete a "to do"
list; requiring Plaintiff to submit weekly reports; providing
Plaintiff with a transition plan; sending her curt emails;
accusing her of being "stuck in second gear;" and cancelling a
previously scheduled ride-along.

(See Amended Complaint

~~

23 ,

24 , 27 , 41, 42, 50-52.) Plaintiff also supports her prima facie
case by pointing to the timing between Plaintiff taking FMLA
leave and the instigation of GSK's investigation into Plaintiff
and her side businesses.

(See Pl.' s Mem. of Law in Opp.

("Pl.' s

Opp.") at 10-11, Dkt. 36.) The parties do not dispute the first
two prongs of the prima facie showing, that Plaintiff exercised
her FMLA rights or was qualified for her position. However,
Defendants contend that several events Plaintiff points to are
not adverse employment action, failing the third prong, and
that, overall, the examples do not create an inference of
retaliatory intent, failing the fourth prong. After a review of
the undisputed facts,

Plaintiff has not established her

necessary prima facie showing.

23

The Second Circuit has held that, "[f]or purposes of the
FMLA's anti-retaliation provision, a materially adverse action
is any action by the employer that is likely to dissuade a
reasonable worker in the plaintiff's position from exercising
his legal rights." Millea v. Metro-N. R.R.,

658 F.3d 154, 164

(2d Cir. 2011). Examples of a materially adverse employment
action include "a demotion evidenced by a decrease in wage or
salary, a less distinguished title, a material loss of benefits,
significantly diminished material responsibilities," Sanders v.
N.Y.C. Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004)
(citation omitted), or a "formal reprimand, Millea, 658 F.3d at
165. The standard must be objective; the test is whether a
"reasonable" employee would be deterred, and does not take into
consideration a plaintiff's "unusual subjective feelings."
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68-69
(2006). "[P]etty slights, minor annoyances, and simple lack of
good manners will not give rise to actionable retaliation
claims." McAvey v . Orange-Ulster BOCES, No. 07 Civ. 11181 (RWS),
2012 WL 161839, at *3-*4

(S.D.N.Y. Jan. 18, 2012)

(internal

quotation marks omitted)

(quoting Millea, 658 F.3d at 165).

The majority of Plaintiff's allegations, aside from her
termination, do not constitute adverse employment actions.

24

Plaintiff has claimed, inter alia, that Phillips sent Plaintiff
rude emails, complained about Plaintiff's work performance,
micromanaged Plaintiff and Plaintiff's schedule, required
Plaintiff to engage in product knowledge assessments at
inconvenient times, and canceled ride-alongs with Plaintiff.
Such actions are not so harmful or materially adverse as to
"well dissuade a reasonable worker from making or supporting a
charge of discrimination." Burlington N., 548 U.S. at 57.
Rather, they are the kinds that courts in this circuit have
repeatedly found not to constitute adverse actions. See Rivera
v. Orange Cty., No. 10 Civ. 9134
(S .D.N.Y. Mar. 5, 2013)

(VB), 2013 WL 812016 , at *9

(rejecting allegations of adverse action

when plaintiff alleged that manager discriminated "b y more
closely supervising and 'micro-managing ' him, excluding him from
meetings, assigning him more menial tasks, and generally making
him feel isolated at work"); Mi ln e v . Navigant Consulting, No.
08 Civ. 8964
2010)

(NRB), 2010 WL 4456853, at *8 (S.D.N.Y. Oct. 27 ,

(holding that "retaliation such as her supervisor's

'unavailabilit y, '

'apparent avoidance,'

'micromanagement, '

'harsh, unsupported criticism,' and intentional creation of
conflict with another high-level employee" did not constitute
adverse actions); Smalls v. Allstate Ins. Co., 396 F. Supp. 2d
364, 371 (S.D.N.Y. 2005)

("[B]eing yelled at, receiving unfair

25

criticism, receiving unfavorable schedules or work assignments
. do not rise to the level of adverse employment action")
(citation omitted) .

Even if Plaintiff had shown adverse actions other than
termination, the circumstances alleged do not give rise to an
inference of retaliatory intent. An inference of retaliation can
be established: "(i) indirectly through a showi n g that the
protected activity was followed closely by discriminatory
treatment, commonly known as 'temporal proximity;'

(ii)

indirectly through other evidence such as disparate treatment of
similarly-situated employees; or (iii) directly through a
showing of evidence of retaliatory animus toward plaintiff by
defendant." Alexander v . Bd. of Educ. of City Sch. Dist. of City
of N.Y., 107 F. Supp. 3d 323 , 328-29 (S.D.N.Y . 2015)

(citing

Carr v . WestLB Admin., Inc., 171 F. Supp. 2d 302, 309 (S.D.N.Y.
2001) ), aff'd sub nom . Alexander v. The Bd. of Educ. of City of
N.Y.,

648 F. App'x 118 (2d Cir. 2016). Plaintiff has presented

no direct evidence of retaliatory animus, and has not
established a causal nexus through either temporal proximity or
disparate treatment.

26

To start, as described above, the gravamen of Plaintiff's
allegations of discriminatory actions reside in the aftermath of
Plaintiff's return from FMLA leave in August 2014, but the many
months between those actions and her eventual termination in
December 2014 "militates against an inference of causation." Kim
v. Goldberg, Weprin, Finkel Goldstein, LLP, 862 F. Supp. 2d 311,
319 (S.D.N.Y. 2012)

(citing Kamrowski v. Morrison Mgmt.

Specialist, No. 05 Civ. 9234
(S.D.N.Y. Sept. 29, 2010)

(KMK), 2010 WL 3932354, at *22

(collecting cases)); see also O'Reilly

v. Consol. Edison Co. of N.Y., 173 F. App'x 20, 22
2006)

(2d Cir.

(holding that a three-month gap between FMLA leave and

termination insufficient to create an inference of retaliation) .
Moreover, Phillips' comments and actions, like that Plaintiff
was "stuck in second gear" and requiring Plaintiff to take
assessments, actions which indicate and appear motivated by
Phillips' impressions and displeasure of Plaintiff's
performance, do not evince the necessary relationship to
Plaintiff taking FMLA leave. See Tomassi v. Insignia Fin. Grp.,
Inc., 478 F.3d 111, 115 (2d Cir. 2007)

("[T]he more remote and

oblique the remarks are in relation to the employer's adverse
action, the less they prove that the action was motivated by
discrimination."), abrogated on other grounds by, Gross v. FBL
Fin. Servs., Inc., 557 U.S. 167 (2009). Lastly, Plaintiff did

27

return to work without any restrictions or established change in
her work responsibilities, and a "return to work after [a] leave
counters any inference of discrimination." Alexander, 107 F.
Supp. 3d at 330 (citing LeBoeuf v. N.Y. Univ. Med . Ctr., No.
Civ. 973 (JSM), 2000 WL 1863762, at *4

98

(S.D.N.Y. Dec. 20, 2000)

("[E]ven if one accepts as true that [an employer] was angry
because Plaintiff took his leave at a critical time, the fact
that [Plaintiff] was reinstated despite [the] alleged
displeasure gives rise to the inference that [the manager's]
anger at Plaintiff was not the reason for his termination.")).
Phillips actions, "without more, are insufficient to salvage
plaintiff's lawsuit on summary judgment." Muhleisen v. Wear Me
Apparel LLC, 644 F. Supp. 2d 375, 388

(S.D.N.Y. 2009).

Plaintiff argues that a temporal connection exists by
looking to the time between her taking FMLA leave and Phillips
informing GSK of Plaintiff's side businesses. In certain
circumstances, actions taken around the time of an initiation of
an investigation that ultimately results in termination can
create such an inference. See Barney v. Consol. Edison Co. of
N.Y., No. 99 Civ. 823 (DGT)
(E.D.N.Y. Oct. 1, 2009)

(SMG), 2009 WL 6551494, at *12

(accepting as plausible a theory of

retaliation where plaintiff alleged other employees had "set her

28

up" prior to an investigation as part of a larger course of
conduct culminating in plaintiff's termination), aff'd, 391 F.
App'x 993 (2d Cir. 2010) . What is to guide district courts is
the "permissible inferences that can be drawn from temporal
proximity in the context of particular cases." Espinal v . Goard,
558 F.3d 119, 129-30 (2d Cir. 2009). Yet even looking at events
back June 2014 and considering that temporality does not
establish the necessary retaliatory inference Pl aintiff seeks.

Viewed in the light most favorable to Plaintiff, no
favorable inference exists here. The undisputed facts show that
Plaintiff requested FMLA leave, which GSK granted; around the
same time, Phillips learned that Plaintiff had side businesses,
which she promptly reported to GSK. Plaintiff has put forward no
evidence, other than an email from Phillips complaining about
the number of GSK employees taking leave and commenting that
"when it rains it pours," to suggest intent, and nothing but her
own "spe cu lati on" that that Lafontant and Phillips were part of
a broader plan to have Plaintiff terminated. Zito v . Fried,
Frank, Harris, Shriver & Jacobson, LLP, 869 F. Supp. 2d 378, 401
(S .D.N.Y. 20 1 2); see also (Pl. Dep. 121 :4- 9) . 3 LaFontant's newly

3

For similar reasons, Plaintiff's citation to Terry v. Cnty.
of Cayuga, No. 11 Civ. 1296 (LEK) (ATB) , 2013 WL 5464395, at *9
(N.D.N.Y. Sept. 30, 2013), is unavailing. There, the court noted
29

presented information to Phillips, which Phillips shortly
thereafter acted upon, provides a "legitimate intervening basis"
for the instigation of an investigation against Phillips. Fraser
v. Fiduciar y Tr. Co. Int'l, No. 04 Civ. 6958

(PAC), 2009 WL

2601389, at *6 (S.D.N.Y. Aug. 25, 2009), aff'd, 396 F. App'x 734
(2d Cir. 2010).

Plaintiff also has not provided evidence of disparate
treatment. In her motion papers, Plaintiff puts forward as proof
two other GSK sales representatives that had side businesses who
were not terminated: one who was "a real estate agent" and one
who "was also an independent contractor for Advo care." (Pl.'s
Opp. at 16; see also Pl. Dep. 194:6-25.) No evidence has been
adduced that establishes that Defendants were aware of these
other employees' side businesses or, of equal importance, that
Plaintiff and either of them were similarly situated "in all
material respects." Shumway v. United Parcel Serv., Inc., 118
F.3d 60, 64

(2d Ci r . 1997); see also (Pl. Dep. 2 02:14-204:2;

Pl.'s Opp. at 16). Without any additional information,

that the record contained evidence that a report by a co-worker
about the terminated plaintiff was manufactured to support the
decision of the plaintiff's manager, who had a meaningfully
close social and professional relationship with the reporting
co-worker. Id. No evidence remotely suggesting such a
relationship has been adduced here.
30

Plaintiff's attempt to show disparate treatment must fail.
Risco v. McHugh, 868 F. Supp. 2d 75, 104

See

(S.D.N.Y. 2012)

("Without the necessary evidence of similarly situated
comparators,

[plaintiff] cannot meet her burden of demonstrating

facts that give rise to an inference of discrimination on the
basis of race or color under a disparate impact theor y ." );
Mattera v. JPMorgan Chase Corp., 740 F. Supp. 2d 561, 575
(S.D.N.Y. 2010)

("[P ]laintiff's 'feelings' and 'beliefs' are no

substitute for persuasive evidence that identifiable, valid
comparators were treated in a meaningfully different manner."
(citation omitted)).

In sum, Plaintiff has not made a prima facie showing.
Nevertheless, out of an abundance of caution, a review of
Defendants'

justification for Plaintiff's termination and

possible pretext will also be performed. See Kaiser v. Zurich N.
Am., No. 12 Civ . 6763 (VSB), 2015 WL 13360299, at *8
Mar. 31, 2015)

(S.D.N.Y.

(rejecting plaintiff's prima facie case but

continuing to analyze defendant's termination reasoning on
summary judgment).

31

b. The Reasons for Termination Were Not Pre-textual

Assuming, arguendo, that Plaintiff has met her burden to
make out a prima facie case, the next stage to consider is
whether Defendants have proffered a legitimate,
nondiscriminatory reason for Plaintiff's termination. In
response, Defendants put forward that they terminated
Plaintiff's employment for her violation of GSK's corporate
policy prohibiting "actual or potential conflicts of interest."
(Harris Deel., Ex. A, at 9.)

Based on the evidence presented

with regard to Plaintiff's health and nutrition side businesses
in the context of GSK conflict of interest policies, this
argument, "taken as true, would permit the conclusion that there
was a nondiscriminatory reason" for their action. Holcomb, 521
F.3d at 141 (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S.
502, 509 (1993)). Thus, Defendants have fulfilled the second
stage of the McDonnell Douglas framework, shifting the burden
back to Plaintiff.

To rebut the legitimate reasons for her discharge,
Plaintiff must, without the benefit of any presumptions, show
that a reasonable jury could conclude by a preponderance of the
evidence that her "disability was at least 'a motivating factor'

32

for the adverse employment action." Anderson v. Nat'l Grid,
93 F. Supp. 3d 120, 140 (E.D.N.Y. 2015)

PLC,

(quoting Hong Yin v. N.

Shore LIJ Health Sys., 20 F.Supp.3d 359, 371-72

(E.D.N.Y. 2014))

(citing Parker v. Columbia Pictures Indus., 204 F.3d 326, 336-37
(2d Cir. 2000) ); see also Alexander, 648 F. App'x at 122
(citation omitted)

(stating that, on the third stage, a

plaintiff must "(1) adduce 'evidence to a show that the
proffered explanation was pretextual,' or (2)

'identify

inconsistencies or implausibilities in that proffered reason').
Even if Plaintiff had established a prima facie case of FMLA
retaliation, she would still be unable to rebut Defendants'
stated nondiscriminatory justification.

Plaintiff supports her claim of pretext with similar
evidence that supported her claim for an infere n ce of
discrimination, principally pointing to the timing of Phillips'
request to start a GSK investigation relative to Plaintiff
taking FMLA leave and Phillips comments to Plaintiff upon
Plaintiff's return.

4

Plaintiff also argues that Phillips was

4

To the extent that Plaintiff again asserts claims about two
different GSK employee comparators who had side businesses while
GSK employees but, unlike Plaintiff, were not terminated, they
do not establish that Plaintiff's taking of FMLA leave was a
motivating factor in her termination and is aga i n rejected for
reasons already discussed supra.
33

involved in the decision to terminate Plaintiff and that, given
Plaintiff's performance at GSK, without such interference,
Plaintiff would otherwise have not been terminated.

Undergirding each of Plaintiff's contentions is the
undisputed fact that Plaintiff operated a health and nutrition
business on the side while a pharmaceutical sales representative
of GSK. After an investigation, performed by GSK's Corporate
Investigations Team and ERAT, GSK determined Plaintiff was in
violation of GSK's corporate policies that prohibit employees
from actual or potential conflicts of interest. When evaluating
Plaintiff's rebuttal in the context of this background, "it is
not the function of a fact-finder to second-guess business
decisions." Soderberg v. Gunther Int'l, Inc., 124 F. App'x 30,
32 (2d Cir. 2005)

(quoting Dister v. Cont'l Group,

Inc., 859

F.2d 1108, 1116 (2d Cir. 1988). The question is, rather, whether
Plaintiff has shown evidence that the decision is "so lacking in
merit as to call into question its genuineness." Dister, 859
F.2d at 1116 (collecting cases). As no evidence adduced has
established that the termination of Plaintiff's employment was
for any reason other than her violation of GSK's policy
prohibiting actual or potential conf licts of interest, for

34

similar reasons as stated above, Plaintiff's arguments are again
unavailing. s

First, Plaintiff's claims about her high work performance
and purported ability to balance her side businesses and other
GSK work are the kinds of "subjective view[s]" that d o "not
create a genuine issue of material fact." Morris v. Ales Grp.
USA, Inc., No. 04 Civ. 8239 (PAC)
(S.D.N.Y. June 29, 2007)

(THK), 2007 WL 1893729, at *10

(citing Holt v. KMI-Cont'l, Inc.,

95

F.3d 123, 130 (2d Cir. 1996)).

Second, Phillips comments about Phillips, both to Plaintiff
and to GSK employees, do not establish Plaintiff's claims. As
already noted, many of Phillips's actions, such as her email
comment that "when it rains it pours" and comments and actions
about Plaintiff's work performance upon Plaintiff's return from
5

As it is not disputed by Plaintiff that she did have
nutrition and health side businesses, which is Defendants'
stated reason for Plaintiff's termination, the facts established
here render many of Plaintiff's cited authorities inapposite.
See Yang v. Navigators Grp., Inc., 674 F. App'x 13, 15 (2d Cir.
2016) (finding a triable issue of fact where "[plaintiff] and
her supervisors here offered substantially different accounts of
her October 26, 2 012 presentation [the alleged reason by
defendant for plaintiff's termination]"); Sharkey v. JPMorgan
Chase & Co., 660 F. App'x 65, 68 (2d Cir. 2016) (finding triable
issue of fact when plaintiff showed defendants provided
"shifting rationales" for termination along with evidence
temporal proximity).
35

FMLA leave either have reasonable non-retaliatory explanations
or, even if viewed in the most favorable light to Plaintiff,
amount only to the kinds of unpleasant yet unavoidable
interactions endemic to professional life and, without
additional, more concrete evidence, "shed[

J

no light on the

ultimate decision to terminate [plaintiff]." Stuart v. T-Mobile
USA,

Inc., No. 14 Civ. 4252 (JMF), 2015 WL 4760184, at *6

(S.D.N.Y. Aug. 12, 2015); see also Bowman v. CS X Transp., Inc.,
22 F. Supp. 3d 181, 194 (N.D.N.Y. 2014)

(supervisor's concerns

about the performance and actions of an individual using FMLA
leave is not "evidence that [the defendant] negatively viewed
[the plaintiff's FMLA] leave"). Furthermore, while evidence has
shown that Phillips made comments to Plaintiff and about
Plaintiff while providing requested information about Plaintiff
to GSK investigators and employees, no evidence has been adduced
that Phillips was involved with the actual decision-making of
the two different GSK teams that investigated and ultimately
terminated Plaintiff. See Campbell v. Alliance Nat'l Inc., 107
F. Supp. 2d 234, 247

(S.D.N.Y. 2000)

(finding "isolated and

stray" comments made by a non-decision maker insufficient to
establish animus, granting summary judgment, and collecting
cases).

36

Thirdly, Plaintiff's argument as to the temporality between
Phillips' report to GSK and Plaintiff's FMLA leave cannot
support Plaintiff's retaliation claim. No evidence, other than
Plaintiff's conjectures, suggests that Phillips, in reporting
Plaintiff to GSK, was motivated by anything other than learning
for the first time about Plaintiff's side businesses back in
June 2014. With no additional evidence, "[t]he timing of events
alone, even if sufficient to meet the plaintiff's prima facie
burden, cannot defeat summary judgment in the face of
defendant's proffered legitimate reason." Vosatka v. Columbia
Univ., No. 04 Civ. 2936 (LAP), 2005 WL 2044857, at *10 (S.D.N.Y.
Aug. 25, 2005)

(citation omitted).

In sum, as Plaintiff has failed both to establish either a
prima facie case of retaliation or that her taking of FMLA was a
motivating factor in Defendants' termination of her employment
in opposition to Defendants' proffered non-retaliatory
explanation, Defendants' motion for summary judgment as to the
Amended Complaint's Count I is granted.

37

ii.

NYSHRL Discrimination Has Not Been Established

Plaintiff also contends that Defendants discriminated
against her on the basis of a disability or perceived disability
in violation of the NYSHRL. Analysis of claims made under the
NYCHRL requires a separate and independent analysis from any
federal and state law claims, and is construed "broadly in favor
of discrimination plaintiffs, to the extent that such a
construction is reasonably possible." Mihalik v. Credit Agricole
Cheuvreux N. Arn., Inc., 715 F.3d 102, 109 (2d Cir. 2013). To
establish a claim of disability discrimination under the NYSHRL,
Plaintiff must first establish a prima facie case by showing
that she:

(1) was actually or perceived to be legally disabled;

(2) was qualified for her job;

(3) suffered a materially adverse

employment action; and (4) that such action occurred under
circumstances giving rise to an inference of discrimination.
Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 305 (2004).
If a prima facie showing is made, the same burden-shifting
framework as under a FMLA claim is applied. See Yetman v. Cap.
Dist. Transp. Auth., 669 F. App'x 594, 595 (2d Cir. 2016).

Under New York State law, a legally recognized disability
requires showing:

38

(a) a physical, mental or medical impairment resulting
from
anatomical,
physiological,
genetic
or
neurological conditions which prevents the exercise of
a
normal
bodily function
or
is
demonstrable
by
medically accepted clinical or laboratory diagnostic
techniques or (b) a record of such an impairment or
( c)
a
condition regarded by others
as
such
an
impairment,
provided, however, that in all provisions
of this article dealing with employment, the term
shall be limited to disabilities which,
upon the
provision of reasonable accommodations, do not prevent
the complainant from performing in a reasonable manner
the activities involved in the job or occupation
sought or held.

N . Y.

EXEC •

LAW

§

2 9 2 ( 21 ) .

To obtain summary judgment on a NYCHRL claim, a defendant
must show that "no jury could find defendant liable under any of
the evidentiary routes: under the McDonnell Douglas test, or as
one of a number of mixed motives, by direct or circumstantial
evidence ." Gioia v. Forbes Media LLC, 501 F. App ' x 52, 56 (2d
Cir . 2012).

In NYCHRL cases, "summary judgment is appropriate

if the record establishes as a matter of law that discrimination
or retaliation played no role in the defendant's actions." Ya Chen Chen v . City Univ. of N.Y., 805 F.3d 59, 76 (2d Cir. 2015)
(internal quotation marks and alterations omitted)
Mihalik, 715 F.3d at 110 n.8).

39

(quoting

Plaintiff argues that she was diagnosed by Hartwig with
anxiety, depression, and compulsive disorder, establishing an
actual disability, and that she suffered a breakdown in front of
Phillips in addition to having discussions with co-workers about
her work-induced stress, which would cause Defendants to
perceive Plaintiff as having a disability.6 (See Pl. Dep. 147:5159:7, 166:19-167:13; Pl.'s Opp. at 17-18.) However, no ne of
Plaintiff's arguments have been established by the evidence
presented.

First, the proffered records from Hartwig are "Progress
Reports" that merely indicate observations of Hartwig and do not
clearly establish any diagnoses made.

(See Boland Aff., Ex . L.)

Plaintiff has put forward no evidence that reasonably
demonstrates her anxiety, stress, or compulsions "prevent [ed]
the exercise of a normal bodily function" or otherwise prevented
Plaintiff from performing her job at GSK. N.Y. EXEC. LAW
§

292(2 1). Hartwig's observations are undercut further by the

6

Plaintiff's claim in her motion papers of a stress-related
heart issue, raised for the first time in the briefing and
contradicting previous sworn deposition testimony, is
necessarily rejected. See Giaccio v. City of N.Y., 502 F. Supp.
2d 380, 389 (S.D.N.Y. 200 7) ("This new claim of disability,
first introduced in Plaintiff's brief in opposition to the
instant motion, contradicts his deposition testimony and must be
disregarded.") aff'd, 308 F. App'x 470 (2d Cir. 2009).
40

undisputed fact that Plaintiff returned to work with no
restrictions on he r ability to do her job and at Hartwig's
direction. See Nowak v. EGW Home Care, Inc., 82 F. Supp. 2d 101,
111 (W.D.N.Y. 2000)

(dismissing a NYSHRL disability

discrimination claim because, while "plaintiff was 'placed on
disability leave by her doctor' because of stress caused by the
defendants[,]

[t]here are no additional facts alleged from

which a reasonable inference can be drawn that plaintiff suffers
from a

'medically diagnosable impairment' within the meaning of

the [NYSHRL]"). Moreover, even if Hartwig had in fact diagnosed
Plaintiff with work-related stress or anxiety, such conditions
have been recognized as not actionable to bring a NYSHRL
disability discrimination claim. See Lenhoff v. Getty, No. 97
Civ. 9458

(LMM), 2000 WL 977900, at *7

(S.D.N.Y. July 17, 2000)

("[J]ob-induced stress cannot be considered a disability under
the NYSHRL .

. ")

(collecting cases) ; Raisley v. First

Manhattan Co., 4 Misc. 3d 1022(A), at *4 n.3 (N.Y. Sup. Ct.,
Sept. 9, 2004)

("In general, claims of disability resulting from

stress caused by a particular supervisor have n o t been wellrecei ved. ")

(collecting cases) .

As to the evidence put forward by Plaintiff about her
conversations with other GSK employees and her singular

41

breakdown in front of Phillips, such examples only provide
Plaintiff the fuel for conjecture that Defendants might have
perceived Plaintiff as possessing a disability r ather than
demonstrating affirmatively that Defendant did have this
perception. Conjecture is not enough to sustain a NYSHRL
discrimination claim; "[t]o establish discrimination based on
perceived disabili t y, a plaintiff must show tha t his employer
perceived him as having a disability." Thoms en v . Stantec, Inc.,
483 F. App'x 620, 622 (2d Cir. 2012)

(emphasis added); see also

Karam v. Cty. of Rensselaer, N.Y., No. 13 Civ. 1018
2016 WL 51252, at *17 (N.D.N.Y. Jan. 4, 2016)

(MAD)

(DJS),

(quoting Thomsen,

483 F. App'x at 622, and noting that NYSHRL claims are analyzed
in the same fashion as Thomsen's ADA claim). Plaintiff has not
shown this.

Lastly, for similar reasons described above, Plaintiff has
not established a prima facie showing that the termination of
her employment occurred under circumstances giving rise to an
inference of discrimination. See Section III(i) (a)-(b) supra.
Plaintiff has put forward no evidence that evinces, even in the
light most favorable to her, that Defendants' decision to
terminate her employment was based on her alleged stress,
anxiety, and compulsion rather than Defendants' proffered

42

explanation of Pla i ntiff's side businesses. See Shimanova v.
TheraCare of N.Y., Inc., No. 15 Civ. 6250 (LGS), 2017 WL 980342,
at *6 (S.D.N.Y. Mar. 10, 2017)

(failing to find prima facie case

for NYSHRL claim when allegations were supported statements that
were "ambiguous and temporally removed from the termination, and
[which] shed[ ] no light on whe ther the actual decision to
discharge [p]laint iff was motivated by any kind of
discriminatory intent" (original alternations omit ted) );
Rozenfeld v. Dep't of Design & Construction of the City of N.Y.,
No. 10 Civ. 4002 (WFK)
Jul. 12, 2012)

(LB), 2012 WL 2872157, at * 10 (E.D.N.Y.

(ho l ding that plaintiff failed to establish

inference of discrimination at the prima facie stage where
evidence showed "nobody made disparaging comments about
[plaintiff's]

[protected class]").

As Plaintiff has neither established that she possessed a
disability protected by the NYSHRL nor that the circumstances
under which she was terminated give rise to an i nference of
disability discrimi nation, Defendants' motion for summary
judgment as t o the Amended Complaint's Count II and III is
granted.

43

.
Conclusion

For the foregoing reasons, Defendants' motion for summary
judgment is granted.

It is so ordered .

New York, NY
September I

"if,

2017

U.S.D.J.

44