Male v. Tops Markets, LLC
Filing
54
ORDER granting 43 Motion for Summary Judgment. Clerk to close case. Signed by Hon. Michael A. Telesca on July 31, 2012. (MES)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
____________________________________________
JULIE E. MALE,
Plaintiff,
08-CV-6234
v.
DECISION and
ORDER
TOPS MARKETS, LLC,
Defendant.
____________________________________________
INTRODUCTION
Plaintiff, Julie E. Male (“Plaintiff”), brings this action
pursuant to the Family and Medical Leave Act, 29 U.S.C. §§ 2601 et
seq. (“FMLA”), the American’s with Disabilities Act, 42 U.S.C. §§
12101 et seq. (“ADA”), and the New York Human Rights Law, N.Y.
Executive
Law
§§
290
et
seq.
(“NYHRL”),
alleging
that
the
defendant, Tops Markets, LLC (“Defendant” or “Tops”), retaliated
against her
employers.
by providing negative references to prospective
Defendant now moves for summary judgment, arguing that
Plaintiff has not established a prima facie case of retaliation and
that there are no material issues of fact. Plaintiff opposes
Defendant’s motion contending that there are material issues of
fact
and
that
she
has
presented
circumstantial
evidence
of
retaliation which is sufficient to withstand summary judgment. For
the
reasons
discussed
herein,
Defendant’s
judgment is granted.
1
motion
for
summary
BACKGROUND
The following facts are taken from the parties’ submissions
pursuant to Local Rule 56(a) and the entire record and are viewed
in the light most favorable to the Plaintiff.
Plaintiff was
employed by Tops from 1997 through early 2006.1
Following her
employment with Tops, Plaintiff applied for over one thousand
(1000) jobs and interviewed with several local businesses, but she
initially did not have success finding employment.
The record
indicates that Plaintiff has, however, held several jobs since her
departure from Tops.
For example, Plaintiff worked at Rochester
General Hospital from July 2007 through September 2007.
Based on her relative lack of success in finding a job, in
March or April 2008, Plaintiff requested that her friend, Sheneiqua
Shine, call her former manager at Tops, Gail Kaiser, posing as a
prospective employer, to request a recommendation. Kaiser informed
Shine that Plaintiff was a good employee for the first few years
until her “personal problems spilled over into her professional
life.”
She further stated that Plaintiff missed or was late to
work due to “personal and medical issues.”
1
The Defendant states that Plaintiff began a medical leave in early 2006, from which she
did not return, but Plaintiff contends that she was constructively discharged due to the
“intolerable conditions” at Tops. Pl. Response to Def. Local Rule 56(a)(1) Statement ¶5.
However, the facts and arguments Plaintiff presents relating to the time during which she worked
at Tops are not relevant to this dispute. Any pre-termination claims plaintiff may once have had
are no longer part of this lawsuit and her only remaining claim is for post-termination retaliation
in the form of negative references. (Docket No. 36.) Accordingly, the Court will only recite the
facts which are relevant to this claim.
2
Kaiser
affirms
that
this
call
was
the only
contact
she
received from anyone seeking a recommendation for the Plaintiff.
Tops’ Human Resource Director, Denise Rachow, also affirms that
this was the only reference request received by Tops on behalf of
the
Plaintiff.
Plaintiff
has
not
presented
any
evidence
to
controvert these facts. After reviewing the entire record, the
Court finds that there is no evidence that any of the employers to
which Plaintiff applied requested a reference from Tops.
Further,
there is no evidence in the record relating to the prospective
employers’ decisions not to hire the Plaintiff.
DISCUSSION
Rule 56(c) of the Federal Rules of Civil Procedure provides
that summary judgment shall be rendered “if the movant shows that
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
When considering a
motion for summary judgment, all genuinely disputed facts must be
resolved in favor of the party against whom summary judgment is
sought. See Scott v. Harris, 550 U.S. 372, 379; 127 S.Ct. 1769,
1776 (2007). If, after considering the evidence in the light most
favorable to the nonmoving party, the court finds that no rational
jury could find in favor of that party, a grant of summary judgment
is appropriate. See Scott, 550 U.S. at 379; 127 S.Ct. at 1776
(citing Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475
U.S. 574, 586-587).
3
The law is well established that “conclusory statements,
conjecture, or speculation” are insufficient to defeat a motion for
summary judgment. See Kulak v. City of New York, 88 F.3d 63, 71 (2d
Cir. 1996). The nonmovant cannot survive summary judgment simply by
proffering “some metaphysical doubt as to the material facts,”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986), or presenting evidence that “is merely colorable, or is
not significantly probative.” See Savino v. City of New York, 331
F.3d 63, 71 (2d Cir. 2003) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249-50 (1986) (citation omitted)). Rather, he
“must set forth specific facts showing that there is a genuine
issue for trial.” See Anderson, 477 U.S. at 250 (quoting former
Fed.R.Civ.P. 56(e)(2); see also D'Amico v. City of New York, 132
F.3d 145, 149 (2d Cir. 1998) (“non-moving party may not rely on
mere conclusory allegations nor speculation, but instead must offer
some hard evidence showing that its version of...events is not
wholly fanciful.”)
To
establish
a
prima
facie
case
of
post-termination
retaliation under the ADA, FMLA and the NYHRL, a plaintiff must
show: (1) participation in a protected activity known to the
defendant; (2) an adverse employment action; and (3) a causal
connection between the protected activity and the adverse action.
See Holt v. KMI-Continental, Inc., 95 F.3d 123, 130 (2d Cir. 1996);
see also Perry v. NYSARC, 424 Fed.Appx. 23, 2011 WL 2117950 (2d
4
Cir.
2011)(citing
Holt
and
applying
the
evidentiary
standard
developed in Title VII cases to cases under the ADA and FMLA); See
Weissman v. Dawn Joy Fashions, Inc., 214 F.3d 224, 234 (2d Cir.
2000)(applying the same standards to a retaliation claim under the
ADA and NYHRL).
Thereafter, the burden shifts to the defendant to
articulate a legitimate, non-discriminatory reason for its actions.
Holt, 95 F.3d at 129.
If the defendant satisfies this burden, the
plaintiff must present evidence that the articulated reason was a
pretext for discrimination. Id.
Here,
Defendant
argues
that
Plaintiff
has
not
presented
evidence of an adverse action or causation because (1) there is no
evidence in the record that any prospective employer requested or
received a reference (positive, negative or neutral) for the
Plaintiff; and (2) there is no evidence that any prospective
employer relied on a reference from the Defendant when deciding not
to hire the Plaintiff.
Def. Mem. of Law at 4.
Plaintiff argues
that the evidence she presented, that her friend, posing as an
employer, called Tops and requested to speak with the pharmacy
manager, Gail Kaiser, who informed her that Plaintiff was a good
employee for several years and then her “personal problems spilled
over into her professional life” and she began to miss work or show
up late due to “personal and medical issues” is sufficient to
create a material issue of fact as to whether Tops supplied
negative references to actual prospective employers. Pl. Mem. of
5
Law at 9-11; Def. Rule 56.1 Statement of Undisputed Material Facts
at ¶¶ 13-16.
The Court finds that Plaintiff has not established an
adverse action or causation and that the evidence she presents is
too speculative to create a material issue of fact with respect to
her claim for post-termination retaliation.
The Second Circuit in Sarno v. Douglas Elliman-Gibbons & Ives,
Inc., held that “[w]here...there is no admissible evidence that the
statements of the former employer caused or contributed to the
rejection by the prospective employer, the plaintiff has failed to
present a prima facie case.” 183 F.3d 155, 160 (2d Cir. 1999).
Here, Plaintiff does not present any evidence that any prospective
employer contacted Tops or that any statement by Tops “caused or
contributed” to a rejection by any prospective employer.
The
record reveals that the only reference request received by Gail
Kaiser was the call from Plaintiff’s friend who was posing as a
prospective employer. Kaiser Aff. at ¶10.
Further, Tops’ Human
Resource Manager confirmed that the single reference by Ms. Kaiser
to Plaintiff’s friend was the only reference request received by
Tops on behalf of the Plaintiff. Rachow Aff. at ¶25.
Plaintiff has not produced any evidence to controvert these
facts, but relies only on the evidence of the telephone inquiry
made by her friend.
She asks the Court to assume that because
Kaiser provided negative information to her friend, posing as an
employer, Tops therefore provided similar information to other,
6
actual prospective employers which explains why she was not hired.
Plaintiff relies on Jute v. Hamilton Sundstrand Corp.,
in support
of her contention that this evidence is sufficient to establish a
prima facie case of retaliation. Pl. Mem. of Law at 8-9 (citing
Jute, 420 F.3d 166 (2d Cir. 2005)).
However, in Jute, the record
was clear that a prospective employer had indeed requested a
recommendation and that the defendant gave false information to
this prospective employer.
Further, in that case, the prospective
and former employers were affiliated and the plaintiff presented
circumstantial evidence that she was offered the job prior to the
prospective employer having contacted the former employer.
In
light of these facts, the Second Circuit determined that the
plaintiff could proceed with her claim even though she had not
presented direct evidence that the former employer’s statement
contributed to her rejection.
In contrast, here, there is no evidence that any employer
(except for the staged inquiry by Plaintiff’s friend) contacted
Tops regarding the plaintiff or that Tops provided any negative
information to any employer. The fact that Plaintiff’s friend
contacted Tops, posing as an employer, and received negative
information
about
the
Plaintiff
is
insufficient
to
create
a
material issue of fact as to whether Tops gave a negative reference
to a prospective employer and whether the prospective employer
relied on such information when deciding not to hire the Plaintiff.
7
See Sarno, 183 F.3d at 160; see also Noni v. County of Chautauqua,
511
F.Supp.2d
355,
356-7
(W.D.N.Y.
Sept.
13,
2007)(Arcara,
J.)(finding that evidence of two individuals posing as prospective
employers and receiving negative information about the plaintiff
was insufficient to establish a prima facie case of retaliation).
Accordingly, for the reasons set forth herein, the Court finds
that Plaintiff has failed to establish a prima facie case of
retaliation. Therefore, Defendant’s motion for summary judgment is
granted and the Plaintiff’s Complaint is dismissed with prejudice.
ALL OF THE ABOVE IS SO ORDERED.
s/ Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Dated:
Rochester, New York
July 31, 2012
8
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