By Marjorie Johnson, J.D.
One of the emails—sent the same day the employee was taking leave and shortly before her termination—suggested that the employer "really think about dissolving" the employee’s role because of "her limited scope of practice and her chronic issues with time and attendance."
Because an employee who was ostensibly terminated for not working the proper hours presented sufficient evidence of suspicious timing and her manager’s unhappiness about her taking of FMLA leave, she defeated summary judgment on her FMLA retaliation claim. However, she failed to advance her Title VII and state-law claims asserting that she suffered a hostile work environment based on a male coworker’s sexual remarks and was terminated for complaining since the conduct was neither sex-based nor sufficiently severe or pervasive, and there was also insufficient evidence indicating a causal connection between her complaints and her termination (Chauca v. AdvantageCare Physicians, P.C., September 5, 2019, Cogan, B.).
FMLA leave. The employee worked as a physical therapy aide, rotating her time between the employer’s Clove Road (CR) and Annadale facilities. In the summer of 2015, she took approved FMLA following a work-related injury at the CR facility. She claimed that after she returned, the facility’s manager began to treat her differently and became less responsive.
Placed on PIP. In January 2017, she began taking PTO to care for her sick child. That March, the CR manager placed her on a 90-day Performance Improvement Plan (PIP) for taking several PTO days without adequate notice. The manager met with her twice a week during the PIP, which the employee successfully completed. The employee then applied for FMLA leave in May.
Additional leave. On June 6, while her FMLA application was pending, the CR manager emailed her and two coworkers to tell them that "many employees have been interrupting our physicians to consult on their children’s health, to be seen, and or have friends or family members seen in this office. This is not acceptable." The employee was then approved for FMLA on June 8. She took four days of leave over the next three months, including August 4.
Coworker harassment. Meanwhile, a male coworker allegedly made "sexual comments" to Annadale staff and female patients. For instance, she heard him tell the male regional manager, "face down, ass up, you know how I like to do this" and "this is the new stick I’m going to use on you tonight." She also recited four specific comments he made to her, including joking about whether she "punished" her husband the night before and whether he had kept her up late. She did not complain to HR but claimed to have reported his conduct to the CR manager and the regional manager.
Work schedule. A primary dispute between the parties concerned the employee’s correct work schedule on "late patient" Thursdays at the Annadale facility. The employer claimed that she was supposed to work from 11 a.m. until 8 p.m. on those days while the employee claimed that she was only supposed to work from 9 a.m. until 5 p.m., unless a supervisor told her otherwise.
Fired. On August 4, a physical therapist complained to the Annadale manager that the employee was not working until 8 p.m. on "late patient" Thursdays, including August 3. That same day, the Clove manager sent out an email urging staff to "really think about dissolving" her role because of "her limited scope of practice and her chronic issues with time and attendance." On August 7, HR advised the employee she was being terminated due to her failure to work the proper hours.
FMLA retaliation. Allowing the employee’s FMLA retaliation claim to advance, the court found sufficient evidence to infer retaliatory intent since she was fired three days after her latest FMLA leave and the CR manager had made comments that could be interpreted as disapproval. The manager’s repeatedly expressed frustrations about her leave could also lead a reasonable jury could find that her FMLA leave was a motivating factor in her termination.
First, on June 6—a month after she applied for FMLA leave—the manager advised the employee and two others that it was "not acceptable" for employees to "interrupt" the facility’s "physicians to consult on their children’s health." Then, on August 4—when the employee took FMLA leave—she sent an email indicating that the employer should "really think about dissolving" the employee’s role" because of "chronic issues with time and attendance." While this could have related solely to her failure to work late on Thursdays, a reasonable jury could also find they included her FMLA leave.
A jury could thus reasonably find that these emails—in conjunction with the employee’s claim that the manager began to treat her differently after she first took FMLA leave—suggested that FMLA leave was a motivating factor in the employer’s decision to terminate her based upon the manager’s recommendation. Notably, the employer did not dispute that she properly recorded her hours and that it was never brought up during her PIP meetings. Thus, it either knew of her hours or did not monitor her schedule, which would allow a reasonable jury to doubt whether it was as concerned about it as it purported to be when it fired her.
No retaliation for harassment complaints. However, she was unable to advance her Title VII and NYSHRL, and NYCHRL’s claims of retaliation since she failed to establish pretext under the more demanding "but-for" causation or NYCHRL’s more liberal construction. Significantly, while she asserted that she complained to her supervisors, there was no evidence that anyone expressed any dissatisfaction with or disapproval of her complaints and she didn’t deny that HR—who undisputedly made the decision to terminate her—was unaware of her complaints.
And even if the Clove manager’s recommendation caused HR to make the decision to terminate her, she only complained to the manager about the harassment in January 2017, well before her termination in August. The "relatively lengthy" period weakened any claim that her complaint was the "but for" cause of her termination and there was no evidence of the manager expressing any disapproval of her complaints.
No HWE. Finally, her hostile work claims were also tossed since she failed to sufficiently show that any of the alleged harassment was the result of her sex, as the coworker’s comments to the male regional manager were "even more sexually charged and at least as potentially offensive" as his comments to her. And while his conduct may have been inappropriate, it merely constituted "isolated remarks" and was not sufficiently severe or pervasive.
The case is No. 1:18-cv-02516-BMC.
Attorneys: Anne Donnelly Bush (Law Office of Anne Donnelly Bush) for Veronika Chauca. Michael Craig Schmidt (Cozen O'Connor) for AdvantageCare Physicians, PC, EmblemHealth, Inc., EmblemHealth Services Co., LLC, and EmblemHealth Administrators, Inc.
Companies: AdvantageCare Physicians, P.C.; EmblemHealth, Inc.; EmblemHealth Services Co., LLC; EmblemHealth Administrators, Inc.
Cases: Discharge EmployeeLeave Retaliation SexualHarassment StateLawClaims NewYorkNews
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