Albertin v. Nathan Littauer Hosp. & Nursing Home

BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE SOUTHERN DISTRICT OF GEORGIA

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Plaintiff filed this action, asserting claims under 42 U.S.C. § 1983. Doc. 1. This matter is before the Court for a frivolity screening under 28 U.S.C. § 1915A. For the reasons stated below, I RECOMMEND the Court DISMISS Plaintiff's Complaint in its entirety. Because I have recommended dismissal of all of Plaintiff's claims, I also RECOMMEND the Court DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal. I further RECOMMEND the Court DENY Plaintiff leave to proceed in forma pauperis on appeal.

PLAINTIFF'S CLAIMS

All allegations set forth here are taken from Plaintiff's Complaint. Doc. 1. During frivolity review under 28 U.S.C. § 1915A, "[t]he complaint's factual allegations must be accepted as true." Waldman v. Conway, 871 F.3d 1283, 1289 (11th Cir. 2017). --------

Plaintiff claims Warden Coleman failed to protect him from an assault. Doc. 1 at 5. Plaintiff states Officers Clark and Chapman placed a known violent inmate in his cell. Id. Plaintiff claims this inmate attacked him with an ice pick not long after officers left. Id. After hearing the commotion, Officer Clark returned to assist. Id. Plaintiff seeks punitive, nominal, and compensatory damages. Id. at 6.

STANDARD OF REVIEW

A federal court is required to conduct an initial screening of all complaints filed by prisoners and plaintiffs proceeding in forma pauperis. 28 U.S.C. §§ 1915A(a), 1915(a). During the initial screening, the court must identify any cognizable claims in the complaint. 28 U.S.C. § 1915A(b). Additionally, the court must dismiss the complaint (or any portion of the complaint) that is frivolous, malicious, fails to state a claim upon which relief may be granted, or which seeks monetary relief from a defendant who is immune from such relief. Id. The pleadings of unrepresented parties are held to a less stringent standard than those drafted by attorneys and, therefore, must be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, Plaintiff's unrepresented status will not excuse mistakes regarding procedural rules. McNeil v. United States, 508 U.S. 106, 113 (1993).

A claim is frivolous under § 1915(e)(2)(B)(i) if it is "without arguable merit either in law or fact." Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002) (quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)). In order to state a claim upon which relief may be granted, a complaint must contain "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To state a claim, a complaint must contain "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not" suffice. Twombly, 550 U.S. at 555.

DISCUSSION I. Warden Coleman

Plaintiff has not stated any specific action taken by Warden Coleman which violates his constitutional rights. He merely concludes, "Warden Coleman failed to protect [P]laintiff [sic] right to be 'FREE FROM ASSAULT." Doc. 1 at 5. Therefore, Plaintiff has not stated sufficient factual matter to state a plausible claim against Warden Coleman. Ashcroft, 556 U.S. at 678.

Additionally, not every injury inflicted by an inmate against another translates to a constitutional violation against prison officials. Marbury v. Warden, 936 F.3d 1227, 1233 (11th Cir. 2019). "To establish a § 1983 claim for deliberate indifference, a plaintiff must show '(1) a substantial risk of serious harm; (2) the defendants' deliberate indifference to that risk; and (3) causation.'" Id. (quoting Lane v. Philbin, 835 F.3d 1302, 1307 (11th Cir. 2016)). The second element "has both a subjective and objective component." Marbury, 936 F.3d at 1233. In other words, the prison official must both be aware of facts that could create a substantial risk of serious harm and draw an inference from those facts that the particular inmate is at risk. Id. For this reason, a mere "negligent failure to protect an inmate from attack" is insufficient to impose § 1983 liability on a prison official. Id. at 1238.

Plaintiff has not stated Warden Coleman was aware of a substantial risk of harm to him in particular. Even if the Court were to liberally construe Plaintiff's Complaint to state claims against Officers Clark and Chapman, he has not explained how or why the officers were aware of a risk of harm to Plaintiff prior to the incident. Plaintiff states Officer Clark responded immediately after the stabbing took place. Doc. 1 at 5. Plaintiff's allegations are insufficient to state a plausible claim upon which relief may be granted under § 1983. II. Leave to Appeal in Forma Pauperis

The Court should also deny Plaintiff leave to appeal in forma pauperis. Though Plaintiff has not yet filed a notice of appeal, it is proper to address these issues in the Court's order of dismissal. See Fed. R. App. P. 24(a)(3) (trial court may certify appeal of party proceeding in forma pauperis is not 5902, at *5-6 (S.D.N.Y. Mar. 11, 2015) (denying summary judgment motion where plaintiff denies factual predicates for defendant's argument plaintiff exercised independent judgment and discretion).

The Court notes, however, that when the time comes to assess damages, some of plaintiff's time spent as an HR Generalist will fall outside of FLSA's two-to-three year statute of limitations. Glass v. A.K. Allen Co., Inc., 2010 WL 11632764, at *2 (E.D.N.Y. Oct. 21, 2010). But the Court also notes that NYLL's statute of limitations for the same claim is six years. N.Y. LAB. LAW § 663(3).

Having resolved the more straightforward question of whether summary judgment is warranted against Albertin's claims as an HR Generalist, the Court is left with the closer question of whether plaintiff was exempt as an Employment Coordinator.

NLH has made a strong showing that she was. In particular, Albertin's answering a question posed by the Hospital's health insurer citing contractual language suggests that plaintiff exhibited independent judgment. Dkt. 37-1, pp. 420-21. Plaintiff making a recommendation as to how to transition a temporary Hospital employee into a permanent position similarly smacks of her discretion. Id. at 408. Plaintiff's more general obligations to "[e]xplain budget control and record requirements," not to mention her obligation to "answer[ ] questions and inquire[ ] or obtain[ ] information for department managers and supervisors with respect to procedure requirements" bolster the Hospital's position that plaintiff was FLSA exempt that much more. Dkt. 37-2, p. 176.

Even so, Albertin fights back. She claims that she did not truly "interpret" NLH's contracts. PSMF ¶ 32(a). Instead, plaintiff claims she only provided language directly on point to answer the insurer's question, and thus exercised no discretion. Id. Plaintiff similarly downplays her involvement in transitioning the temporary employee by claiming she only responded to one out of thirty-two emails, and that Wydra set the date for the transition that plaintiff presented. Id. ¶ 32(c).

Albertin's denials of the instances in which she arguably exhibited discretion as an Employment Coordinator are not so complete as her denials of her discretion as an HR Generalist. However, plaintiff has one final weapon in her argumentative arsenal that gives pause.

That weapon is this. Every time that Albertin faced discipline as an NLH employee, the Hospital claims that it was because she made an independent choice or did not come to Grosse for guidance before acting. Plaintiff moved a filing cabinet without Grosse's permission, and arguably received a verbal warning. DSMF ¶¶ 47, 50-52. Plaintiff did not complete her tasks in the order Grosse imposed and the timeline she demanded, so she received a written warning which included a direction to "timely" ask Grosse any questions she might have. Dkt. 37-3, p. 24. Plaintiff asked someone other than Grosse a question, so Grosse suspended her and ordered plaintiff to only ask her for advice. Id. at 33. Finally, plaintiff included Beadle in addition to Grosse and Wydra on an email, and plaintiff was forced to resign. DSMF ¶¶ 123, 125-27.

It is impossible for the Court to conclude that no reasonable jury would find that Albertin did not exercise independent judgment and discretion when NLH's own side of her employment story is that she acted insubordinately by not adhering to Grosse's every directive. The backdrop of Grosse's extensive control over plaintiff's carrying out her responsibilities colors the evidence to such an extent that a reasonable jury could conclude that plaintiff did not exercise independent judgment and discretion on matters of importance during her time at the Hospital. Accordingly, plaintiff has created a jury question as to whether she was properly classified as FLSA exempt as both an HR Generalist and as an Employment Coordinator.

Of course, plaintiff argues that the Hospital's stated reason of insubordination was pretext to cover for retaliating against her for exercising her FMLA rights. Nothing in this section grapples with the merits of plaintiff's claims on that score.

However, NLH still stands on one last bastion supporting its motion for summary judgment on Albertin's FLSA claims. Specifically, the Hospital argues that plaintiff has failed to provide evidence that she worked overtime at all, let alone evidence sufficient to calculate how many hours she worked. To the Hospital's point, an employee bears the burden of proving that she worked overtime and was not properly compensated for it. Pineda v. Masonry Constr., Inc., 831 F. Supp. 2d 666, 674 (S.D.N.Y. 2011).

Albertin's only proof regarding the hours she worked are estimates that she worked between forty-one and forty-five hours per week totaling between 200 and 280 hours during the relevant timeframe. PSMF ¶¶ 66, 83. To hear NLH tell it, plaintiff's rough estimate is not enough to make a jury question out of whether she worked overtime. The Hospital is mistaken. It cannot blame plaintiff because there are no records of her working overtime despite its policy of not requiring plaintiff to—and according to plaintiff actively discouraging her from—swiping out to mark the end of her workday. See Rivera v. Ndola Pharmacy Corp., 497 F. Supp. 2d 381, 389 (E.D.N.Y. 2007) ("[T]he employer cannot be heard to complain that the damages lack the exactness and precision of measurement that would be possible had [it] kept records.").

If there were records showing that Albertin had routinely swiped out right when her shift was scheduled to end, NLH might have had a leg to stand on. However, as it stands all the Court knows is that plaintiff did work overtime for which she received straight pay and that plaintiff has estimated the hours she worked to the best of her ability. DSMF ¶ 22; PSMF ¶¶ 66, 83. Because the Hospital shares at least some blame for the lack of more concrete evidence of plaintiff's overtime hours, that showing is enough for plaintiff's overtime claims to survive summary judgment. Rivera, 497 F. Supp. 2d at 389.

NLH's arguments against Albertin's overtime claims must be rejected, and those claims must survive the Hospital's motion for summary judgment. See, e.g., Fermin v. Las Delicias Peruanas Rest., Inc., 93 F. Supp. 3d 19, 22-24, 42-43 (E.D.N.Y. 2015) (adopting report and recommendation calculating damages attributable to employer based on employee's estimates because employer failed to keep accurate hourly records).

For the same reasons, plaintiff's overtime claims under NYLL must also survive. See, e.g., Nakahata v. N. Y.-Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 200 (2d Cir. 2013) (noting that NYLL explicitly incorporates FLSA definition of overtime).

B. Minimum Wage

Albertin's next suite of claims argues that NLH denied her a minimum wage. If that argument seems to strain credulity, given that plaintiff was paid a salary in excess of the minimum to make her FLSA exempt, plaintiff has an answer. You see, according to plaintiff, she was not paid a wage at all for her overtime hours, and if she was paid nothing then she certainly was not paid a mandatory minimum.

Albertin's argument is clever, and perhaps even novel. Other employees raising precisely the same overtime claims that plaintiff brings here have simply conceded that they have no viable minimum wage claims. See, e.g., Hanna v. Am. Cruise Lines, Inc., 2019 WL 3231202, at *5 (D. Conn. July 18, 2019) (plaintiff conceding he had no potential minimum wage claims despite maintaining improper classification as exempt with resulting unpaid overtime). However, unlike other employees before her, plaintiff presses on and insists that she still has a viable minimum wage claim.

Yet clever as Albertin's argument is, it misses the mark because the Court cannot allow plaintiff to recover twice for the same injury. Throughout FLSA's legislative lifespan, courts have grappled with how to prevent savvy plaintiffs from maneuvering themselves into "double recoveries." See Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697, 715 (1945) (disallowing recovery of basic statutory wage and liquidated damages with interest to prevent giving employee "double compensation"). Courts have since applied the same principle to ensure that plaintiffs do not recover under both federal and state statutory schemes. See, e.g., Chowdhury v. Hamza Express Food Corp., 666 F. App'x 59, 61 (2d Cir. 2016) (summary order) (precluding recovery of liquidated damages under both FLSA and NYLL because "double recovery is generally disfavored where another source of damages already remedies the same injury for the same purpose").

There is no reason to depart from that general rule in this case. Albertin's overtime claims hinge on NLH improperly classifying her as an exempt employee under FLSA. If she is correct on that score, she is entitled to compensatory damages for the hours she worked but for which she was not paid. If the Court were to duplicate that analysis verbatim but substitute "minimum wage" for overtime, it would accurately represent plaintiff's minimum wage claims. In fact, the parties do not even separate their arguments as to the merits of either of these claims. As a result, to ensure that plaintiff does not recover twice for the same injury, her minimum wage claims under both the NYLL and FLSA must be dismissed.

The analysis for minimum wage claims under NYLL mirrors that of FLSA. Jemine v. Dennis, 901 F. Supp. 2d 365, 375 (E.D.N.Y. 2012). However, NYLL imposed a higher minimum wage during portions of plaintiff's employment at the Hospital. Compare NY LAB. LAW § 652.1 (setting minimum wage at $8.00 on and after December 31, 2013, $8.75 on and after December 31, 2014, $9.00 on and after December 31, 2015, and $11.00 per hour on and after December 31, 2016), with 29 U.S.C. § 206(a)(1)(C) (setting federal minimum wage at $7.25 for entire relevant period).

At this point, it might be asked why Albertin's minimum wage claims are being cut instead of her overtime claims, or why both plaintiff's NYLL and FLSA claims will survive despite the similar potential for double recovery. The answer is simple. When a plaintiff could potentially recover under both the NYLL and FLSA, "courts [generally] allow plaintiffs to recover under the statute that provides for the greatest relief." Sanchez v. Jyp Foods Inc., 2018 WL 4502008 at *7 (S.D.N.Y. Sept. 20, 2018) (collecting cases). Whether the plaintiff would recover more under FLSA or the NYLL is a question that courts routinely resolve after liability has been established. See Gamero v. Koodo Sushi Corp., 272 F. Supp. 3d 481, 487-88, 502-04 (S.D.N.Y. 2017) (determining whether to assess damages under NYLL or FLSA for overtime claims after bench trial).

On the other hand, in the unique circumstances of this case, there is no possibility that Albertin could recover as much for her minimum wage claims as for her overtime claims.

The damages provision of FLSA applies the same test for minimum wage and overtime claims: the plaintiff must be paid the wages she was denied. 29 U.S.C. § 216(b) ("Any employer who violates the provisions of [FLSA's overtime and minimum wage provisions] shall be liable to the employee . . . affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation . . . and in an additional equal amount as liquidated damages."). NYLL provides much the same damages rule by allowing the employee to recover the amount of any underpayment plus liquidated damages "equal to one hundred percent of the total" of the underpayments. N.Y. LAB. LAW § 663(1).

The employer can nevertheless escape liquidated damages by proving "a good faith basis to believe that its underpayment of wages was in compliance with the law[.]" N.Y. LAB. LAW § 663(1).

In other words, if Albertin proves that she was erroneously classified as exempt under FLSA's definition, she is entitled either to the wages that NLH did not pay her for hours she worked overtime because it classified her as exempt or double those wages including liquidated damages. For her overtime claims, those wages would be calculated as one-and-a-half times her weekly salary broken down into an hourly rate. 29 U.S.C. § 207(a)(1). For her minimum wage claims, those wages would simply be the minimum required at the time plaintiff worked those unpaid hours. See N.Y. LAB. LAW § 652.1; 29 U.S.C. § 206(a)(1)(C).

Given the multiplier applied to Albertin's overtime claims and the inherently "minimum" nature of a minimum wage, there is no circumstance in which plaintiff could recover more for her minimum wage claims than for her overtime claims. Accordingly, in light of the rule against double recovery—but in support of the rule favoring plaintiff recovering the maximum possible without recovering twice—plaintiff's minimum wage claims must be dismissed. See, e.g., Sanchez, 2018 WL 4502008 at *7 (awarding damages under NYLL but not under FLSA to ensure plaintiff recovers one maximum remedy as opposed to two).

C. Failure to Provide Wage Notices

Albertin's next claim is a touch more mundane. Plaintiff claims that defendant failed to provide her with accurate wage notices as required by NYLL § 195.3. That statute requires employers to provide their employees with wage notices outlining certain pieces of information. Id. As relevant to this case, a wage statement must include "the regular hourly rate or rates of pay; the overtime rate or rates of pay; the number of regular hours worked, and the number of overtime hours worked" if the employee is not exempt from overtime compensation. Id.

Once again, New York adopts FLSA's standard to determine whether an employee is exempt from overtime compensation. Nakahata, 723 F.3d at 200.

NLH points to several pay stubs that it provided Albertin and argues that this is enough. Dkt. 37-2, pp. 196-207. For her part, plaintiff seems to concede that these notices are adequate in most respects. However, she seems to argue that the record of hours worked on those wage statements were inaccurate because they presumed that she worked forty hours per week when she actually worked more. Dkt. 41-1, ¶ 62.

As decided above, whether Albertin was exempt and entitled to notice of her overtime hours worked is an unresolved question of fact. As a direct consequence, whether plaintiff was entitled to an accurate statement of the hours she actually worked and how many of those hours were overtime is similarly a question of fact. Plaintiff's wage notice claim must therefore also proceed to trial. See, e.g., Pierre v. Hajar, Inc., 2018 WL 2393158, at *6 (E.D.N.Y. Mar. 28, 2018) (noting that accuracy of wage statements as to overtime hours was question of fact sufficient to defeat summary judgment).

D. Failure to Pay Wages

Albertin's next claim that NLH seeks to dispose of is for a failure to pay wages. To support that claim, plaintiff relies on NYLL §§ 190 and 191. Section 190 is a definition section, and most courts have held that nothing in that section serves to create a viable cause of action. See, e.g., Jensen v. AR Glob. Invs., LLC, 2020 WL 1322584, at *5 (S.D.N.Y. Mar. 20, 2020) (collecting cases).

However, § 191 is a different and much more complicated matter. In fact, there is an active split within this Circuit as to whether that section affords plaintiffs a cause of action. See Sorto v. Diversified Maint. Sys., LLC, 2020 WL 8413553, at *2 (E.D.N.Y. Nov. 15, 2020). In support of § 191 creating a cause of action, New York State's Supreme Court Appellate Division, First Department, has suggested that there is an implied remedy under that statute. Vega v. CM & Assocs. Constr. Mgt., LLC, 107 N.Y.S.3d 286, 288-89 (1st Dep't 2019).

Fortunately for the Court, it need not dive into that thicket in this case. Section 191 requires employers to pay wages with a particular frequency. N.Y. LAB. LAW § 191. Albertin has not provided any evidence that NLH failed to pay her in the schedule that statute imposes for clerical workers, the best fit for plaintiff's role at the Hospital. See id. § 191(d) (requiring advance notice of pay schedule for clerical workers and requiring payment on at least semi-monthly basis). Because plaintiff has provided no evidence to support this hypothetical cause of action, her failure to pay wages claim under NYLL §§ 190 and 191 must be dismissed.

In any case, plaintiff failed to defend these claims from the Hospital's attack, and they are likely abandoned. See Jackson v. Fed. Express, 766 F.3d 189, 196 (2d Cir. 2014) (noting that district courts have discretion to deem claims abandoned where counseled plaintiff does not defend claim on summary judgment but defends other claims).

E. FMLA Claims

That brings the discussion of Albertin's back wage claims to a close, which turns the Court's attention to plaintiff's FMLA claims. The FMLA guarantees an eligible employee twelve workweeks of unpaid leave per year if she has a serious health condition making her unable to perform her job. 29 U.S.C. § 2612(a)(1)(D). Along the same lines, an employee can also use those same twelve weeks "to care for [a] spouse, or a son, daughter, or parent" if that family member suffers has a serious health condition. Id. § 2612(a)(1)(C).

There are at least two species of FMLA claims: interference and retaliation. Woods v. START Treatment & Recovery Ctrs., Inc., 864 F.3d 158, 166 (2d Cir. 2017). Interference claims involve an employee being prevented from exercising her rights under the FMLA by her employer. Graziadio v. Culinary Inst. of Am., 817 F.3d 415, 424 (2d Cir. 2016). By contrast, retaliation claims arise when an employee either exercises her FMLA rights or opposed conduct that the FMLA makes illegal. Potenza v. City of N.Y., 365 F.3d 165, 168 (2d Cir. 2004). Albertin brings one of each, and the Court will address them in turn.

1. FMLA Interference

The Second Circuit recognizes five elements for a claim of FMLA interference: (1) the plaintiff is eligible for FMLA leave; (2) the defendant is an employer as that statute defines the term; (3) the plaintiff was entitled to take leave under the FMLA; (4) she gave defendant notice that she would take leave; and (5) she was denied benefits to which she was entitled under the FMLA. Graziadio, 817 F.3d at 424.

There are two portions of federal regulations that provide a useful backdrop for Albertin's claims. First, 29 C.F.R. § 825.303(b) requires an employee making a second FMLA leave request to "specifically reference either the qualifying reason for leave or the need for FMLA leave." Second, 29 U.S.C. § 825.303(c) tasks an employee seeking leave that was unforeseeable to her to adhere to "the employer's usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances." An employer may deny FMLA leave if the employee fails to demonstrate unusual circumstances justifying her failure to comply with defendant's leave request policy. Id.

Albertin's FMLA interference claims stem entirely from her three unsuccessful attempts to secure FMLA leave in November of 2017. DSMF ¶¶ 77, 80-81, 84. According to the Hospital, its policies required an employee seeking FMLA leave to actually use the word "FMLA" during the course of her leave request. DSMF ¶ 81. It is undisputed that plaintiff did not use the word "FMLA" when calling out of work on November 2 or 3, 2017. DSMF ¶ 78.

However, as Albertin correctly argues, that policy violates the FMLA. After all, "an employer cannot use its own notice policy to circumscribe an employee's rights under the FMLA[.]" Hill v. City of N.Y., 136 F. Supp. 3d 304, 343 (E.D.N.Y. 2015) (cleaned up).

Section 825.303(b) only requires an employee to "provide sufficient information for an employer to reasonably determine whether the FMLA may apply to the leave request" and the employee "need not expressly assert rights under the FMLA or even mention the FMLA[.]" 29 C.F.R. § 825.303(b) (emphasis added). Once the employee has provided that information, the FMLA specifically puts the burden on the employer, not the employee, to "make further inquiry . . . before denying" a request for FMLA leave. Coutard v. Mun. Credit Union, 848 F.3d 102, 107-08 (2d Cir. 2017).

As a consequence, a policy requiring the employee to affirmatively use the word "FMLA" in seeking FMLA leave would remove the employer's burden of inquiring into the cause of an employee's leave. Coutard, 848 F.3d at 107-08. Saddling an employee with a burden that the FMLA specifically imposes on the employer would of course circumscribe the employee's FMLA rights and could not withstand scrutiny. Hill, 136 F. Supp. 3d at 343. By extension, NLH's policy demanding that the employee use the word "FMLA" in requesting leave is impermissible. The Hospital's motion for summary judgment must be denied as to plaintiff's being denied leave on November 2 and 3.

Of course, if a jury were to find that Grosse's recollection were correct and plaintiff only told the Hospital that she was not feeling well on November 2 and 3, the Hospital's duty to inquire would not necessarily have been triggered and the Hospital may escape liability on these claims. See Pesok v. Hebrew Union Coll.—Jewish Inst. of Religion, 235 F. Supp. 2d 281, 290 n.10 (S.D.N.Y. 2002) (noting that employer's duty to inquire is not triggered based solely on employer's knowledge of prior medical events).

Turning to Albertin's claims concerning November 15, 2017, plaintiff only argues that she was chastised for failing to follow Hospital procedures by actually physically telling her supervisor that she needed to leave, which amounted to FMLA interference. There are two problems with plaintiff's arguments. First, plaintiff has failed to point to any record evidence that she was actually chastised for failing to follow the required procedures on November 15. Second, even if she was chastised, that does not amount to FMLA interference.

Grosse testified at her deposition that she classified the time off plaintiff took as FMLA leave. Dkt. 45, p. 150. That testimony is unchallenged. --------

The closest recoverable claim to Albertin's November 15, 2017 interference claim that the Court can imagine would be an argument that NLH discouraged plaintiff from using leave. A discouragement theory of FMLA interference can be proven by two methods. The first requires the plaintiff to prove that she was actively discouraged from taking FMLA leave that she had initially requested. Reilly v. Revlon, Inc., 620 F. Supp. 2d 524, 535 (S.D.N.Y. 2009). The second asks for proof that defendant's discouraging conduct "would have dissuaded a similarly situated employee of ordinary resolve from attempting to exercise his or her FMLA rights." Id.

Albertin claims she was only chastised after she took her leave on November 15, 2017, so she cannot prove that any castigation she may have received would have discouraged her from taking leave she would have already taken. Reilly, 620 F. Supp. 2d at 535. Thus, her only path to recovery would be proving that being chastised for failing to follow the proper leave procedures would have dissuaded an employee of ordinary resolve from exercising FMLA rights. Reilly, 620 F. Supp. 2d at 535. She cannot.

Albertin does not suggest that she was chastised for the act of taking leave, only for the manner in which she requested it. Getting a tongue lashing for taking leave through the awkward mechanism of a post-it note on a door without following up in any way would not discourage an employee of ordinary firmness from taking FMLA leave as a matter of law. Therefore, to the extent plaintiff relies on the events surrounding November 15, 2017 to support her FMLA interference claim, that claim must be dismissed.

In sum, Albertin's claims of FMLA interference stemming from her being forced to take paid leave in place of FMLA leave on November 2 and 3, 2017, remain viable. However, her claim of FMLA interference from November 15, 2017 must be dismissed.

2. FMLA Retaliation

Yet simply because a reasonable jury could conclude that NLH interfered with Albertin's FMLA rights does not mean that her FMLA retaliation claim is similarly vital. For the purposes of summary judgment, that retaliation claim is construed under the burden-shifting framework built by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Potenza, 365 F.3d at 168.

The burden starts with Albertin, and it tasks her with proving a four-part prima facie case: (1) she exercised a right protected under the FMLA; (2) she was qualified for her position; (3) she suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of retaliatory intent. Graziadio, 817 F.3d at 429.

To that end, a plaintiff has proven that the circumstances of her adverse action give rise to an inference of discrimination if "a causal connection exists between the plaintiff's protected activity and the adverse action taken by the employer." Donnelly v. Greenburgh Cent. Sch. Dist. No. 7, 691 F.3d 134, 152 (2d Cir. 2012) (cleaned up).

Of course, a plaintiff is free to establish a causal connection "directly, through evidence of retaliatory actions directed against the plaintiff by the defendant." Littlejohn v. City of N.Y., 795 F.3d 297, 307, 319 (2d Cir. 2015). Direct evidence often involves "discriminatory statements or actions by employees who . . . have enormous influence in the decision-making process." Smith v. North Shore-Long Island Jewish Health Sys., 286 F. Supp. 3d 501, 514 (E.D.N.Y. 2018) (internal citations and quotation marks omitted). Keep in mind, though, that "[a]lleged acts of retaliation must be evaluated both separately and in the aggregate, as even trivial acts may take on greater significance when they are viewed as part of a larger course of conduct." Tepperwien v. Entergy Nuclear Operations, 663 F.3d 556, 568 (2d Cir. 2011).

However, a plaintiff can also forge that causal connection "indirectly by showing that the protected activity was closely followed in time by the adverse action." Colon v. Fashion Inst. of Tech., 983 F. Supp. 2d 277, 287 (S.D.N.Y. 2013). Courts routinely use the date a plaintiff requested FMLA leave as a potential starting date to determine temporal proximity. See, e.g., Gray v. Onondaga-Cortland-Madison BOCES, 2020 WL 1029022, at *7 (N.D.N.Y. Mar. 3, 2020) (using date plaintiff submitted notice of medical leave to analyze temporal proximity).

If the plaintiff carries her initial burden of proving a prima facie case, the burden shifts to the defendant, who must demonstrate "a legitimate, non-discriminatory reason for its actions[.]" Graziadio, 817 F.3d at 429. Finally, if the defendant manages that showing, the burden bounces back to the plaintiff, who must prove that the defendant's suggested reason was pretextual. Id.

A plaintiff can prove pretext by "demonstrating weaknesses, implausibilities, inconsistencies, or contradictions in the employer's proffered legitimate, nonretaliatory reasons for its action." Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 846 (2d Cir. 2013). But any weaknesses and implausibilities a plaintiff can show are "simply one form of circumstantial evidence that is probative of intentional discrimination[.]" Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000). A plaintiff's prima facie case itself may provide evidence of intentional discrimination as well. See id. ("The factfinder's disbelief of the reasons put forward by the defendant . . . may, together with the elements of the prima facie case, suffice to show intentional discrimination" (citation omitted)).

The parties cut to the chase on Albertin's retaliation claims, and neither party disputes any of the first three elements of plaintiff's prima facie case. Instead, the parties turn their attention to whether the circumstances surrounding plaintiff's departure from NLH permit a sufficient inference of retaliatory intent and whether plaintiff can prove that the Hospital's advanced reason for forcing her out—her insubordination in including Beadle in her email on November 15, 2017—was a pretext to cover a discriminatory motive.

NLH begins by attacking Albertin's prima facie evidence of a causal connection between her discipline and her FMLA leave. To hear the Hospital tell it, the four-month gap between plaintiff successfully taking FMLA leave in July of 2017 and her termination on November 21, 2017 stretches too long to support an inference of discriminatory intent. DSMF ¶¶ 69, 123, 127; O'Reilly v. Consol. Edison Co., 173 F. App'x 20, 22 (2d Cir. 2006) (summary order) (holding that three-month gap between FMLA leave and termination is too long to sustain inference of discriminatory intent on temporal proximity alone).

That argument must be rejected. From the outset, Albertin has provided at least some direct evidence of discriminatory intent and need not rely on temporal proximity alone. See Littlejohn, 795 F.3d at 319 (noting that plaintiff can prove discriminatory intent through direct evidence). Plaintiff's coworker Jablonski has affirmed that Wydra, a supervisor with substantial influence over the decision-making process regarding plaintiff's employment, asked whether plaintiff was using her FMLA leave to sabotage her vacation plans. Jablonski Aff., ¶ 18; see Smith, 286 F. Supp. 3d at 514 (noting that plaintiff can prove discriminatory intent by presenting evidence of comments made by supervisors with decision-making authority).

Jablonski also affirmed that Grosse grew agitated when Albertin was out on leave, which Jablonski infers was caused by Grosse not knowing how to handle the resulting backlog of work. Jablonski Aff., ¶ 8. Plaintiff's direct showing of discriminatory animus leaves her less beholden to the timeline than she would otherwise be.

However, even setting aside Albertin's direct evidence of discrimination, NLH's argument would still fail. There is no dispute that plaintiff at least attempted to take FMLA leave on November 15, 2017, less than one week before she was forced out of the Hospital. DSMF ¶ 84.

As a consequence, it is worth noting that NLH's attempt to draw the Court's attention to July as the relevant date for her most recent FMLA protected activity for her retaliation claims is a bit of a shell game. Her denied leave requests are just as much an exercise of a protected right as her actually taking leave, and are just as effective for suggesting an inference of retaliatory intent. See, e.g., Gray, 2020 WL 1029022, at *7 (using leave request as basis of calculating temporal proximity).

In that light, Albertin requested to go on FMLA leave three times in the three weeks before she was terminated, and temporal proximity remains a viable part of plaintiff's prima facie case. DSMF ¶¶ 77, 80, 84; cf., e.g., Zann Kwan, 737 F.3d at 839, 847 (finding temporal proximity sufficient to satisfy prima facie case for Title VII retaliation claim when plaintiff was fired three weeks after lodging complaint).

Moving past NLH's temporal proximity arguments, the Hospital makes two more attacks on Albertin's prima facie case. Specifically, the Hospital points out that plaintiff's volatile relationship with Grosse began with plaintiff's moving the filing cabinet on May 1, 2017, two months before her FMLA requests in that year. DSMF ¶¶ 48-49, 52. To the Hospital's point, if "timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise." Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001).

NLH raises a good argument, but it is far from good enough to convince the Court that no rational factfinder could side with Albertin. After all, timing is once again not the only basis for plaintiff's claims, there is also the other evidence of direct discriminatory intent discussed above.

In any case, even keeping in mind the fact that Grosse and Albertin began butting heads before plaintiff first took FMLA leave, it is impossible to ignore the pattern between plaintiff's FMLA rights leading and consequences following. Remember, plaintiff was first approved for FMLA leave on June 12, 2017, and Grosse cracked down on her productivity the same day by following up on her task list. Id. ¶ 38; Dkt. 37-2, p. 180. Then, plaintiff was moved out of her office in July of 2017, while she was on FMLA leave. Dkt. 43, p. 68.

The pattern continues. On August 17, 2017, Albertin was approved for leave to care for her husband, and she received a written warning the next day. Dkt. 41-1, p. 40; Dkt. 37-3, p. 24. Of course, Grosse had initiated the written warning before plaintiff's leave request was approved, but in the absence of any evidence to the contrary, a reasonable juror could infer that Grosse was aware that the approval was coming when she started the warning process on August 15, 2017. Dkt. 37-3, p. 24.

Finally, Albertin was forced out of her job less than a week after a leave request. DSMF ¶¶ 84, 125, 127. That all of these events would take place so close in time to events concerning plaintiff's FMLA leave counterbalances NLH's argument that her problems with Grosse predated her FMLA requests.

Next, NLH argues that Albertin was not alone in feeling like Grosse treated her unfairly. The Hospital points to Jablonski and Deamer's complaints that they, too, were mistreated as evidence of this point. DSMF ¶¶ 133, 137. Once again, that these two Hospital employees also left based on their frustrations—specifically with Grosse—is evidence in the Hospital's favor, but not nearly evidence strong enough to merit summary judgment. The direct evidence plaintiff has gathered is enough for a jury to find in her favor, especially considering that Deamer still maintains that Grosse was "overtly mean and nasty" to plaintiff. Deamer Aff. ¶ 14.

Accordingly, Albertin has carried her initial burden and established a prima facie case of FMLA retaliation. But NLH is not done yet. As its final argument, the Hospital posits that it forced plaintiff out for the legitimate, nondiscriminatory reason of her insubordination, and that plaintiff has failed to carry her final burden of proving that reason to be pretextual.

In a vacuum, NLH's supplied reason of insubordination clears the threshold of a legitimate, nondiscriminatory reason. The Hospital is correct that it has met its burden at the second stage of the retaliation analysis.

Even so, Albertin has comfortably presented a jury question as to pretext. Outside of the aforementioned vacuum, it bears emphasis that plaintiff was given the choice between being fired or resigning because she included someone other than Grosse and Wydra in an email. Dkt. 37-2, p. 190; DSMF ¶ 121. Of course, the Court acknowledges that plaintiff had been given stern warnings about asking anyone other than Grosse a question well before she included Beadle in the November 15, 2017 email. Dkt. 37-3, p. 33. In fact, plaintiff had already been suspended once for asking Beadle's advice. Id.

But a factfinder would be justified in looking at the record and coming away from both of those disciplinary measures and finding them disproportionate enough to suggest that some other motive might be lurking underneath. Perhaps that motive is simply interpersonal strife between Grosse and Albertin. However, NLH has not made it unassailably clear that that motive was not retaliation for plaintiff's exercising her FMLA rights as commanded by its burden on summary judgment.

A reasonable jury could: (1) look at Wydra and Grosse's decision to force Albertin out for a relatively trivial offense; (2) couple it with plaintiff's coworkers' support and claims that Wydra and Grosse had made comments about plaintiff's FMLA leave; (3) consider plaintiff's previously sterling track record, Dkt. 37-2, p. 188; and (4) track the pattern of plaintiff facing some kind of adversity near in time to her every FMLA-related event and come away from that evidence dissatisfied with NLH's explanation. Even in the face of the Hospital's consistent position that it showed plaintiff the door over her insubordination, that reasonable jury would be justified in awarding a verdict to plaintiff on her FMLA retaliation claim. That claim must survive to trial.

V. CONCLUSION

The word "chemistry" gets a lot of use as a shorthand for how well two people get along. Unlike most metaphors, which thrive on reduction, chemistry as a metaphor for personal interactions tends to work on more levels as more people are added. Take the workplace. The perfect balance of personalities in the perfect roles produces an efficient, relaxed environment, maximizing production without straining the employees, much like a perfectly balanced chemical reaction produces the intended outcome without wasting resources.

However, just like using the wrong proportions or chemicals could result in any number of outcomes ranging from nothing to explosion, the wrong people in a workplace can ruin productivity or lead to climactic conflict. This case, whatever its merits ultimately turn out to be, is a classic example of a bad reaction between two people that soured the entire complexion of NLH's human resources workforce.

That bad reaction has run its course, and all this time later there remain a number of unanswered questions concerning Albertin's employment at NLH. None of those questions are for the Court to decide. Trial alone can provide an answer.

Therefore, it is

ORDERED that

1. Defendant Nathan Littauer Hospital and Nursing Home's motion for summary judgment is GRANTED IN PART and DENIED IN PART;

2. Plaintiff Nora Albertin's claims under Counts: (II) minimum wage violations under FLSA; (IV) minimum wage violations under the NYLL; and (V) failure to pay wages under the NYLL are DISMISSED;

3. Plaintiff Nora Albertin's claim of FMLA interference stemming from November 15, 2017 is DISMISSED; and

4. Plaintiff Nora Albertin's claims under Counts: (I) overtime violations under FLSA; (III) overtime violations under the NYLL; (VI) failure to furnish proper wage statements under the NYLL; (VII) FMLA interference; (VIII) FMLA retaliation; and (IX) punitive damages remain for trial.

IT IS SO ORDERED. Dated: May 4, 2021
Utica, New York.

/s/_________

David N. Hurd

U.S. District Judge