Dismissal of FMLA Claims Does Not Preclude Assertion of State/City Human Rights Law Retaliation Claims, First Department Holds

In Ji Sun Jennifer Kim v Goldberg, Weprin, Finkel, Goldstein, LLP (decided June 3, 2014), the Appellate Division, First Department held that the plaintiff’s claims of retaliatory termination under the New York State and City Human Rights Laws were not collaterally estopped by a prior federal court decision dismissing her claims under the Family and Medical Leave Act (FMLA).

The facts:

In January 2008, plaintiff Ji Sun Jennifer Kim was hired as an associate attorney in the tax certiorari department of defendant law firm Goldberg, Weprin, Finkel, Goldstein, LLP. In January 2009, plaintiff learned she was expecting a child and informed the law firm of her pregnancy. In June 2009, while visibly pregnant, plaintiff was reprimanded by a partner at the law firm for allegedly reading a book during work hours. According to plaintiff, the partner stood extremely close and screamed at her, causing plaintiff to fear that she would be hit.

Plaintiff promptly emailed a complaint about the incident to defendants Arnold Mazel and Barry Zweigbaum, both partners in the law firm. In that complaint, plaintiff alleged that two other attorneys, both male, were engaging in similar behavior at the same time but were not admonished. Plaintiff’s email expressed concern that she was singled out and treated unfairly due to her pregnancy. Defendant Andrew Albstein, the law firm’s managing partner, wrote an email to plaintiff reiterating that reading a book during work hours was inappropriate, and denying that plaintiff was reprimanded due to her pregnancy. Plaintiff also alleges that Mazel told her that she made her situation worse by complaining.

In September 2009, plaintiff took 12 weeks’ maternity leave. Upon her return to work in December 2009, plaintiff began to express breast milk at the office. At some point in February 2010, Zweigbaum, within earshot of plaintiff, is alleged to have made an inappropriate gender-based comment. The next day, plaintiff complained to Zweigbaum and another partner about the offensive remark. Plaintiff alleges that after she complained, Zweigbaum barely spoke to her.

At around the same time, plaintiff asked if she could work a reduced schedule so she could take care of her baby at home, but Mazel denied the request. According to Mazel, February was the tax certiorari department’s busy season, and firm policy did not allow lawyers to work a reduced work schedule. Albstein confirmed that in the previous 10 years, the law firm had never allowed any associate attorney to work part-time. In April 2010, the law firm terminated plaintiff’s employment, purportedly for budgetary reasons.

First, the court held that collateral estoppel did not apply:

The retaliation claims asserted here are entirely distinct from those raised and decided in the federal action. There, the court only decided whether plaintiff was retaliated against for exercising her FMLA rights. Here, however, plaintiff does not claim retaliation based on her exercise of FMLA rights, but instead alleges retaliation, under the State and City Human Rights Laws, based on entirely different instances of protected activity. Specifically, plaintiff alleges she was discharged for filing a written complaint about her reprimand for allegedly reading a book during work hours, and for verbally complaining about an alleged inappropriate comment. Because the federal court’s decision did not address either of these claimed bases for retaliation, it cannot be said that the federal action “necessarily decided” the same issues raised by the State and City retaliation claims, and thus collateral estoppel does not apply.

Defendants argue that collateral estoppel applies because the federal court, in addressing whether there was an FMLA violation, found insufficient facts to conclude that discrimination played a role in the law firm’s decision to terminate plaintiff. A careful reading of the federal opinion makes clear that the court’s finding was made solely in the context of analyzing the discrete claim of retaliation under the FMLA. Indeed, this was the only question adjudicated by the federal court. Notably, the court’s statement, relied on by defendants, is contained in the part of its opinion entitled “Retaliation for [plaintiff’s]; 2009 leave” (862 F Supp 2d at 318), and the only protected activity addressed by the court was plaintiff’s taking her maternity leave. As noted, the court did not mention, let alone engage in any analysis of, the distinct instances of protected activity that form the basis of plaintiff’s state and city claims. Because the federal court never addressed the retaliation claims asserted in this action, and never addressed the issue of pretext in the context of those claims, its conclusions cannot serve as a collateral estoppel bar.

Second, the court held that the motion court properly denied defendants’ motion to dismiss plaintiff’s retaliation claims:

There is no dispute that plaintiff engaged in protected activity by making two complaints opposing discriminatory treatment. Similarly, there is no question that the law firm’s termination of her constitutes an adverse or disadvantageous employment action. After the first complaint, plaintiff alleges she was told by Mazel to refrain from complaining in the workplace, and following the second complaint, plaintiff claims that Zweigbaum barely spoke to her again. In addition, plaintiff’s termination two months after the second complaint may establish the necessary causal nexus between the protected activity and her discharge (see Ashok v Barnhart, 289 F Supp 2d 305, 315 [ED NY 2003]; [“A period of only two months between a protected activity and an adverse action may permit a reasonable jury to find the acts to be temporally proximate and causally related”]); Lamberson v Six West Retail Acquisition, Inc., 122 F Supp 2d 502, 512 [SD NY 2000]; [employee’s discharge two months after making complaints was sufficiently close in temporal proximity to infer a causal connection]).

Although defendants articulated a nonretaliatory reason for plaintiff’s termination, namely a workforce reduction, triable issues of fact exist as to whether that stated reason was a pretext for retaliation, and whether, absent a retaliatory motive, the law firm’s decision to terminate her would have occurred. The record contains evidence that at the time plaintiff was terminated, the law firm’s tax certiorari department was expanding. According to plaintiff, at the time she was let go, the department was “busier than ever.” Mazel confirmed this, testifying that the department had filed a record number of applications in 2010, more than in each of the previous 10 years. Plaintiff also points to evidence showing that the law firm hired a new attorney to work in her department shortly before her termination, that she was subsequently replaced by an attorney transferred from another department, and that the firm hired another attorney for the tax certiorari department a few months after she was discharged. Viewed in the light most favorable to plaintiff, this evidence is sufficient to defeat summary judgment on the retaliation claims.

Third, the court held that the dismissal of plaintiff’s hostile work environment claim was appropriate:

There is no view of the evidence that any conduct by defendants was severe or pervasive enough to create an objectively hostile or abusive environment, within the meaning of the State Human Rights Law. Plaintiff cites only isolated remarks or incidents, and her being reprimanded for reading a book. Plaintiff’s claim that she was treated differently after returning from maternity leave is too vague to constitute evidence of a hostile work environment. Nor can plaintiff’s hostile work environment claim be sustained even under the City Human Rights Law, since a reasonable person would consider the complained-of conduct nothing more than “petty slights and trivial inconveniences”

Fourth, the court likewise held that plaintiff’s gender/pregnancy discrimination claim should be dismissed:

In her brief on appeal, the only discriminatory act alleged is the denial of plaintiff’s request for a modified work schedule. However, the evidence in the record establishes that the law firm’s policy did not allow for a reduced schedule for any attorney, and that the firm had not permitted any associate attorney to work part-time in the past 10 years. Thus, plaintiff is unable to establish that she suffered unequal treatment in the terms and conditions of her employment under the State Human Rights Law, or that she was treated less well than other employees under the City Human Rights Law.

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