15-2683
Yetman v. Capital Dist. Transp. Auth.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION ‘SUMMARY ORDER’). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 25th day of October, two thousand sixteen.
5
6 PRESENT: AMALYA L. KEARSE,
7 DENNIS JACOBS,
8 RAYMOND J. LOHIER, JR.,
9 Circuit Judges.
10
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12 Margaret P. Yetman,
13 Plaintiff-Appellant,
14
15 -v.- 15-2683
16
17 Capital District Transportation
18 Authority, a/k/a Capital District
19 Transit Authority, David A. Palmer,
20 Defendants-Appellees.
21
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23
24 FOR APPELLANT: RONALD G. DUNN (Daniel A. Jacobs,
25 on the brief), Gleason, Dunn, Walsh
26 & O’Shea; Albany, NY.
27
1
1 FOR APPELLEES: CLEMENTE J. PARENTE, Jackson Lewis
2 P.C.; Albany, NY. (Kristi Rich
3 Winters, on the brief.)
4
5 Appeal from a judgment of the United States District Court
6 for the Northern District of New York (Suddaby, J.).
7
8 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
9 DECREED that the judgment of the district court be AFFIRMED.
10
11 Plaintiff-appellant Margaret P. Yetman appeals from the
12 judgment of the United States District Court for the Northern
13 District of New York (Suddaby, J.) granting summary judgment
14 to defendants--Yetman’s former employer, the Capital District
15 Transportation Authority (“CDTA”), and her supervisor, David
16 A. Palmer--and dismissing her complaint, which alleged (1)
17 interference and retaliation in violation of the Family and
18 Medical Leave Act (“FMLA”) and (2) disability discrimination
19 in violation of the Americans with Disabilities Act (“ADA”) and
20 the New York State Human Rights Law (“NYSHRL”).
21
22 We review de novo the district court’s grant of summary
23 judgment, drawing all inferences in favor of the non-moving
24 party. Young v. Cty. of Fulton, 160 F.3d 899, 901-02 (2d Cir.
25 1998). We assume the parties’ familiarity with the underlying
26 facts, the procedural history, and the issues presented for
27 review.
28
29 Yetman worked part-time for the CDTA as a bus driver from
30 June to November 2000 and was rehired full-time in November 2004.
31 It is undisputed that she had intermittent attendance problems,
32 and was once fired for misconduct and then reinstated a month
33 later. On numerous occasions she sought FMLA leave, sometimes
34 for personal medical conditions and sometimes for the medical
35 conditions of her children, sometimes short-term and sometimes
36 for months at a time. Leave was always granted. Although she
37 asserts that certain of her absences or late arrivals for work
38 were not considered FMLA leave, she has not genuinely disputed
39 that all of her timely, express requests for FMLA leave were
40 granted and so designated.
41
42
2
1 On June 26, 2010, Yetman missed work without claim of
2 entitlement to FMLA leave. She initially disputed whether she
3 had called the dispatcher in time to report the absence, but
4 the CDTA’s phone records contradicted that claim. She was given
5 the opportunity to provide her own printed telephone record
6 indicating the time she placed the call, but she did not provide
7 it. Instead, she resigned effective July 6, 2010, in a letter
8 indicating that “[t]he constant stress of me possibly losing
9 my job because of an autistic child and other family and legal
10 isues, has been overwhelming.” J.A. 163. She unsuccessfully
11 applied to be rehired in December 2010, and several times again
12 thereafter.
13
14 Yetman’s federal complaint, filed November 9, 2012,
15 generally makes: (1) allegations relating to her period of
16 employment, chiefly interference with FMLA rights and
17 constructive discharge in violation of the FMLA; and (2)
18 allegations of discrimination relating to the CDTA’s decision
19 not to rehire her.
20
21 1. All of Yetman’s claims relating to the period of her
22 employment with the CDTA are time-barred. Claims under the FMLA
23 are subject to a two-year statute of limitations unless the
24 violations are willful, in which case the limitations period
25 is three years. 29 U.S.C. §§ 2617(c)(l)-(2). Yetman filed her
26 complaint more than two years after she resigned (or, as she
27 alleges, was constructively discharged), but within three years,
28 so in order for any FMLA claims relating to her employment to
29 be timely, she must establish willful violation. She has failed
30 to do so. She alleges that various absences that should have
31 been classified as FMLA leave were not so classified, but it
32 is undisputed that (1) she took significant FMLA leave, even
33 for months at a time, which requests were acknowledged as such
34 and always granted; and (2) she did not request FMLA leave for
35 the particular absence that immediately preceded her
36 resignation, and that may have precipitated it. Construing the
37 evidence in the light most favorable to Yetman, she has at worst
38 alleged negligence in FMLA classification, but not willful
39 violation. The two-year limitations period therefore applies,
40 and her FMLA claims stemming from her employment are time-barred.
41
42
3
1 2. Yetman reapplied twice within a year after having
2 resigned, and she argues that the CDTA’s decision not to rehire
3 her constituted disability discrimination or retaliation for
4 her earlier exercise of FMLA rights. Disability discrimination
5 claims and FMLA retaliation claims are both subject to the
6 familiar burden-shifting framework of McDonnell Douglas Corp.
7 v. Green, 411 U.S. 792 (1973). See Potenza v. City of New York,
8 365 F.3d 165, 168 (2d Cir. 2004) (applying the framework to FMLA
9 claims); Davis v. N.Y.C. Dep’t of Educ., 804 F.3d 231, 235 (2d
10 Cir. 2015) (applying the framework to ADA claims); Forrest v.
11 Jewish Guild for the Blind, 3 N.Y.3d 295, 305 (2004) (applying
12 the framework to NYSHRL claims). Therefore, to survive summary
13 judgment on any failure-to-rehire claim that Yetman pleads, she
14 must first establish a prima facie case of discrimination or
15 retaliation; and that requires, inter alia, that she proffer
16 evidence that the decision not to rehire her was made under
17 circumstances giving rise to an inference of discriminatory or
18 retaliatory intent. She has failed to do so.
19
20 Yetman relies principally on testimony that the decision
21 not to rehire was made on the basis of her “overall work record,”
22 including her history of attendance issues, and on evidence that
23 the CDTA and Palmer were aware of her having a history of
24 disability. Mere knowledge, however, does not give rise to an
25 inference of discrimination or retaliation; and considering her
26 “overall work record” does not suggest that defendants
27 considered her to be disabled or improperly considered her prior
28 FMLA leave (especially in light of the undisputed fact that she
29 had attendance issues unrelated to FMLA leave and earlier
30 discipline for undisputed misconduct).
31
32 Moreover, even if she could establish a prima facie case,
33 she has proffered insufficient evidence to show that the
34 non-discriminatory reasons proffered by the defendants for not
35 hiring her were pretextual.
36
37 Accordingly, and finding no merit in plaintiff’s other
38 arguments, we hereby AFFIRM the judgment of the district court.
39 FOR THE COURT:
40 CATHERINE O’HAGAN WOLFE, CLERK
4