Yetman v. Capital District Transportation Authority

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 11 - - - - - - - - - - - - - - - - - - - -X 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 22 - - - - - - - - - - - - - - - - - - - -X 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