Colon v. Fashion Institute of Technology
983 F. Supp. 2d 277
S.D.N.Y.2013Background
- Genette Colon, a tenured Hispanic FIT employee since 2005, had documented attendance/tardiness issues and received multiple memoranda addressing absences from 2008–2011.
- In October 2011 Colon tore her ACL, provided medical notes, and in early November 2011 her surgeon submitted FMLA paperwork seeking leave from Nov. 30, 2011 to Jan. 10, 2012.
- On November 7, 2011 FIT preferred disciplinary charges and suspended Colon; an arbitrator later recommended termination based on extensive findings of lateness/absences, and the Board adopted that recommendation in June 2013. Colon alleges FMLA interference/retaliation and § 1981 claims.
- Elvimar Rivas, a Hispanic non-tenured FIT secretary, had documented attendance/tardiness problems; she informed her supervisor in writing that she was pregnant in May 2010 and was terminated on September 2, 2010 (with disputed timing and performance evaluations).
- Rivas alleges pregnancy discrimination and discriminatory discharge under the NYCHRL and hostile work environment under § 1981 and the NYCHRL. Defendants moved for summary judgment on all claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preclusive effect and weight of the arbitration decision (Colon) | Arbitration established facts supporting termination; should bar relitigation or be afforded conclusive weight | Arbitration under NY Educ. L. §2587 does not have established preclusive effect in this circuit; at most the award is evidence and its weight is discretionary | No collateral estoppel; arbitration may be admitted but not given great weight because it was incomplete on comparator/testimony issues (denied preclusion, discretionary weight) |
| FMLA interference (Colon) | Notice and FMLA paperwork were provided shortly before suspension; suspension may have been motivated by FMLA request | Disciplinary process began earlier (Aug. 22 email) and termination was for attendance independent of FMLA | Denied summary judgment — factual dispute whether FMLA notice was a negative factor in suspension/termination (jury issue) |
| FMLA retaliation and § 1981 retaliation (Colon) | Suspension/termination followed closely after FMLA notice and other adverse acts; protected activity was a motivating factor | Legitimate nondiscriminatory reason: long history of tardiness/absences; disciplinary process and arbitrator findings justify termination | Denied summary judgment on FMLA retaliation (prima facie and pretext issues remain); granted summary judgment on § 1981 discriminatory treatment and § 1981 retaliation where timing/sequence undercut retaliation element for § 1981 claims |
| NYCHRL pregnancy discrimination and discharge (Rivas) | Termination occurred shortly after Rivas told supervisors she was pregnant; performance evaluations worsened after notice — pretext for discrimination | Termination was motivated by documented, nondiscriminatory attendance/tardiness problems | Denied summary judgment — triable issues of fact as to temporal proximity and whether pregnancy was a motivating factor under NYCHRL; hostile work environment claims (NYCHRL and § 1981) were dismissed as the conduct was petty or reasonably related to performance issues |
Key Cases Cited
- Kuebel v. Black & Decker Inc., 643 F.3d 352 (2d Cir. 2011) (summary judgment standard and construing evidence for nonmovant)
- Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456 (2d Cir. 2001) (discrimination cases may still be resolved on summary judgment)
- Burkybile v. Board of Educ. of Hastings-on-Hudson Union Free Sch. Dist., 411 F.3d 306 (2d Cir. 2005) (administrative adjudications and preclusive effect discussion)
- Alexander v. Gardner-Denver Co., 415 U.S. 36 (U.S. 1974) (arbitral decisions may be admitted as evidence and given appropriate weight)
- Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161 (2d Cir. 2006) (FMLA interference/retaliation framework and causation)
- Potenza v. City of New York, 365 F.3d 165 (2d Cir. 2004) (McDonnell Douglas framework in FMLA retaliation context)
- Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (U.S. 2000) (employer’s burden of production vs. persuasion in burden-shifting)
- St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (U.S. 1993) (plaintiff’s burden to show pretext after employer articulation)
- Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102 (2d Cir. 2013) (NYCHRL must be construed broadly for plaintiffs; different analysis from federal law)
- Tomassi v. Insignia Fin. Grp., Inc., 478 F.3d 111 (2d Cir. 2007) (remoteness of discriminatory remarks weakens inference of discrimination)
- Graham v. Long Island R.R., 230 F.3d 34 (2d Cir. 2000) (similarly situated comparator requirement)
- Cronin v. Aetna Life Ins. Co., 46 F.3d 196 (2d Cir. 1995) (pretext need not show employer's reasons were false, only that unlawful motive was a factor)
- Holtz v. Rockefeller & Co., 258 F.3d 62 (2d Cir. 2001) (temporal proximity and motivating-factor standard)