O'Reilly v. Consolidated Edison Co.
Opinion of the Court
SUMMARY ORDER
Plaintiff-appellant Patricia O’Reilly (“O’Reilly”) appeals from the district
We review a motion for summary judgment de novo, construing all facts and drawing all permissible inferences in the non-moving party’s favor. Niagara Mohawk Power Corp. v. Jones Chem., Inc., 315 F.3d 171,175 (2d Cir. 2003). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Jeffreys v. City of New York, 426 F.3d 549, 553-54 (2d Cir. 2005).
Each of O’Reilly’s claims is subject to the burden shifting approach of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Potenza v. City of New York, 365 F.3d 165, 168 (2d Cir. 2004) (FMLA claims); Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n. 1 (2d Cir. 2000) (claims under NYSHRL and NYCHRL); Heyman v. Queens Vill. Comm. for Mental Health, 198 F.3d 68, 72 (2d Cir. 1999) (ADA claims); Dister v. Cont’l Group, Inc., 859 F.2d 1108, 1112-13 (2d Cir. 1988) (ERISA claims). Under the McDonnell Douglas framework, once a plaintiff makes out a prima facie case, the burden of production shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse employment action. 411 U.S. at 802-03, 93 S.Ct. 1817. If the defendant produces evidence of such a reason, the plaintiff must show that the defendant’s reason is merely a pretext for discrimination. Id. at 803-04, 93 S.Ct. 1817.
O’Reilly argues that retaliatory intent for her termination can be inferred from the fact that she was terminated while on sick leave for the same serious medical condition for which she commenced her FMLA leave, as well as from the temporal proximity of her FLMA leave and her termination. O’Reilly’s FMLA leave began on September 9, 1999, and ended on December 1, 1999. She was terminated on March 1, 2000, three months after her FMLA leave had ended. Con Ed’s own sick leave policy, however, is more generous than that allowed by FMLA. Con Ed’s policy allowed O’Reilly an additional 32 weeks of sick leave after her FMLA leave was exhausted. While close temporal proximity can give rise to an inference of retaliation, see Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998) (retaliatory intent inferred from termination within two months of sexual harassment complaint), the three month gap between O’Reilly’s FMLA leave and her termination is not sufficient to give rise to an inference of retaliation in light of the additional leave time Con Ed’s policy allowed.
Even assuming that O’Reilly can make out a prima facie case under FMLA, however, she has produced no evidence from which a jury could reasonably conclude that Con Ed’s non-discriminatory reason for termination—that she was col
O’Reilly also argues that the fact that individuals belonging to Con Ed’s Lost Time Control Unit participated in the process to terminate her is sufficient to raise an inference of retaliation. The existence of a unit designed to curtail abuse of sick leave does not, by itself, raise such an inference. O’Reilly has not pointed to evidence of any discriminatory intent by these individuals or any systematic bias by Con Ed against those taking FMLA leave.
O’Reilly next contends that the district court erred in finding that she had not established a prima facie case of discrimination under the ADA because the injury to her Achilles tendon did not substantially limit the major life activity of walking sufficient to make her “disabled” within the meaning of that Act. She contends also that the district court erred in its determination that she had failed to bring forward evidence to show that Con Ed’s stated reason for her termination, that she was collecting sick leave under false pretenses, was pretextual. Even assuming that O’Reilly could show that she was disabled under the ADA, she has failed to bring forward any evidence from which a reasonable jury could infer that the non-discriminatory reason for her termination was pretextual. O’Reilly relies on the same evidence of pretext used to support her FMLA claim, which we reject for the reasons discussed. O’Reilly’s argument that the failure of Dr. Hildebrand to make even rudimentary attempts to ascertain her medical status after viewing the tape raises an issue of fact is similarly unavailing. The record shows that Dr. Hildebrand had reviewed her medical records and the videotapes and determined that no further examination was needed. O’Reilly does not point to any policy requiring further inquiry and does not explain how these actions are evidence of pretext.
Nor did the district court err in holding that O’Reilly failed to produce evidence that her termination was motivated by an intent to deny rights guaranteed by ERISA. Assuming that O’Reilly could establish a prima facie case under ERISA, as discussed above, O’Reilly has failed to produce any evidence that Con Ed’s nondiscriminatory reason for her discharge was pretextual.
Finally, in light of the disposition of O’Reilly’s federal claims, the district court did not abuse its discretion, see Motorola Credit Corp. v. Uzan, 388 F.3d 39, 55-56 (2d Cir. 2004), in declining to exercise sup
We have considered all of appellant’s arguments and find them to be without merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.
Reference
- Full Case Name
- Patricia O'REILLY v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., and Gail Walther
- Cited By
- 8 cases
- Status
- Published