23-174-cv Kemp v. Regeneron Pharm., Inc.

United States Court of Appeals for the Second Circuit August Term, 2023

(Argued: January 25, 2024 Decided: September 9, 2024)

Docket No. 23-174-cv

_____________________________________

DENISE KEMP,

Plaintiff-Appellant,

v.

REGENERON PHARMACEUTICALS, INC.,

Defendant-Appellee. _____________________________________ Before:

LOHIER, LEE, and PÉREZ, Circuit Judges.

Plaintiff Denise Kemp, a manager at Renegeron Pharmaceuticals, Inc., spent the better part of June 2016 working remotely to take care of a child with a serious medical condition. Regeneron then prohibited her from working remotely for more than one day per week and required her to use intermittent leave under the Family and Medical Leave Act (FMLA) for any additional time away from the office. Kemp sued Regeneron, alleging interference with her rights under the FMLA, as well as discrimination, retaliation, and constructive discharge in violation of the New York State Human Rights Law (NYSHRL). Believing that the denial of FMLA benefits is an element of an unlawful interference claim, the United States District Court for the Southern District of New York (Román, J.) held that Kemp’s FMLA claim failed because Regeneron had not denied Kemp’s use of FMLA benefits. It determined that the claim was time-barred in any event. The District Court also held that Kemp’s NYSHRL claims failed on the merits. We hold that an employer can violate the FMLA merely by interfering with an employee’s use of FMLA benefits, even if the employer ultimately grants the benefits to which the employee is entitled. Because Kemp’s FMLA claim and NYSHRL claims for discrimination and retaliation were time-barred and her NYSHRL claim for constructive discharge fails on the merits, however, we AFFIRM.

STEPHEN BERGSTEIN, Bergstein & Ullrich, New Paltz, NY, for Appellant.

SHAWN MATTHEW CLARK, (Craig R. Benson, on the brief), Littler Mendelson, P.C., New York, NY, for Appellee.

Seema Nanda, Solicitor of Labor, Jennifer S. Brand, Associate Solicitor, Rachel Goldberg, Counsel for Appellate Litigation, Shelley E. Trautman, Attorney, U.S. Department of Labor, Washington, DC, for Amicus Curiae U.S. Department of Labor.

LOHIER, Circuit Judge:

The Family and Medical Leave Act (FMLA) entitles eligible employees to

take a total of 12 workweeks of leave from work during a one-year period to care

for a sick child, for example,

(a)(1), and makes it unlawful for an

employer “to interfere with, restrain, or deny the exercise of or the attempt to

exercise” an employee’s rights under the statute,

§ 2615(a)(1). The principal

question raised here is whether an employer who discourages but does not deny

an employee’s request for FMLA leave “interfere[s] with” the employee’s rights

2 in violation of the statute. The answer is yes. We nevertheless affirm the District

Court’s dismissal of Plaintiff Denise Kemp’s FMLA claim as time-barred because

her employer, Regeneron Pharmaceuticals, Inc., did not willfully violate the

statute so as to extend the two-year statute of limitations. We separately affirm

the dismissal of Kemp’s parallel state law claims under the New York State

Human Rights Law (NYSHRL).

BACKGROUND

Starting as an auditor in 2008, Kemp was employed by Regeneron for

nearly a decade until she retired on January 6, 2017. During her tenure, she was

promoted three times, in 2012, 2014, and 2016, with the latter two promotions

recommended by Teresa Rivenburgh, Kemp’s direct supervisor at all relevant

times. By 2016 Kemp had doubled her salary and risen to become a Senior

Manager in the Quality Assurance Department, supervising several employees.

Things changed in June 2016, when Kemp opted to work remotely in order

to care for a disabled daughter who was hospitalized with several serious

medical conditions. This was not the first time Kemp had been away from the

office for an extended period. She had previously taken leave for a number of

days in 2015 to care for her daughter, and from April 4 through May 15, 2016 she

3 took a short-term leave under the FMLA to have surgery. In both cases,

Regeneron approved the leave.

In June 2016 Kemp’s daughter underwent surgery, prompting Kemp to

work remotely from a hospital for 15 days while her daughter recovered. After

Kemp returned to the office, Rivenburgh and Rivenburgh’s supervisor, Patrice

Gilooly, voiced their concerns about the amount of time Kemp had been away.

“Rivenburgh told Kemp that [she] needed to be more visible in the office and

attend[] meetings in-person rather than by phone.” Joint App’x 444.

Rivenburgh, with Gilooly’s blessing, then limited Kemp to one day of remote

work per week, even though auditors in Kemp’s department regularly worked

from home and some non-managers worked remotely full-time. At about the

same time, however, Rivenburgh also encouraged Kemp to speak with someone

in Regeneron’s Human Resources Department about using paid time off or

intermittent FMLA leave rather than remote work for any additional days Kemp

spent away from the office.

On July 13, 2006, Kemp applied for intermittent FMLA leave to continue to

care for her daughter. Regeneron approved the leave, which was set to run from

August 9, 2016 through February 8, 2017. Around the same time, Kemp and

4 Rivenburgh began discussing Kemp’s possible transition to a role with a similar

status and title (senior manager) as her current position, but with fewer

managerial responsibilities. The parties dispute how these discussions began.

Kemp contends that Rivenburgh told her to consider a less demanding position,

while Gilooly and Rivenburgh testified that, to the contrary, Kemp “approached

[them] about wanting a change in her job.” Joint App’x 165.

Regeneron eventually developed a new senior manager position for Kemp

and, in October 2016, posted a job opening for the position that Kemp was set to

leave. At that point, Kemp did not consider the posting to be inappropriate

because she had agreed to move to the new position that had been developed for

her. Kemp formally accepted the new senior manager position in November

2016, with an expected start date in early 2017.

On December 19, 2016, however, less than a month after accepting the new

position, Kemp abruptly notified Regeneron that she planned to retire effective

January 6, 2017. According to Kemp, her decision to retire was spurred by

Regeneron’s refusal to let her work remotely, along with her belief that it was

“better to leave as a retirement, leave on good terms[,] than it [was] to quit”

because “[t]he pharmaceutical industry is a very small industry, and should [she]

5 apply for a position elsewhere [she] didn’t want to be blackballed.” Joint App’x

254–55. A Regeneron executive emailed Kemp to ask if there was anything he

could do to keep her at the company. On January 5, 2017, the day before Kemp

was scheduled to retire, the same executive offered to transfer her to a different

position. In keeping with her announcement the month before, however, Kemp

retired on January 6, 2017. A few months later, Kemp spoke with Regeneron

executives and employees about performing consulting work for the company;

the discussions went nowhere.

Kemp filed this action in New York state court on November 7, 2019,

claiming that Regeneron had violated her rights under both the FMLA and the

NYSHRL. Specifically, Kemp alleged that Regeneron had interfered with her

rights under the FMLA by prohibiting her from working remotely more than one

day per week. Kemp also claimed that Regeneron had violated the NYSHRL by

discriminating against her based on her association with a person with a

disability (her daughter), retaliating against her for engaging in protected

activity, and constructively discharging her.

Regeneron removed the case to federal court. Following discovery,

Regeneron moved for summary judgment, which the United States District

6 Court for the Southern District of New York (Román, J.) granted. 1 Because

Regeneron never denied Kemp’s request for FMLA leave but merely discouraged

her from taking it, the District Court explained, Kemp failed to prove that

Regeneron had violated her rights under the FMLA. The District Court also held

that Kemp’s FMLA claim was time-barred because she failed to show that

Regeneron had acted willfully so as to extend the statute’s limitations period

from two years to three. Finally, the District Court concluded that Kemp also

failed to adduce evidence in support of her state claims under the NYSHRL.

Kemp challenges these conclusions on appeal. Although we do not agree

entirely with the District Court’s reasoning, we AFFIRM.

DISCUSSION

We review the District Court’s grant of summary judgment de novo,

construing the evidence in Kemp’s favor. See Kaytor v. Elec. Boat Corp.,

(2d Cir. 2010). A district court must “grant summary judgment if the

1 We have jurisdiction over Kemp’s appeal even though the District Court never entered judgment in a separate document as required by Federal Rule of Civil Procedure 58. Federal Rule of Appellate Procedure 4(a)(7)(B) provides that “[a] failure to set forth a judgment or order on a separate document when required by [Rule] 58(a) does not affect the validity of an appeal from that judgment or order” in a civil case. Fed. R. App. P. 4(a)(7)(B). In any event, under Rule 58 the judgment became final 150 days after the District Court’s order was entered on the docket. See Fed. R. Civ. P. 58(c)(2)(B). 7 movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

Generally, “speculation by the party resisting the motion will not defeat

summary judgment.” Mhany Mgmt., Inc. v. County of Nassau,

(2d Cir. 2016) (quotation marks omitted).

I

Although she acknowledges that Regeneron never denied her formal

request for FMLA leave to care for her daughter, Kemp argues that Regeneron’s

attempts to discourage her from taking FMLA leave and the limitations the

company placed on her remote work unlawfully interfered with the exercise of

her rights under the FMLA. See

(a)(1).

We hold that an employer can violate the FMLA merely by interfering

with the employee’s benefits under the FMLA without actually denying the

employee’s request for those benefits. We thus agree with the United States

Department of Labor as amicus curiae in this case that “an employee is not

required to demonstrate an actual denial of benefits to establish a violation of

section 2615(a)(1) and that interference or restraint alone, which includes

discouragement, is enough to establish such a violation.” United States Amicus

8 Br. 20. This holding reflects the statute’s plain, unambiguous text, according to

which it is unlawful for an employer to “interfere with, restrain, or deny” FMLA

rights.

(a)(1) (emphases added).

The District Court erred to the extent it required Kemp to demonstrate that

Regeneron denied her requests for FMLA leave in order to prove her FMLA

claim. We very much appreciate that in reaching its decision, the District Court

relied on language in Graziadio v. Culinary Institute of America,

(2d

Cir. 2016), in which we said that “to prevail on a claim of interference with her

FMLA rights, a plaintiff must establish,” among other things, “that she was

denied benefits to which she was entitled.”

. But elsewhere in Graziadio,

we stated the full legal standard, which is that “[t]o succeed on a claim of FMLA

interference, a plaintiff must establish that the defendant denied or otherwise

interfered with a benefit to which she was entitled under the FMLA.”

(emphasis added); see also

(relying in part on this Court’s precedent

“describing FMLA interference claims as ‘questioning whether the employer in

some manner impeded the employee’s exercise of his or her right’” (emphasis

added) (cleaned up)). The plaintiff’s only claim in Graziadio was that her

employer had denied her eligible request for FMLA leave.

at 424–25. Because

9 the denial of benefits was the sole issue in the case, we had no occasion to

address a claim of unlawful interference with an employee’s use of FMLA

benefits. Graziadio therefore does not control where, as here, the plaintiff claims

that her employer interfered with but ultimately did not deny her use of FMLA

benefits.

We nevertheless affirm the District Court’s grant of summary judgment

because Kemp failed to adduce any admissible evidence that Regeneron acted

willfully when it interfered with her use of FMLA benefits. Kemp concedes that

her FMLA claims are timely only if they arise from willful FMLA violations. See

(c). An employer acts willfully under the FMLA when it knows

“or show[s] reckless disregard for the matter of whether its conduct was

prohibited by the” FMLA. Porter v. N.Y. Univ. Sch. of Law,

(2d

Cir. 2004) (quoting McLaughlin v. Richland Shoe Co.,

(1988)).

Kemp contends that a jury could reasonably find that Regeneron recklessly

disregarded its obligations under the FMLA when it intentionally limited her

remote work so that she would need to ration her FMLA leave. We see no

support in the record for the argument that Regeneron acted in disregard of its

10 obligations under the FMLA. To the contrary, Regeneron appears on this record

to have tried to comply with rather than flout its obligations under the FMLA.

Kemp’s other arguments in favor of reversing the District Court’s

dismissal of her FMLA claim fare no better. First, she maintains that Regeneron

intended to discourage her from caring for her sick daughter by limiting her

ability to work remotely and threatening to fire her if she took FMLA leave. But

in support of this claim, Kemp cites no admissible evidence of Regeneron’s intent

(her own subjective speculation and views about Regeneron’s intent are not

admissible). Second, Kemp contends that Regeneron substantially limited her

remote work days and punished her for working remotely. But this argument

misunderstands the nature of the benefits conferred by the FMLA. The FMLA

protects Kemp’s right to take paid (and thereafter uncompensated) leave for

specified reasons and for a specified number of weeks during a 12-month period.

It does not entitle employees to work remotely or make it unlawful for an

employer to punish an employee who works remotely. Remote work may be

another form of accommodation, but it is not “leave” within the meaning of the

statute. Because, on this record, Kemp failed to adduce evidence that Regeneron

willfully interfered with her use of FMLA benefits, rather than her ability to

11 work remotely, we affirm the District Court’s grant of summary judgment

dismissing Kemp’s FMLA claim.

II

Kemp also asserts three claims under the NYSHRL — associational

discrimination (based on her association with her disabled daughter), retaliation,

and constructive discharge. In granting summary judgment for Regeneron on

the first two claims (discrimination and retaliation), the District Court concluded

that Kemp failed to adduce evidence that she suffered an adverse employment

action.

Urging a contrary conclusion on appeal, Kemp argues that Regeneron’s

decision to curtail her ability to work remotely to no more than one day per

week, as well as her job reassignment, which would have stripped her of direct

reports, each constituted an adverse employment action under the NYSHRL.

We need not resolve this issue on appeal. Even assuming that Kemp

raised a genuine factual dispute that either of these employment actions

qualified as adverse, we conclude that her claims for discrimination and

retaliation, which are subject to a three-year statute of limitations, were untimely.

See Banks v. Gen. Motors, LLC,

(2d Cir. 2023) (“Under the

12 NYSHRL, claims must be filed within three years of the adverse employment

action.”).

As Kemp acknowledges, the statute of limitations under the NYSHRL

begins to run when an “employee receives a definite notice” that the employer

will undertake an adverse action. Smith v. United Parcel Serv. of Am., Inc.,

(2d Cir. 1995) (quotation marks omitted). That date may precede the

“designated date on which employment terminated.” Shultz v. Congregation

Shearith Israel of City of N.Y.,

(2d Cir. 2017) (quoting Chardon v.

Fernandez,

(1981)). Here, that is the date on which Regeneron

“established [its] official position — and made that position apparent to

[Kemp].” Economu v. Borg-Warner Corp.,

(2d Cir. 1987) (quoting

Del. State Coll. v. Ricks,

(1980)).

Because Kemp filed her lawsuit on November 7, 2019, her discrimination

and retaliation claims under the NYSHRL are time-barred unless the relevant

date on which Regeneron made its official position apparent to Kemp was on or

after November 7, 2016. For the reasons described below, we conclude that these

claims are time-barred.

13 There is no dispute that Kemp was informed as early as July 2016 that she

could work remotely only one day a week. Kemp’s NYSHRL claim arising from

that employment action thus accrued in July 2016, and she was therefore

required to file that claim by July 2019, not November 2019.

Kemp was similarly informed in July 2016 that she “should look for

another position” because she “would be better suited for a position that did not

have as many responsibilities.” Joint App’x 451. By this point, then, Kemp was

aware that any new position she obtained would have fewer responsibilities. On

summary judgment, furthermore, Kemp conceded that she had accepted her new

position by October 2016, when Regeneron posted a job opening seeking to fill

the position she was leaving. Regeneron’s Rule 56.1 Statement asserts that

“Kemp did not consider the posting of her job to be inappropriate. She knew she

was moving to the new position in Hutchinson’s department.” Joint App’x 454

(emphasis added). Because Kemp did “not dispute th[at] fact[],” Joint App’x 454,

it is deemed admitted for summary judgment purposes, see Local Rule 56.1(c);

Giannullo v. City of New York,

(2d Cir. 2003). We accordingly

conclude that Regeneron “established its official position — and made that

14 position apparent to [Kemp]” by October, not November, 2016. Economu,

(quotation marks omitted).

On appeal, Kemp suggests that her claim accrued well after October 2016

because the precise details of her transfer had yet to be finalized. We disagree,

and find Miller v. International Telephone & Telegraph Corp.,

(2d Cir.

1985), instructive on this point. There we concluded that the plaintiff received

definite notice of employment termination when he was orally informed “that he

would, absent exceptional circumstances, be removed from the payroll,” even

though the personnel department had not yet officially approved the decision.

. The “mere possibility that the decision [to terminate employment]

might be reversed,” we said, is “not enough to label it advisory or ineffective for

time-bar purposes.”

So too here.

Kemp otherwise seeks to toll the statute of limitations by relying on New

York’s continuing wrong doctrine. But that “doctrine may only be predicated on

continuing unlawful acts and not on the continuing effects of earlier unlawful

conduct. The distinction is between a single wrong that has continuing effects

and a series of independent, distinct wrongs.” Henry v. Bank of Am.,

(1st Dep’t 2017) (quotation marks omitted). In other words, Kemp cannot

15 rely on the continuing wrong doctrine simply by claiming that she continued to

feel the effects of Regeneron’s allegedly discriminatory act after October 2016.

See id.; cf. Elmenayer v. ABF Freight Sys., Inc.,

, 134–35 (2d Cir. 2003);

Lightfoot v. Union Carbide Corp.,

, 907–08 (2d Cir. 1997). We think that

Kemp’s reliance on the doctrine is also misplaced because we see no evidence of

a discrete discriminatory act or “wrong” that would give rise to a new claim of

an unlawful employment practice after the initial claim. See Henry,

.

Finally, we turn to the District Court’s grant of summary judgment to

Regeneron on Kemp’s constructive discharge claim. Under New York law,

“[c]onstructive discharge occurs when the employer, rather than acting directly,

deliberately makes an employee’s working conditions so intolerable that the

employee is forced into an involuntary resignation.” Morris v. Schroeder Capital

Mgmt. Int’l,

(2006) (quotation marks omitted); see Mascola v.

City Univ. of N.Y.,

(1st Dep’t 2005). Stated otherwise, the

employee must face working conditions that are “so difficult or unpleasant that a

reasonable person in the employee’s shoes would [feel] compelled to resign.”

N.Y.3d at 622 (quotation marks omitted). The employer, moreover,

“must be deliberate and intentional” in creating such conditions.

On this record, we agree with the District Court that Kemp failed to show

that her working conditions were so difficult that a reasonable person would

have been compelled to resign. Although Kemp points to her reassignment to a

position with fewer direct reports as evidence that she satisfied this demanding

standard, a reasonable person would not consider her transfer to be so

intolerable as to compel resignation. We note, for example, that Kemp “retained

the same salary and pay grade after [her] transfer.” Id.; see Petrosino v. Bell Atl.,

(2d Cir. 2004) (a reduction in some responsibilities would not

“support [an employee’s] constructive discharge claim”); Gaffney v. City of New

York,

, 319 (1st Dep’t 2012). “The constructive discharge test is

not met if the employee is simply dissatisfied with a change in [their] job

assignments.” Morris,

.

For these reasons we affirm the District Court’s judgment insofar as it

granted summary judgment in favor of Regeneron and dismissed Kemp’s

NYSHRL claims.

17 CONCLUSION

We have considered Kemp’s remaining arguments and conclude that they

are without merit. For the foregoing reasons, the judgment of the District Court

is AFFIRMED.

18