Ziccarelli v. NYU Hospitals Center

Background

Jeffry Ziccarelli worked for NYU in information-technology positions for almost thirty years. In 2013, he took two medical leaves. He claimed that Cheryl Long pressured him during his first leave to return earlier than planned, and that NYU employees later retaliated against him through difficult assignments, negative treatment, a poor performance review, warnings, elimination of his position, a performance-improvement plan, and other actions.

The remaining claims were Family and Medical Leave Act (FMLA) claims for interference with leave rights and retaliation, and New York City Human Rights Law (NYCHRL) claims for hostile work environment and retaliation. The defendants moved for summary judgment under Rule 56. Summary judgment is available when the record shows no genuine dispute over a fact that could affect the result and the moving party is entitled to judgment as a matter of law.

FMLA Interference

Ziccarelli limited his FMLA interference claim to Long’s May 25, 2013 phone call. According to Ziccarelli, Long said that she was the new director, wanted him to return sooner, and that his job was “safe for now.” Ziccarelli claimed that the call caused him to cut his first leave short by about one week.

The defendants argued that Ziccarelli could not show prejudice because he later took more than twelve weeks of leave. The court rejected that argument. It held that later leave would not necessarily eliminate harm caused by interference with an earlier leave, including monetary losses resulting directly from the alleged violation. The court also held that a reasonable jury could find that Long’s statements would have discouraged an ordinarily resolute employee from exercising FMLA rights. Summary judgment was therefore denied on the FMLA interference claim against NYU and Long.

FMLA Retaliation

The court applied the FMLA retaliation standard under which an action is materially adverse if it could discourage a reasonable worker from exercising legal rights. It found that Ziccarelli’s allegations about his workload, treatment by Long, performance review, written warning, and position elimination were sufficient at the initial stage to support a retaliation claim. The court found that the later performance-improvement plan, final warning, and alleged constructive discharge were too remote in time from the leave, and Ziccarelli offered no additional evidence connecting those actions to his leave.

For the five actions that remained, the defendants offered a legitimate non-retaliatory explanation for eliminating Ziccarelli’s position: an information-technology reorganization after implementation of the new system. Ziccarelli identified disputed evidence about the timing of the reorganization, which positions were eliminated, the department’s staffing needs, and available positions. The court held that these disputes could allow a jury to find the explanation pretextual. Because the defendants offered no legitimate non-retaliatory reasons for the other four actions at this stage, the court denied summary judgment on the FMLA retaliation claims involving those five actions.

Individual FMLA Liability

The court explained that an individual may be an “employer” under the FMLA when the person exercised sufficient control over the employee’s work or FMLA rights. It denied summary judgment for Long on both FMLA claims because the evidence could support finding that she controlled Ziccarelli’s leave-related rights and working conditions.

The court granted summary judgment for Beale on the FMLA interference claim because Ziccarelli admitted that she did not interfere with his leave. It denied summary judgment for Beale on the FMLA retaliation claim because she participated in his performance review and played a meaningful role in the reorganization that eliminated his position. The court granted summary judgment for Bushman on all FMLA claims because her involvement was limited and the evidence did not support treating her as personally liable under the FMLA.

NYCHRL Claims

Ziccarelli based his NYCHRL retaliation claim on reporting Bushman’s alleged sexual misconduct to an employee-relations manager. The court treated that report as protected activity, but found no evidence that any defendant knew about it before the lawsuit. Because knowledge of the protected activity was required to establish the initial retaliation case, the court granted the defendants’ motion for summary judgment on the NYCHRL claims.

Disposition

The court granted in part and denied in part the defendants’ motion for summary judgment. It denied the motion as to the FMLA interference claims against NYU and Long; denied it as to the FMLA retaliation claims against NYU, Long, and Beale; granted it as to Beale on the FMLA interference claim; granted it as to Bushman on all claims; and granted it as to the NYCHRL claims. The clerk was directed to close Docket No. 155.