Lulo v. OTG Management, Inc.

Background

Tabitha Lulo worked for OTG Management, LLC, from approximately March 2015 through November 2017 as a senior cash auditor. She became pregnant in 2017, took leave under the Family and Medical Leave Act (FMLA), and returned to work on October 23, 2017. About one month later, OTG terminated her position during a company-wide reduction in force. OTG told her the termination was for budgetary reasons.

Lulo sued under the FMLA, the New York State Human Rights Law, and the New York City Human Rights Law. She alleged that OTG retaliated against her for taking FMLA leave, discriminated against her because of her pregnancy, and later retaliated by failing to rehire her. The opinion explains that OTG Management, LLC was substituted for OTG Management, Inc. after the defense argued that the LLC—not the Inc. entity—had employed Lulo.

FMLA retaliation claims

The court applied the burden-shifting framework used in employment-retaliation cases. Lulo had to show that she used FMLA rights, was qualified for her job, suffered an adverse employment action, and had evidence suggesting a retaliatory motive. The parties did not dispute the first three elements. The court held that the approximately one-month period between Lulo’s return from leave and her termination was close enough in time to support the initial inference of retaliation.

OTG then provided a legitimate, non-retaliatory explanation: a major, company-wide reduction in force prompted by budgetary constraints. The court found that OTG selected positions for elimination based on whether they could be removed without significantly disrupting operations, rather than on subjective evaluations of the employees holding those positions. OTG also presented evidence that it did not later hire anyone for Lulo’s senior cash-auditor position and that her duties were divided among existing employees.

The court held that Lulo did not present enough evidence to show that OTG’s explanation was a pretext, meaning a cover for retaliation. Temporal proximity alone was insufficient at this stage. Her evidence that she had not heard about the reduction in force beforehand did not show pretext. The court also found that her evidence about another employee’s earlier termination after pregnancy and FMLA leave did not establish retaliatory intent.

The court separately rejected Lulo’s claim that OTG retaliated by failing to rehire her. Lulo offered only her deposition testimony that OTG had sought someone for the same or a similar position. She did not provide concrete information about the position, her application, its duties, or its qualifications. OTG presented evidence that Lulo’s former role had been eliminated and that a later company-wide auditing position was different and required a certified public accountant credential that Lulo did not have.

New York State and New York City claims

The court exercised supplemental jurisdiction over Lulo’s state and city claims, allowing it to decide them in the same case. It held that the factual record was shared across the claims and that resolving all of them would promote efficiency.

For Lulo’s New York State pregnancy-discrimination claim, the court held that the evidence did not support an initial inference that her termination was based on pregnancy. Lulo relied primarily on the fact that she had been pregnant earlier in 2017 and was terminated four months after giving birth. She did not provide evidence of pregnancy-related comments, harassment, or continuing effects of pregnancy that connected her pregnancy to the termination. The court added that, even assuming she had made an initial showing, OTG’s reduction-in-force explanation was supported by the evidence and Lulo had not shown it was pretextual.

The court also rejected Lulo’s New York State retaliation claim because the record did not show that she had complained about pregnancy or sex discrimination, formally or informally, before filing the lawsuit. The court found no sufficient evidence that the alleged failure to rehire followed protected activity or that Lulo was qualified for a position OTG failed to give her.

The court applied the more protective standard under the New York City Human Rights Law but reached the same result. Lulo did not provide evidence that pregnancy discrimination played any role in her termination or that she was treated less favorably because of her pregnancy. Her city-law retaliation claim also failed because she did not show protected activity before the alleged failure to rehire or evidence that she was qualified for a comparable position.

Disposition

The court granted defendant OTG Management, LLC’s motion for summary judgment in its entirety. It directed the clerk to terminate the motion and close the case.