Kemp v. Regeneron Pharmaceuticals, Inc.

Background

Denise Kemp sued Regeneron Pharmaceuticals under the New York State Human Rights Law and the Family and Medical Leave Act. Her New York claims alleged constructive discharge, discrimination based on her association with her disabled daughter, and retaliation for taking or seeking workplace accommodations related to her daughter’s care. Her federal leave claim alleged that Regeneron interfered with her right to take up to 12 weeks of unpaid leave to care for a disabled child.

Kemp worked for Regeneron from June 2008 until her departure. She received promotions, raises, and stock options and ultimately became a Senior Manager in Quality Auditing. In 2016, after Kemp worked remotely frequently while caring for her daughter, Regeneron required her to work from the office more often and to use paid time off or intermittent Family and Medical Leave Act leave for additional remote-work days. The parties disputed whether this arrangement was a reasonable accommodation or a punishment for having a sick child. They also disputed whether a proposed role without direct reports was a desirable lateral position or a demotion. The opinion states that Regeneron never denied Kemp’s requests to leave early, work remotely, or take paid time off, including for medical appointments.

Kemp agreed to transition to the proposed role but never did so. The opinion states that she retired in January 2017, although it also refers elsewhere to her retirement or departure in December 2016. The parties disputed whether she genuinely retired or left because of Regeneron’s treatment of her. Kemp also alleged that Regeneron reduced her 2016 bonus in retaliation; Regeneron disputed that characterization.

New York State Human Rights Law claims

The court applied the burden-shifting framework used for employment-discrimination claims. Under that framework, a plaintiff must first show, among other things, that she experienced an adverse employment action under circumstances suggesting discrimination. The employer may then offer a legitimate, nondiscriminatory reason, after which the plaintiff must provide evidence that the reason was a pretext for discrimination.

The court held that Kemp failed to show a materially adverse employment action. It found that she remained in her existing position until her departure and did not receive a reduced salary, a less distinguished title, or a material change in job responsibilities. The court treated the one-day-per-week remote-work rule, together with the requirement that she use paid time off or Family and Medical Leave Act leave for additional remote-work days, as insufficiently adverse because Kemp was never denied a request for leave or remote work.

The court also held that the proposed new role did not qualify as a materially adverse change. Kemp would not have supervised direct reports, but the court found no evidence that the role would have had a less prestigious title, less significant work, or lower pay. Because Kemp did not show the required adverse employment action, the court ruled that she could not establish a basic discrimination case for constructive discharge, discrimination based on her daughter’s disability, or retaliation.

Family and Medical Leave Act claim

For an interference claim under the Family and Medical Leave Act, a plaintiff must show that she was eligible, entitled to leave, gave notice, and was denied a benefit to which she was entitled. Most such claims must be filed within two years of the last alleged violation. A three-year period applies to a willful violation, meaning conduct the employer knew violated the law or recklessly disregarded that possibility.

The court determined that Kemp’s action, filed on November 7, 2019, could proceed only if the alleged violation was willful because the last alleged event occurred no later than December 2016. The court held that Kemp had not raised a genuine factual dispute showing willfulness or denial of a leave benefit. It emphasized that Regeneron had not denied her requests for Family and Medical Leave Act leave, early departures, remote work, or paid time off. The court therefore applied the two-year filing period and ruled that the Family and Medical Leave Act claim was time-barred.

Disposition

Judge Nelson S. Roman granted Regeneron’s motion for summary judgment in its entirety. The court directed the clerk to terminate the motion at docket entry 30 and terminate the action.