Lulo v. OTG Mgmt.
| Decision Date | 10 February 2022 |
| Docket Number | 19 Civ. 3776 (PAE) |
| Parties | TABITHA LULO, Plaintiff, v. OTG MANAGEMENT, LLC, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Plaintiff Tabitha Lulo (“Lulo”), was employed by defendant OTG Management, LLC (“OTG”) from March 2015 to November 2017. In 2017, Lulo was pregnant and, after giving birth, took Federal Medical Leave Act (“FMLA”) leave. Approximately one month after returning to work, she was terminated from OTG in a company-wide Reduction-in-Force (“RIF”). Lulo brings retaliation and discrimination claims against OTG under the FMLA, 29 U.S.C § 2601 et seq., New York State Human Rights Law, N.Y Exec. Law, § 290 et seq. (“NYSHRL”), and the New York City Human Rights Law, N.Y.C. Admin. Code, § 8-101 et seq. (“NYCHRL”).
Pending now is OTG's motion for summary judgment. For the reasons that follow, the Court grants the motion.
Lulo is a former employee of OTG. Def 56, 1 ¶ 1; Depol Decl. ¶ 3. As of the filing of her opposition to summary judgment, Lulo was a 37-year-old woman, residing in Rockland County, New York. Pl. 56.1 ¶ 48.
OTG is a limited liability company organized under Delaware law. Def. 56.1 ¶ 3. OTG is owned by three separate entities, one of which is OTG Management, Inc. Depol Decl. ¶ 3. OTG owns and operates restaurants and concessions in airport terminals throughout the United States, including in airports in New York (LaGuardia and JFK) and New Jersey (Newark). It maintains a corporate office in New York City. Def. 56.1 ¶ 4.
Lulo was employed by OTG from on or about March 16, 2015 through on or about November 13, 2017. Id. ¶ 6. Lulo was a “senior cash auditor, ” and was the only person employed in that position during her employment. Id. ¶ 7. Lulo's starting annual salary was $68, 000. PL 56.1 ¶ 51. Lulo reported directly to Tom Iacopelli (“Iacopelli”), who was OTG's Senior Vice President of Finance. Def. 56.1 ¶ 8. Lulo did not have a physical office; she traveled to airport terminals to perform her duties. Id. ¶ 9. Lulo was primarily responsible for auditing cash and cash-related transactions at OTG's airport terminals. Id. ¶ 10.
In or about January 2017, Lulo learned she was pregnant. Id. ¶ 11. In February 2017, Lulo told Iacopelli that she was pregnant. Id. ¶ 12. Iacopelli did not express any negative reaction, and congratulated Lulo on her pregnancy. Id.; Schmidt Decl., Ex. A at 19. No one at OTG ever made any derogatory or inappropriate comment to Lulo about her pregnancy. Def. 56.1 ¶ 13.
Lulo did not have any difficulties performing her job duties during her pregnancy. Id. ¶ 14. Approximately one to two weeks before she gave birth, Lulo announced to Iacopelli that she would be taking maternity leave after delivery. Id. ¶¶ 15, 16. Iacopelli did not indicate to Lulo that he took issue with her taking such leave. Id. ¶ 17. No one at OTG ever made a derogatory comment about, or indicated any issue with, Lulo taking maternity leave. Id. ¶ 18. On July 5, 2017, Lulo delivered her baby. Id. ¶ 19.
On July 6, 2017, Lulo submitted her maternity leave request form, with an approved anticipated return-to-work date of September 28, 2017. Id. ¶ 20. However, Lulo began to suffer from postpartum depression, and was unable to return to work on that date. Id. ¶ 21. Lulo therefore told Iacopelli that her doctor had extended her leave for a few additional weeks, and that she would return to work on October 23, 2017. Id. ¶ 22. Iacopelli never indicated that he had any issue with Lulo extending her maternity leave. Id., ¶ 23; Schmidt Deck, Ex. A at 45. No one at OTG ever made any derogatory comment about, or indicated any problem with, Lulo's extended leave. Def. 56.1 ¶ 24. Lulo's maternity leave extension request was approved. Id. ¶ 25.
On October 23, 2017, Lulo returned to work in the same role as before her leave began. Id. ¶ 26. After her return, no one at OTG made any comments to Lulo regarding her maternity leave or her gender. Id. ¶¶ 27-29. At no time during her employment did Lulo complain to Human Resources. Id. ¶ 30.
In November 2017, OTG began a company-wide RIF, i.e., layoffs. Id. ¶ 31. The RIF impacted all lines of OTG's business and departments. Id. ¶ 32. OTG's then-Chief Financial Officer had advised OTG to reduce staff for budgetary purposes. Id. ¶ 33. Each department assessed the positions within it to determine which could be eliminated without causing significant disruptions to OTG's core workflow and efficiencies. Id. ¶ 34. As part of the RIF, OTG determined that Lulo's position as a senior cash auditor was not necessary and that it, among other positions, should be eliminated. Id. ¶ 35. This was in part because, by then, OTG had moved further away from a cash-based business model and relied more on credit and debit card transactions. Id. ¶ 36. At her termination meeting, Lulo was told that she was being let go for budgetary reasons as part of a RIF. Id. ¶ 41. Although OTG did not provide a precise number of individuals terminated in the RIF, its Senior Vice President, Corporate Controller described the November 2017 RIF as “major, ” in which “every department had to ... let people go.” Schmidt Decl., Ex. B at 10.
Lulo disputes that the budget cuts were the reason for her termination. She claims she was terminated because she had been pregnant and had taken FMLA leave. Pl. 56.1 ¶ 47. Lulo notes that OTG, the previous year, had terminated another employee, Carla Rodriguez (“Rodriguez”), after she had been pregnant and taken FMLA leave. Id. ¶¶ 55; 68-69. However, OTG disputes that pregnancy or FMLA leave were reasons for Rodriguez's termination. It states that Rodriguez had been terminated as part of a smaller RIF, under which it had terminated all persons-including Rodriguez-who had been hired for the specific purpose of supporting the company during its take-public effort. Def. 56.1 Reply ¶ 55. In further support of her claim that the RIF was pretextual, Lulo also notes that she had heard “not a whisper” about an impending RIF before her termination. Pl. 56.1 ¶ 77.
OTG asserts-and Lulo does not dispute-that Lulo was not the only OTG employee terminated during the RIF, and that the RIF entailed the termination of male and female employees. Def. 56.1 ¶¶ 37-38. As of Lulo's return to work, Lulo did not have any additional leaves of absence scheduled. Id. ¶ 40.
Lulo claims-but adduces no evidence, aside from her own deposition testimony-that she applied for and was rejected from "her own job repackaged by OTG" after her termination. PI. 56.1 ¶ 85. Lulo has not, however, provided evidence as to when she applied, the title of the ostensibly repackaged position, a description of that position, and the qualifications and credentials the position required. On the other hand, OTG adduces evidence that at no time after Lulo's termination did it hire anyone into the position of senior cash auditor, or the same or a similar role repackaged under another title. Def. 56.1 ¶ 43. After the 2017 RIF, certain of the cash-auditing functions were assumed by multiple people, but no person solely performed a cash, auditing role in the terminals, and cash audits were no longer done at the terminals with the same frequency or to the same extent or degree as before the 2017 RIF. Id. ¶ 44. A person named Richard Mazer ("Mazer") was later hired not to perform solely cash auditing functions in airport terminals, but as a high-level auditor for the whole company. Def 56.1 Reply ¶ 63. Mazer's role was a CPA-level position. Mazer is a CPA; Lulo is not. Id.
In February 2018, less than three months after her termination, Lulo began working as a commission specialist at another company. Def. 56.1 ¶ 45.
Lulo was unable to get treatment for her postpartum depression after being terminated from OTG because she lost her health insurance. PI. 56.1 ¶ 59. Lulo suffered severe psychological distress and damage, which she alleges was directly and proximately caused by OTG. For purposes of this motion, OTG does not dispute her claim of such injury. Id. ¶ 60.
On April 26, 2019, Lulo filed her complaint. Dkt. 1 ("Compl."). On June 18, 2019, OTG filed an answer. Dkt. 11. On June 11, 2021, OTG filed a motion for summary judgment, a Rule 56.1 Statement, with declarations and a memorandum of law in support. Dkts. 40-44. On July 19, 2021, Lulo filed her opposition to the motion, a Rule 56.1 statement, and a declaration in support. Dkts. 51-53. On July 30, 2021, OTG filed its reply, a reply Rule 56.1 statement, and an affidavit in support. Dkts. 54-56.
To prevail on a motion for summary judgment, the movant must "show[] 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
The movant bears the burden of demonstrating the absence of a question of material fact. In making this determination, the Court must view all facts "in the light most favorable" to the non-moving party. Holcomb v. Iona Coll., 521 F.3d 130, 132 (2d Cir. 2008).
If the movant meets its burden, "the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment." Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008). "[A] party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion . for summary judgment." Hicks...
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