Mullin v. Rochester Manpower, Inc.

• Decision Date: 07 March 2002
• Docket Number: No. 00-CV-6257 CJS (B).,00-CV-6257 CJS (B).
• Citation: 204 F.Supp.2d 556
• Parties: Laurel MULLIN, Plaintiff, v. ROCHESTER MANPOWER, INC.; Manpower, Inc.; and Maryann Dee, Defendants.
• Court: U.S. District Court — Western District of New York

204 F.Supp.2d 556

Laurel MULLIN, Plaintiff, v. ROCHESTER MANPOWER, INC.; Manpower, Inc.; and Maryann Dee, Defendants.

No. 00-CV-6257 CJS (B).

United States District Court, W.D. New York.

March 7, 2002.

Laurence E. Pappas, Pappas and Pappas, Rochester, NY, for plaintiff.

Matthew J. Fusco, Chamberlain, D'Amanda, Oppenheimer & Greenfield, Rochester, NY, for defendants.

DECISION AND ORDER

SIRAGUSA, District Judge.

Plaintiff raises claims under the Civil Rights Act of 1964, Title VII, the Family & Medical Leave Act and the New York State Human Rights law. Previously, on January 17, 2002, this Court entered a decision and order granting plaintiff's application to amend her complaint. The case is now before the Court on defendants' motion for summary judgment (docket # 19) seeking dismissal of the Amended Complaint. For the reasons stated below, defendants' motion is granted in part and denied in part.

FACTUAL BACKGROUND¹

Rochester Manpower, Inc., is a domestic corporation with its principal place of business in Fairport, New York. Manpower, Inc., is a foreign corporation not authorized to conduct business in the state of New York and has its principal place of business in Milwaukee, Wisconsin. Maryann Dee is an employee of Rochester Manpower, Inc., and was one of plaintiff's supervisors at or near the time of plaintiff's termination.

Plaintiff was employed by Rochester Manpower, Inc., from November 15, 1995, until June 8, 1999. Robert Capo was the manager of the Fairport² branch of Rochester Manpower, Inc., from approximately December 1998 through January 2001 and was also one of plaintiff's supervisors at or near the time of her termination.

In 1997, plaintiff had a child and took a six-week maternity leave from her employment. Plaintiff was not required to submit a written request to take maternity leave. Mullin dep. at 55. At that time, she was a "Service Representative" at the Fairport branch. In January 1998, upon her return to work following her maternity leave, Rochester Manpower, Inc., agreed to adjust her work schedule to allow her more time with her newborn. This accommodation in her working hours was granted by her then supervisor, Giannina Naylon, who cleared it with Maryann Dee. Mullin dep. at 57-59. Approximately in June 1998, plaintiff was promoted to the position of "branch supervisor" at the Fairport office. On or about August 1, 1998, plaintiff's annual salary was increased from $27,875.00 to $30,000.00.

On about May 19, 1999, plaintiff confidentially informed her supervisor, Capo, that she was pregnant. In that regard, she testified in her deposition as follows:

I did tell him that I just learned, I believe that day I had gotten off the phone with my doctor's office and I just learned that I was pregnant. I knew that, you know, we'd have to have a plan in place. he had been talking about Debbie Delaney who was a part-time interviewer, perhaps bringing her upon in the fall as a service representative. And I said, you know, maybe if that was—I said with me being pregnant that might be a good time to train, get her up and running, et cetera. I said I know that there would be a lot of plans that would need to be made so I wanted to let him know right away. And I asked him not to say anything, as I had miscarried before my daughter was born. So I said, "A lot of things can happen to first trimester. Can we please just keep it between us but keep it in mind, as we'll have to have a plan in place for the rest of the year."

Mullin dep. at 99. Capo asked her when she was due, and she responded that she was only about five weeks along and her due date would not be until January. Mullin dep. at 100.

On or about June 7, 1999, Capo asked plaintiff what her commitment was to the office and stated to her that he needed a "what ever-it-takes attitude" from her and, further, needed to know if she was "with him." Mullin affidavit at 2. The following day, Capo informed plaintiff she was being terminated for financial reasons. Mullin affidavit at 2. The day after that, Capo informed plaintiff she was being terminated for both financial and performance reasons. Then, two days later, on June 11, 1999, Dee told her she was being terminated for financial, not performance-related, reasons. Mullin affidavit at 2. However, in a July 26, 1999, letter from defense counsel to plaintiff's counsel, it was represented that after reviewing plaintiff's work history and discussing the matter with the president of Rochester Manpower, Inc., Robert G. Lewis, the plaintiff was being terminated for both financial and performance reasons. Id. On Sept. 21, 1999, defendants reported to the Equal Employment Opportunity Commission that plaintiff's work performance was questionable, and she was being terminated for financial reasons. Id. Mullin affidavit at 3. Yet, in a deposition on May 1, 2001, Capo described plaintiff as a "good worker." Capo dep. at 83.

Steve Schiano, the Controller or Chief Financial Officer of Rochester Manpower, Inc. since May 1995, in an affidavit submitted in support of defendants' application for summary stated,

[a]s a result of poor performance in the second quarter and the fact that staff expenses remained well above the benchmark, I recommended that staff be cut at the Fairport branch in order to improve the financial condition of the branch. I made this recommendation at a meeting with Lewis, Robert Capo ..., and Dee at some point during the second quarter of 1999.

Schiano aff. at 2-3 (emphasis). There is no dispute that the second quarter was not complete until the end of June 1999.

DISCUSSION

Summary Judgment Standard

The law on summary judgment is well settled. Summary judgment may only be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c). That is, the burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. See Amaker v. Foley, 274 F.3d 677, 680 (2d Cir.2001); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3d Cir.1987) (en banc). Where the nonmoving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the "evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

Once the moving party has met its initial obligation, the opposing party must produce evidentiary proof in admissible form sufficient to raise a material question of fact to defeat a motion for summary judgment, or in the alternative, demonstrate an acceptable excuse for its failure to meet this requirement. Duplantis v. Shell Off-Shore, Inc., 948 F.2d 187 (5th Cir.1991); Fed.R.Civ.P. 56(f). Mere conclusions or unsubstantiated allegations or assertions on the part of the opposing party are insufficient to defeat a motion for summary judgment. Knight v. United States Fire Ins. Co., 804 F.2d 9 (2d Cir.1986). The Court, of course, must examine the facts in the light most favorable to the party opposing summary judgment, according the non-moving party every inference which may be drawn from the facts presented. See Doe v. Dep't of Pub. Safety ex rel. Lee, 271 F.3d 38, 47 (2d Cir. 2001); International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946 (3d Cir.1990). However, the party opposing summary judgment "may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony." Hayes v. New York City, Department of Corrections, 84 F.3d 614, 619 (2d Cir.1996). It is equally well settled that in diversity actions federal court sits and operates as if it were "`only another court of the state,'"` and must apply state substantiative law. GTFM, LLC v. TKN Sales, Inc., 257 F.3d 235, 241 (2d Cir.2001) (quoting Guaranty Trust Co. v. York, 326 U.S. 99, 109, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945)).

Defendants' Motion Regarding Manpower, Inc.

Plaintiff's Amended Complaint contains seven causes of action. Of those, three are against defendant Manpower, Inc. In her memorandum of law (docket # 26), at 30, plaintiff concedes that Manpower, Inc., cannot be vicariously liable for actions taken by Rochester Manpower, Inc. Thus, plaintiff does not oppose defendants' motion for summary judgment relative to the claims against Manpower, Inc. Therefore, the Court dismisses the causes of action against Manpower, Inc., which are the second, fourth and seventh causes of action.

Family and Medical Leave Act, Title VII, Pregnancy Discrimination Act & New York Human Rights Law

Title 29 U.S.Code § 2612(a)(1) entitles an eligible employee to a total of twelve workweeks of leave during any twelve month period for the birth of a son or daughter, or in order to care for a son or a daughter. The term "eligible employee" is defined in § 2611(2)(A) as an employee who has been employed for at least twelve months by the employer with respect to whom leave is requested under § 2612 and for at least one thousand two hundred fifty hours of service with such employer during the previous twelve month period. In her amended complaint, plaintiff adds sufficient factual allegations to prove that she was an eligible employee. See Amended Complaint at ¶¶ 12 - 13. In addition, the statute also defines the term "employer" under § 2611(4) as any person engaged in commerce or in any industry or activity affecting commerce who employs fifty or more employees for each working day during each of twenty or more calendar workweeks in the current or preceding calendar year. Again, in her proposed amended complaint, plaintiff alleges facts sufficient to...