Pellegrino v. County of Orange

• Decision Date: 07 April 2004
• Docket Number: No. 02 CIV.1905(CM).,02 CIV.1905(CM).
• Citation: 313 F.Supp.2d 303
• Parties: Judith M. PELLEGRINO, Plaintiff, v. COUNTY OF ORANGE, Defendant.
• Court: U.S. District Court — Southern District of New York

Page 303

313 F.Supp.2d 303

Judith M. PELLEGRINO, Plaintiff, v. COUNTY OF ORANGE, Defendant.

No. 02 CIV.1905(CM).

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

April 7, 2004.

Sharon K. Worthy-Bulla, Orange County Attorney's Office, Goshen, NY, for County of Orange, Defendant.

Barry David Haberman, New York City, for Judith M. Pellegrino, Plaintiff.

MEMORANDUM DECISION AND ORDER DENYING ALL PENDING MOTIONS FOR SUMMARY JUDGMENT ON FEDERAL CLAIMS, BUT GRANTING SUMMARY JUDGMENT FOR DEFENDANT AS TO THE STATE CLAIMS

McMAHON, District Judge.

Plaintiff Judith Pellegrino ("Pellegrino") brings this suit against Defendant County of Orange ("Orange County"), her employer, alleging that Defendant violated the Pregnancy Discrimination Act ("PDA") and Title VII of the Civil Rights Act of 1964 ("Title VII"), under 42 U.S.C. § 2000e et. seq.; New York State Human Rights Law, Executive Law § 290 et. seq. ("NYSHRL"); New York State Civil Service Law § 72 and § 75 ("NYSCL"); and breached her employment contract. Defendant moves and Plaintiff cross-moves for summary judgment on all claims, except the breach of contract claim, which appears to have been abandoned.¹

For the following reasons, all motions as to the federal claims are denied.

FACTS

In order to expedite my review of this matter, which involves cross-motions for summary judgment, I treat it primarily as a motion for summary judgment by Defendant. Accordingly, the following facts, taken from the parties' Rule 56 statements, are either undisputed or interpreted most favorably to Plaintiff. New York Stock Exchange, Inc. v. Gahary, 196 F.Supp.2d 401, 405 n. 9 (S.D.N.Y.2002).

Relevant Collective Bargaining and Statutory Provisions

The Orange County Department of Health ("OCDOH") hired Plaintiff Judith Pellegrino as a Public Health Nurse on September 8, 1998. (Stipulated Facts ¶ 3.) On September 4, 1999, Pellegrino became a permanent employee. (Stipulated Facts ¶ 4.) At all times prior to July 24, 2002, Pellegrino performed her duties as a Public Health Nurse in a satisfactory manner. (Stipulated Facts ¶ 5.) Effective April 19, 2002, Pellegrino was removed from payroll and deemed terminated by the Orange County Department of Personnel for taking an unauthorized leave of absence. (Affidavit of Cathy Stagmier, dated November 15, 2002, ¶ 25.)

Orange County Public Health Nurses are civil service employees. Accordingly, their employment is governed by Orange County's collective bargaining agreement ("CBA") with the Civil Service Employees Association ("CSEA") and the New York State Civil Service Law.

Article 13 of the Orange County collective bargaining agreement, dated August 11, 2000, and effective January 1, 2000, determines the procedures that must be followed when a civil service employee seeks unpaid leave. Article 13(1), states, in relevant part,

The Employer may grant a leave of absence without pay to a permanent employee for a period not to exceed one (1) year upon receipt of written request stating the reasons and duration. Such leave may be granted for any reason ... Such leave shall be for a specific period of time ... Such employee shall submit said written request to the Commissioner of Personnel, with a copy to the employee's Department Head, whereupon the Commissioner of Personnel shall make a final decision. The decision of the Commissioner of Personnel shall be in writing and shall include the reason for said denial.

Article 13(2) states,

In the event an employee on leave without pay as herein provided shall be confined by a physician for reasons of health, he/she shall receive paid sick leave, not to exceed his/her total accumulated sick leave, during the period of said confinement. The initiation and termination of confinement shall be determined and certified in writing by the employee's personal physician, subject to the Employer's right to verify such need with its own physician at its own expense.

Article 13(3) states,

Employees who have prior knowledge of the need to be absent from the workplace on a leave of absence shall request, complete and return to the Department all paperwork regarding their leaves before the first day they are absent from work. If the absence is unforeseen or unscheduled, employees shall request, complete and return to the Department all paperwork regarding their leaves as soon as possible, but in no event later than ten (10) work days after the first day of such absence. Failure to do so may result in action in accordance with Article Twenty-Nine, Disciplinary Procedure.

Article 29, governing disciplinary procedures, provides,

any employee who is disciplined for absence from work without consent for five or more working days shall forfeit the alternative disciplinary procedure provided herein and such employee shall be limited to the procedures provided by Sections 75 and/or 76 of the Civil Service Law.

Section 75(1) of the Civil Service Law, entitled "Removal and other disciplinary action," states, in relevant part,

A person holding a position by permanent appointment in the competitive class of the classified civil service ... shall not be removed or otherwise subjected to any disciplinary penalty provided in this section except for incompetency or misconduct shown after a hearing upon stated charges pursuant to this section.

N.Y. Civ. Serv. L. § 75(1) (McKinney 1999). Section 75(2) of the Civil Service Law, entitled "Procedure," states, in relevant part,

.... A person against whom removal or other disciplinary action is proposed shall have written notice thereof and of the reasons therefor, shall be furnished a copy of the charges preferred against him and shall be allowed at least eight days for answering the same in writing ... The person or persons holding such hearing shall, upon the request of the person against whom charges are preferred, permit him to be represented by counsel, or by a representative of a recognized or certified employee organization, and shall allow him to summon witnesses in his behalf.

N.Y. Civ. Serv. L. § 75(2) (McKinney 1999). Section 75(3) of the Civil Service Law, entitled "Suspension pending determination of charges; penalties," states, in relevant part, "Pending the hearing and determination of charges of incompetency or misconduct, the officer or employee against whom such charges have been preferred may be suspended without pay for a period not exceeding thirty days." N.Y. Civ. Serv. L. § 75(3) (McKinney 1999)

Section 75(4) of the Civil Service Law states, "Notwithstanding any other provision of law, no removal or disciplinary proceeding shall be commenced more than eighteen months after the occurrence of the alleged incompetency or misconduct complained of and described in the charges." N.Y. Civ. Serv. L. § 75(4) (McKinney 1999).

Pellegrino's Leave Request

On September 2, 1999, Marilyn J. Ejercito ("Ejercito"), the Supervising Public Health Nurse in the Newburgh Health Office and Pellegrino's direct supervisor, conducted a review of Pellegrino's job performance, which she described as "exceeds performance standards in all areas." (Affidavit of Victoria Casey ¶ 24; Casey Aff. Exh. V; Plaintiff's 56.1 Statement ¶ 3-4.) Three other Orange County employees signed-off on Pellegrino's review, including Shirley VanZetta ("VanZetta"), the Director of Patient Services, Nursing Division, Dr. Maxcy J. Smith ("Smith"), the Commissioner of Health, and John Zanetich ("Zanetich"), the Deputy Commissioner of Health. (Pl. 56.1 Statement ¶ 5.) VanZetta, Smith and Zanetich each worked at the main office of OCDOH in Goshen, New York.

On February 23, 2000, Pellegrino requested, and, on March 1, 2000, was granted, leave of absence from employment, effective from February 28, 2000 through April 28, 2000. (Stipulated Facts ¶ 6; Affidavit of Shirley VanZetta ¶ 8.) The request was for unpaid leave from March 3, 2000 through April 28, 2000. Pellegrino annexed a handwritten letter to the Leave Request Form stating that the purpose of the leave was to "attend to personal matters." The letter also indicated that Pellegrino had "a family member who has recently had frequent bouts with asthma." (VanZetta Aff. Exh. F.)

Pellegrino, Ejercito (Pellegrino's immediate supervisor), Smith (the Commissioner of Health) and J. Daniel Bloomer ("Bloomer"), the Commissioner of Personnel, each signed Pellegrino's Leave Request Form. On March 1, 2000, Shirely VanZetta, the OCDOH Director of Nursing, reviewed and approved the leave request. (VanZetta Aff. ¶¶ 8-9.)

On or about April 11, 2000, Plaintiff applied for a twelve-week leave of absence from employment pursuant to the Family Medical Leave Act ("FMLA"), effective from May 1, 2000 through July 21, 2000, the maximum permitted under FMLA. (Stipulated Facts ¶ 7.) This request was also for unpaid leave. Plaintiff submitted the appropriate supporting documentation relative to both of her leave of absence requests. (Stipulated Fact ¶ 8.) On the section marked "Reason For Request" on her second application for FMLA leave, Plaintiff checked the box labeled "your own serious health condition." (Pl. 56.1 Statement ¶ 9.)

In Orange County, additional policy guidelines govern FMLA leave requests. FMLA policy guidelines require employees requesting leave for their "own serious health condition" to present "fitness-for-duty" medical certifications to their Department Heads prior to returning to work. (Affidavit of Sharon Worthy-Spiegl, dated December 17, 2002, ¶ 13; 12/17/02 Worthy-Spegl Aff. Exh. A.) A serious health condition is "an injury, illness, impairment or physical or mental condition that involves inpatient care or continuing treatment by a health care provider." (Id.) Pellegrino did annex a Certification of Physician or Practitioner to her Leave Request Form. (Pl. 56.1 Statement ¶ 10; VanZetta Aff. ¶ 10.) The Certification stated that the condition for which she sought leave had commenced on or about April 2000 and that the probable duration of the...