The dreaded reorganization

Here is the timeline for the plaintiff's Family and Medical Leave Act claim: Plaintiff was Deputy Executive Director of Special Education for a Bronx organization that served Bronx schools. On June 18, 2010, she requested FMLA leave for health reasons. On June 24, plaintiff was fired. Plaintiff's FMLA leave was approved on June 26 through her termination date.

The case is Douyon v. New York City Department of Education, a summary order decided on November 7. It sounds like FMLA retaliation, but the Court of Appeals (Livingston, Calabresi and Rakoff [D.J.]) says it was not. Plaintiff makes out a prima facie case, but she cannot show the employer's reason for terminating her employment was pretextual. The reason was the company reorganized. Five positions were eliminated on the same day. While the Central Office hired two people at this time, they got their new jobs before plaintiff had even requested FMLA leave. Plaintiff produced no evidence that defendant would have hired instead of the others.

What we have is a case of bad timing for plaintiff. Few discrimination cases survive evidence that management had downsized or reorganized. I have seen cases where lawyers argue that management got rid of other people in order to get rid of the plaintiff in order to make it look like a reorganization. Courts will not buy that argument. It sounds too fanciful, and they do not think a reasonable jury will buy it, either.

Plaintiff also sues for sexual harassment. The Court does not tell us about the harassment, but harassment is not enough to win a harassment suit. You have to show the employer failed to deal with it, which means you have to show the plaintiff complained about it. The Second Circuit finds that plaintiff "admitted that she failed to take advantage of [the defendant's] procedures." Her excuse was that she feared retaliation. But the courts have been rejecting that excuse for years. "A credible fear of retaliation must be based on more than then the employee's subjective belief," the Court of Appeals notes.