Herron v. New York City Transit

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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RONALD HERRON,

Plaintiff, MEMORANDUM & ORDER

15-CV-4842(EK)(CLP)

-against-

NEW YORK CITY TRANSIT, NEW YORK

CITY TRANSIT DEPARTMENT OF BUSES,

METROPOLITAN TRANSPORTATION

AUTHORITY, et al.,

Defendants.

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ERIC KOMITEE, United States District Judge:

Ronald Herron, a former employee of the New York City

Transit agency, claims that he was fired for exercising rights

under the Family and Medical Leave Act of 1993 (“FMLA”),

5 U.S.C. §§ 6381–6387, 29 U.S.C. §§ 2601–2654. The defendants

here — New York City Transit (the “Authority”) and affiliated

entities — move for summary judgment. They argue that Herron

has adduced insufficient evidence that he was fired for taking

FMLA leave. Instead, they contend, the record demonstrates that

he was terminated for maintaining outside employment without

authorization, in contravention of the Authority’s policies,

even after he was explicitly advised that doing so constituted a

violation, and after his application for retroactive

authorization was denied. For the following reasons, I grant

Defendants’ motion.

I. Background1

Plaintiff began working for the Authority in 2003.

Pl. 56.1 ¶ 1. In May 2012, he was promoted to the position of

Principal Transportation Planner. Id. ¶ 2. The next month,

Herron applied for — and received — FMLA leave in connection

with a surgery. Pl. 56.1 ¶ 3; Decl. of Ronald Herron (“Herron

Decl.”) ¶ 5, ECF No. 59-5. He was out of the office for

approximately four-and-a-half weeks. Dep. of Ronald Herron

(“Herron Dep.”) 86:24-87:7, ECF No. 59-1.

Herron claims that when he returned to work, he “was

given minimal tasks to complete” each day. Herron Decl. ¶ 6.

Having “nothing” to do “for most of [the] day” made him

increasingly anxious. Id. ¶ 7. Herron asked one of his

supervisors, Ed Maloney, for more work “over 100” times. Herron

Dep. 78:5-9. He told Maloney, “I can’t just sit there and do

nothing. I’m going crazy.” Id. 110:20-111:7; Herron Decl. ¶ 7.

But his workload did not increase. Herron Decl. ¶ 9. Herron

1 The facts in this order are drawn from the parties’ submissions in

connection with the motion for summary judgment, including Defendants’ Local

Rule 56.1 Statement (“Def. 56.1” (ECF No. 58-15)), and Plaintiff’s opposition

(“Pl. 56.1” (ECF No. 59-7)). The facts are viewed in the light most favorable

to Plaintiff, the non-moving party. Citations to a party’s Rule 56.1

Statement incorporate the documents cited therein. For convenience,

Defendants’ supporting memorandum of law will be referred to as “Def. Br.”

(ECF No. 58-2); Plaintiff’s opposition as “Pl. Opp.” (ECF No. 58-16); and

Defendants’ reply brief as “Def. Reply” (ECF No. 58-19).

“began to have panic attacks at work due to the lack of

activity.” Id. ¶ 8. It was around this time that a therapist

diagnosed him with severe anxiety disorder. Id.2

Herron acknowledged that his condition made him unable

to complete certain tasks at times. Asked whether he was

reliable at completing tasks at work, he testified: “At that

point, I was not able to function. So I can’t give you a

definitive answer whether or not I was fit for duty.” Herron

Dep. 179:5-18. After “numerous meetings,” Maloney suggested

that Herron “should apply” for FMLA leave. Id. at 180:7-14.

Herron submitted a second application for “intermittent” FMLA

leave in January 2014 due to his anxiety disorder. Ex. M to

Efron Decl., ECF No. 58-8, at 6. The Authority granted this

application on April 14, 2014. This leave authorization gave

him sixty-days’ FMLA leave and applied partially retroactively,

covering the period February 7, 2014 through February 6, 2015.

Herron Dep. 103:25-104:23; Ex. W to Efron Decl., ECF No. 58-18,

at 1.

Based on his supervisor’s records, Plaintiff took at

least 223.35 hours of FMLA leave between March 2014 and February

2015. Attendance Spreadsheet by Pamela Fulfrost, Ex. K to Efron

Decl. (“Attendance Spreadsheet”), ECF No. 58-8, at 35; see also

2 Herron served as a logistics analyst in the U.S. Army. Herron Dep.

26:6, 56:15-16. The record does not indicate whether he saw combat.

Labor Relations Report dated September 2014, Ex. R to Efron

Decl. (“Labor Relations Report”), ECF No. 58-8, at 63. Herron

testified that no one at the Authority ever refused his requests

for FMLA leave or discouraged him from taking FMLA leave.

Herron Dep. 107:11-23.

As discussed in detail below, however, the Authority’s

records also demonstrate — and Plaintiff does not contest — that

he came to work late, departed early, or was absent entirely on

a large number of occasions that were entirely unrelated to his

FMLA status. His supervisor’s notes indicate, for example, that

Herron had forty-one instances, or approximately 150 hours, of

non-FMLA leave between March 2014 and February 2015.

Attendance Spreadsheet, ECF No. 58-58, at 36. A report by the

Authority’s Labor Relations department buttressed this

conclusion; the report shows that between March 1, 2014 and

September 1, 2014, Herron arrived after his “scheduled . . .

reporting time on 64 occasions out of 88 dates.” Labor

Relations Report, ECF No. 58-8, at 63-64. The report also shows

that Herron’s time-and-attendance problems predated his second

FMLA authorization — for example, Herron reported late forty-

four times between August 2013 and February 2014. Id. As

discussed below, the record reveals that many of these instances

of absence, late arrival and early departure were not only

unrelated to the FMLA, but unauthorized entirely.

Herron began working on an outside project in or

around June 2014. Pl. 56.1 ¶ 5; Herron Decl. ¶ 12. He started

“Herron Entertainment,” a talent-management company that booked

comedians at comedy clubs. Pl. 56.1 ¶ 5; Herron Decl. ¶ 12;

Exhibit O to Efron Decl., ECF No. 58-8, at 52. Defendants

discovered this in September 2014, when Herron left a “talent

management contract” on a photocopy machine at work. Dep. of

Pamela Fulfrost 60:12-22, ECF No. 69-4.

The Authority’s Code of Ethics Manual requires

employees to obtain approval before engaging in outside

employment. Def. 56.1 ¶ 6; MTA Code of Ethics, Ex. N to Efron

Decl., ECF No. 58-8, at 46. Maloney and another supervisor, Dan

Donahue, called a meeting with Herron in September 2014 to

discuss the dual employment issue and Herron’s “attendance,

tardiness and poor work performance.” Donahue Meeting Notes,

Ex. Q to Efron Decl. (“Donahue Notes”), ECF No. 58-8, at 59.

Herron invokes a statement by Donahue at this meeting

in support of his retaliation claim: he testified that “I

believe they asked me how I would feel if someone worked for me

that was sick all the time. Something along those lines.”

Herron Dep. 178:17-20. Defendants dispute that this comment

related to Herron’s FMLA leave. E.g., Dep. of Dan Donahue

(“Donahue Dep.”) 34:20-35:21, ECF No. 59-3. Donahue’s

contemporary notes from the meeting reflect that Herron was

“asked if he owned a business would he employ[] a person like

himself and he said no.” Donahue Notes, ECF No. 58-8, at 59.

When Donahue asked Herron if he was engaging in

outside employment, Herron at first falsely denied that he was.

Id. Eventually, however, he acknowledged the outside endeavor.

Id.3 That same day, Herron applied for dual-employment

authorization. Ex. O to Efron Decl, ECF No. 58-8, at 53. The

Authority denied that application on October 1 based on his poor

attendance record. Pl. 56.1 ¶ 10. (As discussed below, an

employee’s attendance record is a key criterion for dual-

employment eligibility.)

Despite having been confronted, Herron continued to

work on building the production company. Around the time the

Authority denied Herron’s application, Donahue referred the

issue of Herron’s dual employment to the Transit Authority’s

“Special Investigations & System Security” unit. Donahue Dep.

46:20-25, ECF No. 59-3; see also Ex. P to Efron Decl., ECF No.

58-8, at 55. The unit issued an investigation report several

months later, in January 2015. Ex. P to Efron Decl., ECF No.

58-8, at 55. The report stated that investigators asked Herron

about the status of the business, id. at 57, and he replied that

3 Herron claims that prior to the meeting, he had not been told that he

needed to fill out a dual-employment form. Pl. 56.1 ¶ 9.

he was in the process of closing it down. Id.4 Investigators

then confronted him with documentation they found on the

internet,5 following which Herron “acknowledged that he was

actively producing and booking comedy shows.” Id. at 57. Among

other things, Herron scheduled a show for February 21, 2015.

Id. The Investigations unit concluded that Herron had continued

to engage in dual employment without authorization, despite the

prior warning and the denial of his request for authorization.

Id. at 58.

On February 3, 2015, Pamela Fulfrost – a

superintendent in the Material Control Unit, and Herron’s

supervisor at that time – issued a “Notice of Charges and

Disciplinary Action” memorandum. The document charged Herron

with “gross misconduct and insubordination” for “continu[ing] to

actively engage and develop your talent management business

after your request for dual employment was denied,” and

“recommended that [Herron] be terminated.” Ex. T to Efron

Decl., ECF No. 58-8, at 69. The Authority suspended Herron for

two weeks without pay pending dismissal, and offered him the

opportunity to meet during that period. Id. Herron,

4 Investigators met with Herron around January 9, 2015. Herron Decl.

¶ 24.

5 Herron had posted the following on his “GoFundMe” website page in

November 2014: “US Army Veteran is seeking assistance to get my business up

and running. My goal is to help comedians gain work in their area(s).” Ex. P

to Efron Decl., ECF No. 58-8 at 55.

accompanied by counsel, met with Labor Relations and the Chief

Officer of “Central Maintenance Facility” on February 11, but

“provided no explanation, no defense, nor did [he] repudiate the

charges.” Ex. U to Efron Decl., ECF No. 58-8, at 70. The

Authority upheld “the charges as specified and sustain[ed] the

penalty of dismissal” on February 18. Id.6

Herron admits that he “was engaged in a talent

management business” during his employment at the Authority.

Pl. 56.1 ¶ 7. He does not dispute that this conduct violated

the Authority’s Code of Ethics. Id. ¶ 6. Nor does he dispute

that he continued to engage in dual employment after October 1,

2014, when the Authority denied his application, though he

claims — despite the GoFundMe post noted above — that his work

after the denial was only to transition management of the

business to his wife and friend. Id. ¶ 13; Herron Decl. ¶ 24;

see also Ex. P to Efron Decl., ECF No. 58-8, at 55. Herron

claims that the Authority used this violation as a pretext: they

actually terminated him, he says, in retaliation for his

exercise of rights under the FMLA, and out of animus towards his

disability.

Herron sued Defendants in state court for retaliation

and “interference” under the FMLA, as well as retaliation and

6 This letter was sent to Herron by Frank Annicaro, Chief Officer of

“Central Maintenance Facility,” who was also at the February 11 meeting. Id.

disability discrimination under the New York State Human Rights

Law and New York City Human Rights Law. Compl., ECF No. 1-2.

Defendants removed the case to federal court in August 2015.

See ECF No. 1-2,

II. Legal Standard

Summary judgment is appropriate when the record

demonstrates 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). “A fact is material for these purposes if

it might affect the outcome of the suit under the governing law.

An issue of fact is genuine if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.”

Lovejoy-Wwilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 212 (2d

Cir. 2001).7

The moving party has the burden of demonstrating the

absence of a dispute of material fact. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 256 (1986). If the movant carries

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). If the non-

’ Unless otherwise noted, when quoting judicial decisions this order

accepts all alterations and omits all citations, footnotes, and internal

quotation marks.

moving party fails to do so, the Court should grant summary

judgment. The entry of summary judgment is appropriate “against

a party who fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on

which that party will bear the burden of proof at trial.”

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

In performing this analysis, the Court must resolve

all ambiguities and draw all inferences in favor of Plaintiff,

the non-moving party. Gallo v. Prudential Residential Servs.,

Ltd. P’ship, 22 F.3d 1219, 1223 (2d Cir. 1994).

III. Discussion

A. Retaliation under the FMLA

FMLA retaliation claims are assessed under the burden-

shifting analysis set forth in McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802 (1973). See Potenza v. City of New York, 365

F.3d 165, 168 (2d Cir. 2004) (noting that “it would be

appropriate to apply the McDonnell Douglas analysis to claims of

retaliation,” and then doing so). At the first step of this

framework, the plaintiff must produce evidence to establish a

prima facie case of retaliation. Id. at 165. The required

prima facie showing is “de minimis.” Kwan v. Andalex Grp. LLC,

737 F.3d 834, 844 (2d Cir. 2013). If the plaintiff makes that

showing, the burden shifts to the defendant “to demonstrate a

legitimate, non-discriminatory reason” for the challenged

10

employment action. Greenberg v. State Univ. Hosp. - Downstate

Med. Ctr., 838 F. App’x 603, 606 (2d Cir. 2020). If the

defendant meets its burden at this second step, the burden

returns to the plaintiff at step three, who “must then show that

defendant’s proffered explanation is pretextual.” Graziadio v.

Culinary Inst. of Am., 817 F.3d 415, 429 (2d Cir. 2016).

To establish a prima facie case of FMLA retaliation,

Plaintiff must show that “1) he exercised rights protected under

the FMLA; 2) he was qualified for his position; 3) he suffered

an adverse employment action; and 4) the adverse employment

action occurred under circumstances giving rise to an inference

of retaliatory intent.” Potenza, 365 F.3d at 168. Given the de

minimis burden at this stage, a plaintiff can raise an

“inference of retaliatory intent” simply by the “temporal

proximity” between his FMLA leave and his termination. See Ben-

Levy v. Bloomberg, L.P., 518 F. App’x 17, 19 (2d Cir. 2013)

(temporal proximity sufficient to make prima facie claim of

retaliation). The temporal proximity is not particularly tight

here, as Herron first sought FMLA leave in June 2012, then

sought it again (at a supervisor’s suggestion) in January 2014,

but was not terminated until February 2015. The termination

occurred not long after the second period ended, however, and

Plaintiff has adduced at least a modicum of other evidence,

including the comment he attributes to Donahue. Defendants do

not dispute that Plaintiff carried his burden at step one. See

Def. Reply 11-12.

At the second step, Defendants proffer that the non-

discriminatory reason for Herron’s termination was

insubordination — specifically, that he continued to engage in

dual employment after the Authority confronted him about the

Code of Ethics violation and denied his dual-employment

application. Def. Br. 13; see Carrero-Ojeda v. Autoridad de

Energía Eléctrica, 755 F.3d 711, 719 (1st Cir. 2014) (“[W]hile

an employee may not be penalized for exercising her rights under

the statute, an employee may nevertheless be discharged, not

promoted, or denied benefits for independent reasons during or

after her taking of FMLA leave.”). Thus we proceed to step

three, at which Plaintiff contends this reason is pretextual.

To succeed at this step, Herron must offer proof

sufficient to establish, by a preponderance of the evidence,

that the Authority’s proffered legitimate, non-retaliatory

reason is “pretextual.” See Graziadio, 817 F.3d at 429. He may

satisfy this burden by “demonstrating weaknesses,

implausibilities, inconsistencies, or contradictions in the

employer’s proffered reason, or by providing evidence such that

a reasonable factfinder could conclude that the prohibited

reason was a ‘motivating factor’ in the adverse employment

action.” Greenberg, 838 F. App’x at 606 (quoting Woods v. START

Treatment & Recovery Ctrs., Inc., 864 F.3d 158, 166 (2d Cir.

2017)).

Discovery is now complete, so we know the evidence the

parties will rely on at trial. On Herron’s central claim —

namely, that his termination was the product of retaliation, and

the dual-employment issue was pretext — he points to three key

pieces of evidence. Pl. Opp. 15-16. First, he had “a number of

absences” before he started his own company, but he was never

approached or disciplined about his absences until September

2014 (when his outside employment came to light). This, he

argues, should have satisfied the Transit Authority that his

absences were the not result of his dual employment. Second, he

cites evidence that another Authority employee — Pamela

Fulfrost, who supervised Plaintiff later in his tenure — held

outside employment but was not terminated for it, despite the

fact that her outside employment consumed more time than

Plaintiff’s did. Third, Plaintiff points to the disparaging

comment that Donahue allegedly made at the September 2014

meeting.

Defendants do not claim to have terminated Plaintiff

for his absence record, but rather for continuing his dual

employment. Nevertheless, Plaintiff’s pretext arguments

implicate his absence record. For example, Donahue’s allegedly

disparaging comment about the frequency of Herron’s absences is

evidence of FMLA-related animus only to the extent that the

absences in question were for FMLA leave. If, on the other

hand, it is undisputed that Herron was absent scores of times

(or more) without authorization, the alleged comment takes on a

different cast.

Likewise, Herron can only invoke Fulfrost as a

“comparator” to the extent he can show that she was “similarly

situated in all material respects.”8 Herron cannot carry that

burden if Fulfrost maintained solid attendance despite her

outside work, while he was late for work or left early (or was

absent altogether) on scores of occasions without authorization.9

Ultimately, therefore, the question of whether Herron

has adduced enough evidence that the Authority’s stated reason

for termination was pretextual depends in part on a reading of

his attendance record.

8 See Shumway v. United Parcel Service, 118 F.3d 60, 64 (2d Cir. 1997);

Graham v. Long Island R.R., 230 F.3d 34, 40 (2d Cir. 2000) (“[T]o satisfy

Shumway’s ‘all material respects’ standard for being similarly situated, a

plaintiff must show that her co-employees were subject to the same

performance evaluation and discipline standards” and “that similarly situated

employees who went undisciplined engaged in comparable conduct.”).

9 As discussed below, there are two potential reasons that Plaintiff has

failed to establish that Fulfrost is an appropriate comparator. In addition

to the absenteeism issue, Plaintiff has not shown that Fulfrost continued to

engage in outside employment after being caught doing so by the agency and

warned not to continue to do so, and before her application for dual

employment was approved. Fulfrost Dep. 81:18–84:5.

1. Plaintiff’s Absence Record

The Defendants produced extensive, and largely

uncontroverted, evidence in discovery that Plaintiff regularly

came late to work, left early, or was absent altogether, and

without FMLA authorization or, indeed, any authorization. That

is, that even excluding Plaintiff’s approved FMLA leave,

vacation time, and other approved absences, he still compiled a

disastrous attendance record. Defendants point to the following

undisputed facts regarding Herron’s non-FMLA-approved leave:

Plaintiff applied for two “superintendent” positions

in or around March 2014. Donahue Dep. 22:10–23:25. The

eligibility requirements for that promotion included an

attendance criterion: the employee had to show that, in at least

two of the preceding three years, he was absent fewer than ten

days per year. Id. at 28:1-29:9. FMLA leave was exempt from

this calculation. Id. at 30:4–5. The Authority’s HR department

determined that Herron failed to meet the attendance criterion

every year between 2011 and 2014, after scrupulously ensuring

that no FMLA leave was included in the calculations and offering

Herron an opportunity to review the determination. Ex. J to

Efron Decl., ECF No. 58-8, at 22–23.10 Based on this review,

10 The HR department (formally titled “Resource Management”) emailed

Donahue: “After reviewing [Herron’s] attendances (see attachment) for the

last three years, it was determined that he failed the attendance

Herron was informed that “until such time his attendance

improved he would not be recommended for an interview.” Id.11

When Herron met with Donahue and Maloney in September

2014 to discuss “attendance, tardiness and poor work

performance,” Donahue noted that they “[r]eviewed examples of

[Herron’s] poor attendance [and] tardiness that [preceded] his

FMLA” leave, for which Herron “had little or no

explanation . . . other than his continual stress issues.”

Donahue Notes, ECF No. 58-8, at 60. Herron “acknowledged” in

that meeting “that he was not reliable and completing many of

his tasks [was] not feasible as his attendance was so horrible.”

Id.

When Donahue asked the Authority’s HR team to

investigate Herron’s attendance issues (because he suspected

that they related to his outside employment),12 the results were

stark: the review revealed that between August 1, 2013 and

February 28, 2014, Herron reported late for work on forty-four

occasions; and between March 1, 2014 and September 1, 2014, he

criteria.”); id. at 16-20 (the attachment from Resource Management to

Donahue, called “NYCT Employee Transactions & Totals,” listed Herron’s

absences and pay codes and showed handwritten notes calculating the

absences); id. at 23 (Resource Management emailed Donahue: “please ensure

that those absences are not associated with FMLA since FMLA time is exempt

from the criteria”); id. at 14 (Donahue emailed Herron asking him to state

“the dates you were on if any approved FMLA starting Feb 2011 to date”).

11 Herron did not dispute that he had poor attendance and acknowledged

that Donahue could not recommend him because of it. Herron Dep. 149:3-21.

12 Donahue Dep. 14:23-16:17; Pl. 56.1 ¶ 8.

arrived after his “scheduled . . . reporting time on 64

occasions out of 88 dates.” Labor Relations Report, ECF No. 58-

8, at 65.13 The report reveals no explanation for these

instances. Id. at 64. During the broader period of August 1,

2013 through September 1, 2014, there were also at least five

days when Herron worked through lunch without authorization (so

he could leave early), id., and approximately sixty-seven

occasions when Herron left work early and did not designate it

FLMA leave. Id.14

Fulfrost, who supervised Herron starting in 2014, also

kept extensive notes on his attendance and performance.

Attendance Spreadsheet, ECF No. 58-58, at 26–36; Fulfrost Dep.

14:11-12. Fulfrost maintained a spreadsheet tracking Herron’s

attendance between March 2014 and February 2015. ECF No. 58-58,

13 Labor Relations based its report on records from “Kronos,” the system

it used to track when employees entered or exited a Transit building and when

they clocked in or out of work. Id. The report showed the number of times

Herron reported late to work, worked through lunch without authorization (so

that he could leave early), and left early. Id. at 62–63.

14 The Court refers to Exhibit A to the Supplemental Efron Declaration,

ECF No. 63, for explanation of MTA’s pay code acronyms. The record does not

reveal the precise meaning of the “OTO” code. Because the report codes these

absences as “Vac [vacation], PLD [Personal Leave Day], [and] OTO,” it is not

immediately apparent how many of these late-arrivals and early departures

were taken for FLMA reasons, and thus might have constituted FLMA leave. See

Herron Dep. 88:13-89:20 (explaining that he was required to take accrued paid

days (whether vacation, sick leave, or personal days) before using unpaid

FLMA says); Def. Supp. Br. 3, ECF No. 62 (“The use of a paid day for an FLMA-

qualifying reason . . . draws down the bank of available unpaid FMLA leave).

However, cross-referencing this report with his supervisor’s records,

discussed below, shows that most of his reasons – where he did give a reason

(he often did not) – for being late or leaving early had nothing to do with

his anxiety or medical issues. See Attendance Spreadsheet, ECF No. 58-58 at

26-26.

at 26–36. It shows forty-three instances of FMLA leave, which

are clearly designated “FMLA.” Id. Beyond that, the

spreadsheet shows over fifty instances of absences, late

arrivals, early departures, and requests for permission to work

through lunch (in order to leave early). Id. Most of these are

coded either “LWOP [Leave Without Pay],” “Left Early,” “Sick,”

“PLD [Personal Leave Day],” “Vacation,” or “No Pay.” Id.15 The

spreadsheet also shows that many of Herron’s non-FMLA absences

were entirely unrelated to the anxiety underpinning his FMLA

request.16

This record leaves no question that Herron had a poor

attendance record aside from FLMA leave. Indeed, the majority

15 In a “comments” section of the spreadsheet, Fulfrost’s notes indicate

that on at least some occasions, Herron would deviate from his scheduled work

hours without permission in ways for which no “pay code” description applied.

See, e.g., id. (late to work on May 19, June 9, Sept. 22, 23; left early on

Sept. 11).

16 To cite a few examples, Fulfrost’s spreadsheet contains the following

notes: Apr. 14: Herron “asked me if he could work thru lunch – he had a case

of the ‘sleepies,’” Id. at 26; May 1: “[R]on called and said he got a call

from his son’s school and that they asked to meet with him at 11am,” id. at

27; May 7: “Left work at 1:00 said that his son was sent home from school b/c

of a rumor mill . . . that his son was in danger,” id. (ellipses in

original); May 8: “has a closing on his new home. Will be in late. Using a

few hours of vacation time.” id. at 28; May 15: “Asked for another vacation

day due to a busted pipe,” id.; May 19: “called, running late,” id.; June 9:

“called at 9:35 in traffic on the Jackie Robinson,” id.; June 11: “called in

at 9:30 traffic on the Jackie Robinson. Left at 4 saying that his wife was

nauseous and had cramps,” id. at 29; June 13: “DID NOT CALL . . . Told me his

wife was experiencing cramps and that he may have to leave early,” id.; June

24: “says wife is having contractions and doesn’t want to come in if he has

to go home again,” id.; July 10: “said . . . he needs an extra day off

‘because his wife isn’t clear to drive yet,’” id. at 30; Nov. 21: “Ron came

to me at 12:30 requesting to work thru lunch b/c his wife is taking his

daughter to the doctor. I gave him permission even though I know he has some

show that is taping today.” Id.

of Herron’s absences were not FLMA-related. Though Defendants’

reason for firing Herron was his continued dual employment, not

his attendance record, Herron’s attendance record sets the stage

for assessing whether he has met his burden at step three of the

retaliation analysis (i.e., his pretext argument). Addressing

his arguments in turn, I conclude that he fails to establish

such an inference.

2. Timing of Feedback on Herron’s Absences

Herron argues (somewhat obliquely) that the Court

should infer retaliatory intent from the fact that his spotty

attendance record pre-dated his dual employment. That he was

“never approached between February 2014 and September 2014

regarding any of his absences,” he argues, means that

Defendants’ purported reason for terminating him – the

continuation of dual employment – was pretextual. Pl. Opp. 15-

16.

This argument fails for two reasons. First, Herron

actually was provided feedback about his absence record during

the preceding period, and in a meaningful way: he was denied the

right to apply for two promotions on the basis of his non-FMLA

absence record, as discussed above. Second, it makes perfect

sense that the suspicion of dual-employment in September 2014

would prompt a deeper dive into Herron’s absence record. The

Authority’s Code of Ethics states that outside employment is

allowed only with permission, and only if it “does not interfere

with their ability to devote appropriate time and attention to

their employment with their MTA agency.” MTA Code of Ethics,

ECF No. 58-8, at 46. Donahue testified that attendance records

are the primary consideration in determining whether to grant a

dual-employment application because there is a “presumption of

correlation” between the second job and attendance issues.

Donahue Dep. 40:9–41:9, 45:20-46:4, 49:17-50:5. This provides a

reasonable explanation as to why Donahue asked Labor Relations

to look into Herron’s attendance record in September 2014.

3. The Fulfrost Comparison

Herron’s comparison to Pamela Fulfrost, who also held

outside employment without authorization, similarly falters on

two grounds. First, Plaintiff cannot establish that Fulfrost

was “similarly situated in all material respects,” Shumway v.

United Parcel Serv., 118 F.3d 60, 64 (2d Cir. 1997), when her

continued dual employment was retroactively authorized and his

was not. The Authority’s stated reason for denying Plaintiff’s

dual employment application was his attendance record, which —

as detailed above — was problematic at best. See Section

III.A.1, supra. Plaintiff has produced no evidence that

Fulfrost had compiled a similarly vast record of absences when

she sought dual-employment authorization. Accordingly, she is

not an appropriate comparator. See Graham v. Long Island R.R.,

230 F.3d 34, 40 (2d Cir. 2000) (opining that the “standard we

used in Shumway requires plaintiff to show that similarly

situated employees who went undisciplined engaged in comparable

conduct”).

Second, and more importantly, Herron was not

terminated simply for engaging in dual employment. On the

undisputed facts, he not only engaged in dual employment — he

continued to do so after the Authority identified his outside

venture and reiterated that it violated the agency’s code of

ethics, and after he had applied for retroactive authorization

and that application had been denied (on the basis of his non-

FMLA attendance problems). See Ex. P to Efron Decl., ECF No.

58-8, at 57.17 Plaintiff points to no commensurate evidence

about Fulfrost.

3. Donohue’s September 2014 Comment

Plaintiff argues that a jury could infer

discriminatory animus from a comment Donahue made at the

17 Exhibit P is the report by the Special Investigations & System

Security unit into Herron’s dual employment; it recommended that “appropriate

action” be taken. Plaintiff conceded to investigators that he continued

outside employment after September 2014. Id.; see also Notice of Charges and

Disciplinary Action, Ex. T to Efron Decl., ECF No. 58-8, at 69 (Defendants’

contemporaneously articulated reason for terminating Herron was Herron’s

continued outside employment, after the September 2014 meeting and the denial

of his application for authorization); Herron Dep. 199-200 (when confronted

about his continued outside engagement, Plaintiff acknowledged his efforts to

“get what I had . . . transferred over to the people who could run it,” and

that he wanted “to be done with it very soon”); id. at 204:19-205:4

(Plaintiff had a show scheduled for February 21, 2015).

September 2014 meeting about whether Herron would hire himself.

Herron testified, “I believe they asked me how I would feel if

someone worked for me that was sick all the time. Something

along those lines.” Herron Dep. 178:17-20. There are several

problems with Plaintiff’s reliance on this purported comment.

First, Herron did not testify with confidence to the

content of the comment. This failure of clear recollection –

saying it was “[s]omething along those lines” — diminishes the

probative value of this deposition testimony for obvious

reasons. See Romero v. City of New York, 839 F. Supp. 2d 588,

605 (E.D.N.Y. 2012) (plaintiff’s deposition testimony was “not

significantly probative” – and thus insufficient to establish a

genuine dispute of material fact – in part because the

“deposition testimony [was] vague at best” (quoting Anderson,

477 U.S. at 249–50 (“If the evidence [favoring the nonmoving

party] is merely colorable, or is not significantly probative,

summary judgment may be granted.”)); see also Bright v. GB

Bioscience Inc., 305 F. App’x 197, 203 (5th Cir. 2008)

(plaintiff “failed to raise a genuine issue of material fact

probative of pretext” for discrimination claim where his “vague

testimony” did not directly contradict the testimony of

defendant company’s HR manager); Burke v. Evans, 248 F. App’x

206, 208 (2d Cir. 2007) (affirming grant of summary judgment

when “plaintiff did not produce any evidence beyond vague

recollections of conversations with co-workers, anecdotes based

on hearsay, and other unsupported speculation to support his

claim” of employment discrimination).18

Donahue explained that his comment was not a reference

to Herron’s use of FMLA leave. Def. Reply 7; Donahue Dep.

34:20-35:21 (Donahue stated he was not aware of Herron’s

“anxiety issues” at the time, and confirmed the “meeting was

strictly relat[ed] to his attendance and dual employment”); see

also Dep. of Ed Maloney 42:15-43:7, ECF No. 59-2 (testifying

that Donahue’s comment “wasn’t [about] the sickness”).

Donahue’s contemporaneous notes corroborate this testimony: they

reflect that that Herron was asked only “if he owned a business

would he employ[] a person like himself and he said no.”

Donahue Notes, ECF No. 58-8, at 60. This evidence weighs

against finding pretext. Indeed, it is patently unremarkable

18 Herron also described Donahue’s comment in his declaration – prepared

in opposition to this summary judgment motion – with more confidence than

during his deposition. See Herron Decl. ¶ 21 (“Donahue specifically asked me

whether I would hire someone like myself who was out sick all the time.”).

However, this later-filed declaration does not, on its own, overcome his

failure to recall the precise nature of Donahue’s statement during his

deposition. E.g., Fed. Deposit Ins. Corp. v. Murex LLC, 500 F. Supp. 3d 76,

94 (S.D.N.Y. 2020) (“[A] party cannot create a triable issue of fact, and

thus avoid summary judgment, by renouncing deposition testimony to the effect

that he could not remember a particular fact which he now purports to

remember.”); Butler v. Raytel Med. Corp., 150 F. App'x 44, 46 (2d Cir. 2005)

(plaintiff’s response of “Not to my knowledge” when asked during his

deposition whether he complained to others about alleged discrimination, did

in fact contradict his later-filed declaration in which claimed to remember

doing so). Moreover, Herron did not point the Court to this statement in his

56.1 Counterstatement, instead citing only his uncertain deposition

testimony. See Pl. 56.1 ¶ 17.

that an employer would express some disapprobation for a record

of (non-FMLA) absences as extensive as Herron’s.

The probative value of Herron’s testimony about the

comment is further diminished by the fact that in February 2015,

Herron made a complaint to the Authority’s internal equal

employment office, but he failed to mention Donahue’s allegedly

disparaging comment. Email from Ronald Herron, Ex. X to Efron

Decl., ECF No. 58-18, at 4–7. The complaint was to “open a case

for Harassment” and “unlawful discrimination”; certainly

Donahue’s comment would have been salient in that context. Id.

at 4. Nevertheless, Herron did not mention the comment he now

attributes to Donahue and actually indicated, consistent with

Donahue’s account, that he was asked about attendance in the

context of his other job: “it seemed – at least to me that I was

being accused of not being at work here at my job to be working

my other business.” Id. at 5.

Most importantly, even if Herron could establish the

precise wording of Donahue’s comment, his argument would fall

short because it remains only a single comment. A “single

comment is insufficient to present a triable issue as to

discriminatory motive.” Benson v. Fam. Dollar Operations, Inc.,

755 F. App’x 52, 56 (2d Cir. 2018) (ADEA and ADA claims); see

also DiCesare v. Town of Stonington, No. 15-CV-1703, 2018 WL

6592088, at *11 (D. Conn. Dec. 13, 2018) (applying Benson in

FMLA context), aff'd, 823 F. App’x 19 (2d Cir. 2020); Alexander

v. Bd. of Educ. of the City Sch. Dist. of the City of New York,

107 F. Supp. 3d 323, 330 (S.D.N.Y. 2015) (noting that “isolated

and stray remarks, without more, are insufficient to raise an

inference of retaliation”), aff’d sub nom. Alexander v. Bd. of

Educ. of the City of New York, 648 F. App’x 118 (2d Cir. 2016).

And the significance of that comment diminishes

greatly where the defendant’s “legitimate reason” for

terminating the plaintiff is strong. Flood v. UBS Glob. Asset

Mgmt., Inc., No. 10-CV-0374, 2012 WL 288041, at *19 (S.D.N.Y.

Feb. 1, 2012) (Title VII) (comment was “insufficient to permit a

reasonable factfinder to conclude that [defendant’s] legitimate

reason for discharging [plaintiff] more likely than not was

pretextual” where there was “strong evidence to support” the

legitimate reason); Sanchez v. N.Y.C. Transit Auth., No. 17-CV-

5818, 2020 WL 5763860, at *3 (E.D.N.Y. Sept. 28, 2020)

(dismissing FLMA retaliation claim where “Plaintiff was absent

on 13 occasions over the course of ten months” because

“Plaintiff’s poor attendance record deems her unqualified to

perform the essential functions of her job”). See generally

Gonzalez, 442 F. Supp. 3d at 688 (at step three, plaintiff must

show that defendant’s proffered legitimate, non-retaliatory

reasons for termination were false, and that the improper motive

(discrimination or retaliation) “was the real reason”).19 Here,

the evidence supporting the Authority’s proffered reason —

namely, the “gross misconduct and insubordination” manifested by

Herron’s continuation of unauthorized outside employment — is

strong. Indeed, Herron does not meaningfully contest the facts

underlying the claim of insubordination at all, except to say

(without evidence) that he was winding down his outside

endeavor.

In the end, Herron has adduced virtually no probative

evidence that his termination was retaliatory or that the

Authority’s stated reason for it was pretextual. I thus grant

19 Moreover, Plaintiff provides no evidence that either of the people at

the meeting – Donahue or Maloney (i.e., the potential speakers of the comment

at issue) – had any role in his termination. Compare Binder v. Pub. Serv.

Enter. Grp., No. 2:19-CV-5787, 2022 WL 307813, at *11 & n.5 (E.D.N.Y. Feb. 2,

2022) (noting that the “only individual with knowledge of Plaintiff's

[accommodation] request . . . avers she ‘had no role whatsoever in the

decision to terminate’ Plaintiff” and “Plaintiff has no evidence to create an

issue of fact as to whether [another individual] was a decisionmaker with

respect to his termination”), with Philippe v. Santander Bank, N.A., No. 15-

CV-2918, 2018 WL 1559765, at *11 (E.D.N.Y. Mar. 31, 2018) (plaintiff met

burden of establishing causation for retaliation claim in part because the

person who made negative comments about plaintiff’s FMLA leave played a

“prominent role in the termination at issue”); Siani v. State Univ. of N.Y.

at Farmingdale, 7 F. Supp. 3d 304, 326 (E.D.N.Y. 2014) (noting that although

individual defendant whose comments created inference of retaliation “did not

herself terminate plaintiff, her role in his termination may constitute an

adverse action in its own right”). Rather, the record reveals that Fulfrost

was the one to issue Herron the Notice of Charges and Disciplinary Action,

and Frank Annicaro, the Chief Officer of the Central Maintenance Facility,

was the one to uphold the charges and sustain the dismissal. See Notice of

Charges and Disciplinary Action, Ex. T to Efron Decl., ECF No. 58-8 at 69;

Letter from Frank Annicaro, Chief Officer, Central Maintenance Facility, to

Herron, Ex. U to Efron Decl., ECF No. 58-8, at 71.

Defendants’ motion for summary judgment on the FMLA retaliation

claim.

B. Interference under the FMLA

Plaintiff also alleges “interference” under the FMLA

because Defendants took “nearly four months to approve of

Plaintiff’s FMLA leave” in 2014 (his second FMLA approval). Pl.

Opp. 6. “Interference” under the FMLA occurs where an employer

prevents or otherwise impedes the employee’s ability to exercise

rights under the FMLA. See Graziadio, 817 F.3d at 424.

“Discouragement” is one form of interference. Regulations

promulgated under the FMLA provide that “[i]nterfering with the

exercise of an employee’s rights would include, for example, not

only refusing to authorize FMLA leave, but discouraging an

employee from using such leave.” 29 C.F.R. § 825.220(b)

(internal quotes omitted).

Mere “delay,” however, is not considered a ground for

discouragement, but is instead a “technical violation” of an

FMLA regulation, 29 C.F.R. § 825.300(b)(1). Smith v.

Westchester County, 769 F. Supp. 2d 448, 468 (S.D.N.Y. 2011)

(four-and-a-half-month delay in responding to request for FMLA

leave was “technical violation” and not “interference”). I

therefore grant Defendants’ summary judgment motion as to the

interference claim as well.

Cc. State-Law Claims

In addition to his FMLA claims, Herron brings

retaliation and disability discrimination claims under the New

York State Human Rights Law and New York City Human Rights

Law. Because I dismiss the FMLA claim — the sole basis for

federal jurisdiction in this case — I decline to exercise

supplemental jurisdiction over his remaining state-law

claims. 28 U.S.C. § 1367(c) (3); see also Motorola Credit Corp.

v. Uzan, 388 F.3d 39, 56 (2d Cir. 2004) (“[O]ur Court has held,

as a general proposition, that if [all] federal claims are

dismissed before trial, the state claims should be dismissed as

well.”). Because the case was removed from state court, I

remand the state claims for consideration. Baylis v. Marriott

Corp., 843 F.2d 658, 665 (2d Cir. 1988) (“Where the state claims

originally reached the federal forum by removal from a state

court, the district court has the discretion to dismiss the

claims without prejudice or remand them to the state court.”).

Defendants do not object to remand. Def. Br. 15.

IV. Conclusion

For the reasons stated above, I grant the Defendants’

motion for summary judgment. Plaintiff’s claims under the

Family and Medical Leave Act are dismissed. I decline to

exercise supplemental jurisdiction over Plaintiff’s state-law

claims. The Clerk of Court is respectfully directed to remand

28

the action to the Supreme Court of the State of New York, Kings

County; to send a certified copy of this Order to the Clerk of

that court; and to close this case.

SO ORDERED.

/s/ Eric Komitee__________

ERIC KOMITEE

United States District Judge

Dated: April 5, 2022

Brooklyn, New York