Raimondi v. Avaya, Inc.

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

Doreen Raimondi,

Plaintiff,

Case No. 20-CV-06566-FPG

v.

DECISION AND ORDER

Avaya, Inc., et al.

Defendants.

INTRODUCTION

Plaintiff Doreen Raimondi (“Plaintiff”) brings this action pursuant to the Family Medical

Leave Act, 29 U.S.C. §§ 2601, et seq. (“FMLA”) and the New York State Human Rights Law,

N.Y. Executive Law §§ 290, et seq. (“NYSHRL”), alleging that unlawful employment practices

by Defendants Avaya, Inc. (“Avaya”), Matthew Levesque, and Daniel Plunkett caused her to be

terminated from Avaya. ECF No. 1. Specifically, Plaintiff alleges that Defendants subjected her

to (i) retaliation and/or interference in violation of the FMLA; (ii) discrimination in violation of

the NYSHRL; and (iii) retaliation in violation of the NYSHRL. Id. Plaintiff seeks a declaratory

judgment, injunctive relief, and monetary damages. Id. at 4.

Under Federal Rule of Civil Procedure 56, Defendants filed a Motion for Summary

Judgment on Plaintiff’s Amended Complaint on March 28, 2022. ECF No. 42. On June 7, 2022,

Plaintiff filed her opposition to Defendants’ Motion. ECF No. 50. On July 26, 2022, Defendants

replied. ECF No. 56.

For the reasons set forth below, Defendants’ Motion for Summary Judgment is GRANTED

in part and DENIED in part.

FACTUAL BACKGROUND

On January 2, 2019, Plaintiff became Director of “System Integrator Alliances” at Avaya.

ECF No. 42-41 at 11. Her job included sales and development of strategic partnerships with

systems integrators and technology companies. Id. When hired, Plaintiff reported to Mark Vella,

then-supervisor of the system integrator group of which Plaintiff was a member. Id. at 11. In July

2019, Vella resigned and Defendant Daniel Plunkett, Vella’s former boss, became Plaintiff’s

supervisor. Id. at 11. After Vella’s resignation, Plaintiff allegedly contacted Plunkett to express

interest in Vella’s former role, but Plunkett denied Plaintiff’s application. Id. Plunkett advanced

Defendant Matthew Levesque for the position. Id. In August 2019, Levesque filled Vella’s

position as Plaintiff’s supervisor and became Senior Director of “Global System Integrators.” ECF

No. 42-41 at 11. Plunkett remained supervisor of both Plaintiff and Levesque as “Senior Director

of Alliances, Service Providers and System Integrators.” Id.

In early September 2019, Defendants Plunkett and Levesque held a meeting in Denver,

Colorado for all employees in Plunkett’s department to – according to Defendants – address sales

goals and a lack of sufficient revenue from the group. Id. The meeting was attended by Plunkett,

Levesque, Plaintiff, and other employees in the group, including James Taylor, Dawn Medina,

Anthony Rosselli, and Benjamin Lee. Id.

On September 6, 2019, a few days after the meeting, Plaintiff contacted Avaya’s Head of

Human Resources, Faye Tylee, to request a “confidential phone call.” Id. at 12. Later that day,

Plaintiff told Tylee over the phone that she had learned that Levesque, before joining Avaya, was

terminated from his former job because of a video of him and a woman engaging in inappropriate

behavior.1 Id. After the call, Tylee emailed Plaintiff advising her that Avaya would take her report

1 Levesque allegedly placed his hand down the pants of an individual later identified as his sister-in-law. Id. The

video of the incident has since been removed from the Internet. Id.

seriously, that an employee assistance program (“EAP”) was available for her to use, and that

human resources would contact Plaintiff at a later date to discuss “next steps.” Id. The same day,

Plaintiff emailed Tylee to express her desire to discuss the Denver meeting. Id. On September 8,

2019, Plaintiff forwarded the video to Tylee and expressed concerns about being “in a chain of

command that does not respect women[,]” as well as concerns about “speaking up” because

“[r]etaliation happens in many forms silently.” Id. at 13.

In another call with Tylee on September 9, 2019, Plaintiff reported that Levesque

repeatedly interrupted her and treated her unfairly at the Denver meeting and complained again

about the video of Levesque. Id. Tylee advised Plaintiff that Avaya would conduct a human

resources investigation into her concerns. Id. Shortly thereafter, Tylee and Teresa Van De Brake,

another member of Avaya’s human resources team, began a confidential investigation related to

Plaintiff’s reports, in which the two interviewed each attendee of the Denver meeting and reviewed

the background investigation materials that were gathered in connection with Levesque’s hiring.

Id. Tylee and Van De Brake eventually concluded that Levesque did not act inappropriately at the

Denver meeting and did not locate any negative information obtained in connection with

Levesque’s background investigation. Id. at 14.

On September 23, 2019, Tylee, and Van De Brake discussed the results of the human

resources investigation with Plaintiff over the phone. Id. Tylee and Van De Brake informed

Plaintiff that they had concluded that Levesque did not act inappropriately at the Denver meeting;

advised Plaintiff that each attendee of the Denver meeting was interviewed pursuant to the

investigation; and noted that no negative information was uncovered pursuant to Levesque’s

background investigation. Id. Plaintiff contested their conclusions and continued to express her

concerns about the video of Levesque and his prior conduct. Id.

Shortly thereafter, Plaintiff asked human resources for a transfer of supervision from

Levesque to one or two other individuals within the company. Id. at 15. Tylee and Van de Brake

followed up on her request, but the individuals to which Plaintiff requested a transfer claimed that

they did not have open opportunities within their respective teams. Id. Plaintiff was notified of

their decisions. Id.

On October 31, 2019, Plaintiff and Levesque met to discuss a “3-Year Plan” that Levesque

had directed all of his direct reports to prepare. Id. During the meeting, Plaintiff expressed her

concerns about Levesque’s prior conduct and Levesque’s conduct at the Denver meeting, and

claimed that Levesque had called her a “loser” and bullied her. Id. The meeting ended on good

terms and Plaintiff texted Levesque afterward to express her desire to excel in her current role. Id.

Plaintiff’s statements during the meeting, however, prompted Levesque to contact Van De Brake

about the interaction and he was directed to memorialize his discussion with Plaintiff in an email

to Plaintiff. Id. On November 1, 2019, Levesque emailed Plaintiff about the meeting and

Plaintiff’s comments, stating that he was “surprised” by her claims of name-calling and bullying,

had “not called [her] any names or bullied [her],” and that he was “holding [the team] to high

performance standards[,]” before thanking Plaintiff for the discussion and her follow-up

communications. Id. at 16. Plaintiff responded by promising not to fail in her current role,

expressing surprise that her team may not have been meeting expectations, and advised that she

had been very ill for the past few weeks. Id. In her response, Plaintiff did not dispute or correct

Levesque’s claim that he had not engaged in name-calling or bullying. Id.

On November 3, 2019, Plaintiff texted Levesque that she was in the hospital. Id. at 17.

Levesque and Plaintiff had a phone call on November 5, 2019, in which Plaintiff stated that her

doctor advised her to take time off and Levesque advised Plaintiff to initiate the leave process with

human resources. Id. Plaintiff did so, and Van De Brake advised her in an email that the benefits

group would assist. Id. Sedgwick, Avaya’s third-party benefits vendor, contacted Plaintiff with

the leave paperwork, which included information about FMLA leave. Id. The same day, Levesque

emailed Plaintiff to wish her a speedy recovery, and Plaintiff responded by forwarding a copy of

the human resources email that acknowledged receipt of her request to initiate leave. Id. at 18.

On November 8, 2019, Plaintiff advised Sedgwick that she was withdrawing her claim for

disability leave. Id. On November 11, 2019, Plaintiff returned to work and Sedgwick closed her

leave claim. Id.

In early December 2019, Plunkett transferred Levesque to a lateral position supervising

service providers in order to generate revenue for the service provider group. Id. Eric Serrahn

replaced Levesque as supervisor of the system integrator group, which included Plaintiff, and

attended reviews of Levesque’s former direct reports that Avaya had directed to be conducted as

part of the transition. Id. Levesque administered the reviews. Id. Levesque’s review of Plaintiff

assigned Plaintiff three (3) or four (4) stars out of five (5) for each category of the review. Id.

Plaintiff completed a review of her own time in the group, which did not mention her earlier

concerns with Levesque or with the human resources investigation. Id. at 19. Levesque and

Plaintiff did not work together again after the review. Id.

In February 2020, Plaintiff and six (6) other employees under Plunkett’s supervision were

identified by Plunkett as “non-essential and/or non-performing.” Id. Plunkett allegedly

determined that such employees were not producing sufficient revenue. Id. Plaintiff and Benjamin

Lee were the only individuals identified that were working with system integrators. Id. Both

Plaintiff and Lee were selected for termination. Id.

On March 23, 2020, Lee informed Plaintiff that he had been terminated that day. Id. That

morning, Plaintiff was invited to attend an afternoon meeting titled “Turnover Call.” Id. That

afternoon, Plaintiff was terminated by Avaya during the call. Id.

On August 4, 2020, Plaintiff commenced this action. See ECF No. 1. Plaintiff alleges

against all Defendants that (i) her termination was retaliation and/or interference related to her

November 2019 illness and attempt to take leave under the FMLA; (ii) her termination was

discrimination, in violation of the NYSHRL, arising out of her perceived disability and illness in

relation to her November 2019 inquiry about disability leave; and (iii) her termination was

retaliation, in violation the NYSHRL, arising out of her complaint to human resources regarding

Levesque’s conduct before and during his employment at Avaya. Id.

LEGAL STANDARD

Under Federal Rule of Civil Procedure 56(a), a “court shall grant summary judgment” if

the moving party “shows that there is no genuine issue as to any material fact and that [it] is entitled

to a 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) (“[T]he plain language of Rule 56(c) mandates the entry of summary

judgment, after adequate time for discovery and upon motion, 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.”). “Where the moving party demonstrates

‘the absence of a genuine issue of material fact,’” Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d

Cir. 2011) (quoting Celotex Corp., 477 U.S. at 323), “the opposing party must come forward with

specific evidence demonstrating the existence of a genuine dispute of material fact.” Id. (citing

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). “[T]he mere existence of some alleged

factual dispute between the parties will not defeat an otherwise properly supported motion for

summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson,

477 U.S. at 247-48 (1986) (emphasis in original). “Only disputes over facts that might affect the

outcome of the suit under the governing law” are “material.” Id. at 248. A dispute about a material

fact is “genuine” “if the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Id.

In deciding a motion for summary judgment, the Court “is not to weigh the evidence but is

instead required to view the evidence in the light most favorable to the party opposing summary

judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility

assessments.” Angulo v. Nassau Cnty., 89 F. Supp. 3d 541, 548 (E.D.N.Y. 2015) (quoting another

source). “Only when reasonable minds could not differ as to the import of evidence is summary

judgment proper.” Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). Indeed, “[i]f, as to the

issue on which summary judgment is sought, there is any evidence in the record from which a

reasonable inference could be drawn in favor of the opposing party, summary judgment is

improper.” Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82–83 (2d

Cir. 2004) (citations omitted).

But a “mere scintilla of evidence” in favor of the nonmoving party will not defeat summary

judgment. Anderson, 477 U.S. at 252. A nonmoving party must do more than cast a “metaphysical

doubt” as to the material facts; it must “offer some hard evidence showing that its version of the

events is not wholly fanciful.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

586 (1986); Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (“When a motion for summary

judgment is properly supported by documents or other evidentiary materials, the party opposing

summary judgment may not merely rest on the allegations or denials of his pleading....”).

DISCUSSION

For the reasons below, the Court grants Defendants’ motion for summary judgment with

respect to Plaintiff’s FMLA claim. In addition, because the Court dismisses the only claim over

which it has original jurisdiction, the Court is inclined to decline to exercise supplemental

jurisdiction over Plaintiff’s remaining state law claims. See 28 U.S.C. § 1367(c). Because the

parties should be provided notice and an opportunity to be heard before this Court sua sponte

dismisses such claims, the Court directs further briefing from the parties with respect to whether

the Court should, in its discretion, exercise supplemental jurisdiction over Plaintiff’s remaining

NYSHRL claims. If the parties do not comply with the Court’s order, Plaintiff’s remaining claims

will be dismissed without prejudice.

I. FMLA Claim

The Court concludes that Plaintiff was not eligible for FMLA leave at the time of her

alleged attempt to exercise rights protected by the FMLA. Therefore, Plaintiff was not protected

under the FMLA, and her claim that her termination constituted retaliation and/or interference

under that statute must be dismissed.

As a general matter, only “eligible employees” are entitled to take leave under the FMLA.

Hendrix v. Pactiv LLC, No. 19-CV-6419L, 2020 WL 562748 (W.D.N.Y. Feb. 5, 2020). To be

“eligible,” an employee must have (1) been employed for a period of at least 12 months and (2)

completed at least 1,250 hours of service within that year. 29 U.S.C. § 2612(2). “Proving

entitlement is a necessary prerequisite to a valid FMLA retaliation [or interference] claim.” Kim

v. Goldberg, Weprin, Finkel Goldstein, LLP, 862 F. Supp. 2d 311, 318 (S.D.N.Y. 2012); see, e.g.,

Milne v. Navigant Consulting, No. 08-CV-8964, 2010 WL 4456853, at *10 n. 19 (S.D.N.Y. Oct.

27, 2010) (“It appears clear that in order for a plaintiff to ‘exercise rights protected under the

FMLA,’ the plaintiff must demonstrate she actually has a valid claim to FMLA benefits.”); Higgins

v. NYP Holdings, Inc., 836 F. Supp. 2d 182, 194-95 (S.D.N.Y. 2011); Brown v. The Pension

Boards, 488 F. Supp. 2d 395, 410 (S.D.N.Y. 2007) (retaliation claim failed because employee “did

not enjoy FMLA protection”).

More specifically, to establish a prima facie case of retaliation or interference under the

FMLA, a plaintiff must demonstrate: “(1) that she is an ‘eligible employee’ under the FMLA; (2)

that defendants constitute an employer under the FMLA; (3) that she was entitled to leave under

the FMLA; (4) that she gave notice to defendants of her intention to take leave; and (5) that

defendants denied her benefits to which she was entitled by the FMLA.” Roberts v. Ground

Handling, Inc., 499 F. Supp. 2d 340, 351 (S.D.N.Y. 2007) (quotations and citations omitted).

Because Plaintiff fails to establish the first element of a prima facie retaliation or

interference claim under the FMLA, the Court does not reach the remaining elements. In this case,

Plaintiff’s employment with Avaya began on January 2, 2019. Plaintiff attempted to take leave

under the FMLA in November 2019, less than the statutorily required 12-month period needed for

entitlement to FMLA protections. Plaintiff, therefore, was not an “eligible employee” under the

FMLA at the time of her November 2019 attempt to take leave. In addition, Plaintiff offers no

evidence that she attempted to exercise rights under the FMLA after the statutorily required 12-

month period elapsed in January 2020. That is, Plaintiff does not proffer documentary or “hard

evidence” to show that she did so, beyond threadbare allegations and conclusory statements

contained in Plaintiff’s self-serving declaration and deposition testimony.2 See ECF No. 50-1, 50-

2 Plaintiff states in her declaration, without documentary support or corroboration, that she had “regularly discussed

the possibility of leave with [her] supervisor” in the period before her termination and that had Levesque “not

threatened [her] employment, [she] would have attempted to take leave” after she became eligible for it under the

FMLA. See ECF No. 50-1 at 5. Setting aside whether merely discussing the “possibility” of leave constitutes an

attempt to exercise rights under the FMLA, Plaintiff offers no evidence that she did so beyond her own conclusory

statements. Plaintiff similarly does not offer evidence that Levesque “threatened” her employment after she became

eligible for FMLA leave.

2; see also Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996) (concluding that a

nonmoving party cannot defeat summary judgment by relying on allegations in the complaint, self-

serving conclusory statements, or mere assertions that affidavits supporting the motion are not

credible). For these reasons, Plaintiff’s FMLA claim must be dismissed.

II. State Law Claims

Because the Court dismisses the only claim over which is it has original jurisdiction, the

Court is inclined to decline to exercise supplemental jurisdiction over Plaintiff’s remaining state

law claims arising under the NYSHRL. See 28 U.S.C. § 1367(c). Because the parties should be

provided notice and an opportunity to be heard before a court sua sponte dismisses such claims,

the Court directs the parties to submit further briefing with respect to whether the Court should, in

its discretion, exercise supplemental jurisdiction over Plaintiff’s remaining NYSHRL claims. See

Catzin v. Thank You & Good Luck Corp., 899 F. 3d 77, 82 (2d Cir. 2018). If the parties do not

comply with the Court’s order, Plaintiff’s remaining claims will be dismissed without prejudice.

Federal district courts have supplemental jurisdiction over state-law claims “that are so

related to claims in the action within such original jurisdiction that they form part of the same case

or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). As the

Supreme Court stated in discussing § 1367’s predecessor judicial doctrine of pendent jurisdiction,

however, this is traditionally “a doctrine of discretion, not of plaintiff’s right.” United Mine

Workers v. Gibbs, 383 U.S. 715, 726 (1966). Subsection (c) of § 1367 “confirms the discretionary

nature of supplemental jurisdiction by enumerating the circumstances in which district courts can

refuse its exercise.” City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 173 (1997). Of

particular relevance here, a district court “may decline to exercise supplemental jurisdiction” if it

“has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3).

If a district court’s discretion is triggered under § 1367(c)(3), it should balance the

traditional “values of judicial economy, convenience, fairness, and comity,” Cohill, 484 U.S. at

350, in deciding whether to exercise jurisdiction. See Itar–Tass Russian News Agency v. Russian

Kurier, Inc., 140 F.3d 442, 446-47 (2d Cir.1998). In weighing these factors, the district court is

aided by the Supreme Court’s additional guidance in Cohill that “in the usual case in which all

federal-law claims are eliminated before trial, the balance of factors ... will point toward declining

to exercise jurisdiction over the remaining state-law claims.” 484 U.S. at 350 n. 7; see also Gibbs,

383 U.S. at 726 (“Needless decisions of state law should be avoided both as a matter of comity

and to promote justice between the parties, by procuring for them a surer-footed reading of

applicable law.... [I]f the federal law claims are dismissed before trial ... the state claims should be

dismissed as well.”).

This may be the “usual case” in which Plaintiff’s state claims should be dismissed and

refiled in state court “where they will be afforded a ‘surer-footed reading of applicable law.’”

Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 123 (2d Cir. 2006) (citing Cohill, 484 U.S.

at 350 n. 7). The judicial resources expended in this case do not appear to approach those that the

Second Circuit has previously held justify pendent or supplemental jurisdiction after dismissal of

all original-jurisdiction claims. Cf. Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182,

1192 (2d Cir. 1996) (finding no abuse of discretion in exercise of jurisdiction over state claims

where federal claim was dismissed only nine days before trial); Raucci v. Town of Rotterdam, 902

F.2d 1050, 1055 (2d Cir. 1990) (finding no abuse of discretion in exercise of jurisdiction over state

claims despite dismissal of federal claim where discovery was completed, three dispositive

motions were decided, and case was ready for trial). This case has been pending before this Court

for approximately two years, but only one dispositive motion – Defendants’ motion now before

the Court – has been addressed, and it was filed less than one year ago. In addition, the Court has

set no trial date, and our Circuit has held dismissal of state law claims to be proper even where one

was imminent. Further, the Court can presently discern no “extraordinary inconvenience” or

“inequity” occasioned by permitting Plaintiff’s state claims to be refiled in state court. Kolari, 455

F.3d at 123-24. There, the claims may be afforded a “surer-footed reading of applicable law.”

Cohill, 484 U.S. at 350 n. 7. Still, however, “insofar as a district under undertakes, sua sponte, the

inquiry into whether to maintain supplemental jurisdiction […], it must give the parties notice and

an opportunity to be heard prior.” Catzin, 899 F.3d at 84. This is because “[n]o principle is more

fundamental to our system of judicial administration than that a person is entitled to notice before

adverse judicial action is taken against him.” Lugo v. Keane, 15 F.3d 29, 20 (2d Cir. 1994) (per

curiam).

With these precepts in the mind, the Court directs the parties to submit further briefing with

respect to whether the Court should, in its discretion, exercise supplemental jurisdiction over

Plaintiff’s remaining NYSHRL claims. See Catzin, 899 F. 3d at 82. If the parties do not comply

with the Court’s order, Plaintiff’s remaining claims will be dismissed without prejudice.

CONCLUSION

For the foregoing reasons, Defendants’ motion for summary judgment is GRANTED with

respect to Plaintiff’s first claim. With respect to Plaintiff’s second and third claims, Defendants’

motion for summary judgment is DENIED. Because the Court dismisses the only claim over

which it has original jurisdiction, the Court directs the parties to submit further briefing with

respect to whether the Court should, in its discretion, exercise supplemental jurisdiction over

Plaintiff’s remaining NYSHRL claims. See Catzin v. Thank You & Good Luck Corp., 899 F. 3d

77, 82 (2d Cir. 2018). The parties shall file their respective briefs on the issue within two (2)

weeks of the date of the issuance of this Decision and Order. If the parties do not comply with the

Court’s order, Plaintiff's remaining claims will be dismissed without prejudice.

IT IS SO ORDERED.

Dated: January 11, 2022

Rochester, New York :

HON. FRANK P. GERACTI, JR.

United States District Judge

Western District of New York

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