14-3710-cv 

Donna Scarpinati de Oliveira v. Cairo-Durham Central School District, et al. 

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT 

SUMMARY ORDER 

Rulings by summary order do not have precedential effect. Citation to a summary order filed 

on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate 

Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a 

document filed with this Court, a party must cite either the Federal Appendix or an 

electronic database (with the notation “summary order”). A party citing a summary order 

must serve a copy of it on any party not represented by counsel. 

At a stated term of the United States Court of Appeals for the Second Circuit, held at 

the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 

on the 23rd day of February, two thousand sixteen. 

PRESENT: JOSÉ A. CABRANES, 

ROSEMARY S. POOLER, 

 DENNY CHIN, 

 Circuit Judges. 

 

DONNA SCARPINATI DE OLIVEIRA, 

Plaintiff-Appellant, 

v. 

 No. 14-3710-cv 

CAIRO-DURHAM CENTRAL SCHOOL DISTRICT, 

CAIRO-DURHAM BOARD OF EDUCATION,

CAIRO-DURHAM TEACHERS’ ASSOCIATION, SUSAN 

KUSMINSKY, Individually and as President of the Board 

of Education as aider and abettor, JUSTIN KARKER, 

Individually and as President of the Cairo-Durham 

Teachers’ Association as aider and abettor, SALLY 

SHARKEY, Individually and as Superintendent of School 

as aider and abettor, 

Defendants-Appellees.*

 

 

*

 The Clerk of Court is directed to amend the caption of the order as set forth above. 
 

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FOR PLAINTIFF-APPELLANT: PHILLIP G. STECK (Carlo A. C. de Oliveira, on 

the brief), Cooper Erving & Savage LLP, 

Albany, NY. 

FOR DEFENDANTS-APPELLEES 

CAIRO-DURHAM CENTRAL SCHOOL 

DISTRICT, CAIRO-DURHAM BOARD OF 

EDUCATION, SUSAN KUSMINSKY, AND 

SALLY SHARKEY: RYAN P. MULLAHY (Patrick J. Fitzgerald III, 

on the brief), Girvin & Ferlazzo, P.C., Albany, 

NY. 

FOR DEFENDANTS-APPELLEES 

CAIRO-DURHAM TEACHERS’ 

ASSOCIATION AND JUSTIN KARKER: ANTHONY J. BROCK (Richard E. Casagrande, 

on the brief), Office of General Counsel, New 

York State United Teachers, Latham, NY.

 Appeal from a judgment of the United States District Court for the Northern District of 

New York (Norman A. Mordue, Judge). 

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED in part, 

and VACATED in part, and the cause is REMANDED for further proceedings consistent with 

this order. 

Plaintiff-appellant Donna Scarpinati de Oliveira, an elementary-school teacher formerly 

employed by defendant Cairo-Durham Central School District, appeals a September 30, 2014 order 

of the District Court granting summary judgment to defendants and denying summary judgment to 

plaintiff. Plaintiff asserted claims against defendants Cairo-Durham Central School District (the 

“District”) and its superintendent Sally Sharkey, Cairo-Durham Board of Education and its 

president Susan Kusminsky, and Cairo-Durham Teachers’ Association and its president Justin 

Karker, arising out of plaintiff’s dismissal from the District, due to inferior seniority status, as part of 

budget-driven layoffs. 

On appeal, plaintiff challenges the dismissal of her claims arising under the Family and 

Medical Leave Act, 29 U.S.C. § 2601 et seq. (“FMLA”); Title VII of the Civil Rights Act, 42 U.S.C. § 

2000e et seq. (“Title VII”); the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k) (“PDA”); 42 

U.S.C. § 1983 (“Section 1983”); and Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 

1681–88 (“Title IX”). We assume the parties’ familiarity with the underlying facts, the procedural 

history of the case, and the issues on appeal. 
 

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We review de novo an order granting summary judgment and “resolv[e] all ambiguities and 

draw[] all permissible factual inferences in favor of the party against whom summary judgment is 

sought.” Burg v. Gosselin, 591 F.3d 95, 97 (2d Cir. 2010) (internal quotation marks omitted). “A 

defendant is entitled to summary judgment where the plaintiff has failed to come forth with 

evidence sufficient to permit a reasonable juror to return a verdict in his or her favor on an essential 

element of a claim on which the plaintiff[] bear[s] the burden of proof.” Selevan v. N.Y. Thruway 

Auth., 711 F.3d 253, 256 (2d Cir. 2013) (alterations and internal quotation marks omitted).

“[C]onclusory statements or mere allegations [are] not sufficient to defeat a summary judgment 

motion.” Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002). 

Upon de novo review of the record on appeal and upon consideration of the arguments 

advanced by the parties, substantially for the reasons set forth in the District Court’s well-reasoned 

September 30, 2014 opinion, see De Oliveira v. Cairo-Durham Cent. Sch. Dist., No. 11-cv-393 

(NAM/RFT), 2014 WL 4900403 (N.D.N.Y. Sept. 30, 2014), we affirm insofar as the judgment of 

the District Court denied plaintiff’s motion for summary judgment, and also insofar as it granted 

defendants’ motions for summary judgment with respect to the FMLA interference and retaliation 

claims—except the failure-to-provide-notice interference claim—as well as the Title VII claim, PDA 

claim, Section 1983 claim, and Title IX claim; but we vacate the District Court’s grant of summary 

judgment to defendants with respect to plaintiff’s failure-to-provide-notice interference claim under 

the FMLA. 

With respect to plaintiff’s failure-to-provide-notice interference claim under the FMLA, we 

conclude that the District Court erred in granting defendants summary judgment. Under 29 C.F.R. § 

825.604, “established school board policies and practices . . . and collective bargaining agreements,” 

among other things, govern “[t]he determination of how an employee is to be restored to an 

equivalent position upon return from FMLA leave.” 29 C.F.R. § 825.604 (internal quotation marks 

omitted). Moreover, “[t]he established policies and collective bargaining agreements used as a basis 

for restoration must be in writing, must be made known to the employee prior to the taking of 

FMLA leave, and must clearly explain the employee’s restoration rights upon return from leave.” Id.

(internal quotation marks omitted). 

Here, under the District’s policies, practices, and agreements, plaintiff was to be restored to 

an equivalent position after FMLA leave but would not continue to accrue service credit during 

unpaid FMLA leave. Although this policy did not, as plaintiff argues, diminish plaintiff’s restoration 

rights upon her return—indeed, she retained the same tenure she held before taking unpaid FMLA 

leave, even if others increased their tenure during that time and thereby gained seniority—the policy 

nonetheless served as a “basis for restoration” insofar as plaintiff’s restoration rights included 

retention of the same tenured position she held before she took unpaid FMLA leave. The District 

therefore had a duty under § 825.604 to inform plaintiff in writing about the policy before she took 
 

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FMLA leave. Having failed to do so, it violated the notice requirements of §§ 825.300(c)(1)(vi) and 

825.604. 

As a result, after drawing all permissible factual inferences in favor of plaintiff, we conclude 

that there is a genuine issue of material fact as to whether the notice violation “constitute[d] an 

interference with, restraint, or denial of the exercise of [plaintiff’s] FMLA rights,” 29 C.F.R. § 

825.300(e)—for instance, whether the plaintiff would have taken unpaid FMLA leave had she been 

properly notified about the policy regarding restoration of tenure, see, e.g., App. 848. If the failure to 

provide notice is found to have constituted an interference, under § 825.300(e), the “employer may 

be liable for compensation and benefits lost by reason of the violation, for other actual monetary 

losses sustained as a direct result of the violation, and for appropriate equitable or other relief, 

including employment, reinstatement, promotion, or any other relief tailored to the harm suffered.” 

29 C.F.R. § 825.300(e). We therefore vacate the District Court’s judgment insofar as it granted 

defendants summary judgment on this claim, and we remand the cause to the District Court for 

further proceedings. 

CONCLUSION 

Having considered all of the parties’ remaining arguments, for the foregoing reasons, we 

AFFIRM the September 30, 2014 judgment of the District Court with respect to all of plaintiff’s 

claims other than her failure-to-provide-notice interference claim under the FMLA, VACATE the 

District Court’s summary judgment to defendants on that claim, and REMAND the cause to the 

District Court for further proceedings consistent with this order. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk