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 no t have precedential effect. Cita tion to a summary order filed on or after January 1, 2007, is permitted a nd 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 mu st cite either the Fe deral Appendix or an electronic database (with the notation “summa ry 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 Cour t 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 23 rd day of February, two thousand sixteen.

PRESENT: J OSÉ A. C ABRANES , R OSEMARY S. P OOLER , D ENNY C HIN , Circuit Judges

.

D ONNA S CARPINATI DE O LIVEIRA , Plaintiff-Appellant

,

v. No. 14-3710-cv

C AIRO -D URHAM C ENTRAL S CHOOL D ISTRICT , C AIRO -D URHAM B OARD OF E DUCATION , C AIRO -D URHAM T EACHERS ’ A SSOCIATION , S USAN K

USMINSKY , Individually and as President of the Board of Education as aider and abettor, J USTIN K ARKER , Individually and as Presid ent of the Cairo-Durham Teachers’ Association as aider and abettor, S ALLY S HARKEY , 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.2 FOR PLAINTIFF-APPELLANT: P HILLIP G. S TECK (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: R YAN P. M ULLAHY (Patrick J. Fitzgerald III, on the brief ), Girvin & Ferlazzo, P.C., Albany, NY.

FOR DEFENDANTS-APPELLEES CAIRO-DURHAM TEACHERS’ ASSOCIATION AND JUSTIN KARKER: A NTHONY J. B ROCK (Richard E. Casagrande, on the brief ), Office of General Counsel, New York State United Teachers, Latham, NY.

Appeal from a judgment of the United Sta tes District Court for the Northern District of New York (Norman A. Mordue, Judge ).

UPON DUE CONSIDERATION WHEREO F, 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 Oliv eira, an elementary-school teacher formerly employed by defendant Cairo-Durham Central Sch ool 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 de fendants Cairo-Durham Central School District (the “District”) and its superintendent Sally Shark ey, Cairo-Durham Board of Education and its president Susan Kusminsky, and Cairo-Durham Te achers’ Association and its president Justin Karker, arising out of plaintiff’s dismissal from the Di strict, 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 Discriminati on 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’ fam iliarity with the underlying facts, the procedural history of the case, and the issues on appeal.3 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) (i nternal quotation marks omitted). “A defendant is entitled to summary judgment wher e the plaintiff has failed to come forth with evidence sufficient to permit a reasonable juror to r eturn a verdict in his or her favor on an essential element of a claim on which the plaint iff[] bear[s] the burden of proof.” Selevan v. N.Y. Thruway
Auth. , 711 F.3d 253, 256 (2d Cir. 2013) (alterations and in ternal quotation marks omitted). “[C]onclusory statements or mere allegations [a re] 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 re asons 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 su mmary 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 interfere nce claim—as well as the Title VII claim, PDA claim, Section 1983 claim, and Title IX claim; bu t 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-provid e-notice interference claim under the FMLA, we conclude that the District Court erred in granti ng defendants summary judgment. Under 29 C.F.R. § 825.604, “established school board policies and practi ces . . . 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 leav e.” 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 ma de 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 pl aintiff argues, diminish plaintiff’s restoration rights upon her return—indeed, she retained the sa me 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” in sofar as plaintiff’s restoration rights included retention of the same tenured position she held be fore she took unpaid FMLA leave. The District therefore had a duty under § 825.604 to inform plaint iff in writing about the policy before she took4 FMLA leave. Having failed to do so, it viola ted 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 exer cise of [plaintiff’s] FMLA rights,” 29 C.F.R. § 825.300(e)—for instance, whether the plaintiff woul d 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 re ason 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 ther efore 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’ rema ining 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