Hendry v. Donahoe

931 F. Supp. 2d 441, 2013 WL 1137143, 2013 U.S. Dist. LEXIS 41050
CourtDistrict Court, E.D. New York
DecidedMarch 19, 2013
DocketNo. 10-CV-5917 WFK LB
StatusPublished
Cited by3 cases

This text of 931 F. Supp. 2d 441 (Hendry v. Donahoe) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hendry v. Donahoe, 931 F. Supp. 2d 441, 2013 WL 1137143, 2013 U.S. Dist. LEXIS 41050 (E.D.N.Y. 2013).

Opinion

MEMORANDUM AND ORDER

WILLIAM F. KUNTZ II, District Judge.

Rosemary Hendry (“Plaintiff’) brings this action against her former employer, the United States Postal Service (“USPS”) (“Defendant”), by its postmaster general Patrick Donahoe,1 alleging violations of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621, and the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12112.2 Compl. at 1. [444]*444Plaintiff asserts Defendant discriminated against her on the basis of her sex, age, and disability. Compl. at 3. Defendant moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons stated below, this Court grants Defendant’s motion in its entirety.

I. FACTUAL BACKGROUND

Defendant is a federal agency and an employer within the meaning of Title VII, ADEA, and the ADA. Plaintiff, an African-American female who was over the age of forty at the time of the events giving rise to this action, was a sales and service associate with Defendant and had worked for Defendant since 1988. Decl. of Rosemary Hendry (“Pk’s Deck”), at 13; Compl. at 3; Deck of Scott R. Landau (“Landau Deck”), Ex. 1 (Pk’s Dep. Tr.), at 48^19.

Plaintiffs History of Absences and Tardiness

Over the course of Plaintiff’s employment with Defendant, Plaintiff was repeatedly cited for absences and tardiness. From November 16, 2004 to December 13, 2007, Plaintiff received five separate disciplinary letters of warning or notices of suspension for failing to report for duty or being absent without leave (“AWOL”), as well as for being tardy. In each of these instances, Plaintiff missed at least eleven days of work, and sometimes as many as twenty-nine days of work, over a period of two or three months, and was up to 4.33 hours tardy for those shifts for which she appeared. Landau Deck, Exs. 3-6, 8, 10.

On February 28, 2008, after Plaintiff failed to report for duty or was AWOL on twenty-nine days over the course of two months, Defendant notified her that she would be removed from her position effective April 7, 2008. Landau Deck, Ex. 12. Plaintiff contested her removal, and, after negotiations, Plaintiff and Defendant signed a “Settlement Agreement — Last Chance Agreement” (the “2008 Last Chance Agreement”) which affirmed that Plaintiff’s removal was “just and proper” but nonetheless modified the removal to a 21-day suspension. Landau Deck, Ex. 13. The 2008 Last Chance Agreement offered Plaintiff “a final opportunity to demonstrate that she can adhere to the rules and regulations of the Postal Service,” and provided that if she violated any of the terms and conditions of the agreement she would be removed from service. Landau Deck, Ex. 13. On August 22, 2008, Plaintiff received a second notice of removal, effective September 26, 2008, after accruing nine days of absences over a six-week period. Landau Deck, Ex. 14. Again, the removal was modified to a 21-day suspension. Landau Deck, Ex. 15.

The “Last” Last Chance Agreement

On January 28, 2009, Defendant provided Plaintiff with a third notice of removal “for failure to follow instructions” and “failure to be regular in attendance,” citing eighteen days on which Plaintiff had failed to report for duty as scheduled over a three-month period. Pk’s Ex. Cl. However, on March 12, 2009, Plaintiff and Defendant signed a second “Last Chance Settlement Agreement” (the “2009 Last Chance Agreement”) which acknowledged that the notice of removal was “issued for just cause,” but nonetheless modified the removal to a 28-day suspension. Pk’s Ex. Cl. The 2009 Last Chance Agreement provided Plaintiff with “a firm choice between rehabilitation and removal.” Pk’s Ex. Cl. Plaintiff agreed “to abide by all postal rules, regulations and policies, including but not limited to adhering to her assigned schedule, being regular in attendance, following absence reporting procedures and obeying the instructions of her supervisor.” Pk’s Ex. Cl. The agreement speci[445]*445fied that if Plaintiff incurred more than three unscheduled absences within a 90 day period or was absent without official leave once during the period of the agreement, she would be immediately removed. Pl.’s Ex. Cl.

On March 2, 2009, Plaintiff requested leave under the Family and Medical Leave Act (“FMLA”) based on her cervical and lumbar dysfunction. PL’s Ex. C6; PL’s Decl., at ¶ 3. Plaintiff subsequently submitted Form WH-380-E, which was completed by a medical provider, indicating that her condition would likely last for the rest of her “lifetime” and that she would need FMLA leave for treatment about once or twice a month. Compl., Ex. Cll (PL’s Form WH-380-E). On April 3, 2009, Defendant approved Plaintiffs FMLA eligible status. PL’s Ex. C9. However, on August 18, 2009, after observing that several of Plaintiffs requests for FMLA leave between April and August 2009 “occurred in conjunction with a holiday and/or rest day,” the FMLA Coordinator provided notice to Plaintiff that the “information provided by your health care provider does not explain the medical necessity for leave in conjunction with your days off.” Pl/s Ex. C16. The FMLA Coordinator stated Plaintiffs pattern of absences had cast doubt on the employee’s stated reason for the absence and that Plaintiff was required to provide recertification by September 3, 2009, later extended to September 23, 2009. PL’s Exs. C16, C19. Plaintiff failed to meet the deadline to submit her recertification. PL’s Decl., at ¶ 25. As a result, Defendant found that Plaintiffs absences on September 11, 14, 21, 22, and 23 were not FMLA protected. PL’s Ex. C19.

On October 1, 2009, Plaintiff failed to report for duty at 2:30 p.m. because she had to receive treatment for her FMLA condition and procure documentation for her recertification. PL’s Decl., at ¶ 30. Plaintiff was attempting to obtain copies of her x-rays in order to convince her medical provider to recertify her condition. PL’s Dep. Tr. at 402-13. Plaintiff called Defendant’s FMLA office to explain that she was having difficulty obtaining the recertification, and asked if they would call her supervisor to advise him she would be late that day. Id. at 413-14. Plaintiff did not want to call her supervisor because she “wasn’t going to go through it with that man.” Id. at 414. Plaintiff “was willing to work” but “was just late” because she was having trouble getting her recertification completed. Id. at 414. When the FMLA office indicated that they could not contact her supervisor, Plaintiff went to the FMLA office at her work “to show that [she] was willing to work that day.” Id. at 415-18. Plaintiff saw her supervisor in the building but did not speak with him or tell him that she would not be working that day. Id. at 421-22. Plaintiff ultimately left and took the train home. Id. at 423.

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Cite This Page — Counsel Stack

Bluebook (online)
931 F. Supp. 2d 441, 2013 WL 1137143, 2013 U.S. Dist. LEXIS 41050, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hendry-v-donahoe-nyed-2013.