23-174-cv Kemp v. Regeneron Pharm., Inc.
United States Court of Appeals for the Second Circuit August Term, 2023
(Argued: January 25, 2024 Decided: September 9, 2024)
Docket No. 23-174-cv
_____________________________________
DENISE KEMP,
Plaintiff-Appellant,
v.
REGENERON PHARMACEUTICALS, INC.,
Defendant-Appellee. _____________________________________ Before:
LOHIER, LEE, and PÉREZ, Circuit Judges.
Plaintiff Denise Kemp, a manager at Renegeron Pharmaceuticals, Inc., spent the better part of June 2016 working remotely to take care of a child with a serious medical condition. Regeneron then prohibited her from working remotely for more than one day per week and required her to use intermittent leave under the Family and Medical Leave Act (FMLA) for any additional time away from the office. Kemp sued Regeneron, alleging interference with her rights under the FMLA, as well as discrimination, retaliation, and constructive discharge in violation of the New York State Human Rights Law (NYSHRL). Believing that the denial of FMLA benefits is an element of an unlawful interference claim, the United States District Court for the Southern District of New York (Román, J.) held that Kemp’s FMLA claim failed because Regeneron had not denied Kemp’s use of FMLA benefits. It determined that the claim was time-barred in any event. The District Court also held that Kemp’s NYSHRL claims failed on the merits. We hold that an employer can violate the FMLA merely by interfering with an employee’s use of FMLA benefits, even if the employer ultimately grants the benefits to which the employee is entitled. Because Kemp’s FMLA claim and NYSHRL claims for discrimination and retaliation were time-barred and her NYSHRL claim for constructive discharge fails on the merits, however, we AFFIRM.
STEPHEN BERGSTEIN, Bergstein & Ullrich, New Paltz, NY, for Appellant.
SHAWN MATTHEW CLARK, (Craig R. Benson, on the brief), Littler Mendelson, P.C., New York, NY, for Appellee.
Seema Nanda, Solicitor of Labor, Jennifer S. Brand, Associate Solicitor, Rachel Goldberg, Counsel for Appellate Litigation, Shelley E. Trautman, Attorney, U.S. Department of Labor, Washington, DC, for Amicus Curiae U.S. Department of Labor.
LOHIER, Circuit Judge:
The Family and Medical Leave Act (FMLA) entitles eligible employees to
take a total of 12 workweeks of leave from work during a one-year period to care
for a sick child, for example, 29 U.S.C. § 2612(a)(1), and makes it unlawful for an
employer “to interfere with, restrain, or deny the exercise of or the attempt to
exercise” an employee’s rights under the statute, id. § 2615(a)(1). The principal
question raised here is whether an employer who discourages but does not deny
an employee’s request for FMLA leave “interfere[s] with” the employee’s rights
2 in violation of the statute. The answer is yes. We nevertheless affirm the District
Court’s dismissal of Plaintiff Denise Kemp’s FMLA claim as time-barred because
her employer, Regeneron Pharmaceuticals, Inc., did not willfully violate the
statute so as to extend the two-year statute of limitations. We separately affirm
the dismissal of Kemp’s parallel state law claims under the New York State
Human Rights Law (NYSHRL).
BACKGROUND
Starting as an auditor in 2008, Kemp was employed by Regeneron for
nearly a decade until she retired on January 6, 2017. During her tenure, she was
promoted three times, in 2012, 2014, and 2016, with the latter two promotions
recommended by Teresa Rivenburgh, Kemp’s direct supervisor at all relevant
times. By 2016 Kemp had doubled her salary and risen to become a Senior
Manager in the Quality Assurance Department, supervising several employees.
Things changed in June 2016, when Kemp opted to work remotely in order
to care for a disabled daughter who was hospitalized with several serious
medical conditions. This was not the first time Kemp had been away from the
office for an extended period. She had previously taken leave for a number of
days in 2015 to care for her daughter, and from April 4 through May 15, 2016 she
3 took a short-term leave under the FMLA to have surgery. In both cases,
Regeneron approved the leave.
In June 2016 Kemp’s daughter underwent surgery, prompting Kemp to
work remotely from a hospital for 15 days while her daughter recovered. After
Kemp returned to the office, Rivenburgh and Rivenburgh’s supervisor, Patrice
Gilooly, voiced their concerns about the amount of time Kemp had been away.
“Rivenburgh told Kemp that [she] needed to be more visible in the office and
attend[] meetings in-person rather than by phone.” Joint App’x 444.
Rivenburgh, with Gilooly’s blessing, then limited Kemp to one day of remote
work per week, even though auditors in Kemp’s department regularly worked
from home and some non-managers worked remotely full-time. At about the
same time, however, Rivenburgh also encouraged Kemp to speak with someone
in Regeneron’s Human Resources Department about using paid time off or
intermittent FMLA leave rather than remote work for any additional days Kemp
spent away from the office.
On July 13, 2006, Kemp applied for intermittent FMLA leave to continue to
care for her daughter. Regeneron approved the leave, which was set to run from
August 9, 2016 through February 8, 2017. Around the same time, Kemp and
4 Rivenburgh began discussing Kemp’s possible transition to a role with a similar
status and title (senior manager) as her current position, but with fewer
managerial responsibilities. The parties dispute how these discussions began.
Kemp contends that Rivenburgh told her to consider a less demanding position,
while Gilooly and Rivenburgh testified that, to the contrary, Kemp “approached
[them] about wanting a change in her job.” Joint App’x 165.
Regeneron eventually developed a new senior manager position for Kemp
and, in October 2016, posted a job opening for the position that Kemp was set to
leave. At that point, Kemp did not consider the posting to be inappropriate
because she had agreed to move to the new position that had been developed for
her. Kemp formally accepted the new senior manager position in November
2016, with an expected start date in early 2017.
On December 19, 2016, however, less than a month after accepting the new
position, Kemp abruptly notified Regeneron that she planned to retire effective
January 6, 2017. According to Kemp, her decision to retire was spurred by
Regeneron’s refusal to let her work remotely, along with her belief that it was
“better to leave as a retirement, leave on good terms[,] than it [was] to quit”
because “[t]he pharmaceutical industry is a very small industry, and should [she]
5 apply for a position elsewhere [she] didn’t want to be blackballed.” Joint App’x
254–55. A Regeneron executive emailed Kemp to ask if there was anything he
could do to keep her at the company. On January 5, 2017, the day before Kemp
was scheduled to retire, the same executive offered to transfer her to a different
position. In keeping with her announcement the month before, however, Kemp
retired on January 6, 2017. A few months later, Kemp spoke with Regeneron
executives and employees about performing consulting work for the company;
the discussions went nowhere.
Kemp filed this action in New York state court on November 7, 2019,
claiming that Regeneron had violated her rights under both the FMLA and the
NYSHRL. Specifically, Kemp alleged that Regeneron had interfered with her
rights under the FMLA by prohibiting her from working remotely more than one
day per week. Kemp also claimed that Regeneron had violated the NYSHRL by
discriminating against her based on her association with a person with a
disability (her daughter), retaliating against her for engaging in protected
activity, and constructively discharging her.
Regeneron removed the case to federal court. Following discovery,
Regeneron moved for summary judgment, which the United States District
6 Court for the Southern District of New York (Román, J.) granted. 1 Because
Regeneron never denied Kemp’s request for FMLA leave but merely discouraged
her from taking it, the District Court explained, Kemp failed to prove that
Regeneron had violated her rights under the FMLA. The District Court also held
that Kemp’s FMLA claim was time-barred because she failed to show that
Regeneron had acted willfully so as to extend the statute’s limitations period
from two years to three. Finally, the District Court concluded that Kemp also
failed to adduce evidence in support of her state claims under the NYSHRL.
Kemp challenges these conclusions on appeal. Although we do not agree
entirely with the District Court’s reasoning, we AFFIRM.
DISCUSSION
We review the District Court’s grant of summary judgment de novo,
construing the evidence in Kemp’s favor. See Kaytor v. Elec. Boat Corp., 609 F.3d
537, 546 (2d Cir. 2010). A district court must “grant summary judgment if the
1 We have jurisdiction over Kemp’s appeal even though the District Court never entered judgment in a separate document as required by Federal Rule of Civil Procedure 58. Federal Rule of Appellate Procedure 4(a)(7)(B) provides that “[a] failure to set forth a judgment or order on a separate document when required by [Rule] 58(a) does not affect the validity of an appeal from that judgment or order” in a civil case. Fed. R. App. P. 4(a)(7)(B). In any event, under Rule 58 the judgment became final 150 days after the District Court’s order was entered on the docket. See Fed. R. Civ. P. 58(c)(2)(B). 7 movant shows 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).
Generally, “speculation by the party resisting the motion will not defeat
summary judgment.” Mhany Mgmt., Inc. v. County of Nassau, 819 F.3d 581, 621
(2d Cir. 2016) (quotation marks omitted).
I
Although she acknowledges that Regeneron never denied her formal
request for FMLA leave to care for her daughter, Kemp argues that Regeneron’s
attempts to discourage her from taking FMLA leave and the limitations the
company placed on her remote work unlawfully interfered with the exercise of
her rights under the FMLA. See 29 U.S.C. § 2615(a)(1).
We hold that an employer can violate the FMLA merely by interfering
with the employee’s benefits under the FMLA without actually denying the
employee’s request for those benefits. We thus agree with the United States
Department of Labor as amicus curiae in this case that “an employee is not
required to demonstrate an actual denial of benefits to establish a violation of
section 2615(a)(1) and that interference or restraint alone, which includes
discouragement, is enough to establish such a violation.” United States Amicus
8 Br. 20. This holding reflects the statute’s plain, unambiguous text, according to
which it is unlawful for an employer to “interfere with, restrain, or deny” FMLA
rights. 29 U.S.C. § 2615(a)(1) (emphases added).
The District Court erred to the extent it required Kemp to demonstrate that
Regeneron denied her requests for FMLA leave in order to prove her FMLA
claim. We very much appreciate that in reaching its decision, the District Court
relied on language in Graziadio v. Culinary Institute of America, 817 F.3d 415 (2d
Cir. 2016), in which we said that “to prevail on a claim of interference with her
FMLA rights, a plaintiff must establish,” among other things, “that she was
denied benefits to which she was entitled.” Id. at 424. But elsewhere in Graziadio,
we stated the full legal standard, which is that “[t]o succeed on a claim of FMLA
interference, a plaintiff must establish that the defendant denied or otherwise
interfered with a benefit to which she was entitled under the FMLA.” Id.
(emphasis added); see also id. (relying in part on this Court’s precedent
“describing FMLA interference claims as ‘questioning whether the employer in
some manner impeded the employee’s exercise of his or her right’” (emphasis
added) (cleaned up)). The plaintiff’s only claim in Graziadio was that her
employer had denied her eligible request for FMLA leave. Id. at 424–25. Because
9 the denial of benefits was the sole issue in the case, we had no occasion to
address a claim of unlawful interference with an employee’s use of FMLA
benefits. Graziadio therefore does not control where, as here, the plaintiff claims
that her employer interfered with but ultimately did not deny her use of FMLA
benefits.
We nevertheless affirm the District Court’s grant of summary judgment
because Kemp failed to adduce any admissible evidence that Regeneron acted
willfully when it interfered with her use of FMLA benefits. Kemp concedes that
her FMLA claims are timely only if they arise from willful FMLA violations. See
29 U.S.C. § 2617(c). An employer acts willfully under the FMLA when it knows
“or show[s] reckless disregard for the matter of whether its conduct was
prohibited by the” FMLA. Porter v. N.Y. Univ. Sch. of Law, 392 F.3d 530, 531 (2d
Cir. 2004) (quoting McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988)).
Kemp contends that a jury could reasonably find that Regeneron recklessly
disregarded its obligations under the FMLA when it intentionally limited her
remote work so that she would need to ration her FMLA leave. We see no
support in the record for the argument that Regeneron acted in disregard of its
10 obligations under the FMLA. To the contrary, Regeneron appears on this record
to have tried to comply with rather than flout its obligations under the FMLA.
Kemp’s other arguments in favor of reversing the District Court’s
dismissal of her FMLA claim fare no better. First, she maintains that Regeneron
intended to discourage her from caring for her sick daughter by limiting her
ability to work remotely and threatening to fire her if she took FMLA leave. But
in support of this claim, Kemp cites no admissible evidence of Regeneron’s intent
(her own subjective speculation and views about Regeneron’s intent are not
admissible). Second, Kemp contends that Regeneron substantially limited her
remote work days and punished her for working remotely. But this argument
misunderstands the nature of the benefits conferred by the FMLA. The FMLA
protects Kemp’s right to take paid (and thereafter uncompensated) leave for
specified reasons and for a specified number of weeks during a 12-month period.
It does not entitle employees to work remotely or make it unlawful for an
employer to punish an employee who works remotely. Remote work may be
another form of accommodation, but it is not “leave” within the meaning of the
statute. Because, on this record, Kemp failed to adduce evidence that Regeneron
willfully interfered with her use of FMLA benefits, rather than her ability to
11 work remotely, we affirm the District Court’s grant of summary judgment
dismissing Kemp’s FMLA claim.
II
Kemp also asserts three claims under the NYSHRL — associational
discrimination (based on her association with her disabled daughter), retaliation,
and constructive discharge. In granting summary judgment for Regeneron on
the first two claims (discrimination and retaliation), the District Court concluded
that Kemp failed to adduce evidence that she suffered an adverse employment
action.
Urging a contrary conclusion on appeal, Kemp argues that Regeneron’s
decision to curtail her ability to work remotely to no more than one day per
week, as well as her job reassignment, which would have stripped her of direct
reports, each constituted an adverse employment action under the NYSHRL.
We need not resolve this issue on appeal. Even assuming that Kemp
raised a genuine factual dispute that either of these employment actions
qualified as adverse, we conclude that her claims for discrimination and
retaliation, which are subject to a three-year statute of limitations, were untimely.
See Banks v. Gen. Motors, LLC, 81 F.4th 242, 260 (2d Cir. 2023) (“Under the
12 NYSHRL, claims must be filed within three years of the adverse employment
action.”).
As Kemp acknowledges, the statute of limitations under the NYSHRL
begins to run when an “employee receives a definite notice” that the employer
will undertake an adverse action. Smith v. United Parcel Serv. of Am., Inc., 65 F.3d
266, 268 (2d Cir. 1995) (quotation marks omitted). That date may precede the
“designated date on which employment terminated.” Shultz v. Congregation
Shearith Israel of City of N.Y., 867 F.3d 298, 305 (2d Cir. 2017) (quoting Chardon v.
Fernandez, 454 U.S. 6, 8 (1981)). Here, that is the date on which Regeneron
“established [its] official position — and made that position apparent to
[Kemp].” Economu v. Borg-Warner Corp., 829 F.2d 311, 315 (2d Cir. 1987) (quoting
Del. State Coll. v. Ricks, 449 U.S. 250, 262 (1980)).
Because Kemp filed her lawsuit on November 7, 2019, her discrimination
and retaliation claims under the NYSHRL are time-barred unless the relevant
date on which Regeneron made its official position apparent to Kemp was on or
after November 7, 2016. For the reasons described below, we conclude that these
claims are time-barred.
13 There is no dispute that Kemp was informed as early as July 2016 that she
could work remotely only one day a week. Kemp’s NYSHRL claim arising from
that employment action thus accrued in July 2016, and she was therefore
required to file that claim by July 2019, not November 2019.
Kemp was similarly informed in July 2016 that she “should look for
another position” because she “would be better suited for a position that did not
have as many responsibilities.” Joint App’x 451. By this point, then, Kemp was
aware that any new position she obtained would have fewer responsibilities. On
summary judgment, furthermore, Kemp conceded that she had accepted her new
position by October 2016, when Regeneron posted a job opening seeking to fill
the position she was leaving. Regeneron’s Rule 56.1 Statement asserts that
“Kemp did not consider the posting of her job to be inappropriate. She knew she
was moving to the new position in Hutchinson’s department.” Joint App’x 454
(emphasis added). Because Kemp did “not dispute th[at] fact[],” Joint App’x 454,
it is deemed admitted for summary judgment purposes, see Local Rule 56.1(c);
Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003). We accordingly
conclude that Regeneron “established its official position — and made that
14 position apparent to [Kemp]” by October, not November, 2016. Economu, 829
F.2d at 316 (quotation marks omitted).
On appeal, Kemp suggests that her claim accrued well after October 2016
because the precise details of her transfer had yet to be finalized. We disagree,
and find Miller v. International Telephone & Telegraph Corp., 755 F.2d 20 (2d Cir.
1985), instructive on this point. There we concluded that the plaintiff received
definite notice of employment termination when he was orally informed “that he
would, absent exceptional circumstances, be removed from the payroll,” even
though the personnel department had not yet officially approved the decision.
Id. at 24. The “mere possibility that the decision [to terminate employment]
might be reversed,” we said, is “not enough to label it advisory or ineffective for
time-bar purposes.” Id. So too here.
Kemp otherwise seeks to toll the statute of limitations by relying on New
York’s continuing wrong doctrine. But that “doctrine may only be predicated on
continuing unlawful acts and not on the continuing effects of earlier unlawful
conduct. The distinction is between a single wrong that has continuing effects
and a series of independent, distinct wrongs.” Henry v. Bank of Am., 48 N.Y.S.3d
67, 70 (1st Dep’t 2017) (quotation marks omitted). In other words, Kemp cannot
15 rely on the continuing wrong doctrine simply by claiming that she continued to
feel the effects of Regeneron’s allegedly discriminatory act after October 2016.
See id.; cf. Elmenayer v. ABF Freight Sys., Inc., 318 F.3d 130, 134–35 (2d Cir. 2003);
Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907–08 (2d Cir. 1997). We think that
Kemp’s reliance on the doctrine is also misplaced because we see no evidence of
a discrete discriminatory act or “wrong” that would give rise to a new claim of
an unlawful employment practice after the initial claim. See Henry, 48 N.Y.S.3d
at 70.
Finally, we turn to the District Court’s grant of summary judgment to
Regeneron on Kemp’s constructive discharge claim. Under New York law,
“[c]onstructive discharge occurs when the employer, rather than acting directly,
deliberately makes an employee’s working conditions so intolerable that the
employee is forced into an involuntary resignation.” Morris v. Schroeder Capital
Mgmt. Int’l, 7 N.Y.3d 616, 621 (2006) (quotation marks omitted); see Mascola v.
City Univ. of N.Y., 787 N.Y.S.2d 655, 656 (1st Dep’t 2005). Stated otherwise, the
employee must face working conditions that are “so difficult or unpleasant that a
reasonable person in the employee’s shoes would [feel] compelled to resign.”
16 Morris, 7 N.Y.3d at 622 (quotation marks omitted). The employer, moreover,
“must be deliberate and intentional” in creating such conditions. Id.
On this record, we agree with the District Court that Kemp failed to show
that her working conditions were so difficult that a reasonable person would
have been compelled to resign. Although Kemp points to her reassignment to a
position with fewer direct reports as evidence that she satisfied this demanding
standard, a reasonable person would not consider her transfer to be so
intolerable as to compel resignation. We note, for example, that Kemp “retained
the same salary and pay grade after [her] transfer.” Id.; see Petrosino v. Bell Atl.,
385 F.3d 210, 231 (2d Cir. 2004) (a reduction in some responsibilities would not
“support [an employee’s] constructive discharge claim”); Gaffney v. City of New
York, 955 N.Y.S.2d 318, 319 (1st Dep’t 2012). “The constructive discharge test is
not met if the employee is simply dissatisfied with a change in [their] job
assignments.” Morris, 7 N.Y.3d at 622.
For these reasons we affirm the District Court’s judgment insofar as it
granted summary judgment in favor of Regeneron and dismissed Kemp’s
NYSHRL claims.
17 CONCLUSION
We have considered Kemp’s remaining arguments and conclude that they
are without merit. For the foregoing reasons, the judgment of the District Court
is AFFIRMED.