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Lopez v. Chubb & Son

United States District Court, D. Connecticut

September 4, 2018

JACQUELINE LOPEZ, Plaintiff,
v.
CHUBB & SON, et al. Defendants.

          RULING ON MOTIONS FOR SUMMARY JUDGMENT

          MICHAEL P. SHEA, U.S.D.J.

         I. Introduction

         Jacqueline Lopez brings this suit against Chubb & Son (“Chubb”), and Kelly Services, Inc. (“Kelly Services”) for discrimination and retaliation in violation of the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. (“FMLA”). She claims that Chubb unlawfully terminated her employment after she exercised her rights under the FMLA, and that Kelly Services then refused to place her with another agency. She brings claims against both defendants under the FMLA for interference with the exercise of her rights and discrimination/retaliation. (See ECF No. 1 (“Complaint”) at 5-7.) Now before me are the defendants' motions for summary judgment. (ECF No. 52; ECF No. 56.) For the reasons that follow, these motions are granted.

         II. Background

         A. Factual Background

         The following facts, which are taken from the parties' Local Rule 56(a) Statements and the exhibits, are undisputed unless otherwise indicated.[1] Ms. Lopez “was employed by Kelly Services . . . and assigned to work at Chubb's Simsbury facility as a[n] analyst in the Deductible Tracking Unit (“DTU analyst”) from 2011 until March 2015.” (ECF No. 58, Kelly Services' Local Rule 56(a)1 Statement (“Kelly's L.R. 56(a)1 Stmt.”) at ¶ 1; (ECF No. 72-3 (“Pl.'s Kelly Local Rule 56(a)2 Stmt.”) at ¶ 1.) “During all times relevant to [Ms. Lopez's] Complaint, Chubb relied on [Kelly Services] to provide staffing to carry out various responsibilities on an as-needed basis to meet Chubb's fluctuating business needs.” (ECF No. 59, Chubb's Local Rule 56(a)1 Statement (“Chubb's L.R. 56(a)1 Stmt.”) at ¶ 2); ECF No. 72-2, Plaintiff's Local Rule 56(a)2 Statement (“Pl.'s Chubb L.R. 56(a)2 Stmt.”) at ¶ 2.) Although “Chubb could decide to end an assignment at any time, such a decision would not affect the individual's employment with Kelly Services since the individual could be reassigned by Kelly to another client.” (Chubb's L.R. 56(a)1 Stmt. at ¶ 10; Pl.'s Chubb L.R. 56(a)2 Stmt. at ¶ 10.)

         Ms. Lopez's “assignment as a DTU analyst began in August 2011, with the expectation that [she] would work forty hours each week.” (Chubb's L.R. 56(a)1 Stmt. at ¶ 25; Pl.'s Chubb L.R. 56(a)2 Stmt. at ¶ 25.) “Elizabeth Anderton . . . was a DTU supervisor for Chubb” who “supervised [Ms. Lopez] from August 2012 until [Ms. Lopez's] assignment ended in March 2015 . . . .” (Kelly's L.R. 56(a)1 Stmt. at ¶¶ 2, 4; Pl.'s Kelly L.R. 56(a)2 Stmt. at ¶¶ 2, 4.) “Nicole Rankin . . . is employed by Chubb as a Claims Operation Manager and was previously the DTU Senior Supervisor supervising Anderton and the other DTU supervisors.” (Kelly's L.R. 56(a)1 Stmt. at ¶ 5; Pl.'s Chubb L.R. 56(a)2 Stmt. at ¶ 5.) “Kerry Bailey was employed by Kelly Services as the representative involved with the Chubb office in Simsbury Connecticut.” (Kelly's L.R. 56(a)1 Stmt. at ¶ 14; Pl.'s Kelly L.R. 56(a)2 Stmt. at ¶ 14.) “Once trained, [Ms. Lopez] was responsible for tracking the status of insurance deductible amounts owed by Chubb's insureds for pending claims.” (Chubb's L.R. 56(a)1 Stmt. at ¶ 27; Pl.'s Chubb L.R. 56(a)2 Stmt. at ¶ 27.) “A key function of [Ms. Lopez's] position included providing accurate information on the status of claims and the remaining deductibles owed by the insureds and sending letters to Chubb's insureds about the deductible status.” (Chubb's L.R. 56(a)1 Stmt. at ¶ 30; Pl.'s Chubb L.R. 56(a)2 Stmt. at ¶ 30.)

         In September of 2013, Ms. Lopez requested and received from Kelly Services “intermittent FMLA leave” from work due to “an evolving medical issue relating to her daughter.” (Chubb's L.R. 56(a)1 Stmt. at ¶¶ 34-38; Pl.'s Chubb L.R. 56(a)2 Stmt. at ¶¶ 34-38.) “Less than a week after [Ms. Lopez] submitted the necessary paperwork to request intermittent leave to care for her daughter, she also submitted additional documentation to request intermittent FMLA leave to care for her grandfather”; Kelly Services again approved Ms. Lopez's request. (Chubb's L.R. 56(a)1 Stmt. at ¶¶ 42-45; Pl.'s Chubb L.R. 56(a)2 Stmt. at ¶¶ 42-45.) Ms. Lopez used these leaves of absence for the next fifteen months without incident; “[e]ach and every time [Ms. Lopez] sought a leave of absence related either to her daughter or her grandfather, the request was granted.” (Chubb's L.R. 56(a)1 Stmt. at ¶¶ 45-47; Pl.'s Chubb L.R. 56(a)2 Stmt. at ¶¶ 45-47.) “On December 16, 2014, [Ms. Lopez's] grandfather passed away; although Kelly's standard bereavement leave is three days, Nicole Rankin encouraged her to take additional time off and she was out of work for more than two weeks.” (Chubb's L.R. 56(a)1 Stmt. at ¶ 49; Pl.'s Chubb L.R. 56(a)2 Stmt. at ¶ 49.) “To the extent that [Ms. Lopez] still required periodic FMLA leave to care for her daughter, she never raised this issue with anyone at Chubb after she returned to work in early January of 2015.” (Chubb's L.R. 56(a)1 Stmt. at ¶ 52; Pl.'s Chubb L.R. 56(a)2 Stmt. at ¶ 52.) “No one at Chubb ever said anything to indicate that her decision to exercise her rights under the FMLA was problematic.” (Chubb's L.R. 56(a)1 Stmt. at ¶ 53; Pl.'s Chubb L.R. 56(a)2 Stmt. at ¶ 53.)

         “Throughout her assignment at Chubb, [Ms. Lopez] was never considered by Chubb to be a top performer.” (Chubb's L.R. 56(a)1 Stmt. at ¶ 54; Pl.'s Chubb L.R. 56(a)2 Stmt. at ¶ 54.) Ms. Lopez received “performance counseling at various points in her assignment” to improve her job performance, including during the period before she requested FMLA leave in 2013; at least initially, she was “able to improve her performance to acceptable levels, including the minimal level required to receive a raise.” (Chubb's L.R. 56(a)1 Stmt. at ¶¶ 56-57; Pl.'s Chubb L.R. 56(a)2 Stmt. at ¶¶ 56-57.) Ms. Lopez received such counseling from Kelly Services as well in 2014. (Chubb's L.R. 56(a)1 Stmt. at ¶ 58; Pl.'s Chubb L.R. 56(a)2 Stmt. at ¶¶ 58.) Ms. Lopez “estimates that she was counseled between five and twelve times in 2014.” (Chubb's L.R. 56(a)1 Stmt. at ¶ 60; Pl.'s Chubb L.R. 56(a)2 Stmt. at ¶ 60.)

         “In early 2015, Ms. Anderton began to receive complaints from customers and claims adjusters concerning [Ms. Lopez's] work product” concerning “letters sent with incorrect information, ” and deductible tracking sheets that had not been updated correctly. (Chubb's L.R. 56(a)1 Stmt. at ¶¶ 61-62; Pl.'s Chubb L.R. 56(a)2 Stmt. at ¶¶ 61-62.) “After receiving these complaints, Ms. Anderton conducted a QA audit of [Ms. Lopez's] work to see whether the complaints were valid” on March 18, 2015, focusing “on the work that [Ms. Lopez] had performed in the preceding months for the claims examiners who had recently complained about her work product.” (Chubb's L.R. 56(a)1 Stmt. at ¶ 63; Pl.'s Chubb L.R. 56(a)2 Stmt. at ¶ 63.) “During this audit, Ms. Anderton observed that approximately 85% to 90% of [Ms. Lopez's] work she reviewed contained errors.” (Chubb's L.R. 56(a)1 Stmt. at ¶ 68; Pl.'s Chubb L.R. 56(a)2 Stmt. at ¶ 68.) Ms. Lopez “does not dispute that these errors were made or that she had been repeatedly counseled about these same types of errors in the past.” (Chubb's L.R. 56(a)1 Stmt. at ¶ 70; Pl.'s Chubb 56(a)2 L.R. Stmt. at ¶ 70.) “Ms. Anderton had noted similar errors during prior QA audits and had previously set aside time to offer [Ms. Lopez] additional training and feedback on these issues.” (Chubb's L.R. 56(a)1 Stmt. at ¶ 71; Pl.'s Chubb L.R. Stmt. at ¶ 71.)

         The parties' accounts diverge at this point. The defendants contend that the volume of Ms. Lopez's mistakes was higher than her peers. (See Chubb's L.R. 56(a)1 Stmt. at ¶ 76; Kelly's L.R. 56(a)1 Stmt. at ¶ 38.) Ms. Lopez denies this contention generally and avers that other DTU analysts in the office made similar mistakes and received additional training rather than termination, although she does not specifically dispute Chubb's assertions that Ms. Lopez's “situation differed [from that of her peers] due to the sheer volume of mistakes she made” and that “Plaintiff cannot identify any employee who made the same mistakes [Ms. Lopez] did with the same high level frequency.” (See Pl.'s Chubb L.R. 56(a)1 Stmt. at ¶¶ 75-76; Pl.'s Kelly L.R. 56(a)2 Stmt. at ¶¶ 75-76.) Chubb also contends that Ms. Lopez “refused to accept accountability [for her errors] and reacted [to Ms. Anderton's pointing them out to her] by giving Ms. Anderton a shrug and insisting it was not a big deal.” (Chubb's L.R. 56(a)1 Stmt. at ¶ 73.) Ms. Lopez denies this contention and contends instead that she attempted to reach out to Ms. Anderton via instant messaging; she alleges that Ms. Anderton did not get back to her prior to the termination of her tenure with Chubb. (See Pl.'s Chubb L.R. 56(a)1 Stmt. at ¶ 73.) Chubb made the decision to end Ms. Lopez's assignment shortly after the QA audit. (See Chubb's L.R. 56(a)1 Stmt. at ¶ 77; Pl.'s Chubb L.R. 56(a)2 Stmt. at ¶ 77.)[2]

         “After Kelly was notified of Chubb's decision, a representative of Kelly contacted [Ms. Lopez] to let her know that her assignment had ended . . ., but that Kelly would place her into a different position with a different company.” (Chubb's L.R. 56(a)1 Stmt. at ¶ 81; Pl.'s Chubb L.R. 56(a)2 Stmt. at ¶ 81.) Ms. Lopez “estimates she called [Kelly] maybe five times over a three month period and then . . . stopped.” (Kelly's L.R. 56(a)1 Stmt. at ¶ 71; Pl.'s Kelly L.R. 56(a)2 Stmt. at ¶ 71.) She claims that each time she called, a representative from Kelly Services informed her that they had no job postings available for her. (Pl.'s Kelly L.R. 56(a)2 Stmt. at ¶¶ 58-59.) Kelly Services claims that “[Ms. Lopez] remains an employee of Kelly Services today but simply has failed to contact Kelly to make the necessary arrangements to secure a new assignment.” (Chubb's L.R. 56(a)2 Stmt. at ¶ 84.)

         B. Ms. Lopez's Complaint

         Ms. Lopez alleges in her complaint that Chubb terminated her assignment due to her exercise of her rights under the FMLA. (See Complaint at ¶¶ 37-39.) She avers that Chubb's excuse for terminating her “was a pretext.” (Id. at ¶ 38.) She also alleges that “[a]fter being terminated, [she] sought other job placements through defendant Kelly Services, ” but that “Kelly Services did not place [her] with another employer.” (Id. at ¶¶ 41-42.) Kelly Services failed to place her, Ms. Lopez alleges, despite the fact that “[p]lacement opportunities . . . were available that [she] was qualified for.” (Id. at ¶ 43.) Based upon these allegations, Ms. Lopez brings four claims-a claim of “interference with the exercise of rights under the FMLA” against Chubb and Kelly, respectively, and a claim of “FMLA discrimination/retaliation” against each defendant. (Id. at ¶¶ 46-63.) In particular, she contends that Chubb violated her rights under the FMLA by terminating her employment and treating her differently from other similarly situated employees. (Id. at ¶¶ 48, 52.) She alleges that Kelly violated her rights under the FMLA by terminating her employment, treating her differently from other similarly situated employees, and failing to place her in another job. (Id. at ¶¶ 57, 61.)

         III. Standard of Review

         Summary judgment is appropriate only when the moving party “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). “In making that determination, a court must view the evidence in the light most favorable to the opposing party.” Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (internal quotation marks omitted). “A fact is material if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007) (internal quotation marks omitted). The moving party bears the burden “of showing that no genuine factual dispute exists . . ., and in assessing the record to determine whether there is a genuine issue as to any material fact, the court is required to resolve all ambiguities and draw all factual inferences” in favor of the non-moving party. Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995).

         IV. Discussion

         “The Second Circuit has recognized two types of FMLA claims-‘interference' claims and ‘retaliation' claims.” Smith v. Westchester Cty.,769 F.Supp.2d 448, 463 (S.D.N.Y. 2011) (quoting Potenza v. City of New York,365 F.3d 165, 168 (2d Cir. 2004)); see also 29 U.S.C. § 2615(a)(1) (“It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.”); 29 C.F.R. § 825.220(c) (“The [FMLA's] prohibition against interference prohibits an employer from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise FMLA rights.”). The Second Circuit has held that both claims arise under the same statutory prohibition against “interference.” Woods v. START ...


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