     15-2683
     Yetman v. Capital Dist. Transp. Auth.

                         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.

 1        At a stated term of the United States Court of Appeals for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   25th day of October, two thousand sixteen.
 5
 6   PRESENT: AMALYA L. KEARSE,
 7            DENNIS JACOBS,
 8            RAYMOND J. LOHIER, JR.,
 9                          Circuit Judges.
10
11   - - - - - - - - - - - - - - - - - - - -X
12   Margaret P. Yetman,
13            Plaintiff-Appellant,
14
15                -v.-                                           15-2683
16
17   Capital District Transportation
18   Authority, a/k/a Capital District
19   Transit Authority, David A. Palmer,
20            Defendants-Appellees.
21
22   - - - - - - - - - - - - - - - - - - - -X
23
24   FOR APPELLANT:                          RONALD G. DUNN (Daniel A. Jacobs,
25                                           on the brief), Gleason, Dunn, Walsh
26                                           & O’Shea; Albany, NY.
27


                                                1
 1   FOR APPELLEES:               CLEMENTE J. PARENTE, Jackson Lewis
 2                                P.C.; Albany, NY. (Kristi Rich
 3                                Winters, on the brief.)
 4
 5        Appeal from a judgment of the United States District Court
 6   for the Northern District of New York (Suddaby, J.).
 7
 8        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
 9   DECREED that the judgment of the district court be AFFIRMED.
10
11        Plaintiff-appellant Margaret P. Yetman appeals from the
12   judgment of the United States District Court for the Northern
13   District of New York (Suddaby, J.) granting summary judgment
14   to defendants--Yetman’s former employer, the Capital District
15   Transportation Authority (“CDTA”), and her supervisor, David
16   A. Palmer--and dismissing her complaint, which alleged (1)
17   interference and retaliation in violation of the Family and
18   Medical Leave Act (“FMLA”) and (2) disability discrimination
19   in violation of the Americans with Disabilities Act (“ADA”) and
20   the New York State Human Rights Law (“NYSHRL”).
21
22        We review de novo the district court’s grant of summary
23   judgment, drawing all inferences in favor of the non-moving
24   party. Young v. Cty. of Fulton, 160 F.3d 899, 901-02 (2d Cir.
25   1998). We assume the parties’ familiarity with the underlying
26   facts, the procedural history, and the issues presented for
27   review.
28
29        Yetman worked part-time for the CDTA as a bus driver from
30   June to November 2000 and was rehired full-time in November 2004.
31   It is undisputed that she had intermittent attendance problems,
32   and was once fired for misconduct and then reinstated a month
33   later. On numerous occasions she sought FMLA leave, sometimes
34   for personal medical conditions and sometimes for the medical
35   conditions of her children, sometimes short-term and sometimes
36   for months at a time. Leave was always granted. Although she
37   asserts that certain of her absences or late arrivals for work
38   were not considered FMLA leave, she has not genuinely disputed
39   that all of her timely, express requests for FMLA leave were
40   granted and so designated.
41
42

                                    2
 1        On June 26, 2010, Yetman missed work without claim of
 2   entitlement to FMLA leave. She initially disputed whether she
 3   had called the dispatcher in time to report the absence, but
 4   the CDTA’s phone records contradicted that claim. She was given
 5   the opportunity to provide her own printed telephone record
 6   indicating the time she placed the call, but she did not provide
 7   it. Instead, she resigned effective July 6, 2010, in a letter
 8   indicating that “[t]he constant stress of me possibly losing
 9   my job because of an autistic child and other family and legal
10   isues, has been overwhelming.” J.A. 163. She unsuccessfully
11   applied to be rehired in December 2010, and several times again
12   thereafter.
13
14        Yetman’s federal complaint, filed November 9, 2012,
15   generally makes: (1) allegations relating to her period of
16   employment, chiefly interference with FMLA rights and
17   constructive discharge in violation of the FMLA; and (2)
18   allegations of discrimination relating to the CDTA’s decision
19   not to rehire her.
20
21        1.   All of Yetman’s claims relating to the period of her
22   employment with the CDTA are time-barred. Claims under the FMLA
23   are subject to a two-year statute of limitations unless the
24   violations are willful, in which case the limitations period
25   is three years. 29 U.S.C. §§ 2617(c)(l)-(2). Yetman filed her
26   complaint more than two years after she resigned (or, as she
27   alleges, was constructively discharged), but within three years,
28   so in order for any FMLA claims relating to her employment to
29   be timely, she must establish willful violation. She has failed
30   to do so. She alleges that various absences that should have
31   been classified as FMLA leave were not so classified, but it
32   is undisputed that (1) she took significant FMLA leave, even
33   for months at a time, which requests were acknowledged as such
34   and always granted; and (2) she did not request FMLA leave for
35   the particular absence that immediately preceded her
36   resignation, and that may have precipitated it. Construing the
37   evidence in the light most favorable to Yetman, she has at worst
38   alleged negligence in FMLA classification, but not willful
39   violation. The two-year limitations period therefore applies,
40   and her FMLA claims stemming from her employment are time-barred.
41
42

                                    3
 1        2.   Yetman reapplied twice within a year after having
 2   resigned, and she argues that the CDTA’s decision not to rehire
 3   her constituted disability discrimination or retaliation for
 4   her earlier exercise of FMLA rights. Disability discrimination
 5   claims and FMLA retaliation claims are both subject to the
 6   familiar burden-shifting framework of McDonnell Douglas Corp.
 7   v. Green, 411 U.S. 792 (1973). See Potenza v. City of New York,
 8   365 F.3d 165, 168 (2d Cir. 2004) (applying the framework to FMLA
 9   claims); Davis v. N.Y.C. Dep’t of Educ., 804 F.3d 231, 235 (2d
10   Cir. 2015) (applying the framework to ADA claims); Forrest v.
11   Jewish Guild for the Blind, 3 N.Y.3d 295, 305 (2004) (applying
12   the framework to NYSHRL claims). Therefore, to survive summary
13   judgment on any failure-to-rehire claim that Yetman pleads, she
14   must first establish a prima facie case of discrimination or
15   retaliation; and that requires, inter alia, that she proffer
16   evidence that the decision not to rehire her was made under
17   circumstances giving rise to an inference of discriminatory or
18   retaliatory intent. She has failed to do so.
19
20        Yetman relies principally on testimony that the decision
21   not to rehire was made on the basis of her “overall work record,”
22   including her history of attendance issues, and on evidence that
23   the CDTA and Palmer were aware of her having a history of
24   disability. Mere knowledge, however, does not give rise to an
25   inference of discrimination or retaliation; and considering her
26   “overall work record” does not suggest that defendants
27   considered her to be disabled or improperly considered her prior
28   FMLA leave (especially in light of the undisputed fact that she
29   had attendance issues unrelated to FMLA leave and earlier
30   discipline for undisputed misconduct).
31
32        Moreover, even if she could establish a prima facie case,
33   she has proffered insufficient evidence to show that the
34   non-discriminatory reasons proffered by the defendants for not
35   hiring her were pretextual.
36
37        Accordingly, and finding no merit in plaintiff’s other
38   arguments, we hereby AFFIRM the judgment of the district court.

39                                FOR THE COURT:
40                                CATHERINE O’HAGAN WOLFE, CLERK


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