16-3098-cv
Elliot-Leach v. N.Y.C. Dep’t of Educ.

                     UNITED STATES COURT OF APPEALS
                         FOR THE SECOND CIRCUIT

                                SUMMARY ORDER
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         At a stated term of the United States Court 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 15th day of September, two thousand seventeen.

    PRESENT: DENNIS JACOBS,
             JOSÉ A. CABRANES,
             RICHARD C. WESLEY,
                           Circuit Judges.

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    JANET ELLIOT-LEACH,
             Plaintiff-Appellant,

                 -v.-                                               16-3098-cv

    NEW YORK CITY DEPARTMENT OF EDUCATION,
             Defendant-Appellee,

    MICHELLE HERBOWY; DOES 1-10,
             Defendants.

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    FOR APPELLANT:                        Nkereuwem Umoh, Umoh Law Firm,
                                          PLLC, Brooklyn, NY.


                                             1
FOR APPELLEE:              Pamela Seider Dolgow (Tahirih M.
                           Sadrieh on the brief), for
                           Zachary W. Carter, Corporation
                           Counsel of the City of New York,
                           New York, NY.

     Appeal from a judgment of the United States District
Court for the Eastern District of New York (Glasser, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that the judgment of the district court is
AFFIRMED.

     Janet Elliot-Leach sued her former employer, the New
York City Department of Education (“the Department”),
alleging discrimination based on race, sex, age, disability,
and national origin, as well as interference with her rights
under the Family and Medical Leave Act (“FMLA”), and
retaliation for her request to take such leave.1 The United
States District Court for the Eastern District of New York
(Glasser, J.) dismissed her amended complaint on motion,
determining (1) that the discrimination claims are barred
because Elliot-Leach failed to exhaust administrative
procedures, (2) that the FMLA interference claim fails
because the amended complaint does not demonstrate that
Elliot-Leach was entitled to the relevant benefits, and (3)
that the FMLA retaliation claim fails for lack of
retaliatory intent. The district court also denied Elliot-
Leach’s request to further amend the complaint as futile.
We review those determinations de novo. See Ruotolo v. City
of New York, 514 F.3d 184, 188 (2d Cir. 2008); Panther
Partners Inc. v. Ikanos Commnc’ns, Inc., 681 F.3d 114, 119
(2d Cir. 2012). We assume the parties’ familiarity with the
underlying facts, the procedural history, and the issues
presented for review.




    1
      Elliot-Leach also brought claims pursuant to 42
U.S.C. § 1983, 42 U.S.C. § 1985, the Fair Labor Standards
Act, and the New York State Labor Law, but has not addressed
them on appeal. Those claims are deemed abandoned.
Similarly, Elliot-Leach argues in a single sentence that
claims against an individual defendant should not have been
dismissed; that issue is also deemed abandoned for
insufficient argument.
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     1. Elliot-Leach brought her discrimination claims
pursuant to Title VII of the Civil Rights Act of 1964
(“Title VII”), the Age Discrimination in Employment Act
(“ADEA”), and the Americans with Disabilities Act (“ADA”).
Each of those statutes requires a plaintiff to file a timely
charge with the Equal Employment Opportunity Commission
(“EEOC”) before bringing suit in federal court. See
McPherson v. N.Y.C. Dep’t of Educ., 457 F.3d 211, 213 (2d
Cir. 2006) (“Under Title VII and the ADEA, a plaintiff can
sue in federal court only after filing timely charges with
the EEOC.”); McInerney v. Rensselaer Polytechnic Inst., 505
F.3d 135, 138 (2d Cir. 2007) (same with ADA).

     Neither the first amended complaint or the second
alleges that Elliot-Leach filed a charge with the EEOC.
Elliott-Leach’s memorandum in opposition to the Department’s
motion to dismiss states that she filed an EEOC charge and
received a charge number; that assertion is insufficient.
The EEOC informed the Department that “EEOC numbers are
assigned to both mere inquiries as well as actual charges,
. . . so the existence of an EEOC number does not always
indicate the existence of a charge. Many inquiries, even
when assigned an EEOC number, never ripen into charges.” J.
App’x at 297. The EEOC further reported that “there is no
charge filed by Ms. Elliot-Leach against the City of New
York or its agencies, no charge file exists, and no ‘right
to sue’ has been or will be issued based on any past,
current, or pending matter brought by Ms. Elliot-Leach
against the City of New York or its agencies.” Id. In
response to a separate inquiry by the Department, the EEOC
stated “we have no record of a complaint actually filed with
the Equal Employment Opportunity Commission (EEOC) for
[Elliot-Leach’s] matter.” Id. at 98.

     Accordingly, we affirm the district court’s dismissal
of Elliot-Leach’s Title VII, ADEA, and ADA claims for
failure to exhaust administrative procedures.

     2. Elliot-Leach asserts that the Department interfered
with her right to take FMLA leave. “[T]o 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 under the FMLA.”
Graziadio v. Culinary Inst. of Am., 817 F.3d 415, 424 (2d
Cir. 2016).



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     The only allegations in the first amended complaint
that could ground an FMLA interference claim are that
Elliot-Leach’s supervisor “knew of Plaintiff’s [cancer
diagnosis] and the reasons for her absen[ces] and did not
sign an approval of full Family and Medical Leave Act (FMLA)
[leave] when requested by Plaintiff.” J. App’x at 53
(emphasis added). But the complaint does not allege facts
demonstrating that Elliot-Leach was eligible for full FMLA
leave at the time she requested it. The cancer diagnosis
does not, by itself, indicate that she was entitled to full
FMLA leave. “An employer may require that an employee’s
leave . . . due to the employee’s own serious health
condition . . . be supported by a certification issued by
the health care provider of the employee.” 29 C.F.R.
§ 825.305(a) (emphasis added). Elliot-Leach stated that her
doctor initially declined to certify that she was entitled
to full FMLA leave. Consequently, Elliot-Leach’s first
amended complaint does not allege that she was denied FMLA
benefits to which she was entitled.

     Elliot-Leach’s proposed second amended complaint does
not assist her. Although that complaint further alleges
that Elliot-Leach’s supervisor “refused to sign an approval
of full [FMLA leave]” “on several occasions between November
13, 2013 and March 23, 2014,” J. App’x at 208, those
allegations do not cure the failure to allege entitlement to
full FMLA leave at the time of the requests. Elliot-Leach’s
doctor had refused to certify her eligibility for full FMLA
leave in November 2013, and Elliot-Leach alleges no facts
indicating that she became eligible prior to the denial of
her requests for full FMLA leave. Consequently, we affirm
the district court’s dismissal of Elliot-Leach’s FMLA
interference claim and its denial of her motion to amend.

     3. Elliot-Leach asserts that the Department retaliated
against her for requesting FMLA leave. “To establish a
prima facie case of FMLA retaliation, a plaintiff must
establish that (1) [she] exercised rights protected under
the FMLA, (2) [she] was qualified for [her] position, (3)
[she] suffered an adverse employment action, and (4) the
adverse employment action occurred under circumstances
giving rise to an inference of retaliatory intent.”
Donnelly v. Greenburgh Cent. Sch. Dist. No. 7, 691 F.3d 134,
147 (2d Cir. 2012) (quotation marks omitted) (quoting
Potenza v. City of New York, 365 F.3d 165, 168 (2d Cir.
2004)).


                             4
     Elliot-Leach’s claim founders on the final element.
The only facts alleged that could suggest retaliatory intent
rely on temporal proximity: she alleges she asked for FMLA
leave on November 13, 2013, and that she suffered an adverse
employment action on July 30, 2014. “Where timing is the
only basis for a claim of retaliation, and gradual adverse
job actions began well before the plaintiff had ever engaged
in any protected activity, an inference of retaliation does
not arise.” Slattery v. Swiss Reinsurance Am. Corp., 248
F.3d 87, 95 (2d Cir. 2001). Because Elliot-Leach had been
disciplined for work absences before she requested FMLA
leave, and because she relies only on temporal proximity to
suggest retaliatory intent, her retaliation claim fails.

     4. Elliot-Leach contends the district court should
have granted her leave to further amend. Elliot-Leach’s
proposed second amended complaint does not allege additional
facts that save any of the claims discussed above. However,
her second amended complaint sought to add claims under the
New York State Human Rights Law and the New York City Human
Rights Law. These claims, which were included in the
initial complaint, were removed in the first amended
complaint. She apparently did so because she thought the
claims would be untimely if her termination date was July
30, 2014 (as she believed at the time of the first amended
complaint). Elliot-Leach now understands that she was
merely demoted on July 30, 2014, and was not terminated
until October 27, 2014. She asserts that her new claims
would be timely based on the October termination date.

     She is incorrect. After her demotion, Elliot-Leach was
placed in New York City’s Absent Teacher Reserve program and
told to report to a middle school. She did not show up and
never communicated with the school. Pursuant to Department
policy, Elliot-Leach was “deemed to have resigned” because
she was “absent for 20 consecutive school days without
notice.” J. App’x at 236. The only reason Elliot-Leach
advances for the timeliness of her new claims is her
termination date in October. But she was terminated in
October because of her own failure to report to duty or to
notify the school that she would not be reporting. All
actions taken by the Department that could conceivably
ground her new claims occurred prior to her demotion in July
2014, and the claims are therefore time-barred.
Accordingly, Elliot-Leach’s proposed amendment is futile.



                             5
     For the foregoing reasons, and finding no merit in
Elliot-Leach’s other arguments, we hereby AFFIRM the
judgment of the district court.

                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE, CLERK




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