14-3710-cv
Donna Scarpinati de Oliveira v. Cairo-Durham Central School District, et al.

                                    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.

       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 23rd day of February, two thousand sixteen.

PRESENT:            JOSÉ A. CABRANES,
                    ROSEMARY S. POOLER,
                    DENNY CHIN,
                                 Circuit Judges.


DONNA SCARPINATI DE OLIVEIRA,

                    Plaintiff-Appellant,

                               v.
                                                                               No. 14-3710-cv

CAIRO-DURHAM CENTRAL SCHOOL DISTRICT,
CAIRO-DURHAM BOARD OF EDUCATION,
CAIRO-DURHAM TEACHERS’ ASSOCIATION, SUSAN
KUSMINSKY, Individually and as President of the Board
of Education as aider and abettor, JUSTIN KARKER,
Individually and as President of the Cairo-Durham
Teachers’ Association as aider and abettor, SALLY
SHARKEY, Individually and as Superintendent of School
as aider and abettor,

                    Defendants-Appellees.*




*
    The Clerk of Court is directed to amend the caption of the order as set forth above.
FOR PLAINTIFF-APPELLANT:                                  PHILLIP G. STECK (Carlo A. C. de Oliveira, on
                                                          the brief), Cooper Erving & Savage LLP,
                                                          Albany, NY.

FOR DEFENDANTS-APPELLEES
CAIRO-DURHAM CENTRAL SCHOOL
DISTRICT, CAIRO-DURHAM BOARD OF
EDUCATION, SUSAN KUSMINSKY, AND
SALLY SHARKEY:                                            RYAN P. MULLAHY (Patrick J. Fitzgerald III,
                                                          on the brief), Girvin & Ferlazzo, P.C., Albany,
                                                          NY.

FOR DEFENDANTS-APPELLEES
CAIRO-DURHAM TEACHERS’
ASSOCIATION AND JUSTIN KARKER:                            ANTHONY J. BROCK (Richard E. Casagrande,
                                                          on the brief), Office of General Counsel, New
                                                          York State United Teachers, Latham, NY.

     Appeal from a judgment of the United States District Court for the Northern District of
New York (Norman A. Mordue, Judge).

        UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED in part,
and VACATED in part, and the cause is REMANDED for further proceedings consistent with
this order.

         Plaintiff-appellant Donna Scarpinati de Oliveira, an elementary-school teacher formerly
employed by defendant Cairo-Durham Central School District, appeals a September 30, 2014 order
of the District Court granting summary judgment to defendants and denying summary judgment to
plaintiff. Plaintiff asserted claims against defendants Cairo-Durham Central School District (the
“District”) and its superintendent Sally Sharkey, Cairo-Durham Board of Education and its
president Susan Kusminsky, and Cairo-Durham Teachers’ Association and its president Justin
Karker, arising out of plaintiff’s dismissal from the District, due to inferior seniority status, as part of
budget-driven layoffs.

        On appeal, plaintiff challenges the dismissal of her claims arising under the Family and
Medical Leave Act, 29 U.S.C. § 2601 et seq. (“FMLA”); Title VII of the Civil Rights Act, 42 U.S.C. §
2000e et seq. (“Title VII”); the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k) (“PDA”); 42
U.S.C. § 1983 (“Section 1983”); and Title IX of the Education Amendments of 1972, 20 U.S.C. §§
1681–88 (“Title IX”). We assume the parties’ familiarity with the underlying facts, the procedural
history of the case, and the issues on appeal.



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        We review de novo an order granting summary judgment and “resolv[e] all ambiguities and
draw[] all permissible factual inferences in favor of the party against whom summary judgment is
sought.” Burg v. Gosselin, 591 F.3d 95, 97 (2d Cir. 2010) (internal quotation marks omitted). “A
defendant is entitled to summary judgment where the plaintiff has failed to come forth with
evidence sufficient to permit a reasonable juror to return a verdict in his or her favor on an essential
element of a claim on which the plaintiff[] bear[s] the burden of proof.” Selevan v. N.Y. Thruway
Auth., 711 F.3d 253, 256 (2d Cir. 2013) (alterations and internal quotation marks omitted).
“[C]onclusory statements or mere allegations [are] not sufficient to defeat a summary judgment
motion.” Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002).

        Upon de novo review of the record on appeal and upon consideration of the arguments
advanced by the parties, substantially for the reasons set forth in the District Court’s well-reasoned
September 30, 2014 opinion, see De Oliveira v. Cairo-Durham Cent. Sch. Dist., No. 11-cv-393
(NAM/RFT), 2014 WL 4900403 (N.D.N.Y. Sept. 30, 2014), we affirm insofar as the judgment of
the District Court denied plaintiff’s motion for summary judgment, and also insofar as it granted
defendants’ motions for summary judgment with respect to the FMLA interference and retaliation
claims—except the failure-to-provide-notice interference claim—as well as the Title VII claim, PDA
claim, Section 1983 claim, and Title IX claim; but we vacate the District Court’s grant of summary
judgment to defendants with respect to plaintiff’s failure-to-provide-notice interference claim under
the FMLA.

        With respect to plaintiff’s failure-to-provide-notice interference claim under the FMLA, we
conclude that the District Court erred in granting defendants summary judgment. Under 29 C.F.R. §
825.604, “established school board policies and practices . . . and collective bargaining agreements,”
among other things, govern “[t]he determination of how an employee is to be restored to an
equivalent position upon return from FMLA leave.” 29 C.F.R. § 825.604 (internal quotation marks
omitted). Moreover, “[t]he established policies and collective bargaining agreements used as a basis
for restoration must be in writing, must be made known to the employee prior to the taking of
FMLA leave, and must clearly explain the employee’s restoration rights upon return from leave.” Id.
(internal quotation marks omitted).

        Here, under the District’s policies, practices, and agreements, plaintiff was to be restored to
an equivalent position after FMLA leave but would not continue to accrue service credit during
unpaid FMLA leave. Although this policy did not, as plaintiff argues, diminish plaintiff’s restoration
rights upon her return—indeed, she retained the same tenure she held before taking unpaid FMLA
leave, even if others increased their tenure during that time and thereby gained seniority—the policy
nonetheless served as a “basis for restoration” insofar as plaintiff’s restoration rights included
retention of the same tenured position she held before she took unpaid FMLA leave. The District
therefore had a duty under § 825.604 to inform plaintiff in writing about the policy before she took



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FMLA leave. Having failed to do so, it violated the notice requirements of §§ 825.300(c)(1)(vi) and
825.604.

         As a result, after drawing all permissible factual inferences in favor of plaintiff, we conclude
that there is a genuine issue of material fact as to whether the notice violation “constitute[d] an
interference with, restraint, or denial of the exercise of [plaintiff’s] FMLA rights,” 29 C.F.R. §
825.300(e)—for instance, whether the plaintiff would have taken unpaid FMLA leave had she been
properly notified about the policy regarding restoration of tenure, see, e.g., App. 848. If the failure to
provide notice is found to have constituted an interference, under § 825.300(e), the “employer may
be liable for compensation and benefits lost by reason of the violation, for other actual monetary
losses sustained as a direct result of the violation, and for appropriate equitable or other relief,
including employment, reinstatement, promotion, or any other relief tailored to the harm suffered.”
29 C.F.R. § 825.300(e). We therefore vacate the District Court’s judgment insofar as it granted
defendants summary judgment on this claim, and we remand the cause to the District Court for
further proceedings.

                                            CONCLUSION

        Having considered all of the parties’ remaining arguments, for the foregoing reasons, we
AFFIRM the September 30, 2014 judgment of the District Court with respect to all of plaintiff’s
claims other than her failure-to-provide-notice interference claim under the FMLA, VACATE the
District Court’s summary judgment to defendants on that claim, and REMAND the cause to the
District Court for further proceedings consistent with this order.


                                                         FOR THE COURT:
                                                         Catherine O’Hagan Wolfe, Clerk




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