April 16, 2025 • 16 mins
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This episode is part of my initiative to provide access to important court decisions impacting employees in an easy to understand conversational format using AI. The speakers in the episode are AI generated and frankly sound great to listen to. Enjoy!
The battlefield of workplace accommodations and family caregiving responsibilities takes center stage in our detailed examination of Kemp v. Regeneron Pharmaceuticals. This landmark case illuminates the critical distinction between denying leave and subtly discouraging employees from exercising their rights under the Family and Medical Leave Act.
We trace the journey of Denise Kemp, a decade-long employee with a history of promotions and positive performance, whose relationship with her employer deteriorated after seeking flexibility to care for her disabled daughter. The tension between remote work policies and leave rights creates a fascinating legal puzzle that ultimately hinged on technicalities rather than merits.
The Second Circuit's ruling provides crucial clarity on what constitutes FMLA interference, establishing that employers can violate the law without ever formally denying leave requests. Yet despite this employee-friendly interpretation, procedural rules—particularly the unforgiving statute of limitations—proved decisive. We explore how timing can make or break employment claims regardless of their underlying validity.
Beyond the technical legal analysis, we extract practical lessons for both sides of the employment relationship. For workers, understanding deadlines and documenting problematic interactions becomes paramount. For companies, the case serves as a warning that compliance means more than simply processing paperwork—it requires creating an environment where employees feel genuinely free to exercise their rights without subtle punishment.
Have you encountered challenges balancing family care responsibilities with workplace expectations? The evolving legal landscape around remote work accommodations continues to shape both employee rights and employer obligations. Share your experiences or questions about navigating these complex waters.
If you enjoyed this episode of the Employee Survival Guide please like us on Facebook, Twitter and LinkedIn. We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts. Leaving a review will inform other listeners you found the content on this podcast is important in the area of employment law in the United States.
For more information, please contact our employment attorneys at Carey & Associates, P.C. at 203-255-4150, www.capclaw.com.
Disclaimer: For educational use only, not intended to be legal advice.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
OK, so you send over some really interesting
documents for this deep dive.
We've got court decisions,second Circuit Southern District
of New York and the originalcomplaint and answer in the
Denise Kemp versus Regeneroncase.
Speaker 2 (00:12):
Yeah, quite a bit to dig into there.
Speaker 1 (00:14):
Definitely.
And what we want to do today is, you know, really get to the
heart of this legal fight Kempversus her former employer,
Regeneron Pharmaceuticals.
Speaker 2 (00:23):
Focusing on those FMLA and New York State human
rights law claims.
Speaker 1 (00:27):
Exactly FMLA and NYSHRL, and the mission here
isn't to get totally bogged downin legalese Right.
It's more about pulling out thekey arguments, how the courts
thought about it and, well, whatit tells us about employee
rights and companyresponsibilities.
Speaker 2 (00:43):
Absolutely, and having both the initial filings
and the court decisions gives usthat fuller picture, doesn't it
?
You see how the argumentstarted and where they ended up.
Speaker 1 (00:51):
And how the federal and state laws sort of interact
or sometimes clash.
Speaker 2 (00:55):
Precisely.
It's quite revealing.
Speaker 1 (00:57):
So let's start with Denise Kemp herself.
Who was she at Regeneron?
Sounds like she wasn't exactlynew.
Who was she at Regeneron?
Sounds like she wasn't exactlynew.
Speaker 2 (01:03):
No, not at all.
She'd been there nearly adecade, started back in 2008, I
think, as a senior GMP auditor.
Speaker 1 (01:11):
Wow Okay, almost 10 years, that's a solid tenure.
Speaker 2 (01:14):
It is, and the record shows.
She moved up, got promotions,ended up as a senior manager in
quality assurance and,interestingly, her supervisor,
teresa Rivenberg, who becomesrelevant later, actually
recommended her for two of thosepromotions.
Speaker 1 (01:29):
Huh, so Rivenberg thought highly of her work, at
least initially.
Speaker 2 (01:33):
It certainly looks that way.
Suggests good performance, goodcontributions.
Speaker 1 (01:37):
And it wasn't just titles, was it the materials
mentioned?
Her salary pretty much doubled.
Speaker 2 (01:41):
Yeah, doubled, and significant stock options too.
Speaker 1 (01:45):
So this paints a picture of someone who is you
know, doing well, beingrecognized, invested in the
company.
Speaker 2 (01:50):
Exactly, and that background matters.
It tells you the problems thatcame up later probably weren't
about longstanding performanceissues or anything like that.
She had a good track record.
Speaker 1 (01:58):
OK, so that brings us to the core issue, then the
remote work situation and caringfor her daughter.
This seems to be where thingsstarted to go sideways, around
June 2016.
Speaker 2 (02:10):
That's right.
She started working remotelymore often because her daughter
needed care.
Developmental disabilities andEhlers-Danlos syndrome Serious
conditions.
Speaker 1 (02:21):
And this wasn't the first time she needed leave or
flexibility, was it?
Speaker 2 (02:25):
No, absolutely not.
That's a crucial point.
She'd taken FMLA leave beforefor her own surgery, actually,
and also for her daughterpreviously.
Speaker 1 (02:32):
And Regeneron had approved those leaves.
Speaker 2 (02:35):
Yes, all approved.
So there was a history, aprecedent you could say, for
accommodating her family careneeds through leave.
Speaker 1 (02:42):
But then things changed.
Speaker 2 (02:43):
her family care needs through leave, but then things
changed Uh-huh.
That's when Rivenberg, hersupervisor, and Rivenberg's own
boss, started expressingconcerns.
Speaker 1 (02:50):
Concerns about what exactly Her time away.
Speaker 2 (02:52):
Yeah, about her time away from the physical office.
Yeah, and they ended uplimiting her remote work just
one day a week.
Speaker 1 (02:58):
One day a week Now, Kemp argued that remote work
wasn't uncommon in herdepartment.
Speaker 2 (03:02):
right, she did the documents mentioned.
Auditors on her team oftenworked from home.
Even some non-managersapparently worked fully remotely
.
Speaker 1 (03:09):
So that raises the question why the sudden
restriction on her remote work,especially given her history and
the apparent norm?
Exactly it makes you wonderwhat the specific reasoning was,
beyond just time in the officeand this restriction.
This is what feeds directlyinto her FMLA interference claim
.
Her argument was essentially,even though they were still
approving her intermittent FMLAleave requests on paper, by
(03:34):
limiting the remote work whichshe needed to manage that leave
and care and by generallydiscouraging her time off, they
were interfering with her actualability to use her FMLA rights.
Speaker 2 (03:45):
And that's a really key point the Second Circuit
picked up on.
They specifically said FMLAinterference isn't just about
denying leave requests outrightOkay.
Actions that discourage anemployee, that make them feel
like they can't take the leavethey're entitled to, that can be
interference too.
Speaker 1 (04:01):
So creating a chilling effect almost.
Speaker 2 (04:03):
Sort of yeah.
Speaker 1 (04:03):
Yeah.
Speaker 2 (04:04):
The law stops employers from hindering or
restricting an employee's FMLArights.
So even with paper approvals,the practical situation could
still violate the FMLA.
Speaker 1 (04:15):
But despite the Second Circuit clarifying that
point, which seems quiteimportant, her FMLA claim didn't
ultimately succeed.
Why not?
Speaker 2 (04:24):
Statute of limitations.
That was the killer for theFMLA claim.
Speaker 1 (04:28):
Ah, the timing issue again, yep.
Speaker 2 (04:30):
Generally it's a two-year window to file an FMLA
interference claim.
Okay, it could be extended tothree years, but only if the
violation was willful.
Speaker 1 (04:39):
And the court decided Regeneron's actions weren't
willful.
Speaker 2 (04:42):
Correct.
They basically said look, whilethese actions might have
discouraged her or interfered,there wasn't enough proof that
Regeneron knew they wereviolating the FMLA or acted with
reckless disregard for herrights.
Speaker 1 (04:55):
So maybe they mishandled it, but didn't
intentionally or recklesslybreak the law in the court's
view.
Speaker 2 (05:01):
That seems to be the conclusion and, without
willfulness, the standardtwo-year limit applied.
Speaker 1 (05:06):
Which had passed by the time she filed the lawsuit.
Speaker 2 (05:08):
Exactly.
She filed too late for the FMLAclaim, according to the court.
Speaker 1 (05:12):
And the court also drew a line between FMLA leave
and remote work itself, didn'tthey?
Speaker 2 (05:16):
Yes, a very important distinction.
They stress that the FMLAprotects your right to take
leave.
It doesn't guarantee you theright to work remotely as part
of that leave, even if remotework helps manage the situation.
Speaker 1 (05:29):
So remote work might be a reasonable accommodation
under other laws maybe, but notan FMLA leave right per se.
Speaker 2 (05:37):
Precisely that was central to their FMLA reasoning
too.
Speaker 1 (05:43):
OK, let's switch gears.
Then what about the state lawclaims under the New York State
Human Rights Law, the NYSHRL?
Speaker 2 (05:47):
Right.
So here she had a couple ofclaims.
One was associationaldiscrimination, basically saying
she was treated unfairlybecause of her daughter's
disability.
Speaker 1 (05:55):
Discriminated against because of her association with
a disabled person.
Speaker 2 (05:58):
Correct and the other was retaliation arguing.
They took negative actionsagainst her because she took
leave and asked foraccommodations like remote work.
Speaker 1 (06:05):
And the NYSHRL has a longer statute of limitations,
doesn't it?
Speaker 2 (06:09):
Generally yes, three years, which is longer than the
standard FMLA two years.
Speaker 1 (06:14):
So what did she point to as the negative actions, the
adverse employment actionsunder state law?
Speaker 2 (06:21):
Primarily two things that limitation on her remote
work we discussed and hersubsequent transfer to a new
role, a role she argued hadfewer responsibilities,
specifically, no direct reportsanymore.
Speaker 1 (06:34):
Losing direct reports often feels like a step down.
Was that seen as an adverseaction?
Speaker 2 (06:39):
Well, that was part of the dispute.
Kemp framed it as a demotion,essentially pushed on her after
her supervisor suggested shelook for something less
demanding.
Speaker 1 (06:48):
But Regeneron had a different story.
Speaker 2 (06:50):
They did.
They contended that Kempherself had actually started
those conversations, saying shewanted a less demanding role.
Speaker 1 (06:57):
Ah, ok, so disagreement on who initiated
the move?
Common in these cases, I guess.
Speaker 2 (07:02):
Very common, but interestingly the Second Circuit
didn't actually decidedefinitively whether the remote
work limit or the transfer werelegally adverse actions under
NYSHRL.
Speaker 1 (07:12):
They didn't rule on that.
Why not?
Speaker 2 (07:14):
Because, once again, the statute of limitations came
into play, even with athree-year window for NYSHRL.
Speaker 1 (07:19):
So even if those were discriminatory or retaliatory
acts, the clock had run out.
Speaker 2 (07:24):
That's what the court found.
The key is when the employeegets definite notice of the
adverse action.
Speaker 1 (07:30):
And when was that for Kemp?
Speaker 2 (07:32):
She was sold about the remote work limits back in
July 2016.
And the discussion aboutlooking for another role also
happened around then, July 2016.
Speaker 1 (07:41):
OK.
Speaker 2 (07:42):
And critically, Kemp herself admitted she'd basically
accepted the new position byOctober 2016.
Her old job was posted aroundthat time.
Speaker 1 (07:50):
And she didn't file her lawsuit until November 2019.
Speaker 2 (07:54):
Right More than three years after she had definite
notice of those key events inmid to late 2016.
Speaker 1 (07:59):
So the three-year NYSHRL clock had expired too.
Speaker 2 (08:03):
Correct.
They also looked at somethingcalled the continuing wrong
doctrine.
Speaker 1 (08:07):
What is that?
Speaker 2 (08:07):
It's an idea that sometimes, if there's an ongoing
pattern of discrimination, theclock might keep resetting, but
New York law is pretty strict onit.
Speaker 1 (08:14):
How so.
Speaker 2 (08:15):
It generally only applies to ongoing unlawful acts
, not just the continuing impactof a past act.
The court decided Kemp'ssituation.
The transfer, the remote worklimit, were discrete events that
happened in 2016, and theireffects later didn't restart the
clock.
Speaker 1 (08:29):
So that doctrine didn't help her extend the
deadline.
Speaker 2 (08:32):
No, it didn't apply here.
According to the court.
Speaker 1 (08:34):
Okay, there was one more claim right Constructive
discharge.
Speaker 2 (08:37):
Yes, she argued that things got so bad the limited
remote work, the perceivedemotion that it created an
intolerable work environment sobad that she felt forced to
resign, which she did byretiring in January 2017.
Speaker 1 (08:54):
Basically saying you didn't fire me but you made
things so unbearable.
I have no choice but to leave.
Speaker 2 (09:00):
Exactly, that's the essence of constructive
discharge, but under New Yorklaw it's a really high bar to
meet.
Speaker 1 (09:06):
What do you need to show?
Speaker 2 (09:07):
You have to prove the working conditions were
objectively so intolerable thatany reasonable person would feel
compelled to resign and,crucially, that the employer
deliberately created thoseconditions to make the employee
quit.
Speaker 1 (09:20):
Deliberately.
That sounds tough to prove.
Speaker 2 (09:22):
It is, and the court didn't think Kemp met that
standard.
Speaker 1 (09:25):
Why not?
Speaker 2 (09:26):
They pointed out that even after the transfer she
kept the same salary and thesame pay grade.
Ah okay, no pay cut Right.
And while her duties changed,the court felt a reasonable
person wouldn't necessarily findthat situation so intolerable.
They had to resign.
Speaker 1 (09:42):
So just being unhappy with a new role isn't enough.
Speaker 2 (09:45):
Generally no, Not for constructive discharge.
Dissatisfaction alone doesn'tmeet the legal standard of
intolerability, especiallywithout a change in pay or
status.
Speaker 1 (09:55):
Okay, let's quickly touch on Regeneron's side from
their formal answer.
How did they defend againstthese claims?
Speaker 2 (10:01):
Well, as you'd expect , their initial answer denied
most of Kemp's allegationsoutright.
Speaker 1 (10:05):
Standard procedure often Pretty much.
Speaker 2 (10:08):
But then they also raise several affirmative
defenses.
These are reasons why, even ifsome of Kemp's facts were true,
they should still win.
Speaker 1 (10:16):
Like what.
Speaker 2 (10:17):
Things like arguing she failed to state a valid
legal claim in the first placethe statute of limitations
defense, which obviously provedvery effective for them.
They also argued that anyactions they took were for
legitimate, non-discriminatorybusiness reasons, and they even
threw in a defense that Kempdidn't properly try to mitigate
or lessen any damages she mighthave suffered.
Speaker 1 (10:38):
OK, a multi-pronged defense.
And just looping back to thevery start of the court process,
the district court, the firstcourt to rule.
They initially granted summaryjudgment for Regeneron right,
kicking the case out before afull trial.
Speaker 2 (10:51):
They did.
Yes, summer judgment means thecourt thinks there are no real
factual disputes to send to ajury and one side should win,
based just on the law.
Speaker 1 (11:01):
And what was their main reasoning at that stage?
Speaker 2 (11:03):
The district court leaned heavily on the idea that
Kemp hadn't shown an actualdenial of FMLA benefits At that
time.
That court interpreted FMLAinterference more narrowly,
requiring some kind of denial.
And on the NYSHRL claims thedistrict court basically said
there wasn't enough proof thatthe remote work limit or the
transfer were truly adverseactions driven by discrimination
(11:25):
or retaliation.
Speaker 1 (11:26):
But then the Second Circuit, the appeals court,
disagreed somewhat on the FMLAstandard.
Speaker 2 (11:31):
Yes, as we discussed, the Second Circuit clarified
that interference doesn'trequire a flat denial of
benefits.
Discouragement can be enough.
A subtle but importantdifference in interpretation.
But even with that differentview on the standard, they still
ended up agreeing with thefinal outcome.
Summary judgment for Regeneron.
Speaker 1 (11:49):
Just for different reasons.
Speaker 2 (11:51):
Mainly yes.
Primarily because the statuteof limitations had run out on
both the FMLA and NYSHRL claimsand they didn't find evidence of
willful violation for the FMLApart.
Speaker 1 (12:03):
So the Second Circuit's ruling kind of refines
the law on FMLA interference.
Speaker 2 (12:08):
It does.
It sends a message to employersBe careful not to discourage
leave, even if you approve thepaperwork.
But it also shows how criticalthese procedural rules, like
statutes of limitation, can be.
They can decide a caseregardless of the underlying
merits.
Speaker 1 (12:22):
Sometimes Absolutely OK.
So let's try to distill thisFor our listener.
What are the big takeaways fromthis Kemp versus Regeneron case
?
What should they reallyremember?
Speaker 2 (12:31):
Okay, I think there are a few key things.
First, on FMLA employers caninterfere with rights even
without denying leave.
Discouraging actions count,that's important.
But second, proving thatinterference was willful to get
that longer three-year statuteof limitations, that's a high
bar.
You generally need pretty clearproof of intent or recklessness
.
Speaker 1 (12:51):
Got it.
What about the state law side?
Speaker 2 (12:54):
For NYSHRL and likely similar state laws.
That statute of limitations isjust critical.
Knowing when that clock startsticking, when you have definite
notice of the adverse action, isparamount.
Delay can be fatal to a claim.
Speaker 1 (13:08):
So don't wait if you think something's wrong.
Speaker 2 (13:09):
Pretty much.
And finally, remember thatconstructive discharge is tough
to prove Changes in job dutiesif your pay and grades stay the
same usually won't be enough,even if you're really unhappy
with the change.
It has to be truly intolerable.
Speaker 1 (13:23):
This whole case really highlights the tricky
balance, doesn't it?
Balancing work, family care,navigating these complex laws.
It makes you wonder what arethe practical lessons here for
employees and employers facingsimilar situations day to day.
Speaker 2 (13:37):
That's the big question, isn't it?
For employees, I'd say knowyour rights, FMLA, state laws
and, crucially, know thedeadlines.
Document everything.
If you feel something's off,Keep records.
Speaker 1 (13:47):
Good advice and for employers.
Speaker 2 (13:50):
For employers.
It's a reminder that FMLAcompliance is more than just
processing forms.
It's about the environment youcreate.
Can people take leave withoutfeeling penalized?
And with remote work being soprevalent, having clear,
consistently applied policies onremote work and accommodations
is just essential now.
Avoid making exceptions thatlook discriminatory later.
Speaker 1 (14:13):
Clarity and consistency seem key.
Speaker 2 (14:15):
Definitely Helps avoid these kinds of disputes
down the line.
Speaker 1 (14:18):
And if someone listening wants to dig deeper
into FMLA or NYSHRL, whereshould they look?
Speaker 2 (14:24):
Well, the best place to start is often the source.
Look up the actual text of theFamily and Medical Leave Act
online.
Same for the New York StateHuman Rights Law.
The government websites usuallyhave the statutes.
Speaker 1 (14:34):
Okay.
Speaker 2 (14:34):
Reading the actual laws maybe summaries from
reputable sources like theDepartment of Labor or state
human rights divisions gives youa solid foundation.
You could also search for othercourt cases dealing with FMLA
interference, remote work,accommodations or associational
discrimination to see how theseprinciples are applied in
different contexts.
Speaker 1 (14:52):
Great suggestions.
Really helps put the specificcase into a broader context.
Thanks for breaking down allthese complexities for us.
Speaker 2 (14:59):
My pleasure.
It was a fascinating case tounpack.
Speaker 1 (15:01):
Indeed Until our next deep dive.
OK, so you send over some really interesting
documents for this deep dive.
We've got court decisions,second Circuit Southern District
of New York and the originalcomplaint and answer in the
Denise Kemp versus Regeneroncase.
Speaker 2 (00:12):
Yeah, quite a bit to dig into there.
Speaker 1 (00:14):
Definitely.
And what we want to do today is, you know, really get to the
heart of this legal fight Kempversus her former employer,
Regeneron Pharmaceuticals.
Speaker 2 (00:23):
Focusing on those FMLA and New York State human
rights law claims.
Speaker 1 (00:27):
Exactly FMLA and NYSHRL, and the mission here
isn't to get totally bogged downin legalese Right.
It's more about pulling out thekey arguments, how the courts
thought about it and, well, whatit tells us about employee
rights and companyresponsibilities.
Speaker 2 (00:43):
Absolutely, and having both the initial filings
and the court decisions gives usthat fuller picture, doesn't it
?
You see how the argumentstarted and where they ended up.
Speaker 1 (00:51):
And how the federal and state laws sort of interact
or sometimes clash.
Speaker 2 (00:55):
Precisely.
It's quite revealing.
Speaker 1 (00:57):
So let's start with Denise Kemp herself.
Who was she at Regeneron?
Sounds like she wasn't exactlynew.
Who was she at Regeneron?
Sounds like she wasn't exactlynew.
Speaker 2 (01:03):
No, not at all.
She'd been there nearly adecade, started back in 2008, I
think, as a senior GMP auditor.
Speaker 1 (01:11):
Wow Okay, almost 10 years, that's a solid tenure.
Speaker 2 (01:14):
It is, and the record shows.
She moved up, got promotions,ended up as a senior manager in
quality assurance and,interestingly, her supervisor,
teresa Rivenberg, who becomesrelevant later, actually
recommended her for two of thosepromotions.
Speaker 1 (01:29):
Huh, so Rivenberg thought highly of her work, at
least initially.
Speaker 2 (01:33):
It certainly looks that way.
Suggests good performance, goodcontributions.
Speaker 1 (01:37):
And it wasn't just titles, was it the materials
mentioned?
Her salary pretty much doubled.
Speaker 2 (01:41):
Yeah, doubled, and significant stock options too.
Speaker 1 (01:45):
So this paints a picture of someone who is you
know, doing well, beingrecognized, invested in the
company.
Speaker 2 (01:50):
Exactly, and that background matters.
It tells you the problems thatcame up later probably weren't
about longstanding performanceissues or anything like that.
She had a good track record.
Speaker 1 (01:58):
OK, so that brings us to the core issue, then the
remote work situation and caringfor her daughter.
This seems to be where thingsstarted to go sideways, around
June 2016.
Speaker 2 (02:10):
That's right.
She started working remotelymore often because her daughter
needed care.
Developmental disabilities andEhlers-Danlos syndrome Serious
conditions.
Speaker 1 (02:21):
And this wasn't the first time she needed leave or
flexibility, was it?
Speaker 2 (02:25):
No, absolutely not.
That's a crucial point.
She'd taken FMLA leave beforefor her own surgery, actually,
and also for her daughterpreviously.
Speaker 1 (02:32):
And Regeneron had approved those leaves.
Speaker 2 (02:35):
Yes, all approved.
So there was a history, aprecedent you could say, for
accommodating her family careneeds through leave.
Speaker 1 (02:42):
But then things changed.
Speaker 2 (02:43):
her family care needs through leave, but then things
changed Uh-huh.
That's when Rivenberg, hersupervisor, and Rivenberg's own
boss, started expressingconcerns.
Speaker 1 (02:50):
Concerns about what exactly Her time away.
Speaker 2 (02:52):
Yeah, about her time away from the physical office.
Yeah, and they ended uplimiting her remote work just
one day a week.
Speaker 1 (02:58):
One day a week Now, Kemp argued that remote work
wasn't uncommon in herdepartment.
Speaker 2 (03:02):
right, she did the documents mentioned.
Auditors on her team oftenworked from home.
Even some non-managersapparently worked fully remotely
.
Speaker 1 (03:09):
So that raises the question why the sudden
restriction on her remote work,especially given her history and
the apparent norm?
Exactly it makes you wonderwhat the specific reasoning was,
beyond just time in the officeand this restriction.
This is what feeds directlyinto her FMLA interference claim
.
Her argument was essentially,even though they were still
approving her intermittent FMLAleave requests on paper, by
(03:34):
limiting the remote work whichshe needed to manage that leave
and care and by generallydiscouraging her time off, they
were interfering with her actualability to use her FMLA rights.
Speaker 2 (03:45):
And that's a really key point the Second Circuit
picked up on.
They specifically said FMLAinterference isn't just about
denying leave requests outrightOkay.
Actions that discourage anemployee, that make them feel
like they can't take the leavethey're entitled to, that can be
interference too.
Speaker 1 (04:01):
So creating a chilling effect almost.
Speaker 2 (04:03):
Sort of yeah.
Speaker 1 (04:03):
Yeah.
Speaker 2 (04:04):
The law stops employers from hindering or
restricting an employee's FMLArights.
So even with paper approvals,the practical situation could
still violate the FMLA.
Speaker 1 (04:15):
But despite the Second Circuit clarifying that
point, which seems quiteimportant, her FMLA claim didn't
ultimately succeed.
Why not?
Speaker 2 (04:24):
Statute of limitations.
That was the killer for theFMLA claim.
Speaker 1 (04:28):
Ah, the timing issue again, yep.
Speaker 2 (04:30):
Generally it's a two-year window to file an FMLA
interference claim.
Okay, it could be extended tothree years, but only if the
violation was willful.
Speaker 1 (04:39):
And the court decided Regeneron's actions weren't
willful.
Speaker 2 (04:42):
Correct.
They basically said look, whilethese actions might have
discouraged her or interfered,there wasn't enough proof that
Regeneron knew they wereviolating the FMLA or acted with
reckless disregard for herrights.
Speaker 1 (04:55):
So maybe they mishandled it, but didn't
intentionally or recklesslybreak the law in the court's
view.
Speaker 2 (05:01):
That seems to be the conclusion and, without
willfulness, the standardtwo-year limit applied.
Speaker 1 (05:06):
Which had passed by the time she filed the lawsuit.
Speaker 2 (05:08):
Exactly.
She filed too late for the FMLAclaim, according to the court.
Speaker 1 (05:12):
And the court also drew a line between FMLA leave
and remote work itself, didn'tthey?
Speaker 2 (05:16):
Yes, a very important distinction.
They stress that the FMLAprotects your right to take
leave.
It doesn't guarantee you theright to work remotely as part
of that leave, even if remotework helps manage the situation.
Speaker 1 (05:29):
So remote work might be a reasonable accommodation
under other laws maybe, but notan FMLA leave right per se.
Speaker 2 (05:37):
Precisely that was central to their FMLA reasoning
too.
Speaker 1 (05:43):
OK, let's switch gears.
Then what about the state lawclaims under the New York State
Human Rights Law, the NYSHRL?
Speaker 2 (05:47):
Right.
So here she had a couple ofclaims.
One was associationaldiscrimination, basically saying
she was treated unfairlybecause of her daughter's
disability.
Speaker 1 (05:55):
Discriminated against because of her association with
a disabled person.
Speaker 2 (05:58):
Correct and the other was retaliation arguing.
They took negative actionsagainst her because she took
leave and asked foraccommodations like remote work.
Speaker 1 (06:05):
And the NYSHRL has a longer statute of limitations,
doesn't it?
Speaker 2 (06:09):
Generally yes, three years, which is longer than the
standard FMLA two years.
Speaker 1 (06:14):
So what did she point to as the negative actions, the
adverse employment actionsunder state law?
Speaker 2 (06:21):
Primarily two things that limitation on her remote
work we discussed and hersubsequent transfer to a new
role, a role she argued hadfewer responsibilities,
specifically, no direct reportsanymore.
Speaker 1 (06:34):
Losing direct reports often feels like a step down.
Was that seen as an adverseaction?
Speaker 2 (06:39):
Well, that was part of the dispute.
Kemp framed it as a demotion,essentially pushed on her after
her supervisor suggested shelook for something less
demanding.
Speaker 1 (06:48):
But Regeneron had a different story.
Speaker 2 (06:50):
They did.
They contended that Kempherself had actually started
those conversations, saying shewanted a less demanding role.
Speaker 1 (06:57):
Ah, ok, so disagreement on who initiated
the move?
Common in these cases, I guess.
Speaker 2 (07:02):
Very common, but interestingly the Second Circuit
didn't actually decidedefinitively whether the remote
work limit or the transfer werelegally adverse actions under
NYSHRL.
Speaker 1 (07:12):
They didn't rule on that.
Why not?
Speaker 2 (07:14):
Because, once again, the statute of limitations came
into play, even with athree-year window for NYSHRL.
Speaker 1 (07:19):
So even if those were discriminatory or retaliatory
acts, the clock had run out.
Speaker 2 (07:24):
That's what the court found.
The key is when the employeegets definite notice of the
adverse action.
Speaker 1 (07:30):
And when was that for Kemp?
Speaker 2 (07:32):
She was sold about the remote work limits back in
July 2016.
And the discussion aboutlooking for another role also
happened around then, July 2016.
Speaker 1 (07:41):
OK.
Speaker 2 (07:42):
And critically, Kemp herself admitted she'd basically
accepted the new position byOctober 2016.
Her old job was posted aroundthat time.
Speaker 1 (07:50):
And she didn't file her lawsuit until November 2019.
Speaker 2 (07:54):
Right More than three years after she had definite
notice of those key events inmid to late 2016.
Speaker 1 (07:59):
So the three-year NYSHRL clock had expired too.
Speaker 2 (08:03):
Correct.
They also looked at somethingcalled the continuing wrong
doctrine.
Speaker 1 (08:07):
What is that?
Speaker 2 (08:07):
It's an idea that sometimes, if there's an ongoing
pattern of discrimination, theclock might keep resetting, but
New York law is pretty strict onit.
Speaker 1 (08:14):
How so.
Speaker 2 (08:15):
It generally only applies to ongoing unlawful acts
, not just the continuing impactof a past act.
The court decided Kemp'ssituation.
The transfer, the remote worklimit, were discrete events that
happened in 2016, and theireffects later didn't restart the
clock.
Speaker 1 (08:29):
So that doctrine didn't help her extend the
deadline.
Speaker 2 (08:32):
No, it didn't apply here.
According to the court.
Speaker 1 (08:34):
Okay, there was one more claim right Constructive
discharge.
Speaker 2 (08:37):
Yes, she argued that things got so bad the limited
remote work, the perceivedemotion that it created an
intolerable work environment sobad that she felt forced to
resign, which she did byretiring in January 2017.
Speaker 1 (08:54):
Basically saying you didn't fire me but you made
things so unbearable.
I have no choice but to leave.
Speaker 2 (09:00):
Exactly, that's the essence of constructive
discharge, but under New Yorklaw it's a really high bar to
meet.
Speaker 1 (09:06):
What do you need to show?
Speaker 2 (09:07):
You have to prove the working conditions were
objectively so intolerable thatany reasonable person would feel
compelled to resign and,crucially, that the employer
deliberately created thoseconditions to make the employee
quit.
Speaker 1 (09:20):
Deliberately.
That sounds tough to prove.
Speaker 2 (09:22):
It is, and the court didn't think Kemp met that
standard.
Speaker 1 (09:25):
Why not?
Speaker 2 (09:26):
They pointed out that even after the transfer she
kept the same salary and thesame pay grade.
Ah okay, no pay cut Right.
And while her duties changed,the court felt a reasonable
person wouldn't necessarily findthat situation so intolerable.
They had to resign.
Speaker 1 (09:42):
So just being unhappy with a new role isn't enough.
Speaker 2 (09:45):
Generally no, Not for constructive discharge.
Dissatisfaction alone doesn'tmeet the legal standard of
intolerability, especiallywithout a change in pay or
status.
Speaker 1 (09:55):
Okay, let's quickly touch on Regeneron's side from
their formal answer.
How did they defend againstthese claims?
Speaker 2 (10:01):
Well, as you'd expect , their initial answer denied
most of Kemp's allegationsoutright.
Speaker 1 (10:05):
Standard procedure often Pretty much.
Speaker 2 (10:08):
But then they also raise several affirmative
defenses.
These are reasons why, even ifsome of Kemp's facts were true,
they should still win.
Speaker 1 (10:16):
Like what.
Speaker 2 (10:17):
Things like arguing she failed to state a valid
legal claim in the first placethe statute of limitations
defense, which obviously provedvery effective for them.
They also argued that anyactions they took were for
legitimate, non-discriminatorybusiness reasons, and they even
threw in a defense that Kempdidn't properly try to mitigate
or lessen any damages she mighthave suffered.
Speaker 1 (10:38):
OK, a multi-pronged defense.
And just looping back to thevery start of the court process,
the district court, the firstcourt to rule.
They initially granted summaryjudgment for Regeneron right,
kicking the case out before afull trial.
Speaker 2 (10:51):
They did.
Yes, summer judgment means thecourt thinks there are no real
factual disputes to send to ajury and one side should win,
based just on the law.
Speaker 1 (11:01):
And what was their main reasoning at that stage?
Speaker 2 (11:03):
The district court leaned heavily on the idea that
Kemp hadn't shown an actualdenial of FMLA benefits At that
time.
That court interpreted FMLAinterference more narrowly,
requiring some kind of denial.
And on the NYSHRL claims thedistrict court basically said
there wasn't enough proof thatthe remote work limit or the
transfer were truly adverseactions driven by discrimination
(11:25):
or retaliation.
Speaker 1 (11:26):
But then the Second Circuit, the appeals court,
disagreed somewhat on the FMLAstandard.
Speaker 2 (11:31):
Yes, as we discussed, the Second Circuit clarified
that interference doesn'trequire a flat denial of
benefits.
Discouragement can be enough.
A subtle but importantdifference in interpretation.
But even with that differentview on the standard, they still
ended up agreeing with thefinal outcome.
Summary judgment for Regeneron.
Speaker 1 (11:49):
Just for different reasons.
Speaker 2 (11:51):
Mainly yes.
Primarily because the statuteof limitations had run out on
both the FMLA and NYSHRL claimsand they didn't find evidence of
willful violation for the FMLApart.
Speaker 1 (12:03):
So the Second Circuit's ruling kind of refines
the law on FMLA interference.
Speaker 2 (12:08):
It does.
It sends a message to employersBe careful not to discourage
leave, even if you approve thepaperwork.
But it also shows how criticalthese procedural rules, like
statutes of limitation, can be.
They can decide a caseregardless of the underlying
merits.
Speaker 1 (12:22):
Sometimes Absolutely OK.
So let's try to distill thisFor our listener.
What are the big takeaways fromthis Kemp versus Regeneron case
?
What should they reallyremember?
Speaker 2 (12:31):
Okay, I think there are a few key things.
First, on FMLA employers caninterfere with rights even
without denying leave.
Discouraging actions count,that's important.
But second, proving thatinterference was willful to get
that longer three-year statuteof limitations, that's a high
bar.
You generally need pretty clearproof of intent or recklessness
.
Speaker 1 (12:51):
Got it.
What about the state law side?
Speaker 2 (12:54):
For NYSHRL and likely similar state laws.
That statute of limitations isjust critical.
Knowing when that clock startsticking, when you have definite
notice of the adverse action, isparamount.
Delay can be fatal to a claim.
Speaker 1 (13:08):
So don't wait if you think something's wrong.
Speaker 2 (13:09):
Pretty much.
And finally, remember thatconstructive discharge is tough
to prove Changes in job dutiesif your pay and grades stay the
same usually won't be enough,even if you're really unhappy
with the change.
It has to be truly intolerable.
Speaker 1 (13:23):
This whole case really highlights the tricky
balance, doesn't it?
Balancing work, family care,navigating these complex laws.
It makes you wonder what arethe practical lessons here for
employees and employers facingsimilar situations day to day.
Speaker 2 (13:37):
That's the big question, isn't it?
For employees, I'd say knowyour rights, FMLA, state laws
and, crucially, know thedeadlines.
Document everything.
If you feel something's off,Keep records.
Speaker 1 (13:47):
Good advice and for employers.
Speaker 2 (13:50):
For employers.
It's a reminder that FMLAcompliance is more than just
processing forms.
It's about the environment youcreate.
Can people take leave withoutfeeling penalized?
And with remote work being soprevalent, having clear,
consistently applied policies onremote work and accommodations
is just essential now.
Avoid making exceptions thatlook discriminatory later.
Speaker 1 (14:13):
Clarity and consistency seem key.
Speaker 2 (14:15):
Definitely Helps avoid these kinds of disputes
down the line.
Speaker 1 (14:18):
And if someone listening wants to dig deeper
into FMLA or NYSHRL, whereshould they look?
Speaker 2 (14:24):
Well, the best place to start is often the source.
Look up the actual text of theFamily and Medical Leave Act
online.
Same for the New York StateHuman Rights Law.
The government websites usuallyhave the statutes.
Speaker 1 (14:34):
Okay.
Speaker 2 (14:34):
Reading the actual laws maybe summaries from
reputable sources like theDepartment of Labor or state
human rights divisions gives youa solid foundation.
You could also search for othercourt cases dealing with FMLA
interference, remote work,accommodations or associational
discrimination to see how theseprinciples are applied in
different contexts.
Speaker 1 (14:52):
Great suggestions.
Really helps put the specificcase into a broader context.
Thanks for breaking down allthese complexities for us.
Speaker 2 (14:59):
My pleasure.
It was a fascinating case tounpack.
Speaker 1 (15:01):
Indeed Until our next deep dive.
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