Haran v. Orange Business Services, Inc.

24-2312
Haran v. Orange Business Services, Inc.
United States Court of Appeals
For the Second Circuit
August Term 2025
Argued: September 26, 2025
Decided: November 25, 2025
No. 24-2312
PATRICIA H ARAN,
Plaintiff-Appellant,
v.
O RANGE BUSINESS S ERVICES , INC.,
Defendant-Appellee.1
Appeal from the United States District Court
for the Southern District of New York
No. 21-cv-10585
Dale E. Ho, Judge.
1 The Clerk of Court is respectfully directed to amend the caption as
set forth above.

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Before: R AGGI, L YNCH , and PARK, Circuit Judges.
Orange Business Services, Inc. (“OBS”), a telecommunications
company, fired Senior Account Manager Patricia Haran after several
of the largest accounts she managed decided to stop using OBS’s
services. In the months before her termination, Haran had taken eight
and a half days of paid time off to care for her sick daughter and
mother. Haran sued OBS for interfering with her rights under the
Family and Medical Leave Act (“FMLA”) and retaliating against her
for taking leave. The district court (Ho, J.) granted summary
judgment to OBS.
We affirm. First, we conclude that Haran has not met her
burden of establishing an FMLA interference claim because her
supervisor’s criticisms about her job performance did not reference
her requests for leave, all of which he readily granted. Moreover,
Haran was not prejudiced by OBS’s failure to give her notice of her
FMLA rights upon learning of her daughter’s illness. Second, Haran
failed to show retaliation because OBS terminated her based on
performance, not her requests for leave. Finally, we affirm the district
court’s dismissal without prejudice of Haran’s related claim under the
New York City Human Rights Law.
L IANE F ISHER (Michael Taubenfeld on the brief), Fisher
Taubenfeld LLP, New York, NY, for Plaintiff-Appellant.
JUSTIN A. G UILFOYLE (Amy J. Traub on the brief), Baker &
Hostetler LLP, New York, NY, for Defendant-Appellee.

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Seema Nanda, Solicitor of Labor, Jennifer S. Brand,
Associate Solicitor, Rachel Goldberg, Counsel for
Appellate Litigation, Erin M. Mohan, Senior Attorney,
Rose Meltzer & Shelley Trautman, Attorneys,
Washington, DC, for Amicus Curiae Acting Secretary of
Labor in Support of Plaintiff-Appellant.
PARK, Circuit Judge:
Orange Business Services, Inc. (“OBS”), a telecommunications
company, fired Senior Account Manager Patricia Haran after several
of the largest accounts she managed decided to stop using OBS’s
services. In the months before her termination, Haran had taken eight
and a half days of paid time off to care for her sick daughter and
mother. Haran sued OBS for interfering with her rights under the
Family and Medical Leave Act (“FMLA”) and retaliating against her
for taking leave. The district court (Ho, J.) granted summary
judgment to OBS.
We affirm. First, we conclude that Haran has not met her
burden of establishing an FMLA interference claim because her
supervisor’s criticisms about her job performance did not reference
her requests for leave, all of which he readily granted. Moreover,
Haran was not prejudiced by OBS’s failure to give her notice of her
FMLA rights upon learning of her daughter’s illness. Second, Haran
failed to show retaliation because OBS terminated her based on
performance, not her requests for leave. Finally, we affirm the district
court’s dismissal without prejudice of Haran’s related claim under the
New York City Human Rights Law.

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I. BACKGROUND
A. Factual Background
OBS is an international telecommunications company that
primarily sells products and services to multinational corporations.
Haran joined OBS as a Senior Account Manager in 2017 to manage
accounts headquartered outside the United States—“B-end”
accounts. Haran was successful in her role from 2017 to 2019.
Beginning in January 2020, she took on additional responsibility for
managing accounts headquartered in the United States—“A-end”
accounts.
In Haran’s performance review for the first half of 2020, her
supervisor, Adam Kimmick, stated that the year so far “was a
challenge for [her] in her new territory.” App’x at 223. He noted that
she had several challenges working with her new A-end accounts,
including issues with her projected revenue and miscommunications
with her team and with a client. Although those issues raised the
“concern that [Haran] may not be fully understanding feedback, or
has not had the time to ‘read between the lines’ regarding indirect or
non-verbal cues,” Kimmick nevertheless stated his expectation that,
based on her prior performance, Haran’s performance for the second
half of 2020 “will be on track to meet business objectives.” Id. As a
result, he gave Haran an overall rating of “fully successful” despite
the problems he described.
In October 2020, Haran’s daughter was diagnosed with a
possible tumor in her femur and required surgery. Haran told
Kimmick about this and asked “to take a few days off for [her]
daughter’s situation.” App’x at 259. Kimmick told Haran to take off

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the time she needed to “take care of [her] daughter.” Id. Over the
following three months, Haran requested leave intermittently and
took a total of seven and a half days off to care for her daughter.
Neither Haran nor Kimmick mentioned the FMLA, and Haran’s time
off was not treated as FMLA leave. Haran instead used some of her
paid time off days.
Around this time, Haran began receiving more scrutiny at
work. Kimmick began to check more regularly on the status of
assignments and deals. Much of this scrutiny involved Haran’s
management of the Pfizer account, which was one of OBS’s largest A-
end accounts. OBS wanted to execute a new master agreement with
Pfizer, but negotiations stalled because the parties reached an impasse
over contractual terms. Kimmick repeatedly asked Haran whether
she would be able to maintain the pace of her conversations with
Pfizer, and a coworker informed Haran that Kimmick would transfer
the Pfizer account to him if she was unable to participate in upcoming
conversations. Haran felt increased pressure due to Kimmick’s
comments and states that she took less time off to care for her
daughter than she otherwise would have. But nobody at OBS made
negative comments about her taking time off or discouraged her from
taking additional time off.
By the end of 2020, Haran met her performance objectives for
her B-end accounts as well as her annual revenue quota. But three of
her largest A-end accounts, including Pfizer, decided to stop using
OBS’s products. Those decisions were in the works before she took
responsibility for the accounts, and Pfizer’s decision to end its

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relationship with OBS was due to OBS’s refusal to accept Pfizer’s
requested contractual terms.
In Haran’s performance review for the second half of 2020,
Kimmick gave her an overall rating of “improvement needed.” He
wrote that, although Haran made some progress in building a
strategy with her team, she continued to face the same challenges that
he had noted in her performance review for the first half of 2020. In
particular, he pointed out that Haran’s strategy “has not resulted in
an increase[] in proposed services” and that “her pipeline velocity is
potentially not sufficient to meet her 2021 financial growth
objectives.” App’x at 235. According to Haran, in her performance
review meeting, Kimmick also told her that she had a “lack of focus.”
Id. at 323. Haran interpreted this comment to refer to her absences
due to her daughter’s illness. When Haran challenged Kimmick
about this comment, he told her that he meant that Haran should have
been more focused on building relationships with Pfizer to overcome
the legal impasse that resulted in losing the account.
During this period, Haran’s mother was diagnosed with
macular degeneration, and on February 12, 2021, Haran took one day
of paid time off to take her mother to a doctor’s appointment. Again,
neither Haran nor Kimmick mentioned the FMLA. Nor did Haran
report any negative response by Kimmick to her request for the day
off, and she conceded that she was paid for that day.
On February 24, 2021, OBS terminated Haran’s employment in
a meeting attended by Haran, Kimmick, and a representative from
human resources (“HR”). The HR representative first said that OBS
was terminating Haran for failing to meet her 2020 quota, but

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Kimmick clarified that OBS was terminating Haran because she was
not expected to meet her 2021 quota.
B. Procedural History
Haran sued OBS for interference and retaliation under the
FMLA and familial status discrimination under the New York City
Human Rights Law (“NYCHRL”). Following discovery, OBS moved
for summary judgment on all of Haran’s claims. On July 29, 2024, the
district court granted OBS’s motion and dismissed Haran’s FMLA
interference and retaliation claims. It also declined to exercise
supplemental jurisdiction over the remaining NYCHRL claim, which
it dismissed without prejudice.
II. DISCUSSION
Haran’s FMLA claims fail because, on the record before us, any
reasonable jury would be required to find that OBS terminated her
based on her job performance, not her request for or decision to take
leave. Kimmick’s criticism of Haran’s performance did not interfere
with the exercise of her rights under the FMLA. Nor did OBS’s
decision to terminate Haran constitute retaliation against her under
the FMLA. Finally, the district court did not abuse its discretion in
declining to exercise supplemental jurisdiction over Haran’s
NYCHRL claim.
A. Legal Standards
“This Court reviews a grant of summary judgment de novo,
resolving all ambiguities and drawing all reasonable inferences
against the moving party.” Graziadio v. Culinary Inst. of Am., 817 F.3d
415, 421 (2d Cir. 2016). “We will affirm the grant of summary

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judgment only where there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Id.
(quotation marks omitted).
The Family and Medical Leave Act, 29 U.S.C. §§ 2601 et seq.,
entitles “employees to take reasonable leave for medical
reasons . . . and for the care of a child, spouse, or parent who has a
serious health condition.” 29 U.S.C. § 2601(b)(2). The FMLA
“provides broad protections to employees who need to take time
away from work to deal with serious health conditions of the
employee or her family.” Woods v. START Treatment & Recovery Ctrs.,
Inc., 864 F.3d 158, 165-66 (2d Cir. 2017). As relevant here, the FMLA
entitles employees to take a total of 12 workweeks of leave during any
12-month period2 “[i]n order to care for the . . . daughter[] or parent,
of the employee, if such . . . daughter[] or parent has a serious health
condition.” 29 U.S.C. § 2612(a)(1)(C).
The FMLA and its related regulations impose several notice
requirements on both employees and employers. An employee must
first “provide at least verbal notice sufficient to make the employer
aware that the employee needs FMLA-qualifying leave, and the
anticipated timing and duration of the leave.” 29 C.F.R. § 825.302(c).
Once an employee requests FMLA leave or the employer “acquires
knowledge that an employee’s leave may be for an FMLA-qualifying
reason, the employer must notify the employee of the employee’s
2 FMLA leave is ordinarily unpaid, 29 U.S.C. § 2612(c), but an
“employee may elect, or an employer may require” the employee to
substitute accrued paid leave for any part of the 12-week period, id.
§ 2612(d)(2)(A).

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eligibility to take FMLA leave within five business days.” Id.
§ 825.300(b)(1). Employers must also provide written notice
“detailing the specific expectations and obligations of the employee
and explaining any consequences of a failure to meet these
obligations.” Id. § 825.300(c)(1).
The FMLA provides that “[i]t 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
U.S.C. § 2615(a)(1). This provision permits an employee to sue an
employer for certain FMLA violations. “FMLA claims come in at least
two varieties: interference and retaliation.” Woods, 864 F.3d at 166.
Generally, “an employee brings an ‘interference’ claim when her
employer has prevented or otherwise impeded the employee’s ability
to exercise rights under the FMLA.” Id. “‘Retaliation’ claims, on the
other hand, involve an employee actually exercising her rights . . . and
then being subjected to some adverse employment action by the
employer.” Id.
B. FMLA Interference
The FMLA prohibits employers from interfering with “the
exercise of or the attempt to exercise” any right under the FMLA. 29
U.S.C. § 2615(a)(1). The regulations explain that “[i]nterfering with
the exercise of an employee’s rights would include, for example, not
only refusing to authorize FMLA leave, but discouraging an
employee from using such leave.” 29 C.F.R. § 825.220(b). “[T]o
prevail on a claim of interference with her FMLA rights, a plaintiff
must establish: 1) that she is an eligible employee under the FMLA; 2)
that the defendant is an employer as defined by the FMLA; 3) that she

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was entitled to take leave under the FMLA; 4) that she gave notice to
the defendant of her intention to take leave; and 5) that she was
denied benefits to which she was entitled under the FMLA.”
Graziadio, 817 F.3d at 424.
The district court granted summary judgment to OBS based on
its conclusion that Haran failed to introduce sufficient evidence to
allow a jury to conclude that she was denied benefits under the
FMLA. On appeal, Haran argues that she introduced adequate
evidence of interference under discouragement and failure-to-
provide-notice theories. We disagree.
1. FMLA Discouragement
Haran contends that OBS discouraged her from taking more
leave by subjecting her to undue scrutiny and criticism of her job
performance after she requested leave. We conclude that this is
insufficient for an FMLA interference claim.
To start, it is undisputed that Haran requested seven and a half
days off to take care of her daughter, all of which Kimmick readily
granted. He encouraged her to “just take the time” she needed to care
for her daughter, granted her requests to take paid time off, and never
made negative comments about her taking days off.
Haran argues that she was nevertheless discouraged from
taking more time off. She states that Kimmick “warned her that she
would be removed from the Pfizer account” if she could not
participate in upcoming conversations with Pfizer; “checked up on
her to ascertain the status of her deals”; and “issued a negative
performance evaluation” citing her “lack of focus.” Appellant’s Br. at

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12. Haran does not argue that Kimmick ever mentioned her time off
or her daughter’s illness in connection with these warnings. In other
words, Haran’s argument is that she subjectively believed that her
employer’s criticism “could only relate to her absences due to her
daughter’s illness.” Id. at 12-13.3
The district court concluded that the absence of any allegation
that OBS referred to Haran’s leave is fatal to her discouragement
theory of FMLA interference. We agree. “Criticizing, even berating
an employee’s substantive job performance is not enough to assert a
claim for interference under a discouragement theory.” Hockenjos v.
Metro. Transp. Auth., No. 14-cv-1679, 2016 WL 2903269, at *9 (S.D.N.Y.
May 18, 2016), aff’d sub nom. Hockenjos v. MTA Metro-N. R.R., 695 F.
App’x 15 (2d Cir. 2017) (emphasis added). That is true even if the
employee subjectively feels pressure due to the criticism and decides
to take less leave than she otherwise would have. We have stated that
the “FMLA is not a shield to protect employees from legitimate
disciplinary action by their employers if their performance is lacking
in some manner unrelated to their FMLA leave.” Sista v. CDC Ixis N.
Am., Inc., 445 F.3d 161, 175 (2d Cir. 2006) (citation omitted).4
3 Haran briefly asserts that Kimmick “directly attributed [Haran’s
lack of focus] to her daughter’s illness and her intermittent leave of absence
in late 2020.” Reply Br. at 17. But the record does not support this
conclusory assertion, and the passage of Kimmick’s deposition that Haran
cites in support does not mention Haran at all, much less her lack of focus
or her daughter’s illness.
4 The cases Haran cites as examples of FMLA discouragement—none
of which is binding—are not to the contrary. Instead, they highlight what

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Here, Kimmick’s scrutiny and criticism of Haran were specific
to her job performance, particularly her management of the Pfizer
account, not her requests for leave. See supra at 10-11. In the absence
of any objective evidence that Kimmick’s criticism related to her
FMLA-eligible absences, Haran’s subjective feeling of pressure not to
take more time off due to her concerns about her performance is not
sufficient for an FMLA interference claim, and the district court
properly granted OBS’s motion for summary judgment on that claim.
2. Failure To Provide Notice
Haran also argues that OBS interfered with her rights by failing
to comply with the FMLA’s notice requirements. The regulations
promulgated under the FMLA provide that “[f]ailure to follow the
notice requirements set forth in this section may constitute an
interference with, restraint, or denial of the exercise of an employee’s
FMLA rights.” 29 C.F.R. § 825.300(e). But failure to follow these
is missing in her argument: a nexus between her requests for leave and the
criticism she received. See, e.g., Avila-Blum v. Casa de Cambio Delgado, Inc.,
519 F. Supp 2d 423, 428 (S.D.N.Y. 2007) (finding a disputed issue of material
fact regarding interference where plaintiff “allege[d] that on at least two
occasions, [defendant] told [plaintiff] outright that she would be fired if she
took a period of leave to undergo treatment for her medical condition”);
Ziccarelli v. NYU Hosp. Ctr., No. 15-cv-9307, 2021 WL 797668, at *5 (S.D.N.Y
Feb. 27, 2021) (denying summary judgment where employer called an
employee on FMLA leave and “urged him to come back sooner” than
scheduled); Preddie v. Bartholomew Consol. Sch. Corp., 799 F.3d 806, 818 (7th
Cir. 2015) (“One of the stated reasons for the non-renewal of [plaintiff’s]
contract was his absences—almost all of which appear[ed] to be related to
FMLA-qualifying conditions,” and the other reasons for the non-renewal
were also “tied logically and practically to those absences.”).

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notice requirements is actionable interference only if an employee
was prejudiced by this failure. The FMLA places on employees “the
burden of proving [a] real impairment of their rights and resulting
prejudice.” Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 90
(2002). So “an employee may [not] sue the employer for failure to
give notice . . . if that failure in no way affected the employee’s leave,
benefits, or reinstatement.” Sarno v. Douglas Elliman-Gibbons & Ives,
Inc., 183 F.3d 155, 162 (2d Cir. 1999).
Haran has not established a triable issue of fact as to whether
OBS’s failure to provide notice of her rights under the FMLA caused
her prejudice. Rather, the record shows that it did not. Haran does
not argue that she was unaware of her rights under the FMLA or
dispute that she received a notice of such rights when she joined OBS.
Nor does she argue that she would not have felt the pressure and
shied away from taking more days off if OBS specifically informed
her that she was eligible to take FMLA leave. Indeed, in a February
24, 2021, message to a coworker, Haran said that she “should have
taken family medical leave off but [she] didn’t want to let the
company down.” App’x at 251. At the end of the day, Haran took
the time off she requested without obstruction, and she does not claim
that she exhausted her allotted paid time off days. Any lack of notice
thus did not affect Haran’s “exercise of or attempt to exercise any
substantive right conferred by the [FMLA]” and cannot serve as the
basis for an FMLA interference claim. Sarno, 183 F.3d at 162.
C. FMLA Retaliation
We analyze an FMLA retaliation claim “under the burden-
shifting test set forth in McDonnell Douglas.” Graziadio, 817 F.3d at
429. First, an employee must establish a prima facie case by
establishing that 1) she “exercised rights protected under the FMLA”;

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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.” Id. (quotation marks omitted). “If the plaintiff makes out a
prima facie case, the defendant must demonstrate a legitimate, non-
discriminatory reason for its actions; if the defendant does so, the
plaintiff must then show that defendant’s proffered explanation is
pretextual.” Id.
The district court granted summary judgment to OBS on
Haran’s FMLA retaliation claim because Haran did not actually
exercise rights protected under the FMLA. The parties dispute
whether Haran “exercised rights protected under the FMLA” when
she told OBS about her daughter’s illness but took paid time off. We
need not reach that issue because even if Haran exercised FMLA
rights by taking paid time off and otherwise established her prima
facie case, she has not adduced evidence showing that OBS’s
legitimate, non-discriminatory explanation for terminating her was
pretextual. See Mandala v. NTT Data, Inc., 975 F.3d 202, 207 (2d Cir.
2020) (“[W]e are free to affirm a decision . . . on any grounds
supported in the record, even if it is not one on which the trial court
relied.”).
Haran’s retaliation claim relies on the same theory as her
interference claim—i.e., that Kimmick’s comments suggested that he
disapproved of Haran taking leave. She submits that a factfinder
could infer that she was terminated in retaliation for taking leave
because of Kimmick’s negative comments about her “lack of focus,”
“in conjunction with a negative performance review and on the heels
of scrutinizing and pressuring Ms. Haran to perform.” Reply Br. at
17-18. And she argues that OBS’s explanation for firing her—which

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echoed Kimmick’s concerns about Haran’s projected 2021 sales—was
pretextual.
But as explained above, the district court correctly rejected
Haran’s assertion that Kimmick’s criticisms related to her leave.
Haran argues that these criticisms were pretextual because her
allegedly deficient sales pipeline was caused by factors outside her
control and because she presented “a solid plan to increase her sales
funnel.” Id. at 18-19. But Haran’s “mere disagreement with her
supervisors’, colleagues’, and HR’s assessment of her work
performance is insufficient to raise a triable issue of fact regarding
pretext.” Rightnour v. Tiffany & Co., 354 F. Supp. 3d 511, 525 (S.D.N.Y.
2019) (cleaned up); see also Bentley-Ammonds v. Northwell Health, Inc.,
No. 21-835-cv, 2022 WL 893716, at *3 (2d Cir. Mar. 28, 2022) (summary
order) (“Generally, an employee may not create an issue of fact
supporting a finding of pretext by questioning an employer’s
assessment of her job performance.”) (citation omitted).
Nor does the temporal proximity between Haran’s leave and
her termination raise a triable issue regarding pretext. There was a
short gap between Haran taking one day off to care for her mother on
February 12 and her termination on February 24. But Haran took the
bulk of the leave at issue (7.5 out of 8.5 days) between October and
December of 2020, several months before her termination in February
2021. In any event, “[t]emporal proximity alone is insufficient to
defeat summary judgment at the pretext stage.” Zann Kwan v. Andalex
Grp. LLC, 737 F.3d 834, 847 (2d Cir. 2013). Moreover, Kimmick first
raised concerns about Haran’s ability to create and maintain a sales
pipeline with A-end accounts in July 2020, several months before
Haran took leave. So OBS did not proffer shifting or inconsistent
explanations for terminating Haran. Instead, OBS’s stated reason for

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terminating Haran tracked Kimmick’s criticism of Haran’s inability to
generate new revenue from her A-end accounts, which predated her
leave requests. “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); see also Weinstock v. Columbia Univ., 224 F.3d
33, 45 (2d Cir. 2000) (explaining that the “consistency of the viewpoint
expressed . . . further supports [employer’s] proffered
nondiscriminatory reason” for the adverse employment action).
We thus affirm the district court’s grant of summary judgment
for OBS on Haran’s FMLA retaliation claim.
D. NYCHRL Claim
Finally, the district court declined to exercise supplemental
jurisdiction over Haran’s NYCHRL claim, which it dismissed without
prejudice. “This Court reviews for abuse of discretion a district
court’s decision declining to exercise supplemental jurisdiction.”
Spiegel v. Schulmann, 604 F.3d 72, 78 (2d Cir. 2010). Haran does not
challenge the dismissal of her NYCHRL claim. In any event, we
conclude that the district court—having properly dismissed Haran’s
federal law claims—did not abuse its discretion by declining to
exercise supplemental jurisdiction over her NYCHRL claim. Cf. Kolari
v. N.Y.-Presbyterian Hosp., 455 F.3d 118, 124 (2d Cir. 2006).
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court.

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