Labor & Employment Law Daily Wrap Up, EMPLOYEE LEAVE—S.D.N.Y.: Former New York Times employee, fired for performance issues, cannot advance claims, (Aug 18, 2026)

By Todd Harrison, J.D.

Although the law prohibits employers from using FMLA leave as a motivating factor in the termination of an employee, it does not prohibit employers from merely acknowledging the fact of FMLA leave.

Granting summary judgment against the FMLA retaliation, interference and NYCHRL claims asserted by a former product manager for the New York Times, a federal district court in New York found that the termination did not give rise to an inference of retaliatory intent and, even if it did, the newspaper’s proffered reason for its decision was not pretextual. As to the employee’s claim for FMLA interference, the court found that it sounded entirely in retaliation and failed for the same reasons as that claim. His state-law claim failed for similar reasons, despite the less stringent requirements for showing pretext (Sparks v. The New York Times Co., No. 1:24-cv-00455 (JLR) (S.D.N.Y. Aug. 17, 2026)).

Hired as a product manager in September 2019, the employee in this case worked in a department called “Subscription Growth Mission.”

Performance rating. In 2022, the employee received a performance review rating that was lower than ones he had received in previous years: “partially meets expectations.” The main criticism of the employee’s performance was that he failed to take accountability for his team’s work.

PIP. Following this review, in late January or early February of 2023, the employee’s supervisor decided to place him on a performance improvement plan. On March 1, the employee told his supervisor for the first time that his wife was expecting a child, was due at the end of June, and that he intended to take intermittent leave around her due date and again over the end-of-year holidays. His supervisor extended his congratulations.

On March 3, the supervisor informed the employee that he was going to be placed on a PIP due to his “poor performance.” The PIP was set to run from March 17 to May 19. On May 22, the employee was informed that he had successfully completed the PIP. However, the completion was at least partially due to his supervisor’s “extensive guidance,” as the employee insisted that the two meet every day during the duration of the PIP to discuss his progress.

Although PIPs at the Times generally run for a 30-day period, the employee’s was scheduled to run longer to accommodate a “babymoon” he planned to take with his wife prior to her delivery date.

Parental leave. At the end of June, the employee took six weeks of fully paid parental leave, which lasted until August 15. His supervisor congratulated him and sent Times-branded infant apparel to the employee’s house.

SLAYER. One of the employee’s duties at the Times was a test project called SLAYER, an acronym for “Stay Longer At Your Existing Rate,” which was designed to compel subscribers to upgrade their subscriptions. The program was scheduled to launch in mid-July while the employee was on leave. He asserted that he had completed all of his SLAYER-related tasks prior to taking leave. However, the supervisor learned that the employee had failed to provide “clear initial guidance” to his team and the work that he did set up contained multiple shortcomings.

Ultimately, SLAYER did not launch until August 23, eight days after the employee had returned to work. At some point after launch, but before September 11, the supervisor noticed no meaningful difference in performance. It was discovered that users who clicked on the offer were directed to an “error” page. SLAYER was relaunched on September 18, after the employee and his team had corrected the issue. According to the supervisor’s estimates, 80 percent of the test audience had received the error message upon attempting to upgrade their subscriptions, leading to lost revenue of $140,000 during the three-week period the system was not operating correctly.

Termination. In late September, the supervisor and other higher-ups met to discuss the employee’s performance. Afterward, the supervisor decided to terminate the employee. The supervisor maintained notes leading up to this decision, which referenced the PIP and the employee’s paternity leave. The employee was fired on October 12, 2023.

Subsequently, the employee filed this lawsuit, alleging the Times interfered with his FMLA rights by firing him—because his termination both effectively denied him reinstatement to his pre-leave position and prevented him from taking the second half of his planned intermittent leave—and by the same action retaliated against him for exercising his FMLA rights. The Times moved for summary judgment against all claims.

FMLA retaliation. First, the court addressed the FMLA retaliation claim. The Times contended that the employee had failed to establish a prima facie case as he could not show that his termination raised an inference of discrimination. In addition, even if he were able to establish a prima facie case, he could not show that the Times’s reasoning for firing him was pretextual. The court agreed.

Temporal proximity. In arguing that his firing gave rise to an inference of retaliatory intent, the employee pointed to the “close temporal proximity” between the initial disclosure of his intent to take FMLA leave and the Times’s decision to place him on a PIP. However, explained the court, the PIP and the termination were two distinct occurrences, and it is well settled that PIPs in and of themselves are not adverse employment actions.

To the extent that the employee intended to suggest that the PIP was merely a step towards retaliatory termination, the court found that he had “disingenuously” recounted the sequence of events leading up to the PIP. Although he was partially accurate in arguing that he was placed on the PIP two days after informing his supervisor his wife was pregnant, the court noted that he omitted the fact that his supervisor decided to place him on a PIP at least one month earlier and began drafting the PIP around that time.

“Hands full.” Next, the employee pointed to a message his supervisor had sent to another colleague on August 25, 2023, in which he stated he had his “hands full” with the employee. The message was referenced without context, but was in response to discussions about hiring a former coworker who was interested in an open position. After some back and forth, the supervisor expressed his reticence about managing another worker at this time.

According to the employee, it was “reasonable to infer” that this comment was “due to retaliatory intent.” However, the court stated that “No reasonable jury could adopt this conclusory surmise.”

Even taking the statement in isolation as presented by the employee, nothing on its face connected to or even referred to the employee’s FMLA leave, observed the court, and therefore nothing on its face suggested retaliatory intent. No reasonable jury could infer that the supervisor’s comment evinced a plan to fire the employee for taking FMLA leave rather than a complaint that managing the employee was “time-consuming and onerous,” said the court.

Termination timing. Finally, with regard to the employee’s prima facie case for FMLA retaliation, he argued that the timing of his termination gave rise to retaliatory intent. The court was unpersuaded, finding any temporal proximity to be insufficient in light of evidence of the employee’s poor job performance, which began before he took FMLA leave, and which continued after his return.

Pretext. Even assuming the employee could establish a prima facie case for retaliation, the court found he could not point to any evidence of pretext. The justifications proffered by the Times for its decision were variations on the theme of poor performance and could not be characterized as shifting explanations, said the court.

As to the employee’s claim that his supervisor was an appropriate comparator because he stepped into the employee’s role while on leave, the court found this argument to be a nonstarter. The two were not similarly situated, explained the court, given one was the employee’s direct supervisor, and there was no evidence the supervisor had a history of performance issues.

Lastly, the employee pointed to the supervisor’s notes leading up to the termination decision in which he referenced the employee’s PIP and subsequent FMLA leave as evidence of pretext. The court was again unmoved.

Although the law prohibits the Times from using the employee’s FMLA leave as a motivating factor in its termination decision, it does not prohibit the Times from merely acknowledging the fact of his FMLA leave, and the employee failed to cite a single case holding that such acknowledgement is evidence of pretext sufficient to withstand summary judgment, said the court. Accordingly, summary judgment was granted against this claim.

FMLA interference. Next, the court considered the employee’s claim for FMLA interference. The court granted summary judgment against this claim, finding it sounded entirely in retaliation and, applying the McDonnell Douglas framework, failed for the same reasons as his FMLA retaliation claim.

NYCHRL discrimination. Finally, the court addressed the employee’s claim for caregiver discrimination under the NYCHRL. The employee again relied on the arguments set forth in his FMLA claims and the court again found that those arguments failed.

Although the NYCHRL contains a more liberal standard for establishing a prima facie case, and its pretext requirements are less stringent than some federal statutes, it still requires that discrimination be a motivating factor, explained the court, and no reasonable jury could find that the employee was treated less well than his colleagues based on his caregiver status.

Indeed, it appeared that the employee actually received special consideration based on his status, observed the court, noting that his PIP was extended to accommodate his “babymoon.” Further, he provided no comparator to demonstrate that he was treated less well than non-caregiver employees. Thus, the court granted the newspaper’s motion for summary judgment against this claim as well.

The case is No. 1:24-cv-00455 (JLR).

Judge: Rochon, J.

Attorneys: Matthew J. Blit (Levine & Blit) for Charles Michael Sparks. Kimberly Natalie Dobson (Littler Mendelson) for The New York Times Co.

Companies: The New York Times Co.

Cases: EmployeeLeave Discharge Discrimination Retaliation StateLawClaims NewYorkNews