Pineda v. ESPN, Inc. et al

Filing 14

ORDER. For the reasons set forth in the attached Initial Review Order, Pineda's Title VII claim for discrimination based on race, color, and national origin and her Section 1981 claim may proceed. The Clerk is directed to make arrangements for service as set forth in the attached. Pineda is directed to file a pro se appearance within 21 days.Pineda's Title VII sex discrimination, Rehabilitation Act, ADA, and FMLA claims are DISMISSED without prejudice. Any amended comp laint must be filed within 30 days. Pineda's Title VII claim for discrimination based on religion is DISMISSED with prejudice. The Clerk is directed to mail a copy of this Order and the attached Initial Review Order to Ms. Pineda at the address listed on the docket and mail a courtesy copy of each to her at the address listed for previous correspondence: The Hospital of Central Connecticut, 100 Grand Street, New Britain, CT 06050. Signed by Judge Michael P. Shea on 10/23/2018. (Barclay, Michael)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

RACHEL MARIE PINEDA,
Plaintiff,
v.
ESPN, INC. et al.,
Defendants.

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CASE NO. 3:18-cv-325 (MPS)

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INITIAL REVIEW ORDER
Plaintiff Rachel Marie Pineda (“Pineda”), a resident of Terryville, Connecticut, brings
this pro se action alleging that her employer, defendant ESPN, Inc. (“ESPN”), discriminated
against her on the basis of multiple protected characteristics and retaliated against her for
exercising her rights under the FMLA. Pineda sues ESPN and ESPN’s purported owners, The
Walt Disney Company (“Disney”) and Hearst Communications, Inc. (“Hearst”). Pineda asserts
causes of actions under (1) Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to
2000e-17; (2) 42 U.S.C. § 1981; (3) the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 to 796; (4)
the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101 to 12213; and (5) the
Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. §§ 2601 to 2654.
Under 28 U.S.C. § 1915(e)(2)(B)(ii), the Court must evaluate plaintiff’s complaint and
dismiss the case if it “fails to state a claim on which relief may be granted.” The Court will not
accept as true conclusory allegations and may allow the case to proceed only if the complaint
pleads “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Nevertheless,
it is well established that “[p]ro se complaints must be construed liberally and interpreted to raise
the strongest arguments that they suggest.” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir.
2013) (citation and internal quotation marks omitted). At this stage, “a court may consider only
the complaint, any written instrument attached to the complaint as an exhibit, any statements or
documents incorporated in it by reference, and any document upon which the complaint heavily
relies.” In re Thelen LLP, 736 F.3d 213, 219 (2d Cir. 2013) (citation omitted).
I.

Title VII Claims

In Pineda’s first cause of action under Title VII, 42 U.S.C. §§ 2000e to 2000e-17, Pineda
claims that she was discriminated against on the basis of multiple protected classes, specifically:
her race (white Hispanic); color (brown); religion (Catholic); sex (female); and national origin
(Mexican/Spanish/Native American/Tejas). (ECF No. 2 at 3.) Under Title VII, “a plaintiff must
plausibly allege that (1) the employer took adverse action against [her] and (2) his race, color,
religion, sex, or national origin was a motivating factor in the employment decision.” Vega v.
Hempstead Union Free Sch. Dist., 801 F.3d 72, 86 (2d Cir. 2015).
For the first element, “[a] plaintiff sustains an adverse employment action if he or she
endures a materially adverse change in the terms and conditions of employment.” Id. at 85
(citation omitted). “Examples of materially adverse changes include termination of employment,
a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of
benefits, significantly diminished material responsibilities, or other indices unique to a particular
situation.” Id.
For the second element, “a plaintiff must allege that the employer took adverse action

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against her at least in part for a discriminatory reason.” Id. at 87. “[S]he may do so by alleging
facts that directly show discrimination or facts that indirectly show discrimination by giving rise
to a plausible inference of discrimination.” Id. “[I]n making the plausibility determination, the
court is to draw on its judicial experience and common sense.” Id. (quotation marks omitted).
The Second Circuit “generally looks to four factors to determine whether a remark made in the
workplace is probative of discriminatory motive: (1) who made the remark (i.e., a decisionmaker, a supervisor, or a low-level co-worker); (2) when the remark was made in relation to the
employment decision at issue; (3) the content of the remark (i.e., whether a reasonable juror
could view the remark as discriminatory); and (4) the context in which the remark was made
(i.e., whether it was related to the decision-making process).” Shaw v. McDonald, 715 F. App’x
60, 61 (2d Cir. 2018) (citation omitted).
When her complaint is construed liberally, Pineda alleges a claim for Title VII
employment discrimination on the basis of her race, color, and national origin. Pineda alleges an
adverse employment action, specifically that she was terminated from ESPN on April 11, 2016
for purportedly not successfully completing an ESPN “performance improvement program” (the
“PIP”). (ECF No. 2 at 8; see id. at 16, ¶ 19.)1 Pineda’s charge relies on “actions or remarks

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Pineda’s charge appears to have been filed with the Connecticut Commission on Human
Rights and Opportunities (“CHRO”) on September 7, 2016. (See ECF No. 2 at 12.)
Accordingly, the only other action by ESPN she alleges that does not appear to be time-barred is
her placement on the PIP in November 2015. (ECF No. 2 at 15, ¶ 12) See Richardson v.
Hartford Pub. Library, 404 F. App’x 516, 518 (2d Cir. 2010) (holding that 300-day statute of
limitation applies to charges initially filed with CHRO).) However, Pineda does not allege
sufficient facts about the PIP to show that her placement constituted a “materially adverse
change in the terms and conditions of [her] employment,” or otherwise allege facts in connection
with her placement giving rise to a plausible inference of discrimination on the basis of a
protected class under Title VII.
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made by decisionmakers that could be viewed as reflecting a discriminatory animus.” Chertkova
v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 91 (2d Cir. 1996). At least one such remark
appears to state a claim under Title VII. The affidavit attached to Pineda’s complaint states that
her manager, Valerie Gordon, told Pineda to “go to Deportes” (ESPN’s Spanish-language
speaking network) with her story ideas involving the Hispanic community, which Pineda had
pitched as part of her tenure on the PIP. (ECF No. 2 at 15–16, ¶ 15.) This statement meets all
four factors described in Shaw, as it was made by Pineda’s direct supervisor, was made during
the probationary PIP period before her termination, could be read to suggest hostility to Hispanic
employees by suggesting they work for Spanish-speaking networks, and was directly connected
to Pineda’s performance during her probationary period. Accordingly, because this statement
gives rise to an inference of discriminatory intent, Pineda’s claim of discrimination due to her
race, color and national origin may proceed at this time. See Vill. of Freeport v. Barrella, 814
F.3d 594, 607 (2d Cir. 2016) (holding that discrimination based on Hispanic ethnicity constituted
race discrimination under Title VII, but “may also be cognizable under the rubric of nationalorigin discrimination, depending on the particular facts of each case”).
Pineda does not state a Title VII claim for employment discrimination on the basis of sex.
Pineda alleges several comments made about her status as a new mother. See 42 U.S.C. § 2000e
(defining the terms “because of sex” or “on the basis of sex” to include “because of or on the
basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy,
childbirth, or related medical conditions shall be treated the same for all employment-related
purposes.”). However, the complaint does not allege when those statements were made, and
some of these allegations do not even identify the speaker. (ECF No. 2 at 9 (allegation that a

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supervisor told Pineda she “lacked a sense of urgency” towards one of her projects when Pineda
complained about being electroshocked after being forced to use a breast pump in a nearby
bathroom); ECF No. 2 at 10 (unidentified colleagues told Pineda she had “Mom Brain”); ECF 2
at 8 (an identified individual in Human Resources had told Pineda at unspecified time that
“breastfeeding mothers . . . need to be watched” or else it “can’t be known what [they] are
actually doing.”).) More importantly, Pineda does not plausibly allege that these statements were
in any way connected to her termination in April 2016. Accordingly, even construing Pineda’s
pro se complaint liberally, Pineda’s claim for employment discrimination on the basis of sex
fails. However, Pineda may within 30 days file an amended complaint that attempts to replead
this claim to rectify the above defects.
Pineda also does not state a claim for Title VII employment discrimination on the basis of
her religion, as her only allegation concerning her Catholic beliefs is that she was “physically
shunned on campus by individuals involved with Freemasonry and/or Scientology.” (ECF No. 2
at 9.) This allegation is conclusory and thus inadequate to give rise to a plausible inference of
discrimination.
II.

Section 1981 Claim

Pineda’s second cause of action alleges a violation of 42 U.S.C. § 1981 for intentional
employment discrimination on the basis of race. “Most of the core substantive standards that
apply to claims of discriminatory conduct in violation of Title VII are also applicable to claims
of discrimination in employment in violation of § 1981 . . . .” Patterson v. Cty. of Oneida, N.Y.,
375 F.3d 206, 224 (2d Cir. 2004). However, unlike Title VII, “a plaintiff pursuing a claimed
violation of § 1981 . . . must show that the discrimination was intentional.” Id. at 226. I find

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the same comment supporting an inference of discriminatory intent with respect to Pineda’s Title
VII claims supports an inference of intentional discrimination under 42 U.S.C. § 1981. See
Raymond v. City of New York, 317 F. Supp. 3d 746, 764 (S.D.N.Y. 2018) (applying same fourpart test to determine whether a comment evidences an intent to discriminate under § 1981); see
Annuity, Welfare & Apprenticeship Skill Improvement & Safety Funds of the Int'l Union of
Operating Engineers Local 15, 15a, 15c & 15d, AFL-CIO v. Tightseal Constr. Inc., No. 17 CIV.
3670 (KPF), 2018 WL 3910827, at *7 (S.D.N.Y. Aug. 14, 2018) (noting that statements of bias
by decision-maker responsible for adverse action sufficiently alleges a causal connection
between race and the adverse action). Accordingly, Pineda’s Section 1981 claim may proceed.
III.

Rehabilitation Act/ADA Claims

I analyze Pineda’s third and fourth claims under the Rehabilitation Act and ADA in
tandem because they impose largely identical requirements. Rodriguez v. City of New York, 197
F.3d 611, 618 (2d Cir. 1999) (“Because Section 504 of the Rehabilitation Act and the ADA
impose identical requirements, we consider these claims in tandem.”).
Pineda attempts to state claims for both employment discrimination and failure to
accommodate. To establish a prima facie case of employment discrimination under the ADA, a
plaintiff must show that: “(1) his employer is subject to the ADA; (2) he was disabled within the
meaning of the ADA; (3) he was otherwise qualified to perform the essential functions of his job,
with or without reasonable accommodation; and (4) he suffered adverse employment action
because of his disability.” McMillan v. City of New York, 711 F.3d 120, 125 (2d Cir. 2013). In
addition, “[a] plaintiff states a prima facie failure to accommodate claim by demonstrating that
(1) plaintiff is a person with a disability under the meaning of the ADA; (2) an employer covered

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by the statute had notice of his disability; (3) with reasonable accommodation, plaintiff could
perform the essential functions of the job at issue; and (4) the employer has refused to make such
accommodations.” Id. at 125–26 (emphasis added).
Pineda does not state a claim for employment discrimination or accommodation under the
ADA or Rehabilitation Act, as she does not adequately allege that she suffers from a qualifying
disability. The ADA defines “disability” with respect to an individual as “(A) a physical or
mental impairment that substantially limits one or more major life activities of such individual;
(B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42
U.S.C. § 12102(A)(1); 29 U.S.C. § 705(20)(B) (adopting ADA definition of disability in
Rehabilitation Act). At the motion to dismiss stage, plaintiff must allege that she suffers “from a
physical or mental impairment, which ‘substantially limit[s]’ an activity that ‘constitutes a major
life activity under the ADA.’” Telemaque v. Marriott Int’l, Inc., No. 14 CIV. 6336 (ER), 2016
WL 406384, at *6 (S.D.N.Y. Feb. 2, 2016). Pineda alleges that she has “rape-related PTSD,”
which is a mental impairment. However, Pineda does not allege anywhere in her complaint or
CHRO charge that her PTSD “substantially limits” her in any major life activity, such as
“working.” See 42 U.S.C. § 12102(2)(A) (defining major life activities to include “working”).
Although Pineda obliquely references “PTSD symptoms” and that certain actions by ESPN
“trigger[ed]” her PTSD, she does not specify what symptoms she experienced and how those
symptoms impacted her ability to perform her job as an Associate Producer. (ECF No. 2 at 8, 15
¶ 10) See Cain v. Mandl Coll. of Allied Health, Mandl Coll., Inc., No. 14 CIV. 1729 (ER), 2016
WL 5799407, at *7 (S.D.N.Y. Sept. 30, 2016) (dismissing pro se complaint that contained “no
allegations as to how Plaintiff's PTSD ‘substantially limits’ one or more of her ‘major life

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activities.’”). Moreover, “[Pineda] does not provide any factual support detailing the frequency,
duration, or severity of any limitations on a life activity caused by her PTSD.” Cain v. Mandl
Coll. of Allied Health, No. 14 CIV. 1729 (ER), 2017 WL 2709743, at *4 (S.D.N.Y. June 22,
2017), appeal dismissed sub nom. Cain v. Weiner, No. 17-2153, 2017 WL 6880083 (2d Cir.
Nov. 8, 2017).
Because Pineda has not alleged a qualifying disability, she also has not alleged that she
has a “record of” a qualifying disability. 42 U.S.C. § 12102(A)(1); Kelly v. New York State
Office of Mental Health, 200 F. Supp. 3d 378, 395 (E.D.N.Y. 2016) (holding plaintiff’s “failure
to plausibly allege a substantial limitation to a major life activity . . . precludes her from asserting
that she has a record of disability”). Nor does Pineda adequately allege that ESPN perceived her
as having a disability, as Pineda herself alleges that ESPN required her to take only a short-term
medical leave when she disclosed her PTSD, after which she returned to work. (ECF No. 2 at 8,
15, ¶¶ 13–14.) See Kelly, 200 F. Supp. 3d at 395 (holding that plaintiff had not adequately
pleaded that she was regarded as having a disability where, based on the pleadings, defendant
appears to have perceived that plaintiff had only a transitory impairment).
Accordingly, because Pineda fails to allege how her PTSD substantially limited a major
life activity, she does not allege a qualifying disability under the ADA or Rehabilitation Act.
Her third and fourth counts are DISMISSED without prejudice, but the Court will permit
plaintiff to file an amended complaint within 30 days that repleads her ADA and Rehabilitation
Act claims to address the flaws identified above. See Wanamaker v. Westport Bd. of Educ., 899
F. Supp. 2d 193, 211–12 (D. Conn. 2012) (dismissing claim with leave to amend complaint
where “plaintiff failed to allege that her transverse myelitis limit[ed] a major life activity and that

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any impairment as a result of her transverse myelitis was not for a short period of time”).2
IV.

FMLA Claim

Pineda’s fourth and final claim is for violation of the Family and Medical Leave Act of
1993 (“FMLA”) for employment discrimination on the basis of leave for qualified medical or
family reasons. The Second Circuit recognizes two types of FMLA claims—“interference”
claims and “retaliation” claims. See Potenza v. City of New York, 365 F.3d 165, 168 (2d Cir.
2004) (per curiam). Pineda’s claim sounds in retaliation. (See ECF No. 2 at 8 (“I believe I was
retaliated against and wrongly terminated based upon . . . [my] use of FMLA.”).)
To state a claim for FMLA retaliation, plaintiff “must plausibly allege that [s]he
exercised rights protected by the FMLA and that [s]he suffered an adverse employment action
under circumstances giving rise to an inference of retaliatory intent.” Fernandez v. Windmill
Distrib. Co., 159 F. Supp. 3d 351, 365 (S.D.N.Y. 2016), reconsideration denied, No. 12-CV1968, 2016 WL 4399325 (S.D.N.Y. Aug. 17, 2016). An adverse employment action in this
context is “any action by the employer that is likely to dissuade a reasonable worker in the
plaintiff’s position from exercising his legal rights.” Id. (citing Millea v. Metro–N.R. Co., 658
F.3d 154, 164 (2d Cir. 2011).)
Pineda clearly pleads that she exercised rights protected by the FMLA, namely, by taking

Pineda’s employment discrimination claim should also specify whether Pineda was
otherwise qualified to perform the essential functions of her job as an associate producer, with or
without reasonable accommodations, and what adverse employment actions she believes ESPN
took against her because of her disability. In addition, her accommodations claim should specify
whether she could perform the essential functions of her job with reasonable accommodations,
what those accommodations are, and whether ESPN refused to make them.
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FMLA leave in June 2015 following surgery. (ECF No. 2 at 9.)3 Pineda’s complaint sets forth
three actions that might qualify as “adverse employment actions.” First, Pineda alleges that her
boss refused to give her an extension of a deadline due to her surgery. (ECF No. 2 at 9–10, 15, ¶
11.) “[P]etty slights, minor annoyances, and simple lack of good manners will not give rise to
actionable retaliation claims,” and the lack of an extension of one of Pineda’s work assignment
does not rise to the level of an adverse employment action. Millea, 658 F.3d at 165 (internal
quotation marks omitted).

Second, Pineda alleges that she received a “Falling behind”

performance evaluation in October 2015, in part because of her missed assignment. (ECF No. at
15, ¶ 12.) Third and finally, Pineda alleges that she was terminated on April 11, 2016 for failing
to complete the PIP. (ECF No. 2 at 16, ¶ 19.) Both Pineda’s performance evaluation and
termination are sufficiently serious to rise to an “adverse employment action” on a retaliation
claim. Millea, 658 F.3d at 165 (noting that a “formal reprimand issued by an employer is not a
‘petty slight,’ ‘minor annoyance,’ or ‘trivial’ punishment”).
Nonetheless, Pineda does not allege that facts giving rise to an inference that the adverse
employment action resulted from Pineda’s decision to exercise her FMLA rights. Pineda’s
evaluation occurred 4 months after Pineda took FMLA leave, and her termination occurred
almost 9 months after. See Fernandez, 159 F. Supp. 3d 351, 365 (S.D.N.Y. 2016) (holding that
two-month gap between return to work and termination insufficient to raise inference of
retaliatory intent where “Fernandez pleads no facts giving rise to retaliatory intent during that

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Pineda also alleges that she took maternity leave between October 2014 and February
2015, but does not allege that it was FMLA leave (as opposed to company leave) or that she
intended to take de facto FMLA leave. See McNamara v. Trinity Coll., No. 3:12CV363 JBA,
2013 WL 164221, at *4 (D. Conn. Jan. 15, 2013) (permitting FMLA retaliation claim where
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two month period, during which time Fernandez was permitted to work as usual”). Pineda does
not point to any other evidence of discriminatory intent under the FMLA. Rather, Pineda’s own
allegations suggest that both adverse actions occurred for non-discriminatory, performance-based
reasons. Specifically, Pineda’s CHRO affidavit states that she received a poor performance
review in part because she failed to meet an assignment deadline after her boss refused an
extension, not because she originally took FMLA leave for surgery, and further that she was
terminated because she failed to complete the PIP. (ECF No. 2 at 15, ¶ 12, 16, ¶ 16.) Neither
alleges “adverse employment action under circumstances giving rise to retaliatory intent” and
thus her FMLA claim is DISMISSED without prejudice. Pineda may replead her FMLA claim
in any amended complaint she files.
Accordingly, Pineda’s Title VII sex discrimination, Rehabilitation Act, ADA, and FMLA
claims are DISMISSED without prejudice. These claims will be dismissed with prejudice within
30 days unless Pineda files an amended complaint that rectifies the defects identified herein.
Pineda’s Title VII claim for discrimination based on religion is DISMISSED with prejudice.
Pineda’s Title VII claim for discrimination based on race, color, and national origin and
her Section 1981 claim may proceed. The Clerk shall verify the corporate addresses of the
defendants, mail a waiver of service of process request packet containing the complaint to them
at the confirmed addresses within twenty-one (21) days of this Order, and report to the court on
the status of the waiver request on the thirty-fifth (35) day after mailing. If the defendant fails to
return the waiver request, the Clerk shall make arrangements for in-person service by the U.S.
Marshals service, and the defendants shall be required to pay the costs of such service in

plaintiff plausibly alleged that he took de facto FMLA leave).
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accordance with Fed. R. Civ. P. 4(d). Defendants shall file their response to the complaint, either
an answer or motion to dismiss, within thirty (30) days from the date the notice of lawsuit and
waiver of service of summons forms are mailed to him. If they choose to file an answer, they
shall admit or deny the allegations and respond to the cognizable claims recited above. They
may also include any and all additional defenses permitted by the Federal Rules.
SO ORDERED this 23rd day of October 2018 at Hartford, Connecticut.
/s/
Michael P. Shea
United States District Judge

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