Grenion v. Farmers Insurance Group, Inc. et al

Filing 15

MEMORANDUM & ORDER re: 6 Partial Motion to Dismiss is GRANTED and Plaintiff's race and gender-based claims are DISMISSED WITHOUT PREJUDICE with leave to file an Amended Complaint. Any Amended Complaint must be received on or before July 31, 2013 or these claims will be dismissed with prejudice. Ordered by Judge Joanna Seybert on 7/11/2013. (Nohs, Bonnie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
BRYON GRENION,
Plaintiff,
-against-

MEMORANDUM & ORDER
12-CV-3219(JS)(GRB)

FARMERS INSURANCE EXCHANGE,
Defendant.
---------------------------------------X
APPEARANCES
For Plaintiff:
Gregory Scot Lisi, Esq.
Susan J. Deith, Esq.
Forchelli Curto Deegan Schwartz Mineo &
Terrana, LLP
333 Earle Ovington Blvd, Suite 1010
Uniondale, NY 11553
For Defendant:

David W. Garland, Esq.
Jill Barbarino, Esq.
250 Park Avenue
New York, NY 10177

SEYBERT, District Judge:
Plaintiff

commenced

this

action

on

June

28,

2012

against Defendant1 asserting claims under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”),
Article 15 of the New York State Human Rights Law § 290 et seq.
(“NYSHRL”),

the

Americans

with

Disabilities

Act,

42

U.S.C.

§ 12101 et seq. (“ADA”), and the Family and Medical Leave Act of
1993, 29 U.S.C. § 2615 (the “FMLA”).

Originally, Plaintiff commenced this action against various
other defendants as well. The parties, however, stipulated to
dismissal of those defendants. (See Docket Entry 5.)
1

Presently
Farmers

Insurance

pending

before

Exchange’s

the

Court

(“Defendant”)

is

Defendant

partial

motion

dismiss Plaintiff Bryon Grenion’s (“Plaintiff”) Complaint.

to
For

the following reasons, Defendant’s motion is GRANTED.
BACKGROUND2
Plaintiff,

an

African-American

male,

worked

for

Defendant as a senior support specialist from August 8, 1995
until July 8, 2009.

(Compl. ¶ 4.)

On June 11, 2009, Plaintiff

took sick, personal, and vacation days due to pain and swelling
in his calf.

(Compl. ¶ 7.)

The pain did not subside, however,

and on June 22, 2009, Plaintiff was diagnosed with Wegener’s
disease, “a disease of the kidney.”

(Compl. ¶ 7.)

As a result,

Plaintiff applied for leave under the Family Medical Leave Act
(“FMLA”), which he was granted for the period of June 22, 2009
through July 7, 2009.
Plaintiff

(Compl. Ex. A.)
alleges

that

he

kept

Defendant

fully

apprised of his condition during his absence.

In particular,

Plaintiff

Kathy

kept

(“Tantillo”),
(Compl. ¶ 8.)

in
whom

contact
he

with

describes

his
as

manager,
a

“female,

Tantillo

Caucasian.”

On July 9, 2009, however, Plaintiff claims that

he called Tantillo only to be informed that his employment had
been terminated on July 8, 2009.

(Compl. ¶ 10.)

Plaintiff then

The following facts are taken from Plaintiff’s Complaint and
are presumed to be true for the purposes of this Memorandum and
Order.
2

2

called the Human Resources Manager at Century 21 Insurance3, a
“female, Caucasian,” named Traci Cerasaro (“Cerasaro”).
¶ 11.)

(Compl.

Cerasaro stated that Plaintiff’s employment had been

terminated due to job abandonment.

(Compl. ¶ 11.)

Plaintiff

further complained to Harris J. Yale (“Yale”), a Caucasian male
at AIG Code of Conduct, regarding his termination.
¶ 13.)

Plaintiff’s

employment

was

not

reinstated,

(Compl.
however.

(Compl. ¶ 13.)
According

to

Plaintiff,

Defendant

discriminated

against him on the basis of his disability, his race, and/or his
gender.

(Compl. ¶ 15.)
DISCUSSION
Defendant

moves

to

dismiss

Plaintiff’s

race

and

gender-based discrimination claims (the First and Second Causes
of

Action)

because

the

Complaint

relief above the speculative level.
Complaint

is

allegations.

sufficient,

but

does

not

raise

a

right

to

Plaintiff responds that the

also

seeks

to

clarify

his

The Court will first address the applicable legal

standard before turning to Defendant’s motion and Plaintiff’s
request, in that order.
In addition, the Court notes that Defendant does not
move

to

dismiss

Plaintiff’s

FMLA

and

disability-based

claims

The parties do not clarify how Defendant and the additional
companies originally named in the Complaint are related.
3

3

(the Third, Fourth, and Fifth Causes of Action), and accordingly
such claims survive.
I.

Standard of Review
In

Court

deciding

applies

a

Rule

12(b)(6)

“plausibility

“[t]wo working principles.”

motions

standard,”

to

which

dismiss,
is

guided

the
by

Ashcroft v. Iqbal, 556 U.S. 662,

678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009); accord Harris v.
Mills, 572 F.3d 66, 71-72 (2d Cir. 2009).
Court

must

accept

“inapplicable

all

to

allegations

legal

as

First, although the

true,

conclusions;”

this

thus,

“tenet”

is

“[t]hreadbare

recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”
accord Harris, 572 F.3d at 72.

Iqbal, 556 U.S. at 678;

Second, only complaints that

state a “plausible claim for relief” can survive a Rule 12(b)(6)
motion to dismiss.

Iqbal, 556 U.S. at 679.

Determining whether

a complaint does so is “a context-specific task that requires
the

reviewing

common sense.”

court

to

draw

on

its

judicial

experience

and

Id.; accord Harris, 572 F.3d at 72.

In deciding a motion to dismiss, the Court is confined
to “the allegations contained within the four corners of [the]
complaint.”

Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67,

71 (2d Cir. 1998).
any

document

documents

This has been interpreted broadly to include

attached

to

the

Complaint,

incorporated

in

the

Complaint

4

any
by

statements
reference,

or
any

document on which the Complaint heavily relies, and anything of
which

judicial

notice

may

be

taken.

See

Chambers

v.

Time

Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002) (citations
omitted); Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir.
1991).
II.

Defendant’s Motion
Under Title VII, it is unlawful for an employer “to

fail

or

refuse

to

hire

or

to

discharge

any

individual,

or

otherwise to discriminate against any individual with respect to
his

compensation,

terms,

conditions,

or

privileges

of

employment, because of such individual’s race, color, religion,
sex,

or

national

origin.”

42

U.S.C.

§

2000e–2(a)(1).

To

establish a prima facie case of discrimination, a plaintiff must
show that:
qualified

for

employment
occurred

(1) he is a member of a protected class; (2) he was
the

action;

under

discrimination.

position;
and

(4)

circumstances

(3)
the
giving

he

suffered

adverse
rise

an

employment
to

an

adverse
action

inference

of

See Feingold v. New York, 366 F.3d 138, 152 (2d

Cir. 2004); see also McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
The Supreme Court has held, however, that a plaintiff
need not plead the elements of a prima facie case in his or her
complaint.

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510, 122

S. Ct. 992, 152 L. Ed. 2d 1 (2002) (“The prima facie case under
5

McDonnell

Douglas

.

.

pleading requirement.”).
“a

short

and

plain

.

is

an

evidentiary

standard,

not

a

Rather, a complaint need only contain

statement

of

the

claim

showing

that

the

pleader is entitled to relief,” and “giv[ing] the defendant fair
notice of what the plaintiff’s claim is and the grounds upon
which it rests.”

Id. at 512 (quoting FED. R. CIV. P. 8(a)(2));

Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 2 L. Ed. 2d 80
(1957)) (internal quotation marks omitted).

Thus, reconciling

Swierkiewicz with the standards set out in Iqbal and Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed.2d
929 (2007), although “a complaint need not establish a prima
facie case of employment discrimination to survive a motion to
dismiss . . . , the claim must be facially plausible and must
give fair notice to the defendants of the basis for the claim.”
Barbosa v. Continuum Health Partners, Inc., 716 F. Supp. 2d 210,
215

(S.D.N.Y.

2010)

(internal

quotation

marks

and

citation

omitted); accord King v. U.S. Sec. Assocs., Inc., No. 11-CV4457, 2012 WL 4122025, at *4 (S.D.N.Y. Aug. 22, 2012), adopted
by 2012 WL 4327396 (S.D.N.Y. Sept. 18, 2012).

“A claim has

facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”

Iqbal, 556

U.S. at 678; accord Turkman v. Ashcroft, 589 F.3d 542, 546 (2d
Cir. 2009).

“For this conclusion to be drawn, a plaintiff must
6

allege facts that allow the court in substance to infer elements
of

a

prima

facie

case.”

King,

2012

WL

4122025,

at

*5

(collecting cases).
The Court finds that Plaintiff has failed to do that
here.

Plaintiff alleges his own race and gender, the race and

gender of those with whom he communicated regarding his leave,
and

that

Defendant

employment.

denied

him

leave

and

terminated

his

The Complaint, however, fails to assert any factual

allegation connecting denial of leave and termination of his
employment with his race and gender.

See Payne v. Malemathew,

No. 09-CV-1634, 2011 WL 3043920, at *2 (S.D.N.Y. July 22, 2011)
(dismissing Title VII claim because “[n]o effort has been made
to

tie

[plaintiff’s]

termination

to

his

religion,

color

or

national origin”); Dean v. Westchester Cnty. Dist. Attorney’s
Office, 119 F. Supp. 2d 424, 430 (S.D.N.Y. 2000) (“Although
plaintiff is a woman who was disciplined by male supervisors,
she fails to indicate how their respective genders played any
significant role in their working relationship.”).
Plaintiff simply alleges, in conclusory fashion, that
he was discriminated against because of his race and/or gender.
This is insufficient.

See, e.g., Reyes v. Fairfield Props., 661

F. Supp. 2d 249, 269 (E.D.N.Y. 2009) (“Even liberally construed,
plaintiffs’
race,

other

complaint
than

a

fails

to

allege

conclusory
7

any

statement

facts
that

relating

to

defendants

retaliated and discriminated against plaintiffs based on their
being African-American, which is insufficient under Iqbal.”);
see also Clarke v. Roslyn Union Sch. Dist., No. 11-CV-2957, 2012
WL 2916759, at *6 (E.D.N.Y. July 17, 2012) (collecting cases).
Accordingly,

Plaintiff’s

race

and

gender-based

discrimination claims are DISMISSED.
III.

Leave to Replead
Plaintiff’s opposition brief argues that, if the Court

finds his claims to be too speculative, he should be permitted
to amend the Complaint.
7.)

(Pl.’s Opp. Br., Docket Entry 12, at 5-

In support, Plaintiff also files an affidavit, seeking to

“clarify” his allegations.

(See Docket Entry 11, Ex. A.)

Plaintiff has not formally moved for leave to replead,
and the Court may not appropriately consider his affidavit at
the motion to dismiss stage.

See supra p. 4.

However, the

Second Circuit has stated that “[w]hen a motion to dismiss is
granted,

the

complaint.”

usual

practice

is

to

grant

leave

to

amend

the

Hayden v. Cnty. of Nassau, 180 F.3d 42, 53 (2d Cir.

1999); see also FED. R. CIV. P. 15(a)(2) (“The court should freely
give leave [to amend] when justice so requires.”).
bare-bones

nature

of

the

Complaint,

there

is,

Given the

theoretically,

some “indication that a valid claim might be stated.”

Cuoco v.

Mortisugu, 222 F.3d 99, 112 (2d Cir. 2000) (internal quotation

8

marks

and

citation

omitted).

Accordingly,

the

Court

GRANTS

Plaintiff leave to replead.
CONCLUSION
Thus,
GRANTED,
DISMISSED
Complaint.

and

Defendant’s

Plaintiff’s

WITHOUT

partial

race

PREJUDICE

and

with

motion

to

gender-based

leave

to

file

dismiss

is

claims

are

an

Amended

Any Amended Complaint must be received on or before

July 31, 2013 or the aforementioned claims will be dismissed
with prejudice.
SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

July
12 , 2013
Central Islip, NY

9