Garay v. Novartis Pharmaceuticals Corp. et al

Filing 39

MEMORANDUM AND ORDER re: 17 Motion for Judgment on the Pleadings is GRANTED and Plaintiff's Complaint is DISMISSED WITH PREJUDICE. The Clerk of the Court is directed to CLOSE this case. Ordered by Judge Joanna Seybert on 9/3/2013. (C/M Plaintiff) (Nohs, Bonnie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------X
JAMIE GARAY,
Plaintiff,
-against-

MEMORANDUM & ORDER
12-CV-4988(JS)(GRB)

NOVARTIS PHARMACEUTICALS, CORP.,
RICHARD SCATONI and WILLIAM SHAUN
RILEY, in their official and
individual capacities,
Defendants.
-------------------------------------X
APPEARANCES
For Plaintiff:
Jamie Garay, pro se
16 Hallock Meadow Drive
Stony Brook, NY 11790
For Defendants:

Edward Cerasia, II, Esq.
Aaron Warshaw, Esq.
Ogletree Deakins Nash Smoak & Stewart, P.C.
1745 Broadway, 22nd Floor
New York, NY 10019

SEYBERT, District Judge
Plaintiff

Jamie

Garay

(“Plaintiff”)

commenced

this

action pro se on October 5, 2012 against Defendants Novartis
Pharmaceuticals, Corp. (“NPC”), Richard Scatoni, and William Shawn
Riley (collectively, “Defendants”), asserting claims under the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623 et seq.,
and the New York Human Rights Law (“NYHRL”), N.Y. EXEC. LAW § 296.
Pending before the Court is Defendants’ motion for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of Civil

Procedure.

For the following reasons, Defendants’ motion is

GRANTED.
BACKGROUND1
Plaintiff began her employment with NPC in May 2004 as
a pharmaceutical “Sales Consultant” in Suffolk County.
21.)

(Compl. ¶

In May 2007, she was promoted to “Senior Sales Consultant”

(Compl. ¶ 22), and in 2008, her territory was expanded to cover
parts of Nassau County (Compl. ¶ 24).
Defendant

Riley,

who

became

In February 2009, NPC hired

Plaintiff’s

“First

Line

Manager”

(Compl. ¶ 26), who was directly supervised by Defendant Scatoni,
the Managing Director of the region (Compl. ¶ 27).
In May 2009, Plaintiff took a medical leave of absence
due to a work-related injury, and she returned to NPC on September
15, 2009.

(Compl. ¶ 29.)

After her return to work, in or around

December 2009, she received her annual performance review from
Riley and Scatoni.

(Compl. ¶ 38.)

They gave her a “2-2” rating

(Compl. ¶ 38), which indicated that she was a strong performer
with good results and demonstrated good professional behaviors and
values (Compl. ¶¶ 35, 39).
On

October

7,

2010,

Scatoni

worked

directly

with

Plaintiff in her territory, riding as a passenger in her company
car and accompanying her on her visits to physicians’ offices.

The following facts are drawn from the pleadings in this action
and the documents attached thereto and referenced therein.
1

2

(Compl. ¶ 41.)

According to the Complaint, throughout the day,

“Scatoni verbally abused, degraded and bullied” her.
¶ 41.)

(Compl.

He “used foul[,] offensive language during ordinary

conversation” (Compl. ¶ 42), he “bullied” her because she was
taking notes (Compl. ¶ 41),2 he asked her in “a hostile manner”
how she, as a non-Italian, knew about the Italian holiday, “Little
Christmas” (Compl. ¶ 43), and he “became visibly agitated” when
she “shared competitive information about sales representatives”
(Compl. ¶ 44).

Plaintiff, in accordance with NPC’s policies and

procedures,3 reported Scatoni’s conduct to Riley later that day
(the “October Report”).

(Compl. ¶¶ 45-46.)

Plaintiff also told

four other co-workers about “the abuse she suffered at the hands
of Scatoni.”

(Compl. ¶ 47.)

Shortly thereafter, on December 2, 2010, Riley called
Plaintiff to inform her that she was being laid off due to “tenure
in territory.”

(Compl. ¶ 48.)

At the time, Plaintiff was the

second oldest employee in the region.

(Compl. ¶ 36.)

That same

day, she received a letter in the mail from NPC’s Vice President
and Head Primary Care Business Unit, Brian M. Goff, explaining

Plaintiff asserts that she needed to take notes because the
medications she was taking for the injuries she sustained in her
prior accident impaired her memory. (Compl. ¶ 41.)
2

According to the Complaint, “[t]he normal procedure at [NPC]
for raising issues is to report them to your immediate
supervisor if you are able.” (Compl. ¶ 46.)
3

3

that she was being terminated because NPC was in the process of
“realign[ing]” its sales force, which resulted in a “workforce
reduction” (the “Realignment Letter”).
26, Ex. 1.)

(Pl. Opp., Docket Entry

The letter continued:

Consistent with the realignment, . . . you
will be separated from employment during a
period within fourteen days of February 7,
2011. Although you will remain an employee of
NPC . . . and, as such, will receive your full
salary and benefits entitlements through
February 7, 2011, the last day you may be
required to perform field sales work for the
Company will be December 31, 2010.
(Id.; see also Compl. ¶ 49.)

According to the Complaint, Susan

Malkan, the oldest Senior Sales Associate in the district, was
also terminated at this time.

(Compl. ¶ 52.)

On or around December 15, 2010, Plaintiff contacted the
“Alert Line”4 to report her belief that she was being terminated
for

discriminatory

Report”).

and

(Compl. ¶ 51.)

retaliatory

reasons

(the

“December

Specifically, the Complaint asserts

that Plaintiff believes she was terminated due to her age (although
the Complaint does not state how old Plaintiff was when she was
terminated) and gives examples of “decades younger” employees who

The Complaint does not explain what the “Alert Line” is or
whether it is affiliated with NPC.
4

4

were less qualified than Plaintiff5 but, nonetheless, survived the
realignment.

(Compl. ¶¶ 58-67.)

In the interim, on or around December 7, 2011, Plaintiff
commenced a second medical leave of absence (Answer ¶ 49), which
continued until June 7, 2011 when she began receiving long-term
disability benefits from MetLife after being declared totally
disabled and unable to return to work (Answer ¶ 49 & Ex. A).
Plaintiff filed a Charge of Discrimination with the
Equal Employment Opportunity Commission on or around September 19,
2011 and received a Right to Sue letter on July 19, 2012.

(Compl.

¶ 4.)

Plaintiff then timely commenced this action on October 5,

2012.

Defendants answered the Complaint on December 4, 2012

(Docket Entry 15) and moved for judgment on the pleadings on
February 6, 2013 (Docket Entry 17).

That motion is presently

before the Court.
DISCUSSION
The Court will first discuss the applicable standard of
review under Rule 12(c) of the Federal Rules of Civil Procedure
and

the

pleading

standard

for

discrimination

and

retaliation

claims under the ADEA and the NYHRL before turning to Defendants’
motion.

Plaintiff asserts that she had better customer overlap, better
physician overlap, better customer continuity, and significantly
longer tenure than these younger employees. (Compl. ¶¶ 56, 59,
61, 63, 65, 67.)
5

5

I.

Standard of Review under Rule 12(c)
The standard for deciding a motion pursuant to Rule 12(c)

“is identical to that of a Rule 12(b)(6) motion for failure to
state a claim.”

See Patel v. Contemporary Classics of Beverly

Hills, 259 F.3d 123, 126 (2d Cir. 2001); Irish Lesbian & Gay Org.
v. Giuliani, 143 F.3d 638, 644 (2d Cir. 1998).

In deciding a Rule

12(b)(6) motion to dismiss, the Court applies a plausibility
standard, which is guided by “[t]wo working principles.”

Ashcroft

v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868
(2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.
Ct. 1955, 167 L. Ed. 2d 929 (2007)); see also Harris v. Mills, 572
F.3d 66, 72 (2d Cir. 2009).

First, although the Court must accept

all of the allegations in the Complaint as true, this “tenet” is
“inapplicable to legal conclusions;” thus, “[t]hreadbare recitals
of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”

Iqbal, 556 U.S. at 678 (citing

Twombly, 550 U.S. at 555); accord Harris, 572 F.3d at 72.

Second,

“only a complaint that states a plausible claim for relief survives
a motion to dismiss.”
U.S. at 556).

Iqbal, 556 U.S. at 679 (citing Twombly, 550

Although pro se plaintiffs enjoy a somewhat more

liberal pleading standard, see Erickson v. Pardus, 551 U.S. 89,
94, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) (“[A] pro se
complaint,

however

inartfully

pleaded,

must

be

held

to

less

stringent standards than formal pleadings drafted by lawyers.”
6

(internal quotation marks and citation omitted)), they must still
comport with the procedural and substantive rules of law, see Colo.
Capital v. Owens, 227 F.R.D. 181, 186 (E.D.N.Y. 2005).
Further, in deciding a Rule 12(c) motion, the Court may
consider

“the

complaint,

the

answer,

any

written

documents

attached to them, and any matter of which the court can take
judicial notice.”

L-7 Designs, Inc. v. Old Navy, L.L.C., 647 F.3d

419, 422 (2d Cir. 2011) (quoting Roberts v. Babkiewicz, 582 F.3d
418, 419 (2d Cir. 2009)) (internal quotation marks omitted).
Complaint

itself

is

also

deemed

to

include

any

The

documents

incorporated in it by reference and any document on which it
heavily relies.

See Chambers v. Time Warner, Inc., 282 F.3d 147,

152-53 (2d Cir. 2002).

Consideration of matters beyond those just

enumerated requires the conversion of the Rule 12(c) motion to
dismiss into one for summary judgment under Rule 56.

See FED. R.

CIV. P. 12(d); see also Kramer v. Time Warner Inc., 937 F.2d 767,
773 (2d Cir. 1991).

Thus, for the purposes of this Memorandum and

Order,

will

the

Court

consider

the

documents

attached

to

Defendants’ Answer but not the documents attached to their moving
papers, as the Court declines to convert this motion into one for
summary judgment at this time.
II.

Pleading Standard under the ADEA and the NYHRL
Both ADEA claims and NYHRL claims are analyzed under the

burden-shifting

paradigm

established
7

by

the

Supreme

Court

in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36
L. Ed. 2d 668 (1973).

See Sutera v. Schering Corp., 73 F.3d 13,

16 n.2 (2d Cir. 1995) (stating that courts apply the McDonnell
Douglas burden-shifting framework to claims under the ADEA and the
NYHRL).

Under McDonnell Douglas, the plaintiff bears the initial

burden of establishing a prima facie case of discrimination or
retaliation.

411 U.S. at 804.

To establish a prima facie case of

discrimination, a plaintiff must show that: (1) she was within the
protected age group; (2) she was qualified for the position; (3)
she suffered an adverse employment action; and (4) the surrounding
circumstances

permit

an

inference

of

discrimination.

See

Gorzynski v. Jetblue Airways Corp., 596 F.3d 93, 107 (2d Cir.
2010); Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d
119, 129 (2d Cir. 2012).

To establish a prima facie case of

retaliation, a plaintiff must show that: (1) she participated in
a protected activity; (2) the defendant knew of the protected
activity; (3) she suffered an adverse employment action; and (4)
there exists a causal connection between the protected activity
and the adverse employment action.

See Bucalo, 691 F.3d at 129;

Terry v. Ashcroft, 336 F.3d 128, 141 (2d Cir. 2003).
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
8

McDonnell Douglas . . . is an evidentiary standard, not a pleading
requirement.”).

Rather, a complaint need only contain “a short

and plain 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

Twombly and Iqbal, although “a complaint need not establish a prima
facie case of employment discrimination [and/or retaliation] 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. 11CV-4457, 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
Turkmen v. Ashcroft, 589 F.3d 542, 546 (2d Cir. 2009).

“For this

conclusion to be drawn, a plaintiff must allege facts that allow
the court in substance to infer elements of a prima facie case.”
King, 2012 WL 4122025, at *5 (collecting cases).
9

III. Defendants’ Motion
The Court will address Defendants’ arguments in support
of dismissing Plaintiff’s discrimination and retaliation claims
separately.
A.

Discrimination
Defendants argue that they are entitled to judgment on

the pleadings on Plaintiffs’ discrimination claims on the grounds
that: (1) Plaintiff has failed to plead an adverse employment
action and (2) she is judicially estopped from arguing that she
was qualified for her job.

Because the Court finds that Plaintiff

has failed to plead an adverse employment action, it will not
address Defendants’ other arguments.
In the context of a claim for discrimination under the
ADEA, “[a] plaintiff sustains an adverse employment action if he
or she endures a ‘materially adverse change’ in the terms and
conditions of employment.”

Kassner v. 2nd Ave. Delicatessen Inc.,

496 F.3d 229, 238 (2d Cir. 2007) (quoting Galabya v. N.Y.C. Bd. of
Educ., 202 F.3d 636, 640 (2d Cir. 2000)) (internal quotation marks
omitted).

To be considered materially adverse, the change must be

“more disruptive than a mere inconvenience or an alteration of job
responsibilities.”

Galabya, 202 F.3d at 640 (internal quotation

marks and citation omitted).

The Second Circuit has held that

such a change “might be indicated by a termination of employment,
a demotion evidenced by a decrease in wage or salary, a less
10

distinguished

title,

a

material

loss

of

benefits,

significantly diminished material responsibilities.”

[or]

Id.; see

also Hill v. Rayboy-Brauestein, 467 F. Supp. 2d 336, 351 (S.D.N.Y.
2006).
In the present case, although Plaintiff received notice
that she was being terminated, there was no “materially adverse
change” in her employment because she went out on disability before
the effective date of her termination and there were no other
adverse consequences, such as a reduced salary or loss of pay or
benefits (see Pl. Opp. Ex. 1 (stating that her full salary and
benefits would continue through February 2011)). See, e.g., Varela
v. Potter, No. 02–CV–0334, 2006 WL 861274, at *9 (W.D. Ky. Mar.
29, 2006) (finding that a plaintiff had not suffered an adverse
employment

action

materialized;

instead

because

“her

proposed

[the

plaintiff]

filed

removal
for

and

never

received

disability retirement”); cf. Cheshire v. Paulson, No. 04–CV–3884,
2007 WL 1703180, at *6 (E.D.N.Y. June 12, 2007) (finding that an
employer’s proposed suspension and, later, termination did not
constitute adverse employment actions as both were ultimately
rescinded).
Accordingly, the Court finds that Plaintiff has failed
to state a claim for discrimination under the ADEA or the NYHRL,
and both claims are hereby DISMISSED.

11

B.

Retaliation
Defendants argue that they are entitled to judgment on

the pleadings on Plaintiff’s retaliation claims because:

(1)

Plaintiff cannot maintain a claim based on the October Report
because this complaint did not involve Plaintiff’s age and (2)
Plaintiff cannot maintain a claim based on the December Report
because this occurred after the alleged adverse employment action.6
1.

The October Report

Defendants
protected activity.

argue

that

the

October

The Court agrees.

Report

is

not

“The term ‘protected

activity’ refers to action taken to protest or oppose statutorily
prohibited discrimination.”
560,

566

(2d

Cir.

2000).

Cruz v. Coach Stores, Inc., 202 F.3d
Although

“[i]nformal

protests

of

discriminatory employment practices, including making complaints
to

management”

constitute

protected

activity,

Sumner

v.

U.S.

Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990), “[t]he onus is on
the speaker to clarify to the employer that he is complaining of

Defendants also argue, again, that Plaintiff has failed to
plead an adverse employment action. However, what qualifies as
an adverse employment action in the context of a retaliation
claim is much broader, see Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 67-68, 126 S. Ct. 2405, 165 L. Ed. 2d 345
(2006); Kessler v. Westchester Cnty. Dep’t of Soc. Servs., 461
F.3d 199, 207-08 (2d Cir. 2006); therefore, the above analysis
does not necessarily bar Plaintiff’s retaliation claim. For the
purposes of this analysis, the Court is assuming, without
deciding, that the adverse employment action as pled in the
Complaint is sufficient.
6

12

unfair treatment due to his membership in a protected class and
that he is not complaining merely of unfair treatment generally,”
Aspilaire v. Wyeth Pharms., Inc., 612 F. Supp. 2d 289, 308-09
(S.D.N.Y. 2009).
With

respect

to

the

October

Report,

the

Complaint

asserts that Plaintiff complained to Riley that Scatoni “spent
approximately 6 hours harassing, ridiculing, bullying, verbally
abusing and attacking [her] for health issues”--namely, for having
to

take

notes.

(Compl.

¶

45.)

However,

the

ADEA’s

anti-

retaliation provision requires that the complaint be related to
purported age discrimination, see 29 U.S.C. § 623(d), and there is
no indication that Plaintiff reported to Riley that Scatoni’s
actions were at all motivated by Plaintiff’s age, see, e.g., Stokes
v. Nestle Purina Petcare Co., No. 12-CV-0089, 2012 WL 3746810, at
*4 (W.D.N.Y. Aug. 28, 2012) (dismissing an ADEA retaliation claim
because the plaintiff did not assert that she “complained to any
supervisor

or

took

any

action

at

any

time

in

opposition

to

perceived age discrimination,” but instead complained generally
about being harassed by a supervisor).

Accordingly, the Court

finds that the October Report was not protected activity and, thus,
cannot be the basis for Plaintiff’s ADEA or NYHRL retaliation
claims.

13

2.

The December Report

Defendants also argue that the December Report cannot be
the basis for Plaintiff’s retaliation claims because it occurred
after Plaintiff received the Realignment Letter. The Court agrees.
Here, Plaintiff received the Realignment Letter, notifying her
that she was being laid off, on December 2, 2010, and she reported
age discrimination to the Alert Line on December 15, 2010. (Compl.
¶¶ 49, 51.) However, even assuming, arguendo, that the Realignment
Letter constituted an adverse employment action, Plaintiff has
failed to plead facts plausibly suggesting a causal connection
because the alleged protected activity occurred after the adverse
employment action.

See Pinero v. Long Island State Veterans Home,

375 F. Supp. 2d 162, 168 (E.D.N.Y. 2005) (“There can be no
inference

of

retaliatory

animus

where

the

adverse

employment

action occurred prior to the protected activity.” (citing Slattery
v. Swiss Reins. Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001))).
Accordingly, Plaintiff’s ADEA and NYHRL retaliation claims are
hereby DISMISSED.
IV.

Leave to Replead
Although Plaintiff has not requested leave to replead,

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
14

give leave [to amend] when justice so requires.”).

“However, a

district court has the discretion to deny leave to amend where
there is no indication from a liberal reading of the complaint
that a valid claim might be stated.”

Perri v. Bloomberg, No. 11-

CV-2646, 2012 WL 3307013, at *4 (E.D.N.Y. Aug. 13, 2012) (citing
Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010)).
Here, the Court finds that leave to replead would be
futile for the reasons articulated above.

Accordingly, leave to

replead is DENIED, and this action is DISMISSED WITH PREJUDICE.
CONCLUSION
For

the

foregoing

reasons,

Defendants’

motion

for

judgment on the pleadings is GRANTED, and Plaintiff’s Complaint is
hereby DISMISSED WITH PREJUDICE.

The Clerk of the Court is

directed to serve a copy of this Memorandum and Order on the pro
se Plaintiff and to mark this matter CLOSED.

SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
DATED:

September 3, 2013
Central Islip, New York

15