Conforti v. Sunbelt Rentals, Inc. et al
Filing
27
MEMORANDUM OF DECISION AND ORDER - For the foregoing reasons, the Court grants Defendants motions to dismiss solely with respect to the New York State law claims and the Title VII claims against the Individual Defendants. Further, the Court grants th e Plaintiffs motion to file an amended complaint that is limited to three claims against the Corporate Defendants under Title VII for gender discrimination, retaliation, and hostile work environment. Within 30 days of the date of this Order, the Plai ntiff is directed to file an amended complaint consistent with this Order. That is, the Plaintiff may not include in the amended pleading New York State law claims, or Title VII claims against the Individual Defendants. Rather, the amended complaint should only include the three above-mentioned Title VII claims against the Corporate Defendants. The case is referred to United States Magistrate Judge Gary R. Brown for discovery. The Clerk of the Court is directed to terminate docket entries 10 , 17 , and 23 . So Ordered by Judge Arthur D. Spatt on 8/15/2016. (Coleman, Laurie)
FILED
CLERK
8/15/2016 11:15 am
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------X
VICKI L. CONFORTI,
Plaintiff,
MEMORANDUM OF
DECISION & ORDER
15-cv-5045 (ADS)(GRB)
-againstSUNBELT RENTALS, INC., ON SITE
ENERGY COMPANY, INC., IRVIN L.
FRENCH, IRVIN M. FRENCH, PATRICK
FRENCH, and KYLE HORGAN,
Defendants.
---------------------------------------------------------X
APPEARANCES:
Dandeneau & Lott
Attorneys for the Plaintiff
425 Broad Hollow Road, Suite 418
Melville, NY 11747
By: Gerald V. Dandeneau, Esq.
Dawn A. Lott, Esq., Of Counsel
Smith, Gambrell & Russell, LLP
Attorneys for the Defendants Sunbelt, Irvin M. French, Patrick French, and Kyle Horgan
50 N Laura Street, Suite 2600
Jacksonville, FL 32202
By: Yash B. Dave, Esq.
Patricia J. Hill, Esq., Of Counsel
Forchelli Curto Deegan Schwartz Mineo & Terrana, LLP
Attorneys for the Defendants On Site, Irvin L. French, Irvin M. French, and Patrick French
333 Earle Ovington Blvd, Suite 1010
Uniondale, NY 11553
By: Gregory Scot Lisi, Esq.
Lauren Kantor Lipnick, Esq.
Elbert Nasis, Esq., Of Counsel
SPATT, District Judge.
This case arises from allegations by the Plaintiff Vicki L. Conforti (the “Plaintiff”) that
from 2005 to 2014, while she was employed by the Defendants Sunbelt Rentals, Inc. (“Sunbelt”)
and On Site Energy Company, Inc. (“On Site”), her supervisors discriminated against her on the
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basis of her gender, subjected her to a hostile work environment, and retaliated against her in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”),
and the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. (“NYSHRL”).
Presently before the Court are two separate motions pursuant to Federal Rule of Civil
Procedure (“Rule”) 12(b)(6) by the Defendants Sunbelt, On Site, Irvin L. French, Irvin M.
French, Patrick French, and Kyle Horgan (collectively, the “Defendants”) to dismiss the
complaint. Also before the Court is a cross-motion pursuant to Rule 15 by the Plaintiff for leave
to file an amended complaint.
For the reasons set forth below, the Defendants’ motions to dismiss are granted in part
and denied in part; and the Plaintiff’s cross-motion to amend the complaint is granted in part and
denied in part.
I. BACKGROUND
As described in more detail below, the standard applied to motions to dismiss is the same
as the standard applied to addressing the sufficiency of a plaintiff’s proposed amended
complaint. Here, the Plaintiff cross-moved to file an amended complaint in response to the
Defendants’ motions to dismiss. For the purpose of procedural efficiency, courts in similar
situations often treat the proposed amended complaint as the operative pleading and construe a
defendant’s motion to dismiss as addressed to the amended complaint. The Court adopts that
approach here. Therefore, the following facts are drawn from the proposed amended complaint
(“PAC”) unless otherwise stated.
A. As to the Facts
The Plaintiff is a female who resides in Suffolk County, New York. (PAC, Dkt. No. 23-2
[“PAC”], at ¶¶ 6–7.)
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The Defendant Sunbelt is a foreign corporation that conducts business in New York. (Id.
at ¶ 10.) It is a national equipment rental company, and its headquarters are located in North
Carolina. (Id. at ¶ 48.)
The Defendant On Site is a New York company with its principal place of business in
New York. (Id. at ¶ 8.) It is a “rental company that offers generators, cooling and heating
equipment to industrial, commercial and private markets.” (Id. at ¶ 23.)
In July 2001, On Site hired the Plaintiff as a bookkeeper. At that time, the Defendant
Irvin L. French owned On Site. (Id. at ¶ 25.) Irvin M. French is the son of Irvin L. French, and
from 2001 to 2014, he was the Vice President of On Site’s Service Department. (Id.) The
complaint refers to Irvin M. French as “Mike French.” Accordingly, for ease of reference, the
Court will do the same here.
From 2001 to 2014, Patrick French, also a son of Irvin L. French, was the Vice President
of On Site’s Sales Department. (Id.) During that period, the other management-level employees
at On Site included Joe Meola, the Vice President of Finance; Richard Krause, the Service
Manager; and Steven Corvaia, the Fleet Coordinator. (Id. at ¶ 26.)
For her entire tenure at On Site, the Plaintiff was the only female management-level
employee even though, allegedly, there were women who applied for and were qualified for
management positions. (Id. at ¶ 31.)
In 2005, the Plaintiff was promoted from bookkeeper to Controller of the entire company.
(Id. at ¶ 28.) In that role, she oversaw financial and personnel matters. (Id.) She also supervised
seven employees in the accounting, customer service, and administrative departments. (Id.)
However, according to the Plaintiff, male employees were not required to report to her. (Id. at ¶
29.)
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The complaint further states that all female employees at On Site earned less
compensation than male employees; were offered fewer benefits than male employees; and
unlike their male counterparts, were not permitted to seek reimbursement for corporate expenses,
nor invited to annual company outings and networking events. (Id. at ¶¶ 38–42.)
The Plaintiff further alleges that “[m]ale management-level employees such as [Irvin L.]
French, Mike French, Pat French, Joe Meola, Steve Corvaia and Richard Krause repeatedly
stated throughout the Plaintiff’s tenure [that] a female’s place is behind that of men.” (Id. at ¶
35.) Also on several occasions, Irvin L. French allegedly stated that he “never wanted too many
female employees[] because they were excessively emotional and moody.” (Id. at ¶ 37.) It is not
clear from the complaint when or to whom these statements were made.
Allegedly at an unspecified time, Irvin L. French ordered female strippers to come to On
Site’s offices during work hours. (Id. at ¶ 46.) Other “management employees” also sexually
propositioned female employees and viewed pornographic materials during the work day. (Id.)
The PAC also states that On Site’s management failed to implement policies and
procedures to deter sexual harassment and discrimination. (Id. at ¶ 47.) For example, allegedly,
in response to a complaint of harassment from one of the Plaintiff’s female co-workers, Irvin L.
French, Mike French, and Patrick French failed to take disciplinary or remedial actions against
the male culprit and fired the female employee. (Id. at ¶ 47.)
In April 2014, Sunbelt acquired On Site. (Id. at ¶ 49.) As part of the acquisition, Sunbelt
initially made the decision to retain all of On Site’s employees, including the Plaintiff. (Id. at ¶¶
49, 53.) In addition, On Site apparently agreed to continue paying certain expenses on behalf of
Sunbelt, including, union dues for employees hired by Sunbelt; rent for the New Jersey branch
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office of Sunbelt; and the salary and health insurance premiums for Dennis French and Joe
Meola. (Id. at ¶ 59.)
Following the acquisition, the Plaintiff’s title changed from Controller to Assistant
Manager for a department named “PC 104.” (Id. at ¶ 55.) The complaint does not specify what
PC 104 is or what its role was inside Sunbelt. (Id.) As part of her change in title, the Plaintiff
received a salary increase of $3,000, which was allegedly significantly less than the raises that
her male counterparts received. (Id.)
In her new role as Assistant Manager of PC 104, the Plaintiff was responsible for, among
other things, overseeing the operations of PC 104; reviewing daily contracts; assessing and
modifying sales plans; ensuring compliance with company policies and requirements; reviewing
the company’s debt collection efforts; and inspecting the PC 104 yard. (Id. at ¶ 56.) She
reported directly to Mike French and indirectly to Irvin L. French and Joe Meola. (Id. at ¶ 57.)
Immediately after becoming Assistant Manager, the Plaintiff alleges that Mike French,
Patrick French, Joe Meola, Richard Krause, and Steve Corvaia denied her access to the codes
necessary for her to perform her job duties; excluded her from one-on-one training sessions that
male employees were permitted to attend; and failed to invite her to monthly management
meetings. (Id. at ¶¶ 73–80.) In particular, she alleges that she was not invited to an April 8,
2014 meeting to discuss the organizational structure of PC 104. (Id. ¶ 82.)
At an unspecified time, the Plaintiff made recommendations to the Service Department to
make changes to their daily activities. (Id. at ¶ 91.) Apparently, the Plaintiff’s supervisors
reprimanded the Plaintiff for making the recommendations and refused to consider them. (Id.)
In May 2014, the Plaintiff authorized a $2,000 transaction for a Sunbelt client. (Id. at ¶
92.) Allegedly, Richard Krause, another male management level employee at Sunbelt,
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“overruled the Plaintiff’s decision in front of the entire all-male sales teams and other managers.”
(Id.) On another occasion, Krause apparently tore down an expense chart that the Plaintiff had
prepared for a meeting of Service Department employees. (Id. at ¶ 94.) Subsequently, the
Plaintiff complained to Robert Smith, another management employee at Sunbelt, about the
incidents. (Id. at ¶ 93.) Allegedly Smith responded, “[W]hatever Mike French or Richard
Krause says, goes.” (Id. at ¶ 93.)
Also in May 2014, the Plaintiff met with Mike French and Patrick French. (Id. at ¶ 87.)
During the meeting, Mike French and Patrick French mocked the Plaintiff’s authority as
Assistant Manager by telling her that her title was too powerful for a female. (Id. at ¶ 87.) They
also suggested that the Plaintiff take an administrative position or seek employment elsewhere;
described her as a “floppy disc”; and warned her that she would “crash and burn like a
helicopter” if she continued to work as an Assistant Manager. (Id.)
Subsequently, the Plaintiff informed Kyle Horgan about the May 2014 meeting with
Mike and Patrick French, as well as what she perceived to be a department-wide bias against
female employees. (Id. at ¶ 98.) During a follow-up phone conversation, Horgan advised the
Plaintiff that Mike and Patrick French disputed her account of the May 2014 meeting. (Id. at ¶
100.) Allegedly, Horgan also told the Plaintiff that she was “being too aggressive and
overreacting” and suggested the she “should assume the submissive role expected of females and
play nicely within the boys’ club.” (Id.)
Following the meeting with Horgan, the Defendants decided to relocate the Plaintiff’s
desk from a lower floor to an upstairs floor that was isolated from other employees in the PC 104
group. (Id. at ¶ 108.) Also, Mike French and Patrick French stripped the Plaintiff of her
supervisory responsibility over daily reports and regularly taunted her in front of other
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employees. (Id. at ¶¶ 109, 113.) As one example, the PAC states that they assigned ring tones to
the Plaintiff’s phone number so that when she called one of them, instead of a ring, their phones
would emit the sounds of “missiles, old car horns, and dogs barking.” (Id. at ¶ 111.)
At some time prior to June 20, 2014, the Plaintiff attended a trade show with Mike
French, who allegedly told the Plaintiff that he was “disgust[ed] with the idea that one of their
clients could have a female top executive running the company” and stated that “it must be
difficult for a male to report to a female.” (Id. at ¶ 115.)
On June 20, 2014, Mike French met with the Plaintiff and informed her that she had to
leave the company by July 18, 2014. (Id. at ¶ 114.)
The PAC also alleges that Sunbelt discriminated against female employees other than the
Plaintiff. Specifically, the PAC states that Sunbelt excluded female employees from the second
half of a driver training program; failed to give female employees their uniforms; and classified
unnamed female employees as administrative assistants even though they performed work that
exceeded administrative functions. (Id. at ¶ 78–79, 84.)
In addition to firing the Plaintiff, from May 2014 to July 2014, Sunbelt allegedly also
fired four other female employees in the PC 104 Department and delegated their job duties to
male employees. (Id. at ¶ 62–68.) During this same period, Sunbelt did not terminate any male
employees. (Id. at ¶ 71.) The PAC alleges “upon information and belief” that Irvin L. French,
Mike French, Patrick French, Joe Meola, and Kyle Horgan were involved in the decisions to
terminate the female employees. (Id. at ¶ 72.)
B. As to the Procedural History
On November 17, 2014, the Plaintiff filed a verified complaint against Sunbelt and On
Site (collectively, the “Corporate Defendants”) with the New York State Division of Human
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Rights (“NYSDHR”) alleging sex discrimination and retaliation. (See The Sunbelt Defs.’ Mot.
to Dismiss, Dkt. No. 10 [“The Sunbelt Defs.’ Mot. to Dismiss”], at Ex. A.) She also cross-filed
the complaint with the U.S. Equal Opportunity Commission (“EEOC”). (See id. at p. 7.)
On October 23, 2015, the NYSDHR dismissed the Plaintiff’s charge because it found that
there was no probable cause to believe that the Corporate Defendants engaged in any unlawful
discriminatory practices. (Id. at Ex. B.)
On June 16, 2015, the EEOC adopted the NYSDHR’s findings; dismissed the Plaintiff’s
charge; and notified the Plaintiff of her right to sue. (See id. at Ex. C.)
On August 28, 2015, the Plaintiff timely commenced this action by filing a complaint
against the Defendants. The Plaintiff asserted (i) a claim under Title VII for gender
discrimination and the creation of a hostile work environment; (ii) a claim under the NYSHRL
for gender discrimination; (iii) a claim under Title VII and the NYSHRL for retaliation; (iv) a
claim for intentional infliction of emotional distress; and (v) and a claim for negligent infliction
of emotional distress. (See the Orig. Compl., Dkt. No. 1 [“Orig. Compl.”], at ¶¶ 95–129.)
On October 23, 2015, the Defendants Sunbelt, Mike French, Patrick French, and Kyle
Horgan (together, the “Sunbelt Defendants”) filed a Rule 12(b)(6) motion to dismiss the
complaint. In their memorandum, the Sunbelt Defendants argued that the Title VII claims
against the Defendants Irvin L. French, Mike French, Patrick French, and Kyle Horgan (together,
the “Individual Defendants”) should be dismissed because Title VII does not provide for
individual liability. (See the Sunbelt Defs.’ Mot. to Dismiss at 7–8.) They further contended
that the only adverse employment action that the Plaintiff sufficiently alleged was her
termination, and the allegations in the complaint failed to give rise to the plausible inference that
her gender was a motivating factor in her termination, or that her termination was plausibly
8
linked to any protected activity. (See the Sunbelt Defs.’ Mot. to Dismiss at 7–8, 12–14.) They
also asserted that the complaint failed to allege the kind of objectively severe and pervasive
conduct required to state a claim for a hostile work environment under Title VII. (Id. at 12–13.)
With regard to the Plaintiffs’ state law claims, the Sunbelt Defendants contended that the
Plaintiff’s NYSHRL claims for sex discrimination and retaliation were barred by the statute’s
election of remedies provision; the Plaintiffs’ intentional infliction of emotion distress claim was
time barred; and the allegations in the complaint were insufficient to plausibly allege claims for
intentional or negligent infliction of emotion distress. (See id. at 14–18.)
On November 30, 2015, the Defendants On Site, Irvin L. French, Mike French, and
Patrick French (collectively, the “On Site Defendants”) filed a separate Rule 12(b)(6) motion to
dismiss the complaint, which incorporated many of the same arguments made by the Sunbelt
Defendants. However, unlike the Sunbelt Defendants, the On Site Defendants argued that the
Plaintiff was employed by Sunbelt, not On Site, at the time of her termination, and therefore, all
of the Plaintiffs’ discrimination claims against On Site failed as a matter of law. (See the On Site
Defs.’ Mot. to Dismiss, Dkt. No. 19 [the “On Site Defs.’ Mot. to Dismiss”], at 6–8.)
In response, on December 28, 2015, the Plaintiff filed a memorandum in opposition to
the Defendants’ Rule 12(b)(6) motions and a cross motion pursuant to Rule 15 for leave to file
an amended complaint. (See the Pl.’s Cross Mot., Dkt. No. 23 [the “Pl.’s Cross Mot.”].) In
support of her cross motion, the Plaintiff attached the PAC and her own sworn affidavit. (See
id.) Of importance, the PAC removed the state law claims that she asserted in her original
complaint — namely, the NYSHRL discrimination claims and the claims for intentional
infliction of emotional district and negligent infliction of emotional distress. (See PAC at ¶¶
124–129.)
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In her memorandum of law, the Plaintiff argued that the PAC stated plausible claims for
Title VII gender discrimination, retaliation, and hostile work environment, and therefore, leave to
amend should not be denied on the ground of futility. (See the Pl.’s Cross Mot. at 8–19.) She
also claimed that On Site could be held liable for the actions of Sunbelt under the single
employer doctrine. (Id. at 8–10.)
On January 14, 2016, and January 15, 2016, respectively, the Sunbelt Defendants and the
On Site Defendants filed separate reply memoranda in support of their motions to dismiss and in
opposition to the Plaintiff’s motion to amend. In their papers, they argued that the PAC failed to
cure the deficiencies in the original complaint. (See the Sunbelt Defs.’ Reply Mem. of Law, Dkt.
No. 23 [the “Sunbelt Defs.’ Reply Mem. of Law”]; the On Site Defs.’ Reply Mem. of Law, Dkt.
No. 25 [the “On Site Defs.’ Reply Mem. of Law”].)
On January 28, 2016, the Plaintiff filed a reply memorandum in support of her crossmotion to amend, reiterating her contention that the PAC plausibly stated Title VII claims
against the Corporate Defendants for gender discrimination, retaliation, and hostile work
environment. (See the Pl.’s Reply Mem. of Law, Dkt. No. 26 [the “Pl.’s Reply Mem. of Law”].)
Below, the Court will address the applicable legal standards and the sufficiency of each
of the Plaintiffs’ claims.
II. DISCUSSION
A. As to the Legal Standards
1. Rule 12(b)(6)
Under Fed. R. Civ. P. 12(b)(6), a defendant may move to dismiss complaint that “fail[s]
to state a claim upon which relief can be granted.” When ruling on such a motion, the court
‘“accept[s] all allegations in the complaint as true and draw all inferences in the non-moving
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party’s favor.’” LaFaro v. New York Cardiothoracic Grp., PLLC, 570 F.3d 471, 475 (2d Cir.
2009) (quoting Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003)).
However, to survive a 12(b)(6) motion to dismiss, a complaint must plead “enough facts
to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct.
1937, 1949, 173 L. Ed. 2d 868 (2009) (citation omitted). Thus, “[w]hile a complaint attacked by
a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations . . . a plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and
conclusions, and a formulaic recitation of a cause of action’s elements will not do.” Twombly,
550 U.S. at 570 (citation omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937,
1949, 173 L. Ed. 2d 868 (2009) (“[T]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”) (citation omitted). Accordingly,
unless plaintiffs’ well-pleaded allegations have “nudged their claims across the line from
conceivable to plausible, their complaint must be dismissed.” Twombly, 550 U.S. at 569.
In considering a motion to dismiss, a court is generally “limited to the facts as asserted
within the four corners of the complaint, the documents attached to the complaint as exhibits,
and any documents incorporated in the complaint by reference.” McCarthy v. Dun & Bradstreet
Corp., 482 F.3d 184, 191 (2d Cir. 2007) (citing Taylor v. Vt. Dep't of Educ., 313 F.3d 768, 776
(2d Cir. 2002)).
“[W]here matter outside the pleadings is offered and not excluded by the trial court, the
motion to dismiss should be converted to a motion for summary judgment.” Nakahata v. New
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York-Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 202 (2d Cir. 2013) (citing Fed. R. Civ. P.
12(d)). “However, a district court is not obliged to convert a 12(b)(6) motion to one for
summary judgment in every case in which a defendant seeks to rely on matters outside the
complaint in support of a 12(b)(6) motion; it may, at its discretion, exclude the extraneous
material and construe the motion as one under Rule 12(b)(6).” United States v. Int’l
Longshoremen’s Ass’n, 518 F. Supp. 2d 422, 450 (E.D.N.Y. 2007) (collecting cases); see also
Rice v. Kawasaki Heavy Indus., Ltd., No. CV07-4031(SJF)(ARL), 2008 WL 4646184, at *3
(E.D.N.Y. Oct. 17, 2008) (“Rather than convert the Kawasaki defendants’ Rule 12(b)(6) motion
to dismiss into one for summary judgment pursuant to Rule 56 of the Federal Rules of Civil
Procedure, see Rule 12(d), I instead exercise my discretion to exclude the extraneous material
submitted by the Kawasaki defendants on their motion and decide their motion on the complaint
alone.”).
The Court notes that in opposition to the Defendants’ motions to dismiss and in support
of her cross motion to amend her complaint, the Plaintiff filed her own ten page declaration
attesting to various purported facts regarding the alleged discriminatory acts of the Defendants.
(See Conforti Decl., Dkt. No. 23-3.) This declaration was not attached to or referred to in the
original complaint. Rather, the Plaintiff attached the declaration to her legal memorandum for
the sole purpose of withstanding the Defendants’ motions to dismiss her claims.
For these reasons, rather than to sua sponte convert the Defendants’ motions into
summary judgment motions, the Court, in its discretion, excludes the declaration offered by the
Plaintiff in support of her legal memorandum and decides the parties’ Rule 12 and Rule 15
motions on the basis of the complaint and the PAC alone. See N. Shipping Funds I, LLC v. Icon
Capital Corp., 921 F. Supp. 2d 94, 100–01 (S.D.N.Y. 2013) (“I decline to convert this motion
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into one for summary judgment. Therefore, . . ., I exclude from consideration the additional
materials submitted by the parties.”); Toussie v. Town Bd. of Town of E. Hampton, No. CIVA
08-1922 (DRH) (WDW), 2010 WL 597469, at *3 (E.D.N.Y. Feb. 17, 2010) (“At this stage in the
litigation, the Court declines to convert Defendants' Rule 12(b)(6) motion into one for summary
judgment given that discovery has not been completed and an Answer has not been filed.”).
2. Rule 15
Rule 15(a)(1) states that “[a] party may amend its pleading once as a matter of course
within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is
required, 21 days after service of a responsive pleading or 21 days after service of a motion
under Rule 12(b), (e), or (f), whichever is earlier.”
Here, it is undisputed that the Plaintiff did not file an amended complaint within 21 days
after serving it on the Defendants, or within 21 days after the service of the Defendants’ two
motions to dismiss. Thus, Rule 15(a)(2) governs her proposed amendments.
That provision states, “[A] party may amend its pleading only with the opposing party's
written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2) (alteration added). The Rule
further states that “[t]he court should freely give leave when justice so requires.” See Fed. R.
Civ. P. 15(a)(2).
Interpreting this latter provision, the Second Circuit has stated that only ‘“undue delay,
bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party . . . [or] futility of
amendment’ will serve to prevent an amendment prior to trial.’” Dougherty v. Town of N.
Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 87 (2d Cir. 2002) (alterations in original)
(quoting Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9 L.Ed.2d 222 (1962)). “An
13
amendment to a pleading will be futile if a proposed claim could not withstand a motion to
dismiss pursuant to Rule 12(b)(6).” Id.
“Where a plaintiff seeks to amend his complaint while a motion to dismiss is pending, a
court ‘has a variety of ways in which it may deal with the pending motion to dismiss, from
denying the motion as moot to considering the merits of the motion in light of the amended
complaint.” Hamzik v. Office for People with Developmental Disabilities, 859 F. Supp. 2d 265,
273–74 (N.D.N.Y. 2012) (quoting Roller Bearing Co. of Am., Inc. v. Am. Software, Inc., 570
F.Supp.2d 376, 384 (D. Conn. 2008)); see also Saye v. First Specialty Ins. Co., No. 14-CV-5946
(JG) (LB), 2015 WL 1737949, at *3 (E.D.N.Y. Apr. 16, 2015) (same); Levantino v. Skala, 56 F.
Supp. 3d 191, 195 (E.D.N.Y. 2014) (Spatt, J) (same).
Here, the PAC does not add new claims or parties, nor does it drastically change the
allegations in the original complaint. The Defendants make many of the same arguments in
opposing the Plaintiff’s motion to amend that they did in support of their original motions to
dismiss. Further, as noted above, the Court will apply the same standard in assessing whether
the proposed amendments in the PAC would be futile that it would apply in assessing whether
the original complaint meets the Rule 12(b)(6) standard. See Levantino, 56 F. Supp. 3d at 195
(“As each claim in the proposed amended complaint must be examined under a 12(b)(6) analysis
in any event, the Court exercises its discretion to deny the motion to dismiss as moot. Further,
the Court grants in part and denies in part the Plaintiff’s cross-motion to amend the complaint.”).
Therefore, for the purpose of procedural efficiency, the Court, in its discretion, considers
the Defendants’ sufficiency arguments, along with their futility arguments, in light of the PAC.
So that ‘“if the proposed amended complaint cannot survive the motion to dismiss, then
plaintiffs’ cross-motion to amend will be denied as futile.”’ Schwartzco Enterprises LLC v.
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TMH Mgmt., LLC, 60 F. Supp. 3d 331, 338–39 (E.D.N.Y. 2014) (Spatt, J) (quoting Haag v.
MVP Health Care, 866 F. Supp. 2d 137, 140 (N.D.N.Y. 2012)).
B. As to the State Law Claims
As noted earlier, in her original complaint, the Plaintiff asserted discrimination claims
under the NYSHRL, as well as claims for intentional and negligent infliction of emotional
distress. (See the Orig. Compl. at ¶¶ 95–129.)
In their original motions to dismiss, the Defendants argued that these claims failed as a
matter of law because the NYSHRL was barred by the statute’s election of remedies provision;
the intentional infliction of emotion distress claim was untimely; and the allegations failed to
plausibly state claims for intentional or negligent infliction of emotional distress. (See the
Sunbelt Defs.’ Mot. to Dismiss at 14–19; the On Sit Defs.’ Mot. to Dismiss at 18–20.)
In her memorandum in opposition to the Defendants’ Rule 12(b)(6) motions and in
support of her Rule 15 motion, the Plaintiff did not address any of these arguments. Instead, she
focused solely on her Title VII claims against the Corporate Defendants. (See the Pl.’s Cross
Mot. at 11–19.) Furthermore, although there are several references in the opening paragraph of
the PAC to the NYSHRL, the PAC does not contain separate causes of action for discrimination
under the NYSHRL, intentional emotional distress, or negligent emotional distress. (See PAC at
¶¶ 124–144.)
Under these circumstances, the Court deems the Plaintiffs’ state law claims abandoned;
grants the Defendants’ motion to dismiss those claims; and denies as futile the Plaintiff’s motion
to amend her complaint to add such claims. See Jackson v. Fed. Exp., 766 F.3d 189, 196 (2d
Cir. 2014) (“Where abandonment by a counseled party is not explicit but such an inference may
be fairly drawn from the papers and circumstances viewed as a whole, district courts may
15
conclude that abandonment was intended.”); Robinson v. Fischer, No. 09 CIV. 8882 (LAK)
(AJP), 2010 WL 5376204, at *10 (S.D.N.Y. Dec. 29, 2010) (“Federal courts have the discretion
to deem a claim abandoned when a defendant moves to dismiss that claim and the plaintiff fails
to address in their opposition papers defendants’ arguments for dismissing such a claim.”)
(collecting cases).
C. As to the Title VII Claims Against the Individual Defendants
In support of their motions to dismiss, the Defendants asserted that the Plaintiff’s Title
VII claims against the Individual Defendants failed as a matter of law because Title VII does not
provide for individual liability. (See the Sunbelt Defs.’ Mot. to Dismiss at 6; the On Site Defs.’
Mot. to Dismiss at 6.)
Again, the Plaintiff did not address this argument in her memorandum in opposition to
the Defendants’ motion, or in support of her motion to amend. (See the Pl.’s Mot. to Amend at
11–19.) In addition, the Court notes that the Defendants are correct that it is well-established
that individuals are not subject to individual liability under Title VII. See Patterson v. Cty. of
Oneida, N.Y., 375 F.3d 206, 221 (2d Cir. 2004) (‘“[I]ndividuals are not subject to liability under
Title VII.’ . . . . Accordingly, the district court properly dismissed Patterson's Title VII claims
against the individual defendants.”) (quoting Wrighten v. Glowski, 232 F.3d 119, 120 (2d
Cir.2000) (per curiam)); see also Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir.1995)
(“[I]ndividual defendants with supervisory control over a plaintiff may not be held personally
liable under Title VII”), abrogated on other grounds by Burlington Industries, Inc. v. Ellerth,
524 U.S. 742, 118 S. Ct. 2257, 141 L.Ed.2d 633 (1998)).
Therefore, the Court grants the Defendants’ motion to dismiss the Title VII claims
against the Individual Defendants and denies the Plaintiff’s motion for leave to file an amended
16
complaint that contains Title VII claims against the Individual Defendants. Thus, the only
remaining claims in this action are the Title VII claims against the Corporate Defendants.
D. As to the Title VII Gender Discrimination Claim
In the PAC, the Plaintiff asserts a claim under Title VII for gender discrimination because
she alleges that she was treated differently than her male colleagues on the basis of her gender,
endured harassment on the basis of her gender, and her gender was a substantial or motivating
factor in Sunbelt’s decision to terminate her employment on July 18, 2014. (See PAC at ¶¶ 124–
138.)
“[T]o defeat a motion to dismiss . . . in a Title VII discrimination case, a plaintiff must
plausibly allege that (1) the employer took adverse action against him, 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, 87 (2d Cir. 2015).
In the present case, both On Site and Sunbelt assert that the only adverse employment
action alleged in the PAC is the termination of the Plaintiff’s employment at Sunbelt. (See the
Sunbelt Defs.’ Reply Mem. of Law at 3–5; the On Site Defs.’ Reply Mem. of Law at 4–11.)
They also both claim that the PAC fails to plausibly allege that the Plaintiff’s gender was a
motivating factor in the decision to terminate her. (See id.) In addition, On Site contends that it
cannot be held liable even if the Plaintiff’s termination was discriminatory because the Plaintiff
was not employed by On Site at the time of her termination. (See the On Site Defs.’ Reply Mem.
of Law at 4–11.)
The Plaintiff asserts that the PAC does allege adverse actions in addition to her
termination and sufficiently alleges that her gender was a motivating factor in the Corporate
Defendants’ actions. (See the Pl.’s Cross. Mot. at 11–16.) She also alleges that On Site and
17
Sunbelt are jointly liable for the acts of Sunbelt under the “single employer doctrine.” (Id. at 8–
11.)
1. The Legal Standards
a. Adverse Employment Action
As noted, the first element that a plaintiff must prove to allege a Title VII claim is that he
or she suffered a material adverse employment action. “A plaintiff sustains an adverse
employment action if he or she endures a materially adverse change in the terms and conditions
of employment.”’ Vega, 801 F.3d at 85 (quoting Galabya v. N.Y.C. Bd. of Educ., 202 F.3d 636,
640 (2d Cir. 2000)). “To be ‘materially adverse’ a change in working conditions must be ‘more
disruptive than a mere inconvenience or an alteration of job responsibilities.”’ Galabya, 202
F.3d at 640 (quoting Crady v. Liberty Nat'l Bank and Trust Co., 993 F.2d 132, 136 (7th Cir.
1993)). For the purpose of Title VII discrimination claims, the Second Circuit has stated,
“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.”’ Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003) (quoting Galabya, 202 F.3d at
640).
As relevant here, a reassignment or changes in job responsibilities, by themselves, do not
constitute adverse employment actions. Rather, a plaintiff must plausibly allege that an
employer’s actions gave rise to material adverse changes in his or her work conditions. For
example, in Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72 (2d Cir. 2015), the Second
Circuit found that allegations that a school district reassigned a teacher to classes with increased
number of Spanish-speaking students could plausibly constitute an adverse employment because
18
the teacher alleged that “he was forced to spend disproportionately more time preparing for his
classes and therefore experienced a material increase in his responsibilities without additional
compensation.” Id. at 88.
By contrast, in Chung v. City Univ. of New York, 605 F. App’x 21 (2d Cir. 2015)
(Summary Order), the plaintiff alleged a race discrimination claim against his former employer
arising from allegations that he received a negative performance review; was required to perform
certain low level tasks that fell outside of his job responsibilities; was denied access to relevant
computer programs; and was excluded from at least two staff meetings and five other meetings
of student assistants. Id. at 21. In a summary order, the Second Circuit found that the district
court correctly concluded these allegations failed to plausibly show the plaintiff suffered an
adverse employment action. Id. The court reasoned that “with the exception of the negative
performance evaluation and the staff meetings, none of the allegations describes a substantial
departure from the state of affairs at the outset of the limitations period.” Id. at 22. The circuit
court further found that a negative performance review was, standing alone, not sufficient to
allege an adverse employment action because “the proposed amended complaint alleges no
tangible consequences resulting from the evaluation.” Id.
Similarly, in Carpenter v. City of Mount Vernon, No. 15-CV-0661 (NSR), 2016 WL
4059353, at *6 (S.D.N.Y. July 27, 2016), the district court found that an allegation that a
plaintiff-police officer was ordered by her supervisors to work outside of police headquarters did
not plausible allege an adverse employment action because the plaintiff failed to allege that the
decision resulted in any “negative consequences.” Id.; see also See Christiansen v. Omnicom
Grp., Inc., No. 15 CIV. 3440 (KPF), 2016 WL 951581, at *10 (S.D.N.Y. Mar. 9, 2016) (“The
mere offering of a severance package to [p]laintiff does not itself constitute an adverse
19
employment action, in light of the fact that Plaintiff alleges no negative consequences arising
from his refusal to leave DDB.”); Sank v. City Univ. of New York, No. 10 CIV. 4975, 2011 WL
5120668, at *9 (S.D.N.Y. Oct. 28, 2011) (finding that the plaintiff’s loss of adequate storage
space did not plausibly allege an adverse employment action because “the Complaint does not
contain a single allegation that [the plaintiff] suffered any diminution in title, seniority, salary or
other tangible benefits as a consequence of this decision”).
b. Inference of Discrimination
“The ‘ultimate issue’ in an employment discrimination case is whether the plaintiff has
met her burden of proving that the adverse employment decision was motivated at least in part
by an ‘impermissible reason,’ i.e., a discriminatory reason.” Stratton v. Dep't for the Aging for
City of New York, 132 F.3d 869, 878 (2d Cir. 1997) (citing Fields v. New York State Office of
Mental Retardation & Dev. Disabilities, 115 F.3d 116, 119 (2d Cir. 1997)). “A plaintiff can
meet that burden through direct evidence of intent to discriminate . . . or by indirectly showing
circumstances giving rise to an inference of discrimination.” Vega, 801 F.3d at 87 (internal
citations omitted). For example, “[a]n inference of discrimination can arise from circumstances
including, but not limited to, ‘the employer’s criticism of the plaintiff’s performance in
ethnically degrading terms; or its invidious comments about others in the employee’s protected
group; or the more favorable treatment of employees not in the protected group; or the sequence
of events leading to the plaintiff’s discharge.’” Littlejohn, 795 F.3d at 312 (quoting Leibowitz v.
Cornell Univ., 584 F.3d 487, 502 (2d Cir. 2009)). The plaintiff may also prove discrimination by
“creating a ‘mosaic’ of intentional discrimination by identifying ‘bits and pieces of evidence’
that together give rise to an inference of discrimination.” Vega, 801 F.3d at 87.
20
Whatever category or combination of categories of evidence a plaintiff relies on to allege
a discrimination claim, the Second Circuit has made clear that “at the initial stage of a litigation,
the plaintiff's burden is ‘minimal’ — he need only plausibly allege facts that provide ‘at least
minimal support for the proposition that the employer was motivated by discriminatory intent.’”
Id. (quoting Littlejohn, 795 F.3d at 311). Thus, in making the plausibility determination, a
district court “must be mindful of the ‘elusive’ nature of intentional discrimination” and that
“rarely is there ‘direct, smoking gun, evidence of discrimination.’” Id. (internal quotation marks
and citations omitted).
For example, in Littlejohn v. City of New York, supra, the Second Circuit found that a
district court erred in granting a Rule 12(b)(6) motion to dismiss a Title VII race discrimination
claim. 795 F.3d at 313. There, the plaintiff alleged that she was demoted and replaced by a
white employee with less experience. Id. The circuit court found that these factual allegations
were “more than sufficient to make plausible her claim that her demotion occurred under
circumstances giving rise to an inference of discrimination.” Id.
Similarly, in Vega v. Hempstead Union Free Sch. Dist., supra, the Second Circuit found
that a district court erred in finding that a complaint failed to plausibly allege a race
discrimination claim by a Hispanic teacher against his employer, a school district. 801 F.3d at
88. The complaint alleged that the plaintiff was assigned a large percentage of Hispanic
speaking students, while his similarly situated non-Hispanic co-workers were not assigned such
work. Id. at 88–89. Construing this allegation as true, the circuit court found that the complaint
plausibly alleged that the plaintiff’s Hispanic background was a motivating factor in the district’s
decision to assign him extra work when viewed in the context of other alleged actions taken by
the district — such as, placing a University of Puerto Rico sign outside of his classroom and
21
attempting to transfer him to a Hispanic principal’s school —, which were “plausibly connected
to the plaintiff’s Hispanic background.” Id. at 89.
c. The Single Employer Doctrine
Title VII makes it “an unlawful employment practice 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).
“Consequently, the existence of an employer-employee relationship is a primary element of Title
VII claims.” Gulino v. New York State Educ. Dep’t, 460 F.3d 361, 370 (2d Cir. 2006).
“Although Title VII provides definitions of both ‘employer’ and ‘employee,’ neither definition is
particularly helpful in deciding whether an employment relationship exists.” Id.
The Supreme Court has filled in the interpretative gap by referring to principles of
common law agency. See Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 739–40, 109
S. Ct. 2166, 2172, 104 L. Ed. 2d 811 (1989) (“In the past, when Congress has used the term
‘employee’ without defining it, we have concluded that Congress intended to describe the
conventional master-servant relationship as understood by common-law agency doctrine.”).
Relevant here, “[t]o prevail in an employment action against a defendant who is not the
plaintiff’s direct employer, the plaintiff must establish that the defendant is part of an ‘integrated
enterprise’ with the employer, thus making one liable for the illegal acts of the other.’” Brown v.
Daikin Am. Inc., 756 F.3d 219, 226 (2d Cir. 2014) (quoting Parker v. Columbia Pictures Indus.,
204 F.3d 326, 341 (2d Cir. 2000)). To determine whether a parent company can be liable for the
conduct of a subsidiary, this Circuit has adopted the “single-employer’ test. Id. (citing Cook v.
Arrowsmith Shelburne, Inc., 69 F.3d 1235 (2d Cir. 1995)) Under that test, “[a] parent and
22
subsidiary cannot be found to represent a single, integrated enterprise in the absence of evidence
of (1) interrelation of operations, (2) centralized control of labor relations, (3) common
management, and (4) common ownership or financial control.” Id. (citation and internal
quotation marks omitted).
No one factor is determinative; however, the Second Circuit has stated that the second
factor, centralized control of labor relations, “is the central concern.” Murray v. Miner, 74 F.3d
402, 404 (2d Cir. 1996). To satisfy this factor, “a plaintiff need not allege that the parent
exercises ‘total control or ultimate authority over hiring decisions,’ so long as he alleges that
there is ‘an amount of participation [by the parent] that is sufficient and necessary to the total
employment process.” Brown, 756 F.3d at 227 (quoting Cook, 69 F.3d at 1241). Also, of
importance here, “[w]hether two related entities are sufficiently integrated to be treated as a
single employer is generally a question of fact not suitable to resolution on a motion to dismiss.”
Id. at 226.
2. The Application
a. Adverse Employment Action
In the present case, the parties do not dispute — nor could they in light of the binding
case law described above — that the Defendant’s decision to terminate the Plaintiff constitutes
an adverse employment action that satisfies the first element of a Title VII discrimination claim.
(See the Sunbelt Defs.’ Reply Mem. of Law at 3–4; the On Site Defs.’ Reply Mem. of Law at 5–
6; the Pl.’s Cross Mot. at 12.)
However, the parties dispute whether other actions alleged in the PAC constitute
independent adverse employment actions that can form the basis of a discrimination claim.
Specifically, the Plaintiff contends that the Defendants’ decision to reassign her desk from the
23
first floor to the second floor and their decision to allegedly strip her of her job responsibilities
over daily reports both constituted independent adverse actions. (See the Pl.’s Reply Mem. of
Law at 4–5.)
The Defendants dispute that either of these alleged acts constitute adverse employment
actions. (See the Sunbelt Defs.’ Reply Mem. of Law at 3–4; the On Site Defs.’ Reply Mem. of
Law at 5–6.) The Court agrees.
With regard to the relocation of the Plaintiff’s desk, the PAC states that in May or June
2014, after the Plaintiff complained to Kyle Horgan about the alleged discriminatory acts of the
Defendants, “her desk was relocated to the upstairs floor, isolated from all employees despite her
responsibility to oversee operations.” (PAC at ¶ 108.)
As noted above, to plausibly establish an adverse employment action, the Plaintiff must
allege she suffered a “material loss of benefits, significantly diminished material responsibilities,
or other indices” as result of the relocation of her desk. Terry v. Ashcroft, 336 F.3d at 1380
(internal quotation marks and citation omitted). There are no such allegations in the PAC.
Rather, as alleged, the relocation of her desk appears to be nothing more than an inconvenience.
See Vega, 801 F.3d at 85 (‘“An adverse employment action is one which is more disruptive than
a mere inconvenience or an alteration of job responsibilities.”’) (quoting Terry, 336 F.3d at 138).
Therefore, the Court finds that the Defendants’ alleged decision to relocate the Plaintiff’s
desk, standing alone, does not constitute an adverse employment action. See Carpenter, 2016
WL 4059353 at *7 (“The Court concludes that all of the potentially negative consequences set
forth in Plaintiff’s memo in opposition to the motion to dismiss are highly speculative; and
regardless, these consequences were not alleged in the SAC. Thus, Plaintiff fails to allege an
24
adverse action based on a disproportionately heavy workload, vis-à -vis the order to leave
Headquarters.”).
Similarly, the Plaintiff contends that in May or June 2014, the Defendants stripped her of
her supervisory responsibilities over daily reports. (PAC at ¶¶ 98, 113.) However, the PAC does
not offer any allegations suggesting that “reviewing daily reports” was a material part of the
Plaintiff’s job. Indeed, to the contrary, according to the PAC, reviewing daily reports was one of
many duties that the Plaintiff was responsible for, including among others, applying company
policy; ensuring that the PC 104 staff yard was presentable; and approving weekly sales plans
and contract plans. (Id. at ¶ 56.) Under these circumstances, the Court cannot plausibly
conclude that the fact, even if true, that the Defendants stripped the Plaintiff of her responsibility
over “daily reports” constituted a material adverse change in the terms and conditions of
employment. See Littlejohn, 795 F.3d 297, 312 n.10 (finding the defendant’s decision to
exclude the plaintiff from meetings involving a merger did not constitute an adverse action
because it did not “significantly diminish” the plaintiff’s responsibilities).
In her legal memorandum, the Plaintiff cites to two prior decision of this court: Scafidi v.
Baldwin Union Free Sch. Dist., 295 F. Supp. 2d 235 (E.D.N.Y. 2003); and Mendelsohn v. Univ.
Hosp., 178 F. Supp. 2d 323 (E.D.N.Y. 2002). In both of those cases, this court found that the
plaintiffs sufficiently pled adverse employment actions for the purpose of retaliation claims, not
discrimination claims. See Scafidi, 295 F. Supp. 2d at 238–39 (finding that a school district’s
decision to reassign a disabled plaintiff to an inconvenient location, together with other
allegations that she was assigned extra work and denied access to clerical staff, were “sufficient
to qualify as adverse employment actions to sustain a retaliation claim”); Mendelsohn, 178 F.
25
Supp. 2d at 330 (finding that the reduction of the plaintiff’s teaching responsibilities could
plausibly satisfy the adverse employment action element of a retaliation claim).
However, as described in more detail below, the definition of adverse employment action
for Title VII retaliation claims “covers a broader range of conduct than does the adverse-action
standard for claims of discrimination under Title VII[.]” See Vega, 801 F.3d at 90. Thus, the
Court finds that Mendelsohn and Scafidi do not support the Plaintiff’s contention that the
Defendants’ alleged actions of relocating her desk and taking away her responsibility over daily
reports plausibly establish an adverse employment action for the purpose of a discrimination
claim.
Accordingly, the only adverse employment action alleged in the PAC is the Plaintiff’s
termination. However, the Court notes that even if the Plaintiff’s other allegations of
discrimination do not independently constitute adverse employment actions, they may provide
relevant background evidence regarding the second factor of a gender discrimination claim,
namely whether the Plaintiff’s gender was a motivating factor in the Defendants’ decision to fire
her. See Vega, 801 F.3d at 88 (“Vega’s other allegations of discrimination, even if they do not
independently constitute adverse employment actions, provide ‘relevant background evidence’
by shedding light on Defendant's motivation and thus bolster his claim that Defendants treated
him differently because of his ethnicity.”) (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 112, S. Ct. 2061, 153 L. Ed. 2d 106 (2002)).
b. The Motiving Factor
The Court finds that the Plaintiff has satisfied the minimal showing required at this
motion to dismiss stage to plausibly allege that the Defendant’s decision to terminate her
employment on July 18, 2014 was motivated at least in part by a discriminatory reason.
26
The Court acknowledges that PAC is not a model of clarity. It is loosely organized, not
in strict chronological order, and does not contain specific dates for every allegation of
discrimination. That said, when pieced together, the Court finds that the allegations in the PAC
create a “mosaic” of facts, which if true, give rise to a plausible inference that the Defendants
were motivated by gender bias. See Vega, 801 F.3d at 87 (“A plaintiff may prove discrimination
indirectly . . . by otherwise creating a ‘mosaic’ of intentional discrimination by identifying ‘bits
and pieces of evidence’ that together give rise to an inference of discrimination.”) (quoting
Gallagher v. Delaney, 139 F.3d 338, 342 (2d Cir. 1998)).
In particular, the PAC alleges that from May to June 2014, four of the six female
employees working within PC 104, the Plaintiff’s department, were terminated and replaced with
men, at least one of whom, Joesph Domaratius, had less seniority and was paid less than
Rosemary Maiello, the woman who he replaced. (See PAC at ¶¶ 61–68.) Furthermore, allegedly
no men were fired during this same period. (Id. at ¶ 71.) Subsequently, on June 20, 2014, Mike
French informed the Plaintiff that her employment would be terminated, effective July 18, 2014.
(Id. at ¶ 114.) Thus, from May 2014 to June 2014, Defendants allegedly terminated five of the
six women in the Plaintiff’s department and none of the men in that department.
The Second Circuit has stated that “[t]he fact that a plaintiff was replaced by someone
outside the protected class will ordinarily suffice for the required inference of discrimination at
the initial prima facie stage of the Title VII analysis, including at the pleading stage.” Littlejohn,
795 F.3d at 313. Thus, by themselves, these allegations could give rise an inference that the
Plaintiff’s termination was motivated by gender bias. See id. (finding that a complaint plausibly
stated a discrimination claim based on allegation that the plaintiff, an African American, was
replaced by a white employee who was less qualified).
27
In addition, the PAC alleges that in May 2014, the Plaintiff met with Mike French and
Patrick French, and during the meeting, they told the Plaintiff that the position of Assistant
Manager was too powerful for women and suggested that she step down to an administrative
position. (PAC at ¶¶ 87–88.) In response to complaint from the Plaintiff about the meeting,
Kyle Horgan allegedly told the Plaintiff that she was “being too aggressive and overacting” and
suggested that the Plaintiff “should assume the submissive role expected of females and play
nicely within the boys’ club.” (Id. at ¶ 100.) Further, during a trade show at some point prior to
her termination, Mike French allegedly told the Plaintiff that he was “disgust[ed] with the idea
that one of [Sunbelt’s] clients could have a female top executive running the company.” (Id. at ¶
115.)
Thus, according to the PAC, in the weeks prior to June 20, 2014, when the Defendants
gave the Plaintiff notice of her termination, at least three of the four executives at Sunbelt and On
Site who were allegedly involved in the decision to terminate the Plaintiff’s employment, made
comments to the Plaintiff that overtly suggested that they were biased against female employees.
Here too, standing alone, courts have found these types of allegations sufficient to satisfy the
minimal pleading burden for discrimination claims at the motion to dismiss stage. See
Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 91 (2d Cir. 1996) (“The circumstances
that give rise to an inference of discriminatory motive include actions or remarks made by
decisionmakers that could be viewed as reflecting a discriminatory animus.”); Yang v. Dep’t of
Educ. of the City of New York, No. 14CV7037 (SLT) (RLM), 2016 WL 4028131, at *7–8
(E.D.N.Y. July 26, 2016) (finding that frequent comments made by a plaintiff’s supervisor
pointing out that the plaintiff was Chinese were sufficient to give rise an inference of national
origin discrimination at the motion to dismiss stage).
28
Clearly, then, when viewed together, the Plaintiff’s allegations of Sunbelt’s alleged
disparate treatment of female employees in PC 104, and of the discriminatory comments made
by three of the Plaintiff’s supervisors close-in-time to her termination, give rise to a plausible
inference of gender discrimination on the part of the Corporate Defendants. See Vega, 801 F.3d
at 88 (finding that the allegation that a school district assigned a teacher more Hispanic students
than his non-Hispanic colleagues, together with allegations that the district posted a University of
Puerto Rico banner outside of his office and attempted to transfer him to a Hispanic school, were
sufficient to state a race discrimination claim).
The Court does not find that the Defendants’ arguments are to the contrary. First, the
Sunbelt Defendants assert that the allegations in the PAC fail to plausibly give rise to an
inference that her termination was discriminatory because the Plaintiff relies on her own
“subjective interpretations” of the Defendants’ comments. (See the Sunbelt Defs.’ Mot. to
Dismiss at 9; the Sunbelt Defs.’ Reply Mem. of Law at 4–5.)
That is not the case. The comments by the Plaintiffs’ supervisors prior to her
termination, objectively suggest gender bias because they explicilty refer to the supposed beliefs
of Mike French, Patrick French, and Kyle Horgan that female employees were not qualified to be
management employees because of their gender. Thus, the Court finds that their comments
plausibly give rise to an inference of gender discrimination, irrespective of the Plaintiff’s
subjective feelings about those remarks. See Yang 2016 WL 4028131 at *7 (finding that
frequent derogatory comments about the plaintiff’s Chinese accent could be viewed as reflecting
animus against the plaintiff on account of her national origin).
Next, the Sunbelt Defendants contend that the Plaintiff’s allegations of the Defendants’
alleged disparate treatment of female employees fail to state a plausible claim of discrimination
29
because the Plaintiff does not identify a single appropriate comparator. (See the Sunbelt Defs.’
Mot. to Dismiss at 9.) Again, the Court disagrees.
To establish an inference of a disparate treatment, “a plaintiff must allege that ‘she was
similarly situated in all material respects to the individuals with whom she seeks to compare
herself.’” Brown v. Daikin Am. Inc., 756 F.3d 219, 230 (2d Cir. 2014) (quoting Graham v. Long
Island R.R., 230 F.3d 34, 39 (2d Cir. 2000)). Employees are similarly situated if they are
‘“subject to the same standards governing performance evaluation and discipline, and must have
engaged in conduct similar to the plaintiff’s.”’ Norville v. Staten Island Univ. Hosp., 196 F.3d
89, 96 (2d Cir. 1999) (quoting Mazzella v. RCA Global Communications, Inc., 642 F.Supp.
1531, 1547 (S.D.N.Y. 1986)). Ordinarily, ‘‘‘[w]hether two employees are similarly situated . . .
presents a question of fact,’ rather than a legal question to be resolved on a motion to dismiss.’”
Id. (citation omitted) (alteration in original).
For example, in Brown v. Daikin Am. Inc., supra, the Second Circuit found that a
complaint plausibly alleged that Japanese employees were similarly situated to the plaintiff, who
was not Japanese, based on the fact that they shared a supervisor and therefore, presumably
“were subject to the same performance evaluation and disciplinary standards.” 756 F.3d at 230.
Thus, the circuit court found that the allegation that the defendant fired the plaintiff but did not
fire any of the Japanese employees in the plaintiff’s department was sufficient to plausibly allege
a national origin or race discrimination claim. See id.
Similarly, here, as noted above, the PAC alleges that the Defendants gave the
responsibilities of Rosemary Maiello and Inez Monello, two of the six female employees in PC
104, to Joseph Domaratius, a male employee who appears to have also worked in PC 104 and
was less senior to them. Thus, at this early stage of the litigation, construing all reasonable
30
inferences in favor of the Plaintiff, Domaratius appears to have been subject the same
disciplinary standards as Maiello and Monello and was therefore, similarly situated to them.
Furthermore, even if the allegations of disparate treatment were not sufficient by
themselves, when viewed together with the comments of the Plaintiff’s supervisors, the Court
finds that the allegations in the PAC could plausibly give rise to an inference of discrimination.
See Vega, 801 F.3d at 88 (noting that although “[n]one of Vega’s other claims plausibly state a
claim on their own, . . . they help create context for his discrimination claim.”).
For these reasons, the Court concludes that the PAC plausibly alleges that the Plaintiff’s
gender was a motivating factor in the Defendants’ decision to terminate her employment.
c. The Single Employer Doctrine
According to the PAC, the Plaintiff was employed by On Site from 2001 to April 2014.
However, in April 2014, Sunbelt acquired On Site, and Sunbelt subsequently hired the Plaintiff
as an Assistant Manager. (See PAC at ¶ 49.) Ultimately, Sunbelt terminated the Plaintiff’s
employment, effective as of July 18, 2014. (Id. at ¶ 116.)
The On Site Defendants contend that because the Plaintiff was terminated by Sunbelt, not
by On Site, On Site cannot be held liable for any discrimination claims arising from the
Plaintiff’s termination. (See the On Site Defs.’ Reply Mem. of Law at 4–11.)
In response, the Plaintiff contends that On Site may be held liable for the post-acquisition
acts of Sunbelt under the single employer doctrine because On Site continued to play a role in
the personnel decisions and the operations of Sun Belt following the acquisition. (See the Pl.’s
Mot. to Amend at 8–10.) The Court agrees.
As discussed, supra, the single employer test contains four factors: (1) interrelation of
operations, (2) centralized control of labor relations, (3) common management, and (4) common
31
ownership or financial control. See Cook, 69 F.3d at 1240. “Although no one factor is
determinative . . . control of labor relations is the central concern.” Murray, 74 F.3d at 404.
For example, in Brown v. Daikin Am. Inc., supra, at issue was whether a parent company
could be held liable for the alleged discriminatory decision of its subsidiary to terminate the
plaintiff’s employment. See id. at 227. The Second Circuit found the plaintiff plausibly alleged
that the parent and subsidiary were a single employer for purposes of Title VII based on
allegations that the parent company closely directed the operations of the subsidiary; approved
all significant actions of the subsidiary; and prohibited the subsidiary from reassigning or
discharging employees. Id. at 228. In so doing, the circuit court acknowledged that the plaintiff
did not plead facts suggesting that the parent company had “significant responsibility” over the
subsidiary’s labor relations, had common management, nor participated directly in the
subsidiary’s decision to fire the plaintiff. Id. at 228. Nevertheless, the court found that the
control that the parent was alleged to have exercised over its subsidiary’s employment actions
was adequate to pass Rule 12(b)(6) muster. Id.; see also Christiansen v. Omnicom Grp., Inc.,
No. 15 CIV. 3440 (KPF), 2016 WL 951581, at *4 (S.D.N.Y. Mar. 9, 2016) (finding that a parent
could be held liable for the discriminatory acts of a subsidiary under the single employer doctrine
based on allegations that the parent exercised extensive control over the subsidiary’s “operations
and personnel decisions”; controlled the subsidiary’s healthcare and retirement benefits; and
promulgated the subsidiary’s employment handbook).
Similarly, in this case, the PAC alleges that following Sunbelt’s April 2014 acquisition,
On Site continued to “play a role in the personnel decisions of Sunbelt employees.” (Id. at ¶ 59.)
Also following the acquisition, On Site kept paying union dues for all of its former employees, as
well as unemployment and health benefits for certain employees. (Id.)
32
The Court recognizes that the PAC, like the complaint at issue in Brown, is vague on how
much authority On Site exercised over personnel matters. Likewise, the PAC does not specify
whether the two companies had common management or ownership, nor how integrated their
operations were. However, at this stage of the litigation, the Court finds that the allegations,
construed as true, suggest that On Site played a sufficient role in the personnel matters of Sunbelt
to satisfy the single employer test. See Christiansen, 2016 WL 951581 at *4 (“It is entirely
possible that discovery will reveal an insufficient degree of integration for Omnicom and DDB to
fairly be called a ‘single employer’; at this stage in the litigation, however, Plaintiff has alleged
sufficient facts to establish employment discrimination liability against Omnicom as part of an
integrated enterprise with his direct employer, DDB.”); Zaffuto v. Peregrine Health Mgmt., 280
F.R.D. 96, 101 (W.D.N.Y. 2012) (“Given this evidence, it is simply impossible to determine, on
this record, whether plaintiff continued to be, or ceased to be employed by Peregrine Health after
March 6, 2009. A fuller factual record may enable such a determination to be made at some later
time, but at this point, defendant’s motion to dismiss on this ground must be denied.”).
In sum, the Court finds that the PAC plausibly alleges a Title VII gender discrimination
claim against both On Site and Sunbelt.
E. As to the Retaliation Claim
1. The Legal Standard
In order to present a prima facie case of retaliation under Title VII, a plaintiff must
adduce evidence sufficient to permit a rational trier of fact to find:
[1] that she ‘engaged in protected participation or opposition under Title VII, [2]
that the employer was aware of this activity, [3] that the employer took adverse
action against the plaintiff, and [4] that a causal connection exists between the
protected activity and the adverse action, i.e., that a retaliatory motive played a
part in the adverse employment action.
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Cifra v. G.E. Co., 252 F.3d 205, 216 (2d Cir. 2001) (quoting Sumner v. United States Postal
Service, 899 F.2d 203, 208–09 (2d Cir. 1990)). However, as with the Title VII discrimination
claims, “the allegations in the complaint need only give plausible support to the reduced prima
facie requirements that arise under McDonnell Douglas in the initial phase of a Title VII
litigation.” Littlejohn, 795 F.3d at 316.
Here, the parties primarily dispute the third and fourth factors. With respect to the third
factor, “[t]he Supreme Court has held that in the context of a Title VII retaliation claim, an
adverse employment action is any action that ‘could well dissuade a reasonable worker from
making or supporting a charge of discrimination.’” Vega, 801 F.3d at 90 (quoting Burlington N.,
548 U.S. at 57, 126 S.Ct. 2405). As noted earlier, “[t]his definition covers a broader range of
conduct than does the adverse-action standard for claims of discrimination under Title VII: [T]he
antiretaliation provision, unlike the substantive [discrimination] provision, is not limited to
discriminatory actions that affect the terms and conditions of employment.” Id. (citation and
internal quotation marks omitted).
The inquiry into whether the actions of an employer could dissuade a reasonable worker
from making a charge of discrimination is objective and context-specific. See Burlington N. &
Santa Fe Ry. Co., 548 U.S. at 69, 126 S. Ct. at 2415 (“We phrase the standard in general terms
because the significance of any given act of retaliation will often depend upon the particular
circumstances. Context matters. ‘The real social impact of workplace behavior often depends on
a constellation of surrounding circumstances, expectations, and relationships which are not fully
captured by a simple recitation of the words used or the physical acts performed.’”) (quoting
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81–82, 118 S. Ct. 998, 1003, 140 L. Ed.
2d 201 (1998)).
34
With regard to causation, “a plaintiff must plausibly plead a connection between the act
and his engagement in protected activity.” Vega, 801 F.3d at 90. “Unlike Title VII
discrimination claims, . . . for an adverse retaliatory action to be ‘because’ a plaintiff made a
charge, the plaintiff must plausibly allege that the retaliation was a ‘but-for’ cause of the
employer’s adverse action.” Vega, 801 F.3d at 90. That is, “a plaintiff alleging retaliation in
violation of Title VII must show that retaliation was a ‘but-for’ cause of the adverse action, and
not simply a ‘substantial’ or ‘motivating’ factor in the employer’s decision.” Zann Kwan v.
Andalex Grp. LLC, 737 F.3d 834, 845 (2d Cir. 2013) (citing Univ. of Texas Sw. Med. Ctr. v.
Nassar, 133 S. Ct. 2517, 2526, 186 L. Ed. 2d 503 (2013)).
“A causal connection in retaliation claims can be shown either ‘(1) indirectly, by showing
that the protected activity was followed closely by discriminatory treatment, or through other
circumstantial evidence such as disparate treatment of fellow employees who engaged in similar
conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by
the defendant.’” Littlejohn, 795 F.3d at 319 (quoting Gordon v. N.Y.C. Bd. of Educ., 232 F.3d
111, 117 (2d Cir. 2000)).
The Second Circuit “has not drawn a bright line defining, for the purposes of a prima
facie case, the outer limits beyond which a temporal relationship is too attenuated to establish
causation.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010). Thus, for
example, this Circuit has previously held that “five months is not too long to find the causal
relationship.” Id. (citing Gorman-Bakos v. Cornell Coop. Extension of Schenectady County, 252
F.3d 545, 554 (2d Cir. 2001)).
Of course, like many aspects of causation in the Title VII context, the inquiry is
dependent on the relevant circumstances of the case. For example, in Vega, the Second Circuit
35
found that the temporal proximity of several months between the plaintiff’s filing of an EEOC
charge and the defendant’s alleged adverse employments actions was sufficient to infer a
retaliatory purpose on the part of the defendant, particularly when considering all of the
defendants’ alleged acts together. Vega, 801 F.3d at 92 (“Some of these actions, considered
individually, might not amount to much. Taken together, however, they plausibly paint a mosaic
of retaliation and an intent to punish Vega for complaining of discrimination.”); Carlson v. CSX
Transp., Inc., 758 F.3d 819, 829 (7th Cir. 2014) (“In this case, Carlson has alleged that the
resolution of her 2007 lawsuit in 2009 sparked animosity right away and that all of her attempts
to advance at CSX since then have been thwarted. She has described an ongoing campaign of
retaliation, and her claims must be viewed through that lens.”)
2. The Application
Based on these standards, the Court also finds that the allegations in the PAC sufficiently
allege a Title VII retaliation claim against the Corporate Defendants.
According to the PAC, in May 2014, the Plaintiff met with Mike and Patrick French, two
of her supervisors. (PAC at ¶ 87.) During the meeting, they allegedly told her that there was no
room for female managers at the company and suggested that she step down from her Assistant
Manager title to an administrative position because of her gender. (Id. at ¶ 88.) Following the
meeting, at some point in May or June 2014, the Plaintiff allegedly complained to Kyle Horgan
about the comments made by Mike and Patrick French. (Id. at ¶ 98.)
Following that meeting, the Defendants allegedly decided to relocate the Plaintiff’s desk
from the first floor of Sunbelt’s office, where the workers who she supervised were located, to
the second floor, which was allegedly isolated from those workers. (Id. at ¶ 108.) At some point
during this period, the Defendants allegedly told the Plaintiff not to handle “the daily reports,”
36
which she had previously been in charge of reviewing. (Id. at ¶ 113.) Mike French and Patrick
French also “regularly taunted and humiliated the Plaintiff;” ignored her calls; and assigned ring
tones to her phone number so that when she called them, their phones would emit the sounds of
missiles, old car horns, and dogs barking. (Id. at ¶ 109–113.) Finally, on June 20, 2014, Mike
French and Patrick French met with the Plaintiff and told her that her last day of work would be
July 18, 2014. (Id. at ¶ 114.)
Based on these allegations, the parties apparently agree that as alleged, the Plaintiff
engaged in protected activity when in May or June 2014, she complained to Kyle Horgan. They
also agree that the Plaintiffs’ termination constitutes an adverse employment action.
However, the Sun Belt Defendants argue that the other actions identified by the Plaintiff
following her meeting with Kyle Horgan do not constitute adverse employment actions for
purposes of retaliation. (See the Sun Belt Defs.’ Reply Mem. of Law at 6–7.) They further
assert that the PAC fails to plead the facts necessary to establish that a retaliatory motive was a
“but for” cause of the Defendants’ decision to terminate her employment. (Id. at 7.) Again, the
Court disagrees.
Allegedly, the Plaintiff complained to Kyle Horgan in May or June 2014 and was given a
notice of termination on June 20, 2014, which was, at most, two months later. As noted above,
courts in this Circuit have found that equivalent gaps of time to be sufficient to plausibly infer
the requisite causation for retaliation claims. See Vega, 801 F.3d at 92 (finding that allegations
that the plaintiff engaged in protected activities and then suffered adverse employments action
several months later were sufficient to plausibly establish causation for a Title VII retaliation
claim); Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009) (“[W]e find that the passage of only
six months between the dismissal of Espinal’s lawsuit and an allegedly retaliatory beating by
37
officers, one of whom (Surber) was a defendant in the prior lawsuit, is sufficient to support an
inference of a causal connection.”); McDowell v. N. Shore-Long Island Jewish Health Sys., Inc.,
788 F. Supp. 2d 78, 82 (E.D.N.Y. 2011) (Spatt, J) (“While some courts within this Circuit have
held that a three month gap is insufficient to show a causal connection, others have found that a
separation of as much as eight months will permit an inference of causation.”).
Thus, based solely on the alleged temporal proximity between when the Plaintiff engaged
protected activity and when she was given a notice of termination, the Court finds it plausible to
infer a sufficient causal connection between the two events so as to state a retaliation claim.
Furthermore, according to the PAC, immediately after the Plaintiff met with Kyle Horgan
to complain about Mike and Patrick French, the two of them verbally harassed her; relocated her
desk so that she would be isolated from her co-workers; and took away at least one of her job
responsibilities. Even assuming arguendo that none of these actions independently constitutes
an adverse employment action, taken together, “they plausibly paint a mosaic of retaliation and
an intent to punish [the Plaintiff] for complaining of discrimination.” Vega, 801 F.3d at 92.
Thus, viewing the totality of allegations, an inference of a retaliatory motive on the part of the
Defendants in deciding to terminate the Plaintiff becomes even more plausible.
The On Site Defendants contend that even if the PAC states a plausible retaliation claim
against Sunbelt, On Site cannot be held liable for that claim because On Site did not employ the
Plaintiff in May 2014, when the Plaintiff allegedly complained to Kyle Horgan about the
Defendants’ alleged discriminatory acts, or on June 20, 2014, when the Plaintiff received notice
of her termination. (See the On Site Defs.’ Mem.of Law at 16–18.)
However, the “single employer” doctrine, described supra, also applies to Title VII
retaliation claims. Thus, for the reasons already discussed above with regard to the Title VII
38
discrimination claim against On Site, the Court finds that the PAC plausibly alleges that On Site
and Sunbelt are a “single employer” under Title VII, and by extension, can both be held liable
for the alleged retaliatory acts of Sunbelt employees committed against the Plaintiff.
For these reasons, the Court finds that the PAC plausibly alleges a Title VII retaliation
claim against On Site and Sunbelt.
F. As to the Hostile Work Environment Claim
1. The Legal Standard
“To state a claim for a hostile work environment in violation of Title VII, a plaintiff must
plead facts that would tend to show that the complained of conduct: (1) ‘is objectively severe or
pervasive — that is, . . . creates an environment that a reasonable person would find hostile or
abusive’; (2) creates an environment ‘that the plaintiff subjectively perceives as hostile or
abusive’; and (3) ‘creates such an environment because of the plaintiff’s sex.’” Patane v. Clark,
508 F.3d 106, 113 (2d Cir. 2007) (quoting Gregory v. Daly, 243 F.3d 687, 691–92 (2d Cir.
2001)).
To show that conduct was objectively severe or pervasive, a plaintiff ‘“must demonstrate
either that a single incident was extraordinarily severe, or that a series of incidents were
‘sufficiently continuous and concerted’ to have altered the conditions of her working
environment.”’ Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002) (quoting Cruz v. Coach
Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000)). In making a determination as to the objective
severity or pervasiveness of challenged conduct, courts consider “the totality of the
circumstances, including ‘the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
39
interferes with an employee's work performance.’” Littlejohn, 795 F.3d at 321 (quoting Harris v.
Forklift Sys., Inc., 510 U.S. 17, 23, 114 S. Ct. 367, 126 L.Ed.2d 295 (1993)).
“Ultimately, to avoid dismissal under FRCP 12(b)(6), a plaintiff need only plead facts
sufficient to support the conclusion that she was faced with ‘harassment . . . of such quality or
quantity that a reasonable employee would find the conditions of her employment altered for the
worse.’” Patane, 508 F.3d at 113 (quoting Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003)).
In the Rule 12(b)(6) context, the Second Circuit has “repeatedly cautioned against setting the bar
too high” in this context. Id. (internal quotation marks and citation omitted).
As relevant here, “a plaintiff need only allege that she suffered a hostile work
environment because of her gender, not that all of the offensive conduct was specifically aimed
at her.” Id. at 114. Thus, for example, in Patane v. Clark, supra, the Second Circuit found that
allegations about the harassment of employees other than the plaintiff, as well as the presence of
pornography in the workplace, to support a plausible claim for a hostile work environment even
though some of the conduct was not necessarily directly aimed at the plaintiff. 508 F.3d at 114;
see also McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 85 (2d Cir. 2010) (“[T]hese incidents
must be considered alongside the other comments, only some of which I mentioned above, that
were not directed to or about McGullam, but also contributed to a work environment that was
hostile to women.”).
2. The Application
Applying these standards here, the Court finds that the Plaintiff has plausibly alleged a
claim for hostile work environment. According to the PAC, Patrick French and other
management employees “repeatedly propositioned female employees and attempted to engage in
sexual relations during and outside of company hours[.]” (PAC ¶¶ at 46.) Irvin L. French and
40
Mike French also “repeated[ly]” engaged in open conversations, presumably heard by other
employees, about their extramarital affairs. (Id.) Other management employees also apparently
repeatedly made statements suggesting that a woman’s place was behind that of a man. (Id. at ¶
35.)
Construed as true, the Court finds that a reasonable factfinder could conclude that these
frequent comments evidencing a sexually explicit subject matter and a general bias against
women contributed to a hostile work environment. See Ingrassia v. Health & Hosp. Corp., 130
F. Supp. 3d 709, 722 (E.D.N.Y. 2015) (“Plaintiff alleges that she was subjected to repeated
comments about her gender and her age from two different supervisors, and further alleges that
one supervisor sexually harassed her by grabbing himself in the groin in Plaintiff's plain view. . .
While such allegations may not necessarily rise to the level of a prima facie case of hostile work
environment, they suffice to give Defendant fair notice of Plaintiff's claim.”).
In addition, the Plaintiff alleges that on one occasion, Irvin L. French ordered female
strippers to the Defendants’ office during company hours. (PAC at ¶ 46.) Further, management
employees apparently viewed pornographic materials in the office. (Id.) As an example, the
PAC states that in April 2014, Joe Meola told the Plaintiff that On Site’s server “could not be
salvaged because Mike French frequently downloaded pornography from the internet.” (Id. at ¶
52.)
The Second Circuit has “specifically recognized that the mere presence of pornography in
a workplace can alter the ‘status’ of women therein and is relevant to assessing the objective
hostility of the environment.” Patane, 508 F.3d at 114 (citing Wolak v. Spucci, 217 F.3d 157,
160–61 (2d Cir. 2000) (“Even if a woman’s out-of-work sexual experiences were such that she
could perhaps be expected to suffer less harm from viewing run-of-the-mill pornographic images
41
displayed in the office, pornography might still alter her status in the workplace, causing injury,
regardless of the trauma inflicted by the pornographic images alone.”)).
Accordingly, although somewhat vague, the Court finds that a reasonable jury could
easily conclude that the allegations that the Plaintiff’s supervisors ordered strippers to the
company office and repeatedly viewed pornography at work, even when viewed in isolation,
were objectively severe and created an environment that was hostile toward women. See Torres
v. Pisano, 116 F.3d 625, 631 (2d Cir.1997) (concluding that “general allegations of constant
abuse” create a jury question as to severity and pervasiveness “even in the absence of specific
details about each incident”).
Finally, the Plaintiff alleges that in April 2014, after the Plaintiff was promoted to the
title of Assistant Manager, Mike French, Patrick French, and Kyle Horgan made comments to
the Plaintiff, described above, suggesting that female employees, like the Plaintiff, should not
hold management positions because of their gender. They also apparently ignored the Plaintiff’s
complaints of gender discrimination and repeatedly belittled her in front of other employees.
(See PAC at ¶¶ 88, 92, 100, 115.)
Both the Onsite Defendants and the Sunbelt Defendants argue that these comments
represent stray remarks that do not qualify as severe and pervasive or rise to the level required to
create a hostile work environment. (See the Sunbelt Defs.’ Reply Mem. of Law at 5–6; On Site
Defs.’ Reply Mem. of Law at 17–18.)
While that may be true in isolation, when these comments are viewed through the prism
of the other allegations of sexually inappropriate behavior on the part of the Plaintiff’s
supervisors, they could reasonably take on a more sinister meaning that contributed to an overall
environment of gender hostility. See Terry, 336 F.3d at 148 (“In determining whether a hostile
42
environment exists, we must look at the ‘totality of the circumstances.’”) (quoting Richardson v.
New York State Dep’t of Corr. Serv., 180 F.3d 426, 437 (2d Cir. 1999)).
For these reasons, the Court finds that the Plaintiffs have also plausibly alleged a Title
VII hostile environment claim against On Site and Sunbelt.
III. CONCLUSION
For the foregoing reasons, the Court grants Defendants’ motions to dismiss solely with
respect to the New York State law claims and the Title VII claims against the Individual
Defendants. Further, the Court grants the Plaintiffs’ motion to file an amended complaint that is
limited to three claims against the Corporate Defendants under Title VII for gender
discrimination, retaliation, and hostile work environment.
Within 30 days of the date of this Order, the Plaintiff is directed to file an amended
complaint consistent with this Order. That is, the Plaintiff may not include in the amended
pleading New York State law claims, or Title VII claims against the Individual Defendants.
Rather, the amended complaint should only include the three above-mentioned Title VII claims
against the Corporate Defendants.
The case is referred to United States Magistrate Judge Gary R. Brown for discovery. The
Clerk of the Court is directed to terminate docket entries 10, 17, and 23.
Dated: Central Islip, New York.
August 15, 2016
_/s/ Arthur D. Spatt_
ARTHUR D. SPATT
United States District Judge
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