Castillo v. Seviroli Foods, Inc.
ORDER. Defendant's motion to stay 24 is granted in part and denied in part. Specifically, the parties shall complete Rule 26(a)(1) disclosures, interrogatories, and document discovery (so-called paper discovery) on or before March 30, 2022. Depositions - party, non-party and experts -- are stayed pending a resolution on Defendant's motion to dismiss (DE 15) by the Honorable Eric R. Komitee. See attached Order 28 for further details. Ordered by Magistrate Judge James M. Wicks on 11/19/2021. (Weinstein, Tracy)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
KIRSIS C. CASTILLO,
21-CV-0005 (ERK) (JMW)
-againstSEVIROLI FOODS, INC.,
WICKS, Magistrate Judge:
Before the Court is Defendant Seviroli Foods, Inc.’s motion to stay discovery (DE 23)
pending a decision on its motion to dismiss the Complaint (DE 15). For the reasons set forth
below, Defendant’s motion is granted in part and denied in part.
Plaintiff brought this Title VII action alleging unlawful discrimination based on
pregnancy, sex/gender, disability, and familial status. (DE 1.) Plaintiff began working for
Seviroli in January 2019. (Id. at ¶10.) Plaintiff advised Seviroli in February 2019 that she was
pregnant and would require medical leave after giving birth. (Id. at ¶13.) Plaintiff alleges that
when Defendant learned of her pregnancy, Defendant exclaimed, “Fuck! Another one!!” (Id. at
¶18.) Plaintiff gave birth in July 2019 and went on maternity leave. (Id. at ¶¶19, 21.) The
circumstances of whether Plaintiff subsequently resigned or was terminated is hotly disputed and
is discussed in further detail below.
Plaintiff filed a charge of discrimination with the U.S. Equal Employment Opportunity
Commission (“EEOC”) and the EEOC issued a Dismissal and Notice of Rights letter dated
October 5, 2020. (Id. at ¶ 64.) The letter states that the EEOC was “unable to conclude that the
information obtained establishes violations of the statutes. This does not certify that the
respondent is in compliance with the statutes. No finding is made as to any other issues that
might be construed as having been raised by this charge.” (DE 15-3.)
“‘[T]he power to stay proceedings is incidental to the power inherent in every court to
control the disposition of the cases on its docket with economy of time and effort for itself, for
counsel, and for litigants.’” Thomas v. N.Y. City Dep’t of Educ., No. 09-CV-5167 (SLT), 2010
WL 3709923, at *2 (E.D.N.Y. Sept. 14, 2010) (quoting Landis v. N. Am. Co., 299 U.S. 248, 254
(1936)). The filing of a dispositive motion in and of itself does not halt discovery obligations.
That is, a stay of discovery is not warranted, without more, by the mere pendency of a dispositive
motion. Weitzner v. Sciton, Inc., No. CV 2005-2533 (SLT) (MDG), 2006 WL 3827422, at *1
(E.D.N.Y. Dec. 27, 2006). Rather, the moving party must make a showing of “good cause” to
warrant a stay of discovery. Chesney v. Valley Stream Union Free Sch. Dist. No. 24, 236 F.R.D.
113, 115 (E.D.N.Y. 2006). In evaluating whether a stay of discovery pending resolution of a
motion to dismiss is appropriate, courts typically consider: “(1) whether the defendant has made
a strong showing that the plaintiff’s claim is unmeritorious; (2) the breadth of discovery and the
burden of responding to it; and (3) the risk of unfair prejudice to the party opposing the stay.”
Id. (citation omitted). “Courts also may take into consideration the nature and complexity of the
action, whether some or all of the defendants have joined in the request for a stay, and the
posture or stage of the litigation.” Id. (citation omitted).
A. Whether Defendant Has Made a Strong Showing That Plaintiff’s Claims Are
To establish a prima facie case of a Title VII claim, a plaintiff must show that (1) they
were a member of a protected class; (2) they were qualified for the job; (3) they suffered an
adverse employment action; and (4) the adverse employment action occurred under
circumstances giving rise to an inference of discrimination. Woodman v. WWOR-TV, Inc., 411
F.3d 69, 76 (2d Cir. 2005).
Defendant argues that its motion to dismiss will likely be dispositive of Plaintiff’s claims
because Plaintiff did not suffer an adverse employment action and Plaintiff failed to raise an
inference of discrimination. (DE 24.) Defendant also argues that Plaintiff failed to exhaust her
administrative remedies, and that the Court does not have jurisdiction over the NYSHRL claims.
(Id.) For the reasons set forth below, the Court finds that Defendant has not made a sufficient
showing that their 12(b)(6) arguments may be meritorious and thus, this factor weight against
issuing a stay.
Adverse Employment Action
Defendant asserts that Plaintiff fails to establish the third prong of a prima facie
employment discrimination case. (DE 15-5 at 6.) Relying on Shaw v. Yale New Haven Hospital,
Case No. 3:18-cv-00067 (VLB), 2020 WL 1923599 (D. Conn. 2020) (among other cases),
Defendant argues that an employer’s acceptance of a voluntary resignation does not constitute an
adverse employment action. (DE 15-5 at 6.) Defendant claims that the Department of Labor
(“DOL”) notice and EEOC Charge show that Plaintiff resigned from her job after she gave birth
To be clear, the Court is not in any way prejudging the anticipated motions to dismiss, but merely
considering their plausibility for purposes of weighing whether a stay should be granted in light of Fed. R.
Civ. P. 1.
and that she submitted documentation to the DOL that indicated she applied for unemployment
benefits due to lack of work. (Id.) Defendant argues that it denied this reasoning in the DOL
notice and that its employee, Darla Maldonado, responded to the notice by stating that Defendant
did not know Plaintiff was resigning until they received the notice from NYS Unemployment,
and that they did not lay her off due to lack of work. (Id. at 6-7) Defendant claims it accepted
the resignation. (Id. at 7.)
Plaintiff claims that she advised Defendant that she was pregnant five months prior to
giving birth and that she would need a brief maternity leave before returning to work. (DE 18 at
4.) According to Plaintiff, after giving birth she sent an email to Defendant advising that she
gave birth. (Id.) Her maternity-leave then began and she claims she told Defendant that she
planned to remain on leave for 6 weeks until August 20, 2019. (Id.) Plaintiff claims that
Defendant then took Plaintiff’s access to work email away and posted an opening for her job
online. (Id. at 4-5) Plaintiff called Maldonado and reminded her that she would be returning to
work in August, and Maldonado just said, “I don’t know,” and asked Plaintiff to return her
company laptop and cell phone. (Id. at 5) Plaintiff claims that in August when she tried to return
to work, Maldonado refused to allow her to return and accused her of resigning. (Id. at 5-6.)
At this stage, there appears to be a factual dispute as to whether Plaintiff resigned or was
terminated. Thus, it is not clear to the Court whether Defendant’s argument on its motion to
dismiss is meritorious as such a factual dispute cannot be resolved at this juncture.
Whether Plaintiff Raised an Inference of Discrimination
To defeat a motion to dismiss in a Title VII discrimination case, a plaintiff must plausibly
allege that the employer took adverse action against her and that her protected class was a
motivating factor in the employment decision. Vega v. Hempstead Union Free School Dist., 801
F.3d 72, 87 (2d Cir. 2015). Plaintiff may do so by alleging “facts that indirectly show
discrimination by giving rise to a plausible inference of discrimination.” Id. An inference of
discrimination can arise from the sequence of events that led to the employee’s discharge.
Littlejohn v. City of New York, 795 F.3d 297, 312 (2d Cir. 2015). “[T]he evidence necessary to
satisfy the[e] initial burden of establishing that an adverse employment action occurred under
circumstances giving rise to an inference of discrimination is minimal.” Id. at 313 (internal
quotations and citation omitted).
Defendant argues that Plaintiff has failed to satisfy the fourth prong of an employment
discrimination claim because Plaintiff does not allege facts to support that Defendant’s
acceptance of the resignation was based on anti-pregnancy animus. (De 15-5 at 8-9.) Defendant
makes a somewhat circular argument on this point, jumping to the conclusion that Plaintiff “fails
to allege any facts that could support a rational inference that Defendant’s acceptance of the
resignation she tendered in connection with her application for unemployment benefits was
really based on anti-pregnancy animus.” (Id.) Defendant fails to acknowledge Plaintiff’s
allegations in the pleadings that were specific to Plaintiff’s pregnancy, including purported
conversations about maternity leave, Plaintiff being told to return her laptop while on maternity
leave, her job being posted, and being locked out of her company email account while she was
on maternity leave. (DE 1 at ¶¶ 13, 16-17, 20-36.) Defendant instead focuses on the “Fuck!
Another one!!” comment, asserting that the comment was hearsay because it was not said
directly to Plaintiff. (DE 15-5 at 9.) Defendant further argues that including the comment in the
Complaint, but not the EEOC Charge, misrepresents to the Court what the allegations to the
EEOC were. (Id.)
The Court does not find Defendant’s arguments on this point persuasive. The argument
completely ignores the facts pled in the Complaint regarding Plaintiff’s conversations about
pregnancy and maternity leave. Further, the “Fuck!” comment appears to be “simply an
additional factual allegation supporting plaintiff’s underlying . . . hostile work environment
claims.” DeBerry v. Brookdale Univ. Hosp. and Med. Ctr., 11 F. Supp. 3d 387, 396 (E.D.N.Y.
2014). Moreover, no discovery has taken place so it is premature for Defendant to argue that the
comment must not be considered on a hearsay basis.
Exhaustion of Administrative Remedies
Under Title VII, a plaintiff must exhaust administrative remedies prior to filing suit in
federal court. Fowlkes v. Ironworkers Local 40, 790 F.3d 378, 384 (2d Cir. 2015).
Defendant argues that Plaintiff did not exhaust the required administrative remedies
because her Complaint alleges additional grounds for which the discrimination is based upon,
that expand on the boxes she checked off on the EEOC Charge (“sex” and “disability”). (DE 155 at 11.) According to Defendant, the EEOC did not have the opportunity to investigate the
additional grounds for discrimination that are alleged in the Complaint – pregnancy and familial
status. (Id.) First, Defendant’s facts are misstated, as both the EEOC Charge and Complaint
allege wrongful termination on the basis of pregnancy/disability and gender/sex. (DE 1; DE 153 at ¶1) Further, immediately following this argument, Defendant concedes that, “Both the
Complaint and the Charge allege that Plaintiff was not permitted to return to work after
concluding her maternity leave (Complaint ¶52) (Charge ¶8).” (DE 15-5 at 11.)
Moreover, the Court does not agree with Defendant’s arguments that Plaintiff failed to
exhaust her administrative remedies and therefore, the Court lacks subject matter jurisdiction.
“Administrative exhaustion is not a jurisdictional requirement; rather, it is merely a precondition
of suit and, accordingly, it is subject to equitable defenses.” Fowlkes, 790 F.3d at 384. Treating
subject matter jurisdiction as a threshold matter prevents the Court from considering potential
equitable defenses for which a plaintiff’s failure to exhaust administrative remedies may be
Further, on its face, the merits of whether pregnancy and familial status could be
reasonably related to sex and disability, the Court does not find Defendant’s argument on these
grounds particularly strong. “A claim is considered reasonably related if the conduct complained
of would fall within the scope of the EEOC investigation which can reasonably be expected to
grow out of the charge that was made[.]” Fitzgerald v. Henderson, 251 F.3d 345, 359-360 (2d
Cir. 2001) (internal quotations and citation omitted).
Defendant also argues that the Complaint and the EEOC Charge set forth separate
theories as to why Plaintiff was allegedly terminated. (DE 15-5 at 11.) Defendant asserts that in
the Complaint, the alleged pretextual reason for allegedly not allowing Plaintiff to return to work
was due solely to Defendant falsely accusing Plaintiff of resigning, without referencing that she
applied for unemployment benefits. (Id. at 11-12.) According to Defendant, and without citing
any authority, Plaintiff’s Complaint should be dismissed because this “new theory is insufficient
to challenge the weight of the DOL notice which makes it clear Plaintiff resigned.” (Id. at 12.)
Defendant again appears to ignore the factual allegations Plaintiff made regarding conversations
with Defendant about pregnancy and maternity leave. Further, the factual issue of whether
Plaintiff resigned or was terminated remains unresolved at this early stage. Thus, Defendant’s
argument does not appear meritorious to warrant dismissal of the Complaint.
Jurisdiction over the NYSHRL Claims
Plaintiff’s Complaint includes claims based on violations of New York State Human
Rights Law, which Defendant claims should be dismissed since Plaintiff cannot make a prima
facie Title VIII claim. (DE 15-5 at 13.) Defendant further argues that even if the Court
exercised pendent jurisdiction over the claims, Plaintiff cannot state a cause of action under
NYSHRL because she fails to establish Defendant took adverse action against her. (Id.) For the
reasons stated above, these arguments do not appear to have merit based on the evidence before
the Court at this juncture.
B. Breadth of Discovery and Burden of Responding to It
Defendant next argues that the breadth of discovery in this case and the burden of
responding to it weigh in favor of granting a stay of discovery pending a resolution of the motion
to dismiss. (DE 24-1 at 8.) Specifically, Defendant argues that the Complaint asserts multiple
causes of action; at least five of Defendant’s employees would need to be deposed as witnesses
to rebut the allegations in the Complaint; and Defendant would need to expend additional
resources to obtain records and evidence from the EEOC and the Department of Labor, both of
which have been involved in this case. (DE 24-1 at 8; DE 27 at 6–7.) In opposition, Plaintiff
argues that Defendant has made conclusory allegations and has failed to offer any facts to
demonstrate the purported burden of discovery. (DE 25 at 5.)
At oral argument on November 18, 2021, the parties advised that no discovery had been
exchanged and listed the anticipated document discovery they would each need. (DE
11/18/2021.) The Court does not find such discovery to be unduly burdensome. The Court
agrees with Plaintiff that permitting written discovery and staying depositions would alleviate
Defendant’s concerns. See, e.g., Rivera v. Inc. Vill. of Farmingdale, No. CV 06-2613
(DRH)(ARL), 2007 WL 3047089, at *1 (“[T]o accommodate the defendants’ concerns that the
depositions of the Village officials will be unnecessarily costly and burdensome, the court directs
that until such time as the motion to dismiss is decided that discovery be limited to document
Furthermore, even if this action is dismissed, the likelihood that the dispute will continue
yet in another venue is very real. Therefore, discovery produced here, is not all for naught.
C. Risk of Unfair Prejudice
Defendant argues that Plaintiff would not be prejudiced by granting a stay, noting that a
ruling on its motion to dismiss would likely narrow the issues and potentially prevent discovery
disputes. (DE 24-1 at 8.) Defendant claims that not staying the case would substantially
prejudice Defendant because of the resources involved in litigating the matter. (Id.) Again, the
Court does not find these arguments weigh in favor of granting a complete stay of discovery.
First, considering there is one Defendant and two causes of action (DE 1), there are not myriad
claims to narrow here. Second, for similar reasons discussed above, Defendant has failed to set
forth a viable basis for its contention that discovery limited to documents would be overly
burdensome. Thus, this factor also weighs against granting a complete stay of discovery.
Based on the foregoing, Defendant’s motion to stay is granted in part and denied in part.
Specifically, the parties shall complete Rule 26(a)(1) disclosures, interrogatories, and document
discovery (so-called “paper discovery”) on or before March 30, 2022. Depositions – party, nonparty and experts -- are stayed pending a resolution on Defendant’s motion to dismiss (DE 15) by
the Honorable Eric R. Komitee.
Dated: Central Islip, New York
November 19, 2021
O R D E R E D:
James M. Wicks
JAMES M. WICKS
United States Magistrate Judge
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