Lai v. Deiorio Foods Inc. et al

Filing 37

MEMORANDUM-DECISION and ORDERED, that Plaintiffs Motion (Dkt No. 28) for leave to amend is GRANTED; and it is further ORDERED, that the Second Amended Complaint (Dkt. No. 28) is now the operative pleading in this action; and it is further ORDERED, th at Plaintiffs request to add DeIorio Food Holdings, LLC as a defendant in this action is DENIED; and it is further ORDERED, that all claims against LSCG Management, Inc., LaSalle Capital Group Partners, LLC, and LaSalle Capital Group Partners II-A LL C are DISMISSED; and it is further ORDERED, that Plaintiffs breach of contract, promissory estoppel, vicarious liability, intentional infliction of emotional distress, and negligence claims are DISMISSED; and it is further ORDERED, that Defendants Motion (Dkt. No. 15) to dismiss is DENIED as moot. Signed by Senior Judge Lawrence E. Kahn on February 29, 2016.***A copy of this order was served upon the pro se plaintiff by regular US mail. (sas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
THAM T. LAI,
Plaintiff,
-against-

6:15-cv-0195 (LEK/TWD)

DEIORIO FOODS INC., et al.,
Defendants.

MEMORANDUM-DECISION and ORDER
I.

INTRODUCTION
Pro se Plaintiff Tham T. Lai (“Plaintiff”) commenced this civil rights action on February 20,

2015 against her employer, Defendant DeIorio Foods, Inc. (“DeIorio”), and its purported parent
organizations, LSCG Management, Inc., LaSalle Capital Group Partners, LLC, and LaSalle Capital
Group Partners II-A LLC (collectively, “Defendants”). Dkt. Nos. 1 (“Complaint); 7 (“Amended
Complaint”).1 Presently pending before the Court are Defendants’ Motion to dismiss for failure to
state a claim as well as Plaintiff’s Motion for leave to file a second amended complaint. Dkt Nos.
15 (“Motion to Dismiss); 15-1 (“Memorandum”); 28 (“Motion to Amend”). For the following
reasons, Plaintiff’s Motion for leave to file a second amended complaint is granted and Defendants’
Motion to dismiss is denied as moot.
II.

BACKGROUND
Because this matter is before the Court on a motion to dismiss, the allegations of the

1

On June 15, 2015, the Court terminated four individual Defendants who were named in the
original Complaint but not included in Plaintiff’s Amended Complaint. See Compl.; Am. Compl.

Complaint2 are accepted as true and form the basis of this section. See Boyd v. Nationwide Mut.
Ins. Co., 208 F.3d 406, 408 (2d Cir. 2000); see also Matson v. Bd. of Educ., 631 F.3d 57, 72 (2d
Cir. 2011) (noting that, in addressing a motion to dismiss, a court must view a plaintiff’s factual
allegations “in a light most favorable to the plaintiff and draw[] all reasonable inferences in her
favor”). Furthermore, in light of Plaintiff’s pro se status, the allegations in the Complaint “must be
construed liberally and interpreted to raise the strongest arguments that they suggest.” Sykes v.
Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (quoting Triestman v. Fed. Bureau of Prisons, 470
F.3d 471, 474 (2d Cir. 2006)).
A. Plaintiff’s Employment with DeIorio
Plaintiff was born in Vietnam and is a naturalized citizen of the United States of America.
Dkt. No. 28 (“Second Amended Complaint”) ¶ 8a. Plaintiff was employed by DeIorio in Utica,
New York from July 6, 2011 until December 5, 2014. Id. ¶ 8b. From August 11, 2011 until July
16, 2013, Plaintiff received positive performance evaluations. Id. ¶ 8o.
Plaintiff alleges that her line supervisor at DeIorio, Ismetta Kucevic (“Kucevic”),
discriminated, harassed, intimidated, and threatened her on a regular basis. Id. ¶ 8r. Kucevic is
Bosnian and favors individuals who are also Bosnian. Id. ¶ 8q. On November 7, 2013, Kucevic
threatened to suspend Plaintiff for three days without pay for an issue that Plaintiff was not involved
in. Id. ¶ 8s. Following this incident, Plaintiff wrote a letter to Diane Platzke (“Platzke”), human
resources manager, stating that Bosnian workers did not face similar treatment from Kucevic and
outlining Plaintiff’s concerns about her job security based on Kucevic’s behavior. Id. ¶¶ 8t; 8ll.

2

Since Plaintiff has filed a Motion for leave to file a second amended complaint, the Court
will use the allegations contained in the Second Amended Complaint to form the basis of this
section.
2

Plaintiff did not receive a response. Id. ¶ 8t.
On November 11, Kucevic accused Plaintiff of not filling out a report properly; Plaintiff
contends that the report was filled out correctly. Id. ¶ 8u. Plaintiff then filed a hostile work
environment grievance with her union on November 11, 2013. Id. ¶ 8v. On November 12, Plaintiff
wrote a letter to Platzke stating that Kucevic formed a “clique” with a few close friends who all
speak the same language. Id. ¶ 8w. The letter further stated that “the clique” would make false
accusations and corroborate each other’s statements and that Plaintiff was being harassed on a daily
basis. Id. Plaintiff did not receive a response to the letter. Id.
On November 12, Kucevic called Plaintiff into her office and demanded that Plaintiff “sign a
paper in secrecy and under duress.” Id. ¶ 8x. Kucevic told Plaintiff that Platzke and Plaintiff’s
union steward for the Bakery, Confectionary, Tobacco Workers and Grain Millers’ International
Union, Local Union No. 53, Eugene Kane (“Kane”), “do not have to know about this.” Id. ¶¶ 8x;
8dd. Following this incident, Plaintiff again wrote to Platzke, informing her that she no longer felt
safe around Kucevic. Id. ¶ 8y. Plaintiff did not receive a response to the letter. Id. Also on
November 12, Kucevic accused Plaintiff of making box labels incorrectly; however, Plaintiff did
not make the box labels at issue, which was witnessed by Kricket McNair and others in the area. Id.
¶ 8aa.
On November 13, Plaintiff emailed Plant Manager Michelle Burnett (“Burnett”) stating “I no
longer feel safe.” Id. ¶ 8bb. Burnett did not respond. Id. Later that day, Plaintiff sent another email
to Burnett, outlining her history with Kucevic and requesting Burnett’s assistance. Id. ¶ 8cc.
Plaintiff did not receive a response. Id. Plaintiff sent another letter to Platzke stating that she felt
that Kucevic and her “clique” were falsely accusing her and trying to wear her down. Id. ¶ 8ee.

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Plaintiff did not receive a response. Id. On November 14, Plaintiff alleges that Kucevic was
looking for her on the factory floor. Id. ¶ 8dd. Chuck Craig, from the facilities department, told
Kane that Kucevic was harassing Plaintiff and that Burnett said “Tham is to be left alone.” Id.
B. Plaintiff’s Suspension
On November 15, Plaintiff and Kucevic were called to a meeting with Kane, Tammy
Marchese, human resources consultant, and Fred Sarus (“Sarus”), production manager. Id. ¶ 8ff.
Plaintiff contends that DeIorio trivialized Kucevic’s conduct and there was no resolution to the
situation as a result of the meeting. Id. On November 22, Plaintiff was angrily told to go to the
office of vice president of manufacturing, Bryan Wilson (“Wilson”). Id. ¶ 8gg. A union
representative was not present, in violation of Plaintiff’s union contract. Id. Plaintiff was informed
that an investigation was being conducted into the situation with Kucevic, but was not given any
details or asked any questions. Id. Plaintiff was immediately suspended and told to stay at home
until further notice. Id.
On November 22, Plaintiff emailed Burnett regarding the events of the previous day. Id.
¶ 8hh. Plaintiff did not receive a response. Id. On November 25, Plaintiff received a phone call
from Platzke who requested that Plaintiff report to work at 1 pm. Id. ¶ 8ii. Platzke appeared to be
unaware of Plaintiff’s suspension. Id. Plaintiff reported to work and was approached by Sarus, who
asked if she wanted to make up for the time she missed while suspended. Id. ¶ 8jj. Sarus told
Plaintiff to report to his office after her shift. Id. ¶ 8kk. When Plaintiff arrived, Sarus was not there.
Id. Plaintiff waited for approximately ten minutes and was told by a secretary that she could go
home. Id. Plaintiff emailed Burnett and Platzke about this occurrence and did not receive a
response. Id. ¶ 8ll. On November 26, Plaintiff emailed Burnett to inform her that she believed that

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Wilson and Sarus’s actions had risen to the level of an Equal Employment Opportunity Commission
(“EEOC”) issue and that she was afraid to be alone with them. Id. ¶¶ 8mm; 8nn. Burnett responded
that DeIorio management would follow up with Plaintiff soon and that a meeting would be held. Id.
¶¶ 8mm, 8nn.
On December 3, Sarus falsely accused Plaintiff of returning late from break. Id. ¶ 8oo.
Plaintiff alleges that she was not late, and that Sarus and Kucevic returned late from break on a
regular basis and were not reprimanded. Id. On December 4, Plaintiff emailed Burnett regarding
the false accusation and requesting a copy of the company’s official break policy. Id. ¶ 8pp.
Burnett referred Plaintiff’s request to Kane, who informed her that the break policy used to be that
employees were given a ten minute break once they walked into the break area, but that he did not
know the break policy under Burnett’s tenure. Id. ¶ 8qq. Plaintiff relayed Kane’s response to
Burnett and requested clarification but did not receive a response. Id. ¶ 8rr.
On December 10, Plaintiff emailed Burnett requesting her assistance because Kane was not
answering Plaintiff’s union questions. Id. ¶ 8tt. Plaintiff contends that since Kane works under
Burnett, Burnett should be able to tell him to do his job. Id. Burnett denied Plaintiff’s request,
which Plaintiff alleges constitutes a denial of Plaintiff’s right to union representation. Id.
On December 13, Plaintiff alleges that Kucevic “set Plaintiff up to fail” by refusing to allow
co-workers to help Plaintiff. Id. ¶ 8uu. Plaintiff alleges that Kucevic was at the end of the
production line laughing and taking pictures with her cell phone. Id. Later that day, Burnett
suspended Plaintiff for seven days. Id. ¶ 8vv. Plaintiff received a written warning on December 20
for the incident that occurred on December 13. Id. ¶ 8ww. On December 20, Kane also wrote a
union grievance for “unjust conduct” on Plaintiff’s behalf. Id. ¶ 8xx.

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C. Plaintiff’s Termination and Arbitration Ruling
On January 21, 2014, the EEOC issued an official charge of discrimination. Id. ¶ 8yy. On
February 7, Wilson suspended Plaintiff and she was escorted out of the building. Id. ¶ 8zz. On
February 13, Burnett and Wilson terminated Plaintiff’s employment. Id. ¶ 8aaa. Plaintiff alleges
that Burnett and Wilson were specifically named in the EEOC charge. Id.
Plaintiff’s union steward, Patrick Rohan (“Rohan”), filed an unjust termination grievance
against DeIorio on February 13 and a meeting was held with Plaintiff, Rohan, Wilson, and Burnett
on March 21, 2014. Id. ¶¶ 8bbb, 8ddd. Burnett and Wilson refused to discuss the details of
Plaintiff’s termination and immediately walked out of the meeting. Id. ¶ 8ddd. Rohan requested an
arbitration ruling for Plaintiff’s unjust termination and on November 14, 2014, Arbitrator Margo
Newman ruled in Plaintiff’s favor, finding that Plaintiff should be reinstated to her position without
further loss of pay or benefits. Id. ¶ 8fff.
D. Reinstatement and Constructive Discharge
Despite the Arbitrator’s ruling, Platzke refused to answer Plaintiff’s questions regarding her
return and refused to provide Plaintiff insurance coverage on her first day back, December 8, 2013.
Id. ¶¶ 8iii, 8jjj, 8lll. Plaintiff was immediately ordered to take a drug test, which she alleges is a
violation of her union policy and has not been ordered for other union members when returning
from leave or vacation. Id. ¶ 8kkk. On February 20, 2014, Plaintiff attempted to contact her union
representative but was informed that “the email address assigned to Eugene is for DeIorio’s business
and he has been asked to use it for that purpose only.” Id. ¶ 8mmm.
Plaintiff alleges that she was constructively discharged on December 12 due to the
intolerable conditions created by Defendants. Id. ¶ 8nnn. Following her return, Plaintiff alleges that

6

Defendants showed no remorse, made no changes, showed a blatant disregard for Title VII and its
protected activities, and continued their patterns of discrimination and adverse actions against
Plaintiff. Id. After her return, Defendants requested that Plaintiff resign and never return and drop
her EEOC charges of discrimination. Id.
E. Procedural History
Plaintiff received a right-to-sue letter for her first charge of discrimination on November 28,
2014 and for her second charge on December 4, 2014. Id. ¶¶ 8ggg, 8hhh. Plaintiff commenced this
action by filing a Complaint on February 20, 2015 and an Amended Complaint on June 15, 2015.
Compl.; Am. Compl. In her Second Amended Complaint, Plaintiff asserts the following causes of
action: (1) discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq.; (2) breach of contract and/or promissory estoppel; (3) and vicarious liability.3 Sec.
Am. Compl. Plaintiff also seeks to add DeIorio Food Holdings, LLC as a Defendant. Mot. Amend
at 1.
III.

Motion to Amend
Generally, a party may amend its pleading once as of right. FED. R. CIV. P. 15(a)(1). Once

an as-of-right amendment becomes unavailable, a party may amend only with the consent of the
opposing party or with leave of the court. FED. R. CIV. P. 15(a)(2). Leave to amend a pleading
should be “freely given when justice so requires.” Id. District courts are vested with broad
discretion to grant a party leave to amend, and should deny such a request only in the face of undue
delay, bad faith, undue prejudice to the non-movant, futility of amendment, or where the movant has

3

Plaintiff does not restate her claim for intentional infliction of emotional distress in the
Second Amended Complaint. Accordingly, this claim is deemed to be abandoned.
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repeatedly failed to cure deficiencies in previous amendments. Foman v. Davis, 371 U.S. 178, 182
(1962); SCS Commc’n, Inc. v. Herrick Co., 360 F.3d 329, 345 (2d Cir. 2004). “The party opposing
a motion for leave to amend has the burden of establishing that granting such leave would be unduly
prejudicial.” Media Alliance v. Mirch, No. 09-CV-659, 2010 WL 2557450, at *2 (N.D.N.Y. June
24, 2010) (Kahn, J.) (quoting New York v. Panex Indus., No. 94-CV-0400, 1997 WL 128369, at *2
(W.D.N.Y. Mar. 14, 1997)).
Defendants argue that Plaintiff’s Motion to amend should be denied because the proposed
amendments are futile and could not withstand a motion to dismiss. Dkt. No. 31 (“Opposition–
Motion to Amend”) at 2-6. Futility is an appropriate basis for denying leave to amend, and “should
be contemplated within the standards necessary to withstand a motion to dismiss.” Vail v. Fischer,
No. 12-cv-1718, 2013 WL 5406637, at *3 (N.D.N.Y. Sept. 25, 2013). Accordingly, the Court will
analyze the proposed Second Amended Complaint pursuant to Rule 12(b)(6).
A. Legal Standard
To survive a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also FED. R. CIV. P. 12(b)(6). A court must
accept as true the factual allegations contained in a complaint and draw all inferences in favor of the
plaintiff. See Allaire Corp. v. Okumus, 433 F.3d 248, 249-50 (2d Cir. 2006). A complaint may be
dismissed pursuant to Rule 12(b)(6) only where it appears that there are not “enough facts to state a
claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. Plausibility requires
“enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the alleged

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misconduct].” Id. at 556. The plausibility standard “asks for more than a sheer possibility that a
defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “[T]he
pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands
more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (citing Twombly,
550 U.S. at 555). Where a court is unable to infer more than the mere possibility of the alleged
misconduct based on the pleaded facts, the pleader has not demonstrated that she is entitled to relief
and the action is subject to dismissal. See id., 556 U.S. at 678-79.
B. Title VII
Plaintiff has asserted claims for discrimination and retaliation under TitleVII. Under Title
VII, it is “an unlawful employment practice for an employer . . . 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. § 2000e2(a)(1). Retaliation and discrimination claims brought pursuant to Title VII are analyzed under the
familiar burden-shifting framework established in McDonnell Douglas Corp. v. Greene, 411 U.S.
792 (1973). Under this framework, a plaintiff bears the initial burden of proving, by a
preponderance of the evidence, a prima facie case of discrimination. St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 506-510 (1993). This initial burden is “minimal.” Id. at 506. Once the
plaintiff satisfies her initial burden, the burden shifts to the employer to articulate some legitimate,
nondiscriminatory reason for the adverse employment action. McDonnell Douglas, 411 U.S. at 802.
If the defendant provides a legitimate, nondiscriminatory reason for the action, “the presumption
raised by the prima facie case is rebutted and drops from the case.” St. Mary’s, 509 U.S. at 507.
A complaint “need not allege facts establishing each element of a prima facie case of

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discrimination to survive a motion to dismiss.” EEOC v. Port Auth. of N.Y. & N.J., 768 F.3d 247,
254 (2d Cir. 2014) (internal citations and quotation marks omitted). Rather, the complaint “must at
a minimum assert nonconclusory factual matter sufficient to ‘nudge[] [its] claims’ . . . ‘across the
line from conceivable to plausible’ to proceed.” Id. (quoting Iqbal, 556 U.S. at 680). Stated
differently, “to survive a motion to dismiss, a Title VII plaintiff’s complaint must be facially
plausible and allege sufficient facts to give the defendant fair notice of the basis for the claim; it
need not, however, make out a prima facie case.” Brown v. Dakin Am. Inc., 756 F.3d 219, 228 n.10
(2d Cir. 2014). Additionally, there is no need to evaluate a plaintiff’s claims under the McDonnell
Douglas burden-shifting framework at the motion to dismiss stage. Boykin v. KeyCorp, 521 F.3d
202, 212 (2d Cir. 2007). The McDonnell Douglas burden-shifting framework “is an evidentiary
standard, not a pleading requirement.” Swierkiewicz v. Sorema, 534 U.S. 506, 508 (2002).
Nevertheless, courts often consider whether a plaintiff has set forth the elements of a prima
facie case of discrimination when determining whether a plaintiff’s claims for relief are plausible.
See Trachtenberg v. Dep’t of Educ. of N.Y.C., 937 F. Supp. 2d 460, 466 (S.D.N.Y. 2013). The
purpose of this inquiry is to ensure that there is “sufficient factual matter in the complaint which, if
true, gives Defendant a fair notice of Plaintiff’s claim and the grounds on which it rests.” Henry v.
N.Y.C. Health & Hosp. Corp., 18 F. Supp. 3d 396, 404 (S.D.N.Y. 2014) (internal quotation marks
omitted). “Generally speaking, a plaintiff’s burden of establishing a prima facie case in the context
of employment discrimination law is ‘minimal.’” Collins v. N.Y.C. Transit Auth., 305 F.3d 113,
118 (2d Cir. 2002) (citation omitted).
1. Discrimination
In order to plead a plausible claim of Title VII discrimination, the plaintiff must allege that

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(1) he is a member of a protected class; (2) he is qualified for a disputed employment position; (3)
he suffered an adverse employment action; and (4) the adverse action took place under
circumstances giving rise to the inference of discrimination. Feingold v. New York, 366 F.3d 138,
152 (2d Cir. 2004).
The terms of Title VII “are not limited to discrimination against members of any particular
race,” McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 278-79 (1976); rather,
“[d]iscriminatory preference for any group, minority or majority, is precisely and only what
Congress has proscribed,” Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971); see also
McGuiness v. Lincoln Hall, 263 F.3d 49, 53 (2d Cir. 2001) (finding first prong of prima facie racial
discrimination case satisfied where white woman alleged that fellow employee, a similarly situated
African-American, received a superior severance package). In the present case, Plaintiff has alleged
that Kucevic harassed and intimidated Plaintiff because Kucevic favored employees who shared her
Bosnian heritage. Sec. Am. Compl. ¶¶ 8r, 8q, 8t. Plaintiff does not necessarily allege that she was
discriminated against because of her Vietnamese heritage, but does allege facts to suggest that she
was discriminated against because she was not Bosnian, the preferred national origin of her line
supervisor, Kucevic. Accordingly, the first element is satisfied.
The second and third elements are uncontested. Plaintiff alleges that she satisfactorily
performed her duties and received positive performance evaluations up until the alleged harassment
by Kucevic began. Sec. Am. Compl. ¶¶ 8b, 8o. Plaintiff alleges that she suffered adverse
employment actions in the form of unwarranted reprimands and false accusations by Kucevic. Id.
¶¶ 8s, 8u, 8x, 8dd, 8aa, 8uu.
Turning to the fourth element, Defendants argue that the Second Amended Complaint is

11

deficient because it includes “a litany of Title VII buzzwords,” but no specific factual allegations
that demonstrate that any actual discrimination and/or retaliation occurred. Opp’n– Mot. Amend at
2. A plaintiff may raise an inference of discrimination for the purposes of establishing a prima facie
case by “showing that the employer treated plaintiff ‘less favorably than a similarly situated
employee outside his protected group.’” Mandell v. Cty. of Suffolk, 316 F.3d 368, 379 (2d Cir.
2003). However, a plaintiff must be “similarly situated in all material respects to the individuals
with whom she seeks to compare herself.” Id. Whether two employees are similarly situated is
ordinarily a question of fact for the jury. Id.
The Court finds that the Second Amended Complaint contains sufficient factual examples to
satisfy Plaintiff’s minimal burden of alleging discriminatory treatment. Plaintiff alleges that
Kucevic, a supervisor, favors individuals who share her Bosnian heritage and formed a “clique”
with Plaintiff’s co-workers who spoke the same language as Kucevic. Sec. Am. Compl. ¶¶ 8r, 8q,
8w. The clique made false accusations against Plaintiff and corroborated each other’s statements.
Id. ¶ 8w. Plaintiff alleges that Kucevic “set her up to fail” by refusing to allow Plaintiff’s coworkers to help her on the production line. Id. ¶ 8uu. Plaintiff alleges that Bosnian workers did not
face this type of treatment. Id. ¶¶ 8t, 8ll. Accordingly, the Court finds that the Second Amended
Complaint states a prima facie case of discrimination.
2. Retaliation
In order to set forth a prima facie case for retaliation pursuant to Title VII, a plaintiff must
allege: (1) the employee engaged in protected activity; (2) the employer was aware of that activity;
(3) the employee suffered a materially adverse action; and (4) that there was a causal connection
between the protected activity and that adverse action. See Rivera v. Rochester Genessee Reg’l

12

Transp. Auth., 743 F.3d 11, 24 (2d Cir. 2012). In the present case, the first three elements of
Plaintiff’s retaliation claim are undisputed. Plaintiff engaged in a protected activity by reporting
what she perceived to be instances of discrimination to DeIorio management on numerous
occasions, filing a hostile working environment grievance with her union, and eventually filing
grievances with the EEOC. Simpson v. N.Y. State Dep’t of Civil Serv., No. 02-CV-1216, 2005 WL
545349, at *20 (N.D.N.Y. Mar. 1, 2005) (“Plainly the filing of an EEOC complaint is a protected
activity.”); Costello v. N.Y. State Nurses Ass’n, 783 F. Supp. 2d 656, 680-81 (S.D.N.Y. 2011)
(stating that the filing of a union grievance is also a Title VII protected activity). Plaintiff’s
employer was aware of her protected activity, as evidenced by numerous meetings and
conversations between Plaintiff, her union representative, and DeIorio management regarding the
situation with Kucevic. Plaintiff suffered adverse employment actions in the form of multiple
suspensions, her termination, and her alleged constructive discharge.
As with Plaintiff’s discrimination claim, Defendants argue that the Second Amended
Complaint lacks sufficient factual allegations to suggest that Plaintiff’s adverse employment actions
were motivated by retaliatory animus. Opp’n– Mot. Amend at 2. For the purpose of stating a prima
facie case, a plaintiff may demonstrate causation by, inter alia, “showing that the protected activity
was followed closely by discriminatory treatment, or through other circumstantial evidence.” Hicks
v. Baines, 593 F.3d 159, 170 (2d Cir. 2010). While there is no bright line defining when the
temporal proximity between protected activity and an adverse employment action is sufficient to
give rise to an inference of causation, in general, a temporal gap of less than two months is
sufficient to give rise to an inference of causation. See, e.g., Mazurkiewicz v. N.Y.C. Health &
Hosp. Corp., No. 09 Civ. 5962, 2010 WL 3958852, at *5 (S.D.N.Y. Sept. 16, 2010) (finding

13

inference of causation where less than two months elapsed between protected activity and adverse
action).
In the present case, it appears that Plaintiff’s issues with Kucevic escalated in November
2013. See Sec. Am. Compl. Plaintiff filed a hostile work environment grievance with her union on
November 11, and was suspended four days later. Id. ¶¶ 8v, 8gg. Moreover, Plaintiff alleges that
she was suspended by Wilson after naming Burnett and Wilson in her EEOC complaint. Id. ¶¶ 8zz,
8aaa. The official EEOC charge of discrimination was issued on January 21; Plaintiff was
suspended on February 7; and her employment was terminated on February 13. Id. ¶¶ 8yy, 8zz,
8aaa. The temporal proximity between Plaintiff’s protected activity and this series of adverse
employment actions is sufficient to give rise to an inference of retaliatory animus sufficient to
survive a motion to dismiss. See Hexemer v. Gen. Elec. Co., No. 12-cv-1808, 2015 WL 39484188,
at *7 (N.D.N.Y. June 29, 2015) (Kahn, J.) (finding temporal gap of less than a week between
protected activity and adverse employment action “more than sufficient to create an inference of
causation”). Accordingly, the Second Amended Complaint has stated a prima facie case of
retaliation.
C. Breach of Contract and Promissory Estoppel
Plaintiff’s breach of contract claim is based on DeIorio’s employee manual. Sec. Am.
Compl. at 23.4 Plaintiff alleges that Defendants “promulgated express and written statements of
employment policies, practices and procedure which it provided and disseminated to all of its
employees.” Id. at 24. Specifically, Plaintiff alleges that DeIorio represented both orally and in

4

For pages in the Second Amended Complaint that do not contain paragraphs, citations
correspond to the page numbers assigned by the Court’s Electronic Filing System.
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writing that it would treat employees in a specific, fair and equitable manner and that it would
investigate allegations of discrimination and/or retaliation in a fair, impartial and nondiscriminatory
way. Id. However, “it is ‘well-established that an employer’s antidiscrimination policies and
manuals cannot serve as the basis for a breach of contract claim.’” Carris v. First Student, Inc., No.
13-CV-0923, 2015 WL 5535807, at *16 (N.D.N.Y. Sept. 18, 2015) (quoting Davis v. Oyster BayEast, No. 03-CV-1372, 2006 WL 657038, at *15 (E.D.N.Y. Mar. 9, 2006)). The rationale behind
this conclusion is that a “general statement of equal opportunity and nondiscrimination contained in
an employee handbook . . . is nothing more than a statement of existing law concerning
discrimination, [and] may not serve as a basis for a breach of contract claim.” Blaise-Williams v.
Sumitomo Bank, Ltd., 592 N.Y.S.2d 41, 42 (1st Dep’t 1993).
Similarly, “it is well established that New York law does not recognize promissory estoppel
in the employment context.” Kramsky v. Chetrit Group, LLC, Nos. 10 Civ 2638 & 9458, 2011 WL
2326920, at *4 (S.D.N.Y. June 13, 2011) (dismissing plaintiff’s promissory estoppel claim where he
was allegedly promised a General Counsel position, which he relied upon in closing his private legal
practice). Even if promissory estoppel were cognizable in the employment context, Plaintiff has
failed to articulate a plausible claim. Under New York law, a claim for promissory estoppel
requires “a clear and unambiguous promise; a reasonable and foreseeable reliance by the party to
whom the promise is made; and an injury sustained by the party asserting the estoppel by reason of
his reliance.” Esquire Radio & Elec., Inc. v. Montgomery Ward & Co., 804 F.2d 787, 793 (2d Cir.
1986) (quoting Restatement (Second) of Contracts § 90 (1981)). To the extent that Plaintiff’s
promissory estoppel claim is based on promises in the employee manual regarding antidiscrimination and investigations of wrongdoing, the Court has already addressed that an employee

15

manual cannot form the basis for such a claim. Accordingly, the Court finds that Plaintiff’s breach
of contract and promissory estoppel claims are subject to dismissal.
D. Vicarious Liability
In the Second Amended Complaint, Plaintiff asserts a purported cause of action for
“vicarious liability.” Sec. Am. Compl. at 27. However, vicarious liability is not a separate cause of
action, but rather a theory by which a third party can be held responsible for a tort committed by
another party. Zatz v. Wells Fargo Home Mortg., No. 08 Civ. 11225, 2010 WL 3026536, at *2 n.9
(S.D.N.Y. Aug. 2, 2010). Accordingly, to the extent that Plaintiff asserts a separate cause of action
for vicarious liability, that claim is dismissed. However, the Court will treat Plaintiff’s “vicarious
liability” cause of action as an assertion that DeIorio is vicariously liable for unlawful harassment by
its employees. See City of Syracuse v. Loomis Armored US, LLC, 900 F. Supp. 2d 274, 290
(N.D.N.Y. 2012) (dismissing successor liability claim as separate cause of action, but construing as
assertion that defendant is liable for conduct of its predecessor).
To the extent that Plaintiff’s “vicarious liability” claim can be construed as a negligence
claim, the claim also must fail. Drawing all inferences in Plaintiff’s favor, the Second Amended
Complaint asserts a claim that Defendants should be held liable under common law negligence
based on their failure to supervise Kucevic and to prevent the establishment of a hostile working
environment. Sec. Am. Compl. at 27-28. Under New York law, New York Workers’
Compensation provides the exclusive remedy for negligence claims that accrue in the workplace.
N.Y. WORK. COMP. LAW § 29(6) (“The right to compensation or benefits under this chapter, shall be
the exclusive remedy to an employee . . . when such employee is injured or killed by the negligence
or wrong of another in the same employ.”); see also Torres v. Pisano, 116 F.3d 625, 640 (2d Cir.

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1997) (finding negligence claim for hostile work environment barred by exclusivity of workers
compensation); Burlew v. Am. Mut. Ins. Co., 472 N.E.2d 682, 684 (N.Y. 1984) (holding that a
claim of negligence against an employer is barred by workers’ compensation).
The exclusivity of the workers’ compensation scheme does not, however, preclude suit if the
employer committed an intentional tort or another person committed such an intentional tort at the
employer’s direction. Torres, 116 F.3d at 640. Moreover, the intentional tort exception is
unavailable where a plaintiff pleads his or her claims in terms of negligence and not intentional
wrong. See id. (finding the “exception is obviously not applicable to Torres’ claim of negligence”);
see also Chrzanowski v. Lichtman, 884 F. Supp. 751, 756 (W.D.N.Y. 1995) (“Plaintiffs argue that
their claims fall under the intentional tort or wrong exception. However, the claims at issue are pled
in terms of negligence, not intentional wrong . . . . The negligence claims are clearly barred by the
exclusivity provision.”); Hart v. Sullivan, 445 N.Y.S.2d 40, 41 (3d Dep’t 1981) (dismissing
plaintiff’s sexual harassment and discrimination claims because the lack of willfulness on the part of
the corporate employer, as opposed to wilful conduct by plaintiff’s co-workers, necessitated the
conclusion that plaintiff’s negligence claim was barred by workers’ compensation). In the present
case, Plaintiff alleges intentional and wilful conduct on the part of Kucevic, an employee of
Defendants, but does not allege intentional wrongdoing on the part of her employer. Accordingly,
the Court finds that Plaintiff’s negligence claim is barred by the exclusivity provision of New York
Workers’ Compensation law and is therefore subject to dismissal.
E. Additional Defendants
In the Second Amended Complaint, Plaintiff attempts to add DeIorio Food Holdings, LLC as
a defendant. Sec. Am. Compl. at 1. Plaintiff asserts that the existence of DeIorio Food Holdings

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was recently discovered following the filing of DeIorio’s Rule 7.1 Disclosure Statement. Id.
Defendants oppose the addition of DeIorio Food Holdings, LLC, on the basis that Plaintiff has failed
to allege any facts suggesting wrongdoing on the part of DeIorio Food Holdings, LLC, or alleging
that DeIorio Food Holdings, LLC is in any way liable to Plaintiff. Opp’n- Mtn. to Amend at 11.
Defendants further argue that Plaintiff has failed to allege sufficient facts to sustain her claims
against LSCG Managment, Inc., LaSalle Capital Group Partners, LLC, and LaSalle Capital Group
Partners II-A, LLC (collectively, the “LaSalle Defendants”). Id.
The Second Amended Complaint contains no facts alleging that DeIorio Food Holdings,
LLC or the LaSalle Defendants were Plaintiff’s employer, or asserting that these entities should be
liable as parent corporations of DeIorio. As a matter of policy, courts presume the separateness of
legally distinct corporate entities. See Volkswagenwerk AG v. Beech Aircraft Corp., 751 F.2d 117,
120 (2d Cir. 1984). Plaintiff has failed to plead sufficient facts to allow the court to infer that these
separate corporate entities should be disregarded and treated as a single employer. See Cook v.
Arrowsmith Shelburne, Inc., 69 F.3d 1325, 1240 (2d Cir. 1995). Accordingly, Plaintiff’s request to
add DeIorio Food Holdings, LLC as a defendant is denied, and Plaintiff’s claims against the LaSalle
Defendants are dismissed.
IV.

CONCLUSION
Upon review, the Court determines that Plaintiff’s Second Amended Complaint asserts

claims for discrimination and retaliation sufficient to withstand a motion to dismiss pursuant to Rule
12(b)(6). Therefore, allowing amendment would not be futile. The Court finds, however, that
Plaintiff’s claims for breach of contract, promissory estoppel, and negligence cannot withstand a
motion to dismiss and are therefore dismissed. The Second Amended Complaint is now the

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operative pleading in this action, and replaces Plaintiff’s original Complaint and Amended
Complaint in their entirety.5 Because Plaintiff did not reassert her claim for intentional infliction of
emotional distress in the Second Amended Complaint, that claim is deemed abandoned.
Accordingly, it is hereby:
ORDERED, that Plaintiff’s Motion (Dkt No. 28) for leave to amend is GRANTED; and it
is further
ORDERED, that the Second Amended Complaint (Dkt. No. 28) is now the operative
pleading in this action; and it is further
ORDERED, that Plaintiff’s request to add DeIorio Food Holdings, LLC as a defendant in
this action is DENIED; and it is further
ORDERED, that all claims against LSCG Management, Inc., LaSalle Capital Group
Partners, LLC, and LaSalle Capital Group Partners II-A LLC are DISMISSED; and it is further
ORDERED, that Plaintiff’s breach of contract, promissory estoppel, vicarious liability,
intentional infliction of emotional distress, and negligence claims are DISMISSED; and it is further
ORDERED, that Defendant’s Motion (Dkt. No. 15) to dismiss is DENIED as moot; and it
is further
ORDERED, that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance with the Local Rules.

5

“It is well established that an amended complaint ordinarily supersedes the original and
renders it of no legal effect.” Arce v. Walker, 139 F.3d 329, 332 n.4 (2d Cir. 1998) (quoting Int’l
Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977)).
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IT IS SO ORDERED.

DATED:

February 29, 2016
Albany, New York

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