Stoler et al v. Institute For Integravtive Nutrition et al

Filing 27

OPINION re: 8 MOTION to Dismiss filed by Institute for Intergrative Nutrition, Joshua Rosenthal, 21 MOTION to Dismiss Parital Dismissal of Amended Complaint filed by Institute for Intergrative Nutrition, Joshua Rosenthal. Pursuant to the C ourt's reasoning above, the Defendants' motion to dismiss the Second and Sixth Causes of Action is denied as to plaintiffs Stoler and Marcus and granted as to plaintiff Hess. The Defendants' motion to dismiss the Third and Fourth Causes of Action is denied for all Plaintiffs. (Signed by Judge Robert W. Sweet on 11/15/2013) (lmb)

UNITED STATES DISTRI
COURT
SOUTHERN DISTRICT OF NEW YORK

--------­ ---X
BAILEY STOLER, AMY HESS, and
JESSICA MARCUS, individually and on
behalf of all others similarly
s uat

13 Civ. 1275
OPINION

Plaintif
-againstINSTITUTE FOR INTEGRATIVE NUTRITION
and JOSHUA ROSENTHAL,
Defendants.

A P PEA RAN C E S:
At
VLADECK, WALDMAN, ELIAS & ENGELHARD,
150 Broadway, Suite 800
New York, NY 10036
Valdi Licul, Esq.
Rebecca J. Osborne, Esq.
Atto

for Defendants

LITTLER MENDELSON, P.C.

900 Third Avenue, 7th Floor

New York, NY 10022

By: Andrew P. Marks, Esq.

P.C.

Sweet, D.J.

Defendants Institute for Integration Nutrition
("Rosenthal" )

Rosenthal

Joshua

and

(collect

("lINN)
the

ly,

"Defendants N) in this putative class action have moved pursuant
to

the

Federal

dismiss
VI I),

the

Ru

s

Civil

Cause

Second

of

of

Procedure
Action

the Third Cause of Action

the Fourth Cause of Action
Sixth Cause of Action
Bailey Stoler
("Marcus" )

("Sto

(" FRCP")

12 (b) (6)

(Retaliation

under

(Interference under the

(Retaliation under the FMLA)

(Retaliation under City Law)
r"),

Amy Hess

(collectively,

the

conclusions set forth below,

("Hess")

to

Title
FMLA) ,

and the

of plaintiffs

and Jessica Marcus

"Plaintiffs") .

Bas

on

the

the motion is denied as to Stoler

and Marcus, denied in part and granted in part as to Hess.

Prior Proceedings and Facts

This action was commenced on February 25,
Plaintiffs by the

filing

of

a

putat

c

ss

2013 by the

action

complaint

charging Rosenthal and lIN with interference with their
and

Medical

rights,

Leave

retaliation

Act,

29

under

U.S.C.
the

§

FMLA,

seq.

Family

2601

et

and

discrimination

( " FMLA ") ,
and

retaliation
York

§

under

8-101

plaintiffs

et

filed

the

Code

Administrat
(the

seq.

"NYCHRL").

an Amended Comp

int

On
("

discrimination and retaliation under 42 U.
("Tit

the

June
")

City
3,

adding

s. C.

§

of

New

2 0 13,

the

c

ims

of

2000e et s

VII") .

The AC alleges that
VII,

of

the FMLA,

lIN and Rosenthal violated Title

and the NYCHRL based upon the conduct as alleged

below. In addition to the causes of action which are the subject
of the instant motion, the Plaintiffs have alleged a
of Action
Action

(Discrimination under

tIe VII)

(Discrimination under City Law).

and a

rst Cause
fth Cause of

The following

s are

drawn from the AC.

lIN
school.

is

a

Rosenthal

Defendants'

health
is

coaching

lIN's

and

founder

employees are women.

nutr

and

ional

education

director.

Most

of

aintiffs are three women who

were employed at lIN and became pregnant during their tenure at
the company.

PIa

iffs

employees'

potential

de

AC 'J! 17.

sions.

allege
to

have

that

Defendants

children

when

consider
making

To make this determination,
2

female

employment
Defendants

created

an

rm

evaluation

that,

among

ot

r

things,

asked

managers to determine each employee's "future plans," including
any

"maternity"

collecting
creation

plans.
in

this
of

a

AC

).

soon

Projection"

iteration

of

intiffs

the

were

The

"20-28.

employee

t

was

Chart

Ii

or

within the next few years.

the

time

the

(the

chart
Chart

was

requested

also

lIN

used

"Matern
each

y
Ie

and maternal status to determine
ly

stated

"likely"

Around

Rosenthal

employee's age, marital status,
how

17.

q[

rmation,

"Maternity

Chart N

Projection

AC

to

have

that

"fairly

the
Ii

a

chi

rd.

individually

ly"

to

have

One
named

children

rd. No male employees are included in

the Chart. rd.

Defendants

frequently

demoted

or

fi

female

employees when they became engaged, married or pregnant, or took
FMLA

leave.

rd.

"

18-19.

single and usually chi
trai
75,

by the pro
92,

104.

They

were

ssionals they replaced.

Those

28,

y

laced

with

ess employees - employees who had been

junior

employees

defendants' maternity chart as less Ii
,

regula

50, 92.

3

rd.

"

frequently

18,

28,

50,

appear

on

y to have children.

rd.

an

Stoler
history

including

advanced

an

~~

managerial positions. AC
in

February

directly
~

9,

acting

2010,

with

educational

lIN's

Id.

2010.

31.

fellowship,

a

internal

Team.
in
~

Id .

charge

~

pr

of

departments.

33.

take

to

responded

maternity

in
they

his

that

leave.

experience,

was

Id.

~

34.

"[w]omen's

come mothers" and that she should

cons

this while planning

to work.

Id. Two weeks later, Rosenthal told Stoler her

might not be the

in,

two

Stoler told Rosenthal

ift

Id.

months

and

rities

("CEO").

32.

In November 2011,

Rosenthal

lIN

working

Defendants promoted Stoler

placed Stoler

intended

and
r

consultant,
Officer

Execut

Stoler managed 32 employees. Id.

pregnant

career

oler to Marketing Director in April

In June 2011,

Defendants

and

Stoler began working

r part of lIN's Execut

making
later,

~

an

then-Chief

Defendants promoted

30.

degree,

29.

as

background

same when

maternity leave and

she

r

return
ition

returned from maternity leave,

but she was an excellent performer and should not be concerned
she would be let go.

Stoler submit

.

~

35.

her FMLA paperwork in February 2012,

and began her leave on May 7,2012.
4

Id.

~~

36,37.

Initially,

Stoler's leave was
however,
leave.

scheduled to last until September 10,

2012;

Stoler asked Rosenthal for a two-week extension of her

Id.

Rosenthal grant

39.

<J[

this extens

and Stoler's

new return date was set for September 24, 2012. Id.

On
what

her

Stoler

or

about

position

he

was

August

would

AC

return,

Stoler

2012,

after

be

sure.

not

2,

r

38.

The

<JT

Rosenthal

told

as ked

leave.
day

her

Rosenthal

Rosenthal

before

there

Stoler

were

schedul

to

managers,

that he needed to figure out a role for her,

to

report

demoted

to

two

reporting

<JT

next

below

Rosenthal

Id.

rself

the

ls

to

employees.

needed

work

day.

her

or

p

told

"prove"

to

Upon

office

with
in

Kate Cody
Michael

too

Stoler

and

no

Stoler

no

longer

she

many

and not
was

position,

was

could

then
longer

managing
"prove"

her new position; Stoler had never been told that she
herself

order

responsibilities before then. Id.

cubicle

4l.

<JT

ous

CEO,

t

Rosenthal

42.

Id.

told

the

Stoler's
other

Project

execut

("Cody"),

Posavetz

return

<JT

to

Id.

work,

<JT

and
44.

she

was

out

moved

of

Stoler

her

lIN's
5

or

Chief

into

Operat

a

private

complained

an I IN Human Resources Manager

(flPosavetz"),

on

43.

Managers

wing.

take

to

("HR"),

to
and

Officer

("COO")

and in-house counsel,

about her demotion.

Rosenthal was informed of those comp

in "a very soft world with

and that

was

[the] baby." Id.
Stoler

she

was

[felt]
in

<J[<J[

47.

longer

On December 18,

and

[she]

keep

[shock]

Company."

away

AC

54.

<J[

more invol
a

job

from being

Shortly thereafter,
eligible

2012,

gave birth,

[her]

that she had

en

baby for the past few months,

almost half of her compensation. Id.

since

46-48.

very harsh and aggressive to

"culture

45,

no

[her]

"

and his response was

was "making this up";

to tell Stoler that

so the work world

ints,

Id.

for
<J[<J[

at

home

bonuses

amounting

to

52-53.

wanted to give

from everything and
Although he

with

Defendants told

Rosenthal told Stoler

[he had]

[her]";

said he

the

t

"ever

[Stoler]

space

st work

wanted her

to

in the
"become

in the Company," in January 2013 Defendants post

listing

describing

before her leave. Id.

On

Februa

<J[<J[

St

er's

role

and

responsibilities

54-55.

25,

2013,

Plaintiffs

led

the

initial

Complaint on this matter. On May 1, 2013, Stoler asked Cody if a
recently

hired

Plaintiffs

I

time,

HR

lawsuit.

Stoler

consultant

was

aware

Cody said she was.

complained

to

lIN's
6

Id.

Presi

of
<J[

nt

the
61.

issues

in

Around that

Michael

Iacona

("Iacona")

about

her

demotion

a

er

her

leave

and

said

she

believed it was because of lIN's discrimination and retaliation
against her.
was
Id.

~

rd.

Iacona responded by claiming that Stoler

fering from "anxiety over things moving at a fast pace.
He chastised Stoler for continuing to "re-ha

her "prior

n

grievances." Id. He warned Sto

r that continuing to engage

"debate"

was

"have

about

those

negative

matters

impacts

on

our

a

"distraction"

business

should

n

that

is

a
would

continue."

rd.

On May 14, 2013,

Defendants fired Stoler, claiming her

position had been eliminated.
she

was

would

e

elig

rece

a

r

career

severance

rd.

~

63.

Defendants to

transition

agreement

in

services

and

the mail.

directed to return all company property and to

Id.

Stoler
that

she

She

was

to gather her

personal belongings. Id.

After firing Stoler,
a

junior-level position,

maternity
required

leave
only

experience;

earning approximately 30% of her pre­

compensation.
a

Defendants purported to offer her

college

rd.

degree

Stoler had an MBA,

~

and

64.

The

two

"new"
rs

of

position
general

more than 10 years of industry-

specific experience and had previously
7

n on

I IN's Executive

Team.

Id.

the

Despite

purported

offer,

job

immediately removed Stoler's computer access,

took

keycard and escorted her out of the building.

Id.

Defendants

16,

2013,

security
<]I

65.

On May

Stoler wrote Cody an email stating that the purported

job offer was not made in good faith and asked to be reinstated
to
<J[

r

pre-maternity

leave

position.

Defendants

refus

Id.

66.

Hess has more than 10 years of experience in marketing
and public relations. AC
or about November 16,
to

the CEO.

Id.

10,

67.

She began working at lIN on

2011 as the Marketing Manager,

68.

<J[

<J[<J[

Hess

was

responsible

r

reporting

lIN marketing

campaigns and managed 15 to 18 employees. Id.

On October 9,
lIN's
leave.

CEO
Id.

that
<J[

she

69.

was

2012,

Hess

pregnant

On or about

informed Rosenthal,
and

October

with Hess with a co-worker present.
had "never met a
t

would
24,

need
2012,

to

take

Ros

and
FMLA

1 met

Rosenthal told Hess that he

new mom that didn't underestimate the

exhaustion from a new baby."

HR,

Id.

<J[

70.

sleep,

Rosenthal advis

Hess to speak with her partner to see "if it was worth it." Id.
He told Hess that she was at a certain level of performance, but
with lIN's CEO leaving and Hess having a baby,
8

Rosenthal needed

to

"protect"

himself

and

lIN

because

her

performance

could

decline. ld.

The

following

wished to remain with
performance
and would
expected

and
not

to

week,

lIN.

after

return

not

she

had

her

to

wrote

'lI 71.

ld.

capacity were
be

Hess

pos

Rosenthal

ion

she

Hess wrote that her work

diminished

her

that

by

child.

Id.

after

her

her pregnancy
Hess

said

leave

she

and

to

continue to report to Rosenthal and the new CEO. ld.

Thereafter,
to

fire

Hess.

ld.

Defendants
'lI

72.
<j[

Hess'

per

rmance.

ld.

told

Hess'

staff

that

allegedly

Rosenthal

she

began

In mid to

73.

was

not

looked

for

falsely

a

criti

late November

in

charge

of

reason
zing

2012,

he

Marketing,

stating that Hess was "spread too thin" and could not manage her
rmer dut
managerial

s.

ld.

duties,

<j[

74.

Defendants removed a portion of Hess'

repeating

the

false

concern

for

Hess'

workload and adding that people who were "spread too thin" would
have

their

assigned

compensation

Hess'

managerial

Id.

as
duties

to

<j[<j[

two

junior

were not pregnant and did not have children. ld.

9

75-76.

<j[

Rosenthal

employees
75.

who

Hess
new role;
email,
ld.

~

asked

he did not respond.

Rosenthal,

longer

llowing day,
~

79.

bonus

would

be

about

her

After Hess sent another

provided,

2012,

teams.

~

ld.

78.

The

Hess met with Posavetz and HR.

2013.

ld.

a

signi

cant

ld.

or

Posavet z
lIN

or

several
would

Hess'

2012

portion

bonus

of

her

was
total

Posavetz then told Hess that she would receive
"put-your-mind-at-ease

stated

Rosenthal

be

would
would

a

the

in

provide,

determined in January 2013.

change"

of her

for

cut

se"

Id.

with

supervise one

$25,000,

small

$ 5,000.

wi

77.

information

Posavetz stated Hess would not receive a raise and her

compensation.

role

~

AC

more

and another employee met with Hess.

December 14,

approximately

Ira

Posavetz,

r

77-78. Rosenthal said Hess was not being demoted or fired,

but would no

Id.

Rosenthal

employees
not

least one of Hess'

be

and

future

but
ld.

was

said

not

or

sure

what

those

settled

told

until

them

January

what

value

of

Hess'

she

had

would

issues

Around that time,

also

amount"

be

Rosent

1 met

Hess'

"role

that
2013.

He

colleagues not to work with her.

ld.

told

at

~~

80­

a

job

81.

In

or

about

December

2012,

listing for a new Marketing Director,
and

responsibilities.

Id.

~

82.
10

Defendants

post

which described Hess'

Defendants

dismissed

role

Hess

on

February
leave.

8,

Id.

2013,

10

84.

'J[

days

fore

the

start

of

Defendants ul timately hired a

Hess and placed him in Hess' former office. Id.

Marcus

is

an

experienced
ionist. AC

Certified Dietitian-Nut
in

April

2011

$45,000. Id.
more

as
89.

'J[

her

a

Curriculum

11,

and

r the nutrition team. Id.

she began
'J[

88.

to

Dietitian

and

lIN hired Marcus
th

De

replace

87.

'J[

Developer

In the summer of 2011,

responsibilities,

man to

Registered
'J['J[

maternity

a

sala

of

ndants gave Marcus

hire

and manage

staff

90.

In September 2011, Marcus announced she was engaged to
be

marri

Id.

'J[

In

91.

December

2011,

recommended that Rosenthal promote Marcus.
declined,
was

in

employee

who

place."

was

Id.

listed

Rosenthal

on

On or about March 29,
made certa

cuts to

strongly
Rosenthal

'J[

ed,

promoted

Defendants'

Chart as "not likely" to have a

if s

Id.

saying that Marcus was "getting rna

another

Stoler

and her head

a

more

Maternity

junior

Projection

ild within five years. Id.

2012, Rosenthal told Marcus that

r department by November 2012, she

would receive a raise to $100,000 per year.

11

Id.

'J[

93.

Over the

course

of

t

request. Id.

next
~

In
as

Marcus

complied

with

Rosenthal's

94.

June

2012,

while

Stoler

was

on

leave,

Rosenthal
~

Marcus to be the Manager of Student Services. Id.

that
to

month,

e, Marcus managed 20 staff members

Rosenthal.

Marcus

asked

Id.

Rosenthal

whether

Manager /Director of
ave;

Rosenthal

praised

Stoler

Student

replied

Marcus'

would

that

her

when Stoler

Marcus

would

In

rectly

performance.

resume

ces

Se

reported

95.

position
returned

continue

in

Id.
as
from
that

role. Id.

At a June 27,

2012 off-site meeting,

Marcus as one of lIN's strong leaders.
Marcus

was

one

of

the

top

two

Department and the sole St
~

Id.

~

Rosent

August 2012,

96.

rs

man

1 praised

lIN's

Education

ces Department Manager.

Se

Id.

97.

On
pregnant,
would

not

August

13,

2012,

AC

~

98.

The

Marcus to discuss her pregnancy.
there

were

told

to her work,

was commi
change.

Marcus

conversations

about

next
Id.
whe

12

1

and that her
day,

~

Rosent

she

was

cOIT~itment

Rosenthal

met

with

99. Rosenthal told Marcus
r

to

reta

her.

Id.

He

said he was not sure they were on the "same page" and said that
"maybe it will work; maybe it will not." Id. On August 15, 2012,
Marcus met with Posavetz.

Id.

100.

CJ[

Marcus to

she was nervous she would lose her job
Id.

Marcus

also

told

him

lIN

had

Posavetz that

cause she was pregnant.
a

story

of

laying

off

pregnant women. Id.

On September 5, 2012, Rosenthal and HR met with Marcus
to discuss a purported issue with Marcus'
CJ[

later,

102. Two wee

only

on

two

supporting

a

special
new

listening skills.

Rosenthal told Marcus she would now work
projects

and

in

Manager/Director.

Id.

a

peripheral

<f[

103.

Marcus she was no longer on the Management Team.
Marcus
2012,

from

her

Nutrition

Mana

replacing her with an

r

. Id.

On or about December 6,
Id.

<f[

position

<f[

position,

Rosenthal

told

Id. lIN removed

on

unmarried woman with

whom Marcus had hired and trai

and HR.

AC

September
no

21,

children,

104.

2012, Marcus met with Posavetz

105. Posavetz told Marcus that Rosenthal no longer

wanted her to work on one of her projects, thereby removing one­
third of her responsibilities.

Id.

a

a

new

$25,000

role.
less

Marcus

received

than

Rosenthal

salary

had
13

He added that she would have
increase

promis

Id.

to
In

$75,000
her

new

position,
one. Id.

Marcus

reported to

a

gave bi

on March 13,

an

and managed no

106.

<j[

In early March 2013,

sent

junior employee

to

108. On May 14,

<j[

acknowledge

2013, Marcus

announced

Rosenthal demoted her and

thheld a significant

She stated that lIN's actions made it clear that

lIN did not want

r to continue as an employee after she had a

child and that lIN would only continue its efforts to
out

0

She

constructive

pay increase.

Cody

FMLA leave.

lIN's

her pregnancy,

to

2013. AC

r

of her. Marcus observed that as soon as

scha

email

Marcus began

rce her

the company. Id.

On

February

Complaint
charges
("EEOC" )

this
with

matter.

the

2013,
On

gender
olation

retaliation

in

Defendants'

managers

held

PIa

April

iffs
5,

oyment

Equal

alleging

Among other things,

25,

and
of

2013,

meetings

VII.
with

the

initial

Plaintif

filed

Opportunity

pregnancy

Title

filed

Commission

discrimination
On

the

April

30,

staff.

Id.

and
2013,

<j[

60.

Iacona acknowledged this instant lawsuit but

denied the allegations.

Id.

He announced that employees who

not have it in their hearts to work for lIN should st

14

forward

and

lIN

would

structure

a

mutually

beneficial

exit

reement.

Id.

The
PIa

s'

l

instant
causes

motion

of

to

action

dismiss

was

certain

rd

and

of

marked

fully

submitted on September 18, 2013.

The Applicable Standard

On a motion to

smiss pursuant to FRCP 12 (b) (6),

factual allegations in the Complaint are accepted as true,

v.

Simon

1990),

and

all

Real
in

Estate

rences

Arnidax T

v.

Co.

are

896

drawn

S.W.I.F.T.

F.2d
in

SCRL,

--------------~----~~---------------------

2011).

Cir.

The

issue

"is

not

Budd

claims.

238 F. Supp. 2d 521,

favor
671

534

accepted as true,
on

its

face.'"

to

must

of

(2d

the

whether

a

Cir.

pleader.

F.3d 140,

II

G- I

__

~

Ho

__

~

__

145

(2d

plaintiff

s

~L-~~

(S.D.N.Y. 2002)

Pond, Inc. v. Town of Darien, 56 F.3d 375, 378

A complaint

688

Krijn

11

claimant is entitled to of

ultimately prevail but whether
evidence to support

687,

all

"contain

Inc.

v.

r

Baron

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ &
_

(quoting Vill

r

(2d Cir. 1995)).

sufficient

ctual

matter,

'state a claim to relief that is plausible

Ashcroft

v.

I

556
15

U.S.

662,

678

(2009)

(quoting

Bell

(2007)).

"A

eads

Atlantic

claim

factual

reasonable

has

v.
fac

content

inference

1

plausibility

that

that

Twombl,

allows

the

misconduct alleged." - - - " - ­
I

U.S.

defendant

when

to

is

than

unlawfully.

a

sheer

Where

a

consistent with a
1

between

relief.

Id.

all

fendant's

possibility

pleads

the

for

the

but it asks

defendant
that

has
are

acted
merely

it stops short of the

plausibility

of

entitlement

(citations and quotations omitted).

to

Plaintiffs must

sufficient facts to "nudge[] their claims across the line

from conceivable to plausible." Twombl

it

couched

is
as

"not
a

bound

factual

550 U.S. at 570. Though

1 allegations of a complaint as

the court must accept the
true,

a

facts

liability,

and

draw

8-79. The plausibility

possibility that

complaint

570

plaintiff

liable

standard is not akin to a probability requirement,
more

544,

the

court

the

556 U.S. at

550

to

accept

as

allegation."

true
I

1,

---"-­

a

legal
556

conclusion

U.S.

at

678

(quoting Twombl , 550 U.S. at 555).

Moreover,

to survive a motion to dismiss,

a complaint

need not contain specific facts establishing a prima
of discrimination.

Swierkiewicz

515 (2002); see Twombl
ll-CV-3742,

2012

WL

v.

Sorema N.A.,

534

ie case
U.S.

506,

550 U.S. at 547; Robinson v. Gucci Am.,
259409,

at
16

*3

(S.D.N.Y.

Jan.

27,

2012)

(complaint

need

not

plead

a

prima

of

proof

facie

case

of

employment

discrimination) .

The
c

ims

cases.

are

elements

different

As the Second

than

needed

those

rcui t

in

in

pattern

or practice

individual

scr

nation

held in

717

F.3d 72, 84 (2d Cir. 2013):
In a pattern-or-pract
case, the plaintiff's initial
burden is heavier in one respect and lighter
another respect than the burden in an individual case.
It is heavier in that the plaintiff must make a
ima
fac
showing of a
rvasive
licy of intentional
discrimination,
rather than a
single instance of
discriminatory treatment. It is lighter in that the
aintiff
need
not
itially
show
discrimination
inst
any
particular
present
or
prospective
employee. Although instances of
scrimination against
particular employees are relevant to show a policy of
intentional discrimination, they are not required; a
statistical showing of
sparate impact might
fice.

(internal

citations

omitted),

Justice v. Eastman Kodak Co.,
2005)

("It

rather

than

is

the

the

claimant that is the
practice

of

(quoting EEOC v.

also

Committed

s.

407 F. Supp. 2d 423,

landscape
subject

see

of

the

total

experiences

of

For

430 (W.O.N.Y.

work
each

environment,
individual

s for establishing a company policy or

systemic

discrimination

in

Mitsubishi Motor Manufacturi

17

workplace. ")
of America

990

F.

Supp.

1059,1074

(C.D.

Ill.

1998))

(internal

quotations

omitted) .

In
issues

are

policies
claims

ss

not

of

actions

readily

such

versa.

this ,

individual

Evidence

strengthen

of

individual

and

company-wide
discrimination

adopted,

Civ.

at *4

(D.

2011

Minn.

WL

Dec.

28,

2010),

claims

evidence

and

may

be

In

statistical

converse
relevant

the

to

individual

and

c

rpt.
2011)

8,

578761

(" [I] ndi vidual plaintiff's circumstances are relevant
based

class

See

2010 WL 5924322,

recom'n

as

separated.

scrimination

and vice

07-2502,
and

c

to c

ss

claims.")

ss­
ented

(citations

omitted) .

class

employer's

practice

s

to

ficient

Health,
2008),
WL
and

of

plead

08-CV-378S,

context,

unlawful

individual
2008

WL

pleadings

treatment
claims.

5114217,

at

of

See

concerning
employees

Gordon

*3

(W.D.N.Y.

order amended on reconsideration on other

4042929
hour

supporting

(Nov.
case

19,

2009)

where

their

(denying motion

"Plaintiffs

claims

by

policies/practices of Defendants").
18

plead
identi

v.

to

an

may

be

Kaleida
Nov.

rounds,

25,
2009

dismiss

in wage

the

factual

grounds

ng

three

cific

The Motion To Dismiss The Third Cause Of Action Is Denied

The
FMLA

ird

interference

escape

FMLA

oyees
story

I

ility

the

by

Under

any" FMLA right.

29 U. S. C.

499

former

position

Brenlla v
2002

WL

employer

La

FMLA

De

s

cannot

or

attempting

to

coerce

s.

The

alleged

iffs.

ri

inter

ring

AC

with

employers

§

not

F.

Supp.

who

inter

has

employees

s
res

§

with

2614 (a) (1)

i

350 51,

restore
her

at

*5-6

an

FMLA

(S.D.N.Y.
"[iJnterfe

loyee's rights would include . .

19

to exer

se,
s

lent position upon

2d 340,
not

w

An employee who ta

Roberts v. Ground
355-56

(S.D.N.Y.

employee

rights.

to

r

See

---'----""--

00 Civ.

rsa Buick Pontiac Chevro

1059117,

a

FMLA

l

"inter

attempt

2615 (a) (1).

29 U.S.C.

regulations further state
of an

alleged

restored to an

r return post leave.

An

ly

exercise of or

leave must therefore

2007).

suffi

(c); 20; 34-66; 69 85.

FMLA,

or deny

has

PIa

coerci

Defendants'
(b),

Action

for

their

rights. AC 'lI'lI 18 (a),

restrain,

of

claims

to
of

Cause

May

28,

5207,

2002) .

FMLA

wi th the exercise
not only refusing to

authorize

FMLA

leave,

but

discouraging

an

employee

from

using

such leave." 29 C.F.R. § 825.220(b).

To state a
plaintiff

must

under

the

FMLA;

(3)

claim for

prove

FMLA;

(1)

that:

(2)

the

interference with FMLA rights,
she

defendant

was
was

an
an

eligible
employer

she was entitled to leave under the FMLA;

employee
under

(4)

was

denied

benefits

under the FMLA.

Roberts v.

2008 WL 4444004

to

(S.D.N.Y.

as

to

the

second

which

Stoler's

Sept.

element

fourth

interference

element

with

was

AIG Global Inv.
30,

of

claim.

regards

to

and

otherwise
Corp.,

2008).

There

Plaintiffs'

Defendants do not dispute the first
to

she

(5)

entitled

06 Civ.
is

the

she gave

notice to the defendant of her intention to take leave;
she

a

5966,

no dispute

interference

claim.

three elements with regards

Defendants
Hess'

do

claim.

not

dispute

Defendants

do

the
not

dispute the first four elements with regards to Marcus.

Defendants pre-FMLA leave comments

and actions during

Stoler's leave constitutes interference of Stoler's FMLA rights.
Rosenthal
her

told

priori ties

weeks

after

Rosenthal

Stoler
in

Stoler

told

her

pre-FMLA

planning

leave

her

that

leave

told

Rosenthal

that

her

that

position

20

and

she

should

return
she

might

to

would
change

consider
work.

take
when

Two
leave
she

returned.
ended

Rosenthal

and

leave,

before

that

r

oler,

t

Stoler

asked

her position mi

in totality,
coerce

furt

to

her

leave

leave.

for

an

FMLA leave

extension

of

that

change when she returned.

it is plausible t

Stoler

before her

Taken

such comments were designed to

her

or

1

from

using

Plaintiffs

al

t

to

discourage

ions

Defendants began the process of

Stoler

adequately allege
Stoler well before

r FMLA leave ran out.

Rosenthal
rs,

Stoler

to work the day she was
When

her
cubi

told

there

t

Stoler

returned,

suppos

she was

ous position and moved out of
ven such occurrences,

e.

to

return

many

and not

levels

below

office into a

r

adequately pled

Plaintiffs

ion upon her

1

FMLA leave.

s

De
maternity
However,

FMLA.

too

return from her
two

that Stoler was not restored to her or

"FMLA"

were

that he needed to figure out a role for her,

to
leave.

also

leave,
a

a

leave
A plaintif

argue

which

is

that

Stoler

not

synonymous

iff's use of the
s

not
n

vitiate

merely

her

st

with

FMLA

term "maternity"
claim

or

ghts

rat

leave.
r

under

not use the term "FMLA" to rece
21

r

than
the
FMLA

protection.

29

C.F.R.

Inc.
cove

825.302(c);

§

192 F.

see

. 2d 80,84

Mull
v. Rochester
------------------------

(W.D.N.Y. 2002)

by FMLA when she requested materni

did not
leave

ifically mention the FMLA).

for

the

first

t

a

leave although she

"When an employee seeks

FMLA-qualifying

employee need not expressly asser"t rights
mention

FMLA." 29 C.F.R.

obligation
leave.

ifically

to

Moreover,

Stoler asked

be

t

requesting

FMLA

when

requesting

1 unders

that

said she would need to take

Even if Rosenthal did not understand Stoler to

FMLA

February 2012. AC

the

Stoler was under no

it is plausible that Rosent
FMLA leave when

leave.

mate

mention

reason,

r the FMLA or even

825.302(c).

§

(employee

~

leave,

Stoler

applied

FMLA

that

Stoler's

ave

in

36.

Defendants

assert

FMLA

rights

were

tiated because she extended her leave an additional two weeks
of

on
However,

her

12

Stoler asked

Rosenthal

approved

would

affected.

be

meetings be
to a

weeks

it

r

of

leave

provided

an extension of

without

Stoler

telling

also

re the end of her FMLA leave.

aintiff who has taken,

leave greater than 12 weeks,

with her

leave

Stoler

agreed

to

FMLA.

under
from

her

attend

lIN,

FMLA
wee

rights
y

lIN

FMLA coverage appl

s

oyer's permission,

Santosuosso v. NovaCare Rehab.

22

and

a

462

F.

Supp.

2d

vitiate her

590,

597 98

FMLA rights

(D.N.J.

s

2006),

and

Stoler

did

not

ly by taking an approved extension

of leave.

The two cases c
In both of these cases,

ed by De

pIa

s are distinguishable.

iffs were unable to return before

the end of their leave and were not g
r

t

leave.

the

157,

re

(S.D.N.Y.

leave

Med.

r

(2d
for

2013)

have

because

of

ave
p

his

6722,

was

to

work

well

and

intiff

2013

was

WL

at

enough

facts

t

end

to

at

to

Vangas

v.

to
of

at

2d

420,

428

plaintiff
plaintiff's

9

Geromanos v.

(S.D.N.Y.
failed

substance

to

2004),
comply

abuse

is

her

Columbia Un

if

had had
could

treatment,

which

23

.,

322 F.

distinguishable
rules

FMLA

return or because

ter

with

*3

indicate

more notice" and that plaintiff's "own pleadings
not return to work").

the

unable

656892,

"no

FMLA leave

that

position);

(plaintiff pI

scheduled her

cou

od,

Civ.

returned
she

(making no indicat ion

additional

functions
11

1999)

r.

FMLA-Ieave

Ctr.,
22,

could
ei t

requested

essential

Feb.

s

t

161-62

12-week

the

Monte

Inc.,

--------------~------------------------------~-----

plaintiff

r

as Elliman-Gibbons & Ives

See Sarno v.

183 F. 3d 155,

of

permission to extend

asso
was

Supp.

cause the
at

with
cal

reason

for

her

leave.

A consensual extension of an

leave

does not bar a plaintiff from asserting FMLA rights.

Defendants

contend

that

Hess

was

not

a

cove

because she had not worked for Defendants for 12 months
requested

when

FMLA

leave.

However,

FMLA

el

lity

ions "must be made as of the date the FMLA leave is to
start." 29 C.F.R.

§

825.110(d);

Inc.

666

_ _ _ _ _ _L ­_ _ _ _~_ _~_ _ _ __ _

see Pereda v.

F.3d

1269,

Brookdale Senior

1273

(11th

Cir.

2012)

who would have begun leave when she was eligible was
FMLA);

Corral

v.

12-cv-02375,

2012 WL 4442666,

(FMLA elig

lity is

thus

ect

Hersha

Hospi tali ty Mgmt.,

at *7-10

(D.N.J.

Sept.

Inc.,

24,

2012)

termined at the start of leave). Hess was
FMLA because

by

she

was

eligible

for

FMLA

leave when her leave was scheduled to start.

Hess

not

cou

825.220 (b).

their

FMLA

However,

Plaintiffs all

before

her

t

ssal

Defendants'

FMLA leave.

'3l 84.
24

under

the

FMLA,

Preventing employees from
the

FMLA,

29

C.F.R.

§

there is no causal connection

of

that
AC

rights

olate

s

ri

Defendants argue

between

her

s fired her.

however, because De
exercising

exercise

Hess

De

and
s

s

se

her

FMLA

fired Hess
temporal

leave.
10 days

proximity

between Defendants'
showing

of

smissal

interference

Crisses v.

at

Gucci America,

Hess'
the

FMLA leave is sufficient

motion

Inc.,

to

10 C

di

ss

stage.

See

8393,

2012 WL 3834634

was

"constructively

(S.D.N.Y. Aug. 21, 2012).

Plaintiffs
scharged,

allege

that

Marcus

that Defendants coerced Marcus to

II

forego her

ghts. While constructive discharge and inter
brought

general

as

separate

Geisi

ce s ,

0 8 Ci v .

----~--~---------

Pa. March 24,
that

2010),

2525143,

*8

construct

liberately

intolerable

that

compelled

a
to

Aug.

made

t

d

13,

2 0 1 0 WL

12 5 3 4 8 2

07 C

v.

(M. D.

2009).

To

establish

working
her

person

Morris

1230, 2009 WL

must

Marcus'

reasonable
resign.

Smallcomb

rge can be pled to show

Plaintiffs

Int'l, 481 F.3d 86, 89 (

Marcus

175 ,

of Columbus

Oh

discharge,

Defendants

felt

(S.D.

e.

oyee FMLA benefits to which she

, see Lee v. Cit
at

see

rence claims are

-----'--"-'-='--'-

constructive dis
ied the

employer

was entitl

claims

FMLA

v.

Sch

establish

r

that

conditions

shoes

would

Capital

a

so
have

Mgmt.

Cir. 2007).

Posavetz

about

her

concerns

about

the

y of her job in light of her pregnancy and noted that lIN
had

a

history

of

firing

pregnant
25

women.

Posavetz,

however,

Marcus'
demot

Marcus.
"s

925

concerns,

and

Defendants'

Defendants

treatment

Supp.

di

2d

476 77

453,

(S.D.N.Y.

where plaintiff was made to

")

(collecting

from

oyment

cases)

clear

leave,

discharge

KPMG LLP,

(constructive

"not want

while

Marcus' FMLA ri

w

feel,

FMLA

sufficiently pled construct
inter

2013)

Thus,

during

and

of Marcus

was not wanted as an employee." Kassman v.

F.

empl

marginalized

as

Marcus

d

resign

Plaintiffs

and

a

an

have
lIN

claim

s.

The Motion To Dismiss The Fourth Cause Of Action Is Denied

The FMLA prohibits empl

rs

employees who exercise their FMLA ri
unlawful practices under the FMLA.
F. Supp. 2d 448,

469-70

from retaliating
s or oppose an emplo

s

(S.D.N.Y. 2011). A plaintiff makes out a

employment
occurred

rights protected
[her]

qualified

under

position;
and

act

(4 )

circumstances

retaliatory intent." Drew v.
270,

277

(S.D.N.Y.

2010)

r's

th v. Westchester Co., 769

establishes that:

prima facie case of retaliation where
[s] he exe

st

FMLA;

r

(3)
the
giving

[s]

suf

an

adverse
action

to

Plaza Constr. Com.,

(quotation mar

26

omit

red

[s] he was

employment

adverse
rise

(2)

"(1)

an

inference

of

688 F. Supp. 2d
).

Plaintiffs

need prove only that their FMLA leave was a motivating

ctor in

defendants'

Mullins

decisions,

v. Bondib Hotels,
(S.D.N.Y,

Dec.

activity.

10 C

Inc.,

Pereda,

alleged t

not that it was the sole reason.

22,

2011).
666

4069,

2011 WL 6434328 ,

Requests

F.3d at

at * 4,

6

FMLA leave are protected

1276.

Plaintiffs have adequately

ir rights and adverse action by the

exercise of

Defendants.

It
Stoler
moved

is

returned
her

into

and posted a
Stoler.

2013,

action,

the

from
a

that,

in

maternity

cubicle,

complained
with

about

Defendants with the EEOC.

The

timing

of

those

events

the

Blind,

(S.D.N.Y.
to

an

Dec.

No.
17,

inference

08

2010)
of

cut

a

demoted

her

her,

compensation,

these

actions
and

in

Cody.

a

series

On

of

February

aintiffs

filed charges against

Stoler was fired on May 14,
alone

Civ.

er

ir initial complaint in this

plausible FM:'A retaliation claim.
for

months

Rosenthal

Posavetz,

2013,

t

four

high-level executive to replace

Plaintiffs filed
5,

rst

significantly

Rosenthal,

and on April

the

leave,

job listing for a

Stoler

conversations
25,

alleged

is

sufficient

See

4899,

r
2010

WL

("Temporal proximity

retaliation

omitted) .

27

")

to make
v.

2013.
out

a

Lavelle Sch.

5158644,

at

*15

can give rise

(internal

quotation

The AC has alleged t

t

after Hess

formed Rosenthal

of her pregnancy in early October 2012 by email. When advised of
Hess'

pregnancy,

new morn that

Rosenthal

didn't

told Hess

underest ima te

that

the

had "never met

sleep,

time,

a

exhaustion

from a new babyu and advised Hess to speak with her partner to
see

"if

needed

it
to

was

"protect U

could decline.
that her
her

Over

began

one of Hess'

to

himself

and

lIN

also

told

because

Hess advis

the

course

falsely

of

criticize

Hess

her

that

he

performance

Rosenthal affirmatively

r

the
her

next

several

work,

cut her annual bonus by $20,000,

colleagues to stop wor

job listing that
red

Rosenthal

U

rformance would not be diminished upon her return to

responsibilities,

and

it.

In response,

position.

Rosenthal

worth

scribed Hess'

ng with her,

took

mont
away

her

told at least
posted a new

jobs role and responsibilities,

10 days before the start of her leave.

finds that Plaintiffs have sufficiently pl

The Court

an FMLA retaliation

claim.

In a
her pregnancy,

little more than a month after Marcus announced
and the need to ta

FMLA leave,

and complained

to HR that she was concerned about lIN's history of dismissing
pregnant women,

Rosenthal

removed Marcus

28

from

lIN's management

r

team and
wi

the

Nutrition Manager,

replacing her

a junior employee without children whom Marcus had trained.

By

rend,

$25,000.

14,

position as

Rosenthal

reduced

Marcus'

promised

In March 2013, Marcus began her FMLA leave,

2013,

Marcus

constructively

asserted

discharged.

retaliation aga

to

These

lIN

that
tions

all

she

raise

and on May

assertions,

adequately

concluded

above,

claims,

contrary

to

Action
Cause
Denied

Defendants'

Defendants had notice of the protected activities of
and the allegations of Stoler and Marcus

the AC plead sufficient facts

actions.

al

t Marcus.

Stoler and Marcus,

between

been

had

The
Motion
To
Dismiss
The
Second
Cause
Of
(Retaliation
Under
Title
VII)
And
The
Sixth
Of
Action
(Retaliation
Under
City
Law)
Is
As To Stoler And Marcus And Granted As to Hess

As

by

those

activit

Defendants
also

s

have

encompassed

to establish a causal connection

and

Defendants'

not
in

addressed
the

second

adverse

employment

class

retaliation

the
and

sixth

causes

of

action.

In a retaliation claim under Title VII,
must

first

showing:

establish

"(1)

his

a

prima

facie

participation

29

in

case

of

protected

the plaintiff
retaliation
act

ty;

by
(2 )

defendant's knowledge thereof;
action;

and

activity
Ente

and

a

causal

the

adverse

Inc.

2532-33

(2013) ;

442 F. App'x 581,

583

Cir.

400 F. App'x 586,

589

the

29 U.S.C.

Fin. Servs.,
retaliation

claims.

under the "butNassar

Plaintif

03276,

standard]

an

(2d Cir.

Nassar,
Sch.

v v. Cit

133 S.
Dist.

of N.Y.

the

Discriminat

133

S.

"but for"

in Employment

claims in Gross v.

should

need

not

show

Ct.

that

FBL

applied to Title VII
at

2520-21.

2012 WL 2872122,

employer

may

retaliation

Fuentes v.
at

2 0 12
"Instead,

v.

v.

But

even

r" standard articulated in Gross and adopted in

cause of an adverse action.
09 CV

568 n.6

ld that

(lfADEAIf),

(2009),

Nassar,

Tepperwien

v. McGraw-Hill Co.

Supreme Court

557 U.S. 167

protected

(S.D.N.Y. 2009) .

621 et seq.

§

the

Penn Yan Cent.

2011) ; Val

causation standard applied to Age
Act,

Ctr.

(2d Cir. 2010);

599 F. Supp. 2d 462, 468

In Nassar,

action."

Med.

v.

Barkl

Inc. ,

between

663 F.3d 556,

of Texas Sw.

see also Univ.

2517,

connection
employment

Nuclear

2011);
Ct.

(4)

(3) materially adverse employment

be

*3

is

the

only

Jamaica Colosseum Mall,
(E.D.N. Y.

WL

2 8 7 211 9

held

liable

June

5,

2012);

( J u 1 Y 12 ,

2 012) .

under

[a

but-for

if other factors contributed to its taking an adverse

action, as long as

[the protected characteristic] was the factor

30

made a difference."
F.3d

1273,

mar

1277-78

tted)

(10th

(ADEA
596

burden
stic]

Jones v.

case);

F.3d

of

Cir.

93,

Oklahoma Cit

2010)
see

(2d

demonstrating

was

a

(citations

also

106

Pub.

Gorz

Cir.

that

motivating

ski

or

factor

617

and

2010)

his

S

ation

v.
("[P]lainti

her

in

the

rse

nt action.").

at the stage of a motion to dismiss,

As
the

stion"

"re

"factual

content

t

is

allows

whether
the

inference
Kassman,

omi tted) .

925

F.

Supp.

s

De

plaintiffs

in

iled to

complaint

to

her

to

draw

liable
2d

at

contended

the

for

461

have

the

reasonable
misconduct

(internal

that

pled,

citation

individual

the

ected activity.

ition to violations of Title VII or

An employee's
a

court

is

alleged."

plaintiffs

them

empl

is

protected

activity.

See
Tenn.,

555

employer
activity)
Oistrib.

U.S.

that

271,

276

(2009)

communications

employer

(internal citations omitt
Co.,

Inc.,

370

is

scr

F.

'x

31

to

protected

); La
v. OeCrescente
--------------------------206,

212

(2d

r.

2010).

(opposition
management) .

"Opposition"

broadly

e

activity in

s

discrimination

to

and

"Congress

"part ic

sought

555

Craw
to

achieve

harm to empl

O.S.

Title

<j[

<j[

48,

VII's

above,

opposed

143-47,

Stoler
HR,

46,

F.2d

1564,

of

obj ecti ve

(2d

Cir.

interpreted
of

avoiding

Rosenthal

t

which

a

t

other

women

and lIN's in-house counsel,

t

he

id.

lIN's

retaliation.
in-house

concerned

about

her

job

Defendants

had a

history of

subject,

ifically
including a
was

seemed to bel
Id.

rst week of May 2013

and

s

Stoler also complai

pregnancy.

of

complained in the
scrimination

ined about

ions she experienced immediately after her

because

to

1569

("opposition"

about the discrimination to which she was

rectly

range

1 complaint." Grant

primary

to

48,

return from maternity leave.

capable

wide

a tedly expressed concern to Rosenthal,
<j[<j[

about the

complaint to

interpreted

Stoler and Marcus

scrimination

were subject.
AC

278 79

to

es) .

As set
and

at

are
a

tion to the filing of a

-----

broadly

tion"

to

880
1989) i

complaints

Id.

counsel

because
firi

of

<j[<j[

<j[

51.

about

Stoler
the

61-62.

and

told

him

pregnancy

pregnant

women.

also

conti

Marcus

her

less

ng
went

she
and

Id.

<.IT

was
t

t

100.

Stoler

was

fir

construct

s

ly

position,

her

from

while

Marcus

was

, see supra.

though Hess stated to Rosenthal that her commitment
and capabilities
and

thereafter

were

a

complained

demotion of her,
the

not

to

'l1 77,

id.

cted by her pregnancy,
Rosenthal

s

others

did not make

nating

alleged policy discr

and

against

a

'l1

AC

about

71,

lIN's

complaint about

pregnant

women prior

to her filing of the AC.

It is plaus
of

Stoler

Albunio

and

v.

Marcus

City

(under NYCHRL,
plaintiff's

of

s understood the actions

i)e

to

New

ected

York,

16

N.Y.3d

jury could

protected

472,

479

employer

a

activity

activity.

iff

(N.Y.
was

See
2011)

aware

stated

of

that

employer's treatment of gay coworker "was wrong" even though she
"did

not

say

in

so

many

discrimination victim").
Marcus

have

failed

contradicted by the
U.S.

Postal Serv.,

activities

include

employment practices

to

wo

Defendants'
allege

allegations
899 F.2d 203,
"informal

.

coworker]

t

").

33

contention that

known

protected

described above.
209

(2d Cir.

protests

of

1990)

s

a

Stoler and

act
See

was

ity

is

Sumner v.
ed

The
act

s

est

of

F.3d 205,
itself,

Stoler

and

the

s

i

causal

217

(2d Cir.
to

2001)
find

.,

Automation

(causation

established

months

r

a

adverse

discriminatory
retal

63.

AC

see

also
214

s

was

43-48,

51,

subject

to

his

59,

of dismissing pregnant women.

weeks

of

Id.

<Jl~

2010)

increasing
De

Sl

61-62.

retaliation

had a

st

1 and

HR

her with a

and repl

Id.

~

Id.

after

her position because de

Ro

by

Sec.

retaliation.

was worried

demoted Marcus,

v.

dismissal two weeks after

similarly

complaint,

252

occurred

resisted

complained s

s

Ibok

faced

Stoler

s to management of discrimination
Marcus

Co.

(2d Cir.

actions

time

~~

ion culminated in

compla
~

actions.

each

G.E.

actions

ral proximity is,

adverse

activity) .

ected

adverse

Cifra v.

App I x 210,

F.

the

the

causation);

where

actions

and

(close t

369

protect

loyment

Marcus

between

connection.

sufficient

Indus.

proximity

temporal

100.

s

Wit

reprimanded Marcus,

more

junior emplo

e.

opposition

are

101 04.

cases

cited

by

inapposi te as they were dec
not upon a motion to dismiss.

Defendants
at the

summary judgment st

See Slatter
34

in

v.

Swiss Rein

rica
06

N.Y.,

.,

Co

248

Civ.

stro v.

F.3d

173,

2009

WL

637157

Bd.

New York Cit

2001) ;

(2d Cir.

87

v.
March

(S.D.N.Y.

of Educ.

rsonnel,

1998

WL

108004

iffs
plaus

are

merely

assert

y

March

(S.D.N.Y.

the

12,

required

to
y

claims

protested

Rosenthal's
telling

and

him

pI

ry
ot

At

r

I IN

Civ.

this

6314,

stage,

facts

that

Stoler

aIle

disc

pregnancy,

1998).

and

attitude
managers

of

2009) ;

10,

96

--------------------------~--------------------------

Cit

could
Marcus

toward
that

the

their

they

were

capable of performing their duties

fore and after lIN took any

adverse

them.

employment

plaintiffs
this

months
2009

did
248

at

at

95

in

iff

gave

plaintiffs

act

Stoler
establishing a
that:

(1)

2004.");

t

pr

of

iff

a

throughout

February

(defendant

(progressive

("

the

disciplinary

lained

*9

Moreover,

by Defendants,

t

plaintiff

637157 ,

inst

long

warnings and
began

a

not
F.3d

before
WL

s

in the cases

case

Slattery,

act

Castro,

unlike

Plaintiffs

histories.

discipline

began

discrimination);
was

2003;
1998

unsatisfactory

subject

See
five

Ramse

to

his protected
WL

108004,

review

a

at
r

*2 4
fore

y began) .

Marcus

have

sufficiently

cie case of retal

Y participated in protected act
35

ion

aIle
r

ty;

(2)

facts
Title VII
known to

s;

they suffered an

(3)

retaliation would not

(4 )

all

wrongful

have

the

action or actions of t

and Marcus have alleged sufficient
ss
NYCHRL

under
is

Title

4402,

that

federal

protection

yond those
H);

2010 WL 114248
claims

counterparts),

of

Stoler

Title

Supp.

under

the

VII,

see

2d 159,

171 75

NYCHRL has "uniquely broad and

which go

NYCHRL

absence

employer.

under

t

(noting that

ral civil rights

06 Civ.

r

since

836 F.

purposes,

out

Further,
b

and

cts to survive a motion to

Re

(S.D.N.Y.2011)

or

VII.

considerably

Williams v.

oyment action;

rse

Weiss v.

(S.D.N.Y.

are

ewed

Stoler

of

and

counterpoint

JPMo

Jan.

13,

Chase
2010)

Co.,

&

(po

ing

liberally"

"more

Marcus

State

than

have

suf

ently

alleged an NYCHRL cIa

Conclusion

Pursuant
Defendants'

Court's

to

motion

ss

to

Action is deni

as to p

as

Hess.

to

plaintiff

The

the

reasoning

Second

and

Sixth

the
Causes

of

iffs Stoler and Marcus
Defendants'

motion

to

Third and Fourth Causes of Action is denied for all

36

ss

the

iffs.

It is so ordered.

New York, NY
November

~

I 6,

2013

37