Bueno v. Eurostars Hotel Company, S.L. et al

Filing 46

MEMORANDUM OPINION AND ORDER re: #23 MOTION to Dismiss . filed by Cristina Marroqui, Front Property Hotel Corporation, Amancio Lopez Seijas, Eurostars Hotel Company, S.L.. The Court has considered all of the arguments of the parties. To the extent not discussed above, the arguments are either moot or without merit. For the foregoing reasons, the defendants' motion to dismiss is granted in part and denied in part. The plaintiff's claims against Ms. Marroqui are dismissed in their entirety. Of the plaintiff's remaining claims against the defendants, Count I is dismissed as to Mr. Lopez; Count II is dismissed as to Mr. Lopez; Count III is dismissed as to all of the defendants; Count IV is dismissed as to EHC; Count Vis dismissed as to all of the defendants; Count VII is dismissed as to all of the defendants; Count VIII is dismissed as to EHC; and Count IX is dismissed as to all of the defendants. The Clerk is directed to close Docket No. 23. SO ORDERED. (Signed by Judge John G. Koeltl on 1/7/2022) (ks)

Case 1:21-cv-00535-JGK Document 46 Filed 01/10/22 Page 1 of 31

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MARTA BUENO,
Plaintiff,

21-cv-535

(JGK)

- against EUROSTARS HOTEL COMPANY, S.L., FRONT
PROPERTY HOTEL CORPORATION, AMANCIO
LOPEZ SEIJAS, and CRISTINA MARROQUI,

MEMORANDUM OPINION
AND ORDER

Defendants.
JOHN G. KOELTL, District Judge:
The plaintiff, Marta Bueno, brought this action against
Euro stars Hotel Company S .L.

("EHC"), Front Property Hotel

Corporation ("Front"), Amancio Lopez Seijas ("Mr. Lopez"), and
Cristina Marroqui

("Ms. Marroqui"), alleging age and pregnancy

discrimination in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq.

("Title VII"), as amended by

the Pregnancy Discrimination Act of 1978, 42 U.S.C. § 2000e(k);
the New York State Human Rights Law, N.Y. Executive Law§ 290 et
~

("NYSHRL"); and the New York City Human Rights Law, New

York City Administrative Code § 8-101 et seq.

("NYCHRL")

EHC, Mr. Lopez, and Ms. Marroqui move to dismiss the
complaint in its entirety pursuant to Federal Rules of Civil
Procedure 12 (b) (1),

(2), and (6). ECF No. 23. Front joins in the

motion seeking partial dismissal of the plaintiff's claims for
age discrimination pursuant to Federal Rule of Civil Procedure

1

Case 1:21-cv-00535-JGK Document 46 Filed 01/10/22 Page 2 of 31

12 (b) (6). Id. For the reasons that follow,

the motion to dismiss

is granted in part and denied in part.
I.

The following facts are taken from the plaintiff's amended
complaint and the documents referenced therein and are accepted
as true for purposes of this motion.
The plaintiff, Marta Bueno, is a 43-year-old woman who
resides in New York, New York. Am. Compl.

'll'll

10-11, ECF No. 15.

The corporate defendants, EHC and Front, are hotel companies.
Id.

'll'll

13, 18. The plaintiff alleges that EHC operates two

hotels in New York City and employs 22 people there, and that
Front co-operates one of these New York hotels with EHC. Id.

'll'll

13-14, 18. The co-operated hotel is located at 129 Front Street
(the "Front Street Hotel").

Id. 'II 18. The individual defendants,

Mr. Lopez and Ms. Marroqui, are employees of both companies and
reside in Spain. Id.

'll'll

21, 23, 26, 28. Mr. Lopez is the owner

and Chief Executive Officer

("CEO")

of EHC and Front, id. 'II 21,

and Ms. Marroqui is the International Sales Manager of both
companies, id. 'II 26. At all relevant times, Mr. Lopez is alleged
to have "closely surveilled" the businesses of EHC and Front,
and "closely controlled all aspects related to employee
management," including hiring and firing.
'll'll

Id. 'II 52; see also id.

53-63. The plaintiff also alleges that both Mr. Lopez and Ms.

2

Case 1:21-cv-00535-JGK Document 46 Filed 01/10/22 Page 3 of 31

Marroqui traveled to New York approximately four times per year
as part of their employment with EHC and Front.

Id. 11 23, 28.

The plaintiff alleges that she was jointly employed by EHC
and Front between October 2007 and February 25,

2020.

Id. 11 15,

20. When the plaintiff was initially hired, she was employed at
the corporate defendants' hotel in Barcelona, Spain, where she
worked for approximately six years. Id. 11 37-40. In 2013, "due
to [the plaintiff's] outstanding performance," Mr. Lopez
promoted her to serve as the Chief Operating Officer ("COO")

of

the Front Street Hotel in New York City, where she was
transferred. Id. 1 40. At the time of this promotion, the
plaintiff was 35 years old,

single, and had no children.

Id. 1

45. The plaintiff claims that her "status as a young single
woman with no children fit into [Mr. Lopez's] preference of
hiring individuals under the age of 40, and if women, preferably
with no children." Id. 1 46.
In 2015, the plaintiff's duties were expanded to include
management of EHC's other hotel in New York City.

Id. 1 47.

Around this time, the plaintiff received a new employment
agreement that provided for paid maternity leave for four
months. Id. 11 48-49. This employment agreement listed EHC's
previous corporate name, Agincort 2008 S.L.U, as the corporate
employer.

Id. 1 48.

3

Case 1:21-cv-00535-JGK Document 46 Filed 01/10/22 Page 4 of 31

On or about February 1, 2018, Ms. Marroqui became the
plaintiff's supervisor. Id.

~

64. The plaintiff alleges that she

and Ms. Marroqui soon became friends,

id.

~

68, and that Ms.

Marroqui confided in her that she "hated" her friends when they
became pregnant, id.

69.

~

In December 2019,

the plaintiff informed Ms. Marroqui of

her desire to use in vitro fertilization ("IVF") tp have a
child. Id.~ 74. The plaintiff claims that she told Ms. Marroqui
that IVF was her "only option" to become pregnant because she
was 41 years old at the time. Id. Ms. Marroqui allegedly
responded, "[T]hat's nice, but

. Mr. Lopez doesn't like

people taking leave because it ends up being a cost for the
company." Id.~ 75. Nonetheless, on January 3, 2020, the
plaintiff told Ms. Marroqui that she would begin IVF treatments
later that month.

Id.

~

76. Ms. Marroqui was allegedly annoyed,

id.~ 77, and told Mr. Lopez of the plaintiff's plans to become
pregnant, id.~ 78.
On January 30,

2020, the plaintiff began IVF treatments,

id. 1 79, and on February 20, 2020, she received confirmation
that her IVF procedure had been successful and that she was
pregnant, id. 1 80. On February 20, the plaintiff shared this
news with Ms. Marroqui, who was "clearly taken aback." Id. 1~
81-83. The plaintiff claims that Ms. Marroqui told Mr. Lopez
about the plaintiff's pregnancy.

Id. 1 85.
4

Case 1:21-cv-00535-JGK Document 46 Filed 01/10/22 Page 5 of 31

On February 25, 2020, five days after sharing the news of
her pregnancy with Ms. Marroqui, the plaintiff received a letter
that her employment with EHC and Front had been terminated.

Id.

!! 86-87. The letter was signed by "Front Property Hotel
Corporation" on a letterhead bearing the name "Eurostars ." Id.
a t ! 87; ECF No. 34-10. The letter "provided no basis" for the
plaintiff's termination, and the plaintiff received no oral
explanation for it. Am. Compl. !! 87-88. The plaintiff claims
that she never received any warnings or bad reviews during her
13-year employment with EHC and Front, and, to the contrary,
that her record was "impeccable." Id. !! 96-97.
On or about April 1, 2020, the plaintiff filed a charge
with the Equal Employment Opportunity Commission ("EEOC")
alleging gender and pregnancy discrimination against EHC and
Front. Id. ! 33. On or about September 25, 2020, she received a
right-to-sue letter in connection with this charge.

Id. ! 34. On

January 21, 2021, the plaintiff filed a complaint in this Court,
ECF No. 1, which she amended on May 7, 2021, ECF No. 15.
II.
A.
EHC, Mr. Lopez, and Ms. Marroqui move to dismiss the
plaintiff's claims pursuant to Federal Rule of Civil Procedure
12 (b) (1)

for lack of subject matter jurisdiction. The plaintiff

bears the burden of proving the Court's subject matter
5

Case 1:21-cv-00535-JGK Document 46 Filed 01/10/22 Page 6 of 31

jurisdiction by a preponderance of the evidence. Aurecchione v.
Schoolman Transp. Sys., Inc., 426 F.3d 635, 638

(2d Cir. 2005)

1

In considering such a motion, the Court generally must accept
the material factual allegations in the complaint as true. See
J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d
Cir. 2004). The Court does not, however, draw all reasonable
inferences in the plaintiff's favor. Id. Indeed, where
jurisdictional facts are disputed, the Court has "the power and
the obligation to consider matters outside the pleadings," such
as affidavits and documents, to determine whether subject matter
jurisdiction exists. See Parks v. Off. of Temp.
Assistance, 675 F. Supp. 2d 440,

&

Disability

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

(collecting

cases) . In so doing, the Court "may not rely on con cl usory or
hearsay statements contained in the affidavits," Attica, 386
F.3d at 110, but is instead guided by that body of law that has
developed under Federal Rule of Civil Procedure 56, Kamen v. Am.
Tel.

&

Parks,

Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986); see, e.g.,
675 F. Supp. 2d at 441.
B.

In this case, the Court has subject matter jurisdiction
over the plaintiff's claims on the basis of federal question
jurisdiction and supplemental jurisdiction. The plaintiff

1

Unless otherwise noted, this Memorandum Opinion and Order omits all
alterations, citations, footnotes, and internal quotation marks in quoted
text.

6

Case 1:21-cv-00535-JGK Document 46 Filed 01/10/22 Page 7 of 31

appears to concede that diversity ju risdiction is lacking in
this case.
Pursuant to 28 U.S.C. § 1331, district courts have subject
matter jurisdiction over "all civil actions arising under the
United States Constitution and the laws and treaties of the
United States.

11

This "federal question 11 jurisdiction is properly

invoked when federal causes of actions are "colorably" pleaded
in the plaintiff's complaint. See Goldman v. Sol Goldman Invs.,
LLC, No. 20-cv-06727, 2021 WL 4198253, at *2 (S.D.N.Y. Sept. 14,
2021). Once a basis for federal question jurisdiction is
satisfied, the Court may elect to exercise supplemental
jurisdiction "over all other claims that are so related to
claims in the action within such original jurisdiction that they
form part of the same case or controversy under Article III of
the United States Constitution.

28 U.S.C. § 1367(a). This

11

includes "nonfederal claim[s] between parties litigating other
matters properly before the court," or the addition of
independent parties, when the claims against those parties arise
"out of the same common nucleus of operative facts as the claims
against the other named parties." Schinella v. Soyer, No. 19-cv8931, 2021 WL 4255055, at *4 (S.D.N.Y. Sept. 16, 2021); accord
Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296,
308 (2d Cir. 2004). Unless one of the restrictions provided in§
1367(c) applies, this exercise of supplemental jurisdiction "is
7

Case 1:21-cv-00535-JGK Document 46 Filed 01/10/22 Page 8 of 31

a favored and normal course of action.ll Promisel v. First Am.
Artificial Flowers, Inc., 943 F.2d 251, 254 (2d Cir. 1991).
The Court here has federal question jurisdiction over the
plaintiff's claims that the corporate defendants violated Title
VII, because claims under Title VII necessarily require the
application of federal law.
Ct. 1843, 1850

See Fort Bend Cnty. v. Davis, 139 S.

(2019) . 2 And, because the plaintiff's Title VII

claims against EHC and Front are factually intertwined with her
nonfederal claims against them and the individual defendants,
the Court has supplemental jurisdiction over these additional
claims. See Treglia v. Town of Manlius, 313 F.3d 713, 723 (2d
Cir. 2002)

(recognizing that the common nucleus concept

encompasses claims that arise �out of approximately the same set
of events" as the jurisdiction-invoking claim); Schinella, 2021
WL 4255055, at *4. Finding no reason to deny the exercise of
jurisdiction on the basis of§ 1367(c), the defendants' motion
to dismiss pursuant to Federal Rule of Civil Procedure 12(b) (1)
is denied.
III.
A.

EHC, Mr. Lopez, and Ms. Marroqui also move to dismiss the
plaintiff's claims pursuant to Federal Rule of Civil Procedure
2 The plaintiff explicitly abandoned her Title VII claims against the
individual defendants in her opposition brief. The motion to dismiss is
therefore granted as to those claims.

8

Case 1:21-cv-00535-JGK Document 46 Filed 01/10/22 Page 9 of 31

12 (b) (2)

for lack of personal jurisdiction. When a motion to

dismiss for lack of personal jurisdiction is decided on the
basis of affidavits and other written materials,

the burden is

on the plaintiff to "make a prima facie showing of personal
jurisdiction over the defendant." Porina v. Marward Shipping
Co.,

521 F.3d 122, 126

(2d Cir. 2008). "[A] prima facie showing

suffices, notwithstanding any controverting presentation by the
moving party, to defeat the motion." Marine Midland Bank, N.A.
v. Miller, 664 F.2d 899, 904 (2d Cir. 1981). In deciding a
motion to dismiss for lack of personal jurisdiction, the Court
must "construe the pleadings and affidavits in the light most
favorable to plaintiffs, resolving all doubts in their favor."
Dorchester Fin. Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81, 85
(2d Cir. 2013). But conclusory statements or legal conclusions
"couched" as factual allegations will not do. Jazini v. Nissan
Motor Co., 148 F. 3d 181, 185 (2d Cir. 1998).
B.
In this case, the Court has personal jurisdiction over EHC
and Mr. Lopez, but not over Ms. Marroqui. Determining personal
jurisdiction over the defendants involves a two-step inquiry.
Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 732 F.3d
161, 168 (2d Cir. 2013). First, the Court looks to the law of
the forum state to determine whether personal jurisdiction lies.
Id. To support this Court's exercise of personal jurisdiction
9

Case 1:21-cv-00535-JGK Document 46 Filed 01/10/22 Page 10 of 31

over the moving defendants, the plaintiff relies on N.Y. CPLR §
302 (a) (1), which provides that personal jurisdiction lies over
any non-domiciliary who in person or through an agent "transacts
any business within the state or contracts anywhere to supply
goods or services in the state," where the cause of action
arises from that connection. Under

§

302 (a) (1), "jurisdiction is

proper even though the defendant never enters New York,

so long

as the defendant's activities here were purposeful and there is
a substantial relationship between the transaction and the claim
asserted." Fischbarg v. Doucet, 880 N.E.2d 22, 26 (N.Y. 2007).
"Purposeful activities are those with which a defendant, through
volitional acts, avails itself of the privilege of conducting
activities within the forum State, thus invoking the benefits
and protections of its laws." Id.
Second, the Court must determine whether its exercise of
jurisdiction over the particular defendant comports with the
United States Constitution. Licci, 732 F.3d at 168. The Court
must therefore determine (1) "whether a defendant has sufficient
minimum contacts with the forum to justify the court's exercise
of personal jurisdiction over the defendant," and (2)

"whether

the assertion of personal jurisdiction over the defendant
comports with traditional notions of fair play and substantial
justice under the circumstances of the particular case." Waldman
v. Palestine Liberation Orq., 835 F.3d 317, 331
10

(2d Cir. 2016).

Case 1:21-cv-00535-JGK Document 46 Filed 01/10/22 Page 11 of 31

1.
The Court has personal jurisdiction over EHC. First, the
plaintiff has satisfied her burden of showing that EHC engaged
in sufficient purposeful conduct in New York and, accordingly,
that jurisdiction is proper under New York's long-arm statute.
The plaintiff alleges that EHC owns and operates two hotels,
including the Front Street Hotel at which the plaintiff was
primarily employed, and employs 22 people in New York, including
-

at one time - the plaintiff. She supports this claim with a

sworn declaration attesting to EHC's ownership of hotels in New
York and to her continued employment by them until her
termination. See ECF No. 33. She also submits, among other
things, her transfer letter to the Front Street Hotel in New
York from October 2017 that bears the "Eurostars" name on the
top, ECF No. 34-14, and her termination letter, ending the
plaintiff's employment in New York that is written on
"Eurostars" letterhead, ECF No. 34-10. This is sufficient to
demonstrate that EHC purposefully conducted activities in New
York within the meaning of§ 302(a) (1). Moreover, because the
plaintiff alleges that she was discriminated against while
employed at one of EHC's New York hotels, and that EHC was in
fact the entity that terminated her, there is plainly a nexus
between the business transacted by EHC in New York - their hotel

11

Case 1:21-cv-00535-JGK Document 46 Filed 01/10/22 Page 12 of 31

business - and the cause of action - the plaintiff's claim for
unlawful termination from that hotel business.
While the defendant disputes that EHC operates hotels and
employs people in New York, and that EHC is the "Eurostars group
of hotels" whose name appears on the plaintiff's transfer and
termination letters, Defs.' Reply Mem. 1-2, ECF No. 41,

these

claims are insufficient to rebut the plaintiff's evidence at
this stage. Both the plaintiff and the defendant swear to their
respective positions in declarations submitted to the Court, but
only the plaintiff supports her allegations with evidence. And,
in any event, the Court must construe disputed facts in the
plaintiff's favor. Accordingly, the plaintiff has made a prima
facie showing of jurisdiction under§ 302(a) (1), see Dorchester,
722 F.3d at 86, and jurisdiction over EHC is proper under New
York law. 3
Second, jurisdiction over EHC comports with constitutional
due process. The requisite minimum contacts analysis "overlaps
significantly" with New York's § 302 (a) (1)

inquiry into whether

a defendant transacted business in the State, Minnie Rose LLC v.
Yu, 169 F. Supp. 3d 504, 515 (S.D.N.Y. 2016), which, for the
reasons given above, is met in this case. The Court's assertion

3 For the reasons explained below, the
jurisdiction over EHC based on a joint
Front's admitted contacts in New York.
~ , No. 17-cv-7862, 2018 WL 6067228,

Court could also assert personal
employer theory on the basis of
See, e.g., Xiaoyan Liu v. Canteen 82
at *4-6 (S.D.N.Y. Nov. 20, 2018).

12

Case 1:21-cv-00535-JGK Document 46 Filed 01/10/22 Page 13 of 31

of personal jurisdiction is also reasonable. See id.

(listing

factors relevant to this inquiry). The defendant has pointed to
no burden of litigating this case in New York, and New York
State and the plaintiff both have an interest in adjudicating
the case in New York. On balance, the assertion of personal
· jurisdiction over EHC comports with due process. See Licci, 732
F.3d at 170 (noting that it is "rare" and "unusual" for
jurisdiction to be proper under N. Y. CPLR

§

302 ( a) ( 1) but to

violate due process) . EHC' s motion to dismiss for lack of
personal jurisdiction is therefore denied.
2.

Additionally, the Court has personal jurisdiction over Mr.
Lopez, but not over Ms. Marroqui. N.Y. CPLR § 302(a) (1)

also

confers personal jurisdiction over individual corporate officers
who "supervise and control an infringing activity." See Chloe v.
Queen Bee of Beverly Hills, LLC,

616 F.3d 158, 164

(2d Cir.

2010); accord Kreutter v. McFadden Oil Corp., 522 N.E.2d 40,

44-

48 (N.Y. 1988). One way that a plaintiff can make this showing
is by alleging that the officer had such "extensive control"
over the day-to-day activities of the corporation that the
corporation's contacts in New York can be imputed to that
defendant. See EMI Christian Music Grp., Inc. v. MP3tunes, LLC,
844 F.3d 79, 98

(2d Cir. 2016).

13

Case 1:21-cv-00535-JGK Document 46 Filed 01/10/22 Page 14 of 31

In this case, and at this stage, the plaintiff's
allegations regarding Mr. Lopez are sufficient to establish
personal jurisdiction over him under New York's long-arm statute
and the United States Constitution. The plaintiff alleges, among
other things, that Mr. Lopez is the owner and CEO of EHC and
Front and that, in this role, he "closely surveilled every
aspect of each of [EHC and Front's] business," "micromanage[d]"
his employees, and subjected all employment-related matters of
his hotels to "close oversight." Am. Compl.

'!['I[

52-53, 59, 62.

These allegations include close oversight over the properties
owned by EHC and Front in New York and of their New York
employees. The plaintiff also claims that Mr. Lopez is the only
person with authority to terminate managers, including the
plaintiff, whose job in New York was terminated. Crediting the
plaintiff's allegations, the plaintiff meets her burden of
establishing personal jurisdiction over Mr. Lopez through his
close control of his companies' operations in New York.

See EMI,

844 F.3d at 98; Belabbas v. Inova Software Inc., No. 16-cv-7379,
2017 WL 3669512, at *3

(S.D.N.Y. Aug. 24, 2017). And because the

plaintiff's claim that she was discriminatorily terminated from
her employment with Mr. Lopez's companies arises directly from
Mr. Lopez's businesses transacting business in New York,
personal jurisdiction under CPLR § 302(a) (1) is proper. See id.

14

Case 1:21-cv-00535-JGK Document 46 Filed 01/10/22 Page 15 of 31

The exercise of personal jurisdiction over Mr. Lopez is
also consistent with constitutional due process. First, for the
reasons given above, the plaintiff has alleged sufficient facts
to make out a prima facie case that Mr. Lopez purposefully
availed himself of the privilege of doing business in New York,
and that this case arises out of those alleged contacts. See
EMI, 844 F.3d at 98. Second, the Court's exercise of personal
jurisdiction is not unreasonable; the defendant has failed to
present a compelling case to the contrary. See Licci, 732 F.3d
at 173. The plaintiff has therefore met her burden of
establishing personal jurisdiction over Mr. Lopez under both New
York law and the United States Constitution, and Mr. Lopez's
motion to dismiss on this basis is denied.
However, the Court lacks personal jurisdiction over Ms.
Marroqui. The plaintiff alleges that Ms. Marroqui,

the

International Sales Manager of EHC and Front, was her direct
supervisor between February 2018 and February 2020. As her
supervisor, Ms. Marroqui allegedly controlled the terms and
conditions of the plaintiff's employment, and the two were
allegedly in regular contact during the plaintiff's employment.
But the plaintiff's allegations do not support the claim that
Ms. Marroqui exerted sufficient control over EHC or Front such
that the corporations'

contacts in New York can be imputed to

her. See Trisvan v. Heyman, 305 F. Supp. 3d 381, 394-95
15

Case 1:21-cv-00535-JGK Document 46 Filed 01/10/22 Page 16 of 31

(E.D.N.Y. 2018). Nor are Ms. Marroqui's other alleged contacts
with New York -

such as her travels to New York approximately

four times per year for work-related matters -

sufficient to

establish minimum contacts under either New York's long-arm
statute or the United States Constitution. Absent such minimum
contacts, personal jurisdiction over Ms. Marroqui is improper.
Ms. Marroqui's motion to dismiss for lack of personal
jurisdiction is therefore granted.
IV.
A.

The defendants also move to dismiss on the basis of Federal
Rule of Procedure 12 (b) (6) for failure to state a claim. In
deciding a motion to dismiss pursuant to Rule 12 (b) (6), the
allegations in the complaint are accepted as true, and all
reasonable inferences must be drawn in the plaintiff's favor.
McCarthy v. Dun

&

Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.

2007) . The Court should not dismiss the complaint if the
plaintiff has stated "enough facts to state a claim to relief
that is plausible on its face." Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009).
16

Case 1:21-cv-00535-JGK Document 46 Filed 01/10/22 Page 17 of 31

While the Court should construe the factual allegations in
the light most favorable to the plaintiff,

"the tenet that a

court must accept as true all of the allegations contained in
the complaint is inapplicable to legal conclusions." Id. When
presented with a motion to dismiss pursuant to Rule 12(b) (6),
the Court may consider documents that are referenced in the
complaint, documents that the plaintiff relied on in bringing
suit and that are either in the plaintiff's possession or that
the plaintiff knew of when bringing suit, or matters of which
judicial notice may be taken. See Chambers v. Time Warner, Inc.,
282 F .3d 147, 153

(2d Cir. 2002).

B.
The plaintiff's amended complaint raises the following
claims against the defendants:

(1) direct pregnancy

discrimination in violation of the NYSHRL and the NYCHRL, and,
in the case of EHC and Front, Title VII;

(2) aiding and abetting

pregnancy discrimination in violation of the NYSHRL and the
NCYHRL;

(3) direct age discrimination in violation of the NYSHRL

and the NYCHRL; and (4) aiding and abetting age discrimination
in violation of the NYSHRL and the NCYHRL. EHC and Mr. Lopez
move to dismiss all of the claims against them. Front only moves
to dismiss the plaintiff's age discrimination claims.
The defendants make several arguments, which the Court
considers in turn:

(1)

that EHC and Mr. Lopez were not the
17

Case 1:21-cv-00535-JGK Document 46 Filed 01/10/22 Page 18 of 31

plaintiff's "employer" under the NYSHRL,' NYCHRL or, in the case
of EHC, Title VII;

(2)

that the plaintiff has not alleged facts

amounting to pregnancy discrimination; and (3) that the
plaintiff has not alleged facts amounting to age discrimination.
1. Employment Relationships

a. EHC
First, construing the facts in the plaintiff's favor, the
amended complaint plausibly alleges that EHC is subject to
liability as the plaintiff's "employer" under Title VII, the
NYSHRL, and the NYCHRL.
For a corporate defendant to be liable for alleged
discrimination under Title VII, the NYSHRL, and the NYCHRL, the
defendant must qualify as the plaintiff's "employer." See Farmer
v. Shake Shack Enters., LLC, 473 F. Supp. 3d 309, 321 (S.D.N.Y.
2020). To determine whether a corporate defendant is a direct
employer under these statutes, the individual must, at the very
least, receive renumeration from the defendant. O'Connor v.
Davis, 126 F.3d 112, 116 (2d Cir. 1997). But a corporate
defendant need not be a plaintiff's direct employer to be liable
under these statutes. Farmer, 473 F. Supp. 3d at 322-23. "Under
the joint employer doctrine, an employee, formally employed by
one entity, who has been assigned to work in circumstances that
justify the conclusion that the employee is at the same time
constructively employed by another entity, may impose liability

18

Case 1:21-cv-00535-JGK Document 46 Filed 01/10/22 Page 19 of 31

for violations of employment law on the constructive employer,
on the theory that this other entity is the employee's joint
employer." Id. at 322 (quoting Arculeo v. On-Site Sales
LLC,

425 F.3d 193, 198

&

Mktg.,

(2d Cir. 2005)). "Factors courts have

used to examine whether an entity constitutes a joint employer
of an individual include commonality of hiring,

firing,

discipline, pay, insurance, records, and supervision." Farmer,
473 F. Supp. at 323. An "essential element" of such a finding is
"sufficient evidence of immediate control over the employees."
Id. at 322-32 (citing Serv. Emps. Int'l Union, Local 32BJ v.
NLRB, 647 F. 3d 435, 442

(2d Cir. 2011)).

In this case, the plaintiff alleges that EHC was her direct
employer. However, the plaintiff does not sufficiently allege
that she received renumeration from EHC -

for example, by

pleading facts relating to her salary in the amended complaint
or providing copies of her pay checks with her complaint - and
liability on this ground is therefore precluded.
However, the plaintiff has adequately pleaded facts
demonstrating that EHC and Front operated as her joint
employers, and EHC may therefore be liable under Title VII, the
NYSHRL, and the NYCHRL. The defendants concede that Front was
the plaintiff's employer. The plaintiff's allegations in her
amended complaint, as well as in the documents referenced in the
amended complaint, suffice to establish that, between Front and
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EHC, there is commonality of hiring, firing, pay, and
supervision, and that both exercise immediate control over
employees. In particular, the plaintiff claims that she was
hired by Mr. Lopez, the owner and CEO of both EHC and Front, and
that she had duties at both EHC and Front hotels in New York.
She alleges that the terms of her employment - including her
benefits, such as maternity benefits - were controlled by EHC,
whose contract with her governed at the time of her termination.
Additionally, the plaintiff alleges that she was terminated by a
letter written on "Eurostars" letterhead and signed by a
representative of Front. Viewing the facts in the light most
favorable to the plaintiff, the plaintiff's allegations are
sufficient at this stage to establish that EHC and Front
operated as her joint employers, and that EHC is therefore
subject to liability under Title VII, the NYSHRL, and the
NYCHRL.
b. Mr. Lopez
Mr. Lopez is also subject to liability under the NYCHRL and
the NYSHRL, although not as the plaintiff's "employer." Under a
recent decision by the New York Court of Appeals, a corporate
employee - even its owner and CEO - no longer qualifies as an
"employer" under these statutes. Doe v. Bloomberg, L.P., 167
N.E.3d 454, 459-61 (N.Y. 2021). However, Mr. Lopez is not
thereby immune from liability: both the NYCHRL and the NYSHRL
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provide alternative bases for individual liability that may be
applicable here. Indeed, under the NYCHRL,

individual employees

may incur liability for their own discriminatory conduct,

as

well as for "aiding and abetting such conduct by others, or for
retaliation against protected conduct." Id. at 460. And, under
the NYSHRL, individual employees may be liable for aiding and
abetting discriminatory conduct. See N.Y. Exec. Law§ 296(6);
see also Bonaffini v. City Univ. of N.Y., No. 20-cv-5118, 2021
WL 2895688, at *2

(E.D.N. Y. July 9, 2021).

Because EHC and Mr. Lopez can be subject to liability under
the relevant statutes, it is necessary to determine whether the
plaintiff has stated a claim under the relevant statutes.
2. Pregnancy Discrimination

The plaintiff first alleges that Front, EHC, and Mr. Lopez
discriminated against her on the basis of her pregnancy status
in violation of the NYSHRL and the NYCHRL, and as to EHC and
Front only, in violation of Title VII. EHC and Mr. Lopez move to
dismiss these claims for failure to state a claim.
a. Title VII Claim4

The amended complaint states a claim against EHC for
pregnancy discrimination under Title VII. Title VII makes it

4

The plaintiff abandoned her Title VII claim against Mr. L6pez in her
opposition brief. In any event, because Title VII does not provide for
individual liability, this claim would be dismissed. See Wrighten v. Glowski,
232 F.3d 119,

120

(2d Cir. 2000)

(per curiam).

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unlawful for an employer to discriminate on the basis of "race,
color, religion, sex, or national origin." 42 U.S.C. § 2000e2 (a). Title VII's prohibition against gender discrimination
includes a prohibition against pregnancy discrimination. Young
v. United Parcel Serv., Inc., 575 U.S. 206, 135 S. Ct. 1338,
1353

(2015). "A plaintiff can establish a prima facie case of

pregnancy discrimination under Title VII by showing that:
she is a member of a protected class;

(1)

(2) she satisfactorily

performed the duties required by the position;

(3)

she was

discharged; and (4) her position remained open and was
ultimately filled by a non-pregnant employee .

[or]

the

discharge occurred in circumstances giving rise to an inference
of unlawful discrimination." Quaratino v. Tiffany
58, 64

&

Co., 71 F.3d

(2d Cir. 1995). However, a plaintiff is not required to

plead a prima facie case of discrimination to defeat a motion to
dismiss. See Vega v. Hempstead Union Free Sch. Dist., 801 F.3d
72, 84

(2d Cir. 2015); Orosz v. Regeneron Pharms.,

cv-8504, 2016 WL 11484449, at *3

Inc., No.

15-

(S.D.N.Y. Aug. 30, 2016),

report and recommendation adopted, No. 15-cv-8504, 2016 WL
6083993 (S.D.N.Y. Oct. 17, 2016). To survive a motion to
dismiss, a plaintiff alleging discrimination need only assert
sufficient nonconclusory factual matter to nudge her claims
across the line from conceivable to plausible. Vega, 801 F.3d at
84.
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In this case, the plaintiff has pleaded facts that provide
at least minimal support for the proposition that EHC was
motivated by discriminatory intent - namely, pregnancy
discrimination -

in terminating her, and she has therefore

stated a claim under Title VII. See Littlejohn v. City of New
York, 795 F. 3d 297, 311 (2d Cir. 2015). EHC does not appear to
dispute that the plaintiff is a member of a protected class,
given that she was a pregnant woman at the time of her
termination; that she satisfactorily performed the duties
required by her position; or that she was discharged. The
defendant also does not appear to dispute that the plaintiff's
termination occurred in circumstances giving rise to an
inference of discrimination - nor could it. The plaintiff was
terminated five days after she informed Ms. Marroqui that she
was pregnant. The short temporal proximity between the time that
the plaintiff disclosed her pregnancy and her termination - only
five days - more than suffices to establish an inference of
unlawful discrimination. See Lenzi v. Systemax, Inc., 944 F.3d
97, 108 (2d Cir. 2019). Because the plaintiff has pleaded facts
that give rise to a plausible inference of discrimination, and
facts to support her contention that EHC was her "employer"
within the meaning of Title VII, EHC's motion to dismiss the
plaintiff's pregnancy discrimination claims under Title VII is
denied.

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b. Direct NYSHRL and NYCHRL Claims
The plaintiff has also stated a claim against EHC for
pregnancy discrimination under the NYSHRL and the NYCHRL.
However, her direct claims against Mr. Lopez survive only under
the NYCHRL.
Courts must analyze NYCHRL claims separately from any
federal law claims and should construe the NYCHRL "liberally for
the accomplishment of the uniquely broad and remedial purposes
thereof." Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715
F.3d 102, 109 (2d Cir. 2013). In August 2019, the NYSHRL was
amended to direct courts to construe the NYSHRL, like the
NYCHRL, "liberally for the accomplishment of the remedial
purposes thereof, regardless of whether federal civil rights
laws including those laws with provisions worded comparably to
the provisions of [the NYSHRL] have been so construed." N.Y.
Exec. Law§ 300. Applying this standard, to establish a
pregnancy discrimination claim, "the plaintiff need only show
differential treatment - that she is treated 'less well'
because of a discriminatory intent." See Mihalik, 715 F.3d at
110.
In this case, because the plaintiff has stated a claim
against EHC for pregnancy discrimination under the stricter
Title VII standard, she has stated a claim under the NYCHRL and
the NYSHRL. See Farmer, 473 F. Supp. 3d at 327; Smith v. City of
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New York, No. 16-cv-9244, 2018 WL 3392872, at *6 (S.D.N.Y. July
12, 2018). EHC' s motion to dismiss the plaintiff's pregnancy
discrimination claims under the NYCHRL and the NYSHRL is
therefore denied.
The plaintiff's direct claim against Mr. Lopez under the
NYCHRL also survives. "The NYCHRL provides a broader basis for
direct individual liability than the NYSHRL." Xiang v. Eagle
Enters., LLC, No. 19-cv-1752, 2020 WL 248941, at *6 (S.D.N.Y.
Jan. 16, 2020). As relevant here, the NYCHRL makes it an
unlawful discriminatory practice for an employer or an employee
or agent thereof, because of the gender or sexual and
reproductive health decisions of an employee, to discharge that
employee from employment. N.Y.C. Admin. Code§ 8-107(1) (a).
In this case, the plaintiff alleges that Mr. Lopez was the
central decisionmaker in her termination. She claims that, as
the CEO of both EHC and Front, he exerted significant control
over both entities' labor relations and, in particular, the
terms and conditions of the plaintiff's employment. While Mr.
Lopez did not sign his name on her termination letter or
terminate her himself, the facts pleaded in the plaintiff's
complaint allow the reasonable inference that Mr. Lopez was a
decisionmaker in her termination, and therefore that Mr. Lopez
is liable under the NYCHRL for "participat [ing]

in the conduct

giving rise to the discrimination claim." See Xiang, 2020 WL
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248941, at *6. Mr. Lopez's motion to dismiss the plaintiff's
direct claim under the NYCHRL is therefore denied.
However, because the NYSHRL includes no similar provision
for direct employee liability, Mr. Lopez's motion to dismiss the
plaintiff's direct claim under the NYSHRL is granted.
c. Aiding-and-Abetting Claims
The plaintiff's aiding-and-abetting claims state a claim
against Mr. Lopez, but not against EHC.
Both the NYSHRL and the NYCHRL make it unlawful "for any
person to aid, abet, incite, compel or coerce the doing of any
of the acts forbidden under this article [or chapter], or
attempt to do so." See N.Y. Exec. Law§ 296(6); N.Y.C. Admin.
Code § 8-107 (6) . Under this framework,

"a co-worker who actually

participates in the conduct giving rise to a discrimination
claim can be held individually liable as an aider and abettor."
Bonaffini, 2021 WL 2895688, at *2. "This extends to personal
liability for aiding and abetting allegedly unlawful
discrimination by an employer even where an individual
defendant's actions serve as the predicate for the employer's
vicarious liability, so long as the employer's conduct has also
been found to be discriminatory under the NYSHRL." Farmer, 473
F. Supp. 3d at 337.
For the same reasons that the plaintiff has plausibly
alleged that Mr. Lopez is directly liable under the NYCHRL, she
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has plausibly alleged that he is liable as an aider-and-abettor
of EHC's conduct under the NYSHRL and the NYCHRL. See Xiang,
2020 WL 248941, at *7.

The plaintiff has pleaded facts

sufficient to raise an inference that Mr. Lopez actually
participated in the plaintiff's termination: he was allegedly
the main decisionmaker in her termination. This is "the kind of
direct, purposeful participation that aiding and abetting
liability requires." See Bonaffini, 2021 WL 2895688, at *3; see
also Farmer, 473 F. Supp. 3d at 337-38. Accordingly, Mr. Lopez's
motion to dismiss the plaintiff's aiding-and-abetting claims
under the NYSHRL and the NYCHRL is denied.
However, the plaintiff's aiding-and-abetting claims against
EHC must be dismissed. There can be no aider-and-abettor
liability as to a corporate defendant for aiding and abetting
its own conduct, nor can it be liable for aiding the individual
defendants to aid its own conduct. Xiang, 2020 WL 248941, at
*11. EHC's motion to dismiss the plaintiff's aiding-and-abetting
claims under both the NYSHRL and the NYCHRL is therefore
granted.
3. Age Discrimination

The plaintiff also alleges that the defendants
discriminated against her on the basis of her age in violation
of the NYSHRL and the NYCHRL. As with her pregnancy
discrimination claims, the plaintiff brings both direct and
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aiding-and-abetting claims against the defendants under the
NYSHRL and the NYCHRL. All of the defendants challenge the
sufficiency of the plaintiff's claims against them.
a. NYSHRL and NYCHRL Claims
The plaintiff fails to state a claim for age discrimination
under the NYSHRL and the NYCHRL. Claims for age discrimination
under the NYSHRL and the NYCHRL,

like pregnancy discrimination

claims, must be construed liberally. Chauca v. Abraham,
8 6, 8 7-88

841 F.3d

(2d Cir. 2016) . Nonetheless, the plaintiff "still

bears the burden of showing that the conduct is caused by a
discriminatory motive." Mihalik,

715 F.3d at 110. That is, the

plaintiff must allege facts permitting an inference that she was
treated "less well at least in part because of her [age]." See
id.; see also Moore v. Verizon, No. 13-cv-6467, 2016 WL 825001,
at *8 (S.D.N.Y. Feb. 5, 2016).
In this case, the plaintiff's claims against EHC, Front,
and Mr. Lopez must be dismissed because, even construing her
allegations in the light most favorable to her, the plaintiff
has failed to plead any facts that plausibly allege that her
termination occurred under circumstances giving rise to even a
minimal inference of discrimination. The plaintiff argues that
the defendants fired her because she underwent IVF treatment in
order to become pregnant, and that because older women are more
likely to require IVF procedures, her termination raises an
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inference of age discrimination. As the defendants rightly point
out, however, "IVF-assisted reproductive technology is not only
for 'older mothers."' Defs.' Reply Mem. 9. But even accepting
the plaintiff's argument as true, the purported association of
IVF with older women, without more, does not raise the requisite
inference that her termination was motivated by age
discrimination. Nor has the plaintiff pleaded any facts
suggesting that any relevant decisionmaker made ageist
criticisms or comments, or that those outside of her protected
class were treated differently from her. Also missing from the
plaintiff's pleadings is any claim that she was replaced by a
younger employee. Absent these sorts of facts supporting her
claim, the plaintiff's age discrimination claims under the
NYSHRL and the NYCHRL amount to nothing more than a claim that,
because the plaintiff was terminated when she was over forty
years old, the defendants must have discriminated against her.
The plaintiff's age at termination, alone,

"is plainly

insufficient to give rise to a minimal plausible inference of
age discrimination." Wexler v. Al legion (UK) Ltd., No. 16-cv2252, 2017 WL 946301, at *4

(S .D.N. Y. Mar.

9, 2017) . 5

5 The plaintiff alleges in her amended complaint that EHC has a pattern or
practice of discriminating against older women. However, her opposition brief
does not rely on these claims to raise an inference of discrimination and,
accordingly, this pattern-or-practice claim, to the extent it was even
pleaded, is treated as abandoned. See Malik v. City of New York, 841 F. App'x
281, 284 (2d Cir. 2021).

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Accordingly, the defendants' motion to dismiss the plaintiff's
claims under the NYSHRL and the NYCHRL for age discrimination is

granted.
b. Aiding-and-Abetting Claims
The plaintiff's aiding-and-abetting claims must also be
dismissed. Without a predicate act of employment discrimination
under the NYSHRL or the NYCHRL, there can be no aiding-andabetting claim. See Farmer,
York, No.

473 F. Supp. 3d at 338; Seitz v. New

2:18-cv-4149, 2019 WL 4805257, at *22

(E.D.N.Y. Sept.

30, 2019). The defendants' motion to dismiss the plaintiff's
aiding-and-abetting claims under the NYSHRL and the NYSHRL is
therefore granted.
V.

The Court has considered all of the arguments of the
parties. To the extent not discussed above, the arguments are
either moot or without merit.
For the foregoing reasons, the defendants' motion to
dismiss is granted in part and denied in part. The plaintiff's
claims against Ms. Marroqui are dismissed in their entirety. Of
the plaintiff's remaining claims against the defendants, Count I
is dismissed as to Mr. Lopez; Count II is dismissed as to Mr.
Lopez; Count III is dismissed as to all of the defendants; Count

IV is dismissed as to EHC; Count Vis dismissed as to all of the
defendants; Count VII is dismissed as to all of the defendants;
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Count VIII is dismissed as to EHC; and Count IX is dismissed as
to all of the defendants.
The Clerk is directed to close Docket No. 23.

SO ORDERED.
Dated:

New York, New York
January 7, 2022
Koeltl
United States District Judge

31