Orosz vs Regeneron Pharmaceuticals, Inc.
ORDER for 21 Motion to Dismiss filed by Regeneron Pharmaceuticals, Inc., 27 Report and Recommendations. This Court adopts Judge Smith's R&R in its entirety. Defendant's motion to dismiss is denied, and the Clerk of Court is respectfully directed to terminate the motion at ECF Docket No. 21. So Ordered. (Signed by Judge Nelson Stephen Roman on 10/17/16) (yv)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
15 CV !?5o1t(NSR)(PED)
- against REGENERON PHARMACEUTICALS, INC.,
Nelson S. Roman, United States District Judge:
Plaintiff Margaret Orosz ("Orosz" or "Plaintiff'') commenced this action asserting claims
in violation of the Fair Labor and Standards Act ("FLSA"), the New York Labor Law
("NYLL"), and Title VII discrimination as against Defendant Regeneron Pharmaceuticals, Inc.
("Regeneron" or "Defendant"). Defendant moved to dismiss Plaintiff's claim for discrimination.
By Report and Recommendation ("R&R"), dated August 3 0, 2016, Magistrate Judge Lisa M.
Smith ("Judge Smith"), recommends the Court deny Defendant's motion. Defendant has not
objected to Judge Smith's R&R. For the following reasons, the Court adopts Judge Smith's R&R
and denies Defendant's motion.
Plaintiff commenced this action asserting multiple claims in violation of the FLSA, the
NYLL, and Title VII discrimination. In November 2015, Plaintiff filed an Amended Complaint
wherein she withdrew a state claim. In May 2016, Plaintiff filed her Second Amended
Complaint ("SAC") which is the operative complaint. In the SAC, Plaintiff asserts four claims:
Count I for violation of the FLSA for failure to pay overtime compensation; Count II for
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violation of the NYLL for failure to pay wages earned; Count III for violation of Title VII for
pregnancy discrimination based on wrongful termination; and Count N for violation of Title VII
for pregnancy discrimination based on failure to hire. Defendant moved to dismiss Count N
pursuant to Fed. R. Civ. P. § 12(b)(6) for failure to state a claim.
In her SAC, Plaintiff alleges Regeneron hired her as a consultant architect in its Facilities
Space Planning Dept. through Microsol Resource Corp. ("Microsol"), a staffing company and
Orosz's co-employer. Plaintiff worked at Regeneron from June 2013 through August 2014. In
August 2013, Plaintiff informed her manager, Patricia Hamilton ("Hamilton") that she was
undergoing in-vitro fe1tilization treatment in order to become pregnant. Hamilton informed
Plaintiff, if anyone asks you if you plan to have children, tell them "you are too old for babies."
In or about November 2013, Hamilton inf01med Plaintiff she would be hired as a pe1manent
Throughout' Plaintiffs employment at Regeneron, Hamilton engaged in on going
discussions with Plaintiff about her transition to becoming a permanent employee. In or about
January 2104, Hamilton met with Plaintiff and instructed her to prepare a job description for the
position. In or about April 2014, Hamilton contacted Defendant's Procurement Manager, Keith
Turvey ("Turvey") to inquire about the cost to buy out Plaintiffs contract with Microsol. Turvey
reported the cost would be approximately $16,000, which he described as a "good price for
getting [Plaintiff] on board." In or about May 2016, Defendant's Facilities Vice President,
Joanne Deyo, asked Plaintiff if she had children and whether she planned on starting a family.
Plaintiff changed the subject without answering the question. In or about June 2104, Defendant's
Manager, Annisa Williams, asked Plaintiff if she was pregnant, which Plaintiff denied. On July
28, 2014, Plaintiff emailed Regeneron's Director of Human Resources, Daria Palestins, to report
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that a co-worker was harassing her and informed that she was four months pregnant. On July 31,
2014, in a meeting attended by Regeneron's Director of Facilities, Michelle Fritsche, Plaintiff
was informed that Regeneron decided not to hire her to a petmanent position and was to be
terminated effective at the end of August 2014. Regeneron changed its mind not to hire Plaintiff
due to a lack of work and her lack of experience with Building Information Modeling ("BIFM").
Thereafter, Regeneron continued to solicit applicants for the position they intended to hire
Plaintiff. Plaintiff asserts Regeneron made BIFM a criteria for the position after learning of
Plaintiffs pregnancy and as a basis for denying her employment.
Judge Smith held, accepting as true all the factual allegations in the complaint and
drawing all reasonable inferences from those allegations in her favor, Plaintiff asserted a claim
for Title VII pregnancy discrimination based on failure to hire. Judge Smith reasoned that in
order to survive a motion to dismiss, a plaintiff must merely set forth sufficient facts to state a
claim that is plausible on its face. Thus, Plaintiffs allegation was 'deemed sufficient requiring
denial of the motion.
STANDARD OF REVIEW
A magistrate judge may "hear a pretrial matter dispositive of a claim or defense" if so
designated by a district court. See Fed. R. Civ. P. 72(b)(l); accord28 U.S.C. § 636(b)(l)(B). In
such a case, the magistrate judge "must enter a recommended disposition, including, if
appropriate, proposed findings of fact." Fed. R. Civ. P. 72(b)(l); accord28 U.S.C. § 636(b)(l).
Where a magistrate judge issues a report and recommendation,
[w]ithin fourteen days after being served with a copy, any party may serve and file written
objections to such proposed findings and recommendations as provided by rules of court. A·
judge of the cou1t shall make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made. A judge of the_
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court may accept, reject, or modify, in whole or in part, the findings or recommendations
made by the magistrate judge.
28 U.S.C. § 636(b)(l); accord Fed. R. Civ. P. 72(b)(2), (3). However, "[t]o accept the report and
recommendation of a magistrate, to which no timely objection has been made, a district court
need only satisfy itself that there is no clear error on the face of the record." Wilds v. United
Parcel Serv., Inc., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003) (quoting Nelson v. Smith, 618 F.
Supp. 1186, 1189 (S.D.N.Y. 1985)); accord Caidor v. Onondaga County, 517 F.3d 601, 604 (2d
Cir. 2008) ("[F]ailure to object timely to a magistrate's report operates as a waiver of any further
judicial review of the magistrate's decision.") (quoting Small v. Sec. ofHHS, 892 F.2d 15, 16 (2d
Cir. 1989); see also Fed. R. Civ. P. 72 advisory committee note (1983 Addition, Subdivision (b))
("When no timely objection is filed, the court need only satisfy itself that there is no clear enor
on the face of the record in order to accept the recommendation.").
•MOTION TO DISMISS
On a motion to dismiss under Fed. R. Civ. P. 12(b)(6), dismissal is proper unless the
complaint "contain[s] 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, 678 (2009) (quoting Bell Atl. Cmp. v.
Twombly, 550 U.S. 544, 570 (2007)). When there are well-pleaded factual allegations in the
complaint, "a court should assume their veracity and then determine whether they plausibly give
rise to an entitlement to relief." Id. at 679. "Although for the purposes ofa motion to dismiss [a
court] must take all of the factual allegations in the complaint as true, [it is] 'not bound to accept
as true a legal conclusion couched as a factual allegation.'" Id. (quoting Twombly, 550 U.S. at
555). It is not necessary for the complaint to asse1t "detailed factual allegations," but must
allege "more than labels and conclusions." Twombly, 550 U.S. at 555. The facts in the complaint
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"must be enough to raise a right to relief above the speculative level on the assumption that all
the allegations in the complaint are true." Id.
On a motion to dismiss, the court may consider the documents that are "asserted within
the four comers of the complaint, the documents attached to the complaint as exhibits, and any
documents incorporated in the complaint by reference." lvfcCarthy v. Dun & Bradstreet Corp.,
482 F.3d 184, 191 (2d Cir. 2007). The court may deem a document incorporated by reference
where the complaint "refers to" the document. EQT Infrastructure Ltd. v. Smith, 861 F. Supp. 2d
220, 224 n. 2 (S.D.N.Y. 2012). "A mere passing reference or even references, however, to a
document outside the complaint does not, on its own, incorporate the document into the
complaint." Sira v. Alorton, 380 F.3d 57, 67 (2d Cir. 2004). "Where a document is not
incorporated by reference, the comt may nevertheless consider it where the complaint relies
heavily upon its terms and effect, thereby rendering the document integral to the complaint.
DiFolco v. lv!SNBC Cable, LLC, 622 F3d 104, 111 (2d Cir. 2010).
TITLE VII FAILURE TO IDRE
To assert a claim for failure to hire pursuant to Tile VII, plaintiff must allege four
essential facts: 1. she is a member of a protected class; 2. she applied and was qualified for a job
for which the employer was seeking applicants; 3. she was denied the position based on
discrimination; and 4. the position remained open and the employer continued to seek
applicants having the plaintiffs qualifications. lvlcDonne// Douglass Corp. v. Green, 411 U.S.
792, 802 (1973 ); see also Brown v. Coach Stores, 163 F.3d 706, 709 (2d Cir. 1998).
Alternatively, in a failure to hire case based on pregnancy, plaintiff may establish the fourth
element by showing that the position remained open and was ultimately filled by a non-pregnant
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employee. See Kerzer v. Kingly lv!fg., 156 F.3d 396, 401 (2d Cir.1998); see also Quaratino v.
Tiffany & Co., 71 F.3d 58, 64 (2d Cir.1995).
Here, as neither party objected to the R&R issued by Judge Smith, the Court reviews the
recommendation for clear enor. The Court agrees with Judge Smith that the facts as alleged by
Plaintiff, accepted as trne, are sufficient to assert a plausible claim for Title VII pregnancy
discrimination for failure to hire. The Court finds no enor on the face of the R&R, and thus
adopts Judge Smith's R&R in its entirety.
For the reasons stated above, this Court adopts Judge Smith's R&R in its entirety.
Defendant's motion to dismiss is denied, and the Clerk of Court is respectfully directed to '
te1minate the motion at ECF Docket No. 21.
Dated: October 17, 2016
White Plains, NY
United States District Judge
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