are not a family oriented company, we are a business."
During June of 1996, plaintiff experienced significant difficulty with her pregnancy, hindering her job performance. Consequently, she requested and was granted a leave of absence pursuant to the Family Medical Leave Act. She gave birth to her son on August 12, 1996, and remained on leave until September 10, 1996. Plaintiff and her doctor determined she would breast-feed her newborn son.
Shortly after returning to work on September 15, 1996, defendants informed plaintiff she was required to attend a "managers seminar" at the Disney Theme Park in Florida. Plaintiff told defendants that because her son was less than six-weeks old, it would be impossible for her to attend the seminar unless she could bring him on the trip. She thus requested that she be allowed to bring her son with her, or, in the alternative, that she be excused from attending. Defendants refused both requests, and informed plaintiff she must attend the seminar without her child. Plaintiff concluded leaving her five-week old son would endanger his health and thus determined she could not attend the seminar.
On September 27, 1996, defendants terminated plaintiff's employment because she failed to attend the seminar.
B. Procedural History
Plaintiff filed this action in New York State Supreme Court, St. Lawrence County, on September 24, 1997. Defendants removed the action to this Court on November 3, 1997. Jurisdiction is based on a federal question. See 28 U.S.C. § 1331.
The Complaint contains four substantive claims: (1) sex-based discrimination in violation of the New York Human Rights Law ("HRL"), Executive Law § 296; (2) disability-based discrimination under § 296; (3) unlawful termination in violation of the Family Medical Leave Act, 29 U.S.C. § 2615; and (4) unlawful use of plaintiff's name for advertising and trade purposes subsequent to her termination, in violation of New York Civil Rights Law §§ 50 and 51. Plaintiff seeks compensatory and punitive damages.
Defendants now move to dismiss the first and second claims above, and to dismiss plaintiff's claim for punitive damages, for failure to state a claim upon which relief may be granted. Plaintiff cross-moves for judgment on the pleadings, to amend her Complaint, and to add as a party-defendant Sterling Jewelers, Inc.
A. Defendants' Motion to Dismiss under Rule 12(b)(6)
When deciding a motion to dismiss, a court must accept as true all factual allegations in the complaint and construe them favorably to the plaintiff. LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991); Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989). The court should not dismiss on a Rule 12(b)(6) motion unless it appears clear that the plaintiff cannot in any way establish a set of facts to sustain her claim which would permit relief. Hughes v. Rowe, 449 U.S. 5, 10, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980); Bass v. Jackson, 790 F.2d 260, 262 (2d Cir. 1986). "The court's function ... is not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985)
1. Pregnancy Discrimination Under Executive Law § 296
The Court need not visit at this time plaintiff's novel contention that differential treatment based upon an employee's desire to breast-feed her child constitutes sex discrimination under the HRL. Rather, the Court holds plaintiff's allegations may be construed as stating a claim for pregnancy discrimination under state law.
The New York Human Rights Law prohibits an employer from discharging an employee because she is pregnant. See Diaz Chemical Corp. v. New York State Div. of Human Rights, 237 A.D.2d 932, 654 N.Y.S.2d 907, 908 (4th Dep't 1997); Energy Expo, Inc. v. New York State Div. of Human Rights, 112 A.D.2d 302, 491 N.Y.S.2d 748, 749 (2d Dep't 1985). To withstand a Rule 12(b)(6) motion to dismiss in a discrimination case under state or federal law, a plaintiff need only plead the elements of a prima facie case of discrimination. See Dugan v. Martin Marietta Aerospace, 760 F.2d 397, 398-99 (2d Cir. 1985); McNulty v. New York City Dep't of Finance, 941 F. Supp. 452, 456 (S.D.N.Y. 1996).
Those elements are: (1) plaintiff was within the protected class; (2) her job performance was satisfactory; (3) she suffered an adverse employment action, i.e., discharge; and (4) her discharge occurred under circumstances giving rise to an inference of unlawful discrimination. Quaratino, 71 F.3d 58 at 64.
Plaintiff alleges in her complaint that she was pregnant from late 1995 until August of 1996. Compl. PP 9, 13. She therefore was a member of the protected class immediately prior to her discharge. Moreover, she adequately alleges satisfactory job performance, Compl. P 31, and was discharged on September 27, 1996. Compl. P 18. We are thus left with the question whether plaintiff sufficiently alleges her discharge occurred under circumstances giving rise to an inference of discrimination.
Plaintiff alleges that upon learning of her pregnancy, her supervisor expressed his displeasure at her condition. Compl. P 9. Specifically, her personnel officer informed her "we are not a family oriented company, we are a business." Id. Shortly after returning to work, defendants allegedly refused to allow plaintiff to bring her newborn child with her to the seminar, and fired her under the auspices of her refusal to attend. Id. PP 15-18. Given the circumstances and the timing of plaintiff's discharge, it is reasonable to infer plaintiff's termination was motivated by her employer's animus regarding her recent pregnancy.
Though plaintiff was discharged after the birth of her child, the PDA does not require that the discrimination occur during the pregnancy. Donaldson v. American Banco Corp., 945 F. Supp. 1456, 1464 (D.Colo. 1996); accord, Fejes v. Gilpin Ventures, Inc., 960 F. Supp. 1487, 1492 (D.Colo. 1997). Indeed, the legislative history of the PDA suggests it protects a woman from pregnancy-related discrimination "'before, during, and after her pregnancy.'" Donaldson, 945 F. Supp. at 1464 (quoting 124 Cong.Rec. 38574 (1978)). Nothing in the HRL suggests that its protections should be construed less broadly. Under the factual circumstances presented in the Complaint, plaintiff's allegation that she was terminated two weeks after returning to work and just over one month after the birth of her child is sufficient for purposes of both her membership in the protected class and an inference of discrimination. See Fejes, 960 F. Supp. at 1493; Donaldson, 945 F. Supp. at 1464-65.
Because plaintiff has alleged the elements of a prima facie case of pregnancy discrimination under the HRL, defendants' motion to dismiss Count One of the Complaint is DENIED.
2. Disability Discrimination
In Count Two of the Complaint, plaintiff alleges that her need to breast-feed her child constitutes a disability under the HRL, and that her dismissal on the basis of this disability was unlawful.
The HRL prohibits disability discrimination. See N.Y. Exec. L. 296(1)(a). "Disability" is defined as
(a) a physical mental or medical impairment resulting from anatomical [or] physiological . . .conditions which prevents the exercise of a normal bodily function . . . or (b) a record of such impairment or (c) a condition regarded by other as such an impairment . . .