United States District Court, S.D. New York
December 14, 2004.
KIM HILL, Plaintiff,
DALE ELECTRONICS CORP., Defendant.
The opinion of the court was delivered by: MICHAEL MUKASEY, Chief Judge, District
OPINION & ORDER
Plaintiff Kim Hill claims that defendant Dale Electronics
Corporation fired her because she became pregnant, and sues under
the Pregnancy Discrimination Act contained in Title VII of the
Civil Rights Act of 1964. 42 U.S.C. §§ 2000e-2(a)(1), 2000e(k)
(2000). Plaintiff also sues under New York State and New York
City human rights laws. See N.Y. Exec. L. § 296(1)(a) (McKinney
2003); N.Y. City Admin. Code §§ 8-101, 8-107(1)(a). Defendant
moves under Fed.R.Civ.P. 12(b)(6) to dismiss the amended
complaint for failure to state a claim. For the reasons explained
below, defendant's motion is denied.
The facts as alleged by the plaintiff are as follows. Plaintiff
Hill began working for defendant Dale Electronics Corp. on March
11, 2002 as a receptionist. (Am. Compl. ¶ 5) When she started at
Dale, plaintiff was on probation, which would expire in six
months, assuming she had shown satisfactory job performance.
(Id. ¶¶ 9, 11) From the time she began work until September 9,
2002, plaintiff did not receive any "negative performance
appraisals or criticism," and plaintiff alleges that she
performed her work "competently" at all times. (Id. ¶ 5)
In late August or early September 2002, plaintiff mentioned to
"several of her co-workers" that she suspected she might be
pregnant, (Id. ¶ 6), and on September 7, 2002, her suspicion
was confirmed (Id. ¶ 7). On September 9, 2002, plaintiff e-mailed Valerie Lager, the office manager at Dale, to
request that her medical insurance be expedited. That same
morning, plaintiff informed her co-workers that she was pregnant.
(Id. ¶ 8) Plaintiff alleges that "[u]pon information and
belief," that morning, "management" also learned that plaintiff
was pregnant. (Id. ¶ 9)
In the late afternoon on September 9, 2002, plaintiff was
summoned to a meeting with Ms. Lager and Michael Bogen,*fn1
a Manager at Dale Electronics. At this meeting, Lager and Bogen
informed plaintiff that they had received customer complaints
about her performance, and that Dale was extending her
probationary period which was to expire in two days by two
weeks. Plaintiff's medical coverage, which was also to go into
effect in two days, was being delayed for two weeks as a result.
(Am. Compl. ¶ 9) At that meeting, plaintiff told Lager and Bogen
that she was pregnant. (Id. ¶ 9)
On September 30, 2002, Bogen informed plaintiff that she was
being fired, due a complaint that she had hung up on a customer.
(Am. Compl. ¶ 10) When plaintiff inquired about the details of
the complaint, Bogen responded that it had been received the
previous Friday; when plaintiff informed Bogen that she had been
absent from work that day, Bogen stated that the complaint had been received on the previous Thursday instead.
(Id. ¶ 11) Plaintiff alleges that defendant's reason for firing
her was pretextual, and that defendant intended to avoid paying
for her medical coverage by extending her probation and then
firing her. (Id. at 12)
On a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the
trial court's task is "merely to assess the legal feasibility of
the complaint, not to assay the weight of the evidence which
might be offered in support thereof." Geisler v. Petrocelli,
616 F.2d 636, 639 (2d Cir. 1980). The relevant inquiry is not
whether the plaintiff ultimately will prevail, but whether she
may offer evidence to support her claim. Scheuer v. Rhodes,
416 U.S. 232, 236 (1974). In making this determination, the court
may consider only "facts stated in the complaint or in documents
attached to the complaint or incorporated in the complaint by
reference." Kramer v. Time Warner, Inc., 937 F.2d 767, 773
(2d Cir. 1991).*fn2 The court must accept plaintiff's
factual allegations as true, and draw all inferences in her
favor. Papasan v. Allain, 478 U.S. 265, 283 (1986); Branham
v. Meachum, 77 F.3d 626, 628 (2d Cir. 1996). The court may
grant a Rule 12(b)(6) motion to dismiss "only if it is clear that no
relief could be granted under any set of facts that could be
proved consistent with the allegations." Hishon v. King &
Spalding, 467 U.S. 69, 73 (1984).
Title VII prohibits discrimination against any individual on
the basis of sex, 42 U.S.C. § 2000e-2(a)(1), and further provides
that "women affected by pregnancy, childbirth, or related medical
conditions shall be treated the same for all employment-related
purposes, including receipt of benefits under fringe benefit
programs, as other persons not so affected but similar in their
ability or inability to work. . . ." Id. § 2000e(k). To state a
legally sufficient claim of employment discrimination under the
Pregnancy Discrimination Act, plaintiff must allege that: "(1)
she is a member of a protected class; (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." Quaratino v. Tiffany &
Co., 71 F.3d 58, 64 (2d Cir. 1995) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973) and Tex. Dep't of
Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). The
plaintiff alternatively may establish the fourth element of the
above test by alleging that the discharge occurred under
circumstances giving rise to an inference of discrimination.
Id. Plaintiff's burden in establishing a prima facie case is
minimal. Kerzer v. Kingly Mfg., 156 F.3d 396, 401 (2d Cir. 1998). New
York State Executive Law § 296 and Title 8 of the New York City
Charter and Administrative Code track the language of Title VII,
and share its standards of proof. See Song v. Ives Labs.,
Inc., 957 F.2d 1041 (2d Cir. 1992); Strauss v. Microsoft
Corp., 814 F. Supp. 1186, 1190 n. 5 (S.D.N.Y. 1993); Miller
Brewing Co. v. State Div. of Human Rights, 66 N.Y.2d 937, 938,
498 N.Y.S.2d 776, 777 (1985); Pace College v. Comm'n on Human
Rights, 38 N.Y.2d 28, 34, 377 N.Y.S.2d 471, 474 (1975).
The amended complaint sets forth a prima facie case of
employment discrimination. Plaintiff easily satisfies the first
and third elements of the McDonnell Douglas test: She was
pregnant (Am. Compl. ¶ 7), and therefore a member of a class
protected by 42 U.S.C. § 2000e(k), and she was discharged from
her position (Id. ¶ 10).
As to the second element, which requires that plaintiff show
satisfactory performance, plaintiff acknowledges that, according
to defendant, several customer complaints had been lodged against
her. (Id. ¶¶ 9-10) However, this Circuit has "long emphasized
that the qualification prong must not be interpreted in such a
way as to shift into the Plaintiff's prima facie case an
obligation to anticipate and disprove the employer's proffer of a
legitimate, non-discriminatory basis for its decision." Gregory
v. Daly, 243 F.3d 687, 696 (2d Cir. 2001). Therefore, plaintiff
"need not show perfect performance or even average performance.
Instead, she need only make the minimal showing that she possesses the basic skills necessary for
the job." Id. (internal citations and quotation marks omitted).
In her amended complaint, plaintiff alleges that she performed
her work "competently" and did not receive any negative feedback
about her job performance for the first six months of her tenure
at Dale. (Am. Compl. ¶ 5) Management's negative comments about
her performance only began after she became pregnant. These
allegations establish prima facie satisfactory performance under
the law of this Circuit.
The amended complaint also satisfies the fourth McDonnell
Douglas element, which requires either that plaintiff's position
was filled by a non-pregnant employee or that plaintiff's
discharge occurred under circumstances giving rise to an
inference of discrimination. Plaintiff does not allege that her
position was filled by a non-pregnant employee. However, the
temporal proximity between plaintiff's announcement of her
pregnancy and her firing is sufficient to raise an inference of
discrimination. See Hardekopf v. Sid Wainer & Son, No.
02-3251, 2004 U.S. Dist. LEXIS 19603, at *19-*20 (S.D.N.Y. Sept.
29, 2004); Pellegrino v. County of Orange,
313 F. Supp. 2d 303, 315 (S.D.N.Y. 2004) (citing Flores v. Buy Buy Baby,
Inc., 118 F. Supp. 2d 425, 431 (S.D.N.Y. 2000)). In this case,
plaintiff's probation was extended and her medical benefits were
delayed on the same day she told her co-workers about her
pregnancy, and she was fired three weeks after informing her
supervisors of her condition. Because the amended complaint satisfies all four elements of
the McDonnell Douglas test, plaintiff has stated a prima facie
case for discrimination under the Pregnancy Discrimination Act,
New York State Executive Law, and the New York City Charter and
* * *
For the above reasons, defendant's motion to dismiss is denied.