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December 14, 2004.

KIM HILL, Plaintiff,

The opinion of the court was delivered by: MICHAEL MUKASEY, Chief Judge, District


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 ...

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