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Lagrassa v. Autoone Insurance Co.

August 20, 2008


The opinion of the court was delivered by: Hurley, Senior District Judge


Plaintiff Debbie LaGrassa ("Plaintiff" or LaGrassa") commenced this action asserting various claims of employment discrimination and retaliation against her former employer defendant Autoone Insurance Company ("Defendant" or Autoone"). Presently before the Court are Defendant's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) and Plaintiff's cross-motion to file a second amended complaint. For the reasons set forth below, the motion to dismiss is granted in part and denied in part, and the motion to further amend her complaint is granted in part and denied in part.


I. The Amended Complaint

The following facts are taken from the amended complaint and viewed in the light most favorable to the Plaintiff, the non-moving party. See Patel v. Searles, 305 F.3d 130, 135 (2d Cir. 2002).

Plaintiff is a female born on July 1, 1956 and is the mother of two Asian daughters. Plaintiff was hired by Defendant on or about June 4, 2002 and worked in the customer service department as a telephone underwriting manager. In that position she was responsible for interviewing, hiring and firing staff, organizing and implementing team meetings, and managing, training and directing personnel to increase productivity and improve performance. Her supervisors were Ed Reilly ("Reilly") and Chris Wukovits ("Wukovits").

According to Plaintiff, she was subject to disparate treatment because of her gender, discriminated against because of her age, her adoption of Asian children and her opposition to discrimination on the basis of race and color, and retaliated against due to her opposition to discrimination due to race and color and her complaints of discrimination. She offers in her amended complaint the following facts in support of her claims:

* From the commencement of her employment, Reilly intentionally scheduled meeting for times when he knew it would be difficult for Plaintiff to attend. Specifically, he would schedule meetings for 5:00 p.m. knowing Plaintiff had to leave to attend evening college classes, eventually forcing Plaintiff to withdraw from her classes.

* Other customer service managers commented to Plaintiff that Reilly treated her in a disparate manner as compared to her colleagues.

* The first year after she and another colleague helped Reilly put together the customer service call center, all the managers received a yearly bonus except for the plaintiff.

* On or about May 5, 2005 Wukovits sent Plaintiff and one Lynn Catizone emails concerning their absences. When Plaintiff advised Wukovits that she was out because her daughter was almost put in the hospital, Wukovits "changed his mind and changed all Plaintiff's absences to planned." When Plaintiff asked why he did that, he admitted that he was only going to put Plaintiff on warning because he was mad that Catizone and Plaintiff had not answered more phone calls the day before.

* Plaintiff was asked by Reilly and Wukovits to "call the queue and hang up" to make the department's numbers look better. Plaintiff was uncomfortable with this suggestion and asked the advise of someone in Human Resources who suggested that all Plaintiff has to do was tell Wukovits that she was uncomfortable with inflating the departmental statistics.

* In or about October 2002, plaintiff was advised by three co-workers that she would be treated better if she were male.

* Wukovits told Plaintiff that "maybe Ed has issues with women or maybe he just had a personality conflict with you."

* In December 2003, Wukovits told Plaintiff "if you think you are crazy, you are not. I see it." This statement was in reference to the way Reilly treated Plaintiff. According to Wukovits, Reilly would not deal with the Plaintiff's team directly, but would deal directly with other manager's teams.

* Wukovits also told Plaintiff that Reilly signed off easily on endorsements for Wukovits, but for female managers, Reilly would scrutinize the endorsements. Wukovits also told Plaintiff that Reilly was especially critical of Plaintiff's work.

* In December 2004, Plaintiff spoke to Ms. Cicerello in human resources about her six month review. Cicerello agreed that Plaintiff should have received a higher evaluation in two areas given the comments that were made by Reilly. The review was not, however, addressed further.

* On January 19, 2004, Reilly confronted plaintiff about being late that morning. Plaintiff advised Reilly that she had called him late Sunday evening and first thing Monday morning and left him voicemails each time. Reilly told Plaintiff she should go in the phone queue for two hours instead of making up the time, a punitive measure which Plaintiff claims had to do with gender bias.

* Also on January 19, 2004, Plaintiff went to human resources and advised Ms. Cicerello that she was really upset with how Reilly treated her and could no longer put up with his harsh treatment due to her gender. Cicerello advised Plaintiff that there was nothing Plaintiff could do.

* On January 21, 2004, Plaintiff spoke to the manager for human resources and "explained to her what was going on in Customer Service Underwriting." Plaintiff was advised that this type of treatment comes from the top down.

* During a meeting on September 7, 2005, Wukovits made multiple inappropriate comments regarding Asians. Plaintiff complained about the comments at the meeting. Plaintiff also complained about the comments to the assistant vice president of human resources who told Plaintiff "it sound like you are working in a horrible department up there."

* On September 20, 2005 Plaintiff received a warning which was "retaliation for having opposed racism in the workplace" and Plaintiff complained to human resources that the warning was in retaliation ...

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