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Guzman v. Macy's Retail Holdings

March 30, 2010


The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.


Plaintiff Elizabeth Guzman alleges that Defendants Macy's Retail Holdings ("Macy's"), Michael Dervos, and Justin Charpentier subjected her to a hostile work environment and retaliated against her for protesting sexual harassment. (Cmplt. ¶ 1). Her complaint seeks damages and other relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e §§ et seq. ("Title VII"); the New York State Human Rights Law, Executive Law §§ 296 et seq. ("NYSHRL"); the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-107 et seq. ("NYCHRL"); and the New Jersey Law Against Discrimination, N.J.S.A. §§ 10:5-1 et seq. ("NJLAD"). Plaintiff also seeks damages arising from Defendants' alleged failure to notify her of her rights under the Consolidated Omnibus Budget Reconciliation Act of 1985, 29 U.S.C. §§ 1166 et seq. ("COBRA") when her employment was terminated.

Macy's has moved to dismiss the Complaint in its entirety pursuant to Fed. R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6). [Docket No. 5] Plaintiff's constructive discharge claim under Title VII, the NYSHRL, and the NYCHRL will be dismissed pursuant to Fed. R. Civ. P. 12(b)(6), because Plaintiff has not pled facts demonstrating that she has an "entitlement to relief" under this claim. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558 (2007). Plaintiff's NYCHRL hostile work environment claim will be dismissed pursuant to Fed. R. Civ. P. 12(b)(1), because the acts underlying her hostile work environment claim took place outside New York City and Plaintiff is not a New York City resident. Plaintiff's NJLAD retaliation claim will likewise be dismissed, because none of the acts underlying Plaintiff's retaliation claim took place in New Jersey. Finally, Plaintiff's COBRA claim will be dismissed because the Complaint fails to (1) name the plan administrator as a defendant, and (2) allege that Plaintiff was receiving health benefits when her employment was terminated on July 30, 2008. Macy's motion to dismiss will otherwise be denied.


Except for a short hiatus in 2001, Plaintiff worked for Macy's or its predecessor -- Abraham & Strauss -- in various locations in New Jersey and New York from 1990 until her termination in July 2008. (Amended Cmplt. ¶¶ 10, 39) In May 2007, Plaintiff was appointed Regional Director of Selling/Service for Macy's Metro Region. (Id. ¶¶ 12, 32) Although Plaintiff formally reported to Human Resources Regional Vice President Justin Charpentier, she alleges that her "real boss" was Regional Vice President Michael Dervos. (Id. ¶ 13)

Plaintiff contends that on October 5, 2007, Dervos made an "unwelcome sexual advance" towards her in an office at a Macy's store in Wayne, New Jersey. (Id. ¶ 15) Dervos allegedly approached Plaintiff and rubbed his genitals against her body. (Id. ¶ 16) Although Plaintiff responded by saying to Dervos, "Please don't do that," Dervos allegedly rubbed his genitals against Plaintiff's body a second time. After Plaintiff again told him to stop, Dervos "gave [Plaintiff] a hard stare, and from that point all conservation ceased." (Id. ¶¶ 16-17)

Plaintiff alleges that after the October 5, 2007 incident, Dervos retaliated against her "by ignoring her when she was in his presence, denying her assistance needed for her work, excluding her from conference calls and meetings that ordinarily she would have attended, pointedly skipping over her name when publicly reading out the staff roster, and speaking with Mr. Charpentier about trying to 'get rid of [Plaintiff].'" (Id. ¶ 19)

On October 15, 2007, Plaintiff reported the October 5, 2007 incident and Dervos's retaliation to Charpentier. (Id. ¶ 20) Plaintiff claims, however, that Charpentier and Macy's Human Resources Department never investigated her allegations of sexual harassment and "never took any steps to stop Mr. Dervos's retaliatory conduct." (Id. ¶ 21)

After Plaintiff complained to Charpentier, however, male co-workers began to treat her differently, and stopped responding to her emails and telephone calls. (Id. ¶ 22) In November 2007, Plaintiff again complained to Charpentier about Dervos' retaliatory conduct, but Charpentier ignored her complaints and refused to meet with her. (Id. ¶¶ 23-24) Shortly thereafter, Plaintiff was instructed to work exclusively at the Macy's Brooklyn, New York location, even though -- as a Regional Director -- she had oversight responsibility for a number of Macy's stores. (Id. ¶ 25)

On January 24, 2008, Plaintiff attended a Macy's awards dinner. At the dinner, Dervos publicly acknowledged all the members of his team except Plaintiff. (Id. ¶ 27)

After the dinner, Plaintiff sent emails to Charpentier stating that she feared that her job was in jeopardy and asking for his advice. (Id. ¶ 30) Charpentier and Plaintiff met on January 30, 2008, and during that meeting Charpentier told Plaintiff that her position was being eliminated. He offered her three non-regional positions that she viewed as "plainly inferior" and as a demotion: Group Sales Manager at Macy's Willowbrook Mall store; Group Sales Manager at Macy's Cross County Mall store; and "a position in Long Island." (Id. ¶¶ 31-32) Charpentier also told Plaintiff that her "continued employment [at Macy's] was conditional on her not contacting any senior level executive to further grieve her complaints against Mr. Dervos." (Id. ¶ 32) When Plaintiff asked what "Macy's intended to do about Mr. Dervos, Mr. Charpentier told her not to 'go there,' to keep her mouth shut and to leave Mr. Dervos alone because he was 'sick.'" (Id. ¶ 33) Charpentier also advised Plaintiff to accept the demotion, "because as a 'single mother' she would need the benefits." (Id. ¶ 34)

On January 31, 2008 -- the day after her meeting with Charpentier -- Plaintiff took a medical leave of absence at her physician's recommendation. (Id. ¶ 39) During her last months of employment, Plaintiff had developed "severe depression" and was prescribed anti-anxiety medication and sleeping pills. (Id. ¶ 36-37) When Plaintiff's medical leave of absence ended on July 30, 2008, her employment was terminated. (Id. ¶ 39)



"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S.Ct. at 1949.

"In considering a motion to dismiss... the court is to accept as true all facts alleged in the complaint," Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 2007) (citing Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 87 (2d Cir. 2002)), and must "draw all reasonable inferences in favor of the plaintiff." Id. (citing Fernandez v. Chertoff, 471 F.3d 45, 51 (2d Cir. 2006)).

"When determining the sufficiency of plaintiffs' claim for Rule 12(b)(6) purposes, consideration is limited to the factual allegations in plaintiffs'... complaint,... to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit." Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993).

In the context of an employment discrimination lawsuit, "a plaintiff alleging employment discrimination or retaliation is not required to plead facts sufficient to establish a prima facie case." Krasner v. HSH Nordbank AG, No. 08 Civ. 8499 (GEL), 2010 U.S. Dist. LEXIS 1305, at *14-15 (S.D.N.Y. Jan. 7, 2010) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508, 515 (2002) (addressing motion to dismiss standard for Title VII discrimination claim); Williams v. New York City Hous. Auth., 458 F.3d 67, 72 (2d Cir. 2006) (per curiam) (finding Swierkiewicz holding equally applicable to retaliation claims)). In Swierkiewicz, the Supreme Court explained that "the McDonnell Douglas burden-shifting framework 'is an evidentiary standard, not a pleading requirement,'... and that to require more than Rule 8(a)'s 'simplified notice pleading standard' would unjustifiedly impose a heightened pleading requirement on the plaintiff.'" Boykin v. KeyCorp, 521 F.3d 202, 212 (2d Cir. 2008) (quoting Swierkiewicz, 534 U.S. at 512-13).

Where a complaint's allegations do not demonstrate an "entitlement to relief," however, or where a plaintiff has "not nudged [her] claims across the line from conceivable to plausible, the [] complaint must be dismissed." Twombly, 550 U.S. at 558, 570.


A. Hostile Work Environment Sexual Harassment

"To prevail on a claim of sexual harassment based on a hostile work environment, a plaintiff must establish two elements: "'"(1) that the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of her work environment, and (2) that a specific basis exists for imputing the conduct that created the hostile environment to the employer."'" Petrosino v. Bell Atl., 385 F.3d 210, 221 (2d Cir. 2004) (quoting Mack v. Otis Elevator Co., 326 F.3d 116, 122 (2d Cir. 2003), cert. denied, 540 U.S. 1016 (2003) (quoting Richardson v. N.Y. State Dep't of Corr. Serv., 180 F.3d 426, 436 (2d Cir. 1999))). The same standard applies to hostile work environment claims brought under the NYSHRL and the NJLAD.

See Schiano v. Quality Payroll Sys., 445 F.3d 597, 609 (2d Cir. 2006) ("Hostile work environment and retaliation claims under the NYSHRL are generally governed by the same standards as federal claims under Title VII."); Grazioli v. Genuine Parts Co., 409 F. Supp. 2d 569, 576 (D.N.J. 2005) ("Because the hostile work environment analyses for Title VII claims and NJLAD claims are 'strikingly similar' the Court ...

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