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Hammond v. Zurich American Insurance Co.

August 12, 2010

PEARLINE HAMMOND, PLAINTIFF,
v.
ZURICH AMERICAN INSURANCE COMPANY, DEFENDANT.



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

MEMORANDUM & ORDER

Plaintiff Pearline Hammond ("Hammond") commenced this action against former employer, Defendant Zurich American Insurance Company ("Zurich") alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e and New York State Human Rights Law ("NYSHRL"), as codified in New York Executive Law § 296 et seq., for failure to promote, retaliation, hostile work environment, and termination based on her race, national origin, and age.

Pending before the Court is Plaintiff's second motion to amend her Complaint pursuant to Rule 15(a) and Defendant's motion to dismiss pursuant to Rule 12(b)(6). For the reasons set forth herein, Plaintiff's motion to amend is GRANTED. Furthermore, Defendant's motion to dismiss, as construed against Plaintiff's Second Amended Complaint, is GRANTED in part and DENIED in part.

BACKGROUND*fn1

Plaintiff is a fifty-seven year old, self-described "woman of color" and is a native of Jamaica. (Second Am. Compl. ¶¶ 7-8.) She was a Senior Claims Specialist for approximately ten or eleven years, four*fn2 of which were spent at Zurich. (Id. ¶ 10.) Plaintiff was employed by Defendant from approximately October 15, 2001 through December 14, 2006. Although it is unclear, it appears that Plaintiff worked almost exclusively on the Honeywell account. It is also unclear if any other Senior Claims Specialist worked on the Honeywell account.

In July 2005, management advertised for an MCU Supervisor promotion. At around the same time, Zurich was notified of "a defense based claim act claim" ("special claim"), a unique and rare claim, on the Honeywell account. Hammond asserts that handling such a claim would be a very big plus on her résumé, and would have helped to assure that she received the MCU promotion. However, at that time, Hammond was unaware that this special claim was on the Honeywell account. (Id. ¶¶ 11-14.)

Shortly thereafter, Hammond overheard her team manager, David Koch ("Koch"), phone an attorney and Zurich's corporate office for more information on how to handle the special claim. Koch then called, Kevin Murphy ("Murphy"), a white male, over to his cubicle, and told Murphy that he would be handling the special claim. Furthermore, after Koch gave Murphy the special claim, he instructed Murphy to write on his résumé "Defense Based Act" representative. Murphy then submitted his résumé for the MCU position, and received the position. (Id. ¶¶ 15-20.)

Hammond contends that Murphy is 20 years younger than her; although she does not specify what the MCU job requirements were, Plaintiff asserts that Murphy did not meet those qualifications, based on years of experience. Furthermore, she alleges that Koch "took" the special claim away from her, but does not make clear why the special claim should have been hers in the first place. (Id. ¶¶ 18-21.)

In or about July 2005, Koch told Hammond that she was denied the MCU promotion. (Id. ¶ 50.) Days later, Hammond and Koch, were called into the office of Joseph Salerno ("Salerno"), the branch manager, to discuss Hammond's allegations of Koch's discriminatory conduct. Plaintiff recounted the story of her conversation with Koch, and claims that Koch did not dispute any of the facts. (Id. ¶¶ 24-26.) No action was taken. Around August or September 2005, Hammond again complained about the perceived discrimination. In response, Koch and Salerno stated that they were not discriminating against her. At this time, Plaintiff claims that Salerno told her that she would get the next promotion. No promotion arose. (Id. ¶¶ 31-32, 35.)

In or around December 2005, Plaintiff claims that she began to be harassed "for work she had always done and policies that she had always followed[,]" but she does not specify the nature of the harassment or the work or policies with which she allegedly complied. She also says that she was disciplined on three occasions for unspecified "common place" conduct; Plaintiff does not plead the nature of the discipline, but maintains that unspecified white employees regularly engaged in this conduct and they were not disciplined. (Id. ¶¶ 33-34.)

On or about March 26, 2006, Hammond received a good performance evaluation. Nine months later, on December 14, 2006, Hammond was terminated for committing a "breach reserve." Although Plaintiff does not dispute that she committed a breach reserve, she states that, to her knowledge, no other employee in the Workers Compensation Department has ever been terminated for breach reserve. (Id. ¶¶ 38, 41.) Plaintiff states that there are three other Senior Claims Specialists at Zurich, in Hammond's office; Dora Westlake, Lis Chierello, and Fran Manzie, and all three are white females. Additionally, Salerno, Koch, and Murphy are all white males. Plaintiff does not allege that any of these Zurich employees committed a breach reserve.

On August 2, 2007, Plaintiff filed a charge with the U.S. Equal Employment Opportunity Commission ("EEOC"). Although Plaintiff does not attach a copy of the charges she filed with the EEOC or specifically describe it in her Second Amended Complaint, she does state that she received a "right to sue" letter, dated April 15, 2009. (Id. ¶¶ 5-6.)

On July 6, 2009, Plaintiff commenced this action in the New York State Supreme Court, Suffolk County, by serving Defendant with a Summons and Verified Complaint. Defendant removed the action to this Court on July 27, 2009, and filed its first motion to dismiss on August 3, 2009. Thereafter, on August 25, 2009, Plaintiff filed an Amended Complaint, asserting twenty-one causes of actions including: (1) failure to promote, (2) hostile work environment, (3) retaliatory discharge, (4) other discrimination based on age, race, and national origin under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. and the NYSHRL as codified in New York Executive Law § 296 et seq., and (5) violations of unspecified corporate policies. Plaintiff seeks $5,000,000 in compensatory damages, punitive damages, and attorney's fees. On September 22, 2009, Defendant filed its current motion to dismiss. Eight days later, Plaintiff filed her motion to file a Second Amended Complaint.

DISCUSSION

I. Plaintiff's Motion to Amend

An in-depth analysis of Rule 15(a) is unnecessary for purposes of deciding this motion. Plaintiff's Proposed Second Amended Complaint has no material differences from the first Amended Complaint, save for the omission of seven meritless causes of action.*fn3 Because Plaintiff adds virtually nothing in the way of factual allegations or new causes of action, the Second Amended Complaint amounts to nothing more than a voluntary dismissal of those seven claims. Furthermore, as Defendant's motion papers clearly address all of Plaintiff's claims as stated in the Second Amended Complaint, Defendant suffers no ...


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