The opinion of the court was delivered by: Seibel, J.
Before the Court is Defendants' Motion to Dismiss Plaintiffs' Second Amended Complaint. (Doc. 13.)
For the purposes of the instant motion, the Court assumes the facts, although not the legal conclusions, in the Second Amended Complaint to be true. This case concerns alleged discriminatory and retaliatory practices by Defendants Majestic Kitchens, Inc. ("Majestic"), and its President and owner, Bill Luceno, against Plaintiff employees Patricia Castagna and Nick Sarracco. (SAC ¶¶ 1, 6.)*fn1
Castagna began working for Majestic on April 1, 2005, at Luceno's request. (Id. ¶ 8.) She was first assigned to work for Majestic's comptroller, and after four to five months became the front desk receptionist. (Id. ¶¶ 10--11.) "Almost from the inception of her employment and continuing throughout the remainder of her employment," Castagna was subjected to "a regular, frequent, unwanted, and abusive pattern of behavior directed against her and other women, in contrast to male employees," and Luceno created "a working environment characterized by lewd, racial and sexual comments and innuendoes, profanity, offensive physical contact and other inappropriate behavior." (Id. ¶ 9.) Luceno also failed to reduce to writing Majestic's "rules, regulations, [and] policies on vacation time, sick time, break notices, raises, lunch time, disciplinary policies, etc.," or to display "official posters . . . with respect to minimum wage or labor law provisions." (Id. ¶ 13.) Castagna "urg[ed]" Luceno to adhere to labor law provisions regarding such rules and regulations, resulting in "little" being done. (Id.) As a result of such urging, Luceno "mocked and ridiculed" Castagna, and referred to her as "Ms. Corporation." (Id.¶ 14.) Luceno never spoke to male employees in this fashion. (Id.)
After Castagna had worked at Majestic for approximately two years, Luceno elevated her salary to $20/hour (after having started her at $15/hour and elevated her to $16/hour a year into her employment) and both "admitt[ed] that she was underpaid" and "threatened [her] that if she talked to anyone about her raise she would be fired." (Id. ¶ 15.) Plaintiffs allege that this was so that Castagna would not learn that Majestic's female employees were earning less than its male employees. (Id.) Luceno also made "incessant personal complaints" about Castagna to others, including complaints about her "laughing, her voice, her breathing too loud, her coffee breaks and her bathroom breaks." (Id. ¶ 16.) Luceno's complaints regarding Castagna's bathroom breaks were "particularly difficult and humiliating," and his "tone and body gestures made clear that this topic related to Castagna's gender." (Id. ¶ 18.) These complaints eventually led to Castagna being "forced to schedule her bathroom requirements at 11 AM, during her 1:30 PM lunch break and at 3:30 PM, but then only if someone was available to cover her desk"; "[o]therwise, she had to wait until after 5 PM." (Id. ¶ 17.) As an example of Luceno's complaints regarding Castagna's laugh, "while Castagna was greeting new customers one day who told her a joke, she laughed," and "[w]ithin 20 seconds her phone rang and [Luceno] . . . berated [her] and told [her] that it sounded like a bunch of kindergarteners." (Id. ¶ 19.) The customers "overheard Luceno yelling at her from the corner office." (Id.) In contrast to female employees, male employees were not subjected to "personally demeaning comments," "public abuse," or "monitor[ing]" of bathroom breaks. (Id. ¶¶ 16, 18, 19.)
Plaintiffs provide examples of other female employees to whom Luceno directed his "harsh comments and abuse treatment." (Id. ¶ 21.) On one instance, when Luceno was displeased with a price quote that a female employee provided to a customer, Luceno remarked that "f------ women give it away." (Id.) On another instance, when a new female employee requested that she be able to take two weeks' vacation for her honeymoon, Luceno "yelled at her so intensely . . . sometimes in front of customers" because "[h]e wanted her to cancel it and work instead." (Id. ¶ 22.) On the Saturday of the wedding, Luceno "directed employees to work, instead of attending the marriage ceremony and reception." (Id.) On another occasion, in May 2008, when a female employee was covering the front desk telephone during one of Castagna's bathroom breaks, she "lost an important phone call for Luceno," in response to which Luceno "blew up and yelled and swore for all to see," and later yelled again at the employee in her office. (Id. ¶ 23.) Luceno verbally abused another female employee, "constantly criticiz[ing] her in front of other employees about being absent too much and her inability to use a computer," and on at least one occasion remarked regarding both that employee and a fellow female employee that there is "nothing worse than a female Jew." (Id. ¶ 24.) Luceno also "has been known to throw a coffee mug" at his wife, "which narrowly missed her, shattering on the wall with pieces flying all over the place." (Id. ¶ 25.) Luceno directed no such behavior toward any of Majestic's male employees. (Id. ¶¶ 21--24.)
Castagna quit her job at Majestic on July 9, 2008. (Id. ¶¶ 26--27.) On that morning, Castagna was working at the receptionist's desk, and Luceno asked her to shorten her lunch for the entire week and spend that time covering the front desk telephone, as Majestic was shorthanded. (Id. ¶ 26.) Not expecting that Luceno would provide her with overtime pay, Castagna asked if she could leave early and be credited for the extra time worked during lunch. (Id.) In response, Luceno "started yelling at her in a voice that all could hear throughout the showroom," "walked back to his office, still yelling," and then returned "[t]wenty minutes later . . . screaming as he called her 'Ms. Corporate' and yelling that she was selfish." (Id. ¶¶ 26--27.) Luceno then reached over Castagna's desk and shoved her computer monitor at her. (Id. ¶ 27.) He "proceeded to scream at her, swearing that that was not enough notice" and "further threatened Castagna by saying that she should wait to see what would happen the next time she would ask for a day off." (Id.) At that point, "fear[ing] for her personal and physical safety," and feeling "scared, alone, humiliated, embarrassed and really upset," Castagna "packed up her items and left." (Id.) That same day, she went to the house of her co-worker Plaintiff Nick Sarracco, who had witnessed part of the incident earlier that day. (Id. ¶ 28.) At Sarracco's suggestion, the two proceeded to the Mamaroneck Police station, where Castagna filled out a police report describing "the conditions of her employ and what Luceno had done to her that day." (Id.) Castagna filed a charge of discrimination, harassment, and retaliation with the U.S. Equal Employment Opportunity Commission ("EEOC") on or about October 21, 2008, and received a "right to sue" letter on or about August 14, 2009. (Id. ¶¶ 2, 32, 33.)
Sarracco began working for Majestic in September 1996 as a salesman. (Id. ¶ 43.) "Almost from the inception of his employment and continuing throughout the remainder of his employment," Sarracco witnessed Luceno "publicly demean and verbally abuse" Majestic's female employees. (Id. ¶ 42.) Luceno was not demeaning or abusive to male employees in the same way that he was to female employees, but he was "abusive to them in the sense of 'playing games' with their compensation and classification as an employee [versus] an independent contractor." (Id.) For example, Sarracco was placed on and off the books throughout his employment at Majestic: when he started in September 1996, he was a salesman; he then left and was re-hired in December 1996 as an independent contractor; he was placed "on the books" as an employee in 2002 when he requested to participate in (and was denied participation in) a 401(k) program; and he was reclassified as an independent contractor in 2003 and, at Luceno's insistence, paid through a corporate entity. (Id. ¶ 43.)
In 1997, Luceno promised Sarracco that Majestic would fund his retirement in the amount of $700/month, or $8400/year, both because other employees received a car allowance, while Sarracco did not, and in exchange for Sarracco's helping other Majestic employees with their kitchen design skills. (Id. ¶ 45.) On an annual basis, usually around the holidays, Luceno "[took] out a sheet of paper and show[ed] Sarracco the value of the retirement account, telling him that the account earned no interest and that if Sarracco ever made an official inquiry into this matter, that it would be denied that he had any retirement whatsoever." (Id. ¶ 46.) Luceno assured Sarracco that the retirement package amounted to approximately $100,000. (Id. ¶ 49.) Luceno has since refused to turn over the retirement money and has not provided Sarracco with any associated disclosures. (Id. ¶ 47.)
On July 9, 2008, when Luceno became verbally abusive toward Castagna, Sarracco confronted Luceno, upon which the confrontation ended. (Id. ¶ 48.) In addition to suggesting that Castagna file a police report, and accompanying Castagna to the police station, Sarracco also had his lawyer send a letter to Luceno notifying Luceno that he was violating anti-discrimination laws. (Id. ¶¶ 29, 48, 49.) That letter, dated July 12, 2008, also complained about Luceno's mischaracterization of Sarracco and other employees as independent contractors, as well as Sarracco's retirement package, the funds of which had not been "qualified" under applicable law nor paid out to Sarracco. (Id. ¶ 49.) Immediately thereafter, Sarracco was fired. (Id. ¶¶ 29, 49.) Sarracco filed a charge of retaliation with the EEOC on or about September 12, 2008, and received a "notice of right to sue" on or about August 14, 2009. (Id. ¶¶ 2, 50, 51.)
Plaintiffs filed the instant case on November 10, 2009. (Doc. 1.) An Amended Complaint followed on January 25, 2010. (Doc. 4.) The parties appeared before this Court for a pre-motion conference on April 27, 2010 to discuss Defendants' proposed motion to dismiss. (See Docket Entry dated April 27, 2010.) Plaintiffs filed a Second Amended Complaint on May 25, 2010. (Doc. 12.) The Second Amended Complaint asserts the following claims against both Defendants: (1) hostile work environment under Title VII of the Civil Rights Act of 1964 ("Title VII"), by Castagna; (2) retaliation under Title VII, by Castagna; (3) retaliation, age discrimination, and sex discrimination under the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. ("NYSHRL"), by Castagna; (4) violation of New York Labor Law, by Castagna; (5) intentional infliction of emotional distress, by Castagna; (6) assault, by Castagna;
(7) battery, by Castagna; (8) retaliation, under Title VII, by Sarracco; (9) violation of the U.S. Employee Retirement Income Security Act ("ERISA"), by Sarracco; (10) violation of New York Labor Law, by Sarracco; and (11) retaliation, age discrimination, and sex discrimination under the NYSHRL, by Sarracco. (SAC ¶¶ 57--125.) Defendants moved to dismiss the Second Amended Complaint on June 25, 2010. (Doc. 13.)
A.Motion to Dismiss Standard
"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)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (alteration, citations, and internal quotation marks omitted). While Federal Rule of Civil Procedure 8 "marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, . . . it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Iqbal, 129 S. Ct. at 1950.
In considering whether a complaint states a claim upon which relief can be granted, the court may "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth," and then determine whether the remaining well-pleaded factual allegations, accepted as true, "plausibly give rise to an entitlement to relief." Id. Deciding whether a complaint states a plausible claim for relief is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.'" Id. (second alteration in original) (quoting Fed. R. Civ. P. 8(a)(2)).
B.Documents the Court May Consider on a Motion to Dismiss
When deciding a motion to dismiss based on Rule 12(b)(6), the Court is entitled to consider the following:
(1) facts alleged in the complaint and documents attached to it or incorporated in it by reference, (2) documents "integral" to the complaint and relied upon in it, even if not attached or incorporated by reference, (3) documents or information contained in [a] defendant's motion papers if plaintiff has knowledge or possession of the material and relied on it in framing the complaint, (4) public disclosure documents required by law to be, and that have been, filed with the Securities and Exchange Commission, and (5) facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence.
Weiss v. Inc. Vill. of Sag Harbor, No. 10-2603, 2011 WL 222480, at *4 (E.D.N.Y. Jan. 24, 2011) (internal quotation marks omitted); accord Chambers v. Time Warner, Inc., 282 F.3d 147, 152-- 53 (2d Cir. 2002). A document is considered "integral" to the complaint where the plaintiff has "reli[ed] on the terms and effect of [the] document in drafting the complaint." Chambers, 282 F.3d at 153 (emphasis omitted). Such reliance "is a necessary prerequisite to the court's consideration of the document on a dismissal motion; mere notice or possession is not enough." Id.; see Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006) (integral documents may include documents that are partially quoted in the complaint or on which plaintiff relied in drafting the complaint). A district court may exercise its discretion in considering materials that do not fall within any of the above-mentioned categories, although in such instances it must convert the motion to dismiss to a motion for summary judgment, see In re WorldCom, Inc. Sec. Litig., 382 F. Supp. 2d 549, 556 (S.D.N.Y. 2005), and ensure that the nonmoving party has sufficient notice of the conversion as well as an opportunity to respond, see Mathie v. Dennison, 381 F. App'x 26, 26 (2d Cir. 2010).
Defendants have submitted various documents with their memorandum that are outside the Second Amended Complaint. Defendants have submitted a transcript of the April 27, 2010 pre-motion conference in this case, a copy of Defendants' letter to the Court dated April 12, 2010 requesting a pre-motion conference, and a copy of the First Amended Complaint in this case. (Fragale Decl. Exs. B--D.)*fn2 The Court may take judicial notice of these documents and consider them on a motion to dismiss. See, e.g., Obilo v. City Univ. of City of N.Y., No. 01-5118, 2003 WL 1809471, at *3 n.10 (E.D.N.Y. Apr. 7, 2003) ("[D]efendants have attached to their memorandum an excerpt of the . . . pre-motion conference, of which judicial notice may be taken."); Reisner v. Stoller, 51 F. Supp. 2d 430, 440 (S.D.N.Y. 1999) ("The court may . . . take judicial notice of matters of public record, such as pleadings and court orders from prior litigation between the parties."). Defendants have also submitted copies of Plaintiffs' EEOC charges. (Fragale Decl. Exs. F--G.) As Plaintiffs reference the charges several times in their Second Amended Complaint, the Court deems them incorporated by reference and may therefore consider them. See Morris v. Broadridge Fin. Servs., Inc., No. 10-1707, 2010 WL 5187669, at *3 n.2 (E.D.N.Y. Dec. 14, 2010). Finally, Defendants have submitted an Affidavit of Vito (Bill) Luceno (Fragale Decl. Ex. E.) This is the only document the submission of which Plaintiffs contest in their Opposition memorandum. As the Luceno Affidavit ...