United States District Court, E.D. New York
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Frank & Associates, P.C., by: Jose G. Santiago, Esq., Peter A. Romero, Esq., of Counsel, Farmingdale, NY, for the Plaintiff.
La Reddola, Lester & Associates, LLP, by: Robert J. La Reddola, Esq., of Counsel, Garden City, NY, for the Defendant.
MEMORANDUM OF DECISION AND ORDER
SPATT, District Judge.
The Plaintiff in this case, Ana Reynoso (" Reynoso" or the " Plaintiff" ), commenced this action against the Defendant All Foods, Inc. (" All Foods" or the " Defendant" ), asserting causes of action pursuant to Title VII of the Civil Rights Act 1964 (" Title VII" ), 42 U.S.C. § 2000e et seq., alleging gender discrimination, hostile work environment, and retaliation. Presently before this Court is a motion by the Defendant to dismiss the Plaintiff's claims for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6) (" Rule 12(b)(6)" ). For the reasons set forth below the Defendant's motion is granted in part and denied in part.
A. Factual Background
Unless otherwise stated, the following facts are drawn from the Plaintiff's Complaint and are construed in the light most favorable to the Plaintiff.
The Plaintiff is a resident of Brentwood, New York. The Defendant is incorporated under New York State law and has its principal place of business located in Deer Park, New York. At all the relevant times, All Foods is a supermarket that employed more than fifteen employees. On or about August 31, 2009, the Plaintiff, Ana Reynoso, commenced her employment with the Defendant as a packager. Her duties consisted of packaging seasonings, hot pepper and other foods. When she was hired, the Plaintiff was scheduled to work Monday through Friday, from 8:00 AM to 5:00 PM. (Compl., at ¶ 16.) During the course of her employment with All Foods, Alex Granados (" Granados" ) was her general manager and Noel Salguero (" Salguero" ) was the Plaintiff's direct supervisor. (Compl., at ¶¶ 17-18.)
The Plaintiff contends that during the course of her employment with All Foods, she was discriminated against and harassed because of her sex. Reynoso further contends that the Defendant subjected her to a hostile work environment, which included inappropriate, discriminatory, harassing, and derogatory comments based on her gender. The Plaintiff alleges a series of incidents to support her allegations of sexual harassment and a hostile work environment.
As a general matter, Reynoso maintains that during her course of employment with the Defendant, on many occasions and in her presence, Salguero " constantly made inappropriate sexual comments about women" , and commented to other co-workers about the Plaintiff's buttocks. (Compl., at ¶¶ 24-25.) The Plaintiff also alleges that Salguero leered at the Plaintiff for unreasonable amounts of time on a daily basis.
In addition, Reynoso alleges specific incidents in support of her claims, as set forth below.
First, she alleges that in or about November 2010, " Salguero forcibly grabbed [the] Plaintiff from behind, put his arms around [the] Plaintiff, and pressed his body against her. Plaintiff had to use physical force to pull herself away from Salguero's grasp" . (Compl., at ¶ 19.) Thereafter, subsequently to prying herself away from Salguero, the Plaintiff told him to never touch her again.
Second, in or about January 2011, " Salguero summoned [the] Plaintiff into his office, and asked if [the] Plaintiff was pregnant. [The] Plaintiff was not pregnant, and she told Salguero that she was not pregnant" . (Compl., at ¶ 29.) Thereafter, Salguero constantly told the Plaintiff that she looked fat.
Third, in or about February 2011, Salguero told the Plaintiff " she had a good-looking backside, and that her husband must really get pleasure from her backside" . (Compl., at ¶ 22.) Reynoso further alleges she informed Salguero that his comment was offensive and disrespectful.
Fourth, in or about March 2011, Salguero went over to Reynoso's work area and in front of other co-workers, said to her: " con tu trasero me hago dos o tres porvitos," which in English, loosely translates to: " with your backside, I would ejaculate at least two or three times" . (Compl., at ¶ 23.)
In addition, at some unspecified time, Salguero " sat directly behind the Plaintiff and stared at her backside and commented about her buttocks" . (Compl., at ¶ 21.)
Along with the allegations set forth above, Reynoso also relates a series of incidents to support her retaliation claim against the Defendant. She alleges that despite the fact that the Defendant failed to set forth a procedure for reporting complaints of discrimination, she nevertheless complained to Granados, the general manager, of Salguero's allegedly discriminatory and harassing conduct towards her. Reynoso contends that Granados not only " dismissed her complaints, but also failed to take any corrective action" . (Compl., at ¶ 27.) She was thereafter subjected to a series of incidents that led to her termination of employment with the Defendant. In the Complaint, the Plaintiff does not specify when or how many times she made complaints of discrimination. However, based upon the Complaint, the Court can infer that the Plaintiff made her grievances to Granados sometime prior to January 2011. Furthermore, the Court can also infer that the retaliatory incidents alleged took place after the complaints of discrimination, sometime between January 2011 and on or about July 5, 2011, when the Plaintiff was terminated.
The following are the alleged incidents that took place following her complaint to Granados, which the Plaintiff contends constitute retaliatory conduct.
First, in or about January 2011, " after [the] Plaintiff objected to Salguero's conduct, Salguero summoned [the] Plaintiff to his office and asked if she was pregnant" . (Compl., at ¶ 28.) The Plaintiff alleges she was not pregnant, and, thus, told Salguero the same. Thereafter, the Plaintiff alleges Salguero constantly told the Plaintiff she looked fat.
Second, in or about February 2011, " Salguero turned off the heat in the room in which [the] Plaintiff was working, and forced [the] Plaintiff to work in an unbearably cold room" . (Compl., at ¶ 31.) Furthermore, the Plaintiff further alleges that, on or about the same time, " [the] Defendant even prohibited [her] from using the ladies' bathroom at work. (Compl., at ¶ 32.)
Third, in or about February 2011, " when [the] Plaintiff arrived at work, Salguero refused to open the door to [the] Defendant's workplace, and instructed co-workers not to open the door for her" . (Compl., at ¶ 33.)
Fourth, in or about May 2011, Salguero " summoned the Plaintiff and co-worker Tatiana Amador (" Amador" ) to his work station, and informed them that they would be held to a ...