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Dulce M. Munoz-Nagel v. Guess

April 30, 2013

DULCE M. MUNOZ-NAGEL, PLAINTIFF,
v.
GUESS, INC., DEFENDANT.



The opinion of the court was delivered by: Ramos, D.J.:

OPINION AND ORDER

Plaintiff Munoz-Nagel ("Plaintiff" or "Munoz-Nagel"), appearing pro se, brings this action against Defendant Guess, Inc. ("Defendant" or "Guess") pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17, the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621-634, the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12112-12117, and the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law §§ 290-297. Amended Complaint ("Am. Compl.") Doc. 5. Pending before the Court is Defendant's motion to dismiss Plaintiff's Amended Complaint.

Doc. 19. For the reasons set forth below, Plaintiff's Title VII and ADA claims are DISMISSED. Plaintiff's age discrimination claim pursuant to the ADEA and NYSHRL are DISMISSED without prejudice.

I.Factual Background

Plaintiff, a resident of Monroe, New York, is Hispanic, female, of Dominican descent and an Evangelical Christian. Am. Compl. II.D. Plaintiff alleges that she has been disabled since 2003 because of an automobile accident. Id. She claims that Guess failed to hire her for discriminatory reasons in June 2011 and failed to accommodate her disability. Id. II.A.-B.

Specifically, Plaintiff alleges that Guess discriminated against her on the basis of her race, color, national origin, gender, religion, age, and disability. Id. II.D.

In a document filed by Plaintiff on December 4, 2012, which the Court will treat as a surreply,*fn1 Doc. 23, Plaintiff states that she applied for a part-time customer service position with Guess on May 31, 2011, at which time she was 49 years old. Surreply 1, 11, 14. The application allowed applicants to select hours and days that they preferred to work. Id. 1. Plaintiff chose the 10am to 3pm time slot on her application, and also indicated that she was not available to work on Sundays. Id. Plaintiff alleges that during the time she was waiting for the application at the store, a manager asked her if she would be willing to work starting at 8 am, and she said "yes." Surreply Ex. B at 1. The "applicant checklist," attached to Plaintiff's Surreply as Exhibit A, states in the "comments" section: "[O]nly morning shifts. She can come earlier than 10 am if needed."

Plaintiff was interviewed on the 1st and 15th of June 2011. Surreply 1. The first interview was conducted in a group, which included Hispanic, black, and white individuals who "were younger than [Plaintiff]." P.'s Sept. 27, 2012 Letter ("9/27/12 Letter") Ex. B ¶ 9 (not electronically filed).*fn2 Plaintiff does not indicate whether the second interview was conducted individually or in a group, but claims that it went "pretty smooth[ly]," and consisted of "common sense questions." Surreply Ex. B at 1. She claims that during the second interview, she asked the manager if it was possible to change the hours she had requested on her application, and the manager responded "yes" and that they could work on that. Id. Plaintiff further alleges that after the June 15 interview, the manager informed her that they needed to run a background check, which would take about three days to complete, and that they would call her to inform her whether she was cleared. Surreply 12; see also Ex. B at 1. Plaintiff alleges that she believed that she had been hired at that point, as it is not customary for a company to run a background check on an individual that it does not intend to hire. Id. 11. She claims that she is not a criminal or felon, id. 12, and that she believes she would have passed a background check, as she was subsequently hired to work at another retail store that also conducted a background check prior to hiring her. Id. 14.

On June 20, 2011, the manager called Plaintiff and informed her that the hours she had requested were not available, and that the only available hours were noon to closing. Surreply Ex. B at 1. The following day, Plaintiff visited the store and told the manager that she was "willing to work out [her] hours." Id. At that point, the manager informed Plaintiff that the position had been filled. Id. Plaintiff alleges that although no derogatory remarks were made during her conversations with the manager, Surreply 11, she claims that the manager was lying about the position being filled, as the store was still taking applications and was continuing to conduct interviews every week, and that the manager used that reason "to protect herself." Id.; see also Ex. B at 1. Plaintiff alleges that "if [her] hours were the only problem[, the manager] should [have] accommodate[d] [her] hours," and that she "was willing to work from 4-9 pm, if [the manager] needed personnel for closing." Surreply Ex. B at 1. Plaintiff further alleges that stores such as Guess "prefer[] college[] students and younger applicants to compete with the market strategies." Surreply 11. Additionally, Plaintiff claims that she was over-qualified for the positions available at Guess, as she previously worked as a manager and had training in customer service and retail. Surreply Ex. B at 3.

Plaintiff initially filed a petition with the U.S. Equal Employment Opportunity Commission (EEOC). In her response to the EEOC's Supplemental Information Request, attached to her September 27, 2012 letter to the Court as Exhibit B, Plaintiff states that the reason she believes she was not hired because of her race is because Defendant has rotating schedules starting at 5:30 am until 9 pm and she indicated to the manager that she was willing to be flexible about her hours, and that the manager told her during the interview that she would be able to change the hours she had listed on her application. 9/27/12 Letter Ex. B ¶¶ 10-11. Plaintiff states that the reason she believes she was not selected because of her age is because most of Guess's employees that Plaintiff saw working at the store were much younger than her, except for the head manager who she believes was around her age. Id. ¶ 12. In her opposition papers to the instant motion, Plaintiff further alleges that a majority of the applicants for the job were younger than her, and that she "believe[s] most of them were hired." Pl.'s Mem. L. 6. The reason Plaintiff believes that she was not hired because of her religion is that she indicated on her application that she was not available to work on Sundays, as she assists and sings at Church that day. 9/27/12 Letter Ex. B ¶ 13. In response to the EEOC's inquiry regarding her belief that she was not hired because of her color, Plaintiff states that she does not know whether any of the other white, black or Hispanic individuals who were at the group interview were hired, but that she noticed that the interviewer "did not click with [her]" and that she was more interested in the people, rather than their experience. Id. ¶ 14. Plaintiff further states in her response to the EEOC's Supplemental Information Request that the reason she believes she was not selected because of her national origin is that the manager was Italian, and she has "hear[d] rumors [that] some Italian[s] [do not] like Hispanics." Id. ¶ 15.

With respect to Plaintiff's disability, she claims that she was hurt in an automobile accident, and that her disability has prevented her from working. Id. ¶ 16. She alleges that her disability prevents her from lifting heavy objects and sitting or standing for too long a period. Id. ¶ 19. Plaintiff states that she does not remember mentioning her disability in the job application,*fn3 id. ¶ 16, butclaims that her disability would not have prevented her from performing her job duties. Id. ¶ 22.In response to the EEOC's inquiry regarding whether she made Guess aware that she was disabled during the application process or interview, Plaintiff states that she did not want to mention anything about her disability at the interviews since they were conducted in a group setting, and that she was going to explain her disabilities in private if she was hired, but that she never got that chance. Id. ¶ 21.

Plaintiff received a Notice of Right to Sue letter from the EEOC on October 13, 2011. Am. Compl. III.B. She initiated this action on February 21, 2012 by filing a Complaint for Employment Discrimination. Doc. 2. On March 20, 2012, the Court issued an Order to Amend, directing Plaintiff to file an Amended Complaint detailing her claims that she was discriminated in hiring because of her Christian religion, female gender, age, disability and/or Hispanic national origin. Doc. 4. Plaintiff filed the Amended Complaint on April 5, 2012.*fn4 Doc. 5.

II.Applicable Legal Standards

When ruling on a motion to dismiss pursuant to Rule 12(b)(6), district courts are required to accept as true all factual allegations in the complaint and to draw all reasonable inferences in the plaintiff's favor. Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir. 2010). However, this requirement does not apply to legal conclusions, bare assertions or conclusory allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678, 681 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).In order to satisfy the pleading standard set forth in Rule 8 of the Federal Rules of Civil Procedure, a complaint must contain sufficient factual matter to state a claim to relief that is plausible on its face. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 570). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. Accordingly, a plaintiff is required to support its claims with sufficient factual allegations to show "more than a sheer possibility that a defendant has acted ...


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