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Tournois v. Waterloo Premium Outlet/Simon Property Group, Incorporated

United States District Court, Second Circuit

July 30, 2013



MICHAEL A. TELESCA, District Judge.


Peter Tournois ("Plaintiff") brings this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. ("Title VII") and the New York State Human Rights Law, N.Y. Exec. Law §§ 290, et seq. ("NYSHRL"), alleging retaliation for engaging in a protected activity against his employer, Waterloo Premium Outlet/Simon Property Group, Incorporated ("Defendant"). Defendant moves to dismiss Plaintiff's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Rule 12(b)(6)"), contending that Plaintiff has failed to state a plausible claim for relief. Plaintiff opposes the motion and also seeks to amend his complaint to include additional allegations of retaliation.[1] For the reasons discussed herein, Defendant's motion to dismiss is granted in part and denied in part.


The following facts are taken from Plaintiff's proposed amended complaint, and they are assumed to be true for the purposes of this motion and are construed in the light most favorable to Plaintiff, the non-moving party. Dkt. No. 13-2, Ex. A. Plaintiff began working for Defendant in September 2008 as a maintenance/custodian worker and is currently an employee of Defendant. Id. at ¶ 8. Plaintiff alleged that since he began working for Defendant, a male co-worker subjected him to "improper and inappropriate touching, name calling, and singling out for poor treatment." Id. at ¶ 11. Based on this conduct, he believed that he had been subjected to an "unlawful hostile environment based on sex." Id. at ¶ 10.

Plaintiff alleges that he complained to his supervisor, Perry Cleaveland, on numerous occasions, but no remedial action was taken. Id. at ¶ 12. On June 27, 2011, he complained to Human Resource Director Pam Biondio, who directed him to contact Patti Matteson regarding his complaint. Id. at ¶¶ 13-14. Plaintiff alleges that six weeks later, after no remedial action was taken by Cleaveland, Biondio, or Matteson, Plaintiff made a second complaint to Matteson. Id. at ¶ 16. Plaintiff alleges that, in retaliation for his complaints of discrimination, he received a disciplinary memorandum. Id. at ¶ 17.

On May 15, 2012, Plaintiff filed a charge of unlawful discrimination with the Equal Employment Opportunity Commission ("EEOC") alleging unlawful retaliation. Id. at ¶ 20. On September 19, 2012, he filed this lawsuit with the district court alleging that he was retaliated against for engaging in a protected activity. Id. at ¶ 22. Since filing his EEOC claim and commencing this lawsuit, Plaintiff alleges that he has been subjected to further adverse actions. He alleges that his co-workers are permitted to change their work hours, but that he was "admonished" when he did the same on one occasion. Id. at ¶ 25. Plaintiff also alleges that he "is constantly being followed by management and his vehicle is being examined, photographed by General Manager Karen Dodson, " and that Dodson "constantly mock[s] [him] in front of other co-workers and humiliat[es] him." Id. at ¶¶ 26-27.


I. Standard of Review

Under Rule 12(b)(6), a court may dismiss a complaint for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, a complaint must plead "enough facts to state a claim to relief that is plausible on its face." See Ruotolo v. City of New York , 514 F.3d 184, 188 (2d Cir. 2008)(quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). In considering a Rule 12(b)(6) motion to dismiss, the Court "must accept as true all allegations in the complaint and draw all reasonable inferences in favor of the non-moving party.'" See Vietnam Ass'n for Victims of Agent Orange v. Dow Chem. Co. , 517 F.3d 104, 115 (2d Cir. 2008)(quoting Gorman v. Consol. Edison Corp. , 488 F.3d 586, 591-92 (2d Cir. 2007)). However, the court may disregard a plaintiff's "legal conclusions, deductions or opinions couched as factual allegations." See, e.g., In re NYSE Specialists Sec. Litig. , 503 F.3d 89, 95 (2d Cir. 2007)(citation omitted). The court is also not required to credit conclusory statements unsupported by factual allegations. See, e.g., Otor, S.A. v. Credit Lyonnais, S.A., 2006 U.S. Dist. LEXIS 64885, at *9 (S.D.N.Y. Sept. 11, 2006); see also Davey v. Jones, 2007 U.S. Dist. LEXIS 35965, at *5-6 (S.D.N.Y. May 11, 2007)(citation omitted)("[B]ald contentions, unsupported characterizations, and legal conclusions are not well-pleaded allegations, and will not suffice to defeat a motion to dismiss.").

Further, in reviewing a motion to dismiss under Rule 12(b)(6), "the district court is normally required to look only to the allegations on the face of the complaint." See Lukowski v. County of Seneca , 2009 U.S. Dist. LEXIS 14282, at *10 (W.D.N.Y. Feb. 24, 2009)(quoting Roth v. Jennings , 489 F.3d 499, 509 (2d Cir. 2007)). The Court may consider a document not appended to the complaint if the document is "incorporated in [the complaint] by reference" or is a document "upon which [the complaint] solely relies and... is integral to the complaint." See id. (quoting Cortec Indus., Inc. v. Sum Holding L.P. , 949 F.2d 42, 47 (2d Cir. 1991)). Thus, this Court considered Plaintiff's complaint and the alleged "Correctable Offenses" memo, upon which Plaintiff's complaint relies, that was submitted with Defendant's Motion to Dismiss and with Plaintiff's answering papers. Pl.'s Proposed Am. Compl. at ¶ 17; Dkt. No. 12-1, Ex. B.

Plaintiff's first cause of action alleges retaliation under Title VII, and his second cause of action alleges retaliation under the NYSHRL. Pl.'s Proposed Am. Compl. at 8-11. Claims brought under the NYSHRL are analyzed under the same standard as those brought under Title VII. See, e.g., Miller Brewing Co. v. State Div. Of Human Rights , 66 N.Y.2d 937 (1985). Plaintiff's NYSHRL and Title VII claims will therefore be addressed simultaneously. See Lueck v. Progressive Ins., Inc. , 2009 U.S. Dist. LEXIS 96492 at *7, n. 2 (W.D.N.Y. Oct. 19, 2009). Plaintiff alleges that he was subject to discriminatory retaliation because he complained of his co-worker's alleged misconduct and because he filed an EEOC claim and commenced this lawsuit in the district court. Pl.'s Proposed Am. Compl. at ¶¶ 17, 20-23.

To establish a prima facie retaliation claim, Plaintiff must show that: (1) he participated in a protected activity; (2) Defendant was aware of Plaintiff's protected activity; (3) he suffered a materially adverse employment action; and (4) there was a causal connection between the protected activity and the adverse action. Tepperwien v. Entergy Nuclear Operations, Inc. , 663 F.3d 556, 568 fn. 6 (2d Cir. 2011); Stewart v. The City of New York, 2012 U.S. Dist. LEXIS 96998, at *28 (S.D.N.Y. July 10, 2012)(citing Burlington N. v. Santa Fe Ry. Co. v. White , 548 U.S. 53 (2006)). "At the pleading stage, Plaintiff need not establish [such] a prima facie case of discrimination, but must nonetheless allege evidence stating a plausible claim of retaliation." Stewart, 2012 U.S. Dist. LEXIS at *28-29 (citations omitted).

This Court finds that Plaintiff has not stated a plausible claim for retaliation under Title VII or the NYSHRL based on the alleged "Correctable Offenses" memo, because this does not constitute a materially adverse employment action. However, this Court finds that Plaintiff's other allegations, being accepted as true and with ...

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