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Hexemer v. General Electric Co.

United States District Court, Second Circuit

September 11, 2013

GENERAL ELECTRIC COMPANY; GID GLOBAL, LLC; and JOSE GARCIA, in his professional and individual capacities, Defendants.


LAWRENCE E. KAHN, District Judge.


In this employment action, Plaintiff Soheila Hexemer ("Plaintiff") alleges that she was retaliatorily terminated from her employment with Defendants General Electric Company ("GE"), GID Global, LLC ("GID"), and Jose Garcia ("Garcia") (collectively, "Defendants") after she complained about a co-worker's discriminatory comments. See Dkt. No. 1 ("Complaint"). Presently before the Court is Defendants' Motion to dismiss. Dkt. No. 6 ("Motion"). For the following reasons, the Motion is granted in part and denied in part.


Plaintiff was born in Iran and is of Persian descent. Compl. ¶ 6. In January 2011, Plaintiff was hired by GID, a staffing and employment agency owned and operated by Garcia, for a project-management position at GE's Schenectady office. Id . ¶¶ 8-10, 23.[2] Plaintiff's responsibilities included updating and verifying GE power-plant manuals, providing Microsoft Office training, and designing a GE webpage. Id . ¶ 24. She used GE's office equipment, had a GE email address, and was supervised by GE employees. Id . ¶¶ 13, 15-16, 21, 34-36. Her employment contract with GID explicitly obligated her to adhere to the "GE Travel and Living Policies, " other GE "Company Policies, " and the "GE Power Systems Integrity Guide." Dkt. No. 11-1 ("Employment Contract") at 2, 6.[3]

On October 25, 2012, Plaintiff made a comment to two co-workers about how sitting at their desks led to weight gain. Id . ¶ 25. Another co-worker, GE employee Sarah Hill ("Hill"), overheard this comment and "berat[ed]" Plaintiff, called her "uncivilized, " stated that "in this country, we don't talk like that, " and informed Plaintiff that, while such comments might be acceptable in Iran, they were unacceptable in the United States. Id . ¶ 26. Plaintiff asked Hill what the relevance of Plaintiff's ancestry was and told Hill that she would resign if her "nationality [wa]s affecting [her] that much." Id . ¶ 27.

Plaintiff immediately attempted to speak with her GE supervisors about this incident but, as they were unavailable, she spoke with another GID employee, Jacob Teft ("Teft"), who had witnessed the confrontation. Id . ¶ 29. Four days later, on Plaintiff's next scheduled day of work, Plaintiff met with Teft and GID supervisor Thomas Zalewski ("Zalewski"), who told her that Garcia had been informed of the incident and that Plaintiff would not need to have contact with Hill if she did not want to. Id . ¶ 30. Plaintiff responded that she did not think this was an adequate remedy. Id . ¶ 31.

Two days later, Garcia sent Plaintiff an email terminating her employment. Id . ¶ 33. Plaintiff then met with her GE managers and Jared York ("York"), a senior GE manager. Id . ¶¶ 35-36. When Plaintiff asked why she, and not Hill, had been fired, York responded that he "did not like or care" about Plaintiff and that Hill's comments did not matter to him. Id . ¶¶ 35-36.

Garcia subsequently told Plaintiff that GE had made the decision to terminate Plaintiff's employment for "budgetary reasons." Id . ¶ 38. He also told Plaintiff that GE, rather than giving him the customary two months' notice before eliminating a position or terminating a contract employee, had given him no advance warning that Plaintiff's employment was to be terminated. Id . ¶ 39.

Plaintiff filed the Complaint in December 2012, bringing claims for hostile work environment, discriminatory termination, and retaliatory termination under 42 U.S.C. § 1981 and the New York Human Rights Law ("HRL"), N.Y. EXEC. LAW § 290 et seq. See generally Compl. Defendants then filed the Motion and an accompanying Memorandum of law, seeking dismissal of all of Plaintiff's claims. See Mot.; Dkt. No. 6-2 ("Memorandum"). Plaintiff submitted a Response in which she consented to the dismissal of the Complaint's first and third claims (for hostile work environment and discriminatory termination under § 1981 and the HRL, respectively). See Dkt. No. 12 ("Response") at 1 n.1. Defendants then filed a Reply. Dkt. No. 12 ("Reply").


To survive a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, 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 , 556 U.S. 662, 663 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)); see also FED. R. CIV. P. 12(b)(6). A court must accept as true the factual allegations contained in a complaint and draw all inferences in favor of a plaintiff. See Allaire Corp. v. Okumus , 433 F.3d 248, 249-50 (2d Cir. 2006). A complaint may be dismissed pursuant to Rule 12(b)(6) only where it appears that there are not "enough facts to state a claim to relief that is plausible on its face." Twombly , 550 U.S. at 570. Plausibility requires "enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the alleged misconduct]." Id. at 556. The plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal , 556 U.S. at 678 (citing Twombly , 550 U.S. at 556). "[T]he pleading standard Rule 8 announces does not require detailed factual allegations, ' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id . (citing Twombly , 550 U.S. at 555). Where a court is unable to infer more than the mere possibility of the alleged misconduct based on the pleaded facts, the pleader has not demonstrated that she is entitled to relief and the action is subject to dismissal. See id. at 678-79.


A. Section 1981 Retaliation

Section 1981 provides that "[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts... as is enjoyed by white citizens." 42 U.S.C. § 1981(a).[4] The statute prohibits the racially discriminatory prevention of a person from entering into, or enjoying the benefits of, a contract. See Burrell v. AT&T Corp., No. 03 CV 2490, 2005 WL 2656124, at *3 (S.D.N.Y. Oct. 18, 2005). Section 1981 also prohibits employer retaliation against employees who have opposed conduct prohibited by the statute. See CBOCS West, Inc. v. Humphries , 553 U.S. 442 (2008). There need not be an express employment contract for a retaliation claim to lie; an employment relationship suffices. See, e.g., Lauture v. Int'l Bus. Machs. , 216 F.3d 258, 261-62 (2d Cir. 2000). Defendants argue that: (1) ...

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