United States District Court, W.D. New York
[Copyrighted Material Omitted]
For Karen Marcus, Plaintiff: Frank G. Montemalo, LEAD ATTORNEY, Rochester, NY.
For Barilla America NY, Inc., Carmine Simone, Defendants: Scott P. Rogoff, LEAD ATTORNEY, Hiscock & Barclay LLP, Rochester, NY.
DECISION AND ORDER
DAVID G. LARIMER, United States District Judge.
Plaintiff Karen Marcus (" plaintiff') brings this action alleging discrimination in employment on the basis of gender, and retaliation, against her former employer, Barilla America NY, Inc. (" Barilla" ) and her supervisor, Carmine Simone (" Simone" ), pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. (" Title VII" ) and the New York Human Rights Law, N.Y. Exec. Law § 290 et seq. (" NYHRL" ). The defendants now move to dismiss the complaint for failure to state a claim, pursuant to Fed. R. Civ. Proc. 12(b)(6). (Dkt. #8). Plaintiff has
cross moved to amend the complaint. (Dkt. #12). For the reasons that follow, defendants' motion to dismiss is granted, plaintiff's cross motion to amend is denied, and the complaint is dismissed.
Plaintiff was hired by Barilla on February 2, 2007 as a Quality Assurance Manager at its Avon, N.Y. plant. She later assumed the title and duties of Quality & Technology Manager and ultimately resigned from Barilla on April 11, 2011. On October 16, 2011, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (" EEOC" ), alleging that Barilla and Simone had subjected her to gender-based discrimination. Specifically, she complained that during her tenure at Barilla, Simone repeatedly " yelled, stared down at [her], jerked his head back and forth and bucked his chest out when yelling," causing her to feel threatened and uncomfortable, and criticized her job performance. (Dkt. #1, Exh. A). On February 26, 2013, the EEOC issued plaintiff a " right to sue" letter. (Dkt. #1, Exh. B). This action followed.
I. The Standard on a Motion to Dismiss
In reviewing a motion to dismiss, the Court accepts the allegations in the complaint as true. See Boykin v. KeyCorp, 521 F.3d 202, 204 (2d Cir. 2008). " 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, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quotation marks omitted). A claim is plausible on its face where the plaintiff " pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
II. Plaintiff's Discrimination Claims
A. Hostile Work Environment
Plaintiff claims that she was subjected to discrimination and harassment, in the form of a hostile work environment. To state a hostile work environment claim, a plaintiff must plausibly allege that " the workplace [was] permeated with discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (internal quotation marks omitted). With regard to claims of gender-based harassment, the plaintiff must allege " that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted discrimination. . . because of . . . sex." Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (internal quotation marks omitted) (emphasis in original). In contrast, the " mere utterance of an . . . epithet which engenders offensive feelings in an employee does not sufficiently affect the conditions of employment to implicate Title VII" or state law. Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (internal quotations marks omitted). See also Espaillat v. Breli Originals, Inc., 227 A.D.2d 266, 268, 642 N.Y.S.2d 875 (1st Dept. 1996) (applying same principles to hostile work environment claims under the NYHRL). At the pleading ...