United States District Court, W.D. New York
DECISION AND ORDER
RICHARD J. ARCARA, District Judge.
The Plaintiff in this case is an African-American woman who alleges that her former employer, Defendant Independent Health Association, discriminated against her on the basis of race and sex by permitting a hostile work environment to exist. The Defendant moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Magistrate Judge Schroeder, to whom the Court referred the case for all pre-trial matters and to hear and report upon dispositive motions, filed a Report and Recommendation (R&R), Dkt. No. 18, that recommends: (1) granting the Defendant's motion as to Plaintiff's cause of action alleging retaliation; and (2) denying the Defendant's motion as to the Plaintiff's two causes of action alleging a hostile work environment.
The Plaintiff did not file objections to Judge Schroeder's recommendation that her retaliation claim be dismissed. The Court must therefore review that recommendation for clear error. See Edwards v. Fischer, 414 F.Supp.2d 342, 346-47 (S.D.N.Y. 2006) ("If no objections are filed, or where objections are merely perfunctory responses... reviewing courts should review a report and recommendation for clear error.") (internal quotation marks omitted). Finding none, the Court adopts the R&R's recommendation that Plaintiff's cause of action for retaliation be dismissed.
The Defendant filed objections to the remainder of the R&R. Dkt. No. 21. Plaintiff filed a response and oral argument was held on June 23, 2014. Upon de novo review of the portions of the R&R to which the Defendant objected, and after hearing argument from the parties, the Court adopts the remainder of the R&R. The Court therefore grants the Defendant's motion to dismiss only as to Plaintiff's third cause of action, alleging retaliation. Plaintiff's first and second causes of action, alleging a hostile work environment on the basis of sex and race, may proceed.
Because this case is before the Court on the Defendant's motion to dismiss, the Court must "accept as true the complaint's factual allegations and draw all reasonable inferences in the plaintiff's favor." New York Life Ins. Co. v. United States, 724 F.3d 256 (2d Cir. 2013). The Plaintiff's hostile work environment claims revolve around a series of alleged comments and acts attributed to Plaintiff's co-workers and supervisors. Those allegations are as follows:
¶ 24. In approximately October 1999, [one of Plaintiff's coworkers] purported to express concern to Plaintiff... about her children on a day when the Buffalo School District closed due to snow when most adjacent, suburban school districts remained open.
¶ 25. Plaintiff... had to explain... to that colleague that not all African-Americans live in the City of Buffalo, and her children were attending school that day in the Sweet Home School District, as she and her family reside in the Town of Amherst.
¶ 26. In approximately October 1999, [the Defendant] held an employee appreciation day around Halloween and [one of Plaintiff's coworkers] dressed up as "Aunt Jemimia, " an offensive racial stereotype of the antebellum American South. This offensive, racist display was made in the presence of Plaintiff....
¶ 27. In approximately April 2000, an [employee of Defendant] saw her husband's newly purchased Mercury Mountaineer and asked Plaintiff if her husband was "a drug dealer."
¶ 28. In approximately 2005, [one of Plaintiff's co-workers, L.M.], a white female, expressed reluctance to Plaintiff... about visiting a client located on Doat Street in the City of Buffalo.
¶ 29. [Co-worker L.M.] said she was "uncomfortable even driving in that part of town" and suggested that Plaintiff... should service that account because she would "better fit in."
¶ 30. In approximately 2005, [co-worker L.M.], told Plaintiff... that she is "not comfortable around black people" because of a high-school incident in which she felt she had been victimized by other African-American students and that Plaintiff... would "have to prove herself to her." No remedial action was taken when the complaint was made despite the fact that [the co-worker] was a peer and had no authority over the Plaintiff.
¶ 31. From approximately June 2007 to May 2008, Defendant... routinely sent Plaintiff... to service accounts which had a large number of African-American employees as she was the only African-American ...