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Sobon v. Horizon Engineering Assocs., Llp

United States District Court, N.D. New York

September 30, 2014

TINA SOBON, Plaintiff,

LEWIS G. SPICER, ESQ., LEVINE & BLIT, PLLC, Syracuse, NY, Attorney for Plaintiffs.



GLENN T. SUDDABY, Chief District Judge.

Currently before the Court, in this age discrimination action filed by Tina Sobon ("Plaintiff") against Horizon Engineering Associates, LLP ("Horizon") and William Mathewson ("Mathewson") (collectively, "Defendants"), is Defendants' motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6) or, in the alternative, to transfer venue pursuant to 28 U.S.C. § 1406. ( See Dkt. No. 11.) Plaintiff opposes Defendants' motion and, alternatively, seeks leave to amend her Complaint. ( See Dkt. No. 13.) For the reasons set forth below, Defendants' motion to dismiss the Complaint is granted and Plaintiff's cross-motion to amend the Complaint is denied.


A. Plaintiff's Complaint

Plaintiff's Complaint asserts claims against Defendants for age discrimination, hostile work environment and retaliation pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., ("ADEA"), and the New York Human Rights Law, N.Y. EXEC. LAW § 296 ("NYHRL"). ( See Dkt. No. 1, ¶¶ 49-103 [Pl.'s Compl.].)

Generally, in support of her claims, Plaintiff sets forth the following factual allegations in her Complaint, which are accepted by the Court as true for purposes of deciding the current motion.

Defendant Horizon hired Plaintiff for the position of Project Coordinator Level I in April 2010. Plaintiff is a fifty-five year old female. She claims, "[u]pon information and belief, " that she was "substantially older" that Horizon's other employees, including their Project Coordinators. ( Id., at ¶ 15.)

Defendant continually gave Plaintiff commendations and positive reviews regarding her work performance. Around eight months after Plaintiff was hired, she asked her supervisor, Defendant Mathewson, about promotion opportunities. Mathewson replied that promotions were only available to employees with more than one year of experience. Plaintiff claims "[u]pon information and belief, " that no such policy existed and therefore, served as an excuse to keep her from advancing. ( Id., at ¶ 19.) Two months later, in February 2011, Mathewson "berated [Plaintiff] in front of another team member." ( Id., at ¶ 20.)

In April 2011, during Plaintiff's first-year review, Defendants asked her to list three goals for the upcoming year. Plaintiff stated she wanted to complete Horizon's management training, become a "LEED Green Associate, " and receive a promotion. ( Id., at ¶ 22.) Thereafter, Defendants "significantly increased" Plaintiff's workload. ( Id., at ¶ 23.) "In or about the same time, Defendants' business increased and Mathewson advised his team members, including [Plaintiff] and other project coordinators to ask for help and assistance during this busy time." ( Id., at ¶ 24.) "[Plaintiff] was singled out because of her age and denied assistance while all other significantly younger employees were provided help by Mathewson." ( Id., at ¶ 25.) Due to Plaintiff's increased workload and Horizon's unwillingness to assist her, Plaintiff "endured extreme anxiety and stress regarding her employment status and prospects." ( Id., at ¶ 26.)

Plaintiff again inquired about promotional opportunities but was denied, while Defendants promoted "several other project coordinators with less experience, all of whom were substantially younger than [Plaintiff]." ( Id., at ¶ 28.) Mathewson repeatedly refused to discuss with Plaintiff possible avenues for a promotion.

In May 2011, Plaintiff completed Horizon's management training. Thereafter, Plaintiff followed up with Mathewson about seeking a promotion. Mathewson replied that Horizon no longer offered promotions to project coordinators.

In November 2011, Plaintiff complained to Horizon's Human Resources Manager, Maria Theologis ("Theologis") that Plaintiff was forced to complete an increased workload without the assistance that Mathewson provided to younger employees. Theologis failed to take remedial action or conduct an investigation of Plaintiff's complaint.

One month later, during Plaintiff's second-year interview, Mathewson "berated, ridiculed, harassed and threatened [Plaintiff] because of her age." ( Id., at ¶ 35.)

In February 2012, Plaintiff again complained to Theologis, in writing, "regarding her discriminatory treatment as an employee at Horizon." ( Id., at ¶ 36.) Specifically, Plaintiff complained that Mathewson denied her promotional opportunities "because of her age" and "was continually hostile to her, particularly during her [second-year] performance review." ( Id., at ¶ 37.) Again, Theologis failed to take remedial action or conduct an investigation of Plaintiff's complaint.

In June 2012, Defendant promoted two more project coordinators, who were "significantly younger and less experienced" than Plaintiff. ( Id., at ¶ 39.) On June 22, 2012, Plaintiff filed her third complaint of discrimination with Theologis, who, for a third time, failed to take remedial action or conduct an investigation.

At some point, a fourth complaint was filed with Theologis, after which Defendants "forced [Plaintiff] to undertake illegal and/or improper billing to Horizon's clients and customers, " at the direction of Mathewson, among others, with the intent to damage Plaintiff's professional reputation and cause her additional stress and anxiety. ( Id., at ¶ 43.) In June 2012, due to this billing directive, Horizon's repeated refusal to provide assistance to Plaintiff, and Mathewson's continued hostility toward her, Plaintiff went on medical leave because of extreme stress and anxiety.

After Plaintiff returned to work, "the aforementioned discrimination had not been addressed." ( Id., at ¶ 47.) "As a result, the working conditions at Horizon became so intolerable that Plaintiff felt compelled to resign" in October 2012. ( Id. ) Finally, Plaintiff asserts that Defendants' "constructive discharge of [her] was a continuance of their discriminatory actions against [her] because of her age and for engaging in a protected activity." ( Id., at ¶ 48.)

B. Defendants' Motion

Generally, in support of their motion to dismiss Plaintiffs' Complaint for failure to state a claim, or to transfer venue, Defendants assert the following eight arguments: (1) Plaintiff's ADEA claim against Mathewson must be dismissed because the ADEA does not subject individuals to personal liability; (2) all discrete acts of discrimination alleged by Plaintiff that occurred prior to January 19, 2012 are time barred under the ADEA; (3) Plaintiff's ADEA discrimination claim must be dismissed because (a) Plaintiff was not qualified for a promotion, (b) Plaintiff did not suffer an adverse employment action, and (c) Plaintiff does not allege circumstances giving rise to an inference of discrimination; (4) Plaintiff has failed to state a hostile work environment claim as a matter of law; (5) Plaintiff's allegations do not constitute a basis for a retaliation claim; (6) Plaintiff's NYHRL claims against Horizon must be dismissed for the same reasons her counterpart claims under ADEA must be dismissed, and, in any event, this Court should decline to exercise supplemental jurisdiction over Plaintiff's state law claims; (7) Plaintiff's NYHRL claims against Mathewson must be dismissed because Plaintiff fails to allege that he had any ownership interest in, or control of, Horizon; and (8) this action must be transferred to the Southern District of New York pursuant to the forum selection clause contained in Plaintiff's employment agreement with Horizon. ( See generally Dkt. No. 8-9, at 8-20 [Defs.' Mem. of Law].)

Generally, in response to Defendants' motion, Plaintiff asserts the following eight arguments: (1) the continuing violations doctrine incorporates all discriminatory acts concerning the denial of promotions occurring prior to January 19, 2012; (2) this Court should not consider Plaintiff's performance evaluation or email communications with Theologis because they are not incorporated by reference in the Complaint; (3) Plaintiff has sufficiently alleged claims of age discrimination because (a) Plaintiff was qualified for her position and a promotion at all times, (b) Plaintiff suffered multiple adverse employment actions, and (c) the decision to subject Plaintiff to adverse employment actions arose under circumstances giving rise to the inference of discrimination; (4) Plaintiff has alleged sufficient factual content to establish a prima facie case of hostile work environment because (a) she alleged sufficient facts to plead a severe and pervasive work environment and (b) she alleged sufficient facts to show that she was subjected to hostility and abuse because of her age; (5) Plaintiff has alleged sufficient factual content to establish a prima facie case of retaliation because (a) Plaintiff engaged in protected activity as early as November 2011 and engaged in further protected activities thereafter, (b) Plaintiff was subjected to adverse employment actions subsequent to her complaints of discrimination, (c) a causal connection exists between Plaintiff's complaints and the adverse employment actions, and (d) the Complaint sufficiently alleges constructive discharge; (6) Mathewson can be held individually liable under NYHRL; (7) the choice of venue clause in unenforceable because this matter does not arise out of the employment agreement between Plaintiff and Horizon; and (8) in the alternative, Plaintiff requests leave to amend her Complaint pursuant to Fed.R.Civ.P. 15(a)(2). ( See generally Dkt. No. 13, at 6-19 [Pl.'s Opp'n Mem. of Law].)

Generally, in reply to Plaintiff's response, Defendants assert the following eight arguments: (1) Plaintiff's introduction of additional factual allegations should be disregarded; (2) the employment agreement's forum selection clause should be enforced; (3) all discrete acts of alleged discrimination that occurred before January 19, 2012 are time-barred; (4) Plaintiff's opposition does not strengthen the Complaint's inadequate claim of age discrimination; (5) Plaintiff has not refuted Defendants' argument that the facts as alleged do not constitute a hostile work environment claim; (6) Plaintiff has failed to identify any adverse employment action taken in response to her participation in a protected activity; (7) Mathewson ...

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