United States District Court, E.D. New York
DARREL HAGGOOD, JASON NATHANIEL, and SHAKEERA HODGE, Plaintiffs,
RUBIN & ROTHMAN, LLC, MARY LACOSTE, and KATHIE RUSSO, Defendants
For Darrel Haggood, Jason Nathaniel, Shakeera Hodge, Plaintiffs: Neil Frank, LEAD ATTORNEY, Peter Arcadio Romero, Frank & Associates, P.C., Farmingdale, NY.
For Rubin & Rothman, LLC, Mary Lacoste, Kathie Russo, Defendants: Jaime Lauren Greenblatt, Rebecca R. Embry, Landman Corsi Ballaine & Ford P.C., New York, NY; Jennifer Nicole Self, Landman Corsi Ballaine & Ford, New York, NY.
Sandra J. Feuerstein, United States District Judge.
On January 16, 2014, plaintiffs Darrel Haggood (" Haggood"), Jason Nathaniel (" Nathaniel") and Shakeera Hodge (" Hodge") (collectively, " plaintiffs") filed an employment discrimination complaint against defendants Rubin & Rothman, LLC (" R& R"), Mary Lacoste (" Lacoste") and Kathie Russo (" Russo") (collectively, " defendants"), alleging discrimination on the basis of race, and retaliation, in violation of Title VII of the Civil Rights Act of 1964 (" Title VII"), 42 U.S.C. § § 2000e, et seq .; Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1981 (" Section 1981"); and the New York State Human Rights Law (" NYSHRL"), N.Y. Exec. Law § § 296, et seq . On or about April 4, 2014, plaintiffs filed an amended complaint against defendants, alleging discrimination on the basis of race, retaliation and a hostile work environment in violation of Title VII, Section 1981 and the NYSHRL. Defendants now move to dismiss plaintiffs' claims against them pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim for relief. In the final sentence of their memorandum of law in opposition to defendant's motion to dismiss, plaintiffs " request leave to amend their complaint in a manner consistent with the Court's opinion[, ]" (Plf. Mem. at 21), in the event " the Court should find in favor of Defendants on any argument." (Id.) For the reasons set forth below, defendants' motion is granted and plaintiffs' request for leave to amend their amended complaint is denied.
A. Factual Allegations
R& R is a consumer collection law firm with is principal place of business in Islandia, New York. (Am. Compl., ¶ ¶ 14, 19).
At all relevant times, Lacoste was R& R's director of operations and Russo was R& R's collection floor manager. (Am. Compl., ¶ ¶ 17-18).
1. Allegations of Hodge and Nathaniel
In or about September 2007, Hodge commenced employment at R& R as a collector in the Collection Department. (Am. Compl., ¶ 26).
In or about October 2008, Amanda Gonzalez (" Gonzalez"), presumably a co-worker of Hodge's, was " reprimanded for using the word 'nigger' on the collection floor in front of African American employees" and was told by Lisa Desz (" Desz"), one of R& R's managers, to refrain from using that word " because it was offensive and not appropriate for the workplace." (Am. Compl., ¶ 28).
Plaintiffs allege that " [o]n or about January 7, 2009, used [sic] the phrase 'nigger knocking' in the presence of  Hodge. Gonzalez then asked  Hodge if she ever heard of 'nigger knocking.'  Hodge informed Gonzalez that she found the phrase offensive." (Am. Compl., ¶ 29). Later that same date, Hodge complained to Lacoste about Gonzalez's use of that phrase on the collection floor. (Id., ¶ 30). In Hodge's presence, Lacoste " again asked Gonzalez to refrain from using that term in the office because it is offensive[, ]" but defendants failed to otherwise take any " disciplinary action to eradicate the racial harassment taking place in [R& R's] offices." (Id., ¶ 31).
" On or about October 2010, Gonzalez asked  Hodge's supervisor, Brad Kimble ['Kimble'], 'What's up nigger?'" (Am. Compl., ¶ 32). According to plaintiffs, " [d]efendants failed to take appropriate disciplinary action to correct Gonzalez's third known use of racially offensive language on  R& R's premises." (Id.)
On or about July 1, 2011, after Hodge asked whether " he would like to contribute to a collection for a pregnant co-worker, " Raymond Mendez (" Mendez") responded, " 'Nah nigga, we are doing one with Carina.'" (Am. Compl., ¶ 33). When Hodge asked Mendez " to refrain from using that term because it was offensive[, ] Mendez replied[, ] 'Should I call you niggarette then?'" (Id., ¶ 34). Hodge again " asked Mendez to refrain from using such offensive language." (Id.) That same afternoon, Hodge " reported Mendez's comment to several of her supervisors, including  Lacoste and Russo." (Id., ¶ 35).
On July 6, 2011, Hodge " filed a formal complaint regarding Mendez's use of racially offensive language on the collection floor on July 2 [sic], 2011." (Am. Compl., ¶ 36). Although Mendez admitted to using the racially offensive terms while speaking with Hodge on the collection floor, " [d]efendants failed to take appropriate disciplinary actions to eradicate the racial harassment taking place in its offices." (Id., ¶ ¶ 37-38).
In or about July 2011, Nathaniel commenced employment as a collector in R& R's Collection Department. (Am. Compl., ¶ 77).
On or about August 10, 2012, when Hodge " spoke briefly with  Nathaniel while [she] was sending a fax and  Nathaniel was waiting for a call to be answered[, ] Desz immediately ordered [them] to stop talking" (" the fax machine incident"). (Am. Compl., ¶ 39; see also id., ¶ 79 [" On or about August 10, 2012,  Nathaniel engaged in a brief conversation with  Hodge while  Hodge was sending a fax and  Nathaniel was waiting for a call to be answered * * * [and] Desz immediately ordered [them] to stop talking." ]) Plaintiffs allege, " [u]pon information and belief[, ] [that] Desz did not reprimand non-African American employees for talking while sending a fax." (Id., ¶ ¶ 39, 79).
On or about August 14, 2012, Hodge " made a formal complaint about the fax machine incident * * *." (Am. Compl., ¶ 40). According to plaintiffs, Lacoste (1) " interviewed several non-African American employees who were not involved in the [fax machine] incident[, ]" but did not interview Nathaniel, (id., ¶ ¶ 41, 80); and (2) reprimanded Hodge and Nathaniel for talking at the fax machine, but not Desz " for discriminatorily reprimanding [them][, ]" (id., ¶ ¶ 42, 81).
On or about September 4, 2012, Hodge complained to Lacoste " that all of the African American employees were seated in a segregated area[, ]" but Lacoste " failed to address [her] complaint of racial segregation." (Am. Compl., ¶ 43).
On or about October 11, 2012, Frank & Associates, P.C. informed R& R that they were representing Hodge on her racial discrimination claims against it (Am. Compl., ¶ 44).
On or about December 11, 2012, Kimble asked Hodge " to escort another employee, Vanetta Harris ['Harris'], outside to help calm [her] down[, ]" following a 'Verbal altercation with Desz[.]" (Am. Compl., ¶ 45). Upon returning to the building, Russo confronted Hodge and Harris and asked, " 'Can't you all just do some work?'" (Id., ¶ 46). When Hodge attempted to explain what had happened, Russo refused to listen, (id., ¶ 47), and prevented Kimble from entering the area where they were talking (" the December 2012 incident"). (Id., ¶ 49). During the ensuing conversation with Russo, Hodge also complained that on or about November 29, 2012, " [d]efendants had sent six (6) African American employees home for wearing jeans to the office while a client was present, " but did not send Rissa Nesbitt (" Nesbitt"), a non-African American employee who was also wearing jeans in the office while a client was present, home or otherwise discipline her in any manner. (Id., ¶ 48).
" On December 13, 2012, without conducting an investigation, [defendants falsely accused  Hodge of engaging in a verbal altercation with  Russo on December 11, 2012, gave her a written warning, and recommended that she contact  R& R's Employee Assistance Program ['EAP'] for anger management training * * *." (Am. Compl., ¶ 50). According to plaintiffs, " [t]his was the first written warning  Hodge received in her five years of employment with  R& R[, ]" (id.); Russo " was not accused of engaging in a verbal altercation, was not given a written warning, and was not told to contact the [EAP] for anger management training[, ]" (id., ¶ 51); and " Desz and Harris were not written up for the [December 2012] incident[, ]" (id., ¶ 52). Plaintiffs allege, " [u]pon information and belief, [that] non-African American employees were involved in verbal altercations on  R& R's premises, but were not written up for those incidents." (Id., ¶ 53).
Plaintiffs allege: (1) that Hodge has not received a raise or performance bonus since the December 2012 incident, " purportedly because of a 'wage freeze' instituted by  R& R[, ]" (Am. Compl., ¶ 54); and, (2) " [u]pon information and belief, [that] since December 2012,  R& R has given several employees raises and performance bonuses, and hired new employees at significantly higher rates of pay than its current employees, despite the alleged 'wage freeze[, ]'" (id., ¶ 55).
2. Allegations of Haggood and Nathaniel
On or about January 31, 2012, Haggood commenced employment as a collector in R& R's Collection Department. (Am. Compl., ¶ 57).
In or about August 2012, Haggood and Nathaniel were members " of the Dormant Judgment Group ['DJG'], managed by Kimble, an African American male[, ] * * * comprised mainly of African American employees, and * * * seated in an area segregated from non-African American employees." (Am. Compl., ¶ ¶ 58, 78).
Plaintiffs allege that during the week of August 13, 2012, while Haggood and Nathaniel were sitting with two (2) other African American employees during a break, Desz " stood up and glared at them[, ]" which made them " extremely uncomfortable because they were being watched at all times, including personal break time." (Am. Compl., ¶ ¶ 59, 82).
On or about August 17, 2012, while waiting for a call to be answered, Haggood asked a co-worker whose grandmother had died how she was doing, for which Desz berated him. (Am. Compl., ¶ ¶ 60-61). According to plaintiffs, " [a]t the same time, non-African American co-workers were engaging in personal conversations during work hours on the collection floor." (Id., ¶ 61). Later that morning, " Desz switched seats with another employee, Rosette Telemaque, so that she could watch  Haggood work[, ]" (id., ¶ 62), and then " had another manager * * * sit in Telemaque's seat so that [she] could watch  Haggood work[, ]" (id., ¶ 63). Plaintiffs allege, " [u]pon information and belief, [that] Desz singled out African American employees for excessive scrutiny." (Id., ¶ 65).
" In or about the middle of August 2012, the [DJG], including  Haggood and Nathaniel, had a meeting with Kimble in the lunch room[, ]" to which Desz listened " through the cafeteria door." (Am. Compl., ¶ 66, 83). On or about August 22, 2012, Haggood (1) " made a formal complaint to  Russo that Desz listened to the [DJG] meeting through the cafeteria door[, ]" (id., ¶ 67); and (2) asked Nathaniel " a work-related question about the foreclosure process, because Kimble was not available[, ]" for which they were both " berated" by Desz for engaging in conversation, (id., ¶ ¶ 68, 84).
According to plaintiffs, at some unspecified time, Haggood complained to Lacoste " that Desz did not allow African American employees to ask each other work related questions[, ]" (Am. Compl., ¶ 69), but Lacoste " failed to take appropriate disciplinary actions against Desz * * *[, ]" (id., ¶ ¶ 71, 86). Plaintiffs allege, " [u]pon information and belief[:]" (1) that " non-African American employees were not berated for asking each other work related questions[, ]" (id., ¶ ¶ 70, 85); and (2) that " other managers of  R& R did not prohibit employees from asking each other work related questions and having brief conversations while waiting for calls to be answered[, ]" (id., ¶ 72).
Plaintiffs allege that " [o]n or about September 4, 2012, [defendants dismantled the [DJG] and transferred  Haggood [and Nathaniel] to a different collections group, under circumstances giving rise to an inference of discrimination, after Kimble filed a claim of race discrimination against  R& R." (Am. Compl., ¶ ¶ 73, 87). According to plaintiffs, Haggood and Nathaniel were " transferred to another African American supervisor, Wright[, ]" (id., ¶ ¶ 74, 88), as a result of which they " lost the opportunity to earn bonus compensation based on [their] collection goals in the [DJG]." (Id., ¶ ¶ 75, 89).
" In or about early November 2012, Defendant reduced the number of clients that were assigned to  Nathaniel, which made it nearly impossible for [him] to reach his collection goals and earn the performance bonuses associated with achieving those goals." (Am. Compl., ¶ 90). According to plaintiffs, " [t]hroughout November 2012,  Nathaniel asked  Russo and his then Manager, Rich Szollosi ['Szollosi'], a white male, for help in reaching his collection goals[, ]" (id., ¶ 91), but they " ignored [his] requests and provided no assistance or advice to help him reach his collection goals[, ]" (id.).
In or about January 2013, Nathaniel was interviewed by the EEOC with respect to Kimble's discrimination claim ...