United States District Court, S.D. New York
Odette Robinson, Plaintiff, Pro se, East Orange, NJ.
For Macy's, Defendant: David H. Ganz, LEAD ATTORNEY, Bertone Piccini LLP, Hasbrouck, NJ; Thomas N. Ciantra, Cohen, Weiss & Simon, L.L.P., New York, NY.
For Macy's Union, Defendant: Thomas N. Ciantra, LEAD ATTORNEY, Cohen, Weiss & Simon, L.L.P., New York, NY.
MEMORANDUM DECISION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT WITHOUT PREJUDICE
Colleen McMahon, United States District Judge.
In June 2014, pro se plaintiff Odette Robinson (" Plaintiff"), a former employee of defendant Macy's, brought this action against her former employer, Macy's, and the union that represented her as a Macy's employee, Local 1-S RWDSU (" Local 1-S, " and together with Macy's, " Defendants") (sued here as " Macy's Union"). Plaintiff's pro se complaint alleges that both Macy's and the Union violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e et seq . (" Title VII") in connection with her employment. Plaintiff's Complaint alleges that both Defendants discriminated against her based on her race, age, national origin, and religion, and then retaliated against her when she complained about their discriminatory conduct.
Defendant Local 1-S moved under Fed.R.Civ.P. 12(b)(6) to dismiss Plaintiff's Complaint for failure to state a claim upon which relief can be granted. It argues that Plaintiff never exhausted its administrative remedies against the Union, which was never served with notice of her EEOC charge. Furthermore, it argues that Plaintiff's alleged duty of fair representation claim is time-barred.
For the following reasons, Defendant's motion is denied.
Plaintiff has filed a form complaint for employment discrimination on a form provided by the Clerk's Office in this district. (ECF No. 1 (" Compl.")). This form complaint provides a plaintiff with boxes to check in order to set forth a claim of employment discrimination.
In her Complaint, Plaintiff names both Macys' and her Union as defendants. She does not discriminate between them when assigning blame for misconduct. As against " Defendants" she has checked the box asserting claims for race (black), national origin (Jamaican), age (DOB 12-03-68), and religious (Christian) discrimination pursuant to Title VII. Compl. at 1, 3. Plaintiff checked the following boxes describing the allegedly discriminatory conduct of Defendants: " termination of my employment, " " failure to promote me, " " unequal terms and conditions of my employment, " and " retaliation." Id. at 2-3. Plaintiff alleged that the discrimination began sometime in late 2007 or early 2008, and continued throughout the four years of her employment, until she was fired in early 2012. Id. at 3.
Plaintiff has attached to her Complaint, and included by reference, the paperwork relating to her dealings with the Equal Employment Opportunity Commission (" EEOC"), which includes: (1) Plaintiff's EEOC Intake Questionnaire (Plaintiff's Affirmation in Opposition to Motion, Exhibit 1, dated June 26, 2012 (ECF No. 23 (" Intake Questionnaire")); and (2) Plaintiff's EEOC " Dismissal and Notice of Rights" letter, dated March 27, 2014. (Compl., Exhibit 1 (" Notice of Right to Sue letter")).
In December of 2007, Macy's hired Plaintiff as a floor salesperson. Compl. at 3. Macy's allegedly recruited Plaintiff from another company, promising Plaintiff a higher salary. Id. However, Macy's purportedly lied about the increase in pay, denied Plaintiff the amount of pay she requested, and stated that Plaintiff was receiving the maximum amount of pay Macy's paid for employees in Plaintiff's position. Id.
Approximately two months later, Macy's hired another individual of a different race and national origin in a role similar to Plaintiff's. Id. Macy's paid this individual an hourly wage $2.50 higher than Plaintiff's hourly wage. Id.
Plaintiff alleged that she was continually harassed, spoken to in derogatory terms, and denied access to union assistance by Macy's, and, as a result of Plaintiff filing a grievance with Local 1-S, Macy's denied Plaintiff a promotion to the position of " Counter Manager." Id. Plaintiff further alleged that Local 1-S did not defend Plaintiff when she sought their assistance. Id.
On June 26, 2012, Plaintiff filed an Intake Questionnaire with the EEOC, alleging that she was discriminated against by Macy's, Local 1-S, and Carol's Daughter, the company whose cosmetics Plaintiff sold at Macy's. Intake Questionnaire at 5. Plaintiff alleged she was discriminated against based on her race, national origin, and religion, and was retaliated against by Macy's after filing two grievances against Macy's with Local 1-S. Id. at 2, 7.
In the Intake Questionnaire, Plaintiff described the actions taken against her by Defendants, and why she believed those actions were discriminatory.
Macy's hired Plaintiff on December 20, 2007, for the position of Beauty Advisor/Sales Associate for the Carol's Daughter sales counter. Id. at 5. Prior to accepting the position of Beauty Advisor/Sales Associate, Plaintiff negotiated with Macy's in an attempt to obtain a Counter Manager position. Id. Macy's denied Plaintiff that position, stating that there were no Counter Manager positions available in the cosmetics department. Id. Plaintiff alleged that this was a lie. Plaintiff questioned a member of Macy's management, supervisor Cynthia Lewis, and was told that if she wanted to obtain the Counter Manager position she would have to " work [her] way up." Id. Another Macy's employee, human resources supervisor Michelle White, also denied Plaintiff's request for the Counter Manager position.
Approximately 1-2 months later, Macy's hired Robin Martin, an employee of a different race and national origin than Plaintiff, to a similar Beauty Advisor/Sales Associate position. Id. at 2, 5. Macy's allegedly discriminated against Plaintiff on the basis of race because Plaintiff was paid less money per hour than Martin. Id. at 5. Martin received a higher pay rate ($14.50 per hour) than Plaintiff ($12.00 per hour), after both Michelle White and Cynthia Lewis informed Plaintiff that Plaintiff was getting paid the highest possible rate per hour. Id. at 5.
For approximately the following year and half, Plaintiff worked as a Sales Associate for Carol's Daughter. Id. at 6. Plaintiff alleged that she excelled in the Sales Associate role, where she was recognized for numerous outstanding achievements, and for breaking sales records. Id. Additionally, Plaintiff trained newly hired employees, coached and developed other employees, and " managed the department." Id.
During this time, however, Plaintiff alleged she experienced various " discriminatory attacks." Id. at 7. Plaintiff alleged she received derogatory comments from Macy's employees about her Jamaican heritage, including comments about her accent and the way she dressed. Id. Plaintiff further alleged that Macy's employees commented on her religious " head wraps, " stating that the head wraps did not look good and chased customers away, and questioned Plaintiff for wearing the head wraps. Id.
Macy's continued to deny Plaintiff the Counter Manager position, and instead hired another person named Donna Fennell to fill that role. Id. Once Fennell was hired, Plaintiff alleged that Fennell contributed towards the discriminatory attacks on Plaintiff. Plaintiff alleged that because she can speak in tongues, a " gift" used for spiritual purposes in her religion, Fennell called her the devil. Id. at 7. Furthermore, in November of 2011, Fennell complained to the Macy's human resources team, and to Edwin Batista, a representative for Carol's Daughter, that Plaintiff physically pushed her. Id. at 2, 6.
Plaintiff alleged that Fennell lied about the incident. Moreover, when Plaintiff submitted her own complaints about Fennell to Albania Gonzales, a human resources manager in the Macy's cosmetics department, and Local 1-S, her complaint " fell on deaf ears." Id. at 6. Plaintiff filed two ...