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Johnson v. Andy Frain Services, Inc.

United States District Court, E.D. New York

March 10, 2015

DEIRDRE C. JOHNSON, Plaintiff,
v.
ANDY FRAIN SERVICES, INC., DANE VONTOBEL, DANE DESOUZA, ROBERT DECOSTA, EDMOND QUICK, SCI COMPANIES CORPORATE HEADQUARTERS, Defendants.

DECISION AND ORDER

WILLIAM F. KUNTZ, II, District Judge.

In this pro se action, Plaintiff Deirdre C. Johnson ("Plaintiff') alleges that Defendants Andy Frain Services, Inc., Dane Vontobel, Dane DeSouza, Robert DeCosta, Edmond Quick, and SCI Companies Corporate Headquarters discriminated against her in violation of Title VII of the Civil Rights Act, the Age Discrimination in Employment Act ("ADEA"), 42 U.S.C. § 1981, the New York State Human Rights Law ("NYSHRL"), and the New York City Human Rights Law ("NYCHRL"). Defendant Andy Frain Services, Inc., ("Defendant") moved to dismiss Plaintiff's Third Amended Claim for Failure to State a Claim under Federal Rules of Civil Procedure Rule 12(b)(6).[1] For the reasons set forth below, Defendant Andy Frain Inc.'s Motion to Dismiss for Failure to State a Claim is GRANTED and Plaintiffs Third Amended Complaint is DISMISSED WITH PREJUDICE.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff is an "Asian/Pacific Islander" female who was 49 years old at the time of the events in question. Dkt. 56 ("Third Am. Compl.") at ¶ II D. From September 23, 2010 to June 23, 2011, she was employed by Defendant as a Fire Guard/Security Guard at the United States Tennis Association ("USTA") Billie Jean King National Tennis Center in Queens, New York ("the Center"). Id. at ¶1. Plaintiff allegedly held "two Fire Guard certifications... F94 and S95" as well as a valid NY State Security Guard license. Id. at ¶2.

According to Plaintiff's Third Amended Complaint, around May 23, 2010, [2] plaintiff was informed by Hartley C. White, a colleague of Plaintiff's, that Dane DeSouza, Regional Manager of the NYC area, wanted to fire [her] and had made harassing remarks about [her], " including "Why are you touching Ms. Johnson's and not Emeris?" Id. at ¶6, 15. At the time, Plaintiff "promptly dismissed these remarks as lack of professionalism on the part of Mr. DeSouza" and "[i]t was not until later that [she] realized that Mr. DeSouza was Purposely Harassing [her]." Id.

On approximately June 7, 2010, [3] Plaintiff had a meeting with DeSouza and Emeris Lacen, a colleague of Plaintiff. Id. at ¶8. Lacen was a younger worker who was "Hispanic/Black, " and who did not have the certifications required to work at the Center. Id. at ¶35. According to Plaintiff, Lacen had been in trouble with the company before, and on that day had been late, had not signed in properly, and had not been in dress uniform. Id. at ¶8.

At some point in June 2011, Lacen allegedly complained to DeSouza that Plaintiff was receiving favorable treatment by receiving additional shifts from White. Id. at ¶13. According to Plaintiff, this was not true. Id.

Further, Plaintiff alleges that "[t]he other guards [employed by Defendant at the site during the time she was there] were younger than [she was], except [Hartley C.] White." Id. at ¶33.

On June 23, 2010, [4] Plaintiff states she received a phone call from Edmond Quick, an off-site supervisor for Defendant, telling her that she was "NOT on a list made by the Client, [and] therefore [she] should not return to [the Center]." Id. at ¶14. When Plaintiff inquired by e-mail to DeSouza, she received a reply that "eventually included the word termination' and stated that there was no list from the Client." Id. at ¶16 (emphasis in original). Plaintiff received no response to another e-mail that she had sent to Dane Vontobel, a Vice-President for Andy Frain. Id. at ¶17. However, in September 2011, Plaintiff allegedly received a phone call asking if she could "help out at Stony Brook which surprised [her] because Mr. DeSouza used the phrase your termination' in his e-mail reply." Id. at ¶21.

Plaintiff alleges that she filled out a complaint with the Equal Employment Opportunity Commission ("EEOC") on September 12, 2011, and received a Right-to-Sue letter thereafter. Id. at ¶22, ¶27. Plaintiff also states that Robert DeCosta, "acting manager for the NYC office in January 2012, " submitted an Affidavit to the EEOC which "contained incorrect information." Id. at ¶25.

Plaintiff claims that DeSouza was fired on October 31, 2011, and unsuccessfully sued Defendant. Id. at ¶23. Plaintiff concludes by claiming that Dane Vontobel did not look into the facts when Plaintiff alleged that DeSouza was harassing her. Id. at ¶29.

Plaintiff brought her action in this Court on August 9, 2012. Dkt. 1. She amended her complaint on November 28, 2012, and again on November 1, 2013, and a third time on July 18, 2014. Dkts. 11, 37, 56. Plaintiff's Third Amended Complaint is substantively indistinguishable from her Second Amended Complaint, with the exception of the new inclusion of one specific harassing remark. Third Amend. Compl. at ¶6. On December 5, 2014, Defendant Andy Frain ("Defendant") (the only defendant who has been served) filed the instant Motion to Dismiss Plaintiff's Third Amended complaint with prejudice for failure to state a claim. Dkt. 59.

ANALYSIS

Defendant Andy Frain Services, Inc. has moved to dismiss Plaintiff's Third Amended Complaint with prejudice pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim. Plaintiff's Third Amended Complaint is substantively indistinguishable from her Second Amended Complaint, with the exception of the new inclusion of one specific harassing remark, ...


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