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Mira v. Argus Media

United States District Court, S.D. New York

March 29, 2017

ARGUS MEDIA, et al., Defendants.


          RICHARD J. SULLIVAN, District Judge

         Plaintiff Leslie Moore Mira (“Mira”) brings this action against Argus Media (“Argus” or “Argus Media”) and Argus employees John Demopoulos (“Demopoulos”), Ian Michael Stewart (“Stewart”), and Miles Weigel (“Weigel”), alleging employment discrimination, a hostile work environment, and retaliation in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) (“Title VII”), the New York State Human Rights Law (N.Y. Exec. L. § 290 et seq.) (“NYSHRL”), and the New York City Human Rights Law (N.Y.C. Admin. Code § 8-101 et seq.) (“NYCHRL”). Now before the Court is Defendants' motion to dismiss the Complaint for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). For the following reasons, Defendants' motion is granted.

         I. Background

         A. Facts[1]

         Plaintiff Leslie Moore Mira, a naturalized U.S. citizen of Mexican descent, began working as a reporter at Argus Media in January of 2013. (Compl. ¶ 1.) She had recently resigned from a similar position at Platts/McGraw Hill (“Platts”) after allegedly experiencing and complaining about sexual harassment there. (Id.) Mira's new coworkers were friendly at first, but after a month or two, they became more “reserved.” (Id. ¶ 3.) According to the Complaint, Mira's colleagues at Argus gradually marginalized her “[b]ecause [she had] expressed harassment-related concerns [while working] at Platts.” (Id.) Although the Complaint does not precisely establish the connection between Mira's alleged marginalization at Argus and her experience at Platts, it appears to suggest that Platts first retaliated against Mira by maligning, stalking, and surveilling her, and then, after Mira left Platts and began working at Argus, Platts somehow induced employees at Argus to treat Mira likewise. (See Id. ¶ 1 (alleging retaliation by Platts); id. ¶ 2 (describing Platts and Argus as “competitors but also business collaborators” that “periodically meet”); id. ¶ 3 (“Because of having expressed harassment-related concerns at Platts and [the] ensuing and widespread campaign of retaliation at Platts, plaintiff soon became marginalized at Argus.”).) The Complaint does not allege any facts that clearly explain how Mira arrived at the conclusion that her Argus colleagues were acting at the behest of her former employer.

         Between the spring and fall of 2013, Mira experienced what she alleges were numerous instances of surveillance, stalking, or intimidation. On two occasions in the spring and summer of 2013, Mira observed what she believed to be “photographic activity” aimed at her bedroom windows from outside by an unrecognized person. (Id. ¶ 4.) On the morning after one of these occasions, Mira overheard Stewart, an Argus coworker and a Defendant in this case, say “she's here” on the phone as she entered the office. (Id.; see also Id. at 4.) The Complaint implies that Mira saw some connection between the “photographic activity” and Stewart's remark, although it does not specify the nature of the connection or explain how Mira drew it. On another occasion, the morning after Mira and a friend danced and “engaged in some intimate activity” at her apartment, Stewart “greeted [Mira] . . . in a highly personal, sexualized voice tone, ” and Demopoulos, a senior markets manager at Argus and another Defendant in this case, later joked about going to a disco. (Id. ¶ 7; see also Id. at 4.) Again, the Complaint suggests that Stewart's and Demopoulos's comments were intended to be veiled references to Mira's private affairs. Most of the remaining allegations in the Complaint follow a similar pattern: Mira observed something or overheard some remark at work that she took to be related to her private life, which in turn apparently led her to conclude that her coworkers were stalking her and subjecting her to surveillance. (See, e.g., id. ¶ 9 (“Plaintiff believes third parties dispatched by defendants stalked plaintiff and that conversations were recorded.”).) In August of 2013, for example, Mira saw what she believed was white splatter from a paintball gun in the office elevator shaft, which she took to be an allusion to a comment she had made to her home contractor the day before about her nerves being “shot” from stress. (Id. ¶ 8.) In September, Stewart and Demopoulos joked about “hunting for badgers, ” which Mira took to be a reference to a phone conversation she had had with a friend about an upcoming vacation to Madison, Wisconsin, where the University of Wisconsin Badgers happen to play. (Id. ¶ 9.) Mira later saw a cockroach in her apartment “[w]ithin days” of a phone conversation with a friend about a cockroach on the sidewalk. (Id. ¶ 14.) And in November, Argus participated in a fundraiser for the Committee to Protect Journalists, which Mira took to be an allusion to another phone conversation with a friend about protecting journalists. (Id. ¶ 15.)

         The Complaint also makes a few more pointed allegations about surveillance. Most significantly, it asserts that “Argus officers from London and Houston lawyers and Platts management” all met together at an unspecified place in New York in May of 2013; after the meeting, Argus officers “looked in [Mira's] direction” as they entered the office, and Argus general counsel Lucy Sladojevic joked about “going into surveillance because it was a flourishing business” and made a self-deprecating remark about drawing the curtains in Sladojevic's hotel room “as a ‘kindness' so as not to expose New Yorkers to her body.” (Id. ¶ 5.) Around the same time, Weigel, a senior vice president at Argus and a Defendant in this action, told Mira that he would “investigate” her, then later denied having made the statement. (Id. ¶ 6; see also Id. at 4.) In September of 2013, Demopoulos “sought to justify in [an] audible closed door meeting to a resigning reporter why [Mira] was under surveillance.” (Id. ¶ 11.) The Complaint further alleges that an unknown man near Mira's apartment once told her to “be careful” because unidentified people were “building a case” against her. (Id. ¶ 12.) Finally, in March of 2014, an Argus coworker “quickly minimized her computer screen, ” which had an image that “bore [an] identical resemblance to [Mira's] bedroom.” (Id. ¶ 17.)

         The Complaint makes one allegation that touches on discrimination on the basis of national origin. Specifically, in the fall of 2013, “[i]n what had by then . . . become a deeply hostile environment” for Mira, Demopoulos “commented on [the] success that an ancestor of [another employee's] had had in driving Mexicans out of Texas.” (Id. ¶ 13.) The Complaint does not give any context for the comment or indicate whether Demopoulos directed it at Mira.

         Finally, the Complaint makes the following allegations about Mira's performance reviews and about the circumstances surrounding her termination. In September of 2013, Mira received a negative performance review from two Argus supervisors. (Id. ¶ 10.) The review “contained one error of fact, ” and “some [of its] criticism seemed out of context or exaggerated, ” but “[o]ther criticism was valid and on-point.” (Id.) Two months later, one of the same supervisors told Mira that “her work had improved significantly and was no longer cause for concern.” (Id. ¶ 15.) In January of 2014, however, Mira received another negative performance review, and was told that the prior positive statements resulted from a misunderstanding between the two supervisors. (Id.

         ¶ 16.) Four months later, in May of 2014, Mira emailed Demopoulos and the two supervisors to “ask[] in [an] open-ended, non-accusatory manner whether they were aware of any stalking and surveillance activity against [her].” (Id. ¶ 18.) Although the Complaint does not indicate whether the email specifically mentioned Weigel's alleged comment about “investigating” Mira, it asserts that a human resources manager responded to Mira's email and said she would “probe” the meaning of that comment. (Id.) About a week after sending the email, Mira was terminated. (Id. ¶ 19.)

         B. Procedural History

         On December 22, 2015, Mira, a U.S. citizen and resident of New York who is proceeding pro se, filed the Complaint in this action against Argus Media and Argus employees Demopoulos, Stewart, and Weigel, asserting violations of Title VII, the NYSHRL, and the NYCHRL.[2] (Doc. No. 2.) After granting a number of adjournments to allow Mira to effect service on all Defendants, the Court held a conference on June 30, 2016 to discuss Defendants' contemplated motion to dismiss and Mira's request for leave to file an amended complaint. (See Doc. No. 36.) Although the Court gave Mira until August 11, 2016 to file an amended complaint (see Doc. Nos. 36, 39) she never did so; instead, she submitted several letters requesting that this case be stayed pending resolution of her request that Judge McMahon take this case as related to a separate suit that Mira had filed against her earlier employer, Platts. (See Doc. Nos. 42, 45, 52, 55.) The Court denied those requests, finding a stay unnecessary.[3] (See Doc. Nos. 44, 54, 57.) Defendants filed their motion to dismiss on August 29, 2016 (Doc. No. 46), and the motion was fully briefed on October 11, 2016 (Doc. No. 59).

         Before turning to the analysis, the Court must address two issues engendered by Mira's submissions. First, Mira's opposition brief includes a host of new facts that were not alleged in her Complaint, as well as at least one new legal theory. (See Opp'n 2 (“Plaintiff respectfully submits this opposition brief with additional supporting facts . . . .”); id. at 1-2 (seeming to add a new conspiracy-related claim under 42 U.S.C. § 1985, and perhaps a claim under 42 U.S.C. § 1981).) The Court will not consider these new facts and claims in deciding Defendants' motion to dismiss. See Friedl v. City of New York, 210 F.3d 79, 83-84 (2d Cir. 2000); Fonte v. Bd. of Managers of Cont'l Towers Condo., 848 F.2d 24, 25 (2d Cir. 1988); McIntosh v. United States, No. 14-cv-7889 (KMK), 2016 WL 1274585, at *17 (S.D.N.Y. Mar. 31, 2016).[4] Second, after Defendants' motion was fully briefed, Mira made two further submissions. On October 31, 2016, Mira once again requested leave to amend her Complaint in this case to include new allegations about a conspiracy between Platts and Argus, as well as new allegations contained in an email and an affidavit. (Doc. No. 64.) The Court denied the request without prejudice to renewal following resolution of Defendants' motion to dismiss. (Doc. No. 65.) On December 29, 2016, Mira nonetheless filed the email and affidavit that she had referenced in her request. (Doc. No. 66.) The Court will likewise not consider these documents in deciding Defendants' motion. See Payne v. Malemathew, No. 09-cv-1634 (CS), 2011 WL 3043920, at *2 n.3 (S.D.N.Y. July 22, 2011) (“[N]either a memorandum of law [containing new facts] nor an affidavit are properly considered in connection with a motion to dismiss.”) (citing Friedl, 210 F.3d at 83-84).

         II. Legal Standard

         To withstand a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint must “provide the grounds upon which [the] claim rests.” ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007); see also Fed. R. Civ. P. 8(a)(2) (“A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief . . . .”). To meet this standard, a plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         In reviewing a Rule 12(b)(6) motion to dismiss, a court must accept as true all factual allegations in the complaint and draw all reasonable inferences in favor of the plaintiff. ATSI Commc'ns, 493 F.3d at 98. That tenet, however, “is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. Thus, a pleading that offers only “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. If the plaintiff “ha[s] not nudged [its] claims across the line from conceivable to plausible, [its] complaint must be dismissed.” Id. at 570.

         Where a plaintiff proceeds pro se, a court must liberally construe the complaint and interpret it to raise the strongest arguments that it suggests. Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). “The policy of liberally construing pro se submissions” arises out of the understanding that “[i]mplicit in the right to self-representation is an obligation on the part of the court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training.” Id. “[D]ismissal of a pro se complaint is nevertheless appropriate where a plaintiff has clearly ...

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