United States District Court, S.D. New York
OPINION AND ORDER
Edgardo Ramos, U.S.D.J.
se Plaintiff Jane Davis (“Plaintiff”) brings
this action against Goodwill Industries of Greater New York
and New Jersey, Inc. (“Defendant” or
“Goodwill”), alleging employment discrimination
and retaliation. Before the Court is Defendant's motion
to dismiss the Amended Complaint. For the reasons discussed
below, Defendant's motion is GRANTED in part and DENIED
in part. Plaintiff will be given an opportunity to file a
Second Amended Complaint.
is a 68-year old black female who is currently residing in
New York City. Doc. 5 at 3; Doc. 34 at 2. From December 18,
2013 to December 15, 2014, Plaintiff was employed by Goodwill
at one of its Manhattan locations, 2231 Third Avenue, as a
part-time employee. Doc. 5 at 7. At all relevant times during
her employment, Plaintiff's supervisor was Judith Ramos,
Manager of the store (“Manager Ramos”).
Id. Plaintiff was also regularly supervised by
Victor De La Torre, Assistant Manager of the store
(“Assistant Manager De La Torre”) and Guillermina
Despiau, Goodwill's District Manager (“District
Manager Despiau”). Doc. 5 at 7; Doc. 34 at 2.
alleges that while she worked at Goodwill, she was subjected
to a number of discriminatory practices based on her race,
age, sex, and disability. Doc. 5-1 at 40. However,
Plaintiff's primary allegation is that she was treated
less favorably than the other employees because she is black
and not Hispanic. Doc. 5-2 at 1. Although the Court cannot
recount each and every incident described in Plaintiff's
lengthy and, at times, confusing submissions, the most
salient aspects of Plaintiff's experience are highlighted
claims that the discriminatory treatment began soon after she
started working at Goodwill, citing a number of instances in
which she was held to stricter rules than the Hispanic
employees. For example, on her first day, December 18, 2013,
Manager Ramos advised Plaintiff that the company's dress
code prohibited employees from wearing jeans, leggings, light
colored pants, hats, and other headwear. Doc. 5 at 7. Two
months later, on February 18, 2014, Manager Ramos directed
Plaintiff to remove her knitted hat during her shift, because
it was against the dress code policy. Id. at 23;
Doc. 5-1 at 2. However, Plaintiff alleges that she repeatedly
witnessed the Hispanic employees wearing prohibited items
during their shifts without receiving any kind of warning or
reprimand, and that Manager Ramos herself often violated the
dress code policy. Doc. 5 at 23. As another example, on March
17, 2014, Manager Ramos confronted Plaintiff about saving
items behind the register for later purchase, advising her
that she was prohibited from doing so in the future. Doc. 5-2
at 3. Plaintiff claims that Hispanic employees regularly
saved items for later purchase, however, without receiving
any sort of discipline or warning. Id. Plaintiff
also cites a number of instances in which Hispanic employees
were not reprimanded for being late or absent, although she
further alleges that Hispanic employees regularly received
favorable treatment as compared to non-Hispanic employees.
Plaintiff claims that Goodwill hired black employees like
herself to work part-time, rather than full-time, in order to
avoid providing them the benefits of a full-time employee.
Doc. 34 at 3. Plaintiff also alleges that Hispanic employees
were allowed to take weekends off, while she had to work;
that Hispanic employees were allowed to take breaks, while
she was not; and that Hispanic employees were never required
to work on a floor of the store alone, while she regularly
was asked to do so. Id.; Doc. 5-2 at 9, 12, 14.
Plaintiff additionally alleges that Manager Ramos often made
comments referring to “we Puerto Ricans.” Doc. 5
also describes a number of incidents in which she felt she
was singled out or treated unfairly. For example, on January
17, 2014, Manager Ramos spoke to Plaintiff about coming in
late, even though a number of other employees were similarly
late due to transit delays. Id. at 10. In addition,
on May 5, 2014, Manager Ramos confronted Plaintiff in the
break room and falsely accused her of missing her entire
shift the previous day. Id. at 13. Plaintiff states
that she believes Manager Ramos made the false accusation
because Plaintiff is an “older person” who
“probably would not remember whether” she worked
the day before. Id. Plaintiff also describes an
incident where she felt “embarrassed and
humiliated” in front of the customers. Id. at
11. Manager Ramos allegedly called to her through the
intercom, stating that she needed to come down to purchase
the items she saved by the register; when Plaintiff arrived
at the register, there were several baskets containing items
other employees intended to purchase. Id. Moreover,
Plaintiff alleges that most employees referred to her as
“Ms. Jane, ” which she seems to suggest is a
reference to her age. Id. at 34.
claims that Goodwill's discriminatory treatment was
directed not just at her and the other non-Hispanic
employees, but also towards other black and non-Hispanic
customers of the store. For instance, on March 17, 2014,
Plaintiff alleges that one of Goodwill's security guards,
Lonnell Sessoms, caught two Hispanic males stealing a bag of
shoes. Id. at 11. When Manager Ramos arrived, she
spoke to the two men in Spanish and eventually advised
Sessoms that the men did not know what they were doing and
that no further action was required. Id. Plaintiff
claims that, by contrast, when black customers were caught
stealing, they were taken to an area in the back of the
store, charged, and prohibited from entering the store again.
Id. Similarly, Plaintiff alleges that black
customers were regularly charged higher prices for items than
Hispanic customers, Doc. 5-2 at 4, and that several black
customers have publicly accused Manager Ramos of being a
racist, id. at 13.
7, 2014, Plaintiff met with Manager Ramos and told her that
she felt she was being treated unfairly. Doc. 5 at 13-14.
Specifically, Plaintiff told Manager Ramos that she treated
the Hispanic employees differently than the black employees.
Doc. 5-2 at 6-7. Plaintiff stated that she did not feel
comfortable working in a hostile environment and thus
requested a transfer to a different location. Doc. 5 at
13-14; Doc. 5-2 at 5. Manager Ramos told Plaintiff that she
would have to speak with District Manager Despiau regarding a
transfer. Doc. 5 at 13.
17, 2014, District Manager Despiau was visiting the store,
and Plaintiff asked to speak with her. Doc. 5-2 at 5.
Plaintiff told Despiau that she felt she was being treated
unfairly and requested a transfer to another location. Doc. 5
at 12. Despiau asked Assistant Manager De La Torre, who was
also present, whether Plaintiff had been treated unfairly,
and he responded in the negative. Id. Despiau then
informed Plaintiff that she was not transferring anyone at
that time. Id. Plaintiff asserts that, contrary to
Despiau's representation, other Hispanic employees were
granted transfer requests.
alleges that Goodwill retaliated against her soon after she
complained about discriminatory treatment. Namely, on May 22,
2014, Manager Ramos called Plaintiff into her office and gave
her an “informal” written warning for arriving
late to work that day. Doc. 5-2 at 38. According to
Plaintiff, Manager Ramos also informed her that “any
problems should remain in the office . . . with her
and” Assistant Manager De La Torre. Doc. 5-1 at 2.
Plaintiff assumed Manager Ramos was referring to the
complaint she made to District Manager Despiau five days
signed the informal warning in protest, for what appears to
be a number of reasons. First, Plaintiff claims that she and
other employees were late that day as a result of
miscommunication during the scheduling process. Doc. 5-2 at
6. Plaintiff believed she was scheduled to come in at 11:30
a.m. instead of 9:30 a.m., but her hours were switched with a
Hispanic employee's hours without her knowledge.
Id. Second, Plaintiff claims that management was
required, pursuant to Goodwill's Employee Handbook, to
counsel her at least two times regarding any recurring
problem in the workplace before filing such a report, and
that it had failed to do so. Id. at 7. Finally,
Plaintiff asserts that Hispanic employees who were known to
be habitually late were never similarly reprimanded.
Id. at 6. One Hispanic employee, Benny Moret, even
admitted to “just being a late person” and, to
Plaintiff's knowledge, he never had any disciplinary
action taken against him. Id.
6, 2014, Plaintiff filed a charge with the EEOC, complaining
of discrimination in the workplace based on race, age, and
disability. Doc. 5 at 38-40; Doc. 5-1 at 1. The EEOC sent a
Notice of Charge to Goodwill on June 9, 2014, stating that it
required no action from Goodwill at that time. Doc. 5-1 at
Plaintiff alleges that Goodwill further retaliated against
her for filing the EEOC charge.
23, 2014, Plaintiff visited her doctor's office because
she was not feeling well. Doc. 5 at 26; Doc. 5-2 at 10-11,
17. The doctor diagnosed Plaintiff with a virus and gave her
a medical excuse note, certifying that she had seen the
doctor and could return to work on July 7, 2014. Doc. 5-2 at
17. Plaintiff claims that she called the store afterwards and
spoke with Assistant Manager De La Torre about taking time
off. Doc. 5 at 26; Doc. 5-2 at 10-11. Plaintiff asked
Assistant Manager De La Torre if she should fax over her
medical note; he told her to just bring it in the day she
returned to work. Id. Plaintiff claims she
nevertheless faxed over the note that same day.
15, 2014, after Plaintiff had returned to work, Plaintiff was
called in to a meeting with Manager Ramos, Assistant Manager
De La Torre, and Jeff Burnshaft, Goodwill's Human
Resources Executive Director. Doc. 5 at 27-28; Doc. 5-2 at
11. Burnshaft began by accusing Plaintiff of failing to
notify her supervisors that she would be absent on June 23,
2014. Id. Plaintiff explained that she did call
ahead that day, but Assistant Manager De La Torre denied
receiving the call. Id. Burnshaft threatened
Plaintiff that she would be fired the next time she was
absent and did not call ahead. Id. Plaintiff then
simultaneously received two disciplinary reports regarding
her lengthy absence: a “formal written warning”
regarding her “no call/no show” on June 23, 2014,
Doc. 5-2 at 21, and a “final written warning”
regarding her “no call/no show” on June 30, 2014
and July 1, 2014, id. at 22.
same day, Plaintiff also met with Manger Ramos to discuss her
workplace performance. Doc. 5 at 27. Manager Ramos informed
Plaintiff that she was giving her a 2.1 out of 5 overall
performance assessment rating on her evaluation report.
Id. In the evaluation, Manager Ramos commented that
“Jane needs to improve her attendance, and improve
speed when working on the sales floor. She does not show any
enthusiasm in her job.” Doc. 5-2 at 25. Plaintiff
refused to sign the evaluation form because she felt it was
an unfair representation of her work performance.
Id. at 24.
21, 2014, the EEOC issued a second Notice of Charge to
Goodwill, inviting Goodwill to participate in the EEOC's
mediation program. Doc. 5-1 at 11. The EEOC then sent a
letter to Goodwill on September 3, 2014, notifying it that
Plaintiff's charge was “being transferred from the
EEOC's ADR Unit to its Enforcement Unit for
investigation.” Id. at 12. Goodwill submitted
a position statement to the EEOC on September 9, 2014,
id. at 14, and Plaintiff submitted a rebuttal on
October 17, 2014, Doc. 5 at 15.
October 27, 2014, Plaintiff amended her EEOC charge to
include additional incidents to support her discrimination
and retaliation claims, including the two disciplinary
reports and the negative performance evaluation that she
received on July 15, 2014. Doc. 5-1 at 39; Doc. 5-2 at 5-6,
11-12. Plaintiff additionally asserted discrimination on the
basis of sex. Doc. 5-1 at 40. Less than two months later, on
December 15, 2014, Plaintiff resigned from her position at
Goodwill. Doc. 5 at 7. Plaintiff never amended her charge
following her resignation.
30, 2015, the EEOC sent Plaintiff a Right to Sue Notice.
Id. at 5. According to the Notice, the EEOC was
“unable to conclude that the information obtained
establishe[d] violations of the statutes.” Id.
Specifically, the EEOC could “not conclude that
[Plaintiff] [was] subjected to an adverse employment action
motivated by discriminatory animus as defined by Commission
guidelines and federal law.” Doc. 5-1 at 10. Therefore,
the EEOC dismissed the charge. Id.
three months later, on September 29, 2015, Plaintiff filed
this action against Goodwill. Doc. 2. On November 24, 2015,
the Honorable Loretta A. Preska, to whom this case was
previously assigned, entered an Order directing Plaintiff to
amend her Complaint. Doc. 4. The Court found that
Plaintiff's discrimination and retaliation claims were
“conclusory” and that Plaintiff “fail[ed]
to allege any facts suggesting that Defendant took any
adverse employment action against her because of her race,
sex, age, or disability.” Id. at 4.
December 8, 2015, Plaintiff filed her Amended Complaint. Doc.
5. On the form made available by the Court for pro
se litigants, Plaintiff checked off that she suffered
employment discrimination while working for Goodwill based on
race, sex, age, and disability. Id. at 3. She
further marked that she was subjected to certain
discriminatory conduct, including a failure to promote her, a
failure to accommodate her disability, unequal terms and
conditions of employment, harassment, and retaliation.
Id. at 2-3. On December 14, 2015, Plaintiff's
case was reassigned to this Court. Goodwill now moves to
dismiss Plaintiff's claims. Doc. 27.
ruling on a motion to dismiss pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure, the Court must accept
all factual allegations in the complaint as true and draw all
reasonable inferences in the plaintiff's favor.
Nielson v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014).
The Court is not required to credit “mere conclusory
statements” or “[t]hreadbare recitals of the
elements of a cause of action.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “To
survive a motion to dismiss, a complaint must contain
sufficient factual matter . . . to ‘state a claim to
relief that is plausible on its face.'”
Id. at 678 (quoting Twombly, 550 U.S. at
570). A claim is facially plausible “when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing
Twombly, 550 U.S. 556). More specifically, the
plaintiff must allege sufficient facts to show “more
than a sheer possibility that a defendant has acted
unlawfully.” Id. If the plaintiff has not
“nudged [his] claims across the line from conceivable
to plausible, [the] complaint must be dismissed.”
Twombly, 550 U.S. at 570; see Iqbal, 556
U.S. at 680.
question in a Rule 12 motion to dismiss “is not whether
a plaintiff will ultimately prevail but whether the claimant
is entitled to offer evidence to support the claims.”
Sikhs for Justice v. Nath, 893 F.Supp.2d 598, 615
(S.D.N.Y. 2012) (quoting Villager Pond, Inc. v. Town of
Darien, 56 F.3d 375, 278 (2d Cir. 1995)) (internal
quotations marks omitted). “[T]he purpose of Federal
Rule of Civil Procedure 12(b)(6) ‘is to test, in a
streamlined fashion, the formal sufficiency of the
plaintiff's statement of a claim for relief without
resolving a contest regarding sufficiency of the
plaintiff's statement of a claim for relief without
resolving a contest regarding its substantive merits,
'” and without regard for the weight of the
evidence that might be offered in support of Plaintiff's
claims. Halebian v. Berv, 644 F.3d 122, 130 (2d Cir.
2011) (quoting Global Network Commc'ns, Inc. v. City
of New York, 458 F.3d 150, 155 (2d Cir. 2006)).
same standard applies to motions to dismiss pro se
complaints. See Zapolski v. Fed. Republic of
Germany, 425 F.App'x 5, 6 (2d Cir. 2011). The Court
remains obliged to construe a pro se complaint
liberally, Hill v. Curcione, 657 F.3d 116, 122 (2d
Cir. 2011), and to interpret a pro se
plaintiff's claims as raising the strongest arguments
that they suggest. Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474 (2d Cir. 2006). The
obligation to be lenient while reading a pro se
plaintiff's pleadings “applies with particular
force when the plaintiff's civil rights are at
issue.” Jackson v. N.Y.S. Dep't of Labor,
709 F.Supp.2d 218, 224 (S.D.N.Y 2010) (citing McEachin v.
McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004)).
“However, even pro se plaintiffs asserting
civil rights claims cannot withstand a motion to dismiss
unless their pleadings contain factual allegations sufficient
to raise a right to relief above the speculative
level.” Id. (quoting Twombly, 550
U.S. at 555) (internal quotation marks omitted). A pro
se plaintiff's pleadings still must contain
“more than an unadorned, the
defendant-unlawfully-harmed me accusation.”
Iqbal, 566 U.S. at 678. A complaint that
“tenders naked assertion[s] devoid of further
enhancement” will not suffice. Id. (quoting
Twombly, 550 U.S. at 557) (internal quotation marks
omitted); see also Triestman, 470 F.3d at 477
(“[P]ro se status ‘does not
exempt a party from compliance with relevant rules of
procedural and substantive law.'”) (quoting
Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
Additionally, as the Second Circuit recently noted,
“[a] district court deciding a motion to dismiss
may consider factual allegations made by a pro
se party in his papers opposing the motion.”
Walker v. Schult, 717 F.3d 119, 122 n. 1 (2d Cir.
2013) (emphasis added).
alleges that Goodwill discriminated against her throughout
her employment on the basis of her race, age, sex, and
disability in violation of Title VII of the Civil Rights Act
of 1964 (“Title VII”), the Age Discrimination
Employment Act of 1967 (“ADEA”), the Americans
with Disabilities Act of 1990 (“ADA”), the New
York State Human Rights Law (“NYSHRL”), and the
New York City Human Rights Law (“NYCHRL”).
Plaintiff also alleges that Goodwill retaliated against her
for complaining about the discriminatory treatment, fostered
a hostile work environment, and caused her to resign, all in
further violation of these statutes.
discrimination claims under Title VII, the ADEA, or the ADA
are analyzed under the burden-shifting framework established
by the Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). See Kovaco v.
Rockbestos, 834 F.3d 128, 136 (2d Cir. 2016). Under that
framework, the plaintiff must first establish a prima
facie case of discrimination. McDonnell
Douglas, 411 U.S. at 802. Once the plaintiff establishes
a prima facie case, the burden shifts to the
defendant to offer a legitimate, nondiscriminatory reason for
its actions. Id. at 802-03. If the defendant
satisfies its burden, the burden shifts back to the plaintiff
to demonstrate that the proffered reason is pretextual.
Id. at 803. Ultimately, the plaintiff will be
required to prove that the defendant acted with
discriminatory motivation. See Littlejohn v. City of New
York, 795 F.3d 297, 307 (2d Cir. 2015). At the pleading
stage, however, the facts alleged must merely ...