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Davis v. GoodWill Industries of Greater New York and New Jersey, Inc.

United States District Court, S.D. New York

March 29, 2017

JANE DAVIS, Plaintiff,


          Edgardo Ramos, U.S.D.J.

         Pro 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.

         I. BACKGROUND [[1]]

         Plaintiff is a 68-year old black female who is currently residing in New York City. Doc. 5 at 3; Doc. 34 at 2.[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.

         Plaintiff 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 below.

         Plaintiff 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 herself was.

         Plaintiff 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 at 7.

         Plaintiff 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.

         Plaintiff 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.

         On May 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.

         On May 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.[3]

         Plaintiff 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 earlier. Id.

         Plaintiff 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.

         On June 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 7.[4] Plaintiff alleges that Goodwill further retaliated against her for filing the EEOC charge.

         On June 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. Id.[5]

         On July 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.[6] 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.

         That 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.

         On July 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.

         On 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.

         On June 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.

         Approximately 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.

         On 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.


         When 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.

         The 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)).

         The 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).


         Plaintiff 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.

         A. Federal Claims

         1. Discrimination

         Employment 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 ...

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