United States District Court, S.D. New York
H. CRISTINA CHEN-OSTER, LISA PARISI, SHANNA ORLICH, ALLISON GAMBA, and MARY DE LUIS, Plaintiffs,
GOLDMAN, SACHS & CO. and THE GOLDMAN SACHS GROUP, INC., Defendants.
MEMORANDUM OPINION AND ORDER
ANALISA TORRES United States District Judge.
employment discrimination case, Plaintiffs, H. Christina
Chen-Oster, Lisa Parisi, Shanna Orlich, Allison Gamba, and
Mary De Luis, allege that their former employer, Defendants
Goldman, Sachs & Co. and the Goldman Sachs Group, Inc.
(collectively, "Goldman Sachs"), violated Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq. ("Title VII"), and the New York
City Human Rights Law, N.Y.C. Admin. Code § 8-101 et
seq. ("NYCHRL"), by systematically disfavoring
female employees and denying them equal compensation and
advancement opportunities based on their gender. Defendants
move to dismiss Gamba's and De Luis' claims for
injunctive and declaratory relief. Plaintiffs move to file a
supplemental complaint. For the reasons stated below, both
motions to dismiss are DENIED, and Plaintiffs' motion to
file a supplemental complaint is GRANTED.
Relevant Procedural History
Court assumes familiarity with facts of the case and recites
only briefly the procedural history relevant to these
motions. On September 16, 2010, Plaintiffs Chen-Oster,
Parisi, and Orlich brought this putative class action
alleging intentional discrimination, disparate impact
discrimination, retaliation, and pregnancy discrimination
under Title VII and the NYCHRL. ECF No. 5. On April 13, 2015,
Plaintiffs Gamba and De Luis moved to intervene, ECF No. 377,
which the Honorable James C. Francis granted on August 3,
2015, ECF No. 410. Defendants appealed Magistrate Judge
Francis' order and, on June 6, 2016, this Court affirmed
the order. ECF No. 450.
filed a second amended complaint on August 3, 2015, which
included allegations regarding Gamba and De Luis. ECF No.
411. On September 28, 2015, Defendants moved to dismiss
Gamba's claims for injunctive and declaratory relief. ECF
No. 441. By letter dated May 9, 2016, Defendants notified the
Court that De Luis no longer worked for Goldman Sachs, ECF
No. 446, and subsequently moved to dismiss De Luis'
claims for injunctive and declaratory relief, ECF No. 457.
1, 2016, Plaintiffs filed a motion to file a supplement to
the second amended complaint pursuant to Federal Rule of
Civil Procedure 15(d) to add factual allegations and causes
of action related to De Luis' departure from Goldman
Sachs. ECF No. 455. Finally, on March 9, 2017, Plaintiffs
requested to amend their proposed supplement to include that
De Luis received a right to sue letter from the Equal
Employment Opportunity Commission. ECF No. 477; see
also ECF No. 477-1 ("Am. Suppl. Compl.").
Defendants oppose the initial motion to file a supplement to
the second amended complaint, ECF No. 456, but do not oppose
the substitution of the new proposed supplement for the old,
ECF No. 478.
worked for Goldman Sachs in New York from 2001 to August
2014. Second Am. Compl. ¶ 16. In 2003, Gamba joined the
New York Stock Exchange Equities Department. Id.
¶ 125. That year, she was promoted to Vice President.
Id. Although she was eligible to be promoted to
Managing Director in 2005, she was never promoted again.
Id. ¶ 133.
claims that Goldman Sachs "evaluated her performance
more harshly than it did similarly performing males, paid her
less in base compensation and bonuses than it paid similarly
situated men, and promoted equally or less qualified men
instead of her to positions she was qualified to hold."
Id. ¶ 126. For instance, she states that in
2007, her manager "indicated that Gamba would be
nominated for promotion to Managing Director, but suggested
that she consider 'adopting' instead of becoming
pregnant." Id. ¶ 127. Gamba took maternity
leave for part of 2008. Id. ¶ 129. That same
year, Goldman considered and rejected Gamba for a promotion
to Managing Director, promoting a male trader whose
"trading performance was not as good as" hers,
id. ¶ 130, despite the fact that Gamba's
revenue from her stock portfolio rose from $1.2 million in
2005 to over $6 million in 2007 and to $9.5 million in 2008,
id. ¶¶ 127, 129. In August 2014, her
employment with Goldman Sachs ended when Goldman Sachs
"divested itself of the department in which she
worked." Id. ¶¶ 16. Among other
remedies, Gamba seeks reinstatement to her "rightful
position at Goldman Sachs." Id. ¶
began working at Goldman Sachs in June 2010 as a Senior
Analyst in the Investment Management Division. Id.
¶¶ 18, 137. She worked first out of Miami, Florida
and then in Dallas, Texas, but regularly "travel[ed] to
and works from the Goldman Sachs's New York, New York
office." Id. ¶ 18. In 2012, she was
promoted to the position of Associate. Id. ¶
137. In 2014, she was made a Vice President. Id.
However, De Luis alleges that she has been evaluated unfairly
based on her gender, id. ¶ 139, and paid less
than her male colleagues throughout her employment,
id. ¶ 140.
March 2016, De Luis requested a transfer from Goldman
Sachs' Dallas office to its Miami office, due to the
relocation of her significant other. Am. Suppl. Compl. ¶
5. Prior to her participation in the present lawsuit, De Luis
"had been assured by Goldman Sachs in March 2012 and
September 2014 . . . that relocation to Miami in 2016 would
be possible." Id. ¶ 6. However, after
requesting the transfer, De Luis was informed that she could
work in Dallas or New York "or apply and be considered
for an inferior position in Miami." Id.
¶¶ 5-6. De Luis claims that Goldman Sachs denied
her transfer request because "her supervisory function
could not be carried out remotely, " even though
coordination of her team was being done remotely "as
many members of the team were located in New York or regional
offices." Id. ¶ 8. De Luis claims that
Goldman Sachs denied her transfer request in retaliation for
her role as a plaintiff in this case. Id.
¶¶ 9, 10. De Luis resigned on May 2, 2016.
Id. ¶ 11. The amended supplemental complaint
states causes of action for retaliation under Title VII and
the NYCHRL. Id. ¶¶ 12-21. She seeks
reinstatement. Id. ¶¶ 16, 21, 22.
have moved to dismiss Gamba's and De Luis' claims for
injunctive and declaratory relief pursuant to Federal Rule of
Civil Procedure 12(b)(1). Before turning to each motion, the
Court addresses certain legal issues raised in both motions.
resolving a motion to dismiss for lack of subject matter
jurisdiction, "the district court must take all
uncontroverted facts in the complaint... as true, and draw
all reasonable inferences in favor of the party asserting
jurisdiction." Tandon v. Captain's Cove Marina
of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014).
However, "[w]here jurisdictional facts are placed in
dispute, the court has the power and obligation to decide
issues of fact by reference to evidence outside the
pleadings, such as affidavits." APWUv. Potter,
343 F.3d 619, 627 (2d Cir. 2003) (quoting LeBlanc v.
Cleveland, 198 F.3d 353, 356 (2d Cir. 1999)).
central issue to both motions to dismiss is an opinion issued
by the Honorable Leonard B. Sand, dated July 12, 2012.
Chen-Osterv. Goldman, Sachs & Co., 877 F.Supp.2d
113 (S.D.N.Y. 2012), ECF No. 158. Judge Sand held that, under
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011),
a former employee lacks standing to bring claims against her
former employer for injunctive and declaratory relief.
See Chen-Oster, 877 F.Supp.2d at 121-22. Plaintiffs
contend that former employees, such as Gamba or De Luis, may
have standing for injunctive and declaratory relief if they
seek reinstatement, and ask this Court to reconsider Judge
Sand's ruling. The parties agree that this request
implicates the law of the case doctrine, which applies when a
court "reconsiders its own ruling on an issue in the
absence of an intervening ruling on the issue by a higher
court." United States v. Quintieri, 306 F.3d
1217, 1225 (2d Cir. 2002).
of the case doctrine instructs '"that when a court
has ruled on an issue, that decision should generally be
adhered to by that court in subsequent stages in the same
case' unless 'cogent' and 'compelling'
reasons militate otherwise." Id. (citation
omitted) (first quoting United States v. Uccio, 940
F.2d 753, 758 (2d Cir. 1991); and then quoting United
States v. Tenzer,213 F.3d 34, 39 (2d Cir. 2000)).
Reconsideration of a prior decision maybe "justified in
compelling circumstances, consisting principally of (1) an
intervening change in controlling law, (2) new evidence, or
(3) the need to correct a clear error of law or to prevent
manifest injustice." United States v. Carr, 557
F.3d 93, 102 (2d Cir. 2009). The doctrine is "driven by
considerations of fairness to the parties, judicial economy,
and the societal interest in finality." Id.
However, "the efficiency concerns that underlie the
doctrine do not support its application in cases where the
original ruling is clearly erroneous." Strauch v.
Demskie,892 F.Supp. 503, 506 (S.D.N.Y. 1995); see
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