United States District Court, S.D. New York
OPINION AND ORDER
G. SCHOFIELD UNITED STATES DISTRICT JUDGE
Cherifa Belabbas brings this employment discrimination action
against Defendants Inova Software Inc. ("Inova"),
Fritz Eisenhart and Gilles Toulemonde under federal, state
and city law. Defendant Toulemonde, a French citizen and
resident, moved to dismiss Plaintiffs Amended Complaint for
lack of personal jurisdiction under Federal Rule of Civil
Procedure 12(b)(2), and for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6). At the parties'
request, this motion is deemed to apply to the claims against
Toulemonde, which were repleaded virtually identically in the
Second Amended Complaint (the "Complaint"). For the
following reasons, the motion is denied.
following facts are taken from the Complaint and, where
noted, the parties' declarations concerning jurisdiction.
All pleadings and declarations are construed in the light
most favorable to Plaintiff, and all doubts are resolved in
her favor. See Dorchester Fin. Sec, Inc. v. Banco BRJ,
S.A., 722 F.3d 81, 85 (2d Cir. 2013); see also Trs.
of Upstate N.Y. Eng'rs Pension Fundv. Ivy Asset
Mgmt., 843 F.3d 561, 566 (2d Cir. 2016) (applying
similar standard to motion to dismiss under Rule 12(b)(6)).
is a United States citizen and a "Semitic Arab-Berber
woman of Belgian/North African national origin who resides in
New York County." From 2009 to 2016, Plaintiff worked at
Inova first as a Presales Engineer and then as Senior Project
Manager. Plaintiff was one of two female employees in
Inova's New York office. She was "extremely
successful in her role and received excellent performance
reviews and client feedback throughout her employment."
She also broke an Inova record by bringing in more new
subscription accounts than any of her colleagues.
"ability to do her job" was undermined after Fritz
Eisenhart became the President and CEO of Inova's United
States operations in January 2013. Eisenhart assigned
Plaintiff to only one new project throughout 2013, while
assigning the majority of new projects to Plaintiffs male,
French colleagues. Eisenhart did not assign Plaintiff to any
new projects from 2014 until her termination in May 2016.
When a Senior Vice President left the New York office in
2015, all of his "accounts and progressed opportunities
were shifted" to Plaintiffs male, French colleagues
based in France rather than to Plaintiff, even though the
accounts were located in North America. In October 2015,
"the accounts of the entire U.S. east coast
territory" were transferred from Plaintiff to her male,
French colleagues. Plaintiffs male, French colleagues were
also given other advantages, including credit and financial
compensation for acquiring accounts that Plaintiff brought to
the verge of closing. Eisenhart cut Plaintiff out of
important meetings, "including meetings held
specifically to discuss her accounts, " instead choosing
to hold the meetings with Plaintiffs "male
counterparts." Eisenhart also made misogynistic and
discriminatory comments in the office, which are detailed in
also encountered discriminatory treatment from movant Gilles
Toulemonde, Inova's global CEO. The Complaint alleges
that, despite living and working in France, Toulemonde (1)
has managed the operations of the New York office since 2010,
(2) has "near- daily operational contact with the New
York office, " (3) is "heavily involved" in
sales and marketing, service delivery and human resources
("HR") operations in New York, (4) has control over
various "personnel decisions in and affecting the New
York office" and (5) spent months in New York City and
visits New York regularly for office visits, events and
conferences, "acting as the face of Inova's New York
office." Plaintiffs declaration adds that Toulemonde (1)
supervised Plaintiff and made decisions "regarding the
terms and conditions of [her] employment at Inova, " (2)
was "responsible for allocating sales leads and
territories" to Inova sales representatives in New York,
(3) "spent several hours each morning managing
Inova's New York office remotely by telephone, email,
video conferencing and other means, " (4)
"regularly entered into agreements on behalf of [the]
New York office, " and (5) had the "final say in HR
decisions." Toulemonde's declaration admits that he
"consult[s] on some [HR] decisions for Inova."
Plaintiff told Toulemonde that she closed a deal with a
company that became one of Inova's top accounts, he
"responded that he was surprised that [she] was able to
close such a large deal." Plaintiff believed that
Toulemonde's surprise was a reflection of Inova
leadership's "discriminatory animus" towards
her, and complained to Toulemonde that "she had been
subjected to many inexplicable changes in the allocation of
sales territory that favored French employees." On March
20, 2016, Plaintiff complained in writing to Toulemonde and
an HR professional about discriminatory conduct. She then had
a follow-up phone call with Toulemonde and the HR
representative, "during which she specifically
complained about race and gender discrimination."
Plaintiff sent a follow-up email complaint on March 31, 2016.
result of her complaints, Toulemonde excluded Plaintiff from
team dinners and "key sales meetings where new features
and sales strategies were discussed." During his
frequent trips to the New York office, Toulemonde conducted
one-on-one meetings with all sales employees except
Plaintiff. Toulemonde also told Plaintiff to stop copying him
on emails about her issues with Eisenhart.
April 1, 2016, a telephonic mediation was scheduled to
address Plaintiffs complaints. The mediation lasted 30
minutes, and was attended only by Eisenhart and the HR
professional. Plaintiff received no response to her
complaints following the call, and sent a follow-up email to
Eisenhart, Toulemonde and the HR representative on April 11,
2016. Toulemonde responded to Plaintiffs April 11, 2016,
email by sending an email to Eisenhart stating, "Enough
is enough. Good luck with her."
2, 2016, Plaintiff informed Inova that she needed to take a
leave of absence due to medical issues, detailed in the
Complaint, resulting from the discriminatory treatment and
her work environment. Toulemonde and Eisenhart jointly
decided to terminate Plaintiffs employment, and on May 3,
2016, Eisenhart told Plaintiff that she would be terminated
immediately. Eisenhart told Plaintiff that her complaints
were the reason for her termination.
relevant here, Plaintiff alleges that Defendant Toulemonde
discriminated and retaliated against her in violation of 42
U.S.C. § 1981, the New York State Human Rights Law,
N.Y.Exec. Law § 290 et seq. (the "NYSHRL") and
the New York City Human Rights Law, N.Y.C. Admin. Code §
8-101 et seq. (the "NYCHRL").
order to survive a motion to dismiss for lack of personal
jurisdiction, a plaintiff must make a prima facie showing
that jurisdiction exists." Eades v. Kennedy, PC Law
Offices, 799 F.3d 161, 167-68 (2d Cir. 2015) (quoting
Licci ex rel. Licci v. Lebanese Canadian Bank, SAL,
732 F.3d 161, 167 (2d Cir. 2013)). The prima facie showing
"must include an averment of facts that, if credited by
the ultimate trier of fact, would suffice to establish
jurisdiction over the defendant." In re Terrorist
Attacks on Sept. 11, 2011, 714 F.3d 659, 673 (2d Cir.
2013) (citation omitted). In "deciding a pretrial motion
to dismiss for lack of personal jurisdiction, " a
district court has "considerable procedural leeway"
and "may determine the motion on the basis of affidavits
alone." Dorchester, 722 F.3d at 84. Where a
court relies on pleadings and affidavits, it
"construe[s] the pleadings and affidavits in the light
most favorable to plaintiff, resolving all doubts in [her]
favor." Id. at 85.
motion to dismiss for failure to state a claim, a court
accepts as true all well-pleaded factual allegations and
draws all reasonable inferences in favor of the non-moving
party. Trs. of Upstate N.Y. Eng'rs Pension Fund,
843 F.3d at 566. To withstand dismissal, a pleading
"must contain sufficient factual matter, accepted as
true, to 'state a claim to relief that is plausible on
its face.'" Ashcroftv. Iqbal,556 U.S. 662,
678 (2009) (quoting Bell Ail. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). "Threadbare recitals ...