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Belabbas v. Inova Software Inc.

United States District Court, S.D. New York

August 24, 2017

INOVA SOFTWARE INC., et al., Defendants.



         Plaintiff 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.


         The 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)).

         Plaintiff 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.

         Plaintiffs "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 the Complaint.

         Plaintiff 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."

         When 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.

         As a 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.

         On 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."

         On May 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.

         As is 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").

         II. STANDARD

         "In 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.

         On a 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 ...

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