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Chandler v. Houghton Mifflin Harcourt Publ'g Co.

United States District Court, N.D. New York

January 10, 2018

HOUGHTON MIFFLIN HARCOURT PUBL'G CO., AND ITS EMPLOYEES; MASSIMO RUBINI, Individually and in His Official Capacity; and JOHN HURLEY, Individually and in His Official Capacity, Defendants.

          ELAINE M. CHANDLER Plaintiff, Pro Se

          BOND, SCHOENECK & KING, PLLC Counsel for Defendants




         Currently before the Court, in this pro se employment discrimination action filed by Elaine M. Chandler (“Plaintiff”) against Houghton Mifflin Harcourt Publishing Company (“HMH”) and two of its employees, Massimo Rubini, and John Hurley (collectively “Defendants”), is Defendants' motion to dismiss Plaintiff's Amended Complaint for failure to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6). (Dkt. No. 28.) For the reasons set forth below, Defendants' motion is granted.


         A. Plaintiff's Amended Complaint

         Generally, liberally construed, Plaintiff's Amended Complaint alleges as follows. (Dkt. No. 25 [Pl.'s Am. Compl.].)

         Plaintiff's Professional Responsibilities at HMH

         HMH is a publisher of textbooks and digital educational programs. (Id., ¶ 10.) In February of 2014, HMH hired Plaintiff as an Account Executive to serve the Upstate New York and Western Pennsylvania areas of HMH's operations where Plaintiff sold textbooks and digital education programs to private, parochial and charter schools. (Id., ¶ 13.) Plaintiff worked from home but would drive across New York and Pennsylvania to visit schools, present textbook programs, attend book exhibits, and promote HMH's education programs at luncheons and other promotional gatherings. (Id., ¶ 16.)

         Defendant Massimo Rubini

         In November of 2014, Plaintiff's supervisor, Amy Senius, informed Plaintiff that a new employee, Defendant Rubini, had been hired for an entry-level position, and asked Plaintiff to help Rubini “get up to speed on HMH products.” (Id., ¶ 18.) When Plaintiff first met Defendant Rubini, she told him that Ms. Senius had asked her to assist Rubini, and invited him to attend an upcoming presentation to school principals in Albany, NY. (Id., ¶ 19.) Defendant Rubini did not verbally respond to Plaintiff; rather, he gave a sly smile, looked Plaintiff up and down, and walked away. (Id., ¶ 20.) In January of 2015, Ms. Senius announced that Defendant Rubini had been promoted from his entry-level position to Ms. Senius's Assistant Manager and informed Plaintiff that she was to report to Rubini. (Id., ¶¶ 21-22.)

         In April of 2015, Defendant Rubini informed Plaintiff that he would be attending her presentations on two consecutive days. (Id., ¶ 23.) At some point during the first day of presentations, Defendant Rubini looked Plaintiff up and down and made comments about her outfit. (Id., ¶ 27.) Later that same day, Defendant Rubini hugged Plaintiff more tightly and for longer than a casual friend would do. (Id., ¶ 29.) Plaintiff informed Defendant Rubini that the hug felt uncomfortable. (Id., ¶ 30.) During the second day of presentations, Defendant Rubini once again looked Plaintiff up and down and commented on her outfit. (Id., ¶ 32.)

         In May of 2015, Defendant Rubini attended a luncheon that Plaintiff had scheduled in Pittsburgh, PA, for the Superintendent and other top administrators of the Diocese of Pittsburgh. (Id., ¶ 33.) At the end of the luncheon, while the administrators were still present, Defendant Rubini hugged Plaintiff and slid his hand down her backside. (Id., ¶ 34.) After the administrators left, Plaintiff told Defendant Rubini that she did not want to be touched in that way and that it was highly inappropriate. (Id., ¶ 36.) Defendant Rubini responded by saying that “I was hired because I have special qualities.” (Id., ¶ 37.) At another presentation for administrators in Pittsburgh, PA, in July of 2015, Defendant Rubini looked Plaintiff up and down but kept his distance from her. (Id., ¶ 39.)

         On September 24, 2015, Defendant Rubini attended Plaintiff's scheduled school visits with her. (Id., ¶ 41.) At the end of the day's visits, Defendant Rubini directed Plaintiff to present a revenue plan to him to the lobby of his hotel. (Id., ¶ 42.) Plaintiff presented a revenue plan as requested and Defendant Rubini expressed his appreciation for the plan. (Id., ¶¶ 43-44.) Defendant Rubini then hugged Plaintiff and slid his hand down her backside. (Id., ¶ 44.) Plaintiff told Defendant Rubini once again that she did not like his behavior and that she was going to report it. (Id., ¶ 45.) The following day, Plaintiff researched how to report sexual harassment on HMH's employee website and discovered that the procedure was to report the behavior to the employee's immediate supervisor. (Id., ¶ 46.) Because Defendant Rubini was Plaintiff's immediate supervisor, she felt too intimidated to file a complaint regarding Rubini's inappropriate behavior with Rubini. (Id., ¶ 47.) Instead, Plaintiff confided to two other account executives. (Id., ¶ 48.)

         From October until December 2015, Defendant Rubini did not contact Plaintiff to visit schools together. (Id., ¶ 49.) On December 23, 2015, Defendant Rubini called Plaintiff regarding her performance review for 2015. (Id., ¶ 50.) Defendant Rubini advised Plaintiff that the telephone call was a substitute for HMH's required face-to-face discussion regarding performance evaluations. (Id.) Defendant Rubini then informed Plaintiff that she was receiving a poor performance rating of “does not meet expectations.” (Id., ¶ 51.) When Plaintiff questioned Rubini's evaluation, he responded that it was because Plaintiff's territory goal was at 64%. (Id., ¶ 52.) Plaintiff reminded Defendant Rubini that he was well aware of the large amount of orders that had been placed on hold due to a school budget impasse in Pennsylvania, and that, when those orders were taken into account, her territory goal was at 92%. (Id., ¶ 53.) Defendant Rubini responded that Plaintiff's poor review was based on a “commit ratio, ” which is an algorithm in HMH's online sales reporting system. (Id., ¶ 54.) No one had ever discussed the term or concept of a “commit ratio” with Plaintiff before. (Id., ¶ 55.) Plaintiff refused to sign off on her performance review and instead sent an e-mail message to HMH's Human Resources (“HR”) Department regarding Defendant Rubini's evaluation. (Id., ¶ 56.) When HMH's HR Department e-mailed Defendant Rubini, Rubini denied that he had discussed a “commit ratio” during his performance review of Plaintiff. (Id., ¶ 57.)

         Defendant John Hurley

         In late December of 2015, Plaintiff learned that, as of January 1, 2016, Defendant Rubini would no longer be her manager and she would be supervised by HMH NY Field Sales Manager Lynn Robson. (Id., ¶ 64.) However, Plaintiff was then contacted by a second-level manager, HMH Mid-Atlantic District Manager John Hurley, and was told that Hurley himself would be traveling from Chicago, Illinois, to Upstate New York to work with Plaintiff exclusively. (Id., ¶ 65.)

         From February 9, 2016, through February 11, 2016, Defendant Hurley traveled to Albany, NY, with Plaintiff, and accompanied her on school visits. (Id., ¶ 70.) Instead of the usual practice of taking separate cars to school visits, Defendant Hurley informed Plaintiff that he would be riding with her in her car. (Id., ¶ 71.) While sitting in Plaintiff's car in a parking lot after the first school visit, Defendant Hurley told Plaintiff that he was good friends with Defendant Rubini and that Hurley did not like the way that Plaintiff had treated Rubini. (Id., ¶ 72.) Defendant Hurley told Plaintiff that he hoped she would treat him better than she had treated Defendant Rubini. (Id., ¶ 73.) As Defendant Hurley said this, he took Plaintiff's hand and held it in his own. (Id., ¶ 74.) When Plaintiff asked Defendant Hurley what he meant, he released her hand and instructed her to drive to the next school visit. (Id., ¶ 75.) Later, while driving between school visits, Defendant Hurley repeated the statement that he hoped Plaintiff would treat him better than she had treated Defendant Rubini. (Id., ¶ 76.) Defendant Hurley could not take Plaintiff's hand because she was using the car's steering wheel; as a result, Defendant Hurley rubbed Plaintiff's forearm. (Id., ¶ 77.) Plaintiff again asked Defendant Hurley what he meant and he did not respond and removed his hand. (Id., ¶ 78.) Defendant Hurley, who was married, was well known by other account executives within HMH for having had at least one affair with a female HMH employee. (Id., ¶ 80.)

         On February 10, 2016, while eating lunch at a restaurant with Defendant Hurley, Plaintiff reported to Hurley that Defendant Rubini had acted inappropriately by hugging and groping her. (Id., ¶ 81.) Plaintiff reported Defendant Rubini's behavior to Defendant Hurley with the expectation that, as Rubini's superior, Hurley would report Rubini's inappropriate behavior. (Id., ¶ 82.) Plaintiff also hoped that, by reporting Rubini's inappropriate behavior, Defendant Hurley would no longer direct innuendos toward her. (Id., ¶ 83.) Instead, Defendant Hurley became annoyed, looked away, and said, “Well, he's Italian.” (Id., ¶ 84.) After lunch, Defendant Hurley told Plaintiff to drop him off at his hotel and that he would not be accompanying her on school visits for the rest of the day. (Id., ¶ 85.) Defendant Hurley told Plaintiff to arrive at the lobby of his hotel the next morning at 8:30 a.m. (Id., ¶ 86.)

         The next morning, Plaintiff arrived at the hotel lobby at 8:30 a.m. and met Defendant Hurley. (Id., ¶ 87.) Hurley instructed Plaintiff to wait in the lobby while he finished some paperwork. (Id., ¶ 88.) After approximately one hour, Defendant Hurley reappeared and presented Plaintiff with a thirty-day performance improvement plan that was impossible to execute. (Id., ¶ 89.) Plaintiff asked Defendant Hurley why she was being punished. (Id., ¶ 91.) Defendant Hurley responded that he was told to do this by the “powers that be.” (Id., ¶ 92.) Plaintiff asked who the “powers that be” were. (Id., ¶ 93.) Defendant Hurley became visibly flustered and said “My supervisors!” but would not give any names. (Id., ¶ 94.) Defendant Hurley told Plaintiff that he would not accompany her on any more school visits. (Id., ¶ 95.)

         From February 11, 2016, until March 4, 2016, during the time period of the performance improvement plan, Defendant Hurley became increasingly hostile towards Plaintiff, telling her that she must perform numerous impossible expectations not written into the original performance improvement plan. (Id., ¶ 98.) Defendant Hurley threatened to fire Plaintiff if she did not execute the plan exactly and he told her to. (Id., ¶ 99.) Other HMH employees placed on performance improvement plans had not been required to complete such impossible tasks as those assigned to Plaintiff by Defendant Hurley. (Id., ¶ 103.)

         Plaintiff's Sexual Harassment Complaint

         On February 19, 2016, Plaintiff filed a sexual harassment complaint directly with HMH's HR administrators. (Id., ¶ 105.) HMH's HR Department did not respond to Plaintiff's complaint until seven days later, on February 26, 2016. (Id., ¶ 106.) HMH's HR representative, Barbara Schmidt, called Plaintiff to inquire about the details of her complaint. (Id., ¶ 107.) Plaintiff told Ms. Schmidt that she had been retaliated against for her rejection of, and reaction to, unwelcome sexual advances with a poor performance review, as well as put on an impossible performance improvement plan. (Id., ¶ 112.) Ms. Schmidt told Plaintiff that there would be an investigation and she would contact Plaintiff the following week. (Id., ¶ 113.)

         The following week, around March 2, 2016, Plaintiff called Ms. Schmidt and left her a message inquiring about the status of Ms. Schmidt's investigation. (Id., ¶ 114.) Ms. Schmidt did not return Plaintiff's telephone call. (Id., ¶ 115.) Instead, Defendant Hurley called Plaintiff and told her that he wanted to schedule a telephone meeting for the following day at 5:00 p.m. (Id., ¶ 116.) Defendant Hurley did not tell Plaintiff what he wanted to discuss. (Id., ΒΆ 117.) It was well known at HMH that managers would set up a mysterious telephone meeting for a Friday at 5:00 p.m. when ...

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