United States District Court, N.D. New York
FITZGERALD MORRIS BAKER FIRTH, P.C. ATTORNEYS FOR PLAINTIFF
MULLINS RILEY & SCARBOROUGH LLP ATTORNEYS FOR DEFENDANTS
CARTER, CONBOY, CASE, BLACKMORE, MALONEY & LAIRD, P.C.
ATTORNEYS FOR DEFENDANTS
NELLUVELY, ESQ. JOHN D. ASPLAND, ESQ. GREGORY M. O'NEIL,
ESQ. WILLIAM J. DECAIRE, ESQ. OF COUNSEL
MEMORANDUM-DECISION AND ORDER
Frederick J., Scullin, Jr. Senior United States District
before the Court is Defendants' motion, pursuant to Rules
12(b)(1) and 12(b)(6) of the Federal Rules of Civil
Procedure, to dismiss Plaintiff's complaint in its
entirety for failure to state a claim and because all of her
claims are subject to mandatory arbitration. See
Dkt. No. 5; Dkt. No. 5-6. Plaintiff opposes the motion in
part. See Dkt. Nos. 9, 30.
time she filed her complaint, on March 20, 2018, Plaintiff, a
woman of Chinese origin, was 52 years old. As part of a
merger between Defendant Precision Extrusion, Inc.
("PEI") and Defendant Pexco, Plaintiff executed an
Employment Agreement that allowed her to continue employment
at Defendant PEI as Vice President of Operations, Glens
Falls. See Dkt. No. 5-2 ("Employment
Agreement") at § 1.2. Plaintiff alleges that,
"[f]ollowing the acquisition of PEI by Pexco,
[Defendants'] Executives subjected [her] to numerous
instances of unprofessional and disrespectful conduct,
amounting to harassment and discrimination based on her age,
gender, race, and national origin." See Dkt.
No. 1 ("Complaint") at ¶ 22. Furthermore, she
asserts that, [a]s the only non-white female executive over
the age of 40, Pexco's inescapable 'boys'
club' culture precluded [her] from actively participating
in decision-making commensurate with her position in the
company." See Id. Specifically, Plaintiff
contends that she "was subjected to a pattern of
harassment and discrimination over the course of her
employment between December 8, 2015 and February 20, 2017, by
[Defendants] PEI [and] Pexco . . . and their executives . .
., excluded from meetings based on her age, gender, race, and
national origin, and ultimately stripped of her
responsibilities in retaliation for filing a complaint
alleging unlawful discrimination and harassment against
[Defendants'] executives." See Id. at
¶ 23. Furthermore, she claims that, after she complained
about the conduct of Defendants' Executives, Defendants
retaliated against her by stripping her of her
responsibilities; and, despite her complaints, Defendants
allowed their executives to create and foster a hostile work
environment and permitted a pervasive culture of harassment
to exist in the workplace. See Id. at ¶ 24.
Finally, Plaintiff alleges that, as a result of this conduct,
she "endure[d] significant emotional distress, which
manifested in dangerously elevated blood pressure, requiring
her to take medical leave, and eventually caused her to
resign from her employment with PEI on or about February 20,
2017." See Id. at ¶ 25.
on these allegations, Plaintiff asserted fifteen causes of
action, alleging discrimination, hostile work environment,
and retaliation based on age, sex, race, and national origin
under Title VII, the Age Discrimination in Employment Act
("ADEA"), 42 U.S.C. § 1981, and New York State
does not oppose Defendants' motion to dismiss all of her
causes of action against Defendants All-West Plastics, Inc.
and Spectrum Plastics Group, Inc., in effect conceding that
neither of these Defendants is her employer. Furthermore,
Plaintiff does not oppose Defendants' motion to dismiss
her Fourth, Sixth, Eighth, Tenth, Twelfth, and Fourteenth
Causes of Action, all of which are based on alleged
violations of New York State Executive Law, commonly referred
to as New York State Human Rights Law. With regard to these
causes of action, Plaintiff, in effect, concedes that this
Court does not have jurisdiction because she chose to resolve
these claims administratively. Therefore, the Court grants
Defendants' motion to dismiss the above-named Defendants
and causes of action.
result, the two remaining Defendants in this action are
Precision Extrusion, Inc. and Pexco, LLC. The remaining
causes of action are as follows:
(1) First Cause of Action - constructive discharge because of
Plaintiff's age in violation of the ADEA;
(2) Second Cause of Action - retaliation for complaining
about discrimination in violation of the ADEA;
(3) Third Cause of Action - hostile work environment based on
Plaintiff's age in violation of the ADEA;
(4) Fifth Cause of Action - discrimination based on
Plaintiff's gender in violation of Title VII and 42
U.S.C. § 1981;
(5) Seventh Cause of Action - discrimination based on
Plaintiff's race in violation of Title VII and 42 U.S.C.
(6) Ninth Cause of Action - hostile work environment based on
Plaintiff's race and gender in violation of Title VII ...