United States District Court, E.D. New York
Attorney for Plaintiff H.P. Sean Dweck, Esq.
Attorney for Defendants Kenneth Adam Novikoff, Esq.
MEMORANDUM AND ORDER
R. Hurley Unites States District Judge
Jeanne Braun (“Plaintiff”) brought this action
for employment discrimination against Administrators for the
Professions, Inc. (“AFP”), Anthony J. Bonomo
(“A. Bonomo”), and Carl Bonomo (“C.
Bonomo”) (collectively “Defendants”)
alleging gender discrimination under Title VII of the Civil
Rights Act of 1964 and the New York State Human Rights Law
(“NYSHRL”), and age discrimination under the Age
Discrimination in Employment Act (“ADEA”) and the
NYSHRL. (Compl. [DE 1] ¶¶ 30-45.)
before the Court is Defendants' motion for judgment on
the pleadings pursuant to Fed.R.Civ.P. 12(c) (“Rule
12(c)”) for failure to plead a plausible claim of age
or gender discrimination. (Mem. in Supp. [DE 24] at 1
(hereinafter “Mem. in Supp.”).) For the reasons
explained below, the motion for judgment on the pleadings is
granted as to all claims. However, Plaintiff will be given
leave to amend her Complaint in accordance with the decision
following relevant facts come from the Complaint and are
assumed true for purposes of the motion for judgment on the
is a woman who is 61-years old. (Compl. ¶ 6.) She was
59-years old at the time that the events leading to this
litigation occurred. (See Id. ¶ 29.) Defendant
AFP provides risk management, including malpractice
insurance, to physicians, hospitals, and healthcare providers
in New York State. (Id. ¶ 8.) Defendant A.
Bonomo was Plaintiff's supervisor at AFP, and Defendant
C. Bonomo was Executive Vice President of AFP. (Id.
¶¶ 13-15.) Both individual defendants had frequent
daily contact with Plaintiff. (Id.)
was hired to work at AFP in 1994, as a vice president.
(Id. ¶ 18.) In 1999, she was promoted to Senior
Vice President, at which time she became responsible for
programs across multiple departments. (Id. ¶
19.) In 2003, Plaintiff was again promoted, this time to
Executive Vice President, and her attendant responsibilities
expanded to include multiple divisions of Defendant AFP.
(Id. ¶¶ 20-21.) Upon this final promotion,
Plaintiff was a member of senior management and supervised a
staff of eighteen people. (Id.) Plaintiff was
terminated on July 12, 2016. (Id. ¶ 29.)
alleges that throughout her tenure with AFP she was subjected
and exposed to gender and age discrimination. (Id.
¶ 26.) Plaintiff's examples of this “pattern
and practice of gender and age discrimination, ” that
include but are not limited to: harassment toward women in
the workplace that men did not suffer; Plaintiff being
excluded from meetings, decision-making, and social events
(including a trip to Las Vegas); AFP letting older workers go
while retaining younger workers; AFP terminating Plaintiff
after she inquired about her retirement benefits; and
Plaintiff being told to “deal with it” when she
complained of discriminatory behavior by Defendant C. Bonomo
to Defendant A. Bonomo. (Id. ¶ 27.) Plaintiff
worked for AFP for 22 years-as both an employee and as senior
management-and she claims that she suffered bullying,
harassment, and embarrassment throughout her time there
despite complaints to senior management.
brought the instant action on July 7, 2017, after fulfilling
the requirement to file a Charge of Discrimination with the
United States Equal Employment Opportunity Commission.
(Id. ¶ 16.) Defendants brought their motion for
judgment on the pleadings on November 27, 2017. (Notice of
Motion [DE 22] at 1.)
standard for evaluating a motion for judgment on the
pleadings pursuant to Rule 12(c) is the same as the standard
for a motion to dismiss under Rule 12(b)(6). See Karedes
v. Ackerley Group, Inc., 423 F.3d 107, 113 (2d Cir.
2005). In deciding a Rule 12(b)(6) motion to dismiss, the
Court applies a “plausibility standard, ” which
is guided by “[t]wo working principles.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2d Cir. 2009)
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544
(2007); accord Harris v. Mills, 572 F.3d 66, 71-72
(2d Cir. 2009). First, although the Court must accept all
allegations as true, this “tenet” is
“inapplicable to legal conclusions;” thus,
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Iqbal, 556 U.S. at 678; accord
Harris, 572 F.3d at 72.
only complaints that state a “plausible claim for
relief” can survive a Rule 12(b)(6) motion to dismiss.
Iqbal, 556 U.S. at 679. Determining whether a
complaint does so is “a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense.” Id.; accord
Harris, 572 F.3d at 72.
making its determination, the Court is confined to “the
allegations contained within the four corners of [the]
complaint.” Pani v. Empire Blue Cross Blue
Shield, 152 F.3d 67, 71 (2d Cir. 1998). However, this
has been interpreted broadly to include any document attached
to the complaint, any statements or documents incorporated in
the complaint by reference, any document on which the
complaint heavily relies, and anything of which judicial
notice may be taken. See Chambers v. Time Warner,
Inc., 282 F.3d 147, 152-53 (2d Cir. 2002) (citations
omitted); Kramer v. Time Warner Inc., 937 F.2d 767,
773 (2d Cir. 1991).
establish a prima facie case of unlawful discrimination, a
plaintiff must show (1) that she is within the protected
class, (2) she was qualified for the position, (3) she
experienced adverse employment action, and (4) such action
occurred under circumstances giving rise to an inference of
discrimination. Testa v. CareFusion, 2018 WL
1611378, at *5 (E.D.N.Y. Apr. 3, 2018) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973)); see also
Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 107
(2d Cir. 2010) (citing Carlton v. Mystic Transp.,
Inc., 202 F.3d 129, 134 (2d Cir. 2000). For both gender
and age discrimination, “this burden is not a heavy
one[.]” Gorzynski, 596 F.3d at 107.
survive a motion to dismiss, and accordingly a motion for
judgment on the pleadings, a discrimination plaintiff need
not allege facts establishing each element of a prima facie
case of employment discrimination. See Littlejohn v. City
of New York, 795 F.3d 297, 310-11 (2d Cir. 2015).
“[A]t the pleadings stage . . ., a plaintiff has a
‘minimal burden' of alleging facts
‘suggesting an inference of discriminatory
motivation.'” Vega v. Hempstead Union Free Sch.
Dist., 801 F.3d 72, 84 (2d Cir. 2015) (quoting
Littlejohn, 795 F.3d at 310). The allegations in the
complaint “need not give plausible support to the
ultimate question of whether the adverse employment action
was attributable to discrimination. They need only give
plausible support to a minimal inference of discriminatory
motivation.” Littlejohn, 795 F.3d at 311;
see also Vega, 801 F.3d at 87 (“[A] plaintiff
must allege that the employer took adverse action against
[him] at least in part for a discriminatory reason, and [he]
may do so by alleging facts that directly show discrimination
or facts that indirectly show discrimination by giving rise
to a plausible inference of discrimination”)
inference of discrimination can arise from circumstances
including, but not limited to, ‘the employer's . .
. invidious comments about others in the employee's
protected group; or the more favorable treatment of employees
not in the protected group; or the sequence of events leading
to the plaintiff's discharge.'”
Littlejohn, 795 F.3d at 312 (quoting Leibowitz
v. Cornell Univ., 584 F.3d 487, 502 (2d Cir. 2009)).
Courts making the plausibility determination should do so
“mindful of the elusive nature of intentional
discrimination” and the frequency by which plaintiffs
must “rely on bits and pieces of information to support
an inference of discrimination, i.e., a mosaic of intentional
discrimination.” Vega, 801 F.3d at 86-87
(italics and internal quotation marks omitted).
The Parties' Arguments
Defendants note in their Memorandum in Support,
Plaintiff's discrimination claims in the Complaint are
imprecise as to whether she intends to make out a hostile
work environment claim, a disparate treatment ...