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Bermudez v. Bon Secours Charity Health System, Inc.

United States District Court, S.D. New York

January 9, 2020

SONNY BERMUDEZ, Plaintiff,
v.
BON SECOURS CHARITY HEALTH SYSTEM, INC., and THERESA KRELL. Defendants.

          OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS

          Alvin K. Hellerstein United States District Judge.

         Plaintiff Sonny Bermudez brings suit against his former employer and former supervisor under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq., and the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. L. § 290 et seq. Defendants move to dismiss. For the reasons that follow, Defendants' motion is granted in part, and denied in part. Plaintiff may file an amended complaint in 10 days.

         BACKGROUND

         Plaintiff began working as a Materials Coordinator for Defendant Bon Secours Charity Health System, Inc. ("BSCHS") in April 2012. In or around May 2014, Defendant Theresa Krell became his supervisor. Plaintiff alleges that Krell made sexual advances and comments to him.[1] He describes three specific incidents or patterns of conduct in the Complaint. First, in or around June 2017, Krell approached Plaintiff from behind and smacked him on his buttocks. Krell then stated, "If your wife were to find out, she would kick my ass." Second, in or around that same month, Krell approached Plaintiff from behind, reached one arm over Plaintiffs shoulder to grab supplies, placed her other hand around Plaintiffs waist, and rubbed her breasts from side to side against Plaintiffs back. Krell said, "If anyone saw this I would get fired, and if your wife found out, she would kick my ass." Third, on multiple occasions, when Krell saw Bermudez speaking to other women at work, Krell said, "Oooohhh, I am going to tell [Plaintiffs wife]!" Plaintiff fails to allege the dates of these comments. Due to fear of losing his job, Bermudez ignored Krell's advances and did not report them.

         Plaintiff further alleges that after he ignored Krell's advances, Defendants created a hostile work environment. For example, between February and May 2018, Krell yelled at Plaintiff and used profane language in response to simple greetings, aggressively and falsely accused him of opening a sterile box using a box cutter, removed the shade from his office window, stored equipment and noxious chemicals in his office, and forced him to keep his office door closed while other employees were allowed to keep theirs open. BSCHS (through Krell or other employees) told him to produce certain reports on short notice without giving him access to or training in the system necessary to complete those reports and excluded him from a meeting he had regularly attended.

         Between May and July 2018, Plaintiff requested multiple meetings with Human Resources and management personnel to discuss Krell's behavior. Only one meeting occurred, after which Defendants did not take any corrective action. On or about August 15, 2018, Plaintiff was suspended without pay after he was falsely accused of emailing confidential pricing information to his private email account. On September 17, 2018, he was terminated by Krell for allegedly forwarding confidential pricing information to his private email account.

         Plaintiff claims that he "timely filed charges of discrimination" with the Equal Employment Opportunity Commission ("EEOC") but fails to state the date on which he filed the charges.[2] After receiving a Notice of Right to Sue from the EEOC, Plaintiff filed the instant suit on August 21, 2019. He alleges gender-based discrimination in violation of Title VII against both Defendants ("Count I"), gender-based discrimination in violation of the NYSHRL, N.Y. Exec. L. § 296, against both Defendants ("Count II"); aiding and abetting discrimination in violation of the NYSHRL, N.Y. Exec. L. § 296(6), against Krell ("Count III"); and discrimination in the form of retaliation in violation of the NYSHRL, N.Y. Exec. L. § 296(7), against both Defendants ("Count IV").

         DISCUSSION

         In ruling on a motion to dismiss for failure to state a claim under Rule 12(b)(6), the Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiffs favor. Ruotolo v. City of N.Y., 514 F.3d 184, 188 (2d Cir. 2008). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

         I. Title VII Claim Against Krell

         First, the Title VII claim must be dismissed as to Defendant Krell. Plaintiff asserts Count I, his sole Title VII claim, against both BSCHS and Krell. It is well settled that "under Title VII individual supervisors are not subject to liability." Mandell v. Cty. of Suffolk, 316 F.3d 368, 377 (2d Cir. 2003); see also Littlejohn v. City of N.Y., 795 F.3d 297, 313 (2d Cir. 2015); Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000). Therefore, Count I, as asserted against Krell, is dismissed. Count I survives against BSCHS, subject to curing the failures to allege dates for the relevant events noted in this order.

         II. Title VII Claim Against BSCHS

         While Plaintiff fails to cite a specific provision of Title VII in the complaint, the complaint appears to invoke Title VII's prohibitions on sexual discrimination in the form of sexual harassment, see 42 U.S.C. § 2000e-2(a)(1), and retaliation, see 42 U.S.C. § 2000e-3.

         A. Hostile ...


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