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Ibrahim v. Fidelity Brokerage Services LLC

United States District Court, S.D. New York

January 9, 2020

MAIE IBRAHIM, Plaintiff,
v.
FIDELITY BROKERAGE SERVICES LLC, Defendant.

          OPINION AND ORDER

          VALERIE CAPRONI, United States District Judge

         Plaintiff Maie Ibrahim brought this action against her former employer, Fidelity Brokerage Services LLC (“Fidelity”), [1] alleging hostile work environment, constructive discharge, and retaliation in violation of the New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code § 8-107(1)(a). Fidelity moves to dismiss the hostile work environment and constructive discharge claims, and to strike Plaintiff's allegations pertaining to her employment at a Fidelity branch outside of New York City. For the reasons set forth below, Fidelity's motion to dismiss is DENIED, and Fidelity's motion to strike is GRANTED IN PART and DENIED IN PART. Plaintiff is given leave to amend the Complaint to plead additional facts that would make relevant the stricken allegations, and to amend her first and second causes of action consistent with this opinion.

         I. BACKGROUND[2]

         In December 2011, Plaintiff began working at a Fidelity branch in Garden City, New York, where she remained for three-and-a-half years. Compl. ¶¶ 17-18. During that time, she was allegedly discouraged by her manager from seeking a promotion and was passed over in favor of a less qualified man for that position. Compl. ¶¶ 26, 29. After learning that Plaintiff was engaged to be married, her manager suggested that Plaintiff look for other opportunities because “her priorities were about to change.” Compl. ¶¶ 30-31. In response to Plaintiff's complaints, Fidelity's human resources department instructed her to speak to her manager (i.e., the alleged harasser) about her concerns. Compl. ¶¶ 32-34.

         In July 2015, Plaintiff received a different promotion and began working as a financial consultant for Fidelity at an office in Manhattan. Compl. ¶ 36. While employed at the Manhattan office, Plaintiff was allegedly sexually harassed. In September 2016, Roger Young, a Senior Vice President at Fidelity, allegedly touched her thighs, genitals, and buttocks at a work-related event. Compl. ¶¶ 37-41. Plaintiff also alleges ongoing harassment, from September 2015 to her resignation in April 2018, by her manager Elliott Wiesen. Compl. ¶¶ 44-45. Wiesen allegedly asked her-and only her-to have lunch and coffee together, despite her repeated refusals. Compl. ¶¶ 46-48. He also commented on her attractiveness, hair, clothes, and nails, Compl. ¶¶ 50-51, and invoked sex-based stereotypes, telling her that her husband would need to learn how to cook now that she would be “staying late with” Wiesen, Compl. ¶ 49. On one occasion, apparently unprompted, Wiesen told Plaintiff that his “genitals worked.” Compl. ¶ 52. Additionally, when Wiesen became aware that Plaintiff wanted to conceive, he indicated that she may not be employed much longer, issued her multiple performance warnings, and reduced her work responsibilities. Compl. ¶¶ 53-59 (“During a meeting, [Wiesen] indicated that [Plaintiff] will not be employed shortly after she told him she planned on starting a family.”). Sometime in April 2018, Wiesen allegedly steered “an angry and threatening customer, ” who was not Plaintiff's client, into her office. Compl. ¶ 69.

         On April 25, 2018, Plaintiff resigned. See Compl. ¶ 71. By that point, Plaintiff had allegedly made multiple written complaints to Fidelity's human resources and to Fidelity's CEO. Compl. ¶¶ 61-62, 64, 67. Fidelity allegedly took no remedial action, except to require Plaintiff to meet, alone, with Wiesen. Compl. ¶¶ 64-66. Plaintiff commenced this action in New York State Supreme Court; Defendants removed the action on the basis of diversity jurisdiction.[3] Defendant moves to strike the allegations related to Plaintiff's time working in the Garden City branch, and to dismiss Plaintiff's hostile environment claim and constructive discharge theory.

         II. DISCUSSION

         A. Defendant's Motion to Strike

         Pursuant to Rule 12(f) of the Federal Rules of Civil Procedure, “[t]he court may strike from a pleading . . . any redundant, immaterial, impertinent, or scandalous matter.” The Second Circuit has held that “motions to strike material solely ‘on the ground that the matter is impertinent and immaterial' are disfavored.” Brown v. Maxwell, 929 F.3d 41, 51 n.42 (2d Cir. 2019) (quoting Lipsky v. Commonwealth United Corp., 551 F.2d 887, 893 (2d Cir. 1976)) (emphasis original). When deciding a “Rule 12(f) motion [made] on the ground that the matter is impertinent and immaterial, it is settled that the motion will be denied, unless it can be shown that no evidence in support of the allegation would be admissible.” Lipsky, 551 F.2d at 893. Allegations are “‘impertinent' or ‘immaterial' when [they] are neither responsive nor relevant to the issues involved in the action.” Anderson v. Davis Polk & Wardwell, 850 F.Supp.2d 392, 416 (S.D.N.Y. 2012) (quoting 2 James Wm. Moore et al., Moore's Federal Practice ¶ 12.37[3] (3d ed. 2010)). Because Fidelity seeks to strike Plaintiff's Garden City allegations only on the basis that they are “immaterial” and “impertinent, ”[4] the motion must be denied unless Fidelity can show that no evidence in support of those allegations would be admissible.

         Plaintiff concedes that the Garden City allegations themselves are not actionable under the NYCHRL, Pl.'s Mem. of Law (Dkt. 17) at 5, because the NYCHRL only reaches conduct that has an impact in New York City. See Hoffman v. Parade Publications, 15 N.Y.3d 285, 291 (2010) . Plaintiff further concedes that even if the Garden City allegations could give rise to a discrimination claim under the NYCHRL, they would be time-barred. Pl.'s Mem. of Law at 5; see also Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 238 (2d Cir. 2007) (“[C]laims under . . . the NYCHRL are time-barred unless filed within three years of the alleged discriminatory acts.” (citing N.Y.C. Admin. Code § 8-502(d))).

         Nevertheless, allegations relating to the inefficacy of her internal complaints in Garden City are relevant to her constructive discharge theory. A constructive discharge occurs when an employer intentionally “create[s] an intolerable environment that forces the employee to resign, ” and the work conditions are “so intolerable that [a reasonable person] would have felt compelled to resign.” Shultz v. Congregation Shearith Israel of City of New York, 867 F.3d 298, 308 (2d Cir. 2017) (citation omitted). Courts “generally [] refuse[] to find a constructive discharge where an employee had an avenue through which she could seek redress for the allegedly ‘intolerable' work atmosphere leading up to her resignation, but failed to take advantage thereof.” Murphy v. Dep't of Educ. of City of New York, 155 A.D.3d 637, 640 (2d Dep't 2017) (citation omitted).

         Consistent with that precedent, Plaintiff could show that conditions at Fidelity were intolerable because Fidelity had a pattern of failing to address credible claims of sexual harassment. Moreover, accepting Plaintiff's allegations as true, Fidelity consistently required Plaintiff to confront her harasser alone, which plausibly made the conditions even less tolerable. The precise weight of the events in Garden City is disputable, but Plaintiff's allegation that her complaints were largely ignored by Fidelity on separate occasions, if proven, is some evidence that Fidelity did not have an efficacious process for handling complaints of sexual harassment. That evidence would generally support Plaintiff's position that she did not fail to take advantage of an alternative short of resignation. Thus, even though the Garden City allegations are not themselves actionable under the NYCHRL, they may bolster Plaintiff's constructive discharge theory, which arises from her employment in Manhattan.

         Fidelity argues that allowing the allegations to stand would “potentially expand the scope of discovery into allegations that have no legal basis.” Def. Mem. of Law at 8. To be clear, the relevant question is not whether Plaintiff was in fact harassed by her manager in Garden City. The only relevant issues are Fidelity's knowledge of Plaintiff's complaints of harassment in Garden City and Fidelity's response once it became aware of her complaints. Accordingly, there is to be no discovery into whether Plaintiff was actually harassed by her manager while employed at the Garden City branch.

         For those reasons, factual allegations about Plaintiff's Garden City employment that are unrelated to Fidelity's knowledge of Plaintiff's reported harassment and Fidelity's response to Plaintiff's complaints should be stricken as “immaterial” and “impertinent.” In particular, paragraphs 21 to 31 of the Complaint, which detail Plaintiff's alleged harassment at Garden City, must be stricken because the Complaint does not specify which of those incidents, if any, were reported or otherwise made known to Fidelity's human resources department.

         Fidelity's motion to strike is therefore GRANTED as to paragraphs 21 to 31 of the Complaint. Nevertheless, because Plaintiff may be able to allege the specifics of what she communicated to Fidelity, which could include the facts contained in some or all of the stricken paragraphs, Plaintiff is granted leave to ...


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