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Xiang v. Eagle Enterprises, LLC

United States District Court, S.D. New York

January 16, 2020

VIVIAN XIANG, Plaintiff,

          OPINION & ORDER


         Plaintiff Vivian Xiang brings this action against her former employer Eagle Enterprises, LLC (“Eagle Enterprises”); its corporate parent Market America, Inc. (“Market America”); former supervisor Amy Remache; and two members of Market America's human resources team, Sherry Spesock and Star Hogan (together, the “Individual Defendants”). Xiang worked for Market America as a graphic designer for approximately five years until she was terminated. She alleges that Market America and Eagle Enterprises, by and through the Individual Defendants, discriminated against her and ultimately fired her because of her pregnancy. In her First Amended Complaint (“FAC”), she brings 13 claims under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-3(a) et seq. (“Title VII”); the Americans with Disabilities Act of 1990, 42 U.S.C. § 2000 et seq. (“ADA”) (as amended 2008); the New York State Human Rights Law, N.Y. Executive Law § 296 et seq. (“NYSHRL”); and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq. (“NYCHRL”).

         Pending now is defendants' motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, the motion is granted in part and denied in part.

         I. Background[1]

         A. Facts

         1. The Parties

         Market America is a product brokerage and internet marketing company. Eagle Enterprises is a staffing agency and a subsidiary of Market America. Xiang was employed by Eagle Enterprises as a graphic designer and completed work for various clients, including Market America. Remache is the Associate Art and Operations Director of Market America. Remache held supervisory authority over Xiang, including the ability to hire or fire her. Spesock is the Director of Human Resources of Market America. Xiang alleges that Spesock also held supervisory authority over her, including the ability to control her job duties and to hire or fire her. Hogan is Market America's Benefits Manager. Hogan did not have supervisory authority over Xiang.

         2. Overview of Xiang's Factual Allegations

         In July 2013, Xiang was hired by a Market America subsidiary, Social Streaming & Shopping Development, LLC, to work as a New York City-based graphic designer. FAC ¶ 15. In January 2016, Xiang was transferred to the payroll of Eagle Enterprises. Id. ¶ 16. In April 2018, Xiang informed her supervisor, Remache, that she was pregnant and would need to take a leave of absence in the coming months. Id. ¶ 17. In early June 2018, Xiang informed H.R. Director Spesock that she was pregnant and inquired about Market America's maternity leave policy. Id. ¶ 18. Three days later, after several follow-up phone calls, Xiang sent Spesock a second email. Id. ¶ 19. Spesock informed Xiang that she and Hogan would provide Xiang with maternity leave information the following week. Id.

         Several days later, Xiang informed Remache that she had a pregnancy-related doctor's appointment and requested that she be permitted to work from home following the appointment. Id. ¶ 20. Remache denied this request and required Xiang to use Paid Time Off (“PTO”) to attend the appointment. Id. At a team meeting the following day, Xiang alleges, Market America's time-off policy was discussed with her for the first time. Id. ¶ 21. Notwithstanding the policy, Xiang alleges that several of her colleagues had requested to work from home at the meeting and Remache granted those requests. Id. Some time later, Xiang again approached Remache and asked if she could work from home on days when she had pregnancy-related medical appointments. Id. ¶ 22. Remache again denied her request. Id. This was inconsistent with Xiang's understanding of Market America's work-from-home policy, which she believed only restricted working from home in July and August. Id.

         Five days after she had been informed by Spesock that Hogan would be providing her with information on the company's maternity leave policy, Xiang followed up with Hogan and Spesock. Id. ¶ 23. Hogan informed her that she should contact Market America's insurance provider, UNUM, for information, id. ¶ 23, which in turn sent her back to Hogan, id. ¶ 24. When Xiang called Hogan again, Hogan informed her that she needed to check with Spesock before answering Xiang's questions. Id. ¶ 25. A few days later, Xiang called Hogan to follow up and was informed that Hogan was still waiting for answers from Spesock. Id. ¶ 26. Xiang contends that she was never given the requested information from Market America. Id. ¶ 27.

         On June 29, 2018 Xiang began to feel nauseous at work and sought permission from Remache to leave work early. Id. ¶ 28. Remache insisted that Xiang use a half day of PTO, even though she would be absent from work for fewer than four hours. Id. ¶ 29. Xiang contends this, too, was contrary to Market America's PTO policy. Id. When Remache followed up with Xiang the following week about submitting her PTO request, id. ¶ 30, Xiang called and emailed Spesock seeking clarification of the PTO policy and information about Market America's maternity leave policy, which she still had not received. Id. ¶ 31. Spesock did not return her messages, and Xiang submitted her PTO request. Id. ¶ 32. She then contacted Remache and Market America's Art Director Kirsten MacCaull in a further attempt to clarify the PTO policy for partial absences in light of the number of pregnancy-related medical appointments she would need to attend in the months ahead. Id. Neither Remache nor MacCaull returned Xiang's messages. Id.

         On July 3, 2018, Xiang submitted the information she thought was relevant to UNUM so as to begin the processing of her maternity leave. Id. ¶ 33. A week later, her claim status on UNUM's website reflected that UNUM had requested information from Market America; the leave was never processed. Id. ¶ 34. On July 24, 2018, Remache and Spesock fired Xiang over the phone. Id. ¶ 35.

         B. Procedural History

         On September 5, 2018, Xiang filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission (“EEOC”). Id. ¶ 3. On November 27, 2018, she received a right to sue letter from the EEOC. Id. ¶ 4. On February 25, 2019, she filed her initial complaint. Dkt. 1. On May 13, 2019, defendants filed a motion to dismiss, Dkt. 6, a supporting memorandum of law, Dkt. 7 (“Def. Mem.”), and a supporting declaration of Keith A. Markel, Esq., Dkt. 8 (“Markel Dec.”).

         On June 3, 2019, Xiang filed the FAC. FAC. On June 24, 2019, defendants informed the Court that they would rely on their previously filed motion to dismiss. Dkt. 11. On July 8, 2019, the Court granted a consent motion to extend Xiang's deadline to oppose the motion to dismiss. Dkt. 13. On August 7, 2019, Xiang filed an opposition. Dkt. 14 (“Opp'n”). On August 21, 2019, defendants filed their reply. Dkt. 15 (“Reply”).

         II. Applicable Legal Standards

         To survive a motion to dismiss under Rule 12(b)(6), a complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint must be dismissed where, as a matter of law, “the allegations in a complaint, however true, could not raise a claim of entitlement to relief.” Twombly, 550 U.S. at 558. When resolving a motion to dismiss, the Court must assume all well-pleaded facts to be true, “drawing all reasonable inferences in favor of the plaintiff.” Koch, 699 F.3d at 145. That tenet, however, does not apply to legal conclusions. See Iqbal, 556 U.S. at 678. Pleadings that offer only “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.

         III. Discussion

         A. Materials Properly Before the Court

         At the threshold, the Court must determine whether the documents submitted in the Markel Declaration, on which defendants heavily rely, are properly considered at the motion to dismiss stage. “A complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.” Nicosia v., Inc., 834 F.3d 220, 230 (2d Cir. 2016) (internal quotation marks and citations omitted) (collecting cases). “Where a document is not incorporated by reference, the court may nevertheless consider it where the complaint relies heavily upon its terms and effect, thereby rendering the document ‘integral' to the complaint.” Id. (quoting DiFolco, 622 F.3d at 111); Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006). The Second Circuit has explained that a “necessary prerequisite for taking into account materials extraneous to the complaint is that the plaintiff rely on the terms and effect of the document in drafting the complaint; mere notice or possession is not enough.” Nicosia, 834 F.3d at 231 (internal quotation marks omitted).

         Where a defendant's motion to dismiss improperly includes a document that is neither incorporated by reference in the complaint nor integral to it, a district court must either ignore the extraneous document or convert the motion to dismiss into a motion for summary judgment and allow discovery to proceed before ruling. Fed.R.Civ.P. 12(d).

         The Markel Declaration attaches seven exhibits, broadly summarized as: (1) an email from Xiang sent in 2016, Markel Dec., Ex. A; (2) excerpts from Eagle Enterprises' employee handbook, id., Ex. B; (3) a series of emails between other Market America employees on which Xiang is not copied, id., Ex. C; (4) emails between Xiang and others regarding various work assignments dated October 2017, November 2017, and February 2018, id., Ex. D; (5) emails between Xiang and a supervisor from January 2018, id., Ex. E; (6) emails from supervisors to Xiang, and between supervisors (on which Xiang is not copied) from October 2017, February 2018, and March 2018, id., Ex. F; and (7) Xiang's emails with Remache and Spesock in late June and early July 2018 regarding the PTO policy for partial absences, id., Ex. G.

         Of these exhibits, only the final one, Exhibit G, is incorporated by reference into the amended complaint. See FAC ¶¶ 28-32. The others are not referred to nor relied upon by the FAC in a way that renders them integral to it. Indeed, some predate the relevant time period of April-July 2019, or are email conversations to which Xiang was not privy. And while some parts of Eagle Enterprises' employee handbook may be relevant to the factual allegations in the FAC, the portion defendants include in Exhibit B says nothing about the company's PTO or work-from-home policies. The Court will therefore consider Exhibit G and disregard Exhibits A-F of the Markel Declaration in resolving the motion to dismiss.

         B. Xiang's Pregnancy Discrimination Claims under Title VII, the NYSHRL, and the NYCHRL

         Xiang alleges that defendants discriminated against her on account of her pregnancy while she was employed, and ultimately terminated her because she was pregnant and had stated an intention to take maternity leave. She claims that this conduct violated several statutes.

         1. Title VII Discrimination

         Xiang first claims that Market America and Eagle Enterprises discriminated against her in violation of Title VII. FAC ¶¶ 47-50. Title VII provides, in relevant part, that “[i]t shall be an unlawful employment practice for an employer . . . to discharge any individual, or otherwise to discriminate against [them] with respect to . . . terms, conditions, or privileges of employment, because of [the] individual's . . . sex.” 42 U.S.C. § 2000e-2(a)(1). “In 1978, Congress passed the [Pregnancy Discrimination Act (‘PDA')], which expressly overruled the Supreme Court's holding in General Electric Co. v. Gilbert, 429 U.S. 125 (1976), that pregnancy discrimination is not sex discrimination.” Legg v. Ulster County., 820 F.3d 67, 72 (2d Cir. 2016). The PDA added the following language to Title VII's definitional section:

The terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work . . . .

Pub. L. No. 95-555, 92 Stat. 2076 (1978) (codified at 42 U.S.C. § 2000e(k)); see Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 670-71 & n.1 (1983).

         In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973), the Supreme Court defined the elements of a prima facie case for a claim of employment discrimination under Title VII, which apply in the context of a pregnant employee's claim of wrongful termination. See, e.g., Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir. 1995). A plaintiff must plead sufficient facts to show that (1) she is a member of a protected class; (2) she satisfactorily performed the duties required by the position; (3) she was discharged; and (4) the discharge occurred in circumstances giving rise to an inference of unlawful discrimination. Id. Where a plaintiff employee alleges a failure to accommodate her pregnancy, to adequately plead a prima facie case she must plead sufficient facts to show “[1] that she belongs to the protected class, [2] that she sought accommodation, [3] that the employer did not accommodate her, and [4] that the employer did accommodate others similar in their ability or inability to work.” Legg, 820 F.3d at 73 (internal quotation marks omitted); Young v. United Parcel Serv., Inc., 575 U.S. 206, 229 (2015). Whether an employee is alleging wrongful termination or a discriminatory failure to accommodate, “[t]he requirements to establish a prima facie case are minimal, and a plaintiff's burden is therefore not onerous.” Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119, 128 (2d Cir. 2012) (internal quotation marks and citations omitted).

         Here, Xiang's FAC pleads sufficient facts to make out a prima facie case of Title VII pregnancy discrimination. First, it pleads facts suggesting that Market America, in applying or purporting to apply its work-from-home and PTO policies, failed to accommodate her pregnancy. According to the FAC, Remache on at least one occasion granted work-from-home privileges to other members of Xiang's team but denied her request for the same. FAC ¶ 21. Xiang also pleads that she was obliged to use PTO for pregnancy-related medical appointments or short absences when such absences would not have otherwise required the use of paid leave. Id. ¶¶ 20, 22, 29. Second, Xiang pleads facts that satisfy her minimal burden of showing that her termination-four months after informing Market America that she was pregnant, and with her maternity leave becoming imminent, see Id. ¶¶ 17-19, 23-27, 33-35-occurred under circumstances giving rise to an inference of unlawful discrimination.

         Excising the references to extraneous documents, defendants' sole argument in opposition to this claim is that, because the three individual defendants implicated in the complaint-Remache, Spesock, and Hogan-are also women, defendants are entitled to a strong presumption that Xiang was not subjected to sex discrimination. Def. Mem. at 11-12; Reply at 4; see Allen v. Chanel, Inc., No. 12 Civ. 6758 (LAP), 2015 WL 3938096, at *5 (S.D.N.Y. June 26, 2015) (“[W]hen the decision-maker is in the same protected class[] as the plaintiff-employee, courts can draw inferences against discriminatory intent.”). Assuming arguendo the merits of this proposition, it gains limited traction here. That is because, as pled in Xiang's complaint, there is no indication that any of the decisionmakers in Xiang's case were pregnant. Because Xiang has exclusively pled employment discrimination on the basis of her pregnancy, the shared gender of Xiang and her superiors does not undermine Xiang's prima facie showing of discrimination. The Court therefore denies defendants' motion to dismiss Xiang's claim of discrimination under Title VII.

         2. Discrimination in Violation of the NYSHRL

         Xiang also alleges that all defendants discriminated against her in violation of ...

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