United States District Court, S.D. New York
OPINION & ORDER
A. ENGELMAYER, DISTRICT JUDGE.
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.
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.
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.
Overview of Xiang's Factual Allegations
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.
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.
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.
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.
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.
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
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”).
Applicable Legal Standards
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.
Materials Properly Before the Court
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. Amazon.com, 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).
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).
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.
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.
Xiang's Pregnancy Discrimination Claims under Title VII,
the NYSHRL, and the NYCHRL
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.
Title VII Discrimination
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 &
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 “ that she belongs to the protected
class,  that she sought accommodation,  that the
employer did not accommodate her, and  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).
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.
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
Discrimination in Violation of the NYSHRL
also alleges that all defendants discriminated against her in
violation of ...