Golubovych v. Saks 5th Ave.

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LARYSA V. GOLUBOVYCH, Plaintiff, v. SAKS 5TH AVENUE, INC., Defendant.

No. 1:22-cv-9923-MKV

United States District Court, S.D. New York

September 10, 2024

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

MARY KAY VYSKOCIL, United States District Judge:

Plaintiff who is proceeding pro se, brings this action against Saks Fifth Avenue Inc.^[1](“Saks”), alleging discrimination, retaliation, and hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”) and the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 (“ADEA”). Defendant now moves to dismiss Plaintiff's Amended Complaint. For the reasons below, the motion to dismiss is GRANTED in part and DENIED in part.

BACKGROUND^[2]

Plaintiff is Subjected to Alleged Discriminatory Acts by Saks

Plaintiff was born in 1956 and has worked as a Sales Associate at Saks since 2004. See Compl. at 21, 27. From 2004 until approximately 2018, Plaintiff worked as a “top” Associate, earning upwards of $70,000 per year. See Compl. at 27. Plaintiff alleges that beginning in or around May 2018 and until her ultimate termination on August 5, 2020, Saks subjected her to a “succession of discriminatory” acts and retaliation based on her age. Compl. at 2, 9.

Specifically Plaintiff alleges that in May 2018, January 2019, and August 2019, she and several other associates between the ages of 50 and 70 years old were relocated to work in the back of Saks's store, which was surrounded by construction noise, and dust and contained no entrances or exits. Compl. at 8. Plaintiff alleges that the environment deterred customers from visiting her assigned work zone, and such isolated placement had the effect of reducing her income from approximately $70,000 to approximately $25,000 per year. Compl. at 27. According to Plaintiff, newer and younger sales associates were not placed in the isolated zones but were instead assigned central locations which attracted more customers and, therefore, potential commission. Compl. at 27. In addition, newer and younger associates were allegedly allowed to move freely throughout the store. Compl. at 27.

On June 28, 2018, Plaintiff received a written warning for purportedly being “unable to communicate thoroughly with [her] director and . . . regarding personal concerns.” Compl. at 8. On October 4, 2018, Saks required Plaintiff to “attend [a] 30, 6090 Day PIP Follow-Ups Process” meeting “for all reviews in which an associate has shown an improvement in behavior/productivity.” Compl. at 8. Plaintiff further generally alleges she was “turned down” “a few times” for promotions and transfers that were given to younger works with less experience and fewer qualifications. Compl. at 23.

Plaintiff Files a Charge with the New York State Division of Human Rights and Files an Article 78 Proceeding

On November 30, 2018, Plaintiff-represented by counsel at the time-filed a verified complaint with the New York State Division of Human Rights (“SDHR”), alleging discrimination based on race and age, in violation of Title VII and the ADEA. See Declaration of Justin Reiter [ECF No. 48] (“Reiter Decl.”), Ex. C (“SDHR Complaint”);^[3] Reiter Decl., Ex. D (“SDHR Pl. Rebuttal”). Among other allegations, Plaintiff alleged that Saks discriminated against her by (1) “giving her a warning on June 28, 2018,” along with other “frivolous warnings under false accusations” during the time period of 2013 through November 30, 2018, (2) calling her into a meeting on October 4, 2018 “for a ‘60 Day PIP Follow-Up Process' to discuss her sales,” and (3) in 2018 by placing her “along with five other associates between the ages of 50 and 70 years old” in its Accessories Department, which “is in an isolated, distant area in the back of [Defendant's] store that is surrounded by construction, which in turn creates noise and dust that deters customers from visiting.” See SDHR Pl. Rebuttal.

On June 3, 2019, the SDHR concluded that there was a “lack of evidence in support of [Plaintiff's] allegations of retaliation, and age and race/color discrimination,” and issued a “No Probable Cause” determination, dismissing Plaintiff's SDHR Charge. See Reiter Decl., Ex. E (“SDHR Determination and Order After Investigation”). In the Determination and Order After Investigation, the SDHR stated that Plaintiff's charge was filed under Title VII and the ADEA, “[e]nforcement [of which] is the responsibility of the [Equal Employment Opportunity Commission (“the EEOC”)].” Id. The Order further advised that Plaintiff had “the right to request a review by EEOC of this action,” and to “secure review, [Plaintiff] must request it in writing, within 15 days of [] receipt of this letter.”^[4] Id.

Instead, on July 15, 2019, Plaintiff commenced a special proceeding pursuant to Article 78 of the New York Civil Practice Law and Rules (“CPLR”) against Saks and the SDHR in New York State Supreme Court, County of New York (the “Article 78 Action”) (Index No. 101086/2019), challenging the SDHR's dismissal of Plaintiff's SDHR Charge and realleging largely the same claims and factual charges regarding incidents occurring between May 2018 and the winter of 2019 as had been set forth in the SDHR proceeding. See Reiter Decl., Ex. F (“Article 78 Petition”). On January 3, 2020, the State Court dismissed Plaintiff's Article 78 Petition, holding that “based on the record, it cannot be said that the SDHR's decision was arbitrary and capricious, or without a rational basis.” See Reiter Decl., Ex. G (“State Court Opinion”). Plaintiff contends that while her Article 78 proceeding was pending, her supervisor, Briana Kottler (“Kottler”) “harassed” her on August 19, 2019, August 23, 2019 and August 24, 2019 by demanding that Plaintiff stay “in [her] zone” while “young employees” were allowed to “relocate[] to every leased boutique to ring sales for customers.” Compl. at 9, 13, 23.

During the timeframe underlying Plaintiff's allegations, her mother suffered from a medical condition. Compl. at 9. Sadly, in or around September and October 2019, the health of Plaintiff's mother worsened. Compl. at 9. Plaintiff asserts that around this time, she provided Kottler and Saks a doctor's note, which advised that Plaintiff's mother could not be unattended after 8:30 pm. Compl. at 9. Plaintiff alleges that notwithstanding informing Saks that she could not work after 8:30 pm in order to care for her mother, on November 29, 2019, Kottler scheduled Plaintiff as the only associate from her department to work a night shift for a special store event. Compl. at 9. When Plaintiff returned home from her work shift that night, she found her mother unresponsive, and her mother passed away that night. Compl. at 9. Plaintiff states that since 2019, she has been in active treatment for depression, panic attacks, and anxiety. Compl. at 9.

Plaintiff Files a Charge with the EEOC and is Terminated from Saks

On March 5, 2020, Plaintiff filed a charge with the EEOC (the “EEOC Charge”), alleging that Saks discriminated against her based on her age and retaliated against her because she complained of age discrimination. Compl. at 9, 27. As she had in the SDHR Charge, in the EEOC Charge, Plaintiff alleged, inter alia, that: (1) she and other sales associates in their “50s and 60s” were “relegated to non-visible areas in the stores,” (2) she was written up for leaving her “area (a ‘zone'),” and (3) “newer/younger sales associates [were] not placed in isolated areas.” Compl. at 27. Unlike in her SDHR claim, Plaintiff did not assert any Title VII claim in her EEOC Charge. Compl. at 27.

Exactly five months later, on August 5, 2020, Plaintiff was terminated via text message by the director of the “main floor” due to her “sales numbers for 2019.” Compl. at 23. Three days after receiving the text message terminating her employment, Plaintiff alleges that Connie Brienza, Director of Human Resources, emailed Plaintiff informing her that she was “required to sign and return [a] Separation release,” and that failure to sign it would “render [Plaintiff] ineligible” for benefits coverage. Compl. at 9. Plaintiff ultimately signed the “Separation release” (hereinafter the “Separation Agreement and Release”). Compl. at 9. Plaintiff alleges that, at the time she signed the Agreement, she was suffering from “severe psychological trauma,” due to, among other things, the “hostile work environment [at Saks]” and the “loss of [her] mother,” which should render the Agreement “illegal and invalid.” Compl. at 9. Plaintiff further alleges that while Plaintiff's EEOC Charge was pending, Saks fired at least seven additional employees from Plaintiff's department, “many of [whom] were replaced by younger employees.” Compl. at 23. Plaintiff provides no additional detail on these seven terminated employees or the younger employees who purportedly replaced them.

On August 23, 2022, the EEOC issued Plaintiff a Determination Letter stating that the EEOC's investigation determined “that there is reasonable cause to believe that [Saks] discriminated and retaliated against [Plaintiff] and a class of similarly situated older workers on account of age.” Compl. at 9, 16. On September 23, 2022, Plaintiff was issued a right to sue letter. Compl. at 25.

PROCEDURAL HISTORY

Plaintiff timely filed this action within 90 days of receiving her right to sue letter. [ECF No. 1]. She subsequently filed an Amended Complaint (“the Complaint”) with leave of the Court. [ECF No. 35]. The Complaint asserts various claims, including an unspecified Title VII claim and age discrimination, retaliation, and hostile work environment claims under the ADEA. Compl. at 20, 21. Defendant Saks now moves to dismiss, arguing that the Court...