Luzunaris v. Baly Cleaning Servs.

1

GABRIELLE LUZUNARIS, Plaintiff, v. BALY CLEANING SERVICES, et al., Defendants.

No. 23-CV-11137 (GHW) (RFT)

United States District Court, S.D. New York

July 29, 2024

REPORT AND RECOMMENDATION

TO THE HONORABLE GREGORY H. WOODS, UNITED STATES DISTRICT JUDGE:

Plaintiff Gabriella Luzunaris (“Luzunaris”) brings claims under federal, state, and city law against Defendants Baly Cleaning Services, Inc. (“Baly Cleaning”) and Nade Coulibaly-Doucoure (“Coulibaly-Doucoure”) for alleged discrimination based on sex and pregnancy and for retaliation. (See ECF 1, Compl.) Pending before the Court is Defendants' motion to dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim. Having carefully reviewed the parties' submissions, and for the reasons set forth herein, I respectfully recommend that Defendants' motion be GRANTED IN PART and DENIED IN PART as specified below.

FACTUAL BACKGROUND

For purposes of the pending motion to dismiss, the Court must accept Plaintiff's well-pleaded allegations as true and draw all reasonable inferences in her favor. See City of Providence v. BATS Glob. Mkts., Inc., 878 F.3d 36, 50 (2d Cir. 2017). Plaintiff's allegations are summarized below.

Plaintiff was hired as a janitorial cleaner by Baly Cleaning around February 28, 2022 in connection with its contract to provide cleaning services to sites administered by the New York City Housing Authority (“NYCHA”). (See ECF 1 Comp. ¶¶ 28-29.) Coulibaly-Doucoure was the owner of Baly Cleaning and Plaintiff's supervisor. (See id. ¶ 26.) Plaintiff was to work 40 hours per week at the rate of $39.36 per hour. (See id. ¶ 8.) For the first few weeks of her employment, Plaintiff was assigned to multiple NYCHA sites. (See id. ¶ 32.) During that time, Plaintiff learned that she was pregnant and “immediately” told Coulibaly-Doucoure. (See id. ¶ 34.) Coulibaly-Doucoure advised Plaintiff that her pregnancy would not be an issue and asked Plaintiff about the timing of her maternity leave; Coulibaly-Doucoure said that she had few female employees and was unsure about how to handle maternity leave. (See id. ¶¶ 35-36.)

Coulibaly-Doucoure next assigned Plaintiff temporarily to NYCHA's Washington-Lenox Houses, where Plaintiff's tasks were modified by that site's superintendent after Coulibaly-Doucoure told the superintendent that Plaintiff was pregnant. (See id. ¶¶ 38-39.) Coulibaly-Doucoure did not inform the superintendents at subsequent NYCHA sites to which Plaintiff was assigned of the pregnancy, and so Plaintiff's work was not adjusted. (See id. ¶ 41.) Plaintiff was unable to perform certain assigned tasks, which created tension between her and her coworkers. (See id. ¶¶ 42-43.)

On May 6, 2022, Coulibaly-Doucoure held a mandatory video conference over Zoom for all of Plaintiff's co-workers “to discuss Plaintiff's pregnancy.” (See id. ¶ 44.) Following the Zoom meeting held around May 6 2022, Plaintiff asked Coulibaly-Doucoure why the other superintendents had not been told of the pregnancy so that Plaintiff's tasks could be adjusted. (See id. ¶¶ 45-46.) Coulibaly-Doucoure did not respond. (See id. ¶ 47.) Plaintiff was then scheduled for only four days of work the next week. (See id. ¶ 50.) Plaintiff complained that her hours had been cut and asked whether Coulibaly-Doucoure had made accommodation requests on Plaintiff's behalf to superintendents at other NYCHA sites. (See id. ¶ 51.) Coulibaly-Doucoure did not respond. (See id. ¶ 52.) Plaintiff was not assigned any work during the week of May 16, 2022. (See id. ¶ 53.)

Around May 25, 2022, Plaintiff complained again to Coulibaly-Doucoure. (See id. ¶ 56.) Coulibaly-Doucoure's response was that none of the available work was suitable for Plaintiff, but that Baly Cleaning would find work for Plaintiff. (See id. ¶¶ 58-59.) For several weeks, Plaintiff was not assigned any work. (See id. ¶¶ 70-71.)

In June 2022, Plaintiff was assigned to Brooklyn Outdoor Gardens, where Plaintiff was required to work outside and on her feet throughout her entire shift. (See id. ¶¶ 73-74.) She left 30 minutes early due to pregnancy symptoms, including swelling ankles. (See id. ¶ 75.) On June 23, 2022, Coulibaly-Doucoure told Plaintiff that she was trying to look the other way but that she had concerns that Plaintiff was not working. (See id. ¶ 78.) Coulibaly-Doucoure said she had an assignment that was only three hours a day but that she was concerned that Plaintiff has been rejecting assignments. (See id. ¶ 79.) Plaintiff had refused to take on assignments that were less than full time or at a lower pay rate ($25.00 per hour) than the $39.36 per hour she had been promised. (See id. ¶¶ 80-81.)

Around this time, Plaintiff became aware that Coulibaly-Doucoure had assignments available at the Washington-Lexington Houses, where Plaintiff had previously received an accommodation. (See id. ¶ 82.) When Plaintiff asked Coulibaly-Doucoure about those assignments, Coulibaly-Doucoure demanded to know how Plaintiff knew about them. (See id. ¶¶ 83-84.) When Plaintiff refused to disclose her source, Coulibaly-Doucoure asked Plaintiff's co-workers if they had informed Plaintiff of the Washington-Lenox assignments. (See id. ¶¶ 8586.) Plaintiff's co-workers then reported Coulibaly-Doucoure's inquiry to Plaintiff. (See id. ¶ 87.)

Around June 24, 2022, Plaintiff told Coulibaly-Doucoure that her doctor had written a letter requesting reasonable accommodations. (See id. ¶ 89.) Plaintiff raised with Coulibaly-Doucoure her calls to other employees and told Coulibaly-Doucoure that she wanted to speak to an attorney about Coulibaly-Doucoure's unwillingness to accommodate her pregnancy. (See id. ¶¶ 90-92.) Coulibaly-Doucoure said that she would “see [Plaintiff] in court,” at which time Plaintiff's coworkers would be called to testify against Plaintiff. (See id. ¶¶ 93-94.) Plaintiff construes those statements by Coulibaly-Doucoure as actually terminating her from her position; in the alternative, Plaintiff takes the position that her mistreatment by Defendants, which culminated in the threat of litigation with her co-workers testifying against her, constituted constructive termination. (See id. ¶¶ 105-08, 122.)

PROCEDURAL HISTORY

On September 28, 2023, the EEOC issued Plaintiff a “Right-to-Sue” Letter. (See ECF 1-1, Letter). On December 22, 2023, Plaintiff timely filed a complaint alleging claims arising out of her employment with Baly Cleaning. (See ECF 1, Compl.)^[1] The Court issued an order of reference to Magistrate Judge Sarah L. Cave for general pretrial supervision and for dispositive motions. (See ECF 15, Order.) The reference was reassigned to me on December 28, 2023.

Defendants filed a motion to dismiss on March 31, 2024. (See ECF 22, Defs.' Mem. in Supp. of Mot. To Dismiss.) In support of their motion, Defendants annexed 12 documents, including affidavits from each defendant, one of Plaintiff's co-workers, and a NYCHA employee (see ECF 22-1, Aff. of Baly Cleaning Services, Inc.; ECF 22-8, Aff. of Nade Coulibaly-Doucoure; ECF 22-13, Aff. of April Thorpe; ECF 22-14, Aff. of Kahlil Hill); the offer of employment to Plaintiff (see ECF 22-2); Baly Cleaning's employee handbook and employee handbook receipt (see ECF 22-3; ECF 22-4); a “New Employee Info - Policy Guide” (see ECF 22-7); and copies of Plaintiff's pay stubs (see ECF 22-5). Defendants' motion was fully briefed by April 29, 2024.^[2] (See ECF 27, Pl.'s Opp.; ECF 36, Defs.' Reply Mem.)

LEGAL FRAMEWORK ON A MOTION TO DISMISS

Judgment on a Rule 12(b) motion for “failure to state a claim upon which relief can be granted” is appropriate when the complaint does not “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)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. In deciding a Rule 12(b)(6) motion for failure to state a claim, the Court “must accept as true all of the allegations contained in a complaint[,]” but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (internal quotations marks and citation omitted). Determining whether a complaint states a plausible claim is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. (internal quotation marks and citation omitted).

In evaluating a Rule 12(b)(6) motion, “a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). Extrinsic evidence may not be considered by the court, because “a Rule 12(b)(6) motion . . . challenges the complaint as presented by the plaintiff, taking no account of its basis in evidence.” Goel v. Bunge Ltd., 820 F.3d 554, 559 (2d Cir. 2016). However, an exception exists for extrinsic documents that are “integral” to the complaint, in that the plaintiff relied heavily upon such documents' “terms and effect” in drafting the complaint, so long as it is “clear on the record that . . . no dispute exists regarding the authenticity or accuracy of the document[s].” Id. “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 ...