Motta v. Global Contract Servs. Inc.

ESTHER MOTTA, et al., Plaintiffs, v. GLOBAL CONTRACT SERVICES INC., et al., Defendants.

JOY JOSEPH, et al., Plaintiffs, v. GLOBAL CONTRACT SERVICES INC., et al., Defendants.

15 Civ. 8555 (LGS)

15 Civ. 8892 (LGS)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

May 4, 2016

OPINION AND ORDER

LORNA G. SCHOFIELD, District Judge:

Plaintiffs, current and former telephone call center representatives of Global Contract Services Inc. ("GCS"), filed two lawsuits against GCS, GCS Supervisor Sean Worme, the New York City Transit Authority ("NYCTA") and the Metropolitan Transportation Authority ("MTA") for Defendants' alleged employment discrimination, sexual harassment, and retaliation. By Opinion and Order dated April 21, 2016, the motion to dismiss filed by the NYCTA and the MTA was granted, dismissing all claims against those entities. Motta v. Glob. Contract Servs. Inc., No. 15 Civ. 8555, 2016 WL 1611489 (S.D.N.Y. Apr. 21, 2016). Before the Court is GCS's separate motion to dismiss, filed in both actions pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the motion is GRANTED as to the claims in the Motta action, and DENIED as to the claims in the Joseph action.

I. BACKGROUND

Familiarity with the facts of the case is assumed. See id. at *1.

Plaintiffs assert various claims against GCS in both cases. The Motta Complaint asserts claims against GCS for unlawful discrimination based on an employee's race, sex or national origin under section 296(1)(a) of the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. ("NYSHRL"), and section 8-107(a) of the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq. ("NYCHRL"). The discrimination claims arise from GCS's alleged practices of paying employees of an Access-A-Ride Call Center (the "Call Center") far below the industry standard and less than similarly situated white and male employees, and retaliating against Plaintiffs for complaining about disparate pay. The Motta Complaint also asserts a breach of contract claim against GCS, which Plaintiffs claim they are able to bring as third-party beneficiaries of the contract between GCS and the NYCTA/MTA. Both actions purport to proceed on behalf of a class of "all similarly situated persons employed by defendant GCS."

The Joseph Complaint asserts claims against GCS for sexual harassment, hostile work environment and retaliation under the NYSHRL and the NYCHRL.

On January 22, 2016, GCS filed the instant motion to dismiss each of the asserted claims against it in the Motta action (but not the Joseph action), and the class claims in both Motta and Joseph.

II. STANDARD

"On a motion to dismiss, all factual allegations in the complaint are accepted as true and all inferences are drawn in the plaintiff's favor." Littlejohn v. City of New York, 795 F.3d 297, 306 (2d Cir. 2015). "To survive a motion to dismiss, a complaint must contain sufficient factualmatter, 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)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.

"Documents that are attached to the complaint or incorporated in it by reference are deemed part of the pleading and may be considered." Beauvoir v. Israel, 794 F.3d 244, 248 n.4 (2d Cir. 2015) (internal quotation marks and alteration omitted). "'[W]hen a plaintiff chooses not to attach to the complaint or incorporate by reference a [document] upon which it solely relies and which is integral to the complaint,' the court may nonetheless take the document into consideration in deciding the defendant's motion to dismiss . . . . " Int'l Audiotext Network, Inc. v. AT&T, 62 F.3d 69, 72 (2d Cir. 1995) (quoting Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991)). "Insofar as the complaint relies on the terms of [an] agreement," courts "need not accept its description of those terms, but may look to the agreement itself." Broder v. Cablevision Sys. Corp., 418 F.3d 187, 196 (2d Cir. 2005).

III. DISCUSSION

A. Discriminatory Pay

The Motta Complaint fails to allege a plausible claim of unlawful discrimination in GCS's pay practices under either the disparate treatment or disparate impact theories of liability.

"Disparate-treatment cases present the most easily understood type of discrimination, and occur where an employer has treated a particular person less favorably than others because of a protected trait." Ricci v. DeStefano, 557 U.S. 557, 577 (2009) (internal quotation marks, citations and alterations omitted). The elements of wage discrimination are (1) membership in a protected class, (2) payment "less than similarly situated non-members" of the protected classand (3) "evidence of discriminatory animus." Quarless v. Bronx-Lebanon Hosp. Ctr., 228 F. Supp. 2d 377, 383 (S.D.N.Y. 2002), aff'd, 75 F. App'x 846 (2d Cir. 2003); see also Tomka v. Seiler Corp., 66 F.3d 1295, 1310, 1312 (2d Cir. 1995) (holding that a claim of unequal pay under the NYSHRL is "generally analyzed under the same standards used in an [Equal Pay Act] claim," but "must also produce evidence of discriminatory animus in order to make out a prima facie case"), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998).

"To prevail under the disparate impact theory of liability, a plaintiff must show that the employer uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin." Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 151 (2d Cir. 2012) (internal quotation marks omitted). The elements of a disparate impact claim are (1) a specific employment practice or policy, (2) a disparity between members and non-members of a protected class and (3) "a causal relationship between the two." Id.; see also Medcalf v. Thompson Hine LLP, 84 F. Supp. 3d 313, 328 (S.D.N.Y. 2015) ("A plaintiff asserting a disparate impact claim . . . must identify a facially-neutral employment practice or policy that is causing an alleged disparity.").

"Claims brought under the NYSHRL 'are analyzed identically and the outcome of an employment discrimination claim made pursuant to the NYSHRL is the same as it is under . . . Title VII.'" Hyek v. Field Support Servs., Inc., 461 F. App'x 59, 60 (2d Cir. 2012) (summary order) (quoting Smith v. Xerox Corp., 196 F.3d 358, 363 n.1 (2d Cir. 1999)). In contrast, claims under the NYCHRL "must be reviewed independently and 'more liberally' than their federal and state counterparts." Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 278 (2d Cir. 2009).

The Motta Complaint fails to state a claim for discriminatory pay under state or city law because it does not plead a cognizable "disparity" in treatment or impact between members of a protected class and non-members. After alleging that over 95% of the Call Center employees are black and Hispanic women and that "most" have been employed through a program designed to help those on welfare return to the workforce, the Complaint asserts that "GCS makes it a point to hire Black and Hispanic women desperate for work" so that the company could pay them lower wages. The Complaint does not, however, allege that Plaintiffs are paid less than their white or male counterparts at the Call Center. Instead, and without specifically identifying Plaintiffs' comparators, the Complaint asserts that the rates paid to all Call Center employees are lower than those "being paid to other Customer Information Agents and/or Reservationists in comparable positions who are white or male."

According to Plaintiffs, comparison to an industry standard -- i.e., all call center employees in New York -- is necessary because there is no simple point of comparison from which to identify similarly situated employees. This argument is unavailing, however, as Plaintiffs' white or male co-workers at the Call Center are the most relevant comparators, and the Complaint does not allege facts that would show that white or male employees at other companies' call centers would be similarly situated to Plaintiffs. See, e.g., Raspardo v. Carlone, 770 F.3d 97, 126 (2d Cir. 2014) ("A similarly situated employee is one 'similarly situated in all material respects' to the plaintiff."); McGuinness v. Lincoln Hall, 263 F.3d 49, 54 (2d. Cir. 2001) ("[E]mployees must have a situation sufficiently similar to plaintiff's to support at least a minimal inference that the difference of treatment may be attributable to discrimination."). Similarly, the Complaint fails to plead a disparate impact claim because it does not allege thatGCS's policies affect employees of protected classes differently than they do non-members of those classes.

Without allegations of disparate treatment or impact between Plaintiffs and other Call Center employees (or others plausibly alleged to be sufficiently "similarly situated"), Plaintiffs' allegations of underpayment and substandard working conditions do not plead colorable claims of employment discrimination, even under the generous standard allowed under the NYCHRL. See Johnson v. Andy Frain Servs., Inc., No. 15-1143, 2016 WL 210098, at *2 (2d Cir. Jan. 19, 2016) (summary order) (affirming dismissal of NYCHRL claim where plaintiff failed to plausibly allege connection between employer's actions and her protected characteristics); cf. Shah v. Wilco Sys., Inc., 806 N.Y.S.2d 553, 559 (1st Dep't 2005) (granting summary judgment on NYCHRL disparate pay claim and holding that "where the claim is based on disparate pay, a plaintiff must first set forth a prima facie case of discrimination, i.e., that he is a member of a protected class and that he was paid less than similarly-situated non-members of the class").

GCS's motion to dismiss Plaintiff's discriminatory pay claims is therefore granted.

B. Retaliation

The Motta...