Romano v. A360 Media, LLC

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BRITTANY ROMANO, Plaintiff, v. A360 MEDIA, LLC, f/k/a AMERICAN MEDIA, INC., ELI LIPPMAN, SPENCER CAIN, AND NADINE DENINNO, in their individual and professional capacities, Defendants.

No. 1:20-cv-08988-LTS-OTW

United States District Court, S.D. New York

January 20, 2023

MEMORANDUM OPINION AND ORDER

LAURA TAYLOR SWAIN, CHIEF, DISTRICT JUDGE

Plaintiff Brittany Romano (“Plaintiff”) sues her former employer and supervisors for employment discrimination and retaliation, asserting claims under federal, state, and city law. The named defendants are three former supervisors (Eli Lippman, Spencer Cain, and Nadine DeNinno) as well as her former employer (A360 Media, LLC, f/k/a American Media, inc (“AMi”)). Against defendant AMi, Plaintiff asserts claims for violation of Title Vii of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”); the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”); and New York Labor Law § 195(1). Against defendant DeNinno, Plaintiff asserts New York common law claims for slander, tortious interference with business opportunity, tortious interference with contract, and prima facie tort. Against all defendants, Plaintiff asserts claims for violation of the New York State Human Rights Law, N.Y. Exec. Law § 296 et seq. (“NYSHRL”); and the New York City Human Rights Law, N.Y. City Admin. Code § 8-107 et seq. (“NYCHRL”). Except as otherwise indicated in the discussion below, the Court has jurisdiction of this action pursuant to 28 U.S.C. §§ 1331 and 1367.

Before the Court are two motions to dismiss the complaint-one motion filed by defendant DeNinno, seeking the dismissal of Plaintiff's common law claims against her for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and the dismissal of Plaintiff's discrimination, retaliation, and workplace environment claims on the merits pursuant to Federal Rule of Civil Procedure 12(b)(6); and another motion filed by defendants Cain Lippman, and AMI (“the AMI Defendants”), seeking dismissal of all of Plaintiff's claims on the merits pursuant to Rule 12(b)(6). The Court has reviewed thoroughly the parties' submissions. For the following reasons, both motions are granted in their entirety, but Plaintiff is granted leave to move to replead Counts 1 through 13 of her Complaint within 21 days of the entry of this Memorandum Opinion and Order.

Background

The following facts are drawn from the Complaint, the well-pleaded allegations of which are taken as true for the purposes of the motions to dismiss. Plaintiff is a woman who suffers from attention deficit hyperactivity disorder (“ADHD”) and dyslexia. (Docket entry no. 1 (“Compl.”) ¶ 12.) Plaintiff began working for AMI in January 2019 as a commerce writer; her duties consisted primarily of writing articles for AMI's websites. (Id. ¶¶ 13, 26-27.) Plaintiff's first supervisor at AMI was Nadine DeNinno. (Id. ¶ 14.) Shortly after her hire, Plaintiff informed DeNinno that she suffered from ADHD. (Id.) From that point on, Plaintiff alleges, DeNinno “treated Plaintiff differently on the basis of her ADHD.” (Id. ¶¶ 14-15.)

Specifically Plaintiff asserts that DeNinno “ostracized Plaintiff and screamed at her in front of coworkers on the basis of her disability and other things related to work,” “made Plaintiff feel like she was being disciplined publicly for non-events and for miniscule work matters,” and “failed to regularly communicate with Plaintiff regarding work issues.” (Id. ¶¶ 1721.) Due to this treatment by DeNinno, Plaintiff and “at least” two other female co-workers complained to AMI's Human Resources (“HR”) department in May 2019 regarding DeNinno's “abusive and toxic management style.” (Id. ¶ 16.) Immediately after the complaint to HR, DeNinno retaliated by deleting the “Slack” accounts for Plaintiff and one of her co-workers, which “contained important information about their work.” (Id. ¶ 20.) DeNinno also refused to speak with Plaintiff and her co-workers following the HR complaint. (Id. ¶ 21.)

In September 2019, DeNinno left AMI and Plaintiff was thereafter assigned a new supervisor, Spencer Cain. (Id. ¶¶ 9-10, 22-23, 26.) Eli Lippman, whom Plaintiff describes as a Director of AMI who performed his duties in California, determined Plaintiff's work duties. (Id.) Plaintiff alleges that her new managers also treated her differently “based on her sex and disability.” (Id. ¶ 25.) Specifically, Lippman asked Plaintiff to “do numbers” and “copy and paste content on the website,” instead of writing her own original articles as she had previously done. (Id. ¶ 26.) Lippman also asked Plaintiff “personal questions about her friends, social life, and personal plans in NYC she had during the weekends,” which made Plaintiff “[feel] uncomfortable.” (Id. ¶ 29.) Plaintiff describes the company culture as a “sexist, all boy club culture.” (Id. ¶ 36.)

In January 2020, Plaintiff complained to Lippman about her change in job duties, “citing Plaintiff's ADHD as a reason why she could not easily perform the copy and paste and numbers functions as requested,” and asked for “a reasonable accommodation, so that she could work effectively.” (Id. ¶¶ 30-31.) Lippman denied this request, “failed to engage in the interactive process with Plaintiff regarding her request for accommodations,” and “demanded” that she continue her job duties as assigned. (Id. ¶¶ 32-33.) Lippman also changed Plaintiff's “by-line” from “writer” to “admin.” (Id. ¶ 34.)

On February 4, 2020, Plaintiff filed a charge with the Equal Employment Opportunity Commission (“EEOC”) alleging retaliation, disability discrimination, and sex discrimination by AMI. (Id. ¶ 36.) On March 2, 2020, AMI terminated Plaintiff's employment. (Id. ¶ 37.) Plaintiff describes her termination as motivated by “retaliation for her filing her EEOC charge, complaining about management, and requesting a reasonable accommodation,” but also notes that AMI informed her that her termination “was due to layoffs.” (Id. ¶¶ 37-38.) She asserts that the layoff rationale was pretextual because no one else in her department was terminated during that time and because her department was a top revenue generator for the company. (Id.)

Plaintiff then began her search for a new job, and eventually applied for a position with the New York Post in September 2020. (Id. ¶ 42.) She was extended a job offer as a “commerce journalist” in the paper's digital media department on October 1, 2020, and informed the Post that she would accept the offer. (Id. ¶¶ 43-44.) DeNinno, Plaintiff's former manager, was Associate Digital Editor at the Post, and would have been Plaintiff's manager there. (Id. ¶ 45.) On October 2, 2020, the Post rescinded Plaintiff's job offer due to an “internal reference”- which Plaintiff believes was DeNinno. (Id. ¶ 46.) Plaintiff asserts her belief that DeNinno made false statements about Plaintiff's professional ability which caused her to lose the job offer. (Id. ¶ 47.) Plaintiff initiated this action on October 27, 2020.

Discussion

To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain “enough facts to state a claim to relief that is plausible on its face.'” Bell Atlantic Corp v. Twombly, 550 U.s. 544, 570 (2007). A proper complaint cannot simply recite legal conclusions or bare elements of a cause of action; it must plead 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). Under the Rule 12(b)(6) standard, the court accepts as true the non-conclusory factual allegations in the complaint and draws all reasonable inferences in the plaintiff's favor. Roth v. Jennings, 489 F.3d 499, 501 (2d Cir. 2007).

The defendants raise a number of arguments as to why Plaintiff's Complaint should be dismissed. The Court addresses each argument below.

Tort Claims Against DeNinno - Supplemental Jurisdiction

Defendant DeNinno seeks dismissal of Plaintiff's four state-law tort claims,^[1]arguing that the Court lacks supplemental jurisdiction over those claims, which focus on DeNinno's allegedly false unfavorable remarks regarding Plaintiff in connection with her proposed employment by the Post. Plaintiff does not oppose the dismissal of two of the claims-tortious interference with contract and prima facie tort-but asserts that the Court can properly exercise supplemental jurisdiction of Plaintiff's claims for defamation and tortious interference with prospective business opportunity. (See docket entry no. 35 at 2.) For the following reasons, all four claims will be dismissed for lack of subject matter jurisdiction.

The Court has original jurisdiction of Plaintiff's federal statutory claims pursuant to 28 U.S.C. section 1331, which provides district courts with “jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States”-i.e., federal question jurisdiction. 28 U.S.C. § 1331. In such cases, a district court will also have “supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” 28 U.S.C § 1367. Courts have interpreted this statute to mean that, in federal question cases, federal courts have supplemental jurisdiction to hear a state law claim only when both “derive from a common nucleus of operative fact.” Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234, 245 (2d Cir. 2011). In determining whether supplemental jurisdiction exists, courts “traditionally ask[] whether the facts underlying the federal and state claims substantially overlap[].” Achtman v. Kirby, McInerney &...