Whitcombe v. Lanza Corp.

ALEXANDRA WHITCOMBE, Plaintiff, v. LANZA CORP., et al., Defendants.

No. 20-CV-04835 (PMH)

United States District Court, S.D. New York

February 28, 2022

MEMORANDUM OPINION AND ORDER

PHILIP M. HALPERN, United States District Judge:

Alexandra Whitcombe (“Plaintiff”) brings this employment discrimination action against her former employers: (1) Lanza Corp.; (2) Sign Design; (3) JC Awning; (4) Adaptive Signage (collectively, “the Corporate Defendants”); (5) Joseph Lanza (“Lanza”); and (6) Nicholas Pagnozzi (“Pagnozzi, ” and with the Corporate Defendants “Defendants”). (Doc. 1, “Compl.”). Plaintiff alleges, inter alia, violations of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., on the basis of her race, religion, and gender. (Id. ¶¶ 88-99).

Plaintiff filed this action on June 24, 2020. (Id.). The Court, on November 24, 2020, held a pre-motion conference by telephone to discuss Defendants' anticipated motion to dismiss. (Nov. 24, 2020 Min. Entry; see also Doc 32; Doc. 33; Doc. 34; Doc. 35; Nov. 18, 2020 Ord.). The Court, at that conference, directed that: (1) Defendants “produce to Plaintiff records (i.e., summaries redacted payroll records, etc.) sufficient to establish the number of Defendants' employees for purposes of Title VII jurisdiction;” and (2) “the parties shall confer . . . as to whether the Court has jurisdiction over this action.” (Nov. 24, 2020 Min. Entry).

The Court held a second telephone conference on December 15 2020. (Dec. 15, 2020 Min. Entry). During that appearance, the Court directed that Defendants produce: (1) “payroll tax documents provided to New York State that identify the names of Defendants' employees in 2019 and 2020” to Plaintiff by December 31, 2020; and (2) “a 30(b)(6) witness with knowledge of the number of Defendants' employees from 01/2019 to date” for a deposition before January 15, 2021. (Id.). That deposition was limited to “establishing the number of Defendants' employees.” (Id.).

The Court held a third telephone conference on January 20, 2021. (Jan. 20, 2021 Min. Entry). The parties reported during that appearance that, notwithstanding the discovery permitted, they could not agree on whether the Corporate Defendants had fifteen or more employees (i.e., the minimum number required to trigger Title VII's protections). (Id.). The Court, consequently, granted Defendants “leave to move . . . under Federal Rule of Civil Procedure 12” and set a briefing schedule. (Id.). All motion papers were filed on March 3, 2021. (Doc. 44; Doc. 45; Doc. 46, “Def. Br.”; Doc. 48; Doc. 49; Doc. 50; Doc. 51; Doc. 52; Doc. 54, “Opp. Br.”; Doc. 55).^[1]

For the reasons set forth below, Defendants' motion to dismiss is GRANTED.

BACKGROUND

Plaintiff a resident of the Bronx and a female of Jewish faith and ancestry, was employed as Lanza Corp.'s Operations and Logistics Manager in Port Chester, New York, from June 3, 2019 until her termination on August 29, 2019. (Compl. ¶¶ 5-7, 9, 13-14). Lanza promised Plaintiff that this position would be her “dream job, ” that she would “eventually” be promoted, and that she would receive a $5, 000 raise in 2020. (Id. ¶ 17). Plaintiff insists, however, that the “dream” turned into a nightmare, as she was discriminated against and subjected to a hostile work environment because of her race, religion, and gender.

I. Plaintiff's Interview

During Plaintiff's interview, on a date not provided, Lanza told Plaintiff, “I'm sure an attractive woman like yourself can easily get exactly what you want out of a man.” (Id. ¶ 19). While Plaintiff “felt troubled and degraded by” the comment, she considered the opportunity “too good” to pass up and accepted the position. (Id. ¶ 20).

II. Plaintiff's Employment

Plaintiff advises, generally, that her employment was marred with confusion because there was no onboarding process, no handbook, no documentation explaining pay or benefits, no human resources department, and she was never provided any information about-assuming they existed -policies governing discrimination or harassment. (Id. ¶¶ 22-25).

A. Conduct Untethered to Gender, Race, or Religion

At some point during Plaintiff's tenure, Lanza charged her with supervising Victor Orozco (“Orozco”)-an individual employed by Lanza Corp. for approximately twenty years. (Id. ¶¶ 29, 31). Orozco “verbally harass[ed] and intimate[d]” Plaintiff on a daily basis. (Id. ¶¶ 32-33). In one incident, Plaintiff called Orozco to ask when he would return to the office; when Orozco did return, “he screamed at [Plaintiff] in front of the staff . . . because she inquired about his whereabouts . . . .” (Id. ¶ 36). Plaintiff, on multiple occasions, tried to justify to Orozco why she needed to know where he was, but Orozco would respond with screaming and profanities. (Id. ¶ 37). Nobody reprimanded Orozco for this behavior. (Id. ¶ 38).

Plaintiff had similar interactions with Jamie Orozco (“Jamie”).^[2] On one occasion, when Plaintiff asked Jamie where he had been earlier in the day, Jamie responded, “F[---] you[, ] Alex!

You're not my boss! I don't have to answer to you!” (Id. ¶ 56). Plaintiff would regularly take calls for Jaime, but the latter refused to acknowledge her. (Id. ¶ 57).

Apart from her own interactions with Orozco, Plaintiff was present when Orozco engaged in “a particularly bad verbal altercation . . . [with] a new employee named Bryan” on Thursday, July 11, 2019. (Id. ¶ 39). That interaction was so vitriolic that Plaintiff was afraid the men would come to blows. (See id. ¶¶ 39-40). After leaving work that day, Plaintiff was so ridden with anxiety about what she had seen-and what would be waiting for her at the office the next day-that she was unable to sleep. (Id. ¶ 40). Although she went to work the following day, Friday, July 12, 2019, she left early “because she was shaken up by the previous days [sic] hostilities and became tired and sick from the outburst.” (Id. ¶ 42). Plaintiff, before leaving, asked Jamie to “cover her responsibilities so she could go home two hours early.” (Id.). Again, nobody “addressed” what transpired between Orozco and Bryan. (Id. ¶ 41).

When Plaintiff arrived at Lanza Corp. the next workday, Monday, July 15, 2019, “Lanza . . . redressed [her] for leaving early on Friday with a furious, hostile, and threatening profanity[-]laden tirade.” (Id. ¶ 43). Lanza's response to Plaintiff's leaving early was “much more extensive” than anything she had ever seen Orozco “receive[] for his daily abuses of his coworkers . . . .” (Id. ¶ 45). Plaintiff tried to explain why she left early, but Lanza refused to listen to her explanation. (Id. ¶ 44). Upon returning to her desk, Plaintiff's anxiety was such that “her hands and knees [were] shaking from the stress of the . . . confrontation.” (Id. ¶ 46). Plaintiff was, at this point:

gravely concerned about her job . . . because she was not provided any mechanism by which to address[, ] or people to speak with regarding[, ] the conduct she endured, and . . . Lanza, who witnessed Orozco's outbursts, did nothing about them or . . . Lanza himself was the source of profanity[-]laden hostility toward her.

(Id. ¶ 47).

As for other interactions with the named Defendants, at some point after starting, although Plaintiff was not warned that she had to be familiar with an unspecified computer program, Lanza “criticized [her] in front of the entire staff [for] not knowing she had to use [the program] and . . . not knowing how to use it.” (Id. ¶ 27). In another incident, when Plaintiff tried to make a presentation at a sales meeting, Lanza “talked over her and did not listen to her presentation.” (Id. ¶ 28). Plaintiff complains that Lanza and Pagnozzi regularly had “daily screaming matches in the office . . . that sometimes seemed would escalate to physical violence.” (Id. ¶ 30; see also id. ¶ 54).

Finally, Plaintiff alleges further that Phil Pinto (“Pinto”), the head of awning sales at Lanza Corp., was regularly abusive toward her and, when she did not understand him, he would yell, “Comprende?!” (Id. ¶ 64). Plaintiff insists that when Pinto instructed her to handle work orders a certain way-which included, inter alia, not writing “cash” on them-he did so in an effort to help Lanza avoid paying taxes. (Id. ¶ 65).

B. Conduct Connected to Gender, Race, and/or Religion

Pagnozzi-described by Plaintiff as the “second in command” at Lanza Corp. and an owner of Adaptive Signage-along with unspecified “others” made “graphic, sexually explicit, and pornographic” jokes “in front of the entire staff . . . about their bodily functions, overweight people, and . . . Jewish people.” (Id. ¶¶ 12, 51, 52). Plaintiff was “visibly uncomfortable” with this behavior. (Id. ¶ 53). The only way to “win points” at Lanza Corp. was, in Plaintiff's estimation, “to spew vile discriminatory comments and make [her] bosses laugh at these ‘jokes.'” (Id. ¶ 62). Plaintiff maintains that the general “atmosphere of Lanza Corp. made it clear that discriminatory jokes were not only tolerated[, ] but encouraged.” (Id. ¶ 66).

i. Conduct Related to Jewish Faith and Ancestry

Sometime in mid-to-late July 2019, Plaintiff learned about a former female employee who had sued Lanza Corp. (Id. ¶ 49). Lanza used anti-Semitic language when referring to this former employee, “calling her ‘crazy Jew,' ‘Jew bitch,' and other anti-Semitic slurs .” (Id.). Plaintiff, hearing this, feared how Lanza would treat her “if he learned that she is Jewish and otherwise of Jewish heritage . . . .” (Id. ¶ 50). As a result of this fear, Plaintiff did not disclose her heritage or faith in the office. (Id.). Plaintiff avers that “Jewish clients were treated with hostility” by Lanza and Pagnozzi, and that somebody warned employees to “be careful”...