Zuckerman v. GW Acquisition LLC

ARIEL ZUCKERMAN, Plaintiff, v. GW ACQUISITION LLC D/B/A G&W INDUSTRIES, MICHAEL MARINOFF, IN HIS INDIVIDUAL AND PROFESSIONAL CAPACITIES, AND ALBERT MALEH, IN HIS INDIVIDUAL AND PROFESSIONAL CAPACITIES, Defendants.

No. 20-CV-8742 (VEC)

United States District Court, S.D. New York

September 19, 2021

OPINION AND ORDER

VALERIE CAPRONI, United States District Judge:

Plaintiff Ariel Zuckerman sued her former employer, GW Acquisition LLC and its two owners, Michael Marinoff and Albert Maleh (collectively “Defendants”), for violations of Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, 42 U.S.C. §§ 2000e et seq. (“Title VII”), the Americans with Disability Act, 42 U.S.C. §§ 12101 et seq. (“ADA”), the New York State Human Rights Law, N.Y. Exec. L. §§ 290 et seq. (“NYSHRL”), the New York City Human Rights Law N.Y.C. Admin. Code §§ 8-101 et seq. (“NYCHRL”), and the New York Labor Law, N.Y. Lab Law §§ 1 et seq. (“NYLL”). Defendants moved to dismiss the complaint for failure to state a claim. For the reasons discussed below, Defendants' motion is GRANTED in part and DENIED in part.

BACKGROUND^[1]

In June 2013, Plaintiff began working as an Account Executive at GW Acquisition LLC, a company that manufactures and sells children's apparel. First Amended Complaint (“FAC”), Dkt. 30 ¶ 35. After her first year on the job, Defendants increased Plaintiff's base salary to $75, 000 and added commissions. Id. ¶¶ 37-41. Plaintiff contends that pursuant to her agreement with Defendants, her commissions were to be paid twice each year. Id. ¶¶ 42-46.

In late October 2018, Plaintiff informed Defendants that she was pregnant. Id. ¶ 48. Plaintiff alleges that Defendants initially denied her request to take maternity leave but ultimately granted her a three-month maternity leave. Id. ¶ 53. She gave birth on April 29, 2019. Id. ¶ 61. While she was pregnant and during her maternity leave, Plaintiff alleges that she notified Defendants of her intention to breastfeed her child and of her need for an appropriate place at the office to pump breastmilk during the workday. Id. ¶¶ 49-51, 66-69. When she returned to work after her maternity leave, Plaintiff discovered that Defendants had not established an appropriate lactation space; Plaintiff alleges that she “was forced to pump in a cramped and dusty closet.” Id. ¶ 71. After Plaintiff complained about the lack of suitable accommodations, Defendants allowed her to install a privacy curtain in the office. Id. ¶ 78.

Plaintiff also contends that Maleh and Marinoff made a series of offensive comments about her decision to breastfeed and to pump breastmilk at the office. For example, Plaintiff alleges that soon after she returned from maternity leave, Marinoff asked Plaintiff if he could “have some milk in [his] coffee” and whether she could “just squirt it in there.” Id. ¶¶ 87-88. Plaintiff also claims that Maleh frequently yelled “pump station” or “pumper” when he would pass the designated pumping area in the office. Id. ¶¶ 94-97. Plaintiff further alleges that she suffers from “generalized anxiety disorder” and that her condition has been “severely exacerbated” by “Defendants' pervasive harassment.” Id. ¶¶ 104-105.

On March 19, 2020, Plaintiff was furloughed due to the COVID-19 pandemic. Id. ¶ 111. She was put back on the payroll in May 2020 and was told that she would have to report back to the office for in-person work on July 6, 2020. Id. ¶¶ 115-116. In advance of the return date, Plaintiff requested that she be allowed to work from home for four to six additional months as a reasonable accommodation for her mental health condition. Id. ¶¶ 120-121. Plaintiff contends that Defendants initially agreed to allow her to work from home until September 7, 2020, but when they realized that her claimed anxiety was related to their alleged harassment, not to the pandemic, Defendants reneged on their work-from-home agreement. Id. ¶¶ 132-136. Defendants ultimately agreed that Plaintiff could work from home through September 7, 2020, but for two-thirds of her salary; Plaintiff alleges that she agreed to that arrangement because she felt she had “no other choice.” Id. ¶¶ 137-139. Notwithstanding that agreement, Defendants terminated Plaintiff's employment on August 10, 2020. Id. ¶ 156.

With respect to commissions, Plaintiff contends that Defendants repeatedly delayed paying her what she was due. Plaintiff alleges that she received commissions based on sales during the first half of 2019 in October and November of that year, three months later than what was agreed to in the terms of her employment. Id. ¶¶ 43, 63, 79, 81. She also claims that she received commissions for sales made in the second half of 2019 in June and July 2020, five months later than the allegedly agreed-upon payment date. Id. ¶¶ 45, 112-113, 124, 126-128. Plaintiff also alleges that she is owed at least $27, 327.19 in commissions that have yet to be paid by Defendants. Id. ¶¶ 129-131.

On June 30, 2020, prior to her discharge, Plaintiff, through counsel, claimed that Defendants had discriminated against her based on her pregnancy and her disability. Id. ¶ 140. On July 22, 2020, Plaintiff asked Maleh and Marinoff to put in place “certain safeguards, ” including a lactation room, prior to her return to work at the office. Id. ¶¶ 141-142. On the same day, Plaintiff, through counsel, sent Defendants three recordings: two that included allegedly harassing comments of Marinoff and Maleh, and one that included Maleh's alleged agreement to allow Plaintiff to work from home until September 7, 2020. Id. ¶¶ 146, 152. On July 27, 2020, Defendants told Plaintiff that they were unwilling to take the requested actions, and they requested documentation regarding Plaintiff's alleged disability. Id. ¶¶ 147-148.

On August 10, 2020, before Plaintiff provided documentation of her alleged disability, Defendants terminated her employment. Id. ¶ 156. Defendants claimed that they fired Plaintiff because she had “surreptitiously recorded meetings with G&W's managers and buyers on company premises without the parties' knowledge or consent.” Id. ¶ 157. Plaintiff alleges that she was wrongfully terminated, as none of the recordings contains discussions of business matters, and that Defendants' proffered reason for her termination was pretext for discrimination. Id. ¶¶ 160-162.

The Equal Employment Opportunity Commission (“EEOC”) issued a Notice of Right to Sue on September 30, 2020, see FAC ¶ 18, and Plaintiff commenced this lawsuit on October 20, 2020, see Compl., Dkt. 1. On January 8, 2021, Plaintiff amended her complaint. FAC, Dkt. 30. On January 29, 2021, Defendants moved to dismiss the FAC for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Notice of Mot., Dkt. 41. Plaintiff opposed the motion. Resp., Dkt. 47.^[2]

STANDARD OF REVIEW

To survive a motion to dismiss under Rule 12(b)(6), “a complaint must allege sufficient facts, taken as true, to state a plausible claim for relief.” Johnson v. Priceline.com, Inc., 711 F.3d 271, 275 (2d Cir. 2013) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). A claim is facially plausible when the factual content pleaded allows a court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[T]o survive a motion under Rule 12(b)(6), a complaint does not need to contain detailed or elaborate factual allegations, but only allegations sufficient to raise an entitlement to relief above the speculative level.” Keiler v. Harlequin Enters., Ltd., 751 F.3d 64, 70 (2d Cir. 2014) (citation omitted). When considering a Rule 12(b)(6) motion to dismiss, the Court draws all reasonable inferences in the light most favorable to the plaintiff. See Gibbons v. Malone, 703 F.3d 595, 599 (2d Cir. 2013) (citation omitted). But even though courts are required to accept all of the factual allegations in the complaint as true, courts “‘are not bound to accept as true a legal conclusion couched as a factual allegation.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

DISCUSSION

I. Defendants' Motion to Dismiss Is Denied as to Plaintiff's Claims of Sex Discrimination

A. Applicable Law

Pursuant to Title VII, it is unlawful for an employer to discriminate against a person because of the person's sex. 42 U.S.C. § 2000e-2(a)(1). The Pregnancy Discrimination Act amended Title VII to clarify that sex discrimination includes discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions.” 42 U.S.C. § 2000e(k).

Discrimination claims brought pursuant to Title VII are analyzed using “the familiar burden-shifting framework” articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). Brown v. City of Syracuse 673 F.3d 141, 150 (2d Cir. 2012); see also Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir. 2010). “Under McDonnell Douglas, a plaintiff bears the initial burden of proving by a preponderance of the evidence a prima facie case of discrimination; it is then the defendant's burden to proffer a legitimate non-discriminatory reason for its actions; the final and ultimate burden is on the plaintiff to establish that the defendant's reason is in fact pretext for unlawful discrimination.” Abrams v. Dep't of Pub. Safety, 764 F.3d 244, 251 (2d Cir. 2014) (citation omitted); see also Littlejohn v. City of New York, 795 F.3d 297, 307-08 (2d Cir. 2015). To establish a prima facie case of discrimination, a plaintiff must show: (1) that she is a member of a protected class; (2) that she was qualified for the position that she held; (3) that she suffered an adverse employment action; and (4) that the adverse employment action...