JOANNA SEYBERT, District Judge.
Plaintiff Diana Alexander-Callender ("Plaintiff") brings this action against her former employer NBTY, Inc. ("NBTY") and various employees, including William Evans ("Evans"), Gerard Rosand ("Rosand"), Pam Antos ("Antos"), Jim Ferle ("Ferle"), Ivette Cortes ("Cortes"),
Plaintiff, a black female of Trinidadian national origin, worked for NBTY from June 2000 to December 2011. (Compl. ¶¶ 47, 58, 141, 143.) NBTY manufactures, sells, and distributes various products, including vitamins, minerals, and herbs.
In 2011, Teagle was transferred to Plaintiff's department and placed under Plaintiff's supervision. (Compl. ¶ 84.) Beginning in 2008, however, Plaintiff began to experience sexual harassment. (Compl. ¶ 52.) In 2004, a co-worker offered Plaintiff $200 to have sex with him. (Compl. ¶ 54.) In 2010, Ferle "walked up behind [P]laintiff and smacked her on her behind." (Compl. ¶ 67.) That same year, Plaintiff's packaging supervisor offered her $3 if she had sex with him in the parking lot. (Compl. ¶ 71.)
Shortly after Teagle's transfer, Plaintiff reviewed Teagle's personnel file. (Compl. ¶ 88.) There, she learned that Teagle was a "level 3" sex offender, which, she understood, carries "a high risk of repeat offense and a threat to public safety." (Compl. ¶ 86.) Plaintiff also noticed that Teagle received a "FINAL WARNING" work performance marking on his personnel file. (Compl. ¶ 88.) Finally, Plaintiff understood that Teagle was the alleged subject of a Human Resources investigation for drawing a penis on a piece of cardboard at work. (Compl. ¶ 94.)
Plaintiff alleges that since Teagle arrived, he "regularly engaged in severe and pervasive sexually inappropriate conversations and comments." (Compl. ¶ 111.) For example, Plaintiff alleges that Teagle stared at Plaintiff "in a sexually inappropriate manner" or with a "sexually suggestive look" on his face. (Compl. ¶¶ 97, 100, 112, 118-19, 127.) Plaintiff further alleges that Teagle followed her and other female employees around the department. (Compl. ¶ 112.)
Plaintiff also learned about additional incidents involving Teagle from other employees. Plaintiff understood that Teagle walked into the women's restroom on multiple occasions, (Compl. ¶¶ 96, 110), and had a sexually explicit conversation in front of female employees. (Compl. ¶ 103.)
Next, Plaintiff references an incident "in or about October 2011" in which Teagle allegedly "stood in front of [P]laintiff and grabbed his penis over his pants in front of [P]laintiff's face." (Compl. ¶ 113.) In another portion of the Complaint, Plaintiff alleges a similar incident in 2011 where she "noticed that [Teagle] was grabbing his pants and shaking his leg while looking at [P]laintiff in an inappropriate sexual manner." (Compl. ¶ 127.) It is unclear if Plaintiff is referring to the same incident or a separate one.
Lastly, Plaintiff alleges that Teagle made certain remarks to her that made her uncomfortable, including "Hmm, Diane you hear everything," "Diane, you don't understand," and "I can find anyone if I need to." (Compl. ¶¶ 120-21, 127.) Plaintiff also claims that Teagle would "regularly creep up behind [her] while she was walking through the parking lot" and even followed her home. (Compl. ¶¶ 120, 123-24.)
Plaintiff states that Teagle's conduct "altered the terms and conditions of [her] employment." (Compl. ¶ 115.) Plaintiff alleges that she was disgusted and humiliated by Teagle's conduct and that she "could not look [Teagle] directly in the eyes" because he frightened her and the other female employees. (Compl. ¶¶ 114, 122.) Plaintiff also alleges that Teagle's conduct made it "nearly impossible" for Plaintiff to perform her work at NBTY. (Compl. ¶ 115.)
Along with the hostile work environment, Plaintiff alleges that she was subjected to racial discrimination, beginning in 2008. (Compl. ¶ 52.) Plaintiff alleges that an employee approached her in the locker room and referred to her as a "nigger." (Compl. ¶ 58.) Plaintiff further alleges that Ferle regularly referred to Hispanic employees as "spics" and commented that "black people have sex with dogs in Africa which is why we have the Aids [sic] virus in America." (Compl. ¶ 64.)
Plaintiff also believed that she was treated differently than some of her co-workers. One employee regularly told Plaintiff to "fuck off," which she viewed as discrimination because that employee "did not treat his Caucasian co-workers or supervisors in the same manner." (Compl. ¶ 80.) Similarly, another employee told Plaintiff, "don't sit next to me! You smell! Even my pussy smells better than you!" Plaintiff viewed this as racial discrimination because the employee "did not treat [P]laintiff's Caucasian co-workers in the same manner." (Compl. ¶ 135.)
Notably, the Complaint contains no factual assertions against Teagle for racial discrimination. (
Plaintiff alleges that throughout her tenure at NBTY, she lodged several complaints to her supervisors about the alleged harassment and discrimination but, to her dismay, they took no action. Instead, she claims that they retaliated against her through: (1) negative work performance warnings, (2) transferring Teagle to her department, and (3) ultimately, her termination in December 2011. (
Plaintiff commenced this action on April 17, 2014. NBTY, Evans, Rosand, Antos, and Cortes have filed an answer, and Ferle was dismissed from the case. On October 31, 2014, Teagle filed a motion to dismiss. (Docket Entry 22.) In support, he argues that even if Plaintiff can establish predicate liability of her former employer NBTY: (1) her hostile work environment claim should be dismissed because Plaintiff's allegations only consist of vague, non-specific conduct, mildly offensive behavior, and conclusory allegations (Def.'s Br., Docket Entry 24, at 12); and (2) her claims for racial discrimination and retaliation against Teagle have no basis in the evidence (Def.'s Br., at 11, 17-18). Plaintiff contends that Teagle ignores the totality of the circumstances and engages in a piecemeal analysis, viewing the events in isolation. (Pl.'s Opp. Br., Docket Entry 27, at 8.)
The Court will first address the applicable legal standard before turning to Teagle's motion.
To survive a motion to dismiss, a complaint must plead "enough facts to state a claim to relief that is plausible on its face."
Plaintiff alleges, in part, that Teagle aided and abetted racial discrimination. (
Teagle first argues that "Plaintiff cannot establish predicate liability against her former employer NBTY" for all three claims. (Def.'s Br. at 10.) But even if Plaintiff could, Teagle contends that Plaintiff has failed to plausibly allege that Teagle violated the NYHRL's aid-or-abet section for all three claims. The NYHRL provides, in pertinent part, that it is unlawful "for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article, or to attempt to do so." N.Y. EXEC. LAW § 296(6) (McKinney 2015). In the Complaint, Plaintiff alleges that Teagle "actually participated in the conduct giving rise to plaintiff's discrimination, sexual harassment and retaliation claims and is therefore personally liable for the adverse treatment of Plaintiff." (Compl. ¶¶ 44-45.) The Court will address each claim in turn.
Teagle's principal position is that Plaintiff's allegations amount to vague, non-specific incidents that do not rise to the level of a hostile work environment. (Def.'s Br. at 14.) The Court agrees.
"When determining whether a hostile work environment exists, the standard under Title VII and the NYHRL are identical."
Courts in this Circuit have recognized that a plaintiff's burden is "remarkably high."
As the Second Circuit recognized, "the occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers" is not actionable.
In the Complaint, Plaintiff argues that under the "totality of circumstances," Teagle aided and abetted the creation of a hostile work environment. (Pl.'s Opp. Br. at 8 (citation omitted).) After a careful review of the record, Plaintiff's allegations can be sorted into nine categories:
Teagle first argues that any conduct that did not involve Plaintiff cannot be considered under the totality of the circumstances. (Def.'s Br. at 12-13.) Not so. As more than one court has expressed, "conduct directed at other employees is part of the totality of circumstances to be considered in evaluating a hostile work environment claim."
Even still, the Court finds that the first-hand experiences and second-hand observations, taken as a whole, do not amount to a hostile work environment. Plaintiff essentially alleges that Teagle stared at Plaintiff, followed her, made non-sexual comments to her, and grabbed his penis in front of her on one or two occasions. The second-hand observations—Teagle entering the female restroom and receiving a Human Resources evaluation—do not amount to severe and pervasive conduct. And Teagle's prior criminal record, on its face, adds no support to the analysis. As Teagle correctly argues, he "has every right to be gainfully employed and to not be profiled without justification simply because of the fact he was a registered sex offender." (Def.'s Reply Br. at 3.);
At its core, the Complaint provides scant evidence with little specificity on timing, dates, and details. For instance, Plaintiff alleges that Teagle stared at her "in a sexually inappropriate manner" or with a "sexually suggestive look" on his face. Missing from the Complaint, however, is any clarification on what staring "in a sexually inappropriate manner" or with a "sexually suggestive look" means. (Compl. ¶¶ 97, 100, 112, 118-19, 127.) Further, although Plaintiff states that it was "nearly impossible" for her to perform her work, (Compl. ¶ 115), Plaintiff does not allege that Teagle caused her emotional distress or, in any way, prevented Plaintiff from doing her job.
And the cases Plaintiff cites in support have no bearing here. (
Nor does the Southern District's reasoning in
At the summary judgment phase, the Southern District held that the plaintiff provided sufficient evidence of a "sexually charged environment . . . permeating the newsroom, meetings and holiday parties."
The Court acknowledges that Plaintiff was, with good reason, upset and uncomfortable by Teagle's behavior. But in light of the Second Circuit's "remarkably high" standard, the Court finds that Teagle's conduct did not amount to severe and pervasive sexual harassment.
Plaintiff has not adequately plead her discrimination claim under the NYHRL. For a discrimination claim to survive a motion to dismiss, a plaintiff must plausibly allege that: "(1) the employer took adverse action against [her] and (2) [her] race, color, religion, sex, or national origin was a motivating factor in the employment decision."
Here, Plaintiff alleges that several NBTY supervisors and employees made racially discriminatory remarks, but none of the allegations involve Teagle. (Compl. ¶¶ 52, 58, 64.) Other employees referred to Plaintiff as a "nigger" and discussed how "black people have sex with dogs," but Teagle made no such comments. Nor does the Complaint allege that Teagle treated his Caucasian co-workers differently. (Compl. ¶¶ 80, 135.) To be sure, there is no evidence that Teagle aided or abetted any discriminatory conduct. (
Although her burden is minimal at the pleadings stage, Plaintiff must still provide "`a short and plain statement of the claim showing that the pleader is entitled to relief.'"
Plaintiff has also failed to plausibly allege that Teagle aided and abetted retaliatory conduct in violation of the NYHRL. For a retaliation claim to survive a motion to dismiss, a plaintiff must allege facts showing that: "(1) defendants discriminated—or took an adverse employment action—against [her], (2) `because' [s]he has opposed any unlawful employment practice."
Here, Plaintiff has presented no evidence, other than conclusory allegations, that Teagle aided or abetted any retaliation against her. (
The Second Circuit has stated that "[w]hen a motion to dismiss is granted, the usual practice is to grant leave to amend the complaint."
For the foregoing reasons, Teagle's motion to dismiss the Complaint (Docket Entry 22.) is GRANTED. Plaintiff's claims for discrimination and retaliation against Teagle are DISMISSED WITH PREJUDICE. Plaintiff's claim for hostile work environment against Teagle is DISMISSED WITHOUT PREJUDICE and with leave to replead. If Plaintiff wishes to file an Amended Complaint, she must do so within thirty (30) days of the date of this Memorandum and Order. If she fails to do so, her claim will be dismissed with prejudice.
The Clerk of the Court is directed to amend the caption and replace Yvette Reyes with her correct name "Ivette Cortes."
SO ORDERED.