Opinion
21-CV-5053 (VEC) (JLC)
02-15-2023
MAYRA OBERGH, Plaintiff, v. BUILDING MAINTENANCE SERVICES, LLC and ETHICAL CULTURE FIELDSTON SCHOOL, Defendants.
REPORT & RECOMMENDATION
JAMES L. COTT, United States Magistrate Judge
To the Honorable Valerie E. Caproni, United States District Judge:
Mayra Obergh, proceeding pro se, brings this gender-based employment discrimination action against Building Maintenance Services LLC and the Ethical Culture Fieldston School (“defendants”) under Title VII of the Civil Rights Act and the New York City Human Rights Law (“NYCHRL”). Defendants moved to dismiss Obergh's complaint and, in a prior Report and Recommendation (“Report” or “R&R”), later adopted by Judge Caproni, I recommended that the complaint be dismissed in its entirety but that Obergh be given an opportunity to amend. Defendants now move to dismiss Obergh's amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, again arguing that Obergh has failed to state a claim upon which relief can be granted. For the reasons set forth below, I recommend that the motion be granted, and this time the amended complaint be dismissed with prejudice.
Obergh originally brought suit with co-plaintiff Ivonne Brito (“Brito”). By order dated August 14, 2022, Dkt. No. 33, the Court dismissed Brito's claims and terminated her as a plaintiff.
I. BACKGROUND
The Court assumes familiarity with the facts underlying this action, set forth in the prior Report, Dkt. No. 32, and thus provides only a brief review of the facts alleged in Obergh's initial complaint before summarizing the new facts alleged in Obergh's subsequent filings. Notably, Obergh has not filed a formal amended complaint, but instead has submitted a “statement” dated October 28, 2022 (“Oct. 28 Statement”), Dkt. No. 39-1, and another “statement” dated January 6, 2023, Dkt. No. 48, in opposition to the motion to dismiss. The Court considers these statements taken together to constitute the amended complaint. See, e.g., Saudagar v. Walgreens Co., No. 18-CV-437 (KPF), 2019 WL 498349, at *1 n.1 (S.D.N.Y. Feb. 8, 2019) (“A district court deciding a motion to dismiss may consider factual allegations made by a pro se party in his papers opposing the motion.”) (quoting Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013)); Marecheau v. Equal Emp't Practices Comm'n, No. 13-CV-2440 (VEC), 2014 WL 5026142, at *2 (S.D.N.Y. Sept. 30, 2014) (on motion to dismiss, courts may consider “any written instrument attached to the complaint, statements or documents incorporated into the complaint by reference . . . and documents possessed by or known to the plaintiff and upon which [plaintiff] relied in bringing the suit” (citation omitted)); Baldwin v. LIJ N. Shore Health Sys., 392 F.Supp.2d 479, 481 (E.D.N.Y. 2005) (“[T]he Court will treat the factual allegations in the affidavit and its attachments as amendments to the complaint.”).
A. Factual Background
Obergh was employed as a cleaner by Building Maintenance Services LLC (“BMS”) and stationed at the Ethical Culture Fieldston School (“Fieldston”) in the Bronx. R&R at 3. In 2017, she and Brito, the only other female janitorial staff employed by BMS and stationed at Fieldston, allegedly began to receive different treatment from the male staff. Id. at 3-6. For example, in a September 20, 2017 incident, Obergh and Brito were assigned by Fieldston employee Noel Soriano (“Soriano”) to help collect garbage in a building “already staffed by two men.” Id. at 4. However, upon arriving at the building, Obergh and Brito observed the work had already been completed. Id. Obergh was subsequently accused of having “acted insubordinately,” and she and Brito were suspended for one day. Id. at 4-5. Upon returning to work the next day, Obergh and Brito were informed that they would no longer be permitted to work for BMS at Fieldston, and were later fired by BMS. Id. at 5.
Following the incident, Obergh participated in an arbitration process with her union and later filed complaints with the Equal Employment Opportunity Commission (“EEOC”) and with the New York City Commission on Human Rights (“CCHR”). Id. at 5-6; Dkt. Nos. 36-37.
As discussed in the prior Report, Obergh received a “Notice of Suit Rights” on March 9, 2021. R&R at 5.
B. Allegations in Obergh's Further Submissions
In what she referred to as an “amended complaint” in a letter to the Court, Dkt. No. 39, Obergh maintains that “on the issue of garbage” she “never refused to do the work.” Oct. 28 Statement, Dkt. No. 39-1 at 1. She explains that she was “put . . . in work that . . . did not correspond to [her]” and that when “[s]omeone was missing as an employee, they also gave it to [her].” Id. She further alleges that Sedat Osmanovic (“Osmanovic”), Director of Human Resources for BMS, “once threatened [her] because [she] claimed [her] payments and told [her] the next time [he would] throw [her] out.” Id. Finally, she alleges that “Alexandra Villomez[a]r,[her] former supervisor, always made [her] do things that the other employees did not,” and “that's why [she] sa[id] there is discrimination.” Id.
The October 28 Statement is produced in both English and Spanish without any indication of how it was translated. See Dkt. No. 39-1.
Osmanovic is identified with the first name “Sedat” in Obergh's filings and on ECF but swore to an affidavit under the first name “Armand.” See Dkt. No. 43.
Obergh names an “Alexandra Villomezor” and an “Alexandra Villamisan.” As defendants refer to Alexandra “Villamizar,” the Court uses that spelling.
Regarding the September 20, 2017 incident, Obergh alleges that: “[Soriano] unfairly gave [her] a suspension letter because [she] refused to do a job that was not part of [her] job,” as she “was sent to that job by the union . . . to clean, not paint.” Id. She further alleges defendants “say that [she] ha[s]” complaints, but “they never gave [her] a letter or knowledge of any complaint and the union has nothing in [her] file,” even though “complaints at the school are given in writing with the date, time, day, year and signature, and . . . who sends it.” Id. at 2. Thus, according to Obergh, “[i]t is clear that everything was a plot because the school and the BMS company lasted [six] months with that letter, [and] the[re] were months of meetings before arbitration.” Id.
Obergh further explains that on the day of the incident,
Osmanovi[c] . . . sent . . . [a] man [who] did not work at the school [to her to say that she and Brito] ha[d] to hand in their uniforms [because] the school [did not] want them [there. She and Brito then] went to [a] room where [they] finished changing and [the man did not] even let [them] . . . change[. H]e said no[, t]hey [did not] want her [at the school] for a minute.
Statement Dated January 6, 2023 (“Jan. 6 Statement”), Dkt. 48 at 2. Obergh adds that she received a letter on September 21, 2017 indicating a one-day suspension, but that she “had to resume on September 25 . . . due to a medical problem[ ]from so much thinking about that suspension unfairly [sic].” Id. Obergh attached patient discharge papers from New York Presbyterian Hospital indicating that she visited on September 23, 2017 and was discharged on September 24 with instructions to visit a primary care physician “for evaluation of hypertension.” Dkt. No. 48 at 5-10.
Because the documents filed at Docket Number 48 are not paginated, the Court refers to the pagination on ECF. Obergh's January 6 Statement does not include an original Spanish-language version.
Obergh also provides other examples of “bad things” that happened to her at her workplace. First, her former supervisor, “Alexandra Villami[zar] said [she] was too old to work.” Oct. 28 Statement at 1. Second, Villamizar “told [Obergh] that [her uniform] did[ not] belong to [her] and [she] had to buy it, until one day [Obergh] went to the union.” Id. Third, when “new radios[ were distributed,] they all came with names, but [even though Soriano] was [Villamizar's] replacement, they didn't give him [Villamizar's] . . . they gave . . . him [Obergh's] . . . [b]ecause [she] did[ not] need it.” Id. Finally, Obergh was the “only” one who “kneel[ed ]to clean the stairs.” Id. Obergh then lists 11 “names of the employees who worked with [her],” including “[f]ormer [s]upervisor Alexandra Villamiza[r].” Id. at 2.
C. Procedural History
In a Report dated July 14, 2022, I recommended that defendants' motion to dismiss be granted with respect to both Obergh and Brito, but that Obergh be given leave to amend. See Dkt. No. 32. By order dated August 14, 2022, Judge Caproni adopted the Report and gave Obergh leave to file an amended complaint. Dkt. No. 33.
On October 7, 2022, Obergh filed a copy of her CCHR complaint and a letter addressed to Judge Caproni indicating that she had attached the “amended complaint” and advising the Court that she is pro se and that as a “[S]panish speaker[,] . . . navigating legal [E]nglish is very hard for [her].” Dkt. No. 36. On October 14, defendants wrote to Judge Caproni to explain that Obergh had “simply filed her CCHR complaint which[,] . . . [a]bsent a few combinations of paragraphs and rearrangement of sentences, . . . [was] practically identical” to Brito's CCHR complaint incorporated by reference in the initial complaint. Letter Dated October 14, 2022, Dkt. No. 37. Defendants sought instruction from the Court as to whether a motion to dismiss would be necessary or whether the Court would dismiss the amended complaint sua sponte. Id. at 2. By order dated October 17, 2022, I directed Obergh to respond to the letter and encouraged her “to contact the New York Legal Action Group in the courthouse for assistance.” Dkt. No. 38.
Having reviewed both documents, the Court concludes that Obergh's CCHR Complaint provides no factual allegations that were not in Brito's CCHR complaint, which was considered in the prior Report. R&R at 2 n.1. There is therefore no need to review the facts set forth in Obergh's CCHR Complaint as they have already been rejected as inadequate to sustain a claim for employment discrimination.
On October 28th, Obergh filed a letter “attaching]” a document entitled “Mayra Obergh Statement.” Dkt. No. 39. In the letter, Obergh again noted that she is pro se and had difficulty given her language barriers. Id. On October 31, I issued an order clarifying that the Court would deem the October 28 Statement to be part of the amended pleadings and directing defendants to file a new motion to dismiss. Dkt. No. 40.
On November 18, defendants moved to dismiss the amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure; filed an accompanying memorandum of law in support (“Def. Mem.”), a declaration of Jerrold F. Goldberg, and an affidavit of Armand Osmanovic; and subsequently served Obergh with the documents by mail. Dkt. Nos. 41-45. After Obergh failed to file an opposition by the due date, I gave her until January 6, 2023 to do so, and advised that the motion would otherwise be considered unopposed. Dkt. No. 47. On January 6, Obergh filed a letter enclosing the January 6 Statement and four exhibits. Dkt. No. 48. In the letter, she again noted that she was navigating the case pro se as a native Spanish speaker and that she was attempting to find legal representation. Id. On January 20, defendants filed a reply memorandum of law in support of their motion (“Def. Reply”), Dkt. No. 49.
One of the exhibits, a Statement of Luis Santos dated January 22, 2018 (“Santos Statement”), Dkt. No. 48 at 3, was attached to the initial complaint as well-the only change to the one attached to the January 6 Statement was the hand-written addition: “Mayra Obergh.” See Dkt. No. 3 at 10; Dkt. No. 48 at 3. As the Santos Statement is hearsay and, in any event, merely corroborates Obergh's factual allegations set forth in the pleadings, the Court will not consider it here. See, e.g., Benson v. Westchester Med. Ctr., No. 20-CV-05076 (PMH), 2022 WL 2702544, at *7 (S.D.N.Y. July 12, 2022) (declining to consider hearsay document annexed as exhibit to plaintiff's memorandum of law). Another exhibit, a letter authored by a BMS employee named Mariela dated April 20, 2019, is also hearsay, and describes an incident that occurred on April 19, 2019 between Mariela and Osmanovic. Dkt. No. 48 at 4. The Court does not consider that hearsay document either, and notes that it recounts an incident where Obergh was not present.
II. DISCUSSION
A. Legal Standards
1. Failure to State a Claim Under Rule 12(b)(6)
To survive a Rule 12(b)(6) motion, the plaintiff must plead sufficient facts “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although the Court “construe[s] the pleadings and affidavits in the light most favorable to plaintiffs . . . the Court will not draw argumentative inferences in the plaintiff's favor and need not accept as true a legal conclusion couched as a factual allegation.” Gilbert v. Indeed, Inc. 513 F.Supp.3d 374, 391 (S.D.N.Y. 2021) (cleaned up).
2. Title VII
A Title VII “plaintiff must plausibly allege that . . . [her] race, color, religion, sex, or national origin was a motivating factor in the [adverse] employment decision.” Jeanty v. Rhino, No. 21-CV-8326 (LTS), 2021 WL 4865202, at *2 (S.D.N.Y. Oct. 18, 2021) (quoting Vega v. Hempstead Union Free School District, 801 F.3d 72, 86 (2d Cir. 2015)). She “may do so by alleging facts that directly show discrimination or facts that indirectly show discrimination by giving rise to a plausible inference of discrimination.” Id. (quoting Vega, 801 F.3d at 87). At this stage in the litigation, she need only “sustain a minimal burden of showing facts suggesting an inference of discriminatory motivation.” Lewis v. Roosevelt Island Operating Corp., 246 F.Supp.3d 979, 988 (S.D.N.Y. 2017) (quoting Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015)).
3. Standards Applicable to Pro Se Litigants
Submissions made by pro se plaintiffs are held “to less stringent standards than formal pleadings drafted by lawyers.” Hughes v. Rowe, 449 U.S. 5, 9 (1980) (internal quotation marks omitted); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (courts are “obligated to construe a pro se complaint liberally”). Because of this, the Court may consider allegations that appear in a pro se plaintiff's opposition papers or other submissions to the Court. See, e.g., Freud v. New York City Department of Education, 21-CV-2281 (MKV), 2022 WL 889213, at *4 (S.D.N.Y. Mar. 25, 2022) (courts “may also consider factual statements made in the pro se Plaintiff's opposition to the motion to dismiss”) (citing Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013)); Henning v. N.Y.C. Dep't of Corr., No. 14-CV-9798 (JPO), 2016 WL 297725, at *3 (S.D.N.Y. Jan. 22, 2016) (“Although this allegation appears in his opposition papers, the Court-consistent with its duty to liberally construe pro se pleadings-will credit Plaintiff's assertion in evaluating the sufficiency of his complaint.”). Nevertheless, pro se plaintiffs are not excused from the normal rules of pleading; “dismissal under Rule 12(b)(6) is proper if the complaint lacks an allegation regarding an element necessary to obtain relief[.]” Geldzahler v. N.Y. Med. Coll., 663 F.Supp.2d 379, 387 (S.D.N.Y. 2009) (cleaned up).
B. Analysis
The Court assumes familiarity with the prior Report and incorporates by reference the analysis set forth therein to the extent applicable. See R&R at 13-28. With the prior Report and Obergh's subsequent submissions in mind, the Court reconsiders the merits of Obergh's claims and concludes that they should be dismissed for the following reasons.
1. Obergh Has Not Plausibly Alleged a Title VII Violation Defendants contend that Obergh has failed to state a claim for gender discrimination under Title VII. Def. Mem. at 7-16; Def. Reply at 5-6. The Court agrees.
Defendants separately argue that Obergh's Title VII claims are time-barred. Def. Mem. at 9. The Court does not reach this issue because whether or not the claims are untimely, they are still not cognizable.
In the prior Report, the Court concluded that Obergh failed to plead enough specific facts to suggest an inference of discrimination under Title VII, specifically a disparate treatment claim. R&R at 20-22. To do this, the Report explained, Obergh would need to name specific male co-workers who received more favorable treatment and were similarly situated-both “(1) subject to the same performance evaluation and discipline standards and (2) engaged in comparable conduct.” R&R at 20 (quoting Blaise v. Verizon New York Inc., 804 Fed.Appx. 68, 70 (2d Cir. 2020)).
In her original complaint, Obergh failed to identify specific male colleagues who received more favorable treatment than she did. R&R at 21 (citing Henry v. NYC Health & Hosp. Corp., 18 F.Supp.3d 396, 409 (S.D.N.Y. 2014)). In her most recent submissions, she provides a list of ten names “of the employees who worked with [her],” in addition to Villamizar, all of which appear to be common men's names. See Oct. 28 Statement at 2. But the list is not accompanied by any new factual allegations related to those co-workers, nor any statements that those coworkers were subject to the same standards or engaged in comparable conduct but were treated differently. For example, Obergh does not name which of those coworkers were the ones alleged to have “disrespect[ed] . . . superiors” without getting terminated. Dkt. No. 27 at 5; see, e.g., Richards v. Department of Education of The City of New York, et ano., No. 21-CV-338 (LJL), 2022 WL 329226, at *11 (S.D.N.Y. Feb. 2, 2022) (insufficient pleading of comparable conduct where complaint provided detailed account of circumstances surrounding comparator's discipline, but relatively little regarding plaintiff's). This leaves Obergh only with the allegation that her suspension was due to her failure to do the work she was asked to do, with no allegation that any of her male colleagues acted similarly. According to Obergh, this was not a “refus[al],” but rather she was “put . . . in work that . . . did not correspond to [her].” Oct. 28 Statement at 1. Either way, she alleges that she was suspended after she did not perform a task that she was directed to complete, and she does not allege that her male colleagues refused to perform that task (or any task). See, e.g., Stinnett v. Delta Air Lines, Inc., 278 F.Supp.3d 599, 612 (E.D.N.Y. 2017) (conduct not comparable where female employee tested positive for drugs and alcohol but did not allege that male colleagues did). Nor do Obergh's allegations explaining her treatment following the incident-that she was told she had to leave immediately and that she suffered from high blood pressure-overcome this pleading deficiency, as they do not provide any facts about male comparators to support an inference that the treatment would have been different if directed towards a male employee. See Dkt. No. 48 at 9-10. Thus, while Obergh did allege that she was subject to a harsher penalty (termination) than her male colleagues (suspension), her allegation that her male co-workers had “poor behavioral records and long disciplinary histories,” without more context, is not specific enough for the Court to infer that her conduct was comparable. See Dkt. No. 27 at 5; see also R&R at 5, 21-22.
In addition, the allegations Obergh added relating to other ways that she was mistreated by Soriano and her former supervisor Villamizar-including that she was told she “was too old to work,” that she had to buy her own uniform, that her radio was taken away, and that she was the only one who cleaned the stairs-do provide “relevant background evidence” to shed light on defendants' motivations, but they do not suggest that her male colleagues were subject to the same standards or engaged in comparable conduct. See Oct. 28 Statement at 1; R&R at 20 n.7.
As was the case with the original complaint, Obergh's amended pleadings leave the Court “merely to speculate” why the alleged misconduct of her male colleagues did not result in termination, when hers did. Makhsudova v. City of New York, No. 20-CV-10728 (KPF), 2022 WL 1571152, at *7 (S.D.N.Y. May 18, 2022) (plaintiff failed to plead adverse employment action under circumstances giving rise to an inference of discriminatory intent when, among other things, absent from complaint was any allegation as to reason comparator was placed on probation). Even though she has had an opportunity to provide the Court with additional information, Obergh has still not offered allegations that are detailed enough to move her Title VII claims “from conceivable to plausible,” and therefore they should be dismissed. Twombly, 550 U.S. at 555.
2. The Court Should Decline to Exercise Supplemental Jurisdiction Over Obergh's Remaining NYCHRL Claims
For the reasons expressed in the prior Report, because the Court recommends dismissal of all federal law claims in this case, it likewise recommends that supplemental jurisdiction not be exercised over the NYCHRL claims. Those claims should thus be dismissed without prejudice to renewal in state court. R&R at 2324; see, e.g., Fitzgerald v. We Co., No. 20-CV-5260 (AT), 2022 WL 952963, at *11 (S.D.N.Y. Mar. 30, 2022).
3. Fieldston as a Non-Employer
As discussed in the prior Report, the Court need not reach the issue of whether Fieldston is an “employer” for purposes of Title VII and thus liable for those claims. R&R at 24-25.
C. Obergh's Amended Complaint Should Be Dismissed With Prejudice
Dismissal with prejudice is appropriate where further attempts to amend the complaint would be futile. See, e.g., McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007) (“[I]t is within the sound discretion of the district court to grant or deny leave to amend.”); Dash v. Mayers, No. 19-CV-414 (GBD) (JLC), 2020 WL 1946303, at *9 (S.D.N.Y. Apr. 23, 2020), adopted sub nom. Dash v. Doe, 2020 WL 3057133 (June 9, 2020) (first amended complaint of pro se plaintiff dismissed with prejudice because of futility). Obergh has been given a second opportunity to allege the requisite facts, if they exist, to make her Title VII claims cognizable. Nevertheless, “a liberal reading of the [amended] complaint gives [no] indication that a valid claim might be stated.” Scalercio-Isenberg v. Morgan Stanley Servs. Grp. Inc., No. 19-CV-6034 (JPO), 2020 WL 4547317, at *4 (S.D.N.Y. Aug. 6, 2020) (quoting Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)) (cleaned up). Granting Obergh leave to further amend her Title VII claims would thus be futile, and the Court should therefore dismiss them with prejudice.
Undoubtedly, the language barrier has hindered Obergh's ability to litigate her claims, but she has now had two opportunities to do so and the Court is constrained to recommend discrimination with prejudice at this juncture.
III. CONCLUSION
For the foregoing reasons, defendants' motion to dismiss should be granted with prejudice as to the federal claims, and without prejudice to bringing her non-federal claims in state court.
PROCEDURE FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to such objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Valerie E. Caproni, United States Courthouse, 40 Foley Square, New York, NY 10007. Any requests for an extension of time for filing objections must be directed to Judge Caproni.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).
If Obergh does not have access to cases cited herein that are reported on Westlaw, she should request copies from counsel for defendants. See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009); Local Civil Rule 7.2, Local Rules of the United States District Courts for the Southern and Eastern Districts of New York.