Opinion
Index No. 160245/2021 Motion Seq. No. 001
03-23-2023
TIMELIA SUMMERVILLE, Plaintiff, v. TRADEWEB MARKETS, LLC. CHRIS AMEN, FRED STROBEL Defendant.
Unpublished Opinion
MOTION DATE 05/18/2022
DECISION + ORDER ON MOTION
HON. MARY V. ROSADO JUDGE.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 5, 6, 7, 8, 9, 10,11, 12 were read on this motion to/for DISMISS
Upon the foregoing documents, and after oral argument, which took place on January 17, 2023, where Martin Shell, Esq. appeared for the Plaintiff Timelia Summerville ("Plaintiff) and John Gruyette, Esq. appeared for Defendants Tradeweb Markets, LLC ("Tradeweb"), Chris Amen ("Amen") and Fred Strobel ("Strobel") (collectively "Defendants"), Defendants motion to dismiss pursuant to CPLR §§ 3211(a)(5) and (a)(7) is granted, and Plaintiffs Complaint is dismissed, without prejudice, with leave to replead.
I. Factual and Procedural Background
Plaintiff filed her Complaint on November 10,2021 alleging discrimination and retaliation under New York Exec. Law § 296 ("NYSHRL"), aiding and abetting discrimination in violation of the NYSHRL, discrimination and retaliation under New York City Admin. Code §8-107(1) ("NYCHRL"), and aiding and abetting discrimination in violation of the NYCHRL (NYSCEF Doc. 1 at ¶¶ 40-59).
Plaintiff is an African American female who was previously employed by Tradeweb (id. at ¶ 3 and 8). Plaintiff began working for Tradeweb in February of 2008 (id. At ¶ 15). Allegedly, Plaintiff left Tradeweb when she moved (id. at ¶ 15). Plaintiff then returned to Tradeweb in February of 2013 (id.). Plaintiff alleges that over the next several years, her role was diminished despite being promised she would be promoted (id.). Specifically, Plaintiff alleges that Tradeweb, through its upper management and human resources department, including the Defendants Amen and Strobel, engaged in a pattern and practice of sex discrimination by compensating women less and denying women promotion opportunities (id. at ¶ 9).
Plaintiff claims in June of 2015, there were two human resource openings in which Plaintiff expressed interest (id. at ¶ 21). Plaintiff allegedly spoke to Strobel about the positions, who directed her to Mr. Byrne, (id.). Allegedly, after Plaintiff spoke with Mr. Byrne, Strobel explained it would not be a good fit because Plaintiffs salary would remain flat (id.). Plaintiff alleges that Strobel failing to explain the salary from the beginning of her inquiry is "proof that Tradweb [sic] never intended to promote [Plaintiff] and was just placating her." (id.). Plaintiff then allegedly asked about other opportunities with a "more prestigious title (something with Vice President in it) and a front office role. Strobel rejected all of these suggestions but invited her to check back in the future." (id. at ¶ 22).
Plaintiff alleges that on August 6, 2015, Amen discussed a promotion to a sales job, but that it never occurred (id. At ¶ 16). In the same month, Strobel allegedly suggested Plaintiff assume the role of "EA Leader" but Plaintiff alleges this was "completely insulting since 'EA Leader' never existed before at Tradeweb and was completely unnecessary." (id. at ¶ 23). In October of 2016, Plaintiff allegedly discussed joining Lena Smart's cyber security team, but Plaintiff no longer sought this position after she was advised it was a voluntary position (id. At ¶ 24).
Plaintiff also alleges that on or about February 13, 2019, she was told by Amen "We're going to get you something that's not a support role-not administrative, not even sales support. I promise you, we're going to make it happen this year." (id. at ¶ 17). Plaintiff alleges that a year later, nothing had changed except her role was further diminished, and that in 2019 her salary remained flat because she was a "top earning executive] assistant]" (id. at ¶ 17-18). Plaintiff alleges that on October 21, 2019, she sent an email expressing her dissatisfaction and desire for a promotion (id. At ¶ 19). Two days later, on October 23, 2019, Amen and Summerville allegedly discussed transition to marketing, but nothing materialized (id.).
Plaintiff alleges her salary and bonus remained flat on two occasions and "mostly increased in small increments on others." (id. at ¶ 25). Plaintiff alleges she requested a raise, but this was rejected on account that she was already one of the top earners in her role (id.). However, Plaintiff alleges it is highly unlikely that she was not a top earner and as an African American woman was "most likely paid less then [sic] white counterparts. Upon information and belief starting salary is above $100,000.00 while Sumerville at the time of her termination made less then [sic] $100,000.00" (id.). Plaintiff alleges that she found herself "without a promotion, a marketable title or increased salary. [Plaintiff] was stuck just as Defendants intended." (id. At ¶ 26). Plaintiff alleges that at the same time, other employees who were not female and not African American were given new titles, promotions and increased pay (id. At ¶ 28).
Plaintiff alleges that by virtue of her gender and race, she was paid less and subjected to a glass ceiling and hostile work environment (id. at ¶8). Plaintiff also alleges that African American women were denied promotion opportunities when compared to similarly situated white women (id.). Plaintiff alleges that upon information and belief, Trade web has never had a woman on its executive leadership team, let alone an African American woman (id.).
Plaintiff further alleges that Tradeweb failed to protect her from discrimination in the workplace and fostered a discriminatory atmosphere (id. at ¶¶ 12-14). Plaintiff alleges her work environment became permeated "with discriminatory animus towards her gender (female) and her race (African American)." (id. At ¶ 31). Summerville alleges she was terminated in March of 2021 due to the "need to downsize" but alleges that this was pretext (id. At ¶ 15).
On April 8, 2022, Defendants filed this pre-answer motion to dismiss (NYSCEF Doc. 5). Defendants argue that some of Plaintiffs claims are time barred, while others suffer pleading deficiencies (NYSCEF Doc. 7). Defendants claim the statute of limitations for claims under the NYSHRL and NYCHRL is three years. Therefore, Defendants argue that the June 2015 allegations regarding HR openings, August 2015 allegation regarding a sales job, the August 2015 allegations regarding the "EA Leader" position, and the October 2016 allegation regarding the cyber security team are all untimely. Defendants further argue that the continuing violation doctrine does not apply here as the alleged incidents are discrete instances.
Defendants argue that the remainder of Plaintiff s allegations fail to state a claim for relief. Defendants assert that Plaintiff has failed to plead facts giving rise to an inference of discrimination due to differential treatment based on a discriminatory motive. Defendants claim that Plaintiff fails to plead she was ever denied a promotion, or for that matter that she actually had applied to, was qualified for, and was rejected from any specific position based on her race or gender. Rather, Defendants argue that Plaintiff was "somehow 'promised' a promotion to an unspecified role" (NYSCEF Doc. 6). However, Defendant argues that these generalized allegations are insufficient to state a failure to promote claim. Instead, Plaintiff must identify the specific position for which she applied and was denied. Defendants argue the pleadings are deficient because Plaintiff does not allege any facts suggesting she was qualified for a promotion (id.). Defendants assert that Plaintiffs allegations regarding her inquiries and interest in a promotion that never materialized fall far short of sufficiently stating a failure to promote claim. Further, Defendants claim there are no facts which support an inference that discrimination played a role in her failure to be promoted, but only bare conclusions. Defendants argue that these bare and conclusory statements, made "upon information and belief are not sufficient to pass muster on this motion to dismiss. Defendants assert that the same deficiency exists regarding her claim that she was terminated based on her race and gender, as she has pled no facts which could give rise to an inference of discrimination.
Finally, Defendants claim the retaliation pleadings are deficient because she does not allege she engaged in any protected activity, that Tradeweb was aware of such activity, that she suffered an adverse employment action likely to deter a person from engaging in protected activity, and that there is a causal connection between the protected activity and adverse action. Defendants argue that Plaintiff only alleges she complained that she had not been promoted, but did not make any report regarding discrimination based on race, gender, or any other protected category.
Plaintiff submitted a memorandum of law in opposition to Defendants' motion to dismiss (NYSCEF Doc. 10). Plaintiff argues that she suffered discrimination through Defendants false promise to promote her so that she remained an executive assistant in order to bolster company diversity. She argues her "race and sex made her a valuable executive assistant, but at the same time her race and sex were the sole impediments to any promotion." Plaintiff argues that her allegations dating back to 2015 are timely because they are part of a pattern and practice of pigeonholing the Plaintiff into an assistant role. Plaintiff argues that given the procedural posture of this motion, she is entitled to an inference in her favor that the purportedly time barred acts fall within the continuing violation doctrine.
Plaintiff also argues that her remaining allegations have stated a cause of action. Plaintiff argues that she did seek multiple promotions and interviewed with Mr. Byrne for a human resources position and Lena Smart about an opportunity with the cyber security team, which Defendant Strobel allegedly quashed on both occasions. Defendant argues that the Complaint sufficiently states she was qualified for a promotion based on the alleged statements from Defendants to Plaintiff where she was told "we are going to find you something this year. We're going to get you something that's NOT a support role-not administrative, not even sales support. I promise you, we're going to make it happen this year." Finally, Plaintiff argues she has stated an inference of discrimination by arguing that Defendants' false promises are invidious remarks, and Defendants ignore that Plaintiff has alleged that upon information and belief her white counterparts were paid more. Plaintiff requests an opportunity to replead if the Complaint is deficient based on technicalities.
The Court notes this statement was made in 2019, while Plaintiff allegedly sought an HR and Cybersecurity position in 2015.
In reply, Defendants argue that Plaintiffs procedurally defective request for an opportunity to replead should be rejected. Defendants argue that Plaintiff should not be granted leave to replead as Plaintiff has not explained the reason for her delay in seeking leave to replead, and in any event, repleading would be futile due to the application of the statute of limitations.
II. Discussion
A. Standard
When reviewing a pre-answer motion to dismiss for failure to state a claim, the Court must give the Plaintiff the benefit of all favorable inferences which may be drawn from the pleadings and determines only whether the alleged facts fit within any cognizable legal theory (Sassi v Mobile Life Support Services, Inc., 37 N.Y.3d 236, 239 [2021]). All factual allegations must be accepted as true (Allianz Underwriters Ins. Co. v Landmark Ins. Co., 13 A.D.3d 172, 174 [1st Dept 2004]). Conclusory allegations or claims consisting of bare legal conclusions with no factual specificity are insufficient to survive a motion to dismiss (Godfrey v Spano, 13 N.Y.3d 358, 373 [2009]; Barnes v Hodge, 118 A.D.3d 633,633-634 [1st Dept 2014]). A motion to dismiss for failure to state a claim will be granted if the factual allegations do not allow for an enforceable right of recovery (Connaughton v Chipotle Mexican Grill, Inc., 29 N.Y.3d 137, 142 [2017]).
Employment discrimination cases are generally reviewed under a liberal notice pleading standard, meaning that a Plaintiff need not plead specific facts establishing a prima facie case of discrimination, but must only give fair notice of the nature of the claim and its grounds (Petit v Department of Education of City of New York, 177 A.D.3d 402 [1st Dept 2019]; Vig v New York Hairspray Co., L.P., 61 A.D.3d 140, 145 [1st Dept 2009]).
B. Failure to State a Claim
i. Discrimination and Hostile Work Environment
To state a claim for discrimination in violation of the NYSHRL and NYCHRL, Plaintiff must allege that she (1) is a member of a protected class; (2) was qualified for her position; (3) was subject to an adverse employment action; and (4) that she was terminated under circumstances giving rise to an inference of discrimination (Askin v Department of Educ. of City of NY., 110 A.D.3d 621 [1st Dept 2013]). Plaintiff has adequately alleged that she is a member of a protected class since she is an African American woman. Plaintiff has also alleged she was qualified for her position as she worked as an executive assistant for years. Finally, Plaintiff was subject to an adverse employment action as she was terminated from her position. At issue on this motion to dismiss then, is whether Plaintiff has adequately alleged that she was terminated under circumstances giving rise to an inference of discrimination.
Plaintiff alleges that the reason proffered for her termination was "downsizing". However, Plaintiff alleges this was just pretext because Tradeweb had a record-breaking year for revenues. Plaintiff alleges she was terminated because they grew tired of her complaining, and that had she not been African American or a woman, she would not have been terminated.
Plaintiff alleges that her "work environment became permeated with discriminatory animus." However, she cites to no specific instances or remarks made towards her or others which substantiate this conclusory allegation (see Askin v Department of Educ. of City of New York, 110 A.D.3d 621 [1st Dept 2013] [affirming dismissal where there were no concrete factual allegations substantiating claims of discrimination, only mere legal conclusions] cf O 'Rourhe v National Foreign Trade Council, Inc., 176 A.D.3d 517, 517 [1st Dept 2019] [inference of gender discrimination arose where supervisor allegedly "insulted, excluded and concealed information from plaintiff, denied her requests for a raise, and made numerous statements that arguably reflect gender-based animus, including 'You women are such sensitive flowers'; he 'only supports humble and meek women'; that plaintiff was an 'in your face woman'; that he would 'probably' treat male employees differently, including by grooming them for advancement"]).
In fact, Plaintiff alleges she was offered a higher title and new position as an "EA Leader" and alleges that she routinely received raises and bonuses during her time at Tradeweb. While Plaintiff alleges her salary/bonus remained flat on at least two occasions, she was allegedly told this was on account that she was already one of the top executive assistant earners. Although Plaintiff alleges that "upon information and belief she was not a top earning Executive Assistant, assertions pled upon information and belief without facts to support are insufficient to overcome a motion to dismiss (Schwarz v Consolidated Edison, Inc., 147 A.D.3d 447 [1st Dept 2017]).
Likewise, the Complaint fails to allege any facts or comparators indicating that other employees were not terminated as part of the Company's alleged downsizing (Wolfe-Santos v NYS Gaming Commission, 188 A.D.3d 622 [2020] [affirming dismissal of Complaint that failed to allege facts which gave rise to an inference of discrimination or allege facts that she was treated less well than similarly situated employees because of membership in a protected class]; see also Brown v City of New York, 188 A.D.3d 518, 518-519 [1st Dept 2020] [affirming dismissal of Complaint where individual with disability alleged in conclusory fashion that he was terminated on account of his alleged disabilities, because complaint did not allege that any decision makers made remarks that showed any discriminatory intent]; Thomas v Mintz, 182 A.D.3d 490 [1st Dept 2020] [affirming dismissal of discrimination and hostile work environment claims on same basis]; Llanos v City of New York, 129 A.D.3d 620 [1st Dept 2015]; Massaro v Department of Educ. of City of New York, 121 A.D.3d 569 [1st Dept 2014]). Because there are insufficient facts pled which give rise to an inference of discrimination, Plaintiffs discrimination and hostile work environment claims are dismissed. To the extent that the aiding and abetting claims rely on the discrimination and hostile work environment claims, those claims are similarly dismissed.
ii. Failure to Promote Claim
The Court agrees with Defendant that Plaintiffs failure to promote claim is deficient. In particular, Plaintiff has failed to allege that less qualified white and/or male executive assistants were promoted ahead of her while she remained in the executive assistant position. While the Complaint alleges that "at the same time other employees who were not female and not African American were being given new titles, promotions, and increased pay" she does not allege that these employees were also executive assistants or in roles similar to executive assistants, nor does she allege that they were less qualified than her (cf Pelepelin v City of New York, 189 A.D.3d 450, 452 [1st Dept 2020] [Plaintiff stated failure to promote claim where he alleged that two non-Russian, younger, and less qualified detectives - whom he specifically names - were promoted ahead of him, while he remained unpromoted]).
Rather, Plaintiff alleges "a glass ceiling exists for Executive Assistants" which contradicts her claims that the failure to promote was due to discrimination against her on the basis of race or gender (NYSCEF Doc. 1 at ¶ 30). In other words, Plaintiff alleges by virtue of her position she hit a glass ceiling. Moreover, Plaintiffs conclusory allegations are belied by her factual allegation that in August of 2015, she was offered a promotion to be an "Executive Assistant Leader", but she rejected this promotion because she found it "completely insulting" and wanted a position with the title manager, director, or vice president (id. at ¶ 23). Because Plaintiff alleges that she was offered a promotion, she was given raises and bonuses on multiple occasions, and she fails to allege or identify other less qualified, white and/or male executive assistants who were promoted before her, she has failed to state a failure to promote claim. Therefore, these claims are dismissed, along with the aiding and abetting claims that relate to them.
iii. Retaliation
To state a claim for retaliation under the NYSHRL and NYCHRL, a plaintiff must show that she (1) engaged in a protected activity; (2) the employer was aware of such activity; (3) she suffered an adverse employment action based upon the activity; and (4) a causal connection exists between the protected activity and the adverse action (Harrington v City of New York, 151 ADS d 582 [1st Dept 2018
Plaintiff only alleges that on October 21, 2019, Plaintiff expressed dissatisfaction and her desire for a promotion (NYSCEF Doc. ¶ 19). As repeatedly held by the Court of Appeals and the First Department, generalized grievances which contain no allegations that an individual was discriminated against on the basis of race or gender do not constitute protected activity (Forrest v Jewish Guild for the Blind, 3 N.Y.3d 295 [2004]; see also Crookendale v New York City Health and Hosps. Corp., 175 A.D.3d 1132 [1st Dept 2019]; Sims v Trustees of Columbia University, 168A.D.3d 622 [1st Dept 2019]; Fruchtman v City of New York, 129 A.D.3d 500 [1st Dept 2015]; Gonzalez v EVG, Inc., 123 A.D.3d 486 [1st Dept 2014]).
Moreover, as Plaintiff was not terminated until March 2021, and her e-mail expressing dissatisfaction at not being promoted was sent on October 21, 2019, the adverse action is not temporally proximate enough to be causally connected with any purported protected activity (Bantamoi v St. Barnabas Hosp., 146 A.D.3d 420 [1st Dept 2017] [five month time period between protected activity and employer's referral of employee for psychiatric evaluation and placement on medical leave of absence was not sufficient temporal proximity to establish requisite causal connection]; see also Kim v New York State Div. of Human Rights, 107 A.D.3d 434 [1st Dept 2013]).Therefore, the retaliation claims, along with any aiding and abetting claims related to the retaliation claims, are dismissed.
C. Leave to Replead
While Plaintiff did not make a formal cross-motion seeking leave to amend, Plaintiff did request in her moving papers an opportunity to replead. As the motion to dismiss is not based on the merits, but on Plaintiffs technical failures to plead sufficiently her causes of action, the Court grants Plaintiff an opportunity to replead. Therefore, Plaintiffs Complaint is dismissed without prejudice. While Defendant argues that Plaintiff has not proffered a reasonable excuse for her delay in seeking leave to amend, delay alone is insufficient to deny the opportunity to replead (Mashinksy v Drescher, 188 A.D.3d 465 [ 1 st Dept 2020]). Moreover, while Defendant asserts that any amended pleading would be futile, the Court disagrees as there are no proposed pleadings to be analyzed, and therefore a finding of futility is premature. As the Complaint is dismissed on other grounds, the Court need not reach Defendants' statute of limitations argument at this juncture.
Accordingly, it is hereby, ORDERED that Defendants motion to dismiss Plaintiffs Complaint is granted in its entirety; and it is further
ORDERED that Plaintiff is granted leave to replead. Should Plaintiff exercise her option to replead her Complaint, she must do so within thirty days of entry of this Decision and Order; and it is further
ORDERED that within ten days of entry, counsel for Defendants shall serve a copy of this Decision and Order, with notice of entry, on Plaintiff; and it is further
ORDERED that the Clerk of the Court is directed to enter judgment accordingly.