Cruz Baez v. Amazon Fulfillment

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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VIVIAN ALICIA CRUZ BAEZ,

MEMORANDUM AND ORDER

21-cv-4195 (KAM) (RER)

Plaintiff,

-against-

AMAZON.COM SERVICES, LLC,

Defendant.

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KIYO A. MATSUMOTO, United States District Judge:

Plaintiff Vivian Alicia Cruz Baez, proceeding pro se,

brings the instant complaint against Defendant Amazon.com Services

LLC, alleging violations of Title VII of the Civil Rights Act of

1964, codified at 42 U.S.C. §§ 2000e–2000e–17 (“Title VII”), and

the Age Discrimination in Employment Act of 1967, codified at 29

U.S.C. §§ 621–634 (“ADEA”).

Presently before the Court is Defendant’s motion to

dismiss the Amended Complaint (ECF No. 19) for failure to exhaust

administrative remedies and failure to state a claim pursuant to

Fed. R. Civ. P. 12(b)(6). (ECF No. 29.) For the reasons set forth

below, Defendant’s motion to dismiss is granted and the Amended

Complaint is dismissed in its entirety.

1

BACKGROUND

The following facts, set forth in the Amended Complaint

and the attached exhibits, are presumed true for purposes of

considering Defendant’s motion. See Nicosia v. Amazon.com, Inc.,

834 F.3d 220, 230–31 (2d Cir. 2016) (holding that courts may

consider on a motion to dismiss “any written instrument attached

to [the complaint] as an exhibit or any statements or documents

incorporated in it by reference” and other documents “integral” to

the complaint).

Plaintiff, born in 1966, was a former employee of

Defendant Amazon.com Services LLC (“Amazon”).1 She was terminated

from her position at Amazon on March 15, 2021. Plaintiff is of

Hispanic national origin, and was 54 years old at the time of her

termination. (ECF No. 19 (“Am. Compl.”) at 182; ECF No. 30-3

(“EEOC Charge”) at 7.)

On July 2, 2021, Plaintiff filed a “Charge of

Discrimination” with the Equal Employment Opportunity Commission

(“EEOC”), alleging discrimination based on national origin,

retaliation, and age, in relation to termination of her

employment on March 15, 2021. (EEOC Charge at 7, 9.) On July

1 Defendant was sued as “Amazon Fulfillment,” but Defendant states that “[n]o

such entity exists, and Amazon.com Services, LLC is the appropriately named

Defendant in this Action.” (ECF No. 14 at 1 n.1.)

2 All pagination pin citations refer to the page number assigned by the Court’s

CM/ECF system.

2

21, 2021, Plaintiff received a “notice of suit rights” (also

referred to as a notice of right to sue) from the EEOC, which

stated that she had 90 days after receipt of the notice to file

a lawsuit in federal or state court based on the EEOC Charge.

(Id.) Plaintiff then filed her Complaint in this action on July

23, 2021. At a pre-motion conference with this Court on

November 4, 2021 regarding Defendant’s anticipated motion to

dismiss, this Court granted Plaintiff leave to file an amended

complaint to give Plaintiff “the opportunity to add additional

facts supporting her claims of discrimination and retaliation on

the basis of age and national origin.” (11/04/2021 Minute

Entry.)

Plaintiff filed an Amended Complaint on December 8,

2021, bringing an action for discrimination in employment

pursuant to Title VII of the Civil Rights Act, codified at 42

U.S.C. §§ 2000e-2000e-17, and the Age Discrimination in

Employment Act of 1967 (“ADEA”), codified at 29 U.S.C. § § 621-

634. The Amended Complaint identifies “termination of [her]

employment,” “retaliation,” and “other acts: discrimination

(age, national origin)” as the discriminatory conduct at issue.

(Am. Compl. at 3-4.) The Court will summarize the specific

incidents that are relevant to Plaintiff’s claims in this

action, largely derived from Plaintiff’s EEOC Charge and

3

repeated in and supplemented by allegations in her Amended

Complaint.

July 15, 2020

Plaintiff alleges in her EEOC Charge that on July 15,

2020, an unknown “African American Male” employee verbally abused

her. (EEOC Charge at 7.) In her Amended Complaint, she further

alleges that the employee was telling her “Fuck you,” intimidating

her, and invading the station where Plaintiff was working as a

packer. (Am. Compl. at 9.) Plaintiff brought the issue to the

attention of individual “Ryan,” who did not know the employee’s

name. (Id. at 27.) Plaintiff filed a formal discrimination claim

against the employee via a written statement on August 2, 2020.

She further spoke with a Human Resources representative at the

time named “Heather.” (EEOC Charge at 7.) Plaintiff asserts that

“Heather stated that she was going to follow up with an

investigation,” but that Plaintiff believes “that she did not do

anything because the guy who verbally abused [Plaintiff] was still

working there and harassing [Plaintiff].” (Id.)

December 1, 2020

In her Amended Complaint, Plaintiff recounts an

incident from December 1, 2020, which she did not include nor

even reference in her EEOC Charge. Plaintiff alleges that “a

group of Amazon employees” pushed her and her daughter and

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threatened to physically attack them. (Am. Compl. at 9, 28-29.)

The group allegedly said, "fucking bitch, fucking latin" and "I

scent [sic] you face bitch,” and one of the women attacked

Plaintiff’s daughter and pulled her hair. (Id.) Plaintiff

alleges that “911 was called and was told that a group was

attacking and threatening,” and that she wrote a statement to a

Miss Cristina at Human Resources, who investigated the incident.

(Id. at 28-29.)

February 16, 2021; February 23, 2021

On February 16, 2021, “the managers Clyde and Tatiana

Cruz” threatened to fire Plaintiff and her daughter “for

insubordination.” (EEOC Charge at 8.) The managers accused both

Plaintiff and her daughter of not working the designated areas,

and said that Plaintiff “had left and had not worked at the station

that [she] was assigned to work.” (Id.) Plaintiff states that the

reason she was not at her designated area was because “the machines

were not working properly as [Plaintiff] had repeatedly reported.”

(Id.) Plaintiff believes that both she and her daughter were

terminated “because [her] daughter applied for a promotion and

since they did not want to promote her, because they knew that

[Plaintiff and her daughter] were good employees and they wanted

to bring their people.” (Id.) In her Amended Complaint, Plaintiff

alleges that on February 16, 2021, an employee, Ryan Tenney,

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“threatened” Plaintiff and her daughter that he was going to write

them up, “with a high loud voice and basically humiliated

[Plaintiff and her daughter] in front of other associates.” (Am.

Compl. at 48.) From the record before the Court, it is unclear

whether Plaintiff is referring to the same February 16, 2021

incident as the incident with “the managers Clyde and Tatiana

Cruz.”

Plaintiff further alleges in her EEOC Charge that

individual “Clyde” told Plaintiff on or before February 16, 2021

that “they only hired people who spoke English and that they only

gave that position to younger employees.” (EEOC Charge at 8.) In

her Amended Complaint, Plaintiff describes the incident as

follows:

“Alex Clive Williams assigned at the time to

the position of (Process Assistant) in the

single and smartpac Dept. responded to me in

a discriminatory way for asking him to reapply

for an Ambassador position that it would be

difficult for [Plaintiff] to be accepted

because managers prefer to move up to

positions . . . young people who speak perfect

English.”

(Am. Compl. at 10.)

Plaintiff next alleges in her EEOC Charge that on

February 23, 2023, Tenney took Plaintiff to HR, where she asked

for an interpreter and “was told that there was no one.” Plaintiff

states that Tenney and Samiul Karim from Human Resources told

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Plaintiff she was being fired and told Plaintiff that she needed

to leave the building. Plaintiff then went to another HR office

and was asked to write a statement about what happened on February

16, 2021. (EEOC Charge at 8; Am. Compl. at 11.) Plaintiff alleges

that Mike Tanelli from Human Resources was “telling [Plaintiff] to

write that [she] was insubordinate and that [she] had refused to

work where [she] was supposed to be working.” (EEOC Charge at 8;

Am. Compl. at 11.) Plaintiff further asserts that when she asked

Mr. Tanelli if he wanted her to write a statement regarding the

“intimidation” from Tenney and Karim, Mr. Tanelli told Plaintiff

not to do so. (Am. Compl. at 11.) Plaintiff acknowledges that

she was not fired that day, but alleges that “they continued with

the acts of retaliation” against Plaintiff and her daughter.”

(EEOC Charge at 8.)

Plaintiff alleged in her EEOC Charge that she was written

up on February 28, 2021 to prevent her from transferring from her

location. (Id.) Plaintiff was ultimately terminated on March 15,

2021.

With as liberal a reading of pro se Plaintiff’s

pleading and exhibits as possible, the Court construes the bases

of Plaintiffs’ national origin and age discrimination claims as

the following events described in her Amended Complaint:

7

•

Ever since reporting the July 15, 2020 incident to her

supervisor (Ryan Tenney) and to HR, Tenney “want[ed] to

humiliate [Plaintiff], be offensive,” and was “basically

hostile” to Plaintiff and her daughter, (see Am. Compl.

at 48), further evinced by his threat to write Plaintiff

up on February 16, 2021 and their conversation on

February 23, 2021. Plaintiff states that she “feel[s]

discriminated against because of [her] age and the way

[she] speaks[s],” and that Tenney “has used threats,

verbal intimidation on a routine basis at work.” (Id.)

•

The December 1, 2020 incident;

•

Alex Clive Williams’ comments to Plaintiff on February

16, 2021.

Defendant moved to dismiss the Amended Complaint and

the motion was fully briefed as of March 4, 2022. The Court

notes that Plaintiff did not submit a memorandum of law in

opposition to Defendant’s motion to dismiss, but rather

submitted the following paragraph:

The facts of my opposition are as follows

are that, I was intimidated, discriminated

against and verbally abused. I was affected

emotionally. I also brought the complaints

and incidents; and they did not take my

complaints into attention. The retaliation,

discrimination, intimidation, harassment and

unsafety environment continued going on;

even when I reported what was going on.

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(ECF No. 31 (“Pl. Opp.”) at 2.)

LEGAL STANDARD

To survive a motion to dismiss pursuant to Rule

12(b)(6), a complaint must contain sufficient factual matter,

accepted as true, to “ ‘state a claim to relief that is

plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678,

129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d

929 (2007)). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the

conduct alleged.” Id.

When considering a motion to dismiss under Rule

12(b)(6), a district court must “accept as true all factual

statements alleged in the complaint and draw all reasonable

inferences in favor of the non-moving party.” McCarthy v. Dun &

Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007) (citation

omitted). In considering a 12(b)(6) motion, the court may refer

to “documents attached to the complaint as an exhibit or

incorporated in it by reference, to matters of which judicial

notice may be taken, or to documents either in plaintiffs’

possession or of which plaintiffs had knowledge and relied on in

bringing suit.” Brass v. Am. Film Tech., Inc., 987 F.2d 142,

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150 (2d Cir. 1993) (internal citations omitted); see also

Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 1993)

(clarifying that “reliance on the terms and effect of a document

in drafting the complaint is a necessary prerequisite to the

court's consideration of a document on a dismissal motion; mere

notice of possession is not enough.”) (emphasis in original).

Where, as here, the plaintiff is proceeding pro se,

pleadings “must be construed liberally and interpreted to raise

the strongest arguments that they suggest.” Sykes v. Bank of

Am., 723 F.3d 399, 403 (2d Cir. 2013) (quoting Triestman v. Fed.

Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)). A pro se

complaint, “however inartfully pleaded, must be held to less

stringent standards than formal pleadings drafted by lawyers.”

Boykin v. KeyCorp, 521 F.3d 202, 213–14 (2d Cir. 2008) (quoting

Erickson v. Pardus, 55 U.S. 89, 94 (2007) (per curiam)). This

is “particularly so when the pro se plaintiff alleges that [his]

civil rights have been violated.” Sealed Plaintiff v. Sealed

Defendant, 537 F.3d 185, 191 (2d Cir. 2008). Still, “even pro

se plaintiffs asserting civil right claims cannot withstand a

motion to dismiss unless their pleadings contain factual

allegations sufficient to raise a ‘right to relief above the

speculative level.’ ” Jackson v. NYS Dep't of Labor, 709 F.

Supp. 2d 218, 224 (S.D.N.Y. 2010) (quoting Twombly, 550 U.S. at

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555). Although liberally interpreted, a pro se complaint must

still state a claim to relief that is plausible on its face, as

the “duty to liberally construe a plaintiff’s complaint [is not]

the equivalent of a duty to re-write it.” Geldzahler v. N.Y.

Med. Coll., 663 F. Supp. 2d 379, 387 (S.D.N.Y. 2009).

DISCUSSION

I. Title VII

A. Threshold Issues

i. Timeliness

In New York, a federal employment discrimination claim

is time-barred unless the plaintiff first files an EEOC charge

within 300 days of the alleged discrimination. 42 U.S.C. §

2000e-5(e)(1); Rasko v. N.Y.C. Admin. for Children's Servs., 734

F. App'x 52, 54 (2d Cir. 2018)(summary order)(“Under Title VII,

a plaintiff in New York must file a complaint with the EEOC

within 300 days of a discriminatory act.” (first citing 42

U.S.C. 2000e-5(e)(1); and then citing Pikulin v. City Univ. of

N.Y., 176 F.3d 598, 599 (2d Cir. 1999))).

Here, Plaintiff filed her EEOC Charge on July 2, 2021.

(EEOC Charge at 7.) Defendant argues that allegations in

Plaintiff’s Amended Complaint that arise prior to September 5,

2020 (300 days before July 2, 2021) must be “dismissed as time

barred.” (ECF No. 29 (“Def. Mem.”) at 13.) The time bar would

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apply to two incidents alleged by Plaintiff that are relevant to

this motion: (1) the July 15, 2020 incident where Plaintiff

alleges that an “African American Male” yelled “fuck you” to

her, and (2) her allegation that on August 2, 2020, she reported

the incident to Human Resources but they “did not correct it.”

Although these two incidents are time-barred as the

basis for Plaintiff’s discrimination claims, it is well-

established that “expiration of the limitations period does not

bar an employee from using the prior acts as background evidence

in support of a timely claim.” Davis-Garett v. Urban

Outfitters, Inc., 921 F.3d 30, 42 (2d Cir. 2019) (internal

quotations and citation omitted); see also Belyea v. City of

Glen Cove, 2022 WL 3586559, at *8 (E.D.N.Y. Aug. 22, 2022)

(collecting cases). Therefore, although those two incidents

cannot form the direct basis of Plaintiff’s claims as they arise

in this action, the Court will rely on those allegations as

background evidence in “evaluating the merits” of those claims.

See, e.g., Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 150

(2d Cir. 2012).

ii. Exhaustion of Administrative Remedies

Defendant also argues Plaintiff’s claims in the

Amended Complaint must be dismissed for “failure to exhaust

administrative remedies,” as the Amended Complaint “contains

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claims and factual assertions that were not included in the

[EEOC] Charge” and have thus appeared for the first time in the

Amended Complaint. (Def. Mem. at 14.)

“Under Title VII, a complainant must ‘exhaust’ her

administrative remedies by filing a complaint with the EEOC or

an authorized state agency prior to the commencement of a Title

VII action in federal court, and that complaint must name the

defendant.” Belyea, 2022 WL 3586559, at *9 (citing Edo v.

Antika Pizzeria Astoria, Inc., 852 F. App'x 618, 619 (2d Cir.

2021)) (“Before an individual may bring a Title VII suit in

federal court, the claims forming the basis of such a suit must

first be presented in a complaint to the EEOC or the equivalent

state agency.”) (internal citation omitted)) (collecting cases).

Claims not raised in an EEOC complaint, however, “may be brought

in federal court if they are reasonably related to the claim

filed with the agency.” Zarda v. Altitude Express, Inc., 883

F.3d 100, 110 n.5 (2d Cir. 2018)(en banc)(alteration in

original)(internal quotations and citation omitted).

“Reasonably related” claims are recognized in three

situations: where (1) the alleged discriminatory conduct “would

fall within the ‘scope of the EEOC investigation which can

reasonably be expected to grow out of the charge of

discrimination’ ”; (2) the claim is one of “retaliation by an

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employer against an employee for filing an EEOC charge”; and (3)

the plaintiff “alleges further incidents of discrimination

carried out in precisely the same manner alleged in the EEOC

charge.” See Terry v. Ashcroft, 336 F.3d 128, 151 (2d Cir.

2003); see also Carter v. New Venture Gear, Inc., 310 F. App'x

454, 458 (2d Cir. 2009) (summary order) (same). “The central

question is whether the complaint filed with the EEOC gave that

agency ‘adequate notice to investigate discrimination on both

bases.’ ” Ximines v. George Wingate High Sch., 516 F.3d 156,

158 (2d Cir. 2008) (internal quotations and citation omitted).

Here, Plaintiff filed a timely complaint with EEOC on

July 2, 2021. She checked boxes for “national origin,”

“retaliation,” and “age” as the bases for the alleged

discrimination. (EEOC Charge at 2.) She alleges that an

individual named “Clyde” told her on or about February 16, 2021

that “they only hired people who spoke English and that they

only gave that position to younger employees.” The Court

accordingly finds that, liberally construed, the additional

allegations in Plaintiff’s Amended Complaint that she did not

allege in her EEOC Charge are reasonably related, as they could

fall within the “scope of the EEOC investigation which can

reasonably be expected to grow out of the charge of

discrimination,” and therefore are considered exhausted for

14

purposes of this action. See, e.g., Freckleton v. Ambulnz NY

LLC, 2022 WL 4644673, at *3 (E.D.N.Y. Sept. 30, 2022).

B. National Origin Discrimination Claim

i. Legal Standard

Title VII makes it unlawful for an employer “to fail

or refuse to hire or to discharge any individual, or otherwise

to discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment,

because of such individual's race, color, religion, sex, or

national origin.” 42 U.S.C. § 2000e-2(a)(1). To survive a

motion to dismiss, “absent direct evidence of discrimination,

what must be plausibly supported by facts alleged in the

complaint is that the plaintiff is a member of a protected

class, was qualified, suffered an adverse employment action, and

has at least minimal support for the proposition that the

employer was motivated by discriminatory intent.” Littlejohn v.

City of New York, 795 F.3d 297, 311 (2d Cir. 2015) (“The facts

alleged must give plausible support to the reduced requirements

that arise under McDonnell Douglas in the initial phase of a

Title VII litigation.”). Therefore, in an employment

discrimination case, a plaintiff must plausibly allege that:

“(1) the employer took adverse action against him, and (2) his

race, color, religion, sex, or national origin was a motivating

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factor in the employment decision.” Vega v. Hempstead Union

Free School Dist., 801 F.3d 72, 87 (2d Cir. 2015) (“At the

pleadings stage, then, a plaintiff must allege that the employer

took adverse action against her at least in part for a

discriminatory reason, and 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.”) (emphasis added).

ii. Application

At issue here is only the fourth Littlejohn element —

requiring that the facts alleged provide “at least minimal

support for the proposition that the employer was motivated by

discriminatory intent,” in the adverse employment action

Plaintiff suffered — her termination. See Littlejohn, 795 F.3d

at 311 (“The facts required by Iqbal . . . need only give

plausible support to a minimal inference of discriminatory

motivation.”)

Although Plaintiff does not clearly allege that her

termination was based on national origin discrimination, the

Court liberally construes two incidents in Plaintiff’s Amended

Complaint to be the basis for her claim that Defendant

discriminated against her due to her national origin: (1)

employees attacking her and her daughter on December 1, 2020 and

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saying “fucking bitch, fucking latin,” (Am. Compl. at 9), which

Plaintiff reported to a Miss Cristina at Human Resources, who

investigated the incident. (Id. at 28-29); (2) Alex Clive

Williams telling Plaintiff in or about February 16, 2021 that

“it would be difficult” for her to be accepted to the Ambassador

position “because managers prefer to move up to positions . . .

young people who speak perfect English.” (Id. at 10.) The

Court again notes that, in Plaintiff’s EEOC Charge, she

described the incident as: “Clyde told me on or about before

February 16, 2021 that they only hired people who spoke English

and that they only gave that position to younger employees.”

(EEOC Charge at 3.)

The Court does not find that Plaintiff’s allegations

regarding the December 1, 2020 incident lend “plausible support

to a minimal inference of discriminatory motivation” in the

adverse employment action of her ultimate termination on March

15, 2021, as required under Littlejohn or Vega. First, an

employee’s “ ‘stray remarks’ alone do not support a

discrimination suit.” Danzer v. Norden Sys., Inc., 151 F.3d 50,

56 (2d Cir. 1998). In determining whether a remark is probative

of discriminatory intent, courts have “considered four factors:

(1) who made the remark (i.e., a decision-maker, a supervisor,

or a low-level co-worker); (2) when the remark was made in

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relation to the employment decision at issue; (3) the content of

the remark (i.e., whether a reasonable juror could view the

remark as discriminatory); and (4) the context in which the

remark was made (i.e., whether it was related to the decision-

making process).” Henry v. Wyeth Pharm., Inc., 616 F.3d 134,

149 (2d Cir. 2010). Further, courts in the Second Circuit

“routinely dismiss discrimination claims where the only

allegations made in support are stray remarks by non-

decisionmakers wholly unconnected to the adverse employment

action underlying the claim.” Ahmad v. White Plains City Sch.

Dist., 2019 WL 3202747, at *5 (S.D.N.Y. July 16, 2019)

(collecting cases).

Here, Plaintiff has not plausibly alleged

circumstances giving rise to an inference that national origin

discrimination was, in part, a motivating factor in her

termination. She has not alleged, for example, that the

employees who made racist remarks on December 1, 2020 “had any

decision-making authority surrounding her termination,” nor are

there any allegations from “which the Court could infer that

anyone involved in the decision to terminate Plaintiff’s

employment was even aware of these comments.” See Ahmad, 2019

WL 3202747, at *5; Dubie v. Buffalo Concrete Accessories, Inc.,

2022 WL 17822125, at *8 (W.D.N.Y. Dec. 20, 2022) (finding that

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even allegations that some employees who made racist remarks had

supervisory or managerial roles were insufficient because

Plaintiff did not allege that those employees “had the authority

to hire and fire”).

Plaintiff’s allegations regarding a February 16, 2021

incident when Plaintiff was told that she and her daughter were

not at their assigned work areas and could be terminated for

insubordination, and Williams’ comment that “it would be

difficult” for Plaintiff to be accepted when she “asked him to

reapply for an Ambassador position . . . because managers prefer

to move up to positions . . . young people who speak perfect

English” also fail to lend plausible support to an inference of

discriminatory motivation for her termination. (Am. Compl. at

10.) Plaintiff alleged in her EEOC Charge that she believed

that she and her daughter “were both terminated because my

daughter applied for a promotion and since they did not want to

promote her, because they knew that we were good employees and

they wanted to bring their people.” (EEOC Charge at 8.)

Although in certain circumstances, “evidence of

language discrimination may permit a jury finding of national

origin or race discrimination — for example, when it is

accompanied by sufficient evidence more directly proving the

latter forms of discrimination,” Panjwani v. Jet Way Sec. &

19

Investigations, LLC, 2016 WL 3675331, at *13 (E.D.N.Y. Feb. 26,

2016), report and recommendation adopted, 2016 WL 3702969

(E.D.N.Y. July 7, 2016), “[l]anguage, by itself, does not

identify members of a suspect class.” Soberal–Perez v. Heckler,

717 F.2d 36, 41 (2d Cir. 1983).3 Therefore, although the

“English” comment could perhaps buttress Plaintiff’s national

origin discrimination allegations, she has not sufficiently

pleaded facts to support an inference that her termination was

at least partly motivated by her national origin. See, e.g.,

Jackson v. Cnty. of Rockland, 450 F. App'x 15, 19 (2d Cir. 2011)

(summary order) (“[B]ald assertions of discrimination ...

unsupported by any comments, actions, or examples ... from which

we could infer that the defendants possessed a discriminatory

... motive are ... insufficient to survive a motion to

dismiss.”); see also Idlisan v. N. Shore-Lone Island Jewish

Health Sys., Inc., 2014 WL 2157540, at *6-7 (E.D.N.Y. May 23,

2014) (dismissing discrimination claims because “[e]ven

liberally read, the complaint fails to plead any facts linking

3 In assessing the “propriety of a language-restriction policy,” courts

consider “whether the employer's practices reflect an intent to discriminate

on the basis of the classifications protected by Title VII, including race

and national origin ... [and] whether there is evidence that the employer, in

addition to adopting an English-only policy, has exhibited other forms of

racial or ethnic hostility.” Durand v. Excelsior Care Grp. LLC, 2020 WL

7246437, at *6 n.2 (E.D.N.Y. Dec. 9, 2020) (citing Pacheco v. New York

Presbyterian Hosp., 593 F. Supp. 2d 599, 612 (S.D.N.Y. 2009) (collecting

cases)).

20

defendant's [actions] to [plaintiff's] race [or] national

origin”). In any event, Plaintiff again fails to make any

allegations about Williams having any decision-making authority

as to her termination of employment. See Dubie, 2022 WL

17822125, at *8. As a result, the Court finds that Plaintiff

has not pleaded “enough nonconclusory factual matter to nudge”

her national origin discrimination claim “across the line from

conceivable to plausible.” See Mandala v. NTT Data, Inc., 975

F.3d 202, 208-209 (2d Cir. 2020).

C. Retaliation

Title VII prohibits retaliation against an employee

who “has opposed any practice [that is] made an unlawful

employment practice” under Title VII. 42 U.S.C. § 2000e-3(a).

Claims of retaliation are analyzed under the McDonnell Douglas

burden shifting analysis. McDonnell Douglas Corp. v. Green, 411

U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). At the

pleading stage, “the allegations in the complaint need only give

plausible support to the reduced prima facie requirements that

arise under McDonnell Douglas in the initial phase of a Title

VII litigation.” Littlejohn, 795 F.3d at 316. The main

question on a motion to dismiss is whether a plaintiff can

establish a claim that has “factual allegations that raise a

right of relief above the speculative level.” Belyea, 2022 WL

21

3586559, at *12 (internal quotations and citation omitted)

(cleaned up).

To establish a prima facie case of retaliation, a

plaintiff must show: “(1) participation in a protected activity;

(2) that the defendant knew of the protected activity; (3) an

adverse employment action; and (4) a causal connection between

the protected activity and the adverse employment action.”

Littlejohn, 795 F.3d at 316. At the pleading stage, the

allegations need only give plausible support to the reduced

prima facie requirements. Id. Only the first and fourth

element are in dispute here. (See generally Def. Mem. 23-24.)

i. Protected Activity

Filing either a formal or informal complaint asserting

discrimination is a protected activity for purposes of

retaliation claims under Title VII. See Jagmohan v. Long Island

R.R. Co., 622 F. App’x 61, 63-64 (2d Cir. 2015) (summary order);

Summa v. Hofstra Univ., 708 F.3d 115, 126-27 (2d Cir. 2013). “A

complaint of discrimination constitutes ‘protected activity’

only if (1) the plaintiff holds a good-faith belief that he

suffered discrimination because of a protected characteristic

and (2) that belief is reasonable.” See Jagmohan, 622 F. App’x

at 63-64. Here, following the December 1, 2020 incident where

Plaintiff alleges that a group of employees said to her and her

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daughter “fucking bitch, fucking latin,” Plaintiff wrote a

complaint to Human Resources on that date. (Am. Compl. at 9,

27-29.) Although Plaintiff has not explicitly asserted that she

participated in a protected activity, the Court finds that

Plaintiff has sufficiently pleaded that her Human Resources

complaint satisfies this factor, as Plaintiff had a reasonable,

good-faith basis to believe that an employee’s use of derogatory

national origin language was discriminatory.4

ii. Causal Connection

To sufficiently plead that a defendant-employer took

an adverse employment action “because” a plaintiff opposed an

unlawful employment practice, a plaintiff “must plausibly allege

that the retaliation was a ‘but-for’ cause of the employer's

adverse action.” Vega v. Hempstead Union Free School Dist., 801

F.3d 72, 90 (2d Cir. 2015) (citing Univ. of Tex. Sw. Med. Ctr.

v. Nassar, 570 U.S. 338, 360, 133 S.Ct. 2517, 186 L.Ed.2d 503

(2013)). “But-for” causation does not require that retaliation

“was the only cause of the employer's action, but only that the

4 The Court cannot conclude, however, that Plaintiff participated in a

protected activity related to Williams’ comments to her on February 16, 2021

that “managers prefer to move up to positions . . . young people who speak

perfect English.” (Am. Compl. at 10.) Even in the broadest of readings,

Plaintiff makes no allegations about whether she filed an informal or formal

complaint — or participated in any other kind of protected activity —

regarding this incident. In fact, the Witness Statement Form that Plaintiff

submitted to Human Resources, dated February 23, 2021, makes no mention of

any such comments by Williams, even though Plaintiff asserts that the Form

was submitted for the purposes of “explaining what exactly happened” on

February 16, 2021. (Am. Compl. at 42, 48.)

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adverse action would not have occurred in the absence of the

retaliatory motive.” Id. at 91 (quoting Zann Kwan v. Andalex

Grp. LLC, 737 F.3d 834, 846 (2d Cir. 2013)); Pothen v. Stony

Brook Univ., 211 F. Supp. 3d 486, 497 (E.D.N.Y. 2016) (same)).

A causal connection of retaliation can be shown either “(1)

indirectly, by showing that the protected activity was followed

closely by discriminatory treatment, or through other

circumstantial evidence such as disparate treatment of fellow

employees who engaged in similar conduct; or (2) directly,

through evidence of retaliatory animus directed against the

plaintiff by the defendant.” Littlejohn, 795 F.3d at 319.

Plaintiff has not pleaded any allegations regarding

any causal connection between her protected activity (filing a

complaint with Human Resources regarding the December 1, 2020

comments by an employee) and the adverse employment action (her

termination on March 15, 2021). Plaintiff’s allegations about

the circumstances of her termination (see Am. Compl. at 10-11,

14-16, 48) stem almost entirely from her February 16, 2021

conversation with Tenney and subsequent workplace experiences.

The December 1, 2020 incident, however, along with Plaintiff’s

Witness Statement Form about the incident, are never referenced

again.

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Nor does Plaintiff allege any facts indicating that

her February 16, 2021 conversation with Tenney was protected

activity, because she does not allege she objected to any

discriminatory actions or statements in that conversation.

Rather, Plaintiff alleges that “the Manager” had said that

Plaintiff had left and “not worked at the station that [she] was

assigned to work” (EEOC Charge at 8), and that Tenney said to

her that he was “going to terminate [Plaintiff] for

insubordination.” (See id. at 10, 48.) Without any facts

alleging a “but-for” causal connection between her termination,

and either her December 1, 2020 complaint to Human Resources or

her February 16, 2021 conversations (which, again, Plaintiff has

not made any allegations suggesting those conversations may have

been protected activities), Plaintiff’s retaliation claim under

Title VII plainly fails.

D. Hostile Work Environment Claim

To the extent Plaintiff’s Amended Complaint could be

construed as alleging a hostile work environment claim under

Title VII, the Court finds that Plaintiff has failed to state a

claim. To state a hostile work environment claim, a plaintiff

must “show that the workplace is permeated with discriminatory

intimidation, ridicule, and insult, that is sufficiently severe

or pervasive to alter the conditions of the victim's employment

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and create an abusive working environment.” Belyea, 2022 WL

3586559, at *10 (citing Shultz v. Congregation Shearith Israel,

867 F.3d 298, 309 (2d Cir. 2017)(internal citation omitted)).

“This standard has both objective and subjective components: the

conduct complained of must be severe or pervasive enough that a

reasonable person would find it hostile or abusive, and the

victim must subjectively perceive the work environment to be

abusive.” Littlejohn, 795 F.3d at 321 (internal citation

omitted). In addition, a plaintiff must show “that the

complained of conduct ... creates such an environment because of

the plaintiff's” protected characteristic. See Belyea, 2022 WL

3586559, at *10 (citing LeGrand v. Walmart Stores E., LP, 779 F.

App'x 779, 782 (2d Cir. 2019)); see also Tolbert v. Smith, 790

F.3d 427, 439 (2d Cir. 2015) (citation omitted) (“[T]he

plaintiff also must show that the hostile conduct occurred

because of a protected characteristic.”).

Here, Plaintiff alleges that ever since the July 15,

2020 incident, during which an employee allegedly used a

profanity against Plaintiff, Ryan Tenney “want[ed] to humiliate

[Plaintiff], be offensive,” and was “basically hostile” to

Plaintiff and her daughter. (Am. Compl. at 48.) Plaintiff also

alleges that she felt “discriminated against because of . . .

the way [she] speak[s],” that Tenney “has used threats, verbal

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intimidation on a routine basis at work,” and that Tenney’s

“behavior has extended to many people on the staff.” (Id.) In

her “Witness Statement Form” dated February 23, 2021, Plaintiff

also states that there were “recent events that have created a

hostile atmosphere in my working environment.” (Id. at 42.)

Plaintiff’s Amended Complaint does not sufficiently

plead a hostile work environment claim. Plaintiff does not

allege how Tenney’s purportedly hostile behavior, occurring “on

a routine basis,” had any relationship or connection at all to

Plaintiff’s protected characteristic of her national origin.

Other than a brief mention that Plaintiff believes Tenney’s

behavior was because of the way she speaks, Plaintiff fails to

make even the slightest of allegations as to how the hostile

work environment “occurred under circumstances raising a

reasonable inference” that her national origin “was a

determining factor in the creation of the hostile work

environment.” See Figueroa v. Garland, 2022 WL 17539114, at *9

(S.D.N.Y. Dec. 9, 2022).

II. ADEA Claim

A. Age Discrimination Claim

The ADEA prohibits an employer from discriminating

against “any individual with respect to [her] compensation,

terms, conditions, or privileges of employment, because of such

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individual's age.” 29 U.S.C. § 623(a)(1). “[T]o defeat a

motion to dismiss . . . an AEDA plaintiff must plausibly allege

that he would not have been terminated but for his age.” Lively

v. WAFRA Inv. Advisory Grp., Inc., 6 F.4th 293, 303 (2d Cir.

2021); see also Bernstein v. N.Y. City Dept. of Educ., 2022 WL

1739609, at *1 (2d Cir. May 31, 2022) (summary order) (quoting

Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 86 (2d

Cir. 2015)).

Though Plaintiff alleges that her age warrants ADEA

protection, Plaintiff plainly fails to state an ADEA claim. The

only factual allegation referring to age is Alex Clive Williams’

comment on February 16, 2021 that “it would be difficult” for

Plaintiff to be accepted to the Ambassador position “because

managers prefer to move up to positions . . . young people who

speak perfect English.” (Am. Compl. at 10.) As stated above,

the Court notes that, in Plaintiff’s EEOC Charge, she described

the incident as: “Clyde told me on or about before February 16,

2021 that they only hired people who spoke English and that they

only gave that position to younger employees.” (EEOC Charge. at

3.) Not only did Plaintiff’s only factual allegation relating

to age occur in a context completely unrelated to her ultimate

termination, but she does not allege that Williams had any role

in or was in any way involved in her termination. (See

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generally Am. Compl. at 11-17); see also Naumovski v. Norris,

934 F.3d 200, 216, 216 n.47 (2d Cir. 2019) (cleaned up) (holding

that “stray remarks even if made by a decisionmaker, do not

constitute sufficient evidence to make out a case of employment

discrimination” and are insufficient to raise an inference of

discriminatory motive, and noting that remarks may evince

discriminatory intent where they (1) were made repeatedly, (2)

drew a direct link between [discriminatory] stereotypes and the

adverse employment decision, and (3) were made by supervisors

who played a substantial role in the decision to terminate).

CONCLUSION

For the foregoing reasons, the Defendant’s motion to

dismiss the Amended Complaint is GRANTED, without leave to amend

a second time. The Court finds here that amendment would be futile

because the problem with Plaintiff’s liberally-construed claims is

“substantive” and “better pleading will not cure it.” See, e.g.,

Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). It is evident

from the record in front of the Court that Plaintiff cannot

plausibly allege facts from which the Court could infer that her

termination was motivated by discriminatory or retaliatory

intent. The Clerk of Court is directed to enter judgment in favor

of Defendant, to close the case, and to mail a copy of this

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Memorandum and Order and the judgment to Plaintiff, and note

service on the docket.

SO ORDERED.

DATED: March 7, 2023

Brooklyn, New York ee

“) U -

HON. KIYO A. MATSUMOTO

United States District Judge

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