Olascoaga Cruz v. Amazon Fulfillment

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

AMANDA NICOLE OLASCOAGA CRUZ,

Plaintiff,

-against-

MEMORANDUM AND ORDER

AMAZON FULFILLMENT, 21-cv-3092 (LDH) (VMS)

Defendants.

Amanda Nicole Olascoaga Cruz (“Plaintiff”), proceeding pro se, brings the instant action

against Amazon.com Services LLC (“Amazon”), asserting claims of wrongful termination,

failure to promote, hostile work environment, and retaliation under Title VII of the Civil Rights

Act of 1964. Defendant moves pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss

the Amended Complaint in its entirety.

BACKGROUND1

Plaintiff began employment with Amazon in Orlando, Florida on September 20, 2019.

(Am. Compl. at 5, ECF No. 28.) At some point she was transferred to an Amazon Fulfillment

Center in Staten Island, New York. (Id.) While Plaintiff worked at the Staten Island Fulfillment

Center, another employee swore at a coworker and “invaded her space.” (Id. at 11.) When

Plaintiff complained on December 1, 2020, no corrective action was taken. (Id.) In another

incident, a group of Amazon employees approached her and said, “fucking latin bitch.” (Id.)

1 The following facts are taken from the amended complaint and are assumed to be true for the purpose of this

memorandum and order, unless otherwise indicated.

1

One employee pulled Plaintiff’s hair. (Id.) Plaintiff reported the incident to the human resources

department. (Id.)

Sometime in January 2021, Plaintiff applied for positions within Amazon to work as a

process assistant and an ambassador. (Id.) She was turned down from both positions, “despite

being a top working employee at Amazon.” (Id.) On February 16, 2021, the area manager, Ryan

Tenney, threatened Plaintiff that he would terminate her for insubordination, even though she

always did her work and performed well. (Id.) On February 28, 2021, Plaintiff filed a statement

with human resources informing the office about the February 16 incident. (Id.)

On February 27, 2021, Plaintiff was transferred to the shipdock department. (Id. at 12.)

Plaintiff was supposed to begin training on March 7, 2024, but the associate assigned to train her,

along with another coworker, refused to perform the training. (Id. at 12.) On that same day,

human resources generalist, Samiul Karim, attempted to “bully” Plaintiff and a coworker into

signing a document without reading it and that he threatened to give them “Time Off Task” for

failing to the sign the document. (Id.) Less than an hour later, Karim and Therese Roque, an

operations manager, intimidated Plaintiff and her coworker during an unspecified training, and

Roque forced Plaintiff to leave the building. (Id.)

On her second day of training, Plaintiff was asked to lift between 100 and 150 pounds

without proper safety equipment. (Id.) On March 15, 2021, Plaintiff was asked again to lift

palettes that weighed between 100 and 150 pounds. (Id.) When Plaintiff expressed concern that

she could not do that work without assistance, she was fired. (Id. at 12–13.)

On April 30, 2021, Plaintiff filed a complaint with the Equal Employment Opportunity

Commission (“EEOC”), alleging that she did not receive these promotions because of her

Hispanic identity. (Id. at 8.) She commenced this action on June 10, 2021.

2

STANDARD OF REVIEW

To withstand a Rule 12(b)(6) motion to dismiss, 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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). A claim is facially plausible when the alleged facts allow the court to draw a

“reasonable inference” of defendants’ liability for the alleged misconduct. Id. While this

standard requires more than a “sheer possibility” of defendants’ liability, “[i]t is not the [c]ourt’s

function to weigh the evidence that might be presented at trial” on a motion to dismiss. Id.;

Morris v. Northrop Grumman Corp., 37 F. Supp. 2d 556, 565 (E.D.N.Y. 1999). Instead, “the

[c]ourt must merely determine whether the complaint itself is legally sufficient, and, in doing so,

it is well settled that the court must accept the factual allegations of the complaint as true.”

Morris, 37 F. Supp. 2d 556, 565 (E.D.N.Y. 1999) (citations omitted).

DISCUSSION

Construing Plaintiff’s Amended Complaint liberally and in light of her pro se status, she

advances four claims pursuant to Title VII. First, she claims that Defendant failed to promote

her because she is ethnically Hispanic. Second, she claims that she was the target of a hostile

work environment due to her Hispanic ethnicity. Third, she claims that she was wrongfully

terminated because of her Hispanic ethnicity. Fourth, she claims that Defendant retaliated

against her for complaining about being treated differently than other employees as a Hispanic

woman. (See Am. Compl. at 4, 11–12.) The Court addresses each in turn.

3

I. Failure to Promote

Plaintiff claims that Defendant failed to promote her because she is a Hispanic woman.

Defendant counters that Plaintiff’s failure to promote claim should be dismissed because the

Amended Complaint is devoid of details linking her race or national origin to its decision not to

hire her for the positions she sought. (Def.’s Mem. of L. in Supp. of Mot. to Dismiss (“Def.’s

Mem.”) at 8, ECF No. 32.) The Court agrees with Defendant.

The standard for a plaintiff alleging discriminatory failure to promote is well-established.

A plaintiff must allege that: “(1) she is a member of a protected class; (2) she ‘applied and was

qualified for a job for which the employer was seeking applicants’; (3) she was rejected for the

position; and (4) the position remained open and the employer continued to seek applicants

having the plaintiff’s qualifications.” Brown v. Coach Stores, Inc., 163 F.3d 706, 709 (2d Cir.

1998) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). To survive a

motion to dismiss a failure to promote claim, a plaintiff must “allege that she [] applied for an

available position for which she was qualified, but was rejected under circumstances which give

rise to an inference of unlawful discrimination.” Brown, 163 F.3d at 710 (quoting Texas Dep’t of

Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).

Plaintiff alleges in her Amended Complaint that she “applied for the process assistant []

position and ambassador position” and that she “never got a call back.” (Am. Compl. at 5.E, 11.)

Those two statements are the only allegations in the Amended Complaint about her unsuccessful

applications. Although Plaintiff also alleges that she was “a top working employee at Amazon,”

(id. at 11), she does not include any facts regarding her qualifications for the positions to which

she applied. Cf McKenzie v. Grand Central Partnership, 14-CV-6549 (KAM) (LB), 2016 WL

1180191, at *5 (E.D.N.Y. Mar. 25, 2016) (finding plausible failure to promote claim in

4

complaint that alleged that the plaintiff was qualified for the position). Nor does she allege who,

or if anyone, was hired instead of her. See Adams v. Foot Locker Retail, Inc., No. 08 CIV.5627

DC, 2008 WL 4571550, at *1 (S.D.N.Y. Oct. 8, 2008) (dismissing failure to hire claim because

the “[p]laintiff fail[ed] to detail . . . his qualifications for these positions[] and, who was hired

instead of him”). Nor does she allege who made hiring decisions or whether that person knew

her ethnicity. Cf. Woodman v. WWPR-TV, Inc., 411 F.3d 69, 87–88 (2d Cir. 2005) (finding that

the plaintiff’s proffer of evidence that some of the defendant’s employees knew of her protected

status did not permit an inference that those employees who actually participated in her

termination had such knowledge). These allegations simply will not do. Lashley v. New York

Univ., No. 22-CV-1054 (LDH) (RML), 2023 WL 6385724, at *4 (E.D.N.Y. Sept. 29, 2023)

(“[I]t is insufficient for a plaintiff to merely assert that on several occasions she requested a

promotion.”). Plaintiff’s failure to promote claim is dismissed.

II. Hostile Work Environment

Plaintiff alleges that she experienced a hostile work environment because of her Hispanic

ethnicity while working as an Amazon employee. Defendant argues that the allegations in the

Amended Complaint cannot support such a claim. (Def.’s Mem. at 9.) Defendant is correct.

In order to prevail on a hostile work environment claim, a plaintiff must make two

showings: (1) that the harassment was sufficiently severe or pervasive to alter the conditions of

the victim's employment and create an abusive working environment, and (2) that there is a

specific basis for imputing the conduct creating the hostile work environment to the employer.

Summa v. Hofstra Univ., 708 F.3d 115, 123–24 (2d Cir. 2013). The factors courts consider in

determining whether an environment is sufficiently hostile include “the frequency of the

discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere

5

offensive utterance; and whether it unreasonably interferes with an employee's work

performance.” Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003).

Although Plaintiff alleges several instances of hostility toward her, none of these

allegations appear connected to her ethnicity as a Hispanic woman. For example, she alleges

that on July 15, 2020, an unknown African American male employee told her mother, “fuck

you.” (Am. Compl. at 11.) Nothing about that allegation, however, suggests the comment was

motivated by discriminatory animus. Plaintiff also alleges that various supervisors attempted to

“intimidate” and “bully” her. (Id. at 11–12.) Those allegations similarly fail to connect the

hostility that Plaintiff purportedly endured with her Hispanic ethnicity. Rather, these allegations

describe facially neutral incidents that, without more, fail to raise an inference of discrimination.

See Lawson v. City of N.Y., 10 CV 5238 (RJD) (CLP), 2013 WL 6157175, at *26 (E.D.N.Y.

Nov. 21, 2013) (“Facially neutral incidents may be sufficient to establish a hostile work

environment claim, but it requires some basis for inferring that the incidents race-neutral on their

face were in fact discriminatory.”); Rivera v. Rochester Genesee Reg. Transp. Auth., 743 F.3d

11, 20 (2d Cir. 2014) (observing that “it is axiomatic that mistreatment at work” is actionable

“only when it occurs because of an employee’s protected characteristics.”) (internal quotation

marks omitted).

The Amended Complaint contains only one allegation of discrimination based on racial

animus. According to Plaintiff, a group of Amazon employees called her a “fucking latin bitch”

and pulled her hair. (Am. Compl. at 11.) That lone incident cannot support a hostile work

environment claim on its own. See Howley v. Town of Stratford, 217 F.3d 141, 153 (2d Cir.

2000) (“Usually, a single isolated instance of harassment will not suffice to establish a hostile

work environment unless it was ‘extraordinarily severe.”). While the Second Circuit has held

6

that a single physical assault may be sufficiently severe, those cases presented extreme physical

contact that “can and d[id] transform the plaintiff’s workplace.” Alfano v. Costello, 294 F.3d

365, 374 (2d Cir. 2002); see, e.g., Patterson v. County of Oneida, N.Y., 375 F.3d 206, 224 (2d

Cir. 2004) (reversing the district court’s dismissal of the plaintiff’s § 1981 claims against one of

the defendants involved in an incident where the plaintiff “was punched in the ribs and

temporarily blinded by having mace sprayed in his eyes”); Richardson v. N.Y. State Dep't of

Corr. Serv., 180 F.3d 426, 437 (2d Cir. 1999) (observing that a single sexual assault may be

sufficient to alter the terms and conditions of the victim’s employment); Jean-Louis v. Am.

Airlines, No. 08–CV–3898 (FB), 2010 WL 3023943, at *5 (E.D.N.Y. Jul. 30, 2010) (finding

plausible hostile work environment claim where the plaintiff was punched in the face after a

racial remark and required medical treatment). Plaintiff’s alleged run-in with unidentified

Amazon employees, while offensive and menacing, “is not the sort of extraordinarily severe or

egregious incident that may by itself transform workplace conditions into a hostile work

environment.” Fleming v. MaxMara USA, Inc., 644 F. Supp. 2d 247, 263 (E.D.N.Y. 2009)

(holding that an alleged comment to the plaintiff that “one day we are going to come in and

there’s going to be a rope hanging from the ceiling and guess who is going to be hanging from

it” did not support a hostile work environment on its own); De La Pena v. Metro. Life Ins. Co.,

953 F.Supp.2d 393, 417 (E.D.N.Y. 2013) (“In this case, the Plaintiff merely complains of being

physically contacted on the shoulder and pushed forward into a desk. There are no further

allegations that he incurred any injury or sought further medical attention.”). Put differently,

Plaintiff’s allegations are insufficient to “nudge” plaintiff's hostile work environment claim

“across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.

7

In any event, Plaintiff alleges that she reported the episode between her and the other

amazon employees to the human resources department and she does not allege any reprisals from

those employees. (Am. Compl. at 11.) Where a plaintiff alleges harassment attributable to a co-

worker, the employer will be liable only where “the employer either provided no reasonable

avenue for complaint or knew of the harassment but did nothing about it.” Rojas v. Roman

Catholic Diocese of Rochester, 660 F.3d 98, 107 (2d Cir. 2011) (internal quotation marks and

citation omitted). On the facts alleged in the Amended Complaint, the Court cannot infer that

Defendant “provided no reasonable avenue for complaint” or “did nothing” about her

complaints. See Alexander v. Westbury Union Free School Dist., 829 F.Supp.2d 89, 106

(E.D.N.Y. Nov. 4, 2011) (finding no dispute that the defendant employer exercised reasonable

care in responding to the plaintiff’s complaint of harassment by a coworker).

Because Plaintiff has failed to allege sufficient facts from which the Court may draw a

reasonable inference that she encountered severe or pervasive hostility due to her identity as a

Hispanic woman, her hostile work environment claim is dismissed.

III. Wrongful Termination

Plaintiff claims that her termination was a form of retaliation by Defendant for

complaining about her discriminatory treatment. (Am. Compl. at 8.) Defendant argues that the

allegations in the Amended Complaint cannot support an inference that it terminated Plaintiff

based on animus toward her Hispanic ethnicity. (Def.’s Mem. at 13.) The Court finds

Defendant’s argument persuasive.

Under Title VII, “[i]t shall be an unlawful employment practice for an employer . . . to

discharge any individual, . . . because of such individual’s race, color, religion, sex, or national

origin.” 42 U.S.C. § 2000e–2. To establish a prima facie claim of wrongful termination, a

8

plaintiff must demonstrate that: (1) she is a member of a protected class; (2) she was qualified for

the position; (3) she suffered an adverse employment action; and (4) the adverse employment

action occurred under circumstances giving rise to an inference of discrimination. Abdu–Brisson

v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001). “In order to survive a motion to

dismiss, the plaintiff must specifically allege the events claimed to constitute intentional

discrimination as well as circumstances giving rise to a plausible inference of [] discriminatory

intent [based on race, gender or national origin].” Yusuf v. Vassar Coll., 35 F.3d 709, 713 (2d

Cir. 1994) (internal citations omitted).

Here, even a liberal construction of Plaintiff’s allegations cannot support a reasonable

inference that her termination arose from animus toward her Hispanic ethnicity. Plaintiff alleges

that she was fired after expressing concern she could not lift 100 to 150 pounds without

assistance. (Am. Compl. at 12–13.) However, nothing in the Amended Complaint plausibly

suggests that she was fired because of her Hispanic ethnicity. See, e.g., De Jesus–Keolamphu v.

Village of Pelham Manor, 999 F. Supp. 556, 565 (S.D.N.Y. 1998) (rejecting granting summary

judgment against the plaintiffs because they adduced no facts that any actions taken were

motivated by racial animus). Plaintiff does not allege, for example, that her supervisors ever

made any remarks with respect to her identity on that occasion or on any prior occasion. Instead,

the Amended Complaint itself leads to a plausible inference that Plaintiff was fired because she

could not perform a specific task assigned to her, a justification untethered to the sort of

discriminatory animus Title VII seeks to root out. At bottom, Plaintiff’s allegations do “little

more than cite to [her] mistreatment and ask the court to conclude that it must have been related

to [her] race [or national origin].” Hitchins v. NYC Dep’t of Educ., No. 11–CV–4180 (RRM)

9

(RML), 2013 WL 1290981, at *4 (E.D.N.Y. Mar. 28, 2013). Plaintiff’s wrongful termination

claim is dismissed.

IV. Retaliation

Plaintiff claims that her termination was a form of retaliation by Defendant for

complaining about her discriminatory treatment. (Am. Compl. at 12–13.) Defendant maintains

that this claim is defective because Plaintiff cannot connect her termination with her complaints

of discrimination. (Def.’s Mem. at 13.) The Court agrees.

“To state a claim for retaliation in violation of Title VII, a plaintiff must plead facts that

would tend to show that: (1) she participated in a protected activity known to the defendant; (2)

the defendant took an employment action disadvantaging her; and (3) there existed a causal

connection between the protected activity and the adverse action.” Patane v. Clark, 508 F.3d

106, 115 (2d Cir. 2007).

Plaintiff’s retaliation claim does not allege a plausible causal connection between her

complaint of discrimination and her termination. Plaintiff filed her EEOC complaint more than a

month after she was terminated. Matthew v. JPMorgan Chase Bank, N.A., No. 17-CV-3594

(RRM) (ARL), 2020 WL 2523064, at *6 (E.D.N.Y. May 18, 2020) (finding no causal connection

where the plaintiff did not file a charge of discrimination until three months after she was

terminated). And, Plaintiff’s only allegation that she complained about racial discrimination

came on December 1, 2020, when she made a complaint to human resources after she was

attacked and called a “latin bitch.” (Am. Compl. at 11.) While “[o]ral complaints can constitute

protected activity,” Matthew, 2020 WL 2523064, at *5, Plaintiff was terminated on March 15,

2021, more than three months later. Without more, the Court will not infer a relationship

between those two events.

10

Moreover, given that Plaintiff alleges that she was terminated after raising concerns that

she was not able to perform a task assigned to her, her retaliation claim fails for the same reason

her wrongful termination claim cannot succeed. That is, the Amended Complaint itself alleges

that the reason for her termination was that she could not perform a task assigned to her.

Therefore, Plaintiff has not established a causal connection between her alleged complaints and

her termination. Her retaliation claim is dismissed.

CONCLUSION

For the foregoing reasons, Defendant’s motion to dismiss Plaintiff’s Amended Complaint

is GRANTED with prejudice.2

SO ORDERED.

Dated: Brooklyn, New York /s/ LDH

March 29, 2024 LASHANN DEARCY HALL

United States District Judge

2 Pursuant to Federal Rule of Civil Procedure 15, the “court should freely give leave [to amend] when justice so

requires.” Fed. R. Civ. P. 15(a)(2). However, where any amendment to the complaint would clearly be futile,

dismissal without leave to re-plead is appropriate. See, e.g., Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)

(“The problem with [plaintiff's] causes of action is substantive; better pleading will not cure it . . . . Such a futile

request to replead should be denied.”). Given that Plaintiff has already amended her complaint once and the

substantive deficiencies in the amended complaint, even with a liberal reading, repleading would be futile.

11