You're viewing Docket Item 17 from the case Tournois v. Waterloo Premium Outlet / Simon Property Group, Incorporated. View the full docket and case details.

Download this document:




Case 6:12-cv-06501-MAT Document 17 Filed 07/30/13 Page 1 of 12

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

PETER TOURNOIS,

Plaintiff,

v.

DECISION AND ORDER
No. 12-CV-6501T

WATERLOO PREMIUM OUTLET/SIMON PROPERTY
GROUP, INCORPORATED,



Defendant.

INTRODUCTION

Peter Tournois (“Plaintiff”) brings this action pursuant to
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et
seq. (“Title VII”) and the New York State Human Rights Law, N.Y.
Exec. Law §§ 290, et seq. (“NYSHRL”), alleging retaliation for
engaging in a protected activity against his employer, Waterloo
Premium Outlet/Simon Property Group, Incorporated (“Defendant”).
Defendant moves to dismiss Plaintiff’s complaint pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure (“Rule 12(b)(6)”),
contending that Plaintiff has failed to state a plausible claim for
relief. Plaintiff opposes the motion and also seeks to amend his
complaint to include additional allegations of retaliation. For

1

1

As of the date that the parties’ papers were submitted, Plaintiff
had requested, but had not yet received, a notice of his right to
sue from the Equal Employment Opportunity Commission (“EEOC”)
based on the additional allegations that are included in the
proposed amended complaint. In the interest of judicial economy,
this Court will evaluate the proposed amended complaint, as
Plaintiff has filed a complaint with the EEOC and has requested a
notice of right to sue based on the additional allegations, which
are related to the allegations in the original complaint. See
Pietras v. Bd. of Fire Comm’rs of Farmingville Fire Dist., 180
F.3d 468, 474 (2d Cir. 1999)(“a plaintiff’s failure to obtain a

Case 6:12-cv-06501-MAT Document 17 Filed 07/30/13 Page 2 of 12

the reasons discussed herein, Defendant’s motion to dismiss is
granted in part and denied in part.

BACKGROUND

The following facts are taken from Plaintiff’s proposed
amended complaint, and they are assumed to be true for the purposes
of this motion and are construed in the light most favorable to
Plaintiff, the non-moving party. Dkt. No. 13-2, Ex. A. Plaintiff
began working for Defendant in September 2008 as a
maintenance/custodian worker and is currently an employee of
Defendant. Id. at ¶ 8. Plaintiff alleged that since he began
working for Defendant, a male co-worker subjected him to “improper
and inappropriate touching, name calling, and singling out for poor
treatment.” Id. at ¶ 11. Based on this conduct, he believed that
he had been subjected to an “unlawful hostile environment based on
sex.” Id. at ¶ 10.

Plaintiff alleges that he complained to his supervisor, Perry
Cleaveland, on numerous occasions, but no remedial action was
taken. Id. at ¶ 12. On June 27, 2011, he complained to Human
Resource Director Pam Biondio, who directed him to contact Patti
Matteson regarding his complaint. Id. at ¶¶ 13-14. Plaintiff
alleges that six weeks later, after no remedial action was taken by
Cleaveland, Biondio, or Matteson, Plaintiff made a second complaint

notice-of-right-to-sue-letter is not a jurisdictional bar, but
only a precondition to bringing a Title VII action that can be
waived by the parties or the court”).

-2-

Case 6:12-cv-06501-MAT Document 17 Filed 07/30/13 Page 3 of 12

to Matteson. Id. at ¶ 16. Plaintiff alleges that, in retaliation
for his complaints of discrimination, he received a disciplinary
memorandum. Id. at ¶ 17.

On May 15, 2012, Plaintiff filed a charge of unlawful
discrimination with the Equal Employment Opportunity Commission
(“EEOC”) alleging unlawful retaliation. Id. at ¶ 20. On September
19, 2012, he filed this lawsuit with the district court alleging
that he was retaliated against for engaging in a protected
activity. Id. at ¶ 22. Since filing his EEOC claim and commencing
this lawsuit, Plaintiff alleges that he has been subjected to
further adverse actions. He alleges that his co-workers are
permitted to change their work hours, but that he was “admonished”
when he did the same on one occasion. Id. at ¶ 25. Plaintiff also
alleges that he “is constantly being followed by management and his
vehicle is being examined, photographed by General Manager Karen
Dodson,” and that Dodson “constantly mock[s] [him] in front of
other co-workers and humiliat[es] him.” Id. at ¶¶ 26-27.

DISCUSSION

I.

Standard of Review
Under Rule 12(b)(6), a court may dismiss a complaint for
failure to state a claim upon which relief can be granted. Fed. R.
Civ. P. 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, a
complaint must plead “enough facts to state a claim to relief that
is plausible on its face.” See Ruotolo v. City of New York, 514

-3-

Case 6:12-cv-06501-MAT Document 17 Filed 07/30/13 Page 4 of 12

F.3d 184, 188 (2d Cir. 2008)(quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). In considering a Rule 12(b)(6) motion
to dismiss, the Court “‘must accept as true all allegations in the
complaint and draw all reasonable inferences in favor of the non-
moving party.’” See Vietnam Ass’n for Victims of Agent Orange v.
Dow Chem. Co., 517 F.3d 104, 115 (2d Cir. 2008)(quoting Gorman v.
Consol. Edison Corp., 488 F.3d 586, 591-92 (2d Cir. 2007)).
However, the court may disregard a plaintiff’s “legal conclusions,
deductions or opinions couched as factual allegations.” See, e.g.,
In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir.
2007)(citation omitted). The court is also not required to credit
conclusory statements unsupported by factual allegations. See,
e.g., Otor, S.A. v. Credit Lyonnais, S.A., 2006 U.S. Dist. LEXIS
64885, at *9 (S.D.N.Y. Sept. 11, 2006); see also Davey v. Jones,
2007 U.S. Dist. LEXIS 35965, at *5-6 (S.D.N.Y. May 11,
2007)(citation
unsupported
characterizations, and legal conclusions are not well-pleaded
allegations, and will not suffice to defeat a motion to dismiss.”).
Further, in reviewing a motion to dismiss under Rule 12(b)(6),
“the district court is normally required to look only to the
allegations on the face of the complaint.” See Lukowski v. County
of Seneca, 2009 U.S. Dist. LEXIS 14282, at *10 (W.D.N.Y. Feb. 24,
2009)(quoting Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007)).
The Court may consider a document not appended to the complaint if

omitted)(“[B]ald

contentions,

-4-

Case 6:12-cv-06501-MAT Document 17 Filed 07/30/13 Page 5 of 12

the document is “incorporated in [the complaint] by reference” or
is a document “upon which [the complaint] solely relies and... is
integral to the complaint.” See id. (quoting Cortec Indus., Inc.
v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991)). Thus, this
Court considered Plaintiff’s complaint and the alleged “Correctable
Offenses” memo, upon which Plaintiff’s complaint relies, that was
submitted with Defendant’s Motion to Dismiss and with Plaintiff’s
answering papers. Pl.’s Proposed Am. Compl. at ¶ 17; Dkt. No. 12-
1, Ex. B.

Plaintiff’s first cause of action alleges retaliation under
Title VII, and his second cause of action alleges retaliation under
the NYSHRL. Pl.’s Proposed Am. Compl. at 8-11. Claims brought
under the NYSHRL are analyzed under the same standard as those
brought under Title VII. See, e.g., Miller Brewing Co. v. State
Div. Of Human Rights, 66 N.Y.2d 937 (1985). Plaintiff's NYSHRL and
Title VII claims will therefore be addressed simultaneously. See
Lueck v. Progressive Ins., Inc., 2009 U.S. Dist. LEXIS 96492 at *7,
n. 2 (W.D.N.Y. Oct. 19, 2009). Plaintiff alleges that he was
subject to discriminatory retaliation because he complained of his
co-worker’s alleged misconduct and because he filed an EEOC claim
and commenced this lawsuit in the district court. Pl.’s Proposed
Am. Compl. at ¶¶ 17, 20-23.

To establish a prima facie retaliation claim, Plaintiff must
show that: (1) he participated in a protected activity;

-5-

Case 6:12-cv-06501-MAT Document 17 Filed 07/30/13 Page 6 of 12

(2) Defendant was aware of Plaintiff’s protected activity; (3) he
suffered a materially adverse employment action; and (4) there was
a causal connection between the protected activity and the adverse
action. Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d
556, 568 fn. 6 (2d Cir. 2011); Stewart v. The City of New York,
2012 U.S. Dist. LEXIS 96998, at *28 (S.D.N.Y. July 10, 2012)(citing
Burlington N. v. Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)).
“At the pleading stage, Plaintiff ‘need not establish [such] a
prima facie case of discrimination, but must nonetheless allege
evidence stating a plausible claim of retaliation.” Stewart, 2012
U.S. Dist. LEXIS at *28-29 (citations omitted).

This Court finds that Plaintiff has not stated a plausible
claim for retaliation under Title VII or the NYSHRL based on the
alleged “Correctable Offenses” memo, because this does not
constitute a materially adverse employment action. However, this
Court finds that Plaintiff’s other allegations, being accepted as
true and with all inferences being drawn in Plaintiff’s favor,
state plausible claims for retaliation.
II. Plaintiff’s Proposed Amended Complaint

A.

Plaintiff Did Not Suffer a Materially Adverse Employment
Action When He Received a Non-Disciplinary Counseling
Memo.

To establish an adverse employment action, Plaintiff must show
that the Defendant’s actions caused a materially adverse change in
the terms and conditions of his employment. Specifically, “a

-6-

Case 6:12-cv-06501-MAT Document 17 Filed 07/30/13 Page 7 of 12

plaintiff must show that a reasonable employee would have found the
challenged action materially adverse, which in this context means
it well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Kessler v. WestChester
County Dep’t Of Soc. Servs., 461 F.3d 199, 207 (2d Cir.
2006)(quoting Burlington, 548 U.S. at 68). “Whether a particular
[action] is materially adverse depends upon the circumstances of
the particular case, and should be judged from the perspective of
a reasonable person in the plaintiff’s position, considering all
the circumstances.” Id. at 209. Actions that are “trivial harms”
– i.e. “those petty slights or minor annoyances that often take
place at work and that all employees experience” – are not
materially adverse. Tepperwien, 663 F.3d at 568 (quoting
Burlington, 548 U.S. at 68)(citation omitted).



however,

was a

The

document,

Plaintiff alleges that a “Correctable Offenses” memo that he
received was a materially adverse action, because he was
“disciplined unnecessarily.” Pl.’s Proposed Am. Compl. at ¶ 17,
19.
“non-disciplinary
coaching/counseling” document. Dkt. 12-1, Ex. B. Although
Plaintiff consistently refers to this document as a “Correctable
Offenses” memo, that phrase does not appear anywhere on the
document. Plaintiff also relies upon language allegedly quoted
from the “Correctable Offenses” memo to support his argument that
it was materially adverse, but this language does not appear

-7-

Case 6:12-cv-06501-MAT Document 17 Filed 07/30/13 Page 8 of 12

anywhere in the document that he provided with his answering
papers. For example, Plaintiff alleges that the memo states that
if Plaintiff “[did] not meet the basic responsibilities or
standards of conduct expected of employees, appropriate corrective
action will be taken, up to and including termination.” Pl.’s
Proposed Am. Compl. at ¶ 17 (emphasis in original). The document
states, however, that: “If this situation is brought fourth [sic]
again an official progressive counseling form will be completed
which could ultimately lead to termination.” Dkt. No. 12-1, Ex. B.
The document discusses the ongoing problems between Plaintiff
and his co-worker (Pedro), and explains that both men met
previously with Supervisor Cleaveland and General Manager Dodson to
“address [Plaintiff]’s concerns and agree on a path forward.” The
document also states that both men were expected to comply with the
policies pertaining to appropriate personal interaction. Id. The
counseling memo focuses on the conflict between Plaintiff and Pedro
and was not directed at Plaintiff individually. Under these
circumstances, this Court finds that the memo was not materially
adverse. See Tepperwien, 663 F.3d at 570-71 (“[I]t [is] not likely
that counseling of this nature, which was given to other employees
as well, would deter a reasonable employee from complaining of
discrimination.”).

Even if the counseling memo was disciplinary in nature,
however, “[t]he fact that Plaintiff received notice of discipline

-8-

Case 6:12-cv-06501-MAT Document 17 Filed 07/30/13 Page 9 of 12

or other forms of scrutiny from Defendant does not show that
Defendant retaliated against Plaintiff. Employee investigations,
unwanted scrutiny from supervisors, and negative performance
evaluations without attendant negative results or deprivation of
position/opportunity, do not sufficiently constitute adverse
employment actions under Title VII.” Wright v. Monroe Cmty. Hosp.,
2011 U.S. Dist. LEXIS 82809, *22-23 (W.D.N.Y. July 28, 2011), aff’d
493 F. App’x 233 (2d Cir. 2012)(citing Lee v. N.Y.S. Dep’t of
Health, 2001 U.S. Dist. LEXIS 11287 at *45-46 (S.D.N.Y. Mar. 26,
2001)). The Court of Appeals has held that “in the context of the
issuance of a ‘counseling memo,’... ‘criticism of an employee
(which is part of training and necessary to allow employees to
develop, improve and avoid discipline) is not an adverse employment
action.’” Tepperwien, 663 F.3d at 570 (quoting Weeks v. N.Y. State
(Div. Of Parole), 273 F.3d 76, 86 (2d Cir. 2001)(citation
omitted)).

Further indication that the counseling memo was not materially
adverse, that is, that it would not dissuade a reasonable worker
from making a charge of discrimination, is the fact that Plaintiff
filed an EEOC charge. Pl.’s Proposed Am. Compl. at ¶¶ 4, 20.
“[W]hile the [] test is an objective one, it is relevant that
[Plaintiff] himself was not deterred from complaining.”
Tepperwien, 663 F.3d at 572; see also Somoza v. Univ. of Denver,
513 F.3d 1206, 1214 (10th Cir. 2008)(“[T]he fact that an employee

-9-

Case 6:12-cv-06501-MAT Document 17 Filed 07/30/13 Page 10 of 12

continues to be undeterred in his or her pursuit of a remedy... may
shed light as to whether the actions are sufficiently material and
adverse to be actionable.”).

For the reasons stated, this Court finds that the counseling
memo was not a materially adverse employment action, and thus
Plaintiff has not stated a plausible claim for retaliation based on
the memo. Accordingly, Defendant’s motion to dismiss is granted
with respect to this allegation.

B.

Plaintiff’s Remaining Allegations State A Plausible Claim
for Retaliation.

Plaintiff also alleges that he suffered retaliation because
“all of [his] co-workers are permitted to change their work times
to either come in early and leave early, or to come in late and
stay late. Plaintiff did this on one occasion and was admonished
that he would be terminated if he ever did this again.” Pl.’s
Proposed Am. Compl. at ¶ 25. He further alleges that he suffered
materially adverse actions because he “is constantly being followed
by management and his vehicle is being examined, photographed by
General Manager Karen Dodson,” and because Dodson “constantly
mock[s] [him] in front of other co-workers and humiliat[es] him in
an effort to get [him] to quit.” Id. at ¶¶ 26-27.

The reasonable employee standard is objective, but “[c]ontext
matters.” Hicks v. Baines, 593 F.3d 159, 165 (quoting Burlington
Northern, 548 U.S. at 68-69). The impact of workplace behavior
“‘depends on a constellation of surrounding circumstances,

-10-

Case 6:12-cv-06501-MAT Document 17 Filed 07/30/13 Page 11 of 12

expectations, and relationships,’” thus “an act that would be
immaterial in some situations is material in others.” Id. (citing
Burlington Northern, 548 U.S. at 69). “‘A schedule change in an
employee’s work schedule may make little difference to many
workers, but may matter enormously to [other workers].” Id.
Furthermore, “context can diminish as well as enlarge material
effect.” Hicks, 593 F.3d at 165.

To determine if conduct amounts to an adverse employment
action, “the alleged acts of retaliation need to be considered both
separately and in the aggregate, as even minor acts of retaliation
can be sufficiently “‘substantial in gross’” as to be actionable.”
Id. (citing Zelnik v. Fashion Inst. of Tech., 464 F.3d 217, 227
(2d Cir. 2006) (“[T]his ridicule was considered a part of a larger
campaign of harassment which though trivial in detail may have been
substantial in gross, and therefore was actionable.” (internal
quotation marks omitted)).

Plaintiff alleges that after he complained of discrimination
he was treated differently from other employees, verbally abused by
a supervisor, and subjected to unwanted scrutiny of his vehicle
that was seemingly unrelated to his job duties. Viewing these
allegations in the light most favorable to Plaintiff, this Court
finds that the challenged actions might have dissuaded a reasonable
worker from making or supporting a charge of discrimination. While
each action alone may be considered a “petty slight,” this Court

-11-

Case 6:12-cv-06501-MAT Document 17 Filed 07/30/13 Page 12 of 12

finds that taken together, Plaintiff has at least alleged a
plausible claim for relief. Scheuer v. Rhodes, 416 U.S. 232, 236
(1974) (“The issue is not whether a plaintiff will ultimately
prevail but whether the claimant is entitled to offer evidence to
support the claims. Indeed it may appear on the face of the
pleadings that a recovery is very remote and unlikely but that is
not the test.”). Accordingly, Defendant’s motion to dismiss is
denied regarding Plaintiff’s remaining allegations.

CONCLUSION

For the reasons stated, Defendant’s motion to dismiss is
granted with respect to Plaintiff’s claim that he suffered
materially adverse employment action when he received a counseling
memo. Defendant’s motion to dismiss is denied regarding
Plaintiff’s remaining allegations.

ALL OF THE ABOVE IS SO ORDERED.

S/Michael A. Telesca

HONORABLE MICHAEL A. TELESCA
United States District Judge

DATED:

July 30, 2013
Rochester, New York

-12-