Delo v. Paul Taylor Dance Found.
| Docket Number | 22-cv-9416 (RA) |
| Decision Date | 01 August 2023 |
| Parties | BARBARA DELO, Plaintiff, v. PAUL TAYLOR DANCE FOUNDATION, INC. d/b/a PAUL TAYLOR DANCE COMPANY and JOHN TOMLINSON, in his individual and professional capacities, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Barbara Delo, a former costumer for the Paul Taylor Dance Company (the “Company”), brings this employment discrimination and retaliation action against the Company and its Executive Director, John Tomlinson (collectively “Defendants”). Delo alleges that the Company mistreated her during her employment due to her gender and status as a mother. Defendants now move to compel arbitration, which Delo seeks to block pursuant to the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (“EFAA”), Pub. L. No. 117-90, 136 Stat. 26, codified at 9 U.S.C. §§ 401-02. For the reasons that follow, Defendants' motion to compel arbitration is denied.
The following facts are drawn from the Amended Complaint, which for the purpose of determining whether the Amended Complaint states a plausible claim of sexual harassment, the Court assumes to be true.[1] Delo is a professional costumer who holds a Master of Fine Arts in Costume Design from the Tisch School of the Arts, with at least thirteen years of experience “spanning opera, regional, off-Broadway Broadway theatre, and modern dance.” Am. Compl. ¶ 15. In June 2021, while Delo was “visibly pregnant,” she interviewed for a position with the Company as a Wardrobe Supervisor. Id. ¶ 24. She was interviewed by Defendant Tomlinson and Production Manager Stacey-Jo Marine, along with two other candidates, both of whom were male. One of the male candidates was first offered the position but he declined. Marine allegedly viewed Delo as “far more qualified” than the remaining male candidate, and others she consulted at the Company agreed. Id. ¶ 25. When she recommended hiring Delo, however, Tomlinson purportedly asked, “What will she do with the baby?” Id. ¶ 26. He chose to hire the “less-qualified man” instead, who soon “failed in the job and missed multiple scheduled work sessions.” Id. ¶ 28. The Company then hired Delo as a full-time employee in September 2021. Id.
Delo's husband, Christopher Chambers, was also hired by the Company as a member of the production team in July 2021. At the Company's offices in Manhattan, Delo shared an office with Marine and Chambers. Id. ¶ 50. The Company did not give Delo a private space to pump breast milk, so she did so at her desk. Id. ¶ 51.
Because Delo was hired on “extremely short notice,” she arranged for Chambers to stay home with their newborn baby for her first few days of work while they searched for a nanny. Id. ¶¶ 30-31. On Delo's first day, however, Chambers was called in on an “urgent lighting problem,” and he was forced to bring the baby to the office. Id. ¶ 31. According to Delo, when Tomlinson saw her baby in the building, he “immediately found Marine to tell her, essentially, ‘I told you so,' about hiring Ms. Delo.” Id. ¶ 32. A week later, the Company was scheduled to perform at the Kennedy Center in Washington, D.C. Id. ¶ 44. Delo needed to bring the baby to D.C., but she hired a local nanny to care for her in the hotel room while she worked. Id. ¶ 45. Although, according to Delo, the baby's presence caused “no material disruption at all to [the Company] or [Delo's] duties,” Tomlinson “refus[ed] to speak with her when he saw her around the hotel after hours with her child,” id., and “told Marine that he believed Ms. Delo was ‘a liability,'” id. ¶ 46.
Several months after the Washington trip, in December 2021, Tomlinson called a meeting with Delo, Marine, and Chambers. At this meeting, he allegedly “launched into a tirade about Ms. Delo bringing her child with her to Washington D.C.,” and told them that the Company “practiced a ‘separation of church and state' between family and work life.” Id. ¶ 55. He said that it was “completely unacceptable for a child to appear in any [Company] workspace, ever,” because it was “too distracting and disruptive.” Id. He cited a previous situation where, over a period of “five or six years,” a male dancer named Ted Thomas “constantly brought kids backstage” without a babysitter and “let them run wild.” Id. ¶ 57. When Delo asked whether she had caused any problems, Tomlinson replied, “Not yet.” Id. ¶ 56. Delo also asked why Tomlinson never criticized her husband when he came to work with their newborn child, to which he claimed he “did not know” that Chambers had a child. Id. ¶ 60. Tomlinson allegedly knew, however, that Delo and Chambers were married. Id. ¶ 61.
Shortly after this meeting, on December 3, 2021, Delo wrote an email to a Human Resources representative, Sarah Schindler, to ask for clarification about “Tomlinson's declared ‘church and state' policy regarding children.” Id. ¶ 62. Schindler stated that there was “no problem” with Delo pumping breast milk at her desk. Id. ¶ 64. She also told Delo that “it was fine ‘if once in a[] while you need to bring your baby,'” and that Tomlinson's concern was with “unsupervised kids running around,” again citing the Company's experience with Thomas. Id. ¶ 65. Delo pointed out that she never brought her baby inside the theater, nor did she ever leave her baby alone unsupervised. Id. ¶ 66. Tomlinson emailed Delo later that day as well, stating that the Company would “be flexible and understanding if emergencies arose,” but then “immediately contradicted himself” by adding that “[t]he rule is very straightforward-not having children in the workspace.” Id. ¶¶ 67-68. In another email sent the same day, Tomlinson told Delo that the Company “ha[s] no rule/policy regarding the expression of breast milk,” and that “our company is fine with your actions and New York State's laws . . . that govern the matter.” Id. ¶ 72.
A few days later, when Delo was pumping breast milk at her desk, Tomlinson allegedly “barged into her office with two male repairmen . . . to fix the office's air handling system.” Id. ¶¶ 77-78. While the repairmen were working, Tomlinson walked up to Delo's desk and “moved to use her phone,” even though there were “at least two other open desks in the office with a connected and working phone that he could have used.” Id. ¶ 80. To do so, he “reached across [her] body . . . while she was still expressing milk,” picked up the phone, and “reached over her again with his other hand to dial a number.” Id. ¶ 81. He then “began speaking to someone on the other end, all while hovering closely over Ms. Delo.” Id.
Following the December 3 email exchanges, Delo allegedly “never again had a full conversation with Tomlinson.” Id. ¶ 76. Instead, he “gave her the silent treatment from December 2021 straight through to June 2022,” id., and he “remained visibly angry” at her whenever she brought her baby on performance trips, id. ¶ 86. Then, on April 8, 2022-the Friday before one of the Company's female dancers, Eran Bugge, was scheduled to return from maternity leave- the Company announced a new “Workplace Policy,” which stated, in part, that “employees would be limited to ‘brief and very occasional visits from friends or family,'” and “only in ‘clearly defined public areas of the workspace.'” Id. ¶ 93. The Policy also stated that “absolutely no family could ever be present in Company-provided travel vehicles,” which would “make it impossible, practically speaking,” for Delo or Bugge to bring their babies on Company trips. Id. ¶ 94. Delo alleges that, as a result of the stress she felt from the Company's actions, she failed to pump enough milk for her child, and was forced to obtain donor milk. Id. ¶ 104.
Through the end of the Company's annual season, Delo “routinely worked well over her 40 scheduled hours” per week, id. ¶ 121, and after the season's final event on July 22, 2022, the Artistic Director, Michael Novak, allegedly “thanked [Delo] in front of the entire staff for her good work,” id. ¶ 125. Four days later, Tomlinson fired Delo effective immediately. Id. ¶ 127. When Delo asked why she was being fired, Tomlinson stated that she was an at-will employee and could be fired without reason. When she pressed further, he stated that “the whole ‘organization' just felt she was ‘not the right fit.'” Id. ¶ 129. Delo sought out Novak to see if he had a “better” explanation for her termination, and he only said, “This is the decision we made.” Id. ¶¶ 129-30. Shortly after Delo was fired, she received the following text from one of the Company's dancers:
This is so f***ed up. I literally have no words to describe my anger. I wish the dancers/myself felt secure enough to voice our concerns and feelings about certain situations and terminations but the truth is we all feel very scared and that we could be next to be fired.
The Amended Complaint also makes allegations about other employees at the Company who experienced similar mistreatment. When Bugge became visibly pregnant in late 2021, Tomlinson purportedly told Marine that Bugge was an “embarrassment.” Id. ¶ 34. As her pregnancy progressed, Bugge requested minor modifications to her dance steps in order to protect her health and her unborn child, but the Company refused. Id. ¶¶ 35 38. The Company “routinely granted such modifications to male dancers,” however, including those who needed modifications due to their age. Id. ¶ 36. For example, “around this same time,” a male dancer named Michael Apuzzo began modifying his routines without asking for prior approval, because he was entering his forties and could no longer perform “some of the more athletic and vigorous moves to full effect.” Id. ¶ 37. Tomlinson allegedly did...
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