Eisenberg v. Nat'l Dance Inst.
| Decision Date | 17 April 2023 |
| Docket Number | Civil Action 22-04521 (SDW)(CLW) |
| Parties | JENNIFER EISENBERG and TAU BRAUN, Plaintiffs, v. NATIONAL DANCE INSTITUTE, et al., Defendants. |
| Court | U.S. District Court — District of New Jersey |
NOT FOR PUBLICATION
Before this Court are the following motions: Defendants National Dance Institute, Inc. (“NDI”) and Marc Solomon (“Solomon”), Kay Gayner (“Gayner”) Ellen Weinstein (“Weinstein”), Rachel Lee (“Lee”), and Juan Jose Escalante's (“Escalante”) (collectively, “Individual NDI Defendants”) (NDI and Individual NDI Defendants are hereinafter the “NDI Defendants”) Motion to Dismiss, (D.E. 6), Plaintiffs Jennifer Eisenberg (“Eisenberg”) and Tau Braun's (“Braun”) (collectively “Plaintiffs”) Complaint, (D.E. 1), pursuant to Federal Rules of Civil Procedure (“Rule”) 12(b)(2) and 12(b)(6); and Defendants John P. Keil, Esq. (“Keil”) and Collazo & Keil, LLP's (collectively, “Keil Defendants”) Motion to Dismiss, (D.E. 19), Plaintiffs Jennifer Eisenberg (“Eisenberg”) and Tau Braun's (“Braun”) (collectively “Plaintiffs”) Complaint, (D.E. 1), pursuant to Federal Rules of Civil Procedure (“Rule”) 12(b)(2) and 12(b)(6). Subject matter jurisdiction is proper pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1343, and 28 U.S.C. § 1367. Venue is proper pursuant to 28 U.S.C § 1391. This opinion is issued without oral argument pursuant to Rule 78. For the reasons stated herein, the NDI Defendants' Motion to Dismiss is GRANTED; and the Keil Defendants' Motion to Dismiss is GRANTED.
The controversy in this action stems from circumstances preceding and following Eisenberg's termination from employment with NDI. (See D.E. 1 ¶¶ 1-8.) To understand the controversy, it is important to review the relevant parties involved.[1] Plaintiffs are a married couple residing in Westfield, New Jersey. (Id. ¶¶ 4, 12.) NDI “is a non-profit arts education organization” that receives federal funds and is located in New York, New York. (Id. 1 ¶ 13.) Lee “is the Manager of Finance & Human Resources of NDI,” and resides in New York, New York. (Id. ¶ 14.) Weinstein, who resides in New York, New York, was previously an “Artistic Director at NDI” during a portion of the time period relevant to this claim, and has been promoted to Interim Executive Director. (Id. ¶ 15.) Gayner was an “Artistic Director at NDI” during a portion of the time period relevant to this claim, and resides in New York, New York. (Id. ¶ 16.) Escalante is the “Executive Director of NDI” and resides in New York, New York. (Id. ¶ 18.) Keil is an attorney who resides in New York, New York. (Id. ¶ 19.) Collazo & Keil, LLP is a New Yorkbased law firm organized as a Limited Liability Partnership. (Id. ¶ 20.)
Eisenberg began working for NDI in 2007, moved to New Mexico and worked for an NDI affiliate in New Mexico between 2007-08, and moved back to New York City in 2008, where she took a position as a part-time teaching assistant at NDI in New York City. (Id. ¶¶ 22-24.) At some point, Eisenberg transitioned to a full-time teaching position at NDI in New York City. (Id. ¶ 26.)
Eisenberg also had a company called BOLD Arts, which “provides dance and art programming for children mainly during” summer months. (Id. ¶ 27.)
During the pandemic in the 2020 and 2021 school years, Eisenberg taught NDI classes in a virtual setting and worked from her home in New Jersey. (Id. ¶¶ 28-32.) In 2020, NDI “began holding training courses related to race issues in full[-]staff settings, specifically promoting ‘critical race theory' (‘CRT').” (Id. ¶ 42.) During the training, which was taught by an “anti-racist coach” and licensed clinical social worker, Mary Pender Greene, and paid for in whole or in part by federal funds, “NDI segregated the employees into two defined groups: the ‘White Affinity Group' (“WAG”) and the ‘Black Indigenous People of Color' group (“BIPOC”).'” (Id. ¶¶ 43, 47-49.) According to the Complaint, Eisenberg was assigned to the WAG group, “which largely focused on how white people were inherently racist, and that so-called white individuals should bear guilt for their whiteness, based on the theory of racial privilege,” and the WAG and BIPOC groups were “pitted against each other, whether it be so-called non-white people against so-called white people, or so-called non-white people against other so-called non-white people who enjoyed more relative so-called racial privilege.” (Id. ¶¶ 44-45.) Eisenberg told Lee that she found NDI's segregation of employees based on race “unlawful, highly inappropriate, divisive, and counterproductive” and irrelevant to her position as a dance instructor. (Id. ¶ 46.) Lee emailed Eisenberg and related that “there would be no retaliation if [Eisenberg] elected to not participate.” (Id.)
On June 24, 2020, the NDI staff received a letter written by an individual named Calia Marshall in which she “sought universal staff support for her petition to the DEI Board Committee[,] which praised NDI for having a BIPOC caucus (the “BIPOC petition”).”[2] (Id. ¶ 52.)
The BIPOC petition sought yearly racial equity training for NDI staff, engagement of more “philanthropists of color,” and “opportunities for high-profile events in non-white spaces.” (Id. ¶ 53.) Those who signed the petition had to do so in a segregated manner, with “non-white individuals” signing first, a banner designating “Co-signed by our white colleagues,” and white employees' signatures thereafter. (Id. ¶ 54.) The petition was sent to the entire NDI staff, and the sender requested the entire staff sign the document by 8:00 P.M. that evening and show a united front to the Board. (Id. ¶ 55.) Eisenberg “felt the petition to be a thinly veiled vehicle for discrimination given its public nature, the racially segregated signatures, and the 8:00 P.M. deadline that same evening, which placed a subtle pressure on the employees to cooperate.” (Id. ¶ 56.)
Later that evening, Eisenberg “received a text message from an African-American colleague . . . who asked if [Eisenberg] had received the BIPOC petition.” (Id. ¶ 58.) Eisenberg called Weinstein, her supervisor, to “express her concern” about the communication, and thereafter that evening lodged a complaint by “address[ing] a detailed email to both Weinsten and [Lee],” in which she expressed that “she was ‘[u]ncomfortable being categorized by race in the workplace and will not sign as a “white colleague”,'” that “she was ‘concerned that this kind of culture will create an unsafe work environment for [her]self and others,'” and that “[f]ocusing on someone's race in the workplace . . . is a violation of federal law.” (Id. ¶¶ 62-63.) Lee sent Eisenberg a letter in which Lee put forth that the BIPOC and WAG groups had non-mandatory meetings, noted there would be annual DEI training and initiatives, and expressed that DEI discussions can be difficult. (Id. ¶ 65.) Lee sent another email to Eisenberg the next day communicating that “NDI created ‘affinity groups to discuss concerns for equity, inclusivity, and diversity . . .,'” that “attendance at the ‘affinity group meetings or activities is voluntary,'” and that “‘participation in or nonparticipation in any affinity group' would not be used to determine job promotions, job opportunities[,] or job performance.” (Id. ¶ 66.) Lee and Weinstein did not report Eisenberg's complaint to NDI's Executive Director, but Lee directed Eisenberg to the NDI Employee Handbook (the “Handbook”).[3] (Id. ¶¶ 68-69.)
Eisenberg went on maternity leave in August 2021 and received her salary until the end of September 2021. (Id. ¶ 72.) Effective October 1, 2021, NDI instituted a “back[-]to[-]work policy” that provided a hybrid in-office and remote model with a staggered work schedule, and also required all employees to be vaccinated against COVID-19, with limited health and religious exemptions. (Id. ¶¶ 73-74.) On September 30, 2021, Eisenberg's doctor wrote a note in which he recommended that Eisenberg “delay receiving the COVID vaccine until she finished breastfeeding. (Id. ¶ 75.) Eisenberg provided the note to Lee on October 1, 2021, and later had a telephone conversation with the Artistic Director[4] in which Eisenberg discussed ending her maternity leave on January 1, 2022. (Id.) During Eisenberg's leave, NDI reassigned one of the schools at which Eisenberg had taught to another teacher. (Id. ¶ 76.) NDI then approved Eisenberg's medical exemption. (Id. ¶ 77.)
On November 23, 2021, Eisenberg sent Lee, Weinstein, and Gayner an email in which she noted her medical exemption and asked about accommodation for remote employment upon her return from maternity leave. (Id. ¶ 78.) In December 2021, New York City Mayor DeBlasio issued an Emergency Executive Order (“EEO”) requiring that all teachers working directly with students in New York City must be vaccinated against COVID-19. (Id. ¶¶ 79-80.) At some point thereafter, Lee called Eisenberg and denied her request for “accommodation beyond unpaid leave ....” (Id. ¶¶ 81-82.) During the conversation, Braun, who has “experience and training in workplace rights and responsibilities,” interjected in a “contentious” manner and “advised Lee . . . that what she was doing was illegal, among other things.” (Id. ¶¶ 87-88, 93.) Eisenberg apologized to Lee for Braun's tone. (Id. ¶ 94.)
On December 10, 2021, Solomon, Weinstein, and Kay sent Eisenberg an email in which they offered an accommodation, permitting her to take three months unpaid leave without benefits until she was to become fully vaccinated, and also informed her that Braun's communication with Lee during the phone call was “unprofessional and completely unacceptable...
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