Hernandez v. Premium Merch. Funding One, LLC

• Decision Date: 13 July 2020
• Docket Number: 19cv1727
• Parties: ERICA HERNANDEZ, Plaintiff, v. PREMIUM MERCHANT FUNDING ONE, LLC, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

ERICA HERNANDEZ, Plaintiff, v. PREMIUM MERCHANT FUNDING ONE, LLC, et al., Defendants.

19cv1727

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

July 13, 2020

OPINION & ORDER

WILLIAM H. PAULEY III, Senior United States District Judge:

Plaintiff Erica Hernandez brings this employment discrimination action against Premium Merchant Funding One, LLC ("PMF"), James P. Geiselman III, and Daniel P. Moore (collectively, "Defendants") under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), the Equal Pay Act of 1963, 29 U.S.C. §§ 206(d)(1), 215(a)(3) ("EPA"), as well as various state and local laws. Hernandez alleges that Defendants subjected her to gender-based discrimination and harassment. She also contends that Defendants paid her less than her male colleagues and that she was retaliated against for opposing Defendants' allegedly unlawful employment practices. Defendants move to dismiss the federal claims for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, Defendants' motion is granted in part and denied in part.

BACKGROUND

Hernandez worked at PMF as an "Independent Sales Representative" ("Sales Rep") from January to November of 2018. (Compl., ECF No. 4, ¶¶ 10, 39.) As a Sales Rep, Hernandez marketed and promoted PMF's services to prospective clients. (Compl. ¶ 11.) PMF hired Hernandez in January 2018, but she did not sign an employment contract until the end of March 2018. (Compl. ¶¶ 10, 12.) That contract characterized Hernandez as a commission-based employee entitled to "30% of actual commission payments received by PMF and 25% of any additional fees or professional service fees . . . actually paid to PMF." (Compl. ¶¶ 13-14; Decl. in Supp. of Defs.' Mot. to Dismiss Compl., ECF No. 29 ("Defs.' Mot."), Ex. A ("Employment Contract"), at 8.)

In early March 2018, Geiselman helped Hernandez close her first "deal" by answering a merchant's question on the phone. (Compl. ¶ 17.) Later that day, Geiselman called Hernandez into his office and propositioned her for sex using explicit and vulgar language. (Compl. ¶ 18.) Hernandez rebuffed his advances. (Compl. ¶ 18.) Three weeks later, Moore—Hernandez's direct supervisor—told her that she would be required to split the March "deal" commission with Geiselman. (Compl. ¶¶ 9, 19.) Hernandez objected and argued that a commission split was neither discussed with Moore nor described in her employment agreement. (Compl. ¶ 19.) Nevertheless, Moore split Hernandez's commission and designated Geiselman as an "underwriter" on her files, thereby reducing Hernandez's commissions on future deals. (Compl. ¶¶ 20-21.) According to Hernandez, no male coworker was required to split commissions or have an "underwriter." (Compl. ¶¶ 21, 29.)

Hernandez complained repeatedly to PMF executives about her split commissions and Moore's bullying conduct. (Compl. ¶¶ 23, 25, 30.) She asked PMF's CEO to transfer her from Moore's team. (Compl. ¶ 26.) He denied her request. (Compl. ¶ 27.) Hernandez also complained to PMF's COO. (Compl. ¶ 23.) Ultimately, PMF's COO decided that any future commission split would be agreed to among Hernandez, Moore, and Geiselman before atransaction was consummated. (Compl. ¶ 32.) While Hernandez never agreed to any future commission split, PMF continued to withhold earned commissions. (Compl. ¶ 33.)

Hernandez also claims that PMF maintained a toxic work environment. (Compl. ¶ 34.) In May 2018, a PMF manager remarked in front of the entire team on the sales floor that "[Hernandez] needs to be moved or required to wear different attire—she's distracting my team when she bends over!" (Compl. ¶ 22.) Moore told the manager to go back to his workstation but took no further action. (Compl. ¶ 22.) In October 2018, Moore approached Hernandez from behind, put his arm around her shoulders, and grabbed her breast. (Compl. ¶ 37.) In November 2018, Hernandez alleges PMF constructively terminated her and refused to pay her a final earned commission check. (Compl. ¶¶ 39-41.)

On February 26, 2019, Hernandez filed this action. Hernandez's claims can be summarized as follows: (1) discrimination and retaliation, under Title VII, the EPA, the New York State Human Rights Law, N.Y. Exec. Law § 290e et seq. ("NYSHRL"), and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq. ("NYCHRL"); (2) aiding and abetting under the NYSHRL and NYCHRL; (3) interference with protected rights and employer liability for discriminatory conduct under the NYCHRL; (4) unpaid commissions in violation of New York State Labor Law § 191-c, and related claims for unjust enrichment, quantum meruit, and breach of contract; and (5) assault and battery, as well as a violation of the New York City Gender-Motivated Violence Protection Act, N.Y.C. Admin. Code § 8-901 et seq., against Moore.

DISCUSSION

I. Legal Standard

On a motion to dismiss, a court accepts all facts alleged in the complaint as true and construes all reasonable inferences in a plaintiff's favor. ECA, Local 134 IBEW JointPension Tr. of Chi. v. JP Morgan Chase Co., 553 F.3d 187, 196 (2d Cir. 2009). Nevertheless, 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) (quotation marks omitted). To survive a motion to dismiss, the court must find the claim rests on factual allegations that "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Iqbal, 556 U.S. at 678 ("The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." (quotation marks omitted)). "Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679.

"On a motion to dismiss, the court may consider any written instrument attached to [the complaint] as an exhibit or any statements or documents incorporated in it by reference." Yak v. Bank Brussels Lambert, 252 F.3d 127, 130 (2d Cir. 2001) (quotation marks omitted). However, the court may not properly consider materials outside the complaint without converting the motion to one for summary judgment. Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). "[A] court may convert a motion to dismiss into a motion for summary judgment, and . . . consider . . . external exhibits and affidavits, when it is satisfied that the parties are not taken by surprise or deprived of a reasonable opportunity to contest facts averred outside the pleadings and the issues involved are discrete and dispositive." Access 4 All, Inc. v. Trump Int'l Hotel & Tower Condo., 458 F. Supp. 2d 160, 165 (S.D.N.Y. 2006) (quotation marks omitted). As relevant here, Defendants attach eleven exhibits to their motion papers. Nine ofthose exhibits rely on facts outside the four corners of the Complaint and are not incorporated by reference. Accordingly, this Court will not consider those exhibits.¹

However, this Court will consider two of the attached exhibits. First, Hernandez's Equal Employment Opportunity Commission ("EEOC" or the "Commission") documents are public records and integral to her pleading. See Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001) (finding plaintiff's allegations in the affidavit submitted to the EEOC as an "integral part of her pleadings"); Taylor v. City of New York, 207 F. Supp. 3d 293, 299 (S.D.N.Y. 2016); Muhammad v. N.Y.C. Transit Auth., 450 F. Supp. 2d 198, 204-05 (E.D.N.Y. 2006). Second, the employment contract is incorporated by reference in the Complaint. (See Compl. ¶¶ 12-14.) Rather than making a "general allusion" to the document at issue—which would be insufficient, Okla. Firefighters Pension & Ret. Sys. v. Lexmark Int'l, Inc., 367 F. Supp. 3d 16, 28 (S.D.N.Y. 2019)—the "Complaint . . . make[s] a clear, definite and substantial reference" to the employment contract, Helprin v. Harcourt, Inc., 277 F. Supp. 2d 327, 331 (S.D.N.Y. 2003).

II. Exhaustion of Title VII Administrative Remedies

It is axiomatic that a plaintiff must exhaust her administrative remedies before filing a Title VII claim. Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001). To exhaust, a plaintiff must file a written description of the unlawful employment practice with the EEOC or relevant state or local agency within 300 days of its occurrence.² 42U.S.C. § 2000e-5(e)(1); Williams v. N.Y.C. Hous. Auth., 458 F.3d 67, 69 (2d Cir. 2006) (per curiam). After a charge has been filed, the EEOC must provide notice to the employer "within ten days, and shall make an investigation thereof." 42 U.S.C. § 2000e-5(b). If the EEOC determines that there is "reasonable cause to believe that the charge is true," it must "endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion." 42 U.S.C. § 2000e-5(b). Alternatively, the EEOC may "bring a civil action" against the employer in court. 42 U.S.C. § 2000e-5(f)(1).

But if "there is n[o] reasonable cause to believe that the charge is true," the EEOC must dismiss the charge and notify the complainant of her right to sue in court. 42 U.S.C. §§ 2000e-5(b), f(1); 29 C.F.R. § 1601.28. Regardless of whether the EEOC acts on a charge, the EEOC must issue a right-to-sue notice 180 days after the filing of that charge. See 42 U.S.C. § 2000e-5(f)(1); 29 C.F.R. § 1601.28. A complainant then has 90 days to bring suit against the employer. 42 U.S.C. § 2000e-5(f)(1). The EEOC also promulgated a regulation allowing the agency to issue "early" right-to-sue letters before 180 days have elapsed, provided that: (1) the respondent is a non-governmental entity, and (2) a designated official from the EEOC "has determined that it is...