Krause v. Lancer

• Decision Date: 01 May 2013
• Citation: 40 Misc.3d 385,965 N.Y.S.2d 312,2013 N.Y. Slip Op. 23142
• Parties: Jessica KRAUSE, Plaintiff, v. LANCER & LOADER GROUP, LLC, and Jonathan Levine, Defendants.
• Court: New York Supreme Court

40 Misc.3d 385

965 N.Y.S.2d 312

2013 N.Y. Slip Op. 23142

Jessica KRAUSE, Plaintiff,

v.LANCER & LOADER GROUP, LLC, and Jonathan Levine, Defendants.

Supreme Court, New York County, New York.

May 1, 2013.

Anthony Carabba, Esq., Carabba Law Firm, P.C., New York, attorney for plaintiff Jessica Krause.

Robert J. Kenney, Esq., Hofheimer Gartlir & Gross, LLP, New York, attorney for defendants Lancer & Loader Group, LLC and Jonathan Levine.

CAROL R. EDMEAD, J.

In this pregnancy discrimination action by plaintiff Jessica Krause (“plaintiff”), defendants Lancer & Loader Group, LLC (“LLG”) and Jonathan Levine (“Levine”) (collectively, “defendants”) move pursuant to CPLR 3211(a)(7) for an order dismissing plaintiff's complaint.

Background Facts

LLG is a wholesaler of battery-operated LED lights located in New York, New York. Plaintiff was allegedly employed as LLG's national sales manager from approximately March 2007 through October 19, 2011, when she was terminated. She worked mostly from home in New Jersey, but traveled several times a month for trade shows and client meetings. Plaintiff alleges that immediately prior to her termination, the company's sales were rising, largely due to her sales efforts and the large accounts she procured.

On or about August 12, 2011, two months before her termination, plaintiff learned that she was pregnant, and began considering moving with her husband to North Carolina to start her family. On September 19, 2011, plaintiff emailed the company's president Levine and vice-president Brian Johnson (“Johnson”) to ask for their “blessing” before she made her final decision regarding the move and to assure them that the move would not impact her work performance. However, plaintiff did not tell them she was pregnant at this time.

Later that day, Johnson replied that he had no issue with plaintiff's move and wished her luck. Having not heard from Levine, on or about September 27, 2011, plaintiff called Johnson to express her concern and officially informed him of her pregnancy. Shortly thereafter, on or about October 19, Levine fired plaintiff, stating as the reasons “poor economy” and reduced sales.

On December 17, 2012, plaintiff commenced this action against defendants, alleging five causes of action: (1) gender/pregnancy discrimination under the New York State Human Rights Law (“NYSHRL”) (N.Y. Executive Law § 290 et seq.) and New York City Human Rights Law (“NYCHRL”) (N.Y.C Admin. Code § 8–101 et seq.); (2) disability discrimination under the NYSHRL and NYCHRL; (3) aiding and abetting pregnancy discrimination under the NYSHRL and NYCHRL; (4) intentional infliction of emotional distress; and (5) violation of New York State Labor Law for unpaid wages.

In support of their motion to dismiss the complaint, defendants argue first, that plaintiff's pregnancy discrimination claim should be dismissed because there is no causal connection between plaintiff's pregnancy and her loss of job. She has not adequately alleged that she satisfactorily performed her job duties, or that her discharge occurred under the circumstances giving rise to an inference of discrimination, i.e., that defendants knew she was pregnant and terminated her because of her pregnancy and that, after termination, her position was filled by a [non-pregnant employee]. Defendants submit an affidavit of Johnson wherein he states that plaintiff never advised him of her pregnancy and he did not know that plaintiff was pregnant until the day she was laid off. The complaint does not allege that plaintiff told Levine about her pregnancy before she was terminated (Johnson Affidavit, exhibit C). Defendants also submit Levine's affidavit in which he states that he only learned of plaintiff's pregnancy after he told her that LLG could no longer afford to employ her, at which time, plaintiff responded: “That's too bad because I was going to tell you good news: I'm pregnant” (Levine Affidavit, exhibit B at ¶ 16).

Further, the legitimate reasons of plaintiff's termination were her poor job performance and the economic recession. Thus, her position was eliminated as part of a work force reduction. Plaintiff's claim of her high work performance is untrue as her sales numbers were the lowest in 2009–2010 and in the first two quarters of 2011, and some of her accounts generated yearly losses.

Next, plaintiff's second cause of action for disability discrimination must likewise be dismissed because plaintiff has not alleged facts connecting her disability/pregnancy to her termination, as her allegations that Johnson knew of her pregnancy are speculative.

The third cause of action for aiding and abetting in pregnancy discrimination should be dismissed because it is predicated on the failed discrimination claim as plaintiff first has to establish the liability of her employer in order to assert this claim.

Further, plaintiff's claim for intentional infliction of emotional distress should also be dismissed for failure to alleged outrageous conduct.

Finally, plaintiff fails to state a claim against Levine as an individual defendant since there are no allegations as to how Levine was personally involved in the alleged discriminatory acts. There are no allegations that Johnson relayed his purported knowledge of plaintiff's pregnancy to Levine, such that plaintiff's pregnancy became the reason for her layoff.

Plaintiff opposes the motion, arguing that defendants motion is frivolous as it goes beyond the limited standards of the CPLR 3211(a)(7). Defendants' affidavits at most, raise disputed facts.

Plaintiff's gender/pregnancy discrimination claim is properly stated as plaintiff need not plead specific facts and giving “fair notice” of the nature of the claim is sufficient. And in any event, plaintiff pleaded facts establishing a prima facie case of discrimination, i.e., that she was in the protected class due to her pregnancy; she was “qualified” for the position, since Levine specifically solicited plaintiff for that position based on his knowledge of her sales skills at another company where they worked together; and she was fired.

Notably, the inferences of discrimination are raised by the facts that plaintiff was fired shortly after she informed her boss of her pregnancy; prior to the time of her termination in October 2011, plaintiff was the second highest revenue generator at the company, generating 30% of the company's domestic revenue; she received praise from her superiors and clients and never received a negative performance review; plaintiff was the only employee terminated in 2010 or 2011; and, in or about April 2011, defendants hired [an] administrative assistant to assist with the increased business, largely attributed to her two new clients, Meijer, Inc. and True Value Hardware.

Next, plaintiff has alleged [in her complaint and affidavit] that defendants knew of her pregnancy because she told Johnson about it, who, as a vice president of the company, reported directly to Levine, and therefore, was part of the “corporate hierarchy,” such that his knowledge should be imputed to the corporate defendant. Johnson was plaintiff's supervisor, who by his own account, was really “running the company” with Levine (Krause Affidavit at ¶¶ 8–9). Thus, it is reasonableto infer that Johnson shared the pregnancy information with Levine.

Plaintiff further argues her disability discrimination claim is adequately stated as pregnancy is considered disability within the meaning of NYSHRL and NYCHRL.

The claim for aiding and abetting pregnancy discrimination is adequately stated under NYSHRL § 296(6) and NYC Admin. Code § 8–107(6). Levine is individually liable for discrimination under both the state and city laws, because he knew plaintiff was pregnant when he fired her.

And, plaintiff is not required to show or plead “pretext” for discrimination to defend a discrimination claim challenged by a CPLR 3211 motion to dismiss.

Further, plaintiff withdraws her fourth cause of action for intentional infliction of emotional distress, but asserts that the fifth cause of action for violation of New York State labor law for unpaid wages (N.Y. Labor Law §§ 191; 197) should stand, particularly since defendants did not specifically address it in their motion.

In reply, defendants add that any knowledge of plaintiff's pregnancy, allegedly obtained by Johnson, cannot be imputed to defendants because Johnson was merely a salesman and not part of the corporate hierarchy.

Defendants also add that plaintiff's affidavit in opposition to the motion contains new facts, not previously alleged in the complaint, i.e., that plaintiff wears a woman's size zero so her pregnancy was noticeable at seven weeks; that she did not drink alcohol at a business event on September 24–25, 2011, which raised questions from various people, including clients, as to whether she was pregnant; that she wanted Johnson to learn about her pregnancy first hand rather than through industry gossip and Johnson's alleged knowledge about her pregnancy constitutes notice to defendants because he was “running the company” together with Levine as his “second in command” and regularly apprised Levine of all company matters (plaintiff Affidavit). However, these facts are discredited by Johnson's and Levine's affidavits. And, the liberal standard for asserting an employment discrimination claim adopted by the First Department in Vig v. New York Hairspray Co., L.P., 67 A.D.3d 140, 145, 885 N.Y.S.2d 74, 77 [1st Dept. 2009] should not be followed because in that decision, the First Department relied on the U.S. Supreme Court's cases that have been since impliedly overruled by the federal courts [mostly in other circuits].

Defendants also state that at this time, they do not seek the dismissal of the fifth cause of action for unpaid wages, but note that on or about March 18, 2013, LLG paid plaintiff $5,548.97 on account of her alleged unpaid wages.

Discussion

On a motion addressed to the sufficiency of a...