THAI v. CAYRE GROUP
| Citation | 726 F.Supp.2d 323 |
| Decision Date | 08 July 2010 |
| Docket Number | No. 10 Civ. 269(SAS).,10 Civ. 269(SAS). |
| Parties | Sophie THAI, Plaintiff, v. CAYRE GROUP, LTD., CGMGT LLC, ACA World Trade LLC, Robert D. Cayre, Jonathan Boon, and James Oliveri, Defendants. |
| Court | U.S. District Court — Southern District of New York |
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Robert James Basil, Esq., Collier & Basil, P.C., New York, NY, for Plaintiff.
Matthew A. Steinberg, Esq., Ravindra Kumar Shaw, Esq., Jackson Lewis LLP, New York, NY, for Defendants.
I. INTRODUCTION
Sophie Thai filed this action against Cayre Group, Ltd. (the “Cayre Group”), CGMGT LLC, ACA World Trade LLC, Robert D. Cayre, Jonathan Boon, and James Oliveri (collectively “Defendants”), alleging that they discriminated against her on the basis of her age and gender in violation of the New York City Human Rights Law (“NYCHRL”). 1 Thai also asserts claims based upon the Fair Labor Standards Act (“FLSA”) and New York Labor Law (“NYLL”) with regard to overtime pay for hours worked in excess of forty hours per week, as well as claims for defamation, defamation per se, retaliation, and intentional infliction of emotional distress (“IIED”) under state and local law. 2 Defendants move for partial dismissal of Plaintiff's First Amended Complaint (the “FAC”) pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
II. BACKGROUND
Thai is a 49-year old Asian woman. 3 From January 2003 to December 2009, she worked as a bookkeeper and letter of credit processor at ACA World Trade LLC (the “Company”), a unit of the Cayre Group and CGMGT LLC. 4 Thai alleges that Defendants discriminated against her based upon her age and gender, retaliated against her when she complained of this discrimination, and defamed her during the course of her employment and upon firing her. 5
For the majority of her tenure, Thai worked at the Company without incident. The problems began in September 2009, when she requested a “swipe card” to access a side entrance door more convenient to her work area, which she had noticed other employees using. 6 When she did not receive a response to her request, she complained to Robert Cayre, President of the Company, that she was being discriminated against and treated differently from other employees. 7 With Cayre in the room, Thai's supervisor, Jonathan Boon, told her that she would not be given an access card for “security reasons” and that use of the side door was reserved for “Cayre family members only.” 8 Thai alleges that this excuse was simply untrue: many non-family members were given access to the side entrance. 9 When she confronted Boon with this disparity, he allegedly confiscated the female employees' swipe cards, but allowed the male employees to retain their cards. 10 Thai reported the incident to Cayre, but received no relief. 11
In late November and early December of 2009, Thai went on vacation. While she was out of the office, Boon's assistant, James Oliveri, a young Caucasian male, was given permission to modify her bookkeeping records. 12 When Thai returned, she discovered that Oliveri had “mess[ed] up” her books. 13 She asked Oliveri to correct the mistakes, but he refused. 14 Thai protested to Boon that she was being subjected to “sexual harassment,” and that Oliveri would never have interfered with the work of a male employee. 15 Thai made similar complaints to Cayre in a December 8, 2009 e-mail, threatening to file suit if the “sexual harassment”-and Oliveri's interference-did not stop. 16 Immediately thereafter, she was fired. 17
Thai asked her supervisors for an explanation of her termination. Boon explained that he was “upset” about her complaints of discrimination. 18 Cayre added that Thai was not a “team player” and had been uncooperative with Oliveri. 19 Although Thai's termination was intended to be effective immediately, she agreed to teach Oliveri the bookkeeping system so he could replace her. 20 While she was waiting to instruct Oliveri, Thai was forced to leave her desk and sit in a conference room. 21 Thai was then informed, in front of all her former coworkers, that she would not be allowed to take her belongings with her when she left. 22 The Company confiscated her personal effects, allegedly to search for stolen items. 23 Thai claims she was so humiliated and distressed that she had to seek emergency medical treatment. 24
III. LEGAL STANDARD AND APPLICABLE LAW A. Motion to Dismiss
The Supreme Court's landmark decisions in Bell Atlantic Corporation v. Twombly 25 and Ashcroft v. Iqbal 26 shifted pleading standards from “simple notice pleading” to a “more heightened form of pleading.” 27 To survive a motion to dismiss under Twombly and Iqbal, a plaintiff's allegations must meet a standard of “plausibility.” 28 A claim satisfies the plausibility standard “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 29 While plausibility “is not akin to a probability requirement,” plausibility requires “more than a sheer possibility that a defendant has acted unlawfully.” 30 Pleading facts that are “merely consistent with a defendant's liability” 31 is insufficient to “nudge[ ] [a plaintiff's] claims across the line from the conceivable to plausible.” 32 In deciding a motion to dismiss, the court must “accept as true all of the factual allegations contained in the complaint” 33 and “draw all reasonable inferences in the plaintiff's favor.” 34 However, the court need not accord “[l]egal conclusions, deductions or opinions couched as factual allegations ... a presumption of truthfulness.” 35
B. Employment Discrimination
In Swierkiewicz v. Sorema N.A., 36 which preceded Twombly and Iqbal, the Supreme Court rejected a heightened factual pleading requirement for employment discrimination cases. Specifically, the Court held that a plaintiff need not allege specific facts establishing a prima facie case of discrimination to survive a motion to dismiss. 37 Rather, “the ordinary [pre- Twombly ] rules for assessing the sufficiency of a complaint apply.” 38
[1] The Twombly Court held that Swierkiewicz remains good law. 39 However, some courts and commentators have concluded that Twombly and Iqbal repudiated Swierkiewicz, at least to the extent that Swierkiewicz relied upon pre- Twombly pleading standards. 40 Reconciling Swierkiewicz, Twombly, and Iqbal, a complaint need not establish a prima facie case of employment discrimination to survive a motion to dismiss; however, “the claim must be facially plausible, and must give fair notice to the defendants of the basis for the claim.” 41 Although Swierkiewicz refers to claims under Title VII, the same pleading standard applies to NYCHRL discrimination claims. 42
C. Defamation
[2] [3] “Defamation in word or print is cognizable in an action for libel.” 43 “To state a claim for defamation under New York Law, the plaintiff must allege (1) a false statement about the plaintiff; (2) published to a third party without authorization or privilege; (3) through fault amounting to at least negligence on [the] part of the publisher; (4) that either constitutes defamation per se or caused ‘special damages.’ ” 44 A defamation claim “is only sufficient if it adequately identifies ‘the purported communication, and an indication of who made the communication, when it was made, and to whom it was communicated.’ ” 45
1. The “Of and Concerning” Requirement
[4] [5] To state a claim for defamation, the allegedly defamatory statement must be “of and concerning the plaintiff.” 46 The “of and concerning” requirement significantly limits the class of plaintiffs who may sue for communications they believe to be false, defamatory, and injurious. 47 “ ‘[P]laintiffs in defamation proceedings bear the burden of demonstrating that the libel designates the plaintiff in such a way as to let those who knew her understand that she was the person meant.’ ” 48 “ ‘[T]he Court properly may dismiss an action pursuant to Rule 12(b)(6) where the statements are incapable of supporting a jury's finding that the allegedly libelous statements refer to plaintiff.’ ” 49
2. The Common Interest Privilege
[6] [7] [8] [9] With regard to the second element of a defamation claim, New York recognizes a qualified common interest privilege when the allegedly defamatory statement is made between persons who share a common interest in the subject matter. 50 At the pleadings stage, a plaintiff can overcome the common interest privilege by alleging that the defamatory statement was motivated solely by [common law or constitutional] malice. 51 “Common-law malice mean[s] spite or ill will, and will defeat the privilege only if it is the one and only cause for the publication.” 52 “Constitutional or actual malice means publication with [a] high degree of awareness of [the publication's] probable falsity or while the defendant in fact entertained serious doubts as to the truth of [the] publication.” 53 “ ‘Mere conclusory allegations, or charges based upon surmise, conjecture, and suspicion are insufficient to defeat the claim of qualified privilege.’ ” 54
3. Special Damages or Defamation Per Se
[10] [11] [12] To state a claim for defamation, a plaintiff must also allege either special damages or defamation per se. “Special damages consist of ‘the loss of something having economic or pecuniary value which must flow directly from the injury to reputation caused by the defamation [.]’ ” 55 Special damages “must be fully and accurately stated, with sufficient particularity to identify actual losses.” 56 “[R]ound figures or a general allegation of a dollar amount ... will not suffice.” 57 The particularity requirement is strictly applied, as courts will dismiss defamation claims for failure to allege special damages with the requisite degree of specificity. 58 Under New York law, statements that are defamatory per se are...
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