Breastfeeding Mother’s Gender/Pregnancy Discrimination Claims Survive Dismissal

In Zuckerman v. GW Acquisition LLC d/b/a G&W Industries et al, 20-CV-8742, 2021 WL 4267815 (S.D.N.Y. Sept. 20, 2021), the court, inter alia, denied defendants’ motion to dismiss plaintiff’s pregnancy/lactation-related unlawful termination claims. (The court also denied defendants’ motion to dismiss plaintiff’s hostile work environment claims, which I addressed in a separate post.)

The court held that plaintiff sufficiently alleged a prima facie case of sex discrimination under Title VII of the Civil Rights Act of 1964. Defendants did not dispute that plaintiff, a breastfeeding mother, satisfied the first two elements of the prima facie case (membership in the protected class and qualification for position).

Plaintiff sufficiently alleged actionable “adverse employment actions” in the form of late commissions, unpaid commissions, and termination.

Plaintiff also sufficiently alleged facts from which the court could infer discriminatory intent, the fourth element of a prima facie case. As to that element, the court explained:

Defendants do not dispute that Plaintiff has timely raised claims of discrimination based on the failure to pay commissions and the termination of her employment, but they argue that most of the offensive comments cannot be considered because they were allegedly made before November 15, 2019, the date marking 300 days before she filed her EEOC charge, and are therefore time-barred. Mem. of Law at 6, 14, 15. But for purposes of Plaintiff’s claim of sex discrimination,6 Plaintiff is not arguing that the temporally distant comments are discrete acts of discrimination; rather, Plaintiff is arguing that the comments serve as “background evidence in support of a timely claim.” Morgan, 536 U.S. at 113. See also Petrosino v. Bell Atl., 385 F.3d 210, 220 (2d Cir. 2004) (considering acts that fall outside the limitations period as relevant background evidence to support timely claims). The Court agrees that the more historical comments are evidence that the adverse actions occurred under circumstances giving rise to an inference of discriminatory intent.

Defendants further argue that the alleged offensive comments were “merely ‘stray remarks,’ ” which “generally ‘do not constitute sufficient evidence to support a case of employment discrimination.’ ” Mem. of Law at 15 (quoting Danzer v. Norden Sys., Inc., 151 F.3d 50, 56 (2d Cir. 1998)).7 Courts consider four factors, none of which is dispositive, to determine whether a comment is a stray remark or is probative of discrimination: “(1) who made the remark (i.e., a decision-maker, a supervisor, or a low-level co-worker); (2) when the remark was made in relation to the employment decision at issue; (3) the content of the remark (i.e., whether a reasonable juror could view the remark as discriminatory); and (4) the context in which the remark was made (i.e., whether it was related to the decision-making process).” Henry v. Wyeth Pharms., Inc., 616 F.3d 134, 149–50 (2d Cir. 2010).

Plaintiff has adequately alleged that the comments at issue are probative of discriminatory intent and were not mere stray remarks. With respect to the first factor, Plaintiff contends that all of the remarks were made by Marinoff and Maleh, the two men who own the company and who supervised Plaintiff. See FAC ¶¶ 27, 32. With respect to the third factor, although Defendants begrudgingly concede that the comments were “arguably offensive,” see Mem. of Law at 16, the Court has no doubt that, as alleged, a reasonable juror would view the remarks as exceedingly juvenile, obviously offensive, and evidence of discriminatory intent.

Additionally, as alleged, many of the remarks were temporally proximate to the alleged adverse actions. With respect to commissions, Plaintiff contends that commissions that should have been paid in or around February 2020 were delayed by five months. FAC ¶¶ 45, 112–113, 124, 126–128. Plaintiff also alleges that many of Defendants’ comments were made around February 2020. For example, Plaintiff claims that “in or around January 2020, Marinoff joked to Plaintiff’s colleagues and G&W buyers that Plaintiff produced so much breast milk that she could single handedly put the Borden Milk Company out of business.” Id. ¶ 93. Additionally, Plaintiff alleges that when she left a February 2020 meeting to pump, Marinoff walked past the designated pumping area and yelled, “Hey pumper, are you done?” Id. ¶ 96. See also id. ¶¶ 99, 102 (alleging that in March 2020, Marinoff turned to a group of women employees, including Plaintiff, and commented that the company was “turning into a regular dairy farm”).

*7 With respect to Plaintiff’s August 2020 termination, Defendants are correct that the last alleged offensive comment was made in March 2020, five months before Plaintiff was terminated. Mem. of Law at 16. But in evaluating temporal proximity, courts must consider whether there is “any aspect of the facts alleged which could explain such a delay.” Hurd v. N.Y. Health & Hosps. Corp., No. 04-CV-998, 2007 WL 678403, at *6 (S.D.N.Y. Mar. 5, 2007), aff’d sub nom. Hurd v. N.Y.C. Health & Hosps. Corp., No. 07-CV-1250, 2008 WL 5120624 (2d Cir. Dec. 8, 2008). Here, the COVID-19 pandemic could explain the respite in comments. Plaintiff alleges that Defendants made the offensive comments up until she was furloughed in March 2020 and that she was only placed back on the payroll in May. FAC ¶¶ 109, 111, 115. From May through the date she was terminated, Plaintiff worked from home, which meant that she was no longer pumping at the office. Accordingly, the lull in comments could be explained by the change in circumstances brought about by the pandemic, as opposed to a change of attitude by Defendants.

Although Plaintiff does not allege that the comments were made in the context of the Defendants taking adverse employment actions against her, the circumstances of the adverse actions further support an inference of discriminatory intent. With respect to the delayed payment of commissions that were due in February, Plaintiff alleges that in a single conversation, Plaintiff complained that Defendants’ harassment based on her pumping at the office was exacerbating her anxiety, and Defendants told Plaintiff that they intended to continue to withhold the commissions that had been due in February. Additionally, Plaintiff alleges that she was terminated soon after she requested that safeguards be put in place to address the alleged harassment. In short, both the alleged litany of offensive comments and the circumstances surrounding the adverse employment actions support an inference of discriminatory intent on the part of Defendants.

[Citations and internal quotation marks omitted; cleaned up.]

Having determined that plaintiff adequately alleged sex discrimination claims under Title VII, it also held that she sufficiently alleged such claims under the equivalently-evaluated New York State Human Rights Law and the broader New York City Human Rights Law.

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