United States District Court, D. Connecticut
INITIAL REVIEW ORDER
Michael P. Shea United States District Judge
Plaintiff
Rachel Marie Pineda (“Pineda”), a resident of
Terryville, Connecticut, brings this pro se action
alleging that her employer, defendant ESPN, Inc.
(“ESPN”), discriminated against her on the basis
of multiple protected characteristics and retaliated against
her for exercising her rights under the FMLA. Pineda sues
ESPN and ESPN's purported owners, The Walt Disney Company
(“Disney”) and Hearst Communications, Inc.
(“Hearst”). Pineda asserts causes of actions
under (1) Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e to 2000e-17; (2) 42 U.S.C. §
1981; (3) the Rehabilitation Act of 1973, 29 U.S.C.
§§ 701 to 796; (4) the Americans with Disabilities
Act of 1990 (“ADA”), 42 U.S.C. §§ 12101
to 12213; and (5) the Family and Medical Leave Act of 1993
(“FMLA”), 29 U.S.C. §§ 2601 to 2654.
Under
28 U.S.C. § 1915(e)(2)(B)(ii), the Court must evaluate
plaintiff's complaint and dismiss the case if it
“fails to state a claim on which relief may be
granted.” The Court will not accept as true conclusory
allegations and may allow the case to proceed only if the
complaint pleads “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). Nevertheless, it is
well established that “[p]ro se
complaints must be construed liberally and interpreted to
raise the strongest arguments that they suggest.”
Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir.
2013) (citation and internal quotation marks omitted). At
this stage, “a court may consider only the complaint,
any written instrument attached to the complaint as an
exhibit, any statements or documents incorporated in it by
reference, and any document upon which the complaint heavily
relies.” In re Thelen LLP, 736 F.3d 213, 219
(2d Cir. 2013) (citation omitted).
I.
Title VII Claims
In
Pineda's first cause of action under Title VII, 42 U.S.C.
§§ 2000e to 2000e-17, Pineda claims that she was
discriminated against on the basis of multiple protected
classes, specifically: her race (white Hispanic); color
(brown); religion (Catholic); sex (female); and national
origin (Mexican/Spanish/Native American/Tejas). (ECF No. 2 at
3.) Under Title VII, “a plaintiff must plausibly allege
that (1) the employer took adverse action against [her] and
(2) his race, color, religion, sex, or national origin was a
motivating factor in the employment decision.” Vega
v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 86 (2d
Cir. 2015).
For the
first element, “[a] plaintiff sustains an adverse
employment action if he or she endures a materially adverse
change in the terms and conditions of employment.”
Id. at 85 (citation omitted). “Examples of
materially adverse changes include termination of employment,
a demotion evidenced by a decrease in wage or salary, a less
distinguished title, a material loss of benefits,
significantly diminished material responsibilities, or other
indices unique to a particular situation.” Id.
For the
second element, “a plaintiff must allege that the
employer took adverse action against her at least in part for
a discriminatory reason.” Id. at 87.
“[S]he may do so by alleging facts that directly show
discrimination or facts that indirectly show discrimination
by giving rise to a plausible inference of
discrimination.” Id. “[I]n making the
plausibility determination, the court is to draw on its
judicial experience and common sense.” Id.
(quotation marks omitted). The Second Circuit
“generally looks to four factors to determine whether a
remark made in the workplace is probative of discriminatory
motive: (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).” Shaw v.
McDonald, 715 Fed.Appx. 60, 61 (2d Cir. 2018) (citation
omitted).
When
her complaint is construed liberally, Pineda alleges a claim
for Title VII employment discrimination on the basis of her
race, color, and national origin. Pineda alleges an adverse
employment action, specifically that she was terminated from
ESPN on April 11, 2016 for purportedly not successfully
completing an ESPN “performance improvement
program” (the “PIP”). (ECF No. 2 at 8;
see Id. at 16, ¶ 19.)[1] Pineda's charge relies
on “actions or remarks made by decisionmakers that
could be viewed as reflecting a discriminatory animus.”
Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d
81, 91 (2d Cir. 1996). At least one such remark appears to
state a claim under Title VII. The affidavit attached to
Pineda's complaint states that her manager, Valerie
Gordon, told Pineda to “go to Deportes”
(ESPN's Spanish-language speaking network) with her story
ideas involving the Hispanic community, which Pineda had
pitched as part of her tenure on the PIP. (ECF No. 2 at
15-16, ¶ 15.) This statement meets all four factors
described in Shaw, as it was made by Pineda's
direct supervisor, was made during the probationary PIP
period before her termination, could be read to suggest
hostility to Hispanic employees by suggesting they work for
Spanish-speaking networks, and was directly connected to
Pineda's performance during her probationary period.
Accordingly, because this statement gives rise to an
inference of discriminatory intent, Pineda's claim of
discrimination due to her race, color and national origin may
proceed at this time. See Vill. of Freeport v.
Barrella, 814 F.3d 594, 607 (2d Cir. 2016) (holding that
discrimination based on Hispanic ethnicity constituted race
discrimination under Title VII, but “may also be
cognizable under the rubric of national-origin
discrimination, depending on the particular facts of each
case”).
Pineda
does not state a Title VII claim for employment
discrimination on the basis of sex. Pineda alleges several
comments made about her status as a new mother. See
42 U.S.C. § 2000e (defining the terms “because of
sex” or “on the basis of sex” to include
“because of or on the basis of pregnancy, childbirth,
or related medical conditions; and women affected by
pregnancy, childbirth, or related medical conditions shall be
treated the same for all employment-related
purposes.”). However, the complaint does not allege
when those statements were made, and some of these
allegations do not even identify the speaker. (ECF No. 2 at 9
(allegation that a supervisor told Pineda she “lacked a
sense of urgency” towards one of her projects when
Pineda complained about being electroshocked after being
forced to use a breast pump in a nearby bathroom); ECF No. 2
at 10 (unidentified colleagues told Pineda she had “Mom
Brain”); ECF 2 at 8 (an identified individual in Human
Resources had told Pineda at unspecified time that
“breastfeeding mothers . . . need to be watched”
or else it “can't be known what [they] are actually
doing.”).) More importantly, Pineda does not plausibly
allege that these statements were in any way connected to her
termination in April 2016. Accordingly, even construing
Pineda's pro se complaint liberally,
Pineda's claim for employment discrimination on the basis
of sex fails. However, Pineda may within 30 days file an
amended complaint that attempts to replead this claim to
rectify the above defects.
Pineda
also does not state a claim for Title VII employment
discrimination on the basis of her religion, as her only
allegation concerning her Catholic beliefs is that she was
“physically shunned on campus by individuals involved
with Freemasonry and/or Scientology.” (ECF No. 2 at 9.)
This allegation is conclusory and thus inadequate to give
rise to a plausible inference of discrimination.
II.
Section 1981 Claim
Pineda's second cause of action alleges a violation of 42
U.S.C. § 1981 for intentional employment discrimination
on the basis of race. “Most of the core substantive
standards that apply to claims of discriminatory conduct in
violation of Title VII are also applicable to claims of
discrimination in employment in violation of § 1981 . .
. .” Patterson v. Cty. of Oneida, N.Y., 375
F.3d 206, 224 (2d Cir. 2004). However, unlike Title VII,
“a plaintiff pursuing a claimed violation of §
1981 . . . must show that the discrimination was
intentional.” Id. at 226. I find the same
comment supporting an inference of discriminatory intent with
respect to Pineda's Title VII claims supports an
inference of intentional discrimination under 42 U.S.C.
§ 1981. See Raymond v. City of New York, 317
F.Supp.3d 746, 764 (S.D.N.Y. 2018) (applying same four-part
test to determine whether a comment evidences an intent to
discriminate under § 1981); see Annuity, Welfare
& Apprenticeship Skill Improvement & Safety Funds of
the Int'l Union of Operating Engineers Local 15, 15a, 15c
& 15d, AFL-CIO v. Tightseal Constr. Inc., No. 17
CIV. 3670 (KPF), 2018 WL 3910827, at *7 (S.D.N.Y. Aug. 14,
2018) (noting that statements of bias by decision-maker
responsible for adverse action sufficiently alleges a causal
connection between race and the adverse action). Accordingly,
Pineda's Section 1981 claim may proceed.
III.
Rehabilitation Act/ADA Claims
I
analyze Pineda's third and fourth claims under the
Rehabilitation Act and ADA in tandem because they impose
largely identical requirements. Rodriguez v. City of New
York, 197 F.3d 611, 618 (2d Cir. 1999) (“Because
Section 504 of the Rehabilitation Act and the ADA ...