Pineda v. Espn, Inc.

          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 ...