Herrera v. Boston Market Corporation

CourtDistrict Court, E.D. New York
DecidedMarch 7, 2025
Docket1:20-cv-04284
StatusUnknown

This text of Herrera v. Boston Market Corporation (Herrera v. Boston Market Corporation) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Herrera v. Boston Market Corporation, (E.D.N.Y. 2025).

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -------------------------------------------------------------- x JAYLEEN HERRERA, : : REPORT AND Plaintiff, : RECOMMENDATION : -against- : 20-CV-4284 (FB)(PK) : BOSTON MARKET CORPORATION, : : Defendant. : -------------------------------------------------------------- x

Peggy Kuo, United States Magistrate Judge:

Jayleen Herrera (“Plaintiff”) brought this action against Boston Market Corporation (“Defendant” or “Boston Market”) for discrimination on the basis of gender and for retaliation. (“Compl.,” Dkt. 1), alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”), as amended by the Pregnancy Discrimination Act of 1978, 42 U.S.C. § 2000e(k) (the “PDA”), the New York State Human Rights Law, N.Y. Exec. Law §§ 296 et seq. (“NYSHRL”), and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-502(a) et seq. (“NYCHRL”). (Compl. ¶ 1.) Plaintiff’s Second Motion for Default Judgment (“Motion,” Dkt. 38) has been referred to me for a report and recommendation. For the reasons stated herein, I respectfully recommend that the Motion be granted in part, as set forth below. BACKGROUND I. Factual Background The following facts are taken from Plaintiff’s Declaration (“Decl.,” Dkt. 39-7), Affidavit (“Aff.,” Dkt. 41), and deposition transcript (“Herrera Tr.,” Dkt. 39-9) and are accepted as true for purposes of the Motion. See Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009) (in light of defendant’s default, a court is required to accept all of plaintiff’s factual allegations as true and draw all reasonable inferences in its favor). In March 2019, Plaintiff began working for Defendant as a cashier and was paid $15 per hour five days per week for about thirty hours per week. (Decl. ¶¶ 3, 6.) Ninfa Bautista (“Bautista”) served as Defendant’s General Manager and supervised Plaintiff throughout her employment. (See id. ¶ 9.) In mid-September 2019, after noticing that Plaintiff was using the bathroom frequently, Bautista asked Plaintiff if she was pregnant. When Plaintiff responded that she was, Bautista appeared

upset. (Id. ¶¶ 9-10.) Bautista told Plaintiff, “You should have kept your legs closed. You have a baby already and now you have another one coming. You’re so stupid!” (Id. ¶ 11.) In late September, Bautista stated to Plaintiff’s coworker, “She’s only 20. She has a baby already. She’s so stupid.” (Id. ¶ 13.) Bautista’s comments made Plaintiff feel “extremely humiliated” and “uncomfortable, embarrassed, and offended.” (Id. ¶¶ 12, 14.) On September 23 and 26, 2019, Bautista assigned Plaintiff to work shifts on days when Plaintiff had previously explained she could not work because she had to attend school. (Id. ¶ 15; Herrera Tr. at 170:8-19.) On September 28, 2019, Plaintiff did not appear at work due to a domestic violence incident. That same day, Bautista took Plaintiff completely off the work schedule, effectively terminating her. (Decl. ¶¶ 16-17.) Bautista told one of Plaintiff’s co-workers that Plaintiff had been fired. (Id. ¶¶ 21, 23.) Plaintiff alleges that around this time, non-pregnant employees who missed work with little advance warning or who failed to appear at work on time were not even reprimanded.

(Id. ¶ 20.) Plaintiff tried to contact Bautista to discuss her removal from the work schedule and explain her absence on September 28, but Bautista hung up and ignored her subsequent calls. (Id. ¶ 22.) On October 2 and 3, 2019, respectively, Plaintiff complained about Bautista’s conduct to area manager Andy Tricouros (“Tricouros”) and human resources representative Doug Kramer (“Kramer”). (Id. ¶¶ 25-27.) Kramer informed Plaintiff that he would investigate. (Id. ¶ 30.) On October 10, 2019, Plaintiff visited the restaurant to speak with Bautista about her need for a job. (Id. ¶ 31.) Bautista told Plaintiff that she was unable to put Plaintiff back on the schedule because she had hired new employees. (Id. ¶ 33.) Some of these newly hired employees were not pregnant. (Id. ¶ 39.) Plaintiff told Tricouros, who was also present, about Bautista’s comments related to her pregnancy and being taken off the work schedule without warning. (Id. ¶ 34.) Tricouros told Bautista to rehire Plaintiff. (Id. ¶ 35; Herrera Tr. 138:4-15.) On October 11, 2019, Bautista placed Plaintiff back on the work schedule, but her schedule

was reduced from five days per week to two or three days per week.1 (Decl. ¶¶ 37-38.) Non-pregnant employees were given more shifts than Plaintiff. (Id. ¶ 39.) From November 20 to 25, 2019, Plaintiff was hospitalized for depression, anxiety, and pregnancy-related conditions. (Id. ¶ 40, 42.) When Plaintiff appeared for her shift on November 27, 2019, Bautista said she did not look okay and directed her to go home. (Id. ¶¶ 43-44.) On November 30, 2019, Plaintiff was once again left off the work schedule. (Id. ¶ 45.) Bautista told Plaintiff this was because Plaintiff had not come to work on November 27. (Id. ¶ 47.) Plaintiff reminded Bautista that she did go to work that day, but Bautista had sent her home. (Id.) Bautista did not respond. (Id.) On December 3, 2019, Plaintiff complained to Bautista about her hours, noting that they had been unfairly reduced and that she was more than able to work despite her pregnancy and recent hospitalization. (Id. ¶ 48.) On December 12, 2019, Plaintiff’s work hours were further reduced.

(Id. ¶ 49.) Around December 2019, Bautista made inappropriate comments to Plaintiff, including telling her “you’re so slow” in front of other co-workers, making Plaintiff feel “extremely uncomfortable.” Bautista did not treat non-pregnant workers similarly. (Id. ¶¶ 50-51.)

1 Plaintiff states in her Declaration that she was placed back on the work schedule on October 16, 2019, but in her Affidavit, she clarifies that this date was October 11, 2019. She also provides documentation of paid hours with her Affidavit that are more consistent with the October 11, 2019 date. Plaintiff testified that the last day she worked for Defendant was near the beginning of March 2020. (Herrera Tr. at 204:18.) Around this time, her doctors told her to stay home because she would get cramps when she walked due to her pregnancy. (Id. at 204:22-25.) On March 7, 2020, Plaintiff began contacting her supervisors to obtain the paperwork necessary to go on New York State Paid Family Leave. (Decl. ¶ 52.) Despite several attempts, she received no response. (Id. at ¶¶ 53-56.) Plaintiff gave birth on March 27, 2020. (Herrera Tr. at 204:14.)

On March 31, 2020, she texted Bautista, and Bautista finally responded with the necessary information for her to apply for leave. (Decl. ¶¶ 57-58.) The delayed response caused Plaintiff to file for New York State Paid Family Leave after she had already given birth and made her feel “extremely anxious, disturbed, humiliated, and disrespected.” (Id.) Plaintiff did not return to work after her maternity leave. Plaintiff states that she “felt compelled to not return to work for Defendant . . . given how hostile [her] work environment had been throughout [her] pregnancy” and, thus, she was constructively discharged. (Id. ¶ 59.) Plaintiff testified at her deposition that she did want to go back to work after her maternity leave benefits ended and that she reached out to Defendant for information about the process for returning to work but received no response. (Herrera Tr. at 205:3-6, 10-12.) Because nobody told Plaintiff what to do in order to return to work, she “assumed” she had been terminated. (Herrera Tr. at 208:15-19, 209:13-18.) Plaintiff alleges that, by not adding her back to the work schedule after her

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Bluebook (online)
Herrera v. Boston Market Corporation, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herrera-v-boston-market-corporation-nyed-2025.