Peralta v. Roros 940, Inc.

72 F. Supp. 3d 385, 2014 U.S. Dist. LEXIS 170982, 125 Fair Empl. Prac. Cas. (BNA) 961, 2014 WL 6983406
CourtDistrict Court, E.D. New York
DecidedDecember 10, 2014
DocketNo. 1:11-cv-6242 (NG)(CLP)
StatusPublished
Cited by4 cases

This text of 72 F. Supp. 3d 385 (Peralta v. Roros 940, Inc.) 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
Peralta v. Roros 940, Inc., 72 F. Supp. 3d 385, 2014 U.S. Dist. LEXIS 170982, 125 Fair Empl. Prac. Cas. (BNA) 961, 2014 WL 6983406 (E.D.N.Y. 2014).

Opinion

OPINION AND ORDER

GERSHON, District Judge:

Plaintiff Ashley Peralta brings this discrimination action against her former employer Roros 940, Inc. (“Roros Inc.”) and its principal John P. Roros (“Roros”). She claims that, because of her gender and pregnancy, she was subjected to a hostile work environment and then terminated in violation of Title VII and the New York City Human Rights Law (“NYCHRL”). Plaintiff also asserts claims under the NYCHRL for interference with a protected right (§ 8-107(19)), aiding and abetting liability (§ 8-107(6)), and employer liability (§ 8-107(13)). While plaintiffs complaint includes additional claims of retaliation and intentional infliction of emotional distress, plaintiff withdrew those claims at the November 19, 2013 pre-motion conference. Defendants now move for summary judg[388]*388ment on the remaining claims. For reasons that follow, the motion is granted in part and denied in part.

BACKGROUND

Between April 2010 and September 20, 2011, plaintiff worked as a delivery driver for defendant Roros Inc., a FedEx subcontractor with approximately 20 employees.1 Roros Inc. was at all relevant times owned and operated by defendant Roros, who testified that, as a FedEx subcontractor, he was responsible for hiring, disciplining, and terminating his own employees, all of whom “work for [him].” Defs. Ex. 6 at 23:15.

During plaintiffs time at the company, seven or eight of Roros Inc.’s employees were drivers, and the rest were helpers who assisted the drivers in handling packages. As a driver, plaintiff was responsible for delivering packages along a particular FedEx ground route that had been subcontracted to Roros Inc. Plaintiff was assigned one helper at the outset of her employment.

I. Plaintiffs Pregnancy

On or about May 11, 2011, plaintiff learned that she was pregnant with her third child. While the parties dispute whether plaintiff informed Roros in person, Roros admitted at deposition that he learned of the pregnancy through plaintiffs coworkers roughly • two months before plaintiff was terminated.

Plaintiff claims that, as soon as Roros became aware of the pregnancy, he began to treat her differently. According to plaintiff, Roros began to single her out by demanding that she (but not other drivers) make multiple attempts to deliver packages when initial attempts failed. Plaintiff also asserts that Roros expressed disapproval of her pregnancy and grew angry when she requested time off for pregnancy-related medical appointments; told coworkers that she was a “bitch” for attending those appointments; reprimanded her unnecessarily, even though he had consistently commended her work previously; and expressed frustration at having given plaintiff a second helper on her route.

Defendants deny these allegations. According to defendants, the only thing that changed as a result of plaintiffs pregnancy was that plaintiff received an additional helper. Roros testified that he assigned the helper, Todd Gibson, without expressing any irritation and with the goal of training Mr. Gibson so that he could cover plaintiffs route when she took maternity leave. As a courtesy, Roros instructed plaintiff “not to pick up heavy packages; the other person would do it.” Defs. Ex. 6 at 44:16-18.

II. FedEx Investigation

In late August 2011 FedEx initiated an investigation into a large package missing from plaintiffs delivery truck. The package contained 44 BlaekBerry cellular telephones valued at $7,800. FedEx’s investigation report indicates that the package was scanned onto plaintiffs vehicle August 24, along with a second package addressed to the same business — namely, JC Cell. After several failed attempts, the second package was ultimately delivered September 1. FedEx’s report indicates that no attempts were made to deliver the shipment of BlaekBerry telephones. Sometime after it was loaded onto plaintiffs truck, that package disappeared.

On September 7 and 15, FedEx investigators interviewed plaintiff regarding the disappearance. According to FedEx’s report, plaintiff told investigators that there [389]*389was only one package for JC Cell on her truck on August 24. Plaintiff claimed that she attempted to deliver that package on multiple occasions, but was unable to do so because the shipment required payment on delivery, and the customer was unprepared with payment. Plaintiff stated that the package remained on her truck when she left for a one-week vacation around August 29, during which time Alex Valdez and Mr. Gibson covered her route.

On September 8, investigators interviewed Mr. Valdez as well as Jilani Mitchell, one of plaintiffs helpers during the week before her vacation. Mr. Valdez and Mr. Mitchell told investigators that there was only one package addressed to JC Cell on plaintiffs vehicle. Echoing plaintiff, Mr. Mitchell indicated that the package could not be delivered because the customer did not have payment ready. Although Roros testified at deposition that Mr. Gibson also served.as plaintiffs helper during the week preceding her vacation, investigators did not interview Mr. Gibson.

The investigators proceeded to interview a representative of JC Cell, who stated that he declined delivery, not because he was unable to pay, but because he was expecting a second package. The representative told investigators that he finally accepted delivery on September 1 only because, by then, the shipper had agreed to adjust the COD amount to reflect that only one package was being received.

FedEx’s report concluded that plaintiffs and Mitchell’s explanations were inconsistent with statements from JC Cell and that neither plaintiff nor Mr. Mitchell could provide “a reasonable explanation as to what happened to the missing package.” Defs. Ex. 4 at 2, 3. The report noted that the “evidence of this case was presented to Roros and Sr. Mgr. Chris Shea” and that Roros subsequently informed FedEx investigators “that he had terminated Peral-ta from his employment.” Id. at 3.

III. Circumstances of Plaintiffs Termination

All agree that plaintiff was terminated on September 20, 2011. Beyond that, the events surrounding her dismissal are the subject of vigorous dispute. Plaintiff contends that one month before she was dismissed she overheard a conversation between Mr. Gibson (her helper and trainee) and Roros in which Mr. Gibson threatened to quit if he were not promoted to be a full-time driver. Plaintiff states that Ro-ros told Mr. Gibson, “Hang in there, don’t leave yet.” Peralta Deck ¶ 16. According to plaintiff, Roros made several inquiries in the following weeks regarding packages that had been reported missing during plaintiffs vacation. Roros then called plaintiff on the morning of September 20 and told her not to come to work that day. Not wanting to supply Roros with a legitimate reason to fire her, plaintiff went to work anyway. When she arrived, Roros told her that he was giving plaintiffs route to Mr. Gibson because he had threatened to leave absent the promotion. Plaintiff says that she told Roros that her pregnancy must be the real reason for her dismissal, whereupon a FedEx security officer approached plaintiff and instructed her to leave the facility.

Defendants do not admit these assertions. Their position is that it was FedEx that made the decision to terminate plaintiff and FedEx — specifically, a FedEx security officer — who did the firing.

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72 F. Supp. 3d 385, 2014 U.S. Dist. LEXIS 170982, 125 Fair Empl. Prac. Cas. (BNA) 961, 2014 WL 6983406, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peralta-v-roros-940-inc-nyed-2014.