Viscecchia v. Alrose Allegria LLC

117 F. Supp. 3d 243, 2015 U.S. Dist. LEXIS 102660, 2015 WL 4602729
CourtDistrict Court, E.D. New York
DecidedJuly 30, 2015
DocketNo. 14-CV-6064 (JFB)(SIL)
StatusPublished
Cited by5 cases

This text of 117 F. Supp. 3d 243 (Viscecchia v. Alrose Allegria LLC) 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
Viscecchia v. Alrose Allegria LLC, 117 F. Supp. 3d 243, 2015 U.S. Dist. LEXIS 102660, 2015 WL 4602729 (E.D.N.Y. 2015).

Opinion

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge:

Plaintiff Richard Viscecchia, Jr., (“Vis-cecchia” or “plaintiff’) brings this civil rights action against his former employer, Alrose Allegria LLC, -individually and doing business as Allegria Hotel (“Hotel” or “defendant”), alleging the following: (1) employment discrimination on the -basis of gender in violation of Title VII of the Civil [246]*246Rights Act of 1961, 42 U.S.C. § 2000e e% seq., as amended (“Title VH”) and Article 15 of the Executive Law of the State of New York § 296 (the “New York Human Rights Law5’ or “NYHRL”); and (2) federal and state claims of unlawful retaliation for engaging in activities protected by the aforementioned statutes. Plaintiff seeks actual, compensatory, and punitive damages, attorney’s fees and other costs, and equitable relief (namely, reinstatement to his position). Defendant now moves to dismiss the action in its entirety, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to state a claim.

For the reasons set forth below, defendant’s motion is granted in part, and denied in part. In particular, in the employment context, it is well settled that an employer does not violate Title VII or the NYHRL by requiring short hair on men, but not on women, as part of an overall grooming policy. Thus, to the extent that plaintiff contends that the portion of defendant’s policy requiring only male employees to have short hair is inherently discriminatory, that claim must be dismissed as a matter of law. However, plaintiff also claims that defendant selectively enforced the overall hair policy only against men, while permitting women to violate the hair policy in other ways, such as by having streaked hair, without any disciplinary sanctions. Those selective enforcement allegations state a plausible claim of discrimination based upon- gender in violation of Title VII and the NYHRL. Thus, defendant’s motion to dismiss that portion of plaintiffs federal and state discrimination claims is denied. With respect’to the retaliation claim, defendant argues that, because the law is clear that an employer can adopt sex-differentiated grooming policies that require only male employees to have short hair, plaintiff could not have had a good faith, reasonable belief that such policy was discriminatory. Thus, according to defendant, plaintiffs complaint to his employer about the hair policy is not protected activity-that could form the basis of a retaliation claim. However, the Court concludes that defendant is reading the Amended Complaint too narrowly, rather than in the light most favorable to plaintiff (as is required under the motion to dismiss standard). Specifically, because plaintiffs alleged complaint to the Hotel about the discriminatory hair policy may have been directed (at least in part) at the selective enforcement of the policy (or may have been understood to include a complaint about selective enforcement of the policy), plaintiff has a plausible retaliation claim that survives a motion to dismiss.

In sum, defendant’s motion is granted as to the portion of plaintiffs gender discrimination claim (under Title VII and the NYHRL) that is based on the fact that defendant’s hair policy requires short hair on men, while allowing long hair for women. However, the motion is denied as to plaintiffs gender discrimination claim (under Title VII and the NYHRL) regarding alleged selective enforcement of the overall hair policy (by allowing women to violate other aspects of the policy without any sanctions). The motion also is denied as to the retaliation claim under Title VII and the NYHRL.

I. BACKGROUND

A. Facts

. The following facts are taken from the plaintiffs Amended Complaint (“Am. Compl.”), and are not findings of fact by the Court. Instead, the Court will assume these facts to be true and, for purposes of the pending motion to dismiss, will construe them in a light most favorable to plaintiff, the non-moving party.

On or around June 18, 2009, plaintiff began working for the Allegria Hotel as a [247]*247line cook. (Am.CompU 7.) Throughout the course of his employment, plaintiff had long hair. (Id. ¶ 8.) The Hotel’s hair policy reads as follows:

Hair Hair must be clean, trimmed, well brushed and neat at all times, Extreme styles flowers [sic], colored ribbon’s [sic], beaded, braided or streaked hair is not permitted. Color should be maintained at neutral tones. Men’s hair must be above the shirt collar. Side burns should not exceed one inch in length and should be neatly trimmed.. No other type of hair covering should be worn .unless considered part of the uniform.

(Id. ¶ 22.) In 2012, the Hotel management directed plaintiff to cut his hair because it was “too long.” (Id. ¶ 9.) Plaintiff asserts that he complained to the Hotel that its policy on hair length was unlawfully discriminatory towards men, (Id. ¶ 10.) On or around October 1, 2013, the Hotel’s Human Resource Department issued plaintiff a written warning instructing him to cut his hair in accordance with the Hotel’s policy, and notifying him that noncompliance could result in disciplinary action, including potential termination. (Id. ¶ 12.) Human Resources gave plaintiff until October 15, 2013 to comply with the warning. (Id. ¶ 13.) Plaintiff states that, at the time he received the warning, the Hotel employed females with long hair in comparable positions in the'kitchen,' who were not similarly reprimanded for violating the hair policy and continued to work at the Hotel. (Id. ¶¶ 14, 16.) Plaintiff did not comply with the Hotel’s warning and was terminated on or around October 16, 2013. (Id. ¶ 18-19.)

Plaintiff asserts that “Defendant’s policy was discriminatorily applied to Plaintiff because he is a man and the policy was not equally' applied to women.” , (Id. ¶ 23.) Plaintiff also argues that, defendant selectively enforced the hair policy, permitting women with “streaked” hair, allegedly in violation of the policy, to continue to work for the Hotel without any disciplinary consequences. (Id. ¶ 25.) Specifically, in his opposition to defendant’s motion, plaintiff identifies two employees who he asserts had streaked hair in violation of the policy and faced no disciplinaiy action. (PI. Opp. at 2-3.)

B. Procedural History

On or around December 2, 2013 and June 17,- 2014, plaintiff filed complaints with the Equal Employment Opportunity Commission (“EEOC”) related to the facts alleged in this matter. (Am.Compl. ¶ 32.) The .EEOC issued, plaintiff a Right to Sue Letter on or around September 29, 2014. (Id. ¶ 33.)

On October 16, 2014, plaintiff filed the instant action, and plaintiff filed an amended complaint on January 5, 2015. Defendant moved to dismiss the amended complaint on February 9, 2015. Plaintiff filed his opposition on March 6, 2015. Defendant submitted its reply on March 24, 2015; Oral argument was held on April 29, 2015. This matter is fully submitted.

II. STANDARD OP REVIEW

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Cite This Page — Counsel Stack

Bluebook (online)
117 F. Supp. 3d 243, 2015 U.S. Dist. LEXIS 102660, 2015 WL 4602729, Counsel Stack Legal Research, https://law.counselstack.com/opinion/viscecchia-v-alrose-allegria-llc-nyed-2015.