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Cunningham v. Burlington Coat Factory Warehouse Corp.

United States District Court, D. New Jersey

September 30, 2019


          DAVID M. KOLLER KOLLER LAW LLC On behalf of Plaintiff Charlize Cunningham

          MICHAEL O'MARA ADAM D. BROWN CHELSEA A. BIEMILLER STRADLEY RONON STEVENS & YOUNG, LLP On behalf of Defendant Burlington Coat Factory Warehouse Corporation


          NOEL L. HILLMAN, U.S.D.J.

         This case concerns claims under Title VII of the Civil Rights Act of 1964 (“Title VII”) 42 U.S.C. § 2000e, et seq., and the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., as amended, for alleged discrimination against Plaintiff based on her transgender status and a disability. Currently before this Court is Defendant's Motion to Dismiss the Amended Complaint. For the reasons that follow, the Court will grant in part, and deny in part without prejudice, Defendant's motion, and grant Plaintiff leave to amend her Amended Complaint as to her allegations of disability. The Court will also issue an order to show cause as to why Plaintiff's Title VII claim based on her transgender status should not be stayed until the Supreme Court decides the case of R.G. and G.R. Harris Funeral Home v. EEOC, 884 F.3d 560, 575 (6th Cir. 2018), cert. granted, in part sub nom., R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, 139 S.Ct. 1599 (2019).


         This Court takes its facts from Plaintiff's Amended Complaint. Plaintiff, Charlize Cunningham, was hired as a sales associate for Defendant, Burlington Coat Factory Warehouse Corporation, in July 2011. Plaintiff is transgender.[1] Plaintiff alleges she has also been diagnosed with a serious disability, of which Plaintiff claims Defendant was aware. As a result of her disability, Plaintiff claims she is substantially limited in one or more major life activities, including the functioning of her autoimmune system. Plaintiff has refrained from publicly identifying her disability in these proceedings deeming it private and confidential.[2]

         Plaintiff claims she was qualified for her position at Defendant and performed well. Shortly after Plaintiff was hired, however, Plaintiff claims she was subjected to disparaging comments and jokes about her transgender status. These comments came from coworkers and supervisors, including Ahmed Savage, who appears to be a manager; Megan Williams, a supervisor; and Charles Boyer, a purchase order manager. For example, Plaintiff claims that Boyer commented to Savage and Williams, loudly enough for Plaintiff to hear, the following: “Is [Plaintiff] transgender . . . he's a pretty one!” After the comment, Plaintiff claims that Boyer, Savage, and Williams all laughed.

         Plaintiff also claims that coworkers questioned Plaintiff on whether she was “born a man”; informed Plaintiff about ongoing rumors that she was a man; and used the wrong pronouns when referring to Plaintiff (snickering while doing so). Plaintiff also alleges coworkers and supervisors intentionally excluded her, such as when Savage hosted a potluck dinner for employees and intentionally did not invite Plaintiff.

         Plaintiff claims that Savage also made numerous comments about Plaintiff's clothing, and treated her harshly or unfairly depending on the clothing she wore. On the days that Plaintiff wore a dress or skirt, Plaintiff claims that Savage would scrutinize her work and be overly critical of her performance. According to Plaintiff, he also unfairly disciplined Plaintiff when she wore dresses. For example, in August 2012 on a day Plaintiff wore a dress to work, Savage reprimanded Plaintiff for leaning on another employee's desk. Allegedly, Savage did not scrutinize or overly criticize the performance of non-transgender employees, and Savage did not discipline them for leaning on other employees' desks.

         Plaintiff claims that Savage repeatedly counseled Plaintiff that she should not wear a dress or skirt to work, and that Savage did not counsel non-transgender employees not to wear a dress or skirt to work. On one occasion, Plaintiff claims that she was so distressed after Savage pulled her aside and sternly demanded that she not wear a dress to work that she left early. Thereafter, Plaintiff complained to Judith Macio, a human resources partner, on at least three occasions regarding the harassment and discrimination she received, but human resources failed to stop or prevent further harassment and discrimination. Allegedly, it continued throughout the remainder of Plaintiff's employment.

         Throughout her employment, Plaintiff applied for more senior positions, including an assistant buyer position and buyer position. On several occasions, after Plaintiff applied for a promotion, Plaintiff claims that Defendant issued her unfair discipline, thereby removing her from consideration for the position. According to Plaintiff, other non-transgender employees were not issued unfair discipline and they were not prevented from pursuing promotional opportunities. As a result, less qualified, non-transgender employees were awarded the promotional opportunities instead of her.

         Plaintiff was promoted to the position of Purchase Order Coordinator, a position that paid less than the other positions to which she had applied. Plaintiff was unsuccessful in her pursuit of other promotional opportunities. Defendant's refusal to consider Plaintiff for these promotional opportunities were part of its allegedly ongoing pattern of harassment.

         In April 2013, Plaintiff was involved in a car accident from which she developed a serious infection in her lymph nodes. Due to her underlying disability, the infection did not heal and Plaintiff became seriously ill. Plaintiff informed Defendant that her infection would cause her to miss time from work. Plaintiff claims that Defendant did not advise Plaintiff of her rights under the FMLA to take intermittent leave, offer disability-related intermittent leave, or excuse her time missed as a reasonable accommodation.

         By April 2013, Plaintiff had worked 1250 hours in the prior twelve-month period and was eligible for FMLA leave. In September 2013, Plaintiff informed Brandy Cornish and Susan Katims from human resources of her underlying disability and of her need to attend ongoing medical appointments to treat her lymph node infection. Plaintiff claims that during this meeting, Katims stated that if Plaintiff had additional medical problems, they would need to reevaluate Plaintiff's employment.

         After the meeting, Plaintiff applied for FMLA, which was initially approved by MetLife. Thereafter, MetLife notified Plaintiff that it had to revoke its approval because Defendant claimed she had not worked sufficient hours. Plaintiff still needed to attend medical appointments and requested - as an accommodation - that her disability-related absences and tardiness be excused. Defendant refused.

         According to Plaintiff, Defendant did not provide, and failed to engage in an interactive process to provide, Plaintiff with a reasonable accommodation. Defendant thereafter terminated Plaintiff's employment for absenteeism and tardiness. Plaintiff explained the reason for her absences and tardiness was related to her disability, but Defendant refused to reconsider the termination. Plaintiff filed a complaint with the EEOC and received a right to sue letter on March 30, 2018. Plaintiff initially filed her complaint on June 29, 2018. Plaintiff's Amended Complaint, filed on December 3, 2018, alleges two counts. Count I alleges sex discrimination. Count II alleges a violation of the ADA and contains the following claims: (1) actual, perceived, or record of disability discrimination; (2) retaliation; and (3) failure to accommodate. Defendant have moved to dismiss Plaintiff's Amended Complaint, and Plaintiff has opposed Defendant's motion.


         A. Subject Matter Jurisdiction

         This Court has subject matter jurisdiction over the case pursuant to 28 U.S.C. §§ 1331 and 1343(a)(4). The matter before this Court is a federal question over which this Court has original jurisdiction. 28 U.S.C. § 1331. In addition, this Court has original jurisdiction over claims “to recover damages or to secure equitable or other relief ...

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