492 F.Supp.3d 184
S.D.N.Y.2020Background
- Plaintiff Nefissa Kraiem, a French citizen living in London, was hired by JonesTrading International Ltd. (JTIL) as a London–based trader in May 2016; JonesTrading Institutional Services LLC (JTIS) is a related U.S. entity with New York presence.
- Kraiem alleges severe sex discrimination, sexual harassment and retaliation by supervisors and colleagues beginning soon after hire, including incidents in Dallas (Apr 2017), Greenwich (May 2017) and a business trip to New York City (July 10–16, 2017); she alleges constructive termination in London (Jan 15, 2018) after a proposed office move.
- Her employment contract (governed by English law) contains an exclusive-jurisdiction clause submitting disputes to English courts; it contemplates travel and transfers among Jones entities and limits continuous non-UK work to one month.
- Kraiem filed an EEOC/NYSDHR charge (May 8, 2018) and received a right-to-sue (Feb 28, 2019); she sued in federal court (May 31, 2019; FAC Dec. 12, 2019) asserting Title VII, NYSHRL and NYCHRL claims against JTIL, JTIS and individual employees.
- Defendants moved to dismiss under Rule 12(b)(1)/(6) and forum non conveniens, arguing (inter alia) timeliness, extraterritorial limits of Title VII, lack of NY impact for state/city claims, no employer relationship with JTIS, lack of individual liability for retaliation, and enforceability of the U.K. forum clause.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness (Title VII 300‑day rule) | Dallas/Greenwich acts are part of an ongoing hostile‑work‑environment so timely under continuing‑violation doctrine | Discrete Dallas/Greenwich acts are >300 days before EEOC charge and therefore time‑barred | Discrete acts in Dallas and Greenwich are time‑barred; but they may be considered if part of the timely hostile‑work‑environment tied to the July NYC trip |
| Title VII extraterritoriality (London termination) | Title VII covers work with U.S. contacts; seeks relief for constructive termination in London | Title VII does not protect non‑U.S. citizens employed abroad; Kraiem’s center of gravity/primary workstation was London | Dismissed Title VII claims for London events — Kraiem was not employed in the U.S. for Title VII purposes |
| NYSHRL / NYCHRL "impact" requirement | Impact in NY shown by July NYC trip, by interactions with NY personnel while abroad, and by harm to NY career prospects | Contacts while abroad and speculative future NY prospects do not satisfy NY impact test | Only allegations occurring while Kraiem was physically in NYC (July 2017 trip) satisfy NYSHRL/NYCHRL impact; contacts from abroad and speculative future NY effects do not suffice |
| Employer status (JTIS liability) | JTIS and JTIL operated as a single employer (shared management, HR, clients, ownership) | JTIS is a separate entity and not Kraiem’s employer | At pleading stage, Kraiem adequately alleged JTIS and JTIL are a single employer; claims against JTIS may proceed |
| Individual retaliation liability (Cohen, Cunningham) | Cohen and Cunningham participated in retaliation and are individually liable under NYSHRL/NYCHRL | Lack of allegations showing they personally engaged in retaliatory conduct in NYC or causal link | Retaliation claims against Cohen and Cunningham dismissed for failure to plead personal involvement/causation; some non‑retaliation discrimination claims against Cohen survive for NYC trip |
| Forum selection clause / forum non‑conveniens | Clause should not cover statutory discrimination claims or bind non‑signatory JTIS; enforcement would defeat U.S. public policy | Clause is mandatory, was communicated, and (under U.K. law) covers disputes arising from the employment relationship; JTIL (and its employees) can invoke it | Clause (English law clause submitting to English courts) covers harassment/discrimination claims against JTIL and JTIL employees; claims vs. JTIL and Cunningham dismissed on forum non‑conveniens grounds; JTIS and Cohen cannot invoke the clause |
Key Cases Cited
- Makarova v. United States, 201 F.3d 110 (2d Cir. 2000) (Rule 12(b)(1) jurisdictional standard allowing consideration of materials beyond the complaint)
- National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (U.S. 2002) (distinction between discrete acts and hostile‑work‑environment; discrete acts trigger separate timeliness rules)
- Atlantic Marine Constr. Co. v. U.S. Dist. Ct., 571 U.S. 49 (U.S. 2013) (enforcement of forum‑selection clauses via forum non conveniens analysis)
- Martinez v. Bloomberg LP, 740 F.3d 211 (2d Cir. 2014) (treatment of forum‑selection clauses and applicability to employment disputes)
- Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015) (prima facie framework for retaliation claims)
- Menaker v. Hofstra Univ., 935 F.3d 20 (2d Cir. 2019) (pleading standard for Title VII discrimination at motion to dismiss)
- Vangas v. Montefiore Med. Ctr., 823 F.3d 174 (2d Cir. 2016) (NYSHRL/NYCHRL "impact" requirement; contacts while plaintiff was elsewhere insufficient)
- Davis‑Garett v. Urban Outfitters, Inc., 921 F.3d 30 (2d Cir. 2019) (scope of hostile‑work‑environment continuing‑violation doctrine)
- Arculeo v. On‑Site Sales & Mktg., LLC, 425 F.3d 193 (2d Cir. 2005) (single‑employer and joint‑employer doctrines permitting liability against non‑formal employers)
- Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235 (2d Cir. 1995) (four‑factor test for single‑employer status)