Malena v. Victoria's Secret Direct, LLC
2012 U.S. Dist. LEXIS 115900
| S.D.N.Y. | 2012Background
- Malena worked Nov 2006–Feb 2009 as executive assistant to O’Malley in Victoria’s Secret Direct/Stores Brand Management; roles included support and personal tasks for O’Malley, with praise and awards prior to pregnancy.
- Malena’s group moved from Victoria’s Secret Direct (VSD) to SBM in Oct 2007 to oversee creative services for VSD and SBM.
- Malena became pregnant, took maternity leave in July 2008, and upon return faced new criticisms related to clothing, email etiquette, and par-ental obligations after O’Malley allegedly expressed concerns to HR.
- A possible confidential search/reassignment to replace Malena was discussed in 2008, and a September 2008 meeting noted a possible switch with Jennifer Pincus; no definitive action disclosed.
- In Feb 2009, a reduction-in-force (RIF) terminated 32 VSD employees including Malena, following the group’s reassignment back to VSD; Ferrario and Foley were the primary decision makers for the RIF and Malena’s termination.
- O’Malley’s authority was limited: she did not hire/fire, maintain employment records, set salaries, or approve FMLA leaves; she supervised Malena but was not the ultimate decision maker for terminations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Pregnancy discrimination under NYSHRL/NYCHRL | Malena’s pregnancy and maternity leave were factors in termination. | RIF based on cost-saving and business needs; no proof of discriminatory intent by Ferrario/Foley. | Not entitled to summary judgment on discrimination; potential proximate-cause evidence allows triable issues. |
| FMLA retaliation by Corporate Defendants | Termination followed maternity leave and HR complaints; shows retaliatory motive. | RIF was legitimate nondiscriminatory reason; need to show causation by intent. | Not entitled to summary judgment; issues of proximate cause remain. |
| NYSHRL/NYCHRL retaliation claims against Corporate Defendants | Protected activity (opposing discrimination) linked to termination. | Need independent evidentiary support of retaliatory motive; may be insufficient. | Not entitled to summary judgment; timing and knowledge support causation. |
| O’Malley individual liability for FMLA retaliation and NYSHRL discrimination | O’Malley’s actions and reports could render her liable under the economic-reality test and aiding theories. | O’Malley not an employer; lacks authority to hire/fire or set pay; may be liable only for aiding/participation. | O’Malley granted summary judgment on FMLA retaliation; not liable for direct NYSHRL discrimination; aiding claims remain as to O’Malley. |
| Aiding-and-abetting claims under NYSHRL/NYCHRL | O’Malley and Corporate Defendants aided discriminatory/retaliatory actions. | Corporate Defendants cannot be liable for aiding their own conduct; individual liability limited to those who actually participated. | Granted summary judgment for Corporate Defendants on aiding-and-abetting; O’Malley may still face aiding liability. |
Key Cases Cited
- Staub v. Proctor Hosp., 131 S. Ct. 1191 (U.S. 2011) (proximate cause of discriminatory action by supervisor)
- Holtz v. Rockefeller & Co., Inc., 258 F.3d 62 (2d Cir. 2001) (employer liability for discriminatory intent remains a jury question)
- Gorzynski v. JetBlue Airways Corp., 596 F.3d 93 (2d Cir. 2010) (causation and pretext considerations in discrimination)
- Holcomb v. Iona College, 521 F.3d 130 (2d Cir. 2008) (discrimination burden-shifting framework and employer’s need to show legitimate reasons)
- Cronin v. Aetna Life Ins. Co., 46 F.3d 196 (2d Cir. 1995) (McDonnell Douglas framework for proving discrimination)
- Lambert v. McCann Erickson, 543 F. Supp. 2d 265 (S.D.N.Y. 2008) (prima facie case and shifting burden analysis)