SUPREME COURT OF THE STATE OF NEW YORK …origin-states.politico.com.s3-website-us-east-1.amazonaws.com/... · MARLENA SANTANA, YASMINDA DAVIS or MELISSA RODRIGUEZ, and continued

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ----------------------------------------------------------X MARLENA SANTANA, YASMINDA DAVIS and MELISSA RODRIGUEZ, Index No. 305261-08 Plaintiff, -against- COMPLAINT G.E.B. MEDICAL MANAGEMENT, INC., BRUCE PASWALL and PETER AYENDE, Defendants. ----------------------------------------------------------X Plaintiffs MARLENA SANTANA, YASMINDA DAVIS and

MELISSA RODRIGUEZ (“Plaintiffs”), by their attorneys, the Law Office

of Steven M. Sack (Scott A. Lucas, Of Counsel), allege as follows for their

Verified Complaint against Defendants G.E.B. MEDICAL

MANAGEMENT, INC., BRUCE PASWALL and PETER AYENDE

(“Defendants”):

INTRODUCTION

1. This case involves a medical office that brazenly harasses

and fires pregnant employees for being pregnant, and otherwise unlawfully

discriminates against them.

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2. YASMINDA DAVIS, MARLENA SANTANA and

MELISSA RODRIGUEZ – the only employees ever to be fired from their

employer – were harassed, discriminated against, and then fired after their

employer learned they were pregnant.

3. As detailed herein, the challenged conduct violates the

New York City Human Rights Law (Administrative Code §§ 8-107 and 8-

502) and the New York State Human Rights Law (Executive Law §§ 290, et

seq. and 296).

4. Plaintiffs seek compensatory and punitive damages,

attorney’s fees, interest and costs against Defendants for illegally

discriminating against them based on their sex, pregnancy, sex-plus

pregnancy and sex-plus race and national origin.

THE PARTIES

5. Plaintiff MARLENA SANTANA is a natural person

residing at 2727 University Avenue, Apt. 6H, Bronx, NY 10032.

6. Plaintiff YASMINDA DAVIS is a natural person

residing at 747 Jefferson Avenue, 2nd Floor, Elizabeth, NJ 07201.

7. Plaintiff MELISSA RODRIGUEZ is a natural person

residing at 2115 Honeywell Ave., Apt. 2L, Bronx, New York 10460.

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8. On information and belief, Defendant G.E.B. MEDICAL

MANAGEMENT, INC. is a domestic corporation organized and existing

under the laws of the State of New York, with its principal office located at

515 Madison Avenue in Manhattan.

9. Defendant BRUCE PASWALL is a natural person who,

on information and belief, resides at 13 Logging Road, Katonah, New York

10536.

10. Defendant PETER AYENDE is a natural person who, on

information and belief, resides in the State of New York, County of Queens.

11. On information and belief, at all times mentioned herein

PETER AYENDE was the agent of G.E.B. MEDICAL MANAGEMENT,

INC. (“G.E.B.”) and BRUCE PASWALL, and in doing the things alleged in

this Complaint was acting within the course and scope of such agency.

12. On information and belief, at all times mentioned herein

BRUCE PASWALL was an agent of G.E.B.

JURISDICTION & VENUE

13. This Court has subject matter jurisdiction under CPLR §

301, et seq.

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14. Venue is proper in Bronx County under, inter alia, CPLR

§§ 503(a) and 509.

15. This action was timely commenced with the filing of the

Summons on June 24, 2008.

16. Pursuant to § 8-102(c) of the New York City

Administrative Code, a copy of this Complaint will be served on the New

York City Commission on Human Rights and Corporation Counsel within

10 days after it is served on Defendants and filed with the Court.

FACTS1

17. G.E.B. is a medical and medical-related practice located

at 515 Madison Avenue in Manhattan.

18. On information and belief, G.E.B.’s practice includes,

without limitation, chiropractic, orthopedic, physical therapy and

acupuncture.

19. On information and belief, Defendant BRUCE

PASWALL (hereafter, “DR. PASWALL”) is a licensed physician and an

owner and manager of G.E.B.

1 All directly quoted statements, unless otherwise specified, are the sum and substance of such statements as recalled by Plaintiffs.

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20. On information and belief, DR. PASWALL was an

owner of G.E.B.’s predecessor, BJP Medical Management, Inc., established

in January 1994.

21. On information and belief, Defendant PETER AYENDE

(“MR. AYENDE”) is and was at all material times herein G.E.B.’s office

manager and an agent of DR. PASWALL.

22. At all material times herein, DR. PASWALL exercised

managerial responsibility over G.E.B.’s workforce.

23. At all material times herein, MR. AYENDE exercised

managerial and/or supervisory responsibility over Plaintiffs and other G.E.B.

employees.

24. On information and belief, the managerial and/or

supervisory responsibility that MR. AYENDE exercised over Plaintiffs was

given to him by DR. PASWALL.

25. At all material times herein, MR. AYENDE was in a

position to routinely influence DR. PASWALL’S decisions concerning the

hiring, firing and discipline of G.E.B.’s employees.

26. On information and belief, at all material times herein

MR. AYENDE did routinely influence DR. PASWALL’S decisions

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concerning the hiring, firing and discipline of G.E.B.’s employees, including

Plaintiffs.

The Relationship between Dr. Paswall and Mr. Ayende

27. On information and belief, DR. PASWALL and MR.

AYENDE worked closely together for nearly 10 years before hiring

MARLENA SANTANA, YASMINDA DAVIS or MELISSA

RODRIGUEZ, and continued to work closely together at all material times

herein.

28. On information and belief, the relationship between DR.

PASWALL and MR. AYENDE eventually grew so close that MR.

AYENDE, in the presence of DR. PASWALL, told co-workers, in words or

substance, that DR. PASWALL was including him in his will, and was

putting him in charge of the company when he (DR. PASWALL) died.

How Dr. Paswall’s view of pregnant women in the workforce was affected by a negative experience with one pregnant employee

29. On information and belief, before G.E.B. employed

Plaintiffs, a G.E.B. employee named Brenda became pregnant.

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30. On information and belief, Brenda was dating MR.

AYENDE at the time she became pregnant.

31. On information and belief, the relationship between DR.

PASWALL and G.E.B. on the one hand and MR. AYENDE on the other,

grew strained due to: (A) G.E.B.’s actual or purported dissatisfaction with

Brenda’s work performance during (and shortly after) her pregnancy; and

(B) Brenda’s perception that she was being treated unfairly and/or underpaid

by G.E.B. during (and shortly after) her pregnancy.

32. On information and belief, after she had returned to work

following childbirth, Brenda renewed her requests for a raise so that, at least

in her view, her compensation would be commensurate with her

performance and increasing level of experience.

33. On information and belief, DR. PASWALL finally

agreed to give Brenda a raise.

34. On information and belief, shortly thereafter, in March or

April of 2006, Brenda walked off the job and/or quit her employment with

no advance notice to DR. PASWALL or G.E.B.

35. On information and belief, DR. PASWALL was angered

upon learning that Brenda walked off the job and/or quit her employment

with no advance notice.

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36. On information and belief, the friction and discontent

surrounding Brenda’s employment contributed to or reinforced DR.

PASWALL’S negative view of pregnant women in the workforce.

Marlena Santana

37. Plaintiff MARLENA SANTANA (“MS. SANTANA”)

was interviewed twice by DR. PASWALL, once in early 2006, and a second

time (with MR. AYENDE present) in April 2006, shortly after Brenda quit.

38. During the second interview, DR. PASWALL told MS.

SANTANA, inter alia, that he could tell by her body language, mannerisms,

self-presentation and ethnicity that she is very courteous and well-educated,

was brought up to be very respectful, has a beautiful smile that is an asset,

and that she will go far in life.

39. During that interview, DR. PASWALL also asked MS.

SANTANA if she was married or had any children.

40. In response, MS. SANTANA said she was married but

did not have any children.

41. DR. PASWALL then told MS. SANTANA not to have

children. Alluding to Brenda’s pregnancy and childbirth while employed by

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G.E.B., DR. PASWALL added that he told MR. AYENDE “not to get

involved, and not to have children [with Brenda], but he didn’t listen.”

42. In response, MS. SANTANA told DR. PASWELL not to

worry, that she is still a college student, and that she is planning to wait until

after 30 to have children, to which DR. PASWALL replied “Smart girl.”

43. DR. PASWALL then told MS. SANTANA that she

would be hired to work from 9:00 a.m. to 5:00 p.m. as an administrative

assistant, and that her main duties would be to verify patients’ health

insurance coverage, schedule appointments, and interact with patients.

44. MS. SANTANA was employed in spring 2006, and

performed the duties assigned to her diligently and competently for the

duration of her employment.

45. While employed by Defendants MS. SANTANA did not

take any vacation or personal days.

46. In or about late-June or early-July 2006, MS. SANTANA

learned she was pregnant, and promptly informed MR. AYENDE.

47. In response, MR. AYENDE took a deep breath and said,

“I don’t know, I’ll have to talk to DR. PASWALL.”

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48. MR. AYENDE then told MS. SANTANA, in words or

substance, “We’re not going to kick you out of here. We just hired you. We

don’t know if you’re going to stick around after you have the baby.”

49. After learning that MS. SANTANA was pregnant:

(A) DR. PASWALL stopped speaking with her in an open,

positive manner, as he had before she was pregnant, and

MR. AYENDE began prefacing many work assignments

with the phrase “If you want to keep your job…”

(B) Defendants began transitioning her away from her

regular front office workspace and job duties, moving her

instead into a small, cramped, unventilated windowless

room, where she had to carry stacks of files and kneel

down to access the bottom shelf and balance herself on

top of five gallon water bottles to access the top shelf.

(C) Defendants increasingly assigned her demeaning tasks,

such as filling DR. PASWALL’S water bottle (which

DR. PASWALL would just hand her without saying

anything, expecting it to be filled), and going to the store

to buy Diet Pepsi and “gummy fruits” for MR.

AYENDE.

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50. As her pregnancy progressed, Defendants made and

condoned unfairly critical and derogatory comments about MS. SANTANA

that were unrelated to her work performance.

51. Defendants also gave MS. SANTANA tasks that were

mindless, tedious and/or objectively senseless after learning about her

pregnancy. For example, instead of quickly shredding old medical records

that were ready to be discarded, MS. SANTANA – acting on MR.

AYENDE’S instructions – spent the equivalent of about 10 full workdays

using a black marker to redact names from such records and then taping the

pages together facing each other.

52. In or about late August 2006, when MS. SANTANA was

about four months pregnant, MR. AYENDE told MS. SANTANA that DR.

PASWALL would cut her weekly hours from over 40 down to 20 at the end

of her pregnancy, at which time he said a part-time employee would be hired

to work the remaining hours.

53. MS. SANTANA assumed that the end of her pregnancy

meant the last month of her pregnancy, so she said “okay.”

54. However, instead of waiting until the end of MS.

SANTANA’S employment to reduce her hours and hire a part-time

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employee to make up the difference, Defendants proceeded to do so a few

days after broaching the subject with MS. SANTANA.

55. The new part-time employee -- “Natalie” -- was young,

attractive, childless and not pregnant (or not known to be pregnant).

56. Although Natalie was ostensibly hired to do the same job

that MS. SANTANA was doing, and was supposed to begin work each day

at 12:30 p.m., she was given overtly preferential treatment over MS.

SANTANA (and MS. SANTANA’S pregnant successor, MELISSA

RODRIGUEZ).

57. Specifically, Natalie was often late or absent, but was not

reprimanded, much less punished, and generally did not offer any excuse for

coming in late.

58. Further, even though MS. SANTANA was a salaried

employee, and was receiving a reduced salary for working the reduced shift

that Defendants imposed on her, she was nonetheless required to continue

working well past 12:30 p.m., until after Natalie finally showed up for work,

which was often 1:30 p.m. or later.

59. In addition, Natalie was not required to share the tedious

back room work that MS. SANTANA was largely relegated to, but was

instead permitted to become a veritable “front office queen” – spending most

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of her time doing extremely light work in the front office where MR.

AYENDE and DR. PASWALL could get a good look at her in the revealing

outfits that she wore.

60. Defendants allowed other employees to take time off of

work without adverse consequences, and to remain employed despite the

effects of illnesses, temporarily disabling conditions or personal

circumstances.

61. However, the pregnancy-related symptoms that MS.

SANTANA experienced would be later mentioned by Defendants as a

reason she was terminated.

62. Because the symptoms experienced by MS. SANTANA

were caused in whole or in part by her pregnancy, Defendants acted as if it

somehow validated their preconceived notions about the ability of pregnant

women to serve as productive members of the workforce, when, in fact,

G.E.B. would not have terminated another employee who suffered from a

comparable or more severe non-pregnancy-related illness or disability, or

who was occasionally absent from work due to personal circumstances or a

comparable or more severe non-pregnancy-related illness.

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63. After coming to work on October 5, 2006, MS.

SANTANA saw that a solid, dependable co-worker named YASMINDA

DAVIS – who happened to be pregnant – was packing up to leave.

64. When MS. SANTANA asked MR. AYENDE why MS.

DAVIS was leaving, he claimed that MS. DAVIS was not doing her job and

said that “If you want to stay you better be on your game.”

65. The following day it was MS. SANTANA’S turn.

66. After arriving to work that day, MS. SANTANA was

called into DR. PASWALL’S office.

67. MR. AYENDE then told her, in the presence of DR.

PASWALL, “It is not working out. You have to go.”

68. Defendants gave MS. SANTANA no other reason for

firing her.

69. MS. SANTANA was replaced by an employee who was

not pregnant or who was not known to be pregnant.

Yasminda Davis

70. Plaintiff YASMINDA DAVIS (“MS. DAVIS”) was

interviewed by DR. PASWALL in May 2006.

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71. During the interview, DR. PASWALL told MS. DAVIS

that MR. AYENDE “is like a son to me who still makes many mistakes.”

72. During that same interview, DR. PASWALL also told

MS. DAVIS “I don’t ever want to look bad. I want to look good at all times,

and if I don’t, I’m not happy.”

73. During that same interview, DR. PASWALL asked MS.

DAVIS about her marital status, whether she had a family, what her child

care arrangements were, and what her husband did for a living.

74. On information and belief, one important reason DR.

PASWALL asked these questions was to try and gauge the likelihood that

MS. DAVIS could afford to have another child.

75. MS. DAVIS responded by telling DR. PASWALL that

she was married, had one child, what her child care arrangements were, and

that her husband’s work compensation was modest and that her family was

facing difficult financial circumstances. DR. PASWALL then told MS.

DAVIS “you don’t look like you could survive on unemployment.”

76. Following his interview with MS. DAVIS, DR.

PASWALL informed her that she was being hired to work for G.E.B. as a

medical biller/coder with a starting salary of $40,000 per year commencing

the next day.

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77. MS. DAVIS reported to work the following day, and

performed her duties diligently and competently for the duration of her

employment.

78. During the entire time she worked at G.E.B., MS.

DAVIS did not take any personal days and did not take any vacation days.

79. By about early July 2006, the office had become aware

that MS. DAVIS’S co-worker, MS. SANTANA, was pregnant.

80. Shortly after MS. SANTANA’S pregnancy became

known in the office, MS. DAVIS heard what sounded like the tail end of a

conversation between MR. AYENDE, DR. PASWALL and MS.

SANTANA in the front office area concerning MS. SANTANA’S

pregnancy. DR. PASWALL then looked at MS. DAVIS and said, in what

seemed to be a half-joking manner, “I know you better not get pregnant.”

81. Shortly after MS. SANTANA’S pregnancy became

known in the office, MR. AYENDE began making baseless, negative

remarks about MS. SANTANA to (or in the presence of) MS. DAVIS.

82. In particular, MR. AYENDE made statements to (or in

the presence of) MS. DAVIS to the effect that (A) MS. SANTANA was

allegedly lying about the medical impact of her pregnancy (e.g., claiming

that MS. SANTANA lied about having gone to the emergency room); and

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(B) MS. SANTANA was allegedly not working as hard as she allegedly

should be because she was pregnant.

83. MS. DAVIS repeatedly criticized MR. AYENDE for his

negative attitude toward MS. SANTANA after she became pregnant.

84. Thereafter, by mid-September 2006, MS. DAVIS herself

began showing symptoms of pregnancy, and several of her co-workers,

including MR. AYENDE, began commenting on how bad she looked.

85. Several days went by and MS. DAVIS’S appearance did

not improve, at which point MR. AYENDE and DR. PASWALL began

treating MS. DAVIS differently because, on information and belief, they

suspected she too was likely pregnant.

86. For the first time during MS. DAVIS’S employment,

MR. AYENDE and DR. PASWALL began to make baseless and picayune

criticisms of MS. DAVIS.

87. On September 28, 2006, MS. DAVIS informed MR.

AYENDE and DR. PASWALL by email that she had to leave early the

following day for a doctor’s appointment.

88. MR. AYENDE approached MS. DAVIS later that day

and asked her if she was feeling okay and said she has not been herself all

month.

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89. MR. AYENDE then asked MS. DAVIS if she was

feeling tired and if it might be “number two” (i.e., her second child).

90. MS. DAVIS replied that she did not know for sure, but

that she was going to find out tomorrow.

91. Upon hearing this, MR. AYENDE exclaimed “Oh Boy!”

in an alarmed tone, abruptly terminated the discussion, and headed straight

for DR. PASWALL’S office.

92. On information and belief, MR. AYENDE entered DR.

PASWALL’S office and discussed MS. DAVIS’S apparent pregnancy with

DR. PASWALL.

93. On information and belief, the knowledge that MS.

DAVIS had an appointment the next day to see a doctor concerning her

pregnancy status, coupled with the nausea and fatigue that MS. DAVIS

exhibited over the previous 2-3 weeks, confirmed in Defendants’ minds that

MS. DAVIS was in fact pregnant.

94. On information and belief, that is when Defendants

decided to fire MS. DAVIS.

95. After MS. DAVIS went for her doctor’s appointment,

Defendants cleared her desk so she would have no work the following

Monday morning.

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96. When MS. DAVIS arrived for work that Monday

(October 2, 2006), she saw that her desk had been cleared and that her work

was missing from the desk.

97. MS. DAVIS was then summoned to DR. PASWALL’s

office.

98. When MS. DAVIS entered DR. PASWALL’S office,

DR. PASWALL told her that she should give her two weeks notice because

she really was “not working out.”

99. DR. PASWALL also asked MS. DAVIS if she was

overwhelmed and whether the work was too much for her, to which MS.

DAVIS responded that she was not overwhelmed and that the work was not

too much for her.

100. During that meeting, DR. PASWALL told MS. DAVIS

she needed to find something that was allegedly more her pace, and that he

was giving her until October 5, 2006 to see if she could catch up with her

work.

101. However, MS. DAVIS had not fallen behind in her work.

102. The next day (October 3, 2006) MR. AYENDE returned

MS. DAVIS’S patient billing letters for being unsigned, even though she had

never been asked to sign such letters in the past.

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103. That same day, MR. AYENDE incorrectly claimed that

MS. DAVIS had put the wrong attorney’s name on a document, and wrote

the word “WRONG” in huge capital letters across the page.

104. When MS. DAVIS corrected him, MR. AYENDE said

“No, it’s wrong!” and stormed off (instead of looking at the document to see

that he was wrong).

105. On October 5, 2006, MS. DAVIS was called into DR.

PASWALL’S office and asked if she found a job yet.

106. MS. DAVIS responded by asking whether she should

have found another job.

107. DR. PASWALL replied that it was “not working out”

and she had to leave.

108. On information and belief, MS. DAVIS was replaced by

one or more employees who were not pregnant or who were not known to be

pregnant.

109. In addition, one of the employees hired to replace MS.

DAVIS was a man named “Leon,” who was treated by DR. PASWALL and

MR. AYENDE as if he was “one of the guys”.

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110. Upon information and belief, Leon was paid at a higher

rate than comparably situated but more experienced female employees like

Talitha Crespo and Yasminda Davis.

111. Upon information and belief, Defendants did not give

Talitha Crespo any substantial increase in pay until it became clear that they

would need her as a witness against MS. SANTANA, MS. DAVIS and MS.

RODRIGUEZ.

Melissa Rodriguez

112. Plaintiff MELISSA RODRIGUEZ interviewed twice

with G.E.B. in the fall of 2006, first with MR. AYENDE and then with DR.

PASWALL.

113. During the first interview, MR. AYENDE asked MS.

RODRIGUEZ if she could do “heavy lifting.”

114. MS. RODRIGUEZ said “yes.” MR. AYENDE then said

“I only ask because the last female who worked here did not want to file.”

115. The position to which MS. RODRIGUEZ applied

(medical administrative assistant) did not require heavy lifting.

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116. On information and belief, MR. AYENDE’S purpose in

asking MS. RODRIGUEZ if she could do heavy lifting was to find out if she

was pregnant.

117. In addition, on information and belief, MR. AYENDE’S

reference to “the last female who worked here” was to MS. SANTANA

(although MS. SANTANA never refused to file).

118. During the interview, MR. AYENDE also gave MS.

RODRIGUEZ a written test to complete.

119. Thereafter MS. RODRIGUEZ returned for a second

interview, which was with DR. PASWALL.

120. After her second interview, MS. RODRIGUEZ was

asked to come in and on arriving was told, among other things, that she was

being hired as a part-time medical administrative assistant (under 30 hours

per week), with a possibility of full time hours in the near future after a

particular employee went back to school.

121. After reporting to work, MS. RODRIGUEZ brought in a

picture of her daughter and placed it on her desk.

122. On seeing the picture, DR. PASWALL asked, in a

surprised and negative tone, “You have a daughter already? How old are

you?”

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123. MR. AYENDE, who was also present, added “I didn’t

know you had a daughter. Is the father around?”

124. In response to these unwelcome comments, MS.

RODRIGUEZ did her best to gloss over the subject without appearing to be

defensive.

125. Throughout her employment, MS. RODRIGUEZ

performed her duties diligently and competently.

126. During the entire time she worked at G.E.B., MS.

RODRIGUEZ did not take any vacation or personal days, and only took one

sick day, and that was unpaid.

127. On or about December 18, 2006, MS. RODRIGUEZ

overheard Jennifer Norton, DR. PASWALL and MR. AYENDE discussing

a bet or potential bet about whether she was pregnant.

128. Shortly thereafter, MS. RODRIGUEZ learned that

Jennifer Norton had told MR. AYENDE that she (MS. RODRIGUEZ) was

pregnant, and that MR. AYENDE was troubled by that.

129. MS. RODRIGUEZ then asked MR. AYENDE if

anything was wrong and if he needed to speak to her, and he said “yes” and

asked MS. RODRIGUEZ if she was pregnant.

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130. MR. AYENDE asked MS. RODRIGUEZ if her husband

was the father, and MS. RODRIGUEZ said “yes.”

131. By this point MS. RODRIGUEZ had become very

distressed, and her eyes began to tear.

132. To avoid being seen crying, MS. RODRIGUEZ retreated

to the filing area.

133. Jennifer Norton followed MS. RODRIGUEZ into the

filing area and informed MS. RODRIGUEZ that “the last girl” was fired

because she had a “complicated pregnancy,” but that MS. RODRIGUEZ is

“obviously healthy” and does not “call out,” so she has “nothing to worry

about.”

134. MS. RODRIGUEZ then walked into the general office

area, and Ms. Norton called out to MR. AYENDE, “Peter, right? They fired

Marlena because she had complications with her pregnancy.”

135. MR. AYENDE responded, “Yes.”

136. The following day when MS. RODRIGUEZ took off her

coat, MR. AYENDE stared at her stomach and said, “Whoa! What were you

doing all this time? Wearing a girdle to hide your stomach? Where did this

stomach come from?”

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137. Shortly thereafter, MS. RODRIGUEZ asked the billing

supervisor, Talitha Crespo, about what had happened to the other pregnant

employee who Ms. Crespo had referred to.

138. Ms. Crespo told MS. RODRIGUEZ (in the presence of

Monica Eadie, an employee of another physician on the same floor) that

both MS. DAVIS and MS. SANTANA had been terminated because they

were pregnant.

139. At G.E.B.’s Christmas party, MR. AYENDE and DR.

PASWALL each assured MS. RODRIGUEZ she would still have a job

waiting for her if she decided to come back to work after having the baby.

140. MS. RODRIGUEZ then told DR. PASWALL, and

repeated to MR. AYENDE, that she would work up to the time of giving

birth, and would return to work six weeks after giving birth.

141. MR. AYENDE told MS. RODRIGUEZ that she was not

allowed to do heavy filing or lift heavy water bottles.

142. Within two weeks of learning that MS. RODRIGUEZ

was pregnant, DR. PASWALL began giving her much more work and

permitting other doctors in the medical suite (some of whom were not

G.E.B. employees) to assign her extra work.

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143. While MS. RODRIGUEZ had received extra pay in

December for having regularly worked beyond her normal working hours at

Defendant’s request, Defendants told her in January 2007 that they would

stop paying her for the extra hours, but that she was still expected to

complete the same amount of work, and that she had to do so by 6:00 p.m.

144. Like MS. SANTANA before her, MS. RODRIGUEZ

was required to do extra work because Natalie (the non-pregnant employee

with the same duties) was given favorable treatment, and was often missing

or absent from work.

145. DR. PASWALL also made it harder for MS.

RODRIGUEZ to interact with him on work assignments by frequently

ignoring her and giving her the “cold shoulder.”

146. Defendants also began making unwarranted complaints

about MS. RODRIGUEZ’S performance, and otherwise mistreating her in a

transparent effort to make her quit.

147. MR. AYENDE, who had been friendly with MS.

RODRIGUEZ before learning that she was pregnant, became hostile and

overbearing toward MS. RODRIGUEZ.

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148. MR. AYENDE and Jennifer Norton also began directly

and indirectly accusing MS. RODRIGUEZ of lying about how far along she

was in her pregnancy.

149. DR. PASWELL was present when a number of these

accusations against MS. RODRIGUEZ were made, but did nothing to stop

them.

150. In the presence of DR. PASWALL, MR. AYENDE also

told MS. RODRIGUEZ, “You’re too big! You must be having twins. Right

Dr. Paswall?,” and DR. PASWALL said he agreed.

151. MR. AYENDE was so obsessed with the idea that MS.

RODRIGUEZ was lying about how many months pregnant she was, that he

ordered her to go to an imaging center and bring him proof of how many

months she was pregnant.

152. MS. RODRIGUEZ, responded that she would make an

appointment with her doctor.

153. MR. AYENDE replied, “No! Dr. Sawlani [a G.E.B.

employee] is going to refer you to an imaging center and we are going to

see if you’re actually 5 or 5½ months pregnant. There is no way! You’re

actually further along and you are too big!”

28

154. That night MR. AYENDE told MS. RODRIGUEZ to call

Dr. Sawlani so that he could tell her which imaging center she should report

to, and Dr. Sawlani told her that he would speak to her the next day.

155. The next day Dr. Sawlani referred MS. RODRIGUEZ to

Doshi Diagnostics, and she made the appointment.

156. Shortly thereafter, MR. AYENDE informed MS.

RODRIGUEZ that the results of the diagnostic test were back, and that they

confirmed the correctness of what she had told them about the status of her

pregnancy.

157. Upon information and belief, Defendants’ mistreatment

of MS. RODRIGUEZ sent a signal to Jennifer Norton and other G.E.B.

employees that MS. RODRIGUEZ was no longer a valued member of the

G.E.B. workforce.

158. When MS. RODRIGUEZ complained to MR. AYENDE

about how rudely Jennifer Norton (who was not pregnant or known to be

pregnant) was treating her, MR. AYENDE responded, “That’s just how

Jennifer is. Don’t take it personal.” When MS. RODRIGUEZ asked MR.

AYENDE whether it would be acceptable for her to speak rudely to Jennifer

Norton, MR. AYENDE responded, “No, because if you do it you’re just

trying to be a bitch towards her.”

29

159. MR. AYENDE also began to openly ridicule MS.

RODRIGUEZ’S for being pregnant.

160. In or about February 2007, MS. RODRIGUEZ overheard

MR. AYENDE telling co-workers, “Don’t tell Melissa we’re ordering

food.”

161. In or about February 2007, MR. AYENDE told MS.

RODRIGUEZ that she was “too big to fit into the room” and “soon you

won’t be able to fit in the front office and the filing room.”

162. On or about March 5, 2007, MR. AYENDE called MS.

RODRIGUEZ into DR. PASWALL’S office.

163. MS. RODRIGUEZ entered DR. PASWALL’S office,

where DR. PASWALL and MR. AYENDE were waiting, and was fired.

164. DR. PASWALL told MS. RODRIGUEZ, in words or

substance, “You’re a great employee. You’re hard working. But the reason

we have such a high turnover here is that we expect more. Right now you

can’t produce more. You should think about working for an office with one

or two doctors.”

165. MS. RODRIGUEZ asked what they meant by all that,

and she told them they were firing her for being pregnant.

30

166. MR. AYENDE and DR. PASWALL denied that her

pregnancy was the reason she was being fired.

167. MS. RODRIGUEZ was replaced by an employee who,

on information and belief, was not pregnant or who was not known to be

pregnant.

The Administrative Proceedings

168. In May 2007, MS. DAVIS filed a charge alleging

unlawful discrimination on the basis of sex and pregnancy with the New

York State Division of Human Rights (“SDHR”).

169. In June 2007, MS. RODRIGUEZ filed a charge alleging

unlawful discrimination on the basis of sex and pregnancy with the SDHR.

170. In June 2007, MS. SANTANA filed a charge alleging

unlawful discrimination on the basis of sex, pregnancy and race with the

SDHR.

171. On June 27, 2007, MS. DAVIS and MS. RODRIGUEZ

attended a fact-finding conference at SDHR, which Defendants attended and

participated in as well.

31

172. On August 14, 2007, SDHR issued “Probable Cause”

determinations with respect to the administrative complaints filed by MS.

DAVIS, MS. SANTANA and MS. RODRIGUEZ.

173. Thereafter, at Plaintiffs’ request, Plaintiffs’

administrative remedies were annulled so Plaintiffs could commence a civil

action in court.

Defendants’ Attempt to Intimidate and Manipulate a Key Witness

174. Upon information and belief, SDHR contacted

Defendants’ billing supervisor, Talitha Crespo, to ask her if she told MS.

RODRIGUEZ that MS. DAVIS and MS. SANTANA were fired because

they were pregnant.

175. Upon information and belief, Ms. Crespo denied having

told MS. RODRIGUEZ that MS. DAVIS and MS. SANTANA were fired

for being pregnant.

176. Upon information and belief, SDHR then contacted

Monica Eadie, a disinterested witness who was present when Talitha Crespo

told MS. RODRIGUEZ that MS. DAVIS and MS. SANTANA were fired

for being pregnant.

32

177. Ms. Eadie admitted to SDHR that she was present when

Ms. Crespo made the statement in question to MS. RODRIGUEZ.

178. Upon information and belief, DR. PASWALL and MR.

AYENDE later learned that Ms. Eadie admitted to SDHR that she was

present when Ms. Crespo said that MS. DAVIS and MS. SANTANA were

fired for being pregnant.

179. Upon information and belief, Defendants then took

immediate steps to intimidate Ms. Eadie for having been truthful when

contacted by SDHR.

180. Upon information and belief, knowing that Monica Eadie

was economically dependent on her employer (Dr. Steven Diamond), DR.

PASWALL and/or MR. AYENDE falsely told Dr. Diamond that MS.

RODRIGUEZ was pressured by Monica Eadie to file a pregnancy

discrimination complaint with SDHR, and that MS. RODRIGUEZ allegedly

“confessed” that her pregnancy discrimination claim was false.

181. Defendants’ statement to Dr. Diamond was outrageous,

manipulative and unequivocally false, and tantamount to an admission of

guilt on Defendants’ part.

182. Upon information and belief, upon hearing these false

allegations Dr. Diamond became angry with Ms. Eadie.

33

183. Upon information and belief, MR. AYENDE told Ms.

Eadie and Dr. Diamond that Ms. Eadie was not allowed to speak with

anyone employed by G.E.B.

184. Upon information and belief, Ms. Eadie then contacted

MS. RODRIGUEZ to ask whether it was true that she had been lying and

had “confessed” that her discrimination complaint was false.

185. MS. RODRIGUEZ then informed Ms. Eadie that what

G.E.B. said was unequivocally false.

186. MS. RODRIGUEZ then contacted SDHR regarding

Defendants’ witness intimidation and manipulation.

187. Upon information and belief, SDHR then contacted MR.

AYENDE and/or DR. PASWALL and warned him or them to cease

engaging in such behavior.

34

FIRST CAUSE OF ACTION

SEX AND PREGNANCY DISCRIMINATION IN VIOLATION OF THE

NEW YORK CITY HUMAN RIGHTS LAW

188. Plaintiffs repeat and reallege the allegations of

paragraphs 1-187 herein.

189. On information and belief, G.E.B. has, and has had at all

material times herein, at least four persons in its employ.

190. On information and belief, G.E.B. is and was at all

material times herein: (A) a “person” under NYCHRL § 8-102(5); (B) an

“employer” under NYCHRL § 8-102(1); (C) a “place or provider of public

accommodation” under NYCHRL § 8-102(9); (D) a “covered entity” under

NYCHRL § 8-102(17); (E) an “agent” under NYCHRL § 8-107(1); and (F)

an “aid[or]” and “abet[tor]” under NYCHRL § 8-107(6).

191. At all material times herein, DR. PASWALL was an

employer of Plaintiffs, and had at least four persons working in his employ.

192. On information and belief, DR. PASWALL is and was at

all material times herein: (A) a “person” under NYCHRL § 8-102(5); (B) an

“employer” under NYCHRL § 8-102(1); (C) a “provider of public

accommodation” under NYCHRL § 8-102(9); (D) a “covered entity” under

NYCHRL § 8-102(17); (E) an “employee” or “agent” of Plaintiffs’

35

employer under NYCHRL § 8-107(1); and (F) an “aid[or]” and “abet[tor]”

under NYCHRL § 8-107(6).

193. On information and belief, MR. AYENDE is and was at

all material times herein: (A) a “person” under NYCHRL § 8-102(5); (B) a

“covered entity” under NYCHRL § 8-102(17); (C) an “employee” or

“agent” of Plaintiffs’ employer under NYCHRL § 8-107(1); and (D) an

“aid[or]” and “abet[tor]” under NYCHRL § 8-107(6).

194. NYCHRL § 8-107, et seq. makes it unlawful for any

employer or an employee or agent thereof, because of sex or a sex-specific

condition (such as pregnancy), to discharge an individual or otherwise

discriminate against an employee in the terms, conditions or privileges of

employment.

195. Discrimination based on gender includes discrimination

based on stereotypes about the ability of pregnant women and women with

actual or prospective caregiving responsibilities to serve as dedicated and

competent members of the workforce.

196. Plaintiffs were subjected to disparate treatment in their

employment and later terminated because Defendants embraced outdated

and inaccurate stereotypes about the ability of pregnant women to serve as

competent and dedicated members of the workforce.

36

197. As a result of their prejudices, Defendants viewed

Plaintiffs not for who they are, or how well they performed, but through a

discriminatory “lens” that magnified their real or perceived shortcomings

and minimized their contributions.

198. There are no comparable stereotypes about the ability of

non-pregnant female employees or male employees who are expecting

fathers to participate in the workforce.

199. Defendants, in treating Plaintiffs differently than their co-

workers, have engaged in sex and/or sex-plus pregnancy discrimination.

200. Defendants knew, and should have known, that Plaintiffs

were subjected to unfair and discriminatory treatment, but did nothing to

remedy the problem, and, in fact, carried out, condoned and ratified the

discriminatory acts against Plaintiffs as set forth herein.

201. DR. PASWALL and MR. AYENDE directly endorsed

and participated in the disparate treatment of Plaintiffs.

202. There was no practical pre-termination avenue of

complaint for Plaintiffs.

203. MS. SANTANA’S resulting injuries include, but are not

limited to, loss of employment, economic dislocation, physical and mental

37

anguish, stress, sleeplessness, loss of appetite, loss of self esteem,

depression, inability to concentrate, and shame and humiliation.

204. MS. DAVIS’S resulting injuries include, but are not

limited to, loss of employment, economic dislocation, physical and mental

anguish, stress, fear of becoming pregnant again, depression, irritability,

inability to concentrate, and shame and humiliation.

205. MS. RODRIGUEZ’S resulting injuries include, but are

not limited to, emotional and physical anguish and distress, loss of

employment, economic dislocation, shame, stress, fear of becoming

pregnant again, depression, irritability, inability to concentrate, and

humiliation.

206. As a result of the foregoing, Plaintiffs have been

damaged in an amount to be determined at trial, but which is believed to be

not less than $1,000,000 each, and for which Defendants are liable.

207. In addition, Defendants’ conduct was so willful, wanton

and inimical to the public interest that punitive damages should be imposed

in an amount sufficient to deter such serial misconduct in the future, and to

deter other employers from willfully engaging in sex discrimination and

firing employees for becoming pregnant.

38

SECOND CAUSE OF ACTION

SEX AND PREGNANCY DISCRIMINATION IN VIOLATION OF THE

NEW YORK STATE HUMAN RIGHTS LAW (Pleaded in the Alternative)



209. In the event this claim is inconsistent with Plaintiffs’ first

cause of action, it is pleaded in the alternative, but only in the event of and to

the extent of such inconsistency.

210. On information and belief, G.E.B. is and was at all

material times herein: (A) a “person” under NYSHRL § 292(1); (B) an

“employer” under NYSHRL § 292(5); and (C) a “place or provider of public

accommodation” under NYSHRL § 292(9).

211. On information and belief, DR. PASWALL is and was at

all material times herein a “person” under NYSHRL § 292(1), and an

“employer” under NYSHRL § 292(5).

212. On information and belief, MR. AYENDE is and was at

all material times herein a “person” under NYSHRL § 292(1).

213. NYSHRL § 296(1)(a) makes it unlawful for any

employer or an employee or agent thereof, because of sex or a sex-specific

39

condition (such as pregnancy), to discharge or otherwise discriminate

against an employee in the terms, conditions or privileges of employment.

214. As a result of Defendants’ unlawful discriminatory

conduct as aforesaid, Plaintiffs have been damaged in an amount to be

determined at trial, but which is believed to be not less than $1,000,000

each, and for which Defendants are liable.

THIRD CAUSE OF ACTION

SEX, PREGNANCY AND RACE/ETHNICITY DISCRIMINATION IN VIOLATION OF THE NEW YORK CITY HUMAN RIGHTS LAW



216. MS. SANTANA is a dark-skinned woman of Dominican

descent.

217. MS. DAVIS is a dark-skinned woman of African

descent.

218. MS. RODRIGUEZ is a dark-skinned Hispanic woman of

Dominican and Puerto Rican descent.

219. DR. PASWALL is Caucasian male.

40

220. MR. AYENDE is a light-skinned male of Puerto Rican

descent who is closely allied with DR. PASWALL.

221. Defendants’ pregnancy-based stereotypes often

converged with, or were otherwise made worse by, their negative

stereotypes about persons (and women in particular) who are African-

Americans or dark-skinned Hispanics.

222. Defendants’ negative stereotypes about such minorities

(and such minority women in particular) were evidenced by, among other

things, the following actions and/or comments directed at MS. SANTANA.

223. Throughout MS. SANTANA’S employment, MR.

AYENDE made a number of disparaging and stereotypical comments about

Dominicans to MS. SANTANA.

224. DR. PASWALL appeared to echo these sentiments in

June 2006 when he saw MS. SANTANA speaking to two co-workers when

she was on her way back to the office from lunch, at which time DR.

PASWALL smiled and told MS. SANTANA, “You Dominicans are all the

same. You talk too much. You don’t shut up. Get back to work.”

225. In addition, while DR. PASWALL was standing a few

feet behind MS. SANTANA, and MR. AYENDE was standing a few feet in

front of her, a G.E.B. employee (Jennifer Norton) who wrongly perceived

41

herself as having been slighted, exploded in a rage and screamed “GHETTO

BITCH!” at MS. SANTANA.

226. DR. PASWALL and MR. AYENDE stood by idly and

failed to discipline or even admonish Ms. Norton.

227. In a conversation between MR. AYENDE and a worker

from another office on that floor about why a pregnant GEB employee (MS.

SANTANA) was just fired, MR. AYENDE said the woman who was fired

(MS. SANTANA) was “ghetto.”

228. Defendants’ negative stereotypes about such racial and

ethnic minorities (and such minority women in particular) were also

evidenced by, among other things, the following actions and/or comments

directed at MS. DAVIS.

229. DR. PASWALL told MS. DAVIS during her interview,

“you don’t look like you could survive on unemployment,” an otherwise

inexplicable comment which seems to imply that African-Americans are (A)

prone to going on unemployment, and (B) poor in general, and, in MS.

DAVIS’S case, too poor to afford adequate child care while remaining a

productive member of in the workforce.

230. In addition, during the workday DR. PASWALL once

made a point of telling MS. DAVIS that he has black friends, and that he

42

was in McDonald’s with one of black friends when a black man approached

his friend to give him some music CDs but did not give any to DR.

PASWALL.

231. An awkward silence followed this comment, as MS.

DAVIS could not understand why DR. PASWALL was complaining about

this to her.

232. DR. PASWALL’S lament about this incident came “out

of the blue,” and almost certainly would not have been made to her if she

were white.

233. Like the “survive on unemployment” comment DR.

PASWALL made to MS. DAVIS during her interview, DR. PASWALL’S

misplaced lament to MS. DAVIS about the disrespect he was shown by a

black person strongly suggests that DR. PASWALL viewed MS. DAVIS

less favorably on account of her skin color than he would have if she were

white.

234. Defendants’ negative stereotypes about persons (and

women in particular) who are African-Americans or dark-skinned Hispanics

were also evidenced by, among other things, the following actions and/or

comments directed at MS. RODRIGUEZ.

43

235. MR. AYENDE once asked MS. RODRIGUEZ “What is

the one thing you have in your purse that you never leave the house

without?” MS. RODRIGUEZ replied, “I don’t know, a mirror?,” to which

MR. AYENDE responded “No, a knife. Don’t you have a knife in your

purse? I thought all Spanish women carried knives.”

236. MS. RODRIGUEZ, who was raised in a Spanish-

speaking household and was taking ESL classes, was also needlessly

ridiculed directly by MR. AYENDE (and, upon information and belief,

behind her back by DR. PASWALL) for the occasional verbal mistakes or

mispronunciations that occurred because English was not her first language.

237. In addition, MR. AYENDE’S discriminatory statement

“Is the father around?” (which was itself prompted by a discriminatory

remark from DR. PASWALL after seeing a photo of MS. RODRIGUEZ’S

daughter on her desk), reflects the stereotype that Hispanic women with

children are likely to be single mothers, and the related stereotype that single

mothers are not dependable employees.

238. That discriminatory mentality was reiterated by MR.

AYENDE when he asked MS. RORIGUEZ if her husband was the one who

had impregnated her.

44

239. The convergence of Defendants’ race-, sex- and

pregnancy-based stereotypes operated to deprive Plaintiffs of the

opportunity to be judged based on individual merit, free from unlawful

discrimination, and, as a result, Plaintiffs were unlawfully discriminated

against and terminated at a time when they were especially vulnerable.







deter other employers from willfully engaging in such unlawful

discrimination.

45

FOURTH CAUSE OF ACTION

ACTUAL OR PERCEIVED DISABILITY DISCRIMINATION IN VIOLATION OF THE

NEW YORK CITY HUMAN RIGHTS LAW



243. In the event this claim is inconsistent with any prior

claim herein, it is pleaded in the alternative, but only in the event of and to

the extent of such inconsistency.

244. Pregnancy is considered a disability under the NYCHRL.

245. NYCHRL § 8-107(1)(a) makes it unlawful for “an

employer or an employee or agent thereof, because of the actual or

perceived…disability…of any person, …to discharge from employment

such person or to discriminate against such person in compensation or in

terms, conditions or privileges of employment.”

246. Upon information and belief, Defendants erroneously

perceived Plaintiffs as being disabled as a result of their pregnancies (and, in

the case of MS. SANTANA, as a result of her pregnancy and/or anemia and

anemia-related conditions of which Defendants became fully aware).

46

247. As a result such discrimination (and, if applicable, the

other forms of unlawful discrimination alleged herein), Defendants

unlawfully discriminated against Plaintiffs in the workplace and fired them.

248. In the alternative, in the event Plaintiffs actually were

“disabled” on account of their pregnancies (and, in the case of MS.

SANTANA, as a result of her pregnancy and/or anemia), Defendants failed

to provide them with reasonable accommodations (as they would have done

for employees with comparable or more severe disabilities), and chose

instead to unlawfully discriminate against them and fire them.

249. Defendants also engaged in prohibited disability

discrimination by requiring MS. RODRIGUEZ to submit to a medical

examination to determine how far along she was in her pregnancy.







deter other employers from willfully engaging in disability discrimination

and other forms of prohibited discrimination.

Documents

SUPREME COURT OF THE STATE OF NEW YORK …origin-states.politico.com.s3-website-us-east-1.amazonaws.com/... · MARLENA SANTANA, YASMINDA DAVIS or MELISSA RODRIGUEZ, and continued