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Cohen v. FGX International Inc.

United States District Court, D. Rhode Island

June 17, 2019

Sheryl Cohen, Plaintiff,
FGX International Inc., Anthony Di Paola, individually and as CEO and President; John Flynn Jr., individually and as former President; and Jeffrey J. Giguere, individually and as General Counsel and Secretary, Defendants/Respondents.



         On March 20, 2019, the parties appeared before the Court for a hearing on the Defendants'[1] Motion to Dismiss Plaintiff's Amended Complaint, ECF No. 6 (“Defs.' Mot.”). The Court subsequently entered an order that granted Defendants' motion. See 3/28/2019 Text Order. This memorandum explains why. I. Background The Amended Complaint presents a farrago of factual allegations, conclusory assertions, and subjective characterizations across forty-three pages and more than 250 paragraphs. The Court has tried its utmost to understand the pleading's jumbled narrative. The recitation that follows accepts as true the Amended Complaint's well-pled facts while according its conclusory assertions and vituperations no weight. See A.G. ex rel. Maddox v. Elsevier, Inc., 732 F.3d 77, 80 (1st Cir. 2013); Barrington Cove Ltd. P'ship v. R.I. Hous. & Mortg. Fin. Corp., 246 F.3d 1, 5 (1st Cir. 2001).

         Plaintiff Sheryl Cohen pleads twelve claims under three statutes: the Rhode Island Civil Rights Act (“RICRA”), R.I. Gen. L. § 42-112-1 et seq.; the Rhode Island Whistleblowers' Protection Act (“RIWPA”), R.I. Gen. Laws § 28-50-1 et seq.; and the Federal Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 215 et seq. The claims under each statute are premised on substantially same set of factual allegations. These include that the Defendants: (1) subjected Cohen to discriminatory terms and conditions of employment (Count I); (2) created an unlawful hostile work environment (Counts II, VI-VIII); (3) retaliated against Cohen for making protected complaints about compensation by denying her pay raises (Counts III-V); and (4) unlawfully terminated her employment by forcing her to resign, i.e. constructive discharge (Counts IX-XII).

         All of Cohen's claims arise out of her work for Defendant FGX International, Inc. See generally Am. Compl. The company employed Cohen an executive assistant for nearly a decade. See Am. Compl. ¶ 8. In March 2014, Cohen's supervisors required her to take on the duties of another executive assistant who left the company. Id. ¶¶ 70-72. To cope with the increased workload, Cohen requested that FGX hire a replacement for her colleague or otherwise provide support from a temporary employment agency. Id. ¶ 72. The Defendants opted for the latter measure. Id. ¶¶ 91, 94-95. Cohen nevertheless found that training temporary workers further strained her capacity. Id. ¶¶ 97-99.

         Four months after FGX expanded Cohen's role, she asked for a merit-based raise. Id. ¶ 122. Her request was denied. Id. Cohen met with the company's general counsel, Jeffrey Giguere, to discuss concerns related to FGX's decision. Id. ¶ 108. She expressed frustration with the refusal of her supervisor, Defendant John Flynn, Jr., to address her rationale for a merit-based raise and her belief that she was entitled to premium pay for overtime hours. Id. ¶¶ 108-111. According to Cohen, Giguere and a human resources executive vice president, Joanne Morelli, independently admitted that she was entitled to overtime pay. Id. ¶¶ 112, 114. Both promised to take corrective action. Id. ¶¶ 112, 114. Around this same time, Cohen made a presentation to FGX's Chief Executive Officer, Anthony DiPaola, in support of her merit-based raise request. Id. ¶¶ 135-36. DiPaola listened to the presentation, thanked Cohen, and indicated he needed time to consider her request. Id. ¶¶ 135.

         Cohen waited until July 1, 2014 before making a second request for a raise. Id. ¶ 123. She made her request directly to DiPaola; it was again denied. Id. ¶¶ 137-140. This time, however, she alleges that DiPaola, “threw up his hands, glared at [her], and yelled loudly . . . ‘I am not giving you more money. Go find another job.'” Id. ¶ 140. Fearing what she described as “more intense retaliatory anger or rage, ” id. ¶ 158, Cohen responded by writing a note that she hand-delivered to Morelli that same day. Id. ¶¶ 177, 185; Defs.' Mem. of Law In Support of Mot. to Dismiss Am. Compl., Ex. A, ECF No. 6-3 (“7/1/2014 Letter”).[2] The note, which Cohen addressed to Flynn and DiPaola, stated:

I would like to inform you that I am resigning from my position as Executive Assistant, effective July 15, 2014.
Thank you for the opportunities that you have provided me during the last 9 years. I have enjoyed working for FGX & appreciate the support provided me during my tenure with the company.

7/1/2014 Letter at 1. Morelli took the note and said, “I understand. If they make you feel uncomfortable let me know.” Id. at ¶ 186. “I will look into this, ” she added. Id. Cohen alleges that, despite her missive's language, her exchange with Morelli “made clear . . . that [she] needed [Morelli] to help save her job, ” and that she “really did not want to leave FGX.” Id. ¶ 185.

         Cohen claims colleagues largely stopped communicating with her after her interaction with Morelli. Id. ¶ 196. For example, she perceived that employees ceased greeting her as they passed her desk, which she found “very insulting and very cruel . . . .” Id. ¶¶ 194, 198. Similarly, in contrast with prior years, she was largely ignored on her birthday. Id. ¶¶ 204-207. Cohen concludes from the uniformity of her colleagues' behavior that Defendants in fact ordered employees to ostracize her. Id. ¶ 198. She tolerated this atmosphere for eight days before she alleges it started taking a physical toll; she left at mid-day on July 8, 2014. Id. ¶¶ 212, 215. She characterizes her departure as a constructive discharge. See, e.g., id. ¶ 215.

         Years later, on July 10, 2017, Cohen filed the first iteration of this action in the Rhode Island Superior Court. Compl. ¶ 17, ECF No. 1-1. The Complaint brought claims under RICRA and RIWPA Id. The Superior Court conditionally dismissed the action on the grounds that (1) the Complaint “contain[ed] no factual assertions that stat[ed] a claim”; and (2) Cohen failed to serve two of the named defendants, but nevertheless granted Cohen leave to amend. Order, Cohen v. FGX Int'l, Inc., Civil Action No. PC-2017-3209 (R.I. Super. Ct. June 22, 2018). Cohen re-filed, adding a claim under FLSA. Defendants seized this opportunity to remove the action to this Court and again moved to dismiss.

         II. Legal Standard

         To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a plaintiff must allege “sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A two-step analysis governs such a determination. First, the Court must “distinguish the complaint's factual allegations (which must be accepted as true) from its conclusory legal allegations (which need not be credited).” Cardigan Mountain Sch. v. N.H. Ins. Co., 787 F.3d 82, 84 (1st Cir. 2015) (quoting García- Catalán v. United States, 734 F.3d 100, 102 (1st Cir. 2013) (quotation marks omitted)). Second, the Court must “determine whether the factual allegations are sufficient to support the reasonable inference that the defendant is liable . . . .” Id.

         III. Discussion

         Defendants press many grounds for dismissal. The Court, however, need only address three: (1) whether any of Cohen's claims are barred by the applicable statutes of limitations; (2) whether Cohen's FLSA claim relates back to her filing of her July 2017 pleadings; and (3) whether Cohen plausibly state claims under RICRA and RIWPA. See Defs.' Mot. 3.

         A. Application of the Statutes of Limitation

         i. Cohen's RICRA Hostile Work Environment and ...

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