Scalercio-Isenberg v. Morgan Stanley

Background

Sherry Scalercio-Isenberg brought the action pro se against Morgan Stanley Services Group Inc., Matthew Dziedzic, James P. Gorman, Jeff Brodsky, and Kerrie R. Heslin. She alleged that Morgan Stanley failed to hire her because of her age, gender, and physical disability, and that defendants retaliated after she complained about the alleged discrimination. She asserted claims under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the New York State Human Rights Law, and the New York City Human Rights Law.

Scalercio-Isenberg alleged that she applied for numerous Morgan Stanley positions but never received an interview. She said that, after a later application was rejected, she sent several emails seeking an explanation and complained about what she viewed as gender discrimination and unethical conduct. Morgan Stanley then sent her a cease-and-desist letter, stating that her communications were abusive, disparaging, and disruptive and that she was not eligible for future positions.

Defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), which concerns subject-matter jurisdiction, and Rule 12(b)(6), which concerns whether a complaint adequately states a legal claim.

New York State and City Claims’ Geographic Scope

The court denied the argument that the New York State and New York City Human Rights Law claims had to be dismissed for lack of geographic impact. Although Scalercio-Isenberg alleged that she lived in New Jersey, she alleged that the discriminatory failure to hire concerned a position with Morgan Stanley’s New York office. The court concluded that this alleged impact in New York was sufficient to defeat the Rule 12(b)(1) challenge.

Age, Gender, and Disability Claims

The court nevertheless held that the complaint did not adequately plead discrimination under Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act, or the New York State and New York City laws.

For the age and gender claims, the court found that Scalercio-Isenberg did not allege facts supporting an inference that Morgan Stanley’s decision was based on her gender. Her multiple applications, the quick rejection of her latest application, and her possible identification as a woman in the application process did not supply the required connection between her gender and the hiring decision. The court also found that she did not allege facts showing Morgan Stanley knew her age when it decided not to hire her. A comment by recruiter Victoria Heimann about age and experience was not enough to show that age was the required cause of the decision.

For the disability claims, the court found that the alleged hiring decision occurred before Scalercio-Isenberg told Alison Guerzon about her disability. The application portal did not collect disability information, and Scalercio-Isenberg did not allege that any defendant saw her walk or otherwise learned of her disability before the hiring decision. The court therefore found that she had not adequately alleged that Morgan Stanley knew of her disability when it decided not to hire her.

The court applied the New York City Human Rights Law’s separate standard, which asks whether the plaintiff was treated less well at least partly because of a protected trait. It found that the complaint did not allege facts showing that Scalercio-Isenberg was treated less well than other applicants because of a protected trait.

Retaliation Claims

The court dismissed the retaliation claims under Title VII, the New York State Human Rights Law, and the New York City Human Rights Law. For the federal and state claims, the court found that the complaint did not plausibly show that Scalercio-Isenberg had engaged in protected activity—that is, opposition to conduct she reasonably believed was unlawful discrimination. She alleged no negative comments about a protected trait and no facts connecting the hiring decision to discrimination.

For the city-law retaliation claim, the court also found no plausible allegation that the cease-and-desist letter was motivated by discrimination or retaliation. The complaint itself described repeated emails to Morgan Stanley employees, including its president and chief executive officer, and the letter stated that it was intended to stop allegedly abusive and disruptive communications.

Individual Defendants

The court held that the individual defendants could not be held personally liable under Title VII, the Americans with Disabilities Act, or the Age Discrimination in Employment Act. It also held that Kerrie Heslin, described as Morgan Stanley’s outside counsel, could not be individually liable under the New York State Human Rights Law because the complaint did not allege that she had the ownership or hiring-and-firing authority required for that type of liability. Because the complaint did not adequately allege discrimination, the court found no basis for individual liability under the New York State or New York City laws either.

Disposition

The court granted defendants’ motion to dismiss. It granted Scalercio-Isenberg leave to file an amended complaint by January 21, 2020, to attempt to cure the deficiencies identified in the opinion. The court stated that if she did not file an amended complaint by that date, the action would be dismissed with prejudice. The Clerk was directed to close the motion at Docket Number 8.