Johnson v. The Stop & Shop Supermarket Company, LLC

Background

Diana Johnson sued The Stop & Shop Supermarket Company, LLC, doing business as Stop & Shop; Jeff Richards; and Jennifer Tamburri. She alleged that Richards subjected her to sexually suggestive comments, gestures, physical contact, and physical assaults while they worked at a Stop & Shop store in Danbury, Connecticut. Johnson alleged that she reported the conduct to store managers, including Tamburri, but that Stop & Shop did not adequately respond.

Johnson further alleged that, after she complained, she was placed on paid leave and involuntarily transferred to Stop & Shop stores in Connecticut and New York. She alleged that her work hours were greatly reduced at the New York stores and that she worked under poor conditions at the Somers, New York store. She later resigned. Her second amended complaint asserted Title VII gender-discrimination, hostile-work-environment, and retaliation claims; similar claims under the New York State Human Rights Law; a New York State Human Rights Law aiding-and-abetting claim against Tamburri; and New York and Connecticut assault and battery claims against Richards. The opinion states that the Title VII claims were not challenged by these motions.

Motions and analysis

Stop & Shop moved under Rule 12(b)(6), which tests whether a complaint states a legally sufficient claim. The individual defendants moved under Rule 12(b)(2), which tests personal jurisdiction, and Rule 12(b)(6).

Richards and personal jurisdiction

The court granted the individual defendants’ Rule 12(b)(2) motion as to Richards. Johnson alleged only that Richards lived in New York or Connecticut. Richards submitted an unrebutted declaration stating that he lived in Connecticut, had never lived in New York, generally did not conduct business there, and had only stayed overnight at a New York hotel in October 2023. The court found no basis for general or specific personal jurisdiction under New York’s long-arm statute. It therefore dismissed Johnson’s civil assault and battery claim against Richards for lack of personal jurisdiction.

NYSHRL retaliation claim against Stop & Shop

The court denied Stop & Shop’s motion to dismiss Johnson’s New York State Human Rights Law retaliation claim. Although much of the alleged harassment occurred in Connecticut, Johnson alleged that she was transferred to New York stores against her will and suffered greatly reduced hours there soon after complaining about the conduct. The court held that these allegations plausibly showed an adverse employment action affecting the terms and conditions of her employment in New York and supported a possible causal connection between her complaints and the reduced hours.

NYSHRL hostile-work-environment claim against Stop & Shop

The court granted Stop & Shop’s motion to dismiss Johnson’s New York State Human Rights Law hostile-work-environment claim. Under the court’s analysis, the gender-based harassment occurred at the Danbury, Connecticut store. Johnson alleged that her New York employment was affected by reduced hours, transfers, and poor working conditions, but she did not allege facts showing that the New York conduct was because of her gender. The court also rejected using the alleged New York retaliation to establish a New York hostile-work-environment claim based on the Connecticut harassment.

NYSHRL aiding-and-abetting claim against Tamburri

The court denied the individual defendants’ motion to dismiss Johnson’s New York State Human Rights Law aiding-and-abetting claim against Tamburri. The court found that Johnson plausibly alleged Tamburri’s direct and purposeful participation in the alleged retaliation. In particular, Johnson alleged that Tamburri told her she was out of the deli and could no longer work in Tamburri’s store after Johnson reported the harassment, followed by involuntary transfers and reduced hours.

Disposition

The court concluded that it granted in part and denied in part both Stop & Shop’s motion and the individual defendants’ motion. Johnson’s NYSHRL retaliation claim against Stop & Shop and NYSHRL aiding-and-abetting claim against Tamburri survived. The NYSHRL hostile-work-environment claim was dismissed under Rule 12(b)(6), and the assault and battery claim against Richards was dismissed under Rule 12(b)(2). Because this was the first adjudication of those claims, both dismissals were without prejudice. Johnson was given 30 days to file a third amended complaint containing all claims, defendants, and factual allegations she wished the court to consider. Judge Kenneth M. Karas directed the Clerk to terminate the pending motions and scheduled a telephonic status conference for May 17, 2024.