Opinion
00 CIV. 8629 (DLC)
June 12, 2001
John Walshe, John Walshe Associates New York, NY, attorney for Plaintiff.
Mara B. Levin, Herrick, Feinstein LLP New York, N.Y. attorney for Defendant.
OPINION AND ORDER
In his complaint, filed November 9, 2000, plaintiff Elpidio J. Caesar ("Caesar") asserts that defendants Interoute Telecommunications, Inc. ("Interoute"), its former subsidiary Vista Telecom, Inc. ("Vista"), and Interoute's Chief Executive Officer James Sever ("Sever") discriminated against him on the basis of his race and national origin — he identifies himself as an Hispanic from the Dominican Republic — in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), when they terminated his employment. Plaintiff also asserts violations of New York's Executive Law § 290 et seq., and the Employment Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq.
Defendants have moved to dismiss all claims except the Title VII claims against Vista, and to transfer venue over that remaining claim to the Southern District of Texas. For the reasons set forth below, defendants' motion is granted.
BACKGROUND
The facts as alleged by the plaintiff are as follows. Caesar is a resident of Texas and was employed there as a regional sales director by Vista, a telecommunications provider which is no longer operating. Vista was a subsidiary of Interoute, a Delaware corporation with its principal place of business in New York. When Caesar worked at Vista, Sever was actively involved in the day to day management and functions of Vista as Interoute's Chief Operating Officer.
Caesar was discharged from Vista on March 3, 1999, following a conversation that he alleges occurred between a regional vice president of Vista and Interoute's director of human resources. He was replaced by Jesse Adams, a 50-year-old African-American man.
On March 31, 1999, Caesar filed a Charge of Discrimination ("Charge") with the Houston District Office of the Equal Employment Opportunity Commission ("EEOC") against Vista; Caesar did not name Interoute or Sever. On or about August 10, 2000, plaintiff received a right to sue letter from the EEOC.
DISCUSSION
The plaintiff has requested that the Court "suspend the operation" of a settlement agreement entered into between one of his affiants, the former Interoute director of human resources, and Interoute. The settlement agreement contains a nondisparagement clause and a confidentiality provision. As the Court's decision is based upon allegations in the complaint and supplementary materials only to the extent that they relate to subject matter jurisdiction and venue, access to information covered by the settlement agreement is unnecessary.
Defendants move to dismiss the Title VII claims against Sever and Interoute. Plaintiff concedes that there is no individual liability under Title VII. Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000). Accordingly, plaintiff's Title VII claim against Sever is dismissed.
Interoute argues that the Court does not have subject matter jurisdiction over plaintiff's Title VII claim against it because Interoute was not named as a defendant in Caesar's EEOC charge. "A complainant must file a charge against a party with the EEOC or an authorized state agency before the complainant can sue that party in federal court under Title VII." Vital v. Interfaith Med. Ctr., 168 F.3d 615, 619 (2d Cir. 1999). See 42 U.S.C. § 2000e-5 (e)(1); Johnson v. Palma, 931 F.2d 203, 209 (2d Cir. 1991).
On August 20, 1999, plaintiff filed a handwritten Charge Information Form with the EEOC which identified Interoute as the company that had discriminated against him because he was Hispanic American and over 40 years of age. Eleven days later, on August 31, 1999, plaintiff swore to a typewritten Charge of Discrimination which he filed with the EEOC. This Charge identified Vista as the employer who discriminated against him on the basis of his national origin. In his complaint, the plaintiff contends that Interoute, as the parent of his employer, had actual notice of the EEOC complaint. In opposition to this motion, plaintiff's counsel contends that Interoute is a properly named defendant in this action because of the identity of interest between Vista and Interoute.
Courts have permitted a plaintiff to sue an unnamed respondent in an EEOC charge when the named and unnamed parties have an "identity of interest." Vital, 168 F.3d at 619; Johnson, 931 F.2d at 209. In determining whether there is such an identity of interest, the Court must consider four factors:
1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; 2) whether, under the circumstances, the interests of a named [party] are so similar as the unnamed party's that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; 3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; 4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party.
Vital, 168 F.3d at 619 (quoting Johnson, 931 F.2d at 209). These factors support dismissal of the Title VII claim against Interoute.
It is not disputed that the plaintiff was aware of Interoute's relationship to his employer at the time he executed his August 31, 1999 EEOC Charge. Further, the interests of Interoute and Vista were not so similar that it was unnecessary to include Interoute in the EEOC Charge. Interoute, if named, may have been able to establish that it was not the plaintiff's employer and had no liability. Moreover, there is no allegation here that Interoute ever represented to the plaintiff that Vista was acting as its agent when Vista terminated the plaintiff's employment or that its own relationship with the plaintiff was to be conducted through Vista. One of the four factors, however, weighs in the plaintiff's favor — Interoute has not identified any actual prejudice to it from its failure to be named in the EEOC Charge.
As the plaintiff recognizes, Title VII requires plaintiffs to name the defendants in their EEOC complaints in order to provide notice to such defendants and give them an opportunity to take part in the EEOC's voluntary conciliation process. See Vital, 168 F.3d at 619 (citation omitted). Here, the formal EEOC Charge accused Vista of discrimination and did not put Interoute on notice of any allegation that it had also committed illegal acts. See Johnson, 931 F.2d at 209-10. Thus, even if Interoute learned of charges against Vista, it did not have notice of any claims against it and did not have the opportunity to take part in the EEOC proceedings.
Considering the four factors discussed above, there is not an identity of interest between Interoute and Vista which would allow Interoute to be properly named as a defendant in this action. Thus, the Court lacks subject matter jurisdiction over the Title VII claim against Interoute.
Because the Court does not have jurisdiction over the Title VII claims against Interoute, it does not reach the issue of whether Interoute is the plaintiff's employer for Title VII purposes.
B. New York Human Rights Law
Defendants also move to dismiss Caesar's claim under New York's Human Rights Law, N.Y. Exec. Law § 290, et seq. (McKinney 2001) ("NYHRL") because Caesar is not a New York resident. The complaint alleges that Caesar is a resident of Texas and that he was employed by Vista in Texas. When he was terminated, Caesar filed his EEOC claim with the Houston District Office of the EEOC.
The NYHRL applies to acts "committed outside this state against a resident of this state . . . if such action would constitute an unlawful discriminatory practice if committed within this state." N.Y. Exec. Law § 298-a (McKinney 2001) (emphasis supplied). The NYHRL "`does not provide a non-resident with a private cause of action for discriminatory conduct committed outside of New York,'" Ghandour v. American Univ. of Beirut, No. 97 Civ. 7741 (DC), 1998 WL 856114, at *1 (S.D.N Y Dec. 9, 1998) (citation omitted), even when committed by a New York corporation, Thomas v. Texaco, Inc., 998 F. Supp. 368, 371 (S.D.N.Y. 1998). As plaintiff is a resident of Texas and all of the relevant events took place in Texas, plaintiff's NYHRL claim is dismissed.
C. ERISA Claim
Defendants move to dismiss plaintiff's ERISA claim because, inter alia, the severance policy on which plaintiff relies for his ERISA claim does not qualify as an employee welfare benefit plan under ERISA. As an initial matter, the severance policy does not appear to have been in existence at the time of plaintiff's departure from Vista: it bears the date May 1999; plaintiff's employment was terminated in March 1999. In any event, the policy does not qualify as an employee benefit plan under ERISA.
Although the plaintiff did not attach a copy of Interoute's severance policy to the complaint, the defendants have included a copy of it with their motion to dismiss. The Court may refer to documents integral to the complaint in deciding a motion to dismiss. Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000).
The severance policy is a one page memorandum from the director of human resources to "All Site Managers," describing the severance pay for "employees being laid off." For example, "directors" who are laid off are entitled to two months severance pay. A single lump-sum severance payment program, however, is not an employee benefit plan under ERISA. As the Supreme Court has stated, "[t]he requirement of a one-time, lump-sum payment triggered by a single event requires no administrative scheme whatsoever to meet the employer's obligation. . . . To do little more than write a check hardly constitutes the operation of a benefit plan." Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 12 (1987). See James v. Fleet/Norstar Fin. Group, Inc., 992 F.2d 463, 467-68 (2d Cir. 1993) (employer's payment of sixty days salary following employees' last day of work did not create an employee welfare benefit plan under ERISA). Caesar's claim under ERISA is therefore dismissed.
D. Transfer of Venue
Defendants move to transfer venue to the Southern District of Texas pursuant to Rule 12(b)(3), Fed.R.Civ.P., and 28 U.S.C. § 1404. They argue that, once the claims against Sever and Interoute are dismissed, there is no connection to New York. Plaintiff asserts that non-party witnesses Vidal and Charles Eisenberg reside in New York, and that since Vista no longer operates, there is no reason to transfer the case to Texas.
Section 1404(a) of Title 28, United States Code, allows for a transfer of venue "[f]or the convenience of parties and witnesses, [and] in the interest of justice." Such motions are in the Court's discretion to grant or deny and are "`determined upon notions of convenience and fairness on a case-by-case basis.'" Hall v. South Orange, 89 F. Supp.2d 488, 493 (S.D.N Y 2000) (quoting In re Cuyahoga Equip. Corp., 980 F.2d 110, 117 (2d Cir. 1992)). Courts should, ordinarily, defer to plaintiff's choice of venue, but may give the plaintiff's choice of forum substantially less deference when the "`operative facts upon which the litigation is brought bear little material connection to the chosen forum.'" Berman v. Informix Corp., 30 F. Supp.2d 653, 659 (S.D.N.Y. 1998) (citation omitted); see also Invivo Research, Inc. v. Magnetic Resonance Equip. Corp., 119 F. Supp.2d 433, 438 (S.D.N.Y. 2001); ZPC 2000, Inc. v. SCA Group, Inc., 86 F. Supp.2d 274, 280 (S.D.N.Y. 2000).
To determine whether a transfer is warranted, the Court must first determine whether the case could have properly been brought in the transferee court. Berman, 30 F. Supp.2d at 656. If the transferee court appears to have jurisdiction over the case, the Court must next consider whether the transfer is appropriate based upon several factors:
(1) the convenience of witnesses, (2) the convenience of the parties, (3) the location of relevant documents and the relative ease of access to sources of proof, (4) the locus of operative facts, (5) the availability of process to compel the attendance of unwilling witnesses, (6) the relative means of the parties, (7) the forum's familiarity with the governing law, (8) the weight accorded the plaintiff's choice of forum, and (9) trial efficiency and the interest of justice, based on the totality of the circumstances.
Id. at 657.
It is undisputed that this case could have been brought in the Southern District of Texas. Vista maintained an office in Houston where the plaintiff was employed, and a substantial part of the events giving rise to the claim occurred there. See 28 U.S.C. § 1391 (b).
The EEOC claim was filed in the Houston District Office of the EEOC. The relevant witnesses for purposes of this litigation include the plaintiff, who resides in Texas; Santucci, who resides in Illinois; Raili Litos, Vista's former director of human resources who resides in California; and Jesse Adams, the employee who remained at Vista in the same position as Caesar after Caesar was laid off, who resides in Texas. Caesar has identified two potential witnesses that reside in New York, Vidal and Charles Eisenberg. As Vista no longer operates in Texas, it is unclear where the documents relevant to this case are located. Neither party, however, has asserted that there are any relevant documents in New York.
Since Vidal and Eisenberg have submitted affidavits in support of the plaintiff's claims, it appears that it will be unnecessary for the plaintiff to subpoena them to obtain their testimony.
At issue in this case are the actions taken by Vista in terminating Caesar's employment while he was the regional director of sales. All of Caesar's work related activities as well as his performance reviews occurred in Texas. Since Interoute is not a proper defendant in this action, New York has no connection to this case beyond the fact that two of plaintiff's potential witnesses reside in New York. Therefore, the locus of the operative facts is in the Southern District of Texas.
The interest in judicial efficiency and the interests of justice, based on the totality of the circumstances, support a transfer of venue. A federal court in Texas will be as familiar with the provisions of Title VII as a court sitting in New York. The material facts that support the plaintiff's allegations occurred in Texas, and the documents and witnesses that can prove or disprove these claims have more connection with Texas than New York. The totality of circumstances, therefore, support defendants' motion to transfer. See, e.g., Invivo Research, 119 F. Supp.2d at 437-41; Douglas v. Syracuse Univ. Coll. of Law, No. 94 Civ. 9195 (LAP), 1995 WL 555693, at *3 (S.D.N.Y. Sept. 18, 1995).
CONCLUSION
For the reasons stated, defendants' motion to dismiss plaintiff's NYHRL and ERISA claims, and to dismiss plaintiff's Title VII claims against Sever and Interoute is granted. The defendants' motion to transfer venue is granted. The Clerk of Court shall send a certified copy of this Opinion and any original documents to the Clerk of Court for the Southern District of Texas.
SO ORDERED: