Summary
taking judicial notice of NYSDHR documents, including two complaints, a Notice of Conference and Production of Records, and a Determination and Order After Investigation, without converting the motion into one for summary judgment
Summary of this case from Guy v. MTA N.Y.C. TransitOpinion
02 Civ. 3591 (RWS)
September 4, 2002
Vincent I. Eke-Nweke, Esq., Vincent I. Eke-Nweke, P.C., Brooklyn, NY, for Plaintiff.
Michael J. Volpe, Esq., George F. Brenlla, Esq., Clifton Budd DeMaria New York, NY, for Defendants.
O P I N I O N
Defendants The New York Botanical Garden (the "Garden"), Gregory Long ("Long"), and John Rorer ("Rorer") have moved pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedures to dismiss the portions of the complaint of Paul Evans ("Evans") alleging unlawful discrimination and retaliation in violation of 42 U.S.C. § 1981, the New York Executive Law § 290, et al. (the "Executive Law") and the New York City Administrative Code (the "City Law").
For the following reasons, the motion is granted.
Facts
As befits a motion to dismiss, the following facts are drawn from Evans's complaint and do not constitute findings of fact.
Parties
Evans is an African-American who at all relevant times resided within the City of New York in the State of New York.
The Garden at all relevant times employed and still employs more than twenty-five employees within the City and State of New York.
Long, a Caucasian male, is President of the Garden.
This opinion uses the term "Caucasian" as Evans used it in his complaint.
Rorer, a Caucasian male, is the Vice President and Chief Operating Officer of the Garden.
Background
On August 19, 1996, the Garden hired Evans and assigned him to its Horticulture Division as the Director of the Bronx Green-Up ("BGU") program. In this role, Evans's job responsibilities were, among other things, to direct outreach to about 325 community gardens in the Bronx; to conduct fund raising, budget administration; and to supervise seasonal interns and six Garden employees. In addition, Evans's job responsibilities required him to provide general managerial oversight to the Compost project, a contractually funded initiative developed by the City of New York Department of Sanitation at the Garden; and a compost facility that recycled the Garden's plant waste.
From August 1996 to April 1998, Evans's immediate supervisor was Richard Schnall, a white male who served as Vice President for Horticulture ("Schnall"). Evans had a cordial relationship with Schnall and received favorable performance evaluations from him. Schnall was replaced by Joe Kerwin ("Kerwin"), who became Evans's immediate supervisor.
In the early summer of 1998, Evans was informed that the BGU program would be moved from the Horticulture Division to the Public Programs Division as part of a reorganization of the Garden. Although Evans was told there would be a meeting to discuss the reassignment, the defendants implemented the reassignment while Evans was away at a conference and without obtaining his input. As a result, Elaine Drazin ("Drazin"), a white female who was then Associate Vice President for Public Programs, became Evans's supervisor over the BGU project. After the reorganization, the Compost facility remained with the Horticulture Division.
Evans's relationship with Drazin was initially cordial. On March 29, 1999, however, Evans claims that he received an unfair evaluation from her, for the period covering January 1, 1998 to December 31, 1998. Drazin did not begin to supervise Evans's work until late summer of 1998.
In the spring of 1999, one of Evans's subordinates, Michael O'Connor ("O'Connor"), gave notice of his intention to resign from the Garden. Evans claims that O'Connor, a Caucasian male, resented working for Evans because Evans is of African-American descent. Following O'Connor's notice, Drazin initially directed Evans to hire another employee to replace O'Connor. Evans claims, however, that when Long and Rorer were notified of O'Connor's planned departure, they concocted a plan to discharge Evans and replace him with O'Connor.
In July 1999, the Garden created a position for O'Connor called the Community Garden Liaison. O'Connor was removed from Evans's supervision and reported directly to Drazin. His salary continued to be paid out of BGU's budget. The Garden then reassigned some of Evans's tasks to O'Connor, even before Evans was discharged.
On July 1, 1999, Drazin issued a work performance evaluation to Evans, alleging that Evans failed to complete major projects in a timely fashion, did not spend enough time in the community, did not know the gardens, did not develop a vision for the future of the BGU project and was adversarial to the Garden departments. Evans claims that the charges were trumped up and that the defendants cannot substantiate them.
On July 6, 1999, Rorer met with Evans, Drazin and Earl D. Brown ("Brown"), then director of Governmental Relations. At the meeting, Rorer severely criticized Evans for what he considered a lack of vision for the BGU program.
On July 28, 1999, Drazin issued a final warning to Evans in which she reiterated Rorer's criticisms of Evans at the July 6, 1999, meeting.
On August 20, 1999, Evans filed a discrimination charge with the Equal Employment Opportunity Commission through the New York State Division of Human Rights.
In October 1999, Drazin left the employ of the Garden, and Rorer became O'Connor's immediate supervisor. Long and Rorer intensified what Evans claims was discriminatory treatment.
On November 17, 1999, the Garden discharged Evans from its employment on what Evans claims were pretextual grounds of poor work performance and lack of vision for the BGU program. Evans asserts that he was unlawfully discharged on the basis of his race and in retaliation for his opposition to the Garden's unlawful employment practices, in order to give his job to O'Connor.
On November 24, 1999, Evans filed a charge of retaliation with the Equal Employment Opportunity Commission through the New York State Division of Human Rights.
During Evans's tenure at the Garden, he claims that it had a policy or practice of promoting only Caucasians to the top management positions. Defendant Long, the president of the Garden, is Caucasian. Defendant Rorer, the executive vice president and chief operating officer of the Garden, is Caucasian. All six vice presidents employed by the Garden were Caucasian, and all seven associate vice presidents were Caucasian. Out of numerous directors and managers, only four were black.
The NYSDHR Investigation and Determination
Evans filed two complaints of discrimination and unlawful retaliation with the New York State Division of Human Rights ("NYSDHR"). According to the NYSDHR's investigatory file, Evans identified various witnesses and requested that the NYSDHR interview Ann Adams, Melanie Rodriguez, Ann Weisen, Elaine Drazin and Michael O'Connor. NYSDHR interviewed all of them upon Evans's request and provided Evans with witness summaries at his request. The NYSDHR subpoenaed documents and witnesses for a conference. Prior to the conference, Evans submitted dozens of documents to Glenn Nichtenhauser, the NYSDHR investigator ("Nichtenhauser").
At the conference held on March 10, 2000, Evans was present with his attorney, Richard Corenthal, Esq. Three additional witnesses from the Garden were present: Brown, Rorer, and Sally Gavin, the Associate Vice President for Administration. Evans subsequently submitted dozens of letters to the NYSDHR providing the Division with information and names of witnesses. Evans also requested that Nichtenhauser ask further questions of Drazin, and he did. Nichtenhauser also provided Evans with notes of Drazin's responses to Evans's questions.
On October 26, 2001, the State Division of Human Rights (the "Division") issued a Determination and Order After Investigation as a result of the complaint Evans filed with the Division. The Determination concluded that "insofar as respondent [the Garden] is concerned, there is NO PROBABLE CAUSE to believe that the said respondent has engaged in or is engaging in the unlawful discriminatory practice complained of."
On February 11, 2002, Evans received a Notice of Suit Rights from the Equal Employment Opportunity Commission. Evans commenced this lawsuit on May 8, 2002. His complaint contains six counts. Counts I and II are alleged against the Garden and assert discrimination and retaliation in violation of § 1981 and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"). Counts III and IV allege discrimination and retaliation against individual defendants Long and Rorer in violation of § 1981. Counts V and VI assert discrimination and retaliation against Long and Rorer in violation of the Executive Law and the City Law.
The defendants filed the motion to dismiss on June 5, 2002, and it was considered fully submitted on July 12, 2002.
Discussion I. Standard for Motion to Dismiss
In reviewing a motion to dismiss under Rule 12(b)(6), courts must "accept as true the factual allegations of the complaint, and draw all inferences in favor of the pleader." Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir. 1993) (citing IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1052 (2d Cir. 1993)). However, "legal conclusions, deductions, or opinions couched as factual allegations are not given a presumption of truthfulness." L'Eureopeenne de Banque v. La Republica de Venezuela, 700 F. Supp. 114, 122 (S.D.N.Y. 1988). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995) (quoting Schener v. Rhodes, 416 U.S. 232, 236 (1974)). A complaint may only be dismissed when "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitled him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). See also Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991); Berheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996).
II. The Claims Pursuant to the Executive Law and City Law Are Withdrawn
Evans has withdrawn Counts V and VI alleging violations of the Executive Law and City Law against Long and Rorer. Therefore defendants' arguments as to the propriety of their dismissal will not be addressed.
III. Section 1981 Claims
The defendants argue that Evans's claims of discrimination and retaliation brought pursuant to § 1981 should be dismissed under the doctrines of res judicata and/or collateral estoppel.
A. Whether the Administrative Records Are Properly Before the Court
As an initial matter, Evans contests that documents on which the defendants rely are not properly before the Court unless the Court converts the motion into one for summary judgment.
It is reversible error for the district court to consider outside matter without converting the motion to dismiss into a motion for summary judgment. Kopec v. Coughlin, 922 F.2d 152, 155 (2d Cir. 1991) (quoting 5A Wright Miller, Federal Practice Procedure § 1366 (1990)). Further, a district court may not convert a motion under Rule 12(b)(6) into a Rule 56 motion for summary judgment without sufficient notice to the opposing party and an opportunity for that party to respond. Groden v. Random House, Inc., 61 F.3d 1045, 1052-53 (2d Cir. 1995) ("The essentially inquiry is whether the appellant should have reasonably recognized the possibility that the motion might be converted into one for summary judgment or was taken by surprise and deprived of a reasonable opportunity to meet facts outside the pleadings." (citation omitted)). Evans therefore claims that the motion cannot be converted into one for summary judgment because discovery has not yet begun and he is ill-prepared to respond. As discussed earlier, it is unnecessary to determine whether he has had adequate time to prepare as this motion is not converted into a Rule 56 motion.
Rule 12(b) provides:
If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the Court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
Rule 12(b).
Although the consideration of a Rule 12(b)(6) motion to dismiss is generally limited to the facts stated on the face of the complaint, a court may also consider documents appended to the complaint, documents incorporated by reference, and matters of which judicial notice may be taken. Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991); see also James W. Moore, 2 Moore's Federal Practice § 12.34[2] (3d ed. 1998); Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000) (complaint is deemed to "include . . . documents that the plaintiffs either possessed or knew about and upon which they relied in bringing the suit").
A court may take judicial notice of the records of state administrative procedures, as these are public records, without converting a motion to dismiss to one for summary judgment. E.g., Mack v. South Bay Beer Distribs., 798 F.2d 1279, 1282 (9th Cir. 1986) ("[A] court may take judicial notice of `records and reports of administrative bodies.'"), overruled on other grounds by Astoria Fed. Sav. Loan Ass'n v. Solimino, 501 U.S. 104, 111 (1991); Morelli v. Cedel, 1997 WL 61499, at *7 (S.D.N.Y. Feb. 13, 1997) ("[A]lthough it is not mentioned in the complaint, I note that on February 29, 1996, the [New York State Division of Human Rights] issued a Determination and Order after Investigation which concluded that there was no probable cause to believe that Cedel engaged in an unlawful discriminatory practice."); see also Nickens v. New York State Dep't of Correctional Servs., No. 94 Civ. 5425, 1996 WL 148479, at *1 (E.D.N.Y. 1996) (holding that court may take judicial notice of EEOC filings).
In support of this motion, the defendants rely on copies of (1) Evans's Complaint of Discrimination, dated August 20, 1999, filed with the New York State Division of Human Rights; (2) Evans's Complaint of Discrimination, dated November 24, 1999, filed with the NYSDHR; (3) the NYSDHR Notice of Conference and Production of Records, dated December 30, 1999; and (4) the NYSDHR Determination and Order After Investigation. These exhibits constitute the public records of an administrative body, of which this Court may take judicial notice without converting the motion into one for summary judgment.
B. Res Judicata
The defendants urge that the NYSDHR's finding of "no probable cause" on identical claims of discrimination and retaliation be given preclusive effect and that Evans's § 1981 claims therefore be dismissed.
With respect to employment discrimination claims under § 1981, "when a state agency `acting in a judicial capacity . . . resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate,' federal courts must give the agency's factfinding the same preclusive effect to which it would be entitled in the State's courts." University of Tennessee v. Elliott, 478 U.S. 788, 799 (1986) (quoting United States v. Utah Contr. Min. Co., 384 U.S. 394, 422 (1966)).
Under New York law, the quasi-judicial determinations of administrative agencies will be awarded preclusive effect "when rendered pursuant to the adjudicatory authority of an agency to decide cases brought before its tribunals employing procedures substantially similar to those used in a court of law." Ryan v. New York Tel. Co., 62 N.Y.2d 494, 499, 478 N.Y.S.2d 823, 825-26, 467 N.E.2d 487 (1984). The burden rests upon the proponent of collateral estoppel to demonstrate the identicality and decisiveness of the issue, while the burden rests upon the opponent to establish the absence of a full and fair opportunity to litigate the issue in the prior action or proceeding. DeCintio v. Westchester Co. Med. Ctr., 821 F.2d 111, 117 (2d Cir. 1987) (citing Ryan, 62 N.Y.2d at 499-501, 467 N.E.2d at 489-91, 478 N.Y.S.2d at 825-27).
Evans claims that the NYSDHR failed to utilize its adjudicatory authority to investigate the alleged discrimination and retaliation claims, that the NYSDHR failed to employ "procedures substantially similar to those used in a court of law," and that he was not given a fair opportunity to litigate the issue.
Evans's complaints with the NYSDHR concerned the same allegations of discrimination and retaliation. Further, it has been held that the NYSDHR procedures satisfy the requirements that its investigation be pursuant to the adjudicatory authority and that there be a "substantial similarity to those used in a court of law." E.g., Mendoza v. SSC B Lintas, New York, 799 F. Supp. 1502, 1510 (S.D.N.Y. 1992); Ibrahim v. New York State Dep't of Health, 692 F. Supp. 1471, 1473 (E.D.N.Y. 1988). The defendants therefore have met their burden.
In determining whether a party against whom preclusion is sought was afforded a "full and fair opportunity to litigate," in the administrative proceeding, a court must consider the "`realities of the prior litigation,' including the context and other circumstances which may have had the practical effect of discouraging or deterring a party from fully litigating the determination which is now asserted against him." Ryan, 62 N.Y.2d at 501, 478 N.Y.S.2d 823, 467 N.E.2d 487 (citations omitted). Relevant, for example, is the nature of the prior forum, the importance of the issue or claim in the prior proceeding, the party's incentive and initiative to litigate the issue or claim, the competence and expertise of counsel, the availability of new evidence, the difference in the applicable law, and the foreseeability of future litigation. Id.
Evans claims that he "is prepared (if given a reasonable opportunity to conduct discovery in this action) to submit proof, that he did not have a fair opportunity to litigate his alleged discrimination and retaliation claims before the NYSDHR. . . ." Pl.'s Mem. at 5-6. Evans has no more than conclusorily stated how discovery would abet his claim of a lack of a full and fair opportunity to litigate. Presumably, Evans is aware of the nature of the prior forum, the importance of the issue or claim in the prior proceeding, his incentive and initiative to litigate the issue or claim, the competence and expertise of counsel, the difference in the applicable law, and the foreseeability of future litigation. Indeed, the defendants have detailed the lengthy investigation conducted by the NYSDHR, including interviewing a number of witnesses, subpoenaing documents, and including records provided by Evans.
The only factor in which discovery could assist Evans's claim of a lack of a fair opportunity to litigate is the existence of new evidence. In the absence of any assertion that such new evidence exists, however, the claims must be dismissed. If during the course of discovery on the remaining Title VII claims, such new evidence comes to light, Evans may petition the Court at that time to amend his complaint to add the § 1981 claims.
Conclusion
For the foregoing reasons, the defendants' motion to dismiss is granted. Counts III and IV are dismissed entirely. Counts I and II are dismissed inasmuch as they assert claims brought under § 1981. Counts V and VI have been withdrawn. Leave is granted to seek to amend the complaint to add the § 1981 claims if new evidence is discovered that suggests that Evans did not have a full and fair opportunity to litigate his claims in the state administrative proceeding.
It is so ordered.