Opinion
01 Civ. 3263 (AKH)
May 15, 2002
MEMORANDUM AND ORDER GRANTING MOTIONS TO DISMISS THE COMPLAINT AND FOR SUMMARY JUDGMENT
Defendants Media and Beyond, Inc., Forrest Edwards Employment Services, Tim Bennett, and Steve Forrest move to dismiss plaintiff Francisco Grasso's pro se employment discrimination lawsuit against them and for summary judgment. In his second amended complaint, plaintiff alleges that in August of 2000, defendant Forrest Edwards, a temporary employment agency, along with its employee, Tim Bennett, and its co-owner, Steve Forrest, discriminated against him on the basis of race, age, and national origin. Plaintiff alleges that defendant Media and Beyond also discriminated against him by wrongfully terminating him from his temporary assignment there as a porter and security guard and by forcing him to work in uncomfortable and unsafe conditions. Plaintiff alleges discrimination causes of action against defendants under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. Plaintiff alleges additional causes of action against defendants for intentional infliction of emotional distress, violations of the Occupational and Safety Health Act ("OSHA"), deceptive advertising, and entrapment.
For the reasons explained below, I grant the motions and dismiss the complaint.
I. Background
A. Plaintiffs Original Complaint
Plaintiff Francisco Grasso alleges that he is an Hispanic male born in Costa Rica on September 12, 1956. His original complaint, filed April 19, 2001, alleged causes of action for employment discrimination under Title VII and the ADEA arising from his two-month relationship with defendant Forrest Edwards Employment Services ("Forrest Edwards"), in August of 2000. Forrest Edwards is a temporary employment agency that places individuals in temporary positions with third-party employers.
Plaintiffs original complaint alleges that Forrest Edwards discriminated against him by placing him in menial and unskilled temporary jobs despite his passing Forrest Edwards' word processing and data entry competency tests. For instance, plaintiff alleges that his first temporary job assignment, at a company called Jack Ward Color, was to stick labels on envelopes over the graveyard shift. Plaintiff alleges that he accepted this job for one week only because defendant Tim Bennett, an employment counselor at Forrest Edwards, assured him that it would only be temporary while other better assignments were in process.
Plaintiff further alleges in his original complaint that he was terminated from his second assignment at Forrest Edwards as a porter and security guard for defendant Media and Beyond, Inc. Plaintiff alleges that he was replaced after only one week even though he was initially informed that it was a six-month position, and that he was replaced by a younger African-American man. After the termination of his second position as porter and security guard, plaintiff alleges that Forrest Edwards refused to give him any further work assignments. When he subsequently telephoned Forrest Edwards to inquire about further placement, he alleges that he was told that all of the employment counselors were unavailable and nobody returned his calls. Plaintiff alleges that these actions by Forrest Edwards were the result of discrimination based upon his age, race, and national origin, and followed from Forrest Edwards' practice of giving its African-American employees "preferential treatment."
B. Plaintiffs Second Amended Complaint
In his second amended complaint, filed on August 27, 2001, plaintiff adds age and race discrimination claims pursuant to Title VII and the ADEA against the newly-added corporate defendant, Media and Beyond, Inc. ("Media and Beyond"), arising from his work assignment there as a porter and security guard in late-August, 2000. Plaintiff alleges that Media and Beyond discriminated against him by giving him both porter and security guard duties at the same time and by forcing him to work in an unventilated room when other employees in his position were allowed to open the door for ventilation. Plaintiff also alleges that Media and Beyond discriminated against him by replacing him with a younger African-American temporary employee sent by Forrest Edwards after only one week, even though he was initially told that the work assignment was for six months.
Plaintiffs first amended complaint was filed on August 24, 2001, and alleges essentially the same claims as his second amended complaint.
Plaintiffs second amended complaint also adds several individual defendants, including Tim Bennett, plaintiffs employment counselor at Forrest Edwards, Steve Forrest, the owner and CEO of Forrest Edwards, Shawn Rodriguez, an employee of Media and Beyond, and several unidentified employees of both corporate defendants, named as Jane Does one through five, and John Doe.
Finally, plaintiff's second amended complaint adds several causes of action in addition to his race and age discrimination claims under Title VII and the ADEA, without specifying which defendants they are asserted against, including: (1) violation of the Occupational and Safety Health Act ("OSHA"), 29 U.S.C. § 651-678, due to hazardous work conditions at Media and Beyond; (2) intentional infliction of emotional distress; (3) deceptive advertising; and (4) entrapment. Plaintiff also asserts additional claims for generalized "harassment" and "wrongful discharge" that essentially restate his discrimination claims under Title VII and the ADEA.
C. Procedural History
On February 7, 2001, Plaintiff filed a claim with the New York State Division of Equal Rights and the Equal Employment Opportunity Commission ("EEOC"), complaining that Forrest Edwards discriminated against him on the basis of age, race, and national origin in not assigning him to better jobs and by removing him from his Media and Beyond assignment. Plaintiffs February 7, 2002 discrimination charge alleged employment discrimination only against Forrest Edwards, and did not name Media and Beyond, nor any individual defendant. The EEOC issued a Right to Sue letter to plaintiff based upon his ADEA and Title VII claims against Forrest Edwards on February 13, 2001. Plaintiff then filed the original complaint in this lawsuit on April 19, 2001, naming only Forrest Edwards as the defendant. On August 24, 2001, plaintiff filed his amended complaint, which named defendants Media and Beyond and several individual defendants in addition to defendant Forrest Edwards, and added several causes of action as specified above. On August 27, 2001, plaintiff filed his second amended complaint, which stated essentially the same claims as his first amended complaint.
On October 10, 2001, Forrest Edwards filed its motion for summary judgment. On October 18, 2001, plaintiff filed an opposition to Forrest Edwards' motion. On October 30, 2001, defendant Media and Beyond filed a waiver of service of summons, and notified this court of its intention to file its own motion to dismiss the complaint. On November 30, 2001, Media and Beyond filed its motion to dismiss. After plaintiff failed to file any opposition to the motion of Media and Beyond, I issued an Order, dated January 22, 2002, explaining to the plaintiff the effect of Forrest Edwards' motion for summary judgment and Media and Beyond's motion to dismiss. My January 22, 2002 Order informed plaintiff that him that his case may be dismissed if he failed to respond to the motion of Media and Beyond or if he failed to submit proof in the form of affidavits or other documentary evidence which rebutted the evidence submitted with Forrest Edwards' motion for summary judgment and showed that there was a genuine issue of material fact for trial. My January 22, 2002 Order gave plaintiff until February 15, 2002 to submit responses to both motions. Plaintiff made no further submissions.
II. Discussion
A. Standards Under Federal Rules of Civil Procedure
A district judge may dismiss a complaint challenged by a Rule 12(b)(6) motion, Fed.R.Civ.P. 12(b)(6), only when "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." D'Alessio v. New York Stock Exchange, Inc., 258 F.3d 93, 99 (2d Cir. 1991). Thus, for the purposes of this motion, all material allegations of the complaint are to be accepted as true, and all reasonable inferences are to be drawn in favor of the plaintiff. Id. Moreover, in the context of a Rule 12 motion to dismiss, "it is well settled that pro se litigants generally are entitled to a liberal construction of their pleadings, which should be read `to raise the strongest arguments that they suggest.'" Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (quoting Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996)).
If the Court finds that plaintiffs pro se complaint has adequately alleged a prima facie case of discrimination under Title VII and the ADEA, defendant Forrest Edwards asks that the court consider its motion as one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, and consider the affidavits and additional documentary evidence submitted showing that there were legitimate, non-discriminatory reasons for any actions taken by Forrest Edwards in regard to plaintiff. Such a motion for summary judgment can be granted only if the moving party has shown that there exist no genuine disputes as to a material fact. Grady v. Affiliated Central, Inc., 130 F.3d 553, 559, (2d Cir. 1997). In considering the record, the court must "resolve all ambiguities and draw all permissible inferences" in favor of the non-moving party.Id.
As noted above, I issued an Order, dated January 22, 2002, explaining to plaintiff the effect of Forrest Edwards' summary judgment motion, and explaining that "Rule 56 provides that you may not oppose summary judgment simply by relying upon the allegations in your complaint. Rather you must submit evidence, such as witness statements or documents, countering the facts asserted by the Defendant and raising issues of fact for trial. Any witness statements, which may include your own statements, must be in the form of affidavits. You may submit affidavits that were prepared specifically in response to Defendant's motion for summary judgment." As discussed further below, plaintiff failed to submit any evidence or affidavits in opposition to Forrest Edwards' summary judgment motion.
B. Plaintiff Has Not Satisfied Administrative Requirements to Bring Discrimination Claims Against Defendant Media and Beyond
In his second amended complaint, plaintiff brings discrimination claims under Title VII and the ADEA arising out of the treatment he claims to have suffered at the hands of defendant Media and Beyond during his one-week stint as a porter and security guard. In order for a plaintiff to bring a civil lawsuit for employment discrimination under Title VII or the ADEA, he must first timely file a charge of discrimination with the EEOC. 29 U.S.C. § 626(d); 42 U.S.C. § 2000e-5; Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001);Tewksbury v. Ottaway Newspapers, 192 F.3d 322, 325 (2d Cir. 1999). Plaintiff has not alleged in any of the iterations of his complaint that he ever filed this required discrimination claim against Media and Beyond with the EEOC or the New York State Division of Equal Rights. According to plaintiffs original complaint, the only charge he ever filed with the EEOC was against Forrest Edwards alone. Accordingly, plaintiffs discrimination claims against Media and Beyond are dismissed.
C. Plaintiffs Discrimination Claims Against Forrest Edwards Are Dismissed Because He Has Not Alleged A Prima Facie Case of Discrimination And Because Forrest Edwards Has Shown Legitimate Non-Discriminatory Reasons for Its Actions
1. Plaintiff Has Alleged Only A Limited Prima Facie Case of Employment Discrimination Against Forrest Edwards
Because plaintiff timely filed a charge of discrimination against Forrest Edwards with the EEOC, and timely brought suit after receiving a Right to Sue Letter from the EEOC, plaintiff has satisfied the administrative prerequisites to filing suit. Forrest Edwards, argues, however, that I should dismiss plaintiffs Title VII and ADEA claims of employment discrimination against it because plaintiffs original and amended complaints fail to state a prima facie case of discrimination. To establish a prima facie case of racial discrimination in violation of Title VII, plaintiff must show: "(i) he is a member of a protected class; (ii) he was qualified for the position; (iii) he was subjected to an adverse employment decision; and (iv) either the position remained open or he was replaced by someone not a member of his protected class."de la Cruz v. New York City Dep't of Human Resources, 82 F.3d 16, 20 (2d Cir. 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). The requirements for establishing a prima facie case of age discrimination under the ADEA are essentially the same, but instead of requiring that plaintiff be a member in a protected class, require that plaintiff allege that he was at least 40 years of age at time, and that the preference was shown to a younger individual, allowing an inference of age discrimination. Grady, 130 F.3d at 559.
Under the standards set forth above, the various iterations of plaintiffs complaint state only one prima facie case of race and age discrimination: that plaintiff was replaced by a younger African-American man in his position at Media and Beyond after one week even though he had been told that the position would last for six months. While plaintiff satisfies the first two prongs of the prima facie standard with regard to his other discrimination allegations — he alleges that he is Hispanic, of Costa Rican origin, over the age of forty, and that he passed computer application and data entry skill tests — he fails to identify other available positions or placements that Forrest Edwards gave to non-Hispanic or younger individuals. While plaintiff repeatedly, but conclusorily, alleges that Forrest Edwards accorded general favoritism to African-Americans, he fails to allege how the allegedly poor working conditions at Media and Beyond or at Jack Edwards Color (plaintiffs first one-week job placement) resulted from this favoritism.
2. Even if Plaintiff Has Stated a Prima Facie Case of Discrimination. Forrest Edwards Has Shown Non-Discriminatory Reasons for Its Actions With Regard to Plaintiff
Even to the extent that plaintiff has adequately alleged a prima facie case of employment discrimination against Forrest Edwards, I find that Forrest Edwards had provided convincing evidence of non-discriminatory reasons for all of its decisions concerning plaintiffs placement. Even if the plaintiff has established a prima facie case of employment discrimination under Title VII or the ADA, any presumption of discrimination established thereby is neutralized by the defendant's production of evidence that non-discriminatory reasons existed for the alleged adverse employment action. See Grady, 130 F.3d at 559-60; Mercado v. Division of New York State Police, No. 96 Civ. 235 (PKL), 2001 WL 563741, at 8 (S.D.N.Y. May 24, 2001). Once the defendant satisfies its burden of coming forward by producing evidence of its non-discriminatory reasons, summary judgment may be granted in the defendant's favor unless the plaintiff shows that a rational jury could infer that the employer was actually motivated in its actions by a discriminatory intent.
In this case, Forrest Edwards has adduced convincing evidence that all of its motivations for all of the actions alleged by plaintiff to be evidence of racial and age discrimination were taken for non-discriminatory reasons. In his affidavit in support of Forrest Edward's summary judgment motion, Tim Bennett, the employment counselor at Forrest Edward who worked with plaintiff to assess his skills and place him with employers, provides convincing non-discriminatory reasons for every action taken by Forrest Edwards concerning plaintiffs temporary placements. Concerning the single incident concerning which plaintiff has made a prima facie case — plaintiffs early replacement after just one week as a security guard for Media and Beyond — Bennett states that the decision to replace plaintiff after one week's placement was not his decision, but one made by plaintiffs supervisor at Media and Beyond, Evelyn Gonzalez. (Bennett Aff., at 5).
Bennett testifies that plaintiff himself had reported to Bennett that he had experienced some difficulty with the "walkie talkie" system used by Media and Beyond which he suspected may have led Ms. Gonzalez to request that plaintiff be replaced. Bennett's statement is corroborated by the computer printout of the database entries concerning plaintiffs placement history with Forrest Edwards, which reflects all of plaintiffs job placements, Forrest Edwards' communications with the plaintiff, and other significant events concerning plaintiffs relationship to Forrest Edwards. (Bennett Aft, Ex. D). An entry in the printout, dated September 12, 2000 states: "Spoke with Francisco [plaintiff]. Apparently he and the receptionist had had some problems involving the walkie-talkie system. when Sean [plaintiffs first supervisor at Media and Beyond] was replaced. The new contact, Evelyn, wanted to replace him. I am going there 9/13/00. Will touch on this subject with Media and Beyond." Id. The combination of Bennett's testimony and the corroborating database printout convincingly rebuts plaintiff's prima facie case of discrimination concerning the termination of his Media and Beyond placement.
Even assuming, arguendo, that plaintiffs other allegations against Forrest Edwards stated a prima facie case of discrimination, the Bennett Affidavit and exhibits thereto also effectively establish non-discriminatory reasons for all of Forrest Edwards' other actions concerning plaintiffs job placements (or lack thereof). In response to plaintiffs allegations that Forrest Edwards gave him only unskilled menial placements rather than the computer jobs for which he was qualified, Bennett testifies that plaintiffs job experience and competency test scores did not qualify him for the administrative assistant job placements. (Bennett Aff., at 3-4). Specifically, Bennett notes that while plaintiffs data entry test scores showed that he was qualified for data entry positions, his computer application test scores of 74 out of 100 on the Microsoft Word test and 62 out of 100 on Microsoft Excel test showed that he had only basic to intermediate skills in these applications and therefore was not qualified for administrative assistant placements. This testimony is corroborated by the test scores listed on plaintiffs employment application. (Bennett Aff., Ex. A).
Bennett also testifies that plaintiffs lack of relevant office work experience, as evidenced by his resume, showed that he was unqualified for such work. Indeed, plaintiffs resume listed his primary occupation between March, 1998 and July, 2000 as a farmer and rancher in Costa Rica, with a three month temporary position with the Internal Revenue Service examining tax returns from July through April, 1998. (Bennett Aff., Ex. B). The only other experience listed on plaintiffs resume since 1988 was that he was "trained by a friend who worked at" Scudder, Stevens and Clark in various computer operating systems for two months from February through April, 1996, though it appears that he did not work at Scudder himself. Id.
Bennett further testifies that, after plaintiffs placement at Media and Beyond was terminated, Forrest Edwards left plaintiff a telephone message offering him a job placement doing the very data entry work that plaintiff claims he was never offered. (Bennett Aff., at 6-7). A corresponding entry in the database printout dated September 21, 2000, at 9:45 a.m. corroborates this testimony, and a subsequent entry, dated the same day at 6:44 p.m. indicates that plaintiff returned the call but was informed that the position had already been filled. (Bennett Aff., Ex. D).
Plaintiffs opposition to Forrest Edwards' motion, dated October 18, 2001, fails to respond to the convincing reasons proffered by Forrest Edwards for its decisions and actions concerning plaintiffs job placements with anything but jumbled, conclusory allegations. For instance, plaintiff does not challenge the accuracy of Bennett's affidavit concerning plaintiffs computer competency and data entry test scores, or the accuracy of the tests themselves, but simply alleges that Forrest Edwards failed to "state anything about the mathematical and English grammar exams that were administered." Not only does this allegation of alternative tests conflict with Forrest Edward's answers to plaintiffs interrogatories, but it does not explain how plaintiff was qualified for the positions that he claims he was not offered. The remainder of plaintiffs ten-page opposition repeatedly and without basis argues that he was not an at will employee, and denies that he ever used "curse words" when he called Forrest Edwards in late September 2000 to complain that he had not received further placement. Nowhere in his opposition does plaintiff attempt to explain why he was qualified for positions that he did not receive, nor does he contest Bennett's corroborated statement that his supervisor at Media and Beyond had asked that he be replaced due to job difficulties, nor explain how Forrest Edwards was in any way involved in the decision to terminate his placement. As noted above, I informed plaintiff in my January 22, 2002 Order that he could not rest upon conclusory allegations in response to Forrest Edwards' summary judgment motion, but must submit sworn affidavits or other proof rebutting the arguments and evidence adduced by Forrest Edwards. Plaintiff never submitted any such affidavit, nor even any concrete allegations rebutting Forrest Edwards' arguments.
Upon review of the record as a whole, including the convincing testimony and exhibits submitted by Forrest Edwards and the complete lack of a concrete response to that evidence by the plaintiff, I find that there remains no material issue of disputed fact to be tried in this case and grant summary judgment in favor of Forrest Edwards on plaintiffs claims of employment discrimination under Title VII and the ADEA.
D. Individual Defendants Are Not Liable Under Title VII or the ADEA
Plaintiffs discrimination claims under Title VII and the ADEA likewise cannot be maintained against the individual employees of Forrest Edwards and Media Beyond named as defendants. Neither Title VII nor the ADEA authorize discrimination suits against individual employees. Tomka v. Seiler Corp., 66 F.3d 1295, 1314 (2d Cir. 1995) (individual employees are not subject to civil liability for discrimination under Title VII); Boise v. Boufford, 127 F. Supp. 2 d 467, 472 (S.D.N.Y. 2001) (applying Tomka's reasoning to the ADEA and citing cases). Therefore, all of plaintiffs discrimination claims against individual defendants Tim Bennett, Steve Forrest, Shawn Rodriguez, Jane Does numbers 1 through 5, John Doe, and "JC" are dismissed.
E. Plaintiff Cannot Adequately Plead A Claim for Infliction of Emotional Distress
Even construing the plaintiffs original and amended complaints leniently, plaintiffs allegations do not state a cause of action for intentional infliction of emotional distress. To make out a claim for intentional infliction of emotional distress under New York law, plaintiff must allege: "(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and the injury; and (iv) severe emotional distress." Howell v. New York Post Co., Inc., 81 N.Y.2d 115, 121 (1993). Plaintiffs amended complaint fails to adequately allege the first element; "extreme or outrageous conduct" on the part of Forrest Edwards, Media and Beyond, or any of the identified or unidentified individual defendants.
Because the threshold of "extreme and outrageous conduct" is so high, the pleading requirements for intentional infliction of emotional distress are difficult to satisfy. Id.; Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 303 (1983). Indeed, the New York Court of Appeals has recognized that "[l]iability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, as utterly intolerable in a civilized community." Murphy, 58 N.Y.2d at 303 (quoting Restatement (Second) of Torts § 46[1], cmt. d).
Here, the conduct alleged by plaintiff does not satisfy this stringent standard. While plaintiff alleges that certain unidentified individuals treated him poorly over the course of his experiences with Forrest Edwards, none of the allegations even approach "extreme and outrageous conduct." For instance, plaintiff alleges that Jane Doe number one, a Forrest Edwards Employee, refused to give him payment for eight hours as promised, even though the shift had ended early; plaintiff alleges that John Doe, a Media and Beyond employee, told him to allow certain people to loiter near the door but told him to ask others to leave; plaintiff alleges that Jane Doe number two, a supervisor at Media and Beyond, told him that he shouldn't have come to work the second week because he had been replaced; plaintiff alleges that the third Jane Doe, a Forrest Edwards employee showed "hostility" toward him when he went to retrieve his last paycheck; and finally, plaintiff alleges that a fourth Jane Doe treated him "coldly" when he attempted to contact an employment counselor to obtain another assignment.
None of the actions or behavior alleged exceeds the "bounds of civilized decency." Even if plaintiff was treated meanly or with hostility, it is clear that he is unable to adequately allege the tort of intentional infliction of emotional distress. See Murphy v. American Home Prods. Corp., 112 Misc.2d 507, 508-09 (Sup.Ct. N.Y. Cty.), modified 88 A.D.2d 870 (1st Dep't 1982), modified 58 N.Y.2d 293 (1983) (describing employer's conduct in discharge of plaintiff employee which the Court of Appeals held inadequately outrageous as a matter of law). Plaintiffs claims for intentional infliction of emotional distress are therefore dismissed as against all defendants.
F. Plaintiff Fails to State a Claim for Deceptive Advertising
In his second amended complaint, plaintiff adds an unexplained claim of "deceptive advertising." Read leniently, plaintiff seems to be arguing that Forrest Edwards' advertisements seeking prospective employment applicants or temporary employees that the plaintiff mentions in passing in his second amended complaint were false because they stated that Forrest Edwards was "an equal opportunity employer." This claim, no matter how leniently interpreted, however, does not allege the consumer-oriented conduct required to state a claim for false advertising under New York Law. Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 25 (1995); N.Y. Gen. Bus. Law §§ 349, 350 (McKinney's 1990). His deceptive advertising claims are therefore dismissed.
G. OSHA Does Not Create a Private Right of Action
The Occupational Safety Health Act ("OSHA"), 29 U.S.C. § 651-678, does not create a private right of action for damages. See 29 U.S.C. § 653(b)(4); Elliott v. S.D. Warren Co., 134 F.3d 1, 4 (1st Cir. 1998). Plaintiffs claims under OSHA are therefore also dismissed.
H. The Facts of Plaintiffs Case Do Not Give Rise to an Action for Entrapment
In his amended complaint, plaintiff also appends conclusory allegations of entrapment. This claim is not applicable to this lawsuit. Under New York law, entrapment is a defense only to criminal charges and has no applicability as an affirmative civil claim. Plaintiffs entrapment claim is therefore also dismissed.
III. Conclusion
For the forgoing reasons, plaintiffs complaints are dismissed in their entirety as against all defendants. The Clerk of Court shall mark this matter as closed.
SO ORDERED.