Opinion
04 Civ. 1870 (RCC) (JCF).
March 1, 2005
REPORT AND RECOMMENDATION
Ruth Kaciak brings this action pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., alleging that her former employer, Hilton International Company ("Hilton"), subjected her to a hostile work environment and then retaliated against her when she complained. Hilton now moves to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, or alternatively for summary judgment under Rule 56, on the grounds that it is not the proper defendant. For the reasons that follow, I recommend that Hilton's motion be treated as one for summary judgment and that it be denied.
Background
Beginning in 1981 and throughout the period at issue here, Ms. Kaciak worked at the New York Vista Hotel (the "Vista") as a specialized chef. (State of New York Division of Human Rights Memorandum ("DHR Memo") dated Nov. 22, 1995, attached as an exhibit to the Complaint ("Compl.") at 1). From 1978 until September 5, 1995, the Vista was managed by Hilton, either directly or through a wholly owned subsidiary, Inhil Co., Inc. (Declaration of K. Lesli Ligorner dated July 30, 2004 ("Ligorner Decl."), attached to Notice of Motion, ¶ 5). The plaintiff alleges that during 1995, and particularly in June of that year, she was subjected to harassing statements and conduct by a supervisor at the Vista, Fitzgerald "Candy" Jarvis. Specifically, she alleges that Mr. Jarvis and another supervisor, Clive da Costa, loudly and graphically demonstrated oral sex while they were alone with her at work, and that on another occasion Mr. Jarvis hit her on the back. (Plaintiff's Statement of Facts ("Pl. Statement of Facts"), attached to the complaint, at unnumbered pages 1-2; DHR Memo at 1). The plaintiff asserts that when she complained about the harassment, Hilton failed to respond adequately and, in fact, retaliated against her by changing her work schedule and requiring that she perform some of her work while standing, when she had previously been allowed to sit. (Pl. Statement of Facts at unnumbered page 2).
On July 17, 1995, the plaintiff filed a complaint with the New York State Division of Human Rights (the "DHR") charging Hilton with subjecting her to sexual harassment. (Plaintiff's DHR Complaint, attached as Exh. D to Ligorner Decl.). The DHR found that there was probable cause to support the allegations in the plaintiff's complaint. (DHR Memo at 3). However, by order dated September 24, 2003, it dismissed the complaint because it found that the proper respondent in the case was the Port Authority, not Hilton, and that it lacked jurisdiction over the Port Authority because it was a bi-state entity. The DHR based its conclusions on an affidavit and other documents submitted by the defendant. These documents showed that Hilton and the Port Authority had entered into two agreements transferring various liabilities to the Port Authority, including liability for the plaintiff's sexual harassment claim, in anticipation of Hilton's turning over management of the Vista to the Port Authority on September 5, 1995. (DHR Order of Dismissal for Administrative Convenience dated Sept. 24, 2003 ("DHR Order"), attached as Exh. E to Ligorner Decl., at 2-3; Westock Agreement, attached as Exh. B Ligorner Decl.).
Relying on the same allegations she had raised with the DHR, Ms. Kaciak then filed a complaint with the EEOC, which issued a Dismissal and Notice of Rights to the plaintiff on December 10, 2003. (Dismissal and Notice of Rights dated Dec. 10, 2003, attached as Exh. F to Ligorner Decl.). On March 9, 2004, Ms. Kaciak filed the instant action.
Discussion
A. Legal Standard
As noted above, the defendant, Hilton, has moved to dismiss the complaint in this action pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure or, alternatively, for summary judgment under Rule 56. In considering a motion to dismiss under Rule 12(b)(6), a court must generally limit itself to the facts stated in the complaint which are deemed to include documents attached to the complaint and documents incorporated by reference. Hayden v. County of Nassau, 180 F.3d 42, 54 (2d Cir. 1999). However, it may also consider a document that does not meet these criteria "where the complaint relies heavily on its terms or effect, which renders it `integral' to the complaint."Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002) (quoting International Audiotext Network v. American Telephone and Telegraph Co., 62 F.3d 69, 71 (2d Cir. 1995)). If a motion to dismiss includes material outside the complaint, the court must either exclude the material or convert the motion to one for summary judgment, provided that the opposing party has a "reasonable opportunity to present material pertinent to such a motion. . . ." Chambers, 282 F.3d at 152 (quoting Fed.R.Civ.P. 12(b)). Where the opposing party is pro se, "[she] must be advised that all assertions of material fact in the defendants' affidavits and other papers in support of their motion will be taken as true unless [she contradicts] those factual assertions in one or more affidavits made on personal knowledge containing facts that would be admissible in evidence, or by submitting other materials as provided in Rule 56(e) of the Federal Rules of Civil Procedure."Arnold v. Goetz, 245 F. Supp. 2d 527, 540 (S.D.N.Y. 2003).
The defendant's motion in this case is properly treated as one for summary judgment. The documents on which Hilton bases its motion to dismiss, primarily copies of agreements between Hilton and the Port Authority and an affidavit based on those agreements, are clearly "outside the pleadings" under Rule 12(b)(6). The complaint does not refer to or rely on these documents, nor are they attached to it. In addition, the defendant here informed the plaintiff that it was moving in the alternative for summary judgment and provided her with guidance on how respond. (Notice to Pro Se Litigant Opposing Motion for Summary Judgment, attached to Notice of Motion).
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); accord Marvel Characters, Inc. v. Simon, 310 F.3d 280, 285-86 (2d Cir. 2002); Andy Warhol Foundation for the Visual Arts, Inc. v. Federal Insurance Co., 189 F.3d 208, 214 (2d Cir. 1999). The moving party bears the initial burden of demonstrating "the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party meets that burden, the opposing party must come forward with "specific facts showing that there is a genuine issue for trial," Fed.R.Civ.P. 56(e), by "a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.
In assessing the record to determine whether there is a genuine issue of material fact, the court must resolve all ambiguities and draw all factual inferences in favor of the nonmoving party.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986);Vann v. City of New York, 72 F.3d 1040, 1048-49 (2d Cir. 1995). A court may not grant summary judgment merely because the non-moving party responds improperly or, indeed, fails to respond at all; rather, the court must still determine that there are no disputed issues of material fact and that the moving party is entitled to judgment as a matter of law. See Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244-45 (2d Cir. 2004); Amaker v. Foley, 274 F.3d 677, 681 (2d Cir. 2001).
B. Merits
Title VII grants a cause of action against employers. See 42 U.S.C. § 2000e-2(a). It prohibits an employer from, among other things, subjecting its employees to sexual harassment: conduct with "`the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.'" Petrosino v. Bell Atlantic, 385 F.3d 210, 220-21 (2d Cir. 2004) (quoting Fitzgerald v. Henderson, 251 F.3d 345, 356 (2d Cir. 2001)). Title VII defines the term employer as "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such person." 42 U.S.C. § 2000e(b). Courts have construed the term "in a functional sense to encompass persons who are not employers in conventional terms, but who nevertheless control some aspects of an employee's compensation or terms, conditions, or privileges of employment."Gryga v. Ganzman, 991 F. Supp. 105, 108 (E.D.N.Y. 1998) (quoting E.E.O.C. v. Sage Realty Corp., 507 F. Supp. 599, 611 (S.D.N.Y. 1981)). The evidence here shows that Hilton was the plaintiff's employer as defined under Title VII during the period when she alleges that she was harassed. The plaintiff filed her sexual harassment claim with the DHR on July 17, 1995, and Hilton, by its own admission, managed the Vista until September 5, 1995. Thus, the plaintiff's cause of action under Title VII is properly brought against Hilton.
Nevertheless, the defendant argues that it is not validly named as a defendant because the Port Authority assumed liability regarding the plaintiff's Title VII claim by contract. (Memorandum of Law In Support of Defendant Hilton International Company's Motion to Dismiss Or, In The Alternative, Motion for Summary Judgment at 7-8). This argument is unpersuasive. The specific issue of whether a party may be relieved of liability under Title VII by transferring its liability to its successor by contract does not appear to have been addressed by the courts. However, it is well established in the common law tort context that, although corporations can regulate how liability will be allocated among themselves, they cannot alter a third party's right to sue. See Ulanet v. D'Artagnan, Inc., 170 F. Supp. 2d 356, 359 (E.D.N.Y. 2001); 15 W. Fletcher, Cyclopedia of the Law of Private Corporations § 7123 (1999) (citing Grant-Howard Associates v. General Housewares Corp., 63 N.Y.2d 291, 297-98, 482 N.Y.S.2d 225, 227 (1984)); This reasoning is equally applicable in the context of a statutory tort such as Title VII. See Price Waterhouse v. Hopkins, 490 U.S. 228, 264 (1989) (O'Connor, J., concurring) (characterizing Title VII as "statutory employment `tort'"). Accordingly, Hilton remains liable under Title VII for its actions while it was the employer regardless of any contracts it entered into with the Port Authority, and its motion should be denied. Conclusion
The Court need not now address the issue of whether the Port Authority may be contractually bound to indemnify Hilton.
For the reasons set forth above, I recommend that the defendant's motion for summary judgment be denied. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the Chambers of the Honorable Richard C. Casey, Room 1350, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.
Respectfully submitted.