Opinion
06 Civ. 2728 (AKH).
November 21, 2006
MEMORANDUM AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6) WITH PREJUDICE
Plaintiff pro se in this action, Joanne Wood Kiley, filed her complaint on April 7, 2006, alleging that defendant American Society for the Prevention of Cruelty to Animals ("ASPCA") discriminated against her in violation of Title VII of the Civil Rights Act of 1964. The ASPCA moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons stated below, defendant's motion is granted and the complaint is dismissed with prejudice.
Background
I. Facts
The facts of this case are somewhat difficult to discern on the basis of plaintiff's complaint and her statements at the initial pre-trial conference. Plaintiff began working as an Animal Care Technician for the ASPCA in 1997 and is currently employed by the ASPCA. See Compl. at 2; Opp. at 2. Plaintiff's memorandum in opposition to defendant's motion to dismiss states that on three days in June, 2004 her supervisor, Karen Lopez, harassed her by "continuously us[ing] language, and use of objects, and use of touch which would be characterized as asking for sex," Opp. at 1, although her complaint makes no mention of these events. Plaintiff claims that Lopez continued to harass her even after she reported the harassment to management and that Lopez threatened to "report Kiley for sexual harassment" if she did not keep the matter "private between them." See Opp. at 2. On June 17, 2004 Lopez complained to the ASPCA human resources department that Kiley had subjected her to inappropriate advances on several occasions. See Compl. Ex. A at 2. On June 29, 2004, ASPCA management placed Kiley on paid administrative leave in order to commence an investigation into Lopez's complaints. Compl. Ex. A at 3 n. 4; Opp. at 3. ASPCA management concluded its investigation on July 9, 2004, finding that Kiley had sexually harassed her supervisor, Karen Lopez. The ASPCA informed Kiley that her paid administrative leave had been converted to a suspension, and that she would be transferred to another position. See Compl. Ex. A at 4; Opp. at 3. Plaintiff commenced proceedings against defendant shortly thereafter.
The abbreviation "Opp." refers to plaintiff's memorandum in opposition to defendant's motion to dismiss.
II. Procedural History
Plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") in July, 2004 and with the New York State Division of Human Rights regarding defendant's alleged discriminatory conduct on August 3, 2004. The EEOC issued plaintiff a "right to sue" letter on January 25, 2006, which adopted the findings of the "state or local fair employment practices agency that investigated [the] charge" and closed plaintiff's file. Compl. Ex. B. Plaintiff timely filed the complaint in this case within 90 days of receiving the EEOC notice.
Plaintiff filed her complaint on a check-off form with fields for indicating the type of discriminatory conduct alleged and the basis for the discrimination. Plaintiff checked the field marked "retaliation" on her form in the discriminatory conduct section. See Compl. ¶ 4. Paragraph 7 of the form states, "Defendant(s) discriminated against me based on my: (check only those that apply)" followed by options including race, color, gender/sex, religion, national origin, age, and disability. Plaintiff checked the box marked "gender/sex" and wrote "because I am a Gay Woman" above the words "gender/sex" on the form. Paragraph 8 of the form contains the typewritten words, "The facts of my case are as follows:" and nine blank lines where the plaintiff may state the facts of the complaint. In these lines, plaintiff wrote:
The Defendant advanced false statement and misrepresentation before, and to the EEOC, and came after my complaint of sexual harassment to the Defendant (Exhibit A). A little over five months later, in American Arbitration Association hearing, the Arbitrator asked the defendant to give him (Exhibit B). The defendant withheld and knew of Exhibit B; is more retaliation. Through reading Exhibit B, side by side to Exhibit A, there is little doubt that I have a strong likelihood of success of this underlying action.
Compl. ¶ 8. Plaintiff attached exhibits A and B to her complaint; Exhibit A is the position statement defendant submitted to the EEOC; Exhibit B is a selection of written statements by Karen Lopez, plaintiff's former supervisor, and the aforementioned "right to sue" letter. Contrary to paragraph eight of plaintiff's complaint, if the content of either of these exhibits is substantially true, plaintiff's complaint is entirely without merit.
On July 21, 2006, the parties appeared before me for an initial pre-trial conference. I informed Ms. Kiley that her complaint, as filed, did not state a claim upon which relief could be granted.See Tr. 3 — 4. I asked plaintiff whether she was "complaining . . . that [she was] suspended improperly and that the basis of that improper suspension was an act of discrimination against [her] by reason of [her] gender" and plaintiff responded affirmatively. Tr. at 4. A few moments later, I said to Ms. Kiley, ". . . but you're really suing on the basis of a harassment against you because you're a gay woman," which plaintiff also confirmed. Tr. at 5. Plaintiff having confirmed the basis of her complaint, I stated to the parties that I would "liberally construe [the complaint] to constitute an amendment to state a case of employment discrimination on the basis of her sexual preference." Tr. at 5. I explained to Ms. Kiley that defendant would argue that "there is no cause of action for a discrimination based on sexual preference;" that she would need to rebut such an argument; and that she should consult a lawyer. See Tr. at 5-11. The parties agreed to a briefing schedule and have filed their submissions accordingly.
I construe plaintiff's claims on the basis of her written check-off form complaint and the transcript of the initial pre-trial conference; the allegations in her opposition brief are not part of the complaint. Thus construed, plaintiff's complaint contains two claims: First, that plaintiff's supervisor discriminated against her in June, 2004 on the basis of her sexual orientation; and second, that the ASPCA retaliated against her by making false statements to the EEOC and withholding relevant documents at an arbitration proceeding.
Even if the allegations contained in plaintiff's opposition brief are construed to be part of the complaint, plaintiff has not and cannot state a claim upon which relief can be granted.
Discussion
I. Applicable Law
A. Standard of Review
A Rule 12(b)(6) motion requires the court to determine whether a plaintiff has stated a legally sufficient claim. Fed.R.Civ.P. 12(b)(6). A motion to dismiss under Rule 12(b)(6) may be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957);Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991). The court's function is "not to assay the weight of the evidence which might be offered in support" of the complaint, but "merely to assess the legal feasibility" of the complaint. Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980). In evaluating whether a plaintiff may ultimately prevail, the court must take the facts alleged in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See Jackson Nat'l Life Ins. Co. v. Merrill Lynch Co., 32 F.3d 697, 699-700 (2d Cir. 1994). A plaintiff cannot survive a motion to dismiss simply by stating legal conclusions as if they were facts. Papasan v. Allain, 478 U.S. 265, 286 (1986). A complaint submitted pro se, however, must be liberally construed and is held to a less rigorous standard of review than formal pleadings drafted by an attorney. Hughes v. Rowe, 449 U.S. 5, 9-10 (1980).
B. Stating a Claim under Title VII of the Civil Rights Act of 1964
Title VII of the Civil Rights Act forbids an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). To avoid dismissal, a plaintiff must establish a prima facie case of discrimination by showing that (1) she is a member of a protected class; (2) she is competent to perform the job or is performing her duties satisfactorily; (3) she suffered an adverse employment decision or action; and (4) the decision or action occurred under circumstances giving rise to an inference of discrimination based on her membership in the protected class. Dawson v. Bumble Bumble, 398 F.3d 211, 216 (2d Cir. 2005) (restating requirements of prima facie case as stated in McDonnell Douglas v. Green, 411 U.S. 792 (1973)).
A plaintiff's claim that "a tangible employment action resulted from a refusal to submit to a supervisor's sexual demands," known as quid pro quo sexual harassment, adequately alleges "a change in the terms and conditions of employment that is actionable under Title VII." Schiano v. Quality Payroll Sys., 445 F.3d 597, 603 (2d Cir. 2006) (quoting Burlington Indus. v. Ellerth, 524 U.S. 742, 753 (1998)). An allegation that "the workplace is permeated with discriminatory intimidation, ridicule, and insult [based on, inter alia, sex] that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment" also states a claim under Title VII, even if no adverse employment action is alleged.See id. at 604 (quoting Harris v. Forklift Sys., 510 U.S. 17, 21 (1993)) (brackets in original). In addition, a plaintiff's claim that a defendant took an adverse action against her for engaging in a protected activity — a retaliation claim — is actionable under Title VII. To establish a prima facie case of retaliation, plaintiff must show that: (1) she engaged in a protected activity; (2) her employer was aware of this activity; (3) the employer took adverse employment action against her; and (4) a causal connection exists between the alleged adverse action and the protected activity. Id. at 608.
II. Plaintiff's Claim of Discrimination Based on Sexual Orientation
Plaintiff fails to state a claim upon which relief can be granted because her claim alleges discrimination because of sexual orientation. "The law is well-settled in this circuit and in all others that have reached the question that . . . Title VII does not prohibit harassment or discrimination because of sexual orientation." Dawson, 398 F.3d at 217. In her written complaint and at the pre-trial conference, plaintiff repeatedly stated and affirmed that the basis of her claim is discrimination against her because she is a gay woman. See Compl. ¶ 7; Tr. at 4-11. Persons of homosexual orientation do not constitute one of the protected classes enumerated in 42 U.S.C. § 2000e-2(a)(1); thus it appears beyond doubt that the plaintiff can prove no set of facts showing that she was subject to an adverse employment decision or action that occurred under circumstances giving rise to an inference of discrimination based on her membership in a class protected by the statute. See Dawson, 398 F.3d at 216.
Plaintiff's memorandum in opposition to defendant's motion to dismiss reframes her complaint as one involving gender stereotyping "because she did not conform with the supervisors [sic] ideas of what women should look like or act like and was vilified for not being 'feminine' enough." Opp. at 4. Whatever the merits of the "gender stereotyping theory of Title VII liability," the Second Circuit has expressly ruled that "it should not be used to 'bootstrap protection for sexual orientation into Title VII.'" Dawson, 398 F.3d at 217 (quotingSimonton v. Runyon, 232 F.3d 33, 38 (2d Cir. 2000)). To the extent the gender stereotyping theory of Title VII liability has any purchase on the jurisdiction of federal courts, plaintiff has not alleged any facts that, if proven, would show that she was subject to gender stereotyping. Plaintiff has not alleged that any employee of the ASPCA commented on, reacted to, or in any other way took action that affected plaintiff on the basis of a gender stereotype. See id. at 221 (contrasting Dawson's allegations vel non with female accountant's allegations recounted in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)). Thus even if plaintiff's gender stereotyping theory of liability were sufficient to resist dismissal under Rule 12(b)(6), her complaint simply states legal conclusions and summary characterizations as if they were facts and must be dismissed.See Papasan, 478 U.S. at 286.
III. Plaintiff's Retaliation Claim
Plaintiff's retaliation claim fails because she has not alleged that her employer took an adverse employment action against her. Her complaint states that the ASPCA made false statements in an EEOC hearing and failed to disclose certain documents in arbitration. See Complaint ¶ 8. Making statements in administrative or arbitral proceedings is not an adverse employment action, and the alleged statements did not change the terms of plaintiff's employment. Thus if plaintiff were to prove her allegations, she would not establish that her employer retaliated against her. See Schiano v. Quality Payroll Sys., 445 F.3d at 609 ("An adverse employment action is a materially adverse change in the terms and conditions of employment."). Plaintiff's claim that defendant suspended her in retaliation for reporting to management that her supervisor had sexually harassed her, mentioned in bald conclusions in her brief but not in her complaint, is inconsistent with the allegations in the complaint; facts stated in the exhibits attached to plaintiff's complaint and in her opposition brief undermine any such claim of retaliation. According to both sources, plaintiff was placed on paid leave on June 29, 2004. In her opposition, plaintiff states that she was asked "to write a few lines" about "her report that her supervisor sexually harassed her" on the same day. Opp. at 3. Instead of committing her report to writing, plaintiff replied that she preferred that a prior voice mail to human resources serve as her statement, but there appears to be no such voice mail. Thus according to her opposition papers, Kiley apparently first reported sexual harassment on the very same day as she was placed on administrative leave for her own harassment of Karen Lopez. Even construed liberally, therefore, plaintiff's conclusory arguments, without supporting allegations of fact, cannot be treated as tantamount to a pleading. See Papasan , 478 U.S. at 286.