Opinion
01 Civ. 8687 (SAS)
June 4, 2002
For Plaintiff (Pro Se): Anthony G. Levesanos, 7 Bramley Lane, Dobbs Ferry, Ny 10522, (212) 264-0104
For Defendant: David J. Kennedy, Assistant United States Attorney, United States Attorney's Office Southern District of New York, One Saint Andrew's Plaza, New York, New York 10007, (718) 422-5649
MEMORANDUM OPINION AND ORDER
Anthony Levesanos, appearing pro Se, brings this action under the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), alleging that he was denied a promotion on the basis of his race (Caucasian), color (White), and national origin (Greek). See Complaint ("Compl.") ¶ 7. Defendant now moves to dismiss the complaint on two grounds: (1) This Court lacks jurisdiction over Levesanos's claims of discrimination based on race and color; and (2) Levesanos has failed to plead a viable Title VII claim. For the reasons below, this motion is granted in part and denied in part.
I. THIS COURT LACKS SUBJECT MATTER JURISDICTION OVER PLAINTIFF'S CLAIMS ALLEGING DISCRIMINATION ON THE BASIS OF RACE AND COLOR
Before a plaintiff brings a discrimination claim in federal court under Title VII, he must first present his claim to the Equal Employment Opportunity Commission (EEOC). See Brown v. Coach Stores, Inc., 163 F.3d 706, 712 (2d Cir. 1998). "The purpose of this exhaustion requirement is "to give the administrative agency the opportunity to investigate, mediate, and take remedial action.'" Id., (quoting Stewart v. United States Immigration Naturalization Service, 762 F.2d 193, 198 (2d Cir. 1985)). As a result, courts lack jurisdiction over any claim that was not raised at the administrative level. See id.
The form complaint used by plaintiff to file this action advised plaintiff that "[o]nly those grounds raised in the charge filed with the Equal Employment Opportunity Commission can be considered by the federal district court." Compl. ¶ 7.
Plaintiff's EEOC complaint only "claim[ed] that he was discriminated against on the basis of national origin (Greek ancestry) and reprisal (prior EEO activity under Title VII)." EEOC Decision, attached to Notice of Motion by Assistant United States Attorney David J. Kennedy, Counsel for Defendant, at 1. Nonetheless, plaintiff now raises claims of discrimination based on race and color — claims he did not raise before the EEOC. See Compl. ¶ 7. As this Court has explained before:
See also Formal Complaint of Discrimination, attached as Exhibit 9 to Plaintiff's Opposition to Motion, at 6-7 (alleging that promotion was denied "because I am of Greek extraction, in clear and overt violation of Title VII" and "because I was previously engaged in protected EEO activity").
[A]lthough plaintiff alleges defendant unlawfully discriminated against him on the basis of national origin, plaintiff failed to exhaust the administrative remedies available to him for that claim prior to bringing suit before this Court. Consequently, I do not have jurisdiction to adjudicate plaintiff's claim of discrimination based on national origin.Kelly v. American Museum of Natural History, No. 98 Civ. 3589, 1999 WL 782475, at *2 (S.D.N.Y. Sept. 30, 1999). I have "no reason . . . to suspect that the EEOC had an opportunity to investigate the possibility" of discrimination that was not alleged at the administrative level. Id. at *2 n.l. Thus, the only claim that plaintiff may pursue is discrimination based on his national origin.
See also Mathura v. Council for Human Servs. Home Care Servs., Inc., No. 95 Civ. 4191, 1996 WL 157496, at *2 (S.D.N Y Apr. 2, 1996) (holding that court lacked jurisdiction to consider Title VII claim based on national origin where EEOC had issued right to sue letter after investigating race/color discrimination claim).
II. PLAINTIFF HAS STATED A TITLE VII CLAIM
Under the Federal Rules of Civil Procedure, a plaintiff need only provide "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "Such a statement must simply "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Swierkiewicz v. Sorema N.A., 122 S.Ct. 992, 998 (2002) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). "This simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims." Id.
Thus, when deciding a motion to dismiss, courts "must accept as true all of the factual allegations contained in the complaint." Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164 (1993). Indeed, courts have long been required to follow "the accepted rule that a complaint should not be dismissed for failure to state a claim unless 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, 355 U.S. at 45-46.
Defendant argues that plaintiff's case should be dismissed for failure to state a claim. Indeed, defendant points to this Court's decision inTappe v. Alliance Capital Management, L.P., 177 F. Supp.2d 176 (S.D.N.Y. 2001), for the proposition that complaints should be dismissed when plaintiffs make unsupported and conclusory claims. But Tappe does not support defendant's motion to dismiss for two reasons. First, Levesanos's 14-page complaint is far more specific than that alleged in Tappe. Second, and more importantly, the Second Circuit decisions on which this Court relied to dismiss Tappe's complaint (although with leave to amend) were recently abrogated by the Supreme Court. See Swierkiewicz, 122 S.Ct. at 998. In fact, Swierkiewicz was critical of courts in this circuit for requiring too much of plaintiffs at the pleading stage.
See, e.g., Tappe, 177 F. Supp.2d at 184 ("In this case, the only facts that Tappe alleges are that (1) he was fired and (2) he was told he "did not fit with the profile of the High Yield Group and its strategy going forward' and (3) "each [sic] other portfolio manager is a member of a protected class by virtue of his or her gender, race and/or age.'") (citing Complaint ¶¶ 14, 23).
As Judge Richard Posner of the Seventh Circuit in the aftermath of Swierkiewicz:
A complaint that complies with the federal rules of civil procedure cannot be dismissed on the ground that it is conclusory or fails to allege facts. The federal rules require (with irrelevant exceptions) only that the complaint state a claim, not that it plead the facts that if true would establish (subject to any defenses) that the claim was valid. All that need be specified is the bare minimum facts necessary to put the defendant on notice of the claim so that he can file an answer. All that's required to state a claim in a complaint filed in a federal court is a short statement, in plain (that is, ordinary, non-legalistic) English, of the legal claim. . . . The courts keep reminding plaintiffs that they don't have to file long complaints, don't have to plead facts, don't have to plead legal theories.Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002) (Posner, J.) (citations omitted). Because Levesanos has provided a "short and plain" statement that gives the defendant "fair notice of what the plaintiff's claim is and the grounds upon which it rests," the complaint may not be dismissed at this stage of the proceeding. Conley v. Gibson, 355 U.S. at 47.
III. CONCLUSION
For the reasons above, defendant's motion to dismiss plaintiff's claims of discrimination on the basis on race and color is granted. Defendant's motion to dismiss the complaint for failure to state a claim is denied.
Defendant's motion for summary judgment is also denied. Whether a "genuine issue as to any material fact," Fed.R.Civ.P. 56(c), will exist after plaintiff has conducted discovery cannot be determined at this stage in the proceeding. Defendant's motion to stay discovery pending disposition of the motions to dismiss plaintiff's complaint is denied as moot.