Opinion
00 Civ. 6533 (JGK)
January 24, 2002
OPINION AND ORDER
The plaintiff, Linda Lieberman, is a former employee of the defendant, the law firm of Fine, Olin Anderman, P.C. ("Fine, Olin"). On August 30, 2000, the plaintiff brought this action, alleging that the defendant violated 42 U.S.C. § 1981 and Section 8-107.1(a) of the New York City Human Rights Law by terminating her employment in order to mollify, or placate the anger of, one or more African-American employees at the law firm, one of whom had claimed that the plaintiff was creating a racially hostile work environment at the office. The defendant answered the Complaint and now moves for judgment on the pleadings pursuant to Rule 12(c) of the Rules of Federal Procedure.
I. A.
The standard for granting a Rule 12(c) motion for judgment on the pleadings is identical to that of a Rule 12(b)(6) motion for failure to state a claim. See Irish Lesbian Gay Org. v. Giuliani, 143 F.3d 638, 644 (2d Cir. 1998); Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994); Ad-Hoc Comm. of the Baruch Black Hispanic Alumni Ass'n v. Bernard M. Baruch Coll., 835 F.2d 980, 982 (2d Cir. 1987). Under that standard, the Court must accept the allegations contained in the Complaint as true and draw all reasonable inferences in favor of the plaintiff; the Court should not dismiss the complaint "`unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [the plaintiff's] claim which would entitle [the plaintiff] to relief.'"See Ad-Hoc Comm. of Baruch, 835 F.2d at 982 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Therefore, the defendant's present motion should only be granted if it appears that the plaintiff can prove no set of facts in support of her claim that would entitle her to relief. See Conley, 355 U.S. at 45-46; Grandon, 147 F.3d at 188; see also Goldman v. Belden, 754 F.2d 1059, 1065 (2d Cir. 1985)
B.
Unless otherwise indicated, the Complaint sets forth the following facts, which are accepted as true for the purposes of this motion for judgment on the pleadings. The plaintiff, Linda Lieberman, is a self-described Caucasian female who held the position of "Law Firm Administrator" at the defendant law firm Fine, Olin Anderson, P.C. ("Fine, Olin") from on or about August 4, 1998 to on or about August 13, 1999. (Compl. ¶ 3.)
During the course of her employment, the plaintiff complained on a number of occasions to Marvin Anderman, Esq., a senior partner at the law firm, that Janet Rogers, Esq., an African-American female employee, was harassing her. (Compl. ¶¶ 6-8.) Anderman told the plaintiff that he had personally spoken to Rogers, but the harassment continued after these conversations. (Compl. ¶¶ 7, 8.) The Complaint does not allege that this harassment was racially discriminatory or created a racially hostile work environment for the plaintiff.
On or about August 4, 1999, Annel Tineo, an African-American female who was a receptionist at Fine, Olin, complained to Anderman that she believed the plaintiff was seeking to fire her or have her fired. (Compl. ¶ 9.) On or about August 5, 1999, Tineo claimed to be the victim of a racially hostile work environment due to conduct on the part of the plaintiff. (Comp. ¶¶ 11, 12.) The defendant began an internal investigation into these charges, which was allegedly undertaken by Vincent Rossillo, Esq., another partner at Fine, Olin. (Compl. ¶¶ 12, 13.) At or around this time, Anderman explained to the plaintiff that the firm was forced to conduct the investigation because Tineo's claims contained allegations of racial discrimination. (Compl. ¶ 12.) The Complaint does not identify anyone apart from Anderman and Rossillo who may have been decision-makers at Fine, Olin, and does not identify the race of these two persons.
Shortly after the investigation began, Anderman accused the plaintiff of interfering with the investigation. (Compl. ¶ 13.) When the plaintiff denied the accusation, Anderman stated: "I feel like a prisoner in my own home. They [African-American workers] are backing me into a corner and I am a hostage to the workforce. I cannot take a 40-year old firm and send it up the river. There is nothing I can do except to go along with this." (Compl. ¶ 15.) On August 13, 1999, the defendant terminated the plaintiff's employment. (Compl. ¶ 16.) The defendant subsequently hired Jeanette Aceveda, a Hispanic female, to replace the plaintiff. (Id.)
On August 30, 2000, the plaintiff brought this action alleging that the defendant violated 42 U.S.C. § 1981 and the New York City Human Rights Law by terminating her on the basis of "race-based reasons," specifically, in order to "mollify one or more African-American employees." (Compl. ¶ 21.)
II.
The defendant argues that the plaintiff's first cause of action should be dismissed pursuant to Rule 12(c) of the Federal Rules of Civil Procedure because the plaintiff has failed to plead a claim for discrimination under 42 U.S.C. § 1981. Section 1981 states, in relevant part, that:
[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens . . .
The statute covers discriminatory discharges in the private employment context. See Lauture v. International Business Machines Corp., 216 F.3d 258, 260-61 (2d Cir. 2000).
The Court of Appeals for the Second Circuit has explained that to establish a claim under § 1981, a plaintiff must show that the defendant discriminated against the plaintiff on the basis of race, that the discrimination was intentional, and that the discrimination was a "substantial" or "motivating factor" for the defendant's actions. Tolbert v. Queens College, 242 F.3d 58, 69-70 (2d Cir. 2001). In this Circuit, "a complaint consisting of nothing more than naked assertions, and setting forth no facts upon which a court could find a violation of the Civil Rights Acts, fails to state a claim" under the standards applicable to Rule 12(b)(6) and 12(c) motions. Martin v. New York State Dept. of Mental Hygiene, 588 F.2d 371, 372 (2d Cir. 1978) (per curiam) (citation omitted).
The defendant argues that the plaintiff failed to meet her § 1981 pleading requirements because she is a self-described Caucasian female, and because Caucasians are allegedly not "racial minorities" for § 1981 purposes. In support of this argument, the defendant cites a number of cases in which courts have dismissed § 1981 actions when the plaintiff has claimed only that the plaintiff was Caucasian. See, e.g., Sherlock v. Montefiore Medical Ctr., 84 F.3d 522, 527 (2d Cir. 1996) (dismissing § 1981 claim because plaintiff, who was Caucasian, "did not allege that she was a member of a racial or ethnic minority"); Kelly v. American Museum of Natural History, No. 98 Civ. 3589, 1999 WL 782475 (S.D.N.Y. Sep. 30, 1999) (dismissing § 1981 claim when plaintiff, a "white male," was "not a member of a racial minority," and claimed only that "he was terminated because he [was] a white male born in the United States."); see also Lauture, 216 F.3d at 261 (in a case brought an by an African-American plaintiff, describing the first element of a § 1981 claim as "that she is a member of a racial minority.") However, inMcDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 (1976), the Supreme Court squarely held that § 1981 prohibits racial discrimination in private employment against whites as well as nonwhites. Id. at 285-896. In coming to this conclusion, the Court rejected the argument that the language in § 1981 concerning "the same right . . . to make and enforce contracts . . . as as enjoyed by white citizens", 42 U.S.C. § 1981 (emphasis added), was meant to exclude claims for racial discrimination against whites and indicated, instead, that this language was meant to emphasize the racial character of the discrimination covered. See McDonald, 427 U.S. at 287-88; see also Albert v. Carovano, 851 F.2d 561, 571 (2d Cir. 1988). The Supreme Court concluded that the white plaintiffs in that case, who had alleged that they had been discharged under circumstances where a similarly situated black employee was not discharged, stated a claim under § 1981. Id. at 287-88; see also Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 (1989) (allowing white former athletic director to bring § 1981 claim against individual principal for discrimination on the basis of race, but not allowing liability to be established against the school district absent a showing that discrimination was caused by a custom or policy on the part of the school district).
The Supreme Court later clarified that § 1981 prohibits not only discrimination based on race but also based on ancestry and ethnic characteristics. See Saint Francis College v. Al-Khazraji, 481 U.S. 604, 613 (1987). In doing so, the Supreme Court reiterated that its holding inMcDonald was that "white persons could maintain a § 1981 suit . . . . " Id.; see also Bass v. Board of County Comm'rs, 256 F.3d 1095, 1098, 1105 (11th Cir. 2001); Reynolds v. School district No. 1,, 69 F.3d 1523, 1528, 1532-36 n. 10 (10th Cir. 1995); Evans v. McKay, 869 F.2d 1341, 1344 (9th Cir. 1989); Reynolds v. Humko Prods., 756 F.2d 469, 472 (6th Cir. 1985); Keating v. Carey, 706 F.2d 377, 383 n. 9 (2d Cir. 1983); Chaline v. KCOH, Inc., 693 F.2d 477, 478-79 (5th Cir. 1982); Krohn v. Harvard Law School, 552 F.2d 21, 25 (1st Cir. 1977); Morse v. City of New York, No. 00 Civ. 2528, 2001 WL 968996 (S.D.N.Y. Aug. 21, 2001); Davis v. Halpern, 768 F. Supp. 968, 983 (E.D.N.Y. 1991)
There is no dispute among the parties that a Caucasian plaintiff can assert a claim under § 1981 if the plaintiff was discriminated against because of racial animus against a third party with whom the plaintiff was appropriately related. See, e.g., DeMatteis v. Eastman Kodak Co., 511 F.2d 306 (2d Cir.), modified on other grounds, 520 F.2d 409 (1975) (white person can bring a § 1981 claim alleging that he was forced into retirement because he had sold his house to an African-American person); Alizadeh v. Safeway Stores, Inc., 802 F.2d 111, 114 (5th Cir. 1986) (allowing § 1981 suit by white female alleging that she was discharged because her husband was Iranian); Parr v. Woodmen of World Life Ins. Co., 791 F.2d 888, 890 (11th Cir. 1986) (allowing § 1981 claim by white male alleging he was not hired because his wife was black); Des Vergnes v. Seekonk Water Dist., 601 F.2d 9, 14 (1st Cir. 1979) (allowing § 1981 suit by non-minority real estate developer alleging that adverse actions towards him were motivated by racial animus towards the developer's prospective tenants).
Nevertheless, the fact that § 1981 permits a lawsuit by a white plaintiff does not resolve this motion. The plaintiff must still allege that discrimination based on race was a motivating factor in her termination. See Tolbert v. Queens College, 242 F.3d 58, 69 (2d Cir. 2001). Thus, in order to survive a motion to dismiss, "the plaintiff must specifically allege the events claimed to constitute intentional discrimination as well as circumstances giving rise to a plausible inference of racially discriminatory intent." Yusuf v. Vassar College, 35 F.3d 709, 713 (2d Cir. 1993). However, the plaintiff presents no factual allegation to show that either Anderman or Rossillo, or any other decision-makers at Fine, Olin, acted out of racial animus towards Caucasians or that discrimination against her because she is Caucasian was a motivating reason to terminate her employment.
Rather, the plaintiff clarifies that when she alleges she was terminated for "race-based reasons," she means to claim that she was terminated to "mollify one or more African-American employees." (Compl. ¶ 21.) This falls short of an allegation that the defendant terminated the plaintiff because she is Caucasian, or because of any animus towards Caucasians. The plaintiff also does not allege that the defendant acted out of a preferential attitude toward African-Americans on the basis of their race, rather than a concern to respond to potentially actionable complaints of discrimination, which happened to have been raised by African-American employees. Taking actions to investigate and cure alleged discrimination does not amount to discrimination just because the actions are taken in response to claims made by racial minorities. Cf. Faragher v. City of Boca Raton, 524 U.S. 775, 787 n. 1, 807-10 (1998) (holding that employers have obligations to investigate complaints of discrimination in some circumstances).
While the plaintiff alleges that "Fine, Olin would not have terminated [her] if she, like Ms. Tineo, had been an African-American female," (Compl. ¶ 19), there are no facts to support such a conclusory allegation. See Tolbert, 242 F.3d at 69; Yusuf, 35 F.3d at 713. However, the plaintiff has requested leave to replead if the § 1981 claim is dismissed based on the insufficiency of the pleadings. Such leave to replead should normally be given. See. e.g., Mian v. Donaldson, Lufkin Jenrette Secs. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993) (per curiam). Therefore, the first cause of action is dismissed without prejudice.
III.
The defendant argues that the plaintiff's second cause of action should be dismissed for want of supplemental jurisdiction. Apart from the plaintiff's first cause of action, which alleges a violation of 42 U.S.C. § 1981, the plaintiff does not allege any other federal claim in the Complaint. The only remaining claim alleges a violation of the New York City Human Rights Law, which is a state law claim. Thus, with the dismissal of the plaintiff's § 1981 claim, there is no longer any federal question jurisdiction in this case. Moreover, the Complaint does not allege diversity jurisdiction pursuant to 28 U.S.C. § 1332, and diversity appears to be lacking from the face of the Complaint. The case has also not yet proceeded to trial and presents no other exceptional circumstances that might warrant maintaining jurisdiction over the state law cause of action. In these circumstances, the defendant is correct that the Court should decline to exercise supplemental jurisdiction and that the plaintiff's second cause of action should be dismissed for lack of jurisdiction. See 28 U.S.C. § 1367 (c)(3); Giordano v. City of New York, 274 F.3d 740, 754 (2d Cir. 2001);Morse v. University of Vermont, 973 F.2d 122, 128 (2d Cir. 1992); DeVito v. Incorporated Village of Valley Stream, 991 F. Supp. 137, 145 (E.D.N.Y. 1998); Irish Lesbian and Gay Organization v. Bratton, 882 F. Supp. 315, 319 (S.D.N.Y. 1995), aff'd, 52 F.3d 311 (2d Cir. 1995)
IV.
For the foregoing reasons, the plaintiff's first cause of action is dismissed on the pleadings for failure to state a claim under § 1981. The plaintiff may file an amended Complaint within 20 days of the date of this decision. If the plaintiff repleads her § 1981 claim, she may also reassert her supplemental state law claim.