Summary
denying motion to dismiss because plaintiff provided fair notice of her race and gender discrimination claims under Swierkiewicz
Summary of this case from Timothy v. Our Lady of Mercy Medical CenterOpinion
02 Civ. 0947 (RCC)(RLE)
September 30, 2003
OPINION AND ORDER
Pro Se plaintiff Pamela M. Harrison ("Plaintiff) brings this employment discrimination action against defendants New York City Administration for Children's Services ("ACS"), Frank Olton, John Pape, and Anthony Defazio (collectively "Defendants"), pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000 et seq. ("Title VET). Harrison alleges that defendant employers failed to approve her transfer requests to ACS's Bronx office starting in April 1999, and approximately every six months thereafter, on the basis of her race, color, and gender. Harrison also alleges that she has suffered continuous harassment and retaliation since April 1999. After this case was referred to Magistrate Judge Ronald L. Ellis, Defendants filed a motion to dismiss. Magistrate Judge Ellis issued a Report and Recommendation ("Report") on July 7, 2003.
I. Background
Plaintiff, an African American woman, alleges that she was continuously denied a transfer from ACS's central office in Manhattan to its office in the Bronx based on her race, gender, and color. She asserts that "other Caucasian and non African American women were granted the opportunity to transfer to locations closer to their homes." She also alleges that she was continually harassed because of her race, gender, and color.
Plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") on July 19, 2000, and the EEOC issued Plaintiff a Right-To-Sue letter on May 3, 2001. A second Right-To-Sue letter was issued to Plaintiff on November 11, 2001. Plaintiff claims that she received the second letter on November 15, 2001, and that she never received the first letter, suggesting that it was sent to the wrong address. On March 12, 2002, the EEOC sent Plaintiff a letter advising her that the November 11th letter was sent in error and was rescinded, but that the May 3rd letter was still operative. Plaintiff filed this action on February 6, 2002. She was fired by Defendants on February 11, 2002. Plaintiff filed an amended complaint on September 9, 2002.
On November 1, 2002, Defendants filed a motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), on the grounds that Plaintiffs complaint is time-barred and, alternatively, that Plaintiff fails to state a claim upon which relief can be granted. Defendants specifically claim that Harrison has not pled facts sufficient to demonstrate an "adverse employment action" as established under the framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Defendants also argue that Harrison's harassment claim should be dismissed as insufficiently stated, and that Harrison cannot maintain a course of action under Title VII against Defendants in their individual capacities.
In a Report and Recommendation ("Report") dated July 7, 2003, Magistrate Judge Ellis recommended that Defendants' motion to dismiss be granted in part and denied in part. The Report rejects Defendants' argument that Plaintiffs complaint is time barred, but recommends that the following claims be dismissed: the retaliation claim; any claims which Plaintiff alleges took place before September 24, 1999; and the claims against both the ACS and the individual Defendants. Finally, the Report finds that the complaint sufficiently states a claim for harassment and for discrimination in the form of a refusal to transfer. Defendants have filed objections to the Report's finding that Plaintiff sufficiently states a claim for harassment and discrimination.
II. Discussion
A. Standard of Review
A court may adopt those portions of a Report and Recommendation to which the parties do not object and with which the court finds no clear error. See Pizzaro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991). Conversely, the district court applies a de novo standard of review to those parts of the Report to which any party objects. See FED. R. CIV. P. 72(b).
Defendants object to Magistrate Judge Ellis' recommendation against dismissal of Plaintiffs harassment claim and her allegation of adverse employment action. Therefore, the Court will review these portions of the Report de novo; it will review the remainder of the Report for clear error.
B. Timeliness
Defendants make two arguments with respect to the timeliness of Plaintiffs claims. First, Defendants argue that the complaint must be dismissed because it was filed more than 90 days after Plaintiff received her Right-To-Sue letter from the EEOC. Second, Defendants assert that any claim Plaintiff raises based on action occurring prior to September 24, 1999 is time barred because it would violate the 300-day time period within which a claimant must file charges with the EEOC.
1. 300-Day Deadline for Filing Claim with the EEOC
Defendants argue that certain claims made by Plaintiff violate the time limitation in which a claimant must file charges with the EEOC. A Title VII claim is time barred if it is not filed within 300 days of the date the alleged acts occurred. See 42 U.S.C. § 2000e-5(e)(1);National Railroad Corporation v. Morgan, 536 U.S. 101, 109(2002). Similarly, "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged timely filed charges." Id. at 113.
Plaintiffs claim of harassment, is not time barred, and may include acts that occurred outside of the 300-day filing period, as long as they are related as one single act. See Id. at 117. Because the Court finds that Plaintiffs claims of retaliation and failure to transfer are dismissed for failure to state a claim as set forth below, it need not address whether those claims are time barred by the 300-day limitation.
1. 90-day Deadline for Filing Complaint
A Title VII claim must be filed within 90 days of the claimant's receipt of a Right-To-Sue letter from the EEOC. See Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 525 (2d Cir. 1996). 'This ninety-day period begins to run on the date the claimant actually receives the right-to-sue notice/' Lm v. New York City Admin, for Children's Servs., 2001 WL 964016, at *3 (S.D.N.Y. 2001) (citingAbidekum v. New York City Transit Auth., 1998 WL 296372, at *3 (E.D.N.Y. 1998).
Defendants argue that Plaintiffs claim is untimely because the Right-To-Sue letters as issued on May 3, 2001 and that Plaintiff did not file this action until February 6, 2002, well beyond the 90-day time limitation. Magistrate Judge Ellis recommended that Defendants motion for dismissal based on timeliness be denied because Plaintiff alleges that she did not receive the right-to-sue letter that was dated May 3, 2002.
When a "complaint alleges a late date of receipt, or non-receipt, for purposes of a 12(b)(6) motion, a court must accept the allegations as true, and deny defendant's motion to dismiss for timeliness." Ruiz v. New York City Fire Dep't. 2001 WL 767009, at *2 (S.D.N. Y. 2001). Because Plaintiff alleges that she did not receive the Right-To-Sue letter until May 3, 2002, Defendants' motion to dismiss for timeliness of the complaint must be denied.
C. Failure to State a Claim
Defendants also move to dismiss the complaint, pursuant to Fed.R.Civ.P. 12(b)(6), on the basis that Plaintiff has failed to state a claim. In reviewing a motion to dismiss, the court must "accept all of the factual allegations in [Plaintiff's] complaint as true." Berkovitz v. United States, 486 U.S. 531, 540 (1988). The court must also draw all reasonable inferences in favor of the plaintiff. See Albright v. Oliver, 510 U.S. 266, 268 (1994). In a motion to dismiss, the Court does not test the weight of the evidence, but looks to the "legal feasibility of the complaint." Cooper v. Parksy Commodities, Inc., 140 F.3d 433, 440 (2d Cir. 1998).
1. Retaliation Claim
In order to make out a prima facie case for retaliation, a plaintiff must demonstrate that "(1) she was engaged in an activity protected under Title VII; (2) the employer was aware of plaintiffs participation in the protected activity; (3) the employer took adverse action against the plaintiff based upon her activity; and (4) a causal connection existed between the plaintiffs protected activity and the adverse action taken by the employer."Cosgrove v. Sears. Roebuck Co., 9 F.3d 1033, 1039 (2d Cir. 1993).
While Plaintiff alleges that her firing was retaliatory, she does not allege which protected activity caused the retaliation. Neither her charges with the EEOC nor with the New York City Commission on Human Rights ("NYCCHR") could form a basis for a retaliation claim, since Plaintiff was not terminated until 19 months after she filed charges with these administrative agencies. See Clark City School Dist. v. Breeden, 532 U.S. 268, 273 (2001). Moreover, firing Plaintiff could not be in retaliation for her filing of this action because she was actually fired before Defendants were served with the complaint. Therefore, Defendant's motion to dismiss Plaintiff's retaliation claim is granted.
2. Claims against ACS and the Individual Defendants
Defendants argue that Plaintiff's claim against ACS should be dismissed because it is a non-suable agency of the City of New York. Plaintiff cannot maintain an a cause of action against defendants in their individual capacities because "individuals are not subject to liability under Title VII." Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000). The claims against both the ACS and the individual Defendants are therefore dismissed.
The New York City charter states that "all actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the City of New York and not in that of any agency, except where otherwise provided by law." N.Y. City Charter Ch. 16 § 396. Because ACS is an agency of the City of New York, it is not a suable entity and Plaintiff's claims against it must be dismissed. Plaintiff is granted leave to amend her complaint within 30 days so that she may properly sue the City of New York.
Similarly, Plaintiff's claim against Olton, Pape, and Defazio in their individual capacities must also be dismissed because "individuals are not subject to liability under Title VII." Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000) (citing Tomka v. Seiler Corporation, 66 F.3d 1295, 1313 (2d Cir. 1995)). The Court agrees with Magistrate Judge Ellis' recommendation that Plaintiffs claims against the individual defendants should be dismissed without prejudice to amend the complaint to sue the individual defendants under New York's Human Rights Law, N.Y. Exec. Law § 296.
3. Adverse Employment Action Claim
In their motion to dismiss, Defendants additionally argued that Plaintiff failed to properly state an adverse employment claim under Title VII. Magistrate Judge Ellis disagreed, finding that the denial of Plaintiff's request to transfer constituted an adverse employment action. Defendants now object, asserting that Judge Ellis erred in concluding that Plaintiff properly stated an adverse employment action.
The Supreme Court has held that in order for a claimant to make out a prima facie Title VII claim, he must show that she "(1) was a member of a protected class, (2) was qualified for the job in question, (3) suffered an adverse employment action, and that (4) others similarly situated were more favorably treated." Dawson v. Bumble Bumble, 246 F. Supp.2d 301, 312 (S.D.N.Y. 2003) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 803 (1973). It is not disputed by either party that Plaintiff was a member of a protected class and that she was qualified for the job in question. The dispute in this case turns on the question of whether Defendants subjected Plaintiff to adverse employment action by refusing to transfer her from its main office in Manhattan to its office in the Bronx.
The Second Circuit has routinely held that in order to claim an adverse employment action, a claimant must "endure a 'materially adverse change' in the terms and conditions of employment." Galabya v. New York City Bd. of Education, 202 F.3d 636, 640 (2d Cir. 2001). A materially adverse change must be one that is "more disruptive than a mere inconvenience or an alteration of job responsibilities." Id. InPimentel v. City of New York, 2002 U.S. Dist. LEXIS 8454 (S.D.N.Y. 2002), the court provided guidelines to be used in deciding whether a plaintiff has suffered adverse employment action. The court stated that adverse employment action is sufficiently demonstrated by changing the terms and conditions of employment when an employee "(i) has the same job responsibilities and compensation but an increase in workload and location-specific stress; (ii) has different job responsibilities; (iii) is no longer eligible for promotion opportunities; or (iv) experiences a net loss in salary." Id. at * 10. The court also held that a denial of a request for transfer may constitute an adverse employment action where there is an unfavorable working environment in the employee's place of employment prior to the request. Id. at * 10.
The question at issue here is whether Defendants' denial of Plaintiff's request for transfer constitutes an adverse employment action. The Court must therefore determine whether Plaintiff was subjected to an unfavorable working environment prior to her request to transfer.
Plaintiff alleged that she wanted to be transferred to the Bronx office of ACS so that she could be nearer to her home and properly care for her three children. Working at the Manhattan office may have been an inconvenience for Plaintiff; however, there is no allegation that working in the Manhattan office caused Plaintiff to suffer a loss in income, a loss of the opportunity to be promoted, a greater workload than a similarly situated employee, or any other action that would place her in a better position by being transferred to the Bronx office. Absent any of these allegations, and absent any other claims that the Manhattan office provided an unfavorable working environment, Plaintiffs claim of adverse employment action cannot stand. Therefore Plaintiffs Title VII claim based on denial of her request to transfer is dismissed.
4. Harassment Claim
Defendants also move to dismiss Plaintiffs harassment claim. They assert that the claim should be dismissed because it failed to give them notice of what the Plaintiffs claim is and the grounds upon which it rests. Federal Rule of Civil Procedure 8(a) states "a pleading which sets forth a claim for relief shall contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief" Fed.R.Civ.Pro. (8)(a)(2). In Swierkiewicz v. Sorema, 534 U.S. 506, 512 (2002), the Supreme Court held that "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." In sum, Plaintiffs harassment claim in the pleadings only needs to "give the defendant fair notice of what the Plaintiffs claim is and the grounds upon which it rests."Conley v. Gibson, 355 U.S.41, 47 (1957).
Plaintiffs complaint of February 6, 2002 states that beginning in April 1999, she was continually harassed based upon her race, gender, and color. These allegations effectively state a hostile workplace claim. InSwierkiewicz, the Supreme Court held that a complaint in an employment discrimination lawsuit need not contain specific facts establishing a prima facie case in order to survive a motion to dismiss. 534 U.S. at 508. Here, the complaint provides Defendants fair notice of what the claim is (harassment) and the grounds upon which it rests (based on race, gender, and color). Therefore, Defendants' motion to dismiss Plaintiffs harassment claim is denied.
III. Conclusion
After reviewing the record and the Report and Recommendation, the Court holds that: (1) Defendants motion to dismiss for timeliness and failure to state a harassment claim is denied; (2) Plaintiffs claims that relate to retaliation and failure to promote, to the extent the acts occurred before September 24, 1999, are time-barred and should be dismissed; (3) Plaintiff should be granted leave to amend her complaint so that she may properly sue the City of New York; (4) Plaintiffs claims against the individual defendants should be dismissed without prejudice; and (5) Plaintiffs claim of adverse employment action should be dismissed.