Summary
finding no Title VII liability for supervisor and CEO who allegedly, inter alia, failed to promote plaintiff, failed to provide her with reasonable accommodations so she could perform the essential functions of her job, harassed her on the basis of her sex, and retaliated against her because she complained about discrimination or harassment direct towards her or others.
Summary of this case from Prudent v. CaspiOpinion
02-CV-6286 CJS
February 11, 2003
HessDell Joiner, pro se, Macedon, New York, for plaintiff.
Lucreita C. Clemons, Esq., Ballard Spahr Andrews Ingersoll, LLP, Philadelphia, Pennsylvania, for defendants.
DECISION AND ORDER
INTRODUCTION
This employment discrimination case is before the Court on defendants' motions for dismissal of the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and plaintiff's motion to dismiss her Americans with Disabilities Act ("ADA") claim. Individual defendants Ann Saunders and Jill Scolamiero seek dismissal of plaintiff's complaint against them in its entirety, arguing that individual employees cannot be held liable under Title VII of the Civil Rights Act of 1964 ("Title VII") or the Age Discrimination in Employment Act of 1967 ("ADEA"). Defendant American Red Cross Blood Services, New York-Penn Region, the actual name of plaintiff's employer, seeks partial dismissal under Rule 12(b)(6) for all claims which preceded August 24, 2001, 300 days before the date of plaintiff's formal complaint with the New York State Division of Human Rights and the Equal Employment Opportunity Commission ("EEOC") containing her claims of hostile work environment due to sexual harassment, and disability discrimination. After considering the papers filed in support of and opposition to the motions, along with oral argument held on February 7, 2003, the Court grants defendants' motions in their entirety.
Plaintiff's two responses to defendants' two motions were also styled as notices of motion, but clearly they are simply responsive pleadings, not motions. The Court addresses them individually in the Conclusion, below.
LEGAL STANDARD FOR A MOTION TO DISMISS
In considering a motion for dismissal under Federal Rule of Civil Procedure 12, a defendant must show that the plaintiff can prove no set of facts in support of her claim that would entitle her to relief. See H.J. Inc. v. Northwest Bell Telephone Co., 492 U.S. 229, 249 (1989); see also 2 MOORE'S FEDERAL PRACTICE, § 12.34[1][a] (Matthew Bender 3d ed.). The Court must view the complaint, and draw all reasonable inferences, in the light most favorable to the non-moving party. Id.; see also 2 MOORE'S FEDERAL PRACTICE, § 12.34[1][b] (Matthew Bender 3d ed.) (court must accept plaintiff's factual allegations as true).
BACKGROUND
Accepting the facts alleged in the October 10, 2002, complaint as true for the purposes of this motion, plaintiff alleged that defendants discriminated against her in violation of Title VII and the ADEA. She claimed that the first discriminatory act occurred on May 30, 2001 and that thirteen subsequent acts of discrimination occurred through the date the suit was filed.
Plaintiff filed a complaint with the EEOC on June 20, 2002. Her EEOC complaint included claims that defendants: (1) did not award her merit raises and bonuses she had earned; (2) cut off her access to support staff, while her white co-workers' level of support increased; (3) rated her unfavorably without proper explanation; (5) constantly yelled and screamed at her; (6) set goals, from January 1-June 30, 2002, that were disproportionate to those set for white male coworkers; (7) denied her a more favorable account region in favor of another less senior white female coworker; and (8) threatened her and other female coworkers constantly and issued performance warnings for issues while not doing the same to male employees in the same or similar situations. EEOC closed its file without finding discrimination and provided plaintiff with a right to sue letter dated September 10, 2002.
In this Court, her complaint contains claims that defendants: (1) failed to promote her; (2) failed to provide her with reasonable accommodations so she could perform the essential functions of her job; (3) harassed her on the basis of her sex; (4) harassed her on the basis of unequal terms and conditions of employment; (5) retaliated against her because she complained about discrimination or harassment direct towards her, or others; and (6) committed "Job cruelty on the basis of recruiting donors up to the night before their company drive." Complaint at 3. Plaintiff further claims that defendants' conduct was discriminatory with respect to race, color, sex, sexual harassment, age, and disability.
In the factual portion of her form complaint, plaintiff relates that Ann Sanders ("Sanders") is the Chief Executive Officer of defendant American Red Cross and that Jill Scolarmero ("Scolamiero"), "represents my `big boss' from June to the present." Complaint at 4. Relevant to the motions pending before the Court is her claim that she was subjected to a sexually-derogatory remark from Gary Colvin on May 30, 2001, 386 days prior to her EEOC filing. She further states that although she reported it, nothing was done for six months. Complaint at 4.
The remainder of plaintiff's factual allegations are that: Gary Colvin is biased against female employees and left plaintiff to deal with the "effects of a hostile working environment"; plaintiff received unfair performance appraisals; she was being constantly yelled and screamed at; the two goals set for her by Gary Colvin were disproportionate to her race and age in relation to a younger white female employee; she was required to run up to thirty-two blood drives per month, whereas a younger white female employee was running only twenty-two, but was the number one account manager; her support services were cut off while all her co-workers' levels of support increased; her bonuses of approximately $15,000 were directly affected by the lack of support; she was constantly threatened with and actually issued performance warnings for issues that her white co-workers, in the same or similar situations, were not; she experienced a double standard toward the cellular phone; she was denied more controlled territories from December 2001 to the present while less senior white co-workers were given territories with less drives, support services, and bonus opportunities; and she was constantly tormented even while on a disability claim. Plaintiff alleges that her age is 46, she is female, and Black.
DISCUSSION
Motion to Dismiss Individual Defendants
Defendants Saunders and Scolarmiero move for dismissal of the complaint against them in its entirety on the basis that individual employees are not liable under Title VII or the ADEA. Plaintiff's memorandum of law in opposition to this motion cites cases allegedly supporting her position that Saunders and Scolarmero, as individuals, can be held liable for discriminatory acts under Title VII and the New York Human Rights Law. First, plaintiff has made no claim under the New York Human Rights Law, and second, plaintiff's reliance on those cases, is misplaced. Plaintiff relies on Goodstein v. Bombardier Capital, Inc., 889 F. Supp. 760 (D.Vt. 1995), the holding of which was essentially overruled by the Court of Appeals in Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). She also cites to Dirschel v. Speck, No. 94 CIV. 0502 (LMM), 66 Empl. Prac. Dec. P 43,490, 1994 WL 330262, 1994 U.S. Dist. LEXIS 9257 (S.D.N.Y. Jul. 8, 1994). That case was criticized in Tomka and the Court of Appeals declined to follow its holding. Plaintiff's other case authorities cited in support of her argument that individuals may be held liable under Title VII or the ADEA, all predate Tomka and, therefore, are no longer effective.
Since plaintiff is proceeding pro se, the Court directs her attention to Federal Rule of Civil Procedure 15 which contains the procedures for amending her complaint should she desire to add causes of action under the New York Human Rights Law, or any other relevant causes of action. However, she should note that the New York Court of Appeals has determined that: "A corporate employee, though he has a title as an officer and is the manager or supervisor of a corporate division, is not individually subject to suit with respect to discrimination based on age or sex under New York's Human Rights Law (Executive Law, art. 15) . . . if he is not shown to have any ownership interest or any power to do more than carry out personnel decisions made by others." Patrowich v. Chemical Bank, 63 N.Y.2d 541, 483 N.Y.S.2d 659, 660, 473 N.E.2d 11 (1984); see also Tomka, 66 F.3d at 1317.
It is well settled that individual employees, such as Scolarmero, cannot be held individually liable under Title VII. See Tomka, 66 F.3d at 1314. In addition, this Court has explicitly held that employees may not be held individually liable under the ADEA, or the ADA. See Bliss vs. Rochester City School District, 196 F. Supp.2d 314, 338-39 (W.D.N.Y. 2002). Plaintiff has not argued in opposition to Saunders' motion to dismiss and, in any event, the Court finds that the same reasoning applies to her. Therefore, the complaint against the individual defendants must be dismissed.
Motion for Partial Dismissal of Complaint against Employer
As a preliminary matter, plaintiff filed what she styled as a notice of motion seeking dismissal of any causes of action she brought under the ADA. Defendants do not oppose that motion, therefore, it is granted, and any causes of action under the ADA in the complaint are dismissed.
Title VII forbids employers from discriminating "against any individual with respect to . . . compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex. . . ." 42 U.S.C. § 2000e-2(a)(1). It is now well established that two forms of sexual harassment violate Title VII's prohibitions against workplace inequality: (1) quid pro quo and (2) hostile work environment harassment. See Meritor Savings Bank v. Vinson, 477 U.S. 57, 64-65 (1986); Kotcher v. Rosa and Sullivan Appliance Center, Inc., 957 F.2d 59, 62 (2d Cir. 1992). Plaintiff limits her claims to a hostile work environment theory.
Hostile work environment sexual harassment occurs when an employer's conduct "`has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.'" Meritor, 477 U.S. at 65 (quoting 29 C.F.R. § 1604.11(a)(3) (1985)). A hostile work environment exists "when the workplace is permeated with `discriminatory intimidation, ridicule, and insult,' . . . that is `sufficiently severe or pervasive to alter the conditions of the victim's employment.'" Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (quoting Meritor, 477 U.S. at 65, 67) (some internal brackets and quotation marks omitted); Karibian v. Columbia University, 14 F.3d 773, 779 (2d Cir. 1994). Whether a workplace should be viewed as hostile or abusive-from both a reasonable person's standpoint as well as the victim's subjective perception-can only be determined by considering the totality of the circumstances. Harris, 510 U.S. at 23.
Pursuant to 42 U.S.C. § 2000e-5(e), as it applies in New York State, a plaintiff must file a charge of discrimination within 300 days of the alleged discriminatory act or violation. Failing that, the claim is time-barred. Gomes vs. Avco Corp., 964 F.2d 1330, 13 32-33 (2d Cir. 1992). As related above, plaintiff's complaint contains a claim of hostile work environment sexual harassment based on an alleged derogatory remark made on May 30, 2001, the particulars of which are not listed. Plaintiff, therefore, had until March 26, 2002, to file a charge concerning that claim with the EEOC. However, plaintiff did not file her EEOC complaint until June 20 2002. Therefore, all claims preceding August 24, 2001, that is, 300 days prior to June 20, 2002, are time-barred.
"[I]n a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred. . . ." 42 U.S.C. § 2000e-5(e)(1).
Plaintiff represents in her papers that despite the late filing with EEOC, her time-barred claims should be permitted to go forward, because they represent a continuous practice and policy of discrimination and, therefore, permit the Court to look back to the untimely acts as well. In support of her position, she cites Assoc. Against Discrimination in Employment v. City of Bridgeport, 647 F.2d 256, 274-75 (2d Cir. 1981), in which the court stated, in pertinent part, "[w]here, however, the defendant has engaged in a continuous policy of discrimination, acts in furtherance of that policy are not viewed in isolation. In such circumstances if the charge has been filed no later than 300 days after the last act by the defendant pursuant to its policy, the plaintiff may recover for earlier acts of discrimination as well." Plaintiff then states in her memorandum that her charge of discrimination on the EEOC complaint shows dates of May 1, 2001 to June 14, 2002 and the box marked "continuing action" is checked. Pl.'s Mem. Opp'n Mot. Dismiss at 1.
The sole claim of hostile work environment sexual harassment in plaintiff's complaint is the derogatory comment allegedly made to plaintiff on May 30, 2001. The Supreme Court has recently addressed the continuing violation theory and provided the following guidance regarding complaints of discrete, discriminatory acts:
discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act. The charge, therefore, must be filed within the . . . 300-day time period after the discrete discriminatory act occurred. The existence of past acts and the employee's prior knowledge of their occurrence, however, does not bar employees from filing charges about related discrete acts so long as the acts are independently discriminatory and charges addressing those acts are themselves timely filed. Nor does the statute bar an employee from using the prior acts as background evidence in support of a timely claim.
National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 2072 (2002).
Thus, even if the sexually derogatory comment of May 30, 2001, was evidence of a continuing policy of hostile work environment sexual harassment, it is still time-barred as a discrete claim in this suit.
Further, plaintiff's complaint fails to show that the plaintiff can prove any set of facts in support of her claim of hostile work environment sexual harassment that would entitle her to relief. All of plaintiff's claims, other than the time-barred May 30, 2001, allegedly derogatory comment, concern disparate treatment. The factual portion of her complaint lists instances of unfair performance appraisals, non-sexual hostility, disparate goals and disparate treatment in relation to other employees. None of her remaining claims hint at hostile work environment sexual harassment. Thus, the Court must grant defendant's motion to dismiss the hostile work environment sexual harassment claim for failure to state a cause of action.
CONCLUSION
In view of the foregoing, defendants Saunders's and Scolamiero's motion (docket #6) to dismiss the complaint in its entirety against them is granted and the Clerk is directed to terminate "Ms. Ann Saunders, CEO," and "Ms. Jill Scolamiero, Director," as parties. Defendant American Red Cross Blood Services, New York-Pen Region's motion (docket #4) to dismiss the hostile work environment sexual harassment claim is also granted. Plaintiff's motion (docket #11) to dismiss her claims under the Americans with Disabilities Act is granted, and plaintiff's motion (docket #12) to "keep Jill Scolamiero-Director Individually liable for discriminatory acts" and motion (docket #13) "to keep all related claims open on the Equal Employment Opportunity Commission (EEOC) file from 05/01/2001 to 06/14/02," as it relates to the dismissed claim above, are denied. Plaintiff's remaining claims may go forward.
IT IS SO ORDERED.