Opinion
CV 00-1351 (RR)
June 22, 2000
VERONICA LEWIS, Conyers, GA, Petitioner Pro Se.
ELIOT SPITZER, ATTORNEY GENERAL OF THE STATE OF NEW YORK, New York, New York By: Lisa Ghartey Assistant Attorney General Attorney for Defendant State of New York.
JOHN CORNYN, ATTORNEY GENERAL OF THE STATE OF TEXAS, Austin, Texas By: Scott F. DeShazo Assistant Attorney General Attorney for Defendant State of Texas.
Memorandum ORDER
On March 8, 2000, plaintiff Veronica Lewis filed suit in this court against American Airlines, Inc., American Eagle, the State of New York, the State of Texas, the United Kingdom, the United States of America, Italy, Inmarsat, 47 U.S.C. § 757 New York City, and Alitalia Airlines New York for employment discrimination in violation of Title VII, 42 U.S.C. § 2000e et seq. (1994), and the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621-634 (1999). The States of Texas and New York move to dismiss the claims against her on the ground that they were never Ms. Lewis's employers under the applicable law. Texas also moves to dismiss the age discrimination claim as barred by Eleventh Amendment immunity. The court agrees with the states' arguments and grants the motions.
Inmarsat is a global satellite network that was started in 1979 as a cooperative venture of multiple nations to provide distress and safety communications for ships at sea. Today, it has become a private company and provides a full range of voice and multi-media communications through independent service providers. See http://www.inmarsat.org (visited June 15, 2000).
This statute defines terms relevant to satellite communications legislation. The court assumes that plaintiff cites the section in her caption because she thinks it is applicable to the defendant's activities.
Factual Background
In her complaint to the New York State Division of Human Rights appended to her federal complaint, Ms. Lewis, who is black, reported that on May 21, 1997, American Airlines and American Eagle hired her as a flight attendant. On August 4, 1997, she reported for training in Dallas, Texas, where at 51 years of age, she was the oldest person in her class. Just before her final examination, the airlines informed her that she would be tested about aircraft in addition to the ones on which she was trained. Lewis failed the exam on the additional aircraft and was discharged. She submits her discharge reflected race and age discrimination.
In other submissions to the court, Lewis alleges that Alitalia, the United Kingdom and Inmarsat, inter alia (1) murdered her daughter, Rhonda Wells; (2) "monitor" Lewis with "controlled devices;" and (3) "abuse, torture and cause psychological problems for her daughter Margaret Wells . . . controlled her Hypothalmus, cerebrium, brain stem, spinal cord, thalamus, spinal nerves and cerebellum." Lewis does not allege that the States of New York or Texas have any role in this wrongdoing.
To date, The States of New York and Texas are the only parties that have appeared in this action. No proof of service has been filed for any other defendant.
Discussion
I. Standard of Review
A motion to dismiss will not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); accord Dangler v. New York City Off Track Betting Corp., 193 F.3d 130, 138 (2d Cir. 1999). The court must accept all well-pleaded factual allegations in the complaint or in attached supporting documents to be true and must draw all reasonable inferences in the light most favorable to the plaintiff. See Dangler v. New York City Off Track Betting Corp., 193 F.3d at 138 (citations omitted). Where, as here, plaintiff proceeds pro se, the court is under a special duty liberally to construe the complaint. See Haines v. Kerner, 404 U.S. 519, 520 (1972);accord Sawyer v. American Fed'n of Gov't Employees, AFL-CIO, 180 F.3d 31, 36 (2d Cir. 1999).
II. Title VII
Under 42 U.S.C. § 2000e-2 (a), it is unlawful for any employer to discriminate against an employee on the basis of race, color, religion, sex, or national origin. Although Ms. Lewis makes very concrete allegations that she was employed by American Airlines and American Eagle who subsequently discriminated against her, she does not — nor does it appear could she — claim that the State of New York or Texas was ever her employer. See 42 U.S.C. § 2000e(b) (1994) ("employer" is any "person engaged in an industry . . . who has fifteen or more employees . . ."); Kern v. City of Rochester, 93 F.3d 38, 45 (2d Cir. 1996) ("Title VII is an employment law, available only to employees (or prospective employees) seeking redress for the unlawful employment practices of their employers"). Thus, assuming all plaintiffs allegations to be true, it nevertheless appears that she can establish no set of facts which would entitle her to relief against New York and Texas as a result of any employment discrimination by the airlines against her. See Conley v. Gibson, 355 U.S. at 45-46. Accordingly, the Title VII claims against New York and Texas must be dismissed.
III. Age Discrimination
Lewis alleges that American Airlines and American Eagle discriminated against her because she was the oldest flight attendant in her training class. Here again, the statute protects individuals from age discrimination by employers, not by parties such as the States of New York or Texas who did not employ plaintiff. See 29 U.S.C. § 630 (b) (1998) ("employer" is any "person engaged in an industry . . . who has fifteen or more employees . . ."); E.E.O.C. v. Johnson Higgins, Inc., 91 F.3d 1529, 1544 (2d Cir. 1996) (noting the well-established principle that the ADEA's protection extends only to individuals who are in a direct employment relationship with an employer). In any event, plaintiffs ADEA claim against the two states suffers a more fundamental flaw. The Supreme Court recently held in Kimel v. Florida Bd. of Regents, 120 S.Ct. 631, 650 (2000), that Congress did not abrogate the states' sovereign immunity when it enacted the ADEA. Accordingly, New York and Texas are immune from suits under that statute pursuant to the Eleventh Amendment of the Constitution. See id. at 644.
Lewis's ADEA claims against New York and Texas are dismissed.
IV. Failure to File Proof of Service
Though Ms. Lewis filed her complaint in this court on March 8, 2000, the court docket sheet reveals no proof of service for any of the remaining defendants as required by Federal Rule of Civil Procedure 4 (1). Rule 4(m) of the Federal Rules affords plaintiff 120 days to serve defendants and file proof of service with this court. Thereafter, the Court can dismiss the complaint on notice to the plaintiff or direct service within a specified period. Plaintiff is hereby granted thirty (30) days from this order to serve defendants and file proof with this court. The failure to act within this time will result in dismissal. Plaintiff is cautioned that she can only pursue her Title VII and ADEA claims against employers. Many of the unserved defendants do not appear to fit in this category.
Conclusion
Veronica Lewis's Title VII and ADEA claims against the States of New York and Texas are dismissed because Lewis fails to allege that she was ever employed by those defendants. Her ADEA claim against New York and Texas are also dismissed because those parties have Eleventh Amendment immunity from such claims. As to the remainder of plaintiffs suit, she must file proof of service on any other defendants within 30 days or the action will be dismissed.