Opinion
06 Civ. 6455 (PAC) (KNF).
December 19, 2006
REPORT AND RECOMMENDATION
I. INTRODUCTION
Plaintiff Juan Carlos Ocasio ("Ocasio"), proceeding pro se, brings this action against defendant Riverbay Corporation ("Riverbay"), alleging that it, along with other "defendants" violated: (1) the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621- 634 ("ADEA"); (2) Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e- 2000e-17 ("Title VII"); (3) the Driver's Privacy Protection Act of 1994 ("DPPA"), 18 U.S.C. §§ 2721- 2725; and (4) the National Labor Relations Act, 29 U.S.C. §§ 158- 301. Before the Court is Riverbay's motion, made pursuant to Fed.R.Civ.P. 12(b)(6), to dismiss the plaintiff's complaint, with prejudice, for failure to state a claim upon which relief can be granted. Riverbay contends that: (a) DPPA does not apply in this case, because it does not regulate the dissemination of personal information disclosed to it by the plaintiff; (b) the plaintiff failed to exhaust available administrative remedies, as required by Title VII, because he commenced this action less than 180 days after he filed a charge of discrimination with the United States Equal Employment Opportunity Commission ("EEOC"); and (c) the claims asserted against Taylor should be dismissed because he is not a party to the action or a respondent named in the plaintiff's EEOC discrimination charge. Moreover, Riverbay maintains that, since no individual liability exists under Title VII, Taylor cannot be found liable to Ocasio on his Title VII claim. The plaintiff opposes the motion, which is addressed below.
Although the plaintiff identifies Deighton "Cleve" Taylor ("Taylor"), Joseph P. Monahan, Edwin Lucca and Orlando Martinez within the body of his complaint as additional defendants, the docket sheet maintained by the Clerk of Court for this action indicates that the plaintiff has effected service of the summons and complaint on Riverbay solely. The time for the plaintiff to effect service on the remaining "defendants," pursuant to Fed.R.Civ.P. 4, has yet to expire.
II. BACKGROUND
Ocasio, a Puerto Rican male over forty years of age, was hired by Riverbay's Public Safety Department as a public safety officer on December 7, 2005. He and two other candidates for public safety officer vacancies were appointed to their respective positions without taking a written pre-employment examination. Completing the examination successfully is required for appointment to the public safety officer position. The plaintiff's employment and that of the two other officers, was part of an anti-corruption initiative, undertaken by Riverbay and its managing agent, Marion Scott Realty Company ("MSR"). MSR had recruited a new public safety captain previously, in its effort to address corruption and improve the performance of the Public Safety Department. It was he who was responsible for Ocasio's hiring and that of the two other officers.
Ocasio alleges that from the commencement of his employment, he was perceived as a management spy by Riverbay's Patrolmen's Benevolent Association ("PBA"), the union representing public safety officers at Riverbay, and was subjected to harassment, discrimination and a hostile work environment. Shortly after his tenure with Riverbay began, Ocasio and his two colleagues were summoned to a classroom at the Riverbay facility and ordered to take the public safety officer pre-employment examination during their luncheon break. While the examination was being administered, all other public safety officer trainees and all members of the PBA waited outside the classroom. Ocasio recalls that the animosity his co-workers exhibited toward him, and the two other officers who were hired with him, was exacerbated when an article published in Riverbay's local newsletter indicated that Taylor, a member of Riverbay's board of directors, alleged that MSR tampered with the public safety officer hiring procedures to employ three Puerto Rican officers, including the plaintiff, while better qualified applicants, who had performed well on the pre-employment examination, but who did not share the ethnicity of the three appointees, were not selected for appointment.
Ocasio contends that the hostility exhibited toward him by other public safety officers, while he was employed by Riverbay, reached its zenith on January 31, 2006, when his locker, and those of the two other officers who were hired along with him, were vandalized. According to Ocasio, a copy of a resolution adopted by Riverbay's board of directors was placed in the lockers used by the three officers. The resolution urged that MSR be terminated as Riverbay's managing agent if any public safety officer who was hired in December 2005, when Ocasio was hired, obtained his or her position without having passed the public safety officer pre-employment examination. Scrawled on each copy of the resolution placed in the officers' lockers, was the word "RATZ" (sic). This incident of vandalism was reported to Ocasio's supervisors, who summoned the New York City Police Department and filed a report of the vandalism with that agency.
Ocasio maintains that during his employment with Riverbay, the PBA discriminated against him, because of his age, by failing to represent him at a disciplinary proceeding, after he was charged with committing an infraction. Ocasio contends the PBA represented a younger officer at a similar disciplinary proceeding. Ocasio was charged with committing two additional disciplinary infractions and, thereafter, on March 2, 2006, his employment with Riverbay was terminated. Ocasio filed a complaint with the National Labor Relations Board ("NLRB") on March 10, 2006. In that complaint, he alleged that the PBA caused Riverbay to discharge him unlawfully. According to the plaintiff, when he inquired of the chief of public safety about the reason(s) for his discharge, he was advised that his employment was terminated for "political reasons." However, Ocasio recalls that the chief assured him that he would be rehired when the next public safety officer training class was convened.
Ocasio alleges, in the instant complaint, that after his NLRB charge was filed, Taylor gained access to personal information about him that was listed on his New York driver's license and his New York State Motor Vehicle Department identification card, both of which were maintained in Riverbay's employment records. A valid New York driver's license is a requirement for appointment to the public safety officer position Ocasio held. Although Ocasio makes reference to a New York State driver's license in his complaint, documents he submitted to the court establish only that Ocasio held a California driver's license not a New York driver's license. In any event, Ocasio contends Taylor disclosed his name in an article that was published in the New York Daily News on March 21, 2006, about Riverbay's controversial hiring practices. Ocasio alleges that disclosing his name, so that it might be published in the newspaper, was an act designed to vilify him and to retaliate against him for filing a claim of discrimination, in accordance with Riverbay's anti-discrimination policy, with Riverbay's general counsel, on March 13, 2006. In the complaint Ocasio submitted to Riverbay's general counsel, he alleged that MSR, two of its managing principals, Taylor, Riverbay's public safety department, its chief and its deputy chief, as well as the PBA, had discriminated against him.
In addition to lodging a complaint of discrimination with Riverbay's general counsel, the plaintiff alleges that, on March 31, 2006, he filed charges of age and national origin discrimination, as well as a charge of discriminatory retaliation against Riverbay with the EEOC. The plaintiff also alleged, in his EEOC filing, that he had been subjected to a hostile work environment. However, a review of the materials submitted to the court by Ocasio reveals that he completed an intake questionnaire at the EEOC on March 27, 2006, and filed his charge of discrimination with that agency on June 2, 2006. Two days later, on June 4, 2006, Ocasio requested that the EEOC issue a right-to-sue notice to him because he believed the EEOC investigator assigned to his matter was negligent in processing his charge of discrimination. In response to Ocasio's request, the EEOC sent him notice of his right-to-sue Riverbay, for violating the ADEA. The notice indicated that the EEOC had determined to close Ocasio's age discrimination case and it advised Ocasio that, if he determined to commence an action, a "lawsuit under ADEA must be filed in federal court within 90 days" of his receipt of the notice. Ocasio commenced the instant action on August 25, 2006, which as noted above, contains not only allegations respecting a violation of ADEA, but also contains claims concerning alleged violations of Title VII, DPPA and the National Labor Relations Act.
III. DISCUSSION
Standard of Review for Motion to DismissA court may dismiss an action pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted only if "it appears beyond doubt, even when the complaint is liberally construed, that the plaintiff can prove no set of facts which would entitle him to relief." Jaghory v. New York State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997) (quotingHoover v. Ronwin, 466 U.S. 558, 587, 104 S. Ct. 1989, 2005). In considering the motion, the court must take "the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant." Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994). The court may consider all papers and exhibits appended to the complaint, as well as any matters of which judicial notice may be taken. See Hirsch v. Arthur Andersen Co., 72 F.3d 1085, 1092 (2d Cir. 1995); Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993).
Where the plaintiff is a pro se litigant, as he is here, the Court must be mindful that the plaintiff's pleadings "[are to be] held 'to less stringent standards than formal pleadings drafted by lawyers.'" Hughes v. Rowe, 449 U.S. 5, 9, 101 S. Ct. 173, 176 (1980) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 595). "The Court has the duty to 'read the pleadings of a pro se plaintiff liberally and interpret them to raise the strongest arguments that they suggest.'" Dibbs v. Roldan, 356 F. Supp. 2d 340, 348 (S.D.N.Y. 2005) (quoting McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) [citations omitted]).
DPPA Claim
Ocasio contends Riverbay violated DPPA by providing Taylor with personal information about him contained in his New York State Department of Motor Vehicles ("DMV") issued identification card and his driver's license. Furthermore, Ocasio alleges that the DPPA violation led to the publication of his name in the New York Daily News. Riverbay maintains it did not obtain the plaintiff's personal information from a state motor vehicle agency; therefore, DPPA does not apply, and the instant claim must be dismissed. The Court agrees with the defendant.
"The DPPA establishes a regulatory scheme that restricts the States' ability to disclose a driver's personal information without the driver's consent." Reno v. Condon, 528 U.S. 141, 144, 120 S. Ct. 666, 668 (2000). DPPA defines personal information as,inter alia, "information that identifies an individual," including an individual's name. 18 U.S.C. § 2725(3). To establish a claim under DPPA, the plaintiff must show "that the defendants caused a DMV search to be made," and "that the search was not permitted by any exception to the DPPA." Luparello v. Incorporated Village of Garden City, 290 F. Supp. 2d 341, 344 (E.D.N.Y. 2003) (citing Cowan v. Codelia, No. 98 Civ. 5548, 2001 WL 856606, at *8 [S.D.N.Y. July 30, 2001]). See also Manso v. Santamarina Associates, No. 04 Civ. 10276, 2005 WL 975854, at *3 (S.D.N.Y. Apr. 26, 2005).
The plaintiff does not allege that Riverbay or Taylor performed a search of a state motor vehicle agency's records or that they caused such a search to be made by a third party to obtain his "personal information." Rather, the plaintiff alleges Taylor obtained a copy of his driver's license and his New York State DMV issued identification card by accessing his Riverbay employment records. Riverbay does not dispute this allegation. However, an employer who maintains employee records is not a state motor vehicle agency. Furthermore, the Supreme Court confirmed that DPPA was enacted to regulate the disclosure and use of personal information obtained from a state motor vehicle agency when it stated, in upholding the statute's constitutionality, that DPPA not only applies to states, but also "regulates the resale and redisclosure of drivers' personal information by private persons who have obtained that information from a state DMV." Reno, 528 U.S. at 146, 120 S. Ct. at 669.
In the instant case, the parties agree that the source of the "personal information" concerning the plaintiff that Taylor obtained was not a state motor vehicle agency. The "personal information" concerning the plaintiff contained in Riverbay's employment files was provided to it by the plaintiff, when he sought and obtained the public safety officer position from which he was later dismissed. Where, as here, a defendant does not obtain a plaintiff's "personal information" from a state motor vehicle agency, but instead, obtains that information directly from the plaintiff, any subsequent disclosure of that "personal information" is not a DPPA violation. See O'Brien v. Quad Six, Inc., 219 F. Supp. 2d 933 (N.D. Ill. 2002). The Court finds that the plaintiff has failed to allege any facts establishing that his "personal information" was obtained by Riverbay or Taylor from a state motor vehicle agency. Since DPPA is violated when such information is obtained, without authorization, from a state motor vehicle agency, Riverbay is entitled to the relief it seeks with respect to this claim.
Title VII Claim
Riverbay contends the plaintiff's Title VII claim cannot be maintained because the EEOC issued a right-to-sue notice to him, concerning that claim, prematurely. However, the notice of right-to-sue issued by the EEOC to Ocasio pertains to the plaintiff's ADEA claim, not his Title VII charge of discrimination. A person may commence an action premised on a violation of ADEA, sixty days after filing a charge of age discrimination with the EEOC. See 29 U.S.C. § 626(d). The Second Circuit has recognized that "in the ADEA context, it is not required that the EEOC has actually taken action before an individual, who otherwise satisfactorily filed a charge, can bring a suit in federal court." Holowecki v. Federal Exp. Corp., 440 F.3d 558, 567 (2d Cir. 2006). Thus, "[n]o 'right-to-sue" letter is needed in ADEA cases." McPherson v. New York City Dep't of Educ., 457 F.3d 211, 214 (2d Cir. 2006). Having waited 84 days, after filing his EEOC charge to commence this action, the plaintiff satisfied the ADEA's administrative exhaustion requirement, a prerequisite to bringing his claim to this court.See Hodge v. N.Y. Coll. of Podiatric Med., 157 F.3d 164, 168 (2d Cir. 1998).
However, inasmuch as the time for the EEOC to investigate and conciliate Ocasio's Title VII charge of discrimination had not elapsed at the time this motion was made and, further, since the EEOC has not issued a notice of right-to-sue to Ocasio respecting his Title VII claim, Riverbay's motion to dismiss that claim, as untimely, should be granted and Ocasio should be given leave to amend his complaint, if he wishes, after the requisite right-to-sue notice is issued by the EEOC. Since the plaintiff's right-to-sue notice was issued by the EEOC for his ADEA, not his Title VII claim, the Court finds that Ocasio's ADEA claim was filed with this court timely and may be prosecuted by him. The Court notes, however, that Ocasio's complaint is devoid of any factual allegations concerning age discrimination by Riverbay.
Claims Against Taylor
Riverbay contends that Taylor is not a party to this action because: (i) he has not been named in the caption of the complaint; (ii) he has not been served with the summons and complaint; and (iii) an individual cannot be found liable for a Title VII violation. Therefore, Riverbay maintains, the Title VII and ADEA claims made against Taylor should be dismissed.
The case caption on the plaintiff's complaint identifies the defendants as "RIVERBAY CORPORATION ET AL." However, "the caption [of a complaint] is not normally determinative of the identity of the parties or the pleader's statement of claim." Prisco v. State of New York, 804 F. Supp. 518 (S.D.N.Y. 1992) (citations omitted). While the plaintiff did not name each defendant in the caption of the complaint, he used the words "et al," an abbreviation of the Latin words meaning "[a]nd other persons." BLACK'S LAW DICTIONARY 591 (8th ed. 2004). In the body of the complaint, under the paragraph entitled "Parties," the plaintiff identified Taylor as a defendant. Ocasio alleged, in pertinent part, that "at the relevant time [Taylor] was acting as a Riverbay Board of Director." Furthermore, the plaintiff made factual allegations against Taylor in paragraphs 14-18, 28, and 38 of the complaint. Therefore, despite the lack of specificity in the caption of the complaint, the Court finds that the text of the plaintiff's complaint establishes that Taylor is an intended defendant.
Riverbay does not dispute that the summons and complaint was served properly on it or that Taylor is a member of its board of directors. However, "[a]bsent a waiver, Rule 4 [of the Federal Rules of Civil Procedure] mandates that [a] defendant be served with the summons and complaint personally, or in accordance with one of several prescribed alternatives." Martin v. N.Y. State Dep't of Mental Hygiene, 588 F.2d 371, 373 (2d Cir. 1978). A plaintiff has 120 days, after filing a complaint, to effect service of the summons and complaint upon a defendant. See Fed.R.Civ.P. 4(m). That period had not expired at the time Riverbay's motion was made, since the complaint was filed on August 25, 2006. Therefore, until the time set forth in Fed.R.Civ.P. 4 for serving process expires, Ocasio can effect service of the summons and complaint on Taylor.
The defendant contends the Title VII claims Ocasio has made against Taylor must be dismissed because individuals may not be held liable for a Title VII violation. If Ocasio effects service of the summons and complaint on Taylor timely, he will not be able to maintain an action against him for violating Title VII. This is so because, as Riverbay contends, "[i]ndividuals are not subject to liability under Title VII." Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000) (citing Tomka v. Seiler Corp., 66 F.3d 1295, 1313 [2d Cir. 1995]). Similarly, no individual liability exists for violating ADEA. See Parker v. Metro. Transp. Auth., 97 F. Supp. 2d 437, 452 (S.D.N.Y. 2000). Therefore, if Taylor is served with process timely, as discussed above, Ocasio will not be able to maintain an action against him for violating these statutes.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that the defendant's motion to dismiss the plaintiff's complaint, pursuant to Fed.R.Civ.P. 12(b)(6), be granted in part and denied in part. I recommend further, that the plaintiff be given an opportunity to amend his complaint.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Paul A. Crotty, 500 Pearl Street, Room 735, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Crotty, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York, 10007. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Am, 474 U.S. 140, 470 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F. 3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).