Summary
finding an identity of interest between City of New York and New York City Off–Track Betting Corporation so that plaintiff could bring her Title VII and ADA claims against both entities, even though only the City was named in EEOC charge
Summary of this case from Lewis v. Livingston Cnty. Ctr. for Nursing & Rehab.Opinion
04 CV 2257 (JG).
November 18, 2004
STEPHEN L. DRUMMOND, Drummond Crawford, PC Valley Stream, N.Y., Attorneys for Plaintiff.
MICHAEL A. CARDOZO, Corporation Counsel of the City of New York, New York, New York, By: A. Ali Ayazi, Assistant Corporation Counsel, Attorney for Defendants.
MEMORANDUM AND ORDER
Plaintiff Yolanda Parker brings this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. ¶ 2000e et seq., the Americans with Disabilities Act, 42 U.S.C. ¶ 12101 et seq, the Family and Medical Leave Act, 29 U.S.C. § 2601, et seq., and 42 U.S.C. § 1981, claiming that she was discriminated against on the basis of disability, gender and race. Parker also alleges state and city claims under New York law. Defendants move to partially dismiss the complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) and for lack of subject matter jurisdiction. Specifically, defendants seek to dismiss: (1) all claims against the City of New York; (2) claims of racial and gender-based discrimination under Title VII; (3) claims against the individual defendants under Title VII and the ADA; and (4) all state and city claims. For the reasons set forth below, the motion to partially dismiss the complaint is granted in part and denied in part.
Parker's complaint is not entirely clear regarding which claims are being made under which federal statute. I construe her complaint as bringing claims as follows: (1) disability discrimination pursuant to the ADA; (2) race and gender-based discrimination pursuant to Title VII; (3) a violation of the FMLA; and (4) race and gender discrimination under 42 U.S.C. § 1981. Though defendants have not moved with respect to the § 1981 claim, that provision does not prohibit gender discrimination. See Anderson v. Conboy, 156 F.3d 167, 170 (2d Cir. 1998) (citing Runyon v. McCray, 427 U.S. 160, 167) (1976)). Accordingly, that facet of Parker's § 1981 claim is dismissed.
In her papers in response to the motion, plaintiff has agreed to the dismissal of all claims brought against the individual defendants (Sebastian Camuti and Matthew Sexton), and all claims brought pursuant to New York State and New York City law. Accordingly, those claims are dismissed. I see no need to resolve at this time the dispute between the parties as to whether that dismissal is with or without prejudice. That dispute will ripen only if the dismissed charges are refiled, an action plaintiff's counsel does not intend to take.
BACKGROUND
The following allegations by Parker are relevant for the purposes of this motion. I assume them to be true, as I must in deciding this motion. See Bolt Elec., Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir. 1995).Parker is an African American woman who began working for defendant New York City Off-Track Betting Corporation ("OTB") in 1995. Around March 1999, Parker informed certain employees of OTB, including (former) defendants Matthew Sexton and Sebastian Camuti, that she was suffering from a number of medical conditions, including spinal radiculopathy, scoliosis, disc herniation, sciatia, and muscle spasms. Parker provided OTB with documentation detailing her medical condition and chronic pain, and informed OTB that she needed to do stretching exercises several times a day, and to regularly attend physical therapy sessions.
For the purposes of this motion, OTB and its individual employees will be collectively referred to as "OTB."
On March 4, 2002, one of Parker's physicians wrote to OTB stating that Parker needed a high back chair to alleviate the scoliosis and sciatica. On March 13, 2002, Parker submitted a form entitled "Request for Reasonable Accommodation" to OTB, requesting (1) an ergonomic chair; and (2) a more flexible schedule to allow her to take exercise and to see a physical therapist. In response to this request, Parker received a letter from OTB dated April 1, 2002, informing her that an ergonomic chair would be immediately assigned to her. The letter also stated that:
In Parker's EEOC charge, she states that the chair was not provided until two months after she received the April 12, 2002 letter.
In regard to your request for schedule changes, please be advised that your department will not be offering exotic schedules at this time. We have recommended to you that you try to schedule your daily therapy sessions earlier in the afternoon in order to avoid coming to work late. If this is not possible, please bring a note from the therapist to this effect. However, as an accommodation, your department has offered to allow you to use your sick and annual leave to cover any therapy related lateness.
Subsequent to Parker receiving this letter, OTB, among other things: (1) forced Parker to use her annual leave to cover her doctor and therapy visits, instead of allowing her to use sick leave; (2) denied Parker the right to use leave provided by the Family and Medical Leave Act for her doctor and therapy visits; and (3) continually harassed Parker, including reprimanding her and filing charges against her for alleged violations of OTB policy. Despite Parker's repeated complaints and requests for a more flexible schedule, OTB refused to provide such an accommodation, which in turn exacerbated Parker's disability.
On February 7, 2003, OTB terminated Parker's employment. On April 28, 2003, Parker filed a complaint with the EEOC, detailing the discrimination she experienced based upon her disability. In her EEOC charge, Parker checked the box for "disability" as the ground for her complaint of discrimination, and her narrative explanation focused solely on disability-based discrimination. On April 9, 2004, Parker was issued a right to sue letter from the EEOC. On June 2, 2004, Parker brought this action.
DISCUSSION
A. The Standard for a Motion to Dismiss Under Rule 12(b)(6)
Dismissal under Rule 12(b)(6) may be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Walker v. City of New York, 974 F.2d 293, 298 (2d Cir. 1992) (internal quotation omitted). A federal court's task in determining the sufficiency of a complaint is "necessarily a limited one." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982). The appropriate inquiry is "not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Id.; see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) ("a court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. If a pleading fails to specify the allegations in a manner that provides sufficient notice, a defendant can move for a more definite statement under Rule 12(e) before responding. Moreover, claims lacking merit may be dealt with through summary judgment under Rule 56.") (internal quotation omitted).
Under Rule 8(a), a pleading need only "contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a). Thus, a district court may dismiss a complaint only at the pleading stage if the complaint fails to meet this minimum standard, and put the defendant on fair notice as to the nature of the claim. See Swierkiewicz, 534 U.S. at 512 (to comply with Rule 8(a), pleading "must simply 'give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'") (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); Wynder v. McMahon, 360 F.3d 73, 79 (2d Cir. 2004) ("fair notice [is] 'that which will enable the adverse party to answer and prepare for trial, allow the application of res judicata, and identify the nature of the case so that it may be assigned the proper form of trial.'") (quoting Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995)). Dismissal under the "lenient standard of Rule 8 . . . 'is usually reserved for those cases in which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.'" Id. at 80 (quoting Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988)).
B. The City of New York
As a preliminary matter, the City of New York argues that Parker's claims under Title VII and the ADA brought against it should be dismissed because Parker has failed to include the City in her EEOC charge. Parker contends, however, that there is an identity of interest between the City and OTB such that the City is a proper defendant. I agree.
Although naming a defendant in an EEOC charge is normally a prerequisite to commencing a Title VII or ADA action against that defendant, see 42 U.S.C. § 2000e-5(f)(1), courts have recognized an exception where the unnamed party has an identity of interest with the named party. See Philippeaux v. North Cent. Bronx Hosp., 871 F. Supp. 640, 649-50 (S.D.N.Y. 1994) (citing Johnson v. Palma, 931 F.2d 203, 209 (2d Cir. 1991)). Courts consider four factors in making the identity of interest determination: (1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; (2) whether, under the circumstances, the interest of a named party is so similar to the unnamed party's that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; (3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; and (4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is through the named party. Id. (citing Johnson, 931 F. 2d at 209). While the first and fourth factors weigh against Parker here — there is no indication that Parker could not have included the City in her EEOC complaint, or that the City represented to Parker that she should treat OTB as its agent — the second and third factors weigh in her favor.
OTB argues that it is a public benefit corporation, and as such should be considered a separate legal entity from the City. See, e.g., NY Racing, Pari-Mutual Wagering and Breeding Law ("Racing, Wagering Breeding Law") § 604 (OTB has the power to sue and be sued). The fact that it is a public benefit corporation, however, is not dispositive of whether there can be an identity of interest with the City for Title VII or ADA purposes. See Philippeaux, 871 F. Supp. at 649-650 (City found to have identity of interest with New York Health and Hospital Corporation in a Title VII action;) Jadoo v. City of New York, No. 95 CV 3540(SJ), 1997 WL 614508 (E.D.N.Y. Sept. 29, 1997) (same). OTB and the City share several important interests, including interests related specifically to employment discrimination. Corporation counsel, for example, represents OTB and its employees in employment discrimination actions, including this one. See Racing, Wagering and Breeding Law § 619 (corporation counsel provides for the defense of OTB employees). In addition, OTB is subject to personnel administration regulations promulgated by the City. Id. § 606 (OTB shall administer its personnel pursuant to the civil service law and regulations of the "New York City department of personnel and civil service commission.)" Other factors suggesting an identity of interest between the City and OTB include the following: (1) the mayor appoints the OTB board; (2) the corporation counsel is chief legal officer of OTB; (3) the city comptroller is CFO of OTB; (4) OTB can acquire property in the name of the city; and (5) OTB can use city agents, officers, employees, and facilities. See Racing Betting and Breeding Law § 601 et seq.; Philippeaux, 871 F. Supp. at 650. Given these shared interests, it was unnecessary for Parker to include the City in her EEOC complaint in order to obtain conciliation and compliance. See Philippeaux, 871 F. Supp. at 650. Further, there is no indication that the City was prejudiced by not taking part in the EEOC proceedings. Through its obligation to represent OTB, "the City was, or should have been, on notice of the EEOC proceedings." Jadoo, 1997 WL 614508 at *5; Philippeaux, 871 F. Supp. at 650. Accordingly, I find that there is an identity of interest between OTB and the City such that Parker may bring her Title VII and ADA claims against both entities.
The city argues that it is not a proper defendant for any claim, not only for the Title VII and the ADA claims. However, the City has not moved to dismiss the § 1981 or FMLA claims, and thus these claims remain pending against the City as well.
C. Race and Gender Discrimination under Title VII
Defendants argue that because Parker failed to allege discrimination based on race or sex in her EEOC charge, and because these claims are not "reasonably related" to her claim of disability-based discrimination, these claims should be dismissed for failure to exhaust administrative remedies. I agree.
It is well-settled that a district court can entertain Title VII claims only if they were either presented in a timely EEOC charge or are based on conduct that is "reasonably related" to the conduct alleged in the EEOC charge. See Butts v. City of New York Dep't of Hous. Pres. and Dev., 990 F.2d 1397, 1401 (2d Cir. 1993), superseded by statute on other grounds as stated in Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684 (2d Cir. 1998).
The "purpose of the notice provision, which is to encourage settlement of discrimination disputes through conciliation and voluntary compliance, would be defeated if a complainant could litigate a claim not previously presented to and investigated by the EEOC." Butts, 990 F.2d at 1401 (internal quotation omitted); see also id. at 1401-02 ("the purpose of the [Title VII] exhaustion requirement . . . is to give the administrative agency the opportunity to investigate, mediate, and take remedial action."). (internal quotation omitted).
The Second Circuit has recognized three situations in which claims not alleged in an EEOC charge are "reasonably related" to the allegations in the charge. Butts, 990 F.2d at 1402-03. Only one of those situations — where the claim is based on conduct that would fall "within the scope of investigation which can reasonably be expected to grow out of the charge of discrimination," id. — is applicable here. In determining whether claims are reasonably related in this way, the Second Circuit has instructed district courts to focus on "the factual allegations made in the [EEOC] charge itself, describing the discriminatory conduct about which a plaintiff is grieving." Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir. 2003) (quotation omitted).
Parker's EEOC charge is completely devoid of any reference to racial or gender-based discrimination, and it does not allege facts that would suggest such discrimination. The EEOC form completed by Parker contains check-off boxes for the grounds of discrimination, which include race, sex, and disability; Parker checked only the disability box. In addition, Parker's detailed narrative description of her claim focuses solely on her disability and the discrimination related to it. It concludes with the statement: "I feel I was wrongfully terminated due to my disability." (emphasis added). In short, there is nothing in the EEOC complaint that would give notice to the EEOC to investigate racial or gender-based discrimination. See, e.g., Muse v. New York City Dep't of Hous. Pres. Dev., No. 96-CV-6221(FB), 2000 WL 1209427 (E.D.N.Y. Aug. 22, 2000) (disability claim not reasonably related to claim of racial discrimination); Joseph v. Am. Works, Inc., No. 01 Civ. 8287 (DC), 2002 WL 1033833 (S.D.N.Y. May 21, 2002) (same); Aratari v. Genesee County Sheriff's Office, No. 00-CV-0163E(M), 2000 WL 1047701 (W.D.N.Y. July 25, 2000) (disability claim not reasonably related to gender-based discrimination); McNealy v. New York Pub. Library, No. 96 Civ. 3023 (DAB), 1997 WL 607548 (S.D.N.Y. Oct. 1, 1997) (disability claim not reasonably related to claim of race discrimination; plaintiff offered no explanation as to why claims of race and disability discrimination would coincide).
Parker has failed to demonstrate that her claims of race and gender discrimination are reasonably related to her claim of discrimination based on disability, and thus Parker has failed to exhaust the administrative remedies available for these claims. Because the time for Parker to cure this defect has expired, see Berry v. Kerik, 366 F.3d 85, 88 (2d Cir. 2004), Parker's claims of racial and gender-based discrimination pursuant to Title VII are dismissed for lack of subject matter jurisdiction.
CONCLUSION
For the foregoing reasons, the motion to dismiss is granted with respect to the following claims: (1) all claims pursuant to New York State and New York City law; (2) all claims against Matthew Sexton and Sebastian Camuti; and (3) racial and gender-based discrimination claims under Title VII. The motion to dismiss is denied with respect to claims against New York City.
To summarize the status of this case in light of this memorandum and order, the remaining defendants are New York City and the New York Off-Track Betting Corporation. The remaining claims are: (1) discrimination based upon disability pursuant to the ADA; (2) discrimination based on race under § 1981; and (3) a violation of the Family and Medical Leave Act.
So Ordered.