Opinion
No. 04 Civ. 00725 (RPP).
August 20, 2004
Therold Prudent (pro se), Laurelton, New York, Counsel for Plaintiff.
Proskauer Rose LLP, New York, New York, By: Christopher J. Collins, Esq, Eben A. Krim, Esq, Counsel for Defendant.
OPINION AND ORDER
On January 30, 2004, Plaintiff Therold Prudent filed this action against Defendants Mayor Caspi and Travel Bound for violation of Title VII of the Civil Rights Act of 1964 § 2000e-2 ("Title VII"). In his second amended complaint of July 7, 2004, Plaintiff added an allegation of a violation of New York City Human Rights Law. Defendants moved pursuant to Fed.R.Civ.P. 12(c) to dismiss Mayor Caspi as a defendant from this action, with prejudice. For the following reasons, Defendants' motion is granted.
By affirmation dated April 23, 2004, Plaintiff identifies Mayor Caspi as CEO of the North American branches of Gullivers Travel Associates ("GTA"), Travel Bound, and Octopus Travel.com as of March 3, 2003 (Pl.'s Affirm'n in Opp'n, dated April 23, 2004 ("Pl.'s Affirm'n") at 6).
On May 20, 2004, the Plaintiff moved to file an Amended Complaint (Pl.'s Notice of Mot. to Amend Compl., dated May 20, 2004), and on June 8, 2004, Defendants' response notified the Court that it did not object to Plaintiff's amendment of the Complaint. (Defs.' Resp. to Pl.'s Notice, dated June 8, 2004.) On July 7, 2004, Plaintiff moved to file a second amended complaint. The changes in the Second Amended Complaint do not change the outcome in the motion to dismiss. Accordingly, the Second Amended Complaint is accepted by the Court, and Defendants' motion will be considered in the opinion and addressed to the Plaintiff's allegations contained in the Second Amended Complaint as well as in the Amended Complaint and the original Complaint.
I. BACKGROUND
Mr. Prudent claims that while working for Travel Bound in the Customer Services Department investigating customer complaints, despite holding several academic degrees, an impressive academic background and years of experience in travel, he was passed over for a promotion as an FIT Supervisor in favor of a Latina woman with lesser credentials who had not been employed with the company previously. (Pl.'s Proposed Am. Compl., dated July 7, 2004 ("Second Am. Compl."), ¶¶ 2-4.) Plaintiff further asserts that, after raising the issue that blacks were not employed in significant positions in the company, he finally was promoted to the position of Supervisor of the Customer Services Department. (Id. at ¶¶ 7-8.) He claims, however, that his promotion did not receive the same type of publicity that people in lesser or equal positions had received. (Id. ¶ 8.) Plaintiff also alleges that he was frequently subjected to a hostile work environment by other people in management positions, and that his life was made miserable by the insubordination of specific members of the company due to his race. (Id. ¶¶ 13-18.) Additionally, Mr. Prudent claims that he was denied medical coverage on the basis of his race by the Human Resources Manager, Ms. Petrone, who is not a defendant. (Id. ¶¶ 29-21.)Plaintiff states that in 1999 he complained again about the unfair treatment and lack of respect he had received as Supervisor of the Customer Services Department, and was thereafter appointed as Manager of the Customer Services Department. (Id. ¶ 11.) After being appointed, he soon received praise from the new Vice President for his hard work and dedication (Id. ¶ 12).
Mr. Prudent asserts that he complained on at least three occasions about the hostile work environment and certain conduct of his co-workers, primarily about the conduct of Mr. Torres, who was then the Office Manager. (Id. ¶¶ 18, 22, 28.) First, he complained to his boss, Michelle Gagen, Vice President. (Id. ¶ 18.) He asserts that she referred him to the Human Resources Manager, Ms. Petrone, who did nothing, because of Ms. Petrone's personal connection with Mr. Torres. (Id. ¶¶ 18-19.) Plaintiff states that Ms. Petrone and Mr. Torres were close friends, and that Ms. Petrone supported Mr. Torres's attempts to undermine Mr. Prudent. (Id. ¶ 14.) Plaintiff asserts that when he then went to Mr. Tamarit, President of Travel Bound at the time, to complain of his treatment, Mr. Tamarit lectured him and said that Mr. Prudent should "know his place." (Id. ¶ 23.) In the meeting Mr. Tamarit stated that he complained too much and that even though "[Mr. Prudent] might be an intelligent man . . . sometimes [he was] too intelligent for [his] own good." (Id. ¶ 24.) Mr. Prudent asserts that he was relieved of his duties as Manager and demoted a few months later on September 23, 2003. (Id.) Plaintiff asserts that after his demotion he was used as a "messenger boy" despite his qualifications. (Id. ¶ 27.) Mr. Prudent asserts that after this last incident, he realized he could no longer take the humiliation inflicted upon him by Travel Bound. (Id. ¶ 28.)
Accordingly, in March of 2003, Plaintiff complained about his demotion and treatment to Defendant Caspi, who served as CEO of Gullivers Travel Associates (GTA) — the parent company of Travel Bound — as well as Travel Bound in North America. (Id. ¶ 28.) He asserts that Mr. Caspi did nothing and the meeting only lasted three minutes, during which all Mr. Caspi did was refer Plaintiff to other people who might help him. (Id. ¶¶ 28-31.) Plaintiff claims that Mr. Caspi should be held liable under Title VII for failure to take action to "reign in or put an end to" the discriminatory treatment he received. (Pl.'s Affirm'n at 1.)
II. DISCUSSION
A. STANDARD OF REVIEW
The defense moves to dismiss Mayor Caspi as a defendant on the grounds that the Plaintiff has failed to state a legal claim against Mr. Caspi. (Reply Mem. Law Further Supp. Defs.' Mot. Dismiss at 2.) Under Fed.R.Civ.P. 12(c), "after the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." Fed.R.Civ.P. 12(c). Furthermore, "if, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one summary judgment and disposed of as provided in Rule 56." Id. "In deciding a Rule 12(c) motion, we apply the same standard as that applicable to a motion under Rule 12(b)(6), accepting the allegations contained in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party." Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999). The complaint may be dismissed 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." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
B. INDIVIDUAL LIABILITY UNDER TITLE VII
The Second Circuit has held that "individual defendants with supervisory control over a plaintiff may not be held personally liable under Title VII" for employment discrimination. Tomka v. Seiler, 66 F.3d 1295, 1313 (2d Cir. 1995).
Plaintiff seeks to distinguish his case from Tomka because Travel Bound committed its discriminatory acts "under the watch of Mayor Caspi . . . who [as] the only one directly connected to Gulliver's Board of Directors in England . . ., holds a significant and powerful position in his capacity as CEO that would have allowed him to reign in or put an end to the racially discriminatory work environment at Travel Bound." (Pl.'s Affirm'n at 1.)
Mr. Caspi as CEO is exempt from liability under Title VII. In this Circuit, the district courts have routinely held that CEOs cannot be held individually liable under Title VII. See, e.g., Bailey v. Synthes, 295 F. Supp. 2d 344, 348, 354 (S.D.N.Y. 2003) (holding that supervisors and CEO whose actions allegedly included dancing suggestively with a female sales representative and describing prior sexual experiences thereby creating a hostile work environment were not individually liable under Title VII or ADEA); Joiner v. American Red Cross, No. 02cv6286, 2003 WL 360119, at *3 (W.D.N.Y. Feb. 11, 2003) (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.);Allen v. Comprehensive Analytical Group, Inc., 140 F. Supp.2d 229, 231, 233 (N.D.N.Y. 2001) (holding that as a matter of law, corporate officers, who allegedly grabbed plaintiff's feet, hands and hair and called her derogatory names, could not be sued in their individual capacities under Title VII). Accordingly, even if Mr. Caspi had directly or indirectly discriminated against Mr. Prudent, he still could not be held liable under Title VII because he would only have been considered a supervisory employee, not an "employer" under 42 U.S.C. § 2000e(b).
Mr. Prudent's assertion that Mr. Caspi was the "ultimate head and major decision maker of GTA North America" (Pl.'s Affirm'n at 2) is not enough to show that he was an employer under 42 U.S.C.A. § 2000e(b). In Freeman v. Complex Computing Co., Inc., 119 F.3d 1044 (2d Cir. 1997), the court held that to pierce the corporate veil, a plaintiff must prove that: (1) the owner exercised such control that the corporation has become a mere instrumentality of the owner; (2) the owner used this control to commit a fraud or "other wrong"; and (3) the fraud or wrong results in an unjust loss or injury to the plaintiff). Freeman v. Complex Computing Co., 119 F.3d 1044, 1052 (2d Cir. 1997). Mr. Caspi has not been shown to have such a significant ownership interest in the company as to be GTA's alter ego. Moreover, and as Mr. Prudent acknowledges, Mayor Caspi, as CEO, still answers to the board of directors. (Pl.'s Affirm'n at 1.) Consequently, under the law in this Circuit, Mayor Caspi is not a proper defendant. See Freeman, 119 F.3d at 1052.
C. LIABILITY UNDER NYC HUMAN RIGHTS LAW
Nor does the Second Amended Complaint state a cause of action under the New York State Human Rights Law or the New York City Human Rights Law. For an individual to be held individually liable under state or city law the person must actively engage in the discriminatory conduct. See e.g., Sowemimo v. D.A.O.R. Sec., Inc., 43 F. Supp. 2d 477, 490 (S.D.N.Y. 1999) (finding that personal liability is dependent upon Defendant participating "in the conduct giving rise to a discrimination claim.");Jong-Fwu v. Overseas Shipholding Group, No. 00cv9682, 2002 WL 1929490, at *7 (S.D.N.Y. Aug. 21, 2002) (holding that while an individual can be sued "under both [the New York State Human Rights Law and the New York City Human Rights Law], the plaintiff must show that the [individual] defendant engaged in `discriminatory acts.'"). Kato v. Ishihara, 239 F. Supp. 2d 359, 365 (S.D.N.Y. 2002) (finding that an individual may be held liable under the New York City Human Rights Law if he or she engaged in "discriminatory acts").
In the present case, Mr. Caspi did not directly commit any discriminatory acts against Mr. Prudent and, consequently, had no direct participation in the conduct giving rise to Mr. Prudent's discrimination claim. (Second Am. Compl. ¶¶ 28-30.) The facts show that Mr. Caspi never engaged directly or indirectly in any of the discriminatory acts that Mr. Prudent alleges his direct supervisors and colleagues participated in. Id. Whereas Mr. Prudent alleges that his co-workers undermined his managerial authority and made his life a living hell, the extent of Mr. Caspi's involvement was meeting with Mr. Prudent in March of 2003, six months after Plaintiff was relieved of his managerial duties, to listen to the complaints of alleged discriminatory actions of Travel Bounds' employees and failure to take remedial action. (Id. ¶¶ 17, 28-30.) This does not constitute discriminatory conduct under the case law.
III. CONCLUSION
For the foregoing reasons, Defendants' Fed.R.Civ.P. 12(c) motion to dismiss Mayor Caspi as a defendant from this action with prejudice is granted.
IT IS SO ORDERED.