Opinion
99-CV-1021E(Sr)
March 27, 2001
Pro Se, Rochester, N.Y. 14619, for the plaintiff.
Robert S. Hite, Esq., c/o Hite Casey, 63 Colvin Ave., Albany, N.Y. 12206, for the defendant.
MEMORANDUM and ORDER
Plaintiff, appearing pro se, commenced this action December 9, 1999 claiming violations of 42 U.S.C. § 1981, 1983, 1985, Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and New York State law. Presently before the Court is defendants' motion to dismiss plaintiff's federal claims, brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("FRCvP"). Such will be granted.
It has long been axiomatic that a motion under FRCvP 12(b)(6) may only be granted when it appears beyond any 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). In reviewing plaintiff's motion under FRCvP 12(b)(6), this Court accepts as true all factual allegations in the Complaint, considers all documents attached thereto or incorporated therein by reference and draws therefrom all reasonable inferences in favor of plaintiff. Cooper v. Parksky, 140 F.3d 433, 440 (2d Cir. 1998). As in all pro se actions, plaintiff is entitled to a far more generous reading of her pleading than would otherwise be afforded to one who is represented by an attorney. Haines v. Kerner, 404 U.S. 519, 520-521 (1972).
The following facts are drawn from the Complaint. Plaintiff indicates that she is a black female previously employed by the New York State Department of Correctional Services ("DOCS") as a Correctional Officer. Complaint ¶ 1. At all times germane to this action, plaintiff was also a member of defendant Security Unit Employees Council 82 ("Council 82") which represented plaintiff and other state correctional officers in matters of employment. Ibid. Plaintiff indicates that, sometime in January 1996, she was seen by a physician who placed her on total disability for work-related depression, stress and anxiety. Id. ¶ 22. This same physician cleared her to return to work August 6, 1996. Id. ¶ 23. Upon her return, however, plaintiff was not allowed to work. Id. ¶ 24. Sometime in late August 1996, plaintiff received a letter from the DOCS stating that certain medical examinations had been scheduled for her so as to determine her ability to return to work. Id. ¶ 26. While the Complaint isn't exactly clear as to whether plaintiff complied with DOCS's letter, plaintiff alleges that she was subsequently examined by three different medical professionals each of whom opined that plaintiff was either not physically able to perform the full-time duties of a correctional officer or unable to return to such occupation due to major depression. Id. ¶¶ 27-29. Plaintiff was then placed on an involuntary leave of absence by DOCS, effective January 1997. Id. ¶ 30. Sometime in late September 1998, plaintiff received a letter from DOCS informing her of an "untimely" Section 72 hearing scheduled to take place at the Albion Correctional Facility September 28, 1998. Id. ¶ 31. Plaintiff then telephoned Council 82 seeking representation at such hearing and spoke to defendant Smith. Id. ¶ 32. Plaintiff alleges that defendant Smith advised her to mail a letter to DOCS and Council 82 informing such entities that she would not be attending the Section 72 hearing. Id. at 35. Unbeknownst to plaintiff, her Section 72 hearing took place on September 28, 1998 without her participation and defendant Smith "played a negative active role [therein] via telephone." Id. ¶ 40. On October 28, 1998 plaintiff received notice from DOCS that she would be terminated November 2, 1998. Id. ¶ 41. Thereupon plaintiff telephoned Council 82 and informed it of her forthcoming termination. Id. ¶ 43. Plaintiff also alleges that, at or about this time, she was told by a Council 82 executive that defendant Smith and Council 82 were representing her. Id. ¶ 45. By letter dated November 16, 1998, however, defendant Smith told plaintiff the following:
A Section 72 hearing, as the name implies, is a hearing afforded to a New York State employee when a state agency informs such employee that he or she will be placed on an involuntary medical leave of absence. See N.Y. Civ. Serv. Law § 72. Insofar as plaintiff alleges that such hearing was untimely, the Complaint does not state the basis therefor.
"Once again, I want to be perfectly clear about our law firm's role in this matter at this point. We do not represent you in relation to your section 72 hearing. We are only obtaining and reviewing records and documents in order to evaluate your case for the Executive Committee" Id. ¶ 48.
Consequently, plaintiff argues, defendant Smith and Council 82 conspired to discriminate against her and deny her union benefits, ultimately leading to her unconstitutional termination" December 7, 1998. Id. ¶ 56.
It is not apparent from the Complaint why plaintiff was not terminated November 2, 1998, per the October notice from DOCS. See Complaint ¶ 41. In response to defendants' motion to dismiss, plaintiff has however submitted an exhibit, purportedly from DOCS, which explains that her termination was "held in abeyance pending subsequent appeal or the expiration of the appeal period." Richardson Aff., filed July 17, 2000, Ex. I. Another exhibit, purportedly from DOCS, further indicates that, because no appeal had been filed by plaintiff, her employment was terminated December 7, 2000. Id. Ex. L.
Plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") September 13, 1999 alleging that defendants unlawfully denied her "union and/or legal representation in matters of employment." Richardson Aff., filed July 17, 2000, Ex. A (EEOC Charge). By letter dated September 16, 1999, the EEOC informed plaintiff that, pursuant to its calculation, plaintiff's allegations had been untimely filed and that the EEOC was without jurisdiction to investigate her charge. Id. E (EEOC dismissal letter). It thereupon dismissed plaintiff's charge and provided her with a Notice of Right to Sue. Id.
Based on the these factual allegations, plaintiff has set forth nine causes action in her Complaint, six of which pose federal questions. Plaintiff's first federal claim alleges that, "by engaging in the aforementioned discriminatory conduct on the basis of [p]laintiff's race and sex," defendants "engaged in an unlawful employment practice" in violation of Title VII. Complaint ¶ 58. Plaintiff's second federal claim alleges that defendants retaliated against her in violation of Title VII based on her opposition to the "aforementioned union practices." Id. ¶ 63. Plaintiff's third federal claim alleges that the "aforementioned intentional acts of harassment and discrimination based on [her] race and sex, [and] were motivated by racial animus and prevented [p]laintiff from enjoying the same right as is enjoyed by white citizens to make and enforce contracts [as set forth under Council 82's Collective Bargaining Agreement], in violation of 42 U.S.C. § 1981. Id. ¶¶ 71-72. Plaintiff's fourth federal claim is that the "aforementioned actions deprived [p]laintiff of her civil rights by violating clearly established constitutional norms including her rights to free speech, due process, and equal protection, as guaranteed by the First, Fifth, Thirteenth, and Fourteenth Amendments to the United States Constitution, and by 42 U.S.C. § 1983." Id. ¶ 76. Plaintiff's fifth federal claim is that defendants and DOCS conspired to deprive plaintiff of her civil rights. Id. ¶ 80. Plaintiff's sixth federal claim is that the "aforementioned discriminatory conduct" on the part of defendants constituted "an unlawful employment practice or practices in violation of 42 U.S.C. § 1981." Id. at 86.
In support of their motion to dismiss, defendants argue that plaintiff's Title VII claims must be dismissed for her failure to file a timely charge with the EEOC. They note that, according to the Complaint, the last event which involved any defendant occurred November 16, 1998 which required plaintiff to have filed her charge by September 12, 1999 to meet the applicable 300-day deadline. See 42 U.S.C. § 2000e-5(e). The undersigned disagrees. Assuming that defendants are correct in determining that November 16, 1999 was the last event wherein any defendant was involved, the "limitations period begins to run on the date the plaintiff receives notice of [this] allegedly discriminatory act, not the date the decision takes effect." Hale v. New York State Dept. of Mental Health, 621 F. Supp. 941, 942 (S.D.N.Y. 1985). Moreover and because there is insufficient information in the record which indicates exactly when plaintiff received notice of this allegedly discriminatory act, the undersigned is incapable of determining whether her filing of September 13, 1999 was timely. Accordingly, defendant's motion to dismiss plaintiff's Title VII claims on this ground will be denied.
Defendants also argue that Smith may not be sued individually under Title VII. The undersigned agrees. It is well-established that Title VII applies only to employers and not to individuals and insofar as plaintiff alleges a Title VII claim against Smith in his "individual" capacity, such claims must be dismissed. See Tomka v. Seiler, 66 F.3d 1295, 1313 (2d Cir. 1995). Moreover and insofar as plaintiff attempts to assert claims against Smith in his "official" capacity, the undersigned is persuaded, by the reasoning of other courts in this Circuit, that such official capacity suit claims are properly rejected. See Miner v. Town of Cheshire, 126 F. Supp. 184, 200 (D.Conn. 2000); McBride v. Routh, 51 F. Supp. 153, 158 (D. Conn. 1999). Accordingly, all Title VII claims levied against defendant Smith, in either his individual or official capacity, will be dismissed.
Analysis of plaintiff's Title VII claims, however, has not ended. The Second Circuit Court of Appeals has instructed that a complaint, "consisting of nothing more than naked assertions, and setting forth no facts upon which a Court could find a violation of the Civil Rights Act, fails to state a claim under 12(b)(6)." Martin v. N.Y. State Dept. of Mental Hygiene, 588 F.2d 371, 372 (2d Cir. 1978). The undersigned's review of the Complaint and of plaintiff's responding papers reveals such purported claims are insufficient as a matter of law to sustain any Title VII claim. Speculation, conjecture and legal conclusion are not enough — i.e., plaintiff is required to set forth facts or circumstances which give rise to an inference that Title VII has been violated and nothing of the sort has been alleged herein. For example, plaintiff repeatedly asserts that defendants retaliated against her in violation of Title VII but fails specify in what protected activity she partook while opposing the allegedly unlawful union practices — i.e., what she did resulting in the retaliation. To state a claim for retaliation under Title VII, plaintiff must allege that she took part in an activity protected by Title VII, that defendants were aware of the activity, that plaintiff suffered an adverse employment action and that there is a link of causation between the protected activity and the adverse action. Tomka, at 1308; see also 42 U.S.C. § 2000e-3(a). If plaintiff's filing of the EEOC charge is deemed to be the operative act, it is simply unfathomable to construe defendant's earlier failure to represent her during the Section 72 hearing as constituting retaliation. In short, plaintiff has presented no valid grounds for any Title VII claim and the undersigned, sua sponte, will dismiss such claims in their entirety.
Defendants also argue that, to the extent plaintiff has premised her section 1981 claims on sex discrimination, such claim must be dismissed. The undersigned agrees. Stated simply, section 1981 prohibits race discrimination and allegations of sex discrimination are not actionable under that statute. See Runyon v. McCrary, 427 U.S. 160, 167 (1976).
Plaintiff's remaining 1981 claims fare no better. Section 1981 states that "[a]ll persons . . . shall have the same right . . . to make and enforce contracts . . . and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens . . ." This statute applies to both private and state actors. Yusuf v. Vassar College, 35 F.3d 709, 714 (2d Cir. 1994). To state a claim under section 1981, "a plaintiff must allege facts in support of the following elements: (1) the plaintiff is a member of a racial minority; (2) an intent to discriminate on the basis of race by the defendant; and (3) the discrimination concerned one or more of the activities enumerated in the statute." Mian v. Donaldson, Lufkin Jenrette Securities, 7 F.3d 1085 (2d Cir. 1993). "[A] union, entrusted with the enforcement of a labor contract, may violate the statute if by racial discrimination it interferes with its members' ability to enforce their contract." Woods v. Graphic Communications, 925 F.2d 1195, 1202-1203 (9th Cir. 1991) (citing Patterson v. McLean Credit Union, 491 U.S. 164, 177 (1989)). In order to survive a motion to dismiss, however, a complaint must do more than merely assert that racial discrimination occurred. The complaint must allege that the plaintiff was treated differently than were others similarly situated because of her race and include facts from which racial animus or disparate treatment against plaintiff can be inferred. See, e.g., Yusuf, at 713 (stating that a "plaintiff must specifically allege the events claimed to constitute intentional discrimination as well as circumstances giving rise to a plausible inference of racially discriminatory intent"); Martin, at 372; Gibbs-Alfano v. Ossining Boat Canoe Club, Inc., 47 F. Supp.2d 506, 511 (S.D.N.Y. 1999); Sanchez v. City of Hartford, 10 F. Supp.2d 162, 168 (D.Conn. 1999). Plaintiff sets forth no such grounds in her Complaint and the undersigned's review of her materials submitted in opposition to defendants' motion to dismiss gives no inkling as to circumstances giving rise to a plausible inference of racially discriminatory intent. As the Second Circuit Court of Appeals noted in Yusuf, "the abundance of other possible reasons for the [defendants'] decision combined with the lack of any specific factual support for [her] claim of a racial motivation illustrates that [her] claim here is simply a `naked allegation' of racial discrimination." Yusuf, at 714. Consequently, plaintiff's section 1981 claims will be dismissed.
Insofar as plaintiff has premised this action on section 1983, defendants argue that such must be dismissed, inasmuch as she fails to articulate any legitimate substantive federal law upon which to base a cause of action under such statute. The undersigned agrees. Section 1983 creates no substantive rights but merely provides the vehicle whereby federal rights elsewhere or otherwise conferred may be vindicated. Graham v. Conner, 490 U.S. 386, 393-394 (1989). In this regard, a proper section 1983 claim requires that plaintiff allege that defendants were acting under color of state law and that such actions deprived plaintiff of a federal right. Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999). Examining the latter element — the deprivation of a federal right — firstly, plaintiff's Complaint is woefully deficient. With respect to plaintiff's First Amendment and Thirteenth Amendment claims, she alleges no facts which support such claims. With respect to plaintiff's equal protection and due process claims, the allegations in the Complaint that defendants violated such rights can be construed as nothing other than "broad, simple, and conclusory statements that are insufficient to state any section 1983 claim. Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987). Similarly, plaintiff has failed to state facts showing that defendants acted under color of state law. Private individuals may be subject to liability under section 1983 only "if he or she [or it] willfully collaborated with an official state actor in the deprivation of [a] federal right." Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir. 1993). In this regard, plaintiff has failed to allege any willful participation by either defendant in any alleged deprivation of a federal right. Her "complaint contains no allegations of fact supporting the conclusion or inference that the Union [or defendant Smith] has either acted as a state instrumentality, performed traditionally exclusive sovereign functions, or been compelled or even encouraged by the state to make the decisions challenged in [her] complaint." Leahy v. Board of Trustees, 912 F.2d 917, 921-922 (7th Cir. 1990). Her "facts" consist solely of the conclusory allegation that, "[u]pon information and belief [,] Attorney Smith and Council 82 [took] actions to conspire, discriminate, and deny [plaintiff] benefits [—] i.e. union representation [—] [which] contributed to [plaintiff's] unconstitutional termination on December 7, 1998." Richardson Aff., filed July 17, 2000, ¶ 20. Such an allegation is insufficient to state a claim under section 1983. See, e.g., Spear v. Town of West Hartford, 954 F.2d 63, 68 (2d Cir. 1992) ("complaint must allege facts demonstrating that the private entity acted in concert with the state actor to commit an unconstitutional act"). Consequently, plaintiff's section 1983 claims will be dismissed.
"To state a § 1983 claim for retaliation for the exercise of First Amendment rights, a plaintiff must show that [her] activity was protected by the First Amendment and that the defendant's conduct complained of was in response to that protected activity." Posr v. Court Officer Shield No. 207, 180 F.3d 409, 418 (2d Cir. 1999). There are no such allegations in plaintiff's Complaint.
Plaintiff's Thirteenth Amendment allegation is particularly puzzling. To state a claim therefor, plaintiff must demonstrate she has been subjected to "compulsory labor akin to African slavery which in practical operation would tend to produce like undesirable results." Butler v. Perry, 240 U.S. 328, 332 (1916). For the purposes of this motion, it suffices to state that the allegations in plaintiff's Complaint do not even remotely implicate Thirteenth Amendment concerns.
Defendants argue, finally, that plaintiff's section 1985 claims fail for, inter alia, lack of specificity. The undersigned agrees. Section 1985 states — in relevant part that, "[i]f two or more persons in any State . . . conspire . . . for the purpose depriving, either directly or indirectly, any person of the equal protection of the laws, or of equal privileges and immunities under the laws" or "if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators." 42 U.S.C. § 1985(3). The undersigned's review of the Complaint fails to find any factual allegation which would tend to show that the defendants, motivated by some unlawful animus, conspired among themselves or with some third party in order to deprive plaintiff of some substantive federal right. Plaintiff "only vaguely refers to some `conspiracy' and hints at some tenuous link between this `conspiracy' and the fact that she is [a] black [female]." Gyadu v. Hartford Ins. Co., 197 F.3d 590, 591 (2d Cir. 1999). Such a "complaint[,] containing only conclusory, vague, or general allegations of conspiracy to deprive a person of constitutional rights [,] cannot withstand a motion to dismiss." Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir. 1983). Consequently, plaintiff's section 1985 claim will be dismissed. See also Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997) (noting that a complaint which contains "only conclusory, vague, or general allegations of conspiracy to deprive a person of constitutional rights cannot withstand a motion to dismiss").
Although it is the preferred practice for federal courts, upon dismissal of a pro se litigant's complaint for failure to state any cognizable cause of action, to grant leave to file an appropriately amended complaint, such leniency is not without limitation. Leave to amend a complaint should not be granted, for example, where there have been instances of "repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the amendment. . . ." Foman v. Davis, 371 U.S. 178, 182 (1962). Given the deficiencies now inherent in plaintiff's Complaint, the undersigned is somewhat reluctant to grant such leave in this action, especially when her responding papers nothing to substantiate the complaint. However and in light of the fact that plaintiff proceeds pro se and has yet to have any opportunity to file an amended complaint, she will be granted such opportunity.
Accordingly, it is hereby ORDERED that defendants' motion to dismiss plaintiff's federal claims is granted, that this Court declines to exercise supplemental jurisdiction over plaintiff's remaining state law claims, that this action is dismissed and that plaintiff shall have twenty days from the filing of this Memorandum and Order in which to file an Amended Complaint.