Opinion
NO. 00-CV-0057E(F).
October 5, 2000
ATTORNEYS FOR THE PLAINTIFF: Gregory A. Mattacola, Esq., c/o Chiacchia Fleming, LLP, Buffalo, NY.
ATTORNEYS FOR THE DEFENDANT: Project Head Start Katzenstein — Thomas S. Gill, Esq., c/o Saperston Day Buffalo, NY.
Community Action — Maureen G. Fatcheric, Esq., c/o Costello, Cooney Fearon, Syracuse, NY.
MEMORANDUM and ORDER
Rubick filed suit against Cattaraugus Wyoming Counties Project Head Start, Inc. ("Head Start") and Cattaraugus Community Action, Inc. ("CCA") alleging that they had violated her rights by terminating her employment in violation of the Americans with Disabilities Act ("the ADA"), 42 U.S.C. § 12101 et seq., the Civil Rights Act of 1991 ("the CRA"), 42 U.S.C. § 1981(a) et seq., the New York State Human Rights Law ("the HRL") N.Y Exec. Law § 290 et seq. and state contract law. This Court has jurisdiction over these claims pursuant to 28 U.S.C. § 1331 and 1367(a). Presently before it is CCA's motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil procedure ("FRCvP"). Such motion will be denied.
Rubick, who allegedly suffers from severe diabetes, filed a charge with the Equal Employment Opportunity Commission ("the EEOC") March 19, 1999 alleging that Head Start and CCA had terminated her employment in May 1998 due to her disability in violation of the ADA and the HRL. The charge was received and date stamped by the EEOC March 22, 1999. The EEOC subsequently prepared its own shorter version of the charge on a standard charge form which it denoted the Amended Charge. The EEOC then forwarded that form to Rubick who signed it and returned it to the EEOC April 7, 1999. The Amended Charge form prepared by the EEOC neglected to list CCA as a defendant and, consequently, the EEOC's right-to-sue letter issued October 20, 1999 listed only Head Start as a proposed defendant. Rubick subsequently filed suit against both Head Start and CCA January 13, 2000. CCA brought the instant motion which, under FRCvP 12(b)(1), was made on the bases (1) that CCA had not been named in the EEOC charge and, therefore, Rubick had failed to exhaust her administrative remedies as to it and (2) that CCA was not Rubick's employer and thus is liable under neither the ADA nor the HRL. The motion to dismiss under FRCvP 12(b)(6) was made on the basis that the complaint fails to state a claim upon which relief can be granted because there are no substantive allegations that CCA was Rubick's employer for purposes of the ADA. The error in omitting CCA from the Amended Charge and the right-to-sue letter was brought to the attention of the EEOC which subsequently reopened the original charge filed by Rubick and issued another right-to-sue letter against CCA March 19, 2000.
The Director of the EEOC, Elizabeth Cadle, stated that the omission of CCA from the Amended Charge and right-to-sue letter was a mistake on the part of the EEOC and that the employee who drafted the amended charge had done so on his last day and was no longer employed by the EEOC. Ms. Cadle stated that CCA was listed in the original charge. Mattacola Aff. ¶ 9.
CCA has sought to dismiss the claim against it for lack of subject matter jurisdiction under FRCvP 12(b)(1) on two separate and distinct grounds: (1) that Rubick failed to exhaust her administrative remedies as to it and (2) that it never was her employer. This Court will address both grounds in turn before addressing the 12(b)(6) motion, in that the latter would be moot were this Court to find that it lacked subject matter jurisdiction. The ADA incorporates the enforcement provisions applicable under Title VII. 42 U.S.C. § 12117(a); Redlich v. Albany Law School of Union University, 899 F. Supp. 100, 103 (N.D.N.Y. 1995). Under the ADA, because New York has a work-sharing agreement with the EEOC, a plaintiff must file a charge of discrimination with the EEOC within 300 days of the discriminatory event. 42 U.S.C. § 2000e-5(e)(1). In cases where the basis of a claim is wrongful discharge, the discriminatory event occurs when the plaintiff is notified that she is to be terminated, as opposed to the date of actual termination. Miller v. Intern. Tel. Tel. Corp., 755 F.2d 20, 23 (2d Cir. 1985). The EEOC must retain the charge for at least 180 days before issuing a right-to-sue letter. 42 U.S.C. § 2000e-5(f)(1). A plaintiff cannot file suit in federal court until a right-to-sue letter has been issued and must file suit within 90 days after receipt of the same. Ibid.
In its motion to dismiss, CCA states that Rubick never named it in her EEOC charge and thus has failed to exhaust her administrative remedies. This is incorrect. In the charge originally filed by Rubick with the EEOC, CCA is named as a defendant. Mattacola Aff. Ex. B ¶¶ 2, 4, 7. It thus appears that what CCA is attempting to argue in its 12(b)(1) motion is that this Court lacks jurisdiction to hear the ADA claim because the EEOC inadvertently omitted CCA from the Amended Charge prepared by it and resultantly left CCA out of the right-to-sue letter Rubick received. CCA states that it "should still be allowed the EEOC process to which it is entitled" and that the lack of notice "undermines the conciliatory purpose of the EEOC complaint process." Fatcheric Reply Aff. ¶¶ 12-13. However CCA also alleges that it was never Rubick's employer and thus has no liability under the ADA. In light of such allegation, this Court sees no benefit in remanding this case to the EEOC for the "conciliatory process" to which CCA states it is entitled. Furthermore, the EEOC had already terminated its investigation of Rubick's charges against CCA before she filed her lawsuit and has subsequently issued a right-to-sue letter naming CCA. Receipt of a right-to-sue letter is not a sine qua non of jurisdiction, it can be waived by the court. Pietras v. Board of Fire Com'rs of Farmingville, 180 F.3d 468, 474 (2d. Cir. 1999). It is therefore held that the EEOC complaint process has been satisfied in regard to CCA and that this Court has subject matter jurisdiction, even though the right-to-sue letter had not been obtained prior to filing suit against CCA.
CCA cites as authority for this proposition "Plaintiff's EEOC Right to Sue Letter, attached to Zerbian Affidavit as Exhibit `1'". Mem. in Supp. of Mot. to Dismiss at 6. However only two exhibits are attached to the Zerbian Affidavit and are denoted "A"(the complaint) and "B" (the amended charge form filled out by the EEOC). There is neither an exhibit "1" nor the right-to-sue letter as an attached exhibit. The remainder of CCA's Memorandum in Support of Motion to Dismiss concerns the exhaustion of administrative remedies and is limited to a discussion of the "identity of interest" exception, which is irrelevant because it applies only when a defendant is not named in the EEOC charge. Mem. in Supp. of Mot. to Dismiss at 6-9.
Rubick believed the original Charge Affidavit — lengthy and prepared by her attorney — listing CCA as a defendant was still in effect and was unaware, before she filed suit, that the EEOC had not listed and had omitted CCA. Mattacola Aff. ¶¶ 6, 8.
CCA has also moved to dismiss for lack of subject matter jurisdiction under FRCvP 12(b)(1) on the ground that it was not Rubick's employer and thus this Court does not have subject matter jurisdiction to hear the ADA claim against it. Matthews v. New York Life Ins. Co., 780 F. Supp. 1019, 1023 (S.D.N.Y 1992). The ADA states that:
"No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training and other terms, conditions and privileges of employment." 42 U.S.C. § 12112(a).
A covered entity is defined as an employer. Id. at § 12111(2). To be liable under the ADA, a defendant must be — or have been — the plaintiff's employer. Matthews at 1023. As a preliminary matter, it is noted that it is possible for one to have more than a single employer in one job for purposes of the ADA and that the term "employer" is to be construed liberally. Alie v. Nynex Corp., 158 F.R.D. 239, 245 (E.D.N.Y 1994). In interpreting such term, courts have held that "employer" is broadly defined, that the absence of a traditional, direct employment relationship does not bar liability and that any party who significantly affects an individual's employment can be considered her employer. Spirit v. Teachers Ins. Annuity Ass'n, 691 F.2d 1054, 1063 (2d Cir. 1982), vacated on other grounds 463 U.S. 1223 (1983); Alie at 245. An essential element is the payment of compensation by such party to such individual, whether directly or indirectly. Pietras at 473. Another factor that can be considered as creating an employment relationship is the authority of one company to control the budget or dictate personnel policies of the plaintiff's direct employer. Gryga v. Ganzman, 991 F. Supp. 105, 109 (E.D.N.Y 1998). A company which has a significant degree of control over a plaintiff's direct employer — such as through the exercise of policymaking authority or through an integrated economic relationship — is liable as an employer to the particular plaintiff under the ADA for discrimination purposes. Alie at 246; Gryga at 108. If the relationship between the companies is that of parent and subsidiary — as opposed to an employer and a third party — then four factors are to be considered in determining whether the parent company is liable as an employer under the ADA — viz., "(1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control." Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1240 (2d Cir. 1995). The most important of these four factors is the second — i.e., centralized control of labor relations —, although a parent corporation can be held liable as an employer for discrimination perpetrated by its subsidiary "even absent total control or ultimate authority over hiring decisions." Id. at 1241.
In her complaint, Rubick alleges that Head Start was part of and under the control and direction of CCA until January 1997 when Head Start was incorporated and became an independent non-profit organization. Compl. ¶¶ 5-6, 12a. She further alleges that she was an employee of Head Start and/or CCA for purposes of the ADA. Compl. ¶ 16. CCA's motion to dismiss is based on a factual as opposed to facial lack of subject matter jurisdiction. In an attack on factual subject matter jurisdiction pursuant to FRCvP 12(b)(1), the court is required to examine the evidence independently to determine if it has subject matter jurisdiction over the claim. Guadagno v. Wallack Ader Levithan Assoc., 932 F. Supp. 94, 95 (S.D.N.Y 1996). The burden is on the party asserting subject matter jurisdiction to establish its existence; the allegations in the complaint regarding subject matter jurisdiction are not assumed to be true. London v. Polishook, 189 F.3d 196, 199 (2d Cir. 1999). The court is not required to make a final resolution of a factual dispute over subject matter jurisdiction at the time the motion to dismiss is filed; ultimate resolution of the dispute may be deferred until the time of trial. Guadagno at 95. The court should make a preliminary determination of subject matter jurisdiction, however, because the motion goes to its very power to entertain the suit. In considering whether it has subject matter jurisdiction, the court can examine affidavits and other evidence outside of the pleadings and/or conduct an evidentiary hearing — Zappia Middle East Const. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000) — and, before dismissing a claim for lack of jurisdiction, the court should allow the plaintiff to engage in discovery for the purpose of establishing that it has jurisdiction over the claim. Alliance of American Insurers v. Cuomo, 854 F.2d 591, 597 (2d Cir. 1988); Kamen v. American Tel Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986); Zappia at 253 (discovery on jurisdiction allowed).
This Court is thus required to determine as a preliminary matter whether there are sufficient facts to establish that CCA was Rubick's employer for purposes of the ADA, thereby conferring on this Court subject matter jurisdiction. This Court has thoroughly reviewed the Answers of Katzenstein and Head Start, the affidavit submitted by Tina Zerbian (the Director of CCA), the affidavit of the plaintiff and Zerbian's reply affidavit. Relevant facts gleaned from these papers that show that CCA could be considered Rubick's employer — whether as a third party or a parent company — for purposes of the ADA are as follows. Rubick began employment with Head Start in 1980. Rubick Aff. ¶ 2. From 1967 until December 31, 1996, CCA was the grantee that received funds and distributed such to Head Start. Zerbian Aff. ¶ 4. The Board of Directors of CCA was responsible for hiring and firing Head Start's Director. Rubick Aff. ¶ 6. Defendant Katzenstein has been the Executive Director of Head Start since 1985. Compl. ¶ 12(b). As Head Start Executive Director, Katzenstein was hired by and employed by CCA until Head Start was incorporated January 1, 1997. Answer of Katzenstin, ¶ 9. Rubick has suffered from diabetes since 1984 and notified Katzenstein of such once he had entered his position. Compl. ¶ 12(c). Rubick requested accommodations from Katzenstein who refused to accommodate her disability. Compl. ¶¶ 12(d)(e). CCA was involved in drafting the employment policies of Head Start. Rubick Aff. ¶¶ 12, 21. Rubick notified CCA directly of her disability and of her requests for accommodation. Rubick Aff. ¶ 22. The essential element of compensation to establish an employment relationship for liability under the ADA exists in that CCA — as noted supra — distributed the funding to Head Start from its inception until December 31, 1996. Based on the facts alleged in these affidavits, this Court is satisfied that Rubick has presented sufficient evidence to establish that CCA was Rubick's employer for purposes of the ADA; consequently, this Court is preliminarily satisfied that it has subject matter jurisdiction to hear the claims against CCA. Guadagno at 95; Exchange Nat. Bank of Chicago v. Touche Ross Co., 544 F.2d 1126, 1130-1131 (2d Cir. 1976) (motion to dismiss for lack of subject matter jurisdiction can be denied based on factual statements in plaintiff's affidavit). It should be noted that this Court is not at this point ruling that CCA was Rubick's employer but only that Rubick has produced enough evidence to survive the motion to dismiss. The case will therefore be allowed to proceed to discovery, although this Court will not foreclose another motion to dismiss on such grounds, once the parties have had an opportunity to glean the relevant facts through discovery.
CCA also moves to dismiss for lack of subject matter jurisdiction under FRCvP 12(b)(1) on the ground that it was not Rubick's employer for purposes of the HRL. The HRL states that "[i]t shall be an unlawful discriminatory practice * * * [f]or an employer * * * because of the * * * disability * * * of any individual, * * * to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment. N.Y Exec. Law § 296(1)(a). The HRL does not define "employer" in a general sense. In construing the HRL, courts have held that four elements are to be considered in determining whether the defendant is an employer — viz., "1) whether the proposed employer had the power of the selection and engagement of the employee; 2) whether the proposed employer made the payment of salary or wages to the employee; 3) whether the proposed employer had the power of dismissal over the employee; and 4) whether the proposed employer had the power to control the employee's conduct." Goyette v. DCA Advertising Inc., 830 F. Supp. 737, 746 (S.D.N.Y 1993), citing State Division of Human Rights v. GTE Corp., 487 N.Y.S.2d 234, 235 (App.Div. 4th Dep't, 1985). Based on the above-enumerated facts and, specifically, CCA's alleged control over Head Start's Executive Director — Rubick Aff. ¶ 6 —, this Court cannot rule as a matter of law that CCA was not Rubick's employer for purposes of the HRL. Therefore, such motion is denied at this time and the case shall be allowed to proceed to discovery.
"The term `employer' does not include any employer with fewer than four persons in his employ." N.Y. Exec. Law § 292(5).
Having ruled that this Court has jurisdiction to hear Rubick's claims against CCA, the Court will now address CCA's motion to dismiss for failure to state a claim upon which relief can be granted under FRCvP 12(b)(6). For purposes of ruling on a motion to dismiss for failure to state a claim upon which relief can be granted under FRCvP 12(b)(6) — unlike a factual motion to dismiss under FRCvP 12(b)(1) — this Court assumes all of the plaintiff's allegations in the complaint to be true. Branum v. Clark, 927 F.2d 698, 705 (2d. Cir. 1991). In ruling on the 12(b)(6) motion this Court will limit itself to the allegations in the complaint inasmuch as no discovery has been had. Fonte v. Bd. of Mgers. of Continental Towers Condo., 848 F.2d 24, 25 (2d Cir. 1988) (in ruling on a 12(b)(6) motion, a court must limit itself to the complaint or convert the motion to dismiss into a motion for summary judgment). A court should not dismiss a claim under FRCvP 12(b)(6) "unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief" and this principle is applied even more strictly when the complaint alleges a civil rights violation. Branum at 705, quoting Conley Gibson, 355 U.S. 41, 45-46 (1957). CCA alleges that Rubick has "failed to make any substantive allegations connecting CCA with Head Start's employment actions regarding plaintiff" — Mem. in Supp. of Mot. to Dismiss at 1 — and is therefore unable to survive a motion to dismiss because CCA was not Rubick's employer for purposes of the ADA. Id. at 9. In support of this contention, CCA cites Alie v. Nynex Corp.; however in Alie the only statement in the complaint was that the two defendants "have a substantial identity of interest for purposes of Title VII." 158 F.R.D. 239, 246 (E.D.N.Y. 1994). Therein, the motion to dismiss was accordingly granted, although Alie was allowed to file an amended complaint to rectify deficiencies. Ibid. CCA also cites Kern v. City of Rochester, 93 F.3d 38 (2d Cir. 1996); however this Court fails to see the relevance of such. Kern only affirmed the denial of leave to amend a complaint to add a cause of action against the City of Rochester, which already was a named defendant, on the basis that the complaint did not contain any allegation that the plaintiff's employment had been affected by the City in any manner. Kern at 45. In contrast to the naked legal employment conclusion in Alie and the lack of an employment claim in Kern, Rubick has alleged facts concerning the relationship of CCA and Head Start sufficient to support a conclusion that CCA was her employer. Rubick complains that Head Start was a part of and was under the control of CCA until Head Start was incorporated and became an independent non-profit organization. Compl. ¶¶ 5-6, 12(a). FRCvP 8(a)(2) only requires "a short and plain statement of the claim showing that the pleader is entitled to relief" and the Supreme Court has held that "the Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim." Conley at 47. This Court therefore h01d5 that Rubick's statement of CCA's involvement with Head Start satisfies the requirements of alleging that CCA was her employer and is consequently liable for purposes of the ADA.
It is hereby ORDERED that CCA's motion to dismiss under FRCvP 12(b)(1) and 12(b)(6) is denied and that this case shall proceed to discovery.
DATED: Buffalo, N.Y. October 4, 2000.