Opinion
No. 04 CV 4572 (NG) (LB).
February 23, 2005
OPINION AND ORDER
In an action for employment discrimination, defendants move this court to dismiss the complaint, arguing that plaintiff fails to state a claim on which relief can be granted. For the reasons set forth below, the claims asserted against David Dembin are dismissed, and the motion to dismiss is otherwise denied.
FACTS
Pro se plaintiff Roberto C. Salazar, who identifies himself as a Latino from Ecuador, brings this action against defendants David Dembin and New York Hospital Medical Center of Queens (the "Hospital") alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e- 2000e-17 ("Title VII"). Plaintiff was a former Hospital employee who was supervised by Dembin. Plaintiff's employment was terminated in December 2003.
On March 31, 2004, plaintiff filed a complaint of discrimination with the New York State Division of Human Rights (the "State Agency"). The complaint alleged that the Hospital had discriminated against him on the basis of his national origin, race, and color. The complaint, which did not name Dembin as a respondent, included the following specific allegations:
2. I was employed by the Respondent as a Transporter from December 2000 to December 2003. My work performance was always satisfactory.
3. On or about 2003 David Dembin, Supervisor, Caucasian, was hired. Since hired Mr. Dembin treated Blacks and Hispanics unfavorably.
4. In October 2003, I asked Mr. Dembin if I could take three days off to go see my grandmother who was sick in Ecuador. Mr. [Dembin] turned down my request so I asked his Supervisor Barry, who approved my request.
5. Since that time Mr. Dembin started harassing me and writing me up. I had never been written up prior to his hiring. On December 31, 2003 I was terminated from my employment. I was treated in the manner because of my . . . national origin, race and color. I am thereby harmed.
The State Agency provided the Hospital with a copy of plaintiff's complaint and an opportunity to respond. After completing its investigation, the State Agency issued an order, on August 2, 2003, finding "NO PROBABLE CAUSE to believe that the [Hospital] has engaged in or is engaging in the unlawful discriminatory practice complained of." The Equal Employment Opportunity Commission ("EEOC") adopted the findings of the State Agency and issued a right to sue letter on September 27, 2004.
Plaintiff commenced the instant action on November 5, 2004, utilizing the form complaint for employment discrimination provided by the court's Pro Se Office. He was granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a)(1). Item number four of the form complaint sets forth a list of categories of discriminatory conduct, including termination of employment and unequal terms and conditions of employment, and instructs the plaintiff to check all that apply. Here, plaintiff checked only retaliation. Item number eight provides the plaintiff with a space to write in the specific factual allegations that form the basis of the complaint. Here, plaintiff wrote the following:
On Oct. of 2003 I had a family emergency that latter turned into the last of a family member. I asked the defendant for three (3) personal o vacation day off and he Mr. David Dembin denied my request without a justification. Due to the circumstances I was facing I turned to His Supervisor for the days of and my request was granted. I had previous encounters with my Supervisor that has led me to believe he is not able to perform his duties because of his discriminatory attitude towass latin americans.
The form complaint contains the following note: "As additional support for your claim, you may attach to this complaint a copy of the charge filed with the Equal Employment Opportunity Commission, the New York State Division of Human Rights, or the New York City Commission on Human Rights." Plaintiff did not attach a copy of the complaint that he filed with the State Agency. He did, however, attach a copy of the right to sue letter issued to him by the EEOC.
On January 4, 2005, defendants moved to dismiss plaintiff's complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6) and 28 U.S.C. § 1915(e)(2)(B)(ii), arguing that plaintiff fails to state a claim under Title VII. Specifically, defendants argue that Dembin's denial of plaintiff's request for personal days does not constitute an adverse employment action within the meaning of the law. In response, plaintiff argues, again utilizing forms provided by the court's Pro Se Office, that: "This suit is resultant of my termination, not due to Dembin's denial of time off! My termination followed Dembin's superior granting my leave over Dembin."
Under the federal in forma pauperis statute, "the court shall dismiss the case at any time if the court determines that . . . the action . . . fails to state a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
DISCUSSION
I. Standard of Review
The standard of review under the federal in forma pauperis statute is the same as that under Federal Rule of Civil Procedure 12(b)(6). Cieszkowska v. Grayline New York, 2001 WL 1131990 (S.D.N.Y. 2001). Dismissal is proper only when the plaintiff can prove no set of facts in support of the claims set forth in the complaint that would entitle the plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The issue is not whether a plaintiff is likely to prevail ultimately, but whether the plaintiff is entitled to offer evidence to support the claims. Indeed, it may appear on the face of the pleading that recovery is remote and unlikely, but that is not the test. Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998). The task of the court in ruling on a Rule 12(b)(6) motion is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence that might be offered in support of it. Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998). The court is required to accept as true all factual allegations in the complaint, and to consider documents attached to the complaint or incorporated in it by reference. Id.
Moreover, pro se complaints, however inartfully pleaded, are held to less stringent standards than formal pleadings drafted by lawyers, and are to be construed liberally on a motion to dismiss. Hughes v. Rowe, 449 U.S. 5, 9 (1980); Boddie v. Schneider, 105 F.3d 857, 860 (2d Cir. 1997). II. Elements of a Title VII Claim
Title VII provides that it shall be "an unlawful employment practice" for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. . . ." 42 U.S.C. § 2000e-2(a)(1). To establish a prima facie case of discrimination under Title VII, a plaintiff must demonstrate that (1) plaintiff belongs to a protected class, (2) plaintiff was qualified to perform the duties of the job at issue, (3) plaintiff suffered an adverse employment action, and (4) the circumstances surrounding that action permit an inference of discrimination. Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir. 2004).
Title VII also provides that "[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation under Title VII, a plaintiff must demonstrate that (1) plaintiff was engaged in an activity protected under Title VII, (2) the employer was aware of plaintiff's participation in the protected activity, (3) the employer took adverse action against plaintiff, and (4) a causal connection existed between the plaintiff's protected activity and the adverse action taken by the employer. Mack v. Otis Elevator Co., 326 F.3d 116, 129 (2d Cir. 2003).
As a pre-requisite to filing a civil action, Title VII requires an individual seeking relief to file a complaint with the EEOC or an analogous state agency. 42 U.S.C. § 2000e-5(f)(1). The relevant limitations period for filing such complaint in this case is 300 days. See 42 U.S.C. § 2000e-5(e)(1).
III. Claims against Dembin
Plaintiff failed to name Dembin as a respondent in the complaint that he filed with the State Agency. In any event, individual employees are not subject to personal liability under Title VII. This is true even with respect to individual employees who had supervisory control over the plaintiff. Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995) ("We now hold that individual defendants with supervisory control over a plaintiff may not be held personally liable under Title VII."), abrogated on other grounds by Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998); Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000) (per curiam) ("[I]ndividuals are not subject to liability under Title VII."); Patterson v. County of Oneida, 375 F.3d 206, 221 (2d Cir. 2004) ("[T]he district court properly dismissed [plaintiff's] Title VII claims against the individual defendants."). Accordingly, the claims against Dembin are dismissed.
IV. Claims against the Hospital
The denial by Dembin of plaintiff's request for personal days does not constitute an adverse employment action, which is a requisite element of any Title VII claim. See Galabya v. New York City Board of Education, 202 F.3d 636, 640 (2d Cir. 2001). Since that is the only allegation of discriminatory conduct contained in plaintiff's federal complaint, the Hospital is correct that the complaint, strictly construed, fails to state a claim under Title VII. However, plaintiff's State Agency complaint alleges that his employment at the Hospital was terminated as a result of unlawful discrimination. Plaintiff's termination does constitute an adverse employment action.
The allegation is not, however, irrelevant to plaintiff's Title VII claims. If proven, it may constitute evidence to support an inference of discrimination.
Although plaintiff did not physically attach the complaint that he filed with the State Agency to the complaint that he filed in this court, given his pro se status and the fact that he did attach the right to sue letter issued by the EEOC, which adopted the findings of the State Agency, the court deems the complaint filed with the State Agency to be incorporated by reference into the form complaint filed in this court. This result works no hardship on the Hospital, which was served with the State Agency complaint at the outset of the State Agency's investigation, and has, thus, been on notice of its claims and allegations since that time.
When construed to incorporate the allegations of the State Agency complaint, plaintiff's federal complaint states viable Title VII claims against the Hospital under two alternate theories. First, the complaint asserts that plaintiff's termination was the result of discrimination by the Hospital on the basis of plaintiff's race and national origin. In addition, the complaint asserts that plaintiff's termination was retaliation for plaintiff's protests to a supervisor concerning alleged discriminatory treatment by Dembin. Defendants' argument that the retaliation claim was not exhausted with the State Agency is unavailing. Although the word "retaliation" does not appear in the State Agency complaint, the facts alleged therein are sufficient to state a claim for retaliation. Since plaintiff is pro se, the court will not impose on him a requirement to utilize legal terms of art. Accordingly, defendants' motion to dismiss is denied with respect to the claims asserted against the Hospital.