Opinion
00 Civ. 9506 (SAS)
June 26, 2002
Isabel Ullah, Ossining, New York, plaintiff, pro se.
John E. Knudsen, Assistant Attorney General, New York, New York, for defendants.
OPINION AND ORDER
I. BACKGROUND
A. Plaintiff's Status
Plaintiff is an employee of NYDOCS and works at the Sing Sing Correctional Facility ("Sing Sing") as a corrections officer. See Complaint ¶¶ 2, 14; See also Memorandum of Law in Support of Defendant's Motion for Judgment on the Pleadings ("Def. Mem.") at 2. Plaintiff was on probation at all times relevant to this Complaint but is no longer on probation. See id. at 9.
B. The Initial Event
On June 14, 2000, plaintiff had a verbal altercation with Corrections Officer Gerald Knowlden. See Plaintiff's Memorandum to Lieutenant Leghorn ("Leghorn Mem."), Ex. A to Complaint, at 4. Both parties exchanged profanities and Officer Knowlden used gestures and language that plaintiff alleges were sexually abusive. See id. Plaintiff also alleges that when she complained to her Watch Commander, Lieutenant Quincy Magwood, he informed her that if she filed a formal complaint she could be terminated for using inappropriate language. See Plaintiff's Memorandum to Superintendent B. Fischer ("Fischer Mem."), Ex. A to Complaint, at 2. Lieutenant Magwood encouraged her to accept an apology letter instead. See id.
Plaintiff consulted with an attorney and wrote a memorandum dated June 21, 2000, which she gave to Lieutenant Magwood on June 24, 2000. See id. The next day, Lieutenant Magwood gave plaintiff an apology letter written by Corrections Officer Knowlden. See Officer Knowlden's Letter of Apology, Ex. C to Complaint, at 1.
Plaintiff did not include a copy of the June 21 memorandum in her exhibits. There is an undated memorandum, but the text of that memorandum refers to a conversation on June 26, 2000, a day after the apology was issued. See Plaintiff's Letter to NYDOCS Affirmative Action Administrator ("NYDOCS Complaint"), Ex. D to Complaint, at 1.
C. The Formal and Verbal Counselings
Plaintiff received the following series of formal (written) and verbal counselings which she alleges were unjustified: (1) a formal counseling, dated June 25, 2000, from Lieutenant Magwood for use of vulgar language (see Complaint ¶ 17); (2) a formal counseling, dated August 21, 2000, from Sergeant Vaughn for an incorrect inmate count see id. ¶ 20); (3) a formal counseling, dated November 6, 2000, from Sergeant Vaughn for losing her baton (see id. ¶ 26); (4) a verbal counseling on January 21, 2001 for her inaccurate time and attendance records (see id. ¶ 45); (5) a verbal counseling by Lieutenant Leghorn on February 15, 2001 for her inaccurate time and attendance records (see id. ¶ 51).
During the verbal counseling, Leghorn said: "Everyone knows you are taking jobs" which plaintiff understood to be a threat. See Complaint ¶¶ 53-55.
D. The Unsatisfactory Performance Evaluations
Plaintiff received the following three evaluations which she alleges were unfairly negative: (1) a 'fair' evaluation written by Sergeant Long on September 26, 2000, and shown to plaintiff on November 3, 2000 (see id. ¶ 27); (2) an 'unsatisfactory' evaluation recommending termination written by Sergeant McNamara on October 13, 2000, and shown to plaintiff on November 8, 2000 (see id. ¶ 28); (3) an 'unsatisfactory' evaluation written by Sergeant McNamara on December 6, 2000 (see id. ¶ 35).
Shortly after this evaluation, plaintiff's tires were slashed and she received harassing phone calls. See Complaint ¶¶ 29, 32.
E. The Denial of Worker Compensation Benefits
From September 12, 2000 until September 15, 2000, plaintiff missed work due to a sinus infection. See Plaintiff's Memorandum to Lieutenant Bennett ("Bennett Mem."), Ex. Y to Complaint, at 1. On September 22, 2000, plaintiff inhaled smoke from a fire at Sing Sing. See id. Plaintiff filed a form requesting leave without pay. See id. Plaintiff's doctor diagnosed her with exacerbation of sinusitis and allowed her to return to work on September 26, 2000. See 9/25/00 Note from Dr. Han, Ex. Y to Complaint at 7.
On September 26, 2000, plaintiff was diagnosed with severe hemorrhaging due to a fibroid uterus. See 9/26/00 Note from Dr. Chalson, Ex. Y to Complaint at 8. On September 27, 2000, plaintiff was injured when she responded to an emergency situation. See Bennett Mem. at 1. On September 28, 2000, plaintiff's doctor scheduled her for surgery for the fibroid uterus. See 09/28/00 Letter from Dr. Chalson, Ex. Y to Complaint at 11. Plaintiff's request to use vacation days in lieu of sick days was denied on October 18, 2000. See 10/18/00 Letter from Deputy Superintendent Oken, Ex. Y to Complaint at 13. Plaintiff's request to be put on sick leave at half pay was denied on November 2, 2000. See Bennett Mem. at 2. Plaintiff was allowed to return to work on November 1, 2000. See id.
Plaintiff does not specify how she was injured.
Plaintiff alleges that she was unfairly counseled, received negative evaluations, and denied sick leave benefits because of the initial incident with Corrections Officer Knowlden. See Plaintiff's Memorandum to EEOC, Ex. V to Complaint, at 6.
F. Plaintiff's Internal and EEOC Complaints
On June 14, 2000, plaintiff wrote a memorandum to Lieutenant Leghorn describing the incident with Corrections Officer Knowlden. See Leghorn Mem. at 4. In an undated letter, plaintiff wrote to NYDOCS' Affirmative Action Administrator, describing the June 14, 2000 incident. See NYDOCS Complaint at 1. On November 28, 2000, NYDOCS' Office of Diversity Management responded to plaintiff's inquiry and found her allegations to be unsubstantiated. See Letter from Charles Harvey, Director of the Office of Diversity Management, Ex. Q to Complaint, at 3.
On November 17, 2000, plaintiff filed a complaint with the EEOC claiming sex, race, and national origin discrimination. See Plaintiff's EEOC Complaint, Ex. U to Complaint, at 3. Plaintiff was issued a right to sue letter on May 23, 2001. See Complaint at 3. Plaintiff filed a pro se complaint with this Court on December 14, 2000 which was dismissed, but then restored to the active docket on June 6, 2001. Plaintiff's First Amended Complaint was filed on July 31, 2001 and her Second Amended Complaint was filed on November 14, 2001.
II. LEGAL STANDARD
The standard applicable to a motion to dismiss under Rule 12(c) is the same as that under Rule 12(b)(6). See Irish Lesbian and Gay Org. v. Giuliani, 143 F.3d 638, 644 (2d Cir. 1998). Consideration of the sufficiency of a plaintiff's claim ma 12(b)(6) motion is limited "to the allegations of the complaint and any documents attached to or incorporated by reference in the complaint . . ." Dangler v. New York City Off Track Betting Corp., 193 F.3d 130, 138 (2d Cir. 1999). See also Alvarado v. Kerrigan, 152 F. Supp.2d 350, 354 (S.D.N.Y. 2001) ("In deciding a motion for judgment on the pleadings, a court may consider the pleadings and exhibits attached thereto, and statements or documents incorporated by reference in the pleadings."). A court must view "[a]ll reasonable inferences that can be drawn from such allegations and documents in the light most favorable to the plaintiff . . . ." Dangler, 193 F.3d at 138. Thus, a court "must accept as true all of the factual allegations contained in the complaint." Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164 (1993).
Dismissal of a complaint for failure to state a claim pursuant to Rule 12(b)(6) is proper only where "'it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim that would entitle [her] to relief.'" ICOM Holding, Inc. v. MCI Worldcom, Inc., 238 F.3d 219, 222 (2d Cir. 2001) (quoting Harris v. City of New York, 186 F.3d 243, 250 (2d Cir. 1999)). "At the Rule 12(b)(6) stage, the issue is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test." Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000) (quoting Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998) (internal quotation marks omitted)). 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 which might be offered in support thereof." Sims, 230 F.3d at 20 (quoting Ryder Energy Distrib. Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 779 (2d Cir. 1984) (internal quotation marks omitted)).
Under the Federal Rules of Civil Procedure, a plaintiff need only provide "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "Such a statement must simply 'give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Swierkiewicz v. Sorema N.A., 122 S.Ct. 992, 998 (2002) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). "This simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims." Swierkiewicz, 122 S.Ct. at 998.
Because "most pro se plaintiffs lack familiarity with the formalities of pleading requirements, [courts] must construe pro se complaints liberally, applying a more flexible standard to evaluate their sufficiency." Lerman v. Board of Elections in the City of New York, 232 F.3d 135, 140 (2d Cir. 2000) (citing Hughes v. Rowe, 449 U.S. 5, 9-10 (1980) and Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). Thus, dismissal is "appropriate only if it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." Friedl v. City of New York, 210 F.3d 79, 83 (2d Cir. 2000) (quoting Harris, 186 F.3d at 250 (internal quotation marks omitted)). "'This rule applies with particular force where the plaintiff alleges civil rights violations or where the complaint is submitted pro se.'" Cruz v. Gomez, 202 F.3d 593, 596 (2d Cir. 2000) (quoting Chance, 143 F.3d at 701).
III. DISCUSSION
A. Plaintiff Has Stated Title VII Claims
Defendant cites a number of Second Circuit decisions in support of its argument that plaintiff's case should be dismissed for failure to state a claim. See Def. Mem. at 13 (quoting Martin v. New York State Dept. of Mental Hygiene, 588 F.2d 371, 372 (2d Cir. 1978)) ("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 Acts [Title VII], fails to state a claim under Rule 12(b)(6)"); Gregory v. Daly, 243 F.3d 687, 692 (2d Cir. 2001) ("a simple declaration that defendant's conduct violated the ultimate legal standard at issue (e.g., it was 'because of sex' or 'severe or pervasive') does not suffice" to set forth a Title VII claim.) (internal quotation marks omitted).
However, these decisions were recently effectively abrogated by the Supreme Court. See Swierkiewicz, 122 S.Ct. at 998. In fact, the Supreme Court was explicitly critical of the Second Circuit for requiring too much of plaintiffs at the pleading stage. See id. at 997. Applying Swierkiewicz, the Seventh Circuit recently explained:
A complaint that complies with the [F]ederal [R]ules of [C]ivil [P]rocedure cannot be dismissed on the ground that it is conclusory or fails to allege facts. The federal rules require (with irrelevant exceptions) only that the complaint state a claim, not that it plead the facts that if true would establish (subject to any defenses) that the claim was valid. All that need be specified is the bare minimum facts necessary to put the defendant on notice of the claim so that [it] can file an answer. All that's required to state a claim in a complaint filed in a federal court is a short statement, in plain (that is, ordinary, non-legalistic) English, of the legal claim . . . . The courts keep reminding plaintiffs that they don't have to file long complaints, don't have to plead facts, don't have to plead legal theories.
Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002) (Posner, J.) (citations omitted).
Thus, because plaintiff has provided a "short and plain" statement that gives the defendant "fair notice of what the plaintiff's claim is and the grounds upon which it rests," the complaint may not be dismissed at this stage of the proceeding. Conley, 355 U.S. at 47.
B. Hostile Work Environment
Defendant moves to dismiss plaintiff's claim of hostile work environment because she failed to raise it before the EEOC or plead it in her Complaint. Defendant further contends that new matter raised for the first time in response to a 12(c) motion may not be considered by this Court. Defendant is mistaken. Because plaintiff is proceeding pro se, the allegations raised in her memorandum of law may be treated as part of her Complaint. See Gill v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987) (considering pro se plaintiff's affidavit in reviewing district court's dismissal of claim.); see also Tsai v. Rockefeller University, 137 F. Supp.2d 276, 280 (S.D.N.Y. 2001); Donahue v. United States Dep't of Justice, 751 F. Supp. 45, 49 (S.D.N.Y. 1990) ("The policy reasons favoring liberal construction of pro se pleadings warrant the Court's consideration of the allegations contained in plaintiffs' memorandum of law, at least where those allegations are consistent with the allegations in the complaint.")
A careful inspection of the Complaint, however, shows that plaintiff did complain of a hostile work environment. Plaintiff says that she was subjected to conduct that created "an abusive work environment . . . . perceived by the victim as hostile . . . ." Fischer Mem. at 1. The documents attached as exhibits to the Complaint "[a]re properly considered on this motion." Dangler, 193 F.3d at 138.
Defendant also contends that plaintiff's claim of hostile work environment must be dismissed for failure to exhaust administrative remedies. See Reply Memorandum In Support of Defendant's Motion for Judgment on Pleadings ("Reply Mem.") at 3. Although plaintiff did not specify the legal theory under which she was proceeding, she checked the box labeled "sex" in her EEOC complaint, and specifically complained that she had been "[s]exually harassed . . ." EEOC Complaint, Ex. U to Complaint, at 3-4. This was sufficient to place defendant on notice that plaintiff was raising a hostile work environment claim.
Defendant was also in possession of a memorandum in which plaintiff stated that she perceived a hostile work environment. See Fischer Mem. at 1.
There are two forms of sexual harassment that violate Title VII's prohibitions against workplace inequality: i) quid pro quo and ii) hostile work environment harassment. See Mentor Sav. Bank v. Vinson, 477 U.S. 57, 64-65, (1986); Kotcher v. Rosa and Sullivan Appliance Center, Inc., 957 F.2d 59, 62 (2d Cir. 1992); Distasio v. Perkins Elmer Corp., 157 F.3d 53, 62 (2d Cir. 1998) ("A plaintiff seeking relief against an employer for sexual harassment in the work place can proceed under two theories: quid pro quo harassment and a hostile work environment.").
These terms have lost some of their significance in the wake of the Supreme Court's decision in Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 751 (1998) ("The terms quid pro quo and hostile work environment are helpful, perhaps, in making a rough demarcation between cases in which threats are carried out and those where they are not or are absent altogether, but beyond this are of limited utility.") However, such terms remain useful for delineating the scope of Title VII discrimination.
The principle underlying the EEOC filing requirement is "'to give prompt notice to the employer,' thereby encouraging conciliation where possible." Tsai, 137 F. Supp.2d at 281 (quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398 (1982)). See also Levy v. U.S. General Accounting Office, No. 97 Civ. 4016, 1998 WL 193191, at *1 (S.D.N.Y. Apr. 22, 1998). However, the Supreme Court has recognized the need for flexibility as the "'remedial purpose of the [civil rights] legislation as a whole' would be defeated if aggrieved plaintiffs were absolutely barred from pursuing judicial remedies by reason of excusable failure to meet the time requirement." Smith v. Saab Cars USA, Inc., 28 F.3d 9, 11 (2d Cir. 1994) (quoting Zipes, 455 U.S. at 398). See also Williams v. Salvation Army, 108 F. Supp.2d 303, 308 n. 6 (S.D.N.Y. 2000); Timbol v. Commercial Bank of Kuwait, No. 99 Civ. 1891, 2000 WL 282886, at *3 (S.D.N.Y. Mar. 15, 2000). Furthermore, "technicalities are particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process." Tsai, 137 F. Supp.2d at 281 (quoting Love v. Pullman Co., 404 U.S. 522, 527, (1972)). See also Connell v. J.P. Morgan Inv. Mgmt., Inc., No. 93 Civ. 5940, 1994 WL 132148, at *3 (S.D.N.Y. Apr. 12, 1994).
Thus, plaintiff's claim of "sexual harassment" placed defendant on sufficient notice of her hostile work environment claim. Consequently, plaintiff has exhausted her administrative remedies and her claim of a hostile work environment is properly before this Court.
IV. CONCLUSION
For the reasons stated above, defendant's motion to dismiss the Complaint for failure to state a claim is denied. A conference is scheduled for July 16 at 4 P.M. The Clerk of the Court is directed to close this motion.
Isabel Ullah, proceeding pro se, brings this action against her employer pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e to 2000e-17. ("Title VII"), alleging sex, race, and national origin discrimination. Plaintiff also alleges that defendant retaliated against her after she filed both internal and Equal Employment Opportunity Commission ("EEOC") complaints. The defendant now moves to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(c). For the following reasons, the motion is denied.
Plaintiff also pleads disparate treatment and violation of her Eighth Amendment rights. See Second Amended Complaint ("Complaint") ¶ 1; id. at 11; 12/4/2000 Plaintiff's memorandum to the EEOC, Ex. V to Complaint at 5. However, as defendant's motion did not include these claims, they are not considered in this opinion.
NYDOCS is the only remaining party to this suit. George Montenegro and W. Connolly were never served and the remaining nine individuals were dismissed by this Court. See Order of October 30, 2001. The Sing Sing Correctional Facility is not a proper defendant and is also dismissed, as plaintiff's employer is NYDOCS and not the individual correctional facility. See Richardson v. N.Y.S. Dep't. of Corr. Servs., No. 97 Civ. 0818E(H), 1999 WL 66693, at *1 (W.D.N.Y. Jan. 29, 1999).