Opinion
00 Civ. 4677 (HB).
January 4, 2001.
OPINION ORDER
Plaintiff Andrew Alexander brings this action against defendants The Turner Corporation, Turner Construction Company, Turner Development Corporation, Rickenbacker Holdings, Inc., Rickenbacker Development Inc., Ellis T. Gravette, Jr., Thomas C. Leppert, Robert E. Fee, Donald G. Sleeman, and R. Buce Ruthven ("Turner") for race, color and national origin discrimination pursuant to 42 U.S.C. § 1981, 42 U.S.C. § 2000e (Title VII), the New York City Human Rights Law, New York City Administrative Code § 8-101, the common law of the State of New York, and the Consolidated Omnibus Budget Reconciliation Act of 1985, 29 U.S.C. § 1161 ("COBRA"). Defendants have brought two motions, a motion to dismiss plaintiffs complaint pursuant to FRCP 12(b)(1) and (b)(6) for lack of jurisdiction over the subject matter and failure to state a claim upon which relief can be granted and a motion for sanctions pursuant to FRCP 11. Plaintiff has also brought a motion to amend his complaint. For the following reasons, defendants' motion to dismiss is DENIED in part, defendant's motion for sanctions is DENIED, and plaintiffs motion to amend his complaint is GRANTED.
I. BACKGROUND
Plaintiff, an African-American male, alleges that the defendants discriminated against him over the course of his ten year employment and finally terminated him because of his race. It appears from the pleadings that defendant Turner Corporation is the parent corporation of the other corporate defendants and that plaintiff held a variety of related posts in these different entities, including Treasurer of defendant The Turner Corporation, Treasurer of defendant Turner Construction Company, Vice-President, Treasurer and Controller of defendant Turner Development Corporation, Vice-President, Treasurer and Controller of defendant Rickenbacker Holdings, Inc., and Vice-President and Treasurer of defendant Rickenbacker Development, Inc. Plaintiffs duties included having custody of all the funds and securities of The Turner Corporation and making investment and other financial-related decisions.
Plaintiff contends that defendants discriminated against him during the tenure of his employment in several ways, including not giving him a job title or a salary commensurate with his responsibilities, not providing him with employee benefits equal to those given to white officers, and retaliating against him for opposing their unlawful discriminatory practices. Plaintiff further contends that he was unlawfully terminated and provided with a discriminatory severance package.
On December 6, 1999, plaintiff filed his first EEOC discrimination charge alleging race, color and national origin discrimination and retaliation. On February 8, 2000, after defendant terminated plaintiffs employment, plaintiff filed a second charge alleging unlawful termination and a discriminatory failure to provide him with certain benefits upon termination. The EEOC issued plaintiff Right to Sue Notices on March 29, 2000, and plaintiff initiated this action in June 2000.
II. ARGUMENT
A. Defendants' Motion to Dismiss
1. Standard of Review
A federal court's task in determining the sufficiency of a complaint on a motion to dismiss is "necessarily a limited one." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683 (1974). In a motion to dismiss, the court is required to accept as true all of the fact alleged in the complaint and draw all reasonable inferences in the plaintiffs favor. See Madonna v. United States, 878 F.2d 62, 65 (2d. Cir. 1989). A motion to dismiss should be granted 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, 78 S.Ct. 99 (1957).
2. Plaintiff's Title VII Claims
Defendants argue that many of plaintiffs claims under Title VII are outside of the statute of limitation and are not reasonably related to plaintiffs EEOC charge, and that plaintiff lacks standing to bring this claim.
a. The 300 day Statute of Limitations
In New York, which has an agency (the determining factor with respect to the statute of limitations) with the authority to address charges of discriminatory employment practices, a plaintiff must file a Title VII claim with the EEOC within 300 days of the complained of act for the claim to be timely. See 42 U.S.C. § 2000e-5(e); see also Yaba v. Roosevelt, 961 F. Supp. 611, 618 (S.D.N.Y. 1997). Claims that are not filed within this time period are barred. Here, plaintiff filed his first charge with the EEOC on December 6, 1999 and his second charge on February 8, 2000. Therefore, based on the date plaintiff filed his first charge, any Title VII claims arising prior to February 10, 1999 would be barred.
Plaintiff argues however, that his claims prior to this date remain viable as "continuing violations", an exception to the statute of limitations. The continuing violations exception "extends the limitations period for all claims of discriminatory acts committed under an ongoing policy of discrimination even if those acts, standing alone, would have been barred by the statute of limitations." Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998); see also Harris v. City of New York, 186 F.3d 243, 248 (2d Cir. 1999).
Courts in this circuit recognize at least two situations in which the continuing violations exception applies: cases that involve "specific discriminatory policies or mechanisms such as discriminatory seniority lists . . . or discriminatory employment tests", and discrete incidents of discrimination that are specifically related and "are allowed to continue unremedied for so long as to amount to a discriminatory policy or practice." Lightfoot v. Union Carbide, 110 F.3d 898, 907 (2d Cir. 1997) (internal quotations omitted). "However, multiple incidents of discrimination, even similar ones, that are not the result of a discriminatory policy or mechanism do not amount to a continuing violation." Lambert v. Genesee Hospital, 10 F.3d 46, 53 (2d Cir. 1992).
Courts necessarily distinguish between the standard to be applied at the dismissal stage of an action as averse to the summary judgment stage of an action when discovery has generally been undertaken and completed. At the motion to dismiss stage, the plaintiff must merely allege the existence of a policy that connects all of the complained of incidents. See Lightfoot, 110 F.3d at 907 ("Although the mere allegation of the existence of such a policy would be sufficient to withstand a challenge for failure to state a claim, something more is required to avoid summary judgment on the issue."); Brennan v. City of White Plains, No. 97 CV 2709, 1998 WL 75692, *5 (S.D.N.Y. Feb. 20, 1998); Yaba v. Roosevelt, 961 F. Supp. 611, 619 (S.D.N.Y. 1997).
Here, plaintiffs allegations are numerous. They include failure to promote, failure to provide plaintiff with a job title that reflected his responsibilities, failure to pay a wage commensurate with the plaintiffs work, failure to provide benefits of employment afforded to white employees (including a bonus, country club membership and company car), retaliation in response to plaintiffs opposition to defendant's discrimination against women, offering plaintiff severance pay that was substantially less than that offered to white executive officers upon their termination, failing to offer plaintiff other benefits upon his termination, and violation of COBRA.
Reading the complaint in the light most favorable to the plaintiff as I must at this stage of the litigation, he has timely pled allegations that may, when fleshed out during discovery, constitute violations of certain civil rights statutes. They include: falling to name the defendant as a Vice President in September 1999 (Compl. ¶ 109), failure to give plaintiff a special monetary award in August, 1999 (Compl. ¶ 149), retaliating against plaintiff sometime after June, 1999 for opposing defendant's discrimination against two female employees (Compl. ¶ 113-116), failing to give plaintiff a raise from February 10, 1999 to January 31, 2000 commensurate with his responsibilities (Compl. 638-39), failure to give plaintiff stock options in 1999 (Compl. ¶ 79), failure to pay plaintiff an adequate wage and bonus in 1999 (Compl. 675,677), claims that an executive told him that he was disappointed in plaintiff for having fired a female employee in February 1999 (Compl. ¶ 103), plaintiffs unlawful termination in January, 2000 for his protesting against the defendants' acts of discrimination (Compl. ¶ 25), offering plaintiff a discriminatory severance package in June 1999 and offering plaintiff a discriminatory relocation contract in June 1999 (Compl. ¶ 113-139), failure to provide adequate notice of his COBRA benefits (Compl. ¶ 168-170), failure to provide outplacement services to plaintiff in April, 2000 (Compl. ¶ 171) and that defendant failed to allow plaintiff to keep certain company property after his termination as they had for other white employees.
Plaintiffs complaint states that he was not given a raise from 1997 to January 31, 2000.
The claims that appear to fall outside of the statute of limitations are even more numerous. They include: in 1994 members of the board of directors and executive officers made racist statements in a committee meeting, denial of plaintiffs requests for a raise from 1992 to the limitations period, assigning plaintiff an inadequate title of Manager — Special Projects from 1992-1994 (Compl. ¶ 33-36), from 1992 to 1997 assigning plaintiff duties that were not reflected in his compensation (Compl. ¶ 37), from 1997 to the limitations period assigning plaintiff duties not reflected in his compensation (Compl. ¶ 38), from 1993 to 1994 assigning additional duties to plaintiff not traditionally included in his position as Manager — Special Projects (Compl. ¶ 40-45), from 1994 to 1997 assigning additional duties to plaintiff not traditionally included in his position of Financial Manger (Compl. ¶ 46-51), from 1997 to 1998 assigning additional duties to plaintiff not traditionally included in his position of Assistant Treasurer (Compl. ¶ 52-56), in 1997 and 1998 paying plaintiff a salary that was not commensurate with his responsibilities and not paying plaintiff a bonus or stock options (Comp. ¶ 57-63), in 1997 and 1998 failing to grant plaintiff the title of Assistant Vice President and the corresponding benefits of such a position when that title was granted to a white subordinate officer (Compl. ¶ 64-67), in 1997 granting subordinate officer company cars when the plaintiff was not granted a car (Compl. ¶ 68-72), for the year ending December 31, 1998, paying plaintiff a low base salary and not giving plaintiff a bonus or stock options as other similarly situated officers (Compl. ¶ 76, 78, 80-81), during plaintiffs employment failing to grant him membership in a country club (Compl. ¶ 82-84), after May 1998, listing plaintiffs name as Treasurer last below the office of Controller in SEC reports (Compl. ¶ 86-87), in August 1998, offering plaintiff a contract that provided for plaintiffs rights if there was a change in control in the company that was not equal to that of other officers (Compl. ¶ 88-92), that defendants had a pattern and practice of modifying change of control agreements (which presumably insure against unfair treatment of employees due to company takeovers, etc.) made with white executive officers but that they refused to modify his agreement (Compl. ¶ 93-94), in September 1998 defendant assigned plaintiff additional duties but did not increase his compensation (Compl. ¶ 95-98), after September 1998 asking plaintiff to fire a female employee and when the plaintiff refused because he believed the decision was discriminatory, becoming upset with defendant (assuming this constituted a course of conduct but not a continuing violation, plaintiff fell in part within and in part without the statute of limitations, see Compl. ¶ 103) (Compl. ¶ 99-102), in 1997 and 1998 calculating plaintiffs bonus using a pool of subordinate officers who earned less money (Compl. ¶ 104-106).
Although the complaint does not explicitly state that the complained of acts that fall outside of the statute of limitations are a continuing violation of the ones within the limitations period, I decline to hold that a plaintiff loses his claim if he fails to employ this language. See Brennan v. City of White Plains, No. 97 CV 2709, 1998 WL 75692, *5 (S.D.N.Y. Feb. 20, 1998). Furthermore, plaintiff has alleged a seemingly widespread pattern and practice of discrimination that allegedly encompasses all of the defendants acts pled. In the context of a motion to dismiss, this allegation suffices. See Lightfoot, 110 F.3d at 907 (refusing to dismiss plaintiffs claims when he alleged "that the denial of a pay-grade increase, the alleged demotions, and his termination were part of an ongoing policy of `victimizing' older employees"); Yaba v. Cadwalader, 961 F. Supp. 611, 619 (S.D.N.Y. 1997) (refusing to dismiss plaintiffs claims that defendant paid her less and deprived her of promotions pursuant to a policy to discriminate against her because of her race). b. Plaintiffs Title VII Allegations Not Raised Before the EEOC
In the "Summary of Action" plaintiff stated that the action "arises from a wilful pattern of discrimination and retaliation against Plaintiff because of his race, color, and national origin. This pattern of discrimination and retaliation was created, nurtured and maintained . . . by Executive Officers of the corporate Defendants . . ." Compl. ¶ 3. And, in plaintiffs Fourth Claim for Discrimination in Violation of Title VII, plaintiff stated that "Defendants allowed such acts to go unremedied for so long that such acts amounted to a policy or practice of conducting the ordinary course of business." Compl. ¶ 188.
Defendants' similarly argue that many of plaintiffs claims under § 1981 and the New York City Human Rights Law are barred by their three year statute of limitations. However, I find that the continuing violations doctrine is applicable for these statutes as well. See Cruse v. G J Publ'g, 96 F. Supp.2d 320, 326 (S.D.N.Y. 2000) (§ 1981); Walsh v. Covenant House, 664 N.Y.S.2d 282, 283 (N.Y. A.D. 1997) (NYCHRL).
Defendant contends that at least 109 of plaintiffs Title VII allegations and 25 counts in his complaint exceed the scope of his discrimination charges to the EEOC and should be dismissed.
A district court has jurisdiction over a plaintiffs claims of discrimination if those claims are "included in an EEOC charge or are based on conduct subsequent to the EEOC charge which is `reasonably related' to that alleged in the EEOC charge. A claim is reasonably related to the allegations in an EEOC charge if: 1) the claim would fall within the scope of the EEOC investigation; 2) the claim is alleging retaliation by an employer against an employee for filing an EEOC charge; and 3) if the claim involves "further incidents of discrimination carried out in precisely the same manner as alleged in the EEOC charge." See Butts v. City of New York Dep't of Hous. Preservation and Development, 990 F.2d 1397, 1402-03 (2d Cir. 1993).
Construing the EEOC charges liberally, it appears that plaintiffs allegations in his complaint are reasonably related to those in his EEOC charge. Although the complaint contains considerably more detail as to the allegations, plaintiff apparently not being acquainted with notice pleading, the basic allegations are similar: compensation, job titles, severance benefits and termination. An investigation by the EEOC would have lead the agency to investigate the claims put forth in plaintiffs complaint. The law requires only that the EEOC allegations be reasonably related to those in the EEOC charge. That is the case here.
Defendants point out that the Second Circuit in Butts v. City of New York Dep't of Hous., 990 F.2d 1397, explained that the allowance for "loose pleadings" is designed to compensate for the fact that many employees complete the EEOC forms without the benefit of counsel and, here, plaintiff was represented by counsel from the get go. This is correct. However, although plaintiffs who completed their EEOC forms pro se are deserving of the most leniency in the assessment of their pleadings, the presence of counsel does not obviate the need for a somewhat broad reading of EEOC charges. The filing of the EEOC charges is likely made more hastily, at a preliminary stage of the action where the plaintiff may not have had the opportunity to compile the facts that later will be included in the complaint.
Finally, defendant alleges that plaintiff does not have standing to assert a pattern or practice of discrimination. Given the stage at which we find ourselves, this prong of the motion too is denied Furthermore, one plaintiff can have standing to assert a practice or pattern of discrimination. See Sidor v. Reno, No. 95 CV 9588, 1997 WL 582846, * 10 (S.D.N.Y. Sept. 19, 1997).
Defendant also argues that plaintiffs claims for discrimination on the basis of national origin should be dismissed as § 1981 prohibits discrimination only on the basis of race. Alexander v. Our Lady of Mercy Med Ctr., No 99 CV 1076, 2000 WL 254015, at *2 (S.D.N.Y. Mar. 7, 2000). However, in plaintiffs response, plaintiff states that in fact all he is alleging under § 1981 are claims on the basis of race.
2. Plaintiff's Claims Against Individual Defendants Gravett, Leppert and Fee
Plaintiff brings claims under the New York City Human Rights Law against the individual defendants Gravette, Leppert and Fee. Under the NYCHRL, a plaintiff can state a claim against individuals if the individual aided or abetted in a discriminatory act in violation of the statute. See Tomka v. Seller Corp., 66 F.3d 1295, 1316 (2d Cir. 1995). Defendants contend that plaintiffs claim should be dismissed because he has failed to allege that these individual defendants aided or abetted in any act in violation of the statue. However, I find that the complaint includes several allegations that the individual defendants took part in the discrimination and retaliation against plaintiff. Whether the plaintiff prevails after discovery is a different question and not relevant here.
3. Plaintiffs Fraud Claims
Defendants lastly argues that plaintiffs claims of fraud must be dismissed for failure to comply with FRCP 9(b). Specifically, defendant contends that plaintiff failed to comply with Rule (b)'s particularity requirement by not stating the time, place or content of the alleged fraudulent misrepresentation. I do not agree. Plaintiff does in fact provide dates and other specifics of his fraud allegations sufficient to meet the Rule.
B. Defendants' Motion for Rule 11 Sanctions
As defendants' motion for sanctions is based upon the same arguments as defendants' motion to dismiss, defendants' motion for sanctions is denied.
C. Plaintiffs Motion to Amend His Pleadings
Plaintiff moves to amend his complaint pursuant to FRCP 15(a) by adding four additional paragraphs. The substance of these paragraphs is as follows:
82. In or about late-1997 or early-1998, Defendant DONALD G. SLEEMAN advised Plaintiff that Executive Officers will be granted stipend checks.
83. White Executive Officers were granted stipend checks.
84. However, Plaintiff was never granted any stipend checks.
85. Plaintiff complained about the foregoing unlawful employment practices. Again, no action was taken.
Defendant argues, as above, that these allegations are outside of the scope of the applicable statutes of limitation and of the EEOC charge. For the reasons stated in the discussion on defendants' motion to dismiss the defendant's argument is unavailing and the plaintiffs motion is granted.
III. CONCLUSION
For the above reasons, defendants' motions to dismiss and for Rule 11 sanctions are DENIED. Plaintiffs motion to amend his complaint is GRANTED. The second amended complaint served with the plaintiffs motion papers is deemed sufficient service. The amended pre-trial scheduling order at present provides a discovery cut off of January 5, 2001 and a last day for fully briefed motions of January 19, 2001. That schedule remains in full force and effect.