Opinion
97-CV-0477E(Sc)
October 26, 2001
Pro Se, Lockport, NY.
Ann C. Williams, Esq., Asst. Attorney General for NYS, Buffalo, NY, Attorneys for Defendant.
MEMORANDUM and ORDER
In his Amended Complaint filed April 30, 1998, plaintiff joined United Church Home Society Inc. ("UCHS") as a defendant and raised four causes of action against it — viz., (1) discrimination in the terms and conditions of employment on the basis of his sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. ("Title VII"), (2) retaliation for having complained about being discriminated against on the basis of his sex in violation of Title VII, (3) conspiracy to deprive him of equal protection of the law and equal privileges and immunities because of his sex in violation of 42 U.S.C. § 1985 (3) and (4) discrimination on the basis of his sex in violation of New York's Human Rights Law, N.Y Exec. Law § 290 et seq. ("HRL"). UCHS moved for summary judgment November 15, 2000 seeking to dismiss all of the claims against it. Plaintiff opposes such motion and has made a request for discovery. However, the discovery sought by plaintiff is the same as that previously sought in his earlier motions to compel discovery, both of which were denied by this Court because the discovery sought by plaintiff does not exist. Accordingly this motion will be decided based upon the evidence in the record.
Plaintiff's request for discovery is not in the form of a Rule 56 (1) application and does not meet the requirements therefor.
Rule 56(c) of the Federal Rules of Civil Procedure ("FRCvP") states that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The party moving for summary judgment must demonstrate to the court the "lack of a genuine, triable issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). A fact is material if it "might affect the outcome of the suit under the governing law" and is genuine if it "is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986). The court must view the facts in the "light most favorable to the opposing party" — Adickes v. H.S. Kress Co., 398 U.S. 144, 157 (1970) — when ruling on a summary judgment motion; however, the opposing party may not rest upon conclusory statements in his pleadings but "must set forth specific facts showing that there is a genuine issue for trial." FRCvP 56(e). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment" and, if "the evidence is merely colorable *** or is not significantly probative ***, summary judgment may be granted." Anderson, at 247-250. Summary judgment must be granted when a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. In such a situation, there can be no `genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, at 322-323. When a defendant moves for summary judgment against a pro se plaintiff, such plaintiff must be given "actual notice, provided in an accessible manner, of the consequences of the *** failure to comply with the requirements of Rule 56." Irby v. New York City Transit Authority, 262 F.3d 412, 414 (2d Cir. 2001). In its Memorandum of Law in Support of its Motion for Summary Judgment, UCHS advised plaintiff, inter alia:
"When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate may be entered against the adverse party." Id. at 12.
Emphasis in original.
This Court accordingly finds that plaintiff has been adequately apprised of the requirements of FRCvP 56.
Plaintiff, a registered nurse, worked as a nursing supervisor at a nursing home owned by United Church Colony Homes, Inc. ("UCCH") from January 8, 1993 until October 15, 1993 when he was terminated, according to UCCH, due to "lack of growth in the supervisory skill area." Perlman Nov. 7, 2000 Aff. Ex. 2 (State Court Complaint ¶¶ 6, 10-11); Cole Dep. at 11. Plaintiff alleges, however, that UCCH hated male nurses and had discriminated against him in the terms and conditions of his employment and subsequently terminated him because of his sex. Cole Dep. at 24-33. While somewhat unclear, it appears that UCCH had been a wholly-owned subsidiary of UCHS and that, on November 21, 1994 — pursuant to an order of the New York State Supreme Court for Niagara County dated October 26, 1994 — UCCH's nursing home at which plaintiff had previously been employed was sold, with the proceeds of such sale going to UCHS. Perlman Nov. 7, 2000 Aff. Ex. 2 (State Court Complaint ¶ 7-9). After he was discharged by UCCH, plaintiff had difficulty obtaining employment as a nurse, which he believes was due to a vast conspiracy initialed by UCCH and UCHS to prevent him from obtaining employment as a nurse by providing prospective employers with defamatory references because he is pro-choice and/or a male nurse. Cole Dep. at 24-33, 53-55. On February 3, 1995 plaintiff, through attorney Robert S. Roberson, Esq., filed an action against UCCH and UCHS in the New York State Supreme Court for Niagara County ("the state court action") alleging that UCCH and UCHS had been making false and disparaging references to prospective employers who had contacted them for an employment reference on plaintiff, thereby hindering his ability to obtain employment. Perlman Nov. 7, 2000 Aff. Ex. 2 (State Court Complaint ¶ 16-17, 20-25). UCCH and UCHS moved for summary judgment in the state court action September 20, 1996 seeking to dismiss that complaint in its entirety on the basis that, inter alia, there was "no allegation that UCHS [ sic] took any action with respect to plaintiff, and liability may not be predicated on the mere fact that UCHS is the parent of UCCH" Perlman Nov. 7, 2000 Aff. Ex. 4 (Mot. for Summ. J. in State Court Action, Perlman Sept. 20, 1996 Aff. ¶ 21) (emphasis in original). On January 22, 1997, Justice Koshian of the New York State Supreme Court for Niagara County granted UCCH and UCHS's motion for summary judgment "in all respects". Perlman Nov. 7, 2000 Aff. Ex. 3 (Koshian Jan. 22, 1997 Order). Plaintiff did not appeal the state court decision but instead commenced this action June 6, 1997.
UCCH was also named as a defendant in the Amended Complaint, but was previously dismissed from this case pursuant to this Court's Memorandum and Order dated November 12, 1999.
Plaintiff subsequently obtained employment as a nurse at the New York State Department of Correctional Services at its Orleans and Albion facilities from July 24, 1994 to January 18, 1996. Cole Dep. at 86. Plaintiff has also sued the State of New York and the New York State Department of Correctional Services. These defendants have also moved for summary judgment.
Plaintiff states that while this conspiracy was initiated by UCCH and UCHS, that it has subsequently grown to include all of the defendants named in this case, as well as Judge Koshian, to whom the state court action had been assigned and who dismissed such action, Operation Rescue, the Faith Tabernacle Church, the National Organization of Women, the Nation of Islam, the Council of Churches and possibly the Mormons. Cole Dep. at 48-49, 148, 152.
Plaintiff's first and second causes of action allege that UCHS discriminated against him in the terms and conditions of his employment on the basis of his sex and then retaliated against him for complaining about such by giving defamatory references to prospective employers to prevent him from obtaining employment elsewhere as a nurse, both in violation of Title VII. UCHS seeks to dismiss these claims on the basis that plaintiff never filed a charge against it with the Equal Employment Opportunity Commission ("EEOC"). Plaintiff opposes such on the basis that, although he never filed an EEOC charge against UCHS, he believes that the Attorney General of the State of New York conducted an investigation and filed an EEOC charge on his behalf against UCHS.
The results of the "investigation" conducted by the New York State Attorney General into discrimination by UCHS against plaintiff are sought by plaintiff as part of his requests for discovery.
The New York State Attorney General never filed an EEOC charge against UCHS or UCCH on behalf of plaintiff. Hunt Dec. 8, 2000 Aff. ¶¶ 2-3.
A plaintiff may not bring a Title VII claim in federal court unless he has filed a timely charge of discrimination with the EEOC on the same basis as the asserted claim and has received a right-to-sue letter against the intended Title VII defendant. 42 U.S.C. § 2000e.-5(e); Holtz v. Rockefeller, 258 F.3d 62, 82-83 (2d Cir. 2001); Shah v. New York State Department of Civil Service, 168 F.3d 610, 613 (2d Cir. 1999); Butts v. City of New York Dept. of Housing, 990 F.2d 1397, 1401 (2d Cir. 1993). Plaintiff never filed an EEOC charge against UCHS — or against UCCH — and consequently never received a right-to-sue letter against either; accordingly his Title VII claims must be dismissed.
Plaintiff's third cause of action is for violation of 42 U.S.C. § 1985 (3). Plaintiff alleges that UCHS conspired with the other defendants to prevent him from obtaining employment in the field of nursing because he is a man, by giving defamatory references to his prospective employers. UCHS seeks summary judgment dismissing this claim on the bases that section 1985(3) may not be used to avoid the administrative requirements of Title VII and that plaintiff has presented no evidence of a conspiracy. Plaintiff opposes such on the bases that he is alleging constitutional, not Title VII violations, and that defendants have refused to produce the discovery which would prove the existence of the conspiracy.
"[I]n any case of conspiracy set forth in this section, 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 four elements of a § 1985(3) claim are: (1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of equal protections of the laws, or of equal privileges and immunities under the laws; (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right of a citizen of the United States."
Mian v. Donaldson, Lujkin Jenrette Securities, 7 F.3d 1085, 1087 (2d Cir. 1993).
"Section 1985(3) provides no substantive rights itself; "it merely provides a remedy for violation of the rights it designates" — Great American Fed. S. L. Assn v. Novotny, 442 U.S. 366, 372 (1979) —; accordingly, the "rights, privileges, and immunities, that § 1985(3) vindicates must be found elsewhere ***." Carpenters v. Scott, 463 U.S. 825, 833 (1983). Under Title VII, an employee may bring a claim against his former employer. Carr v. Health Insurance Plan of Greater New York, Inc., No. 99 Civ. 3706 (NRB), 2001 WL 563722, at *2 (S.D.N.Y. May 24, 2001). "Such claims typically arise in the context of unfairly negative references given for former employees in retaliation for the employee's having complained of discrimination." Ibid. "[I]n many contexts a former employee may have a valid claim of retaliation for `blacklisting'-type activity, and *** retaliation claims arising post-employment thus play an important role in protecting those who seek to vindicate their legal rights." Id. at *3. "Under Title VII, cases of alleged employment discrimination are subject to a detailed administrative and judicial process designed to provide an opportunity for nonjudicial and nonadversary resolution of claims." Novotny, at 372-373. "If a violation of Title VII could be asserted through § 1985(3), a complainant could avoid most if not all of these detailed and specific provisions of the law." Id. at 375-376. Section "1985(3) may not be invoked to redress violations of Title VII" — i.e., "deprivation of a right created by Title VII cannot be the basis for a cause action under § 1985(3)." Id. at 378. Accordingly, because the right of which plaintiff claims UCHS conspired to deprive him is not a constitutional right but rather was created by Title VII, he may not avoid the administrative requirements of Title VII by pleading such as a section 1985(3) claim.
While not relied on by UCHS, this Court notes that plaintiff's section 1985(3) claim would also have to be dismissed because discrimination against male nurses is not covered by such statute. "The language [of section 1985(3)] requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Griffin v. Breckenridge, 403 U.S. 88, 102 (1971). While the Court in Griffin declined to decide whether anything other than racial bias would suffice, it later held that the term "otherwise class-based, invidiously discriminatory animus"
"unquestionably connotes something more than a group of individuals who share a desire to engage in conduct that the § 1985(3) defendant disfavors. Otherwise, innumerable tort plaintiffs would be able to assert causes of action under § 1985(3) by simply defining the aggrieved class as those seeking to engage in the activity the defendant has interfered with." Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 269 (1993) (holding that section 1985(3) does not cover "women seeking abortion" and declining to decide whether it covers women in general). See also Carpenters, at 836 ("it is a close question whether § 1985(3) was intended to reach any class-based animus other than animus against Negroes and those who championed their cause, most notably Republicans").
The Second Circuit Court of Appeals has held that only conspiracies motivated by racial discrimination are covered under section 1985(3). Brown v. City of Onconta, New York, 221 F.3d 329, 341 (2d Cir. 2000), cert. denied, No. 00-1728, 2001 WL 537517 (Oct. 1, 2001) ("conspiracy must be motivated by racial animus"); Mian, at 1088 ("an essential element [of a section 1985(3)] cause of action is a requirement that the alleged discrimination took place because of the individual's race"). Accordingly, plaintiff's section 1985(3) claim must be dismissed because such cannot be used to avoid the administrative requirements of Title VII and because it does not cover a conspiracy motivated by a discriminatory animus against men in the nursing profession.
As his fourth and final cause of action, plaintiff alleges that UCHS discriminated against him on the basis of his sex in violation of the HRL. Plaintiff's employment at UCCH ended October 15, 1993 and he filed his Amended Complaint joining UCCH and UCHS as defendants April 30, 1998. UCHS seeks summary judgment dismissing this claim on the basis that the statutory period of limitations had expired. It appears that plaintiff opposes UCHS's motion for summary judgment on this claim on the basis that his HRL claims should relate back to the date the state court action was filed for purposes of the statute of limitations.
It appears that plaintiff may believe that the New York Attorney General instituted a lawsuit against UCHS on his behalf and that his HRL claims should relate back to the date of such action for purposes of the statute of limitation; however, there is no evidence that such occurred.
Pursuant to section 297 of the HRL a plaintiff may either file an administrative claim with New York's State Division of Human Rights within one year of the occurrence of the allegedly discriminatory conduct or forego the administrative procedure and file a complaint in a court of competent jurisdiction with three years of the alleged discrimination. Oliver v. New York Telephone Company, No. 91-CV-1795, 1993 WL 173471, at *2 (W.D.N.Y Mar. 31, 1993). See also Murphy v. American Home Products Corp., 58 N.Y.2d 293, 306-307 (1983). Plaintiff chose to forego the filing of an administrative claim with the Division of Human Rights and to initiate a lawsuit instead; accordingly the applicable statutory period of limitations is three years. Plaintiff was terminated by UCCH October 15, 1993 and he did not commence this action against UCHS until April 30, 1998 — i.e., over four years after his employment was terminated —; therefore his HRL cause of action is time barred. Plaintiff's argument regarding relation back pursuant to FRCvP 15(c) is meritless and, accordingly, plaintiff's HRL claim will be dismissed.
UCHS also seeks summary judgment dismissing all of plaintiff's claims to the extent that they arose prior to January 22, 1997 on the basis that they are barred by the doctrine of res judicata as a result of plaintiff's earlier state court action, as well as his Title VII and HRL claims because Justice Koshian held that UCHS bore no liability to plaintiff for the actions of UCCH and because plaintiff does not allege that UCHS ever was his employer. Plaintiff opposes such on the basis that res judicata is inapplicable because he did not raise the present claims in the state court action, he did not then know the extent of the conspiracy and he believes that summary judgment is not an adjudication on the merits.
"The doctrine of res judicata, or claim preclusion, holds that a final judgment on the merits of an action precludes the parties or their privies from relitigating issues which that were or could have been raised in that action. Whether or not the first judgment will have preclusive effect depends in part on whether the same transaction or series of transactions is at issue, whether the same evidence is needed to support both claims, and whether the facts essential to the second were present in the first. To prove the affirmative defense a party must show that (1) the previous action involved an adjudication on the merits; (2) the previous action involved the plaintiffs or those in privity with them; (3) the claims asserted in the subsequent action were, or could have been raised in the prior action." Monahan v. New York City Department of Corrections, 214 F.3d 275, 284-285 (2d Cir.), cert. denied, 531 U.S. 1035 (2000). See also St. Pierre v. Dyer, 208 F.3d 394, 399-400 (2d Cir. 2000); Woods v. Dunlop Tire Corporation, 972 F.2d 36, 38-39 (2d Cir. 1992), cert. denied, 506 U.S. 1053 (1993).
Internal citations and quotation marks omitted.
" [R]es judicata bars a plaintiff from raising different legal theories in successive lawsuits arising from the same transaction or occurrence. Thus, whatever legal theory is advanced, when successive lawsuits are based upon the substantially the same factual predicate, the suits are duplicative for purposes of res judicata." Woods v. Dunlop Tire Corporation, No. CIV-91-98E, 1992 WL 10845, at *2 (W.D.N.Y Jan. 21, 1992), aff'd, 972 F.2d 36 (2d Cir. 1992). The dismissal of an action pursuant to a motion for summary judgment is a judgment on the merits for purposes of res judicata. Strange v. Montefore, 59 N.Y.2d 737, 739 (1983); see also Woods, 1992 WL 10845, at *2.
Internal citations omitted.
The dismissal of plaintiff's state court action was a final judgment on the merits and the factual basis of the claims in this action could have been raised against UCHS in the state court action; accordingly, all of plaintiff's claims, to the extent that they arose prior to January 22, 1997 as well as his Title VII and HRL claims against UCHS will be dismissed based as res judicata.
This Court also notes that, in its November 12, 1999 Memorandum and Order, issued in response to this Court's July 15, 1999 order to show cause for failure to prosecute, it had therein stated that "plaintiff's failure to establish the identities for the John Doe and Jane Doe named in the caption of the Amended Complaint's will be forgiven for the time being on the assumption that such failure may be remedied by the resolution of the plaintiff's motion *** to compel discovery." In an Order dated March 6, 2001 this Court denied a subsequent motion to compel discovery filed by plaintiff, noting that the discovery sought by plaintiff did not exist. Fictitious defendants John Doe and Jane Doe have been named in the case for over four years without having been identified; accordingly they will be dismissed for failure to prosecute.
This Court notes that it never granted plaintiff permission to join John Doe and Jane Doe as defendants in his Amended Complaint.
Such dismissal, just as one in response to a motion for summary judgment, is on the merits. FRCvP 41(b).
Accordingly, it is hereby ORDERED that UCHS's motion for summary judgment is granted, that defendants UCHS, John Doe and Jane Doe are dismissed from this case, and that the caption shall be changed to
"PAUL M. COLE, Plaintiff, -vs- NEW YORK STATE DEPT. OF CORRECTIONAL SERVICES, THE STATE OF NEW YORK and UNITED CHURCH OF CHRIST AND ASSOCIATES, Defendants."