Opinion
96 Civ. 7102 (WK)
March 13, 2001
For Plaitiff: R. Bob Walters, Esq. Simms Walters, P.C. New York, New York 10012
For Defendant: Peter A. Walker, Esq. Tracy Missett, Esq. Seyfarth Shaw New York, New York 10020
MEMORANDUM ORDER
This is an employment discrimination case brought by plaintiff under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). The complaint alleges discrimination based on race and national origin and also claims a hostile work environment. The complaint was filed in 1996, after which this case remained dormant for a long time. Currently before us is defendant's motion to dismiss the complaint.
BACKGROUND
The following factual information is taken from the complaint: plaintiff Faye Frierson ("plaintiff"), who is African American, worked for defendant NASDAQ/AMEX Market Group (incorrectly named in the complaint as American Stock Exchange) ("defendant") as a Trading Analyst from on or about November 23, 1992 until some time after this action was filed in 1996. She was hired into the Equity Surveillance Department, later renamed the Market Investigations Department, as an Associate Analyst. Plaintiff claims that while working for defendant she was passed over for a promotion several times on account of her race. Plaintiff and Randy Richardson ("Richardson"), another employee of defendant, were the only two African Americans in this department. Plaintiff claims that promotions in this department were based on seniority, and that while other co-workers who started working after plaintiff were promoted, plaintiff and Richardson were not promoted. Plaintiff witnessed department supervisors affording help and training to white co-workers while failing to provide the same for Richardson and herself, and states that she was given undesirable work that had been rejected by her white co-workers. She also states that she overheard numerous racially insensitive remarks made by her supervisors.
Plaintiff complained to her supervisors, and then the Human Resources Department, about the unfair treatment, however nothing changed. In May 1995 plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC"). One month after she filed this EEOC claim, plaintiff was promoted. She stayed working for defendant in the promoted capacity for two more years before she left to pursue other employment.
DISCUSSION
Defendant brings this motion to dismiss on the following grounds:
(1) plaintiff failed to assert hostile work environment and national origin discrimination in her EEOC claim and therefore cannot raise these claims here;
(2) the hostile environment claim lacks specificity;
(3) the complaint lacks sufficient facts to sustain failure to promote claims based on discrimination; and
(4) claims based on conduct which occurred more than 300 days before filing the EEOC claim is time barred. While we believe that all of defendant's arguments have merit, since the complaint fails to allege a hostile work environment with specificity and does not state a prima facie case for failure to promote based on discrimination, it is dismissed on these grounds and we need not address defendant's other arguments.
I. Hostile Work Environment Was Not Alleged With Specificity.
In order to plead a legally sufficient claim for hostile work environment, plaintiff must allege comments which are sufficiently severe and pervasive as unreasonably to interfere with her job performance. Harris v. Forklift Sys. Inc. (1993) 510 U.S. 17, 21-23; Lopez v. S.B. Thomas, Inc. (2d Cir. 1987) 831 F.2d 1184, 1189.
All plaintiff states is that she overheard numerous racially insensitive remarks. She does not identify a single remark nor the person(s) who uttered any of them. Moreover, she does not allege that any remark interfered with her ability to perform her job. In Brown v. Coach Stores, Inc. (2d Cir. 1998) 163 F.3d 706, 713 the Court affirmed the dismissal of a nearly identical hostile environment claim because all the complaint there asserted was that "one Coach supervisor made, on occasion, racist remarks and one such comment was directed at [plaintiff]." For the reasons stated in Brown, the hostile environment claim is dismissed.
II. The Complaint Does Not State A Prima Facie Case For Discriminatory Failure To Promote.
In Brown the Court held that in order to make a prima facie case based on an alleged discriminatory failure to promote, a plaintiff must allege that he or she applied for a specific position or positions and was rejected from that position, as opposed to merely asserting that he or she did not get promoted. 163 F.3d at 710 (interpreting McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 and Texas Dep't of Community Affairs v. Burdine (1981) 450 U.S. 248, 253 n. 6). However, Brown recognizes that pleading requirements in discrimination cases should be lenient and therefore this general rule "is subject to modification where the facts of a particular case make an allegation of a specific application a quixotic requirement." Id.
Plaintiff, while not citing any law, in effect makes the argument that this case should fall under the exception to the general rule in Brown. Plaintiff claims that specific application was not the mode defendant used in promoting its employees, but rather defendant automatically promoted employees based on their time on the job and "proficiency (cycles)," whatever the latter means. Not only does this not seem to be the modification to the general rule referred to in Brown, which requires a history of systematic discrimination by the defendant employer for this exception to be applicable, but defendant's promotion procedures and how they were not afforded to plaintiff are not plead with any particularity in the complaint. All the complaint states relevant to this point is that plaintiff was continuously passed over for promotion. (Complaint at ¶ 10). The complaint fails to make a prima facie case for failure to be promoted based on discrimination. Since plaintiff's race and national origin discrimination claims are based on her failure to be promoted, these claims are dismissed.
CONCLUSION
For the foregoing reasons, defendant's motion to dismiss is granted and the complaint is dismissed in its entirety.
SO ORDERED.