Harrison v. New York City Admin. for Children's Services

Full title: PAMELA M. HARRISON, Plaintiff, v. NEW YORK CITY ADMINISTRATION FOR…

Court: United States District Court, S.D. New York

Date published: Jul 7, 2003

02 Civ. 0947 (RCC) (RLE) (S.D.N.Y. Jul. 7, 2003)

Opinion

02 Civ. 0947 (RCC) (RLE).

July 7, 2003

Pamela M. Harrison, Attorney for Plaintiff, Pro se.

Michael A. Cardozo, Corporation Counsel of the City of New York, New York, Attorney for Defendants.

REPORT AND RECOMMENDATION

RONALD ELLIS, Magistrate Judge

I. INTRODUCTION

Pro se plaintiff Pamela M. Harrison ("Harrison") brings this employment discrimination action against defendants New York City Administration for Children's Services ("ACS"), Frank Olton ("Olton"), John Pape ("Pape"), and Anthony Defazio ("Defazio") (collectively "defendants"), pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"). Harrison alleges that defendants failed to approve a transfer request to ACS's Bronx office starting in April 1999, and approximately every six months thereafter, on the basis of her race, color, and gender. She also alleges continuous harassment and retaliation from April 1999. Defendants filed a motion to dismiss the complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6), on the grounds that it is time-barred, and otherwise fails to state a claim upon which relief can be granted. Specifically, ACS asserts that Harrison has not pled facts sufficient to demonstrate an "adverse employment action" as established under the framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). ACS also argues that under Swierkiewicz v. Sorema, 534 U.S. 506, 508 (2002), Harrison's harassment claim should be dismissed as insufficiently stated. Additionally, ACS argues that Harrison cannot maintain a cause of action under Title VII against defendants in their individual capacities. For the reasons set forth below, I recommend that defendants' motion to dismiss the complaint be GRANTED IN PART, as to Harrison's retaliation claim, any claims which she alleges took place before September 24, 1999, and her claims against both the ACS and the individual defendants, DENIED IN PART, as to defendant's timeliness argument, and Harrison's refusal to transfer and harassment claims.

II. BACKGROUND

Harrison is an African American woman with three children. See Complaint ("Compl.") at 4. Harrison claims that she was continually denied a transfer from ACS's central office in Manhattan to its Bronx office. Id. In her complaint, Harrison alleges that "I believe that other Caucasian and non African American women were granted the opportunity to transfer to locations closer to their homes." Id. at 4. In addition, Harrison alleges that beginning in April 1999, she was continually harassed because of her race, gender and color. See Amended Complaint ("Am. Compl.") at 3-4.

Harrison filed a charge with the Equal Employment Opportunity Commission ("EEOC") on July 19, 2000. Id. The EEOC issued a Right-to-Sue letter on May 3, 2001. See Declaration of Assistant Corporation Counsel Abigail Goldenberg in Support of Defendant's Motion to Dismiss ("Goldenberg Decl.") at Exh. D. On November 11, 2001, the EEOC issued a second Right-to-Sue letter to Harrison. Id. at Exh. D. Harrison claims she received the second letter on November 15, 2001. See Am. Compl. at 5. She further notes that defendants have not provided proof that the original letter was sent to her at the proper address. See Id. ; Plaintiff's Response ("Pl. Opp.") at 1. On March 12, 2002, the EEOC sent Harrison a letter advising her that the November 11 letter was sent in error, and therefore was rescinded. See Goldenberg Decl. at Exh. F. The EEOC noted that the May 3 letter was still operative. Id. Harrison was subsequently fired by defendants on February 11, 2002. See Am. Compl. at 4.

Harrison filed this instant action on February 6, 2002. The matter was referred to the undersigned by the Honorable Richard Conway Casey on May 3, 2002. Pursuant to an Order by this Court, Harrison filed an amended complaint on September 9, 2002. On November 1, 2002, ACS moved to dismiss the complaint.

III. DISCUSSION

A. Standard for Motion to Dismiss — Title VII

In deciding a motion to dismiss, the Court "must accept as true all the factual allegations in the complaint," Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164 (1993) (citation omitted), and draw all reasonable inferences in favor of the plaintiff. See Albright v. Oliver, 510 U.S. 266, 268 (1994); Weinstein v. Albright, 261 F.3d 127, 131 (2d Cir. 2001). At this stage, the Court's responsibility is not to test the weight of the evidence, but rather to look at the "'legal feasibility of the complaint[.]'" Cooper v. Parksy, 140 F.3d 433, 440 (2d Cir. 1998) ( quoting Ryder Energy Distribution Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 779 (2d Cir. 1984)).

Prior to Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), a plaintiff in this Circuit alleging employment discrimination under Title VII was required to plead evidence of a prima facie case under McDonnell Douglas, 411 U.S. at 802; Tarshis v. Reise Org., 211 F.3d 30, 35-36 (2d Cir. 2000), abrogated by Swierkiewicz. Although the burden was minimal, a motion to dismiss was granted if the plaintiff made only "bald assertions[,]" id., and "bare allegations" without factual support. Gregory v. Daly, 243 F.3d 687, 692 (2d Cir. 2001). In Swierkiewicz, the Supreme Court held that the requirement to plead a prima facie case was inappropriate, and that a plaintiff need only provide information which "'give[s] the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" 534 U.S. at 508 ( quoting Conley v. Gibson, 335 U.S. 41, 47 (1957)); see also Aguilar v. New York Convention Ctr. Operating Corp., 2002 WL 844397 *2 (S.D.N.Y. 2002). The complaint should contain "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a).

Furthermore, where a plaintiff is pro se and is alleging civil rights violations, the Court should proceed with caution and review claims liberally. Weinstein, 261 F.2d at 132; see also Shah v. New York State Dep't of Civil Serv., 168 F.3d 610, 614 (2d Cir. 1999). The Court should apply "less stringent standards than formal pleadings drafted by lawyers," Haines v. Kerner, 404 U.S. 519, 520 (1972), and look beyond the "four corners of the complaint" to all the pleadings before the Court, including the plaintiff's opposition papers. Pagan v. New York State Div. of Parole, 2002 WL 398682 *3 (S.D.N.Y. 2002); Amaker v. Haponik, 2000 WL 343772 *1 (S.D.N.Y. 2000); see also Burgess v. Goord, 1999 WL 33458 *1 n. 1 (S.D.N.Y. 1999).

B. Timeliness

"In order to be timely, a claim under Title VII . . . must be filed within 90 days of the claimant's receipt of a right-to-sue letter." Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 525 (2d Cir. 1996) ( citing 42 U.S.C. § 2000e-5(f)(1); see also Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 149-50 (1984) ( per curiam); Cornwell v. Robinson, 23 F.3d 694, 706 (2d Cir. 1994)). "This ninety-day period begins to run on the date the claimant actually receives the right-to-sue notice." Lin v. New York City Admin. for Children's Servs., 2001 WL 964016 *3 (S.D.N.Y. 2001) ( citing Abidekun v. New York City Transit Auth., 1998 WL 296372 *3 (E.D.N.Y. 1998)). In this circuit, "there is a rebuttable presumption that a mailed document is received three days after its mailing." Ruiz v. New York City Fire Dep't, 2001 WL 767009 *2 (S.D.N.Y. 2001) (citation omitted). Furthermore, in the absence of a direct challenge, there is a presumption "that a notice provided by a government agency has been mailed on the date shown on the notice." Sherlock v. Montefiore Medical Center, 84 F.3d 522, 526 (2d Cir. 1996) ( citing Baldwin County Welcome Center v. Brown, 466 U.S. 147, 148 n. (1984)).

In the case before the Court, the initial letter from the EEOC was dated May 3, 2002. See Goldenberg Decl. at Exh. D. Based on representations made by Harrison in both the Complaint and her opposition papers, it appears that she never received the May 3 letter. Defendants argue that Sherlock and its progeny compel the Court to dismiss Harrison's complaint based on timeliness. See Memorandum of Law in Support of Defendants' Motion to Dismiss ("Def. Mem.") at 7. However, as the court observed in Ruiz, "the complaint [in Sherlock ] apparently did not allege the date on which plaintiff received the right-to-sue letter." 2001 WL 767009 at *2. When, as here, the complaint alleges a late date of receipt, or non-receipt, for purposes of a 12(b)(6) motion, a court must accept the allegation as true, and deny defendant's motion to dismiss for timeliness. See Id. ; Chi Ho Lin v. New York City Administration for Children's Services, 2001 WL 964016 *4 (S.D.N.Y. 2001); Everson v. New York City Transit Authority, et al., 216 F. Supp.2d 71, 78 (E.D.N.Y. 2002). Accordingly, to the extent that defendants' motion to dismiss is based on timeliness, the motion should be DENIED.

C. Harrison's Title VI Claims

1. Refusal to Transfer

Harrison's original Title VII claim centered on the fact that defendants denied her repeated requests for transfer to a new location. See Compl. at 4-5. She alleges that "other Caucasian and non African-American women were granted the opportunity to transfer to locations closer to their homes." Id. Her Title VII claim, therefore, centered on the refusal to transfer on the alleged basis of racial and gender discrimination.

To make out a prima facie Title VII discrimination claim, a plaintiff must pass the burden-shifting test laid out by the Supreme Court in McDonnell Douglas. "The McDonnell Douglas formulation requires the plaintiff to demonstrate that she (1) was a member of a protected class, (2) was qualified for the job in question, (3) suffered an adverse employment action, and that (4) others similarly situated were more favorably treated." Dawson v. Bumble Bumble, 246 F. Supp.2d 301, 312 (S.D.N.Y. 2003) ( citing McDonnell Douglas, 411 U.S. at 803). Defendants argue that Harrison's claim does not arise to an adverse employment action, and thus fails the McDonnell Douglas test.

As the Second Circuit has noted, "[a] plaintiff sustains an adverse employment action if he or she endures a 'materially adverse change' in the terms and conditions of employment." Galabya v. New York City Board of Education, 202 F.3d 636, 640 (2d Cir. 2000) (citations omitted). Further, "[t]o be 'materially adverse' a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities." Id. (citation omitted). Although not an exclusive list, the Second Circuit has stated, "[a] materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices unique to a particular situation." Id. (citations omitted). However, "[a]n adverse employment action need not translate into financial consequences." Dawson, 246 F. Supp.2d at 322.

Defendants argue that courts within this circuit have noted that a transfer will be considered an adverse employment action only if it equates to a setback in the plaintiff's career. See, e.g., Weeks v. New York State Division of Parole, 273 F.3d 76, 86 (2d Cir. 2001), abrogated on other grounds by National R.R. Passenger Corporation v. Morgan, 536 U.S. 101 (2002); Galabya, 202 F.3d at 641; Rodriguez v. Board of Education, 620 F.2d 363, 366 (2d Cir. 1980). However, these cases are distinguishable from the case before this Court because none of the cases cited by defendants deal with a situation where the transfer has a negative impact on the plaintiff's ability to perform the job. In this case, however, Harrison's ability to perform her job satisfactorily goes directly toward her transfer request.

Moreover, Harrison alleges that other "caucasian and non African-American" employees were transferred upon request. This factual allegation has not been explored. "It is important to recognize the difference between disposing of a case on a 12(b)(6) motion and resolving the case later in the proceedings . . . by summary judgment." Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998). During the course of discovery, Harrison will have the opportunity to gather proof that the defendants had a transfer policy which was applied in a discriminatory manner. See Boyd v. Nationwide Mutual Insurance Company, 208 F.3d 406, 410-11 (S.D.N.Y. 2000) (citation omitted) ("[I]t cannot be said in advance of discovery that plaintiff will not be able to raise an issue of fact."). If transfer were regularly granted to Caucasian employees, but denied to African American employees, such a practice would constitute discrimination. Therefore, defendants motion to dismiss Harrison's refusal to transfer claim should be DENIED.

2. Harassment and Retaliation

Harrison alleges harassment, dating back to April 1999, and retaliation, both for a denial of a promotion and her subsequent termination. Defendants allege that Harrison's harassment claim is deficient in facts, and fails to state a cause of action. See Def. Mem. at 10. However, pursuant to Federal Rule of Civil Procedure 8(a), the courts only requires notice pleading. Further, as the Supreme Court held in Swierkiewicz, the complaint need only "give the defendant fair notice of what the plaintiff s claim is and the grounds upon which it rests." 534 U.S. at 508. As defendants properly point out, the complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Johnson v. Baruch College, 2002 U.S.Dist. LEXIS 16605 *11 (S.D.N.Y. September 3, 2002) (citation omitted). Harrison's complaint alleges both the charge and the time the harassment began. "The 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, 534 U.S. at 512. Therefore, defendants motion to dismiss Harrison's harassment claim should be DENIED.

Harrison's retaliation claim, however, should be dismissed. A prima facie case for retaliation must demonstrate that plaintiff engaged in a protected activity, that the employer was aware that plaintiff did so, that the employer took an adverse action against the plaintiff, and that a causal connection existed between the protected activity and the adverse action taken by the employer. See Cosgrove v. Sears, Roebuck Co., 9 F.3d 1033, 1039 (2d Cir. 1993). Harrison alleges that her firing was retaliatory, but she does not allege which protected activity (the filing of the EEOC and New York City Commission on Human Rights ("NYCCHR") charges or the filing of the present complaint) caused the retaliation. To the extent Harrison is alleging that the firing was retaliation for filing charges with the EEOC and NYCCHR, this fails to meet the causality requirement necessary for a retaliation cause of action. In Clark County School District v. Breeden, the Supreme Court noted that the temporal proximity between the protected activity and the adverse action taken by the employer must be "very close." 532, U.S. 268, 273 (2001). Harrison was fired nineteen months after filing charges with the appropriate administrative agencies, and this simply cannot meet the causality standard. Id. (noting, "[a]ction taken (as here) 20 months later suggests, by itself, no causality at all."). Further, Harrison cannot allege that the firing was taken as a result of filing the current complaint because the affidavit of service notes that defendants were not served until February 14, three days after Harrison was fired. Therefore, defendants motion to dismiss Harrison's retaliation cause of action should be GRANTED.

3. Claims Arising from Conduct Before September 24, 1999

Harrison filed a charge with the EEOC and NYCCHR on July 19, 2000. See Goldenberg Decl. at Exh. C. Title VII mandates that claims must be filed with the EEOC within 300 days of the alleged discriminatory acts if the state in which the discriminatory act occurred has an entity with the authority to grant or seek relief. See 42 U.S.C. § 2000e-5(e)(1). Therefore, "[a] claim is time barred if it is not filed within [this] time limit." National Railroad Corporation v. Morgan, 536 U.S. 101, 109 (2002). Defendants argue that any claim Harrison raises dating back before September 24, 1999, is time-barred. The Supreme Court has held that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. at 113. These discrete acts include retaliatory acts and failure to promote. Id. at 114. Therefore, Harrison's claims relating to retaliation and failure to promote, to the extent they occurred before September 24, 1999, are time-barred, and therefore should be dismissed. Defendants motion with respect to these claims should be GRANTED.

Harrison's claim of harassment, however, is not time barred. She states that she was harassed because of her race and gender, dating back to April 1999. See Amend. Compl. at 3. Her claim, viewed as a hostile work environment claim, may incorporate acts which occurred outside of the 300 day filing period, so long as they are related as one single act. The Supreme Court has noted, "[a] hostile work environment claim is comprised of a series of separate acts that collectively constitute one 'unlawful employment practice.'" Morgan, 536 U.S. at 117 ( citing 42 U.S.C. § 2000e-5(e)(1)). The Court went on to hold:

The timely filing provision only requires that a Title VII plaintiff file a charge within a certain number of days after the unlawful practice happened. It does not matter, for purposes of the statute, that some of the component acts of the hostile work environment fall outside the statutory time period. Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability.

Id. Therefore, any harassing conduct which supports a hostile work environment claim should be considered even if it occurred before September 24, 1999. Therefore, defendants motion to dismiss Harrison's harassment claim should be DENIED.

D. Claims against ACS and Individual Defendants

Defendants argue that Harrison's complaint should be dismissed against ACS because it is not a suable entity by law. See Def. Mem. at 14. The New York City Charter provides that "[a]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the City of New York and not in that of any agency, except where otherwise provided by law." N.Y. City Charter Ch. 16 § 396. Accordingly, ACS is not a properly named defendant, and Harrison's claims against ACS should be dismissed. Simpri v. New York City Agency for Children's Services, 2001 WL 1661910 at * 5 (S.D.N.Y. December 28, 2001). However, Harrison should be granted leave to amend her complaint to sue the proper party, namely the City of New York. Id.

Harrison's claims against Olton, Pape and Defazio in their individual capacities must also be dismissed. The Second Circuit has previously ruled that "individuals are not subject to liability under Title VII." Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000) ( citing Tomka v. Seiler Corporation, 66 F.3d 1295, 1313 (2d Cir. 1995)); see also Mandell v. County of Suffolk, 316 F.3d 368, 377 (2d Cir. 2003). Although individual liability can be asserted under New York's Human Rights Law, N.Y. Exec. Law § 296, Harrison has not added this supplemental claim to her amended complaint. See Mandell, 316 F.3d at 377 (citations omitted). Therefore, Harrison's claims against the individual defendants should be DISMISSED WITHOUT PREJUDICE.

IV. CONCLUSION

For the reasons stated herein, I respectfully recommend that defendants' motion to dismiss the complaint be GRANTED IN PART, as to Harrison's retaliation claim, any claims which she alleges took place before September 24, 1999, and her claims against both the ACS and the individual defendants, DENIED IN PART, as to defendant's timeliness argument, and Harrison's refusal to transfer and harassment claims.

Pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have ten (10) days after being served with a copy of the recommended disposition to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court and served on all adversaries, with extra copies delivered to the chambers of the Honorable Richard Conway Casey, 500 Pearl Street, Room 1950, and to the chambers of the undersigned, Room 1970. Failure to file timely objections shall constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. See Thomas v. Arn, 474 U.S. 140, 150 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989) ( per curiam ); 28 U.S.C. § 636(b)(1) (West Supp. 1995); Fed.R.Civ.P. 72, 6(a), 6(e).