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dismissing § 1981 claim alleging a hostile work environment against United States Postal Service and plaintiff's immediate supervisor
Summary of this case from Nghiem v. U.S. Dept. of Veterans AffairsOpinion
01 Civ. 8876 (GEL)
May 28, 2002
Leonard H. Adoff, Adoff and Glinn, P.C., New York, NY, for plaintiff Raymond King.
David J. Kennedy, Assistant United States Attorney, (James B. Comey, United States Attorney for the Southern District of New York, on the brief) New York, NY, for defendants United States Postal Service. John E. Potter. and Saddigue Au Shahbazz.
OPINION AND ORDER
Plaintiff Raymond King, a postal worker who is a Jehovah's Witness, brings this action alleging a variety of causes of action centering on alleged mistreatment at his workplace on the basis of his religion, and naming as defendants his immediate supervisor, Saddique Ali Shahbazz, the United States Postal Service ("USPS"), and the Postmaster General. Defendants move for dismissal of various causes of action or in the alternative for partial summary judgment. The motion will be granted in part and denied in part.
Plaintiff asserts four causes of action: (1) that defendants discriminated against him on the basis of his religion, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), in that defendant Shahbazz intentionally switched his tour of duty in the ihil of 1998 to force him to work on Sundays, on which his religion forbids work; (2) that deibndants also discriminated against him in violation of Title VII, in that in 1997 Shahbazz attempted to force him to buy a ticket to a fund-raising event for the politician and civil rights activist Al Sharpton, and when King refused to do so (because his religion prohibits financial support for.other organizations), Shahbazz retaliated by "engag[ing] in an abusive campaign against Plaintiff, where Plaintiff would suffer numerous instances of harassment, verbal abuse and mental anguish" (Compl. ¶ 26); (3) that defendants created a hostile work environment in violation of Title VII and 42 U.S.C. § 1981; and (4) that these various discriminatory acts constituted intentional infliction of severe emotional distress in violation of the common law of New York.
Defendants concede that the first claim states a cause of action against the Postmaster General, but argue that the other three claims should be dismissed, and that the case must be dismissed entirely against the USPS and Shahbazz. The causes of action will each be considered separately.
I. Discriminatory Shift Assignment
As noted, defendants agree that this claim must go forward against the Postmaster General. Plaintiff agrees, in turn, that the claim must be dismissed against the USPS and Shahbazz. (P. Mem. at 10.) In a Title VII action by a federal employee, only "the head of the department, agency, or unit, as appropriate, shall be the defendant." 42 U.S.C. § 2000e-16 (c). In any Title VII action, an "individual defendants with supervisory control over a plaintiff may not be held personally liable." Tomka v. Seiler, 66 F.3d 1295, 1314 (2d Cir. 1995). Accordingly, plaintiffs first cause of action is dismissed as against the defendants USPS and Shahbazz.
II. The Sharpton Fund-raiser and Hostile Work Environment
Title VII requires plaintiffs to "exhaust available administrative remedies in a timely fashion" as a prerequisite to filing suit. Briones v. Runvon, 101 F.3d 287, 289 (2d Cir. 1996). See 42 U.S.C. § 2000e-16. Thus, federal courts lack jurisdiction over claims not presented in administrative proceedings. Brown v. Coach Stores. Inc., 163 F.3d 704, 712 (2d Cir. 1998). "However, claims which are "reasonably related' to the EEOC charge may be brought in a subsequent federal court action. See Butts v. City of New York Dep't of Housing Preservation and Dev., 990 F.2d 1397, 1402 (2d Cir. 1993). Such claims are allowed to continue where "the conduct complained of would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.' Id. (citation and quotation omitted)." Id.
Defendants argue that King may not proceed with claims based on discriminatory acts other than the December 1998 schedule change, because that was the only act he challenged through the administrative process. Promptly after the schedule change, King sought and received an appointment with a USPS equal employment opportunity ("BEG") counselor. At that meeting, he complained of the schedule change and did not allude to any other acts of discrimination. (Def. Ex. B.) Subsequently, on March 29, 1999, with the assistance of present counsel, King filed a formal BEG complaint, once again specifically alleging that his supervisor, Shahbazz, "systematically and intentionally denied [him Sundays] off, " and requesting as a remedy "[c]ompensatory and punitive damages, [and] equal treatment regarding days off and requests for days off." (Def. Ex. C, ¶¶ 13, 16.) King did not allude to the Sharpton fund-raising event, or to the creation of a hostile work environment.
A subsequent exchange of letters casts further light on the complaint. A USPS EEO compliance official wrote to King on May 27, 1999, defining the "scope of investigation" as limited to "the following issue only," citing the December 28. 1998. change of schedule. (Def. Ex. E.) Counsel immediately wrote back, requesting that the scope of the investigation be expanded to look at the schedule change not as "an event that stands alone as an island with no prior history," but rather as "the culmination of various forms of discrimination by management," specifically including the fund raising event. (Def. Ex. F.) The EEO compliance officer wrote back, noting that "the crux of your complaint remains that your request to have Sunday as a nonscheduled day as a religious accommodation was denied." The officer went on to state that the information regarding the fund-raiser is evidence or factual background information you are providing in support of your discriminatory [sic] allegations." (Def. Ex. G.)
Based on this exchange, it is clear that the events relating to the Sharpton fund-raiser and "various forms of discrimination by management" (Def. Ex. F) "fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination."Butts, 990 F.2d at 1402. Indeed, we do not have to speculate about what might "reasonably be expected" to be investigated in response to King's complaint; the EBO office specifically acknowledged that it was on notice of these events and expected to consider them as "evidence or factual background information" as part of its investigations. The additional claims are thus "reasonably related" to the specific administrative charge filed by King.
Defendants further argue, however, that King should be precluded from relying on the Sharpton matter, or any other events that occurred more than 45 days before his initial contact with the EEO counselor. Once again, defendants cite the correct principle: administrative remedies must be exhausted "in a timely fashion," Briones, 101 F.3d at 289, and federal employees must initiate administrative review of discriminatory acts within 45 days of their occurrence. 42 U.S.C. § 2000e-16; 29 C.F.R. § 1614.105(a)(1). This requirement "serves as a statute of limitations; thus, as a general rule, claims alleging conduct that occurred more than 45 days prior to the employee's initiation of administrative review are time-barred." Fitzgerald v. Henderson, 251 F.3d 345, 358-59 (2d Cir. 2001), pet. for cert. filed, 70 U.S.L.W. 3163 (Aug. 29, 2001).
Here, too, however, exceptions apply. Under the continuing violation doctrine, "if a plaintiff has experienced a continuous practice and policy of discrimination, the commencement of the statute of limitations period may be delayed until the last discriminatory act in furtherance of it." Id. at 359 (internal quotes, ellipses and citations omitted). Here, King specifically claimed within the administrative process that the decision to change his days off was the "culmination" of a continuing series of discriminatory acts extending back at least to the time of the Sharpton fund-raising event. (Def. Ex. F.) Cf. Miller v. Int'l Tel. Tel. Co., 755 F.2d 20, 25 (2d Cir. 1985). At least for purposes of the pleading stage of the case, this suffices to permit plaintiff to pursue the claim that a continuing series of discriminatory actions created a hostile work environment, and to permit discovery on these claims. Dismissal of the claims at this stage seems particularly inappropriate here, because the Supreme Court may shortly provide definitive guidance on the elements of a continuing violation claim when deciding Morgan v. National Railroad Passenger Corp., 232 F.3d 1008 (9th Cir. 2000), cert. granted, 533 U.S. 927 (2001), and because, as in the administrative process, discovery on other alleged discriminatory actions will in any event be required insofar as those actions would be relevant to proving the motivation for the December 1998 schedule decision.
Three further caveats must be added. First, the denial of defimdants' motion at this stage is without prejudice to renewal of these and other arguments for summary judgment after discovery is completed. King's allegations of hostile work environment are particularly conclusory. It is by no means clear that he will be able to make out sufficiently numerous or severe incidents to establish a hostile work environment, or that any such incidents will be sufficiently continuous to constitute a continuing violation permitting them to be subsumed within his January 1999 EEO complaint. Nor is it apparent how the alleged pressure to purchase tickets to the Sharpton fund-raiser constitutes religious discrimination. King's allegations, in the complaint and in the EEO proceedings, tend to imply that King was not singled out for such pressure because of his religion, but rather that Shahbazz pressured employees generally to participate in the event. Such political pressure by a postal supervisor may be reprehensible; it may even be illegal. See 5 U.S.C. § 7323(a)(2)(B) (federal employees may not solicit political contributious from subordinates). But if brought to bear indiscriminately on all employees, regardless of their religion, it would not constitute religious discrimination. Such issues, however, are better addressed on a fuller factual record.
Second, King's hostile work environment cause of action is pleaded as a violation both of Title VII and of 42 U.S.C. § 1981. The latter statute, however, provides no basis for the relief sought. "Title VII is the exclusive remedy for [employment] discrimination by the federal government on the basis of race, religion, sex, or national origin."Briones, 101 F.3d at 289 (quoting Boyd v. United States Postal Serv., 752 F.2d 410, 4 13-14 (9th Cir. 1985)). Moreover, § 1981 by its own terms explicitly protects equal contract rights only "against impairment by nongovernmental discrimination and impairment under color of State law." 42 U.S.C. § 1981(c). Thus, "the weight ofjudicial authority has held that § 1981 does not protect against alleged discrimination under color of federal law." Davis-Warren Auctioneers v. FDIC. 215 F.3d 1159, 1161 (10th Cir. 2000). The claim that defendants' actions violated § 1981 is thus dismissed.
Third, for the same reasons discussed above with respect to the, first cause of action, the second and third claims under Title VII are also dismissed as to the defendants USPS and Shahbazz.
III. Intentional Infliction of Emotional Distress
Finally, plaintiff asserts a fourth cause of action for intentional infliction of emotional distress in violation of New York tort law. The claim appears to be based solely on the alleged workplace discrimination underlying the first three causes of action.
Defendants persuasively argue that the facts alleged do not state a claim under New York law. In Murphy v. Am. Home Products Corp., 58 N.Y.2d 293 (1983), the New York Court of Appeals ruled that alleged workplace actions far more severe than anything specifically alleged by plaintiff in the present case fell "far short" of the standard of "conduct . . . so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society" required to constitute a tort. Id. at 303. See also Spence v. Maryland Casualty Co. 995 F.2d 1147, 1158 (2d Cir. 1993). The additional fact that plaintiffs alleged mistreatment here was discriminatory does not change the outcome. Martin v. Citibank, N.A., 762 F.2d 212, 220 (2d Cir. 1985).
Under other circumstances, it might nevertheless be advisable to permit the cause of action to go forward, on the theory that plaintiff has generally alleged "extreme and outrageous conduct" (Compl. ¶ 37), and that whether defendants behaved outrageously or not should be considered after discovery. But the claim must be dismissed on other grounds in any event. The sole waiver of sovereign immunity for tort claims against the United States and its agencies is the Federal Tort Claims Act. 28 U.S.C. § 1346 (b), 2671-2680. King does not allege a claim under this Act, nor does he allege that he has fulfilled the statutory prerequisitesfor bringing such a suit, such as filing an administrative claim. 28 U.S.C. § 2675 (a). Thus, the claim may not be brought against the Postmaster General in his official capacity or against the USPS.
Nor can the claim be brought against Shabazz or against the Postmaster General in his individual capacity. The latter is not alleged to have personally participated in any way in the alleged mistreatment of King. To the extent the claim is brought personally against Shahbazz, courts have consistently refused to permit the invocation of state law remedies against individual supervisors to circumvent the exclusivity of Title VII as a remedy for discrimination in federal employment. See Rivera v. Heyman, 157 F.3rd 101, 105 (2d Cir. 1988) (state discrimination law). See also DiPompo v. West Point Military Academy, 708 F. Supp. 540, 547 (S.D.N.Y. 1989) (intentional infliction of emotional distress); Mannion v. Attorney General, No. 00 Civ. 418, 2000 WL 1610761, at *1-*2 (D. Conn. Oct. 3, 2000) (intentional infliction of emotional distress and conspiracy).
Accordingly, plaintiffs fourth cause of action is dismissed in its entirety.
Conclusion
For the reasons set forth above, the motion to dismiss is granted as to plaintiffs fourth cause of action, and as to the claim of violation of 42 U.S.C. § 1981 in plaintiffs third cause of action. The motion to dismiss the first, second and third causes of action ia granted as to defendants United States Postal Service and Saddique Ali Shahbazz, and denied as to the defendant Postmaster General.