Summary
holding that amendment to add a race-based hostile work environment claim would not be futile under notice pleading standard where "[t]he proposed complaint contains allegations that plaintiff was `continually harassed' by her `co-workers and supervisors' on the basis of,inter alia, her race and `skin color'"
Summary of this case from Bonano v. Southside United Housing Dev. Corp.Opinion
No. 01-CV-6159.
August 19, 2004
DECISION AND ORDER
Background
By Order of Michael A. Telesca, dated October 29, 2001, all pretrial motions have been referred to this Court pursuant to 28 U.S.C. § 636(b)(1)(A)-(B). (Docket #13). Pending before the Court is a motion for leave to file an amended complaint. (Docket #42). Defendant has submitted papers in opposition to the motion. (Docket #46, 47).
Factual Background
Plaintiff commenced this action against the University of Rochester and Strong Memorial Hospital following termination of her employment. In her original complaint, plaintiff alleged that she was discriminated against on the basis of her age, sex, color and religion. Plaintiff further alleged that she was retaliated against by defendant. By Order dated July 23, 2003, Judge Telesca dismissed plaintiff's claims of race, color and gender discrimination on grounds that plaintiff failed to exhaust her administrative remedies. Following that Decision and Order, (Docket #41) only plaintiff's claims of age and religious discrimination survived.
In the present motion, plaintiff seeks to amend her complaint to add claims under (1) Section 1981 of the Civil Rights Act and (2) the New York Human Rights Law (NYHRL) because of discrimination suffered due to gender, race and retaliation for complaining about discrimination. "Unlike Title VII and the ADEA, Section 1981 and the NYSHRL do not require a plaintiff to exhaust administrative remedies prior to filing a claim of discrimination." Hernandez v. Kellwood Co., 2003 WL 22309326 at *13 n. 4 (S.D.N.Y. Oct 08, 2003) (citing Lumhoo v. Home Depot USA, Inc., 229 F.Supp.2d. 121, 136 n. 12 13 (E.D.N.Y. 2002)).
Plaintiff also moved to add claims arising under the Rochester Municipal Code but later withdrew those claims and thus, the Court need not consider those claims. (Docket #49).
Standard for Motion to Amend: Rule 15(a) of the Federal Rules of Civil Procedure provides that after responsive pleadings have been filed, a party may amend its pleading "only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Fed.R.Civ.P. 15 (a). A decision to grant or deny a motion to amend is within the sound discretion of the trial court. Foman v. Davis, 371 U.S. 178, 182 (1962). "In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, `be freely given.'"Foman, 317 U.S. at 182. Generally, delay alone is not a sufficient basis for the denial of a motion to amend. Resorts and Motel Advancement Development Agency, Ltd. v. Sloan, 160 F.R.D. 449, 451 (S.D.N.Y. 1995); Phaneuf v. Tenneco, Inc., 938 F. Supp. 112, 115 (N.D.N.Y. 1996). "`Delay must be accompanied by either bad faith, prejudice, or futility to warrant' denying defendant the opportunity to test its claim on the merits."Resorts and Motel Advancement, 160 F.R.D. at 451 (quotingMcCoy v. Goldberg, 845 F. Supp. 155, 157 (S.D.N.Y. 1994)).
Discussion
Defendant opposes the motion to amend on essentially three grounds: (1) the proposed amended complaint is futile as it fails to give the University notice of the grounds upon which plaintiff's § 1981 claims rest; (2) the New York State Human Rights Law claims are barred because plaintiff already pursued a statutory claim of employment discrimination at the Division of Human Rights; and (3) the delay in this case is so substantial that the amendment should be denied.
1. The NYHRL Claims: New York State Executive Law § 297(9) provides that "any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction for damages . . . unless such person had filed a complaint hereunder or with any local commission on human rights." N.Y. Exec. Law § 297(9) (McKinney 2003) (emphasis added). Thus, where a plaintiff elects to pursue her employment discrimination claim by filing a complaint with the State Division of Human Rights, plaintiff is barred from seeking a judicial remedy on those claims, including federal court. See e.g. Benjamin v. N.Y.C. Dep't of Health, 2003 WL 22883622 at *6 (S.D.N.Y. December 8, 2003) ("Because Plaintiff elected to pursue her employment discrimination claim by filing a complaint with the City Human Rights Commission, she is barred from seeking a judicial remedy on her state and local claims that national origin bias was at the root of the discrimination she allegedly suffered in the workplace.").
Here, Mincey does not deny that she filed a claim with the State Division of Human Rights but argues that the Court should take her pro se status into account in deciding whether these claims are barred. However, this statutory requirement is jurisdictional and the fact that Mincey was pro se at the time she filed her administrative complaint cannot relieve her of demonstrating subject matter jurisdiction. Moodie v. Federal Reserve Bank of New York, 58 F.3d 879, 884 (2d Cir. 1995) (Court affirmed district court's dismissal of pro se plaintiff's state law discrimination claims due to jurisdictional bar of § 279(9)); Passamonti v. Itochu Int'l, Inc., 1998 WL 107165 (S.D.N.Y. March 11, 1998) (Court dismissed pro se plaintiff's claims brought under city's administrative code due to election of remedies doctrine which precluded her from bringing claims pursued administratively in federal court). Consequently, the claims brought pursuant to New York State Human Rights Law are futile and the addition of these claims will not be permitted.
2. Claims Under Section 1981: Defendants allege that the plaintiff's proposed § 1981 claims are nothing more "than mere conclusory allegations with no supporting detail whatsoever" and thus should not be permitted. See Memorandum of Law in Opposition to Plaintiff's Motion to Amend, at page 5. (Docket #46).
The pleading requirements in employment discrimination cases was recently examined by the Supreme Court in Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). In Swierkiewicz the Court rejected this Circuit's practice of requiring a plaintiff to plead a prima facie case of employment discrimination in order to survive a motion to dismiss. Swierkiewicz v. Sorema N.A., 534 U.S. at 512. The Court held that imposing a more rigorous standard in employment discrimination actions conflicted with the notice pleading standard of Rule 8(a)(2) which simply requires "a short and plain statement of the claim showing that the pleader is entitled to relief." The Court held that simplified notice pleading "relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims." Id.
Measured against this liberal pleading standard, plaintiff's proposed amendment suffices to allege a cognizable claim under Section 1981. "Section 1981 provides a cause of action for race based discrimination based on a hostile work environment."Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir. 2000). The proposed complaint contains allegations that plaintiff was "continuously harassed" by her "co-workers and supervisors" on the basis of, inter alia, her race and "skin color". See Proposed Amended Complaint at par. 16 (annexed as Exhibit "A" to Docket #44). A hostile work environment under Section 1981, as under Title VII, occurs when the incidents of harassment happen "with a regularity that can reasonably be termed pervasive." Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d at 69.
To be sure, in order to survive summary judgment, plaintiff "must produce evidence that the workplace is permeated with discriminatory intimidation, ridicule and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment." Cruz, v. Coach Stores, Inc. 202 F.3d 560, 570 (2d Cir. 2000) (internal quotations omitted). But, as the Supreme Court instructed, at this stage of the proceedings, the complaint need only put defendants on "fair notice" of the plaintiff's claims. On this standard, I find the proposed amended complaint sufficiently alleges a Section 1981race-based claim of employment discrimination based on a hostile work environment.
The proposed amended complaint also alleges harassment based on gender, age and religion. However, it is well settled that Section 1981 does not prohibit employment discrimination based on gender, age or religion. Anderson v. Conboy, 156 F.3d 167, 170 (2d. Cir. 1998).
Finally, as to the issue of delay, as noted earlier in this Decision and Order, generally delay alone is not a sufficient basis for the denial of a motion to amend. In addition, as plaintiff notes, virtually no discovery in this matter has been conducted and thus it is difficult to establish genuine prejudice to defendants. While the Court will not deny plaintiff's amendment on the basis of delay, it will require this case to move with dispatch towards trial or other disposition.
Conclusion
For the foregoing reasons, plaintiff's motion for leave to amend is granted in part and denied in part. In accordance with the above ruling, plaintiff shall serve an amended complaint consistent with this Decision within 30 days of the date of this Order. Following receipt of defendants' Answer, plaintiff's counsel shall immediately contact the Court to schedule a conference for purposes of issuing a Final Scheduling Order in this case.
SO ORDERED.