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holding that intra-corporate conspiracy doctrine barred § 1985 claim when "[a]ll of the individual Defendants are officers, agents and employees of a single corporate entity, the City of New York"
Summary of this case from King v. City of New YorkOpinion
No. 00 Civ. 3667 (RWS).
March 26, 2001.
Attorneys for Plaintiff: BRUNE RICHARD L.L.P. By: HILLARY RICHARD, ESQ. LAURIE EDELSTEIN, ESQ., NINA BEATTIE, ESQ. Of Counsel.
Attorneys for Defendants: CORPORATION COUNSEL FOR THE CITY OF NEW YORK Attorneys for Defendants The City of New York, Robert Davis, Robert A. Martin, Martin P. Glynn, Joanne Brown, Richard Tobing, and Yvette Plata. By: LYNN A. SEVERINO.
OPINION
Defendants the City of New York, Robert Davis ("Davis"), Robert A. Martin ("Martin"), Martin P. Glynn ("Glynn"), Joanne Brown ("Brown"), Richard Tobing ("Tobing"), and Yvette Plata ("Plata") (collectively, the "Defendants") have moved for partial judgment on the pleadings, pursuant to Federal Rule of Civil Procedure 12(c). For the reasons set forth below, the motion is granted in part and denied in part.
Defendant Nicolas Negron ("Negron"), who had not appeared in this action at the time the instant motion was filed, is not a party to this motion.
The Parties
Plaintiff Myra Salgado ("Salgado") was at all relevant times employed as a police officer by the City of New York and the New York City Police Department (the "NYPD").
The City of New York is a municipal corporation created and duly authorized under the laws of the State of New York.
The NYPD is the municipal agency established by, and which acts as the agent of, the City of New York in the area of law enforcement.
Davis was at all relevant times employed as a police officer holding the rank of Lieutenant within the NYPD Missing Persons Squad (the "Missing Persons Squad").
Negron was at all relevant times employed as a police officer with the rank of Sergeant within the Missing Persons Squad.
Martin was at all relevant times employed as a police officer with the rank of Deputy Inspector within the Special Investigations Division ("Special Investigations") of the NYPD.
Glynn was at all relevant times employed as a police officer with the rank of Captain within Special Investigations.
Brown was at all relevant times employed as a police officer with the rank of Detective within the Missing Persons Squad.
Tobing was at all relevant times employed as a police officer with the rank of Detective within the Missing Persons Squad.
Plata was at all relevant times employed as a police officer with the rank of Detective within the Missing Persons Squad.
Defendants John Does 1-10 are unknown police officers employed by the NYPD.
Prior Proceedings
This action was initiated by the filing of a complaint by Salgado on May 15, 2000, asserting claims for employment discrimination, hostile work environment, and retaliation on the basis of sexual orientation under 42 U.S.C. § 1983, 42 U.S.C. § 1985 (3), and New York City Administrative Code § 8-101 et seq.
Facts
The following facts are as alleged in the complaint and do not constitute findings by the Court.
Salgado was hired by the NYPD as a police officer in January 1983. In or about January 1988, she was assigned to the Missing Persons Squad, a subdivision within Special Investigations. In or about September 1989, she was promoted to the rank of Third Grade Detective.
Salgado is a lesbian. In or about the fall of 1993, she began sharing an office with Negron, who was the second in command officer of the Missing Persons Squad. In or about April 1994, Negron discovered that Salgado was gay. From that point forward until Negron's retirement in April 1996, Negron began harassing Salgado based on her sexual orientation. For example, he over-supervised Salgado, excessively monitored her schedule, and disproportionately assigned her to uniform detail — an undesirable assignment — as compared with heterosexual officers with similar experience and seniority. In addition, shortly after learning of Salgado's sexual orientation, Negron ordered her to move out of the office they had shared for approximately eight months. Negron also repeatedly made derogatory comments to other detectives in the Missing Persons Squad regarding Salgado's sexual orientation, and on one occasion circulated a cartoon that represented Salgado in a derogatory manner. Other detectives in the Missing Persons Squad told Salgado that Negron was out to get her because she was a lesbian.
Other detectives and officers in the Missing Persons Squad, including Brown, Tobing, and Plata, routinely made comments that Salgado looked "butchy" or "gay," and other derogatory comments regarding her personal life and sexual orientation, and isolated and ignored Salgado in the workplace.
At the time Negron ordered Salgado to move out of their office, Davis, who was the Commanding Officer of the Missing Persons Squad, was away. Immediately upon Davis's return, Salgado complained to him that Negron was discriminating against her. On several subsequent occasions Salgado again complained to Davis about the discrimination she was experiencing both from Negron and other officers and detectives within the Missing Persons Squad. Davis also witnessed discriminatory action by Negron and these others.
Davis did not act to stop or remedy the discriminatory behavior, and did not report the conduct, as required, to the NYPD's Office of Equal Employment Opportunity (the "OEEO").
On or about April 24, 1996, Salgado filed a complaint with the New York City Commission on Human Rights (the "Human Rights Commission") against the NYPD, Negron, and Davis, alleging discrimination and harassment on the basis of her sexual orientation. Subsequently, the discriminatory behavior continued and increased.
In May 1996, Davis ordered Salgado to move from her private office into the general population. On May 23, 1996, a command discipline was filed against Salgado based on actions that allegedly occurred six months earlier, in November 1995. In the spring of 1996, after two other openly homosexual officers were transferred into the Missing Persons Squad, Salgado heard Brown, a fellow detective, make repeated derogatory comments about Salgado based on her sexual orientation, including "It's going to be gay city in here," and "Why doesn't she [Salgado] just get transferred out of here?".
In July 1996, Salgado's fellow detectives and officers in the Missing Persons Squad, knowing that Negron had already retired and knowing of his behavior towards Salgado, placed a banner on her desk and draped another banner across a message board, both stating "Welcome back, Sergeant Negron," in order to make Salgado think Negron was coming back.
On or about August 1, 1996, Salgado found the word "Dike" [sic] written in bold letters next to her name on her file cabinet. Salgado immediately reported this incident to Davis.
On or about August 7, 1996, Salgado filed a complaint of employment discrimination based on sexual orientation with the OEEO. In December 1996, the OEEO issued a determination that the complaint was founded. However, no action was taken as a result of this finding. For example, the NYPD did not discipline anyone or order any type of training for members of the Missing Persons Squad.
On February 23, 1997, shortly after Salgado returned from vacation, she found a letter in her mailbox stating, "Where does (sic] Sgt. Giuffre and Det. Salgado go on vacation together? They go to Dike (sic] City in Gay County where girls can be with girls." Sergeant Giuffre, who was one of the openly homosexual officers who had been transferred to the Missing Persons Squad, received an identical letter. A report was made concerning the letters and it was assigned to the Internal Affairs Bureau ("Internal Affairs") for investigation, which then referred the investigation to the OEEO. Salgado was never informed of the outcome of the investigation.
From May 1996 through February 1997, Salgado was consistently given undesirable assignments in a disproportionate amount as compared with heterosexual detectives with similar experience and Seniority, and continued to be subjected to gossip about her personal life.
Beginning in mid-1996 and continuing until Salgado's constructive discharge, Salgado made repeated verbal and written requests for a transfer out of the Missing Persons Squad. Salgado's counsel also made transfer requests on Salgado's behalf. For example, on August 1, 1996, Salgado's counsel wrote to Tomaso Simonetti ("Simonetti"), First Deputy Commissioner of the NYPD, requesting his assistance in obtaining a transfer. On August 8, 1996 and again on September 4, 1996, Salgado's counsel wrote to Captain Lazdan of the OEEO with the same request. These requests were ignored.
In August 1996, Salgado applied for a position in the Department Advocate's Office. In December 1996, February 1997, and March 1997, counsel for Salgado reiterated Salgado's request to be transferred to the Department Advocate's Office in writing. Between August 1996 and March 1997, at least seven new officers were assigned to the Department Advocate's Office. Salgado was not one of them. Salgado was informed that she was not wanted in the Department Advocate's Office because she is a lesbian and her female lover worked there. She was also told that she would never be able to leave the Missing Persons Squad unless she retired or vested out. Salgado remained in the Missing Persons Squad.
From March 1997 through Salgado's constructive discharge, she continued to be assigned to undesirable assignments with more frequency than similarly-situated heterosexual officers. Brown, Tobing, Plata, and other officers and detectives in the Missing Persons Squad continued to gossip about Salgado's personal life and to make derogatory comments about her sexual orientation, and to isolate and ignore her in the workplace. Brown openly made derogatory comments in the workplace about Salgado, her sexual orientation, and homosexuals in general.
From March 1997 through October 1997, Salgado continued to request a transfer out of the Missing Persons Squad. Salgado also requested of her supervisor, Sergeant Michael Codella ("Codella"), that she be reassigned to a different unit with the squad that was being newly established, the D.O.A. team. On October 21, 1997, the new D.O.A. team was announced, to be supervised by Codella. Salgado was not selected for it, but Brown was.
On or about October 27, 1997, Salgado's guns were stolen out of padlocked cubby locker located within the Missing Persons Squad. The lock had been clipped. Only police officers had access to the area where the lockers were located, an area that was supposed to be monitored 24 hours a day. An investigation was begun into the theft, but Salgado was never informed of its outcome.
As a result of the above-described conduct, Salgado became emotionally and professionally distraught. On October 30, 1997, she informed the new Commanding Officer of the Missing Persons Squad, Lieutenant Robert Groth ("Groth"), that she was unable to endure the harassment and discrimination any longer and had decided to vest out of the NYPD as of January 1998. Groth did not accept Salgado's resignation. Salgado also requested that she be transferred out of the Missing Persons Squad until she vested out.
Groth informed his superior, Glynn, who was a Captain and the Executive Officer of Special Investigations, of Salgado's transfer request. Glynn ordered Groth to remove Salgado's guns and to send her to the NYPD's Psychological Services Unit ("Psychological Services"). Groth refused to remove Salgado's guns, but did order her to go to Psychological Services.
On November 3, 1997, Salgado's guns, permanent identification card, and shield were removed, and her status was changed from full duty to restricted duty. She was given a temporary identification card stamped "no firearms" on the back. She was given no reason as to the change of status and removal of her guns.
Salgado was still not granted a transfer out of the Missing Persons Squad, and was ordered to return to that squad.
After numerous meetings and phone calls, including the intervention of Psychological Services, Salgado was finally granted a transfer to the NYPD Photo Unit (the "Photo Unit"). The Photo Unit is a very undesirable assignment. In addition, the transfer was conditioned on Salgado resigning and vesting out of the NYPD as of January 3, 1998.
On or about January 3, 1998, Salgado was compelled to resign from the NYPD as a result of the discrimination, harassment, and retaliation to which she had been subjected and the Defendants' failure to take effective remedial measures.
Martin, the Deputy Inspector of Special Investigations from 1994 through 1998, was aware of the discriminatory and harassing behavior to which Salgado was being subjected, as well as her complaints. Martin took no action to address or stop the behavior even though he had the authority to order and require employees of the Missing Persons Squad and Special Investigations to undergo training with respect to sexual orientation discrimination. Nor did any other official, supervisor, or agent of the City of New York or the NYPD.
The Defendants conspired and agreed, and acted in concert with each other, to discriminate against Salgado on the basis of sexual orientation. The Defendants were motivated in their conspiracy by their invidious and discriminatory animus towards homosexuals. Brown, Tobing, and Plata, who were Salgado's fellow detectives and co-workers, were motivated by personal interests and were acting in pursuit of those interests when acting in furtherance of the conspiracy. The Defendants either knew or showed reckless disregard for the fact that their conspiracy constituted a violation of Salgado's constitutional right to equal protection.
As a consequence of the Defendants' actions and repeated failure to properly investigate and address properly Salgado's complaints, Salgado has lost and continues to lose substantial income, including but not limited to wages, pension, and other employment-related benefits. Salgado has also suffered and continues to suffer emotional distress, humiliation, anxiety, damage to her professional reputation and career, and disruption of her professional and personal life.
Discussion I. The Standard Under Rule 12(c)
The standard applicable to a motion for judgment on the pleadings, pursuant to Rule 12(c), is the same as the standard for a motion to dismiss for failure to state a claim, pursuant to Rule 12(b)(6). Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999), cert. denied, ___ U.S. ___, 2000 WL 1577301 (Dec. 11, 2000). The allegations contained in the complaint are accepted as true, and all reasonable inferences are drawn in favor of the nonmoving party. Id. Dismissal is warranted only if "`it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Id. (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
II. The Claims For Conduct Arising Before May 15. 1997 Are Not Time-Barred A. The Law Governing The Statute of Limitations
The statute of limitations for § 1983 and § 1985 claims is three years. Harris v. City of New York, 186 F.3d 243, 247-48 (2d Cir. 1999); Mian v. Donaldson, Lufkin Jenrette, 7 F.3d 1085, 1087 (2d Cir. 1993). A claim accrues once the plaintiff "knew or had reason to know of the injury serving as the basis for his claim." Harris, 186 F.3d at 247.
Under the continuing violation doctrine, the existence of a continuous policy or practice delays the commencement of the statute of limitations period for a § 1983 or § 1985 claim until the last discriminatory act in furtherance of that policy or practice. See Cornwell v. Robinson, 23 F.3d 694, 703-04 (2d Cir. 1994) (defining and applying continuing violation doctrine to Title VII, § 1983, and § 1985 claims);see also Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996) (defining and applying continuing violation doctrine to Title VII claim).
The continuing violation rule is satisfied where "there is evidence of an ongoing discriminatory policy or practice, such as use of discriminatory seniority lists or employment tests," Van Zant 80 F.3d at 713, or "where specific and related instance of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice," Cornwell, 23 F.3d at 704. However, "discrete incidents of discrimination that are not related to discriminatory policies or mechanisms may not amount to a continuing violation." Id. Moreover, it has been frequently noted that the continuing violation doctrine is disfavored in this circuit and will be applied only upon a showing of compelling circumstances. See, e.g., Katz v. Beth Israel Med. Ctr., No.-95 Civ. 7183, 2001 WL 11064, at *8 (S.D.N.Y. Jan. 4, 2001); Findlay v. Reynolds Metals Co., Inc., 82 F. Supp.2d 27, 37 (S.D.N.Y. 2000) (collecting cases).
Some district courts in this circuit, including this one, have found consideration of the following factors, articulated by the Fifth Circuit in Berry v. Board of Supervisors of Louisiana State Univ., 715 F.2d 971 (5th Cir. 1983), to be useful in applying the continuing violation doctrine:
The first is subject matter. Do the alleged acts involve the same type of discrimination, tending to connect them in a continuing violation? The second is frequency. Are the alleged acts recurring (e.g., a biweekly paycheck) or more in the nature of an isolated work assignment or employment decision? The third factor, perhaps of most importance, is degree of permanence. Does the act have the degree of permanence which should trigger an employee's awareness of and duty to assert his or her rights, or which should indicate to the employee that the continued existence of the adverse consequences of the act is to be expected without being dependent on a continuing intent to discriminate?Berry, 715 F.2d at 981; See Johnson v. Nyack Hosp., 891 F. Supp. 155 (S.D.N.Y. 1995), aff'd on other grounds, 86 F.3d 8 (2d Cir. 1996) (applying Berry factors); Buckvar v. City of New York, No. 98 Civ. 3106, 2000 WL 274195, at *4 (S.D.N.Y. March 13, 2000) (following Johnson).
B. Salgado Has Alleged Sufficient Facts To Satisfy The Continuing Violation Doctrine
The Berry analysis has been adopted by several Courts of Appeal.See Johnson, 891 F. Supp. at 163 n. 9 (citing decisions from Third, Seventh, Tenth, and Eleventh Circuits); but see Morgan v. National R.R. Passenger Corp., 232 F.3d 1008, 1015 (9th Cir. 2000) (rejecting Berry test, in particular third "trigger" factor). Contrary to the Defendants' contention, it has not yet been adopted by the Second Circuit.
The Defendants contend that Salgado's claims are time-barred to the extent they pertain to conduct occurring more than three years before the filing of the complaint on May 15, 2000, i.e., before May 15, 1997, and because the continuing violation doctrine does not apply. Relying primarily on Johnson, 891 F. Supp. 155, the Defendants maintain that: the alleged discriminatory acts are not sufficiently connected to each other or to discriminatory acts occurring within the three-year statute of limitations, such as the theft of Salgado's guns from her locker; the allegations are not sufficiently specific, because in some instances she fails to provide dates or specific fact; and Salgado's duty to sue was triggered as far back as April 1996 because she had notice by that time of the Defendants' alleged discriminatory actions, so that application of the continuing violation doctrine would not be equitable.
The acts alleged — discriminatory treatment in work assignments, opportunities, and the ability to transfer, derogatory statements about Salgado's sexual orientation, and harassing-signs and letters — are sufficiently connected to each other because they were similar in kind, perpetrated by many of the same actors, motivated by the same type of bias, and allowed to continue unremedied by supervisory personnel. See Cornwell, 23 F.3d at 704 (where plaintiff suffered race — and gender — based harassment during period outside of statute of limitations, and later "suffered the same kinds of harassment at the hands of some of the same (individuals] and under the aegis of some of the same supervisory personnel," discriminatory acts were sufficiently related to warrant application of continuing violation doctrine); cf. Buckvar, 2000 WL 274195, at *4 (alleged acts of discrimination did not involve same type of discrimination where included age, sex, and religion-based discrimination).
Salgado's allegations are sufficiently specific. For example, with respect to the pre-May 15, 1997 period, she alleges numerous specific acts of discrimination and harassment by Negron, including discrimination in work assignments and derogatory comments; derogatory comments by Brown, Tobing, and Plata; knowledge by Davis, a supervisor, of the conduct by Negron, Brown, Tobing, and Plata, and Davis's failure to act; retaliation by Davis after she filed her April 24, 1996, complaint with the Commission on Human Rights; the harassing banners in July 1996; transfer requests in August, September, and December of 1996, and February and March of 1997, that were ignored; the harassing letter in her mailbox in February 1997; and knowledge of the situation and failure to act by the OEEO, Internal Affairs, First Deputy Commissioner Simonetti, and the Department Advocates's office. With respect to the period after May 15, 1997, Salgado alleges inter alia that she continued to be discriminated against with respect to work assignments; continued to be subject to derogatory comments by Brown, Tobing, and Plata, among others; continued to request a transfer and to communicate to NYPD authorities regarding the discrimination she was suffering, and to have her requests and complaints ignored; had her guns stolen out of her locker in October 1997; was put on restricted duty and had her guns removed without explanation in November 1997; and, when she was finally granted a transfer it was to an undesirable unit and was conditioned on her resignation.
Finally, "[t]he question [of] when a plaintiff in a discrimination case `has had enough' so as to warrant the commencement of litigation may be subtle and difficult . . . [and] many employees who seek to hold on to their jobs in the face of a hostile environment face hard choices."Johnson, 891 F. Supp. at 166. Certainly Salgado did. It cannot be said as a matter of law, based on the pleadings, that Salgado's duty to sue was triggered before May 15, 1997 — and certainly not as far back as April 1996 — as she attempted to negotiate the treacherous terrain of her work environment. Johnson, 891 F. Supp. at 163 ((quoting Berry, 715 F.2d at 981). Thus, she has made a sufficient showing of compelling circumstances to warrant application of the continuing violation doctrine.
In sum, the complaint sufficiently alleges specific and related instances of discrimination, which Salgado's employer permitted to continue for so long as to amount to an ongoing policy or practice of discrimination, to warrant application of the continuing violation doctrine. See Cornwell, 23 F.3d at 704. Therefore, Salgado's claims based on pre-May 15, 1997 conduct are not time-barred.
III. Salgado Has Failed To State A Claim For Conspiracy Under § 1985(3) A. The Legal Standard Under § 1985(3)
Salgado alleges that the Defendants conspired to violate her right to equal protection, under the Fourteenth Amendment of the Constitution, in violation of 42 U.S.C. § 1985(3). Section 1985 provides a cause of action where:
two or more persons in any State or Territory conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; . . . if one or more persons . . . do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is . . . deprived of having and exercising any right or privilege of a citizen of the United States.42 U.S.C. § 1985(3).
In order to state a claim for conspiracy to violate an individual's constitutional rights, a plaintiff must show: (1) a conspiracy (2) for the purpose of depriving a person of the equal protection of the laws, or the equal privileges and immunities under the laws; (3) an overt act in furtherance of the conspiracy; and (4) an injury to the plaintiff's person or property, or a deprivation of a right or privilege of a citizen of the United States. Smith v. Metro North Commuter R.R., No. 98 Civ. 2528, 2000 WL 1449865, at *6 (S.D.N.Y. Sept. 29, 2000) (citing Thomas v. Roach, 165 F.3d 137, 146 (2d Cir. 1999)).
With respect to the first element, in order to prevail at trial the plaintiff must prove a mutual understanding or meeting of the minds to violate her civil rights. Hickey-McAllister v. British Airways, 978 F. Supp. 133, 139 (E.D.N Y 1997). Proof of a "tacit understanding," rather than an explicit agreement, will suffice. Smith, 2000 WL 1449865, at *7 (quoting Thomas, 165 F.3d at 146) (quotation marks omitted). With respect to the second element, the plaintiff must show that the conspiracy was motivated by a discriminatory animus based on an invidious classification. Griffin v. Breckenridge, 403 U.S. 88, 102 (1971); Posr v. Court Officer Shield # 207, 180 F.3d 409, 419 (2d Cir. 1999).
Conclusory allegations of the defendants' alleged participation in a conspiracy are inadequate to make out a claim under § 1985. X-Men Security, Inc. v. Pataki, 196 F.3d 56, 71 (2d Cir. 2000). The plaintiff must allege sufficient facts so as to give rise to an inference that each of the four requisite elements is met. Id.
Under the "intracorporate conspiracy" doctrine, the officers, agents, and employees of a single corporate entity, each acting within the scope of her employment, are legally incapable of conspiring together. Hermann v. Moore, 576 F.2d 453, 459 (2d Cir. 1978) (applying doctrine in § 1985(2) context); Girard v. 94th St. and Fifth Ave. Corp., 530 F.2d 66, 71-72 (2d Cir. 1976) (applying doctrine in § 1985(3) context).
There is a "personal interest" or "personal stake" exception to the intracorporate conspiracy doctrine, however, which permits a § 1985 claim where there are individuals who are "motivated by an independent personal stake in achieving the corporation's objective." Girard, 530 F.2d at 72; see, e.g., Roniger v. McCall, 22 F. Supp.2d 156, 168-69 (S.D.N.Y. 2000) (defendant had "`persona1 stake' in being reelected (to political office], and in downplaying his compromised political independence");Rini v. Zwirn, 886 F. Supp. 270, 293 (E.D.N Y 1995) (where "[n]one of the allegations regarding [a town employee] pertain[ed] to his duties as an employee of the Town," that town-employee acted as an individual in conspiring with other town employees); Yeadon v. New York City Transit Auth., 719 F. Supp. 204, 207, 212 (S.D.N.Y. 1989) (police officers who engaged in race-based false arrests in order to "improve their arrest records in order to secure promotions and other benefits" had "independent, conspiratorial purpose").
B. The § 1985(3) Claim Must Be Dismissed Under The Intracorporate Conspiracy Doctrine
All of the individual Defendants are officers, agents and employees of a single corporate entity, the City of New York. Therefore, the Defendants maintain, Salgado's § 1985(3) claim is barred under the intracorporate conspiracy doctrine.
Salgado objects that the personal stake exception to this doctrine applies because she has alleged that some of the defendants — her fellow detectives and officers, Brown, Tobing, and Plata — were motivated by personal interests and were pursuing those interests when they acted in furtherance of the conspiracy. This formulation, however, merely states the legal standard without alleging specific facts giving rise to an inference that the standard has been satisfied.
The complaint alleges that Brown, Tobing, and Plata made derogatory remarks about, and engaged in other abusive behavior towards, Salgado based on her sexual orientation. The only inference of a personal interest or stake to be drawn from those allegations is that these defendants were motivated by their individual prejudice. It has been noted in the case of a race-based § 1985 claim that, because invidiously discriminatory animus is required in order to give rise to § 1985(3) liability, see Griffin, 403 U.S. at 102, "[i]f personal racial bias were sufficient to defeat the intraenterprise conspiracy doctrine, the exception would swallow the rule . . ." Johnson, M.D. v. Nyack Hosp., 954 F. Supp. 717, 723 (S.D.N.Y. 1997). The same logic applies to Salgado's sexual orientation-based claim. There must be some personal stake alleged on the part these individual defendants other than the fact of bias itself. But see McCraven v. City of Chicago, 18 F. Supp.2d 877, 884 (N.D. Ill. 1998) (stating that exception to intracorporate conspiracy doctrine met "where the employees were motivated solely by personal bias"). Therefore, Salgado's § 1985(3) claim, as pleaded, is barred by the intracorporate conspiracy doctrine, and must be dismissed.
In a footnote, Salgado requests that if the Court determines she has not met her pleading burden she be allowed to amend her complaint, pursuant to Federal Rule of Procedure 15(a). Although this is a motion for judgment on the pleadings, a court has discretion on such a motion to refrain from rendering judgment and to order dismissal with leave to amend. See generally Charles Alan Wright Arthur R. Miller, 5A Federal Practice and Procedure § 1367 (Supp. 2000). However, the Defendants not having responded to Salgado's request, and Salgado not having made a formal motion, it would be premature to grant the request at this juncture. Therefore, the claim is dismissed, but without entry of judgment, to permit further motion practice regarding this matter.
As Salgado's § 1985(3) claim is dismissed for the reasons set forth above, the Transit Authority's other contentions as to the sufficiency of that claim will not be addressed at this time.
Conclusion
Therefore, for the reasons set forth above, the motion for partial judgment on the pleadings is granted in part and denied in part.
It is so ordered.