Summary
granting motion to dismiss where plaintiff "objected to the assignment/rotation system because of its relationship to an allegedly corrupt system of payoffs—not because defendant discriminated on the basis of race, color, religion, sex or national origin"
Summary of this case from Moll v. Telesector Res. Grp., Inc.Opinion
01 Civ. 6644 (CBM)
October 7, 2002
Dan Cherner, Esq., Law Offices of Dan Cherner, New York, N.Y. For Plaintiff.
Danna Drori, of Counsel, Office of the United States Attorney, Southern District of New York, For Defendants.
MEMORANDUM OPINION
Before the court is the defendant's motion to dismiss for failure to state a cause of action. For the reasons set forth below, the motion to dismiss is GRANTED. Allegations in the Amended Complaint
The core historical allegations in this case are as follows. Plaintiff Ernest Santucci, an agricultural commodity grader employed by the U.S. Department of Agriculture at Hunts Point Market in the Bronx, New York, claims that he suffered reprisal for his actions as a whistleblower with respect to an allegedly unfair "assignment/rotation system" related to a corrupt "bribery kickback scheme" at Hunts Point Market. Mr. Santucci alleges, inter alia, that as a result of the assignment/rotation system, his supervisor improperly scheduled him to work on July 3, 1998, and subsequently charged him with being "absent without leave" ("AWOL") when he did not appear at his place of employment. Plaintiff avers that he then filed an EEO complaint in which he complained about both the improper AWOL charge and "called for equality regarding schedules, assignments, and training."
Although the AWOL charge was subsequently dismissed, Mr. Santucci continued to have misgivings about the assignment/rotation system. He accordingly met with his supervisor to air his grievances. Plaintiff alleges that during this meeting with his supervisor in September 1998, in response to plaintiffs suggestion that he call the EEO office in Washington, DC to clarify the issue of the proper implementation of the new assignment/rotation system, his supervisor "pushed his fingers into [Plaintiffs] chest" and "pushed him." Mr. Santucci made an EEO complaint about his supervisor's conduct.
Plaintiff does not bring an action for assault.
Plaintiff alleges that, pursuant to a malicious strategy of retaliation, on October 7, 1998, shortly after plaintiff filed the aforementioned EEO complaint, his supervisor placed him on a "pre-performance improvement plan" ("pre-PIP"). According to Mr. Santucci, the "pre-PIP" was an act of retaliation for the EEO complaint which had been "made . . . about [plaintiffs supervisor's] behavior" at the September 1998 meeting. Plaintiff was ultimately "put on a PIP status" by his supervisors after his return from two weeks of training to correct for his supposed deficiencies. Plaintiff alleges that defendant's implementation of the "pre-PIP" and the "PIP" was retaliatory.
In addition to the foregoing, Mr. Santucci claims that his supervisor and others have harassed him in the workplace in retaliation for his EEO complaints and his role as a whistleblower with respect to the allegedly corrupt assignment/rotation system, which operated in furtherance of the bribery kickback scheme. Specifically, plaintiff alleges that Cathy Hance, a USDA employee, falsely accused him of failing to perform an inspection in a timely manner; that Ms. Hance harassed plaintiff by yelling at him without justification, thus embarrassing him in front of his co-workers; that he was maliciously reassigned to work in Philadelphia, notwithstanding the fact that it was known by his superiors that he was receiving medical treatment every week in New York for a back injury; and that this reassignment was made to retaliate against plaintiff.
Based on this course of events, the amended complaint (hereinafter the "complaint") alleges violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 (e), et seq. As set forth in the complaint, which was filed with the court on May 6, 2002, plaintiff brings four separate causes of action. Plaintiffs first cause of action alleges that defendant, including USDA employees, retaliated against Mr. Santucci with respect to the fact that he made EEO complaints. As the court shall discuss, infra, this retaliation claim is premised on plaintiffs assertion that, in filing EEO complaints, Mr. Santucci was engaged in "protected activity" pursuant to Title VII. Plaintiff claims that as a result of defendant's retaliatory conduct he suffered distress, humiliation, embarrassment, physical and emotional injuries, and damage to his reputation. Second, Mr. Santucci claims that defendant, including USDA employees, retaliated against him for complaining about the allegedly illegal assignment/rotation system. Again, plaintiffs claim is premised on the assertion that the act of complaining about the assignment/rotation system qualifies as "protected activity"under Title VII. Mr. Santucci asserts that as a result of such acts he has suffered and continues to suffer distress, humiliation, embarrassment, physical and emotional injuries, and damage to reputation. Plaintiffs third cause of action claims that in retaliation for making the complaints described supra, defendant created a harassing work environment in violation of Title VII. Fourth, plaintiff claims that defendant, including USDA employees, retaliated against plaintiff with respect to the fact that he made EEO complaints and filed this suit, in violation of Title VII. As with the other retaliation claims, the fourth cause of action is premised on the assertion that making EEO complaints and filing this lawsuit are "protected activit[ies]" under the rubric of Title VII.
Plaintiff seeks in excess of $200,000 in compensatory damages for each of the four causes of action; attorney's fees and costs pursuant to 42 U.S.C. § 1988 and other relevant statutes; a declaratory judgment that defendant wilfully violated plaintiffs rights secured by federal and state law; injunctive relief; and an order granting such other legal and equitable relief as this court deems just and proper.
DEFENDANT'S MOTION TO DISMISS
This court may dismiss an action pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure 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." Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). In considering a motion to dismiss, the court must take "as true the facts alleged in the complaint and draw all reasonable inferences in the plaintiffs' favor." Jackson Nat'l Life Ins. Co. v. Merrill Lynch Co., 32 F.3d 697, 699-700 (2d Cir. 1994). The Supreme Court has recently held that an employment discrimination plaintiff survives a motion to dismiss unless "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Swierkiewicz v. Sorema, 122 S.Ct. 992, 998 (2002). Judged by this standard, all four of plaintiffs Title VII claims fail as a matter of law. The court shall address plaintiffs retaliation and hostile work environment claims separately.
Retaliation Claims
Section 704(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3 (a) (1982) provides that "[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter." 42 U.S.C. § 2000e-3 (a) (1982). Section 703(a) of Title VII defines an "unlawful employment practice" as the failure or refusal of an employer to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's" race, color, religion, sex or national origin. . . . 42 U.S.C. § 2000e-2 (a)(1) (1982) (emphasis added).
In order to state a claim for retaliation, a plaintiff must demonstrate that (1) he was engaged in activities protected under Title VII; (2) that the employer was aware of these activities; (3) that the employer took adverse employment action against the plaintiff and (4) that a causal connection exists between the protected activities and the alleged adverse employment action. See, e.g., Cruz v. Coach Stores. Inc., 202 F.3d 560, 566 (2d Cir. 2000). The Second Circuit has established that the term "`protected activity' refers to action taken to protest or oppose statutorily prohibited discrimination." Id. see also Connelly v. West, 2001 WL 102350, at *6 (S.D.N.Y. Feb 7, 2001).
In light of the foregoing, it is clear that while certainly a majestic statute in the scheme of this Country's civil rights jurisprudence, Title VII is not a panacea. Rather, as Judge McMahon has observed, Title VII "offers redress for retaliation that is directed to activity protected by the statute." Nicastro v. Runyon, 60 F. Supp.2d 181, 184 (S.D.N.Y. 1999) (emphasis added). To put it another way, as Judge Cote ably does, "the protected activity alleged must involve some sort of complaint about a type of discrimination that Title VII forbids." Brands-Kousaros v. Banco Di Napoli S.P.A., 1997 WL 790748, at *5 (S.D.N.Y. Dec. 23, 1997). Thus, if the conduct complained of by the plaintiff had nothing to do with race, color, religion, sex, or national origin, an action cannot be maintained under Title VII.
Herein lies the fatal problem which inheres in plaintiffs complaint.
After consideration of both the complaint and plaintiffs presentation at oral argument on defendant's motion to dismiss, it is pellucid that the plaintiff fails to frame his retaliation causes of action vis-a-vis a cognizable protected activity under Title VII. First, Title VII does not, by itself, protect whistleblowers. See Adeniji v. Admin. for Children Servs., 43 F. Supp.2d 407, 421 (S.D.N.Y. 1999). Indeed, a number of cases in the Southern District have followed the rather simple proposition that whistleblowing is not a cognizable "protected activity" under Title VII. See, e.g., Harper v. Hunter College, 1999 WL 147698, at *3 (S.D.N.Y. Mar. 15, 1999) (dismissing for failure to state a claim for retaliation for plaintiffs reporting of unsafe working conditions because "`whistleblowing' activity of this nature is not protected under Title VII"); Goodman v. New York City Off-Track Betting Corp., 1999 WL 269959, at *10 (S.D.N.Y. May 4, 1999) (plaintiff failed to state a claim for retaliation because "his reports of alleged improprieties" at work constituted whistleblowing activity not protected under Title VII); see also Nicastro, 60 F. Supp.2d at 185 ("Reporting a supervisor s violation of work rules is laudable, but it is not protected activity under Title VII").
The court's confidence in the correctness of this proposition notwithstanding, it should be noted that the identification or categorization of Mr. Santucci as a whistleblower is not a necessary condition for the disposition of defendant's motion to dismiss. In order to show that he engaged in "protected activity," a plaintiff "need not establish that the conduct he opposed was in fact a violation of Title VII . . .; [h]owever, the plaintiff must demonstrate a good faith, reasonable belief that the underlying challenged actions of the employer violated the law." Manoharan v. Columbia Univ. College of Physicians Surgeons, 842 F.2d 590, 593 (2d Cir. 1988) (quotations omitted);see also Reed v. A.W. Lawrence Co., 95 F.3d 1170, 1178 (2d Cir. 1996) (same); Sumner v. United States Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990) (same). Yet, plaintiff utterly fails to allege such a good faith, reasonable belief that defendant's alleged retaliatory tactics were undertaken in response to Title VII-protected activity. (Counsel for Mr. Santucci conceded so much at oral argument, noting that he may have erred in bringing this action pursuant to Title VII.) Plaintiffs retaliation claims do not involve some sort of complaint about a type of discrimination that Title VII forbids. See Brands-Kousaros v. Banco Di Napoli S.P.A., 1997 WL 790748, at *5 According to the complaint, plaintiff objected to the assignment/rotation system because of its relationship to an allegedly corrupt system of payoffs — not because defendant discriminated on the basis of race, color, religion, sex or national origin. Moreover, plaintiffs retaliation claim with respect to his supervisor's offensive (and perhaps assaultive) conduct during their September 1998 meeting fails to allege that defendant's alleged discrimination was based on race, color, religion, sex or national origin. Indeed, while the court can fairly assume knowledge of Mr. Santucci's sex, after consideration of plaintiffs complaint and oral argument, it has no knowledge of plaintiffs race, color, religion, or national origin.
Plaintiff attempts to salvage his case through dubious references to two inapposite cases decided in other Circuits. First, citing the Third Circuit's decision in Johnson v. Lincoln Univ., 776 F.2d 443 (3d Cir. 1985), plaintiff argues that his "speech" concerning the purported kickback scheme constitutes "protected activity" pursuant to a Title VII retaliation claim. The Johnson case is inapposite, however, insofar as it discusses "protected activity" in the context of a Section 1983 claim. According to the complaint, however, this is not a Section 1983 claim. Indeed, as the defendant rightly points out in its memorandum of law in support of the motion to dismiss, actions of officers or agencies of the federal government are not cognizable under 42 U.S.C. § 1983. See, e.g., Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 n. 4 (2d Cir. 1991) (a Section 1983 action "cannot lie against federal officers."); Rowland v. Hildreth, 1993 WL 287646, at *9 (S.D.N.Y. July 27, 1993) (same); see also Sessoms v. Veterans Admin. Med. Ctr., 1988 WL 47357, at *1 (W.D.N.Y. 1988) ("Neither the United States nor its agencies are persons under section 1983 and are therefore excluded from the scope of liability under the section").
For this reason, to the extent that plaintiff may have requested leave to amend at oral argument, such request is DENIED.
Second, Mr. Santucci urges the court to accept his assertion that filing an BEG complaint constitutes "protected activity" pursuant to his retaliation claim under Title VII. As the court discussed supra, however, the protected activity implicated in a Title VII action "must involve some sort of complaint about a type of discrimination that Title VII forbids." Brands-Kousaros v. Banco Di Napoli S.P.A., 1997 WL 790748, at *5 (S.D.N.Y. Dec. 23 1997). Ostensibly in support of his position, plaintiff seizes upon some language in a single decision of the Ninth Circuit in which the court remarks that: "filing a complaint with the EEOC is a protected activity." See Ray v. Henderson, 217 F.3d 1234 at n. 3 (9th Cir. 2000). To repeat, Title VII defines an "unlawful employment practice" in terms of discrimination on the grounds of "race, color, religion, sex or national origin." 42 U.S.C. § 2000e-2 (a)(1) (1982). In the Ray case, the plaintiff alleged retaliation for complaints about the alleged harassment of female employees, an unlawful employment practice that is cognizable under Title VII. Plaintiff in the instant action fails to describe his claims in terms of an unlawful employment practice that is recognized under Title VII.
Hostile Work Environment Claim
In order to state a hostile work environment claim pursuant to Title VII, plaintiff must allege that he is a member of a protected class and that he "was subjected to the hostility because of . . . membership in a protected class." Brennan v. Metropolitan Opera Co., 192 F.3d 310, 318 (2d Cir. 1999); See also Raniola v. Bratton, 243 F.3d 610, 617 (2d Cir. 2001) ("Under Title VII, a hostile work environment is one form of disparate treatment on the basis of `race, color, religion, sex, or national origin'") (quoting 42 U.S.C. § 2000e-2 (a)(1)); Das v. Our Lady of Mercy Medical Ctr., 2002 WL 826877, at *10 (S.D.N.Y. Apr. 30, 2002) ("Title VII does not make employers liable for being mean or petty; it makes them liable for discriminating [against people] . . . on account of their being a member of a protected class.") (citing Ticali v. Roman Catholic Diocese of Brooklyn, 41 F. Supp.2d 249, 263 (E.D.N.Y. 1999). Again, plaintiff fails to properly state a claim under Title VII insofar as he fails to allege that he is a member of a protected class pursuant to the statute.
CONCLUSION
For the foregoing reasons, defendant's motion to dismiss is GRANTED.