Opinion
No. 99 Civ. 0196 (BSJ).
May 8, 2001
Order and Opinion
INTRODUCTION
Pro se Plaintiff, Martin Stoner ("Stoner"), brings this action against The New York City Ballet Company ("Ballet") pursuant to Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. § 2000eet seq., the New York State Human Rights law ("NYHRL"), N.Y. Exec. Law 290 et seq., and the Administrative Code of the City of New York ("NYCHRL"), §§ 8-101 et seq., alleging employment discrimination in that he was retaliated against by the Ballet during 1998 and 1999 because of his alleged protected conduct. Currently, before this Court is Defendant's motion for summary judgment, Plaintiff's cross motion for summary judgment, motion to amend the Complaint, and Rule 56(f) motion. For the reasons set forth below, Defendant's motion for summary judgment is granted in part and denied in part, Plaintiff's motion to amend the Complaint is granted in part and denied in part, and Plaintiff's cross motion for summary judgment and Rule 56(f) motion are denied.
The analysis used in considering employment discrimination claims brought under the New York State Human Rights Law and the New York City Administrative Code is the same as it is in Title VII claims. See Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n. 1 (2d Cir. 2000) (citingLeopold v. Baccarat Inc., 174 F.3d 261, 264 n. 1 (2d Cir. 1999); Landwehr v. Grey Adver. Inc., 211 A.D.2d 583, 622 N.Y.S.2d 17, 18 (1st Dep't 1995)).
FACTS
Stoner, a white male, has been employed as a violinist with the Ballet's orchestra since 1976. Complaint ("Compl.") ¶ 9. Although he has never been a basic or permanent member of the orchestra, since 1985, he has been a rotator. Rotators are replacement musicians who are the first musicians to be called in when a basic orchestra member is absent. Affidavit of Arnold Goldberg ("Goldberg Aff.") ¶ 3. According to Stoner, during the 1998-1999 Winter season, he played in approximately "95% of the required performances" which is more than some of the basic orchestra members of the violin section played. Affidavit in Opposition to Defendant's Motion for Summary Judgment ("Stoner Aff.") ¶ 67.
This is required by the collective bargaining agreement with the Associated Musicians of Greater New York, Local 802 which governs the employment of orchestra musicians.
The Ballet first recognized rotators in 1985. From approximately 1980, Stoner was in a group of male and female substitute musicians known as "necessaries." Working under this designation and before the designation of "rotators" was assigned, the "necessaries" sought, among other things, health benefits and entry into the basic orchestra without audition. In particular, Stoner has fought continuously, but unsuccessfully, for the right to automatic entry to the orchestra without audition for rotation players. Deposition of Martin Stoner at 113 (attached to Affidavit of James M. Beach as Ex. G); 134-35 (attached to Affidavit of Kathleen M. McKenna ("McKenna Aff.") as Ex. B).
The Collective Bargaining Agreement
In 1983, the Ballet and the Associated Musicians of Greater New York, Local 802, American Federation of Musicians, AFL-CIO ("Union") adopted a procedure into their collective bargaining agreement to govern the process by which musicians would attain entry into a permanent opening in the basic orchestra. Goldberg Aff. ¶ 5. The procedure, in pertinent part, provides for a joint management-musicians Audition Committee ("Committee") which
Stoner states that this procedure changed the past practice of automatic entry for senior substitutes based on their service and work record. Stoner Aff. ¶ 8.
shall be convened as soon as possible after a permanent opening in the orchestra exists to determine who shall fill the opening. The Committee shall consist of five (5) members of the orchestra and management representatives designated by the [Ballet].
. . Each Committee member from the orchestra shall have one (1) vote, and management shall have five (5) votes regardless of the number of people designated by the [Ballet] to serve on the Committee.
The orchestra members of the Committee are determined according to the section in which the opening exists, i.e. for the first or second Violin section, the orchestra members of the Committee would consist of five members of the string section. 1994-1995 Collective Bargaining Agreement ("CBA") at 35-37 (attached McKenna Aff. as Ex. A). The management representative to the Committee has always been the Music Director, who, as of 1990, is Gordon Boelzner ("Boelzner"). Affidavit of Gordon Boelzner ¶ 1.
There is no dispute that these procedures were adopted in the 1983 Collective Bargaining Agreement and continue to the present. See McKenna Aff. ¶ 9; Goldberg Aff. ¶ 5.
The Committee has several options available to it to fill a permanent position. These options, which the Committee "shall attempt to satisfy in the following order of preference include:
(1) to appoint a player from the orchestra or from among the players who have substituted for orchestra members on a regular basis without audition, on the basis of personal knowledge; (2) to appoint a player recommended to it, but only after a personal audition before the Committee; (3) to appoint a player chosen through open auditions.
Eight votes are required for appointments under options one or two. If there are insufficient votes to appoint an applicant to the basic orchestra from options one and two, the Committee must hold an open audition. CBA at 40-42.
It is undisputed that since this selection procedure was adopted, open auditions have been used to fill every permanent violin opening. Although, since 1984, there have been eight such auditions to fill twelve openings in the violin section, Stoner has auditioned only once, in 1996, but was not selected. In connection with the 1992 audition for assistant concert master, Stoner did not seek to audition but rather protested in a letter to Arnold Goldberg, the Ballet's Personnel Manager, that rotation players should be given direct entry to the orchestra. Goldberg Aff. ¶¶ 10-15.
In December, 1998, the Ballet conducted auditions to fill five openings in the violin section of the basic orchestra ("the December 1998 auditions"). All of the violin rotators were invited to audition. Although he had indicated that he would audition, Stoner did not audition. The Committee was only able to agree on four musicians to fill the openings. Accordingly, on February 19, 1999, the Committee held another audition to fill the fifth position. Again, Stoner was invited to audition. Instead, he moved this Court to enjoin the audition based upon the instant action which he had filed pro se on January 11, 1999. After this Court denied his application, Stoner did not audition and was not selected for the position. Goldberg Aff. ¶¶ 19-20.
The Instant Complaint
Essentially, Stoner claims in this action that the Ballet retaliated against him in violation Title VII "by failing to promote [him] to a job position that the Ballet had previously promised to him" because he had "testified in a Federal Court civil rights proceeding against [the Ballet]." Compl. ¶ 2. Specifically, he claims that on June 2 and September 24, 1997, he was deposed in connection with Pray v. The New York City Ballet, 96 Civ. 5723 (RLC) ("Pray"), a sexual harassment lawsuit initiated by three violists against the Ballet. In that suit the violists alleged that they had been subjected to a hostile work environment by Laurance Fader ("Fader"), a fellow musician, who was also the head of the Union negotiating committee. Stoner testified against Fader and Jack Katz ("Katz"), another musician who was also the Chairman of the Audition Committee. According to Stoner, his testimony was damaging to the Ballet. And, Pray's attorney said that Stoner's testimony was "pivotal" in demonstrating gender based harassment at the Ballet. Id. ¶¶ 10-12.
Stoner asserts that after this testimony, the Ballet conducted the December 1998 auditions and hired four new permanent violinists instead of hiring him. He claims that these auditions were unfair because he was the only potential candidate who had testified against Fader and Katz in a sexual harassment lawsuit. In addition, he was the only candidate that had previously accused Katz of harassment. Id. ¶¶ 14-15.
Stoner also contends that on or about January 1, 1998, the Ballet "passed [him] over" and hired a subordinate player for a temporary opening in the basic orchestra which caused him loss of work and emotional distress. Finally, Stoner alleges that on or about December 23, 1998, the Ballet hired and seated a subordinate player ahead of Stoner to fill a temporary opening for the New York season which also caused him loss of wages and emotional harm. Id. ¶¶ 13; 16.
DISCUSSION
Defendant's Motion for Summary Judgment and Plaintiff's Cross-Motion for Summary Judgment
Defendant moved for summary judgment pursuant to Federal Rule of Civil Procedure 56 to dismiss Plaintiff's Complaint on the grounds that there are no genuine issues as to any material fact. Plaintiff filed a cross-motion for summary judgment seeking, among other things, "a declaratory judgment setting forth that [he] shall be appointed to the next permanent opening in the Basic Orchestra." See Notice of Plaintiff's Cross-Motion for Summary Judgment [sic] at 2.
Title VII prohibits an employer from discriminating against an employee who takes action in opposition to an unlawful employment practice. See 42 U.S.C.S 2000e-3(a). These retaliation claims are analyzed under the familiar three-part burden-shifting framework first set forth inMcDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). See Gallagher v. Delaney, 139 F.3d 338, 349 (2d Cir. 1998); Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir. 1995). On a motion for summary judgment, the plaintiff must first establish a prima facie case of retaliation. Gallagher, 139 F.3d at 349. If the plaintiff satisfies this burden, the defendant must articulate evidence which establishes a legitimate, non-retaliatory basis for its actions. Id. If the defendant accomplishes this, the plaintiff must demonstrate that there is sufficient potential proof that the defendant's proffered legitimate, non-retaliatory reason was merely a pretext for the impermissible retaliation. Id.
In order to make out a prima facie case of retaliation, the plaintiff must establish: "(1) his participation in a protected activity known to the defendant; (2) an employment action disadvantaging the plaintiff; and (3) a causal connection between the protected activity and the adverse employment action." Id. Defendant argues that Stoner fails to satisfy the elements of a prima facie case. This Court finds that Stoner has failed to establish a prima facie case for his failure to promote claim. However, this Court finds that Stoner has established triable issues for the other two claims in the Complaint.
For purposes of the motion, the Ballet assumed as does this Court that Stoner engaged in protected activity when he testified in the Pray litigation. And, although it is undisputed that Boelzner, the Ballet's lone representative on the Audition Committee, was unaware that Stoner was deposed in the Pray litigation, see Boelzner Aff. ¶ 4; Memorandum of Law in Support of Defendant's Motion for Summary Judgment ("Def. Mem.") at 14; 17, this Court finds that certainly representatives of the Ballet knew and therefore Stoner has satisfied the minimal knowledge requirement. See Gordon v. Board of Education, 232 F.3d 111, 116 (2d Cir. 2000) (holding that in order to satisfy the knowledge requirement, the plaintiff need only demonstrate that the defendant had general corporate knowledge that the plaintiff was engaged in protected activity).
The Ballet is correct, however, that Stoner cannot demonstrate that he suffered an adverse employment action with respect to his failure to promote claim. To establish such an action through a retaliatory failure to promote claim, the plaintiff must have applied for the specific position he alleges he was denied. See Brown v. Coach Stores, 163 F.3d 706, 710 (2d Cir. 1998). It is undisputed that Stoner did not audition for the position of permanent orchestra member after the Pray litigation. He argues, however, that he was not obligated to apply for the position because the Ballet was required to appoint him to the basic orchestra without audition or in the alternative because his application would have been a futile gesture. Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment ("Pl. Mem.") at 23-26.
This Court disagrees. Stoner's contention that the Ballet was required to appoint him to the basic orchestra in 1998 without audition is without merit. Indeed, the only evidence he has presented to support this allegation is a letter dated April 23, 1981, between the Union president and the Ballet "confirming an understanding" to enter into a contractual arrangement to appoint him and other necessaries, both male and female, to the next opening without audition. Whatever the understanding in 1981, the Ballet has set forth undisputed evidence that open auditions are not only provided for in the current collective bargaining agreement, but have been used to fill every permanent violin opening since the audition procedure was adopted in the collective bargaining agreement of 1983. See Hart v. Metropolitan Opera Association Inc., 1993 WL 277200 at *3 (S.D.N.Y. 1993) (holding, in a factually similar case, that where every vacant violin position since the collective bargaining agreement went into effect has been filled by audition," the defendant's decision to hold open auditions rather than appointing the plaintiff without an audition did not "constitute age discrimination).
Moreover, Stoner's cause of action, if any, for this broken promise, arose at least by 1983 when the Ballet adopted the open audition procedure, and thus is untimely. See infra at 18-19.
Nor has Stoner produced any evidence to support futility. It is undisputed that the Ballet's audition process ensured anonymity, as the applicants played behind a screen. Goldberg Aff. ¶ 8. In addition, the Ballet, had even gone so far as to accommodate Stoner's request in 1996 — the one time he did audition — that Fader not attend the auditions. Id. ¶ 15. This Court finds there is no proof that demonstrates the Ballet's audition process was unfair to Stoner and he has not demonstrated futility. Accordingly, Stoner has not demonstrated a disadvantaging employment action and does not satisfy the second element of a prima facie case for his failure to promote claim.
Stoner claims that during at least one audition, proctors may have passed information to Audition Committee members as to who was playing.See Stoner Exhibits, Ex. 14. Stoner's claim is pure, unsupported speculation.
Finally, the Ballet asserts that Stoner has not provided any facts that demonstrate a causal connection between his protected activity and the Ballet's failure to appoint him to the basic orchestra and thus has failed to satisfy the third element of a prima facie case. Stoner alleges that he has proven a "causal connection" by demonstrating "protected activity closely followed by an adverse action" Pl. Mem. at 29-30.
Essentially, Stoner argues that although fifteen months may have elapsed between his deposition and the December 1998 auditions, these auditions were the first since his Pray deposition. He adds to this the facts that he had engaged in protected activity by filing a charge with the EEOC on August 17, 1998 and meeting with the Ballet's Employment Practices Committee on September 14, 1998 — three months before the December 1998 auditions. Compl. ¶ 4; Stoner Aff. ¶ 49.
The short answer is that the timing of these events is sufficient for aprima facie showing of causation. However, the undisputed facts that open auditions have been used to fill every permanent violin opening in the basic orchestra since 1983, and that Stoner did not audition, although invited to do so, adequately rebuts Stoner's prima facie case for failure to promote.
On the other hand, Stoner has adequately established a prima facie case in support of his allegations that the Ballet illegally discriminated against him by the hiring of temporary employees ahead of him on two occasions in January and December of 1998 which has not been rebutted. Accordingly, these acts of retaliation withstand summary judgment. In sum, this Court grants in part and denies in part Defendant's motion for summary judgment and denies Plaintiff's cross-motion for summary judgment.
Plaintiff's Motion to Amend his Complaint
On June 23, 2000, after the Defendant had filed its motion for summary judgment, Stoner moved to amend his complaint pursuant to Rule 15. The Proposed Amended Complaint essentially seeks to add two new sets of allegations of retaliatory conduct on the part of the Ballet. The first group occurred between 1984 and December 1997 and were allegedly precipitated by protected activity which Stoner claims he began to engage in on January 1, 1980. The second group occurred after the filing of the original Complaint on January 11, 1999.
Stoner had written to the Court on April 21, 1999 advising the Court that he intended to move to amend his Complaint and stated he would prepare an amended complaint and serve all parties when he had time.
Stoner's Proposed Amended Complaint alleges that he had been engaged in protected activity since at least "January 1, 1980 when he joined a group of women employees of the Ballet . . . to seek protection from discriminatory practices at the New York City Ballet." Proposed Amended Complaint ¶ 12 (emphasis added). The other allegations relating to this claim are that "[o]n or about May 1, 1981, plaintiff filed a complaint with the National Labor Relations Board along with a group of six women" and that "[o]n or about January 1, 1984, plaintiff and the same group of women filed a second complaint with the National Labor Relations Board." Id. ¶¶ 16; 17.
In addition, in his Memorandum of Law in Opposition to the Defendant's Motion for Summary Judgment he states: "Plaintiff was engaged in a protected activity for many years prior to his participation in the Pray matter by assisting a group of women who were not promoted into the basic orchestra and were denied equal opportunity." Pl. Mem at 16-17. In his accompanying affidavit, he reasserts that he and six women filed charges at the NLRB in June of 1981 against the Ballet, his own union and others because the Ballet and the union allegedly had canceled an agreement which had provided for the "appointment me [sic] and others, including six women, `to the next vacant position without audition.'" Stoner Aff. ¶¶ 5-7 (quoting Exhibits of Martin Stoner in Opposition to Defendant's Motion for Summary Judgment ("Stoner Exhibits") Ex. 1).
This claim appears to be based upon the "promise" contained in the April 23. 1981 letter.
In addition, Stoner asserts that he and the six women filed charges a second time after the audition procedure was added to the 1983 Collective Bargaining Agreement because "the audition procedure denied us the promised entry into the basic orchestra." Stoner Aff. ¶ 10. He has also attached to these papers a one page Memorandum of Agreement on Local 802 stationery, which he characterizes as a settlement of the NLRB charges between the Union and himself and the six women. There is nothing in this document from which it may be inferred that the charges related to anything other than a dispute over whether the "Rotation Players" would obtain admission to the basic orchestra without audition. The agreement makes no reference to women or to any claims of discriminatory employment practices relating to women or any other protected class. See Stoner Exhibits, Ex. 5.
The one reference to Stoner in the Memorandum involves a grievance relating to his entitlement to perform at Saratoga. See Stoner Exhibits, Ex. 5.
Moreover, Stoner also attached three letters written in 1990, 1994 and 1996. In two of the letters he complained about the audition process and its unfairness to all rotation players. There is not a single reference to gender discrimination. See Stoner Exhibits, Exs. 10; 14. As a matter of fact, in the letter of January 4, 1994 to the Executive Board of Local 802 he states: "I would like to ask . . . if the management of the New York City Ballet is discriminating against me for my union activity."See Stoner Exhibits, Ex. 12 (emphasis added). In sum, Stoner's own allegations and the documents he relies upon do not support his claim that the NLRB charges related to gender based discrimination. Nonetheless, for purposes of deciding Stoner's motion to amend his Complaint, this Court will assume that the NLRB charges were protected activity.
Turning to the first set of new allegations in the Proposed Amended Complaint — Stoner alleges that the Ballet retaliated against him by failing to promote him to the basic orchestra in 1984; November, 1985; November, 1990; February, 1992; November, 1992; and February, 1996 and by failing to investigate and to take remedial action regarding his complaints that Fader harassed him in January, 1985; January, 1988; January, 1993; May and June, 1997; and December 1997. See Proposed Amended Complaint ¶¶ 19-21; 26-28; 32.
Typical of these claims is that "[o]n January 2, 1988, plaintiff wrote to General manager, Patricia Turk, complaining that Fader's behavior during a performance was unprofessional, inappropriate, and distracting. Ms. Turk did not respond to plaintiff's letter." Proposed Amended Complaint ¶ 20.
Under Title VII, a claimant must file a discrimination claim with the EEOC within 180 days of the alleged unlawful employment action or, if the claimant has already filed the charge with a state or local equal employment agency, within 300 days of the alleged discriminatory action."Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996). This statutory requirement is analogous to a statute of limitations. Id. Thus, a charge that is filed after the time frame will be time barred.Id.
Stoner filed his EEOC claim on August 17, 1998. Since he did not file a charge with a state or local equal employment agency, any alleged unlawful employment actions that occurred 180 days prior to the filing — that is, on or before February 5, 1998 — are time barred. Since all of the new failure to promote claims and failure to take remedial action claims pre-date February 5, 1998, they would be time barred and it would be futile to permit Stoner to add them. Apparently recognizing his tardiness in raising these otherwise time barred claims, Stoner asserts that the Ballet's pre February 5, 1998 conduct constitutes a "continuing violation."
This Court notes that Stoner does not specifically allege a continuing violation in the Proposed Amended Complaint, but does so in his attached affidavit in support of his motion to amend.
As a preliminary matter, it is well settled that the continuing violation doctrine permits courts to apply exceptions to the Title VII limitations period. When a plaintiff files a timely EEOC charge as to any incident of discrimination in furtherance of an ongoing policy of discrimination, all claims of acts of discrimination under that policy will be timely even if they would be untimely standing alone. Van Zant, 80 F.3d 708; Cook v. Pan Am. World Airways. Inc., 771 F.2d 635, 646 (2d Cir. 1985) cert. denied, 474 U.S. 1109 (1986). However, "`[m]ultiple incidents of discrimination, even similar ones, that are not the result of a discriminatory policy or mechanism do not amount to a continuing violation.'" Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998) (quoting Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993)).
Accepting all of Stoner's allegations as true, this Court is unable to construe an ongoing policy or mechanism of discrimination. It is undisputed that the Ballet's audition procedure has been provided for in the collective bargaining agreement between the Ballet and the Union since 1983. This is not a Ballet policy or mechanism. Moreover, this Court also finds that Stoner's allegations that the Ballet's failure to take remedial action against Fader for his alleged retaliatory conduct against Stoner on approximately 6 occasions over 12 years does not rise to the level of a policy or mechanism.
Even assuming that the audition procedure was a Ballet "policy or mechanism," it is clear that Stoner's Proposed Amended Complaint would still be futile because Stoner was on notice of this alleged discriminatory policy no later than the mid 1980's and never filed a complaint. See Van Zant, 80 F.3d at 713; Dodson v. The New York Times Co., 1998 WL 702277 at * 3 (S.D.N Y 1998) (noting that whether the alleged discriminatory acts "have the degree of permanence which should trigger an employee's awareness 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" is an important factor in attempting to identify the presence of a continuing violation) (quotingBerry v. Board of Supervisors of Louisiana State University, 715 F.2d 971 (5th Cir. 1983), cert. denied, 479 U.S. 868 (1986)). Indeed, the collective bargaining agreement went into effect in 1983. Thus, Stoner's failure to promote claim arose the first time the Ballet conducted open auditions for the violin section instead of promoting him without audition — in 1984.
While it is clear that pro see plaintiffs generally should be afforded the opportunity to amend their complaints, See Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991), this Court, finds that it would be futile for Stoner to do so with respect to these allegations because they fail to sufficiently allege a continuing violation and are time barred.See Day v. Armstrong, 2000 WL 1775515 at *2 (2d Cir. 2000)
Stoner's continuing violation argument also fails for another independent reason. In order to set forth a continuing violation claim, "[p]laintiff must clearly assert the continuing violation in both the EEOC charge and in the complaint." Carrasco v. New York City Off-Track Betting Corp., 858 F. Supp. 28, 31 (S.D.N.Y. 1994) (citing Miller v. Int'l Tel. Tel. Corp., 755 F.2d 20, 25 (2d Cir. 1985)). This Stoner has not done. While he sets forth alleged incidents of discrimination in his EEOC charge, he fails to allege in the EEOC charge that these incidents occurred in furtherance of an ongoing policy of discrimination. See EEOC Complaint (attached as Ex. 5 to Reply Affidavit in Support of Plaintiff's Motion for Summary Judgment). Stoner utterly fails to show any connection between the Ballet's treatment of him and any policy or practice. Accordingly, Stoner's motion to amend his Complaint to add these continuing violation claims is denied.
For instance, Stoner claims that the Ballet retaliated against him for his testimony in the Pray litigation by seating a subordinate employee ahead of him and not taking corrective action against Fader for harassing him. See EEOC Complaint.
The fact that the "continuing action" box of the EEOC charge was checked by Stoner does not change this result. Nor does the fact that Stoner alleges that the discrimination occurred from 1985 through July 7, 1998. See Carrasco, 858 F. Supp. at 31.
This Court now turns to the second set of allegations of retaliatory conduct — the conduct which allegedly occurred after Stoner filed the original Complaint. Stoner's Affidavit in support of his motion to amend his Complaint states that:
[s]ince the filing of my complaint on January 11, 1999 there have been new incidents of retaliation and harassment they include:
(1) the Ballet created a new violin Rotation Player shortly after plaintiff lost his TRO on February 19, 1999 which plaintiff alleges was intended to impact adversely on plaintiff's work;
(2) the Ballet allowed a large number of members of the violin section to play more than six performances per week during the week ending February 28, 1999 which caused me to lose work: I played only three performances, or half the number of performances he usually plays. I never was offered so few performances in a week in over twenty years as during the week ending February 28, 1999; [and]
(3) there was a reoccurrence of harassment by Mr. Fader of Susan Pray, the lead plaintiff in the Pray matter [in the Spring of 1999] . .
While the Ballet claims that this allegation is moot because it recognized that it erred in creating a new rotator and shortly thereafter revoked the new rotator's status, this Court finds that Stoner should be allowed to allege it in his Complaint as the Ballet's actions may have caused Stoner to miss performances he might otherwise have been asked to perform.
Proposed Amended Complaint ¶¶ 49; 50; 52.
This Court will allow Stoner to amend his Complaint to add the first two allegations as they can be construed as reasonably related to his EEOC Complaint. See Butts v. City of New York Dept. of Hous. Preservation and Dev., 990 F.2d 1397, 1402 (2d Cir. 1993)
As for his third allegation, it is clear that Stoner cannot assert Fader's alleged harassment of Ms. Pray as retaliatory conduct on the part of the Ballet towards him. Accordingly, this Court will not permit Stoner leave to add this allegation.
Stoner's remaining (non retaliatory based) amendments are also without merit. First, he wishes to assert a cause of action against the Ballet under 42 U.S.C. § 1985 (2), (3) because it engaged in a conspiracy with "its officers, and its attorneys to deprive him of equal protection of, and equal privileges and immunities under the Fourteenth Amendments [sic]." Pl. Mem at 34. Second, he alleges that the Ballet violated 42 U.S.C. § 1983. Third, he wishes to add a claim under 42 U.S.C. § 1981. And fourth, he wants to add Local 802, American Federation of Musicians as a party. Each of these amendments would be futile.
In order to assert an action under 1985(3) Stoner must allege: "(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of equal protection of the laws, or of equal privileges and immunities under the laws; (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right of a citizen of the United States." Mian v. Donaldson, Lufkin Jenrette Secs. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993) (citing United Bhd. of Carpenters, Local 610 v. Scott, 463 U.S. 825, 828-29 (1983)). In addition, he must establish that the conspiracy was motivated by "`some racial or perhaps otherwise class-based, invidious discriminatory animus behind the conspirators' action.'" Id. at 1088 (quoting United Bhd. of Carpenters, Local 610, 463 U.S. at 829). As the Ballet correctly notes, Stoner, a white male did not demonstrate that there was a conspiracy to deprive him of any rights because of his race as required under 42 U.S.C. § 1985.
In addition, he cannot successfully state a claim for relief under 42 U.S.C. § 1983 since the Ballet is not a state actor. Nor can he state a claim for violation of § 1981. In order to establish a § 1981 claim, Stoner must allege: (1) that he is a member of a racial minority; (2) that the Ballet intended to discriminate against him on the basis of race; and (3) "that the discrimination concerned one or more of the activities enumerated in the statute (i.e., make and enforce contracts, sue be sued, give evidence, etc.)."Mian, 7 F.3d at 1087. As Stoner is white, he has not alleged any claims of racial bias.
Section 1981, provides in pertinent part, that all persons "shall have the same right . . . to make and enforce contracts . . . and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens . . ." 42 U.S.C. § 5 1981(a).
Finally, Stoner's request to add Local 802 appears to be based upon his belief that it is a necessary party if he is to obtain the relief he seeks, an injunction "[d]eclaring that plaintiff must be hired for the next vacant permanent position without audition, as previously promised." Proposed Amended Complaint ¶ 64(c). Since plaintiffs' failure to promote claim has not survived summary judgment it is not necessary to decide whether the Union should be brought in to protects its interests under the collective bargaining agreement.
Plaintiff's Rule 56(f) Motion
Stoner insists that Magistrate Judge Dolinger prevented him from obtaining full and adequate discovery prior to the "premature" summary judgment motions. Affidavit in Support of Plaintiff's Rule 56(f) Motion ("Pl. Aff.") at 4-5; Plaintiff's Reply Memorandum in Opposition to Defendant's Motion for Summary Judgment ("Pl. Reply Mem.") at 3, 8. Thus, he asserts, among other things, that he was unable to establish that he was engaged in civil rights activity prior to his deposition in the Pray action, which he claims is relevant to make a prima facie case. Pl. Reply Mem. at 6; Pl. Aff. at 4-5. Accordingly, he requests that this Court deny the Ballet's motion for summary judgment as premature and permit him to take reasonable discovery. Pl. Aff. at 4-5; Pl. Reply Mem. at 6.
This Court has reviewed all of Stoner's proposed allegations of pre 1998 activity and has assumed for purposes of the summary judgment motion that Stoner was engaged in protected activity since at least 1981. Additional discovery on his civil rights activity would not change the result of the summary judgment motions.
In addition, for purposes of Plaintiff's motion to amend the Complaint, this Court, even though far from convinced on the record Plaintiff himself has provided, again has assumed that Stoner's NLRB charges in 1981 and 1984 were protected activity "to right the wrong of gender-based discrimination at the Ballet." Pl. Reply Mem. at 5. This assumption, however, does not change this Court's determination that it would be futile to permit Plaintiff to amend his Complaint with the pre 1998 allegations. In other words, even if Plaintiff could obtain evidence through additional discovery that he was engaged in protected activity beginning as early as 1980, it would be irrelevant to this court's ruling that the retaliatory incidents of which he complains are time barred.
CONCLUSION
For the reasons "set forth above, Defendant' motion for summary judgment is GRANTED in part and DENIED in part. Plaintiff's cross motion for summary judgment and Rule 56(f) motion are DENIED. Plaintiff's motion to amend' the Complaint is GRANTED in part and DENIED in part. The parties are ORDERED to appear in Courtroom 1105 on Friday, May 11, 2001 at 4:00 p.m. for a status conference to determine the further conduct of this case.
SO ORDERED:
DATED: New York, New York May 7, 2001.