Summary
refusing to dismiss claims of disparate treatment because of pleaded facts alleging unequal treatment of female employee as compared to her male colleagues
Summary of this case from Thomas v. Westchester County Health Care Corp.Opinion
No: 01 Civ. 9447 (JGK)
July 16, 2002
OPINION AND ORDER
The plaintiff, Nancy Coffey, brought this action alleging sex and age discrimination, including a hostile work environment and two retaliatory discharges in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. ("ADEA"), and the New York State Human Right Law, N.Y. Executive Law § 296 ("NYHRL"). The defendant moves pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the Amended Complaint in its entirety.
I.
On a motion to dismiss, the allegations in the Amended Complaint are accepted as true. See Grandon v. Merrill Lynch Co., 147 F.3d 184, 188 (2d Cir. 1998). In deciding a motion to dismiss, all reasonable inferences must be drawn in the plaintiff's favor. See Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995); Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989). The Court's function on a motion to dismiss is "not to weigh the evidence that might be presented at trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). Therefore, the defendant's present motion should only be granted if it appears that the plaintiff can prove no set of facts in support of her claim that would entitle her to relief. See Swierkiewicz v. Sorema, N.A., 122 S.Ct. 992, 998 (2002); Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Grandon, 147 F.3d at 188; Goldman, 754 F.2d at 1065.
In deciding the motion, the Court may consider documents that are referenced in the Amended Complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiff's possession or the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002); See also Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir. 1991); I. Meyer Pincus Assoc., P.C. v. Oppenheimer Co., Inc., 936 F.2d 759, 762 (2d Cir. 1991); Skeete v. IVF, Inc., 972 F. Supp. 206, 208 (S.D.N.Y. 1997) Vtech Holdings Ltd. v. Lucent Techs., Inc., 172 F. Supp.2d 435, 437 (S.D.N.Y. 2001).
II.
The Amended Complaint sets forth the following facts, which are accepted as true for the purposes of this motion. The plaintiff was an employee of the defendant, a firm that provides real estate services, for two distinct time periods. The first period began in September 1987 and ended in November 1990. (Am. Compl. ¶ 4.) The second period of employment began almost eight years later, in July 1998 when the plaintiff rejoined the firm, and ended in June 2000 when, the plaintiff contends, she was constructively terminated. (Id.) The plaintiff acted as a real estate broker during both of these periods. The plaintiff's compensation schedule, which was incorporated by reference in her employment contract, contained an arbitration clause.
The plaintiff claims that she was treated differently from younger men at the firm, allegedly because of her age and sex. This treatment included "different standards of conduct, unequal pay, unequal work assignments, unequal benefits, unequal opportunities, unequal promotion, unequal support staff availability and unequal disciplinary measures." (Id. ¶ 10.) The income of a real estate broker at the defendant's firm depends on commissions. A broker's ability to earn commissions can depend on becoming a member of some of the informal teams at the firm, networking at social events, and whether one is provided with adequate support staff. (Id. ¶ 35.) Because of her age and sex, the plaintiff was allegedly excluded from a number of teams, and social events, and was denied equal access to support staff. The management also allegedly failed to enforce its internal policies regarding client allocation between brokers in an equal and non-discriminatory manner. (Id. ¶¶ 31-34.)
The plaintiff raised a number of complaints to management about her treatment at the firm beginning in at least September 1999. (Id. ¶ 23.) It is unclear from the plaintiff's papers whether she complained at this time that her treatment was due specifically to her age and sex. On February 4, 2000 the plaintiff complained to the human resources department about sex and age discrimination. (Id. ¶ 81.)
III.
The defendant argues that many, if not all, of the plaintiff's claims are time barred.
A.
Under Title VII, a New York plaintiff must file an administrative claim within 300 days of the offensive conduct. Weeks v. New York State (Div. of Parole), 273 F.3d 76 (2d Cir. 2001); see also 42 U.S.C. § 2000e-5 (e)(1); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996). In Nat'l R.R. Passenger Corp. v. Moroan, 122 S.Ct. 2061 (2002), the Supreme Court held that this provision creates a statute of limitations that begins to run when each discrete and actionable discriminatory or retaliatory act occurs, including each unlawful termination, denial of transfer, failure or refusal to hire or other related acts that discriminate against an individual with respect to her compensation, terms, conditions or privileges of employment because of her sex. Id. at 2070-73. Contrary to the prior rule in this Circuit, the statute of limitations thus bars relief for such acts even if they are related to other actionable conduct that is not time-barred and might otherwise be considered part of a continuing violation. Id.; but cf. id. at 2072 (Title VII statute of limitations is still subject to equitable doctrines such as tolling or estoppel).
However, the Supreme Court also held that hostile work environment claims are of a different kind, in part because they make up part of a larger employment practice the very nature of which involves repeated conduct and the single instances of which are not always independently actionable. Id. at 2073-74. A hostile work environment claim is comprised of a series of separate acts that collectively constitute one unlawful employment practice, and a Title VII claim alleging a hostile work environment is timely if raised within a 300-day period from any act contributing to the claim. A timely hostile work environment claim can challenge all conduct that is part of that same employment practice, even if some of the conduct occurred more than 300 days before the filing of the EEOC complaint and even if the acts themselves were separated by gaps in time. Id. at 2074-76; see also id. at 2076-77 (noting that employers still have some equitable defenses to raising challenges to conduct arising far back in time or after an unreasonable delay in filing).
In this case, the plaintiff alleges a number of discrete discriminatory and retaliatory acts spanning the two periods of her employment with the defendant. The plaintiff filed her original complaint with the EEOC on November 14, 2000. All of her Title VII claims relating to such discrete acts occurring before January 19, 2000 are therefore time-barred. At oral argument on this motion, the plaintiff also withdrew any claims relating to her first period of employment, and therefore even any hostile work environment claim relating to that period is withdrawn.
During the plaintiff's second period of employment, however, it cannot be determined as a matter of law that the plaintiff was not subjected to a hostile work environment beginning or lasting after January 19, 2000. Therefore, conduct establishing a hostile work environment during her second period of employment would not be time barred, even if it stretched back in time beyond January 19, 2000 and included discrete acts that contributed to the environment dating before January 19, 2000.
In sum, all of the plaintiff's Title VII claims alleging discrimination, retaliation and hostile work environment relating to her first period of employment are withdrawn. The defendant's motion to dismiss any claims for discrete and actionable acts of discrimination or retaliation occurring prior to January 19, 2000 is granted. The motion is denied with respect to any such discrete and actionable acts after January 19, 2000, and any hostile work environment claim arising during the second period of the plaintiff's employment.
B.
The plaintiff has also alleged violation of the ADEA. Courts in this Circuit have used the same standards for determining the timeliness of age discrimination claims raised under the ADEA as those used under Title VII. See, e.g., Flaherty v. Metromail Corp., 235 F.3d 133, 137 n. 1 (2d Cir. 2000); compare also 42 U.S.C. § 2000e-2(a), with, 29 U.S.C. § 623(a). Hence, applying the rationale in the Supreme Court's decision in Morgan to the plaintiff's ADEA claims, any discrete instances of allegedly unlawful actionable conduct occurring prior to January 19, 2000 are time-barred and must be dismissed. The defendant's motion to dismiss the hostile work environment claim relating to the second period of employment is denied, as is the defendant's motion to dismiss any claims for discrete acts of discrimination or retaliation occurring on or after January 19, 2000. As before, all ADEA claims, including claims for hostile work environment, relating to the first period of employment have been withdrawn.
C.
The statute of limitations under the NYHRL is three years from the filing of the complaint. Fern v. International Business Machines Corp., 612 N.Y.S.2d 492, 493 (App.Div. 1994). Because the Complaint was filed on October 26, 2001, any claim for discrete acts of discrimination occurring before October 26, 1998 are time-barred. In addition, the plaintiff has voluntarily withdrawn any claims relating to her first period of employment.
There is authority that the continuing violation doctrine as applied in this Circuit could be used to extend the statute of limitations under the NYHRL to acts of discrimination occurring outside the statute of limitations if they were related to instances of discrimination that occurred within the statute of limitations that were permitted by the employer to go unremedied or which were part of specific ongoing discriminatory policies or practices. See, e.g., Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998). However, given the fact that courts extended the continuing violation doctrine to the NYHRL based on an effort to interpret the NYHRL consistently with the analogous federal statutes, there is no basis to extend the continuing violation doctrine as applied to the NYHRL further than the Supreme Court has interpreted it as applied to federal law. See also Nielsen v. United Parcel Service, Inc., 610 N.Y.S.2d 844 (App.Div. 1994) (individual instances of failure to promote do not constitute a continuing violation). For the same reason, there no basis in state law to prevent application of Morgan to the timeliness of the plaintiff's claims for hostile work environment under the NYHRL.
Therefore, all claims pursuant to the NYHRL relating to the plaintiff's first period of employment are withdrawn. The defendant's motion to dismiss as time-barred all claims arising under the NYHRL prior to October 26, 1998 is granted except for any claim alleging a hostile work environment that continued after that date.
IV.
The defendant moves to dismiss the plaintiff's retaliation claims, arguing that she has not identified any protected activity or any adverse action suffered as a result of engaging in a protected activity. The elements of a claim for retaliation under Title VII and the ADEA are that (1) the plaintiff engaged in a protected activity, (2) the employer was aware of this activity, (3) the plaintiff was subject to an adverse employment action, and (4) a causal connection existed between the adverse action and the protected activity. See, e.g., McVay v. Johnson, 98 CV 4909, 1999 WL 294783, at *2 (E.D.N.Y. Mar. 24, 1999) (ADEA); Muller v. Costello, 187 F.3d 298, 311 (2d Cir. 1999) (Title VII).
In this case, the plaintiff alleges that she raised a number of complaints about her alleged disparate treatment to various managers beginning as early as September 29, 1999. (Am. Compl. ¶¶ 22-24, 81.) Although it is unclear from the Amended Complaint whether all of these complaints raised allegations of disparate treatment based on sex and age, as opposed to complaints about treatment at the workplace that are not actionable under Title VII or the ADEA, the Amended Complaint states that the plaintiff made specific allegations that she was being treated differently because of her sex and age to the defendant's human resources department on February 4, 2000. (Am. Compl. ¶ 81.) "Informal complaints [of this kind] constitute protected activity under Title VII." Bampoe v. Coach Stores, Inc., 93 F. Supp.2d 360, 372 (S.D.N.Y. 2000); see also Grant v. Hazelett Strip-Casting Corp., 880 F.2d 1564, 1569 (2d Cir. 1989) (same for ADEA).
Moreover, the plaintiff alleges that she was constructively discharged in June 2000. (Compl. ¶ 93.) A constructive termination is itself an adverse employment action. Dooner v. Keefe, Bruyette Woods, Inc., 157 F. Supp.2d 265, 283 (S.D.N.Y. 2001) ("While the plaintiff was not actually terminated, she may show that she was subject to a materially adverse change by demonstrating that her employer constructively discharged her."). Although the plaintiff does not specify what adverse actions allegedly caused her to leave the firm, her allegation of constructive termination is itself sufficient to place the defendant on notice of the nature and basis of her claim. See Swierkiewicz, 122 S.Ct. at 997 ("This Court has never indicated that the requirements for establishing a prima facie [of discrimination or retaliation] under McDonnell Douglas also apply to the pleading standard that plaintiffs must satisfy in order to survive a motion to dismiss.")
In addition, the Amended Complaint is replete with allegations that the defendant generally limited, segregated, or classified the plaintiff in ways that may have deprived her of employment opportunities or otherwise affected her status as an employee because of her sex and age. See generally 42 U.S.C. § 2000e-2(a)(2); 29 U.S.C. § 623(a). Viewing the Amended Complaint in a light most favorable to the plaintiff, as is required on this motion to dismiss, it cannot be determined as a matter of law that the defendant did not engage in any of these other potentially retaliatory actions as a result of protected activity on the part of the plaintiff.
Finally, with regard to the plaintiff's retaliation claims brought under NYHRL, which covers both sex and age discrimination, the Court of Appeals for the Second Circuit has "repeatedly noted that claims brought under New York State's Human Rights law are analytically identical to claims brought under Title VII." Torres v. Pisano, 116 F.3d 625, 629, n. 1 (2d Cir. 1997) (internal modifications omitted); see also Van Zant, 80 F.3d at 714-715 and 716, n. 6. The above analysis is thus equally applicable to the defendant's motion to dismiss the plaintiff's state law claims for retaliation.
In sum, the defendant's motion to dismiss the plaintiff's retaliation claims must be denied.
V.
The defendant next moves to dismiss the constructive discharge claim on two different grounds. First, the defendant claims that the plaintiff failed to exhaust her administrative remedies for her constructive discharge claim because she did not include the claim in her initial EEOC charge. Second, the defendant argues that the plaintiff has failed to plead sufficient facts to show a constructive discharge.
A.
While giving an aggrieved employee access to the federal courts, Title VII also "requires the employee first to submit a claim to the EEOC." Woods v. Dunlop Tire Corp., 972 F.2d 36, 39 (2d Cir. 1992); see 42 U.S.C. § 2000e-5(f)(1). A plaintiff is generally required to exhaust administrative remedies prior to beginning a federal action. See Stewart v. United States I.N.S., 762 F.2d 193, 198 (2d Cir. 1985); Butts v. City of New York Dept. of Housino Preservation and Development, 990 F.2d 1397, 1401 (2d Cir. 1993). However, claims not made to the EEOC, can be brought if they are "reasonably related" to the original EEOC charge. Id. at 1402. A claim is reasonably related when the conduct complained of would fall within the scope of the EEOC investigation that can reasonably be expected to grow out of the charge of discrimination, when the claim alleges retaliation for filing the EEOC charge, or when the plaintiff alleges further incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge. Id. at 1402-03.
The plaintiff alleges that she filed an Amended Charge with the EEOC that explicitly alleged that she was constructively terminated. (See Am. Compl. ¶ 12.) Moreover, while the EEOC files were destroyed in the September 11, 2001 tragedy, the EEOC investigator recalls receiving an Amended Charge. See Letter of Delia Hernandez dated March 11, 2002, attached as Ex. 5 to Affidavit of Meredith Fogel sworn to March 14, 2002. The plaintiff's counsel also represented at oral argument that both counsel and the plaintiff would attest to the filing of the Amended Charge. Thus, the defendant's argument must be rejected because there are more than sufficient allegations that the charge of constructive termination was made to the EEOC.
In any event, the claim of constructive discharge is reasonably related to the sex and age discrimination claims made in the plaintiff's original EEOC charge. Id. at 1402. Here the plaintiff does not allege any additional kinds of discriminatory behavior that brought about her constructive discharge. Rather, she alleges that she was constructively discharged as a result of the "age and sex discrimination and retaliatory actions taken by the Defendant . . . which she experienced during her employment with the company." (Am. Compl. ¶ 93.) The plaintiff had also been terminated before she filed her EEOC Charge. Thus, drawing all inferences in favor of the plaintiff, the source of the discrimination that led to the constructive discharge was the same discrimination that the EEOC investigated, and investigation of this constructive discharge would have fallen within the scope of the EEOC investigation that could have reasonably been expected to grow out of the charge of discrimination. Therefore, the motion to dismiss for failure to exhaust administrative remedies is denied.
B.
The defendant also claims that the plaintiff has failed to allege facts that constitute a prima facie case of constructive discharge. However, the plaintiff need not allege a prima facie case of discrimination or retaliation to survive a motion of to dismiss. See Swierkiewicz, 122 S.Ct. at 997. The plaintiff plainly set out a claim for constructive discharge. "Given the Federal Rules' simplified standard for pleading, `[a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Swierkiewicz, 122 S.Ct. at 998 (quoting Hishon v. King Spalding, 467 U.S. 69, 73, (1984)). Additionally, "[i]f a pleading fails to specify the allegations in a manner that provides sufficient notice, a defendant can move for a more definite statement under Rule 12(e) before responding. Moreover, claims lacking merit may be dealt with through summary judgment under Rule 56." Id. at 998-99. The motion to dismiss for failure to allege sufficient facts to show a constructive discharge is denied.
V.
The defendant moves to dismiss the plaintiff's age discrimination claims for failure to plead a prima facie case, and this motion is denied for the reasons discussed above. As explained above, the plaintiff need not plead a prima facie case in order to defeat a motion to dismiss, and the plaintiff has satisfied her pleading burden in this case. The plaintiff has pleaded numerous specific facts in her complaint alleging age discrimination as well as a constructive discharge in which her age was a substantial motivating factor. (See Am. Compl. ¶¶ 17-21, ,31, 38, 45-46). The motion to dismiss is therefore denied.
VI.
The final issue the defendant raises is whether any of the plaintiff's claims fall within the arbitration clause that is attached to her employment agreement.
To determine whether a particular dispute falls within the scope of an agreement's arbitration clause, a court should undertake a three-part inquiry. First, recognizing there is some range in the breadth of arbitration clauses, a court should classify the particular clause as either broad or narrow. Next, if reviewing a narrow clause, the court must determine whether the dispute is over an issue that is on its face within the purview of the clause, or over a collateral issue that is somehow connected to the main agreement that contains the arbitration clause. Where the arbitration clause is narrow, a collateral matter will generally be ruled beyond its purview. Where the arbitration clause is broad, there arises a presumption of arbitrability and arbitration of even a collateral matter will be ordered if the claim alleged implicates issues of contract construction or the parties rights and obligations under it.
Louis Dreyfus Negoce S.A. v. Blystad Shipping Trading Inc., 252 F.3d 218 (2d Cir. 2001) (internal citations and quotations omitted).
The plaintiff's arbitration clause reads as follows.
(A) If a broker has a dispute with one or more other brokers, such broker will first seek to have the dispute resolved with the assistance of the appropriate Branch Manager(s) or Regional Director(s). Every effort must be made to resolve the dispute at this level.
. . . .
(C) All disputes that cannot be resolved under (A) above will be resolved through the process of binding arbitration as described herein.
(Ex. 1 to Aff. of Louise Triano, sworn to January 10, 2002.)
The threshold question is whether the arbitration clause is narrow or broad. Broad arbitration clauses generally contain "very expansive language." Louis Dreyfus, 252 F.3d at 225. This clause, however, is directed specifically to the limited issue of disputes between brokers. This clause does not contain any of the broad language often evident in broad arbitration clauses. The Employment Agreement deals separately with the rights between the plaintiff and her employer and there is no arbitration clause that relates to those disputes. See, e.g., Employment Agreement ¶ 7. Both parties retain all of their remedies at law and in equity to enforce the terms or obligations arising out of the Employment Agreement. Id. ¶ 10.
Given that the arbitration clause is narrow, the question then becomes whether the plaintiff's claims are clearly "within the purview of the clause, or over a collateral issue." The arbitration clause relates only to disputes between brokers. The arbitration clause is located not within the terms of the employment contract itself but rather in the standard schedule of compensation for brokerage and sales personnel attached to the agreement. The Arbitration Clause does not deal with any disputes between the employee and the employer but only with disputes between brokers.
The plaintiff's claims, by contrast, are against management, not fellow brokers. The plaintiff is complaining about the actions of management, not other brokers. Hence, the plaintiff's claims are not covered by the arbitration clause, and the defendant's motion to dismiss the claims in favor of arbitration is denied.
VII.
For the reasons explained above, all claims related to the plaintiff's first period of employment are withdrawn. The defendant's motion to dismiss is granted with respect to all discrete acts of discrimination or retaliation that are allegedly actionable under federal law and that occurred prior to January 19, 2000, and all such acts that are allegedly actionable under the NYHRL that occurred prior to October 26, 2000. The defendant's motion to dismiss is denied with respect to the plaintiff's hostile work environment claims relating to the plaintiff's second period of employment. The defendant's motion to dismiss is otherwise denied.
SO ORDERED.