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dismissing ADEA claims against individual defendants
Summary of this case from Altman v. New York City Department of EducationOpinion
01 Civ. 5844 (SHS)(FM)
June 18, 2002
REPORT AND RECOMMENDATION
I. Introduction
On June 27, 2001, Plaintiff Maude McCalman ("McCalman") commenced this employment discrimination action by filing a complaint in which she alleges that the Defendants terminated her employment, failed to promote her, and engaged in other discriminatory conduct in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. ("ADEA"). (Compl. at 1, 3).
Although McCalman fails to indicate explicitly that she is invoking the protections of the ADEA, (see Compl. at 1; Am. Compl. at 1), her amended complaint states that the Defendants discriminated against her on the basis of her age (see Am. Compl. at 3). McCalman's pro se amended complaint should therefore be liberally construed to allege a claim under the ADEA. (See p. 3, infra).
On January 3, 2002, I recommended that Ms. McCalman's complaint be dismissed because there was no record of service or attempted service. (Docket No. 4).
On March 14, 2002, Your Honor adopted my Report and Recommendation with respect to all of the Defendants except Partners in Care, which had been served with the complaint on January 30, 2002. (See Docket Nos. 7, 8). Ms. McCalman subsequently filed an amended complaint on or about March 22, 2002, in which she names as additional defendants Mary Beth Eldridge, Marki Flannery, James MacLeary, Jay Connolly, and Joan Marren, who are apparently employees and supervisors at Partners in Care. (See Docket No. 10). The Defendants have now moved to dismiss the claims against these individually-named defendants pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons set forth below, the motion should be granted.
Prior to the March 14th Order, on or about February 7, 2002, Defendant Partners in Care moved to dismiss the complaint pursuant to Fed.R.Civ.P. 4(m) and 12(b)(5) for untimely service. On April 25, 2002, I recommended to Your Honor that the Defendants' motion be denied because the failure to effect timely service was the fault of the United States Marshals Service, not McCalman. (See Docket No. 17). Although that Report and Recommendation has not yet been accepted or rejected, I have addressed the Defendants' pending motion to dismiss the amended complaint as against the individual defendants at this time in an effort to avoid any further delay.
II. Discussion A. Standard of Review
In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, the Court must accept as true all factual allegations made in the complaint and draw all reasonable inferences in favor of the plaintiff. See Leatherman v. Tarrant County Narcotics Intelligence Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 1161, 122 L.Ed.2d 517 (1993); Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999)7; Bolt Elec., Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir. 1995). The court may grant the motion only when "it appears beyond doubt . . . that the plaintiff can prove no set of facts [in support of his claim] which would entitle him to relief." Sec. Investor Prot. Corp. v. BDO Seidman, LLP, 222 F.3d 63, 68 (2d Cir. 2000) (quoting Jaghory v. New York State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997)); Walker v. City of New York, 974 F.2d 293, 298 (2d Cir. 1992).Moreover, when a plaintiff is proceeding pro se, as here, the complaint must be held "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972) (per curiam).
Accordingly, the allegations must be read "liberally" and interpreted "to raise the strongest arguments that they suggest." Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). This principle applies with particular force in cases such as this in which a pro se plaintiff alleges violations of her civil rights. See, e.g., Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir. 2001); Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993); Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991).
B. Employment Discrimination Claims
Title VII makes it an unlawful employment practice for an "employer" to discharge an employee because of that "individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2. The term "employer," is defined to include only persons who have fifteen or more employees. Id. § 2000e(b). An individual — even if he is a supervisor — does not meet this definition and is not considered his employer's agent for purposes of liability under Title VII. See, e.g., Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000); Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995). Additionally, although the Second Circuit has not yet addressed the issue, the prevailing view among district courts in this circuit is that an individual defendant may not be held personally liable under the ADEA. See Grasso v. Forrest Edward Employment Servs., No. 01 Civ. 3236, 2002 WL 989528, at *7 (S.D.N.Y. May 15, 2002) (Hellerstein, J.); Bliss v. Rochester City Sch. Dist., 196 F. Supp.2d 314, 338-39 (W.D.N.Y. 2002) (Larimer, J.); Anyan v. N.Y. Life Ins. Co., 192 F. Supp.2d 228, 239 n. 3 (S.D.N.Y. 2002) (Chin, J.); Cooper v. Morgenthau, No. 99 Civ. 11946, 2001 WL 868003, at *4 (S.D.N.Y. July 31, 2001) (Pauley, J.); Langlie v. Binghamton Univ. Pub. Safety Dep't, No. 98 Civ. 1930, 2001 WL 286405, at *3 (N.D.N.Y. Mar. 13, 2001) (Kahn, J.); Pemrick v. Stracher, 67 F. Supp.2d 149, 170 (E.D.N.Y. 1999) (Seybert, J.). Accordingly, McCalman's Title VII and ADEA claims against individual defendants Eldridge, Flannery, MacLeary, Connolly, and Marren should be dismissed as a matter of law, leaving only Partners in Care as a defendant in this action.
IV. Conclusion
For the reasons set forth above, the Defendants' motion to dismiss this action as against the individual defendants named in the amended complaint should be granted.