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OBRADOVICH v. FRB OF NEW YORK

August 30, 1983

BRANKO OBRADOVICH, Plaintiff, against FEDERAL RESERVE BANK OF NEW YORK, Defendant; BRANKO OBRADOVICH, Plaintiff, against FEDERAL RESERVE BANK OF NEW YORK, KARL JAUS AND FRED ECKHOFF, Defendants.


The opinion of the court was delivered by: WEINFELD

EDWARD WEINFELD, D.J.

Plaintiff, a former maintenance employee of the Federal Reserve Bank of New York ("Federal Reserve"), appearing pro se, commenced two separate actions in this Court. Both center on events prior to and including his discharge after eight years' employment as a painter.

 In July 1981, prior to his termination, plaintiff filed a national origin discrimination complaint with the Equal Employment Opportunity Commission ("EEOC") *fn1" against the Federal Reserve, Karl Jaus, his immediate supervisor and the foreman of the Maintenance Department, and Fred Eckhoff, the assistant chief of the Maintenance Department. The complaint charged that he was harassed and subjected to different and adverse conditions of employment because he was of Yugoslavian origin. The EEOC notified the defendants of the complaint in October 1981. On January 19, 1982 plaintiff engaged in an altercation with another employee in which each sustained injuries and required medical attention. Several days later, plaintiff was discharged, as was the other employee.

 In April 1982 plaintiff instituted his first action, naming the Federal Reserve as the sole defendant. His complaint alleged that his discharge deprived him of federal constitutional rights, and he sought reinstatement, lost wages, compensatory and punitive damages.

 On July 7, 1982, plaintiff commenced his second action, naming Jaus and Eckhoff, in addition to the Federal Reserve, as defendants, and alleging that his dismissal was an act of national origin discrimination in violation of section 706 of the Civil Rights Act of 1964 ("Title VII"). *fn2" The actions were consolidated in August 1982. Subsequently, attorneys appeared on behalf of plaintiff and filed a single, amended consolidated complaint in both actions.

 The defendants now move to dismiss the amended complaint pursuant to Fed. R. Civ. P. 12(b) (6) for failure to state a claim upon which relief may be granted. Since they submit documents outside of the pleadings in support of the motion and have filed the statement required by Local Rule 3(g), defendants seek judgment pursuant to Rule 56 as authorized by Rule 12(c).

 THE TITLE VII CLAIMS

 The first claim alleges that, during the course of plaintiff's employment, defendants committed various acts of discrimination against plaintiff based on his religion (Jewish) and national origin (Yugoslavian), in violation of Title VII, with the intent to cause him to leave the employ of the Federal Reserve and/or waive rights guaranteed to him under the Act, and that such discriminatory acts culminated in his dismissal.

 The defendants seek dismissal of this claim upon the ground that Obradovich has failed to allege specific facts to establish intentional discrimination -- in essence, that he has alleged that he was discharged because of his national origin and religion only in a conclusory fashion, which defendants urge has been held insufficient in this Circuit. *fn3" The complaint, fairly read, alleges that the defendants engaged in a course of conduct while plaintiff was in their employ that had the effect of harassing him; that such conduct included assigning plaintiff to menial and demeaning tasks not required of similarly situated employees, and subjecting him to ethnic, racial and religious slurs; that the conduct culminated in their dismissal of him; and that the harassment and dismissal were based upon plaintiff's religion and national origin. Those allegations are sufficient to meet the requirement of a "short and plain statement of the claim showing that the pleader is entitled to relief" under Fed. R. Civ. P. 8(a) (2). The Rule does not require a claimant to set forth in detail the facts upon which he bases his claim. *fn4" Instead, the Federal Rules of Civil Procedure intend that such facts will be ascertained through discovery. *fn5"

 Under his second claim Obradovich charges that the harassment and dismissal of him were acts of retaliation because of his complaints to the EEOC concerning the prejudice of his supervisor and the discrimination against him. Here, too, the allegations are sufficient to meet the requirements of Rule 8(a) (2).

 Defendants next argue that the complaint fails to allege that Jaus and Eckhoff are "employers" under Title VII or that they took part in Obradovich's dismissal, and that it therefore should be dismissed as to them. Title VII defines an employer as "a person engaged in an industry affecting commerce . . . and any agent of such person." *fn6" The statute does not define "agent"; however, courts have interpreted the term to include supervisory employees and employees who "participated in the decision making process that forms the basis of the alleged discrimination." *fn7" Obradovich alleges that the defendant Jaus is his immediate supervisor, and defendant Eckhoff is the Assistant Chief of his department, and that Jaus harassed him, and Eckhoff ignored his complaints of harassment and discrimination and allowed such conduct to continue. Those allegations adequately state a claim against Jaus and Eckhoff for the alleged harassment based on discriminatory conduct. The complaint fails, however, to allege that defendants Jaus and Eckhoff participated in the decision to fire Obradovich. *fn8" Accordingly, the claims based upon the discharge are dismissed as to Eckhoff and Jaus, with leave to replead them.

 The defendants next move to dismiss plaintiff's Title VII religious discrimination charge because he did not include such a charge in his complaint to the EEOC; rather, he alleged only a claim of national origin discrimination. However, the claims in a subsequent Title VII action are not limited to the specific EEOC charge, but take "into account the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." *fn9" The defendants argue that it could not "reasonably be expected" that a religious discrimination charge would grow out of plaintiff's national origin charge. The facts here suggest otherwise. It does not appear that the EEOC investigated Obradovich's charges. Had it done so the likelihood is that the investigation readily would have unearthed plaintiff's claim of religious discrimination. *fn10" Obradovich alleged in his EEOC complaint *fn11" that Jaus, a German, harassed him with frequent references to the "war between the Yogoslavians and Germans" -- World War II. Given the circumstances of that war and the nature of the charge filed with the EEOC, a competent investigator would, as a matter of course, probe generally into the conditions of employment to ascertain the merits of the complaint, and such an inquiry would readily have brought to the surface that Obradovich's claim of discrimination also encompassed religious discrimination. Title VII claimants, who in most instances prepare the complaint filed with the EEOC without benefit of counsel, "should not be held to the precision of a code pleader," *fn12" lest the federal policy of redressing discrimination, of whatever nature, be defeated.

 Further, when deposed by defendants, plaintiff stated that the Federal Reserve discriminated against him because he had complained to the chief of the maintenance department that defendant Jaus said he hated Blacks and Jews, and that Jaus called plaintiff derogatory names related to his religion. thus, the defendants can hardly claim to be surprised by the religious discrimination charge, and they make no claim that the purpose of the charge filing requirement -- resolution of grievances through conciliation and voluntary compliance rather than litigation *fn13" -- will be undermined if plaintiff is allowed to press his claim of religious discrimination.

 Accordingly, the defendants' motion to dismiss the Title VII claims is denied except that the claims against Jaus and Eckhoff, wherein plaintiff failed to allege that those defendants participated in his ...


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