It is difficult to imagine how plaintiff could have alleged
with particularity the state of mind of defendants. The real
question is whether the complaint alleges facts sufficient to
raise an inference of racial motivation. Here, it could be
inferred that, before it was aware of plaintiff's race,
Greendolf represented that the job would be a permanent one,
and that, because plaintiff turned out to be black, it kept him
on only as a temporary porter and eventually replaced him with
a permanent porter who was non-black. Furthermore, the cases
relied on by defendants are distinguishable since no facts
supporting an inference of discriminatory motive were alleged
in the complaints there at issue. In Albert v. Carovano, 851
F.2d at 572, the court noted that the factual allegations of
the complaint contradicted the conclusory allegation that the
plaintiffs were discriminated against because of their race.
Similarly, in Martin v. New York State Dept. of Mental Hygiene,
588 F.2d at 372, it appears that no facts supporting such an
inference were alleged. Accordingly, plaintiff has stated a §
1981 claim against Greendolf.
Second, the Greendolf defendants argue that the § 1981 claim
against the individuals must be dismissed because the complaint
does not allege that there was any personal involvement by the
individuals in the discrimination. Plaintiff's counsel made
clear at oral argument, however, that plaintiff does not seek
to hold the individuals personally liable for discrimination,
but rather intends to hold them liable, as former principals of
the dissolved corporation, for any judgment plaintiff obtains
against Greendolf. Under New York Business Corporations Law §
1006(b),*fn1 where a dissolved corporation is unable to pay,
an injured party may pursue the former directors or
shareholders. Flute, Inc. v. Rubel, 682 F. Supp. 184 (S.D.N Y
1988). Thus, while defendants are correct that a primary claim
under § 1981 has not been stated against the individual
defendants, they will not be dismissed from this action since
they may be found liable under a doctrine of successor
Next, the Greendolf defendants argue that plaintiff has
failed to state a Title VII claim. First, defendants argue that
the complaint does not allege that plaintiff was not hired
"because of his race." However, plaintiff's factual allegations
meet the requirements to state a prima facie case under Title
VII, as described in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), and
therefore his failure to allege in haec verba that he was not
hired "because of his race" is not fatal to his Title VII
Second, defendants argue that plaintiff has failed to allege
that Greendolf meets the Title VII definition of "employer",
which requires at least 15 employees, and that a reasonable
pre-complaint inquiry by plaintiff or his counsel, as required
by Rule 11, would have determined that Greendolf is not a Title
VII employer. Plaintiff argues that this is an affirmative
defense, not a pleading requirement to be met by plaintiff, and
notes cases holding that under some circumstances employees of
separate corporations may be aggregated to meet the Title VII
definition of "employer". The Court finds that plaintiff need
not allege explicitly that the defendant meets the definition
of "employer" for purposes of Title VII, and that, on the
present record, it cannot be said that plaintiff or his counsel
violated Rule 11 in this regard.
Third, defendants argue that the individual defendants cannot
be held liable under Title VII. As noted above with respect to
the § 1981 claim, however, plaintiff seeks only to hold the
individuals liable as successors to the dissolved corporation.
Again, therefore, while defendants are correct that plaintiff
has not stated a Title VII claim against the individuals, they
will not be dismissed from the case at this time.
Finally, these defendants argue that plaintiff's failure to
name the individual defendants in his original EEOC charge
deprives this Court of subject matter jurisdiction over the
claims against the individuals. However, since any liability of
the individuals will be based on successor liability to a
dissolved corporation, not on personal involvement in § 1981 or
Title VII violations, there was no need for plaintiff to name
them in the EEOC charge, and his failure to do so is not fatal
to this court's jurisdiction.
2. The Union's Motion for Summary Judgment
Plaintiff's complaint asserts that the Union violated §
2000e-2(c) of Title VII, which prohibits labor organizations
from engaging in certain racially discriminatory practices, and
also that the Union violated § 1981 by failing to assist him in
obtaining the position promised him and its failure to refer
plaintiff for employment thereafter.
The Union moves for summary judgment based on facts set forth
in an affidavit of Michael Galati, the recording secretary of
the Union. Plaintiff argues that there are disputed issues of
material fact, and that in any event, the Union's motion should
be denied because the Union has failed to comply with
plaintiff's discovery requests. Plaintiff also raises issues
with respect to the sufficiency of Galati's affidavit, arguing
that it is based on hearsay and not on personal knowledge as
required by Rule 56.
The Union's motion for summary judgment is denied, on the
grounds that genuine issues of material fact exist, and
plaintiff has not been allowed discovery into these issues,
making the Union's motion premature. Issues of fact exist as to
whether the Union failed to refer plaintiff for jobs, or
referred him only to inferior jobs, because of his race.
Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 106
S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
While normally the non-moving party is required to come forward
with facts that substantiate its allegations, summary judgment
is improper if the moving party has not responded to
plaintiff's legitimate discovery requests. Quinn v. Syracuse
Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980).
Plaintiff must be allowed access to potentially favorable
information before the Court requires him to come forward with
evidence in support of his allegations.
For the foregoing reasons, defendants' motions are denied.
The parties are ordered to complete discovery by June 30, 1990,
submit a pre-trial order by July 11, 1990, and appear for a
pre-trial conference on July 18, 1990.