United States District Court, Southern District of New York
October 16, 1990
TOMMIE L. TOLIVER, PLAINTIFF,
SULLIVAN DIAGNOSTIC TREATMENT CENTER, DENNIS RAYMOND AND "SKY" YORDER, DEFENDANTS.
The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.
OPINION AND ORDER
Tommie L. Toliver ("Toliver"), a pro se litigant, brings this action
for employment discrimination pursuant to Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981 and the
N.Y. Executive Law §§ 292-301 ("Human Rights Law"), alleging that he
was fired from his job with the Sullivan Diagnostic Treatment Center
("SDTC") due to his race and color. Defendants now move pursuant to
Fed.R. Civ.P. 12(b)(1), 12(b)(2) and 12(b)(6) to dismiss the action for
lack of subject matter jurisdiction, lack of personal jurisdiction over
defendants Raymond and Yorder and for failure to state a claim upon which
relief can be granted. For the reasons set forth below, defendants'
motion is granted in part and denied in part.
Toliver, a black male, was employed beginning in approximately July
1986 as a night residential counselor by SDTC, an agency which provides
treatment for the developmentally disabled. In early 1987, Toliver
applied for promotion to the position of program supervisor but his
application was denied. SDTC instead hired a white male who it claims,
unlike plaintiff, had prior supervisory and administrative experience.
In April 1987, SDTC gave Toliver permission to leave work early two
days per week for a two-week period to attend another job. Plaintiff
allegedly continued to leave early and call in sick after the two-week
period ended and refused to provide SDTC with doctor's notes justifying
the absences. Plaintiff was terminated on or about June 15, 1987 for
violation of sick leave rules and for insubordination. Complaint ¶
Plaintiff again applied for an advertised position as a program
supervisor between July and September of 1987 but was refused an
interview. SDTC felt Toliver was not a suitable candidate for the
position based on his earlier discharge for misconduct.
Toliver filed separate complaints against SDTC with the New York State
Division of Human Rights ("NYSDHR") on November 30, 1987, and March 18,
1988. On August 30, 1988, NYSDHR found no probable cause on either
complaint to believe that SDTC engaged in discriminatory employment
Toliver also filed charges against SDTC with the Equal Employment
Opportunity Commission ("EEOC") sometime between November 1987 and March
1988 alleging racial discrimination. Pursuant to EEOC's determination to
dismiss his charges, a Notice of Right to Sue dated August 12, 1989 was
sent to Toliver who claims he received it on August 15, 1989.
Toliver sent his complaint in this action along with his request to
proceed in forma pauperis to the Pro Se Clerk for the Southern District of
New York by certified mail on November 8, 1989. Toliver Aff. ¶ 7. A
postal receipt shows that the pro se office signed for the item on
November 13, 1989. Toliver Aff., Exh. F. Both documents were stamped as
received on November 16, 1989. The summons and civil cover sheet in this
action were dated December 6, 1989.
1. Subject Matter Jurisdiction
A civil action under Title VII must be commenced within ninety days of
plaintiff's, receipt of a Notice of Right to Sue
from the EEOC. 42 U.S.C. § 2000e-5(f)(1). Plaintiff has adequately
complied with the 90-day jurisdictional limit because his complaint and
application to proceed in forma pauperis were received in the pro se
office on November 13, 1989, the last day of the 90-day period. Where in
forma pauperis relief is granted, the action should be treated as timely
provided the complaint was received in the clerk's office prior to the
expiration of the limitations period. See Toliver v. County of Sullivan,
841 F.2d 41 (2d Cir. 1988); Nielsen v. Flower Hosp., 689 F. Supp. 738
(S.D.N.Y. 1986). Accordingly, defendants' motion to dismiss on this
ground is denied.
2. Defendants Raymond and Yorder
The individual defendants, both supervisors at SDTC, offer several
reasons as to why they are not properly named as defendants to
plaintiff's Title VII claim. Raymond and Yorder first contend that this
Court lacks personal jurisdiction over them because they allegedly were
not served in this action within the 120-day limit imposed by
Fed.R.Civ.P. 4(j). This action was filed with the clerk of the court on
December 6, 1989 thus service was required no later than April 5, 1990
under the Rule.
Service in this action was accomplished by the United States Marshals
Service pursuant to Fed.R.Civ.P. 4(c)(2)(C)(ii) which provides in
(C) A summons and complaint may be served . . .
(ii) by mailing a copy of the summons and of the
complaint (by first-class mail, postage prepaid) to
the person to be served, together with two copies of a
notice and acknowledgment conforming substantially to
form 18-A and a return envelope, postage prepaid,
addressed to the sender. . . .
Service by mail is complete upon mailing. Fed.R.Civ.P. 5(b).
The Marshals Service received the summons and complaint on March 26,
1990 and mailed them along with the appropriate Notice and Acknowledgment
of Receipt forms that same day. Because Raymond and Yorder signed the
acknowledgment forms within twenty days from the date of mailing as
required by the Rule, on April 5 and April 15, 1990, respectively, no
followup personal service on them was required under the Rule. Service of
defendants Raymond and Vorder complied with Rule 4(j) since the summons
and complaint were mailed prior to April 5, 1990 and, accordingly
defendants' motion to dismiss on this ground is denied.
Raymond and Yorder's second objection is that neither was named as a
respondent in plaintiff's EEOC complaint. The general rule is that a
private civil action under Title VII may only be instituted "against the
respondent named in the charge" filed with the EEOC.
42 U.S.C. § 2000e-5(f)(1). However, when there is "substantial
identity" between those defendants named in the EEOC charge and other
defendants in the private action who were not named in the EEOC
proceeding and where the unnamed defendants had notice of the EEOC
proceeding, the unnamed defendants are properly before the court in the
private action even though they were not named in the EEOC charge. See
Giuntoli v. Garvin Guybutler Corp., 726 F. Supp. 494, 498 (S.D.N.Y.
1989); Vulcan Soc'y v. Fire Dep't of White Plains, 82 F.R.D. 379, 389
In this case, only SDTC was named as respondent in plaintiff's EEOC
charge. There is a substantial identity of interest between SDTC and the
individual defendants as employees and agents of SDTC. The record is
unclear, however, as to whether these individuals were named in the body
of the charge. Nor does the record reveal whether Raymond or Yorder had
actual notice of the pendency of the administrative proceedings or an
opportunity to participate in attempted resolution of plaintiff's claim.
Plaintiff's complaint also fails to plead any facts indicating the
specific discriminatory acts allegedly committed by Raymond and Yorder or
any facts indicating their specific role in the events in issue.
Plaintiff merely states that:
The actions of defendants Raymond and Yorder resulted
from and were taken
pursuant to past practices to deniny [sic] black [sic]
the opportunity to be promoted and/or to be hired to
position of supervisor/administrator.
Nowhere in the complaint are the "actions" referred to specified.*fn3
Based on these deficiencies, defendants' motion to dismiss the
complaint as against Raymond and Yorder is granted without prejudice to
plaintiff's demonstrating within thirty days from the date of filing of
this opinion a basis for his claims against Raymond and Yorder by showing
(1) whether Raymond and Yorder were named in the body of his EEOC
complaint; (2) any facts tending to show that Raymond and Yorder had
notice of the EEOC proceeding; and (3) the specific discriminatory acts
committed by Raymond and Yorder to be redressed in this action. Cf.
Giuntoli, 726 F. Supp. at 500 (denying dismissal due to unresolved issue
of notice where complaint in the private action specified the allegedly
discriminatory acts of the defendant not named in the EEOC charge).
3. Failure to State a Claim
Defendants argue that plaintiff's § 1981 claim fails to state a
claim upon which relief can be granted. Section 1981 provides:
All persons within the jurisdiction of the United
States shall have the same right in every State and
Territory to make and enforce contracts . . . as is
enjoyed by white citizens. . . .
42 U.S.C. § 1981. In Patterson v. McLean Credit Union, 491 U.S. 164
109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), the Supreme Court held that the
right to make contracts "extends only to the formation of a contract, but
not to problems that may arise later from the conditions of continuing
employment." Id. 109 S.Ct. at 2372. Plaintiff's claim of retaliatory
termination motivated by racial discrimination is thus not actionable
under § 1981 because the termination took place after the formation
of the employment contract and the claim relates only to postformation
conduct. See Alexander v. New York Medical College, 721 F. Supp. 587
(S.D.N.Y. 1989). An alleged retaliatory termination may instead represent
a breach of contract for which judicial redress is otherwise available.
Id. at 588.
Plaintiff's claims of denial of promotion, however, may be cognizable
under § 1981. The question of whether a promotion claim is actionable
under § 1981 depends on whether the nature of the change of position
was such that it involved either the opportunity to enter into a new
contract with the employer or the opportunity for a ""new and distinct
relation" between the employer and employee. Patterson, 109 S.Ct. at
Plaintiff has not specifically alleged that promotion from residential
counselor to program supervisor at SDTC would have involved the
opportunity to enter into a new contract of employment with SDTC as
required by Patterson. However, because the promotion would have
apparently been from a non-supervisory to a supervisory position,
plaintiff may have a valid claim under § 1981 that he was allegedly
denied the opportunity for a new and distinct relationship with SDTC. See
Mallory v. Booth Refrigeration Supply Co., 882 F.2d 908, 910 (4th Cir.
1989) (denial of promotion from clerk to supervisor); Williams v. Chase
Manhattan Bank, NA., 728 F. Supp. 1004, 1009 (S.D.N.Y. 1990) (denial of
promotion from employee to officer sufficient to constitute "new and
distinct relation"). It would be inappropriate at this point for the
Court to say that plaintiff will be unable to satisfy Patterson's "new
and distinct" employer-employee relation test. See Brereton v.
Communications Satellite Corp., 735 F. Supp. 1085, 1090 (D.D.C. 1990).
Plaintiff's final claim that he was not hired by SDTC based on his race
he reapplied for the position of program supervisor after being
terminated may also constitute a valid § 1981 claim. If SDTC in fact
refused to enter into a new contract of employment with plaintiff due to
his race, plaintiff was denied the same right "to make and enforce
contracts . . . as is enjoyed by white citizens." 42 U.S.C.A. §
Accordingly, defendants' motion to dismiss plaintiff's § 1981 claim
for failure to state a claim upon which relief can be granted is denied.
IT IS SO ORDERED.