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YABA v. CADWALADER

July 19, 1996

MINERVA D. YABA, Plaintiff, against CADWALADER, WICKERSHAM & TAFT, Defendant.


The opinion of the court was delivered by: KOELTL

 JOHN G. KOELTL, District Judge:

 In this action, the plaintiff Minerva D. Yaba has sued her former employer, the law firm Cadwalader, Wickersham and Taft ("Cadwalader"), charging discrimination based on sex and disability. The plaintiff has now moved for leave to amend her complaint pursuant to Fed.R.Civ.P. 15(a) to add additional parties and claims. For the reasons explained below, the motion is denied.

 I.

 The plaintiff filed her original complaint on August 4, 1994. In that complaint, the plaintiff sued only Cadwalader and Haven Roosevelt, a senior partner at Cadwalader. The plaintiff's complaint alleged violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101. The plaintiff charged discrimination based on gender, race and disability (Carpal Tunnel Syndrome) by Cadwalader and sexual harassment by Roosevelt.

 On September 18, 1995, this Court dismissed the claim against Roosevelt finding that supervisory employees are not liable under Title VII. See Yaba v. Cadwalader, Wickersham & Taft, 896 F. Supp. 352 (S.D.N.Y. 1995). Thereafter, the Court of Appeals for the Second Circuit held that there was no liability for such employees under Title VII. See Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995).

 Four months after this dismissal, on January 8, 1996, the plaintiff moved to amend her complaint to include new claims and parties in the sixth to eleventh claims. The plaintiff, now appearing pro se after her third successive attorney was granted leave to withdraw as counsel, seeks to add members of Cadwalader's Management Committee as well as past and present employees. Construing the allegations in her amended complaint in the light most favorable to the plaintiff, the plaintiff appears to allege that these parties violated Title VII and the ADA. The plaintiff also seeks to sue Roosevelt again, alleging claims of retaliatory discharge, tortious interference with contract and violations of 42 U.S.C. §§ 1981 and 1983. The plaintiff also alleges "gross negligence" by employees of the firm.

 II.

 Fed.R.Civ.P. 15(a) provides that leave to amend a pleading shall be "freely given when justice so requires." See Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962); Nerney v. Valente & Sons Repair Shop, 66 F.3d 25, 28 (2d Cir. 1995). Valid reasons for denying leave to amend include undue delay, undue prejudice to the opposing party, bad faith or dilatory motive on the part of the movant, and futility of the amendment. Foman, 371 U.S. at 182; Mackensworth v. S.S. American Merchant, 28 F.3d 246, 251 (2d Cir. 1994). Generally, the "grant of leave to amend the pleadings pursuant to Rule 15(a) is within the discretion of the trial court." Sanders v. Venture Stores, Inc., 56 F.3d 771, 773 (7th Cir. 1995) (quoting Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330, 28 L. Ed. 2d 77, 91 S. Ct. 795 (1971)). When leave to amend would be futile, that is a sufficient reason to deny the plaintiff leave to amend. Acito v. Imcera Group, Inc., 47 F.3d 47, 55 (2d Cir. 1995).

 Leave to amend in this case should be denied because the new claims are futile. In her sixth, tenth and eleventh claims for relief, plaintiff appears to allege employment discrimination violations against members of Cadwalader's Management Committee as well as past and present employees of the firm in their individual capacities. In Tomka v. Seiler Corp., the Second Circuit Court of Appeals held that Title VII does not provide remedies against the individual employees responsible for the prohibited conduct. 66 F.3d at 1313. While the seventh claim is asserted only against Roosevelt, it may be construed broadly to apply also against other employees of the firm. Whether construed against Rossevelt alone or other employees as well, it would be barred for the same reasons as the sixth, tenth and eleventh claims. This Court has already dismissed the fourth claim against Roosevelt under Title VII, which is still repeated in the amended complaint. The claim is plainly foreclosed by the decision in Tomka v. Seiler Corp. Id. Therefore, to the extent that the plaintiff alleges discrimination by the individual agents of the firm under Title VII, her claims are foreclosed.

 To the extent her sixth claim for relief seeks to allege violations of the ADA by the Management Committee and other Cadwalader employees, the claims would be futile because the ADA, like Title VII, does not provide for liability by individual employees. EEOC v. AIC Security Investigations, 55 F.3d 1276, 1279-81 (7th Cir. 1995); Ryan v. Grae & Rybicki, P.C., 1995 U.S. Dist. LEXIS 11544, No. CV-94-3731, 1995 WL 170095, at *2, (E.D.N.Y. March 31, 1995). *fn1"

 Plaintiff's ninth claim for relief is asserted only against Roosevelt and seeks to allege violations of 42 U.S.C. § 1983 and 42 U.S.C. § 1981. A violation of 42 U.S.C. § 1983 cannot be asserted against Roosevelt because there is no allegation that there was "state action," or that Roosevelt was a "state actor." See Dahlberg v. Becker, 748 F.2d 85, 89 (2d Cir. 1984). Because § 1983 does not provide a cause of action against private action, the plaintiff's claim against Roosevelt is futile.

 To the extent that plaintiff's ninth claim seeks to allege a violation of 42 U.S.C. § 1981 against Roosevelt, it is also futile. Section 1981 protects against racial or ethnic discrimination, nothing else. Albert v. Carovano, 851 F.2d 561, 572 (2d Cir. 1988). The plaintiff's claim against Roosevelt alleges sexual harassment rather than discrimination on the basis of race. Because she has not alleged racial discrimination, her claim under § 1981 is futile. See Criales v. American Airlines, No. CV-95-1709, 1996 WL 669900, at *4 (E.D.N.Y. November 6, 1995).

 The plaintiff's eighth claim for relief, to the extent that it seeks to allege a tortious interference with contract claim against Roosevelt is also futile. The elements of a tortious interference with contract claim under New York law are: i) the existence of a valid contract; ii) a "third party" to the contract which had knowledge of the contract; iii) the third party's intentional and improper procurement of the breach of contract; and iv) damage to the defendant resulting from the breach. See Finley v. Giacobbe, 79 F.3d 1285, 1294 (2d Cir. 1995). The plaintiff fails to allege such a claim. The plaintiff does not allege that Roosevelt engaged in the alleged sexual harassment with the intent to procure a breach of the plaintiff's contract with Cadwalader. The plaintiff alleges that the sexual harassment occurred in January, 1993, and that she was eventually terminated in January, 1994, after she had filed her charge of discrimination against Cadwalader with the EEOC, and after various persons at the ...


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