and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice." Cornwell, 23 F.3d at 704; see also Van Zant, 80 F.3d at 713; Wise 928 F. Supp. at 366.
With respect to the claims against Cadwalader based on Roosevelt's alleged harassment of Yaba, Yaba's factual assertions are sufficient, for the purposes of a motion to dismiss on the pleadings, to allege a continuing violation. Yaba asserts that she was harassed by Roosevelt on both January 18, 1993 and January 26, 1993. Yaba further asserts that she reported these incidents to Eichler, the Executive Director of Human Resources at Cadwalader, but that he ignored her complaint. Finally, Yaba states that she was once again harassed by Roosevelt in January, 1994.
A jury crediting these allegations could find that Yaba had been subjected to specific and related incidents of harassment. A jury could also find that by failing to respond to Yaba's complaint, Cadwalader allowed the harassment to go unremedied. Therefore, for the purposes of this motion, Yaba has alleged a continuing violation, which did not end until her dismissal in 1994. Thus, her filing of her complaint in July, 1996, for the purposes of this motion, was timely.
Yaba's retaliation and retaliatory discharge claims against all of the defendants are also sufficient, for the purposes of this motion to dismiss, to establish a continuing violation. While some of the incidents cited by Yaba occurred before July 18, 1993, her allegations, construed in the light most favorable to the plaintiff, describe an ongoing campaign of harassment by the defendants that lasted until January, 1994. As characterized by Yaba, this campaign of harassment, given that it was perpetrated by members of the senior management of Cadwalader, can be considered a discriminatory policy or practice instituted by Cadwalader. Therefore, for the purposes of this motion, Yaba's claims for retaliation and retaliatory discharge cannot be dismissed as time barred.
All of the defendants also argue that Yaba has failed to state cognizable claims under § 1981. With respect to Yaba's § 1981 claim against Cadwalader based on Roosevelt's alleged harassment, Cadwalader argues that Yaba's allegations are vague and conclusory and therefore insufficient to state a claim upon which relief can be granted. In regard to Yaba's retaliation and retaliatory discharge claims, the defendants assert that these claims fail to allege sufficiently that the allegedly retaliatory actions were motivated by race. The defendants also argue that Yaba has failed to demonstrate sufficient personal involvement by the individual defendants in the alleged retaliatory acts.
"To establish a claim under § 1981, a plaintiff must allege facts in support of the following elements: (1) the plaintiff is a member of a racial minority; (2) an intent to discriminate on the basis of race by the defendant; and (3) the discrimination concerned one or more of the activities enumerated in the statute (i.e. make and enforce contracts, sue and be sued, give evidence, etc.)." Mian, 7 F.3d at 1087. Cadwalader asserts that Yaba's allegations that Roosevelt's actions were motivated by race are vague and conclusory and should be dismissed as "naked assertions." Yaba responds that Roosevelt's comments during one incident of alleged harassment amounted to a racial slur. The defendants dispute this characterization.
Yaba's claim is not the kind of mere "naked assertions" found insufficient in Yusuf. The court in Yusuf found that dismissal of the plaintiff's claim was appropriate because he had merely alleged racial discrimination without asserting any facts, beyond his race, that suggested the actions were racially motivated. Yusuf, 35 F.3d at 714. Yaba's allegation that Roosevelt uttered a racially suggestive remark while harassing her provides a sufficient alleged factual basis for inferring racial motivation. Thus, Yaba has asserted a sufficiently detailed § 1981 claim to survive a motion to dismiss at this time.
"To make out a prima facie case of retaliation [under P 1981], an employee must show that [she] was engaged in protected activity; that [she] suffered an adverse employment decision and a causal connection between the protected activity and the adverse employment decision." Taitt v. Chemical Bank, 849 F.2d 775, 777 (2d Cir. 1988) (citing Decinto v. Westchester County Medical Center, 821 F.2d 111, 114 (2d Cir. 1987)), cert. denied, 484 U.S. 965, 98 L. Ed. 2d 395, 108 S. Ct. 455 (1981).
In seeking dismissal of Yaba's retaliation claims, the defendants first argue that there is no evidence that any of the alleged retaliation was racially motivated. However, Yaba has alleged sufficient facts to show that the defendants were motivated to retaliate against the plaintiff because of the plaintiff's having been engaged in protected activity. In this case, the protected activity that Yaba was allegedly engaged in was complaining about Roosevelt's alleged racial harassment.
The defendants also allege that Yaba only complained about sexual harassment and not racial discrimination. However, Yaba alleges that she was harassed by Roosevelt because of her race and that she reported this conduct to Eichler. Thus, the exact nature of Yaba's complaints, and whether the defendants' alleged retaliation against Yaba was in fact causally connected to her complaint about racial harassment, is an issue of fact that cannot be determined on this motion to dismiss.
The individual defendants, in their motion, also argue that Yaba has not alleged sufficient personal involvement by them in connection with her retaliation and retaliatory discharge claims. In Complaint Two, Yaba asserts that Eichler, Braverman, Kiley and Fogarty intentionally assigned her to tasks not required of similarly situated employees. Yaba further alleges that these defendants knew that these tasks would aggravate her disability. Yaba asserts that the defendants' motivation in assigning her these tasks was to retaliate against her because of her complaint against Roosevelt. Finally, Yaba alleges that the members of the management committee directed the individual defendants to engage in this retaliation and that they adopted retaliatory policies towards her. These assertions against the individual defendants are sufficient to allege personal involvement for the purposes of these defendants' motion to dismiss.
Roosevelt also argues that Yaba has failed to sufficiently allege that he was personally involved in her discharge. This assertion is correct. Yaba only alleges that she was fired by Braverman at the direction of Cadwalader's management. Without some allegation that Roosevelt had some actual role in the decision to fire Yaba, Yaba has not stated a retaliatory discharge claim against Roosevelt.
Finally, Roosevelt argues that final judgment should be entered on all claims against him, pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, based on this Court's dismissal of all claims against him. "Rule 54(b), which applies only when multiple claims or multiple parties are involved in the lawsuit, provides that the district court 'may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.'" Ginett v. Computer Task Group, Inc., 962 F.2d 1085, 1091 (2d Cir. 1992) (quoting Rule 54(b) of the Federal Rules of Civil Procedure).
"In the multiple party situation where the complaint is dismissed as to one defendant but not others, the court should not, as a general matter, direct the entry of final judgment pursuant to Rule 54(b) if the same or closely related issues remain to be litigated against the undismissed defendants." Cullen v. Margiotta, 811 F.2d 698, 710 (2d Cir.), cert. denied, 483 U.S. 1021, 107 S. Ct. 3266, 97 L. Ed. 2d 764 (1987). The decision to enter judgment under Rule 54(b) is left to the sound discretion of the district court. Advanced Magnetics, Inc. v. Bayfront Partners, Inc., 106 F.3d 11, 16 (2d Cir. 1997); Ginett, 962 F.2d at 1092 (citing Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 8, 64 L. Ed. 2d 1, 100 S. Ct. 1460 (1980)). Moreover, because of the general policy against piecemeal litigation and appeals, Rule 54(b) is be used sparingly. See Advanced Magnetics, Inc., 106 F.3d at 16; Cullen, 811 F.2d at 710.
The claims that remain to be litigated against the other defendants arise from the same employment relationship and the same incidents that gave rise to the claims against Roosevelt. Given this close connection between the claims against Roosevelt and the claims against the other defendants, and the principle that Rule 54(b) is to be used sparingly to avoid piecemeal appeals, it would be inappropriate to enter partial judgment under Rule 54(b).
For the reasons stated above, Roosevelt's motion to dismiss all claims asserted against him in 96 Civ. 5350 is granted. The remaining defendants' motion to dismiss, filed in respect to both 94 Civ. 5718 and 96 Civ. 5350, is denied in its entirety.
Dated: New York, New York
April 16, 1997
John G. Koeltl
United States District Judge