The opinion of the court was delivered by: Sweet, District Judge.
In this action alleging discrimination on the basis of race,
color, national origin, and gender, and retaliation for making
such claims, in violation of 42 U.S.C. § 1981, and conspiracy
in violation of 42 U.S.C. § 1985, defendants Initial Contract
Serviced ("Initial") — sued as "Initial Cleaning Service" —
Petar Dedovic ("Dedovic"), and Argirre Lolovic ("Lolovic")
(collectively, "Defendants") have moved, pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure, to dismiss
the complaint of plaintiff Kathleen Jenkins ("Jenkins"). For
the reasons set forth below, the motion is granted, the
complaint is dismissed, and Jenkins is granted leave to replead
in accordance with this decision.
Jenkins is an African American woman and a New York resident.
Defendant Arcade Building Maintenance ("Arcade") was Jenkins'
employer "during the relevant period leading to her discharge"
on May 3, 1995. (Compl. ¶ 3.)
Initial is the successor company to Arcade, "with reference
to at least the latter's building maintenance functions, or
some of them." (Compl. ¶ 4.)
Dedovic was, at the time relevant to this action, the
building supervisor for Arcade and Initial.
Lolovic was, at the time relevant to this action, supervisor
for Arcade and Initial.
Defendant Local 32B-32J Service Employees International
Union, AFL-CIO, is the labor organization to which Jenkins
Jenkins filed her complaint ("Complaint") in this action on
May 1, 1998. The instant motion was filed on November 3, 1998,
and was considered fully submitted on November 25, 1998.
In considering a motion to dismiss, the facts alleged in the
complaint are presumed to be true and all factual inferences
must be drawn in the plaintiff's favor and against the
defendants. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct.
1683, 40 L.Ed.2d 90 (1974); Mills v. Polar Molecular Corp.,
12 F.3d 1170, 1174 (2d Cir. 1993); Cosmas v. Hassett, 886 F.2d 8,
11 (2d Cir. 1989); Dwyer v. Regan, 777 F.2d 825, 828-29 (2d
Cir. 1985). Accordingly, the factual allegations considered
here and set forth below are taken from Jenkins' Complaint and
do not constitute findings of fact by the Court. They are
be true only for the purpose of deciding the present motion.
Jenkins was hired by Arcade as a cleaner in 1990. In 1993,
she filed a complaint against Arcade with the New York City
Human Rights Commission ("NYCHRC") and the Equal Employment
Opportunity Commission ("EEOC"), charging it with
According to Jenkins, subsequent to filing the complaint and
continuing to her discharge, she was harassed by Defendants
with regard to her building assignments, work assignments, and
floor assignments. Additionally, she was battered and called
names. Jenkins moreover asserts that her seniority was being
manipulated and others with less seniority were permitted to
take precedence over her with reference to building
assignments, work assignments, and lay-offs.
Jenkins submits that she was laid-off and never recalled
because she had complained to the EEOC and NYCHRC about the
discrimination she faced at her job. Jenkins contends that
non-African Americans, as well as persons with less seniority
who never complained about discrimination, have been recalled.
Jenkins alleges that the discrimination to which she was
subjected was based on race, color, national origin, and sex in
violation of § 1981. She also alleges that Defendants
retaliated against her because of her race, color, national
origin, and sex in violation of § 1981. Finally, the Complaint
asserts that Defendants conspired amongst each other against
Jenkins on the basis of her race, color, and national origin in
violation of § 1985.
I. Standard for Reviewing a 12(b)(6)
In deciding the merits of a motion to dismiss for failure to
state a claim, all material allegations composing the factual
predicate of the action are taken as true, for the court's task
is to "assess the legal feasibility of the complaint, not assay
the weight of the evidence which might be offered in support
thereof." Ryder Energy Distribution v. Merrill Lynch
Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984) (quoting
Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980)). Rule
12(b)(6) imposes a substantial burden of proof upon the moving
party. A court may not dismiss a complaint unless the movant
demonstrates "beyond doubt that the plaintiff can prove no set
of facts in support of his claim which would entitle him to
relief." H.J., Inc. v. Northwestern Bell Tel. Co.,
492 U.S. 229, ...