The opinion of the court was delivered by: Sweet, District Judge.
All persons within the jurisdiction of the United
States shall have the same right in every State
and Territory to make and enforce contracts, to
sue, be parties, give evidence, and to the full
and equal benefit of all laws and proceedings for
the security of persons and property as is enjoyed
by white citizens, and shall be subject to like
punishment, pains, penalties, taxes, licenses, and
exactions of every kind, and to no other.
42 U.S.C. § 1981. To state a claim under § 1981, the following
must be alleged: "(1) the plaintiff is a member of 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
v. Donaldson, Lufkin & Jenrette Securities Corp., 7 F.3d 1085,
1087 (2d Cir. 1993).
The essential elements of the claim are actions that were
racially motivated and purposefully discriminatory. See General
Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 391, 102
S.Ct. 3141, 73 L.Ed.2d 835 (1982). In order to survive a motion
to dismiss, "the events of the intentional and purposeful
discrimination, as well as the racial animus constituting the
motivating factor for the defendant's actions must be
specifically pleaded in the complaint." Yusuf v. Vassar
College, 827 F. Supp. 952, 955 (S.D.N.Y. 1993), aff'd in part
and vacated in part, 35 F.3d 709 (1994); see Albert v.
Carovano, 851 F.2d 561, 571-72 (2d Cir. 1988). Conclusory or
naked allegations will not suffice. See Mian, 7 F.3d at 1088
(dismissing § 1981 claim and stating that "[a]t this point,
Mian's complaint fails to offer more than conclusory
allegations that he was discriminated against because of his
race"); Pointer v. Columbia University, No. 95 Civ. 8418, 1997
WL 86387, at *5 (S.D.N.Y. Feb. 28, 1997) ("The Court finds that
Plaintiff fails to state a claim under section 1981 . . .
because she does not allege any facts supporting an inference
that this poor treatment was motivated by race
discrimination."). Fact-specific allegations of a causal link
between the defendant's actions and the plaintiff's race are
required. See Albert, 851 F.2d at 572-73.
To state a prima facie case for retaliation, the plaintiff
"must show that [she] was engaged in a protected activity [of
which the employer was aware]; 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
DeCintio v. Westchester County Medical Ctr., 821 F.2d 111, 115
(2d Cir. 1987)).
According to Jenkins, as set forth in the Complaint, she was
harassed by "the defendant companies' supervisors, by name
calling, battering, disparate work assignments and ultimately
by discharging plaintiff on May 3, 1995." (Compl. ¶ 11.)
Jenkins also contends that "her seniority was being manipulated
to allow others with less seniority to take precedence over her
with reference to building assignments, work assignments and
lay-offs." (Compl. ¶ 14.) Finally, she submits that she "has
never been recalled although persons with less seniority than
hers and persons who have not complained about the
discriminatory actions of the defendants have been recalled and
person [sic] who are non-African American have been recalled."
(Compl. ¶ 15.)
The Complaint lacks allegations of racial animus and
intentional discrimination necessary to state a cognizable
claim under § 1981. It is devoid of facts to support Jenkins'
determination that the actions taken by Defendants were
motivated by her race, color, or national origin. For instance,
Jenkins asserts that she was called names. However, she does
not allege what names she was called or by which defendant.
Without such details, it cannot be determined whether the
alleged harassment was racially motivated. Apart from the
allegation that Jenkins has never
been recalled, while those with less seniority and those who
are non-African American have — even this is a very generous
reading of the Complaint — specific allegations of
discrimination and retaliation demonstrating intentional
discrimination and racial animus are absent from the Complaint.
See, e.g., Mian, 7 F.3d at 1088; Pointer, 1997 WL 86387, at *5;
Yusuf, 827 F. Supp. at 955.
Moreover, as regarding the retaliation claim, while being
laid-off and not recalled may be an adverse employment action,
Jenkins has failed to allege a causal connection between her
filing a complaint with the NYCHRC and EEOC and her lay-off.
Indeed, the requisite causal connection may be established
"indirectly by showing that the protected activity was closely
followed in time by the adverse action." Manoharan v. Columbia
Univ. College of Physicians and Surgeons, 842 F.2d 590, 593 (2d
Cir. 1988) (citing Davis v. State Univ. of N.Y., 802 F.2d 638,
642 (2d Cir. 1986)). However, Jenkins states that her complaint
was filed in 1993 and that she was laid-off on May 3, 1995. The
temporal relationship is tenuous. Furthermore, although she
claims that the harassment, including name calling, battering,
and disparate work assignments, began subsequent to her filing
the complaint, as already noted, Jenkins does not give any
examples of such harassment so as to establish that the actions
Jenkins urges that her allegations comply with Rule 8, as she
has alleged a short and plain statement of her claims and that
discovery is the stage in which information will be acquired to
flesh out the Complaint. Still, Rule 8 does not allow for
conclusory and vague allegations, such as those contained in
the Complaint. See generally, Mian, 7 F.3d at 1088; Albert, 851
F.2d at 572-73; Pointer, 1997 WL 86387, at *5. Indeed, certain
information Jenkins has not pleaded is not within the control
of Defendants such that discovery is needed before it can be
brought to light. Using the allegations of name calling and
"battering" as examples, Jenkins certainly is aware of the
names that she was called and how she was "battered."
Accordingly, the First and Second Claims for Relief are
hereby dismissed with leave to replead.
B. Sex Discrimination Is Not Actionable
Under § 1981
Section 1981 prohibits race discrimination. Allegations of
gender, or sex discrimination are not actionable under the
statute. See, e.g., Wolper v. McGraw-Hill, Inc., No. 94 Civ.
0976, 1997 WL 252032, at *8 (S.D.N.Y. May 13, 1997); Grant v.
Morgan Guaranty Trust Co., 548 F. Supp. 1189, 1192 n. 5
(S.D.N.Y. 1982); O'Connell v. Teachers College, 63 F.R.D. 638,
640 (S.D.N.Y. 1974); see also Runyon v. McCrary, 427 U.S. 160,
167, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976).
Accordingly, the § 1981 claims premised on gender
discrimination are dismissed. Jenkins may replead these claims
under the proper statute if, keeping in mind the discussion
above, she has grounds to do so and the claims do not violate
the appropriate statute of limitations.*fn1
C. Jenkins Has Not Adequately Pleaded a
The statute of limitations for claims brought under § 1981 is
three years. See Cornwell v. Robinson, 23 F.3d 694, 703 (2d
Cir. 1994); Tadros v. Coleman, 898 F.2d 10, 12 (2d Cir. 1990);
Graaf v. North Shore University Hosp., 1 F. Supp.2d 318, 323
(S.D.N.Y. 1998) (citing Keyse v. California Texas Oil Corp.,
590 F.2d 45, 47 (2d Cir. 1978)); Johnson v. Nyack Hosp.,
891 F. Supp. 155, 162
(S.D.N.Y. 1995), aff'd, 86 F.3d 8 (2d Cir. 1996); Gilliard v.
New York Public Library System, 597 F. Supp. 1069, 1076
(S.D.N.Y. 1984). The claim accrues and the limitations period
begins to run when the plaintiff has notice of the act that is
claimed to have caused the injury. See Chardon v. Fernandez,
454 U.S. 6, 8, 102 S.Ct. 28, 70 L.Ed.2d 6 (1981); Eagleston v.
Guido, 41 F.3d 865, 871 (2d Cir. 1994); Morse v. University of
Vermont, 973 F.2d 122, 125 (2d Cir. 1992); Miller v.
International Tel. & Tel. Corp., 755 F.2d 20, 23-24 (2d Cir.
According to Defendants, because the Complaint was filed on
May 1, 1998, each allegation of discrimination in the Complaint
referring to events that allegedly occurred prior to May 1,
1995, are time-barred, and the only event pleaded by Jenkins
that falls within the statute of limitations was the cessation
of her employment with Initial on May 3, 1995.
Jenkins, however, purports in her opposition papers, without
citing any authority, that her allegations, such as those
existing within the area of seniority, constitute continuing
violations and therefore remain viable, and that because she
asserts that all of her claims for relief against Defendants
persisted up and to the time of her discharge, they should be
As an initial matter, while the issue is unresolved in this
Circuit, as this and other courts have found, the continuing
violation may be applied to § 1981 claims. See, e.g., O'Shea v.
City of San Francisco, 966 F.2d 503, 506 (9th Cir. 1992);
Malhotra v. Cotter & Co., 885 F.2d 1305, 1309 (7th Cir. 1989);
Abidekun v. New York City Transit Auth., No. 93-CV-5600, 1998
WL 296372, at *3 (E.D.N.Y. June 4, 1998); Harkins v. City of
New York, No. 97-CV-2309, 1998 WL 817689, at *5-*6 (E.D.N Y
Feb. 5, 1998); Robinson v. Metro-North Commuter Railroad Co.,
Nos. 94 Civ. 7374, 95 Civ. 8594, 1998 WL 17742, at *1 (S.D.N Y
Jan. 16, 1998); Kim v. Dial Service Int'l, Inc., No. 96
Civ. 3327, 1997 WL 5902 (S.D.N.Y. Jan. 8, 1997); Williams v.
Chase Manhattan Bank, N.A., 728 F. Supp. 1004, 1007-08 (S.D.N Y
"The continuing-violation exception `extends the limitations
period for all claims of discriminatory acts committed under
[an ongoing policy of discrimination] even if those acts,
standing alone, would have been barred by the statute of
limitations.'" Annis v. County of Westchester, 136 F.3d 239,
246 (2d Cir. 1998) (quoting Lightfoot v. Union Carbide Corp.,
110 F.3d 898, 906-07 (2d Cir. 1997)). Under the doctrine,
events that occurred prior to May 1, 1995, would be viewed as
part of a larger, timely claim so long as at least one
discriminatory act complained of occurred within the statutory
period. See Cornwell, 23 F.3d at 704.
The continuing violation doctrine is most commonly applied
"when there is evidence of an ongoing discriminatory policy or
practice, such as use of discriminatory seniority lists or
employment tests." Van Zant v. KLM Royal Dutch Airlines,
80 F.3d 708, 713 (2d Cir. 1996); Nweke v. The Prudential Ins. Co.,
25 F. Supp.2d 203, 217 (S.D.N.Y. 1998); Graaf, 1 F. Supp.2d at
322. Additionally, a continuing violation may be found "`where
specific 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.'" Id. (quoting
Cornwell, 23 F.3d at 704). However, "discrete acts of
discrimination that are not shown to be the product of a policy
or practice do not constitute a continuing violation." Dixit v.
City of New York Dep't of Gen. Servs., 972 F. Supp. 730, 735
(S.D.N.Y. 1997); see Van Zant, 80 F.3d at 713; Cornwell, 23
F.3d at 704; Nweke, 25 F. Supp.2d at 217.
The Johnson court identified three factors for consideration
in determining whether alleged discriminatory acts are
discrete, independent events or elements in a continuing
violation. These factors are: (1) whether the alleged acts
involve the same type of discrimination, (2) whether they recur
frequently or are more
in the nature of isolated employment decisions, and (3) whether
they exhibited a degree of permanence that should trigger the
employee's duty to assert his rights. See Johnson, 891 F. Supp.
at 163. Moreover, the continuing violation theory is available
only if circumstances are such that a reasonable person in the
plaintiff's position would not have sued earlier. See Morris v.
Amalgamated Lithographers of Am., Local One, 994 F. Supp. 161,
164 (S.D.N.Y. 1998); see also Nicholas v. Nynex, Inc.,
974 F. Supp. 261, 269 (S.D.N.Y. 1997) (finding that alleged
interrelatedness of denial of fair evaluations, promotions, and
awards did not produce an ongoing violation so as to extend the
statute of limitations).
The Complaint does not contain allegations of discriminatory
actions sufficient to invoke the continuing violation doctrine.
As stated above, the allegations are conclusory and unsupported
by any facts. The Complaint provides no guidance as to whether
the acts complained of involved the same type of
discrimination, were so frequent that they amounted to a
discriminatory policy or practice, and were of a permanent
nature such that Jenkins' duty to assert her rights was
triggered. Moreover, the Complaint neglects to indicate which
actions occurred prior to the limitations period, and — other
than Jenkins' lay-off — which actions occurred once it had
passed. Indeed, aside from the date of Jenkins' lay-off, the
Complaint does not provide the dates on which any of the
alleged discriminatory actions perpetrated by Defendants
occurred. Jenkins merely states, in conclusory fashion, that
she filed a complaint with the NYCHRC and the EEOC against
Defendants in 1993 and that she was harassed from then until
her discharge. On the basis of these skeletal statements, it is
impossible to conclude that the events occurring prior to May
1, 1995, can be saved by the continuing violation doctrine.
Accordingly, at this juncture any events that occurred prior
to May 1, 1995, are time-barred. While Jenkins will be given
leave to amend the Complaint to state facts demonstrating a
continuing violation, she is advised to research the doctrine
and assess its applicability to her claims before relying on it
to review any incidents that are fall outside the statute of
III. Jenkins Has Filed to State a Cause of
Action Pursuant to § 1985
According to the Third Claim for Relief, "Defendants
conspired amongst each other and against the Plaintiff by
actions in tandem and independently on the basis of her race,
color and national origin, in violation of 42 U.S.C. § 1985."
(Compl. ¶ 23.)
Section 1985 provides in relevant part:
If two or more persons in any State or Territory
conspire or go in disguise on the highway or the
premises of another, for the purpose of depriving
either directly or indirectly, any person or class
of persons of the equal protection of the laws, or
of equal privileges and immunities under the laws
. . . in any case of conspiracy set forth in this
section, if one or more persons engaged therein
do, or cause to be done, any act in furtherance of
the object of such conspiracy, whereby another is
injured in his person or property, or deprived of
having and exercising any right or privilege of a
citizen of the United States, the party so injured
or deprived may have an action.
42 U.S.C. § 1985(3).
Section 1985(3) creates no substantive rights, but merely
"provides a remedy for violation of the rights it designates."
Great American Federal Savings & Loan Ass'n v. Novotny,
442 U.S. 366, 372, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979). The
inquiry of which rights the statute "designates" is not always
clear-cut. Remedy for conspiracies to deprive persons of their
constitutional rights is without doubt available under §
1985(3). See e.g., Scott, 463 U.S. 825, 103 S.Ct. 3352, 77
L.Ed.2d 1049; Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29
L.Ed.2d 338. Whether the statute provides a remedy resulting
from private conspiracies to deprive persons of the equal
protection of, or equal privileges and immunities under,
federal statutory law, however, is not so clear.
Defendants submit that violation of § 1981 cannot be the
basis for a remedy under § 1985(3). They cite to Graaf, in
which the court stated that "[i]t is well-settled that
plaintiffs cannot bring § 1985 actions `based solely upon
claims of employment discrimination.'" Graaf, 1 F. Supp.2d at
323 (quoting Smith v. Local Union 28 Sheet Metal Workers,
877 F. Supp. 165, 172 n. 12 (S.D.N.Y. 1995) (citing Novotny and
Ladson v. Ulltra East Parking Corp., 853 F. Supp. 699, 704
(S.D.N.Y. 1994)), aff'd, 100 F.3d 943 (2d Cir. 1996) (table
Jenkins, however, claims that because Novotny held that the
"deprivation of a right created by Title VII [of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e-(3)a] cannot be the basis
for a cause of action under § 1985(3)," Novotny, 442 U.S. at
378, 99 S.Ct. 2345, it is unsettled whether § 1981 can be the
basis of a conspiracy under the statute. The Second Circuit has
not spoken on the issue. While some courts have held that §
1981 may serve as the substantive basis for a claim brought
pursuant to § 1985(3), see, e.g., Jones v. Liberty Medical
Ctr., No. K-89-3381, 1992 WL 533060, at *15 (D.Md. Oct. 5,
1992), aff'd, 1 F.3d 1233 (4th Cir. 1993) (table decision);
Chambers v. Omaha Girls Club, 629 F. Supp. 925, 940 (D.Neb.
1986); Thompson v. International Assoc. of Machinists,
580 F. Supp. 662, 667-68 (D.D.C. 1984), other have found that if the
claim is essentially one for employment discrimination then it
is not actionable under the statute, see, e.g., Harris v.
Niagara Mohawk Power Corp., No. 95-CV-788, 1998 WL 865566, at
*6 (N.D.N.Y. 1998); Smith, 877 F. Supp. at 172 & n. 12; Ladson,
853 F. Supp. at 704 n. 6. In accordance with these latter
authorities, a § 1981 employment discrimination claim does not
provide the basis for a claim under § 1985(3).
In 1989 the Supreme Court, in interpreting the scope of §
1981, held that the statute as enacted by the Reconstruction
Era Congress in 1866 did not encompass "racial harassment
relating to the conditions of employment." Patterson v. McLean
Credit Union, 491 U.S. 164, 171, 109 S.Ct. 2363, 105 L.Ed.2d
132 (1989). The Court explained that such racial harassment "is
not actionable under § 1981 because that provision does not
apply to conduct which occurs after the formation of a contract
and which does not interfere with the right to enforce
established contract obligations." Id. It was not until the
passage of the Civil Rights Act of 1991 that those claims could
be brought under § 1981. As Justice Stevens reasoned in
Novotny, § 1985(3) does not provide a remedy for statutory
rights created after the passage of § 1985(3). See Novotny, 442
U.S. at 385, 99 S.Ct. 2345 (Stevens, J., concurring); see also
id. at 379, 99 S.Ct. 2345 (Powell, J., concurring). Thus §
1981's prohibition against racial harassment relating to the
conditions of employment was not a statutory right in existence
at the passage of § 1985(3). It therefore cannot form the
substantive basis for a § 1985(3) conspiracy.
Accordingly, Jenkins' Third Claim for Relief is dismissed.
For the reasons set forth above, Defendants' motion to
dismiss is granted. Jenkins is granted leave to replead her
First and Second Claims for Relief and shall do so within
twenty (20) days of this decision.
It is so ordered.