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JENKINS v. ARCADE BLDG. MAINTENANCE

April 6, 1999

KATHLEEN JENKINS, PLAINTIFF,
v.
ARCADE BUILDING MAINTENANCE, INITIAL CLEANING SERVICE, LOCAL 32B-32J, PETAR DEDOVIC AND ARGIRRE LOLOVIC, DEFENDANTS.



The opinion of the court was delivered by: Sweet, District Judge.

  OPINION

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.

Parties

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 belonged.

Prior Proceedings

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.

Facts

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 presumed to 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 discrimination.

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.

Discussion

              I. Standard for Reviewing a 12(b)(6)
                             Motion

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, ...


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