The opinion of the court was delivered by: Glasser, District Judge.
The plaintiffs, Brenda Curtis ("Curtis") and Alvin Williamson
("Williamson"), former at-will employees of Citibank, N.A.
("Citibank"), brought this action alleging that they "were forced
to work in a racially hostile environment" because the defendants
sent, and one (James Captain) encouraged sending, electronic mail
messages ("e-mails") that were allegedly offensive to
African-Americans. The plaintiffs are both African-American and
assert claims pursuant to 42 U.S.C. § 1981, 1985, 1986; New York
State Executive Law § 296; and New York City Administrative Code
§ 8-502. The identical § 1981 and New York State and City claims
have also been asserted against Citibank in a suit filed in
February 1997 by Curtis and Williamson in the Southern District
of New York (the "Southern District Action").
Specifically, the plaintiffs allege that in January 1997 the
defendants Richard DiMaio ("DiMaio"), Susan Ravkin ("Ravkin") and
Noel Murphy ("Murphy") used Citibank's e-mail system to send
e-mails that contained racially offensive messages to several
employees. The plaintiffs claim that defendant James Captain
("Captain") had the authority to control the persons who had
access to the e-mail system and that he "permitted and
encouraged" DiMaio to use this system to send the racially
The defendants now move to dismiss the Complaint on the ground
that, pursuant to Federal Rule of Civil Procedure 12(b)(6), the
plaintiffs have failed to state a claim upon which relief may be
granted and on the further ground that the Complaint is
duplicative of their prior pending Southern District action.
Defendants Murphy and Ravkin have, in the alternative, moved for
summary judgment pursuant to Federal Rule of Civil Procedure 56.
The defendants have also moved for an order granting their
attorneys' fees and costs in connection with this action.
I. Legal Standard for Summary Judgment
In response to the defendants' motions, the plaintiffs have
presented matters outside the pleadings, including deposition
testimony and copies of the e-mails at issue. As such, this Court
treats the motions to dismiss of all the defendants as motions
for summary judgment. Fed. R.Civ.P. 12(c); Fonte v. Board of
Managers of Continental Towers Condominium, 848 F.2d 24, 25 (2d
Cir. 1988) (where matters outside the pleadings are presented in
response to a 12(b)(6) motion the court may convert it into one
for summary judgment); see also Majid v. Malone, 1996 WL
134756, at * 1 (S.D.N.Y. 1996) (it is generally accepted that the
decision whether to convert a motion to dismiss into one for
summary judgment is within the discretion of the district court).
Summary judgment under Rule 56 is proper "if the pleadings,
depositions, answers to interrogatories, and admissions on file
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law." See Celotex Corp.
v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986). The moving party bears the burden of proof on such
motion. See United
States v. All Funds, 832 F. Supp. 542, 550-51 (E.D.N Y
If the movant satisfies its initial burden of production, the
burden of proof shifts to the nonmovant who must demonstrate that
a genuine issue of fact exists for trial. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986). A genuine factual issue exists if there is sufficient
evidence favoring the nonmovant such that a jury could return a
verdict in its favor. Id. The nonmoving party "must do more
than simply show that there is some metaphysical doubt as to the
material facts." Matsushita Elec. Indus. Co., Ltd., v. Zenith
Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538
(1986). Rule 56(e) "requires the nonmoving party to go beyond the
pleadings and by [its] own affidavits, or by the `depositions,
answers to interrogatories, and admission on file,' designate
`specific facts showing that there is a genuine issue for
trial.'" Celotex, 477 U.S. at 324, 106 S.Ct. 2548. Once the
nonmovant has adduced evidence of a genuine issue of material
fact, its "allegations [will be] taken as true, and [it] will
receive the benefit of the doubt when [its] assertions conflict
with those of the movant." Samuels v. Mockry, 77 F.3d 34, 36
(2d Cir. 1996).
In this case, the plaintiffs argue that a motion for summary
judgement is premature and that more discovery should be
permitted. However, "Rule 56(f) requires the opponent of a motion
for summary judgment who seeks discovery to file an affidavit
explaining: (1) the information sought and how it is to be
obtained; (2) how a genuine issue of material fact will be raised
by that information; (3) what efforts the affiant has made to
obtain the information; and (4) why those efforts were
unsuccessful." Sage Realty Corp. v. Ins. Co. of North America,
34 F.3d 124, 128 (2d Cir. 1994); O'Neill v. JC Penney Life Ins.
Co., 1998 WL 661513 (E.D.N.Y. 1998) (same). Here, the plaintiffs
have filed no such affidavit and their papers, which simply "ask
that the district court grant to them the opportunity to discover
information pertinent to their claims" cannot be construed as
meeting the requirements of Rule 56.
Technical adherence to Rule 56 aside, even were this Court to
permit the plaintiffs the opportunity to conduct discovery, there
is no basis in the record for finding that they could adduce
facts that would influence the outcome of the pending summary
judgment motion. As discussed, infra, the facts that are
alleged in the Complaint do not make out a viable claim for
relief under the law. See C.B. Trucking, Inc. v. Waste
Management, Inc., 137 F.3d 41, 44 (1st Cir. 1998) (In response
to motion to dismiss, which the court treated as motion for
summary judgment, the plaintiffs sought and were denied
discovery. The court noted that the plaintiffs failed to "set
forth a plausible basis for believing that specified facts . . .
probably exist and indicate how the emergent facts, if adduced,
will influence the outcome of the pending summary judgment
motion.") (internal quotations and citation omitted).
The undisputed material facts submitted by the defendants
Ravkin and Murphy in their statement pursuant to Local Rule 56.1
which are especially significant for this motion are as follows:
Neither Ravkin nor Murphy were Curtis' or Williamson's supervisor
and neither had authority to hire, fire or evaluate them. On or
about January 28, 1997, DiMaio sent two jokes to Ravkin's private
e-mail address which could only be accessed by her or someone
using her private security password. Ravkin viewed the e-mail in
the privacy of her office and except for Murphy, to whom she sent
it, showed it to no one else and never authorized, expected or
intended it to be seen by anyone other than Murphy. The e-mail to
Murphy was sent to his private e-mail address, accessible only by
him or by someone using his private security password. He viewed
it in the privacy of his office and was asked by Ravkin not to
send it to anyone else. Murphy, however, sent the e-mail to ten
others, requesting each
shortly after sending it not to send it to anyone else. Murphy
neither authorized, expected nor intended the e-mail to be seen
by anyone else other than those ten. The message was not left on
either Ravkin's or Murphy's computer screen for others to see.
Neither Ravkin nor Murphy intended that Curtis, Williamson or
anyone else would be offended by the e-mail message.
Plaintiffs failed to submit opposing affidavits and a statement
of material facts in dispute as required under Local Rule 56.1.
As such, the facts contained in the defendants' Rule 56.1
Statement will be deemed admitted. See Dusanenko v. Maloney,
726 F.2d 82, 84 (2d Cir. 1984).
42 U.S.C. § 1981 provides:
(a) Statement of equal rights
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.
(b) "Make and enforce contracts" defined
For purposes of this section, the term "make and
enforce contracts" includes the making,
performance, modification, and termination of
contracts, and the enjoyment of all benefits,