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April 15, 1999


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 offensive messages.

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 1993).

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).

II. Section 1981 Claim

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,
    privileges, ...

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