Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
SOWEMIMO v. D.A.O.R. SEC.
April 19, 1999
DEBRAH SOWEMIMO, PLAINTIFF,
D.A.O.R. SECURITY, INC. AND CARLOS CABREJA, MOHAMMED ISLAM, MARY BARBIERI ALSO KNOWN AS LEANDRA BARBIERI, AND THE NEW YORK CITY DEPARTMENT OF HOMELESS SHELTERS, INDIVIDUALLY, AND AS AIDERS AND ABETTORS, DEFENDANTS.
The opinion of the court was delivered by: Robert L. Carter, District Judge.
Defendants D.A.O.R. Security, Inc., Mohammed Islam, the New
York City Department of Homeless Services and Leandra Barbieri
move for summary judgment pursuant to Rule 56, F.R. Civ. P. to
dismiss the complaint of plaintiff Debrah Sowemimo. Plaintiff's
complaint against defendants alleges employment discrimination
based on sexual harassment and retaliatory discharge under Title
VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq. ("Title VII"), the New York State Human Rights Law,
N Y Exec. Law § 290 et seq. (the "HRL") and the New York City
Human Rights Law, N.Y.C. Admin. Code § 8-107 (the "NYCHRL");
racial discrimination pursuant to Civil Rights Act of 1866, as
amended, 42 U.S.C. § 1981 ("Section 1981"); and, negligence and
intentional torts under New York law. In addition to these
claims, plaintiff has also moved for leave to amend her complaint
pursuant to Rule 15(a), F.R. Civ. P.
Plaintiff Debrah Sowemimo ("Sowemimo") is a woman of Nigerian
national origin who was employed by defendant D.A.O.R. Security,
Inc. ("D.A.O.R.") from February 1995 until October 12, 1995.
Plaintiff was assigned by D.A.O.R. to work as a security guard at
DHS's Park Avenue Women's Shelter. Defendants in this case
include D.A.O.R., a private firm that provides security services
to clients; the New York City Department of Homeless Services
("DHS"), which operated the Park Avenue Women's Shelter and
utilized D.A.O.R. services; Mohammed Islam ("Islam"), Sowemimo's
immediate D.A.O.R. supervisor at the Park Avenue site, and
Leandra Barbieri ("Barbieri"), the Deputy Director of the Park
Avenue Women's Shelter during the period of plaintiff's
employment.*fn1 Reading the available evidence
in the light most favorable to the plaintiff, the following
events form the basis of plaintiff's complaint.
Sowemimo alleges that on more than one occasion during the
period of February, 1995 through August, 1995, Mr. Islam made
comments to her about her physical anatomy and the physical
anatomy of other female employees (Sowemimo Dep. at 268), and
propositioned her for dates and for sex (Sowemimo Dep. at
262-67). Sowemimo consistently rebuffed Islam's advances.
In August, 1995, Sowemimo was stationed in the basement of the
shelter. According to her account, Islam visited her at about
2:00 AM and began to proposition her for a date as he had done
before. Sowemimo refused, stating that she was married. According
to Sowemimo, Islam responded, "It doesn't matter," to which she
replied, "It matters to me." Islam persisted, and after
continuing his propositions, Islam allegedly grabbed Sowemimo's
breast while uttering sexual vulgarities. Sowemimo retaliated by
slapping Islam on the face. She told Islam that his advances were
unacceptable, and that if it continued she would press charges
against him. According to Sowemimo, Islam said that no one would
believe her story because there were no witnesses and he would
not be perceived as the kind of person to commit a sexual
Sowemimo claims that shortly after this incident she visited
D.A.O.R.'s main office in the Bronx, New York and reported to
George Burret and Carlos Cabreja, D.A.O.R. officials, that she
was being sexually harassed. Sowemimo stated in her deposition
that she decided to report Islam because she considered Islam's
physical assault more "serious" than his prior advances. Sowemimo
informed Burret and Cabreja that Islam had initiated sexual
discussions with her on more than one occasion, that Islam had
grabbed her breast, and that she had slapped him. She asked to
see the owner of the company, but was refused. According to
Sowemimo, Burret and Cabreja informed her that they would convene
a meeting to include both Sowemimo and Islam, but a date for a
meeting was not set.
Sowemimo also describes an incident from the summer of 1995
involving Barbieri. Sowemimo alleges that she was instructed by
Barbieri to prop open exit doors on the fifth floor to ameliorate
the effect of an ongoing heat wave. Sowemimo refused, citing
D.A.O.R.'s strict policy against propping open exit doors.
According to Sowemimo's account, Barbieri called her a "black
nigger" for refusing to follow Barbieri's instructions and
threatened to have Sowemimo barred from working in City-run
On September 12, 1995, Sowemimo was again posted on the fifth
floor of the shelter. She claims that she was called on her radio
several times by Islam and responded each time, and that her
replies were overheard by Isoken Erhunmwunse, another D.A.O.R.
security guard. Sometime later Sowemimo and Islam became engaged
in an argument near Islam's desk on the third floor. The parties'
accounts of what follow differ markedly. According to Sowemimo,
Islam indicated that he was going to file a disciplinary report
against her for failing to respond to his radio calls and for
previously arguing with Barbieri. Sowemimo, believing that Islam
was about to deliberately file a false report, grabbed the
disciplinary form that was on Islam's desk. She states that Islam
then punched her on the breast, and that each of the two grasped
the other's shirt and yelled until additional security guards
arrived to separate them. Islam maintains that Sowemimo never
responded to his radio calls, left her post without
authorization, and viciously attacked him without provocation by
striking him with her radio and threatening to kill him.
Pursuant to its investigation, D.A.O.R. collected and reviewed
statements of employees on duty at the time of the altercation.
Although Barbieri was not at the shelter on September 12, 1995,
D.A.O.R. also requested a report from Barbieri about the
incident. Barbieri submitted a short statement consisting of
accounts gleaned from other employees and recommended that
Sowemimo not be assigned to any DHS facility. Sowemimo also
submitted a statement describing the altercation as part of an
ongoing pattern of sexual harassment. About a month after
suspending Sowemimo, D.A.O.R.'s personnel manager Stephen Worrell
("Worrell") called Sowemimo to D.A.O.R. offices on October 12,
1995 and terminated her employment.
I. Plaintiff's motion for leave to amend her complaint
Pursuant to Rule 15(a), F.R. Civ. P., plaintiff moves to add to
her complaint a claim under 42 U.S.C. § 1983 and a further
factual basis for her retaliation claim. While leave to amend
shall be freely given when justice so requires, it is within the
court's discretion to refuse to grant leave for among other
reasons, undue delay and unfair prejudice. See Foman v. Davis,
371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).
Perhaps the most common reason for denying leave to amend is
that a change in pleadings will prejudice the opposing party.
See generally 6 Charles A. Wright, Arthur R. Miller & Mary Kay
Kane Federal Practice & Procedure: Civil 2d §§ 1487-88.
"Prejudice may be found, for example, when the amendment is
sought after discovery has been closed . . . Undue delay and bad
faith . . . are other reasons for denying a motion to amend."
Berman v. Parco, 986 F. Supp. 195, 217 (S.D.N.Y. 1997) (Wood,
J.) (adopting magistrate's recommendation to deny leave to amend)
(citation omitted). Plaintiff sought leave to amend after the
close of discovery and after defendants moved for summary
judgment. Granting plaintiff's motion for leave to amend her
complaint at such a late point in the proceedings would prejudice
defendants, and plaintiffs motion is therefore denied.
Accordingly, the court limits its consideration to the substance
of plaintiff's original complaint.
II. Standard for Summary Judgment
Summary judgment may not be granted unless "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 a judgment as a matter of law." Rule 56(c), F.R.
Civ. P. The moving party has the burden to demonstrate that no
genuine issue respecting any material fact exists, and all
ambiguities must be resolved and all inferences drawn in favor of
the party against whom summary judgment is sought. Tomka v.
Seiler, 66 F.3d 1295, 1304 (2d Cir. 1995); Gallo v. Prudential
Residential Services, 22 F.3d 1219, 1223-24 (2d Cir. 1994). On
summary judgment, the trial court can not try issues of fact; it
can only determine whether any genuine issues of material fact
exist to be tried. Tomka, 66 F.3d at 1304. "[T]he substantive
law will identify which facts are material . . . [and][o]nly
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).