United States District Court, Southern District of New York
December 13, 1999
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PLAINTIFF,
DIE FLIEDERMAUS, L.L.C., ET AL., DEFENDANTS. ANGELA BOGGS, ET AL., PLAINTIFFS, V. DIE FLIEDERMAUS, L.L.C., ET AL., DEFENDANTS.
The opinion of the court was delivered by: Sweet, District Judge.
Defendants Die Fliedermaus, L.L.C. ("Die Fliedermaus"), Gerald J.
Shallo ("Shallo"), Patrick Kelly ("Kelly"), Larry Cerrone ("Cerrone"),
Simon Azoulay ("Azoulay"), Colin Walsh ("Walsh"), and Matt Tortoso
("Tortoso") (collectively, the "Defendants"), have moved under Rule
12(b)(5) and (6), Fed.R.Civ.P., to dismiss the complaint of plaintiffs
Angela Boggs ("Boggs"), Kimberly Hawkes ("Hawkes"), Shereece Holman
("Holman"), Staci Pollard ("Pollard"), Rhonda Roenfeldt ("Roenfeldt"),
and Madilyn Wade ("Wade") (collectively, the "Individual Plaintiffs") in
case No. 99 Civ. 2451 (the "Boggs Action"). Die Fliedermaus has also
moved to dismiss the complaint of the Equal Employment Opportunity
Commission (the "EEOC" or the "Commission") in a related case, 99 Civ.
1732 (the "EEOC Action"). The Individual Plaintiffs in the Boggs Action
have now also moved to intervene in the EEOC
Action pursuant to Fed.R.Civ.P. 24(a), or, alternatively, to consolidate
the two cases pursuant to Rule 42(a). For the reasons set forth below,
the motions are granted in part and denied in part.
The Individual Plaintiffs were each employed at Le Bar Bat at various
periods during 1997. Plaintiffs Hawkes, Holman, and Wade are
African-American and were employed as hostesses. Plaintiffs Boggs,
Pollard, and Roenfeldt, whose ethnic backgrounds are not disclosed in the
complaint in the Boggs Action (the "Boggs Complaint"), were employed as
Plaintiff EEOC is a federal agency empowered by Congress to prevent
unlawful employment practices. See 42 U.S.C. § 2000e-5(a).
Defendant Le Bar Bat, Inc. ("Le Bar Bat") is a New York corporation,
with its principal place of business at 309-311 West 57th Street in
Manhattan. The corporation operates a restaurant, bar, and nightclub
located at 311 West 57th Street. Le Bar Bat held itself out as the
Individual Plaintiffs' employer.
Defendant Die Fliedermaus is a New York limited liability company with
its principal place of business at 309-311 West 57th Street in
Manhattan. Die Fliedermaus also held itself out as the Individual
Defendant Shallo is an owner, officer, employee, and agent of Le Bar
Bat and Die Fliedermaus with decision-making authority.
Defendants Kelly, Cerrone, Azoulay, Tortoso, and Walsh work at Le Bar
Bat in the following capacities: Kelly is the Director of Banquets,
Cerrone is the General Manager, Azoulay is the Executive Chef, and
Tortoso and Walsh are Banquet Assistants.
Background and Prior Proceedings
On various dates from January 30, 1998, to June 22, 1998, the
Individual Plaintiffs filed multiple charges of discrimination with the
EEOC against Die Fliedermaus. After an investigation, the EEOC issued on
February 17, 1999 a determination that:
Evidence of record shows that [Die Fliedermaus d/b/a
Le Bar Bat] engaged in a continuing pattern and
practice of sexual and racial harassment directed at a
class of female and/or African American employees
resulting in constructive discharge of those
employees. Evidence of record established that [Die
Fliedermaus d/b/a Le Bar Bat] created and distributed
fliers containing derogatory and false information
about [Boggs, Hawkes, Pollard and Roenfeldt] in
retaliation for their having filed charges of
discrimination with the EEOC. Based on the foregoing,
[the District Director] has determined that there is
reasonable cause to believe that [the named
plaintiffs] . . . have been subject to sexual and/or
racial harassment and constructive discharge.
On February 23, the EEOC sent counsel to Die Fliedermaus a letter
informing it of the specific relief sought, which included sensitivity
training, remedial notices, adoption of an effective harassment policy,
back pay for those constructively discharged, and "compensatory damages
up to $50,000 for each affected victim." A March 1 deadline was set for
acceptance or "a reasonable written counter-proposal." The EEOC stated in
its letter, "If we have not received a reasonable written counterproposal
by the appointed date, we will infer that further efforts to conciliate
this matter will be futile."
Also on February 23, Kelly, Tortoso, and Walsh were arrested for
unlawfully, wilfully and knowingly, used intimidation
and engaged in misleading conduct toward another
person with intent to influence, delay and prevent the
testimony of a person in an official proceeding, to
wit, KELLY, WALSH and TORTOSO publicly distributed
flyers falsely labeling four persons who had named
KELLY in pending discrimination claims filed with the
United States Equal Employment Opportunity Commission
as, among other things, suspected prostitutes, child
molesters, and/or drug users.
Grossman Decl.Exh. C.
Walsh and Tortoso were also arrested for each having
[m]ade a materially false, fictitious and fraudulent
statement and representation in a matter within the
jurisdiction of the executive branch of the Government
of the United States, to wit [WALSH and TORTOSO]
falsely told an investigator employed by the United
States Attorney's Office for the Southern District of
New York that [they] had no knowledge concerning the
distribution of flyers falsely labeling four persons
who had named KELLY in pending discrimination claims
filed with the United States Equal Employment
Opportunity Commission as, among other things,
suspected prostitutes, child molesters, and/or drug
Id. On February 26, Die Fliedermaus responded to EEOC's February 23
letter, agreeing in substance to the non-monetary proposals and inquiring
as to the EEOC position on interim earnings relative to back pay, the
amount of compensatory damages and whether or not the affected victims
included others in addition to the charging parties. No counterproposal
regarding monetary relief was made.
On March 3, the EEOC informed Die Fliedermaus of its determination that
further conciliation efforts would be "futile or non-productive."
On March 9, the EEOC Complaint was filed against corporate defendants
Die Fliedermaus and Le Bar Bat, alleging that Die Fliedermaus' managerial
and other employees, including but not limited to its Owner(s), its
General Manager (Cerrone), its Director of Banquets (Kelly), and its
Executive Chef (Azoulay), subjected a class of female employees to a
pattern or practice of frequent and pervasive sexual harassment, which
included unwelcome sexual touching, sexually explicit comments, and
sexual propositions. It is alleged that although female employees
protested and complained about the harassment, Le Bar Bat made no efforts
to prevent or eradicate the continuing behavior.
The EEOC Complaint further alleged that Defendants' managerial and
other employees, including but not limited to one of its owners and its
General Manager, have subjected and are currently subjecting a class of
African-American employees to a pattern or practice of frequent and
pervasive racial harassment, which includes unwelcome racially explicit
comments. Although African-American employees protested and complained
about the harassment, Die Fliedermaus made no efforts to prevent or
eradicate the continuing behavior.
The EEOC further alleged that Defendants constructively discharged
female and African-American employees by their failure to eliminate the
sexually and racially hostile environment.
The EEOC alleged, in addition, that after six employees engaged in a
protected activity, the filing of charges of discrimination with the
EEOC, Defendants retaliated against at least four employees by removing
and utilizing confidential information from their personnel files and
distributing derogatory fliers in employees' buildings and
neighborhoods. The fliers contained false, highly damaging statements
about the employees, including, but not limited to, claims that the
employees were prostitutes, drug dealers, and/or child molesters.
On April 2, 1999, the Individual Plaintiffs filed their complaint,
alleging redress for violations of their civil rights and alleging
violations of Title VII arising out of a hostile work environment, quid
pro quo discrimination, racial discrimination as to Hawkes, Holman, and
Wade, constructive discharge, retaliation, and a § 1981 violation as
to Hawkes, and also alleging violations of the New York State Human
Rights Law and the New York City Administrative Code, as well as state
law claims for intentional infliction of emotional distress, defamation,
and libel per se.
The Defendants' motions to dismiss certain of the causes of action, the
motions of Tortoso and Walsh to dismiss for improper service, and the
Individual Plaintiffs' motion to intervene in the EEOC Action and to
consolidate the two actions, were heard and marked fully submitted on
September 15, 1999.
The Instant Motions
A. Die Fliedermaus and Shallo
Defendants Die Fliedermaus and Shallo have moved to dismiss certain
claims in the Boggs Action as follows:
(1) The Title VII claims (Counts 1-5 of the Boggs Complaint) for
failure to comply with the procedural requirements of Title VII by not
obtaining a right to sue letter from the EEOC;
(2) Plaintiff Hawkes' § 1981 claim (Count 6) because she was an
at-will employee and has failed to allege a contractual relationship with
Le Bar Bat;
(3) The constructive discharge and retaliation claims under the New
York State Human Rights Law ("NYSHRL") and the New York City Code (Counts
7-8) for failure to allege (a) that Defendants deliberately acted for the
sole purpose of obtaining Plaintiffs' resignations, and (b) that
Plaintiffs suffered any adverse employment action as a direct result of
their EEOC filings;
(4) The claims for intentional infliction of emotional distress (Count
9) as duplicative of the Individual Plaintiffs' defamation claims or as
(5) the claims for intentional infliction of emotional distress (Count
9), for defamation and libel per se (Count 10), and respondeat superior
(Count 11), as vicarious liability cannot be imposed against Die
Fliedermaus as a matter of law;
(6) any attempt to hold Die Fliedermaus liable for negligence in
connection with the allegedly improper conduct as barred by the Worker's
Die Fliedermaus and Shallo have also moved to dismiss, or, in the
alternative, to stay the EEOC Action on the grounds of the EEOC's failure
to obey its statutory duty to conciliate prior to filing suit.
Defendant Tortoso has moved to dismiss the claims against him in the
Boggs Action as follows:
(1) the NYSHRL claims (Count 7) on the grounds that (a) Plaintiffs
cannot allege claims of retaliation or aiding and abetting under this
statute, and (b) the current state of New York law on liability;
(2) the New York City Code claims (Count 8) for failure to allege a
claim and to meet the statutory prerequisites for bringing a claim;
(3) all claims, for failure to effect service of process.
Tortoso also joins point (4) of the Die Fliedermaus/Shallo motion.
Defendant Walsh moves to dismiss all claims against him in the Boggs
Action for: (1) failure to effect service of process; and (2) failure to
state a claim.
D. Kelly, Cerrone, and Azoulay
Defendants Kelly, Cerrone, and Azoulay move to dismiss Counts 7 & 8, in
part, relying on point (3) of the Die Fliedermaus/Shallo motion. Kelly
also moves to dismiss Count 9 in full, relying on point (4) in the Die
E. The Individual Plaintiffs
The Individual Plaintiffs move to intervene in the EEOC Action or to
consolidate the two actions.
I. The Actions Are Consolidated
Rule 42(a), Fed.R.Civ.P., provides that "[w]hen actions involving a
common question of law or fact are pending before the court, it may order
. . . all the actions consolidated." A district court has broad
discretion to consolidate actions. See Consorti v. Armstrong World
Indus., Inc., 72 F.3d 1003, 1006 (2d Cir. 1995), vacated on other grounds
sub nom., Consorti v. Owens-Corning Fiberglas Corp., 518 U.S. 1031, 116
S.Ct. 2576, 135 L.Ed.2d 1091 (1996); International Paving Sys., Inc. v.
Van-Tulco, Inc., 806 F. Supp. 17, 22 (E.D.N.Y. 1992). While the
"discretion to consolidate is not unfettered" and "[c]onsiderations of
convenience and economy must yield to a paramount concern for a fair and
impartial trial," Johnson v. Celotex Corp., 899 F.2d 1281, 1284-85 (2d
Cir. 1990), so long as any confusion or prejudice does not outweigh
efficiency concerns, consolidation will generally be appropriate. See
International Paving, 806 F. Supp. at 22.
The EEOC Action and the Boggs Action involve the same relationship
between the Individual Plaintiffs and the Defendants, the same
incidents, and by and large the same legal theories. The only divergence
between the two actions is the addition of state claims in the Boggs
Action. Under these circumstances, consolidation is appropriate.
In view of the interdependent aspect of the resolution of these motions
now pending, the actions will be treated by the Court sua sponte as
consolidated for the disposition of the motions, and an order of
consolidation will be entered upon this opinion.
II. Jurisdiction Exists Over the EEOC Claims But Conciliation Is Required
Die Fliedermaus has moved to dismiss the EEOC Action, or, in the
alternative, to stay all proceedings pending an order by this Court to
Pursuant to its statutory mandate, "If the Commission determines after
. . . investigation that there is reasonable cause to believe that [a]
charge [of an unlawful employment practice brought by an aggrieved
person] is true, the Commission shall endeavor to eliminate any such
alleged unlawful employment practice by informal methods of conference,
conciliation, and persuasion." 42 U.S.C. § 2000e-5 (b). This Court
has stated that
[t]he E.E.O.C.'s duty to attempt conciliation is
fulfilled if it (1) outlines to the employer the
reasonable cause for its belief that the employer is
in violation of the Act, (2) offers an opportunity for
voluntary compliance, and (3) responds in a reasonable
and flexible manner to the reasonable attitude of the
EEOC v. Colgate-Palmolive Co., No. 81 Civ. 8145 (RWS), 1983 WL 621, at *5
(S.D.N.Y. 1983) (citing Marshall v. Sun Oil Co. (Delaware), 605 F.2d 1331,
1335-36 (5th Cir. 1979); EEOC v. Klingler Elec. Corp., 636 F.2d 104, 107
(5th Cir. 1981)). This three-step test has been adopted by the Second
Circuit. See EEOC v. Johnson & Higgins, Inc., 91 F.3d 1529, 1534 (2d
"If the defendant refuses the invitation to conciliate or responds by
denying the EEOC's allegations, the EEOC need not pursue conciliation and
may proceed to litigate the question of the employer's liability for the
alleged violations." Johnson
& Higgins, 91 F.3d at 1535. On the other hand,
if the EEOC is found not to have fulfilled its
statutory duty to conciliate, the preferred remedy is
not dismissal but instead a stay of the action to
permit such conciliation. Where the EEOC has made
absolutely no efforts dismissal is appropriate, but
where conciliation efforts have been abbreviated, the
case should be stayed to allow sufficient time for the
parties to engage in more serious conciliation
EEOC v. New Cherokee Corp., 829 F. Supp. 73, 81 (S.D.N.Y. 1993).
The "determination" letter of February 17, 1999, outlining the EEOC's
reasonable cause for believing that Die Fliedermaus had violated Title
VII, constitutes the first step listed in Colgate-Palmolive. The EEOC's
letter of February 23, 1999, which offers an opportunity for voluntary
compliance, constitutes the second step. The February 23 letter outlined
five conciliation terms: (1) sensitivity training; (2) posting of
remedial notices; (3) adoption of an effective harassment policy; (4)
back pay plus interest for affected individuals who were constructively
discharged; and (5) compensatory damages up to $50,000 for each affected
victim, including but not limited to the charging parties.
However, the EEOC did not take the third step. On February 26, 1999,
counsel to Die Fliedermaus sent the EEOC a letter responding to the
February 23 conciliation proposal. Die Fliedermaus agreed that items 1,
2, and 3 of the Commission's proposal are appropriate to the conciliation
of this matter, and we expect that together we can work out the logistics
of implementing those items. Please be aware that with regard to item 3,
Le Bar Bat already has a harassment policy in place. With regard to
conciliation terms 4 and 5, the letter stated:
We require further information . . . before we can
respond . . . [such as] whether the Commission is
aware of the Charging Parties' interim earnings and
whether it intends to deduct those interim earnings
from its backpay calculations, [and] the amount of
compensatory damages the Commission is seeking for
each charging party. Further, it is unclear whether
the Commission is seeking damages for individuals
other than the charging parties. For example, in item
4 what does the Commission mean by "for affected
individuals who were constructively discharged"?
Similarly, in item 5, what does the Commission mean by
"for each affected victim, including but not limited
to Charging Parties?"
Grossman Decl.Exh. D.
The EEOC responded to Die Fliedermaus by letter of March 3, 1999,
stating that it had "determined that efforts to conciliate . . . have
been unsuccessful." On March 9, 1999, it filed the instant EEOC Action.
The facts demonstrate that the EEOC did not "respond  in a reasonable
and flexible manner to the reasonable attitude of the employer."
Colgate-Palmolive, 1983 WL 621, at *5 Die Fliedermaus's February 26
letter evinced a reasonable attitude: it agreed to the first three terms
of the EEOC's February 23 letter and requested more specifics on terms 4
and 5. Obviously, the EEOC's determination that conciliation efforts were
unsuccessful, and the filing of the EEOC Action, do not indicate a
"reasonable and flexible manner" of responding to the February 26
letter. Contrary to the EEOC's exhortations in its papers opposing this
motion, nothing in the record before the Court supports the notion that
Die Fliedermaus had no intention to engage in good faith attempts at
As indicated above, the "preferred remedy" for a failure to conciliate
"is not dismissal but instead a stay of the action to permit such
conciliation." New Cherokee, 829 F. Supp. at 81. Since it is not the case
here that "the EEOC has made absolutely no efforts" to conciliate,
dismissal is not warranted. Id.
This action is in its initial stages and all proceedings will be stayed
for thirty days to permit the parties to resolve a class definition and
the dollar amount of a global settlement. On this condition, the motion
to dismiss the EEOC complaint for failure to conciliate is denied.
III. Jurisdiction Exists Over The Individual Plaintiffs' Title VII Claims
The Individual Plaintiffs did not receive a right to sue letter from
the EEOC. According to Defendants, this constitutes a jurisdictional
defect mandating dismissal of Claims 1-5 (the Title VII claims) in the
The preconditions to filing suit are set forth in the statute as follows:
If . . . within one hundred and eighty days from the
filing of [a] charge[,] . . . the Commission has not
filed a civil action under this section or . . .
entered into a conciliation agreement to which the
person aggrieved is a party, the Commission . . .
shall so notify the person aggrieved and within ninety
days after the giving of such notice a civil action
may be brought against the respondent named in the
charge . . . by the person claiming to be aggrieved. . . .
42 U.S.C. § 2000e-5 (f)(1). The "notice" in the statutory language is
commonly referred to as the "right to sue letter."
The most recent of the Individual Plaintiffs' charges was filed on June
22, 1998. On or about March 3, 1999, the EEOC informed the Individual
Plaintiffs' counsel that the EEOC had elected to file suit against Die
Fliedermaus and Le Bar Bat. The Individual Plaintiffs, therefore, were
not issued a right to sue letter.
The Individual Plaintiffs maintain, first, that because their Complaint
alleges (1) jurisdiction under 42 U.S.C. § 2000e-5(f)(3), and
28 U.S.C. § 1331 & 1343, and (2) the performance of all required
conditions precedent to suit, Defendants cannot demonstrate that the
Court lacks subject matter jurisdiction, because on a motion to dismiss
the Court cannot look beyond the pleadings. However, while in considering
a motion to dismiss for lack of subject matter jurisdiction, all material
factual allegations in the complaint must be accepted as true, see
Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90
(1974); Atlantic Mutual Ins. Co. v. Balfour Maclaine Int'l Ltd.,
968 F.2d 196, 198 (2d Cir. 1992), the court must examine the substance of
the allegations and any other evidence before it in resolving the
jurisdictional dispute. See Cargill Int'l, S.A. v. M/T Pavel Dybenko,
991 F.2d 1012, 1019 (2d Cir. 1993); Kamen v. American Tel. & Tel. Co.,
791 F.2d 1006, 1011 (2d Cir. 1986). Moreover, the Court will not draw
inferences favorable to the party asserting jurisdiction. See Norton v.
Larney, 266 U.S. 511, 515, 45 S.Ct. 145, 69 L.Ed. 413 (1925) ("[T]he
jurisdiction of a federal court must affirmatively and distinctly appear
and cannot be helped by presumptions or by argumentative inferences drawn
from the pleadings."); Atlantic Mutual, 968 F.2d at 198. Defendants here
have raised a legitimate question regarding subject matter jurisdiction,
which cannot be dispensed with by the allegation in the Boggs Complaint
that jurisdiction is proper.
Next, Plaintiffs maintain that because the EEOC did not take action
within 180 days of the last filed charge, the right to sue is conferred
upon Plaintiffs. Strictly speaking, of course, this is not correct. The
statute calls for an intervening step. "The prerequisites for a suit
under Title VII include a timely filed administrative charge and timely
institution of the suit after receipt of a right-to-sue notice." Criales
v. American Airlines, Inc., 105 F.3d 93, 95 (2d Cir. 1997) (emphasis
added) (citing 42 U.S.C. § 2000e-5 (e)(1) (timely charge) & (f)(1)
(right-to-sue notice)); Alexander v. Gardner-Denver Co., 415 U.S. 36,
47, 94 S.Ct. 1011, 1019, 39 L.Ed.2d 147 (1974); McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 798, 93 S.Ct. 1817, 1822, 36 L.Ed.2d 668 (1973).
However, where the EEOC has elected to bring suit, plaintiffs have the
statutory right to intervene. See Fed.R.Civ.P. 24(a);
42 U.S.C. § 2000e-5(f)(1). Under such circumstances, receipt of a
right to sue letter is not a jurisdictional prerequisite. See id.; see
also General Tel. Co. v. EEOC, 446 U.S. 318, 326, 100 S.Ct. 1698, 64
L.Ed.2d 319 (1980). Thus, an "aggrieved person" may intervene in an
enforcement action brought under Title VII by the EEOC. See EEOC v.
Service Systems Corp., No. CIV-83-766, 1983 WL 576, at *1 (W.D.N Y
Aug.5, 1983) ("It is well-established that an `aggrieved person' may
intervene in an enforcement action brought under [§ 2000e-5] by the
EEOC"). Title VII does not foreclose an individual claim simply because
the action was instituted by the EEOC. Rather, "the EEOC's civil suit
[is] intended to supplement, not replace, the private action." General
Tel., 446 U.S. at 326, 100 S.Ct. 1698. The EEOC represents not only the
public interest, but also "acts . . . at the behest of and for the benefit
of specific individuals." Id.
The Individual Plaintiffs' motion to intervene in the EEOC action is
hereby granted. Claims 1-5 of the Boggs Action (the Individual
Plaintiffs' Title VII Claims) are thus preserved within the EEOC Action,
though not within the Boggs Action.
IV. The § 1981 Claim of Hawkes Is Allowed
The Sixth Claim of the Individual Plaintiffs' Complaint stems from Le
Bar Bat's alleged policy of not permitting "color on the floor" (Compl.
¶ 249), i.e., its refusal to train or hire African-Americans as
cocktail waitresses. Hawkes, an African-American who was employed as a
hostess at Le Bar Bat, unsuccessfully sought a position as a cocktail
waitress. The claim is predicated on 42 U.S.C. § 1981 (a), which
states, in pertinent part: "All persons . . . shall have the same right
. . . to make and enforce contracts. . . ."
To establish a § 1981 claim, a plaintiff must establish: (1) that
she is a member of a racial minority; (2) an intent to discriminate on
the basis of race by the defendant; and (3) that the discrimination
concerned one of the activities enumerated in § 1981. See Mian v.
Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir.
1993). As applied to this case, § 1981 requires evidence of
intentional discrimination that has interfered with a contractual
relationship. See Murray v. National Broad. Co., 844 F.2d 988, 995 (2d
Cir. 1988) (citing Krulik v. Board of Educ., 781 F.2d 15, 23 (2d Cir.
This Circuit has not ruled on the question of whether, in light of
Congress's 1991 amendment to § 1983, see Civil Rights Act of 1991,
Pub.L. No. 102-166, § 101, an at-will employee, such as Hawkes, lacks
the type of contractual relationship with her employer necessary to
assert a § 1981 claim. District courts are divided on the issue.*fn4
The question is currently pending
before the Second Circuit. See Lauture v. IBM, 98 Civ. 4882 (S.D.N.Y. May
25, 1999), appeal docketed, 99-7732 (2d Cir. Jun. 21, 1999). The Fourth
Circuit and Fifth Circuit have recently decided that at-will employees
can assert § 1981 claims. See Spriggs v. Diamond Auto Glass,
165 F.3d 1015, 1018 (4th Cir. 1999); Fadeyi v. Planned Parenthood Ass'n
of Lubbock, Inc., 160 F.3d 1048, 1052 (5th Cir. 1998). The Seventh
Circuit avoided deciding the issue in Gonzalez v. Ingersoll Milling
Mach. Co., 133 F.3d 1025, 1035 (7th Cir. 1998).
Of the numerous decisions cited, this Court finds the reasoning of the
Fifth Circuit most compelling:
None can contest that discriminating against an
employee on the basis of race is illegal and against
public policy. In amending § 1981, Congress was
advancing such public policy concerns by providing a
vehicle for every employee to remedy racial
discrimination in the workplace. Congress could not
have meant to exclude at-will workers from the reach
of § 1981, as to do so would be to allow use of
the ubiquitous at-will doctrine as leverage to incite
violations of our state and federal laws.
Fadeyi, 160 F.3d at 1052 (internal quotation omitted). In the absence of
controlling authority from this Circuit, the Fadeyi holding is adopted
Therefore, Hawkes' § 1981 claim will not be dismissed.
V. The Constructive Discharge Claims Are Dismissed
The Individual Plaintiffs have alleged in considerable detail the
sexual harassment and racial discrimination committed by the Defendants.
Plaintiffs have also alleged that these conditions led to the
constructive discharge of Plaintiffs. Defendants contend, however, that
Plaintiffs have not pled the requisite intent to discharge of the
employer, Die Fliedermaus.
"Constructive discharge of an employee occurs when the employer
intentionally creates a work environment that is so intolerable that the
employee is, in effect, forced to quit involuntarily." Parker v. Chrysler
Corp., 111 F.3d 123 (2d Cir. 1997) (citing Chertkova v. Connecticut Gen.
Life Ins. Co., 92 F.3d 81, 89 (2d Cir. 1996)) (affirming dismissal of
plaintiffs constructive discharge claim because allegations regarding work
environment "fall far short of demonstrating that unbearable working
conditions were deliberately created to force him to quit"); see also
Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1188 (2d Cir. 1987) (a
"constructive discharge occurs when the employer, rather than acting
directly, deliberately makes an employee's working conditions so
intolerable that the employee is forced into an involuntary resignation")
(internal quotation marks omitted).
Plaintiffs have met their burden to plead a sufficiently intolerable
working environment. At issue here is the requirement to plead
deliberateness in some form on the part of the employer. See Watts v. New
York City Police Dep't, 724 F. Supp. 99, 109 (S.D.N.Y. 1989); see also
Babcock v. Frank, 783 F. Supp. 800, 810 (S.D.N Y 1992) ("A plaintiff must
prove that her employer deliberately acted or refrained from acting,
rendering her working conditions so intolerable as to force her
resignation"). "Deliberateness exists only if the actions complained of
were intended by the employer as an effort to force the employee to
quit." Rivera v. Prudential Ins. Co., No. 95-CV-0829, 1996 WL
637555, at *14 (N.D.N.Y. Oct.21, 1996) (quoting Lombardo v. Oppenheimer,
701 F. Supp. 29, 30 (D.Conn. 1987)). Accordingly, in assessing the
viability of a constructive discharge claim, the court has to examine the
defendants' motives as well as the plaintiffs' working conditions.
Watts, 724 F. Supp. at 109 n. 8 (Second Circuit requires inquiry into
motive of employer).
The Boggs Complaint does not allege any intent or act on the part of
Defendants threatening termination, demotion, or a change in job status.
Where a constructive discharge has been found, the employer has made
clear and unequivocal remarks to the employee. See Stetson v. NYNEX
Serv. Co., 995 F.2d 355, 361 (2d Cir. 1993) (no constructive discharge as
employer "never either expressly or implicitly suggested that
[plaintiff's] employment would be terminated"); Pena v. Brattleboro
Retreat, 702 F.2d 322, 325-26 (2d Cir. 1983) (finding no constructive
discharge when employer asked plaintiff to stay); Kirsch v. Fleet St.,
Ltd., 148 F.3d 149, 160 (2d Cir. 1997) (jury finding of constructive
discharge upheld on evidence that employer nodded when plaintiff
suggested that the company was trying to force her to leave); S.B.
Thomas, 831 F.2d at 1189 (2d Cir. 1987) (constructive discharge when
employee told he would be fired at end of 90-day period no matter what);
Chertkova, 92 F.3d at 88 (threat of immediate termination).
The claims based on constructive discharge are therefore dismissed.
VI. The Retaliation Claims Are Actionable
Under the relatively settled law of this Circuit, to establish a prima
facie case of retaliation under Title VII a plaintiff must demonstrate
(1) participation in a protected activity known to the defendant; (2) an
employment action disadvantaging the plaintiff; and (3) a causal
connection between the protected activity and the adverse employment
action. See, e.g., Kotcher v. Rosa and Sullivan Appliance Ctr., Inc.,
957 F.2d 59, 64 (2d Cir. 1992).
Plaintiffs' filing of a charge with the EEOC, of which Le Bar Bat was
unquestionably aware, constitutes a protected activity under prong (1) of
the inquiry. Defendants maintain, however, that Plaintiffs have not
alleged any employment action in which they have been disadvantaged that
is causally connected to their filing of the EEOC charges. Plaintiffs
counter that the nexus between a protected activity, an adverse
employment action, and retaliation should not be necessary: since the
primary purpose of the anti-retaliation provisions in Title VII is to
alleviate the fears of persons with legitimate grievances who might
refrain from filing claims on the basis of possible retaliation, it
should make no difference whether the retaliatory action involves an
adverse employment action. See Robinson v. Shell Oil Co., 519 U.S. 337,
346, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) ("[A] primary purpose of
[Title VII's] antiretaliaton provisions" is "[m]aintaining unfettered
access to statutory remedial mechanisms.").
While it is true that this Circuit had never held that retaliation
unrelated to an adverse employment action is actionable under Title VII,
the cases so holding were decided prior to Robinson, which affirms a
broader rationale behind the antiretaliaton provisions.
In holding that retaliatory actions not resulting in adverse employment
consequences are not actionable under Title VII, courts have reasoned
that "`[t]he objective of Congress in the enactment of Title VII . . .
was to achieve equality of employment opportunities. . . .'" Nelson v.
Upsala College, 51 F.3d 383, 387 (3d Cir. 1995) (quoting Griggs v. Duke
Power Co., 401 U.S. 424, 429, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971)).
Yet, as the Nelson court itself acknowledged:
Our reading of [Title VII] does mean that a former
employee will be without a remedy for an employer's
significant wrongful post-employment conduct not
touching an employment relationship. For instance, if
an employer physically assaults a former employee or
burns down her house in retaliation for the employee
having brought a Title VII charge, relief might not be
available under section 704. However, in such cases
the former employee could assert a state-law damage
claim. In fact, [plaintiff's] defamation claims are an
example of a former employee seeking relief in a
common law action for conduct which the employee
herself characterizes as retaliatory. Thus, if
[defendant] really defamed her she does not need a
section 704(a) retaliation action to obtain relief.
Nelson, 51 F.3d at 388.
While it is true that Plaintiffs here, as in Nelson, are asserting
defamation claims arising from the same conduct as the retaliation
claims, the Nelson reasoning appears to have been superseded by the
reasoning in Robinson, 519 U.S. at 346, 117 S.Ct. 843. Robinson did
involve an adverse employment action — the former employer gave the
former employee, who had filed a charge with the EEOC, a negative
recommendation for a prospective employer — and thus Robinson does
not squarely fit within the facts of the instant case.
Nonetheless, fear of any type of retaliation can deter an aggrieved
person from filing an EEOC charge, and since the charge must, a fortiori,
relate to equality of employment opportunities, to say that retaliation
not resulting in an adverse employment action is therefore unrelated to
employment conditions does not necessarily follow. Moreover, contrary to
the reasoning of the Nelson court, there may be circumstances where
retaliation not related to an adverse employment action is not actionable
under a separate legal theory. While it could be possible to fashion a
rule permitting a retaliation claim to lie if the violative conduct is
not otherwise actionable, this would impose the unnecessary burden on
courts and litigants of determining whether a given instance of
non-employment related retaliation was otherwise actionable. The more
logical rule is to allow the retaliation claim to be actionable if the
retaliation is sufficiently alleged to flow from the filing of the EEOC
This being said, it is also the case that Defendants' public
distribution of flyers could affect Plaintiffs' ability to find jobs.
Admittedly, the likelihood is not necessarily great, but it is sufficient
to survive the pleading stage.
VII. The Intentional Infliction Claims Are Dismissed
Under New York law, "intentional infliction of emotional distress is a
theory of recovery that is to be invoked only as a last resort" and such
a claim is therefore "precluded where the offending conduct is embraced
by a traditional tort remedy." McIntyre v. Manhattan Ford,
Lincoln-Mercury, Inc., 256 A.D.2d 269, 682 N.Y.S.2d 167 169 (1st Dep't
1998) (citing Fischer v. Maloney, 43 N.Y.2d 553, 402 N.Y.S.2d 991,
373 N.E.2d 1215 (1978); Sweeney v. Prisoners' Legal Services of New
York, 146 A.D.2d 1, 538 N.Y.S.2d 370, 374 (3d Dep't 1989)). Accordingly,
the New York courts have dismissed intentional infliction of emotional
distress ("IIED") claims where the plaintiffs have also asserted a
defamation claim arising from the same conduct. See, e.g., Dec v. Auburn
Enlarged Sch. Dist., 249 A.D.2d 907, 672 N.Y.S.2d 591, 593 (4th Dep't
1998); Herlihy v. Metropolitan Museum of Art, 214 A.D.2d 250,
633 N.Y.S.2d 106, 114 (1st Dep't 1995); Sweeney, 146 A.D.2d 1,
538 N.Y.S.2d 370.*fn5
In Anyanwu v. Columbia Broadcasting System, Inc., 887 F. Supp. 690, 693
(S.D.N.Y. 1995), this Court rejected a similar effort to assert an IIED
claim arising from the same conduct upon which a libel claim was based,
holding that "[w]hen additional tort claims are aimed at controlling the
same speech that is the basis of a libel claim, courts should not
entertain the additional claims under less stringent standards. New York
cases have held that a separate cause of action for what are essentially
defamation claims should not be entertained." Id. at 693-94 (citations
Two components of the IIED claim — a telephone call purportedly
made to Roenfeldt in February 1998 and statements purportedly made to
Boggs in March 1998 at the China Club — do not fall within the
ambit of Plaintiffs' defamation cause of action. These aspects of the
claim are barred by New York's one-year statute of limitations, the
complaint having been filed on April 3, 1999, more than one year since
the acts were committed. See N YC.P.L.R. § 215(3); Burrell v. City
University of New York, 995 F. Supp. 398, 415-16 (S.D.N.Y. 1998); Mariani
v. Consolidated Edison Co., 982 F. Supp. 267, 273 (S.D.N.Y. 1997);
Mitchell v. FAB Indus. Inc., No. 96 Civ. 0095 (RWS), 1996 WL 417522
(S.D.N.Y. July 25, 1996).
The allegations in the Boggs Complaint of activities not barred by the
statute of limitations all appear to be defamatory in nature and as such
the IIED claims are dismissed. If, as the Individual Plaintiffs now
claim, there are statements or acts giving rise to an IIED claim outside
the contours of a libel or defamation claim, those matters should be
VIII. Die Fliedermaus' Vicarious Liability for Intentional Tort Has
Been Properly Pleaded
An employer cannot be held vicariously liable for the acts of its
employees unless those acts were committed while the employees were
performing their duties for the express benefit of the employer. Ross v.
Mitsui Fudosan, Inc., 2 F. Supp.2d 522, 531 (S.D.N.Y. 1998); see also H &
H Int'l Corp. v. J. Pellechia Trucking, Inc., 119 F.R.D. 352, 353
(S.D.N.Y. 1988). Actions that are undertaken for personal motives and not
in furtherance of the employer's business do not give rise to employer
liability. See, e.g., Tomka v. Seiler Corp., 66 F.3d 1295, 1318 (2d Cir.
On the other hand, an employer may be liable for false statements
maliciously published by its employees in the course of employment. See
Loughry v. Lincoln First Bank, 67 N.Y.2d 369, 494 N.E.2d 70,
502 N.Y.S.2d 965 (1986). The Loughry court also held that punitive
damages for the same acts can be assessed against the employer in the
presence of its complicity, stating that punitive damages can be imposed
on an employer for the intentional wrongdoing of its employees where
management has authorized, participated in, consented to, or ratified the
conduct giving rise to such damages or deliberately retained the unfit
servant. Id. at 373, 502 N.Y.S.2d 965, 494 N.E.2d 70.
Moreover, the determination of whether a particular act was within the
scope of the servant's employment is heavily dependent on factual
considerations, and therefore the question is ordinarily one for the
jury. See Riviello v. Waldron, 47 N.Y.2d 297, 302, 418 N.Y.S.2d 300,
391 N.E.2d 1278 (1979). An employer can also be held liable for an
employee's discriminatory act if the employer became a party to it "by
encouraging, condoning, or approving it." Totem Taxi, Inc. v. New York
State Human Rights Appeal Rd., 65 N.Y.2d 300, 305, 491 N.Y.S.2d 293,
480 N.E.2d 1075 (1985).
The Boggs Complaint is replete with allegations that the behavior of
defendants Shallo, Cerrone, Kelly, and Azoulay at Le Bar Bat was
encouraged, condoned, or approved, since it is alleged that each of
these defendants held a managerial or ownership position with Le Bar
Bat. Likewise, Kelly's managerial position as Director of Banquets
suffices at the pleading stage to impute vicarious liability to Die
Fliedermaus for the distribution of the flyers.
Thus, the motion to dismiss the Individual Plaintiffs' claims for
damages based upon the vicarious liability of Die Fliedermaus for the
intentional torts of its employees is denied.
IX. Jurisdiction Over the State and City Human Rights Claims Against
Walsh and Tortoso is Declined
Walsh and Tortoso have moved for dismissal of the seventh and eighth
causes of action in the Boggs Complaint, which allege violations of
§ 296(1)(a) of the NYSHRL and §§ 8-107(1)(a), 8-107(1)(c),
8-107 (19), and 8-107 (13)(b)(1-3) of the Administrative Code of New York
City. Walsh and Tortoso have urged the Court t6' decline to exercise
jurisdiction over these claims because of the conflict in the New York
State courts over the question of whether or not an ownership interest in
the employer is a requirement of the cause of action.*fn6
This same issue was raised in Ponticelli v. Zurich American Insurance
Group, 16 F. Supp.2d 414 (S.D.N.Y. 1998), where this Court declined
jurisdiction because of the same unsettled state law question. See id. at
439-40. The Plaintiffs have not established any basis for concluding that
Ponticelli should not be followed in this instance.
Jurisdiction over these claims against Walsh and Tortoso will therefore
X. Failure to File Is Not a Jurisdictional Prerequisite
The Defendants have urged § 8-502(c) of the City's Administrative
Code as a bar to the action, the Plaintiffs having concededly not filed
their claim with the City Human Rights Commission or the Corporation
Counsel. However, for the reasons set forth in Klein v. London Star
Ltd., 26 F. Supp.2d 689, 696 (S.D.N.Y. 1998), the failure to file will
not serve as a bar.
XI. The Motions to Dismiss for Improper Service Are Denied
Tortoso and Walsh maintain that proper service was never effected on
either of them, thereby mandating dismissal of all claims against them.
The Federal Rules provide that service upon an individual may be
effected: "(1) pursuant to the law of the state in which the district
court is located . . . or (2) . . . by leaving copies [of the summons and
complaint] at the individual's dwelling house or usual place of abode
with some person of suitable age and discretion then residing
therein. . . ." Fed.R.Civ.P. 4(e). Under New York law, service upon an
individual may be effected through delivery of the summons to "a person of
suitable age and discretion" at the individual's "dwelling or usual place
of abode" and by mailing the summons by first class mail to the
individual's last known address. N YC.P.L.R. § 308(2) (McKinney 1999).
The parties have engaged in lengthy contentions regarding whether the
various attempts of the Individual Plaintiffs to serve Tortoso and Walsh
constituted effective service. Affidavits have been supplied
by both parties which create factual questions not capable of easy
It is unnecessary, however, to engage in a protracted discussion of
whether the evidence supplied by the Individual Plaintiffs is sufficient
under the statutes and the case law to effect valid service. Under Rule
If service of the summons and complaint is not made
upon a defendant within 120 days after the filing of
the complaint, the court, upon motion or on its own
initiative after notice to the plaintiff, shall
dismiss the action without prejudice as to that
defendant or direct that service be effected within a
specified time; provided that if the plaintiff shows
good cause for the failure, the court shall extend the
time for service for an appropriate period.
Fed.R.Civ.P. 4(m). "In determining whether a plaintiff has shown good
cause under Rule 4(m), courts in this Circuit generally consider whether
(1) the plaintiff made reasonable efforts to serve the defendant, and (2)
the defendant was prejudiced by the delay in service." Shider v.
Communications Workers of America, No. 95 Civ. 4908 (SS), 1999 WL
673345, at *2 (S.D.N.Y. Aug. 30, 1999).
There is no doubt that the Individual Plaintiffs made "reasonable
efforts" to serve Tortoso and Walsh, by engaging process servers to
deliver copies of the summons and complaint in the Boggs Action to
addresses reasonably believed to be current, as well as to the residences
of Tortoso's and Walsh's parents. Nor have Tortoso and Walsh demonstrated
any prejudice. Both have retained counsel who filed the instant motions
long before the 120 day time-limit for service had expired. Under these
circumstances, dismissal for lack of service is not warranted. Rather, to
insure that service is perfected, the Court directs that the Individual
Plaintiffs serve Walsh and Tortoso within thirty days from the date of
the opinion by personally serving a copy of the summons and complaint on
Walsh and Tortoso may be served as set forth.
The actions are consolidated and an order of consolidation will be
submitted upon notice within ten (10) days.
The action will be stayed after consolidation for twenty (20) days to
The causes of action for constructive discharge and IIED are
Jurisdiction is declined over the NYSDHR and City Code claims against
Tortoso and Walsh.
Leave is granted to submit a consolidated complaint within fifty (50)
The remaining claims stand.
It is so ordered.