over there in Africa and never let him leave." Id. at ¶ 28.
Plaintiff's complaint states, upon information and belief, that
"in an attempt to cover-up Bloom's wrongdoing, Bampoe was
terminated by Bloom, because Bampoe was a witness to many
instances of racial and sexual harassment by Bloom and because
Bampoe had objected to the misconduct of Bloom . . ." Id. at ¶
35. Furthermore, plaintiff alleges that "Bloom fired Bampoe
because [sic] his knowledge of and objection to Bloom's
misconduct against minority and female employees and because
Bampoe was a threat to Bloom's position at Coach, and because
Bampoe was a black person over the age of 50." Id. at ¶ 37.
Plaintiff alleges that, pursuant to Coach's guidelines,
plaintiff took vacation commencing on December 21, 1996. Id. at
¶ 27. On January 5, 1997, the day before plaintiff was to return
to work, he received a telephone call from a person who
identified himself as Jason Grella ("Grella"), Director of PSB.
In that conversation, Grella told plaintiff that he no longer
worked for Coach and instructed him to report for work at PSB
instead, Id. at ¶¶ 32-33. The next day, Grella told plaintiff
that, while he no longer worked for Coach, he was being promoted
from the position of "site supervisor" to "site inspector." Id.
at ¶ 34. However, according to plaintiff, the "promotion"
resulted in plaintiff's salary being reduced from the $560 per
week plus overtime he received while working for Coach, to $400
per week. Id. On September 30, 1997, plaintiff filed a charge
of discrimination with the Equal Employment Opportunity
Commission ("EEOC") against the defendants. On or about May 26,
1998, plaintiff received notice of a right to sue from the EEOC.
Id. at ¶¶ 39-40. Plaintiff filed a complaint in this matter on
August 21, 1998, and an amended complaint on October 6, 1998.
Defendants filed the instant motions to dismiss on November 3,
Plaintiff's amended complaint contains eight claims, all of
which are asserted against both defendants. Plaintiff alleges
retaliatory discharge under Title VII (first claim);
discriminatory discharge under Title VII (second claim); hostile
work environment (third claim); discriminatory employment
practices under Title VII (fourth claim); retaliatory discharge
under NYSHRL (fifth claim); discriminatory discharge under NYCHRL
(sixth claim); discriminatory practices under NYSHRL (seventh
claim); and a violation of § 1981 (eighth claim).
In its motion, Coach seeks dismissal of all claims in the
amended complaint. Coach argues that: (1) plaintiff's Title VII,
§ 1981 and state claims are untimely; (2) plaintiff's claims
should be dismissed because he was not an employee of Coach for
Title VII purposes; (3) plaintiff cannot allege a prima facie
case of discrimination or retaliation; and (4) plaintiff does not
state a claim under § 1981.
PSB argues that (1) plaintiff's hostile work environment and
discrimination claims are time-barred under applicable statue of
limitations; (2) plaintiff fails to make out discriminatory and
retaliatory discharge claims; and (3) PSB cannot be liable for
plaintiff's third, fourth, fifth, sixth, seventh and eighth
claims because plaintiff failed to allege that he notified PSB of
Bloom's alleged discriminatory acts.
In a letter to the Court, dated December 4, 1998, PSB informed
the Court that after plaintiff was transferred from the Coach
location, plaintiff's replacement as Site Supervisor at the Coach
location was an African-American male, rather than a white male,
as plaintiff had originally claimed. See Thomas Aff. at ¶
3.*fn2 After verifying this information, plaintiff withdrew "all
allegations in his amended complaint and otherwise before the
Court that he was replaced by a white person when he was
terminated from his employment at Coach
and all arguments in his memorandum of law that necessarily rely
on the allegation that his replacement was white." See 12/10/98
Eikenberry Letter (emphasis in original).*fn3
A Rule 12(b)(6) motion should be granted "only where it appears
beyond doubt that the plaintiff can prove no set of facts in
support of the claim which would entitle him to relief." Scotto
v. Almenas, 143 F.3d 105, 109-10 (2d Cir. 1998) (quoting
Branham v. Meachum, 77 F.3d 626, 628 (2d Cir. 1996)). "The task
of the court in ruling on a Rule 12(b)(6) motion `is merely to
assess the legal feasibility of the complaint, not to assay the
weight of the evidence which might be offered in support
thereof.'" Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998)
(quoting Ryder Energy Distribution Corp. v. Merrill Lynch
Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984)).
In a motion for judgment on the pleadings, all allegations of
fact by the nonmoving party must be accepted as true and
construed in the light most favorable to that party. See, e.g.,
Madonna v. United States, 878 F.2d 62, 65 (2d Cir. 1989); Owens
v. Haas, 601 F.2d 1242, 1247 (2d Cir.), cert. denied,
444 U.S. 980, 100 S.Ct. 483, 62 L.Ed.2d 407 (1979) (citing Escalera v.
New York City Hous. Auth., 425 F.2d 853, 857 (2d Cir.), cert.
denied, 400 U.S. 853, 91 S.Ct. 54, 27 L.Ed.2d 91 (1970)). A
court should draw all reasonable inferences in favor of the
plaintiff, and should not dismiss the complaint unless it appears
beyond doubt that plaintiff can prove no set of facts in support
of his claim that would entitle him to relief. Sheppard v.
Beerman, 18 F.3d 147, 150 (2d Cir.), cert. denied,
513 U.S. 816, 115 S.Ct. 73, 130 L.Ed.2d 28 (1994).
A. Timeliness of Claims
Coach asserts that plaintiff's Title VII and § 1981 claims are
time-barred and should be dismissed. PSB argues that plaintiff's
third and fourth claims (hostile work environment and
discriminatory employment practices, respectively) are
time-barred because plaintiff's allegations occur prior to the
300-day cutoff for discriminatory allegations under Title VII.
Both defendants argue that plaintiff does not allege with
specificity discriminatory acts that fall within the 300-day time
period. Plaintiff counters that (1) even if certain allegations
are time-barred for Title VII purposes, they are still admissible
as evidence of the discriminatory and retaliatory motives of
defendants; and (2) plaintiff's hostile work environment claim
falls under the continuing-violation exception to Title VII, and
is thus timely.
1. Title VII
Pursuant to 42 U.S.C. § 2000e-5(e)(1), in order to bring a
civil suit under Title VII, a plaintiff must file a charge with
the EEOC within 180 days of the alleged discriminatory
misconduct. If the charge is first filed with a state or local
agency where the state or locality has a law forbidding such
conduct, as New York does, plaintiff's time to file a charge with
the EEOC is extended to 300 days. See Quinn v. Green Tree Credit
Corp., 159 F.3d 759, 765 (2d Cir. 1998). This requirement
functions as a statute of limitations because discriminatory
incidents not timely charged before the EEOC will be time-barred
in district court, Id. (citing Van Zant v. KLM Royal Dutch
Airlines, 80 F.3d 708, 712 (2d Cir. 1996); Butts v. City
of New York, 990 F.2d 1397, 1401 (2d Cir. 1993)). Because
plaintiff's charge was filed with the EEOC on September 30, 1997,
plaintiff may only include incidents alleged to have occurred
after December 5, 1996. However, where plaintiff can show that
the acts complained of constitute a continuing violation of his
civil rights, the statutory period may be extended.
The continuing-violation exception "extends the limitations
period for all claims of discriminatory acts committed under an
ongoing policy of discrimination even if those acts, standing
alone, would have been barred by the statute of limitations."
Quinn, 159 F.3d at 765 (emphasis omitted) (quoting Annis v.
County of Westchester, 136 F.3d 239, 246 (2d Cir. 1998)).
"[M]ultiple incidents of discrimination, even similar ones, that
are not the result of a discriminatory policy or mechanism do not
amount to a continuing violation." Lambert v. Genesee Hospital,
10 F.3d 46, 53 (2d Cir. 1993). However, a continuing violation
may be found "where there is proof of specific ongoing
discriminatory polices [sic] or practices, or where specific and
related instances of discrimination are permitted by the employer
to continue unremedied for so long as to amount to a
discriminatory policy or practice." Cornwell v. Robinson,
23 F.3d 694, 704 (2d Cir. 1994). Additionally, courts in this
Circuit disfavor the continuing violation argument. Bawa v.
Brookhaven Nat'l Laboratory, Inc. 968 F. Supp. 865, 868 (E.D.N Y
1997) (citing Van Zant, 80 F.3d at 713); Blesedell v. Mobile
Oil Co., 708 F. Supp. 1408, 1415 (S.D.N.Y. 1989).
As noted above, plaintiff may only allege discriminatory Title
VII acts occurring on or after December 5, 1996. The only alleged
discriminatory act that the complaint specifies occurred after
that date was the comment that Bloom "hoped they locked Bampoe up
over there in Africa and never let him leave." Compl. at ¶ 28.
The complaint states that this comment was made by Bloom to
Bampoe "just before Bampoe left for his vacation." Id.
Plaintiff alleges that his last day of work with Coach was on
December 20, 1996. Id. at ¶ 26. Therefore, any actionable
conduct must have occurred between December 5 and December 20,
1996. A reasonable inference is that the use of the phrase "just
before" by plaintiff places the comment within the applicable
Plaintiff alleges that "[i]n late 1995," Bloom told plaintiff,
"I thought you Africans drowned your daughters." Compl. ¶ at 20.
This statement falls outside of the statutory period. The
remainder of plaintiff's allegations in the complaint are either
conclusory or vague and contain no time-frames ("[d]uring his
employment with Coach, Bloom continuously referred to black
people as `niggers' and to Hispanics as `spics' in Bampoe's
presence" Id. at ¶ 19; plaintiff witnessed "Bloom's frequent
comments to minority employees" including that Coach was not on
"colored people's time," and that African-American and Latino
employees were only capable of "sweeping the floor at McDonalds."
Id. at ¶ 21; plaintiff "continuously heard Bloom use racial
epithets in addressing minority employees as set forth above up
until and including Bampoe's last day of work at Coach on
December 20, 1996." Id. at ¶ 26). It is impossible for the
Court to tell whether the claims above fell into the sixteen-day
window that plaintiff has allowed himself. However, whether all
or some of the above allegations fell outside of the statutory
period, the Court must now turn it's attention to whether
plaintiff has established a continuing violation. The Court
concludes that he has not.
Since the only act alleged to have occurred within the
statutory time period is Bloom's statement on or about December
20, 1996, plaintiff's complaint must allege a policy of
discrimination, or discrimination that was unremedied by
defendants for so long that it constitutes a policy of
discrimination. Plaintiff's complaint does neither. "[T]he mere
continuation of a discriminatory act's effects, when the act
itself occurred prior to the pertinent limitations
period, is not sufficient to support recovery under Title VII."
Ass'n Against Discrimination v. City of Bridgeport,
647 F.2d 256, 274 (2d Cir.) (citation omitted), cert. denied,
455 U.S. 988, 102 S.Ct. 1611, 71 L.Ed.2d 847 (1982). "Completed acts such
as termination through discharge or resignation, a job transfer,
or discontinuance of a particular job assignment, are not acts of
a `continuing nature.'" Gilliard v. New York City Public
Library, 597 F. Supp. 1069, 1077 (S.D.N.Y. 1984).
A reading of the complaint reveals that plaintiff has not pled
a continuous policy of discrimination or alleged a discriminatory
pattern at Coach sufficient to toll the statutory period. The
complaint does not allege that plaintiff ever reported the
alleged discrimination to anyone at Coach or PSB. Rather, the
complaint alleges, in conclusory fashion, that between 1988 and
May of 1997, there was "a continuous pattern and practice of
pervasive race, gender and age discrimination" at Coach. See
Compl. at ¶ 41. However, a conclusory allegation of a continuing
violation will not suffice. See Alveari v. Am. Int'l Group,
Inc., 590 F. Supp. 228, 231 (S.D.N.Y. 1984). Additionally, the
assertions and "statistics" contained in the complaint bear no
relation to plaintiff's retaliation case. See Compl. at ¶
41(a)-(k). The allegations outlined above are insufficient to
allege a continuing violation. As a result, I find that the only
timely discriminatory allegation in the complaint is the December
20, 1996 statement attributed to Bloom. The remaining allegations
should be dismissed as time-barred.
2. Hostile Work Environment
The continuing-violation exception also applies to plaintiff's
hostile work environment claims. "By its nature, a claim of
`hostile environment' discrimination turns on the existence of a
continuing violation, rather than on any individual offensive
act." Gregg v. New York State Dept. of Taxation & Finance, 1999
WL 225534 (S.D.N.Y. Apr.19, 1999) (quoting Engelmann v. Nat'l
Broadcasting Co., 1996 WL 76107, at *15 (S.D.N.Y. Feb.22,
1996)). As long as one incident of discrimination occurred within
the 300-day period prior to the filing of plaintiff's EEOC
charge, plaintiff's hostile work environment charge would be
timely. Id. Because it is reasonable to infer that Bloom's
statement about locking the plaintiff up in Africa occurred
within the 300-day limitations period, plaintiff's hostile work
environment claim is timely.
3. Section 1981 Claim
Plaintiff's claims under § 1981 are subject to a three-year
statute of limitations. See Wilson v. Fairchild Republic Co.,
Inc., 143 F.3d 733, 738 n. 5 (2d Cir. 1998); Tadros v.
Coleman, 898 F.2d 10, 12 (2d Cir. 1990). Plaintiff filed his
complaint on August 21, 1998, therefore he may only allege
discriminatory acts occurring after August 21, 1995. Plaintiff
claims that his last day at Coach was December 20, 1996.
Therefore, to the extent that plaintiff alleges that his
discharge from Coach amounted to a violation of § 1981, his cause
of action is timely.
B. Employer Status
Title VII, the NYSHRL and the NYCHRL prohibit an "employer"
from engaging in discriminatory practices.
42 U.S.C. § 2000e-2(a); N.Y. Executive Law § 296(1)(a); N.Y.Admin.Code §
8-107. In order for a court to exercise jurisdiction over a
defendant in a Title VII case, the defendant must meet the
statutory definition of an "employer." See Serrano v. 900 5th
Avenue Corp., 4 F. Supp.2d 315, 316 (S.D.N.Y. 1998). Generally,
courts recognize that "the term `employer,' as it is used in
Title VII, is sufficiently broad to encompass any party who
significantly affects access of any individual to employment
opportunities, regardless of whether that party may technically
be described as an `employer' of an aggrieved individual as that
term has generally been defined at common law." Spirt v.
Teachers Ins. &
Annuity Ass'n, 691 F.2d 1054, 1063 (2d Cir.), vacated on other
grounds, 463 U.S. 1223, 103 S.Ct. 3565, 77 L.Ed.2d 1406 (1983)
(quoting Vanguard Justice Society, Inc. v. Hughes, 471 F. Supp. 670,
696 (D.Md. 1979)). In determining whether a defendant is an
"employer" within the meaning of Title VII, the focus is on "the
amount of control or supervision a defendant exerts" over the
plaintiff. Rivera v. Puerto Rican Home Attendants Services,
Inc., 922 F. Supp. 943, 949 (S.D.N.Y. 1996). Particular emphasis
should be placed on whether a defendant controls the "means and
manner" by which work is accomplished. Frankel v. Bally, Inc.,
987 F.2d 86, 90 (2d Cir. 1993).
Coach's argument that it was not plaintiff's employer does not
address whether Coach significantly affected plaintiff's access
to employment opportunities. Rather, Coach argues, without the
benefit of case law, that a reading of plaintiff's complaint
belies the fact that plaintiff was employed first at Service Lock
and then at PSB, rather than at Coach. In support of this
proposition, Coach notes that in their answer, PSB admits that
plaintiff was its employee. Coach Mem. at p. 7.*fn4 Coach
further points to plaintiff's assertion that from 1983 until
January 1994, he received his salary from Service Lock; that upon
notice that PSB would be replacing Service Lock as Coach's
security provider, plaintiff filled out an employment application
for PSB; that from 1994 until December 1996, plaintiff received
his salary from PSB; and that PSB subsequently promoted plaintiff
to the position of site inspector. Coach Mem. at p. 8. Coach
asserts that these factors are determinative on the issue of
Coach's employer status for purposes of Title VII. This Court
disagrees with Coach's position.
In his amended complaint, plaintiff sufficiently alleges that
Coach affected his access to employment opportunities in a
significant way. For instance, plaintiff alleges that, at least
since 1991, while he worked with Coach, he was supervised by
Coach employees. Compl. at ¶ 11. Coach transferred plaintiff from
its flagship store location to its headquarters. Id. at ¶ 10.
Plaintiff also alleges that in January 1993, Coach offered
plaintiff the opportunity to work full-time at Coach and told him
that "he would soon be placed directly on Coach's payroll." Id.
at ¶ 12. Coach also "instructed" plaintiff to apply for a
position with PSB, when Coach retained it as a security
contractor. Id. at ¶ 16.
That plaintiff was paid by PSB, rather than by Coach itself, is
not conclusive on the issue of whether he was solely PSB's
employee. Coach does not contest the suggestion that it
controlled plaintiff's work location, the means and manner of
plaintiff's performance, and his work hours. See, e.g., Amarnare
v. Merrill Lynch, Pierce, Fenner & Smith Inc., 611 F. Supp. 344,
349 (S.D.N.Y. 1984), aff'd, 770 F.2d 157 (2d Cir. 1985) ("a
[temporary worker] whose salary is paid by one entity while his
services are engaged on a temporary basis by another is an
employee of both entities"). Here, plaintiff's allegations are
sufficient to bring Coach within the definition of "employer."
The Court finds that plaintiff was an employee of Coach for Title
C. Title VII Prima Facie Case*fn5
In order to establish a prima facie case of discriminatory
discharge, plaintiff must show (1) membership in a protected
class, (2) that he satisfactorily performed the duties of his
position; (3) that he was the subject of adverse employment
action; and (4) the adverse employment action
occurred under circumstances giving rise to an inference of
discrimination. A plaintiff often establishes this last prong by
showing that the position was ultimately filled by a person not
of the protected class. See Fisher v. Vassar College,
114 F.3d 1332, 1335 (2d Cir. 1997); Scaria v. Rubin, 117 F.3d 652, 653
(2d Cir. 1997). A plaintiff's burden of establishing a prima
facie case has been described as minimal. St. Mary's Honor Ctr.
v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407
(1993); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d
Plaintiff meets the first prong because he is a black and from
Ghana. As for the second prong, the Court will assume that
plaintiff satisfactorily performed the duties of his position.
Plaintiff satisfies the third factor because he allegedly
received a net cut in pay when he was "promoted." See Compl. at
¶ 34. However, with respect to the fourth element, the Court
finds that plaintiff has not sufficiently pled facts that
establish that the employment action occurred under circumstances
giving rise to an inference of discrimination. As noted supra,
plaintiff concedes that his position was not ultimately filled by
a white person as originally alleged. See 1/5/99 Eikenberry
letter at p. 1; Thomas Aff. at ¶¶ 3-6. Plaintiff has failed to
show that the position was ultimately filled by a person not of
the protected class. This undermines his attempt to establish a
prima facie case of Title VII discrimination. See Ticali v.
Roman Catholic Diocese of Brooklyn, 41 F. Supp.2d 249, 262
(E.D.N.Y. 1999); Umansky v. Masterpiece Int'l Ltd., 1998 WL
433779, *3 (S.D.N.Y. July 31, 1998) (that a white female
plaintiff "was replaced by another white female weighs heavily
against an inference that she was discriminated against as a
white female."); Estepa v. Shad, 652 F. Supp. 567, 570 n. 5
(E.D.N.Y. 1987) ("[U]nless a Title VII plaintiff is replaced by a
member of a nonprotected class, proof of intentional
discrimination appears extremely difficult, if not practically
impossible").*fn6 Moreover, plaintiff has failed to identify any
circumstances from which the Court might otherwise infer
discrimination. Therefore, plaintiff's Title VII discriminatory
discharge claim should be dismissed against both defendants.
D. The Retaliatory Discharge Claim
Both defendants move to dismiss the retaliation claim on the
grounds that plaintiff fails to state a prima facie case. PSB and
Coach argue that plaintiff does not sufficiently allege that he
engaged in a "protected activity" and Coach further alleges that
plaintiff has not shown that there was adverse employment
In order to state a prima facie case of retaliatory discharge,
plaintiff must show (1) participation in a protected activity
known to the defendant; (2) an employment action adverse to the
plaintiff; and (3) a causal connection between the protected
activity and the adverse employment decision. Quinn v. Green
Tree Credit Corp., 159 F.3d 759, 769 (2d Cir. 1998); Van Zant
v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir.
1. Protected Activity
To establish the first element — participation in a protected
activity — plaintiff need not prove that the conditions against
which he protested actually amounted to a violation of Title VII.
Quinn, 159 F.3d at 769 (citing Manoharan v. Columbia Univ.
College of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir.
1988)). Rather, he must demonstrate only that he had a "good
faith, reasonable belief that the underlying challenged actions
of the employer violated the law." Quinn, 159 F.3d at 769.
Plaintiff alleges that on one occasion he told Bloom, his
supervisor at Coach, that Bloom's racist remarks were "not
appropriate" and would "often gave Bloom a `look'" in response to
Bloom's racist comments to other employees of color. Compl. at ¶¶
20, 22. Plaintiff argues that his comment to Bloom and the
"looks" he gave constituted "protected activity" for the purposes
of a Title VII retaliation claim. Pl.Mem. at 21.*fn8 The Court
Informal complaints, as opposed to the formal filing of a
complaint with an agency, constitute protected activity under
Title VII. See, e.g., Tomka v. Seiler Corp., 66 F.3d 1295, 1308
(2d Cir. 1995) (citing Kotcher v. Rosa & Sullivan Appliance
Ctr., Inc., 957 F.2d 59, 65 (2d Cir. 1992)); Dortz v. City of
New York, 904 F. Supp. 127, 157 (S.D.N.Y. 1995); Sumner v.
United States Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990). An
individual might, for example, lodge complaints with management,
write critical letters to customers, or express support for
co-workers who have filed formal charges. See Sumner, 899 F.2d
at 209; Del Castillo v. Pathmark Stores, Inc., 941 F. Supp. 437,
438 (S.D.N.Y. 1996). A complaint alleging discrimination may also
simply be an objection voiced to the employer. See Querry v.
Messar, 14 F. Supp.2d 437, 450-51 (S.D.N.Y. 1998).
However, in the case at bar, plaintiff does not allege that he
complained to anyone, at either Coach or PSB, about Bloom's
conduct. During plaintiff's work for Coach, the sole utterance
with regard to Bloom's alleged comments occurred in 1995. In
response to a derogatory comment about Africans, plaintiff told
Bloom "that such a remark was not appropriate." Compl. at ¶ 20. A
mere statement to the alleged antagonist, albeit a supervisor
employed by a defendant, that a comment was inappropriate does
not rise to the level of "protected activity" for a retaliation
claim. See, e.g., Del Castillo, 941 F. Supp. at 438-39 (holding
that simply declining a harasser's sexual advances does not
constitute "protected activity" in a Title VII retaliation
claim). Moreover, the allegation that plaintiff would often give
Bloom a "look" in response to offensive comments falls outside
the broadest interpretation of protected activity retaliation
claim. Even the cases that plaintiff cites in support of his
claims discourage a conclusion that plaintiff engaged in
protected activity.*fn9 The Court finds that plaintiff fails to
satisfy the first element of a prima facie case of retaliation.
2. Adverse Employment Action
Coach argues that plaintiff did not suffer any adverse
employment action in this case. Coach states that, upon being
transferred from the Coach location, PSB "promoted" plaintiff
from site supervisor to
site inspector. Coach Mem. at p. 12. Although PSB fails to raise
the issue of adverse employment action, PSB notes that at no time
was plaintiff terminated from PSB. Rather PSB states that
plaintiff, along with all other PSB employees working at Coach,
were transferred to different positions in 1997. See PSB Mem.
at p. 8, note 2.*fn10 In the complaint, plaintiff alleges that,
although a PSB officer told him that he was being promoted,
plaintiff's salary was reduced "from $560 per week plus overtime
he had received while working at Coach to $400 per week" in his
new position at PSB. Compl. at ¶ 34.
In order to be actionable in a retaliation context, a transfer
must constitute "a materially adverse change in the terms and
conditions of employment." Torres v. Pisano, 116 F.3d 625, 640
(2d Cir. 1997) (internal quotations omitted); see also Dortz v.
New York, 904 F. Supp. 127, 156 (S.D.N.Y. 1995). Here, that
plaintiff suffered a net loss of salary in the transfer or
promotion remains unchallenged by the defendants. The Court finds
that plaintiff has sufficiently demonstrated adverse employment
action. However, since plaintiff did not engage in protected
activity, he is unable to establish the third prong of a prima
facie retaliation case — the causal connection between the
protected activity and the adverse employment action.
Accordingly, I recommend that his retaliation claims be
dismissed against both defendants.
E. Hostile Work Environment Claim
Plaintiff alleges that he was "forced to work at Coach in an
environment permeated with racism and sexism resulting in [his]
termination from his position at Coach." Compl. at ¶ 47. A
hostile work environment occurs when an employer's conduct "has
the purpose or effect of unreasonably interfering with an
individual's work performance or creating an intimidating,
hostile or offensive working environment." Tomka v. Seiler
Corp., 66 F.3d 1295, 1305 (2d Cir. 1995) (quotation omitted). To
prevail on a hostile work environment claim, a plaintiff must
demonstrate: "(1) that [his] workplace was permeated with
discriminatory intimidation that was sufficiently severe or
pervasive to alter the conditions of [his] work environment, and
(2) that a specific basis exists for imputing the conduct that
created the hostile environment to the employer." Schwapp v.
Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (quoting Van
Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 715 (2d Cir.
1. Discriminatory Intimidation
To state a hostile work environment claim, plaintiff must
allege that the defendants' conduct was "sufficiently severe or
persuasive to alter the conditions of the victim's employment and
create an abusive working environment." Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295
(1993) (quoting Meritor Savings Bank, FSB v. Vinson,
477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)). All of the
circumstances must be considered to determine whether a
reasonable person would find the environment hostile or abusive,
and whether the victim subjectively considered it so. See
Tomka, 66 F.3d at 1305 (quoting Harris, 510 U.S. at 23, 114
The Supreme Court has set forth a list of non-exclusive factors
to be considered in determining whether a given work place is
sufficiently "hostile or abusive" to support a Title VII claim.
Harris 510 U.S. at 23, 114 S.Ct. 367. These include: (1) the
frequency of the discriminatory conduct; (2) its severity; (3)
whether the conduct was physically threatening or humiliating, or
a "mere offensive utterance;" (4) whether the conduct
unreasonably interfered with plaintiff's work; and (5) what
psychological harm, if any, resulted. Id.;
Quinn v. Green Tree Credit Corp., 159 F.3d 759, 767-68 (2d Cir.
"For racist comments, slurs, and jokes to constitute a hostile
work environment, there must be `more than a few isolated
incidents of racial enmity.'" Schwapp, 118 F.3d at 110 (quoting
Snell v. Suffolk County, 782 F.2d 1094, 1103 (2d Cir. 1986)).
Such incidents "must be repeated and continuous; isolated acts or
occasional episodes will not merit relief." Kotcher v. Rosa &
Sullivan Appliance Center, 957 F.2d 59, 62 (2d Cir. 1992).
Examining statements attributed to Bloom in their totality, it
appears that plaintiff has satisfied the first element of a
hostile work environment claim by adequately pleading
sufficiently severe discriminatory intimidation.
2. Employer Liability
The Supreme Court recently held that, in the hostile work
environment context, an employer is presumed absolutely liable
for the discriminatory acts of a victim's supervisor, although
the employer may rebut that presumption. See Burlington
Industries v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d
633 (1998); Faragher v. City of Boca-Raton, 524 U.S. 775, 118
S.Ct. 2275, 141 L.Ed.2d 662 (1998). However, where the
perpetrator is the victim's co-worker, the employer will only be
liable where it "provided no reasonable avenue for complaint or
knew of the [unlawful activity] but did nothing about it."
Murray v. New York Univ. College of Dentistry, 57 F.3d 243, 249
(2d Cir. 1995) (citation omitted).
Since plaintiff alleges that Bloom was his supervisor,
plaintiff sufficiently alleges a hostile work environment claim
against Coach under Ellerth and Faragher. Examining the
totality of the circumstances, this Court cannot say that it is
"beyond doubt" that the plaintiff can prove no set of facts in
support of the hostile environment claim against Coach which
would entitle him to relief. See Scotto v. Almenas,
143 F.3d 105, 109-10 (2d Cir. 1998).
However, plaintiff does not allege that Bloom was an employee
of PSB. Therefore, in order to state a claim against PSB,
plaintiff would have to allege that PSB's complaint mechanisms
were unreasonable or insufficient, or that PSB knew about Bloom's
activity and failed to intervene. Plaintiff does neither.
Plaintiff does not allege that anyone at PSB created a hostile
work environment. Plaintiff also fails to allege that he even
attempted to use PSB's complaint procedures, much less that they
were unreasonable. Moreover, plaintiff does not allege that he
notified PSB of Bloom's comments. Finally, as noted supra at
footnote 3, plaintiff withdrew paragraph 29 of his amended
complaint.*fn11 This withdrawn paragraph, albeit in conclusory
fashion, would have been the only allegation in the amended
complaint to create a nexus between Bloom's conduct and PSB's
liability. Thus, the Court finds no basis upon which to impute
liability to PSB. Plaintiff's hostile work environment claim
should be dismissed as to PSB.
F. Section 1981 Claim
Plaintiff alleges that the defendants are liable under
42 U.S.C. § 1981 "for not permitting him to be employed in the name
of Coach, for terminating his employment at Coach because of
discrimination against him as a black man who is a citizen of
Ghana . . ." Compl. at ¶ 58. Coach argues that plaintiff's § 1981
claim should be dismissed because plaintiff fails to allege that
he had any contractual relationship with Coach. PSB argues that
claim should be dismissed because plaintiff fails to sufficiently
plead employer liability under the statute.
1. Claim against Coach
Section 1981 provides that "[a]ll persons within the
jurisdiction of the United States shall have the same right in
every State and Territory to make and enforce contracts . . . as
is enjoyed by white citizens . . ." 42 U.S.C. § 1981(a).*fn12 In
order to state a claim under § 1981, plaintiff must show the
existence of a contractual relationship. See Murray v. National
Broadcasting Co., Inc., 844 F.2d 988, 995 (2d Cir. 1988);
Krulik v. Board of Education of New York, 781 F.2d 15, 23 (2d
Cir. 1986). Plaintiff's complaint is silent as to whether
plaintiff had an employment agreement or contract with Coach.
Therefore, it appears to the Court that plaintiff's relationship
to Coach was that of employment at will. See Sabetay v. Sterling
Drug, Inc., 69 N.Y.2d 329, 333, 514 N.Y.S.2d 209, 211,
506 N.E.2d 919 (1987) ("[I]t is still settled law in New York that,
absent an agreement establishing a fixed duration, an employment
relationship is presumed to be a hiring at will, terminable at
any time by either party").
In this circuit, courts are divided as to whether an at-will
employee has a contractual relationship with an employee
sufficient to support a claim under § 1981. Compare Bascomb v.
Smith Barney, Inc., 1999 WL 20853 at *4 (S.D.N.Y. Jan.15, 1999)
(dismissing plaintiff's § 1981 claim for a lack of contractual
relationship because plaintiff was an at-will employee); Simpson
v. Vacco, 1998 WL 118155, at *8 (S.D.N.Y. Mar.17, 1998) (same);
Moorer v. Grumman Aerospace Corp., 964 F. Supp. 665, 675
(E.D.N.Y. 1997) (same); Moscowitz v. Brown, 850 F. Supp. 1185,
1192 (S.D.N.Y. 1994) (same); Askew v. May Merchandising Corp.,
1991 WL 24390, at *6 (S.D.N.Y. Feb.20, 1991) (same); with Lazaro
v. Good Samaritan Hosp., 1999 WL 297483, at *5 (S.D.N.Y. May 6,
1999) (holding that at-will employees have a "contract" with
employer for § 1981 purposes); Curtis v. DiMaio, 46 F. Supp.2d 206,
212 (E.D.N.Y. 1999) (holding the same where plaintiffs
brought their claim based on the conditions of their employment);
Harris v. New York Times, 1993 WL 42773, at *4 (S.D.N Y
Feb.11, 1993) (holding that at-will employees may bring a § 1981
While the Second Circuit has not ruled directly on the effect
of the Civil Rights Act of 1991 of § 1981 and at-will employees,
the Fourth and Fifth Circuits have done so. In Spriggs v.
Diamond Auto Glass, the Fourth Circuit held that in an at-will
employment context, "the lack of an agreed upon duration [of
employment] does not invalidate the underlying contract itself."
165 F.3d 1015, 1018 (4th Cir. 1999) (citing Restatement (Second)
of Contracts § 33 (1981)). The court went on to state:
[w]e have seen no indication that, when drafting the
original § 1981 or the amending 1991 Act, Congress
intended the term "contract" to have any meaning
other than its ordinary one. See Lane v. Ogden
Entertainment, Inc., 13 F. Supp.2d 1261, 1272
(M.D.Ala. 1998) ("`Contract' is used in § 1981 in its
basic legal meaning. . . ."). Having concluded that
an at-will employment relationship is contractual, we
hold that such relationships may therefore serve as
predicate contracts for § 1981 claims.
165 F.3d at 1018.
The Fifth Circuit has also held that "an employment at-will
relationship is a contractual one, even though either party can
terminate it without cause." Fadeyi v. Planned Parenthood Ass'n
of Lubbock, Inc., 160 F.3d 1048, 1051 (5th Cir. 1998). In
applying employment at-will to a claim under § 1981, the Fadeyi
court noted that:
[t]o hold that at-will employees have no right of
action under § 1981 would effectively eviscerate the
very protection that Congress expressly intended to
install for minority employees, especially those who,
by virtue of working for small businesses, are not
protected by Title VII.
Fadeyi, 160 F.3d at 1050. In conclusion, the court stated that
"even though an at-will employee can be fired for good cause, bad
cause or no cause at all, he or she cannot be fired for an
illicit cause." Id. at 1051-52.
New York law recognizes that the at-will relationship entails
certain contract rights. See Curtis v. DiMaio, 46 F. Supp.2d at
211 (citing Finley v. Giacobbe, 79 F.3d 1285, 1295 (2d Cir.
1996)); see also Gorrill v. lcelandair/Flugleidir,
761 F.2d 847, 851-52 (2d Cir. 1985); Agugliaro v. Brooks Bros., Inc.,
802 F. Supp. 956, 963 (S.D.N.Y. 1992) (where at-will employee is
terminated for unlawful reason, "the fact that [plaintiff] was an
at-will employee would be irrelevant [and] the termination would
be unjust and improper"). Because New York law accords
contractual rights to at-will employees, this Court finds the
reasoning in Spriggs and Fadeyi persuasive. Therefore, I find
that plaintiff had a "contract" with Coach for purposes of his §
1981 claim. I recommend that Coach's motion be denied on this
2. Claim against PSB
In order to state a viable § 1981 claim against PSB, plaintiff
"must allege facts in support of the following elements: (1) the
plaintiff is a member of a racial minority; (2) an intent to
discriminate on the basis of race by the defendant; and (3) the
discrimination concerned one or more of the activities enumerated
in the statute (i.e., make and enforce contracts, sue and be
sued, give evidence, etc.)." Mian v. Donaldson, Lufkin &
Jenrette Securities Corp., 7 F.3d 1085, 1087 (2d Cir. 1993).
Plaintiff's complaint, as it remains, is devoid of any
allegations of discriminatory intent on the part of PSB.
Therefore, plaintiff's § 1981 claims should be dismissed as to
For the reasons articulated above, I recommend that: (1)
plaintiff's first, second, fourth, fifth, sixth, and seventh
claims be DISMISSED against Coach, and (2) plaintiff's entire
complaint be DISMISSED against PSB.
Pursuant to Rule 72, Federal Rules of Civil Procedure, the
parties shall have ten (10) days after being served with a copy
of the recommended disposition to file written objections to this
Report and Recommendation. Such objections shall be filed with
the Clerk of the Court and served on all adversaries, with extra
copies delivered to the chambers of the Honorable Jed S. Rakoff,
500 Pearl Street, Room 1340, and to the chambers of the
undersigned, Room 1970. Failure to file timely objections shall
constitute a waiver of those objections both in the District
Court and on later appeal to the United States Court of Appeals.
See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d
435 (1985); Small v. Secretary of Health and Human Services,
892 F.2d 15, 16 (2d Cir. 1989) (per curiam); 28 U.S.C. § 636
(b)(1) (West Supp. 1995); Fed.R.Civ.P. 72, 6(a), 6(e). August