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BAMPOE v. COACH STORES
March 30, 2000
EUGENE BAMPOE, PLAINTIFF,
COACH STORES, INC., DEFENDANT.
The opinion of the court was delivered by: Rakoff, District Judge.
The Complaint herein alleges employment discrimination under
Title VII of the Civil Rights Act of 1964, under 42 U.S.C. § 1981,
and under the New York State and New York City Human Rights
Laws. Shortly after commencement of the action, defendant moved
to dismiss.*fn1 On August 31, 1999, the Honorable Ronald L.
Ellis, United States Magistrate Judge, issued a Report and
Recommendation (the "Report") recommending dismissal of those of
plaintiff's Title VII claims as allege discriminatory discharge
and retaliatory discharge, but otherwise denying the motion. Full
familiarity with that Report, and with the relevant allegations
of plaintiff's Complaint, is here presumed.
Both parties timely submitted written objections to the Report,
as a result of which the Court undertook de novo review of the
motion and the underlying record. Having done so, the Court
adopts Judge Ellis' recommendations substantially for the reasons
stated in his Report, except in the following two respects:
First, with respect to plaintiff's claim of hostile work
environment, Judge Ellis concluded that Title VII's 300-day
statute of limitations did not bar consideration of plaintiff's
allegations of certain earlier events because a claim of "hostile
environment" inherently presupposes a "continuing violation"
See Report at 9 (citing Gregg v. New York State Dep't of
Taxation & Finance, No. 97 Civ. 1408(MBM), 1999 WL 225534
(S.D.N.Y. Apr.19, 1999)). Notwithstanding Gregg, however, this
Court is of the view that, under the law of the Second Circuit,
hostile work environment claims fare no differently under
"continuing violation" analysis than do other claims grounded in
Title VII. For example, in Quinn v. Green Tree Credit Corp.,
159 F.3d 759 (2d Cir. 1998), the Court of Appeals applied
traditional continuing violation analysis to plaintiff's hostile
work environment claims, found no continuing violation, and then
proceeded to consider only incidents that were not time-barred in
assessing the viability of the plaintiff's claims. See Quinn,
supra, at 765-66; 767-78.
This conclusion, however, does not change the Court's
acceptance of Judge Ellis' recommendation that the hostile
environment claim not be dismissed on this motion, because the
Court concludes that, even applying traditional "continuing
violation" analysis, the allegations of the Complaint, read most
favorably to plaintiff, preclude this Court from concluding at
this stage that plaintiff cannot prove sufficient facts to prove
a continuing violation so far as his hostile environment claim is
concerned. See Complaint at ¶¶ 19; 21; 26. Accordingly,
plaintiff's hostile environment claim survives dismissal at this
Second, while the Court once believed it was "settled law"
that the contract clause of § 1981 did not apply to at-will
employees,*fn2 recent decisions in other Circuits have cast
doubt on this belief. See Spriggs v. Diamond Auto Glass,
165 F.3d 1015 (4th Cir. 1999); Fadeyi v. Planned Parenthood Ass'n of
Lubbock, Inc., 160 F.3d 1048 (5th Cir. 1998). Upon further
analysis, the Court now concludes that an "at will" employee may
have a "contractual relationship" with his employer in certain
(though by no means all) respects, and that the determination of
what those respects are — and whether, therefore, § 1981 is
applicable to alleged discrimination in those respects — is
partly a function of the law of the state in which
the "at will" employment exists (here New York) and partly a
function of the particular factual circumstances surrounding
plaintiff's employment. Cf. Curtis v. DiMaio, 46 F. Supp.2d 206
(E.D.N.Y. 1999). Because at this early stage of the instant case
the facts have not been developed sufficiently to allow
meaningful application of the relevant aspects of state law to
the plaintiff's § 1981 claim, the motion to dismiss that claim
must be denied at this time.
In sum, defendant's motion to dismiss is granted as to
plaintiff's claims of discriminatory discharge and retaliatory
discharge under Title VII, and denied in all other respects. The
case is remitted to Magistrate Judge Ellis for further pre-trial
REPORT AND RECOMMENDATION
ELLIS, United States Magistrate Judge.
Plaintiff Eugene Bampoe ("plaintiff") brings this action
alleging unlawful racial discrimination and retaliation pursuant
to Title VII of the Civil Rights Act of 1964 ("Title VII"),
42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, the New York Human
Rights Law, N.Y. Executive Law § 290 et seq. ("NYSHRL"), and
the New York City Human Rights Law, New York City Administrative
Code § 8-107 et seq. ("NYCHRL"). Defendants Coach Stores, Inc.
("Coach") and Professional Security Bureau, Ltd. ("PSB")
(together "defendants") move to dismiss the complaint pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the
reasons set forth below, I recommend that defendant Coach's
motion be GRANTED in part and DENIED in part, and that
defendant PSB's motion be GRANTED.
Plaintiff, a fifty-five year old black man, is a citizen of
Ghana. Compl. at ¶ 1.*fn1 Plaintiff began his work at Coach in
May 1983 as a part-time security guard at Coach's flagship store,
Id. at ¶ 7. In May 1991, Coach transferred plaintiff to its
headquarters where he came under the supervision of Rick Bloom
("Bloom"), the Senior Facilities Manager at Coach. Id. at
10-11. In January 1993, plaintiff accepted a full-time position
as Supervisor of Security at Coach, and continued in this
position through December 1996. Id. at ¶¶ 13-14.
From May 1983 to January 1994, plaintiff was compensated for
his work at Coach by Service Lock, Inc. ("Service Lock"), a
security contractor to Coach. Id. at ¶¶ 8-9. In January 1994,
Bloom informed plaintiff that PSB would replace Service Lock as
security contractor to Coach and, allegedly under instructions
from Bloom, plaintiff filled out an employment application for
PSB. Id. at ¶ 15-16. From January 1994 until his termination as
supervisor of security, plaintiff received compensation for his
work at Coach from PSB. Id. at ¶ 17.
While employed at Coach, plaintiff alleges that Bloom
"constantly" made derisive and offensive remarks against people
of African descent and Latinos, and would act inappropriately
towards female employees. Id. at ¶¶ 19-28. Plaintiff alleges
that Bloom "continuously referred to black people as `niggers'
and to Hispanics as `spics' in Bampoe's presence" and generally
used racial epithets (Id. at ¶¶ 19, 26); "frequently" made
offensive comments to African-American and Latino employees,
i.e., that they were only capable of "sweeping the floor of
McDonalds" (d. at ¶ 21); would "often look down a female Coach
employee's blouse or bend down to look up her skirt" (Id. at ¶
24); and approached Bampoe in the Coach parking lot, "just before
Bampoe left for his vacation," and said that he "hoped that they
lock Bampoe up
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.
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 ...