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March 30, 2000


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 stage.

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 preparation.



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, 1998.

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 ...

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