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November 21, 2001


The opinion of the court was delivered by: William C. Connor, Senior District Judge.


Plaintiff Felipe Rodriguez brings the instant action against defendants Beechmont Bus Service, Inc. ("Beechmont"), Bruce Mitcheltree, in his capacity as president of Beechmont and James Carello, in his capacity as supervisor of Beechmont, pursuant to 42 U.S.C. § 1981, Title VII of the Federal Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et. seq. ("Title VII"), the New York State Human Rights Law, Exec. Law § 296 et. seq. ("NYHRL"), the New York State Constitution ("N.Y. Const.") and the United States Constitution. Following his discharge from Beechmont, plaintiff alleges, inter alia: (1) disparate treatment on account of race, color and national origin; (2) disparate impact on Hispanic employees; (3) hostile work environment; (4) retaliation in response to plaintiff's cooperation with a United States Office of Occupational Safety and Health Administration ("OSHA") investigation and for making internal complaints about the alleged retaliation; (5) violation of due process under N.Y. CONST. art I, § 6; and (6) violations of the First, Fifth and Fourteenth Amendments of the United States Constitution. Defendants move for partial dismissal of the Second Amended Complaint pursuant to FED. R. CIV. P. 12(b)(6) and for an award of costs and attorneys' fees pursuant to FED. R. CIV. P. 11(b)(2). For the reasons set forth below, defendants' motion is granted in part and denied in part.


The following statement of the facts is based on the allegations in plaintiff's Second Amended Complaint, which, for the purposes of this motion, we assume to be true.*fn1 Plaintiff is of Puerto Rican descent. (2d Am.Complt. ¶ 10.) He was employed as a bus mechanic in the maintenance department of Beechmont from March 1999 through August 10, 1999. (Id. ¶ 18.) Carello, also employed by Beechmont, was plaintiff's supervisor. (Id. ¶ 17.) Beechmont was owned by Mitcheltree and was in the business of transporting students to and from public schools and was responsible for maintaining and repairing its fleet of buses. During the relevant time period, Beechmont had approximately 125 employees, including seventy-five African-Americans, fifty Caucasians and four Hispanics. (Id. ¶ 22.)

Plaintiff was also subjected to discriminatory and racist remarks by Beechmont's non-Hispanic employees. (Id. ¶ 33.) At least one non-Hispanic mechanic, Arthur St. Clair Philip, referred to plaintiff as "spic" in Moss's presence. (Id. ¶ 35.) On numerous occasions, plaintiff complained to Moss about the discriminatory work assignments and the racist remarks. (Id. ¶¶ 29, 36.) After Moss blithely dismissed plaintiff's complaints, plaintiff complained to Carello about the way he was being treated by his fellow employees and Moss. (Id. ¶ 31.) In spite of these repeated complaints, defendants failed to take any action to remedy the discriminatory treatment. In fact, defendants continued to assign plaintiff to work with Philip, the same employee who had previously subjected plaintiff to racial epithets. (Id. ¶ 37.)

During May, June and July of 1999, plaintiff repeatedly complained to defendants about a potentially dangerous working condition concerning the unsafe placement and use of jacks and the lack of safety equipment. (Id. ¶ 40.) Plaintiff was advised by defendants that his concerns were unwarranted and that there had never been an accident at the work-site. (Id. at 42.)

On or about August 4, 1999, Philip was killed when a bus collapsed on him while he was making repairs. Plaintiff believes that the accident was the result of the same unsafe working conditions to which he had previously alerted defendants. (Id. ¶ 43.) Plaintiff cooperated fully with the subsequent investigation by OSHA. (Id. ¶ 44.) He advised the investigators of the various safety violations and dangerous conditions existing at Beechmont, and informed them that he previously advised defendants of the problem. (Id. ¶ 47.) Plaintiff later learned that the fatal accident resulted from the failure of a mechanic to secure the brakes properly. (Id. ¶ 49.) The negligent mechanic was not terminated and did not suffer any adverse employment action. (Id. ¶ 50.)

On August 5, 1999, Carello instructed plaintiff not to return to work following the accident. At the same time, Carello advised plaintiff that he was not being fired. (Id. ¶ 48.) Nonetheless, on August 10, 1999, defendants terminated plaintiff's employment. (Id. ¶¶ 51-53.) Plaintiff was informed that other employees did not feel comfortable working with him because he cooperated with OSHA and that he was being terminated because of downsizing and budgetary necessity. (Id. ¶¶ 54, 57-58.) Carello prepared a letter of recommendation indicating that plaintiff had a good employment record and that his termination was the result of downsizing and budgetary constraints. (Id. ¶ 59.)

Immediately following plaintiff's termination, defendants posted a job advertisement for plaintiff's former position. Defendants hired a man of Haitian descent approximately ten days later. (Id. ¶¶ 61-62.)

Plaintiff alleges that defendants' proffered reasons are merely pretextual, and that he was actually terminated on account of his race and in retaliation for the internal complaints and for cooperating with the OSHA investigation. On or about October 5, 1999, plaintiff filed a Charge of Discrimination (the "Charge") with the United States Equal Employment Opportunity Commission ("EEOC"). (Id. ¶ 8.) On November 21, 2000, plaintiff was issued a Notice of Right to Sue letter. (Id. ¶ 9). The instant action was commenced on February 13, 2001.


I. Standard of Review

On a motion to dismiss under Rule 12(b)(6), the issue is "whether the claimant is entitled to offer evidence to support the claims." Scheuer, 416 U.S. at 236, 94 S.Ct. 1683. A complaint should not be dismissed for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Padavan v. United States, 82 F.3d 23, 26 (2d Cir. 1996) (quoting Hughes v. Rowe, 449 U.S. 5, 10, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980)).

Generally, "[c]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." 2 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 12.34[1][b] (3d ed. 1997); see also Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1088 (2d Cir. 1995). Allegations that are so conclusory that they fail to give notice of the basic events and circumstances of which the plaintiff complains are insufficient as a matter of law. See Martin v. New York State Dep't of Mental Hygiene, 588 F.2d 371, 372 (2d Cir. 1978). Under the relaxed federal pleading requirements, it is enough that the pleading "contain `a short and plain statement of the claim' sufficient to put the [adverse party] on notice of the grounds for which the [claimant] seeks relief." Reuben H. Donnelley Corp. v. Mark I Mktg. Corp., 893 F. Supp. 285, 291 (S.D.N Y 1995) (Connor, J.) (quoting FED. R. CIV. P. 8(a)(2)). "[T]he principal function of pleadings under the Federal Rules is to give the adverse party fair notice . . . so as to enable [that party] to answer and prepare for trial." Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) (dismissal under Rule 8 "is usually reserved for those cases in which the complaint is so confused, ambiguous, vague or otherwise unintelligible that its true substance, if any, is well disguised"). Although the pleading requirements are construed liberally, "[l]iberal construction has its limits, for the pleading must at least set forth sufficient information for the court to determine whether some recognized legal theory exists upon which relief could be accorded the pleader. If it fails to do so, a motion under Rule 12(b)(6) will be granted." 2 MOORE'S FEDERAL PRACTICE § 12.34[1][b] at 12-60 (3d ed.).

II. National Origin Discrimination under 42 U.S.C. § 1981

Plaintiff alleges that defendants discriminated against him on account of race, color and national origin in violation of 42 U.S.C. § 1981, which provides, in pertinent part, 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 . . . and to the full and equal benefits of all laws and proceedings for the security of persons and property as is enjoyed by white citizens.

Although "[t]he prohibition against racial discrimination encompasses discrimination based on ancestry or ethnic characteristics . . . [i]t is also settled that Section 1981 does not prohibit discrimination on the basis of . . . national origin." Anderson v. Conboy, 156 F.3d 167, 170 (2d Cir. 1998) (citing St. Francis Coll. v. AlKhazraji, 481 U.S. 604, 613, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987)). Accordingly, to the extent plaintiff's § 1981 claim is based upon national origin discrimination, he can prove no set of facts that would entitle him to relief and defendants' motion is therefore granted. We note, however, that our holding has no impact on the portion of plaintiffs § 1981 claim alleging racial discrimination.

III. Title VII Claims

A. Title VII Employer

Defendants move to dismiss plaintiff's Title VII claims on jurisdictional grounds because the Second Amended Complaint fails to include the necessary allegation that Beechmont is an "employer" within the meaning of the statute. Title VII defines an "employer" as "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year. . . ." 42 U.S.C. § 2000e(b). The term "industry affecting commerce" is defined as "any activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct commerce or the free flow of commerce. . . ." Id. § 2000e(h). The term "commerce" is defined as "trade, traffic, commerce, transportation, transmission, or communication among the several States; or between a State and any place outside thereof; or ...

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