The opinion of the court was delivered by: Lewis A. Kaplan, United States District Judge.
Plaintiff Carol Callahan, who is white, brings this action against her
employer, Consolidated Edison Company of New York, Inc. ("Con Ed"), and
one of her subordinates at Con Ed, Aida Ortiz, who is
Latina, pursuant to
42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, as
amended,*fn1 claiming that the defendants discriminated against her
based on her race and retaliated against her for complaining about this
discrimination. Callahan asserts additional state law claims against both
defendants under the New York City Human Rights Law (the "NYCHRL")*fn2
and New York State common law and asks that this Court exercise its
supplemental jurisdiction and hear those claims as well.
In a Report and Recommendation dated August 9, 2001 (the "R&R"),*fn3
Magistrate Judge Kevin Nathaniel Fox recommended that (1) defendant
Ortiz's motion to dismiss, pursuant to Fed. R. Civ. P. 12(b)(5), for
insufficient service of process be denied; (2) her Rule 12(b)(6) motion
to dismiss for failure to state a federal claim be granted; and (3) this
Court decline to exercise supplemental jurisdiction over plaintiffs state
law claims against defendant Ortiz.
There have been no objections to Magistrate Judge Fox's recommendations
regarding Ortiz's Rule 12(b)(5) motion. For the reasons stated in the
R&R, that aspect of the motion is denied. Plaintiff objects to the
recommendations relating to the dismissal of her claims against Ortiz.
For the reasons discussed below, that aspect of defendant Ortiz's motion
which seeks dismissal of the Section 1981 and parallel NYCHRL
discrimination claims against her is denied. That aspect which seeks
dismissal of the Section 1981 retaliation and parallel NYCHRL claims,
however, is granted.*fn4
The complaint, the allegations of which are assumed to be true for the
purposes of this motion, details the professional, and by all accounts
unpleasant, relationship between Callahan and Ortiz at Con Ed. When Con
Ed transferred Callahan to its Bronx training facility to be the training
coordinator of gas operations in April of 1998, Ortiz became one of
Callahan's subordinates. According to the complaint, prior to Callahan's
arrival at the Bronx facility, Ortiz announced that "she would not work
for that `fucking white bitch.'"*fn5 Callahan alleges that once she
began her work at the Bronx facility, Ortiz would refer to her as a
"stupid bitch," a "fucking cunt," and "unqualified" or "not qualified"
for her position.*fn6 Callahan alleges that Ortiz "would loudly
announce, `Good! She's gone! Thank God! And she's not coming back!" when
Callahan would leave the room and that Ortiz "would taunt [Callahan] by
speaking in Spanish" while the two worked in the same room.*fn7
Callahan and Ortiz were not alone in complaining about the situation. A
letter signed "the friends of Ms. Ortiz" allegedly was sent to Con Ed's
chairman.*fn15 It accused Callahan of being "prejudiced" and of
harassing Ortiz.*fn16 An additional letter, signed "A Concerned Employee
of CON ED" allegedly was sent to the Con Ed's chairman and chief
operating officer.*fn17 This letter informed them that the situation at
the Bronx facility had "almost become a race riot between the whites and
Hispanics."*fn18 Finally, Callahan asserts that she received two
anonymous letters. One was left at her computer terminal at work on or
about December 21, 1998, and the other was received by Callahan through
the U.S. mail on or about January 20, 1999.*fn19 Although the complaint
sets forth no factual basis for the belief. Callahan alleges that both
letters were written by Ortiz.
Callahan alleges that she sought a job transfer to a Staten Island
facility in February 2000. She alleges that she was told there was no job
position available on Staten Island, but that "soon thereafter" Con Ed
placed newspaper advertisements seeking applicants for positions on Staten
Island. In July 2000, Callahan allegedly applied for a Con Ed job
position on Staten Island and was denied the position.
In August 2000, Callahan filed this lawsuit. Ortiz initially proceeded
pro se and correspondence she sent to the court before she was represented
by counsel was construed broadly to constitute this motion to dismiss.
Magistrate Judge Fox recommended that the Court grant the motion insofar
as it sought dismissal of the Section
1981 claims.*fn20 The Court now
turns to Callahan's objections to this recommendation.
For purposes of Ortiz's Rule 12(b)(6) motion, the Court must accept as
true all of Callahan's well-pleaded factual allegations and consider
those facts in the light most favorable to Callahan, the non-moving
party.*fn21 This Court may grant Ortiz's motion to dismiss only if"it
appears beyond a doubt that [Callahan] can prove no set of facts in
support of [her] claim which would entitle her to relief."*fn22
A. Callahan's Discrimination Claim Against Ortiz
Although Callahan brought claims against Con Ed pursuant to both Title
VII and Section 1981, her civil rights action against Ortiz is limited to
claims made pursuant to Section 1981 because Section 1981 in some
circumstances provides for individual liability on the part ...