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United States District Court, S.D. New York

January 5, 2004.


The opinion of the court was delivered by: CONSTANCE MOTLEY, Senior District Judge


Plaintiff Freda Le Prevost ("Plaintiff') brings this action against New York State and New York State Office of Parks, Recreation and Historic Preservation (collectively, "State defendants"), and against Darcel Michel ("Michel"), for alleged violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VET), and the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"), as well as for the common law tort of intentional infliction of emotional distress. This matter comes before the court on two motions to dismiss the complaint, one filed by State defendants, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, and one by Michel, pursuant to Rules 12(b)(1) and 12(b)(6). Plaintiff cross-moves to amend her complaint to include a cause of action under § 504 of the Rehabilitation Act, 29 U.S.C. § 794(a) ("Rehabilitation Act"). For the following reasons, State defendants' motion is GRANTED in part and DENIED in part, and Michel's motion is GRANTED in part and DENIED in part. Plaintiffs cross-motion for permission to amend her complaint is GRANTED, as against State defendants only.


  The complaint, filed on April 11, 2003, describes the background of this action as follows. Plaintiff was hired by Michel, the complex manager for Riverbank State Park in Manhattan, in October 2001. At that point she was told that her duties would be administrative in nature. In Page 2 November Michel began pursuing plaintiff romantically. Between November and December 2001, Michel "forced" plaintiff to socialize with him after hours, and made "inappropiate: comments to her concerning her marital status, her perfume, and her body. In November 2001, v Michel "forced" plaintiff to accompany him to a sexual harassment seminar, of which he was one of the leaders for the agency. After the seminar, he apologized to plaintiff for subjecting her to the acts reenacted and highlighted by the seminar participants. In or about December 2001, Michel reassigned plaintiff from an administrative position to a more physically demanding position as a skate guard. While performing her new duties, plaintiff broke her ankle and injured her knees. When plaintiff asked to be reassigned to her administrative duties following her injuries, Michel refused her request. Plaintiff only obtained a formal job description after she had rebuffed Michel's advances and complained about the more physically demanding duties. At this point, Michel assigned her to "a physically demanding job title of Recreation Specialist."

  Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on May 17, 2002. This charge alleged sex discrimination, in the form of sexual harassment. On June 12, 2002, plaintiff filed an amended charge, adding a hostile work environment claim. Both charges named as respondent the New York State Office of Parks, Recreation and Historic Preservation. On January 16, 2003, plaintiff received a right-to-sue letter from the EEOC, which informed her that she had "the right to institute a civil action under Title VII" against the named respondent.


  State defendants, who filed an answer on July 10, 2003, move pursuant to Rule 12(c) of the Federal Rules of Civil Procedure for judgment on the pleadings, or, in the alternative, for summary judgment. Defendant Michel, who has not yet answered, moves, pursuant to Rules 12(b)(1) and (6) for dismissal of the complaint as against him. Plaintiff cross-moves to amend her complaint to include a cause of action pursuant to § 504 of the Rehabilitation Act.

  A. Legal Standards

  1. Motion to Dismiss

  On a motion to dismiss, a court must read the complaint generously, and draw all inferences in favor of the pleader. Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989). The court must limit itself to a consideration of the facts alleged on the face of the complaint, and to any documents attached as exhibits or incorporated by reference. Id. at 13. If, as in the present case, extraneous material is presented by the parties, the court must exclude it from consideration.

  a. Rule 12(b)(1)

  A case is properly dismissed for lack of subject matter jurisdiction when the district court lacks the statutory or constitutional power to adjudicate it. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). A plaintiff asserting subject matter jurisdiction generally has the burden, once challenged, of proving by a preponderance of the evidence that jurisdiction exists. See id. Page 3

  b. Rule 12(b)(6)

  In deciding a motion to dismiss for failure to state a claim upon which relief may be granted, a court must accept as true the material facts alleged in the complaint and draw all reasonable inferences in the plaintiffs favor. Grandon v. Merrill Lynch, 147 F.3d 184, 188 (2d Cir. 1998). The court must not dismiss the action 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" Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102 (1957)); Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000). In deciding such a motion, the "issue is not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims." Bernheim v. Lift, 79 F.3d 318, 321 (2d Cir. 1996) (internal quotations omitted).

  2. Motion for Judgment on the Pleadings

  The standard for granting or denying a motion for judgment on the pleadings is the same as that applicable to a motion to dismiss a claim under Rule 12(b)(6). United States, v. Weisz, 914 F. Supp. 1050, 1052 (S.D.N.Y. 1996).Thus, a court deciding such a motion must accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant; it should not dismiss the complaint "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." Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994) (quoting Ad-Hoc Comm. of Baruch Black and Hispanic Alumni Ass'n v. Bernard M. Baruch Coll., 835 F.2d 980, 982 (2d Cir. 1987)) (internal citations omitted).

  3. Motion to Amend Complaint

  Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend a party's pleading "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). The Supreme Court has stated that leave should be "freely given" unless there is a "reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc." Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230 (1962). "Futility" is a valid reason for denying a motion to amend only where it is "beyond doubt that the plaintiff can prove no set of facts in support" of his amended claims. Pangburn v. Culbertson, 200 F.3d 65, 70-71 (2d Cir. 1999) (quoting Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991)).

  B. Plaintiffs Claims

  Plaintiffs complaint contains three counts: sexual harassment/ constructive discharge (Title VII); intentional infliction of emotional distress; and failure to accommodate plaintiffs injury (ADA). Defendants' motions will be considered in connection with each. Page 4

  1. Sexual Harassement/ Constructive Discharge (Title VII)

  Title VII makes it unlawful "for an employer . . . to fail to hire or to discharge any individual, or otherwise to discriminate against any individual, with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000-2(a)(1). A Title VII claimant may bring suit in federal court only if she has filed a timely complaint with the EEOC and obtained a right-to-sue letter. Shah v. New York State Dep't of Civil Serv., 168 F.3d 610, 613 (2d Cir. 1999). The Second Circuit has held that individual defendants with supervisory control over a plaintiff may not be held personally liable under Title VII. See Tomka v. Seller Corp., 66 F.3d 1295, 1313 (2d Cir. 1995).

  Two forms of sexual harassment violate Title VII's prohibitions against workplace inequality: i) quid pro quo and ii) hostile work environment harassment. Tomka, 66 F.3d at 1304-05. Under the Guidelines established by the EEOC, quid pro quo harassment occurs when "submission to or rejection of [unwelcome sexual] conduct by an individual is used as the basis for employment decisions affecting such individual." 29 C.F.R. § 1604.11(a)(2) (1993), quoted in Karibian v. Columbia Univ., 14 F.3d 773, 777 (2d Cir. 1994). A quid pro quo violation of Title VII is caused by explicit discriminatory alterations in the terms or conditions of a plaintiffs employment. Jin v. Metro. Life Ins. Co., 310 F.3d 84, 91 (2d Cir. 2002). Such explicit alterations are established when a plaintiff proves that an action, such as a firing or demotion, resulted from a refusal to submit to a supervisor's sexual demands, or that "an employer demanded sexual favors from an employee in return for a job benefit." Id. (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752, 118 S.Ct. 2257, 2264 (1998)). Because the quid pro quo harasser, by definition, wields the employer's authority to alter the terms and conditions of employment — either actually or apparently — the law imposes strict liability on the employer for quid pro quo harassment. Karibian, 14 F.3d at 777.

  A hostile work environment claim requires a showing (1) that the harassment was "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment," and (2) that a specific basis exists for imputing the objectionable conduct to the employer. Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002) (quoting Perry v. Ethan Alien, Inc., 115 F.3d 143, 149 (2d Cir. 1997)). The misconduct shown must be "severe or pervasive enough to create an objectively hostile or abusive work environment," and the victim must also subjectively perceive that environment to be abusive. Id. at 373 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). A plaintiff must also demonstrate that the conduct occurred because of her sex. Id. at 374. In Ellerth, the Supreme Court held that:

  An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence. The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any Page 5 preventive or corrective opportunities provided by the employer or to avoid harm otherwise Ellerth. 524 U.S. at 745, 118 S.Ct. at 2261.

  Title VII also permits claims of constructive discharge. An employee is constructively discharged when her employer, rather than discharging her directly, intentionally creates a work atmosphere so intolerable that she is forced to quit. Terry v. Ashcroft, 336 F.3d 128, 151-52 (2d Cir. 2003). Working conditions are intolerable when, viewed as a whole, they are "so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." Id. (quoting Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 89 (2d Cir. 1996)). In addition, to state a prima facie case of constructive discharge, a plaintiff must establish that the constructive discharge "occurred in circumstances giving rise to an inference of discrimination on the basis of her membership in [a protected] class." Chertkova, 92 F.3d at 89. Constructive discharge is not a tangible employment action depriving the employer of the availability of the affirmative defense to Title VII liability. Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 294-95 (2d Cir. 1999).

  A prerequisite to commencing a Title VII action against a defendant is the filing with the EEOC or an authorized state agency of a complaint naming the defendant, Johnson v. Palma, 931 F.2d 203, 209 (2d Cir. 1991). However, courts have recognized "an exception to the general rule that a defendant must be named in the EEOC complaint." Id. This "identity of interest" exception permits a Title VII action to proceed against an unnamed party "where there is a clear identity of interest between the unnamed defendant and the party named in the administrative charge." Id.. The Second Circuit has applied a four-part test to determine whether an "identity of interest" exists. Id. The four factors are


1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; 2) whether, under the circumstances, the interests of a named [party] are so similar as the unnamed party's that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; 3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; 4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party. Id. (quoting Glus v. G.C. Murphy Co., 562 F.2d 880, 888 (3d Cir. 1977)).
  Since individual defendants with supervisory control over a plaintiff may not be held personally liable under Title VIII, Tomka, 66 F.3d at 1313, we hereby dismiss, pursuant to Rule 12(b)(1), Count I of the complaint as against Michel. Since it does not appear "beyond doubt" that plaintiff can prove no set of facts in support of her Title VII claim that would entitle her to relief against the New York State Office of Parks, Recreation and Historic Preservation, we decline to dismiss this Count as against that defendant. So too, we decline to dismiss the Count as against defendant New York State. Because EEOC charges "generally are filed by parties not versed in the vagaries of Title VII and its jurisdictional and pleading requirements," Johnson, 931 F.2d at 209, Page 6 the Second Circuit has taken a "flexible stance in interpreting. Title VII's procedural provisions;"*fn1 Egelston v. State Univ. Coll. at Geneseo, 535 F.2d 752, 754 (2d Cir. 1976), quoted in Johnson, 931 F.2d at 209. Proceeding with this consideration in mind, we find under the first factor of the Johnson test that even after the exertion of "reasonable effort," the relationship between New York State and New York State Office of Parks, Recreation and Historic Preservation vis-à-vis plaintiffs employment status might have remained uncertain. We also find that the second factor weighs in plaintiffs favor, given the similarity between the interests of the state and its agency. Under the third factor, defense counsel's only allegation of prejudice is that the state, because it was unnamed in the administrative charge, "was not given the `opportunity to investigate, mediate and take remedial action.'" Defs' Mem. Supp. Mot. Dismiss at 15 (quoting Stewart, v. United States Immigration & Naturalization Serv., 762 F.2d 193, 198 (2d Cir. 1985)). We accord this little weight in light of our analysis of the previous factor. There is no indication from the record that the final factor weighs in plaintiffs favor, but, in light of our analysis of the other three factors, we are satisfied that sufficient identity of interest exists to deny defendants' motion with respect to this issue.

  2. Intentional Infliction of Emotional Distress

  The common law tort of intentional infliction of emotional distress has four elements: (1) extreme and outrageous conduct; (2) intent to cause severe emotional distress; (3) a causal connection between the conduct and the injury; and (4) severe emotional distress. Bender v. City of New York, 78 F.3d 787, 790 (2d Cir. 1996). The conduct in question must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society." Martin v. Citibank, N.A., 762 F.2d 212, 220 (2d Cir. 1985) (quoting Fischer v. Maloney, 43 N.Y.2d 553, 558 (N.Y. 1978)). The conduct must also be intentionally directed at the plaintiff and lack any reasonable justification. Id.

  When a federal court obtains jurisdiction over a federal claim, it may adjudicate other related claims over which the court otherwise would not have jurisdiction. Pennhurst State Sch. & Hasp. v. Halderman, 465 U.S. 89, 117, 104 S.Ct. 900, 917 (1984). However, the grant of jurisdiction given by 28 U.S.C.A. § 1367(a) does not extend to claims against non-consenting state Page 7 defendants.*fn2 Raygor v. Regents of Univ. of Minnesota, 534 U.S. 533 541 122 S.Ct. 999, 1005 (2002). The Eleventh Amendment acts as a bar to obtaining relief in federal court based on allegations that the state or its officials have violated state law.*fn3 Soc'y for Good Will to Retarded Children v. Cuomo, 737 F.2d 1239, 1248 (2d Cir. 1984).

  The statute of limitations for claims of intentional infliction of emotional distress is one year. Greene v. Trs. of Columbia Univ., 234 F. Supp.2d 368, 382 (S.D.N.Y. 2002). The complaint in this case was filed in April, 2003, though none of the relevant acts alleged by plaintiff occurred after January, 2002. Thus, it is clear that more than one year passed between the last act which could have been the basis for the claim of intentional infliction of emotional distress and the filing of the complaint. However, plaintiff filed her EEOC charge on May 17, 2002, and a right-to-sue letter was not procured from the EEOC until January 16, 2003. Thus, if the statute of limitations was tolled during the time that plaintiffs claim was pending with the EEOC, the claim was timely filed. There is a clear split of authority in this district on the question of whether filing a charge with the EEOC tolls the statute of limitations for state law claims such as intentional infliction of emotional distress. See Forbes v. Merrill Lynch, Fenner & Smith, Inc., 957 F. Supp. 450, 455-56. (S.D.N.Y. 1997) (giving examples). We adhere to our previously-stated view that the reasoning of the cases tolling the statute of limitations is the more persuasive, see id. at 456, and therefore hold that the statute of limitations was tolled from the time that the EEOC charge was filed until the time that the EEOC issued plaintiffs right-to-sue letter. Thus, plaintiffs claim is not untimely.

  Because of the bar imposed by the Eleventh Amendment, Count n of the complaint is dismissed as against the State defendants. Insofar as plaintiff is suing Michel in his individual capacity, we decline to find that it "appears beyond doubt" that plaintiff will not be able to obtain relief under this Count, despite the high bar that she faces. Thus, Michel's motion is denied as regards this Count.

  3. Failure to Accommodate Plaintiff's Injury (ADA)

  The ADA prohibits discrimination by covered employers against qualified individuals with a disability. 42 U.S.C.A. § 121 12(a). An employer violates the ADA when it fails to "mak[e] Page 8 reasonable accomodations to the known physical or mental limitations of an otherwise qualified with a disability who is an applicant or employee," unless the employer can establish that the accommodations would "impose an undue hardship." Jackan v. New York State Dep't of Labor, 205 F.3d 562, 566 (2d Cir. 2000)'(quoting 42 U.S.C. § 12112(b)(5)(A)). A "qualified individual with a disability" is someone who "With or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C.A. § 12111(8), quoted in Jackan, 205 F.3d at 565-66. The ADA defines disability as "a physical or mental impairment that substantially limits one or more major life activities of such individual." 42 U.S.C.A. § 12102(2)(A). Congress did not validly abrogate the States' sovereign immunity from suit by private individuals for money damages under Title I of the ADA (the section of the Act dealing with employment). Bd. of Trs. of Univ. of Alabama v. Garrett, 531 U.S. 356, 374 n. 9, 121 S.Ct. 955, 968 n. 9 (2001).

  When a plaintiff fails to file a timely charge with the EEOC, the claim is time-barred. Butts v. The City of New York Dep't of Housing Pres. and Dev., 990 F.2d 1397, 1401 (2d Cir. 1993), superseded by statute on other grounds as stated in Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684 (2d Cir. 1998). In states such as New York that have an agency with the authority to address charges of discriminatory employment practices, the statute of limitations for filing a charge of discrimination with the EEOC is 300 days. Id. A district court has jurisdiction to hear ADA claims only when (i) they were included in an EEOC charge or (ii) they are based on conduct subsequent to that charge which is "reasonably related" to that alleged in the charge. Sussle v. Sirina Prot. Sys. Corp., 269 F. Supp.2d 285, 314 (S.D.N.Y. 2003) (quoting Butts, 990 F.2d at 1401).

  We dismiss Count III of plaintiff's complaint as to all defendants. In the case of the State defendants, the Eleventh Amendment bars this claim. In the case of all defendants, plaintiff failed to satisfy the jurisdictional prerequisite of exhaustion of her administrative remedies. As indicated by her EEOC charge, plaintiff failed to bring before the EEOC the allegations contained in Count III, and Count III is not based on conduct subsequent to that charge which is "reasonably related" to that alleged in the charge.

  C. Plaintiffs Motion to Amend her Complaint

  A plaintiff makes out a prima facie case of discrimination under the Rehabilitation Act by showing that: 1) she is a handicapped person under the Act; 2) she is otherwise qualified to perform her job; 3) she was discharged because of her handicap; and 4) the employer is a recipient of Federal financial assistance. Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 722 (2d Cir. 1994). § 504 imposes obligations equivalent to those under the ADA. Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 136 (2d Cir. 1995). A plaintiff may recover money damages under § 504 of the Rehabilitation Act upon a showing of a statutory violation resulting from "deliberate indifference" to the rights secured the disabled by the Act. Garcia v. S.U.N.Y. Health Scis Ctr of Brooklyn, 280 F.3d 98, 115 (2d Cir. 2001). 42 U.S.C. § 2000d-7(a)(1) provides that "A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973 . . ." However, § 504 does not provide for individual capacity suits against state officials. Garcia, 280 F.3d at 107 Page 9 The Second Circuit Court of Appeals has held, with respect to a Rehabilitation Act claim, that "the exhaustion requirement, while weighty, is not jurisdictional." Boos v. Runyon, 201 F.3d 178, 182 (2d Cir. 2000). Plaintiff has presented no reason why we should overlook her failure to satisfy the "weighty" requirement of exhaustion. However, under the liberal standards of Rule 15(a), it cannot be said that it is "beyond doubt that the plaintiff can prove no set support" of the proposed amendment. Pangburn, 200 F.3d at 70-71 (quoting Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991)). Leave is therefore given for plaintiff to amend her complaint to add a claim under the Rehabilitation Act. Since § 504 of the Rehabilitation Act does not provide for individual capacity suits against state officials, this claim may not be made against defendant Michel. Any motion for summary judgment on this or either of the other remaining claims maybe made only upon completion of discovery.


  For the foregoing reasons, State defendants' motion for judgment on the pleadings is GRANTED as to Counts n and m of the complaint, but DENIED as to Count I. Defendant Michel's motion to dismiss the complaint is GRANTED as to Counts I and III of the complaint, but DENIED as to Count n. Plaintiffs motion for permission to amend the complaint to include a cause of action pursuant to § 504 of the Rehabilitation Act is GRANTED as to State defendants only. Any amended complaint must be filed and served on or before February 6, 2004.

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