United States District Court, E.D. New York
January 12, 2004.
ESTHER GANTHIER, Plaintiff, -against- NORTH SHORE-LONG ISLAND JEWISH HEALTHY SYSTEM, GREYSTONE STAFFING, INC., SUSAN TOBIN, and KAREN WESTERLIND, Defendants
The opinion of the court was delivered by: ARTHUR SPATT, District Judge Page 2
MEMORANDUM OF DECISION AND ORDER
The plaintiff, Esther Ganthier ("Ganthier" or the "plaintiff")
commenced this action against the North Shore-Long Island Jewish Health
System ("North Shore"), Susan Tobin ("Tobin"), GreyStone Staffing, Inc.
("GreyStone"), and Karen Westerlind ("Westerlind") (collectively, the
"defendants") alleging discrimination on the basis of race and national
origin, First Amendment retaliation, and conspiracy. Presently before the
Court is a motion to dismiss the complaint by GreyStone and Westerlind
(the "Moving Defendants") pursuant to Federal Rules of Civil Procedure
("Fed.R. Civ. P") 8 and 12. Also before the Court is the plaintiff's
cross-motion for leave to serve an amended complaint.
1. Factual Background
The following facts are taken from the complaint which the Court takes
to be true for the purpose of this motion. On or about August 21, 2001,
Westerlind, a placement consultant employed by GreyStone, a temporary
staffing firm, interviewed the plaintiff for a possible job opening. On
or about September 4, 2001, Westerlind assigned the plaintiff to North
Shore as a temporary medical biller where the plaintiff's
responsibilities were to "post cash" for Franklin Hospital. Compl. ¶
14. The plaintiff performed her duties in a "reasonably satisfactory and
professional manner," Compl. ¶ 13, and after two weeks, the
responsibility of cash posting for North Shore Hospital, was added to the
plaintiff's job duties.
On or about October 24, 2001, Tobin, a supervisor at North Shore,
indicated to the plaintiff that she had spoken to GreyStone and was
informed that GreyStone had a new job for the plaintiff. However, the
plaintiff told Tobin that she was unaware of any new employment
opportunity and that she was not interested in changing jobs.
Subsequently, Tobin indicated to the plaintiff that "she had spoken" with
GreyStone and that the plaintiff was going to remain at North Shore.
Compl. ¶ 17. On October 30, 2001, Tobin informed the plaintiff that
effective November 5, 2001, the plaintiff would begin working as a data
entry clerk, a position for which the plaintiff thought she was over
Upon Tobin's advice, the plaintiff phoned GreyStone to express her
concerns about the upcoming change in her employment duties. Upon hearing
about the plaintiff's transfer to the data entry position, the
"plaintiff's consultant at GreyStone" allegedly told the plaintiff that
"GreyStone did not send [the] plaintiff to North Shore to perform [a]
data entry job." Compl. ¶ 20. After this incident, the plaintiff
"left North Shore," Compl. ¶ 21, though it is unclear when or why she
"left" or the circumstances surrounding her departure. The plaintiff
further claims that Tobin mailed, rather than faxed, her time sheets to
the payroll department, resulting in a six day delay of the plaintiff's
receipt of her paycheck.
The plaintiff subsequently applied for and was denied unemployment
benefits allegedly because the defendants "retaliated against her by
passing on false information to the Department of Labor." Compl. ¶
2. Procedural Background
On or about December 4, 2001, the plaintiff filed a complaint of
unlawful employment discrimination with the New York State Division of
Human Rights ("NYSDHR") against the North Shore Long Island Jewish Home
Health Care Network, (the "North Shore Network"), a division of North
Shore. This charge was also accepted on behalf of the Equal Employment
Opportunity Commission ("EEOC"). On October 8, 2002, the EEOC issued a
Dismissal and Notice of Rights (the "right to sue letter") which was
received by the plaintiff on October 12, 2002. The plaintiff timely
commenced this action on January 9, 2003 alleging that she was
discriminated against on the basis of her race and national origin in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000(e) et seq. ("Title VII"), 42 U.S.C. § 1981
("Section 1981") (race only), the New York State Human Rights Law, and
the New York City Human Rights Law. The plaintiff also alleges that she
was retaliated against because she exercised her First Amendment Rights
and that the defendants conspired against her in violation of federal,
New York State, and New York City
laws. On March 10, 2003, the Moving Defendants filed their respective
answers in response to the allegations in the plaintiff's complaint.
Presently before the Court is a motion to dismiss the complaint by
GreyStone and Westerlind pursuant to Fed.R.Civ.P. 8 and 12. Also
before the Court is the plaintiff's cross-motion for leave to serve an
A. The Standard
A motion brought to dismiss after an answer to the complaint has been
served is properly designated as a motion for judgment on the pleadings
pursuant to Rule 12(c). Nat'l Assoc. of Pharm. Mfrs. v. Ayerst Labs,
850 F.2d 904, 909 (2d Cir. 1988). The standard for granting a Rule 12(c)
motion for judgment on the pleadings is identical to that of a Rule
12(b)(6) motion to dismiss the complaint for failure to state a claim
upon which relief can be granted. See Murray v. Connetquot Cent. Sch.
Dist., et al., 54 Fed. Appx. 18, 19 (2d Cir. 2002). Therefore, the Court
must accept the allegations contained in the complaint as true and draw
all reasonable inferences in favor of the plaintiff. Id. The Court may
dismiss the complaint only if "`it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would
entitle him to relief.'" Phelps v. Kapnolas, 308 F.3d 180, 184 (2d Cir.
2002) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99 (1957)).
B. The Federal Causes of Action
1. Title VII
a. As to Westerlind
It is well-settled that "individuals are not subject to liability under
Title VII." Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000); Tomka
v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995); see also Copeland v.
Rosen, 38 F. Supp.2d 298, 302 (S.D.N.Y. 1999) ("Individual employees may
not be held personally liable under Title VII, even if they are
supervisory personnel with the power to hire and fire other
employees."). Accordingly, the Title VII claim against Westerlind is
b. As to GreyStone
Individuals may bring Title VII claims in federal court only after
filing a timely charge of employment discrimination with the EEOC and
receiving a right-to-sue letter from the EEOC or an analogous state
agency. 42 U.S.C. § 2000e-5(e); Legnani v. Alitalia Linee Aeree
Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001); see also
42 U.S.C. § 2000e-5(f)(1) ("a civil action may be brought against the
respondent named in the charge") (emphasis added). According to the
complaint, the plaintiff filed an administrative complaint of unlawful
employment discrimination with the New York State Division of Human
Rights (the "NYSDHR") against the North Shore Network.
This complaint was jointly filed with EEOC. However, GreyStone and
Westerlind were not named as parties in the plaintiff's administrative
Generally, a district court lacks subject matter jurisdiction over a
discrimination claim brought under Title VII against a defendant who has
not been named in the charge filed with the EEOC. Gagliardi v. Universal
Outdoor Holding, Inc., 137 F. Supp.2d 374, 379 (S.D.N.Y. 2001); U.S.C.
§ 2000e-5(f)(1). However, the Second Circuit takes "a flexible
stance" and recognizes an exception to this general rule. Brodie v. New
York City Transit Authority, No. 96 Civ. 6813, 1998 WL 599710, at * 6
(S.D.N.Y. Sept. 10, 1998) (citing Johnson v. Palma, 931 F.2d 203, 209 (2d
Under this "identity of interest" exception, courts will permit 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." Johnson, 931 F.2d, at 209. The factors that
the Court must consider are to determine whether an "identity of
interest" exists between the North Shore Network and GreyStone are: (1)
whether the role of the unnamed party was known to the plaintiff at the
time of filing the EEOC charge; (2) whether the interest of the named
party are so similar to 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 the unnamed party's absence from the EEOC
proceedings resulted in actual prejudice to it; and (4) whether the
unnamed party in some way represented to the complainant that its
relationship to the complainant is to be through the named party. Id.
Applying these factors to the facts of this case, the Court concludes that
no such identity of interest exists between the North Shore Network and
GreyStone. Accordingly, the motion to dismiss the Title VII claims
against GreyStone is granted.
2. Section 1981
Section 1981 states that "[a]ll persons . . . shall have the same right
. . . to make and enforce contracts. . . ." In order to maintain a cause
of action under this section, the plaintiff "must show both that he was
subjected to intentional discrimination, and that this discrimination
interfered with a contractual relationship." Krulik v. Bd. of Educ.,
781 F.2d 15, 23 (2d Cir. 1986) (citations omitted). Thus, to establish a
claim under Section 1981, the plaintiff must allege facts in support of
the following elements: (1) the plaintiff is a member of a racial
minority; (2) an intent to discriminate on the basis of race by the
defendant; and (3) the discrimination concerned one or more activities
enumerated in the statute. See Mian v. Donaldson, Lufkin & Jenrette
Securities Corp., 7 F.3d 1085, 1087 (2d Cir. 1993); see also Reyes v.
Bronx Lebanon Hosp. Center, No. 99 Civ. 4534, 2000 WL 377511, at *3
(S.D.N.Y. April 13, 2000). Furthermore, the conspiracy must also be
motivated by "some racial or perhaps
otherwise class-based, invidious discriminatory animus behind the
conspirators' action." Mian, 7 F.3d at 1087. The essential element of a
Section 1981 claim is that the discrimination occurred as a result of the
plaintiff's race. See id. at 1088.
Regardless of whether the plaintiff had a contractual employment
relationship with either GreyStone or North Shore, compare Simpson v.
Vacco, No. 96 Civ. 3916, 1998 WL 118155, at *7 (because the plaintiff did
not enter into an employment contract, he was an at-will employee and
precluded from stating a § 1981 claim) with Harris v. New York Times,
90 Civ. 5235, 1993 WL 42773, at *4 (S.D.N.Y. 1993) (finding that
rendition of services in exchange for the payment of wages is
sufficiently contractual in nature to satisfy § 1981), the plaintiff
fails to plead a Section 1981 cause of action because there is no
allegation that there was any "intentional discrimination," see Murray,
844 F.2d, at 995 (2d Cir. 1988), or that the plaintiff's race was even a
factor in the change of her job duties. But see e.g., Reyes, 2000 WL
377511, at * 3 (The plaintiff's allegations that, among other things,
that "non-Hispanic Caucasian employees similarly situated were paid
higher salaries, and that this inequality [in salaries] was deliberate
discriminatory treatment based upon her Hispanic ancestry and ethnicity"
met the pleading requirements of Section 1981). In addition, the
plaintiff does not even indicate why she "left" North Shore. See Compl.
¶ 21. Accordingly, the motion to dismiss the Section 1981 claim
against the Moving Defendants is granted.
3. First Amendment Retaliation
The plaintiff claims that the defendants "retaliat[ed] against her by
causing her to be denied unemployment benefits because she exercised her
First Amendment Rights." Compl. ¶ 29. In particular, the plaintiff
alleges that the "[d]efendants retaliated against her by passing on false
information to the Department of Labor which caused [p]laintiff to be
denied benefits because [p]laintiff has shown and/or expressed her
displeasure with her reassignment from medical biller to a lower paying
data entry clerk's position by Tobin." Compl. ¶ 24.
However, to state a claim under the First Amendment under
42 U.S.C. § 1983, the behavior complained of must be considered an
action of the government, and not that of a private actor. Henderson v.
Center for Community Alternatives, 911 F. Supp. 689, 707 (S.D.N.Y.
1996); see also Myron v. Consolidated Rail Corp., 752 F.2d 50, 53 (2d
Cir. 1985). Because the First Amendment does not protect an employee from
retaliation based on grievances which are private and not matters of
public concern, the plaintiff's First Amendment retaliation claim must
fail. See Majer v. Metropolitan Transp. Auth., et al., No. 90 Civ. 4608
(S.D.N.Y. Dec. 14, 1990) (citing Connick v. Myers, 103 S.Ct. 1684, 1694
(1983). Here, the plaintiff's speech was a private grievance relating to
her personal desire not to be reassigned. See O'Malley v. New York City
Transit Auth., 829 F. Supp. 50, 53 (E.D.N.Y. 1993) (retaliatory
lawsuit arising out of workers compensation claim does not involve
public concern). Accordingly, the plaintiff's claims of First Amendment
retaliation are dismissed.
The plaintiff also alleges that the defendants conspired to violate the
plaintiff's civil rights. A plaintiff may bring a claim for "injuries
incurred due to conspiracies formed `for the purpose of depriving, either
directly or indirectly, any person or class of persons of the equal
protection of the laws, or of equal privileges and immunities under the
laws.'" Roffman v. City of New York, et al., No. 01 Civ. 8601, 2002 WL
31760245, at *5 (S.D.N.Y. Dec. 10, 2002) (citing 42 U.S.C. § 1985(3));
see also Leon v. Murphy, 988 F.2d 303, 311 (2d Cir. 1993). To state a
claim for conspiracy to interfere with civil rights, a plaintiff must
allege the following: (1) a conspiracy; (2) for the purpose of depriving
either directly or indirectly, any person or class of persons of the
equal protection laws, or of equal privileges and immunities under the
laws; and (3) an act in furtherance of the conspiracy; (4) whereby a
person is either injured in his person or property or deprived of any
right or privilege of a citizen of the United States. Roffman, 2002 WL
31760245, at *6 (citing United Bhd. of Carpenters & Joiners v.
Scott, 463 U.S. 828, 828-29 (1983)). In addition, the plaintiff must
motivation by some racial or other class-based "invidiously
discriminatory animus behind the conspirator's action." Roffman, 2002 WL
31760245, at *6 (citations omitted). Finally, these elements must be
alleged "with particularity." Id. (citing Soto v. Schembri,
960 F. Supp. 751, 760 (S.D.N.Y. 1997) (citations omitted)).
The plaintiff fails to allege the elements of her conspiracy claim.
Boddie v. Schneider, 105 F.3d 857, 862 (2d Cir. 1997) (holding that a
§ 1985 conspiracy claim must state a factual basis as "a complaint
containing only conclusory, vague, or general allegations of conspiracy
to deprive a person of constitutional rights cannot withstand a motion to
dismiss" (internal citations and quotations omitted)). Here, the
plaintiff fails to give the Moving Defendants any indication of what the
alleged conspiracy is, the purpose of the conspiracy, who was involved in
the conspiracy, the existence of an act in furtherance of the
conspiracy, or that she was injured as a result of the conspiracy. See
Roffman, 2002 WL 31760245, at * 6 (Dismissing the plaintiff's Section
1985 conspiracy claim for, among other things, her failure to allege
"specific facts that could give rise to an inference of collusion or
conspiracy between [the defendants]"). Accordingly, the plaintiff's claim
for conspiracy under Section 1985 is dismissed.
C. New York State and New York City Human Rights Law Claims
Having dismissed all of the plaintiff's federal claims, the Court
declines to exercise supplemental jurisdiction over the claims brought
pursuant to New York State
and New York City law with regard to the Moving Defendants. See Arroyo
v. City of New York, et al., No. 99 Civ. 1458, 2003 WL 22211500, at * 3
(Sept. 25, 2003) (citing United Mine Workers v. Gibbs, 383 U.S. 715,
726, 16 L.Ed.2d 218, 86 S.Ct. 1130 (1966).
D. Ganthier's Cross Motion for Leave to Amend
The plaintiff cross moves to amend her complaint in an attempt to
sufficiently allege her claims. Leave to amend "shall be freely given
when justice so requires." Fed.R.Civ.P. 15(a). Leave to amend should
only be denied because of undue delay, bad faith, futility, or prejudice
to the nonmoving party, Foman v. Davis, 371 U.S. 178, 182, 83 So.
Ct. 227 (1962), and the decision to grant or deny a motion to amend rests
within the sound discretion of the district court. Zahra v. Town of
Southold, 48 F.3d 674, 685 (2d Cir. 1995).
If an amendment is futile, "it is not an abuse of discretion to deny
leave to amend" to the moving party. Ruffolo v. Oppenheimer & Co.,
987 F.2d 129, 131 (2d Cir. 1993). A determination that a proposed claim
is futile is made under the same standards that govern a motion to
dismiss under Rule 12(b)(6). See A.V. by Versace, Inc. v. Gianni
Versace, S.P.A., 160 F. Supp.2d 657, 666 (S.D.N.Y. 2001); see also
Randolph-Rand Corp. of New York v. Tidy Handbags, Inc., No. 96 Civ.
1829, 2001 WL 1286989, at *5 (S.D.N.Y., Oct. 24, 2001) (An amendment is
futile "if the
proposed amended complaint would be subject to `immediate dismissal' for
failure to state a claim or on some other ground." (quoting Jones v. New
York Div. of Military & Naval Affairs, 166 F.3d 45, 55 (2d Cir.
The plaintiff has attached a proposed amended complaint to her
cross-motion. The only additional factual allegations set forth in the
amended complaint are: that it was Westerlind who told the plaintiff that
GreyStone did not send the plaintiff to NorthShore to perform data entry;
the plaintiff had several years of medical billing experience prior to
her employment at North Shore; that "upon information and belief" Tobin
and Westerlind discussed placing "Louise," a white female, in the medical
biller position and offering the plaintiff a lesser position which they
believed the plaintiff would not accept; that the defendants retaliated
against the plaintiffs by notifying the Department of Labor that she
should be denied benefits because she failed to respond to a job offer
for a medical billing position; and that Westerlind failed to return the
plaintiff's telephone calls after the plaintiff was denied benefits.
In the Court's view, the amended complaint fails to cure the pleading
deficiencies found in the complaint, thus rendering the granting of leave
to amend "futile." A.V. by Versace, Inc., 160 F. Supp.2d, at 666 First,
neither of the Moving Defendants were named in the EEOC charge, which,
subject to the limited exceptions, is a requirement to plead a Title VII
cause of action. With respect to the Section 1981
cause of action, the proposed amended complaint does not allege that the
Moving Defendants had a race based invidious discriminatory animus toward
her. See Mian, 7 F.3d at 1087. The proposed First Amendment retaliation
claim would also fail as the plaintiff was not speaking about a matter of
public concern. Finally, with respect to the federal conspiracy cause of
action, the plaintiff fails to plead with particularity that the Moving
Defendants were in fact in a conspiracy, or that they had a race based
"invidiously discriminatory animus" against the plaintiff. " Roffman,
2002 WL 31760245, at *6.
Accordingly, the Court declines to grant the plaintiff leave to amend
because her proposed amended complaint "would be subject to immediate
dismissal for failure to state a claim or on some other ground."
Randolph-Rand Corp. of New York v. Tidy Handbags, Inc., 2001 WL 1286989,
at *5 (internal quotation omitted).
Based on the foregoing, it is hereby
ORDERED, that the motion to dismiss all of the claims against the
defendants GreyStone and Westerlind is GRANTED; and it is further
ORDERED, that the plaintiff's cross motion for leave to amend is
DENIED; and it is further
ORDERED, that the Clerk of the Court is hereby directed to amend the
caption to read as follows:
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