United States District Court, E.D. New York
January 26, 2004.
ROBIN DEAN, Plaintiff, -against- NEW YORK CITY TRANSIT AUTHORITY, Defendants; ROBIN DEAN, Plaintiff, -against- NEW YORK CITY TRANSIT AUTHORITY, AGM, ETHRIDGE and SUPERINTENDENT RONAN, Defendants
The opinion of the court was delivered by: FREDERIC BLOCK, District Judge
MEMORANDUM AND ORDER
These actions are consolidated for the purposes of this Memorandum and
Order. In Dean I, defendant New York City Transit Authority ("TA") moves
to dismiss plaintiff's Title VII claim as time-barred. In Dean II, the
individual defendants move to dismiss plaintiff's Title VII claims.
Alternatively, if these claims be construed as brought under § 1983,
defendants move to dismiss for failure to state a cognizable claim
against the Transit Authority in Dean I and
against the individual defendants in Dean II.
I. Dean I
Dean, currently employed by the TA, brings a Title VII gender
discrimination claim against the TA concerning alleged discriminatory
acts that occurred between December 2000 and July 2001. Specifically,
Dean alleges, in her EEOC charge,*fn1 that she received disparate
treatment by the Transit Authority because of her gender when she was:
[T]ransferred . . . in November of 2000[,] . . .
denied [her] pick rights in December 2000[,] . . .
given incomplete training . . . [whereas] men were
being trained [and] received a schedule for
training[,] . . . [h]er seniority was denied[,] . . .
[her supervisor Mrs. O'Blenis] made negative comments
about her job performance[,] and [she] was disciplined
. . . for a late pull-out [whereas] Mrs. O'Blenis
never disciplined the male dispatcher for late
Compl. Ex. at 12-13.*fn2
Furthermore, Dean alleges that three other
women "up for promotion . . . had to fight for their rights to be
promoted" and filed charges with the EEOC. Id. at 14. At some point in
time, her supervisor stated that "she was not going to have a repeat of
what [another employee did] in regards to suing and writing letters . . .
[and she stated] that she was going to `nip this letter writing shit in
the bud.'" Id.
The TA moves to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), Dean's
Title VII claim because Dean filed this action more than 90 days after
her receipt of the Equal Employment Opportunity Commission's ("EEOC")
right-to-sue notice. In a pro se letter, Dean
asks the Court to deny TA's motion because she states a § 1983 claim. In
response, the TA contends that Dean's allegations "do not suffice to
allege [a] cause of action under § 1983." Transit Authority Reply
Letter, dated December 23, 2003, at 2.
A. Title VII
"A claim under Title VII . . . must be filed within 90 days of the
claimant's receipt of a right-to-sue letter." Sherlock v. Montefiore
Medical Center, 84 F.3d 522, 525 (2d Cir. 1996). Dean alleges that
she never received a right-to-sue letter, see Compl. at 5;
however, attached to the complaint is a letter from the EEOC, dated
January 24, 2002, explaining its denial of her claim. It states that the
"Notice of Right to Sue is enclosed" and informs Dean that she could
initiate a suit in federal court within 90 days. Compl. Ex. at 3-4.
Thereafter, Dean requested reconsideration of the dismissal; in an EEOC
letter, dated March 7, 2002, also attached to the complaint, her request
was denied and she was once again informed of her right to file a lawsuit
"within 90 days of [her] receipt of the Dismissal and Notice of Rights
issued on January 24, 2002." Compl. Ex. at 9.
Although the Court must "accept as true all the factual allegations in
the complaint," Newman & Schwartz v. Asplundh Tree Expert Co., Inc.
102 F.3d 660, 661 (2d Cir. 1996), it can also rely upon "documents
attached to the complaint as exhibits or incorporated in the complaint by
reference." Id. Despite Dean's allegation that she never received a
right-to-sue letter, the letters attached to the complaint and Dean's
request for reconsideration clearly establish that she had knowledge of
the EEOC's denial of her claim and her right to initiate a lawsuit.
Because Dean had notice of her right to sue and did not file this action
until March 19, 2003, well after the requisite 90-day period whether
measured from the January 24, 2002 letter or the March 7, 2002 letter
her Title VII claim is dismissed as time-barred.
B. § 1983
When a gender discrimination claim is brought against a state actor,
Title VII and § 1983 overlap. The Second Circuit has repeatedly held that
Title VII is not the "exclusive remedy for employment discrimination
claims against state or municipal employers," Annis v. County of
Westchester, 36 F.3d 251, 254 (2d Cir. 1994). Section 1983 "furnishes a
cause of action [against a state actor] for the violation of federal
rights created by the Constitution" or federal statutory rights. Id.
Under the Equal Protection Clause, "individuals have a constitutional
right . . . to be free from sex discrimination in public employment,"
id.; thus, an "employment discrimination plaintiff alleging the violation
of a constitutional right may bring suit under § 1983 alone," or in
conjunction with a Title VII claim, if it is brought against a state
actor. Id. at 255. Employment discrimination claims brought under Title
VII and § 1983 are both analyzed under "the burden-shifting framework of
Title VII claims." Annis v. County of Westchester, 136 F.3d 239, 245 (2d
Cir. 1998). Title VII and § 1983 diverge in that a Title VII claim can be
based upon respondeat superior liability, whereas a § 1983 claim cannot.
See Gierlinger v. New York State Police, 15 F.3d 32, 33 (2d Cir. 1994)
("a Title VII sex discrimination claim . . . carries respondeat superior
liability, and a 42 U.S.C. § 198 damage claim . . . does not impose
Because Title VII and § 1983 converge in this context, and given Dean's
status as a pro se litigant, the Court will deem the complaint amended to
assert a § 1983 claim against the Transit Authority and assess whether
Dean's allegations are sufficient to state a cognizable § 1983 claim. See
Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (pro se complaints should
be liberally construed; the Court must "interpret them to raise the
strongest arguments that they suggest").
A § 1983 claim against a municipal agency such as the Transit Authority
is cognizable where the alleged constitutional violation by TA employees
resulted from either a government custom, policy, pattern or practice.
See Monell v. Dept. of Soc. Servs, 436 U.S. 658, 690-91 (1978). "The
policy or custom used to anchor liability need not be contained in an
explicitly adopted rule or regulation," Sorlucco v. New York City Police
Department, 971 F.2d 864, 871 (2d Cir. 1991); rather, a policy can be
shown when "practices . . . are persistent and widespread, [such that]
they could be so permanent and well settled as to constitute a custom or
usage with the force of law." Id. However, "before the actions of
subordinate city employees can give rise to § 1983 liability, their
discriminatory practice must be so manifest as to imply the constructive
acquiescence of senior policy-making officials." Id. (internal quotations
and citations omitted). A municipal custom or policy may also be shown by
"circumstantial proof, such as evidence that the municipality so failed
to train its employees as to display a deliberate indifference to the
constitutional rights of those within its jurisdiction." See DeCarlo v.
Fry, 141 F.3d 56, 61-62 (2d Cir. 1998) (internal quotations omitted).
Finally, Monell liability exists "where an official has final authority
over significant matters involving the exercise of discretion [such that]
the choices he makes represent government policy." Clue v. Johnson,
179 F.3d 57, 62 (2d Cir. 1999).
In Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination
Unit, 507 U.S. 163 (1993), the Supreme Court rejected the application of
a heightened pleading standard in civil rights cases alleging municipal
liability. Thus, a plaintiff bringing a Monell claim need only comport
with the general pleading requirements in Fed.R.Civ.P. 8, namely that the
plaintiff provide a "short and plain statement of the claim," Leatherman,
507 U.S. at 168 (quoting Fed.
R. Civ. P. 8(a)(2)); however, the statement of the claim must at least
give the defendant "fair notice of what the plaintiff's claim is and the
grounds upon which it rests." Id. (quoting Conley v. Gibson, 355 U.S. 41,
47 (1957)). Cases subsequent to Leatherman make it clear that under the
general pleading standard, "a single incident alleged in a complaint,
especially if it involved only actors below the policy-making level, does
not suffice to show a municipal policy." DeCarlo, 141 F.3d at 61.
Furthermore, prior to Leatherman, the Second Circuit held that under the
general pleading requirements, "an allegation of municipal policy or
custom [is] insufficient if wholly conclusory," Ricciutti v. New York
City Transit Authority, 941 F.2d 119, 114 (2d Cir. 1991); a holding
unaffected by the Leatherman decision.
Here, even in light of Leatherman and the relaxed standards applied to
pro se complaints, the Court finds that Dean has failed to allege that
the disparate treatment by her supervisor resulted from any municipal
policy, practice, or custom; she fails to allege a pervasive and widespread
pattern of discrimination or actions of an official with final authority
on policy matters. Accordingly, her claim against the TA must be
dismissed; however, Dean is granted leave to amend her complaint to state
facts supporting a Monell claim, if she can. See Gomez v. USAA Fed. Sav.
Bank, 171 F.3d 794, 795 (2d Cir. 1999) (court may not dismiss a pro se
complaint without granting leave to amend at least once when a liberal
reading of the complaint "gives any indication that a valid claim might
be stated"). To do so, she must allege that the discrimination she
experienced resulted from a government custom, policy, pattern or
practice, consistent with the legal principles described above.
II. Dean II
Dean brings gender discrimination and retaliation claims, pursuant to
Title VII, against the Transit Authority and two of her supervisors,
Ethridge and Ronan, based upon
allegedly discriminatory and retaliatory acts occurring between January
2003 and February 2003. Specifically, Dean alleges that she suffered
gender discrimination and retaliation when, after a meeting in which she
spoke out against her supervisors and after she had filed an EEOC
complaint, a TA employee was "sent to her house . . . to check on her"
when she called in sick whereas no one else who had called in sick was
visited. Compl. Ex. at 12-13.*fn3 Subsequently, "AGM Ethridge decided he
did not want to pay [her] for the sick time . . . [and] instead of
following the [traditional disciplinary procedure] . . . he just removed
the money in advance." Id. In addition, Dean attaches a complaint she
made to the TA on January 24, 2003, also submitted to the EEOC,
concerning defendant Ronan. Therein, she states that Ronan lied "so that
he could give [her] a violation" and notes other instances of
"harassment" by Ronan. Compl. Ex. at 16-17.
The individual defendants move to dismiss, pursuant to Fed.R.Civ.P.
12(b)(b), because supervisors are not subject to liability under Title
VII. In her pro se letter, Dean asks the Court to deny TA's motion
because she also states a § 1983 claim against the individual
defendants. Again, in response, defendants contend that Dean's
allegations "do not suffice to allege [a] cause of action under §
1983." Transit Authority Reply Letter, dated December 23, 2003, at 2.
A. Title VII and Individual Liability
Dean's Title VII claims against Ethridge and Ronan must be dismissed
because "individual supervisors are not subject to liability" under Title
VII. Mandett v. County of Suffolk, 316 F.3d 368, 377 (2d Cir. 2003).
B. § 1983
Although Title VII does not allow claims against individual
supervisors, state actors can be sued in their individual capacities
under § 1983 for violations of federal rights. See Brennan v. City of
White Plains, 67 F. Supp.2d 362, 372 n.2 (S.D.N.Y. 1999) (discussing
differences between employment discrimination claims brought under Title
VII and § 1983; noting that "while supervisory personnel may be sued in
their individual capacities under Section 1983, Title VII does not allow
individual defendants with supervisory control over a plaintiff to be
held personally liable"). Supervisory liability under § 1983 requires
"personal involvement" by state actors in the alleged constitutional
deprivation. Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003). Given
Dean's status as a pro se litigant, the Court will deem the complaint
amended to assert gender discrimination and retaliation claims against
the individual defendants under § 1983, and will assess whether Dean's
allegations are sufficient to state cognizable claims against the
In doing so, the Court is cognizant of the Supreme Court's recent
decision in Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) that an
employment discrimination plaintiff "need not plead a prima facie case of
discrimination," Id. at 515; see also Phillip v. Univ. of Rochester,
316 F.3d 291, 298 (2d Cir. 2003) (Title VII plaintiff "need not set forth
circumstances supporting an inference of discrimination in order to
survive a Rule 12(b)(6) motion"); rather, consistent with Rule 8, the
complaint need only provide "a short and plain statement of the claim
showing that the pleader is entitled to relief . . . [which must] give
the defendant fair notice of what the plaintiff's claim is and the
grounds upon which it rests." Swierkiewicz, 534 U.S. at 512.
Although Swierkiewicz concerned race and age discrimination claims
under Title VII and the ADEA, its holding has been extended to broader
contexts. See e.g. Phillip, 316 F.3d at 299 (Swierkiewicz applies to §
1981 claims); Wait v. Beck's North America, Inc., 241 F. Supp.2d 172, 179
(N.D.N.Y. 2003) (Swierkiewicz applies to hostile work environment
claims). The Second Circuit has not yet addressed the application of
Swierkiewicz to claims brought pursuant to § 1983, see Toussie v.
Powell, 323 F.3d 178, 185 n.3 (2d Cir. 2003) (declining to consider
whether Swierkiewicz overruled Second Circuit's prior case law regarding
pleading requirements for § 1983 conspiracy claims); however, Swierkiewicz
speaks generally of employment discrimination claims and there is no basis
for differentiating between discrimination claims brought under § 1983 or
Title VII with regard to the requisite pleading standard, especially
since, with the exception of § 1983's state action requirement, the
elements of the claim are identical.
With regard to the gender discrimination claim, Dean's allegations,
when accepted as true, sufficiently establish Ethridge's personal
involvement in the alleged discrimination. Furthermore, her pleadings
satisfy Sweierkiewicz because her allegations put Ethridge on notice of
her gender discrimination claim and provide specific facts regarding when
the alleged discriminatory acts occurred.
However, Dean's allegations do not state a cognizable retaliation claim
under § 1983. Although Title VII prohibits retaliation by employers when
an employee has engaged in "protected activity," such as filing an EEOC
complaint, see Terry v. Ashcroft, 336 F.3d 128, 141 (2d Cir. 2003), a
cognizable retaliation claim under § 1983 requires that the employee was
"discharged or disciplined for the exercise of First Amendment rights."
Ezekwo v. New York City Health & Hosp. Corp., 940 F.2d 775, 780 (2d
Cir. 1991). A First Amendment retaliation claim has
two elements: (1) that the conduct at issue was protected speech;
and (2) that the speech played a substantial part in the employer's
adverse employment action." Id.
Public employee speech is protected only when it addresses "a matter of
public concern." Id. at 781 (quoting Connick v. Myers, 461 U.S. 138, 146
(1983)). "Complaints [that are] personal in nature and generally relate
to [the employee's] own situation, are not matters of public concern,
Ezekwo, 940 F.2d at 781; thus, they cannot form the basis of a retaliation
claim. However, the Second Circuit has held that when an employee's
complaints to a supervisor " implicate  system-wide discrimination they
. . . unquestionably involve  a matter of public concern." Saulpaugh
v. Monroe Community Hospital, 4 F.3d 134, 143 (2d Cir. 1993).
Here, Dean's complaint to the EEOC addressed her personal situation,
not system-wide discrimination; accordingly, her retaliation claim against
Ethridge must be dismissed. See, e.g., Bates v. Bigger, 192 F. Supp.2d 160,
172 (S.D.N.Y. 2002) (employee who complained of discrimination did not
state a retaliation claim because the complaints involved "personal
grievances" which were related to plaintiff's "own employment
interests"). Dean is, however, granted leave to amend her complaint to
allege facts showing that any adverse employment action taken was in
response to complaints that addressed matters of public concern, if she
Dean fails to allege that the "harassment" and the resultant disparate
treatment she received from defendant Ronan was based upon gender or was
retaliatory, let alone in retaliation for the exercise of her First
Amendment rights; thus, her allegations fail to state a cognizable gender
discrimination or retaliation claim against Ronan. Accordingly, these
claims are dismissed; however, the Court grants Dean the opportunity to
replead, if she can, to allege facts supporting these claims.
III. Appointment of Counsel
The factors the Court must consider in determining whether to appoint
counsel to a pro se civil litigant are the same in both the Title VII and
§ 1983 context:
[T]he district judge should first determine whether
the indigent's position seems likely to be of
substance. If the claim meets this threshold
requirement, the court should then consider the
indigent's ability to investigate the crucial facts,
whether conflicting evidence implicating the need for
cross-examination will be the major proof presented to
the fact finder, the indigent's ability to present the
case, the complexity of the legal issues and any
special reason in that case why appointment of counsel
would be more likely to lead to a just determination.
Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997) (quoting Hodge
v. Police Officers, 802 F.2d 58
, 61-62 (2d Cir. 1986). Although Dean has
been granted leave to proceed in forma pauperis, her surviving claims do
not seem "likely to be of substance." Most of the alleged gender
discrimination appears to have occurred with female supervisors and Dean
will likely have a difficult time providing evidence to establish that
any disparate treatment she received was based upon her gender rather
than job performance or other legitimate bases for making transfer, pay
or training decisions. Furthermore, her cases do not present "complex"
legal issues. It also appears that Dean is fully capable of investigating
her claims. Attached to her complaint are documents such as employee
schedules, pay stubs and sick-call lists, demonstrating that she is
capable of investigation. Accordingly, Dean's request for appointment of
counsel is denied.
In Dean I, the complaint is dismissed, but the Court grants Dean leave
to amend her § 1983 claim against the Transit Authority. In Dean II, the
Title VII claims against the individual defendants are dismissed. The §
1983 gender discrimination claim against Ethridge
survives; however, the retaliation claims against the individual
defendants and the gender discrimination claim against Ronan are
dismissed. Dean is granted leave to amend her retaliation claims against
the individual defendants and her gender discrimination claim against
Ronan. All amendments must be made within 30 days from the filing of this
Memorandum and Order.