United States District Court, S.D. New York
March 30, 2004.
TESSY TORRES, Plaintiff, -against- U.S. DEPT. OF VETERAN AFFAIRS, MARYANN MUSUMECI, Agency Director, Dr. GERALD SABLE, Chief Director, Defendants
The opinion of the court was delivered by: HENRY PITMAN, Magistrate Judge
Plaintiff brings this action pursuant to Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et. seq. ("Title VII"), the
Age Discrimination in Employment Act, 29 U.S.C. § 621-634 (the
"ADEA"), 42 U.S.C. § 1981 and 5 U.S.C. § 7201, alleging
employment discrimination on the basis of race, gender and age.
Defendants move to dismiss the complaint. The parties have consented to
my exercising plenary jurisdiction in this matter pursuant to
28 U.S.C. § 636(c). For the reasons set forth below, defendants' motion is
granted without prejudice to plaintiff filing a second amended complaint
to correct the deficiencies that currently exist in the pleadings.
Plaintiff worked in an unspecified position at the Veteran Affairs
Medical Center for twenty-two years (Complaint, sworn to December 2, 2002
("Compl."), ¶ 1). On an unspecified date, Miguel Rodriguez came to
plaintiff to be "admitted" as a dental patient (Compl., ¶ 5).
Plaintiff believed that Rodriguez's request to be "admitted" was a
"practical joke" because he exhibited "extreme feminine qualities," so
she checked on the computer "to see if he was service connected" (Compl.,
¶ 5). Apparently, plaintiff's accessing Rodriguez's records was
unauthorized because on May 8, 2001, Dr. Gerald Sable terminated
plaintiff's employment because "plaintiff sought information not privy to
her when she received information concerning [Miguel Rodriguez's] next of
kin's phone number, Social Security number, and clinic treatment records"
(Compl., ¶ 4).
Plaintiff alleges that she committed an "unintentional minor error" by
accessing Rodriguez's records (Compl., ¶ 4). Plaintiff alleges that
the United States Merit Systems Protection Board found that Dr. Sable's
decision to terminate plaintiff was "much too harsh," and ordered him to
return her to full duty, which he "adamantly disobeyed" (Compl., ¶
Reading the complaint leniently, plaintiff alleges that she was
terminated because of race, gender and age discrimination (Compl., ¶
2(b)). Plaintiff also alleges that Dr. Sable has
"openly practiced discrimination" against "many other middle aged
female employees under his command, and has also even been brought up on
charges for it" (Compl., ¶ 2(b)). Plaintiff also alleges that Dr.
Sable discriminated against her because she was "a disabled veteran who
suffered from post traumatic stress" (Compl., ¶ 2(c)). As discussed
below, however, it appears that plaintiff has now withdrawn all claims
relating to disability-based discrimination under the Americans with
Disabilities Act of 1990, as amended, 42 U.S.C. § 12111 et.
seq. ("ADA") and the Rehabilitation Act, 29 U.S.C. § 791
A. Claims Under the ADA
Defendants first argue that plaintiff's claim under the ADA should be
dismissed for lack of jurisdiction (Defendants' Memorandum of Law in
Support of Motion to Dismiss, dated May 19, 2003 ("Def. Mem.") at 3). It
appears from plaintiff's amended complaint, however, that she has
withdrawn her claims under both the ADA and the Rehabilitation Act. In
her amended complaint plaintiff states "[p]lease strike part 2[,]
Section C of my complaint since this paragraph has nothing to do with the
legalities of this case" (Amended Complaint, dated March 28, 2003 ("Am.
Compl.") at 1). Part 2, Section C of plaintiff's complaint cites the ADA,
42 U.S.C. § 1211 -12117, and alleges that Dr. Sable
knew plaintiff was a disabled veteran who suffered from post
traumatic stress disorder and used this "to his advantage periodically
for a great number of years by publicly harassing her" (Compl., ¶ 2
(c)). Furthermore, in her opposition to defendants' motion, plaintiff
states that "All afore mentioning of the `REHAB ACT of 1973' shall not be
sanctioned, but shall be obliterated from text." (Plaintiff's Opposition
to Motion to Dismiss, sworn to June 17, 2003 ("Pl. Opp."). Although the
meaning of this latter statement is not entirely clear, these two
statements when viewed in conjunction lead me to conclude that plaintiff
has withdrawn all claims relating to disability-based
B. Proper Parties to the Action
Defendants next argue that plaintiff has not asserted her claims
against the appropriate party. Specifically, defendants argue that
"[w]hen challenging the employment practices of
an executive agency of the federal government, a plaintiff may name
as a defendant only the appropriate department head"; to wit, the
Secretary of the Department of Veteran Affairs (Def. Mem. at 4).
Employees, including supervisors, are not subject to suit under Title
VII, the Rehabilitation Act or the ADEA. See Tomka v. Seiler
Corp., 66 F.3d 1295, 1314 (2d Cir. 1995) abrogated on other
grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998)
("A finding of agent liability [under Title VII] would lead to results
that Congress could not have contemplated."). Defendants are correct that
the proper defendant here is the Secretary of the Department of Veteran
Affairs. Nobriga v. Dalton, 94 Civ. 1972, 1996 WL 294354 at *2
(E.D.N.Y. May 28, 1996) ("The Rehabilitation Act permits only the head of
a government agency to be sued, but not the agency itself or its
lower-level federal employees."); Edinboro v. Department of Health
& Human Servs., 704 F. Supp. 364, 365 (S.D.N.Y. 1988) ("The
Rehabilitation Act . . . incorporates the procedural requirements for
suits under Title VII of the Civil Rights Act. . . . In order to
commence an action in district court under Title VII, a federal employee
alleging discrimination may bring suit only against `the head of the
department, agency or unit'. 42 U.S.C. § 2000e-16(c). An action may
not be brought against the agency itself."); see also Matthews v.
United States Postal Serv.,
87-CV-1282, 1989 WL 14684 at *4 (N.D.N.Y. Feb. 23, 1989) ("Unlike
Title VII, the ADEA does not expressly provide who the proper party
defendants should be in an action against a federal entity such as the
Postal Service. As defendant correctly states, however, those courts
which have addressed the issue of the proper defendant in an ADEA action
against the government have held that plaintiffs must name the agency
head as defendant."), citing Romain v. Shear, 799 F.2d 1416,
1418 (9th Cir.), Ellis v. United States Postal Serv.,
784 F.2d 835, 838 (7th Cir. 1986), Smith v. Office of Pers. Mgmt.,
778 F.2d 258, 262 (5th Cir. 1985) and Healy v. United States Postal
Serv., 677 F. Supp. 1284, 1288-89 (E.D.N.Y. 1987).
Accordingly, plaintiff's claims against the defendants Sable and
Musumeci under Title VII, the Rehabilitation Act and the ADEA are
dismissed without prejudice to plaintiff's filing a second amended
complaint naming the Secretary of the Department of Veteran Affairs as
C. Defendants' Remaining Arguments
1. Legal Standard
The legal standard applicable to a motion seeking dismissal under
Rule 12(b)(6) is well settled and requires only brief review.
On a motion to dismiss under Fed.R.Civ.P.
12(b)(6), the Court must accept the well-pleaded
factual allegations in the complaint as true.
See Grandon v. Merrill Lynch &
Co., 147 F.3d 184, 188 (2d Cir. 1998). The
Court's function on a motion to dismiss is "not
to weigh the evidence that might be presented at
trial but merely to determine whether the
complaint itself is legally sufficient."
Goldman v. Belden, 754 F.2d 1059, 1067
(2d Cir. 1985). The Court must draw all
reasonable inferences in the plaintiff's favor,
see Grant v. Wallingford Bd. of Educ.,
69 F.3d 669, 673 (2d Cir. 1995), but must limit
itself to facts stated in the complaint,
documents attached to the complaint as exhibits
and documents incorporated by reference.
See Dangler v. New York City Off Track
Betting Corp., 193 F.3d 130, 138 (2d Cir.
1999). Generally, plaintiffs are not required to
set out in detail the facts upon which their
claims are based, although a complaint will be
dismissed if it fails to set forth any
facts indicating the existence of a viable
claim. See Gregory v. Daly,
243 F.3d 687, 692 (2d Cir. 2001) (citation omitted).
George v. New York City Health & Hosp. Corp., 02 Civ.
1818 (AGS), 2003 WL 289617 at *2 (S.D.N.Y. Feb. 11, 2003). See
Phillip v. University of Rochester, 316 F.3d 291
, 293-94 (2d Cir.
2003) ("We will affirm a dismissal on the face of the complaint only if
appears beyond doubt that the plaintiff can prove no set of facts
in support of his claim which would entitle him to relief.'"),
quoting Conley v. Gibson, 355 U.S. 41
, 45-46 (1957); Bruce
v. United States Dep't of Justice, 314 F.3d 71
, 73-74 (2d Cir.
2002); Holowecki v. Federal Express Corp., 02 Civ. 3355 (LMM),
2002 WL 31260266 at *2 (S.D.N.Y. Oct.9, 2002).
For claims involving employment discrimination, a plaintiff "need not
plead a prima facie case of discrimination." Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 515 (2002); see also Phillip v. Univ. of
Rochester, supra, 316 F.3d at 298 (Title VII plaintiff "need not set
forth circumstances supporting an inference of discrimination in order to
survive a Rule 12(b)(6) motion"). As the Supreme Court noted in
Swierkiewicz, Rule 8(a)(2) provides (1) that a complaint must
include only "a short and plain statement of the claim showing that the
pleader is entitled to relief," and (2) that such a statement simply
"`give the defendant fair notice of what the plaintiff's claim is and the
grounds upon which it rests.'" Swierkiewicz v. Sorema N.A.,
supra, 534 U.S. at 512.
2. Failure to Exhaust Administrative Remedies
a. The Rehabilitation Act and Title VII
Defendants argue that plaintiff's claim under the Rehabilitation Act
and Title VII should be dismissed because plaintiff has failed to exhaust
her administrative remedies (Def. Mem. at 4).
Title 29 of the Code of Federal Regulations, Section 1614.105(a)(1),
requires a plaintiff bringing claims against the federal government under
the Rehabilitation Act or Title VII to exhaust administrative remedies
within a certain time frame prior to bringing a claim in federal court.
Failure to exhaust in a timely manner results in the claims being
time-barred, subject to certain equitable tolls. The Honorable Guido
Calabresi, United States Circuit Judge, explained in Boos v.
Runyon, 201 F.3d 178, 181 (2d Cir. 2000):
EEOC regulations require an employee suing the
federal government under the Rehabilitation Act to
exhaust certain administrative remedies before
initiating a suit in the district court. Thus, an
aggrieved agency employee must first seek EEO
counseling within forty-five days of the allegedly
discriminatory act. See
29 C.F.R. § 1614.105 (a)(1). The employee must then file an
EEO complaint with "the agency that allegedly
discriminated against the complainant."
Id. § 1614.106. Within ninety days
of that agency's final decision, or after the
passage of 180 days from the filing of the
with the agency if no final decision has yet
been rendered, the complainant may file suit in
federal court. See id. §
1614.408. . . .
[T]his Court had previously indicated that this
timeliness requirement is nonjurisdictional.
See Briones v. Runyon, 101 F.3d 287, 290
(2d Cir. 1996) (noting that the requirement that
an agency employee seek EEO counseling within a
certain time after the allegedly discriminatory
event "is analogous to a statute of limitations
and is, therefore, considered subject to waiver,
estoppel, and equitable tolling"); see also
Downey v. Runyon, 160 F.3d 139, 145-46 (2d
Cir. 1998) (same) (citing Zipes v. Trans
World Airlines, Inc., 455 U.S. 385, 393,
102 S.Ct. 1127, 71 L.Ed.2d 234 (1982)), reh'g
denied, 160 F.3d 139, 146 (1999).
This administrative procedure for exhaustion is equally applicable to
claims under Title VII. The Honorable Sidney H. Stein, United States
District Judge, in Avillan v. Potter, 01 Civ. 1648 (SHS), 2002
WL 252479 at *2 (S.D.N.Y. Feb. 21, 2002), explained the administrative
processes under Title VII, and provided a more detailed explanation of
the counseling requirement:
EEOC regulations provide that a federal employee
who believes that he has been the victim of race
or national origin discrimination . . . must
first consult an EEO counselor in order to try to
resolve the matter informally. See
29 C.F.R. § 1614.105 (a)(1). Within thirty days
of the employee having initiated counseling, the
counselor must conduct a "final interview" and if
the employee and the counselor have not been able
to resolve the situation, inform the employee in
writing of his right to file a formal
discrimination complaint with the agency.
See 29 C.F.R. § 1614.105(d). That
"must be filed within 15 days of receipt of
the notice required by § 1614.105(d)."
29 C.F.R. § 1614.106 (b) . . . If the
complaint is timely filed, then the agency has 180
days in which to investigate, see
29 C.F.R. § 1614.108(e), after which the
employee may then either appeal the agency's
decision to the EEOC or file a federal suit,
see 29 C.F.R. § 1614.407(a)-(b).
This regulatory scheme provides "an opportunity
for the resolution of discrimination complaints by
means of conciliation, conference, and
persuasion." Wrenn v. Secretary, Dept. of
Veterans Affairs, 918 F.2d 1073, 1078 (2d
Cir. 1990) (quotation marks omitted).
See also Fridia v. Henderson, 99 Civ. 10749 (BSJ), 2000
WL 1772779 at *9 (S.D.N.Y. Nov. 30, 2000) ("[Plaintiff] did not consult a
counselor at the agency's EEO office within 45 days of the . . .
alleged discriminatory acts as required under [29 C.F.R. § 1614.105
(a)(1)]. Failure to bring a claim within the 45 day time period usually
precludes the claimant from pursuing a discrimination claim in federal
court. Although this statutory requirement is subject to waiver, estoppel
and equitable tolling, [plaintiff] has not provided any reason for this
Court do so. Accordingly, these claims are likewise barred." (citations
omitted)); Lynk v. Henderson, 98 Civ. 2086 (MGC), 2000 WL
178859 at *5 (S.D.N.Y. Feb. 15, 2000) ("In order to exhaust
administrative remedies a federal employee must comply with EEOC
regulations. The applicable regulation requires an employee of a federal
agency to `initiate contact with a Counselor within 45 days of the date
of the matter alleged to be discriminatory.' 29 C.F.R. § 1614.105(a)(1)."
(citations omitted)); Dillard v. Runyon, 928 F. Supp. 1316, 1323 (S.D.N.Y.
1996) ("Exhaustion of administrative remedies requires that a federal
employee comply with EEOC regulations. First, a claimant must consult a
counselor at her agency's EEO office within 45 days of the alleged
Here, plaintiff makes no allegation that she sought counseling within
45 days of the allegedly discriminatory act termination of her
job. Nor does she make any argument in support of a waiver, estoppel or
an equitable toll. Thus, her claims under the Rehabilitation Act, to the
extent they are not withdrawn, and Title VII are dismissed.*fn3
b. Claims Under the ADEA
There are two alternatives paths for commencing an action against the
federal government under the ADEA. As the Supreme Court of the United
States explained in Stevens v. Department of Treasury,
500 U.S. 1, 5-6, (1991):
[Section] 15 of the ADEA provides two alternative
routes for pursuing a claim of age discrimination.
An individual may invoke the EEOC's administrative
process and then file a civil action in federal
district court if he
is not satisfied with his administrative
remedies. See 29 U.S.C. § 633a(b)
and (c). A federal employee complaining of age
discrimination, however, does not have to seek
relief from his employing agency or the EEOC at
all. He can decide to present the merits of his
claim to a federal court in the first instance.
See § 633a(d). Both routes to court
are implicated in this case. We address the direct
Section 15(d) of the Act,
29 U.S.C. § 633a(d), reads:
"When the individual has not filed a complaint
concerning age discrimination with the
Commission, no civil action may be commenced by
any individual under this section until the
individual has given the Commission not less
than thirty days' notice of an intent to file
such action. Such notice shall be filed within
one hundred and eighty days after the alleged
unlawful practice occurred." (Emphasis added.)
[The statute] calls for a notice of not less than
30 days to the Commission of an intent to sue (not
notification within 30 days), and it provides that
the notice shall be filed with the Commission
within 180 days of the alleged unlawful practice
(not filed within 180 days of the notice).
See also Wrenn v. Secretary. Dept. of Veterans Affairs,
918 F.2d 1073
, 1078 (2d Cir. 1990) ("Under the ADEA, an applicant for
federal government employment may bring suit (i) thirty days after giving
notice to the EEOC of an intent to file suit, or (ii) after receiving
notice of a final administrative decision on a timely-filed
discrimination complaint"); Avillan v. Potter,
supra, 2002 WL 252479 at *2 ("Pursuant to the ADEA, a
federal employee . . . who believes that he has been discriminated
against on the basis of his age may either proceed through the EEOC
administrative process . . . or, after giving thirty days notice to
the EEOC, proceed directly to federal court.").
Plaintiff states in her opposition to defendants' motion that she sent
her complaint to the EEOC Office in Washington D.C. on September 15, 2001
within 180 days after being fired (Pl. Opp. at 1).*fn4 She then
commenced suit on December 3, 2002 providing not less than 30
days notice to the EEOC. Therefore, her allegations satisfy the
requirements of Section 633a(d), Title 29 of the United States Code, for
bringing a direct suit.
Since it appears that plaintiff has properly exhausted her ADEA claim,
defendants' motion to dismiss for failure to exhaust is denied.
3. Failure to State a Cognizable Claim
a. 42 U.S.C. § 1981
Plaintiff's claim under Section 1981 must be dismissed because that
provision is not applicable to the federal government. "The rights
protected by [Section 1981] are protected against impairment by
nongovernmental discrimination and impairment under color of State law."
42 U.S.C. § 1981(c); King v. United States Postal Serv.,
01 Civ. 8876 (GEL), 2002 WL 1067825 at *3 (S.D.N.Y. May 29, 2002)
("[Section] 1981 by its own terms explicitly protects equal contract
rights only against impairment by nongovernmental discrimination and
impairment under color of State law." (internal quotation marks and
citation omitted)). Here, plaintiff's claim does not involve
nongovernmental discrimination or impairment under the color of state
law. Accordingly, plaintiff's claim under Section 1981 is dismissed.
b. 5 U.S.C. § 7201
Plaintiff's claim under 5 U.S.C. § 7201 should also dismissed.
Section 7201, which provides for the establishment of minority
recruitment programs within federal agencies, does not give rise to a
private cause of action. See Scipio v. Weinberger, 622 F. Supp. 47,
48 (D.C. 111. 1985) (No private right of action under Section 7201.
"Title VII is the exclusive
and preemptive avenue of relief for allegations of racial
discrimination in federal employment."). Accordingly, plaintiff's claim
under Section 7201 is dismissed.
c. The ADEA
Defendants also argue that plaintiff's claim under the ADEA should be
dismissed because plaintiff does not allege her age (Def. Mem. at 8).
The ADEA provides protection against discrimination on the basis of age
to individuals "who are at least 40 years of age." 29 U.S.C. § 631.
See also Rose v. New York City Bd. of Educ., 257 F.3d 156, 157
(2d Cir. 2001). It provides no protection to individuals under 40 years
Plaintiff does not allege anywhere in her pleadings that she is at
least forty years of age. Although it appears that plaintiff does, in
fact, meet this requirement, she has failed to allege it, and, therefore
has failed to allege an essential element of a claim under the ADEA.
Golyar v. McCausland, 738 F. Supp. 1090, 1093 (W.D. Mich. 1990)
("The complaint must in essence set forth enough information to outline
the elements of a claim or to permit inferences to be drawn that these
elements exist."), citing Jenkins v. McKeithen, 395 U.S. 411
(1969). Accordingly, plaintiff's claim under the ADEA is dismissed
without prejudice to plaintiff's filing an amended
complaint that expressly alleges that plaintiff is plaintiff's
filing an amended complaint that expressly alleges that plaintiff was at
least forty years of age at the time her employment was terminated.
Accordingly, for all the foregoing reasons, plaintiff's claims alleging
violations of 42 U.S.C. § 1981 and 5 U.S.C. § 7201 are dismissed
with prejudice. Plaintiff's claim under the ADA, to the extent it has not
been withdrawn, is also dismissed with prejudice. Plaintiff's claims
alleging violations of Title VII, the Rehabilitation Act and the ADEA are
dismissed without prejudice; plaintiff is granted leave to file a second
amended complaint correcting the deficiencies cited herein no later than
twenty (20) days after the date of this Opinion and Order.