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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

I. Introduction

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. Page 2

II. Facts

  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., ¶ 6).

  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 Page 3 "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 et. seq.

 III. Analysis

  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 [1]-12117, and alleges that Dr. Sable Page 4 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 discrimination.*fn1

  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 Page 5 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., Page 6 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 the defendant.*fn2 Page 7

  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 `it Page 8 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. Page 9

  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 complaint Page 10 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 complaint Page 11 "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)." Page 12 (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 discriminatory act.").

  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 Page 13 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 route first.


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, Page 14 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. Page 15

  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 Page 16 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 of age.

  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 Page 17 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.

 IV. Conclusion

  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.


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