United States District Court, S.D. New York
March 31, 2004.
ROMA DREIZIS, Petitioner, -against- METROPOLITAN OPERA ASSOCIATION, INC., Respondent
The opinion of the court was delivered by: RICHARD CASEY, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Roma Dreizis ("Plaintiff") originally commenced this action
against the Metropolitan Opera Association, Inc. ("the Met") and other
individual defendants on March 8, 2001, alleging violations of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq. ("Title
VII"); 42 U.S.C. § 1981; New York Executive Law § 296; and New
York common law. On August 12, 2002, the Met served a sanctions
application on Plaintiff's counsel pursuant to Rule 11 of the Federal
Rules of Civil Procedure. On September 11, 2002, Plaintiff notified the
Court that he was voluntarily dismissing the action. Presently before the
Court is the Met's motion for sanctions against Plaintiff and his
attorney Daniel Cherner, Esq., pursuant to 28 U.S.C. § 1927 and this
Court's inherent authority.
Plaintiff, a Russian Jew, was hired as a temporary tailor for the Met,
a world-renowned opera house, from January 1998 to March 1998 and again
1998 to January 1999, along with a number of other temporary
employees that the Met employs during its busy seasons. In February 1999,
the Met elected not to invite Plaintiff back when it hired its next group
of temporary employees, a group that included two Russian Jews and a
Following the Met's decision not to re-hire him, Plaintiff, with the
assistance of his attorney at the time, Jan Blau, unsuccessfully
attempted to re-gain employment with the Met. On February 23, and
February 28, 2000 Plaintiff filed complaints with the New York State
Division of Human Rights and the Equal Employment Opportunity Commission
("EEOC"), respectively. It appears that Plaintiff retained Mr. Cherner,
his present attorney sometime in October 2000. After receiving a
right-to-sue letter from the EEOC in December 2000, Mr. Cherner commenced
this action on March 8, 2001.
In his complaint, Plaintiff claimed that he was discriminated against
by Ute Picton, his German-born supervisor, based on his religion,
ethnicity and national background. See Pl.'s Compl., pp. 4-5.
Plaintiff alleged that this discrimination prevented him from
receiving overtime, meaningful work assignments (to make him
appear unproductive), and was the ultimate cause for his termination. The
Met asserts that Plaintiff was terminated because he purposefully slowed
his work pace in efforts to receive overtime, failed to follow
instructions from his supervisors, and exhibited disruptive behavior in
the workplace which interfered with his co-workers' work. See
Declaration of Sharon E. Grubin in Support of Defendant Metropolitan
Opera Association's Motion for Attorneys Fees ("Grubin Decl."), ¶ 8).
To say that this proceeding got off on the wrong foot would be an
understatement. After some questionable attempts by Plaintiff's attorney,
Mr. Cherner, to serve the defendants, both parties finally appeared
before the Court on September 7, 2001. After prolonged discovery,
Plaintiff himself was finally deposed on August 7, 2002. Plaintiff's
testimony at his deposition contradicted many allegations contained in
his complaint and called into doubt any possibility of prevailing on his
claims against the Met. At his deposition, Plaintiff readily admitted
that his status as a Russian Jew played no part in the Met's decision not
to re-hire him, (See Grubin Decl. Ex. 2 at pp. 118-119), that
he was in fact provided with sufficient work assignments (See
id. at p. 202), and the he was not in fact deprived of overtime
because of his nationality or religious background (See id. at
On August 12, 2002, the Met served Mr. Cherner with a Rule 11
application. After Plaintiff voluntarily dismissed this action, the Met
moved this Court for attorneys' fees pursuant to 28 U.S.C. § 1927.
28 U.S.C. § 1927 provides that "any such person who so multiplies
the proceedings in any case unreasonably and vexatiously may be required
by the court to satisfy personally the excess costs, expenses, and
attorneys' fees reasonably incurred because of such conduct." A district
court also has authority to impose sanctions pursuant to its inherent
power to supervise and control its own proceedings where the losing party
has "acted in bad faith, vexatiously, wantonly, or for oppressive
reasons." Oliveri v. Thompson, 803 F.2d 1265, 1272 (2d Cir.
1986) (internal quotation marks and citations omitted). "The only
meaningful difference between an award made under §
1927 and one made pursuant to the court's inherent power is . . .
that awards under § 1927 are made only against attorneys or other
persons authorized to practice before the courts while an award made
under the court's inherent power may be made against an attorney, a
party, or both." Id. at 1273.
In order for a court to impose sanctions under either authority, there
must be clear evidence that "(1) the challenged claim was without a
colorable basis and (2) the claim was brought in bad faith, i.e.,
motivated by improper purposes such as harassment or delay."
Schlaifer Nance & Co. v. Estate of Andy Warhol, 194 F.3d 323,
336 (2d Cir. 1999). Although a court may impose sanctions where "the
attorney's actions are so completely without merit as to require the
conclusion that they must have been undertaken for some improper purpose
such as delay," Oliveri, 803 F.2d at 1273, the imposition of
sanctions requires a "clear showing of bad faith" that is characterized
by a high degree of specificity. Shafii v. British Airways,
PLC, 83 F.3d 566 (2d Cir. 1996). See also Milltex Indus. Corp.
v. Jacquard Lace Co., 55 F.3d 34, 41 (2d Cir. 1995); Schlaifer
Nance, 194 F.3d at 339; Kamen v. Am. Tel. & Tel. Co.,
791 F.2d 1006, 1010 (2d Cir. 1986).
While sanctions may be imposed under Rule 11 upon a showing of
objective unreasonableness on the part of the attorney, the bad faith
requirement under § 1927 or the Court's inherent authority is
subjective. See MacDraw. Inc., v. CIT Group Equip. Fin., Inc.,
73 F.3d 1253 (2d Cir. 1996). Accordingly, courts have declined to impose
sanctions for pursuing a meritless claim alone. See, e.g., Anonymous
v. Goddard Riverside Cmty Ctr., 1997 WL 475165, at *5 (S.D.N.Y.
1997); Howard v. Klynveld Peat Marwick Goerdeler, 977 F. Supp. 654,
668 (S.D.N.Y. 1997).
With this high standard in mind, the Court will address (1) the merit
of Plaintiff's claims and (2) whether Plaintiffs counsel acted in bad
A. Merits of Plaintiff's Claims
Plaintiff's complaint alleges thirteen claims, all arising out of his
employment with the Met. Plaintiff claims that he suffered disparate
treatment, a hosfile work environment, and retaliation on the basis of
his national origin, ethnicity, and religion under Title VE,
42 U.S.C. § 1981, and New York Executive Law § 296. He further alleges that
he suffered intentional infliction of emotional distress under New York
common law. The Court concludes that each of these claims was without
1. Plaintiff's "Title VII" Disparate Treatment and Hosfile Work
Plaintiffs first four claims allege the following pursuant to Title YE:
(1) disparate treatment on the basis of Plaintiffs national origin; (2)
discriminatory treatment on the basis of his ethnicity; (3) disparate
treatment based on his religion; and (4) subjection to a hosfile work
environment. Not only were these claims time-barred, but they were
clearly meritless as well.
Plaintiff was terminated from the Met on January 29, 1999; the Met
declined to invite him back in February 1999. Plaintiff did not
file a complaint with the EEOC until February 23, 2000, beyond the
statutorily prescribed three hundred days allowed for filing such
claims.*fn1 Because these claims were time barred under the EEOC's
deadlines, Plaintiff is precluded from asserting them in federal
court. See Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708,
712 (2d Cir. 1996).
Assuming, arguendo, that Plaintiffs claims were not
time-barred, it was nevertheless clear from Plaintiffs own deposition
testimony that he had no chance of proving a disparate treatment claim.
Such a claim requires a Plaintiff to show the following: (1) membership,
in a protected class; (2) satisfactory job performance; (3) termination
from employment or other adverse employment action; (4) that similarly
situated employees who were not minority members received more favorable
treatment; and (5) animus, i.e., that the defendant had a discriminatory
intent or motive. See Grill v. New York City Transit Auth.,
291 F.3d 231, 234 (2d Cir. 2002).
At his deposition, Plaintiffs own statements negate the fourth and
fifth elements of this claim. Plaintiff readily admits his knowledge that
other Russian Jews were re-hired after his termination in January 1999,
that his work load was kept constant and consistent with other similarly
situated employees, that he did not believe he was not re-hired because
of his ethnicity or religion, and that he never felt or was made to feel
uncomfortable because of his ethnic or religious background as a Russian
Jew while working for the Met. (See Mem. of Def, Ex. 2, pp.
102-40; 118-19; 100-01).
2. Plaintiff's Retaliation Claim
Plaintiffs Fifth claim asserts that he was retaliated against for
complaining about the alleged discriminatory action. Plaintiffs claim for
retaliation is both barred for procedural reasons and meritless based on
his own testimony.
Prior to filing a Title VII claim in federal court, a plaintiff must
first file a complaint with the EEOC. See Criales v. American
Airlines, Inc., 105 F.3d 93, 95 (2d
Cir. 1997). Plaintiffs complaint to the EEOC did not include a
charge of retaliation, see Def. Mem., Ex.'s. 6 and 7. Thus he
is precluded from bringing a retaliation claim in this Court.
To prove a claim of retaliation, a plaintiff must demonstrate: (1) he
was engaged in protected activity by opposing a practice made unlawful by
Title VII, i.e., by complaining of discrimination; (2) the employer was
aware of that activity; (3) plaintiff suffered an adverse employment
action; and (4) there was a causal connection between the protected
activity and the adverse action. See Holtz v. Rockefeller & Co.,
Inc., 258 F.3d 62, 79 (2d Cir. 2001).
Plaintiff admitted at his deposition that he did not complain of any
activity that was unlawful under the applicable employment discrimination
laws until February 23, 2000, when he filed a complaint with the New York
State Division of Human Rights. See Def. Mem. Ex. 2, pp.
129-30; 134-35. Because he never complained of any discrimination until
nearly a year after the Met declined to rehire him, Plaintiff cannot
establish a valid claim of retaliation.
3. Plaintiff's Claims under § 1981 and New York Executive
Law § 296
The Sixth, Seventh, and Eighth claims of Plaintiffs complaint duplicate
the First, Second, Third, and Fourth claims as violations of 42 U.S.C. § 1981.
Plaintiffs Ninth, Tenth, and Eleventh claims similarly allege
disparate treatment on the basis of his national origin, ethnicity, and
creed, respectively under New York Executive Law § 296. Plaintiffs
Twelfth claim charges retaliation under § 296.
Disparate treatment and retaliation claims alleged under § 1981 and
Executive Law § 296 are evaluated under the same principles as Title
VII claims. See McGee v.
Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997);
Arias v. Instructional Systems. Inc., 259 F.3d 91, 98 (2d Cir.
2001). Accordingly, these claims are not supportable for the reasons set
4. Intentional Infliction of Emotional Distress
Plaintiffs final claim alleges intentional infliction of emotional
distress under New York common law. Like Plaintiffs other claims, his
claim for intentional infliction of emotional distress is both
time-barred and not supportable on the merits.
The statute of limitations for intentional infliction of emotional
distress is one year. See N.Y.C.P.L. § 215(3). Plaintiff
asserted this claim on March 8, 2001, the date on which the complaint was
filed, and more than two years after his alleged wrongful termination.
Thus, this claim was time-barred.
In order to prevail on a claim of intentional infliction of emotional
distress, a plaintiff must show "(1) extreme and outrageous conduct, (2)
intent to cause extreme 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).
There are no facts in the record that would support any accusation that
the Met engaged in extreme and outrageous conduct. To the contrary,
Plaintiff himself testified that his working environment was comfortable
and testified that no derogatory comments were made in his presence with
respect to his national origin, ethnicity, or religion.
B. Bad Faith
While the Court finds that Plaintiffs claims are without merit, the
confusing and contradicting nature of the affidavits submitted in support
of and in opposition to this motion preclude a clear finding that Mr.
Cherner's actions were taken in bad faith.
Defense counsel asserts that the pursuit of Plaintiff's claims
represented an attempt to extract an unwarranted settlement and that Mr.
Cherner continually and deliberately obstructed the progress of this
case. In her affidavit, Sharon Grubin, the Met's General Counsel, points
to numerous requests by Mr. Cherner to settle this case. See
Grubin Decl., pp. 15, 21, 22, 24, 25. Mr. Cherner disputes Ms. Grubin's
allegations, along with her statements about his actions during
The Court cannot find that Mr. Cherner clearly acted in bad faith,
warranting an imposition of sanctions, on the basis of the contradictory
affidavits. Therefore, Defendant the imposition of sanctions requires a
"clear showing of bad faith" that is characterized by a high degree of
specificity. Shafii v. British Airways, PLC, 83 F.3d 566 (2d
Cir. 1996). See also Milltex Indus. Corp. v. Jacquard Lace Co.,
55 F.3d 34, 41 (2d Cir. 1995); Schlaifer Nance, 194 F.3d at
339; Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1010 (2d
Due to the subjective nature of the bad faith requirement under §
1927 or the Court's inherent authority the Court make a finding of bad
faith on the contradictory affidavits before it. See MacDraw. Inc.,
v. CIT Group Equip. Fin., Inc., 73 F.3d 1253 (2d Cir. 1996).
Accordingly, the Court declines to impose sanctions on Mr. Cherner.
The Court finds that all thirteen of Plaintiffs claims lack any merit;
however, it does not find that there is clear evidence that Mr. Cherner
acted in bad faith. Therefore, Defendant's motion for sanctions is DENIED