The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
Non-party Verna Eggleston ("Eggleston") and defendant Joann
Schoonmaker ("Schoonmaker") have moved pursuant to Rule 12(b)(6)
to dismiss the complaint of pro se plaintiff Anthony Mendez
("Mendez") on the grounds that individual employees cannot be
held liable pursuant to Title VII of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"). As set forth
below, the motion is denied as to Eggleston and granted in part
as to Schoonmaker.
A complaint was filed in this action on January 30, 2004
against the City of New York (the "City"), the New York City
Human Resources Department ("HRA"), HRA Director Joseph A.
Santino ("Santino"), HRA Deputy Director Vincent Martino
("Martino"), and Joann Schoonmaker ("Schoonmaker"). The complaint
appears to assert violations of Title VII, see
42 U.S.C. §§ 2000e et seq., and the New York State Human Rights Law ("NYSHRL").*fn1 See N.Y.
Exec. L. §§ 290 et seq.
On June 29, 2004, an order was entered granting Mendez thirty
additional days in which to serve the defendants. On August 11,
2004, the Court dismissed the action without prejudice for
failure to comply with Rule 4(m), Fed.R.Civ.P. By letter dated
August 19, 2004, Mendez requested relief from the August 11, 2004
order, and on January 25, 2005, the Court vacated its August 11,
The civil docket for this district reflects: (1) that HRA was
served with the summons and complaint on August 19, 2004; (2)
that Santino and Martino were served on September 17, 2004; and
(3) that Schoonmaker was served on October 15, 2004. Pursuant to
the January 25, 2005 order, this service is deemed timely in
light of Mendez' pro se status.
On February 15, 2005, Eggleston and Schoonmaker moved to
dismiss the complaint. On March 24, 2005, Mendez requested an extension of time in order to oppose the motion. The motion was
marked as fully submitted without oral argument on March 30,
The following facts are drawn from the allegations contained in
the complaint and the documents annexed thereto. All well-pleaded
allegations are accepted as true for the purpose of this motion.
See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.
2002). The following statements do not constitute findings of the
Mendez is a Puerto Rican man who has been employed by HRA as a
painter since 1980. On or about December 2001, Mendez took an
exam to become a supervisor of HRA painters, and he performed
better on that exam than anybody else in his department. In March
2002, Santino, the director of trades for HRA, told Mendez that
he would be promoted if he could prove that he had passed the
exam. In October 2002, Mendez provided Santino with proof of his
performance on the exam. At that time, Santino indicated that he
needed to speak to James Neenan of HRA concerning Mendez'
promotion. Mendez did not receive the promotion. HRA has never
promoted a black or Latino man or a woman of any race to the
position of supervisor of HRA painters. Rather, all individuals
promoted to this position have been white men. Mendez has alleged
that Santino, Neeman, and Schoonmaker conspired to prevent him
from receiving the promotion that he sought and that they retaliated
against him for making a prior employment discrimination
On March 4, 2003, Mendez filed charges concerning Defendants'
conduct with: (1) the federal Equal Employment Opportunity
Commission ("EEOC") and (2) the New York State Division of Human
Rights and/or the New York Commission on Human Rights. On October
20, 2003, the EEOC issued a right to sue letter to Mendez.
In considering a motion to dismiss pursuant to Rule 12(b)(6),
the Court should construe the complaint liberally, "accepting all
factual allegations in the complaint as true, and drawing all
reasonable inferences in the plaintiff's favor." Chambers v.
Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) (citing
Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001)). "The issue
is not whether a plaintiff will ultimately prevail but whether
the claimant is entitled to offer evidence to support the
claims." Villager Pond, Inc. v. Town of Darien, 56 F.3d 375,
378 (2d Cir. 1995) (quoting Scheuer v. Rhodes, 416 U.S. 232,
236 (1974)). Dismissal is only appropriate when "it appears
beyond doubt that the plaintiff can prove no set of facts which
would entitle him or her to relief." Sweet v. Sheahan,
235 F.3d 80, 83 (2d Cir. 2000). The Supreme Court has clarified the standard for dismissal as
it relates to employment discrimination claims. In Swierkiewicz
v. Sorema N.A., 534 U.S. 506 (2002), the Court, in reviewing
this Circuit's use of a heightened pleading standard for
discrimination claims brought under Title VII and the Age
Discrimination in Employment Act (ADEA), held that a plaintiff
bringing an employment discrimination claim is required only to
comply with the liberal rules for notice pleading set forth in
Fed.R.Civ.P. 8(a)(2). See id. at 507. The plaintiff must
only provide "a short and plain statement of the claim showing
that the pleader is entitled to relief," Fed.R.Civ.P. 8(a)(2),
and "[s]uch a statement must simply `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,
In considering Mendez' pleading and his other papers submitted
in this matter, the Court is mindful that Mendez is proceeding
pro se and that his submissions should be held "`to less
stringent standards than formal pleadings drafted by
lawyers. . . .'" Hughes v. Rowe, 449 U.S. 5, 9 (1980) (per
curiam) (quoting Haines v. Kerner, 404 ...