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RACKER v. ST. BONAVENTURE UNIVERSITY

June 24, 2005.

BARBARA D. RACKER, Plaintiff,
v.
ST. BONAVENTURE UNIVERSITY, Defendant.



The opinion of the court was delivered by: JOHN CURTIN, Senior District Judge

In this case, plaintiff Barbara D. Racker claims that she was retaliated against by defendant St. Bonaventure University, in violation of Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law, when she refused to sign a provisional contract for continued employment because she believed it to be part of a discriminatory scheme to terminate a fellow employee. Defendant moves (Item 5) to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. In response, plaintiff has filed a cross-motion (Item 12) for leave to amend the complaint to add a cause of action under 42 U.S.C. § 1981.

For the reasons that follow, defendant's motion is granted, and plaintiff's motion for leave to amend is denied.

BACKGROUND

  Plaintiff alleges that she was employed by St. Bonaventure University from the fall of 2000 through May 31, 2002, as Director of the F. Donald Kenney Museum and Art Study Wing/Curator of Prints and Drawings in the University's Regina A. Quick Center for the Arts (Item 1, ¶ 6 & Ex. A). Each of the four "Administrator" positions on the Quick Center's organizational tier was filled pursuant to a series of renewable, one-year contracts, and each Administrator reported directly to the Director of the Quick Center (id. at ¶¶ 8, 13, 15 & Ex. B (Organizational Chart)). At the time of the events alleged in the complaint, one of the Administrator positions (Director of the Rigas Family Theater) was held by Zoe WalkerI-to, an African-American female (id. at ¶ 8).

  Plaintiff alleges that at some point in January 2003, she became aware that Ms. Walker-Ito had made a claim of racial discrimination in employment against the University (id. at ¶ 9). Plaintiff further alleges upon information and belief that then-University President Robert J. Wickenheiser and Joseph LoSchiavo, who was hired by defendant in December 2002 as the Quick Center's new Executive Director, responded to Ms. WalkerI-to's claims "by forming a plan to rid themselves of Walker-Ito without appearing to retaliate against Walker-Ito for her claims of racial discrimination" (id. at ¶ 12). According to plaintiff, the "plan" involved offering Quick Center Administrators "provisional agreements" instead of renewable year-to-year contracts, with the hope that Ms. Walker-Ito would quit rather than accept a provisional appointment (id. at ¶ 13).

  Plaintiff alleges that she was advised of this plan by Mr. LoSchiavo sometime later in January 2003. Mr. LoSchiavo explained that the provisional appointment would also mean a change in plaintiff's title from "Director" to "Senior Curator" of the Kenney Museum. When plaintiff voiced her concerns about this proposed "demotion," Mr. LoSchiavo told her she had nothing to worry about because "all the top people at the Quick Center were being offered provisional agreements" to protect against litigation by Ms. Walker-Ito (id. at ¶¶ 141-5). By letter dated February 12, 2003, Mr. LoSchiavo advised plaintiff that he had undertaken a reassessment of the structure, operations, and programming at the Quick Center, and had proposed certain organizational changes for the department (Item 1, Ex. C). As a result, it was determined that plaintiff's annual Administrator contract would not be renewed at its expiration on May 31, 2003. Instead, she would be offered a provisional appointment to the position of "Senior Curator/Curator of Prints and Drawings." Attached to the letter was a written proposal setting forth the terms of the "provisional (at will) appointment," including a biweekly salary of $1,461.54*fn1 (id.).

  Plaintiff alleges that after receiving the letter and the proposed provisional appointment agreement, she told Mr. LoSchiavo and other unnamed University administrators that she would not sign the agreement because she believed that it was part of a scheme to deceive and retaliate against Ms. Walker-Ito (Item 1, ¶ 19). As a result of her refusal to sign the agreement, her employment ended at the expiration of her contract on May 31, 2003 (id. at ¶ 20).

  In her first cause of action, plaintiff claims that defendant retaliated against her in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., because she "refused to cooperate in [defendant]'s discriminatory and retaliatory conduct directed at removing Ms. Walker-Eto [sic], and for refusing to participate in a conspiracy in furtherance of such unlawful conduct" (id. at ¶ 26). In her second cause of action, plaintiff claims that defendant's conduct also violated the New York State Human Rights Law (id. at ¶ 28). Defendant moves to dismiss the complaint for failure to state a claim upon which relief can be granted. According to defendant, even taking all of the facts alleged in the complaint as true, plaintiff can prove no set of facts that would entitle her to relief on her retaliation claim because (1) she cannot demonstrate a good faith, reasonable belief that the defendant's "provisional appointment" process constituted an unlawful employment practice, (2) defendant took no adverse employment action against her, and (3) she cannot establish a causal connection between her purported protected activity and any alleged adverse employment action.

  For the reasons that follow, the court finds that plaintiff has failed to allege facts that would entitle her to relief under Title VII or the New York Human Rights Law, and that it would be futile to grant leave to amend in order to allow her to assert a claim under Section 1981.

  DISCUSSION

  I. Standard for Dismissal under Rule 12(b)(6)

  Defendant seeks dismissal of the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on the ground that plaintiff has failed to state a viable claim for retaliation upon which relief can be granted under Title VII. Dismissal under Rule 12(b)(6) is appropriate only when it is clear from the facts stated in the complaint, in documents attached to the complaint as exhibits, or in documents incorporated by reference in the complaint, "that no relief could be granted under any set of facts that could be proved consistent with the allegations." Olkey v. Hyperion 1999 Term Trust, Inc., 98 F.3d 2, 9 (2d Cir. 1996), cert. denied, 520 U.S. 1264 (1997); see also Hayden v. County of Nassau, 180 F.3d 42, 54 (2d Cir. 1999); Sullivan-Weaver v. New York Power Auth., 114 F. Supp.2d 240, 242 (S.D.N.Y. 2000). While a court considering a motion to dismiss must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor, the court may properly dismiss the case "if the plaintiff can prove no set of facts that would entitle him to relief." Levy v. Southbrook Int'l Invs. Ltd., 263 F.3d 10, 14 (2d Cir. 2001) (citations omitted), cert. denied, 535 U.S. 1054 (2002).

  In making this core determination, the court's task at the Rule 12(b)(6) stage is not to assess the likelihood that the plaintiff will ultimately prevail on the merits, but simply to assess whether the plaintiff is entitled to offer evidence in support of the claims asserted in the pleadings. Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000). "Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test." Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998), quoted in Sims, 230 F.3d at 20. Rather, the test is "the legal feasibility of the complaint, not . . . the weight of the evidence which might be offered in support thereof." Ryder Energy Distribution Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 779 (2d Cir. 1984) (internal quotation marks omitted).

  Defendant contends that even taking as true all of the facts alleged in the complaint and evident on the face of the documents attached thereto, plaintiff can prove no set of facts to support any of the elements of a prima facie case of retaliation under Title VII or the New York Human Rights Law. In response, plaintiff contends that this argument misapprehends the Supreme Court's recent holding in Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). Swierkiewicz involved a claim brought by a Hungarian national challenging his termination as an underwriter with a reinsurance company. He claimed he was terminated based on his national origin, in violation of Title VII, and on his age, in violation of the Age Discrimination in Employment Act. The district court granted the employer's Rule 12(b)(6) motion to dismiss, finding that the plaintiff had not adequately alleged a prima facie case of employment discrimination under the framework set ...


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