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.
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 ¶
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
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.
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 ...