United States District Court, S.D. New York
September 19, 2005.
LISA ARBERCHESKI, Plaintiff,
ORACLE CORPORATION, Defendant.
The opinion of the court was delivered by: DENISE COTE, District Judge
OPINION AND ORDER
Pro se plaintiff Lisa Arbercheski ("Arbercheski") has brought
this Title VII employment discrimination case against her former
employer, Oracle Corporation ("Oracle"). Oracle has moved to
dismiss for failure to state a claim. For the following reasons,
the motion is denied.
The following alleged facts are drawn from Arbercheski's
Complaint (the "Complaint"). Arbercheski worked at Oracle from
September 1, 1998 until April 5, 2002, and then again from May 6, 2002 until June 9, 2003. She states that her employment was
terminated on April 5, 2002 due to "market instability," but that
she was offered a new position commencing on May 6 because she
"had a great track record and progress reports" and because she
"was not terminated for performance reasons." (Emphasis in
Arbercheski alleges that while employed by Oracle as an
Enterprise Technology Sales Manager, she requested an
investigation into "activities in [her] work environment which
[she] felt were illicit." She contends that she requested
protection as a "whistleblower" because she feared retaliation
from the parties against whom she complained. The Complaint cites
one example of the practices Arbercheski states she observed,
in March 2002 I observed that CINTRA (an Oracle
Partner who provides services to compliment [sic]
Oracle's offerings) was billing Oracle customers for
services not being provided, in addition to charging
tax for the services that were not being provided (as
well as services that were being provided) and
negating to pay said taxes to the IRS.*fn1
Arbercheski states that Oracle conducted a "mock
investigation," failed to review her evidence, fabricated
agreements and other documents to protect itself, and then fabricated additional documents in order to terminate her
employment in retaliation for her whistleblower activities. For
example, she contends that Oracle's human resources office
fabricated a host of documents indicating that her April 5, 2002
employment termination was due to poor performance instead of
The Complaint alleges that in April 2003, Arbercheski filed a
complaint with her manager, Frank Irizarry ("Irizarry"), an
Oracle Regional Vice President, "with regard to issues concerning
sexual harassment, a hostile working environment, possible
illegal business practices, and slander by Oracle Management."
Arbercheski states that Irizarry told her that her only options
were "to resign without contingencies, or [to] continue working
in the current environment without resolve."*fn2 Arbercheski
states that in response, in May 2003 she spoke to Jane Robertson
("Robertson"), Oracle's Diversity Senior Director in Human
Resources, who agreed to investigate her claims. The Complaint
alleges that on June 9, Heather Pflanz ("Pflanz"), an Oracle
Human Resources manager, called Arbercheski, told her that her
claims had no validity, and then terminated her employment
without offering Arbercheski a severance package. The Complaint
alleges that Pflanz told Arbercheski that she was accepting
Arbercheski's resignation from April 2003. Arbercheski denies
resigning in April, and contends that Oracle fabricated her resignation.
In the Complaint, Arbercheski states that "I feel that I was
constructively discharged based on the fact that I did not tender
resignation and my termination was a direct result of my bringing
valid concerns to Human Resources of unethical behavior within
the management team." She goes on to state:
What's more, in July 2003 my former manager, Frank
Irizarry (still employed as a Regional VP within
Oracle) informed me that Armen Kopoyan, a male member
of the team, had been "laid off" with a severance
package. I was told that because I had involved Human
Resources and abided by Oracle's policies and
procedures as laid out for me by Human Resources
management, I could not be afforded the same status
with a severance package. I feel that I, as a woman,
was treated differently and given very different
options and guidance than male members of my team.
On December 16, 2003, Arbercheski filed a charge of
discrimination, retaliation, and hostile work environment with
the Equal Employment Opportunity Commission ("EEOC"). The EEOC
issued a right to sue letter on July 20, 2004, based on its
finding that the evidence failed to indicate that a violation of
Title VII had occurred. A letter dated September 8, 2004 from an
EEOC investigator to Arbercheski stated that it was "with
reference to our telephone conversation today during which time
you advised me that you had not received the determination issued
concerning the above-referenced charge." The letter stated that
"[a]s a courtesy, I am sending you a copy (via fax) of the
determination . . . and the Dismissal and Notice of Rights administered on July 20, 2004," and that "if you intend to file a
lawsuit (in Federal District Court) you must do so within ninety
(90) days of your receipt of this notice." Arbercheski's
Complaint was received by the Pro Se Office of this Court on
Rule 8(a) requires that the plaintiff provide a "short and
plain statement of the claim showing that the pleader is entitled
to relief." Rule 8(a), Fed.R.Civ.P. Pleadings are to give
"fair notice" of a claim and "the grounds upon which it rests" in
order to enable the opposing party to answer and prepare for
trial, and to identify the nature of the case. Dura Pharm., Inc.
v. Broudo, 125 S. Ct. 1627, 1629 (2005) (citation omitted);
see also Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 512
(2002). Rule 8 is "not meant to impose a great burden upon a
plaintiff." Broudo, slip op. at 10. Indeed, because Rule 8 is
fashioned in the interest of fair and reasonable notice, not
technicality, "extensive pleading of facts is not required."
Wynder v. McMahon, 360 F.3d 73, 77 (2d Cir. 2004) (citation
omitted). With respect to complaints of employment
discrimination, such pleadings need not "contain specific facts
establishing a prima facie case of discrimination" in order to
survive a motion to dismiss. Swierkiewicz, 534 U.S. at 508
(citation omitted). To dismiss an action pursuant to Rule 12(b)(6), a court must
determine that "it appears beyond doubt, even when the complaint
is liberally construed, that the plaintiff can prove no set of
facts which would entitle him to relief." Scutti Enters., LLC v.
Park Place Entm't Corp., 322 F.3d 211, 214 (2d Cir. 2003)
(citation omitted). In construing the complaint, the court must
"accept? as true the factual allegations in the complaint and
draw? all inferences in the plaintiff's favor." Id. If it is
clear, however, that "no relief could be granted under any set of
facts that could be proved consistent with the allegations," the
complaint should be dismissed. Swierkiewicz, 534 U.S. at 514.
In its motion to dismiss, Oracle interpreted Arbercheski's
Complaint as alleging that she was a victim of sexual harassment
and a hostile work environment in violation of Title VII, and on
that basis Oracle argued that Arbercheski had failed to state a
claim. In her 55-page opposition to Oracle's motion, however,
Arbercheski made repeated statements indicating that her
Complaint was intended to advance a disparate treatment claim,
not a harassment or hostile work environment claim.*fn4 She
also made numerous statements appearing to repudiate any retaliation
claim that might lurk in the Complaint.*fn5
"This Court may, and generally will, deem a claim abandoned
when a plaintiff fails to respond to a defendant's arguments that
the claim should be dismissed." Lipton v. County of Orange,
315 F. Supp. 2d 434, 446 (S.D.N.Y. 2004). See also Blouin ex rel.
Estate of Pouliot v. Spitzer, 356 F.3d 348, 363 n. 9 (2d Cir.
2004). Likewise, where a plaintiff expressly states in motion
papers that her complaint does not allege a particular claim,
such a statement "constitutes an express and binding abandonment"
of the claim. Conboy v. AT&T Corp., 241 F.3d 242, 250 (2d Cir.
2001). Given the numerous statements Arbercheski has made in her
opposition characterizing her claim as a disparate treatment
claim and denying that she is advancing a sexual harassment or
hostile work environment claim, Arbercheski is deemed to have abandoned the latter claims.
In its reply, Oracle presses its argument that the disparate
treatment claim must be dismissed. Title VII of the Civil Rights
Act of 1964 makes it unlawful for an employer "to fail or refuse
to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual's race, color, religion, sex, or
national origin." 42 U.S.C. § 2000e-2(a)(1) (emphasis supplied).
Concluding that an "employment discrimination plaintiff need not
plead a prima facie case of discrimination," Swierkiewicz,
534 U.S. at 515,*fn6 the Supreme Court observed that to hold
otherwise not only would "narrowly constrict the role of the
pleadings," but also would be inappropriate in certain cases,
such as where a plaintiff, following discovery, may "produce
direct evidence of discrimination." Id. at 511 (citation
omitted). Additionally, the Court explained that to require more from an employment
discrimination complaint than that it "give the defendant fair
notice of what the plaintiff's claim is and the grounds upon
which it rests" would thwart the plain meaning of Rule 8. Id.
at 512 (citation omitted).
Oracle argues that Arbercheski's Complaint fails to allege
facts sufficient to establish a prima facie claim of gender-based
disparate treatment. But this misstates Arbercheski's burden at
the pleading stage. She must do nothing more than furnish "fair
notice" of her claim and "the grounds upon which it rests."
Although the Complaint devotes a scant paragraph to developing
the basis for a disparate treatment claim, it identifies the
relevant time period July 2003 and at least one individual, a
male, who Arbercheski alleges was "`laid off' with a severance
package," unlike herself, whose employment was allegedly
terminated without benefits or a severance package. Oracle notes
that the Complaint does not allege facts indicating that the male
in question was similarly situated to Arbercheski, but rather
alleges certain facts pertaining to Arbercheski's actions that
represent material differences that could account for their
different treatment. "Whether or not [a plaintiff] has correctly
defined which employees are similarly situated to her," however,
"is a question of fact that is not appropriately resolved on a
motion to dismiss." Gratton v. JetBlue Airways, 04 Civ. 7561
(DLC), 2004 WL 1251786, at *8 (S.D.N.Y. May 25, 2005).
Arbercheski has given Oracle fair notice of the basis of her disparate treatment claim, and therefore it is inappropriate to
dismiss the Complaint at this stage.
Plaintiff's claim may also be read to plead a retaliation
claim. Oracle did not move to dismiss that claim, therefore the
case will proceed on the basis of two claims pleaded against
Oracle: one for disparate treatment in the provision of severance
packages and another for wrongful termination of employment in
retaliation for a complaint regarding sexual harassment and a
hostile work environment.
Oracle's motion to dismiss is denied.
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