The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
Plaintiffs Jennifer Danieu and Kathleen McLaughlin commenced this employment discrimination action by filing a Complaint in the District Court for the Western District of New York. (Docket No. 1.) They subsequently filed an Amended Complaint in which they allege that Defendant Teamsters Local 264, I.B. of T.C.W. (hereinafter, "Local 264" or "Union") discriminated against them on the basis of sex and sexual orientation, retaliated against them, and denied them equal rights. Defendants Richard Carr (hereinafter, "Carr") and James Balys (hereinafter, "Balys"), both Union Stewards, are alleged to have aided and abetted Local 264's discrimination and denied Plaintiffs' equal rights.
Plaintiffs bring this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (hereinafter, "Title VII"); the New York State Human Rights Law, N.Y. EXEC. L. §§ 296 et seq. (hereinafter, "NYHRL"); and Section 1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981 (hereinafter, § 1981).
Presently before the Court are: Defendants' Motion to Dismiss the Amended Complaint in its entirety,*fn1 (Docket No. 10), Plaintiffs' Motion to Amend/Correct their Amended Complaint,*fn2 (Docket No. 12), and Defendants' Motion for Leave to File Additional Authority,*fn3 (Docket No. 19). For the reasons stated below, Defendants' Motion to Dismiss is granted, Plaintiffs' Motion to Amend/Correct is denied, and Defendants' Motion for Leave to File New Authority is granted.
Plaintiffs Jennifer Danieu (hereinafter, "Danieu") and Kathleen McLaughlin (hereinafter, "McLaughlin") were and continue to be employed by the Erie County Sheriff's Office as deputy sheriffs. (Amended Compl. ¶¶ 15-16.) At all relevant times Plaintiffs were members of Local 264, a labor organization representing a unit of Erie County Sheriff's deputies, sergeants, lieutenants, captains, and others. (Id. ¶¶ 4-7.)
In August 2005, Lt. Isch, one of Plaintiffs' supervising lieutenants and a member of Local 264, began spreading rumors that Plaintiffs were lesbians and lovers. (Id. ¶ 18.) On August 17, 2005, McLaughlin confronted Lt. Isch about the rumors, which led to more harassment from the lieutenant and other Local 264 members. (Id. ¶ 21.)
On October 18, 2005, Plaintiffs met with Local 264 representatives Balys and Carr to ask for their assistance in stopping the harassment and to advise them of their intent to file a complaint with the Erie County Sheriff's Office's EEO Officer, Patricia Brammer (hereinafter, "Officer Brammer"). (Id. ¶¶ 22-25.) Carr told Plaintiffs that Brammer could not do anything for them, and that he would speak to the supervising lieutenant and take care of the problems. (Id. ¶¶ 26-28.)
On March 27, 2006, Danieu was disciplined for tardiness. (Id. ¶ 31.) On that same date, McLaughlin received a letter of reprimand for alleged instances of tardiness, which Carr told her was in response to her August 17, 2005 confrontation with Lt. Isch. (Id. ¶¶ 32-33.)
In May 2006, Plaintiffs made a complaint about Lt. Isch to Officer Brammer. (Id. ¶ 34.) After an investigation, Officer Brammer concluded that several of Plaintiffs' complaints were founded, and Isch was demoted to the rank of sergeant on or about July 18, 2006. (Id. ¶ 35.) Local 264 grieved the demotion and succeeded in having Isch reinstated to his former rank of lieutenant. (Id. ¶¶ 41, 46.)
Plaintiffs believe that on August 24, 2006, Carr told certain union members that Plaintiffs were informing on other officers to Officer Brammer. (Id. ¶ 36.) As a result, Plaintiffs were ostracized and isolated at work, placing them in physical danger. (Id. ¶ 40.) On September 17, 2006, a sergeant warned McLaughlin that Carr was very powerful and had a lot of influence inside and outside of the building. (Id. ¶ 37.) Plaintiffs also believe Carr told Undersheriff Donovan that he would see to it that Plaintiffs are thrown out of the Union. (Id. ¶ 48.)
Plaintiffs each filed a charge of discrimination with the New York State Division of Human Rights (hereinafter, "NYSDHR") on October 11, 2006. (Defs.' Ex. A, B.) Both charges allege discrimination based on sex and sexual orientation, and retaliation. (Id.) On February 8, 2008, the NYSDHR found no probable cause to believe Local 264 engaged in the unlawful discriminatory practices complained of by Danieu or McLaughlin. (Id. Ex. C, D.) On or about April 8, 2008, the EEOC adopted the findings of the NYSDHR and issued Plaintiffs notices of right to sue, which they received on or about April 11, 2008. (Amended Comp. ¶¶ 13, 14.)
Plaintiffs filed their Complaint with the Clerk of this Court on July 7, 2008 and their Amended Complaint on October 27, 2008. (Docket Nos. 1, 4.) They asserted claims for sex and sexual orientation discrimination, retaliation, and denial of equal rights.
Defendants moved to dismiss the Amended Complaint on grounds that: (1) § 1981 prohibits race discrimination, not sex discrimination; (2) the Court has no subject matter jurisdiction over Plaintiffs' NYHRL claims, which were previously dismissed by the NYSDHR; (3) some of Plaintiffs' allegations under Title VII are time-barred; (4) sexual orientation discrimination is not actionable under Title VII; (5) Plaintiffs did not oppose an employment practice that is actionable under Title VII and therefore did not engage in protected activity; (6) Plaintiffs' allegations do not rise to the level of an adverse employment action under Title VII; (7) Defendants are not the proper parties in an action alleging discrimination in the workplace; and, (8) Defendants had a fair duty to represent all members of Local 264.
In their response to the motion to dismiss, Plaintiffs expressly withdrew their third through sixth causes of action, which include all claims against Balys and Carr. At the same time, Plaintiffs filed a Motion to Amend/Correct their Amended Complaint. (Docket No. 12.) Their attached proposed Amended Complaint: (1) deletes the third through sixth causes of action (the NYHRL and § 1981 claims); (2) changes the caption name to "TEAMSTERS LOCAL 264, I.B. of T.C.W;" (3) amends their remaining causes of action of discrimination and retaliation; and (4) adds fact allegations regarding acts of discrimination.
On February 16, 2010, Defendants filed a Motion for Leave to File Additional Authority, to which Plaintiffs have responded. (Docket No. 19.) All motions are fully briefed and ready for disposition.
III. DISCUSSION AND ANALYSIS
A. Defendants' Motion for Leave to File Additional Authority
Local 264 asks the Court to consider an opinion issued after briefing on the pending motions was complete. (Defs.' Motion for Additional Authority, p. 1.) Specifically, Local 264 cites Ashcroft v. Iqbal, __ US __, 129 S.Ct. 1937 (2009) as the applicable standards for determining whether a pleading states a claim for relief. (Id. pp. 1-2.)
Plaintiffs argue that Local 264's motion should be denied as untimely since it was submitted one year after its motion to dismiss was filed and more than nine months after the Iqbal decision was rendered. (Pls.' Atty. Affirmation in Response to Defs.' Motion for Additional Authority, ¶ 2.) In the alternative, Plaintiffs ask the Court to consider two post-Iqbal cases, Gillman v. Inner City Broadcasting Corp., No. 08 Civ. 8909, 2009 WL 3003244 (S.D.N.Y. Sept. 18, 2009) and Hicks v. Baines, 593 F.3d 159 (2nd Cir. 2010).(Id.)
Local 264's motion for leave to file additional authority is granted, and Plaintiffs' request for consideration of additional authority is granted, as well.
B. Plaintiffs' Motion to Amend/Correct the Amended Complaint
Local 264 advances a timeliness argument in connection with both motions, so this aspect of the motions will be considered first.
Local 264 argues that any alleged incidents occurring prior to December 15, 2005 are untimely, whether in the Amended or proposed Amended Complaint. (Defs.' Opp. to Motion to Amend, pp. 2-3.) Plaintiffs state that they do not seek relief for time-barred discrimination and agree that, for purposes of Title VII, they may only complain of incidents occurring after December 15, 2005. (Pls.' Opp. to Motion to Dismiss, p. 5.)
An administrative charge for a claim of discrimination under Title VII must be filed within 300 days of the alleged unlawful conduct. Forsyth v. Fed'n Emp't and Guidance Serv., 409 F.3d 565, 572 (2d Cir. 2005) (citing 42 U.S.C. § 2000e-5(e)(1)); see Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S. Ct. 1127, 71 L. Ed. 2d 234 (1982) ("filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling"). Plaintiffs filed their NYSDHR complaint on October 11, 2006; therefore discriminatory acts occurring before December 15, 2005 are time-barred and may only support a timely claim as "background evidence." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002).
Thus, the alleged rumors that Plaintiffs' supervising lieutenant was spreading about them in August 2005 is untimely, as is the Union's alleged act of discouraging Plaintiffs from filing a complaint with Officer Brammer in October ...