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Cynthia A. Smith v. Riccelli Brokerage Services

May 20, 2011

CYNTHIA A. SMITH, PLAINTIFF,
v.
RICCELLI BROKERAGE SERVICES, LLC AND TONY ALU, AIDER AND ABETTOR, DEFENDANTS.



The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court

DECISION AND ORDER

I. INTRODUCTION

Plaintiff Cynthia A. Smith ("Plaintiff"), proceeding pro se, commenced this employment discrimination action by filing a Complaint in the United States District Court for the Western District of New York. (Docket No. 1.) Therein, Plaintiff alleges Defendants Riccelli Brokerage Services, LLC ("Riccelli") and Tony Alu ("Alu"), as aider and abettor, discriminated against her on the basis of sex (female) in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (hereinafter, "Title VII"). Construing the pro se litigant's claims liberally, Plaintiff also alleges Defendants engaged in retaliation in violation of Title VII and tortious interference in violation of New York State law.

Defendants now move to dismiss Plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), or, in the alternative, move for summary judgment pursuant to Federal Rule of Civil Procedure 56.*fn1 Plaintiff opposes this motion.*fn2 For the reasons stated below, Defendants' motion is granted in part and denied in part. Plaintiff is instructed to file an amended complaint.

II. BACKGROUND

A. Facts

Riccelli is a trucking firm located in Rochester, NY. (Compl., Formal Stmt. ¶ 6.) Plaintiff first subcontracted with Riccelli in June 1998 as a truck driver, and remained as such during the relevant time period. (Compl. ¶ 4.) On April 23, 2007, Plaintiff entered into an "Independent Contractor Agreement" ("Agreement") with Riccelli. (Comp., Formal Stmt. ¶ 7; Defs.' Ex. A, Independent Contractor Agreement.) The Agreement dictates that Riccelli will schedule Plaintiff's truck the day before work is to be performed, or if it does not have enough work scheduled to run Plaintiff's truck, release Plaintiff from the Agreement for that particular day. (Defs.' Ex. A, Independent Contractor Agreement, ¶ 2.)

Alu was a general manager for Riccelli during the relevant time period. (Compl., Formal Stmt. ¶ 5.) On several occasions in 2007 and 2008, Alu made suggestive sexual comments to Plaintiff and requested sexual favors in exchange for work. (Compl., Formal Stmt. ¶¶ 2,4, 8-9, 12.) Plaintiff told Alu his comments were out of line and she did not want to hear them. (Id. ¶ 20.)

On April 14, 2008, a driver told Plaintiff the rate for a particular job was $58.00, while Alu had promised her a rate of $65.00-$68.00 for the season. (Id. ¶ 21.) In response, Plaintiff called Riccelli's vice president. (Id.) Following the call, Riccelli's truck boss informed Plaintiff that Alu was "pissed [she] went over his head." (Id. ¶ 22.)

On May 13, Plaintiff was informed by Bernie Levett, a Riccelli employee, that the dispatcher was told "not to put on Cindy Smith's truck unless absolutely necessary." (Id. ¶ 23.) For a period of time, Riccelli did not have any work for Plaintiff. (Id. ¶¶ 24-25.)

B. Procedural History

On or about May 23, 2008, Plaintiff dually-filed a charge with the New York State Division of Human Rights ("NYSDHR") and the EEOC, charging Defendants with discrimination on the basis of sex and retaliation. (Pl.'s Ex., Letter from NYSDHR.) On August 29, 2008, Plaintiff filed an amended charge alleging further discrimination and retaliation, specifically boycotting and/or blacklisting her. (Pl.'s Ex., Amended Verified Complaint.) On November 19, 2008, the NYSDHR issued a Determination after Investigation, finding no probable cause to believe Defendants engaged in the complained of conduct, noting that she is an independent contractor and not within the jurisdiction of the New York State Human Rights Law. (Pl's Ex., Determination and Order after Investigation.) The EEOC adopted the findings of the NYSDHR and issued a Dismissal and Notice of Rights on February 19, 2009. (Pl.'s Ex, Dismissal and Notice of Rights.)

On March 9, 2009, Plaintiff commenced this action, pro se, by filing a Complaint with the Clerk of this Court. (Docket No. 1.) Defendants filed the instant Motion to Dismiss on May 19, 2009. (Docket No. 4.)

III. DISCUSSION AND ANALYSIS

A. Conversion

" 'When matters outside the pleadings are presented in support of, or in opposition to a [Rule] 12(b)(6) motion, a district court must either exclude the additional material and decide the motion on the complaint alone or convert the motion to one for summary judgment under [Rule] 56 and afford all parties the opportunity to present supporting material.' " Mastykarz v. Niagara Mohawk Power Corp., No. 06-CV-0641E, 2007 WL 952044 (W.D.N.Y. March 29, 2007) (citing Friedl v. City of New York, 210 F.3d 79, 83 (2nd Cir. 2000)).

A district court has complete discretion in determining whether or not to convert the motion to one for summary judgment. Stephens v. Bayview Nursing and Rehabilitation Cntr., No. 07-CV-0596, 2008 WL 728896 at *2 (E.D.N.Y. March 17, 2008) (citing cases). The essential inquiry in exercising this discretion is whether the parties "should reasonably have recognized the possibility that the motion might be converted to one for summary judgment or [whether they were] taken by surprise and deprived of a reasonable opportunity to meet facts outside the pleading." In re G & A Books, Inc., 770 F.2d 288, 294-95 (2nd Cir. 1985). Notice is especially important where a party is proceeding pro se "and may be ...


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