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Farzan v. Wells Fargo Bank, N.A.

United States District Court, Second Circuit

June 11, 2013

WELLS FARGO BANK, N.A., et al., Defendants.

Plaintiff is proceeding pro se.

Defendant Bernard is represented by Michelle E. Phillips, and Tarek M. Maheran, Jackson Lewis LLP, New York.


RICHARD J. SULLIVAN, District Judge.

Plaintiff Raymond Farzan, pro se, brings this action against Wells Fargo Bank, N.A. ("Wells Fargo"), several Wells Fargo employees, and technology firm Genesis10, alleging employment discrimination under federal, state, and local law, as well as defamation under state common law. Now before the Court is a motion to dismiss all claims against Defendant Amy Bernard ("Bernard"), a Wells Fargo employee. For the reasons set forth below and in the Report and Recommendation (the "Report" or "Rep.") of the Honorable James L. Cott, Magistrate Judge, the Court grants Bernard's motion.


A. Facts

Plaintiff is an Iranian-American who was hired in January 2010 to serve as a "senior business analyst" for Genesis10, which provided temporary consultant services to Wells Fargo.[1] (Am. Compl. Parties ¶¶ 1, 3, Facts ¶¶ 1-3, Exs. B, C.) In November 2010, Defendant Brenda Altenburg - a "technology manager" at Wells Fargo ( id. Parties ¶ 4) - offered Plaintiff a full-time position with Wells Fargo ( id. Facts ¶¶ 19-20). The position paid roughly eighty-five percent of what Plaintiff earned at Genesis10, so Plaintiff asked if he could take the position without taking a pay cut. ( Id. Facts ¶ 21.) "Shortly after that... conversation, " Altenberg offered the position to "a younger, white female" who took the job. ( Id. Facts ¶ 22.) Alternberg subsequently discussed with Plaintiff the potential for his "conversion" to direct employment with Wells Fargo. ( Id. Facts ¶¶ 22, 30-32.) However, on October 24, 2011, Altenberg informed him that there were no open positions and that Wells Fargo would cease to contract with Genesis10 for his services on December 31, 2011 due to an internal Wells Fargo policy that capped temporary employees to eighteen-month contracts, absent emergency need. ( Id. Facts ¶ 34, Ex. E.)

On October 27, 2011, Plaintiff filed a complaint against Wells Fargo with the Equal Employment Opportunity Commission ("EEOC"), alleging discrimination on the basis of race, age, gender, religion, and national origin.[2] ( Id. Facts ¶ 37, Ex. F.) In response to the EEOC complaint, Bernard - an "EEO [equal employment opportunity] consultant at Wells Fargo" ( id. Parties ¶ 5) - filed a Position Statement on behalf of Wells Fargo (the "Position Statement" or "Statement") with the EEOC on January 26, 2012 ( id. Ex. O). The Statement explained that Plaintiff "was a Contingent Worker working through Genesis 10 [, ] a temporary staffing agency, " and was not an employee of Wells Fargo. ( Id. Ex. O at 1 (italics in original).) The Statement also detailed Wells Fargo's non-discriminatory reasons for ending Plaintiff's contract and declining to convert him to an internal employee. ( Id. Ex. O at 3-4.) The Statement described Plaintiff's conduct as "hostile, " "unprofessional, " "confrontational, " and "bully[ing]." ( Id. Ex. O at 3-5.) On June 5, 2012, the EEOC issued a right-to-sue letter with respect to Plaintiff's claims against Wells Fargo. ( Id. Facts ¶ 47, Ex. M.)

B. Procedural History

On February 15, 2012, Plaintiff commenced this action by filing a standard-form complaint for employment discrimination against Genesis10 and several of its employees.[3] (Doc. No. 1.) On June 21, 2012, after receiving the right-to-sue letter with respect to Wells Fargo, Plaintiff filed the Amended Complaint, adding Wells Fargo and several of its employees - including Bernard - as Defendants and asserting claims for employment discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) ("Title VII"); the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 623(a) ("the ADEA"); the New York State Human Rights Law, N.Y. Exec. Law § 296 (the "NYSHRL"); and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-107(1)(a) (the "NYCHRL"). (Doc. No. 18.) In addition, Plaintiff asserted claims for defamation against Bernard and another non-moving Defendant, alleging that they had "insult[ed]" him by "ma[king] up... slanders and libels to discredit him in their response to the EEOC."[4] ( Id. ) By Order dated June 26, 2012, the Court referred the case to Judge Cott to resolve general pretrial matters and issue reports and recommendations on dispositive motions. (Doc. No. 14.)

On November 20, 2012, Defendants Bernard and Christine McDonald ("McDonald") filed the instant motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. Nos. 44 & 46.) On December 21, 2012, Plaintiff filed his opposition to the motion (Doc. No. 63) and agreed to dismiss his claims against McDonald (Doc. No. 55). Accordingly, the instant motion addresses only claims against Bernard. Bernard replied on January 4, 2012. (Doc. Nos. 60 & 61.)

Judge Cott issued his Report on January 25, 2013, concluding that all of Plaintiff's claims against Bernard should be dismissed. (Doc. No. 62.) Specifically, the Report found that any claim brought against Bernard for discrimination "must fail" because Bernard's "only involvement in Farzan's employment was the investigation of, and response to, his EEOC claims." (Report at 5 n.3.) The Report also recommended dismissal of Plaintiff's defamation claim because the Position Statement Bernard sent to the EEOC is protected by the absolute privilege accorded to statements made in the context of a judicial proceeding. ( Id. at 7.) Plaintiff timely objected to the Report on February 11, 2013 (Doc. No. 65), and Bernard responded on February 22, 2013 (Doc. No. 67).


In order to survive a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a plaintiff must "provide the grounds upon which his claim rests." ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). He must also allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In reviewing a Rule 12(b)(6) motion to dismiss, a court must accept as true all factual allegations in the complaint and draw all reasonable inferences in favor of the plaintiff. ...

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