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Otegbade v. New York City Administration for Children Services

United States District Court, S.D. New York

February 27, 2015




On August 16, 2012, Plaintiff Olanrewaju Otegbade filed this action under Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d to 2000d-7 ("Title VI"), Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 ("Title VII"), the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 to 634 (the "ADEA"), the New York State Human Rights Law, N.Y. Exec. Law §§ 290 to 297 (the "NYSHRL"), and the New York City Human Rights Law, N.Y. City Admin. Code §§ 8-101 to 8-131 (the "NYCHRL"). Plaintiff alleges employment discrimination (in both disparate treatment and hostile work environment forms) based on his age (over 50) and national origin (Nigerian). Defendants, the New York City Administration for Children Services ("ACS") and four of its employees, have moved for summary judgment on all of Plaintiff's claims. For the procedural reasons set forth in this Opinion, Defendants' motion is granted in its entirety. This Court will not reach the merits of Plaintiff's claims.


Following several extension requests, one of which was due to the disruptions caused by Hurricane Sandy, Defendants ACS, Jan Flory, and Jackie Jeffrey filed their Answer on January 17, 2013 (the "ACS Answer") (Dkt. #8), and Defendants Jackie McKnight and Marie Philippeaux filed their Answer on January 31, 2013 (the "McKnight Answer") (Dkt. #11). Both Answers assert as defenses, inter alia, that "Individuals are not subject to suit under Title VII of the Civil Rights Act of 1964" (ACS Answer ¶ 65; McKnight Answer ¶ 65), and that "ACS is not a suable entity" (ACS Answer ¶ [66]; McKnight Answer ¶ [66][2]).

An initial pretrial conference was held on March 8, 2013, before the Honorable Laura Taylor Swain, the United States District Judge to whom this case was initially assigned.[3] That same day, Defendants submitted, on behalf of all parties, a joint preliminary pretrial statement (the "Pretrial Statement") (Dkt. #13), which stated, as relevant here, "No amendments to pleadings or addition of parties is anticipated. The only anticipated substitution is the City of New York for [ACS]." (Pretrial Statement 3). Also on March 8, 2013, the Court issued a pretrial scheduling order (the "Pretrial Order") (Dkt. #12), which provided, "All applications to amend pleadings or join parties, or amendments or joinders as of right, must be made by April 30, 2013." (Pretrial Order 1 (emphasis in original)).

Over the course of discovery, mediation sessions were held and settlement discussions were ongoing. On July 30, 2013, the Court granted Plaintiff's request (made with Defendants' consent) for an extension of fact discovery in order to accommodate delays in the taking of fact witness depositions apparently occasioned by a change in defense counsel. (Dkt. #17; see also Dkt. #16). On October 21, 2013, the Court granted another request, this time from Defendants with Plaintiff's consent, for a one-week extension of fact discovery for the limited purpose of allowing Plaintiff to depose a single Defendant who was otherwise unavailable. (Dkt. #22). At no point during discovery did Plaintiff request, or did the Court grant, a modification of the deadline for joining additional parties.

On November 21, 2013, a pretrial conference was held before the undersigned, and the parties were given a deadline to report to the Court whether the case should be referred to a magistrate judge for settlement purposes or whether a briefing schedule for summary judgment motions should be set. ( See Dkt. #25). The parties having failed to resolve the matter without motion practice, Defendants sought leave to file a motion for summary judgment ( see Dkt. #24, 29), and the Court set a schedule (Dkt. #30). Defendants' summary judgment motion was fully briefed on August 13, 2014. (Dkt. #42-49, 54-57).


A. Plaintiff's Federal Claims Are Dismissed with Prejudice

1. Plaintiff Has Not Named a Defendant Who Can Be Sued Under Federal Law

Defendants argue, and Plaintiff agrees, that ACS is not a suable entity ( See Def. Br. 21-22; Pl. Opp. 23-24).[4] Defendants also argue, and Plaintiff also agrees, that individuals cannot be sued under Title VII and the ADEA. ( See Def. Br. 22; Pl. Opp. 24 (affirming that Plaintiff is not proceeding against individuals under Title VII and the ADEA, only under the NYSHRL and the NYCHRL)).[5] Plaintiff has thus named no defendant who can properly be sued under the federal laws that are the basis of this lawsuit and this Court's jurisdiction.

2. Plaintiff Is Not Given Leave to Amend

Plaintiff argues in his opposition papers, however, that he should be granted leave to amend his complaint and add the City of New York in place of ACS as a Defendant. He contends that the Court should resolve his application to amend under the liberal standard of Federal Rule of Civil Procedure 21. (Pl. Opp. 23). Plaintiff also notes the permissive standard of Rule 15(a), without explicitly arguing that it applies. ( Id. at 24). The Court declines to apply the Rule 21 standard, and instead decides the issue under the more restrictive standard set forth in Rule 16(b).

As a general matter, because Plaintiff seeks to join a party to his civil suit, he is correct that Rule 21 is the operative rule, which permits the joinder of a party by order of the court "at any time, on just terms." Fed.R.Civ.P. 21; see also Lawrence v. Starbucks Corp., No. 08 Civ. 3734 (LTS) (JCF), 2009 WL 4794247, at *2 (S.D.N.Y. Dec. 10, 2009) ("Where, as here, a proposed amendment adds new parties, the propriety of amendment is governed by Rule 21[.]"). In deciding whether to permit the addition of a party, the court applies the same standard of liberality under Rule 21 as that afforded to motions under Rule 15(a), which similarly states that "[t]he court should freely give leave when justice so requires." See id.; see also Int'l Media Films, Inc. v. Lucas Entm't, Inc., No. 07 Civ. 1178 (JGK) (FM), 2008 WL 781823, at *1 (S.D.N.Y. Mar. 20, 2008); Rissman v. City of New York, No. 01 Civ. 6284 (SHS) (DF), 2001 WL 1398655, at *1 (S.D.N.Y. Nov. 9, 2001). But courts in this District have found that, also like amendments under Rule 15(a), requested amendments under Rule 21 are subject to the good ...

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