McCain v. Dimon & Bacorn et al

Filing 43

DECISION AND ORDER granting in part and denying in part 35 Motion to Dismiss. Signed by Senior Judge Thomas J. McAvoy on 7/11/11. (sfp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
JARROD McCAIN and JEFFREY BETHEA,
Plaintiffs,
v.

3:10-CV-766

DIMON & BACORN, a New York Corporation,
MICHAEL SHAFER, LEONARD HAINES,
DANIEL DIMON, SR.
Defendants.
_________________________________________
THOMAS J. McAVOY,
Senior United States District Judge

DECISION & ORDER
I.

INTRODUCTION
Plaintiff filed an Amended Complaint alleging employment discrimination and

retaliation claims pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. § 2000e et seq. ("Title VII"); 42 U.S.C. § 1981 ("Section 1981"); the New York
State Human Rights Law, N.Y. Exec. Law Article 15, ("NYSHRL"); and the New York State
common law. See Am. Compl., dkt. # 30. Defendants move pursuant to Fed. R. Civ. P.
12(b)(1) and 12(b)(6) to dismiss certain claims. Plaintiffs have opposed the motion. For
the reasons that follow, Defendants’ motion is granted in part and denied in part.

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II.

STANDARDS OF REVIEW
a.

Fed. R. Civ. P. 12(b)(1)

A motion brought pursuant to FED . R. CIV. P. 12(b)(1) challenges the subject matter
of the Court to address a case or certain claims in the case. A case is to be dismissed for
lack of subject matter jurisdiction pursuant to FED . R. CIV. P. 12(b)(1) when the district
court lacks the statutory or constitutional power to adjudicate it. Makarova v. United
States, 201 F. 3d 110, 113 (2d Cir. 2000). A plaintiff asserting subject matter jurisdiction
has the burden of proving by a preponderance of the evidence that it exists. See Luckett v.
Bure, 290 F.3d 493, 497 (2d Cir. 2002); see also Malik v. Meissner, 82 F.3d 560, 562 (2d
Cir. 1996). When a defendant moves to dismiss claims pursuant to Fed. R. Civ. P.
12(b)(1), "the movant is deemed to be challenging the factual basis for the court's subject
matter jurisdiction." Cedars-Sinai Medical Ctr. v. Watkins, 11 F.3d 1573, 1583 (Fed. Cir.
1993). For the purposes of such a motion, “the allegations in the complaint are not
controlling . . . and only uncontroverted factual allegations are accepted as true.” Id.
Both the movant and pleader may use affidavits and other pleading materials to
support or oppose a motion to dismiss for lack of subject matter jurisdiction. See
Makarova, 201 F.3d at 113; Filetech S.A. v. France Telecom, S.A., 157 F.3d 922, 932 (2d
Cir. 1998); John Street Leasehold, LLC v. Capital Mgt. Res., L.P., 2001 WL 310629, at *2
(S.D.N.Y. March 29, 2001). Further, “jurisdiction must be shown affirmatively, and that
showing is not made by drawing from the pleadings inferences favorable to the party
asserting it.“ Gunst v. Seaga, 2007 WL 1032265, at *2 (S.D.N.Y. March 30, 2007) (quoting
Shipping Financial Services Corp. v. Drakos, 140 F.3d 129 (2d Cir. 1998)). “Thus, the

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standard used to evaluate a Rule 12(b)(1) motion is similar to that used for summary
judgment under Fed. R. Civ. P. 56.” Lopresti v. Merson, 2001 WL 1132051, at *5
(S.D.N.Y. Sept. 21, 2001).
b.

FED . R. CIV. P. 12(b)(6)

“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement
of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant
fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic Corp.
v. Twombly, 127 S. Ct. 1955, 1964 (2007)(quoting Conley v. Gibson, 355 U.S. 41, 47, 78
S. Ct. 99 (1957)). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does
not need detailed factual allegations . . . a plaintiff's obligation to provide the ‘grounds’ of
his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Id. at 1964-65. “Factual
allegations must be enough to raise a right to relief above the speculative level. . . on the
assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id.
at 1965. “‘[T]he pleading must contain something more . . . than . . . a statement of facts
that merely creates a suspicion [of] a legally cognizable right of action.’” Id. at 1965
(quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d
ed. 2004)). “To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949 (2009)(quoting Twombly, 550 U.S. at 570). A complaint does
not suffice “if it tenders naked assertions devoid of further factual enhancement.”
Ashcroft, 129 S. Ct. at 1949. Legal conclusions must be supported by factual allegations.

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Iqbal, at 1950. “Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Id. at 1949. “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.” Id. “Where a complaint
pleads facts that are ‘merely consistent with’ a defendant's liability, it stops short of the line
between possibility and plausibility of entitlement to relief.” Id. (quoting Twombly, 550 U.S.
557) (internal quotations omitted).
III.

DISCUSSION
a.

NYSHRL Claims
1.

McCain’s Administrative Filing

Plaintiff McCain first filed an administrative complaint of employment discrimination
against Dimon & Bacorn on or about November 25, 2008 with the New York State Division
of Human Rights (hereinafter "NYSDHR"). See Sciotti Declaration ("Sciotti Decl.") at Ex.
A. The complaint was also filed with the United States Equal Employment Opportunity
Commission ("EEOC") under Title VII of the Civil Rights Act of 1964. Id. The NYSDHR
investigated the complaint and thereafter issued a Determination and Order After
Investigation finding that there was "no probable cause" to support any of McCain's
claims. Id. at Ex. C. The NYSDHR ordered the complaint dismissed and the file closed. Id.
The EEOC adopted the NYSDHR's findings, closed its file and issued plaintiff McCain a
Right to Sue Letter on March 31, 2010. Id. at Ex. F. Plaintiff McCain did not appeal the
NYSDHR's determination and commenced this action on June 29, 2010. See Dkt. No.1.

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2.

Bethea’s Administrative Filing

Plaintiff Bethea first filed an administrative complaint with the NYSDHR which was
cross-filed under Title VII with the EEOC on December 17, 2008. See Sciotti Dec!. at Ex.
B. The NYSDHR investigated the complaint and thereafter issued a Determination and
Order After Investigation dated October 29,2009 finding there was "no probable cause" to
support any of Bethea's claims. Id. at Ex. D. The NYSDHR ordered the complaint
dismissed and the file closed. Id. The EEOC adopted the NYSDHR's findings, closed its
file and issued plaintiff Bethea a Right to Sue Letter on April 5, 2010. Id. at Ex. E. Bethea
did not appeal the NYSDHR determination and did not attempt to commence legal action
against defendants until March 30, 2011. See Dkt. No. 27.
3.

Election of Remedies

New York Executive Law § 297(9) provides, in pertinent part:
Any person claiming to be aggrieved by an unlawful discriminatory practice
shall have a cause of action in any court of appropriate jurisdiction . . .
unless such person had filed a complaint hereunder or with any local
commission on human rights . . . provided that, where the division has
dismissed such complaint on the grounds of administrative convenience, on
the grounds of untimeliness, or on the grounds that the election of remedies
is annulled, such person shall maintain all rights to bring suit as if no
complaint had been filed with the division.
N.Y. Exec. Law § 297(9)(emphasis added).
“[O]nce a complainant elects the administrative forum by filing a complaint with the
[New York State Division of Human Rights (“NYSDHR”)], a subsequent judicial action on
the same complaint is generally barred unless one of the three exceptions in the statute is
applicable.” Johnson v. County of Nassau, 411 F. Supp.2d 171, 184 (E.D.N.Y. 2006). In
Plaintiffs’ cases, the administrative claims filed with the NYSDHR were not dismissed on
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the grounds of administrative convenience, on the grounds of untimeliness, or on the
grounds that the election of remedies is annulled. Thus, pursuant to New York Executive
Law § 297(9), Plaintiffs’ claims of discrimination brought under the New York Human
Rights Law are barred. See York v. Ass'n of Bar of City of New York, 286 F.3d 122, 127
(2d Cir. 2002); Ferguson v. New Venture Gear, Inc., 2009 WL 2823892, *5 (N.D.N.Y. Aug.
31,2009); Johnson, 411 F. Supp.2d at 184. The bar to suit is jurisdictional. Jones v.
Onondaga County Res. Recovery Agency, 2011 WL 1298774, *6 (N.D.N.Y. Mar. 31,
2011); Johnson, 411 F. Supp.2d at 184 (citing Moodie v. Federal Reserve Bank of N.Y.,
58 F.3d 879, 883-884 (2d Cir. 1995)). Accordingly, Plaintiffs’ claims of discrimination
brought pursuant to the NYSHRL are dismissed for lack of subject matter jurisdiction.
b.

Intentional Infliction of Emotional Distress

Plaintiffs’ Amended Complaint asserts:
By their extreme and outrageous conduct in initiating, tolerating, and
permitting offensive racial language and propagating a hostile work
environment in violation of New York Executive Law Art. 15 (Human Rights
Law) and Title VII of the Civil Rights Act, Defendant Dimon & Bacorn and its
managerial staff have intentionally, or by disregard of a substantial
probability, caused Plaintiffs severe personal, emotional, and financial
distress.
Am. Compl. ¶ 43.
Under New York law, the elements of an intentional infliction of emotional distress
claim are: "(1) extreme and outrageous conduct; (2) intent to cause, or reckless disregard
of a substantial probability of causing, severe emotional distress; (3) a causal connection
between the conduct and the injury; and (4) severe emotional distress." Stuto v.
Fleishman, 164 F.3d 820, 827 (2d Cir. 1999). Such a claim requires an act “so

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outrageous in character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a civilized society."
Howell v. New York Post Co., 81 N.Y.2d 115, 122 (1993)(interior quotation marks and
citations omitted). Determining whether the alleged conduct is sufficiently outrageous to
be actionable is a question of law for the Court. Holwell, 81 N.Y.2d at 122.
Viewing the factual allegations in the Amended Complaint and accepting them as
true for purposes of this motion, the Court does not find conduct “so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of decency, and
to be regarded as atrocious, and utterly intolerable in a civilized society." Howell, 81
N.Y.2d at 122. While the employees’ conduct was offensive, and the employer’s inaction
to Plaintiffs’ complaints insufficient and inadequate, none of the conduct was sufficiently
outrageous to be actionable. See Washington v. County of Onondaga, 2009 WL 3171787,
*27 (N.D.N.Y. 2009). Accordingly, the claims asserting the intentional infliction of
emotional distress are dismissed.
c.

Title VII Claims Against Individual Defendants

The Title VII claims against the individual defendants were previously dismissed in
this case upon the concession of Plaintiffs’ counsel that, in the Second Circuit, “individuals
are not subject to liability under Title VII.” Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir.
2000) (per curiam). See Jan. 14, 2011 Dec. & Ord., dkt. # 20. That Decision was
rendered before Plaintiffs amended their complaint, and Defendants now argue that the
inclusion of Title VII claims in the Amended Complaint naming the employer “and its
managerial staff” constitutes unreasonable, vexatious and bad faith action warranting the

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imposition of fees and costs awarding fees under the Court's inherent power and 28
U.S.C. § 1927. The Court does not agree.
The referenced allegations in the Amended Complaint are in paragraphs alleging
claims under Title VII and the NYSHRL. An individual can be held liable under the
NYSHRL, thus, it was not improper to include the reference to the managerial staff’s
conduct in the Amended Complaint. Moreover, by failing to specifically name the
individual defendants in these paragraphs, it appears that Plaintiffs were merely
attempting to amplify their Title VII allegations against the employer. Accordingly, to the
extent Defendants seek costs and fees, the motion is denied. To the extent the Amended
Complaint alleges Title VII claims against the individual defendants, the claims are
dismissed.
d.

Bethea’s Title VII Claims

Defendants argue that Bethea’s Title VII claims are barred because he did not
commence the action within 90 days of receiving a right-to-sue letter from the EEOC.
Plaintiffs do not dispute that Berthea commence his action on May 6, 2011, more than 90
days from the date that the EEOC right-to-sue letter was mailed to him, but assert in their
Memorandum of Law that Bethea had three different addresses since the right-to-sue
letter was mailed and that he did not receive the EEOC’s letter. However, the unsworn
statements contained in the Memorandum of Law are insufficient to rebut the presumption
that Plaintiff received the right-to-sue three days after it was mailed. Blackburn v. Eli Lilly
and Co., Inc., 1999 WL 1125048, at *2 (N.D.N.Y. Dec. 1, 1999); Hughes v. Elmira Coll.,
584 F. Supp. 2d 588, 590 (W.D.N.Y. 2008).
Because Bethea has failed to provide admissible evidence overcoming the
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presumption that he received the right-to-sue letter within three days of its mailing on April
5, 2010, and because Bethea’s action was not commenced within 90 days of the
presumptive receipt of the right-to-sue letter, his Title VII claims must be dismissed. 42
U.S.C. § 2000e-5(f)(1); Holt v. KMI-Continental, Inc., 95 F.3d 123, 127 n. 1 (2d Cir.1996),
cert. denied, 117 S. Ct. 1819 (1997).
f.

Discrimination on the Basis of Religion, Sex or National Origin

Plaintiffs' Amended Complaint states that "[t]his action is brought pursuant to Title
VII. .. for employment discrimination based on race, color, religion, sex or national origin."
Dkt. #. 30, ¶ 11. Defendants move to dismiss any discrimination claims brought on the
basis of religion, sex or national origin on the grounds that there are no factual allegations
supporting claims on these protected classifications. Plaintiffs responds that paragraph 11
was only to give a “general description of the breadth of Title VII” but that the Amended
Complaint does not asserts claims based on religion, sex, or national origin. Accordingly,
any such claims are deemed withdrawn and dismissed.
IV.

CONCLUSION
For the reasons discussed above, Defendants’ motion to dismiss claims in this

action [dkt. # 35] is GRANTED IN PART and DENIED IN PART. The motion is granted
inasmuch as the following claims are DISMISSED:
-All claims of discrimination or retaliation brought pursuant to the NYSHRL,
-All claims asserting the intentional infliction of emotional distress,
-All Title VII claims against the individual defendants,

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- Plaintiff’s Bethea’s Title VII claims, and
- All claims asserting discrimination or retaliation on the basis of religion, sex,
or national origin.
The motion is denied in all other respects .
IT IS SO ORDERED
DATED:July 11, 2011

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