Kpaka v. City University of New York
Filing
25
OPINION & ORDER: For the foregoing reasons, Defendants' motion to dismiss is granted and this action is dismissed without prejudice to filing an Amended Complaint within 30 days. If no Amended Complaint is filed by that date, this dismissal will be with prejudice. SO ORDERED. (As further set forth within this Order.) (Signed by Judge Ronnie Abrams on 7/28/2015) (ajs)
USDC-SDNY
DOCUMENT
ELECTRO NI CALLY FILED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ILJL 2 8 2015
DOC#:
.
DATE FILE~:
LINDA A. KPAKA,
Plaintiff,
v.
No. 14-CV-6021 (RA)
CITY UNIVERSITY OF NEW YORK;
BOROUGH- OF MANHATTAN
COMMUNITY COLLEGE; HOWARD
MELTZER; THADDEUS RADELL; SIMON
CARR,
OPINION & ORDER
Defendants.
RONNIE ABRAMS, United States District Judge:
Plaintiff Linda Kpaka, proceeding pro se, brings this employment discrimination action
against her former employer, Borough of Manhattan Community College ("BMCC"), a college
within the City University of New York ("CUNY") system, and three individuals, Howard
Meltzer, Thaddeus Radell, and Simon Carr. Howard Meltzer and Simon Carr are both Associate
Professors at BMCC. Defs.' Br. at 6. Thaddeus Radell is an Assistant Professor at BMCC. Id.
Plaintiff alleges racial and gender discrimination under Title VII of the Civil Rights Act of 1964
("Title VII") and disability discrimination under the American with Disabilities Act of 1990
("ADA"). 1 Plaintiff filed a Complaint on July 16, 2014, ECF No. 2, and Defendants moved to
dismiss on February 27, 2015, ECF No. 16. For the reasons that follow, Defendant's motion is
granted. 2
1
Although the Complaint does not specify which statutes Plaintiff brings this action pursuant to, it can
reasonably be construed as alleging claims under Title VII and the ADA.
2
In her affidavit in opposition to Defendants' motion to dismiss ("Opp."), Plaintiff requested a
"preliminary hearing" on this motion. Opp. ii I. A plaintiff in a civil litigation is not entitled to a hearing as a
matter of right. While it is true that "a court may establish regular times and places for oral hearings on motions,"
BACKGROUND 3
Plaintiff, an African American woman, was hired for the Spring 2011 semester as an
Adjunct Lecturer in BMCC's Music and Art Department to teach drawing and painting classes.
Opp. Ex. 1.
As an Adjunct Lecturer, Plaintiff was "under signed contract" every semester.
Compl. § III.C. She alleges that in May 2012, BMCC began denying her class assignments and
promotions due to her race and gender. Id. On June 26, 2012, Plaintiff asserts, she was denied a
full-time position and referral by the Department Chair. Opp. Ex. 1. She further claims that on
February 19, 2013, she was denied a new position and referral by the Department Chair. Id. In
Spring 2013, Thaddeus Radell, a male whose race is unclear from the Complaint, was promoted
to Deputy Chair, although Plaintiff alleges that "his skills are not as qualified [as hers]." Compl.
§ III.C.
Plaintiff also claims that during this time the Department Chair denied her any
promotions, and new jobs were referred to Alizabeth Towery, a Caucasian female. Id. About
this time-it is unclear exactly when-Plaintiff alleges that she also received a "scathing
observational report" from Simon Carr, Compl. § III.C., and was accused by Defendants of using
"abstract" or "ineffective" instructional techniques. Opp.
if 5. Plaintiff claims that, by contrast,
two other individuals, both Caucasian females, received observation reports that were not
"detrimental." Compl. § III.C.
On September 3, 2013, Plaintiff filed a Charge of Discrimination with the Equal
Employment Opportunity Commission ("EEOC"). See Mou Deel. Ex. 1 ("EEOC Charge"). 4 On
Fed. R. Civ. P. 78(a), a district court "acts well within its discretion in deciding dispositive motions on the parties'
written submissions without oral argument." Dotson v. Griesa, 398 F.3d 156, 159 (2d Cir. 2005). No such oral
hearing was necessary to decide this this motion.
3
This statement of facts is drawn from the allegations in Plaintiffs Complaint and her subsequent
opposition papers. Although courts in this Circuit have generally made clear that "a plaintiff may not shore up a
deficient complaint through extrinsic documents submitted in opposition to a defendant's motion to dismiss," Madu,
Edozie & Madu, P.C v. SocketWorks Ltd Nigeria, 265 F.R.D. 106, 122-23 (S.D.N.Y. 2010), "[a] district court
deciding a motion to dismiss may consider factual allegations made by a pro se party in [her] papers opposing the
motion." Walkerv. Schult, 717F.3d 119, 122n.l (2dCir.2013).
2
June 18, 2014, the EEOC issued Plaintiff a right to sue letter. See Mou Deel. Ex. 2 ("EEOC
Letter"). Thereafter, Plaintiff filed the instant Complaint.
DISCUSSION
I.
Legal Standard
On a Rule 12(b )( 6) motion, the Court must accept all factual allegations in the complaint
as true, and draw all reasonable inferences in Plaintiff's favor. Tellabs, Inc. v. Makar Issues &
Rights, Ltd., 551 U.S. 308, 322 (2007).
"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, 556 U.S. 662, 678 (2009) (quoting Bell At!. 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."
Id.
Where the plaintiff is pro se, the complaint "must be construed
liberally with special solicitude and interpreted to raise the strongest claims that it suggests.
Nonetheless, a pro se complaint must state a plausible claim for relief." Hogan v. Fischer, 738
F.3d 509, 515 (2d Cir. 2013) (citation omitted).
II.
ADA Claims
Defendants argue that Plaintiff's claims under the ADA must be dismissed because she
failed to comply with the condition precedent of filing an EEOC charge for her disability claim
prior to filing the instant action. Defs.' Br. at 8.
A plaintiff seeking to bring an employment discrimination action pursuant to Title I of
the ADA, as Plaintiff does here, must comply with 42 U.S.C. § 2000e-5, which "requires a
4
Although Plaintiffs 2013 EEOC charge was not attached to her Complaint, the Complaint does allege
that "several complaints were filed with the EEOC." Comp!. § IV. The EEOC charge is further referenced in
Plaintiffs affidavit in opposition to Defendants' motion to dismiss. Opp. ~~ 6-7. ''Courts in this Circuit have
repeatedly held that when EEOC charges are expressly referred to in the pleading, they may be considered
incorporated by reference." Muhammad v. New York City Transit Auth, 450 F. Supp. 2d 198, 204 (E.D.N.Y. 2006).
3
claimant to file a charge of employment discrimination with the EEOC within 180 days after the
discriminatory act."
Mcinerney v. Rensselaer Polytechnic Inst., 505 F.3d 135, 138 (2d Cir.
2007). ''A plaintiff must file a charge of discrimination with the EEOC and obtain a right to sue
letter from the EEOC before proceeding to federal district court. A district court ... [may] only
hear claims that are either included in the EEOC charge or are based on conduct which is
reasonably related to conduct alleged in the EEOC charge." Fiscina v. New York Dist. Council
of Carpenters, 401 F. Supp. 2d 345, 356 (S.D.N.Y. 2005) (citations omitted) (alterations in
original), ajf'd, 206 Fed. Appx. 8 (2d Cir. 2006).
"A claim is 'reasonably related to' the
allegations in the EEOC charge where the conduct complained of would fall within the 'scope of
the EEOC investigation which can reasonably be expected to grow out of the charge of
discrimination.'" Ford v. New York City Dep 't. of Health and Mental Hygiene, 545 F. Supp. 2d
377, 391 (S.D.N.Y. 2008) (quoting Smith v. Am. President Lines, Ltd, 571 F. 2d 102, 107 n. 10
(2d Cir. 1978)), a.ff'd, 352 Fed. Appx. 471 (2d Cir. 2009).
While Plaintiff's EEOC charge does allege race and sex discrimination, the charge is
entirely devoid of any mention of disabilities, much less that Defendants discriminated against
Plaintiff on that basis. See EEOC Charge. Nor could any disability discrimination claim be
"reasonably related" to the race and sex claims alleged here since there is no suggestion that such
a claim would "reasonably be expected to grow out of the charge of discrimination." Ford, 545
F. Supp. 2d at 391; see also Spurlock v. NYNEX, 949 F. Supp. 1022, 1030 (W.D.N.Y. 1996)
(ADA claim not reasonably related to Title VII race discrimination charge where the charge did
not mention that the plaintiff was disabled or that he believed that he had been discriminated
against based on a disability). Because Plaintiff's EEOC charge fails to satisfy the requirements
of Section 2000e-5 with respect to her ADA claims, those claims are dismissed.
4
Having decided this issue on the basis of Plaintiff's failure to clear this procedural bar,
the Court need not reach Defendants' other arguments concerning Plaintiff's ADA claims.
III.
Title VII Claims
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., "prohibits
employment discrimination on the basis of race, color, religion, sex, or national origin." Ricci v.
DeStefano, 557 U.S. 557, 577 (2009). In order to state a prima facie case of discrimination, a
plaintiff must show that: "(l) she is a member of a protected class; (2) she was qualified for the
position in question; (3) she suffered an adverse employment action; and (4) the adverse action
took place under circumstances giving a rise to an inference of discrimination."
Risco v.
McHugh, 868 F. Supp. 2d 75, 100 (S.D.N.Y. 2012) (citing Ruiz v. Cnty. of Rockland, 609 F.3d
486, 491 (2d Cir. 2010)).
In order to withstand a motion to dismiss on a Title VII claim, a Plaintiff "is not required
to plead facts sufficient to establish a prima facie case." Chinnery v. New York State Office of
Children and Family Servs., No. 10-CV-882 (DAB), 2012 WL 5431004, at *2 (S.D.N.Y. Nov. 5,
2012). "However, the elements of the prima facie case "provide an outline of what is necessary
to render a plaintiff's ... claims for relief plausible.'" Henry v. NYC Health & Hosp. Corp., 18
F. Supp. 3d 396, 404 (S.D.N.Y. 2014) (citation omitted) (alteration in original).
Courts,
therefore, "consider these elements in determining whether there is sufficient factual matter in
the complaint which, if true, gives Defendant a fair notice of Plaintiffs claim and the grounds on
which it rests." Wilson v. New York City Dep 't of Corr., No. 11-CV-9157 (PAE), 2013 WL
922824, at *4 (S.D.N.Y. Mar. 8, 2013)(citations omitted).
Defendants argue that the Title VII claims against Meltzer, Radell, and Carr must be
dismissed because there is no individual liability under Title VII. Defs.' Br. at 7. As to BMCC,
5
Defendants contend that Plaintiff's claims must be dismissed for failure to state a claim upon
which relief may be granted. Id. at 13-14.
A.
Individual Defendants
The Court agrees with Defendants that the claims against Meltzer, Radell, and Carr must
be dismissed since, as Defendants correctly observe, there is no individual liability under Title
VII. See, e.g., Lore v. City o.f Syracuse, 670 F.3d 127, 169 (2d Cir. 2012) ("Title VII does not
impose liability on individuals."); Milne v. Navigant Consulting, 08-CV-8964 (NRB), 2009 WL
4437412, at *3 (S.D.N.Y. Nov. 30, 2009) ("Title VII claims may only be maintained against
employers. This limitation has repeatedly been found to bar Title VII actions against individual
officers and executives.").
B.
BMCC
Defendants' main contention in this case is that Plaintiff fails to adequately plead that
BMCC's "refusal to renew her employment contract was motivated by race or gender." Defs.'
Br. at 14. "The law in this Circuit is clear that the 'sine qua non' of a Title VII discrimination
claim is that 'the discrimination must be because o.f [a protected characteristic]."' Henry, 18 F.
Supp. 3d at 407 (quoting Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007) (alteration in
original)).
The Court agrees that, even taking the allegations in the Complaint as true and
drawing all reasonable inferences in Plaintiffs favor, Plaintiff has not "plead facts that 'create an
inference that any adverse action taken by [ ] defendant was based upon [her race or gender]."'
Jackson v. NYS Dep't. of Labor, No. 09-CV-6608 (KBF), 2012 WL 843631, at *4 (S.D.N.Y.
Mar. 12, 2012) (quoting Patane, 508 F.3d at 112) (alterations in original).
Here, Plaintiff alleges that she was denied promotions and job opportunities because
"[she] was the only [b]lack female [i]nstructor" and that "[she] was let go based on [her] ...
6
[g]ender and [r]ace." Comp!. § III.C. Plaintiffs Complaint, however, fails to rise above such
conclusory allegations to plead any facts suggesting that the allegedly adverse actions taken by
Defendants were based upon her race or gender and not upon her performance. Indeed, Plaintiff
admits in her Complaint that she received "scathing reports of [her] teaching/instructional skills
which lead up to current unemployment status." Id. By Plaintiffs own admission, Defendants
determined that she was using '"abstract' instructional techniques" and that she was
''ineffective." Opp.
~
5. These evaluations critical of her teaching performance suggest "an
obvious alternative explanation" to discrimination: that Defendants regarded her as ineffective,
not that they denied class assignments and promotions because of her race or gender. See Iqbal
556 U.S. at 682 (quoting Twombly 550 U.S. at 567).
To the extent that Plaintiff contends that she received these "scathing reports" because of
her race or gender, no facts are alleged that would make such an inference plausible. While she
alleges that others received less "detrimental" reports, all of these individuals are also women,
undercutting any claim based on sex. See Comp!. § III.C. And although these women are all
allegedly Caucasian, Plaintiff does not allege any facts to suggest that they were "similarly
situated" to her such that an inference of differential treatment "may be attributable to
discrimination." McGuinness v. Lincoln Hall, 263 F.3d 49, 54 (2d Cir. 2001); see also Henry, 18
F. Supp. 3d at 408 ('"A plaintiff may support an inference of race discrimination by
demonstrating that similarly situated employees of a different race were treated more favorably,'
but '[i]n order to make such a showing, the plaintiff must compare herself to employees who are
similarly situated in all material respects.'" (quoting Norville v. Staten Island Univ. Hosp., 196
F.3d 89, 95 (2d Cir. 1999)). As in Henry, where the court dismissed the complaint, Plaintiff here
"fails to describe who these [comparator Caucasian] people are, what their responsibilities were,
7
how their workplace conduct compared to [Plaintiffs], or how they were treated." Henry, 18 F.
Supp. 3d at 408. There is thus no factual basis "from which one could infer that any Caucasian
employee similarly situated to [Plaintiff] was subject to differential treatment.., Id. The fact that
"an unspecified class of Caucasian people," id., received positive reports, in and of itself, is
insufficient to push Plaintiffs claims over "the line between possibility and plausibility."
Twombly, 550 U.S. at 557.
Plaintiffs allegations thus do not adequately allege that any adverse actions were taken
because of her race and/or gender as opposed to her performance.
C.
Opportunity to Amend
Plaintiff will be granted one opportunity to amend her Complaint to address the specific
deficiencies noted in this Opinion. See Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010)
('"A pro se complaint should not be dismissed without the Court granting leave to amend at least
once when a liberal reading of the complaint gives any indication that a valid claim might be
stated.") (citation and alterations omitted).
If Plaintiff has a good faith basis to amend her
Complaint she must do so no later than 30 days from the date of this Opinion and Order.
Plaintiff is cautioned, however, that if she chooses to file an Amended Complaint but fails to
allege the necessary factual predicates for her claims, her action will be dismissed with prejudice
and she will be barred from refiling it. 5
5
Because the Court grants Defendants' motion on the merits, it need not address Defendants' statute of
limitations argument. To the extent that Plaintiff chooses to amend her Complaint, to overcome the 300-day time
bar, she must allege facts sufficient to support a ''continuing violation" exception. The continuing violation doctrine
provides that a ''timely filing of an EEOC charge, which refers to 'a particular discriminatory act committed in
furtherance of an ongoing policy of discrimination, extends the limitations period for all claims of discriminatory
acts committed under that policy even if those acts, standing alone, would have been barred by the statute of
limitations."' De la Pena v. Metropolitan life Insurance Co, 953 F. Supp. 2d 393, 407 (E.D.N.Y. 2013) (quoting
Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1997)). "Discrete incidents of discrimination that are
unrelated to an identifiable policy or practice, on the other hand, will not ordinarily amount to a continuing violation,
unless such incidents are specifically related and are allowed to continue unremedied for so long as to amount to a
discriminatory policy of practice." Lightfoot, 110 F.3d at 907 (citation omitted).
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CONCLUSION
For the foregoing reasons, Defendants' motion to dismiss is granted and this action is
dismissed without prejudice to filing an Amended Complaint within 30 days. If no Amended
Complaint is filed by that date, this dismissal will be with prejudice.
SO ORDERED.
Dated:
July 28, 2015
New York, New York
United States District Judge
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