Scott-Iverson v. Independent Health Association, Inc.

Filing 30

ORDER: Adopting Magistrate Judge H. Kenneth Schroeder, Jr.'s Report and Recommendation 18 as filed on March 19, 2014. Based on the reasons outlined in the attached Order, the defendant's motion to dismiss 5 is granted in part and den ied in part. Plaintiff's first and second causes of action may proceed. Plaintiff's third cause of action, alleging retaliation, is dismissed. The matter is referred back to Judge Schroeder for further proceedings. Signed by Hon. Richard J. Arcara on 7/7/14. (LAS)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________
DAWN SCOTT-IVERSON,
Plaintiff,

13-CV-0451-A(Sr)
DECISION AND ORDER

v.
INDEPENDENT HEALTH ASSOCIATION,
Defendant.
________________________________

The Plaintiff in this case is an African-American woman who alleges that
her former employer, Defendant Independent Health Association, discriminated
against her on the basis of race and sex by permitting a hostile work environment
to exist. The Defendant moved to dismiss the complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6). Magistrate Judge Schroeder, to whom the
Court referred the case for all pre-trial matters and to hear and report upon
dispositive motions, filed a Report and Recommendation (R&R), Dkt. No. 18, that
recommends: (1) granting the Defendant’s motion as to Plaintiff’s cause of action
alleging retaliation; and (2) denying the Defendant’s motion as to the Plaintiff’s
two causes of action alleging a hostile work environment.
The Plaintiff did not file objections to Judge Schroeder’s recommendation
that her retaliation claim be dismissed. The Court must therefore review that
recommendation for clear error. See Edwards v. Fischer, 414 F. Supp. 2d 342,
346-47 (S.D.N.Y. 2006) (“If no objections are filed, or where objections are
merely perfunctory responses . . . reviewing courts should review a report and
1

recommendation for clear error.”) (internal quotation marks omitted). Finding
none, the Court adopts the R&R’s recommendation that Plaintiff’s cause of action
for retaliation be dismissed.
The Defendant filed objections to the remainder of the R&R. Dkt. No. 21.
Plaintiff filed a response and oral argument was held on June 23, 2014. Upon de
novo review of the portions of the R&R to which the Defendant objected, and
after hearing argument from the parties, the Court adopts the remainder of the
R&R. The Court therefore grants the Defendant’s motion to dismiss only as to
Plaintiff’s third cause of action, alleging retaliation. Plaintiff’s first and second
causes of action, alleging a hostile work environment on the basis of sex and
race, may proceed.
Discussion
Because this case is before the Court on the Defendant’s motion to
dismiss, the Court must “accept[] as true the complaint’s factual allegations and
draw[] all reasonable inferences in the plaintiff’s favor.” New York Life Ins. Co. v.
United States, 724 F.3d 256 (2d Cir. 2013). The Plaintiff’s hostile work
environment claims revolve around a series of alleged comments and acts
attributed to Plaintiff’s co-workers and supervisors. Those allegations are as
follows: 1

1

For the sake of convenience, the Court will refer to each factual allegation using the paragraph
numbers assigned by Plaintiff’s complaint.
2

¶ 24. In approximately October 1999, [one of Plaintiff’s coworkers] purported to express concern to Plaintiff . . . about her children
on a day when the Buffalo School District closed due to snow when most
adjacent, suburban school districts remained open.
¶ 25. Plaintiff . . . had to explain . . . to that colleague that not all
African-Americans live in the City of Buffalo, and her children were
attending school that day in the Sweet Home School District, as she and
her family reside in the Town of Amherst.
¶ 26. In approximately October 1999, [the Defendant] held an
employee appreciation day around Halloween and [one of Plaintiff’s coworkers] dressed up as “Aunt Jemimia,” an offensive racial stereotype of
the antebellum American South. This offensive, racist display was made
in the presence of Plaintiff . . . .
¶ 27. In approximately April 2000, an [employee of Defendant]
saw her husband’s newly purchased Mercury Mountaineer and asked
Plaintiff if her husband was “a drug dealer.”
¶ 28. In approximately 2005, [one of Plaintiff’s co-workers, L.M.], a
white female, expressed reluctance to Plaintiff . . . about visiting a client
located on Doat Street in the City of Buffalo.
¶ 29. [Co-worker L.M.] said she was “uncomfortable even driving
in that part of town” and suggested that Plaintiff . . . should service that
account because she would “better fit in.”
¶ 30. In approximately 2005, [co-worker L.M.], told Plaintiff . . . that
she is “not comfortable around black people” because of a high-school
incident in which she felt she had been victimized by other AfricanAmerican students and that Plaintiff . . . would “have to prove herself to
her.” No remedial action was taken when the complaint was made despite
the fact that [the co-worker] was a peer and had no authority over the
Plaintiff.
¶ 31. From approximately June 2007 to May 2008, Defendant . . .
routinely sent Plaintiff . . . to service accounts which had a large number of
African-American employees as she was the only African-American
Account Manager during her employment [with the Defendant].
3

¶ 32. In approximately June 2007, an example of this race-based
assignment policy is Defendant . . . assigning Plaintiff . . . to service
Community Action Organization of Western New York, as a majority of
that organization’s employees were African-American.
¶ 33. In approximately June 2007, [the Defendant’s] employees
prominently displayed an image of a nude African-American woman on
the back of [one of the Defendant’s] maintenance truck [which was]
operated by an African-American male. This offensive, racist display was
made in the presence of Plaintiff . . . . No remedial action was taken when
a complaint was made.
¶ 34. In approximately 1999, [one of Defendant’s] employee[s]
commented that the internal heat in the office was “hotter than Africa” and
inserted a silver binder ring into her nose as a parody of the oversized
nose rings portrayed in the media as emblematic of bush women in SubSaharan Africa. This offensive and racist display was made in the
presence of Plaintiff . . . .
¶ 35. In approximately June 2011, several [of Defendant’s]
employees compared Plaintiff’s posterior to that of another, female . . .
employee and offered the Plaintiff the results of their consensus opinion.
¶ 36. On numerous occasions from approximately 2002 to 2012,
[Plaintiff’s co-worker, J.M.] routinely played a video clip form the 1974
movie “Blazing Saddles” on his computer. The clip he played over and
over was a scene in which the protagonists, the white deputy, played by
Gene Wilder and the African-American Sheriff, played by Clevon Little,
were hiding from members of the Ku Klux Klan. The Sheriff then came out
of hiding and called out, “hey, where are all the white women at?” This
offensive, racist display was made in the presence of Plaintiff . . . . No
remedial action was taken when a complaint was made.
¶ 37. On numerous occasions from approximately 2002 to 2013,
on occasions when spouses were present at company-sponsored events,
. . . [co-worker J.M.] would comment to Plaintiff . . . that he wanted to
follow her husband into the Men’s Room because “black men are hung
and I want to see what he has.”

4

¶ 38. In approximately August 2003, Plaintiff . . . was asked to
pose for an advertisement for Defendant . . . in an employment journal
because they “needed a black face.”
¶ 39. In approximately February 2008, Plaintiff . . . was demoted
from Group Sales (Large) to Group Sales (Small), the only employee in
the group who suffered a demotion. [The Defendant’s] employees
commented that [Plaintiff] only had her job at all . . . “because she was
black” and that [the Defendant] needed “someone black” in that position.

On its motion to dismiss, the Defendant primarily makes two arguments:
(1) that Plaintiff’s allegations of discrimination on the basis of race and sex,
described above, are time-barred; and (2) that most of Plaintiff’s allegations of
discrimination have not been administratively exhausted. “As a precondition to
filing a Title VII claim in federal court, a plaintiff must pursue available
administrative remedies and file a timely complaint with the EEOC.” Deravin v.
Kerik, 335 F.3d 195, 200 (2d Cir. 2003). Although employees must ordinarily
make an administrative complaint within 180 days of the allegedly illegal
employment practice, if the employee “initially institute[s] proceedings with a
State or local agency,” the time period extends to 300 days. 42 U.S.C. § 2000e5(e)(1) (2012). Here, the Plaintiff first filed an administrative charge with the New
York State Department of Human Rights (NYSDHR) on April 24, 2012. See Dkt.
No. 14-1. Thus, the R&R held, and the parties do not dispute, that the only
timely discriminatory acts are those that occurred 300 days before April 24, 2012,
that is, on or after June 29, 2011. Dkt. No. 18 at 8.

5

Of the numerous factual allegations recounted above, only one—the
Blazing Saddles allegation contained in ¶ 36 of Plaintiff’s complaint—occurred
after June 29, 2011 and was also expressly exhausted in Plaintiff’s NYSDHR
complaint. The Defendant is therefore correct that the remainder of Plaintiff’s
factual allegations, if alleged as discrete acts of discrimination, would be timebarred and/or unexhausted and would accordingly be subject to dismissal.
However, in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002),
the Supreme Court clarified that in cases alleging a hostile work environment,
such as this one, an employee must timely exhaust only one of the acts that
constitute a hostile work environment claim. According to Morgan, “[g]iven . . .
that the incidents constituting a hostile work environment are part of one unlawful
employment practice, the employer may be liable for all acts that are part of this
single claim. In order for the charge to be timely, the employee need only file a
charge within . . . 300 days of any act that is part of the hostile work
environment.” Id. at 117. Thus, as the Second Circuit has noted, “[u]nder
Morgan, a sexually [or racially] offensive incident within the limitations period
permits consideration of an incident preceding the limitations period only if the
incidents are sufficiently related. ‘It does not matter whether nothing occurred
within the intervening . . . days so long as each act is part of the whole.’”
McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 77 (2d Cir. 2010) (quoting
Morgan, 536 U.S. at 118).

6

Thus, the relevant inquiry under Morgan is whether the timely
administrative charge is “sufficiently related” to the otherwise untimely factual
allegations in Plaintiff’s complaint. That is, if the untimely allegations are
sufficiently related to the timely allegation, the untimely allegations may be
considered as part of a cause of action alleging a hostile work environment. As
should be obvious, a Morgan analysis is not amenable to hard-and-fast rules.
Instead, as the Second Circuit observed in McGullam, Morgan “requires courts to
make an individualized assessment of whether incidents and episodes are
related. Morgan . . . does not limit the relevant criteria, or set out factors or
prongs.” McGullam, 609 F.3d at 77. However, in a helpful concurrence, Judge
Calabresi identified several factors that courts “have attempted to identify . . . .
that should guide the Morgan ‘relatedness’ inquiry.” Id. at 81 (Calabresi, J.,
concurring). Although the list of factors is, of course, not exhaustive, courts have
considered whether “pre- and post-limitations period incidents” were “separated
by an intervening action by the employer,” e.g., whether the employee was
transferred; whether the incidents “were of a different nature”; and whether the
incidents “were separated by a significant amount of time.” Id. at 81.
In this case, the Court concludes that the pre-limitations period allegations
in Plaintiff’s complaint are sufficiently related to the post-limitations period
allegation and, therefore, may be considered as part of Plaintiff’s hostile work
environment claims. The most significant factor leading the Court to this
conclusion is that the pre-limitations allegations are all generally of the same
7

nature as the post-limitations Blazing Saddles allegation. That is, like the Blazing
Saddles allegation, a number of the pre-limitations allegations involve comments
and acts that turn on offensive stereotypes about African-Americans in general
and African-American women in particular.
The Court recognizes, as the Defendant has noted, that some of the
predicate acts for Plaintiff’s hostile work environment claims stretch back to 1999.
However, the allegations continue over the next 13 years and are regular enough
to conclude, at least at this juncture, that they may have been part of the same
pattern of discrimination alleged in Plaintiff’s timely administrative charge. The
fact that there may be gaps of several years between some allegations is not
necessarily fatal; an “incident-free interval does not preclude relatedness,”
although it may “render[] less plausible” the possibility that several comments or
acts are related. McGullam, 609 F.3d at 78. However, as is the case here,
where the purportedly disparate acts are numerous and of the same nature, the
“incident-free interval[s]” do not undermine Plaintiff’s claim. This is particularly
true where one of Plaintiff’s allegations—the Blazing Saddles allegation—is
alleged to have occurred on “numerous occasions from approximately 2002 to
2012.” Dkt. No. 1 ¶ 36. On a motion to dismiss, the Court must draw reasonable
inferences in Plaintiff’s favor. Particularly given the severity and regularity of the
other comments and acts that Plaintiff alleges, Plaintiff is entitled, at this stage of
the litigation, to the reasonable inference that the Blazing Saddles video was
played with sufficient frequency to support a cause of action for hostile work
8

environment. The Court therefore concludes that Plaintiff’s pre-limitations period
allegations are sufficiently related to her post-limitations period allegation to state
a cause of action for hostile work environment in violation of Title VII.
In reaching this conclusion, the Court is guided primarily by the principal
that “there is no precise test for determining whether conduct is severe or
pervasive enough to constitute a hostile work environment . . . .” Williams v. New
York City Housing Auth., 154 F. Supp. 2d 820, 822 (S.D.N.Y. 2001) (citing Harris
v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). In other words, this is a fact-bound
area of law that is particularly ill-suited to dismissal at the pleading stage. Cf.
Allen v. Egan, 303 F. Supp. 2d 71, 79 (D. Conn. 2004) (“Determining whether the
events comprising the basis for [plaintiff’s] claim are part of a single, continuing
course of conduct is fact-intensive, and therefore inappropriate at this stage of
the proceedings. Defendants may, of course, re-assert this defense in a properly
supported motion [for summary judgment].”). The Defendant may not shortcircuit discovery simply because it thinks that it will ultimately prevail on the
merits.
Conclusion
The Court adopts Judge Schroeder’s report and recommendation. For the
reasons set forth in the report and recommendation, as well as those set forth
above, the Defendant’s motion to dismiss, Dkt. No. 5, is granted in part and
denied in part. Plaintiff’s first and second causes of action, alleging a hostile
work environment on the basis of race and sex, may proceed. Plaintiff’s third
9

cause of action, alleging retaliation, is dismissed. The case is referred back to
Judge Schroeder for further proceedings.
SO ORDERED.
s/ Richard J. Arcara___________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE
DATED: July 7, 2014

10