Sanchez-Vazquez v. Rochester City School District et al
Filing
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DECISION AND ORDER granting 8 Motion to Dismiss for Failure to State a Claim. The Clerk of the Court is directed to close this action.Signed by Hon. Charles J. Siragusa on 7/10/12. (KAP)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
LUIS O. SANCHEZ-VAZQUEZ,
Plaintiff,
11-CV-6590 CJS
-vROCHESTER CITY SCHOOL DISTRICT
and SUPERVISOR GLEN DUNFORD,
INDIVIDUALLY,
Defendants.
APPEARANCES
For Plaintiff:
Christina A. Agola, Esq.
Christina A. Agola, PLLC
1415 Monroe Avenue
Rochester, New York 14618
For Defendants:
Rochester City School District
Charles G. Johnson, General Counsel
Michael E. Davis, Esq., of counsel
131 West Broad Street
Rochester, New York 14614
INTRODUCTION
This is an action for employment discrimination brought pursuant to 42 U.S.C. §
1981 and the New York Human Rights Law (“NYHRL”).
Now before the Court is
Defendants’ motion for judgment on the pleadings. (Docket No. [#8]). The application is
granted.
BACKGROUND
In 1989, Plaintiff began working for the Rochester City School District as a “Driver
and Mover.” Plaintiff was born in Puerto Rico. Although English is his second language,
he speaks it fluently. Plaintiff has an accent, but maintains that it never caused him any
difficulty during his twenty years of employment at the school district. Complaint ¶ 31; see
also, id. at ¶ 11 (“[Plaintiff] has always maintained an above average work record with no
personnel issues.”)
In 2007, Defendant Glen Dunford became Plaintiff’s immediate supervisor. Plaintiff
always spoke English to Dunford, but spoke Spanish with Spanish-speaking co-workers,
which bothered Dunford. Complaint ¶ 33, 35. Plaintiff indicates that between 2007 and
2011, Dunford made a number of comments that suggest a discriminatory animus.
In 2008, Plaintiff apparently1 was speaking to Dunford on the telephone, when
Dunford angrily stated, “I need to speak with someone who knows how to speak English!”
Complaint ¶ 14. After Plaintiff gave the phone to a co-worker, Dunford allegedly said,
“Great, now I can speak to someone who actually knows English.” Id. at ¶ 16. Also in
2008, on “several occasions,” Dunford told Plaintiff, “I hope you didn’t blow your bridges
from where you came from.” Id. at ¶ 17. Plaintiff purportedly inferred from such comments
that he “might be fired and sent back to Puerto Rico.” Id.
Later in 2008, while Plaintiff and another employee, James Cover, were working in
a warehouse, Dunford told Plaintiff, “Go ahead and do something stupid, so I can take care
of your wife.” Id. at ¶ 21. After this comment, Plaintiff and Cover “requested a meeting”
with another supervisor to complain about Dunford’s “harassing and racially motivated
comments.” The Complaint, however, does not detail any comments being made to Cover,
1
Although the Complaint does not clearly state that Dunford was speaking to Plaintiff, Plaintiff
seemingly intends for the Court to infer that fact.
2
nor does it indicate whether a meeting actually took place, but does indicate that “the
harassment continued.” Id. at ¶ ¶ 22-23.
During 2009, the Complaint does not allege that Dunford made any derogatory
comments.
In August 2010, on the Monday following the Puerto Rican Festival in Rochester,
New York, Dunford said to Plaintiff, “Oh, you are here?” Plaintiff replied, “Yes, why
[wouldn’t I be]?” Dunford responded, “Oh, I thought that you were not going to be here
because maybe you were one of the men who got arrested at the Puerto Rican festival last
night,2 that’s why I’m surprised to see you here.” Complaint ¶ ¶ 24-26. Dunford allegedly
made several other “degrading and harassing comments about Plaintiff’s Puerto Rican
heritage,” though the Complaint does not indicate what was said. Id. at ¶ 28.
On March 23, 2011, during a “performance evaluation meeting,” Plaintiff told
Dunford, “I am tired of your racial comments, whenever you have something to say, tell me
and let me know instead of telling other people that you have issues with my
communication skills. I know its probably hard because of my accent, but I have never had
a problem with the 20 plus years I have been working with the department.” Complaint ¶
31. Dunford responded, “I’m getting tired of you speaking Spanish with your co-workers,
this is America, you gotta speak English when you live in America.” Id. at ¶ 33.3 Later that
day Dunford apologized to Plaintiff for the remark.
2
The Court takes judicial notice of the fact that according to local news accounts, the were “about two
dozen arrests” following the close of the 2010 Rochester Puerto Rican festival. See,
http://rochesterathome.com/dct/62/id/504440/mid/315/Arrests-Mar-End-Of-Puerto-Rican-Festival.aspx
3
Employers may require employees to speak English at certain times, where there is a legitimate
business reason for doing so, but forcing them to speak English at all times without a good reason may
indicate discriminatory animus. See, 29 C.F.R. 1606.7
3
After the apology, though, Plaintiff maintains that Dunford attempted to retaliate
against him, by monitoring him more closely:
Dunford started to monitor Plaintiff’s work more closely and put extra
pressure on Plaintiff. Supervisor Dunford began sneaking up on Plaintiff
while he was working to purposefully try to catch Plaintiff doing something
wrong, however Plaintiff maintained an above average work record and
avoided Supervisor Dunford.
Complaint ¶ ¶ 38-39.
On April 14, 2011, Plaintiff filed a discrimination complaint internally with the School
District. (Superintendent’s Regulation -1510-R Complaint). The complaint indicated that
Dunford had made unspecified “racist and inappropriate” comments and had told Plaintiff
that he should “speak English in America.” The complaint further stated that Dunford’s
comments “created an uncomfortable work environment.” The very next day, April 25,
2011, Plaintiff filed a complaint with the New York Human Rights Commission, purportedly
because the School District had “failed to take any remedial action whatsoever with regard
to [his] good faith complaints of discrimination.” Complaint ¶ 43. Subsequently, the School
District moved Dunford to another department. Id.
On or about December 1, 2011, Plaintiff commenced this action. The Complaint
purports to assert three causes of action: 1) a hostile work environment claim, under
Section 1981, against the School District and Dunford; 2) a “Monell liability” claim against
the School District, pursuant to Section 1981 and 42 U.S.C. § 1983, for “creating and
maintaining” a “custom, policy or practice” of “unconstitutional retaliation” and “failure to
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promote minorities”;4 and 3) a claim against Dunford under the NYHRL, as an “aider and
abettor.”
The motion has been fully briefed. The Court had scheduled oral argument, but
upon review of the papers it finds that oral argument is unnecessary.
DISCUSSION
Defendants have moved for judgment on the pleadings, and “[t]he same standard
applicable to Fed.R.Civ.P. 12(b)(6) motions to dismiss applies to Fed.R.Civ.P. 12(c)
motions for judgment on the pleadings.” Bank of New York v. First Millennium, Inc., 607
F.3d 905, 922 (2d Cir.2010) (citation omitted). Such standard is well settled:
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. 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 entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action
will not do. 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).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964–65, 167 L.Ed.2d 929
(2007); see also, ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d
Cir.2007) (“To survive dismissal, the plaintiff must provide the grounds upon which his
claim rests through factual allegations sufficient ‘to raise a right to relief above the
speculative level.’ ”) (quoting Bell Atl. Corp. v. Twombly ) (footnote omitted). When
applying this standard, a district court must accept the allegations contained in the
4
Complaint ¶ 65.
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complaint as true and draw all reasonable inferences in favor of the nonmoving party.
Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir.1999), cert. den. 531 U.S. 1052, 121 S.Ct.
657 (2000).
Hostile Work Environment under Section 1981
Plaintiff contends that Dunford subjected him to a hostile work environment based
on his race and national origin.
Section 1981 forbids race discrimination, but not
discrimination based solely on national origin.
It is established that Section 1981 prohibits discrimination based on race in
the making and enforcement of contracts, and extends to private as well as
state actors in that regard. The prohibition against racial discrimination
encompasses discrimination based on ancestry or ethnic characteristics. It
is also settled that Section 1981 does not prohibit discrimination on the basis
of gender or religion, national origin, or age.
Anderson v. Conboy, 156 F.3d 167, 170 (2d Cir. 1998) (citations omitted). “However,
courts have also recognized that race and national origin discrimination claims may
substantially overlap or even be indistinguishable depending on the specific facts of a
case.” Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir. 2003). “The same elements constitute
a claim for employment discrimination under 42 U.S.C. § 1981 as constitute a claim under
Title VII.” White v. Eastman Kodak Co., 368 Fed.Appx. 200, 202, 2010 WL 726629 at *1
(2d Cir. Mar. 3, 2010).
Of course, Section 1981 and other employment discrimination statutes do not
establish a general civility code for the workplace. See, e.g., Ebanks v. Neiman Marcus
Group, Inc., 414 F.Supp.2d 320, 335 (S.D.N.Y. 2006). Where, as here, the alleged hostile
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work environment consists of comments by a supervisor, there must be more than a few
isolated incidents:
Whether an environment is ‘hostile’ or ‘abusive’ can be determined only by
looking at all the circumstances. As the Supreme Court has stated, mere
utterance of an epithet which engenders offensive feelings in an employee
does not sufficiently affect the conditions of employment to implicate Title VII.
For racist comments, slurs, and jokes to constitute a hostile work
environment, there must be more than a few isolated incidents of racial
enmity, meaning that instead of sporadic racial slurs, there must be a steady
barrage of opprobrious racial comments. Thus, whether racial slurs
constitute a hostile work environment typically depends upon the quantity,
frequency, and severity of those slurs, considered cumulatively in order to
obtain a realistic view of the work environment.
Schwapp v. Town of Avon, 118 F.3d 106, 110-111 (2d Cir. 1997) (emphasis added,
citations and internal quotation marks omitted).
In this case, the handful of alleged comments by Dunford over a period of four years
are insufficient to create a hostile work environment. See, Concey v. New York State
Unified Court System, No. 08 Civ. 8858(PGG), 2011 WL 4549386 at *17 (S.D.N.Y. Sep.
30, 2011) (“Accepting as true that Beirne—over a four year period—referred to Plaintiff as
‘boy’ on three occasions and mocked his accent on one occasion, this conduct does not
rise to the level of a hostile work environment.”) (collecting cases with similar facts); see
also, Wright-Jackson v. HIP Health Plan, No. 07 Civ. 1819 (DFE), 2010 WL 624993 at *11
(S.D.N.Y. Feb. 19, 2010) (Supervisor’s taunts about plaintiff’s Caribbean accent and
culture, and statement that “These people come here and don't even know how to talk,”
were insufficient to establish a hostile working environment); compare, Pozo v. J & J Hotel
Co., L.L.C., No. 06 Civ.2004(RCC)(AJP), 2007 WL 1376403 at *16-17 (S.D.N.Y. May 10,
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2007) (Denying summary judgment where, on a daily basis over a period of five years,
supervisor taunted Cuban hotel maid about her accent, told her to go back to Cuba if she
didn’t like the working conditions, and made her clean all bathrooms, while allowing Polish
maid with better English skills to clean bedrooms). In fact, the Complaint does not indicate
that in 2009 Dunford made any objectionable comments.
Moreover, many of the alleged comments were not overtly related to race. For
example, the statement, “Do something stupid so that I can take care of your wife” does
not imply racial animus on its face. Frankly, the Court does not know what the statement
is supposed to mean, but it is not clearly racist. Similarly, the statement “I hope you didn’t
blow your bridges where you came from” is not overtly racist. Considering all of Dunford’s
alleged statements over a period of four years cumulatively, including his sporadic
comments about Plaintiff’s accent, his unhappiness with Plaintiff speaking Spanish to coworkers and his statement that he thought Plaintiff might have been arrested at the Puerto
Rican Festival, the Court finds that they are insufficiently severe and pervasive to establish
a racially-hostile working environment. See, Stembridge v. City of New York, 88 F.Supp.2d
276, 286 (S.D.N.Y. 2000) (“Overall, seven instances over three years does not create a
work environment permeated with racial hostility”).
Monell Liability Claim Against the School District
Since Plaintiff failed to state a Section 1981 discrimination claim or any
constitutional claim, his Monell claim necessarily fails. See, Segal v. City of New York, 459
F.3d 207, 219 (2d Cir. 2006) (“Monell does not provide a separate cause of action for the
failure by the government to train its employees; it extends liability to a municipal
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organization where that organization's failure to train, or the policies or customs that it has
sanctioned, led to an independent constitutional violation.”).
Even assuming arguendo that Plaintiff stated an underlying § 1981 claim, he has
not stated a Monell claim against the School District.
Liberally construed, Plaintiff’s
Complaint purports to state a Monell claim against the School District based on three
theories. First, the Complaint states that the School District had a custom, policy or
practice of condoning or facilitating “unconstitutional retaliation.” Complaint ¶ 65. Second,
the Complaint states that the School District had a custom, policy or practice of “condoning
failures to promote minority employees.” Id. at ¶ 66. Third, the Complaint indicates that the
School District failed to provide “training, supervision and discipline,” which led to
“constitutional violations.” Id. at ¶ 65. The Complaint does not allege that the School
District had a custom, policy or practice of creating a hostile work environment for Hispanic,
Puerto Rican or Spanish-speaking employees. See, Complaint [#1] ¶ ¶ 64-66.
It is well settled that a plaintiff may establish a Monell claim in several ways:
[W]hen the defendant sued for discrimination under § 1981 or § 1983 is a
municipality-or an individual sued in his official capacity, the plaintiff is
required to show that the challenged acts were performed pursuant to a
municipal policy or custom. To show a policy, custom, or practice, the plaintiff
need not identify an express rule or regulation. It is sufficient to show, for
example, that a discriminatory practice of municipal officials was so
persistent or widespread as to constitute a custom or usage with the force
of law, or that a discriminatory practice of subordinate employees was so
manifest as to imply the constructive acquiescence of senior policy-making
officials. A policy, custom, or practice may also be inferred where the
municipality so failed to train its employees as to display a deliberate
indifference to the constitutional rights of those within its jurisdiction. Liability
of a municipal defendant or an individual sued in his official capacity under
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§ 1981 and § 1983 cannot, however, be premised on a theory of respondeat
superior.
Patterson v. County of Oneida, N.Y., 375 F.3d 206, 226 (2d Cir. 2004).
Plaintiff’s Complaint fails to plead facts sufficient to state a plausible claim under any
of the three theories alleged. For example, the Complaint fails to allege any facts
whatsoever concerning a failure to promote minority employees, and the Court therefore
assumes that this allegation was left over from one of Plaintiff’s counsel’s prior pleadings.5
As for supposed retaliation, the Complaint indicates only that Dunford attempted to
retaliate against Plaintiff by “sneaking up on him” and trying to catch him doing something
wrong. Complaint ¶ ¶ 38-39. Even assuming that such conduct amounted to retaliation,
which it does not,6 there is absolutely no factual allegation that the School District had any
notice of such conduct by Dunford, or that the District condoned or ignored retaliation in
general. Nor does the Complaint plausibly plead facts suggesting that the School District
failed to train or supervise Dunford or other supervisors, with deliberate indifference to the
5
The Complaint’s introductory paragraph also indicates that “this is an action for retaliation brought
pursuant to 42 U.S.C. § 1981, and 42 U.S.C. § 2000e.” However, the Complaint actually does not assert a
retaliation claim, nor does it assert a claim under 42 U.S.C. § 2000e. Moreover, the Complaint’s closing lines
indicate that Plaintiff’s counsel, Ms. Agola, is appearing as “Attorney for Plaintiff David Owens,” who is not a
party to this action.
6
See, e.g., MacEntee v. IBM, No. 11–1456, 2012 WL 1958990 at *1-2 (2d Cir. Jun. 1, 2012)
(“MacEntee's retaliation action fails as a matter of law because the alleged retaliatory actions—close
supervision of her time entries and workplace conduct—are not cognizable ‘adverse employment actions.’”);
Arce v. Potter, 818 F.Supp.2d 402, 411 (D.Puerto Rico 2011) (Increased supervision by supervisor was not
sufficient to constitute retaliation: “[T]hese allegations are not actionable because they do not rise past the
level of minor annoyances or petty slights.”); Blake v. Penn State University Greater Allegheny Campus, Civil
Action No. 09–1182, 2011 WL 841374 at *8 (W.D.Pa. Mar. 8, 2011) (“A supervisor's close scrutiny of an
employee's work, while unpleasant and annoying, does not rise to the level necessary to support a Title VI
I retaliation claim.”).
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constitutional rights of its employees. See, Missel v. County of Monroe, 351 Fed.Appx.
543, 545-546, 2009 WL 3617787 at *1 (2d Cir. Nov. 4, 2009) (“The allegations that Hildreth
acted pursuant to a “policy,” without any facts suggesting the policy's existence, are plainly
insufficient.”).
NYHRL Claim Against Dunford
Plaintiff asserts a NYHRL claim “against Defendant Supervisor Dunford only,” “as
an ‘aider and abettor.’” Complaint p. 12. For the reasons already discussed, Plaintiff has
failed to state a claim.
Even assuming that Plaintiff had sufficiently pleaded a hostile environment claim,
Dunford cannot “aid and abet” himself in committing discrimination. See, Alexander v.
Westbury Union Free Sch. Dist., 829 F.Supp.2d 89, 115 (E.D.N.Y. 2011) (Cannot assert
an Executive Law § 296(6) “aiding and abetting” claim against the sole alleged harasser,
for aiding and abetting himself). Some courts have questioned whether a harasser may
be sued as an aider and abetter of his own conduct, in light of the Second Circuit’s
decision in Tomka v. Seiler, 66 F.3d 1295 (2d Cir. 1995). See, e.g.,Tully-Boone v. North
Shore-Long Island Jewish Hosp. Sys., 588 F.Supp.2d 419, 426-427 (E.D.N.Y. 2008) (“The
Court is mindful that the Tomka interpretation of § 296(6) is not without controversy.
Nevertheless, until the Second Circuit revisits the issue, Tomka is the law in this circuit.
Accordingly, Backus may be held liable for aiding and abetting allegedly unlawful
discrimination by her employer even where her actions serve as the predicate for the
employer's vicarious liability.”) (citations and internal quotation marks omitted). However,
in this case, Plaintiff is not asserting a NYHRL claim against the School District or anyone
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else besides Dunford. Therefore, there is no one for Dunford to have aided or abetted in
violating NYHRL § 296. See, Bennett v. Progressive Corp., 225 F.Supp.2d 190, 213-214
(N.D.N.Y. 2002) (“In order to hold an individual liable under the aiding and abetting
provision, however, plaintiff must also show that the individual aided or abetted a primary
violation of the NYHRL committed by another employee or the business itself .”) (Citations
and internal quotation marks omitted). Accordingly, the Complaint fails to state a NYHRL
claim against Dunford.
CONCLUSION
Defendants’ motion [#8] for judgment on the pleadings is granted, and this action
is dismissed. The Clerk of the Court is directed to close this action.
SO ORDERED.
Dated:
July 10, 2012
Rochester, New York
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
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