Salters v. Hewitt-Young Electric, LLC

Filing 40

-CLERK TO FOLLOW UP-DECISION AND ORDER granting 35 Motion to Dismiss for Failure to State a Claim as to defendant John A. Greene. Signed by Hon. Michael A. Telesca on 8/2/16. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
ROBERT SALTERS,
Plaintiff,

15-CV-6040T
DECISION
and ORDER

v.
HEWITT-YOUNG ELECTRIC, LLC
AND JOHN A. GREENE d/b/a
UNIFIED ELECTRIC,
Defendant.
________________________________________
INTRODUCTION

Plaintiff Robert Salters (“plaintiff”) commenced this action
against Hewitt-Young Electric, LLC (“Hewitt-Young”), seeking damages
for racial discrimination in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to e-17 (“Title
VII”), and Article 15 of the New York State Executive Law, Human
Rights Law § 290 et seq. (“NYSHRL”). Specifically, plaintiff, who is
African American, claims that he was subjected to race discrimination
by Hewitt-Young’s failure to hire him based on his race, leading to
plaintiff’s

termination

by

Hewitt-Young’s

subcontractor

and

a

continued refusal to employ him.
On March 23, 2015, Hewitt-Young moved for dismissal of the
complaint for failure to state a claim pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure, contending that plaintiff
failed to allege facts sufficient to establish a plausible inference
of race discrimination. On August 11, 2015, this Court denied Hewitt-

Young’s motion to dismiss, and, on November 12, 2015, plaintiff filed
a motion to amend the complaint to add causes of action for race
discrimination and retaliation claims under 42 U.S.C. § 1981 against
Hewitt-Young and a claim of aiding and abetting discrimination under
NYSHRL § 296(6) against new defendant John A. Greene d/b/a Unified
Electric (“Greene”).

Plaintiff’s motion to amend his complaint was

granted on February 12, 2016.
BACKGROUND
Plaintiff is an African-American master electrician who was
hired

by

Hewitt-Young

through

his

union,

the

International

Brotherhood of Electrical Workers, Local Union #86 (“Local #86”), for
a three-month project from July 7, 2013 to September 27, 2013 and a
shorter job from October 1, 2013 to October 3, 2013.

On December 6,

2013, plaintiff waited in the lobby of Hewitt-Young’s offices after
arriving to work on a new project.

Gregory Young, president of

Hewitt-Young, walked into the lobby, looked at plaintiff, and said:
“‘No, no, this is not going to work out.’” Amended complaint, ¶ 24.
At this point, “Young approached [plaintiff], told him that he had to
go, and pushed him out the front door.” Amended complaint, ¶ 25.
When plaintiff subsequently contacted Local #86 to give an account of
the incident, the dispatcher informed him that Young had called and
reported that plaintiff had been intoxicated when he arrived to work.

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In the amended complaint, plaintiff alleges that, “in his
20-plus years of work for Local #86, [he] had never been sent home
from a job, nor had a contractor rejected him for a referral, for
being under the influence.” Amended complaint, ¶ 30. On December 23,
2013, plaintiff began working on an unrelated project for United
Electric, a subcontractor of Hewitt-Young.

On the same day, Young

and Robert Hewitt, vice president of Hewitt-Young directed Greene,
owner of United Electric, to terminate plaintiff, which he did on
December 27, 2013 “despite telling [plaintiff] that he liked his
work.” Amended complaint, ¶ 35.
Plaintiff subsequently filed a charge of discrimination

with

the Equal Employment Opportunity Commission (“EEOC”) on March 26,
2014, in which he alleged race and color discrimination by HewittYoung.

Presently before the Court is Greene's motion to dismiss the

complaint for failure to state a claim pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure on the grounds that: (1) the
claims against him are procedurally barred by plaintiff's failure to
name him as a respondent in the EEOC charge and, in any event, he is
not subject to EEOC proceedings; and (2) the amended complaint
contains no specific, plausible allegations of discrimination against
Greene.

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DISCUSSION
I.
To

Standard of Review Under Rule 12(b)(6)
withstand

a

motion

to

dismiss

under

Rule

12(b)(6),

a

complaint must plead facts sufficient “to state a claim for relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). “A claim has facial plausibility when the pleaded
factual content allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not
akin to a probability requirement, but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id. (internal
quotation marks omitted).

Thus, “[w]here 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. (internal quotation marks omitted).
Whether a complaint states a plausible claim for relief is
context specific and such a determination “requires the reviewing
court to draw on its judicial experience and common sense.” Id. at
679.

The pleadings must “permit the court to infer more than the

mere possibility of misconduct” Id.

Under the above plausibility

standard, the Court assumes the veracity of well-pleaded factual
allegations and draws all reasonable inferences from such allegations
in the plaintiff’s favor. See id. at 679.

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II.

Plaintiff’s claim against Mr. Greene must be dismissed.

Greene

initially

contends

that

the

claim

against

him

is

procedurally barred by plaintiff’s failure to satisfy the statutory
requisite of naming him as a respondent in the EEOC charge.

Greene

further asserts that the “identity of interest” exception to the rule
barring

Title

respondent

in

VII

actions

the

prior

against
EEOC

a

defendant

charge

is

not

not

named

applicable

as

a

here.

Plaintiff does not directly address the alleged procedural bar but
responds that he has stated a valid aiding and abetting claim against
Greene and that the Court should exercise supplemental jurisdiction
over this state claim, which was brought under NYSHRL § 296(6).
The Court generally has jurisdiction over such claims against
only parties named in the EEOC charge. “A complainant must file a
charge against a party with the EEOC or an authorized state agency
before the complainant can sue that party in federal court under
Title VII.” Vital v. Interfaith Med. Ctr., 168 F.3d 615, 619 (2d Cir.
1999), (citing 42 U.S.C. § 2000e-5(f)(1) for the proposition that an
aggrieved

party's

right

to

sue

is

limited

to

those

named

as

respondent in the charge). However, “Because these charges generally
are filed by parties not versed in the [these] jurisdictional and
pleading requirements, we have taken a ‘flexible stance’” Johnson v.
Palma, 931 F.2d 203, 209 (2d Cir. 1991)(quoting Egelston v. State
Univ. College, 535 F.2d 752, 754-755 (2d Cir.1976)). An exception to
the general rule that a party must be named in the EEOC complaint,

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known as the “identity of interest” exception, allows the action to
proceed against an unnamed party.

The four factors in determining

with an identity of interest exists are:
1) whether the role of the unnamed party could through
reasonable effort by the complainant be ascertained at the
time of the filing of the EEOC complaint; 2) whether, under
the circumstances, the interests of a named [party] are so
similar as the unnamed party's that for the purpose of
obtaining voluntary conciliation and compliance it would be
unnecessary to include the unnamed party in the EEOC
proceedings; 3) whether its absence from the EEOC
proceedings resulted in actual prejudice to the interests
of the unnamed party; 4) whether the unnamed party has in
some way represented to the complainant that its
relationship with the complainant is to be through the
named party.
Johnson v. Palma, 931 F.2d 203, 209-210 (2d Cir. 1991).
Here, in light of Greene’s role as plaintiff’s direct employer,
who effected his termination, there is no question that plaintiff
could have named Greene in the EEOC complaint.

There is also no

indication that the interests of Hewitt-Young are so similar as
Greene’s, notwithstanding his position as subcontractor, that for the
purpose of obtaining voluntary conciliation and compliance it would
be unnecessary to include Greene in the EEOC proceedings.

However,

even if there was a sufficient showing under the four factors to
indicate the existence of an identity of interest between Greene and
Hewitt-Young, the claim against Greene is still subject to dismissal
under Rule 12(b)(6).
Title VII forbids an employer to “discriminate against any
individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s race, color,

religion,

sex,

or

national

origin.”

42

U.S.C.

§

2000e-2(a).

Discrimination claims brought under the NYSHRL are analytically
identical

to

claims

brought

under

Title

VII

and

“evaluated

identically” to Title VII claims. Maher v. All. Mortgage Banking
Corp., 650 F. Supp. 2d 249, 259 (E.D.N.Y. 2009).

Here, plaintiff

correctly notes that Greene cannot be insulated from aiding and
betting discriminatory conduct merely because he was “following
orders” from Hewitt-Young.

“[A] co-worker who participates in

conduct giving rise to discrimination can be held liable under § 296,
‘even though that co-worker lacked the authority to either hire or
fire the plaintiff.’” Gallo v. Wonderly Co., 2014 WL 36628, at *8
(N.D.N.Y. 2014)(quoting Feingold v. New York, 366 F.3d 138, 158 (2d
Cir. 2004)).

This includes an individual who takes “no action to

remedy discriminatory behavior that [he] was aware of or terminated
a plaintiff on the basis of impermissible factors.” Id.

However,

there is no allegation in plaintiff’s amended complaint that Greene
was put on notice of any discriminatory conduct by Hewitt-Young or
that he terminated plaintiff on an impermissible basis.
The

Court

finds

that,

even

at

this

early

stage

of

the

proceedings, plaintiff has not satisfied the pleading standard of
asserting an employment discrimination claim against Greene that is
“facially plausible and gives fair notice to defendant of the basis
for the claim.” Vlad–Berindan v. MTA New York City Transit, 2014 WL
6982929, at *8 (S.D.N.Y.2014) (internal quotation marks omitted). In

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his amended complaint, plaintiff specifically notes that the “only
reason given for [his] termination by Greene was that [Greene] was
doing it at the direction of [Hewitt-Young].” Amended complaint, ¶
64.

There

is

no

allegation

that

Greene

was

aware

of

any

discriminatory reason for terminating plaintiff when he acquiesced to
Young’s request. See Miotto v. Yonkers Pub. Sch., 534 F. Supp. 2d
422, 429 (S.D.N.Y. 2008) (“To resist a motion to dismiss, the
complaint must allege that the employer had knowledge or acquiesced
in the discriminatory conduct of a supervisor or co-worker.”)(quoting
Hart v. Sullivan, 84 A.D.2d 865, (N.Y.App.Div. 1981))).
Accordingly, this Court finds that Greene’s motion to dismiss
plaintiff’s claim against him for failure to allege a plausible
inference of aiding and abetting race discrimination must be granted.
CONCLUSION
For the reasons set forth above, defendant John A. Greene’s
motion to dismiss plaintiff’s claim against him in the amended
complaint (Docket No. 28) is granted and this claim is dismissed with
prejudice.
ALL OF THE ABOVE IS SO ORDERED.
s/Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Dated:

Rochester, New York
August 1, 2016
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