Prystawik v. BEGO USA et al
Filing
13
OPINION AND ORDER granting 8 Motion to Dismiss filed by BEGO USA. So Ordered by Judge William E. Smith on 5/29/13. (Jackson, Ryan)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
)
Plaintiff,
)
)
v.
)
)
BEGO USA; BEGO BREMER
)
GOLDSCHLAGEREI WILH. HERBST GMBH & )
CO. KG; WEISS HANDELS-UND
)
VERWALTUNGSGESELLSCHAFT GMBH;
)
DIRECTOR HELMUT LASCHUETZA;
)
DIRECTOR CHRISTOPH WEISS; THOMAS
)
KOSIN; and GENERAL MANAGER BILL
)
OREMUS,
)
)
Defendants.
)
___________________________________)
STEFAN M. PRYSTAWIK, PRC Law LLC,
Assignee Re: Mrs. Imme Henke,
C.A. No. 13-134 S
OPINION AND ORDER
WILLIAM E. SMITH, United States District Judge.
Now
before
the
Court
is
Defendant
BEGO
USA’s
Motion
to
Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(1),
12(b)(3),
and
Alternatively,
Federal
12(b)(6) (“Def.’s Mot. to Dismiss”).
Rule
of
Civil
Procedure
(ECF No. 8.)
For the
reasons set forth below, that motion is GRANTED.
I.
Background
On February 26, 2013, Plaintiff Stefan M. Prystawik filed a
pro se complaint against Defendants BEGO USA and BEGO Bremer
Goldschlagerei Wilh. Herbst GmbH & Co. KG (“BEGO GmbH”), among
others.
(ECF No. 1.)
The complaint alleges that Imme Henke, a
resident of Bremen, Germany, suffered discrimination during her
employment with BEGO. 1
The complaint expressly states that the
alleged discrimination occurred in Germany.
On
September
25,
2012,
Henke
filed
a
Charge
of
Discrimination with the Equal Employment Opportunity Commission
(“EEOC”), alleging that BEGO USA discriminated against her on
the bases of retaliation, sex, age, and disability.
(Ex. 4 to
Def.’s Mot. to Dismiss (“Charge of Discrimination”), ECF No. 85.)
On December 7, 2012, the EEOC dismissed Henke’s charge on
the grounds that it was not timely filed.
(Ex. 1 to Compl.
(“Dismissal and Notice of Rights”), ECF No. 1-1.)
Before Henke’s charge had been dismissed, on November 27,
2012,
she
assigned
her
claims
against
BEGO
to
Plaintiff
Prystawik.
(Ex. 8 to Def.’s Mot. to Dismiss (“Assignment”), ECF
No. 8-9.)
Shortly thereafter, on February 26, 2013, Plaintiff
filed his pro se complaint in this Court.
Defendant BEGO USA,
in turn, moved to dismiss the complaint.
Plaintiff failed to
file any opposition to that motion.
II.
Discussion
Because Henke’s assignment of her rights to Plaintiff was
invalid and because Plaintiff has failed to state a claim under
1
It is not entirely clear from the face of the complaint
whether Henke was employed by BEGO GmbH or BEGO USA.
In its
motion to dismiss, Defendant contends that she worked only for
the former company.
Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age
Discrimination in Employment Act (“ADEA”), 2 the Americans with
Disabilities
Act
(“ADA”),
or
the
Genetic
Information
Non-
Discrimination Act (“GINA”), the Court grants Defendant’s motion
to dismiss.
A.
Invalid Assignment
The Court need not decide whether the validity of Henke’s
assignment to Plaintiff is governed by federal or state law.
This is because the assignment is invalid in either case.
See
Evans v. Boyd Rest. Grp., LLC, 240 F. App’x 393, 398 (11th Cir.
2007) (holding that an individual cannot assign his or her prejudgment
rights
pursuant
to
Title
VII
under
Georgia
law
or
federal common law); Tyler v. Superior Court, 73 A. 467 (R.I.
1909) (holding that personal injury claims cannot be assigned
before judgment).
Plaintiff does not allege that he personally
has
discrimination
suffered
any
at
the
hands
of
Defendants.
Thus, in the absence of a valid assignment, he lacks standing to
sue.
Cir.
See Osediacz v. City of Cranston, 414 F.3d 136, 139 (1st
2005)
2
(stating
that,
in
order
to
establish
standing,
a
Plaintiff’s complaint does not explicitly reference the
ADEA.
However, because Plaintiff alleges age discrimination,
the Court considers that statute out of an abundance of caution.
plaintiff “must demonstrate that [he or] she has suffered an
injury in fact”). 3
B.
Failure to State a Claim 4
The
federal
anti-discrimination
statutes’
requirements
regarding extraterritorial application and employee numerosity
are elements that Plaintiff is required to plead and prove.
See
Arbaugh v. Y&H Corp., 546 U.S. 500, 504 (2006) (“[T]he employeenumerosity requirement relates to the substantive adequacy of
[a]
Title
VII
claim.”).
Thus,
failure
to
allege
facts
sufficient to satisfy these requirements is properly analyzed
under
Rule
12(b)(6).
Similarly,
“Timeliness
of
requirements are best resolved under Rule 12(b)(6).”
exhaustion
Robinson
v. Dalton, 107 F.3d 1018, 1022 (3d Cir. 1997).
3
The Court also notes that the assignment only purported to
transfer Henke’s rights against “Bego.”
(Ex. 8 to Def.’s Mot.
to Dismiss (“Assignment”), ECF No. 8-9.)
It is far from clear
whether the document refers to BEGO GmbH or BEGO USA. Moreover,
there is no mention of the other Defendants named in the
complaint.
4
In granting the instant motion to dismiss pursuant to Rule
12(b)(6), the Court does not consider any of the affidavits
submitted by Defendant.
See Trans-Spec Truck Serv., Inc. v.
Caterpillar Inc., 524 F.3d 315, 321 (1st Cir. 2008) (“Under Rule
12(b)(6), the district court may properly consider only facts
and documents that are part of or incorporated into the
complaint.”).
The Court may, however, consider documents filed
with and generated by the EEOC. See Jefferson v. Gates, No. CA
09-537 ML, 2010 WL 2927529, at *1 n.2 (D.R.I. July 2, 2010),
report and recommendation adopted, No. CA 09-537 ML, 2010 WL
2927528 (D.R.I. July 22, 2010).
1.
Title
employee
company
Extraterritorial application
VII
is
is
a
only
applies
United
extraterritorially
States
by
controlled
citizen
American
an
and
when
(2)
the
“(1)
employer.”
the
employee’s
Shekoyan
v.
Sibley Int’l Corp., 217 F. Supp. 2d 59, 65 (D.D.C. 2002), aff’d,
409 F.3d 414 (D.C. Cir. 2005).
This is because the statute
expressly states that “[w]ith respect to employment in a foreign
country,” the term “employee” “includes an individual who is a
citizen of the United States.”
42 U.S.C. § 2000e(f).
Title VII
also does not apply “to the foreign operations of an employer
that
is
a
employer.”
foreign
person
§ 2000e-1(c)(2).
not
controlled
by
an
American
A similar analysis applies to the
ADEA, see 29 U.S.C. §§ 630(f) and 623(h)(2), the ADA, see 42
U.S.C.
§§
U.S.C.
§
clear
12111(4)
and
12112(c)(2)(B),
2000ff(2)(A)(i).
that
the
alleged
Here,
and
the
Plaintiff’s
discrimination
GINA,
see 42
complaint
occurred
in
makes
Germany.
However, Plaintiff does not allege that Henke is a United States
citizen
or
employer.
that
her
employer
The
Court
also
was
notes
controlled
that,
while
by
it
an
American
takes
the
allegations in Plaintiff’s complaint as true for the purposes of
ruling on the instant motion, Plaintiff failed to respond in any
way to Defendant’s contentions that Henke is a German citizen
and an employee of BEGO GmbH, a German company.
This would
imply
that
Plaintiff
has
no
basis
to
allege
the
necessary
prerequisites, which may explain his silence on this point.
2.
Minimum number of employees
Federal
anti-discrimination
statutes
also
apply
only
employers that have a certain minimum number of employees.
to
See
42 U.S.C. § 2000e(b) (fifteen employees); 29 U.S.C. § 630(b)
(twenty employees); 42 U.S.C. § 12111(5)(A) (fifteen employees);
42
U.S.C.
Plaintiff’s
§
2000ff(2)(B)(i)
complaint
contains
(fifteen
no
employees).
allegation
number of employees at BEGO GmbH or BEGO USA.
Here,
concerning
the
In support of its
motion to dismiss, BEGO USA asserted that, at all times relevant
to this litigation, it has had fewer than fifteen employees.
Plaintiff
failed
to
counter
this
contention.
Plaintiff’s
omission of any allegation concerning the number of Defendants’
employees
12(b)(6).
is
sufficient
to
justify
dismissal
under
Rule
See Evans v. Larchmont Baptist Church Infant Care
Ctr., Inc., No. 2:11CV306, 2012 WL 699529, at *3 (E.D. Va. Feb.
29, 2012); Sturdivant v. K & S Sanitation Serv., Inc., Civil No.
3:11CV136-RJC-DSC,
2011
WL
5037194,
at
*3
(W.D.N.C.
May
13,
2011), report and recommendation adopted, Civil No. 3:11-cv-136RJC-DSC, 2011 WL 5237747 (W.D.N.C. Oct. 24, 2011); Morrow v.
Keystone Builders Res. Grp., Inc., Civil Action No. 2:08-4119CWH, 2010 WL 3672354, at *6-7 (D.S.C. Sept. 15, 2010).
3.
In
Untimeliness and failure to exhaust
order
to
bring
suit
under
the
federal
anti-
discrimination statutes, Plaintiff was first required to file a
Charge of Discrimination with the EEOC within, at the very most,
300 days of the alleged discrimination.
See 42 U.S.C. § 2000e-
5(e)(1), (f)(1) (Title VII); 29 U.S.C. § 626(d)(1) (ADEA); 42
U.S.C.
§
12117(a)
(ADA);
42
U.S.C.
§
2000ff-6(a)(1)
(GINA).
Here, Henke’s charge, which was filed on September 25, 2012,
accused
BEGO
USA
March 1, 2011.
the
events
Henke’s
of
discrimination
between
May
31,
(Ex. 4 to Def.’s Mot. to Dismiss.)
complained
filing,
the
of
EEOC
occurred
more
properly
than
300
dismissed
2006
and
Because all
days
her
before
charge
as
untimely.
Plaintiff’s
Discrimination,
complaint,
alleges
unlike
“ongoing
Henke through May 30, 2012.
Henke’s
retaliatory
(Compl. 7.)
Charge
action”
of
against
At least some of this
conduct occurred within 300 days of Henke’s charge.
However,
because Henke did not include these allegations in her filing
with the EEOC, they are unexhausted.
See Thornton v. United
Parcel Serv., Inc., 587 F.3d 27, 31 (1st Cir. 2009) (“The scope
of the civil complaint is . . . limited by the charge filed with
the EEOC and the investigation which can reasonably be expected
to grow out of that charge.” (internal citation and quotation
marks
omitted)).
Similarly,
Plaintiff’s
GINA
claim
is
unexhausted
declined
to
in
light
allege
of
the
fact
discrimination
information in her charge.
that
on
the
Henke
basis
specifically
of
genetic
(Ex. 4 to Def.’s Mot. to Dismiss.)
III. Conclusion
For the foregoing reasons, Defendant’s Motion to Dismiss is
GRANTED.
IT IS SO ORDERED.
/s/ William E. Smith
William E. Smith
United States District Judge
Date: May 29, 2013
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