Brennan v. Bally Total Fitness

• Decision Date: 16 July 2001
• Docket Number: No. 01 CIV. 0533(SAS).,01 CIV. 0533(SAS).
• Parties: Kathryn BRENNAN, Plaintiff, v. BALLY TOTAL FITNESS, Defendant.
• Court: U.S. District Court — Southern District of New York

Page 408

153 F.Supp.2d 408

Kathryn BRENNAN, Plaintiff, v. BALLY TOTAL FITNESS, Defendant.

No. 01 CIV. 0533(SAS).

United States District Court, S.D. New York.

July 16, 2001.

Mona C. Engel, Law Offices of Robert F. Danzi, Westbury, NY, for Plaintiff.

Jed L. Marcus, Gotta, Glassman & Hoffman, P.A., Roseland, NJ, for Defendant.

OPINION AND ORDER

SCHEINDLIN, District Judge.

Kathryn Brennan brings this civil rights action against her former employer, Bally Total Fitness Corp. ("Bally"), pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 1201 et seq., alleging that she was the victim of sexual harassment and disability discrimination. Bally now moves to dismiss the Complaint and to compel arbitration in accordance with the provisions of its arbitration agreement, the Employee Dispute Resolution Procedure ("EDRP"), and Sections 3 and 4 of the Federal Arbitration Act ("FAA"), 9 U.S.C. §§ 3 and 4. Bally also argues that the Title VII action is untimely. For the reasons set forth below, Bally's motion is denied pending further discovery.

I. FACTUAL BACKGROUND

Brennan began working for Bally in January 1996. See Complaint ("Compl.") ¶ 8. Due to a pattern of harassment and discrimination, Brennan was forced to quit her job in August 2000. See id. ¶ 32. On August 19, 2000, Brennan filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). See id. ¶ 33. On January 8, 2001, the EEOC issued Brennan a Right-to-Sue Letter. See id. This action was commenced two weeks later.

A. The Original EDRP

In December 1998, while employed at Bally, Brennan received a fax requesting that she and her co-workers attend an educational meeting about sexual harassment. See Affidavit of Kathryn Brennan ("Brennan Aff.") ¶ 8. The meeting was run by Fred Infante, the head of Bally's Human Resources Department for the New York Region. See id. On December 17, 1998, Brennan attended this "training session", id. ¶ 9, where the employees were shown a video depicting incidents of sexual harassment. See id.

As soon as the video ended, Infante distributed a lengthy document, the EDRP, which he described as containing procedures for bringing employment discrimination claims.¹ See id. Infante told the employees to quickly review the EDRP, sign it and return it. See id. When someone asked what would happen if the EDRP were not signed and returned, Infante responded that anyone who did not sign the EDRP would not be considered for promotions. See id. ¶ 10.

At that time, Infante left the room for several minutes to make a telephone call. See id. ¶ 11. After Infante returned, he collected the EDRPs, checking aloud that each one was signed before accepting it. See id. Infante never discussed the contents of the EDRP or indicated why the employees had to sign it. See id. ¶ 12. Further, Infante neither offered the employees a sufficient opportunity to review the EDRP, nor recommended that the employees show the document to an attorney before signing it. See id. ¶ 11. Worried about losing her job, Brennan promptly signed and returned the EDRP. See id. Brennan maintains that she did not understand the legal significance of the document, nor was she told that the EDRP would effect her pending complaint against her previous supervisor.² See id. ¶¶ 15-16. Brennan claims that had she known that the EDRP would effect her pending complaint, she would not have signed it. See id. ¶ 16.

Since the time Brennan signed the EDRP, Bally has twice unilaterally modified it. See Infante Cert. ¶ 10. The first modification, EDRP I, occurred in March 1999, and the second, EDRP II, occurred in December 1999. See id. The essential differences between EDRP I and the original EDRP are that Section 16.1³ was modified, a new clause, Section 6.6,⁴ was added and Section 1.4⁵ was deleted from the original EDRP. The essential differences between EDRP I and EDRP II are that Sections 3.1,⁶ 16.1,⁷ and 24.3⁸ in EDRP II were modified and new Sections 6.8⁹ and 8.6¹⁰ of EDRP II were added. Brennan has no recollection of ever being notified of or receiving copies of these modifications. See Brennan Aff. ¶ 14.

II. LEGAL STANDARDS

A. Motion to Dismiss

Dismissal of a complaint for failure to state a claim pursuant to Rule 12(b)(6) is proper only where "`it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim that would entitle [her] to relief.'" ICOM Holding, Inc. v. MCI Worldcom, Inc., 238 F.3d 219, 220 (2d Cir.2001) (quoting Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999)). To properly rule on a 12(b)(6) motion, the court must accept as true all material facts alleged in the complaint and draw all reasonable inferences in the nonmoving party's favor. See ICOM Holding, 238 F.3d 219, 220.

B. Jurisdictional Challenge

A plaintiff's initial burden in defeating a jurisdictional challenge "is dependent upon the procedural posture of the litigation." Orobia Eng. S.R.L. v. Sorin Nacht, No. 97 Civ. 4912, 1998 WL 730562, at *2 (S.D.N.Y. Oct. 19, 1998). Although "a plaintiff bears the burden of establishing jurisdiction over the defendant by a preponderance of the evidence, the plaintiff need make only a prima facie showing that jurisdiction exists prior to the holding of an evidentiary hearing." Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 196 (2d Cir.1990).

In determining whether such a showing is satisfied, a district court may look at materials other than those contained within the complaint. See LeBlanc v. Cleveland, 198 F.3d 353, 356 (2d Cir. 1999) ("[W]here jurisdictional facts are placed in dispute, the court has the power and obligation to decide issues of fact by reference to evidence outside the pleadings, such as affidavits."). Appropriate circumstances for holding a hearing exist when the "proffered evidence is so conflicting and the record is rife with contradictions." Foster-Miller Inc. v. Babcock & Wilcox Canada, 46 F.3d 138, 145 (1st Cir. 1995); see also Cheyenne Autumn Inc. v. Mine and Bill's, No. 94 Civ. 4011, 1995 WL 366388, at *2-4 (S.D.N.Y. June 19, 1995) (evidentiary hearing warranted where the jurisdictional issue turned on which version of the facts the court should accept). Although a court must dismiss a case if it does not have jurisdiction, see Ruhrgas A.G. v. Marathon Oil Co., 526 U.S. 574, 577, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999), "a district court deciding [such a motion] `has considerable procedural leeway.'" Orobia Eng., 1998 WL 730562, at *2 (quoting Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir.1981)).

III. DISCUSSION

A. Statute of Limitations

Title VII requires a plaintiff to file a charge of discrimination with the EEOC within 180 days of the alleged unlawful employment action or, if the plaintiff has already filed the charge with a state or local equal employment agency, within 300 days of the alleged act of discrimination. See 42 U.S.C. § 2000e-2(a)(1). Here, plaintiff filed a charge with the EEOC on August 19, 2000. See Compl. ¶ 33. Bally thus argues that because plaintiff is limited to acts of discrimination occurring after October 20, 1999, her Title VII action is untimely and must be dismissed. See Defendant's Memorandum of Law in Reply to Plaintiff's Opposition and Cross-Motion to Defendant's Motion to Dismiss Plaintiff's Complaint and Compel Arbitration ("Reply Mem.") at 8. Plaintiff responds that she has alleged a hostile work environment that has existed up until August 2000. See Plaintiff's Sur-Reply Memorandum of Law in Opposition to Defendant's Motion to Dismiss on Statute of Limitations. Plaintiff also states that she has alleged discriminatory acts that occurred within the 300-day period, thus making dismissal improper.¹¹

A claim of hostile work environment does not presuppose a continuing violation. See Bampoe v. Coach Stores, Inc., 93 F.Supp.2d 360, 364 (S.D.N.Y.2000) ("[H]ostile work environment claims fare no differently under `continuing violation' analysis than do other claims grounded in Title VII."). Accordingly, plaintiff is limited to post-October 20, 1999 acts of discrimination unless she can prove a continuing violation on Bally's part.

The continuing-violation exception "`extends the limitations period for all claims of discriminatory acts committed under an ongoing policy of discrimination even if those acts, standing alone, would have been barred by the statute of limitations.'" Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir.1998) (quoting Annis v. County of Westchester, 136 F.3d 239, 246 (2d Cir.1998)). "A continuing violation may be found where there is proof of specific ongoing discriminatory polices [sic] or practices, or where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice." Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir.1994). "Where a continuing violation can be shown, the plaintiff is entitled to bring suit challenging all conduct that was a part of that violation, even conduct that occurred outside the limitations period."¹² Id.

Plaintiff alleges that several times she complained of harassment to Bally superiors who took no corrective action. See Compl. ¶¶ 10, 16, 20. Plaintiff also alleges that Bally had actual knowledge of the hostile work environment in each of its clubs and promoted sexual harassment through its policies of hiring and training managers. See id. ¶ 28. At this stage of the litigation, plaintiff's allegations must be presumed true. Accordingly, plaintiff has alleged sufficient facts to support the application of the continuing-violation exception.¹³ Plaintiff's sexual harassment claims will therefore not be dismissed as time-barred.

B. Enforcement of the EDRP

The FAA provides that "an agreement in writing to submit to arbitration an...