Hicks v. Ibm

• Decision Date: 16 April 1999
• Docket Number: No. 98 Civ. 5228 (CM).,98 Civ. 5228 (CM).
• Citation: 44 F.Supp.2d 593
• Parties: Brenda HICKS, Plaintiff, v. IBM, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

Page 593

44 F.Supp.2d 593

Brenda HICKS, Plaintiff, v. IBM, et al., Defendants.

No. 98 Civ. 5228 (CM).

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

April 16, 1999.

Sheri M. Hatton, Sussman, Bergstein & Wotorson, Goshen, NY, for Brenda Hicks, plaintiff.

Jay E. Gerber, Davis Weber & Edwards, P.C., New York City, for IBM, defendant.

John Houston Pope, Davis Weber & Edwards, New York City, for defendants.

MEMORANDUM DECISION AND ORDER GRANTING DEFENDANT RICKER'S MOTION TO DISMISS PLAINTIFF'S CLAIM FOR RELIEF UNDER SECTION 296(6) OF THE NEW YORK STATE EXECUTIVE LAW AND OTHERWISE DENYING THE INDIVIDUAL DEFENDANTS' MOTION TO DISMISS

McMAHON, District Judge.

Plaintiff Brenda Hicks, who is half Native American and half African American, brought this employment discrimination claim against her current employer IBM, and against four employees, for violation of 42 U.S.C. § 1981 and New York's Executive Law §§ 296 and 297. The complaint alleges that the four individual Defendants implemented racially discriminatory job assignments, failed to provide commensurate training, and permitted the existence of a racially oppressive work environment. The individual Defendants have filed this motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, on the grounds that neither 42 U.S.C. § 1981 nor the relevant sections of the Executive Law give rise to a claim against an individual as opposed to a contracting party. Defendant IBM has not joined in the motion. For the reasons that follow, the motion is denied.

Background

The complaint alleges as follows: since 1983, Plaintiff has been an employee of IBM, assigned to the MET laboratory located in East Fishkill, New York. (Cmplt.¶ 9.) During her years at IBM Fishkill, she has received positive reviews and, in 1993, was promoted from Production Operator to Senior Lab Technician. (Complt.¶¶ 10, 37.)

In January of 1996, Plaintiff alleges that she began experiencing racial and national origin discrimination. (Cmplt.¶ 11.) Plaintiff contends that Defendant Marty Ricker. ("Ricker"), a laboratory engineer and Plaintiff's assigned mentor, made inappropriate remarks regarding Plaintiff's race and gender and on one occasion pulled her hair. (Cmplt. ¶¶ 12-16.) Plaintiff alleges that Ricker made comments about Plaintiff's race such as "send them to school, clean them up and they still belong on the cotton field" and "I'm tired of black people taking taxes." (Cmplt. ¶ 12.) Plaintiff also asserts that Ricker, in the presence of Plaintiff, made inappropriate remarks about Blacks on welfare, and that Ricker asked her if her son owned a "boom box," a question that Plaintiff alleges demonstrates his racial stereotyping. (Cmplt. ¶¶ 14, 16.) Plaintiff asserts that these remarks incited racial comments from other employees, thereby creating a hostile work environment. (Cmplt. ¶ 42.) In late 1996, Plaintiff's entire department was required to attend diversity training (Cmplt. ¶ 18), but Plaintiff alleges that the employees' inappropriate remarks continued after the training. (Cmplt. ¶ 19, 21.) Plaintiff also alleges that Ricker failed to mentor her because of her race and national origin. (Cmplt. ¶ 45.)

Each time a racially offensive incident occurred, Plaintiff notified her lab manager, Defendant George Walker ("Walker"). (Cmplt. ¶¶ 17, 22.) Plaintiff alleges that both Ricker and Walker failed to assign her diverse work assignments in comparison to her Caucasian co-employees. (Cmplt. ¶ 45.) Further, Plaintiff asserts that Walker failed to take adequate steps to alleviate the harassment. (Cmplt. ¶ 28.)

In April of 1998, Plaintiff reported her complaints to Defendant J.J. Sinnott ("Sinnott"), Vice President of Human Resources. (Cmplt. ¶ 29.) Sinnott assigned the matter to Defendant Dr. Katherine Frase ("Frase"), another Vice President of Human Resources. (Cmplt. ¶ 30.) Plaintiff alleges that Frase failed to make any meaningful investigation and recommendation for corrective action. (Cmplt. ¶ 31.) Sinnott established a procedure for Plaintiff to meet with Walker on a weekly basis to report the work that Plaintiff was assigned and whether it had been completed. (Cmplt. ¶ 34.) Plaintiff contends that this procedure resulted in micro-management of her work and that Walker threatened her continued employment with IBM. (Cmplt. ¶¶ 34, 35.)

Plaintiff subsequently brought this action alleging that IBM and the individual Defendants, Ricker, Walker, Sinnott, and Frase have violated 42 U.S.C. § 1981 and New York Executive Law §§ 296 and 297.

Discussion

On a motion to dismiss pursuant to FED. R.CIV.P. 12(b)(6), this court must accept as true the factual allegations in the complaint and draw all reasonable inferences in favor of the plaintiff. See Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir.1994). The court should grant a motion to dismiss only if, after viewing plaintiff's allegations in a favorable light, it appears beyond doubt that Plaintiff can prove no set of facts in support of her claim. See Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir. 1994).

Individual Liability under § 1981

42 U.S.C. § 1981 states:

(a) All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefits of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

(b) For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship.

(c) The rights protected by this section are protected by impairment by nongovernmental discrimination and impairment under color of state law.

Section 1981 was passed under the Civil Rights Act of 1866 to implement the 13th Amendment and to prohibit all discrimination based on race. See Jett v. Dallas Independent School District, 491 U.S. 701, 713-714, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989). As construed by the courts for many years, § 1981 provided protection only to the process of making the employment contract, and therefore did not give rise to claims of racial or ethnic discrimination that occurred during the contractual relationship. See Patterson v. McLean Credit Union, 491 U.S. 164, 176, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). However, the Civil Rights Act of 1991 broadened § 1981 to include performance of the contract as part of the phrase "make and enforce contracts." See 42 U.S.C. § 1981(b). Thus, acts of discrimination that occur at any time during the contractual relationship can also give rise to liability under § 1981.

Defendants assert that, by keeping the language "make and enforce contracts," Congress intended that § 1981 apply only to employers, and that individual employees of a corporation, who are not parties to the underlying employment contract, cannot be held liable under § 1981. As both parties concede, the issue of whether § 1981 provides for individual liability has not been clearly resolved and there is no controlling authority in the Second Circuit. Defendants contend, however, that individual liability under § 1981 would be inconsistent with the Court of Appeals' decision in Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir.1995).

In Tomka, the court concluded that Title VII of the Civil Rights Act of 1964 did not contemplate imposing liability on individuals employed by an "employer." After analyzing the legislative history of Title VII, the court rationalized that finding individual liability would lead to results that Congress never intended. See id at 1314. There is no mention, for example, of agency liability in the floor debates, implying that Congress did not contemplate it under Title VII. See id. Further, the court found that Congress could not have meant to create a situation where the plaintiff could settle with the employer and leave the defendant employees to bear the burden of the judgment. See id. at 1315.

The Defendants argue that this rationale applies equally to the amendments to § 1981. Defendants assert that Congress could not have intended to expose individuals to liability by adding "performance" under § 1981 when they could not be held liable under Title VII. In effect, Defendants argue that § 1981 is co-extensive with Title VII in the area of employment contracts.

However, in reaching its conclusion that Title VII did not contemplate individual liability, the court in Tomka took pains to distinguish § 1981 from Title VII. Title VII, for example, established limitations on damages according to employer size — exempting employers with less than fifteen employees. See Tomka, 66 F.3d at 1315. Thus, the court reasoned that if Congress had intended to encompass individual liability under Title VII, it would have included individuals in the calibrations and discontinued the exemption. See id. There are no corresponding limitations on damages under a § 1981 claim. See id. at 1316. Further, the court recognized that Title VII and § 1981 give rise to distinct causes of action. See id. The Tomka majority also acknowledged the dissent's note that employer-entities and their agents can face unlimited liability under 42 U.S.C. § 1981. See Tomka, 66 F.3d at 1316.

The Second Circuit concluded that the "significant differences in the statutory enforcement mechanism, coverage, and remedial provisions of § 1981, as distinguished from Title VII, reveal that the breadth of one statute provides no support for divining the intent of Congress in limiting the coverage of the other." Id. at 1317. Thus, the court's analysis of the distinction between Title VII and § 1981 and its affirmation of the "breadth" of the latter, strongly suggest that individuals can...