Jenkins v. Arcade Bldg. Maintenance

• Decision Date: 06 April 1999
• Docket Number: No. 98 Civ. 3133(RWS).,98 Civ. 3133(RWS).
• Citation: 44 F.Supp.2d 524
• Parties: Kathleen JENKINS, Plaintiff, v. ARCADE BUILDING MAINTENANCE, Initial Cleaning Service, Local 32B-32J, Petar Dedovic and Argirre Lolovic, Defendants.
• Court: U.S. District Court — Southern District of New York

44 F.Supp.2d 524

Kathleen JENKINS, Plaintiff, v. ARCADE BUILDING MAINTENANCE, Initial Cleaning Service, Local 32B-32J, Petar Dedovic and Argirre Lolovic, Defendants.

No. 98 Civ. 3133(RWS).

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

April 6, 1999.

COPYRIGHT MATERIAL OMITTED

Joan Franklin Mosley, New York City, for plaintiff.

Harry Weinberg, New York City, for defendants.

OPINION

SWEET, District Judge.

In this action alleging discrimination on the basis of race, color, national origin, and gender, and retaliation for making such claims, in violation of 42 U.S.C. § 1981, and conspiracy in violation of 42 U.S.C. § 1985, defendants Initial Contract Serviced ("Initial") — sued as "Initial Cleaning Service" — Petar Dedovic ("Dedovic"), and Argirre Lolovic ("Lolovic") (collectively, "Defendants") have moved, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the complaint of plaintiff Kathleen Jenkins ("Jenkins"). For the reasons set forth below, the motion is granted, the complaint is dismissed, and Jenkins is granted leave to replead in accordance with this decision.

Parties

Jenkins is an African American woman and a New York resident.

Defendant Arcade Building Maintenance ("Arcade") was Jenkins' employer "during the relevant period leading to her discharge" on May 3, 1995. (Compl.¶ 3.)

Initial is the successor company to Arcade, "with reference to at least the latter's building maintenance functions, or some of them." (Compl.¶ 4.)

Dedovic was, at the time relevant to this action, the building supervisor for Arcade and Initial.

Lolovic was, at the time relevant to this action, supervisor for Arcade and Initial.

Defendant Local 32B-32J Service Employees International Union, AFL-CIO, is the labor organization to which Jenkins belonged.

Prior Proceedings

Jenkins filed her complaint ("Complaint") in this action on May 1, 1998. The instant motion was filed on November 3, 1998, and was considered fully submitted on November 25, 1998.

Facts

In considering a motion to dismiss, the facts alleged in the complaint are presumed to be true and all factual inferences must be drawn in the plaintiff's favor and against the defendants. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir. 1993); Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir.1989); Dwyer v. Regan, 777 F.2d 825, 828-29 (2d Cir.1985). Accordingly, the factual allegations considered here and set forth below are taken from Jenkins' Complaint and do not constitute findings of fact by the Court. They are presumed to be true only for the purpose of deciding the present motion.

Jenkins was hired by Arcade as a cleaner in 1990. In 1993, she filed a complaint against Arcade with the New York City Human Rights Commission ("NYCHRC") and the Equal Employment Opportunity Commission ("EEOC"), charging it with discrimination.

According to Jenkins, subsequent to filing the complaint and continuing to her discharge, she was harassed by Defendants with regard to her building assignments, work assignments, and floor assignments. Additionally, she was battered and called names. Jenkins moreover asserts that her seniority was being manipulated and others with less seniority were permitted to take precedence over her with reference to building assignments, work assignments, and lay-offs.

Jenkins submits that she was laid-off and never recalled because she had complained to the EEOC and NYCHRC about the discrimination she faced at her job. Jenkins contends that non-African Americans, as well as persons with less seniority who never complained about discrimination, have been recalled.

Jenkins alleges that the discrimination to which she was subjected was based on race, color, national origin, and sex in violation of § 1981. She also alleges that Defendants retaliated against her because of her race, color, national origin, and sex in violation of § 1981. Finally, the Complaint asserts that Defendants conspired amongst each other against Jenkins on the basis of her race, color, and national origin in violation of § 1985.

Discussion

I. Standard for Reviewing a 12(b)(6) Motion

In deciding the merits of a motion to dismiss for failure to state a claim, all material allegations composing the factual predicate of the action are taken as true, for the court's task is to "assess the legal feasibility of the complaint, not assay the weight of the evidence which might be offered in support thereof." Ryder Energy Distribution v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984) (quoting Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir.1980)). Rule 12(b)(6) imposes a substantial burden of proof upon the moving party. A court may not dismiss a complaint unless the movant demonstrates "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989); Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

Additionally, on a Rule 12(b)(6) motion, consideration is limited to the factual allegations in the complaint, "to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiff['s] possession or of which plaintiff[] had knowledge and relied on in bringing suit." Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir.1993); see Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir.1991). For this reason, the affidavit of Brendan Carr in support of the motion to dismiss will not be considered.

II. Jenkins' Causes of Action Brought Pursuant to § 1981 Are Dismissed

According to Defendants, Jenkins' First and Second Claims for Relief, alleging violations of § 1981, cannot lie because they contain solely conclusory allegations of discrimination and retaliation and have been filed beyond the period allotted by the statute of limitations.

A. Jenkins Has Failed to State a Prima Facie Case for Discrimination Based on Race, Color, and National Origin or for Retaliation

Section 1981 provides:

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 benefit 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.

42 U.S.C. § 1981. To state a claim under § 1981, the following must be alleged: "(1) the plaintiff is a member of racial minority; (2) an intent to discriminate on the basis of race by the defendant; and (3) the discrimination concerned one or more of the activities enumerated in the statute (i.e., make and enforce contracts, sue and be sued, give evidence, etc.)." Mian v. Donaldson, Lufkin & Jenrette Securities Corp., 7 F.3d 1085, 1087 (2d Cir.1993).

The essential elements of the claim are actions that were racially motivated and purposefully discriminatory. See General Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 391, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982). In order to survive a motion to dismiss, "the events of the intentional and purposeful discrimination, as well as the racial animus constituting the motivating factor for the defendant's actions must be specifically pleaded in the complaint." Yusuf v. Vassar College, 827 F.Supp. 952, 955 (S.D.N.Y.1993), aff'd in part and vacated in part, 35 F.3d 709 (1994); see Albert v. Carovano, 851 F.2d 561, 571-72 (2d Cir.1988). Conclusory or naked allegations will not suffice. See Mian, 7 F.3d at 1088 (dismissing § 1981 claim and stating that "[a]t this point, Mian's complaint fails to offer more than conclusory allegations that he was discriminated against because of his race"); Pointer v. Columbia University, No. 95 Civ. 8418, 1997 WL 86387, at *5 (S.D.N.Y. Feb.28, 1997) ("The Court finds that Plaintiff fails to state a claim under section 1981 ... because she does not allege any facts supporting an inference that this poor treatment was motivated by race discrimination."). Fact-specific allegations of a causal link between the defendant's actions and the plaintiff's race are required. See Albert, 851 F.2d at 572-73.

To state a Prima facie case for retaliation, the plaintiff "must show that [she] was engaged in a protected activity [of which the employer was aware]; that [she] suffered an adverse employment decision; and a causal connection between the protected activity and the adverse employment decision." Taitt v. Chemical Bank, 849 F.2d 775, 777 (2d Cir.1988) (citing DeCintio v. Westchester County Medical Ctr., 821 F.2d 111, 115 (2d Cir.1987)).

According to Jenkins, as set forth in the Complaint, she was harassed by "the defendant companies' supervisors, by name calling, battering, disparate work assignments and ultimately by discharging plaintiff on May 3, 1995." (Compl.¶ 11.) Jenkins also contends that "her seniority was being manipulated to allow others with less seniority to take precedence over her with reference to building assignments, work assignments and lay-offs." (Compl.¶ 14.) Finally, she submits that she "has never been recalled although persons with less seniority than hers and persons who have not complained about the discriminatory actions of the defendants have been recalled and person [sic] who are non-African American have been recalled." (Compl.¶ 15.)

The Complaint lacks allegations of racial animus and intentional discrimination necessary to state a cognizable claim under § 1981. It is devoid of facts to support Jenkins' determination that the actions taken by Defendants...