Richard v. Bell Atlantic Corporation

Citation946 F.Supp. 54
Decision Date25 November 1996
Docket NumberCivil Action No. 96-02168 (CRR).
PartiesIris RICHARD, Jonathan Barnes, Kareem Abdul-Ali, Rosalyn Baylor, Joseph Bishop, Jr., Edward Brooks, Alvera Bullock, Eric Burden, Wilbert Burgess, Michael Camp, James Carrington, Reginald Clark, Diann R. Cooper, Desta Daggett, Raymond Flowers, Clemantis Fortson, Michael Gillis, Faye Green, Kelvin Gunn, Syed Hassan, Brian Holloway, Marc Houston, Patrick Hunt, Elvin Jackson, Christopher Joseph, Kevin Logan, Vient Aries McKoy, Venida Medlock, Mary Ellen Monk, Clark Philogene, Everse Pullen, Gregory Rosser, Tangy Shields, Leighton Shrouder, William Stellmacher, Thomas Tolson, Lisa Vaughn, Michael Alan Walker, Denise Walton, William Washington, Brent Whitaker, Myra Williams, Ray Williams, Stanley Williams, Gwendolyn Woodard, Erik Wright, and Terence Wynn, Plaintiffs, v. BELL ATLANTIC CORPORATION, Raymond W. Smith, Bruce S. Gordon, Stuart C. Johnson, Edward Sproat, Danny R. Kiser, Anthony T. Murray, Jr., and Roberta Lynch, Defendants.
CourtUnited States District Courts. United States District Court (Columbia)

John W. Hermina, George Hermina, and April Sochan, Hermina Law Group, Laurel, MD, for Plaintiffs.

Vincent Cohen, Hogan & Hartson, Washington, D.C., for Defendants.

MEMORANDUM OPINION

CHARLES R. RICHEY, District Judge.

I. INTRODUCTION

Before the Court in the above-captioned race-discrimination case is the defendants' motion to dismiss, the plaintiffs' opposition thereto, and the defendants' reply thereto. Based on the pleadings, the entire record herein, the law applicable thereto, and for the reasons expressed herein, the Court shall GRANT, with prejudice, the defendants' motion to dismiss the plaintiffs' claims under Title VII and for intentional infliction of emotional distress against defendants Raymond W. Smith, Bruce S. Gordon, Stuart C. Johnson, Edward Sproat, Danny R. Kiser, Anthony T. Murray, Jr., and Roberta Lynch ("the individual defendants"), shall GRANT, without prejudice, the defendants' motion to dismiss the plaintiffs' claims against the individual defendants under 42 U.S.C. § 1981, shall GRANT, without prejudice, the defendants' motion to dismiss the individual defendants for lack of personal jurisdiction, shall GRANT, with prejudice, the defendants' motion to dismiss the plaintiffs' claims for intentional infliction of emotional distress against defendant Bell Atlantic Corporation ("BAC"), shall DENY, without prejudice, the defendants' motion to dismiss the plaintiffs' claims under Title VII and 42 U.S.C. § 1981 against BAC, and shall DENY, without prejudice, the defendants' motion to dismiss BAC for lack of personal jurisdiction. Further, the plaintiffs shall have sixty days to conduct discovery limited to the following three issues: (1) BAC's status as an "employer" under Title VII and 42 U.S.C. § 1981; (2) whether BAC is subject to personal jurisdiction in this Court; and (3) whether the individual defendants are subject to personal jurisdiction in this Court.

If, by the end of the sixty-day period, the plaintiffs have not dismissed their entire complaint, with prejudice, they shall file an amended complaint to correct the deficiencies in their complaint. If the plaintiffs timely file an amended complaint, the defendants shall have an additional fifteen (15) days within which either to answer the amended complaint or to renew their motion to dismiss on the issues decided by the Court without prejudice. Except where the defendants' motion is based solely on the sufficiency of the allegations in the plaintiffs' amended complaint, said motion shall be in the form of a motion for summary judgment pursuant to Fed.R.Civ.P. 56 and shall be based upon a complete, clear and undisputed factual record. Both parties shall comply fully with the requirements of Local Rule 108(h).

II. BACKGROUND

Forty-eight purported current and former employees of BAC have brought a class action complaint against BAC, alleging race discrimination in the terms and conditions of their employment and retaliation. Counts I and III of the complaint allege employment discrimination on account of race and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (1994), as amended. Count II alleges employment discrimination under 42 U.S.C. § 1981 (1994). Count IV alleges a common law claim of intentional infliction of emotional distress.

The Court held a status conference pursuant to Rule 16 of the Federal Rules of Civil Procedure on September 27, 1996. Counsel for the defendants stated that he would be filing a dispositive motion under Rule 12 of the Federal Rules of Civil Procedure, and requested a stay of pre-class certification discovery until the Court's resolution of said motion. The Court granted the defendant's request for a stay, pending resolution of the anticipated Rule 12 Motion. See Order of September 30, 1996.

On October 11, 1996, the defendants filed a motion to dismiss "[p]ursuant to Federal Rule of Civil Procedure 12(b)," arguing that the plaintiffs' complaint fails to allege that the plaintiffs are or were employees of BAC. Instead, the defendants argue, the plaintiffs are actually employees or former employees of several of BAC's wholly-owned subsidiaries, not BAC, and, therefore, BAC must be dismissed from this lawsuit. The defendants also moved to dismiss BAC and the individual defendants under Fed.R.Civ.P. 12(b)(2) for lack of personal jurisdiction, moved to dismiss the individual defendants on the separate grounds that they cannot be held personally liable for employment discrimination under Title VII and that the complaint's allegations are insufficient to state a claim against the individual defendants under 42 U.S.C. § 1981, and moved to dismiss the plaintiffs' claims for intentional infliction of emotional distress on the grounds that they are "subsumed" by their Title VII claims and, in any event, fail to state a claim upon which relief can be granted.

III. DISCUSSION

A. The Plaintiffs Have Not Created A Genuine Issue Of Material Fact That BAC Is Their "Employer" Under Title VII and 42 U.S.C. § 1981, But Will Be Permitted To Undertake Limited Discovery On This Issue.

1. By The Close Of A Sixty-Day, Limited Discovery Period, The Plaintiffs Shall Either Dismiss Their Complaint Or Amend It To Allege The Subsidiaries For Whom The Plaintiffs Are Or Were Employed And To Allege Specifically BAC's Role, If Any, In The Alleged Employment Discrimination.

In the complaint, the plaintiffs allege that BAC is a "Delaware corporation providing telecommunications services in the District of Columbia, among other locations, and is subject to the jurisdiction of this Court." Complaint at ¶ 9. Plaintiffs further allege that BAC "also owns and operates through numerous other entitles such as ... C & P Telephone of Maryland, ... C & P Telephone of Virginia, and Network Services, Inc," and that "[a]ll Bell Atlantic entities are included in the term `Bell Atlantic'." Id. (emphasis added). Paragraphs 17 through 66 of the complaint then set forth each of the named plaintiffs' allegations of discrimination, all of which claim that the plaintiffs either are or were employed by "Bell Atlantic". See Complaint at ¶ 9. Given the plaintiffs' earlier definition of the term "Bell Atlantic," the complaint in effect alleges that each plaintiff was or is employed not only by BAC, but also by each of the subsidiaries. Such an allegation is nonsensical. Accordingly, the plaintiffs shall be ordered to file an amended complaint by the close of a sixty-day, limited discovery period, in which they identify each BAC subsidiary for which each named plaintiff worked or works.

Further, apparently relying on the "operates through" language, the plaintiffs argue that BAC is liable for the alleged discrimination by its subsidiaries under any one of a number of theories of parent corporation liability recognized by the Courts of Appeals. See, e.g., Frank v. U.S. West, Inc., 3 F.3d 1357, 1362 (10th Cir.1993) (noting that there are at least four possible theories under which a parent company may be held liable for the discriminatory acts of its subsidiaries — the integrated enterprise theory, the agency theory, the alter ego theory and the instrumentality theory). However, the complaint contains no allegations detailing the purported integrated relationship between BAC and its subsidiaries sufficient to inform the Court which, if any, of these theories the plaintiffs have invoked. A vague and conclusory allegation that BAC "operates through" its subsidiaries does not suffice. See Alie v. NYNEX Corp., 158 F.R.D. 239, 246-47 (E.D.N.Y.1994) (holding that "plaintiff's vague, conclusory allegation of corporate identity of interest is wholly insufficient to withstand" the parent's motion to dismiss). Accordingly, the plaintiffs shall be ordered to supplement their allegations by the close of the limited discovery period to allege specifically how BAC is liable for discrimination allegedly carried out by or through its subsidiaries.

2. The Defendants' Motion To Dismiss Shall Be Treated As A Motion For Summary Judgment On The Issue Of Whether Actually BAC Employs Or Employed The Plaintiffs.

The defendants have not simply argued that the complaint is deficient on its face. They also have argued that, as a matter of undisputed material fact, the plaintiffs cannot show that BAC can be held liable for discrimination by its subsidiaries. This argument goes not to the quality of the plaintiffs' pleading, but to the factual basis which underpins the complaint. Accordingly, while the defendants have styled their motion as one under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted, it is also a de facto motion for summary judgment pursuant to Fed.R.Civ.P. 56, because the Court is required to look beyond the allegations in the complaint. See Fed.R.Civ.P. 12(b)(6); see also Sargent v....

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