PETTIT v. GOODYEAR DUNLOP TIRES NORTH AMERICA

ELFVIN, Judge.

Plaintiff commenced this action November 13, 2000 alleging that defendant Goodyear Dunlop Tires North America, Ltd. ("Goodyear") had discriminated against her on the basis of her sex, race and national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") and New York's Human Rights Law, N.Y. Exec. Law § 296, and had intentionally inflicted emotional distress upon her. This Court has jurisdiction pursuant to 28 U.S.C. § 1331, 1343(4) and 1367(a). Defendant filed a motion to dismiss the plaintiff's Title VII claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("FRCvP") on the basis that plaintiff had failed to file a timely charge of discrimination with the Equal Employment Opportunity Committee ("EEOC"), in response to which plaintiff has filed a cross-motion seeking to amend the Complaint pursuant to FRCvP 15(a) to add an additional cause of action under 42 U.S.C. § 1981. Such motions are presently before this Court for disposition.

Plaintiff was employed as a night-shift supervisor at Goodyear from June 1992 until April 23, 1999. Compl. ¶¶ 8, 10, 28. Her Complaint lists numerous instances of discrimination allegedly perpetrated against her by her co-workers, both her supervisors and her subordinates; the last such incident allegedly occurred April 22, 1999. Id. at ¶ 24(t). Plaintiff filed a charge with the EEOC February 17, 2000 and was issued a right to sue letter August 15, 2000.

Defendant seeks to dismiss plaintiff's Title VII claims for failure to state a claim because the alleged discrimination complained of by plaintiff occurred more than 300 days prior to her filing an EEOC charge.

When ruling on a motion to dismiss pursuant to FRCvP 12(b)(6), this Court must assume the facts alleged by the plaintiff to be true and should not dismiss the Complaint "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Under Title VII a claimant must file a charge of discrimination with the EEOC within 300 days of the occurrence of the allegedly discriminatory conduct. 42 U.S.C. § 2000e-5(e)(1); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996).

Plaintiff filed her charge with the EEOC February 17, 1999, accordingly to be timely any discrimination against plaintiff must have occurred no later than April 23, 1999 — i.e., within 300 days of plaintiff's EEOC charge. Inasmuch as the latest date on which plaintiff claims to have been discriminated against was April 22, 1999 — i.e., 301 days before she filed her EEOC charge, her Title VII claims are untimely. Plaintiff, however, contends that she may nevertheless bring her Title VII claims by availing herself of the continuing violation exception because on April 23, 1999 — her last day of work — "she sent a C.C. mail to Ms. Schmidt from Human Resources and Mr. Rankin explaining that nothing had improved about her continually being harassed. On the same day, plaintiff had a meeting with Mr. Rankin at approximately 8:15 AM about C.C. mail ***." Compl. ¶ 28.

"The continuing violation exception applies when there is evidence of an ongoing discriminatory policy or practice, such as use of discriminatory seniority lists or employment tests. Although discrete incidents of discrimination that are not the result of a discriminatory policy or practice will not ordinarily amount to a continuing violation, 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 a continuing violation may be found. If a continuing violation is shown, a plaintiff is entitled to have a court consider all relevant actions allegedly taken pursuant to the employer's discriminatory policy or practice, including those which would otherwise be time barred." Van Zant, at 713.

Where the continuing violation exception applies, the statutory period of limitations does not begin to run until the occurrence of the last discriminatory action. Gomes v. Avco Corporation, 964 F.2d 1330, 1333 (2d Cir. 1992).

Defendant counters that the continuing violation theory is inapplicable, however, because plaintiff does not allege that she was discriminated against on April 23, 1999, only that on such day she complained about having been discriminated against in the past and about such having never been remedied.

"A continuing violation cannot be established merely because the claimant continues to feel the effects of the time-barred discriminatory act. Nor can an otherwise barred claim be rendered timely by the mere continuation of the claimant's employment. Rather the claimant must allege both the existence of an ongoing policy of discrimination and some non-time-barred acts taken in furtherance of that policy." Harris v. City of New York, 186 F.3d 243, 250 (2d Cir. 1999).

A complaint made within the statutory period of limitations about past discrimination is insufficient to serve as an anchor to bring in untimely incidents of discrimination under the continuing violation theory. Burrell v. City University of New York, 995 F. Supp. 398, 407 (S.D.N.Y. 1998). See also Speer v. Rand McNally Co., 123 F.3d 658, 664 (7th Cir. 1997) (for the continuing violation theory to be tenable there must have been a timely incident of discrimination to serve as an "anchor" to bring in the earlier incidents of discrimination); Lambert v. Genesee Hospital, 10 F.3d 46, 53 (2d Cir. 1993), cert. denied, 511 U.S. 1052 (1994) (EEOC charge must be timely as to at least one discriminatory act for continuing violation exception to apply); Lloyd v. WABC-TV, 879 F. Supp. 394, 399 (S.D.N.Y. 1995) (same). "If a [discrimination] claim were rendered timely by an ongoing failure to remediate, even after the [discrimination] had ceased, the theory would become an automatic continuing violation, even when the last act of [discrimination] occurred before the limitations period." Burrell, at 407. See also Speer, at 664 (mere failure to remedy past discrimination within statutory period of limitations is not an act of discrimination which can serve as an anchor to bring in previous incidents of discrimination); Provencher v. CVS Pharmacy, Division of Melville Corporation, 145 F.3d 5, 15-16 (1st Cir. 1998) (failure to remediate past discrimination is not itself an act of discrimination). Accordingly, because plaintiff was not discriminated against on April 23, 1999 — the only day within the statutory period of limitations that she was employed by defendant — her Title VII claims are untimely and must be dismissed.

With the dismissal of her Title VII claims, no federal causes of action remain in this case; however, plaintiff has moved for leave to file an amended complaint to add a new federal cause of action under 42 U.S.C. § 1981 arguing that

"[d]uring the course of [her] employment, she has been subjected to demeaning remarks and jokes based on her race, Hispanic, and national origin, Puerto Rican. (Most Puerto Ricans, including plaintiff, are racially Hispanic.) These remarks have been made both by her subordinates and her supervisors. Despite her complaints about this harassment, no action has been taken to improve her work environment." Mem. of Law in Supp. of Pl.'s Am. Compl. and in Opp'n to Def's Mot. to Dismiss at 6.

Defendant opposes plaintiff's motion for leave to file an amended complaint on the ground that such would be futile because plaintiff's proposed amended complaint does not state a prima facie case under section 1981. FRCvP 15(a) states that leave to file an amended complaint "shall be freely given when justice so requires" and the Supreme Court has stated that where the "underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, [she] ought to be afforded an opportunity to test [her] claim on the merits." Foman v. Davis, 371 U.S. 178, 182 (1962). However, when the proposed amended complaint fails to state a claim such that it would be defeated by a motion to dismiss, leave to amend should be denied because such would be futile. Foman, at 182; John Hancock Mutual Life Ins. Co. v. Amerford International Corp., 22 F.3d 458, 462 (2d Cir. 1994); Mroz v. Town of Tonawanda, 999 F. Supp. 436, 466 (W.D.N.Y. 1998); Snyder v. Consolidated Rail Corporation, No. 87-CV-1007, 1988 WL 91523, at *1 (N.D.N.Y. Sept. 2, 1988). Accordingly, this Court must review the section 1981 claim which plaintiff desires to raise in her proposed amended complaint to determine whether such would state a cause of action such that granting her leave to amend would not be futile.

Like Title VII, section 1981 provides a cause of action for racial discrimination that creates a hostile work environment; however the applicable period of limitations for section 1981 claims arising in New York is three years and the administrative requirements of Title VII do not apply. Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 69 (2d Cir. 2000); Goss v. Revlon, Inc. 548 F.2d 405, (2d Cir. 1976); Kaiser v. Cahn, 510 F.2d 282, 284 (2d Cir. 1974). To establish a prima facie case under section 1981, a plaintiff must "show (1) that she is a member of a racial minority; (2) an intent to discriminate on the basis of race by defendant; and (3) that the discrimination concerned one or more of the activities enumerated in § 1981." Lauture v. International Business Machines Corporation, 216 F.3d 258, 261 (2d Cir. 2000).

The vast majority of the allegations in plaintiff's Complaint relate however to sexual harassment/gender discrimination and, while such is actionable under Title VII, it is irrelevant to a claim under section 1981, which only covers discrimination on the basis of race. Hawkins v. 1115 Legal Service Care, 163 F.3d 684, 693 (2d Cir. 1998). In her proposed amended complaint, plaintiff alleges that "Defendants [sic] engaged in a pattern and practice of discrimination against plaintiff in violation of Section 1981 through a course of conduct which included discriminatory terms and conditions of employment and a hostile work environment." Proposed Am. Compl. ¶ 62. However, in both her original Complaint and her proposed amended complaint, plaintiff only alleges the occurrence of four incidents of "demeaning remarks and jokes based on ethnic origin" — viz.,

"[I]n or about October 1995, while [she] was cleaning her nails with a knife, supervisor Tim Kendall said `You call that a knife. I thought you Puerto Ricans used bigger knives.'

"On or about March 10, 1998, plaintiff found a picture in her department, which depicted the flag of Puerto Rico with a caption indicating that Puerto Rican citizenship was awarded to an employee who was known for his lack of personal hygiene. Plaintiff had to take it down and give it to Mr. Giglia. No further action was taken.

"On or about May 1, 1998, in the presence of co-workers, including plaintiff's supervisors, supervisor Frank Bystrak shouted to plaintiff, `Hey you still got that purple front door? You know, that Puerto Rican door. Now, all you need are a couple of pink flamingoes to go with it.'

"In or about January 1999, while reviewing scrap rates with Specialist Paul Zelakiewicz, and Factory Technician John Leahy, Mr. Zelakiewicz told an offensive ethnic joke about needing a gun that can shoot `cans — Mexicans, Puerto Ricans, and Africans.' Plaintiff said, `that's enough.' Mr. Zelakiewicz just walked away laughing." Compl. ¶ 21(a)-(d) (emphasis in original).

The same standards used to determine whether a hostile work environment exists under Title VII apply to claims under section 1981 — Whidbee, at 69 — i.e., a "hostile work environment exists `[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment.'" Torres v. Pisano, 116 F.3d 625, 630-631 (2d Cir.), cert. denied, 522 U.S. 997 (1997). Factors used to determine whether a particular workplace is permeated with racial discrimination sufficiently severe or pervasive as to constitute a hostile work environment for purposes of section 1981 include "(1) the frequency of the discriminatory conduct; (2) its severity; (3) whether the conduct was physically threatening or humiliating, or a mere offensive utterance; (4) whether the conduct unreasonably interfered with plaintiff's work; and (5) what psychological harm, if any, resulted." Richardson v. New York State Dept. of Corr. Ser., 180 F.3d 426, 437 (2d Cir. 1999).

"For racist comments, slurs, and jokes to constitute a hostile work environment, there must be more than a few isolated instances of racial enmity, meaning that instead of sporadic racial slurs, there must be a steady barrage of opprobrious racial comments. Thus, whether racial slurs constitute a hostile work environment typically depends upon the quantity, frequency, and severity of those slurs, considered cumulatively in order to obtain a realistic view of the work environment." Schwapp v. Town of Avon, 118 F.3d 106, 110-111 (2d Cir. 1997). See also Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000); Kotcher v. Rosa and Sullivan Appliance Center, Inc., 957 F.2d 59, 63 (2d Cir. 1992).

Based upon the four racial jokes/comments referred to in plaintiff's proposed amended complaint — the first of which is untimely — it cannot be said that her work environment was permeated with racially discriminatory intimidation, ridicule and insult sufficiently severe or pervasive to alter the conditions of her employment and accordingly her motion for leave to file an amended complaint will be denied on the basis of futility. Pursuant to 28 U.S.C. § 1367(c)(3), this Court declines to exercise supplemental jurisdiction over plaintiff's remaining state law claims and such will accordingly be dismissed without prejudice to their being re-raised in a state court.

Accordingly, it is hereby ORDERED that defendant's motion to dismiss is granted, that plaintiff's Title VII claims are dismissed with prejudice, that plaintiff's motion to file an amended complaint is denied, that this Court declines to exercise supplemental jurisdiction over plaintiff's remaining state law claims, that plaintiff's state law claims are dismissed without prejudice and that this case shall be closed in this Court.