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DASQUE v. NORDSTROM

June 1, 2005.

SERGE DASQUE, Plaintiff,
v.
NORDSTROM, INC., Defendant.



The opinion of the court was delivered by: ANNE THOMPSON, Senior District Judge

MEMORANDUM & ORDER

This matter is before the Court on Defendant's Motion for Summary Judgment [33-1]; Defendant's Motion to Dismiss and Strike the Amended Complaint [41-1]; Plaintiff's Motion Opposing Defendant's Motion to Dismiss and Strike the Amended Complaint [43-1]; and Defendant's Motion to Strike Plaintiff's Opposition to Defendant's Partial Reply to Plaintiff's Opposition to Summary Judgment [44-1]. The Court has decided these motions after considering the parties' written submissions and without oral argument pursuant to Fed.R.Civ.P. 78. For the following reasons, Defendant's motions are granted and Plaintiff's motion is denied.

BACKGROUND

  Plaintiff, a black Haitian male, brings this pro se action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., for employment discrimination. Plaintiff's December 13, 2002 Complaint alleges that his former employer, Nordstrom, Inc. ("Nordstrom"), discriminated against him based on his race, sex, and national origin by failing to promote him, by favoring other employees with regard to scheduling and other matters, by limiting his telephone communications with his supervisor, and by ultimately terminating him. On September 15, 2004, Plaintiff filed an Amended Complaint without leave of Court which added claims of disability discrimination, retaliation, hostile work environment, defamation of character, obstruction of justice, violation of human rights, and conspiracy.

  DISCUSSION

  I. Motion to Strike or Dismiss the Amended Complaint

  Defendant first moves to dismiss or strike Plaintiff's Amended Complaint, arguing that Plaintiff improperly amended his claims without leave of the Court in violation of Fed.R.Civ.P. 15.*fn1 Defendant answered the Complaint on March 15, 2004, and Plaintiff was required to obtain leave of the court or Defendant's written consent in order to amend. Plaintiff did not seek leave of the Court to amend and did not obtain consent of his adversary, who advised Plaintiff that it needed a copy of his proposed amendments before it decided whether to grant consent. Further, Plaintiff did not serve the Amended Complaint on Defendant, as required by Fed.R.Civ.P. 5. For these reasons, the Amended Complaint will be struck.

  Even if the Court were to consider Plaintiff's opposition to Defendant's motion to dismiss or strike as a motion to amend, it appears as if such a motion would be denied as futile. See Foman v. Davis, 371 U.S. 178, 182 (1962). In other words, it appears that the amendments would not be able to withstand a motion to dismiss. Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000).

  Plaintiff's new claims of disability discrimination, retaliation, and hostile work environment cannot stand, as Plaintiff has not exhausted his administrative remedies by filing a charge with the Equal Employment Opportunity Commission or state or local agency, see 42 U.S.C. § 2000e-5; 42 U.S.C. § 12117; see also Churchill v. Star Enterprises, 183 F.3d 184, 190 (3d Cir. 1999); Antol v. Perry, 82 F.3d 1291, 1295 (3d Cir. 1996), and has not demonstrated an equitable basis for modifying this requirement, see Bowen v. City of New York, 476 U.S. 467, 482 (1986); Waiters v. Parsons, 729 F.2d 233, 236 (3d Cir. 1984) (per curiam). Even accepting as true Plaintiff's allegation that an EEOC investigator misled him about the requirements and procedures involved with filing an EEOC complaint, this "does not rise to the level of being prevented in an `extraordinary way' by the EEOC from asserting his rights." See Robinson v. Dalton, 107 F.3d 1018, 1023 (3d Cir. 1997). Thus, equitable tolling is not justified in this case. Although the facts supporting the three new claims occurred before Plaintiff filed his initial Complaint with the EEOC, Plaintiff did not raise these claims until after the EEOC made its determination, did not attempt to amend his complaint to include these claims, and did not make any additional inquiries or attempt to investigate the appropriate procedures for raising these claims after he was allegedly misled by one EEOC employee.*fn2

  Further, although "[a] victim of discrimination is not required to exhaust administrative remedies with respect to a claim concerning an incident which falls within the scope of a prior EEOC complaint or the investigation which arose out of it," Waiters, 729 F.2d at 235, Plaintiff's original factual allegations cannot fairly be said to encompass a claim for retaliation, hostile environment,*fn3 or disability discrimination, and an investigation of those facts would not have yielded evidence of any such claims. Therefore, even if Plaintiff's Amended Complaint was not struck, the Court would deny his attempt to add claims of disability discrimination, retaliaton, and hostile work environment as futile.

  Similarly, the Court would deny as futile Plaintiff's attempt to add claims of defamation of character, conspiracy, obstruction of justice, violation of human rights, and unfair treatment. There are no private rights of action that would allow Plaintiff to proceed with a civil claim based on obstruction of justice, violation of human rights, and unfair treatment outside of the claims he has pled elsewhere in his Complaint. Cf. 29 U.S.C. § 160; 18 U.S.C. §§ 241, 242, 1503, and 2516. As to conspiracy, employees of a corporation acting within the scope of their employment cannot conspire with a corporation or with each other, as they are all considered one entity. Sunkett v. Misci, 183 F. Supp. 2d 691, 722 (D.N.J. 2002). Further, both Plaintiff's conspiracy claim and defamation claim are barred by the statute of limitations, should not be equitably tolled, and do not constitute a "continuing violation" that is within the limitations period. See N.J.S.A. § 2a:14-3.1; Montells v. Haynes, 133 N.J. 282, 286 (1993).

  II. Motion for Summary Judgment*fn4

  Defendant also moves for summary judgment on Plaintiff's discrimination claims in his original Complaint: failure to promote, favoring other employees, limiting telephone access to supervisor Joseph Dubina, and termination. Plaintiff did not oppose Defendant's motion with regard to the failure to promote claim, and the Court will grant Defendant's motion to dismiss the failure to promote claim for this reason.*fn5 The Court turns to the remaining three allegations.

  A party seeking summary judgment must "show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d Cir. 1996). Summary judgment is to be granted against the non-moving party when that party has failed to make a sufficient showing, after discovery, establishing an element of his claim that is essential to his case, and on which the non-moving party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. In reviewing motions for ...


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