Dodd v. My Sisters' Place, Inc.

Background

Marcus Andre Dodd, proceeding without a lawyer and without paying the filing fee, brought employment-discrimination and retaliation claims under Title VII of the Civil Rights Act of 1964, Section 1981 of the Civil Rights Act of 1866, the Americans with Disabilities Act, and the New York State Human Rights Law. He alleged that My Sisters’ Place, Inc. (MSP), its chief executive officer Karen Cheeks-Lomax, board co-chair Thomas Rice, and other board members discriminated against him while he was MSP’s chief financial officer and terminated him after he complained about discrimination.

Dodd alleged that Rice subjected him to unfair scrutiny and disrespect, that he complained to Cheeks-Lomax about Rice’s conduct, and that MSP hired an investigator who found no basis for racial discrimination. Dodd was terminated on July 20, 2021. He alleged that Cheeks-Lomax and Robert R. Gheewalla told him he was being terminated for using company funds for personal purposes, while Dodd maintained that the consultants had performed legitimate work related to his job.

Motions and applicable standard

The moving defendants—Robert R. Gheewalla, Suzanne Seiden, Barbara Raho, Linda Purvis, Evan J. Cohen, Cheryl Greenberg, Peter Cutaia, Maria Faustino, Dania Jones-Brown, and Christina Debonis—moved to dismiss under Federal Rule of Civil Procedure 12(b)(6). Under that rule, the court assesses whether the complaint alleges enough factual content to make the claims legally plausible, accepting well-pleaded facts as true and drawing reasonable inferences for the plaintiff. Because Dodd was proceeding without a lawyer, the court read his filings liberally but did not supply facts that he had not alleged.

Dodd also requested permission to amend his complaint in his opposition to the motion. Defendants My Sisters’ Place, Inc., Karen Cheeks-Lomax, and Thomas Rice had answered and did not join the motion. Hilary Tuohy had not yet been served.

Discrimination claims against the board defendants

The court dismissed Dodd’s Section 1981 discrimination claims against the board defendants. Section 1981 prohibits certain race discrimination in contracting, including employment discrimination. To hold an individual liable, a plaintiff must plausibly allege that the person was personally involved in the discriminatory conduct or was grossly negligent in supervising it or failed to act after learning about it.

The court concluded that Dodd had not plausibly alleged that Gheewalla, Seiden, Raho, or Purvis personally treated him differently because of his race or made discriminatory comments to him. His allegations focused primarily on Rice’s conduct. General allegations that the board defendants had authority to affect his employment did not establish the required affirmative connection to the alleged discrimination.

The court also found that Dodd had not plausibly alleged that these defendants knew about the alleged discrimination early enough to be responsible for failing to address it. Dodd alleged that he complained to Cheeks-Lomax, but he did not allege that he complained directly to the board defendants or that Cheeks-Lomax shared his complaints with them. The court noted that MSP hired an independent investigator within two days after Dodd’s June 1 complaint and that the investigator concluded there was no basis for racial discrimination by Rice.

Retaliation claims against the board defendants

The court dismissed Dodd’s Section 1981 retaliation claims against Seiden, Raho, and Purvis, but allowed the Section 1981 retaliation claim against Gheewalla to proceed. A retaliation claim requires a protected complaint about unlawful discrimination, an adverse employment action, and a causal connection between the two. For individual liability under Section 1981, the defendant must also have been personally involved in the retaliation.

Dodd alleged that Seiden, Raho, and Purvis approved or authorized MSP’s retention of AlixPartners to investigate him, but the court found that this allegation, without more, did not plausibly show that they participated in retaliation or knew that the investigation was intended to conceal an unlawful termination.

The court reached a different conclusion as to Gheewalla. Dodd alleged that Gheewalla joined Cheeks-Lomax in the meeting where Dodd was terminated and had obtained evidence of alleged misconduct without first asking Dodd whether there was a legitimate business purpose for the expenses. The court held that these allegations were sufficient at the pleading stage to state a Section 1981 retaliation claim.

The court dismissed Dodd’s principal NYSHRL retaliation claims against the board defendants because he had not plausibly alleged that any of them owned MSP or individually had the authority to fire him or control his conduct. But the court allowed Dodd’s NYSHRL claim against Gheewalla for aiding and abetting retaliation to proceed. The court found that Dodd plausibly alleged Gheewalla participated in the termination, knew about Dodd’s complaint, and shared MSP’s alleged retaliatory intent.

Leave to amend and final dispositions

The court denied Dodd’s request for leave to amend without prejudice because he had not submitted a proposed second amended complaint or explained what changes he would make. The court permitted him to file a new motion for leave to amend accompanied by a proposed second amended complaint, while making clear that permission to file that motion was not a grant of leave to amend.

The court stated that Dodd could not reassert claims against Cohen, Greenberg, Cutaia, Faustino, Jones-Brown, or Debonis because he had agreed to waive those claims and the complaint did not indicate that valid claims could be stated against them. The clerk was instructed to terminate those six defendants. The court also cautioned that Dodd’s claims against Tuohy appeared to have the same defects as his claims against Seiden, Raho, and Purvis, although Tuohy had not moved to dismiss.

The court granted in part and denied in part the motion to dismiss. Dodd’s claims against Gheewalla for retaliation under Section 1981 and aiding and abetting retaliation under the NYSHRL may proceed; all other claims against the moving defendants were dismissed. The court denied Dodd’s cross-motion for leave to amend without prejudice to refiling it with a proposed second amended complaint. Gheewalla’s deadline to respond to the first amended complaint was stayed pending further order.