Beckett v. Prudential Ins. Co. of America, 94-CV-8305.

• Decision Date: 11 May 1995
• Docket Number: No. 94-CV-8305.,94-CV-8305.
• Parties: Dorothea BECKETT, Plaintiff, v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Jeffrey Jack and Gene Farrell, Defendants.
• Court: U.S. District Court — Southern District of New York

893 F. Supp. 234

Dorothea BECKETT, Plaintiff, v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Jeffrey Jack and Gene Farrell, Defendants.

No. 94-CV-8305.

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

May 11, 1995.

COPYRIGHT MATERIAL OMITTED

Alvin Dorfman, Rebecca A. Sheehan, Law Offices of Alvin Dorfman, Freeport, NY, for plaintiff.

Edward Cerasia II, Seyfarth, Shaw, Fair-weather & Geraldson, New York City, for defendant The Prudential Ins. Co. of America.

John A. Cannistraci, New York City, for defendant Jeffrey Jack.

Jonathan S. Sack, Law Offices of Steven Mitchell Sack, New York City, for defendant Gene Farrell.

OPINION

SCHEINDLIN, District Judge.

Plaintiff Dorothea Beckett ("Beckett") brings this action against defendants Prudential Insurance Company of America ("Prudential"), Gene Farrell ("Farrell") and Jeffrey Jack ("Jack") for alleged violations of § 296 of the New York Human Rights Law ("NYHRL"). Plaintiff asserts three causes of action under § 296: (1) "hostile environment" sexual harassment; (2) quid pro quo sexual harassment; and (3) retaliation for complaining of the alleged sexual harassment. Prudential moves to dismiss all of these claims pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6).¹ Defendants Jack and Farrell join in Prudential's motion and additionally move to dismiss under Rules 12(b)(2) and 12(b)(3). Alternatively, Jack and Farrell move under 28 U.S.C. § 1404 to transfer the action to the Southern District of Ohio.

The Court held a hearing on February 21, 1995. For the reasons stated below, Prudential's motion is granted in part and denied in part. Defendants Jack and Farrell's motion to dismiss is granted.

I. BACKGROUND

A. The Parties

Plaintiff commenced this civil rights action against defendants Prudential, Jack and Farrell on October 13, 1994, in Supreme Court, New York County. Pursuant to this Court's diversity jurisdiction, Prudential removed the case to this Court on November 15, 1994.

Plaintiff was a registered representative employed by Prudential from April, 1991 until July, 1992 at Prudential's offices in Marietta and Newark, Ohio. At the time of her employment, plaintiff was a resident of Ohio. Plaintiff is now a resident of West Virginia.

Prudential is a New Jersey company, with its principal place of business in New Jersey. Prudential is engaged in the insurance business and has offices throughout the United States. At all times relevant to the current action, Prudential maintained offices in Marietta, Newark and Zanesville, Ohio.

Defendants Jack and Farrell are citizens of Ohio. Farrell was employed by Prudential as a manager in its Marietta, Ohio office during the times relevant to this action. Jack was employed by Prudential as a district manager at Prudential's district offices in Zanesville, Ohio.

B. The Sexual Harassment Claims

Beckett alleges that during her employment with Prudential in Ohio she "was continually subjected to the sexual advances, sexually explicit comments and other forms of sexual harassment of defendants, Farrell and Jack, creating an extremely hostile work environment while on the job and during work hours." Complaint at ¶ 7. Beckett further alleges that in or about June, 1991, she "acquiesced to defendant Farrell's requests and had sexual relations with the defendant in her home" in Ohio. Id. at ¶ 10. Between August, 1991 and May, 1992, plaintiff claims she engaged in sexual relations with Farrell in her Ohio home and the Marietta office. Beckett also alleges that from May, 1991 through July, 1992, Jack repeatedly made sexually offensive comments to her at both the Marietta and Zanesville, Ohio offices of Prudential. In May, 1992, plaintiff requested a transfer from the Marietta, Ohio office. In June, 1992 she began working at Prudential's office in Newark, Ohio until she resigned in July, 1992.

Beckett claims that defendants' conduct constituted sexual discrimination by creating a hostile and abusive work environment. Plaintiff further alleges that this conduct had the purpose and effect of unreasonably interfering with her work and creating a dangerous, highly intimidating, hostile and offensive work environment. Id. at ¶ 41. Finally, Beckett alleges that defendants jointly and severally violated § 296 of the NYHRL due to Farrell's quid pro quo sexual harassment, which included his overt and implicit demands that Beckett accept his sexual advances as a condition of remaining and advancing in Prudential's employ. Id. at ¶ 42.

C. The Retaliation Claims

In July, 1992, Beckett asserts that she began making plans to move to Long Island, New York. Id. at ¶ 28. At that time, Beckett travelled to Long Island and met with Ronald Sofoul, the district manager of Prudential's office in West Babylon, New York, to discuss employment with that office. Mr. Sofoul told her that he would like to hire her as a representative but that she would first be required to quit her job at the Newark office of Prudential. Id.

After returning to Ohio, Beckett told Jack that she planned to resign because she had been offered a position at the West Babylon office. Jack advised Beckett that Mr. Sofoul could not hire her for at least six months because Prudential's employment regulations restrict the hiring of former agents who quit and seek to be rehired by Prudential. Id. at ¶ 29. Following this discussion, Beckett allegedly contacted Sofoul to discuss this "6 month" rule. Beckett maintains that Sofoul advised her that the rule would not prevent him from hiring her. Id. at ¶ 30.

In the late summer of 1992, plaintiff began spending time at the New York office, preparing for her New York State insurance and "Blue Sky" exams and making "x-dating" calls for appointments with prospective clients. Id. at ¶ 31. The West Babylon Office was designated as plaintiff's sponsor for the Blue Sky Exam. Beckett further maintains that in September, 1992, she received a letter from Sofoul explaining that he would be unable to rehire her due to the "6 month" rule. According to Beckett, she then reminded Sofoul that he had told her that the regulation would not be an obstacle to hiring her. Sofoul gave no response. Id. at ¶ 32.

Beckett claims defendants retaliated against her because Jack and Farrell gave her a "negative recommendation" and "made threatening remarks to Ronald Sofoul in July or August of 1992 ... in direct retaliation for plaintiff's implicit objection" to the alleged sexual harassment by Jack and Farrell. Id. at ¶¶ 33, 37, 44.

II. DISCUSSION

A. The Sexual Harassment Claims

Beckett cannot maintain an action for sexual harassment under either hostile environment or quid pro quo theories. Section 298-a of the NYHRL provides in pertinent part that the NYHRL applies to acts "committed outside this state against a resident of this state ... if such act would constitute an unlawful discriminatory practice if committed within this state." The NYHRL does not provide a non-resident with a private cause of action for discriminatory conduct committed outside of New York by a New York corporation. See Iwankow v. Mobil Corporation, 150 A.D.2d 272, 541 N.Y.S.2d 428, 429 (1st Dept.1989). Moreover, the NYHRL does not provide a cause of action to a New York resident for discriminatory acts committed outside of New York by a foreign corporation. See Hammell v. Banque Paribas, 780 F.Supp. 196 (S.D.N.Y. 1991); Sherwood v. Olin Corporation, 772 F.Supp. 1418 (S.D.N.Y.1991). Here, Beckett was not a resident of New York at the time of the alleged discrimination, and the alleged acts of discrimination were committed in Ohio by foreign defendants. Because the NYHRL does not provide a remedy for actions taken in Ohio against non-residents by foreign defendants, Beckett cannot assert a civil rights claim under the NYHRL.

Although plaintiff cannot maintain a claim for sexual harassment under the NYHRL, she requests this Court to re-examine and reconstrue the language of § 298-a to prevent the "unfair and unreasonably harsh result" of Sherwood and Hammell. Memoranda of Law in Opposition ("Pl. Mem.") at 12-13. The Court declines this request on two grounds. First, "where the statutory language is unambiguous, a court must do no more and no less than apply the language as written." Zaldin v. Concord Hotel, 48 N.Y.2d 107, 113, 421 N.Y.S.2d 858, 397 N.E.2d 370 (1979) (citing People ex rel. New York Cent. and Hudson Riv. R.R. Co. v. Woodbury, 208 N.Y. 421, 424-25, 102 N.E. 565 (1913)). By its terms, of course, § 298-a does not extend the coverage of the NYHRL to out-of-state discrimination committed against non-residents. Second, plaintiff had ample opportunity to pursue her claims in Ohio under the Ohio Fair Employment Practice Law, 41 Ohio Rev.Code Ann. § 4112.01 et seq. (1993). See Prudential's Reply Memorandum ("Pr.Rep.Mem.") at p. 5. Beckett also could have brought a claim under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5. Because plaintiff could have brought her claims in the proper forum but chose not to do so, it is not unfair or harsh to dismiss plaintiff's hostile environment and quid pro quo sexual harassment claims. Accordingly, defendants' 12(b)(6) motion to dismiss Beckett's sexual harassment claims is granted.

B. Personal Jurisdiction Over Jack And Farrell

Jack and Farrell move, pursuant to Fed.R.Civ.P. 12(b)(2), to dismiss for lack of personal jurisdiction. Personal jurisdiction in a diversity action is determined by the law of the forum in which the federal court sits. See Hoffritz for Cutlery, Inc. v. Amajac, Ltd. 763 F.2d 55 (2d Cir.1985). In addition, the exercise of personal jurisdiction must comport with constitutional due process requirements. Intermeat, Inc. v. American Poultry, Inc., 575 F.2d 1017 (2d Cir.1978). Specifically, a defendant must have certain "minimum contacts" with the forum state so that the suit does not offend traditional notions of fair play and substantial justice. See International Shoe Co. v. State of...