Curto v. Medical World Communications, Inc.
| Decision Date | 02 August 2005 |
| Docket Number | No. 03CV6327DRHMLO.,03CV6327DRHMLO. |
| Citation | 388 F.Supp.2d 101 |
| Parties | Lara CURTO, Plaintiff, v. MEDICAL WORLD COMMUNICATIONS, INC., Romaine Pierson Publishers, Inc. f/k/a Romaine Pierson Acquisition Co., John J. Hennessy, James Granato, Daniel Perkins, James King, Robert Issler, and Eugene Conselyea, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Andrew E. Curto, Forchelli, Curto, Forchelli, Curto, Schwartz, Mineo, Carlino & Cohn, LLP, Mineola, New York, Lois Carter Schlissel, Meyer Suozzi English & Klein, P.C., Mineola, New York, for the Plaintiff.
Aron M. Schwartz, Greenbaum, Rowe, Smith, Ravin, Davis & Himmel, LLP, Woodbridge, New Jersey, for the Defendant James King.
James P. Anelli, Elizabeth Wizeman Dollin, St. John & Wayne, L.L.C., Newark, New Jersey, for the Defendants Medical World Communications, Inc., Romaine Pierson Publishers, Inc. f/k/a Romaine Pierson Acquisition Co., John J. Hennessy, James Granato, Daniel Perkins, Robert Issler, and Eugene Conselyea.
Presently before the Court are the motions by defendants Medical World Communications, Inc. ("MWC"), Romaine Pierson Publishers, Inc. f/k/a Romaine Pierson Acquisition Co. ("Romaine Publishers"), John J. Hennessy ("Hennessy"), James Granato ("Granato"), Daniel Perkins ("Perkins"), Robert Issler ("Issler"), Eugene Conselyea ("Conselyea"), and James King ("King") (collectively, "Defendants") to dismiss the Amended and Supplemental Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, the motions are granted in part and denied in part.1
The relevant facts alleged by Plaintiff, which are accepted as true for purposes of this motion, are as follows. Plaintiff, at all time relevant, was a resident of Glenwood Landing, Nassau County, New York. (Am. and Supplemental Compl. ¶ 18.) Plaintiff was hired by Romaine Publishers in 1994, which was then located in Port Washington, New York. (Id. ¶ 27.) In or about August 1995, Romaine Publishers was acquired by MWC. (Id. ¶ 31.) As part of that acquisition, Plaintiff became an employee of MWC. (Id. ¶ 33.) In the Fall of 1996, MWC moved its offices to Westbury, New York and Plaintiff continued her employment at this new location. (Id. ¶ 32.) In May 2002, MWC closed its Westbury office and Plaintiff began to work from a home office established at her residence in New York. (Id. ¶ 38.) While working from home, Plaintiff traveled to MWC's headquarters in New Jersey once a month for, inter alia, meetings and sales training. (Id. ¶ 40.) Commencing in February 2003, Plaintiff was required to work every Monday at MWC's New Jersey office. (Id. ¶ 109.)
Plaintiff alleges that in June 2002, a co-worker, Emily McCardell ("McCardell"), was sexually harassed by Granato while the two were attending a convention in San Diego, California. (Id. ¶¶ 52-68.) While Plaintiff did not witness the alleged harassment, she alleges that she was told by McCardell that Granato was drunk and behaving in a sexually inappropriate manner. (Id. ¶ 64.) Plaintiff further alleges that she reported the incident to Perkins, her supervisor, on July 15, 2002. (Id. ¶¶ 46, 72-74.)
Thereafter, in August 2002, Plaintiff attended another convention where Granato's behavior, including his drinking and sexual harassment of co-workers, was further discussed among Plaintiff, Perkins, McCardell, and Maurice Nogueira, a sales representative. (Id. ¶ 76.) Plaintiff questioned Perkins as to why no action was being taken with regard to Granato, whom she labeled as a "major liability to the company." (Id. ¶¶ 77-78.) Perkins responded by stating that he was tired of Plaintiff "threatening litigation" and fired Plaintiff (Id. ¶¶ 79-81.) Later that evening, Perkins rehired and then again fired Plaintiff. (Id. ¶ 82.) The following day, Perkins rehired Plaintiff. (Id. ¶ 83.) Immediately thereafter, on or about August 28, 2002, Plaintiff was stripped of her title as Associate Publisher without any explanation. (Id. ¶ 84.)
Plaintiff alleges that over the ensuing months and as a direct result of her reporting the alleged McCardell-Granato incident, Defendants instituted a systematic effort of unjustifiably criticizing her performance and making her working conditions increasingly difficult. (Id. ¶¶ 85-148.) Specifically, Plaintiff alleges that this retaliation came in the form of holdbacks on commissions allegedly due her, false accusations lodged against her by King, disparate treatment based on her gender, the wrongful institution of a performance review which was meant to criticize her, a pretextual plan to terminate her employment, the reallocation of a desk she once used once a week to a new employee, her co-workers' refusal to speak to her, the reassignment of certain accounts, her exclusion from conventions, her wrongful placement on probation, actions by King which prevented her from procuring sales, and the wrongful withholding of expenses. (Id. ¶¶ 51, 102-03, 113-32, 142-68, 180, 185-85, 192-97, 199, 205-20, 222-24, 226, 263.)
On June 4, 2003, Plaintiff was placed on probation. (Id. ¶ 150.) The reasons given by management for her probation were "1) chronic tardiness to MWC meetings, 2) unsatisfactory levels of sales activity (appointments), 3) poor account penetration, and 4) unsatisfactory performance in meeting sales goals (under 70% of plan for June)." (Id. ¶ 155.) On June 26, 2003, Plaintiff filed a formal complaint with Human Resources alleging that she was being retaliated against as a result of her reporting of the McCardell-Granato incident. (Id. ¶ 157.) On July 7, 2003, Human Resources advised Plaintiff that it had conducted a thorough investigation into her complaint and concluded that no sexual harassment or inappropriate behavior had occurred between Granato and McCardell. (Id. ¶ 169.) Upon Plaintiff's presentation of new evidence to Human Resources, MWC hired an outside consultant to reinvestigate Plaintiff's claim of retaliation as well as the alleged sexual harassment of McCardell. (Id. ¶ 175.) The outside consultant's report acknowledged that "there may have been inappropriate behavior at that conference" by Granato towards McCardell but failed to address Plaintiff's claim of retaliation. (Id. ¶¶ 176-77.) Plaintiff was ultimately terminated on October 24, 2003, allegedly based upon Defendants' gender discrimination and retaliation. (Id. ¶ 247.)
The court may not dismiss a complaint under Rule 12(b)(6) unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Aetna Cas. and Sur. Co. v. Aniero Concrete Co., 404 F.3d 566, 604 (2d Cir.2005). The Court must accept all factual allegations in the proposed complaint as true and draw all reasonable inferences in favor of the plaintiff. King v. Simpson, 189 F.3d 284, 287 (2d Cir.1999); Jaghory v. New York State Dep't. of Educ., 131 F.3d 326, 329 (2d Cir.1997). The Court must confine its consideration "to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters which judicial notice may be taken." Leonard F. v. Israel Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir.1999); Hayden v. County of Nassau, 180 F.3d 42, 54 (2d Cir.1999).
Here, Defendants move to dismiss counts three, four, five, six, thirteen, fifteen, and sixteen, as well as all claims against Romaine Publishers and Conselyea. Defendants also move to strike paragraph 165 of the Amended and Supplemental Complaint. The Court will address Defendants' arguments in turn.
Defendants contend that all claims should be dismissed as to Romaine Publishers because the Amended and Supplemental Complaint fails to attribute any specific acts to this corporate defendant. Instead, Defendants argue, Plaintiff specifically attributes all wrongful acts to either MWC or the individually named defendants.
The Amended and Supplemental Complaint states that "[f]or purposes of pleading the claims herein, MWC and ROMAINE [PUBLISHERS] will be collectively referred to as `MWC' unless otherwise stated." (Am. and Supplemental Compl. ¶ 20 n. 1.) In their answer, Defendants admit that MWC was Plaintiff's employer but that Romaine Publishers, as a subsidiary of MWC, paid her wages. (Answer ¶¶ 33, 232.) Because every allegation against MWC is also pleaded against Romaine Publishers, and because Plaintiff, at this early state of the litigation, cannot be expected to more precisely articulate the relationship between the two companies or their roles in Plaintiff's claims, Defendants' motion to dismiss the Amended and Supplemental Complaint as to Romaine Publishers is denied.
The third and fourth causes of action allege retaliation and gender discrimination in violation of the New York State Human Rights Law ("NYSHRL"), New York State Executive Law §§ 296 et seq. It is well settled that the NYSHRL 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, e.g., Wilcox v. PRC of New York L.P., No. 95-CV-1292, 1997 WL 141682, at *4 (N.D.N.Y. Mar.24, 1997). Here, it is undisputed that none of the Defendants is either a New York resident or a domestic corporation. Thus, Plaintiff's claim is viable only if she alleges that the discriminatory acts occurred in New York.
In Sherwood v. Olin Corp., 772 F.Supp. 1418 (S.D.N.Y.1991), the court explained that:
In order to allege discrimination within New York, [plaintiff] must allege more than her New York residence; she must allege that an unlawful discriminatory practice originated...
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