Smith v. Avsc Intern., Inc.
| Decision Date | 26 June 2001 |
| Docket Number | No. 00 Civ. 9832(RWS).,00 Civ. 9832(RWS). |
| Citation | 148 F.Supp.2d 302 |
| Parties | Ed SMITH, Plaintiff, v. AVSC INTERNATIONAL, INC., Dr. Amy Pollack, Thomas Gray, and Jeanne Haws, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Shneyer & Shen, New York, NY (Michael Shen, of counsel), for plaintiff.
Reed Smith, New York, NY (Andrew L. Morrison, Amanda M. Fugazy, of counsel), for defendants.
In lieu of answering the complaint (the "First Complaint"), defendants AVSC International, Inc. ("AVSC"), Dr. Amy Pollack ("Pollack"), Thomas Gray ("Gray"), and Jeanne Haws ("Haws") have moved to dismiss the claims against them pursuant to Fed.R.Civ.P. 12(b)(6) as follows: (1) all claims against Pollack; (3) the Third Cause of Action against Gray; (4) the First, Second and Fourth Causes of Action against Haws; (5) the Fifth Cause of Action in its entirety; and pursuant to Fed. R.Civ.P. Rule 12(e) and (f), (6) to strike certain matters as scandalous or irrelevant and for a more definite statement. Plaintiff Ed Smith ("Smith") has opposed the motions, and, in the alternative, moves to replead any dismissed claims.
On June 7, 2001, Smith filed a second complaint (the "Second Complaint"), No. 00 Civ. 5054(RWS), which alleged two counts of federal civil rights violations against AVSC based upon the same facts alleged in the first complaint. By agreement of the parties, the motion to dismiss is applied to both complaints.
For the reasons set forth below, the defendants' motions are granted in part and denied in part, and Smith is granted leave to replead.
Smith, a 47 year-old white male residing in Oakdale, Pennsylvania, is a certified public accountant ("CPA") and was employed as a Controller of AVSC from September 1998 until his termination on September 20, 2000.
AVSC is a not for profit corporation providing global family planning services in conjunction with, among others, the United States Agency for International Development ("USAID"). AVSC is headquartered in New York City.
At all times relevant to this action, Pollack, who resides in New York, was, and still is, President of AVSC.
From the time Smith joined AVSC until on or about August 17, 2000, Gray was the Chief Financial Officer at AVSC and Smith's direct supervisor. Gray resides in New York.
At all times relevant to this action, Haws was, and still is, Vice President of Human Resources at AVSC. Haws resides in New York.
The first complaint, No. 00 Civ. 9832(RWS), was filed on December 29, 2000 and alleges five causes of action against each of the defendants: (1) against "defendant employer and its agents" for "discrimination ... with respect to harassment, hostile environment, wages, promotion, termination, and other terms and conditions of employment because of sex or sex plus age, in violation of the New York State Human Rights Law," and aiding and abetting the same; (2) the same grounds, in violation of the New York City Human Rights Law; (3) retaliation and discrimination on the same grounds, because of "age or age plus sex," in violation of the New York State Human Rights Law; (4) discrimination because of "age or age plus sex" in violation of the New York City Human Rights Law; and (5) breach of implied contract to comply with the ethical rules of the accounting profession.
The defendants filed this motion to dismiss, to strike, and to clarify, on March 2, 2001. Smith opposed on March 30, 2001. Defendants filed a reply brief and the motion was deemed fully submitted after oral argument on April 18, 2001.
While the motion was sub judice, the second complaint was filed on June 7, 2001. The second complaint alleges that the same conduct by the same defendants violated Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. By agreement of the parties, the motion to dismiss is considered with respect to both complaints.
The following is a synopsis of the twenty pages of facts Smith alleges in the First Complaint (which are duplicated in the Second Complaint). These facts are deemed to be true for the purpose of this motion to dismiss.
Smith alleges that AVSC has a pattern and practice of discriminating against men and/or older1 men in hiring, income, promotions, termination, and other terms of conditions of employment. (Compl. ¶¶ 11-14, 41.) The complaints set forth in detail various acts committed by Gray against employees other than Smith, including acts of sexual and racial discrimination, harassment (Compl.¶¶ 17a-j), and improper financial transactions (Compl.¶ 18-22, 22a-ff). The other defendants condoned Gray's behavior or took no action to remedy it (Compl.¶¶ 42-48).
The complaints assert that the defendants committed two discriminatory acts against Smith personally. First, although Smith had expressed interest in applying for the position of Senior Director of Finance and Administration, and his then-supervisor Gray had announced to the staff that Smith would be promoted to that position, Gray subsequently asked Smith to consider the position of International Controller. Smith accepted this proposal, and also agreed to be promoted to the Senior Director, would continue to report to the CFO, be able to work from home one week per month, and visit field offices two or three weeks of each month. (Compl.¶¶ 34-36.) However, a less-qualified woman in her twenties was promoted as Senior Director in Smith's stead because, as Gray told him, she had "more of a future at AVSC than Mr. Smith" (Compl.¶ 40.) Gray later asked Smith why he, a forty-something man, would want to work for Gray, who was in his thirties. (Compl.¶ 39.) AVSC, Haws and Pollack were aware of Gray's actions, but did not discipline him. (Compl.¶ 42.)
Second, the defendants "set up" and retaliated against Smith for reporting sexual harassment and financial misconduct (Compl.¶¶ 49-73), which, Smith alleges, not only discriminated against him on the basis of sex and/or age, but also breached his implied contract with AVSC to follow the ethical reporting standards of the accounting profession. Specifically, during the spring of 2000, Haws asked Smith for assistance in documenting Gray's improprieties, which he did on August 14, 2000. (Compl.¶¶ 49-52.) At the same time, Smith notified Haws that Gray had sexually harassed other AVSC employees, that Smith was being subjected to harassment based upon his sex and age, and that AVSC legal counsel, Nina Peckman ("Peckman"),2 in particular, had sexually harassed Smith by "continually harassing [him] to participate in sexual activity with her and Mr. Gray, and to procure a black employee to have sex with her...." (Compl.¶¶ 52-53.) In addition, Smith informed Haws and another AVSC executive that he was considering communicating with USAID about AVSC's improper financial practices. (Compl.¶ 54.)
On Wednesday, August 16, 2000, Gray received a threat to the life of his family. (Compl.¶ 57.) The next day, Pollack announced that Gray had resigned from AVSC. Haws took over as Smith's supervisor, and instituted more rigorous work standards, not allowing him to "telecommute," imposing deadlines, and not allowing him to use sick time to "recover from the stress of the past few days." (Compl.¶¶ 63-65.) Smith notified Haws on Monday, August 21, 2000, that he was applying to replace Gray as Chief Financial Officer. (Compl.¶¶ 57-59.)
On September 20, 2000, Smith notified Haws and another senior executive that he had contacted AVSC's external auditor, Arthur Anderson, about accounting misconduct at AVSC. (Compl.¶ 66.) One hour later, Pollack terminated Smith for insubordination and offered Smith a $16,000 severance package in exchange for signing a general release and a confidentiality agreement. (Compl.¶¶ 67-68.) Smith refused, and received no severance package. (Compl.¶ 69.) He alleges that his termination was "motivated by retaliation and discrimination based on sex and/or age," (Compl.¶ 70), as well as because he "complained about [Gray's] fraudulent financial and business practices...." (Compl.¶ 72.)
In reviewing a motion to dismiss under Rule 12(b)(6), courts must "accept as true the factual allegations of the complaint, and draw all inferences in favor of the pleader." Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir.1993) (citing IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1052 (2d Cir.1993)). Review must be limited to the complaint and documents attached or incorporated by reference thereto. See Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir. 1991). In this context, the Second Circuit has held that a complaint is deemed to "include ... documents that the plaintiffs either possessed or knew about and upon which they relied in bringing the suit." Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir.2000). However, "legal conclusions, deductions or opinions couched as factual allegations are not given a presumption of truthfulness." L'Europeenne de Banque v. La Republica de Venezuela, 700 F.Supp. 114, 122 (S.D.N.Y.1988).
"`[T]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.'" Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1995) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). Dismissal is warranted only when "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (footnote omitted). See also Bass v. Jackson, 790 F.2d 260, 262 (2d Cir.1986).
The Second Complaint contains two causes of action alleging that AVSC discriminated against Smith "with respect to harassment, hostile work environment, wages, promotion, termination and...
To continue reading
Request your trial
-
Sivio v. Vill. Care Max, 18 Civ. 2408 (GBD) (GWG)
...actions because "an adverse employment action must be something more than an every day work occurrence."); Smith v. AVSC Int. Inc., 148 F. Supp. 2d 302, 313 (S.D.N.Y. 2001) ("[N]ot allowing [plaintiff] to work from home ... [does] not constitute adverse employment action[ ] as a matter of l......
-
Slue v. New York University Medical Center
...the Code of Medical Ethics did not impose an obligation on her employer to terminate her only for just cause); Smith v. AVSC Int'l, Inc., 148 F.Supp.2d 302, 315 (S.D.N.Y.2001) (holding that violation of accountant's duties mandated by statute did not create a cause of action based on breach......
-
Tucker v. Am. Int'l Grp., Inc.
...that was not precisely related to the conduct complained of.” Doc. # 129, p. 10. As an example, Defendants cited Smith v. AVSC Int'l, Inc., 148 F.Supp.2d 302 (S.D.N.Y.2001), in which the plaintiff employee alleged that his employer discriminated against him based on age and gender and retal......
-
Brady v. Calyon Securities (Usa)
...the Code of Medical Ethics did not impose an obligation on her employer to terminate her only for just cause); Smith v. AVSC Int'l, Inc., 148 F.Supp.2d 302, 315 (S.D.N.Y. 2001) (holding that violation of accountant's duties mandated by statute did not create a cause of action based on breac......