Opinion
00 Civ. 2481 (LAK)
October 17, 2000
ORDER
This is an action for sexual harassment and retaliation brought pursuant to Title VII of the Civil Rights Act of 1964 as well as state and city law. Many of the defendants move to dismiss aspects of the amended complaint. Plaintiff moves to add parties. The motions are readily disposed of.
1. The motion of defendants Stern, Hugh O'Kane, and Kevin O'Kane to dismiss the ninth and eleventh claims for relief insofar as they are brought against those defendants is granted. Those claims seek relief under Title VII for alleged retaliation. But these individuals were not plaintiff's employer. They may not be held liable individually even if plaintiff's claims against her employer are well founded. See Tomka v. Seiler, 66 F.3d 1295, 1313 (2d Cir. 1995).
2. All defendants other than Andrew Fudrini (hereinafter the "Lexent Defendants") move to dismiss the first and fifth claims for relief as time barred. These claims allege quid pro quo and hostile work environment sexual harassment in violation of Title VII, the actor allegedly having been plaintiff's controller, Andrew Fudrini. The incidents in question are said to have taken place in the period May through September 1998. (Am Cpt ¶¶ 28) Plaintiff was transferred to a related company and moved from the financial area, in which Fudrini was employed, to operations, which was under the supervision of another officer, in December 1998. (Id. ¶¶ 43-46)
The amended complaint contains two paragraphs numbered "28." Both are relevant here.
As defendants' tacitly acknowledge (Def. Mem, 7/26/00, 7-8), the amended complaint is sufficiently unclear to preclude the Court from determining on the present pleading whether the alleged adverse employment actions, or some of them, occurred within the 300-day limitations period. Accordingly, this aspect of the motion is denied.
The Lexent Defendants ask in their memorandum for a more definite statement. That application is denied. Plaintiffs can pursue the question of timing in discovery.
3. The Lexent Defendants move to dismiss the thirteenth and fifteenth claims for relief, which are based on N.Y. Civ.R. L. § 40-c and claim retaliation during plaintiff's employment at NNT Inc. and/or NNT LLC and at HOK Inc., respectively, on the ground the statute does not create a right of action for retaliation.
The motion is granted. Section 40-c does not in terms proscribe retaliation or, for that matter, create a private right of action. The New York State Human Rights Law, on the other hand, does create such an express cause of action. N.Y. Exec. L. § 296, subd. 1(e). There is neither basis nor need in these circumstances to construe Section 40-c as plaintiff suggests.
4. The sixteenth claim for relief purports to allege retaliation in violation of Section 8-107(7) of the New York City Administrative Code, which prohibits retaliation based on opposition to "any practice forbidden under this chapter." Defendants argue that the complaint is insufficient because it alleges retaliation for opposition to practices prohibited by the New York State Human Rights Law rather than the relevant chapter of the City Administrative Code. But the argument is captious. The practices that plaintiff allegedly opposed, if they occurred, violated both the State Human Rights Law and the Administrative Code. Accordingly, this branch of defendants' motion is denied.
5. Plaintiff moves to add HOK Datacom, NNT, Inc. and Lexent Inc. as defendants. As plaintiff had the right to amend the complaint, leave of court was not required to include those defendants in the amended complaint, as plaintiff in fact has done. Defendants contend, however, that the action should be dismissed as against HOK Datacom and NNT Inc., the former on the ground that it was dissolved in 1995 and the latter on the ground that NNT Inc. changed its name to Lexent Inc. and has been sued under its proper name. The point is well taken, and that branch of the motion is granted.
To summarize, then, the motion of the Lexent Defendants to dismiss the amended complaint is granted to the extent that:
a. The ninth and eleventh claims for relief are dismissed as against defendants Stern, Hugh O'Kane and Kevin O'Kane on the ground that they fail to state a claim upon which relief may be granted.
b. The thirteenth and fifteen claims for relief are dismissed as against the Lexent Defendants on the ground that they fail to state a claim upon which relief may be granted.
c. The action is dismissed as against HOK Datacom and NNT Inc. without prejudice to plaintiff's claim against Lexent Inc.
Defendants' motion is denied in all other respects. Plaintiff's motion to add defendants is denied as unnecessary and moot.
SO ORDERED.