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CRUZ v. ECOLAB PEST ELIMINATION DIV.

March 25, 1993

BARBARA CRUZ, Plaintiff,
v.
ECOLAB PEST ELIMINATION DIVISION, ECOLAB INC., STEVEN MOSH, and HENRY MARCANTONIO, Defendants.


HAIGHT, JR.


The opinion of the court was delivered by: CHARLES S. HAIGHT, JR.

HAIGHT, District Judge:

 In this action brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et. seq., plaintiff Barbara Cruz complains of a discriminatory discharge and allegedly related misconduct on the part of her former corporate employer, Ecolab Inc., *fn1" Steven Mosh and Henry Marcantonio. Defendants move under Rules 12(b)(1) and 12(b)(6) to dismiss certain paragraphs and claims in the complaint. The individual defendants also move under Rule 12(b)(5) to dismiss the complaint as to them for insufficiency of service of process.

 According to the complaint she filed with the Equal Employment Opportunity Commission ("EEOC"), and the New York State Division of Human Rights, Barbara Cruz is an Hispanic female. The EEOC complaint alleges that she was employed by Ecolab on July 30, 1990 as an "administrative assistant." She was the only female in a department of 45 employees. Her time, attendance and work performance were satisfactory. But on March 26, 1991, Ecolab informed Cruz that she would be terminated effective April 26, 1991. Cruz alleged in her EEOC complaint:

 
Respondent stated that "since my employment with him I have been unable to get a decent letter out of my typewriter." Respondent stated that this might be attributed to my language barrier.

 Cruz further alleged her belief that she was being terminated "because I am a female, since I am the only female in the department, and since my native tongue has never before interfered in the performance of my duties."

 In these circumstances, Cruz charged Ecolab with unlawful discrimination "by denying the equal terms, conditions and privileges of employment and terminating me because of my sex and national origin." The New York State Division of Human Rights complaint, attached to the motion papers, appears to be dated April 17, 1991.

 Following her receipt from the EEOC of a right-to-sue letter, Cruz commenced her action in this Court. The complaint reiterates Cruz's claim of discriminatory discharge. The complaint also asserts claims of discrimination at the time of hiring and sexual harassment. Specifically, PP 14-21 of the complaint allege that Cruz initially applied to Ecolab for the advertised position of exterminator, but was offered instead a lesser clerical position. Cruz alleges that she was interviewed by Marcantonio, the "managers" Marcantonio told Cruz that "she should not take a job as an exterminator because women did not like rats or cockroaches," P 16, and, despite Cruz's assurances that she was not afraid and was interested in the benefits offered with the position of exterminator, she was offered instead a position as an administrative assistant, for which she had not applied and had seen no advertisement. PP 17, 18. Ecolab hired Cruz on July 19, 1990 with employment to begin on July 30, as an administrative assistant. Eight to ten men were hired for the position of exterminator, none of whom, to Cruz's knowledge, had any prior experience in that field. PP 19-21.

 The complaint also alleges at PP 22 through 27 that Cruz was subjected to disparaging, gender-based comments and sexual harassment during the course of her employment. Specifically, the complaint alleges that an Ecolab employee named Olsen said to plaintiff that he would leave the elevators unlocked at night "so that she might be raped." P 23. That comment was made in the presence of defendant Mosh, a company vice president, who did nothing to reprimand Olsen. Cruz wrote a letter to Marcantonio, requesting that workers treat one another with respect, PP 24-26, put the letter produced no effect, "and he [Marcantonio] continued making sexually harassive [sic] remarks." P 27. When editing letters typed for him by Cruz, Mosh would on occasion comment "that plaintiff did not understand English because she was Puerto Rican." P 28.

 The complaint then alleges plaintiff's termination in March 1990, even though no report had been filed against her and she was never placed on probationary status. On the contrary, she had received verbal and written commendations "from outside companies after she took over as office manager." P 31. Plaintiff was replaced by Marcantonio although Marcantonio "had many complaints against him and recently had his probationary status terminated." P 33. Plaintiff alleges that she was told by Ecolab employees who attended a meeting to which she was not invited that "Marcantonio was introduced as new office manager for Ecolab Pest Control Division, and was being given the opportunity to redeem himself because he was a man and had a family to support." P 35.

 As a result of these circumstances, plaintiff alleges that she suffered "emotional distress and fear for her safety." P 36.

 The complaint alleges jurisdiction under Title VII, and " 28 U.S.C. § 1981," presumably an intended reference to 42 U.S.C. § 1981.

 The attorney for Cruz is Ruth M. Liebesman, Esq. Liebesman undertook to serve the summons and complaint upon all defendants herself. On June 8, 1992 she went to the Ecolab offices at 185 Franklin Street, New York City. According to Liebesman's affidavit on this motion, she was "greeted by Todd R. Filby," an Ecolab employee, who accepted service on behalf of Ecolab and also on behalf of the individual defendants, Mosh and Marcantonio. According to Liebesman, and in response to her inquiry, Filby stated in substance that he regularly accepted documents intended for Marcantonio and Mosh. Liebesman says in her affidavit that prior to this colloquy, she specifically advised Filby that the summons and complaint were addressed to the two individuals, as well as to Ecolab.

 Filby submits an affidavit on this motion denying that Liebesman said that the papers were for Marsh or Marcantonio personally. Filby further denies, contrary to Liebesman's assertion, that Liebesman inquired whether Filby was authorized to accept the papers on behalf of Mosh or Marcantonio. Filby adds that neither ...


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