The opinion of the court was delivered by: SONIA SOTOMAYOR
SONIA SOTOMAYOR, U.S.D.J.
Defendants Brazilian National Superintendency of Merchant Marine ("BNSMM"), now known as the Brazilian National Department of Waterway Transportation, and Lloyd Brasileiro ("Lloyd") move for summary judgment to dismiss this sexual harassment action. For the reasons stated below, the motion is DENIED.
Lloyd and BNSMM share a combined New York office, which is headed by a Delegate and an Assistant Delegate. During the times relevant to this action, the Delegate was Jose Vinhae, and then Juca Colagrossi. The Assistant Delegate was Edward Crouch.
Plaintiff Clara Zveiter was a secretary to the Delegate and Assistant Delegate. One week after Mr. Colagrossi took over as Delegate, Ms. Zveiter asked for a twenty day vacation, and while she was on vacation, Irene Romanelli substituted for her as a secretary. One week after plaintiff returned from vacation, she was permanently replaced by Ms. Romanelli and was reassigned to serve as a receptionist, without diminution in salary or benefits. Subsequently, plaintiff and three other male employees were terminated.
Plaintiff brought this suit claiming sexual harassment, in violation of the New York Human Rights Law. She also alleged discrimination on the basis of her religion, but she has withdrawn that claim. She has also withdrawn her claim for intentional infliction of emotional distress. The status of an additional claim, for overtime compensation, is unclear, but appears to have been abandoned.
Defendants move for summary judgment dismissing the action on the grounds that they are immune from suit by virtue of the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1330, §§ 1602 - 1611; that plaintiff has failed to state a claim for sexual harassment; and that plaintiff released the defendants from suit by signing a waiver shortly after she was terminated.
A. Subject Matter Jurisdiction and The Foreign Sovereign Immunities Act
Defendants argue first that this Court lacks subject matter jurisdiction over plaintiff's claims because the defendants are immune from suit by virtue of the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1330, §§ 1602 - 1611.
The FSIA "provides the sole basis for obtaining jurisdiction over a foreign state in the courts of this country." Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443, 109 S. Ct. 683, 693, 102 L. Ed. 2d 818 (1989); 28 U.S.C. § 1330. The jurisdiction created by the FSIA, however, extends only to those claims "with respect to which the foreign state is not entitled to immunity either under [ 28 U.S.C. §§ 1605-1607] or under any applicable international agreement." 28 U.S.C. § 1330(a). Thus, defendants' motion presents an inquiry that must be addressed in two steps: first, I must determine whether the defendants are a "foreign state" within the meaning of the FSIA. If so, section 1330(a) is the exclusive means by which this Court may exercise subject matter jurisdiction over the action, and defendants are presumptively immunized from suit by virtue of 28 U.S.C. § 1604. Saudi Arabia v. Nelson, 123 L. Ed. 2d 47, 113 S. Ct. 1471 (1993). That leads to the second question: whether this action comes within one of the exceptions to immunity provided by 28 U.S.C. § 1605.
Are the Defendants a Foreign State?
Under 28 U.S.C. § 1603(a), a "foreign state" is defined to include its agencies and instrumentalities. An "agency or instrumentality of a foreign state" is any entity
(1) which is a separate legal person, corporate or otherwise, and
(2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and
(3) which is neither a citizen of a State of the United States as defined in section 1332(c) and (d) of this title, nor created under the laws of any third country.
Defendant BNSMM, now known as the Brazilian National Department of Waterway Transportation,
is a regulatory agency of the federal government of Brazil with jurisdictional authority over navigational and merchant marine affairs ...