moved the Court to approve the amended complaint nunc pro tunc, and to strike the defendant's sixth affirmative defense objecting to the plaintiff's amending the complaint beyond anything approved by the Court's order granting the plaintiff leave to amend. The defendant opposed the plaintiff's motion, and also cross-moved to dismiss the amended complaint to the extent it alleged claims of continuing discriminatory acts under Title VII and the 1991 Act.
In addition, the defendant moved under Fed. R. Evid. 408 to exclude three documents as evidence. The first and second are, respectively, the February 3, 1992 letter from Delaney to Penny offering the plaintiff reinstatement on condition that the plaintiff sign a release and waiver of claims, and the March 20, 1992 letter from Delaney to Penny upholding her discharge. The defendant contends that under Fed. R. Evid. 408 these letters are inadmissible because they are related to settlement negotiations. The third document is a letter to the New York State Department of Education from the Hospital reporting that Penny was terminated due to her failure to carry out her duties as a nurse. This letter was sent pursuant to the Hospital's duty to file such a report under section 2803-e of the New York State Public Health Law. The defendant maintains the document is privileged and cannot be disclosed, because the statute provides that such reports are confidential, and subject to disclosure only by judicial subpoena.
On April 10, 1995 the Court heard oral argument on the various motions raised by the parties. At that time, the Court tentatively ruled that the plaintiff did not have a cause of action for retaliation, and accordingly granted the defendant's motion to dismiss the amended complaint to the extent it alleged such a cause of action. The Court also agreed with the plaintiff that the letters from Delaney dated February 3, 1992 and March 20, 1992 were not admissible pursuant to Fed. R. Evid. 408. The plaintiff stipulated to the inadmissibility of the Hospital's letter to the New York State Department of Education.
After considering further submissions on the matters tentatively decided by the Court, and hearing further argument on April 18, 1995, the Court desires to formalize its rulings as to the matters it ruled upon, as well as some additional matters raised by the parties in their submissions subsequent to April 10, 1995.
Rule 12(b)(6) Standard.
A complaint is to be dismissed under Fed. R. Civ. P. 12(b)(6) for failure to state a claim, if it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); accord Gagliardi v. Village of Pawling, 18 F.3d 188, 191 (2d Cir. 1994); Allen v. Westpoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991). In addition, such a motion is addressed solely to the face of a pleading, and "the court's function . . . is not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985).
In assessing the sufficiency of a pleading on a motion to dismiss, "all factual allegations in the complaint must be taken as true," La Bounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991), and all reasonable inferences must be construed in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1099 (2d Cir. 1988), cert. denied sub nom., Soifer v. Bankers Trust Co., 490 U.S. 1007, 104 L. Ed. 2d 158, 109 S. Ct. 1642 (1989).
The Court is also mindful that under the modern rules of pleading, the plaintiff need only aver "a short and plain statement showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), and that "all pleadings shall be so construed as to do substantial justice." Fed. R. Civ. P. 8(f).
1. The Plaintiff's Retaliation Claim.
In order to state a prima facie claim for retaliation, the plaintiff must demonstrate that: (1) she or he was engaged in an activity protected under Title VII; (2) the employer was aware of the plaintiff's participation in the protected activity; (3) the employer took adverse action against the plaintiff based upon his or her activity; and (4) a causal connection existed between the plaintiff's protected activity and the adverse action taken by the employer. Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033, 1039 (2d Cir. 1993). An "adverse action" is one which adversely impacts on the employee, such as a discharge, demotion, or failure to promote. Connell v. Bank of Boston, 924 F.2d 1169, 1179 (1st Cir.), cert. denied, 501 U.S. 1218, 115 L. Ed. 2d 997, 111 S. Ct. 2828 (1991). See also Johnson v. Palma, 931 F.2d 203, 207 (2d Cir. 1991) (Union's refusal to proceed with plaintiff's grievance procedure because plaintiff filed a discrimination claim with the Department of Human Rights is an adverse employment action).
Specifically, the plaintiff alleges in this case that the February 3, 1992 letter from Delaney to her, which conditioned the plaintiff's reinstatement on her signing a waiver and release, was an act of retaliation:
Upon information and belief, defendant's requirement contained in its February 3, 1992 grievance decision that plaintiff sign a waiver and release as a precondition to returning to work was . . . retaliatory for plaintiff's claims of discrimination.