The opinion of the court was delivered by: PETER K. LEISURE
This is an action for employment discrimination. Plaintiff is Kelly L. McIlwain ("McIlwain"). Defendants are McIlwain's former employer, Korbean International Investment Corporation ("Korbean"), and two Korbean employees, Robert Rosner and Isaac Milstein (collectively, "defendants"). McIlwain alleges that defendants sexually harassed her in violation of Title VII of the Civil Rights Act of 1964, see 42 U.S.C. § 2000e et seq., the New York Human Rights Law, see N.Y. Exec. Law § 296, and Title VIII of the Administrative Code of the City of New York. This Court has original jurisdiction over McIlwain's Title VII claim pursuant to 42 U.S.C. § 2000e-5(f)(3) and 28 U.S.C. § 1331 (Supp. 1993), and supplemental jurisdiction over the state and city law claims pursuant to 28 U.S.C. § 1367(a).
Defendant Milstein has moved to dismiss the complaint as against him for failure to state a claim upon which relief may be granted, see Fed. R. Civ. P. 12(b)(6).
Dismissal under Rule 12(b)(6) is appropriate "only if 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, 2 L. Ed. 2d 80, 78 S. Ct. 99 ; Dahlberg v. Becker, 748 F.2d 85, 88 (2d Cir. 1984), cert. denied, 470 U.S. 1084, 85 L. Ed. 2d 144, 105 S. Ct. 1845 (1985). For the reasons stated below, Milstein's motion is granted in part and denied in part.
"In ruling on a motion to dismiss, . . . [a] complaint is to be construed in the light most favorable to the plaintiff." Conley, 355 U.S. at 45. Thus, for purposes of ruling on defendant Milstein's motion, all factual allegations in the complaint will be taken as true and construed in the light most favorable to McIlwain. See Stewart v. Jackson & Nash, 976 F.2d 86, 87 (2d Cir. 1992) (citing LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991).
On or about December 28, 1992, McIlwain was hired by Korbean in its Planning and Development department to recruit traders and account executives for foreign currency. See Complaint P 10. Rosner, who is Director of the Planning and Development department, was McIlwain's "immediate supervisor." Complaint P 14.
On and about December 28, 1992, McIlwain's first day of work, "McIlwain was assigned to work with Milstein a Coordinator of Planning and Development of Korbean." Complaint P 15. Immediately thereupon, "Milstein subjected McIlwain to continuous offensive sexual language and repeatedly touched McIlwain without her permission." Id. On the first day of work, Milstein asked McIlwain if he could touch her knee and attempted to hold her hand. McIlwain informed Milstein that he could not touch her knee, and pulled away her hand. See id.
McIlwain alleges that defendant Milstein would constantly touch her shoulder and ask if she would perform sexual acts on him. McIlwain also alleges that Milstein would frequently conduct conversations of a sexually explicit nature on the phone in McIlwain's presence. See Complaint P 16. Each time Milstein impermissibly touched McIlwain, she moved away and told him to stop. See Complaint P 17.
McIlwain alleges that Milstein's "violative conduct continued to escalate." Complaint P 18. Milstein constantly asked McIlwain to have sex with him. See id. McIlwain never gave "any indication that Defendant Milstein's improper conduct was welcome." Complaint P 20.
McIlwain further alleges that defendants Korbean and Rosner participated in and encouraged the impermissible conduct carried out by Milstein against McIlwain. See Complaint P 22. McIlwain alleges that defendant Rosner did not take her complaints seriously, telling her "that Milstein was sexually deprived and . . . probably just wanted to get McIlwain in bed." Id.
As McIlwain's supervisor, Rosner had the authority to alter McIlwain's work schedule and assignments. See Complaint P 23. By January, 1993, McIlwain's duties and responsibilities had expanded and she was regularly working overtime on various tasks and projects given her by Rosner. See id. Although the Korbean offices closed at 5:00 p.m., McIlwain and Rosner usually worked until 8:00 p.m. by themselves. See id. McIlwain alleges that "in this manner Rosner began a campaign of intentionally overworking McIlwain and capitalized upon his authority over Plaintiff to force her to endure continuous violative conduct." Complaint P 23.
McIlwain alleges that "as her immediate supervisor, Defendant Rosner began subjecting McIlwain to repeated offensive sexual language and violative sexual conduct." Complaint P 24. On or about January 20, 1993, Rosner and McIlwain worked late together on a project and had a business-related dinner at a Houlihan's restaurant in Manhattan. See id. Due to the lateness of the hour, McIlwain and Rosner decided that it would be best to stay in the City for the night. See Complaint P 25. McIlwain agreed to stay at a Holiday Inn for the night with the understanding that she and Rosner would be staying in separate rooms. See id. Rosner insisted on staying in one room, however, and, "due to the fact that Rosner was McIlwain's supervisor, McIlwain felt that she had to acquiesce to his suggestion." Complaint P 26.
McIlwain alleges that Rosner asked McIlwain to take off her robe and come over to his bed. McIlwain further alleges that when she responded "no," Rosner proceeded to enter McIlwain's bed, open his robe, "kiss McIlwain on the lips and touch intimate parts of her body." Complaint P 27.
On or about early February, 1993, McIlwain and Rosner worked late and again went out for a business dinner together. Once again, they stayed in a hotel for the night. McIlwain alleges, in substance, that Rosner raped her that evening. See Complaint P 30.
McIlwain alleges that Rosner's position as McIlwain's supervisor aided him in "accomplishing the assaults":
Defendant Rosner acted within the scope of his authority as McIlwain's supervisor by luring and pressuring McIlwain to go to hotels after business dinners. Moreover, he was aided in accomplishing the assaults, and other mistreatment of McIlwain because of her sex by his position at Korbean as her supervisor and his agency relationship with Korbean.
On or about early January 27, 1993, Rosner, Milstein, and McIlwain went to a diner for a business dinner. During the dinner, Milstein and Rosner made "repeated unwelcome sexual comments to McIlwain." Complaint P 29. In addition, during the first week of February 1993, both Milstein and Rosner looked down McIlwain's blouse, while McIlwain was performing her duties in the office. See id.
On or about February 16, 1993, Rosner, Milstein and McIlwain went to dinner together, once again. McIlwain alleges that during the dinner, Rosner and Milstein "continually sexually harassed McIlwain by asking her sexual questions such as her preference for sexual positions. ...